Politics & Government · The Record
GAO reports agencies cited good cause for about 71 percent of major interim final rules it reviewed
The audit's count of expedited rulemaking closes on January 20, 2025 - six weeks before HHS rescinded a 1971 comment policy and roughly three months before a White House memorandum directed repeals without notice and comment where the good cause exception applies.
Agencies cited good cause to forgo advance public comment on about 71 percent of the major interim final rules that GAO reviewed and that agencies published between January 20, 2013, and January 20, 2025, the Government Accountability Office reported in GAO-26-108208. Of the interim final rules it reviewed, the report counts agencies asking for comment after issuance on 99 percent, and receiving comments on 94 percent.
Under the Administrative Procedure Act an agency ordinarily issues a notice of proposed rulemaking and takes public comment before a rule becomes final. The exception is narrow on its face: the report describes agencies expediting a rule when they find the process would be impracticable, unnecessary, or contrary to the public interest, and gives natural disasters and public health emergencies as examples of when that happens. GAO's product page uses the statutory term throughout - agencies may forgo comment when they find they have "good cause."
Two executive-branch documents issued in 2025 put that exception at the center of policy, and each states its own grounds.
On March 3, 2025, the Department of Health and Human Services published a policy statement in the Federal Register (document 2025-03300) rescinding the Richardson Waiver. That 1971 Department policy, printed at 36 FR 2532, gave up the APA's statutory exemption for rules relating to public property, loans, grants, benefits or contracts, required the Department to use notice and comment for those matters, and instructed it to use the good cause exception "sparingly." The 2025 notice describes the waiver as reaching past the statute: it says the waiver is contrary to the clear text of the APA and imposes obligations beyond the maximum procedural requirements specified in the APA. Its stated reason for rescinding is that the waiver's extra-statutory obligations "impose costs on the Department and the public, are contrary to the efficient operation of the Department, and impede the Department's flexibility to adapt quickly to legal and policy mandates."
Effective immediately, the notice states, the waiver is gone. In the notice's terms, "matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts" are exempt from the comment procedures of 5 U.S.C. 553 except where another law requires them, Department components may apply the procedures at their discretion, and the good cause exception should be used in appropriate circumstances under the APA's requirements. The document ends with a signature block naming Robert F. Kennedy, Jr., Secretary, Department of Health and Human Services.
The following month, in April 2025, a presidential memorandum titled "Directing the Repeal of Unlawful Regulations" instructed agency heads on how to unwind rules they consider facially unlawful. The captured page carries no signature block or personal name, so the words below belong to the document, not to any person this desk can identify from the record. The memorandum directs that "In effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment" where that course fits the APA's good cause exception. Its grounds are legal rather than budgetary: "Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest," and comment proceedings are unnecessary, the memorandum states, where a repeal is required as a matter of law to match a Supreme Court ruling. Where the memorandum talks about cost, the cost belongs to the regulations - unlawful, unnecessary and onerous ones, it states, impose massive costs on American consumers and American businesses - not to the comment process itself.
That is the claim side. The record GAO published is a count, and it runs backwards from where those documents begin.
The report's window covers 12 years. Across it, about 71 percent of the major interim final rules GAO reviewed cited good cause, which the report calls consistent with GAO's 2012 work, where 77 percent of major rules issued without an NPRM cited it. Use of the good cause exception peaked during the COVID-19 pandemic in 2020 and 2021, GAO found, and then "returned to more typical levels." In the non-pandemic years of the window, agencies issued between two and 10 major rules without an NPRM per year. During the pandemic, agencies expedited 55 rules in response to COVID-19 and cited good cause for 41 of them.
View the data
| Value (%) | |
|---|---|
| Good cause cited - major interim final rules reviewed, 2013-2025 | 71% |
| Good cause cited - major rules without an NPRM, 2012 report | 77% |
| Comment requested - interim final rules reviewed, 2013-2025 | 99% |
| Comment requested - major rules without an NPRM, 2012 report | 63% |
Source: GAO-26-108208 product page; the 2012 figures as reported there · Daily Pol graphic
The number that sits least comfortably beside the 2025 rationales is not the 71 percent. It is the 99 percent. On the interim final rules GAO reviewed, agencies asked for comment after issuance on nearly all, and comments came in on 94 percent. GAO presents that as an increase from its 2012 report, which found agencies requested comments on 63 percent of major rules issued without an NPRM. The two reviews define their sets differently - interim final rules in the new one, major rules issued without an NPRM in the old - so the pairing is GAO's own comparison rather than a matched rate. What the newer figure does establish, on GAO's count, is that forgoing prior comment has not meant declining to hear from the public. Agencies also reported on the economic effects of 66 percent of the rules GAO reviewed, with COVID-19 rules less likely to carry that information because of their emergency nature.
An analytical point about timing, drawn from the dates in these four documents rather than from any one of them. GAO's count stops at January 20, 2025. The Richardson Waiver was rescinded six weeks after that date, and the repeal memorandum issued that April, roughly three months after it. Whatever the 2025 documents change, the 71 percent does not measure it; it measures the practice they inherited. It also limits any partisan reading of the figure: GAO reports little variation in non-pandemic years across the 2013-2025 window, and outside the pandemic the raw annual count never exceeded 10.
The same auditor has already looked at one of the 2025 documents from a different angle. In decision B-337397, GAO addressed whether the HHS policy statement is itself subject to the Congressional Review Act, and concluded that it "is a rule for purposes of CRA" because it meets the APA's definition and no exception applies, making it subject to the statute's submission requirements. The captured decision states that conclusion and describes the policy statement as rescinding a prior policy generally requiring HHS components to use notice-and-comment procedures for rules on public property, loans, grants, benefits or contracts. It is a conclusion about which procedural statute reaches the document, and the capture presents it as nothing more.
Three things a reader can check from here. Whether the 2025 Policy Statement was submitted as B-337397 says the CRA requires; the full text of GAO-26-108208, including whatever the product page does not summarize; and the Federal Register itself, where any rule issued since January 20, 2025 that cites good cause carries the finding an agency made, in the agency's own words, on the day it skipped the comment period.