                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


NORTH CAROLINA GROWERS’                
ASSOCIATION, INCORPORATED;
NATIONAL CHRISTMAS TREE
ASSOCIATION; FLORIDA FRUIT &
VEGETABLE ASSOCIATION; VIRGINIA
AGRICULTURAL GROWERS
ASSOCIATION, INCORPORATED; SNAKE
RIVER FARMERS ASSOCIATION;
NATIONAL COUNCIL OF
AGRICULTURAL EMPLOYERS; NORTH
CAROLINA CHRISTMAS TREE
ASSOCIATION; NORTH CAROLINA
PICKLE PRODUCERS ASSOCIATION;
FLORIDA CITRUS MUTUAL; NORTH
CAROLINA AGRIBUSINESS COUNCIL,
                                          No. 11-2235
INCORPORATED; MAINE FOREST
PRODUCTS COUNCIL; ALTA CITRUS,
LLC; EVERGLADES HARVESTING &
HAULING, INCORPORATED; DESOTO
FRUIT & HARVESTING,
INCORPORATED; FOREST RESOURCES
ASSOCIATION; TITAN PEACH FARMS,
INCORPORATED; H-2A USA,
INCORPORATED; OVERLOOK
HARVESTING COMPANY, LLC,
               Plaintiffs-Appellees,
                v.
                                       
2      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW


UNITED FARM WORKERS; JAMES            
CEASE; MARIO CENTENO-RODRIGUEZ;
JUAN CISNEROS-IBARRA; LUIS
ENRIQUE CISNEROS-IBARRA;
REYMUNDO GUTIERREZ; CARLOS
LUIS GUZMAN-CENTENO; JOSE RAUL
GUZMAN-CENTENO; ABELARDO
HERNANDEZ-AGUAS; GREGORIO
HUERTAS-SAMANO; PEDRO IBARRA-
AVILA; ATANACIO LUGO-RINCON;
OBDULA MALDONADO-ABELLANEDA;
MIGUEL ANGEL OLGUIN-HERNANDEZ;
ARTURO OLGUIN-MONROY; OMERA
RODRIGUEZ-GUZMAN; DESIDERIO
TOVAR-ZAPATA; ALEJANDRO TREJO-
LEON,                                 
 Intervenors/Defendants-Appellants,
                and
HILDA L. SOLIS, in her official
capacity as United States Secretary
of Labor; UNITED STATES
DEPARTMENT OF LABOR; JANET
NAPOLITANO, in her official
capacity as United States Secretary
of Homeland Security; UNITED
STATES DEPARTMENT OF HOMELAND
SECURITY,
                       Defendants.

                                      
       NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            3



HOWARD BERMAN; JUDY CHU;            
GEORGE MILLER; LYNN WOOLSEY,
     Amici Supporting Appellants,   
USA FARMERS, INC.,
    Amicus Supporting Appellees.
                                    
       Appeal from the United States District Court
 for the Middle District of North Carolina, at Greensboro.
          William L. Osteen, Jr., District Judge.
                (1:09-cv-00411-WO-LPA)

                Argued: October 23, 2012

               Decided: December 21, 2012

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.



Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge Wilkinson and Judge Diaz joined. Judge
Wilkinson wrote a separate concurring opinion.


                       COUNSEL

ARGUED: Naomi Ruth Tsu, SOUTHERN POVERTY LAW
CENTER, Atlanta, Georgia, for Appellants. Robin Elizabeth
Shea, CONSTANGY, BROOKS & SMITH, LLC, Winston-
Salem, North Carolina, for Appellees. ON BRIEF: Andrew
H. Turner, BUESCHER, GOLDHAMMER & KELMAN,
Denver, Colorado; Gregory S. Schell, MIGRANT FARM-
WORKER JUSTICE PROJECT, Lake Worth, Florida; Robert
4       NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
J. Willis, LAW OFFICE OF ROBERT J. WILLIS, Raleigh,
North Carolina, for Appellants. William R. Loftis, Jr., CON-
STANGY, BROOKS & SMITH, LLC, Winston-Salem, North
Carolina, for Appellees. Jonathan G. Cedarbaum, Lillian
Howard Potter, Annie L. Owens, WILMER CUTLER PICK-
ERING HALE AND DORR, LLP, Washington, D.C., for
Amici Supporting Appellants. Leon R. Sequeira, SEYFARTH
SHAW LLP, Washington, D.C., for Amicus Supporting
Appellees.


                           OPINION

BARBARA MILANO KEENAN, Circuit Judge:

   This appeal involves a regulatory action by the Department
of Labor (the Department), which suspended various regula-
tions for temporary agricultural workers and reinstated other
prior regulations. We primarily consider: (1) whether the
Department’s action constituted "rule making" under the
Administrative Procedure Act (the APA), 5 U.S.C. §§ 553,
and 701 through 706; and (2) if the action was "rule making,"
whether the Department satisfied the APA’s "notice and com-
ment" requirements.

   We conclude that the district court correctly determined
that the Department: (1) engaged in "rule making" when rein-
stating the prior regulations; and (2) failed to comply with the
notice and comment procedures mandated by the APA. We
also conclude that the Department did not invoke the "good
cause exception" provided by the APA to excuse its failure to
comply with these notice and comment requirements. Accord-
ingly, we hold that the district court did not err in invalidating
the Department’s action on the ground that it was arbitrary
and capricious.
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            5
                               I.

  1.   The 1987 Regulations

   In 1986, Congress passed the Immigration Reform and
Control Act amendments to the Immigration and Nationality
Act, which permitted the temporary admission of foreign
workers to engage in agricultural jobs in the United States
(the H-2A program). See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). In
1987, the Department promulgated regulations governing the
H-2A program to effectuate Congress’ intent that domestic
agricultural workers (U.S. workers) be given preference over
foreign agricultural workers (H-2A workers), and that the
employment of H-2A workers would not adversely affect the
wages or working conditions of U.S. workers (collectively,
the 1987 regulations, or the 1987 rule). See Labor Certifica-
tion Process for the Temporary Employment of Aliens in
Agriculture; Adverse Effect Wage Rate Methodology, 54 Fed.
Reg. 28,037 (July 5, 1989); Labor Certification Process for
the Temporary Employment of Aliens in Agriculture and
Logging, 52 Fed. Reg. 20,496 (June 1, 1987). An agricultural
employer seeking to participate in the H-2A program is
required to apply with the Department and certain other fed-
eral agencies, certifying that there are insufficient U.S. work-
ers available to perform work for the employer and agreeing
to abide by requirements regarding wages, housing, and work-
ing conditions. See 52 Fed. Reg. at 20,513-20,516.

   The 1987 regulations required, among other things, that
participating employers pay H-2A workers and similarly-
situated U.S. workers a wage rate calculated by a formula,
which is known as an "adverse effect wage rate" (AEWR).
See 54 Fed. Reg. at 28,038. AEWRs are minimum hourly
wage rates that must be paid under the H-2A program to for-
eign and U.S. agricultural workers, and are intended to ensure
that H-2A workers do not have an adverse effect on the wages
and working conditions of similarly-employed U.S. workers.
Feller v. Brock, 802 F.2d 722, 724 (4th Cir. 1986); 54 Fed.
6         NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
Reg. at 28,038. With only minor amendments, such as the
annual recalculations of the AEWRs, the 1987 regulations
remained in effect until January 16, 2009.

    2.   The 2008 Regulations

   In February 2008, the Department published a notice of
proposed rule making, stating that the agency intended to
make substantial changes to the H-2A program. Temporary
Agricultural Employment of H-2A Aliens; Modernizing the
Labor Certification Process and Enforcement, 73 Fed. Reg.
8538 (Feb. 13, 2008). A 60-day comment period was pro-
vided, during which the Department received 11,000 com-
ments. See Temporary Agricultural Employment of H-2A
Aliens; Modernizing the Labor Certification Process and
Enforcement, 73 Fed. Reg. 77,110, 77,111 (Dec. 18, 2008);
Extension of Comment Period, 73 Fed. Reg. 16,243 (Mar. 27,
2008). A final rule was published in December 2008 and
became effective on January 17, 2009 (collectively, the 2008
regulations, or the 2008 rule). See 73 Fed. Reg. 77,110 (Dec.
18, 2008). The 2008 regulations changed the method by
which AEWRs were calculated.1 73 Fed. Reg. at 77,166-
77,178. Many agricultural employers relied on the terms of
the 2008 regulations when entering into labor and production
contracts, and in making other business commitments for the
2009 growing season. There is no dispute that the 2008 regu-
lations were validly promulgated.

  The classification of foreign seasonal workers employed on
Christmas tree farms also is at issue in this appeal. Under the
Department’s prior practice, such workers were defined as
"agricultural" employees under the H-2A program, but as
"non-agricultural," "forestry" employees under the Fair Labor
    1
   The Department published the AEWR rates for 2008 in a separate
notice. See Labor Certification Process for the Temporary Employment of
Aliens in Agriculture and Logging: 2008 AEWRs and Other Provisions,
73 Fed. Reg. 10,288 (Feb. 26, 2008).
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            7
Standards Act (FLSA), 29 U.S.C. §§ 201 through 219. The
Department’s distinction in this regard was material, because,
among other things, persons "employed in agriculture" do not
qualify to receive "overtime" pay under the provisions of the
FLSA. 29 U.S.C. § 213(b)(12). Therefore, under the Depart-
ment’s prior practice, growers of Christmas trees not only
were required to provide their H-2A workers with housing,
meals, and transportation benefits set forth in the Immigration
Reform and Control amendments to the Immigration and
Nationality Act, but also were required to pay the H-2A work-
ers for overtime hours worked.

   In 2004, this Court found that the Department’s position
regarding the classification of H-2A workers on Christmas
tree farms, adopted without rule making allowing notice and
comment and without a formal adjudication, lacked any statu-
tory foundation and was not a persuasive interpretation of the
FLSA. On that basis, this Court invalidated the Department’s
determination. Dep’t of Labor v. N.C. Growers’ Ass’n, 377
F.3d 345 (4th Cir. 2004). In accordance with this precedent,
the 2008 regulations defined H-2A workers on Christmas tree
farms as "agricultural" employees for purposes of both the H-
2A program and the FLSA. See 73 Fed. Reg. at 77,201-
77,202.

  3.   The 2009 Suspension

   In March 2009, just two months after the 2008 regulations
took effect, Hilda Solis, the newly-appointed Secretary of
Labor, issued a "notice of proposed suspension" of the 2008
regulations (the 2009 Notice). Temporary Employment of H-
2A Aliens in the United States, 74 Fed. Reg. 11,408 (Mar. 17,
2009). In the 2009 Notice, the Department proposed to sus-
pend the 2008 regulations, during a nine-month period, for
further review and reconsideration "in light of issues that have
arisen since the publication of the [2008 regulations]." 74 Fed.
Reg. at 11,408. The 2009 Notice also stated that during the
period that the 2008 regulations would be suspended, the
8       NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
Department proposed "to reinstate on an interim basis" the
1987 regulations to avoid a "regulatory vacuum" in the H-2A
program. Id.

   The Department articulated various reasons in the 2009
Notice to support the proposed suspension and reinstatement,
including: (1) a lack of agency resources to implement the
2008 regulations efficiently; (2) delays resulting from pro-
cessing increased numbers of H-2A applications under the
2008 regulations, which volume was expected to impede the
Department’s performance of its statutory duty "to process H-
2A applications within a strict timeframe"; (3) the Depart-
ment’s inability "to implement the sequence of operational
events" required to process applications under the 2008 regu-
lations; (4) the Department’s inability to develop an "auto-
mated review system" for applications, requiring the
Department to review them manually; (5) the 2008 regula-
tions were a "complex new regulatory program," the imple-
mentation of which was proving disruptive and confusing to
the Department and to stakeholders; (6) avoidance of disrup-
tion during "the severe economic conditions" facing the coun-
try; (7) the Department "may differ" with the policy positions
of the prior Administration, on which the 2008 regulations
were based; (8) growers "require clear and consistent guid-
ance" to "plan and staff their operations appropriately for the
impending growing season"; and (9) continuing to implement
the 2008 regulations would not be an efficient use of
resources by stakeholders or the Department in the event that
the agency soon would issue a different rule. 74 Fed. Reg. at
11,408-11,409.

   For agricultural employers who submitted H-2A applica-
tions before the proposed suspension, the Department stated
that it would process their applications under the 2008 regula-
tions then in effect. 74 Fed. Reg. at 11,409-11,410; Tempo-
rary Employment of H-2A Aliens in the United States, 74
Fed. Reg. 25,972, 25,979 (May 29, 2009). The Department
allowed a 10-day period to receive comments on the proposed
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            9
suspension, citing the need for expediency, and stated that the
Department only would consider comments concerning the
suspension action itself, and not regarding the merits of either
set of regulations (the content restriction):

    Please provide written comments only on whether
    the Department should suspend the [2008 regula-
    tions] for further review and consideration of the
    issues that have arisen since [their] publication.
    Comments concerning the substance or merits of the
    [2008 regulations] or the [1987 regulations] will not
    be considered.

74 Fed. Reg. at 11,408. During this 10-day period, 800 com-
ments were received. 74 Fed. Reg. at 25,973.

   On May 29, 2009, after two months of consideration, the
Department published a "final rule; suspension of rule" that
suspended the 2008 regulations, and reinstated the 1987 regu-
lations, for a nine-month period effective June 29, 2009 (col-
lectively, the 2009 Suspension). 74 Fed. Reg. 25,972 (May
29, 2009). In addition to the reasons set forth in the 2009
Notice, the Department also included as grounds supporting
the decision the likely depressive economic effects of the
2008 regulations, and the lack of training by the Department,
state agencies, and H-2A employers. 74 Fed. Reg. at 25,972-
25,974. Although the Department acknowledged that many
agricultural employers had planned for the 2009 growing sea-
son relying on the terms of the 2008 regulations, the Depart-
ment partly discounted the possibility that the suspension
would cause excessive disruption, noting that employers had
operated under the 1987 regulations for several years and
were familiar with their terms. 74 Fed. Reg. at 25,980.

   Under the 2009 Suspension, agricultural employers hiring
H-2A workers would be required to pay the higher wage rate
afforded under the directives contained in the 1987 regula-
tions. The Department also published higher AEWRs near the
10       NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
end of May 2009, which were scheduled to take effect one
month later.2 See Labor Certification Process for the Tempo-
rary Employment of Aliens in Agriculture and Logging: 2009
AEWRs and Other Provisions, 74 Fed. Reg. 26,016 (May 29,
2009). Additionally, due to the 2009 Suspension, H-2A work-
ers employed on Christmas tree farms again would be classi-
fied as "agricultural" employees for purposes of the H-2A
program, but as "non-agricultural" employees for purposes of
the FLSA, the same classification invalidated by this Court in
N.C. Growers’ Ass’n. 74 Fed. Reg. at 25,982.

  4.   The NCGA Files Suit To Enjoin Suspension

   In June 2009, the North Carolina Growers’ Association,
Inc., and other growers’ associations, farmers, and related lob-
bying organizations (collectively, the NCGA), filed a com-
plaint in the district court against the Department and other
federal agencies (collectively, the federal defendants). The
NCGA sought to enjoin the Department’s 2009 Suspension,
arguing that such action violated the APA. The district court
granted the NCGA’s summary judgment motion, and issued
a preliminary injunction prohibiting implementation of the
2009 Suspension.

   As a result of the district court’s injunction, the 2008 regu-
lations continued to govern administration of the H-2A pro-
gram, and H-2A and U.S. agricultural workers were paid at
lower wage rates for nine months based on the 2008 AEWRs
and the 2008 regulations.3 Thousands of agricultural workers
and employers were affected by the changes in these regula-
tions.
  2
     This would result in a higher hourly wage both for H-2A workers and
for U.S. agricultural workers who worked alongside the H-2A workers.
   3
     For example, under the 2008 AEWR, an H-2A worker in North Caro-
lina would be paid $8.85 per hour rather than $9.34 per hour under the
2009 Suspension. See 74 Fed. Reg. at 26,016 (2009 Suspension AEWR);
73 Fed. Reg. at 10,289 (2008 AEWR).
         NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW                   11
  5.   The 2010 Regulations

   In September 2009, the Department issued another notice
of proposed rule making in a second attempt to replace the
2008 regulations.4 See Temporary Agricultural Employment
of H-2A Aliens, 74 Fed. Reg. 45,906 (Sept. 4, 2009) After
issuing notice and receiving comment, the Department pub-
lished new regulations governing the H-2A program (the 2010
regulations). See Temporary Agricultural Employment of H-
2A Aliens, 75 Fed. Reg. 6884 (Feb. 12, 2010). The 2010 reg-
ulations largely restored the H-2A program to the status quo
before 2008, and reinstituted the wages and working condi-
tions established under the 1987 regulations. The 2010 regula-
tions are not at issue in this appeal.

  6.   The Claims In The NCGA’s Suit

   The district court held that the NCGA’s claims against the
federal defendants were moot, in light of the Department’s
promulgation of the 2010 regulations. In December 2009, the
district court permitted the United Farm Workers, the Farm
Labor Organizing Committee, AFL-CIO, and representative
H-2A workers (collectively, the Farm Workers) to intervene
as defendants in this case. The Farm Workers filed a pur-
ported class action counterclaim against the NCGA on behalf
of H-2A workers and U.S. agricultural workers who had been
paid at wage rates based on the lower AEWRs in effect during
the preliminary injunction.

   The Farm Workers sought the difference between the
higher wages that would have been paid under the reinstated
1987 regulations, and the lower wages actually received by
the workers under the 2008 regulations as a result of the dis-
trict court’s preliminary injunction. The Farm Workers sought
  4
   Appeals from the district court’s preliminary injunction order to this
Court were later withdrawn in light of the Department’s action promulgat-
ing the 2010 regulations.
12      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
payment of this wage differential for the period between June
29, 2009, the date that the reinstatement of the 1987 regula-
tions would have taken effect, and March 14, 2010, the last
day before the uncontested 2010 regulations took effect.

   The parties filed cross motions for summary judgment on
the issue whether the 2009 Suspension was promulgated in
compliance with the APA. In its summary judgment decision,
the district court held that issuance of the 2009 Suspension,
that is, "the suspension of the 2008 Rule and reinstatement of
the 1987 Rule[,] constituted ‘rule making’" under the APA
and required compliance with the APA’s notice and comment
procedures. The court further concluded that the 2009 Sus-
pension violated the APA, because the Department refused to
consider comments addressing the substance of either the
2008 regulations or the 1987 regulations. According to the
court, these were relevant issues that the Department was
required to consider before suspending the 2008 regulations
and reinstating the 1987 regulations.

   The district court held that the Department’s failure to con-
sider such comments rendered the Department’s action
imposing the 2009 Suspension arbitrary and capricious. The
court granted the NCGA’s motion for summary judgment,
denied the Farm Workers’ motion for partial summary judg-
ment, and dismissed with prejudice the Farm Workers’ coun-
terclaims. The Farm Workers timely appealed.

                              II.

   We review de novo a district court’s decision awarding
summary judgment. Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006) (en banc). Summary judgment is appropriate when
there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. Couch v.
Jabe, 679 F.3d 197, 200 (4th Cir. 2012); Fed. R. Civ. P. 56(a).

  The APA requires that agencies follow certain procedures
before issuing a rule. 5 U.S.C. § 553. When an agency is
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            13
engaged in "rule making," the agency must: (1) publish a gen-
eral notice of proposed rule making in the Federal Register
that includes "the terms or substance of the proposed rule or
a description of the subjects and issues involved"; (2) give
"interested persons an opportunity to participate in the rule
making through submission of written data, views, or argu-
ments"; and (3) "[a]fter consideration of the relevant matter
presented . . . incorporate in the rules adopted a concise gen-
eral statement of their basis and purpose." 5 U.S.C. § 553(b),
(c).

   The important purposes of this notice and comment proce-
dure cannot be overstated. The agency benefits from the expe-
rience and input of comments by the public, which help
"ensure informed agency decisionmaking." Spartan Radio-
casting Co. v. FCC, 619 F.2d 314, 321 (4th Cir. 1980). The
notice and comment procedure also is designed to encourage
public participation in the administrative process. See Choco-
late Mfrs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir.
1985). Additionally, the process helps ensure "that the agency
maintains a flexible and open-minded attitude towards its own
rules," id. (citation omitted), because the opportunity to com-
ment "must be a meaningful opportunity," Prometheus Radio
Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011) (citation
omitted).

   Under the APA, a reviewing court will overturn an agency
action only if it is "arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law, . . . [or] without
observance of procedure required by law." 5 U.S.C. § 706(2);
see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 27, 41 (1983) (informal rule making proce-
dures may be set aside if arbitrary, capricious, or not in accor-
dance with law); Almy v. Sebelius, 679 F.3d 297, 302 (4th Cir.
2012) (same). As part of this review process, courts are
charged with ensuring that agencies comply with the proce-
dural requirements of the APA. Chrysler Corp. v. Brown, 441
U.S. 281, 313 (1979).
14      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
   We have recognized that courts best provide oversight of
an agency decision "by scrutinizing process and by determin-
ing whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment." Kennecott v. EPA, 780 F.2d 445, 449 (4th Cir.
1985) (citing Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971)). These tasks are "the heart
of the judicial inquiry," id. at 449, and fall within courts’
"special areas of competence," Chamber of Commerce of U.S.
v. SEC, 443 F.3d 890, 899-900 (D.C. Cir. 2006) (citation
omitted). Thus, while our review of an agency’s final decision
is narrow, "we must be strict in reviewing an agency’s com-
pliance with procedural rules." Chocolate Mfrs. Ass’n, 755
F.2d at 1103 (quoting BASF Wyandotte Corp. v. Costle, 598
F.2d 637, 641 (1st Cir. 1979)).

                             III.

   We first consider the issue whether the Department’s sus-
pension of the 2008 regulations or its reinstatement of the
1987 regulations qualified as "rule making" under the APA,
thereby triggering the statute’s notice and comment require-
ments. If the contested action did not qualify as "rule mak-
ing," as the Farm Workers contend, the Department was not
required to provide notice and comment and the district court
erred in enjoining the 2009 Suspension. However, if the
Department did engage in "rule making," as the NCGA con-
tends, the agency was required to comply with regular notice
and comment procedures barring an express exception
afforded under the APA.

   The district court assumed, without deciding, that the
Department’s suspension of the 2008 regulations qualified as
"rule making." The court held that "[i]n addition to withdraw-
ing a rule, [the Department] effectively formulated a new rule
by reinstating the 1987 Rule." (Emphasis added). The court
further held that "rule making" under the APA "explicitly
covers rule formulation," and, thus, reinstatement of the 1987
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW              15
regulations required compliance with regular notice and com-
ment procedures.

   The Farm Workers contend that the district court’s analysis
was erroneous in two respects. First, the Farm Workers argue
that the act of "reinstating" a rule does not fall within the defi-
nition of "rule making." According to the Farm Workers, "re-
instating" means restoring something that is not new, while
"formulating" means creating something new. Second, the
Farm Workers contend that the Department’s reinstatement of
regulations that previously had been subject to notice and
comment procedures did not require a "second rule making
process before reinstatement." We disagree with the Farm
Workers’ arguments.

  We begin by considering the relevant statutory language.
Under the APA, a "rule" is defined as

    the whole or a part of an agency statement of general
    or particular applicability and future effect designed
    to implement, interpret, or prescribe law or policy or
    describing the organization, procedure, or practice
    requirements of an agency and includes the approval
    or prescription for the future of rates, wages, corpo-
    rate or financial structures or reorganizations thereof,
    prices, facilities, appliances, services or allowances
    therefor or of valuations, costs, or accounting, or
    practices bearing on any of the foregoing.

5 U.S.C. § 551(4). The APA provides a "broad" definition of
the term "rule making," Ohio River Valley Envtl. Coal., Inc.
v. Kempthorne, 473 F.3d 94, 102 (4th Cir. 2006), which com-
prises the "agency process for formulating, amending, or
repealing a rule." 5 U.S.C. § 551(5) (emphasis added). The
parties do not dispute that the 1987 and 2008 regulations each
constitute a "rule" under the APA. Instead, they dispute
whether the Department’s action qualified as "formulating" a
rule, thereby constituting "rule making." As described above,
16      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
an agency engaging in "rule making" is required under the
APA to provide notice of a proposed rule and the opportunity
for comment. See 5 U.S.C. § 553.

    We are not persuaded by the Farm Workers’ textual argu-
ment that, under the APA, the act of "reinstating" a rule does
not qualify as "formulating" a rule. This argument is not sup-
ported by any precedent, and actually is undermined by a def-
inition of the term "formulating" cited by the Farm Workers,
which is "to reduce to or express in or as if in a formula," or
to "put into a systematized statement or expression." See
Webster’s Third New International Dictionary 894 (1986).
Notably absent from this definition is any requirement of
originality or novelty in the substance or text of the subject
matter expressed. Thus, under this definition of "formulating,"
it is immaterial whether the rule at issue was newly drafted or
was drawn from another source.

   When the 2008 regulations took effect on January 17, 2009,
they superseded the 1987 regulations for all purposes relevant
to this appeal. As a result, the 1987 regulations ceased to have
any legal effect, and their reinstatement would have put in
place a set of regulations that were new and different "formu-
lations" from the 2008 regulations.

   We also find no merit in the Farm Workers’ argument that
the Department’s action was not "rule making," but was
merely a suspension of regulations as occurred in American
Mining Congress v. EPA, 907 F.2d 1179, 1191 (D.C. Cir.
1990) (AMC), and American Federation of Government
Employees v. OPM, 821 F.2d 761, 764 (D.C. Cir. 1987)
(AFGE). Those cases concerned instances in which Congress,
rather than the agency itself, caused the suspension of the reg-
ulation at issue. AMC, 907 F.2d at 1183-84; AFGE, 821 F.2d
at 763-64. This factor, among others, renders these cases inap-
posite, because the APA’s focus on promoting public notice
and comment is not affected when Congress steps in and com-
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW         17
pels agency action. See Chocolate Mfrs. Ass’n, 755 F.2d at
1103.

   The Department’s own conduct, however, is highly rele-
vant and shows that the Department viewed the reinstatement
of the 1987 regulations as "rule making." The Department
published the 2009 Notice (entitled "Notice of proposed sus-
pension of rule"), proposing both to suspend the 2008 regula-
tions and to reinstate the 1987 regulations, and the
Department sought and considered comments on such action.
74 Fed. Reg. at 11,408-11,409. The Department later promul-
gated the 2009 Suspension (entitled "Final rule; suspension of
rule"), and explained the basis for its decision. 74 Fed. Reg.
at 25,972-25,984. Similar attempts by an agency "to comply
with APA notice-and-comment procedures suggest that the
agency believed them to be applicable," and support the con-
clusion that "those procedures were applicable." Manufac-
tured Housing Inst. v. EPA, 467 F.3d 391, 399 (4th Cir.
2006); see also Kempthorne, 473 F.3d at 102.

   We therefore conclude that, by reinstating the superseded
and void 1987 regulations (albeit temporarily), the Depart-
ment engaged in the "formulating" and the "repealing" aspects
of "rule making" under the APA. See 5 U.S.C. § 551(5). Thus,
we hold that the Department’s reinstatement of the 1987 regu-
lations qualified as "rule making" under the "broad language"
of that term, and that the Department was required to comply
with the APA’s notice and comment procedures. See 5 U.S.C.
§ 553; Kempthorne, 473 F.3d at 102.

                             IV.

   The Farm Workers contend, nonetheless, that the Depart-
ment did not violate the APA, because the Department’s
action fell within the "good cause" exception to the APA’s
notice and comment requirements. These notice and comment
requirements do not apply "when the agency for good cause
finds (and incorporates the finding and a brief statement of
18      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
reasons therefor in the rules issued) that notice and public pro-
cedure thereon are impracticable, unnecessary, or contrary to
the public interest" (the good cause exception). 5 U.S.C.
§ 553(b)(B).

   The APA requires that the agency relying on the good
cause exception "incorporate[ ] the finding [of good cause]
and a brief statement of reasons therefor in the rules issued."
5 U.S.C. § 553(b)(B). This requirement, that an agency articu-
late its basis for dispensing with normal notice and comment,
is not a procedural formality but serves the crucial purpose of
ensuring that the exceptions do not "swallow the rule." Cf.
Mobil Oil Corp. v. Dep’t of Energy, 610 F.2d 796, 803
(Temp. Emer. Ct. App. 1979) (conclusory statement or mere
recital of good cause is not sufficient to qualify as good cause,
otherwise, an exception to the notice requirement would be
satisfied upon mere invocation of the rule).

   Under the first statutory ground for good cause, notice and
comment on a rule may be found to be "impracticable" when
"the due and required execution of the agency functions
would be unavoidably prevented by its undertaking public
rule-making proceedings." Nat’l Nutritional Foods Ass’n v.
Kennedy, 572 F.2d 377, 384-85 (2d Cir. 1978) (Friendly, J.)
(quoting S. Rep. No. 752, at 200 (1945)); see also Util. Solid
Waste Activities Group v. EPA, 236 F.3d 749, 754-55 (D.C.
Cir. 2001) (the "impracticable" basis for good cause applies
"when an agency finds that due and timely execution of its
functions would be impeded by the notice and comment oth-
erwise required" under the APA) (quoting United States
Department of Justice, Attorney General’s Manual on the
Administrative Procedure Act 30-31 (1947)). Examples of
such circumstances under which good cause existed include
an agency determination that new rules were needed "to
address threats posing a possible imminent hazard to aircraft,
persons, and property within the United States," or were "of
life-saving importance to mine workers in the event of a mine
explosion," or were necessary to "stave off any imminent
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            19
threat to the environment or safety or national security." Mack
Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (cita-
tions and internal quotation marks omitted).

   The second statutory ground, the "unnecessary" prong of
the good cause exception, applies when an administrative rule
is "a routine determination, insignificant in nature and impact,
and inconsequential to the industry and to the public." Id. at
94 (quoting Util. Solid Waste Activities Group, 236 F.3d at
755). Congress intended that rule making be exempted as "un-
necessary" when amendments are "minor or merely techni-
cal," and of little public interest. Nat’l Nutritional Foods
Ass’n, 572 F.2d at 384-85 (quoting S. Rep. No. 752, at 200);
see also Attorney General’s Manual at 30-31 (the "unneces-
sary" prong of the good cause exception refers to "the issu-
ance of a minor rule or amendment in which the public is not
particularly interested"). Lastly, the third statutory ground for
good cause addresses circumstances when notice and com-
ment on a rule are "contrary to the public interest." 5 U.S.C.
§ 553(b)(B). This public interest prong of the good cause
exception "connotes a situation in which the interest of the
public would be defeated by any requirement of advance
notice." Util. Solid Waste Activities Group, 236 F.3d at 755
(quoting Attorney General’s Manual at 31). Good cause is
found on this basis "only in the rare circumstances when ordi-
nary procedures – generally presumed to serve the public
interest – would in fact harm that interest." Mack Trucks, 682
F.3d at 95.

   We construe the good cause exception narrowly. United
States v. Gould, 568 F.3d 459, 469 (4th Cir. 2009). There is
a high bar to invoke the exception because "[t]he legislative
history of the [APA] demonstrates that Congress intended the
exceptions in § 553(b)(B) to be narrow ones." Nat’l Nutri-
tional Foods Ass’n, 572 F.2d at 384. Indeed, "Congress
expected, and the courts have held, that the various exceptions
to the notice-and-comment provisions of section 553 will be
narrowly construed and only reluctantly countenanced." N.J.
20      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
Dep’t of Envtl. Prot. v. EPA, 626 F.2d 1038, 1045 (D.C. Cir.
1980).

   As a result, the circumstances justifying reliance on the
good cause exception are "rare," and will be accepted only
after a reviewing court "examine[s] closely" the proffered rea-
son for an agency’s deviation from public notice and com-
ment. Council of the S. Mountains, Inc. v. Donovan, 653 F.2d
573, 580 (D.C. Cir. 1981) (citation omitted). The good cause
exception applies only in "emergency situations," or in cases
when delay "could result in serious harm." Jifry v. FAA, 370
F.3d 1174, 1179 (D.C. Cir. 2004); see also Natural Res. Def.
Council, Inc. v. Evans, 316 F.3d 904, 911 (9th Cir. 2003)
("[N]otice and comment procedures should be waived only
when delay would do real harm.") (citation and internal quo-
tation marks omitted); Util. Solid Waste Activities Group, 236
F.3d at 754 (good cause exception "should be limited to emer-
gency situations") (citation omitted).

   We consider an explanation for good cause that the agency
has advanced at the time of the rule making. See Gould, 568
F.3d at 469-70; see also United States v. Garner, 767 F.2d
104, 116-17 (5th Cir. 1985) (agency action must be upheld,
"if at all, on the basis articulated by the agency itself" (quot-
ing State Farm, 463 U.S. at 50)). Post-hoc explanations that
an agency did not have to comply with regular notice and
comment procedures are viewed with skepticism. See, e.g.,
United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011);
Buschmann v. Schweiker, 676 F.2d 352, 356-58 (9th Cir.
1982). And, manifestly, we "may not supply a reasoned basis
for the agency’s action that the agency itself has not given."
State Farm, 463 U.S. at 43.

   The present record reveals that the Department did not
expressly invoke the good cause exception when reinstating
the 1987 regulations. See 5 U.S.C. § 553(b)(B). Indeed, in
undertaking its reinstatement of the 1987 regulations, the
Department quoted the notice and comment requirements of
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW           21
§ 553(b) and (c), but omitted the text of the good cause excep-
tion in subsection (b)(B). See 74 Fed. Reg. at 25,978. More-
over, nowhere did the Department state that allowing for
notice and substantive comment on reinstatement of the 1987
regulations would be "impracticable," "unnecessary," or "con-
trary to the public interest," the only grounds for good cause
provided by the statute. 5 U.S.C. § 553(b)(B).

   We cannot lightly accept arguments that an agency, while
failing to refer to the good cause exception, nevertheless
implicitly relied on the exception. The statutory requirements
in § 553(b)(B) are clear, and they constitute an important part
of the APA’s procedural safeguards related to agency rule
making. See Buschmann, 676 F.2d at 356-58. Although we do
not impose a rigid requirement that an agency must explicitly
invoke the good cause exception, the contemporaneous
agency record must manifest plainly the agency’s reliance on
the exception in its decision to depart from the required notice
and comment procedures. See Nat’l Customs Brokers & For-
warders Ass’n of Am., Inc. v. United States, 59 F.3d 1219,
1224 (Fed. Cir. 1995) (excusing agency’s failure to "expressly
cite section 553(b)(B)," when the agency "expressly noted
that the interim regulations were not subject to the notice and
public procedure requirements of 5 U.S.C. 553," and other-
wise made clear its reliance on the exception (citation omit-
ted)).

   The Department did not plainly manifest its reliance on the
good cause exception in this case. Rather, the record reflects
the Department’s position that the APA’s notice and comment
provisions were applicable, but that the agency had satisfied
such obligations.

   The Department actually provided notice and sought com-
ment on the issue "whether to suspend the [2008 regulations]
and reinstate on an interim basis the [1987 regulations]." 74
Fed. Reg. at 11,409. The Department stated the reasons why
it "believe[d] that the 10-day comment period for this rule-
22        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
making [was] reasonable." 74 Fed. Reg. at 25,978. The
Department also stated that "comments on the merits of the
[2008 and 1987 regulations] would be appropriate when the
merits of the program are actually at issue," apparently refer-
ring to a time after the period of suspension if the Department
decided to engage in further rule making. Id. at 25,979. The
Department did not justify its content restriction on the basis
of urgency or exigency, but rather on its stated judgment that
the merits of either program were not actually "at issue"
because the 1987 regulations were reinstated only as "a tem-
porary measure."5 Id. at 25,979.

   The 2009 Notice and Suspension therefore demonstrate that
the Department attempted to justify its suspension of the 2008
regulations and its reinstatement of the 1987 regulations on
the basis that such action complied with the APA’s regular
notice and comment procedure. Accordingly, we do not
accept the proposition that "good cause" was invoked by the
rationale offered by the Department in support of the pro-
posed rule making. Such a conclusion would undermine the
good cause exception, by permitting a party to invoke the
exception only when challenged.

   We hold that the language of the 2009 Notice and Suspen-
sion fails to show that the Department invoked the good cause
   5
     The Department also stated that the suspension of the 2008 regulations
and the reinstatement of the 1987 regulations would take effect after 30
days, pursuant to a separate notice and comment procedural rule set forth
in 5 U.S.C. § 553(d). 74 Fed. Reg. at 25,978-25,979. The fact that the
Department provided 30 days’ notice before the effective date of the sus-
pension and reinstatement, but did not attempt to argue that the agency
had "good cause" to dispense with this procedural requirement under the
separate good cause exception found in § 553(d)(3), further demonstrates
that the Department did not rely upon the good cause exception in any
aspect of the notice and comment proceedings. See 5 U.S.C. § 553(d)(3)
(providing, in relevant part, that "the required publication or service of a
substantive rule shall be made not less than 30 days before its effective
date, except . . . as otherwise provided by the agency for good cause found
and published with the rule").
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            23
exception, either explicitly or implicitly. Instead, the record
plainly reflects that the Department concluded that the APA’s
notice and comment procedures were applicable, but that it
had complied with such requirements. Id. at 25,978-25,979.

                               V.

   Having determined that the Department’s reinstatement of
the 1987 regulations qualified as "rule making" under the
APA, and that the Department did not invoke the APA’s good
cause exception, we turn to consider the issue whether the
agency action complied with the notice and comment provi-
sions of the APA. We need not address this issue at length,
because the record clearly demonstrates that the Department
did not satisfy its notice and comment obligations.

   The district court focused on the "content restriction" in its
analysis whether the Department complied with the APA’s
notice and comment requirements. As recited above, the con-
tent restriction provided that "[c]omments concerning the sub-
stance or merits of the [2008 regulations] or the [1987
regulations] will not be considered." 74 Fed. Reg. at 11,408.
The court noted that the Department "refused to consider
comments that it received as to those rules’ substance and
merits." According to the court, such comments were "rele-
vant and important" to the Department’s stated basis for its
decision to suspend the 2008 regulations, namely, the severe
economic circumstances facing the country. The court further
explained that the Department’s refusal to consider such com-
ments was a failure to "give interested persons an opportunity
to participate in the rule making," and a "failure to consider
important aspects of the problem."

   The Farm Workers, however, argue that the 10-day com-
ment period was reasonable, and was adequate to provide
notice and the opportunity for public comment. They also
point to the fact that 800 comments were received, contending
that this volume of response indicates that the Department
24      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
provided adequate opportunity for comment. According to the
Farm Workers, the Department adequately explained its
action and "responded to the public’s comments with rea-
soned explanations." Thus, the Farm Workers assert that the
district court improperly attempted to craft additional proce-
dural requirements, beyond those mandated by the APA, in
concluding that the content restriction prevented the Depart-
ment from receiving comments on matters "relevant and
important" to the "rule making." We disagree with the Farm
Workers’ arguments.

   The notice and comment provisions of the APA require,
among other things, that the agency give "interested persons
an opportunity to participate in the rule making through sub-
mission of written data, views, or arguments," and that the
agency shall explain its decision, "[a]fter consideration of the
relevant matter presented." 5 U.S.C. § 553(b), (c). In addition,
the Supreme Court has emphasized that agency action "nor-
mally" will be deemed arbitrary and capricious when the
agency "entirely failed to consider an important aspect of the
problem." State Farm, 463 U.S. at 43. We likewise have
explained that during notice and comment proceedings, the
agency is obligated to identify and respond to relevant, signif-
icant issues raised during those proceedings. S.C. ex rel. Tin-
dal v. Block, 717 F.2d 874, 885-86 (4th Cir. 1983).

   By the very terms of the 2009 Notice, the Department
stated that it would not receive or consider comments that
were not only "relevant and important," but were integral to
the proposed agency action and the conditions that such
action sought to alleviate. In the 2009 Notice, the Department
stated that it proposed to suspend the 2008 regulations and
reinstate the 1987 regulations, because of difficulties in oper-
ating the H-2A program under the 2008 regulations, including
a lack of resources, inability to implement operations, and
processing delays. 74 Fed. Reg. at 11,409. These reasons for
the 2009 Suspension were significant, substantive matters,
which raised questions whether the review process provided
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            25
in the 2008 regulations was more or less efficient than the
review process provided in the 1987 regulations.

   We therefore agree with the district court that, as a result
of the Department’s content restriction, the Department
refused to receive comments on and to consider or explain
"relevant and significant issues." See 5 U.S.C. § 553(b), (c);
Tindal, 717 F.2d at 885. Moreover, the content restriction was
so severe in scope, by preventing any discussion of the "sub-
stance or merits" of either set of regulations, that the opportu-
nity for comment cannot be said to have been "a meaningful
opportunity." Prometheus Radio Project, 652 F.3d at 450.

   Our conclusion that the Department did not provide a
meaningful opportunity for comment further is supported by
the exceedingly short duration of the comment period.
Although the APA has not prescribed a minimum number of
days necessary to allow for adequate comment, based on the
important interests underlying these requirements, Chocolate
Mfrs. Ass’n, 755 F.2d at 1103, the instances actually warrant-
ing a 10-day comment period will be rare. Such instances are
generally characterized by the presence of exigent circum-
stances in which agency action was required in a mere matter
of days. See, e.g., Omnipoint Corp. v. FCC, 78 F.3d 620, 629-
30 (D.C. Cir. 1996) (upholding 15-day comment period given
the "urgent necessity for rapid administrative action" evi-
denced by "congressional mandate [to act] without adminis-
trative or judicial delays" (citation omitted)); Northwest
Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 (8th Cir.
1981) (upholding 7-day comment period and invocation of the
good cause exception, when agency needed to resolve expedi-
tiously dispute among airlines about aircraft landing "time
slots," or risk widespread flight disruption).

   We also observe that when the Department earlier engaged
in rule making related to the 2008 regulations, the agency
received about 11,000 comments over a 60-day comment
period. See 73 Fed. Reg. at 77,111; 73 Fed. Reg. at 16,243.
26      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
In this context, the 800 comments received over the 10-day
comment period allowed here do not support the Farm Work-
ers’ argument that the Department provided adequate oppor-
tunity for comment.

   Accordingly, because the Department did not provide a
meaningful opportunity for comment, and did not solicit or
receive relevant comments regarding the substance or merits
of either set of regulations, we have no difficulty in conclud-
ing that the Department "ignored important aspects of the
problem." Kempthorne, 473 F.3d at 103. Therefore, we hold
that the Department’s reinstatement of the 1987 regulations
was arbitrary and capricious in that the Department’s action
did not follow procedures required by law. See 5 U.S.C.
§ 706(2); see also Mack Trucks, 682 F.3d 95-96 (vacating
agency interim rule when good cause exception did not apply,
and APA notice and comment procedures were not followed);
Buschmann, 676 F.2d at 358 (same); Kollett v. Harris, 619
F.2d 134, 144-46 (1st Cir. 1980) (holding "invalid" "proce-
durally defective" interim regulations that were issued without
notice and comment, and in the absence of good cause).

                             VI.

   Under the terms of the 2009 Notice and Suspension, the
Department also proposed that H-2A workers employed on
Christmas tree farms be defined as "agricultural" workers for
purposes of the H-2A program, but defined as "non-
agricultural" workers under the FLSA. 74 Fed. Reg. at
25,982. As a result of this distinction, Christmas tree workers
would be entitled to various benefits under the H-2A program,
and overtime pay benefits under the FLSA. The Farm Work-
ers contend that the district court improperly applied the
APA’s notice and comment requirements to this determina-
tion, which was merely interpretive in character and construed
the term "agriculture," within the meaning of the FLSA. Thus,
the Farm Workers contend that the 2009 Notice and Suspen-
sion lawfully returned Christmas tree farmers to a classifica-
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW             27
tion they had enjoyed before our N.C. Growers’ Ass’n
decision. We disagree with the Farm Workers’ arguments.

   "Interpretative rules" are not subject to the APA’s notice
and comment requirements. 5 U.S.C. § 553(b)(A). However,
interpretative rules only are entitled to deference as articulated
in Skidmore v. Swift & Co., 323 U.S. 134 (1944). See S. Utah
Wilderness Alliance v. Dabney, 222 F.3d 819, 829-30 (10th
Cir. 2000); Watkins v. Cantrell, 736 F.2d 933, 943 (4th Cir.
1984). In our N.C. Growers’ Ass’n decision, applying such
Skidmore deference, we considered the Department’s similar
classification of Christmas tree workers under the FLSA. 377
F.3d at 353-54. And, in N.C. Growers’ Ass’n, we concluded
that the Department’s interpretation of the FLSA lacked any
statutory support and did not have "the power to persuade."
Id. (citing Skidmore, 323 U.S. at 140).

   We noted in N.C. Growers’ Ass’n that the Department’s
interpretation was not the product of "notice and comment
rulemaking," and thus "lack[ed] the thoroughness of such
rules." 377 F.3d at 354. The interpretation of the FLSA set
forth in the 2009 Suspension fares no better, because the 2009
Suspension likewise was not subject to notice and comment.
Accordingly, we adhere to our decision reached in N.C.
Growers’ Ass’n.

                              VII.

   In sum, we hold that the Department’s reinstatement of the
1987 regulations for the H-2A program qualified as "rule
making" under the APA. We further hold that the Department
did not invoke the "good cause" exception of the APA and,
therefore, was required to satisfy the APA’s notice and com-
ment requirements. Because the Department did not comply
with those statutory requirements, the Department’s action
was arbitrary and capricious, in that the Department failed to
follow procedures required by law. Finally, we hold that the
Department’s action did not validly extend the FLSA’s over-
28      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
time pay provisions to Christmas tree farmers, and we remain
bound by our decision in N.C. Growers’ Ass’n.

  For these reasons, we affirm the district court’s award of
summary judgment to the NCGA.

                                                   AFFIRMED

WILKINSON, Circuit Judge, concurring:

   The different sets of regulations at issue in this case obvi-
ously reflect a political back-and-forth between employers
seeking to more easily hire foreign agricultural workers
through the H-2A program and those representing domestic
agricultural workers, whose wages and employment prospects
could be adversely affected by guest workers from abroad.
The 1987 regulations, 54 Fed. Reg. 28,037; 52 Fed. Reg.
20,496, embodied one set of priorities. The 2008 regulations,
73 Fed. Reg. 77,110, embodied another and very different
pro-employer set of priorities. The 2009 Suspension, 74 Fed.
Reg. 25,972, and 2010 regulations, 75 Fed. Reg. 6884, then
signaled a return, in the main, to the earlier 1987 emphasis on
worker wage protection.

   There is nothing necessarily wrong with this sort of see-
saw. No one expects agency views to be frozen in time or to
be immune from electoral mandates that will predictably
result in alterations and modifications of agency rules and
regulations.

   Changes in course, however, cannot be solely a matter of
political winds and currents. The Administrative Procedure
Act requires that the pivot from one administration’s priorities
to those of the next be accomplished with at least some fidel-
ity to law and legal process. Otherwise, government becomes
a matter of the whim and caprice of the bureaucracy, and reg-
ulated entities will have no assurance that business planning
predicated on today’s rules will not be arbitrarily upset tomor-
        NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW            29
row. Thus, the APA contemplates what is essentially a hybrid
of politics and law—change yes, but only with a measure of
deliberation and, hopefully, some fair grounding in statutory
text and evidence.

   I readily concur in Judge Keenan’s fine opinion because it
demonstrates, as did the district court’s decision, that the very
rudiments of process were absent here. It quite defies belief
that the 2009 Notice of Proposed Suspension of Rule deemed
comments on the merits of the regulations to be suspended or
the regulations to be reinstated out of bounds. See 74 Fed.
Reg. 11,408. In other words, the very agency actions that
would most affect those subject to the varying sets of regula-
tions were ruled off limits to discussion.

   This all risks giving the impression that the agency had
already made up its mind and that the comment period was,
at best, for show and provided only in an effort to do the mini-
mum necessary to squeak by judicial review. The confusion
was further compounded when the 2009 Notice invited com-
ments on whether the Department should suspend the 2008
regulations, but then stated that comments concerning the
"substance or merits" of those very same regulations "will not
be considered." Id. How in the world was a prospective com-
menter to know what could and could not be commented on,
or what the agency would or would not deem worthy of its
attention? The situation was further worsened by the highly
abbreviated comment period allowed for what was, in reality,
a complicated matter involving widespread real-world
impacts on the different participants in the agricultural com-
munity and the difficulties and problems involved with the
various regulations’ implementation.

   It is not a matter of tying an agency’s hands in the face of
a fresh electoral mandate. After all, the Department was able
to achieve its objectives with the 2010 regulations. To have
approved the process at issue in this case, however, would
have been to generate a blueprint for agency unaccountability,
30      NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW
at odds with the very idea that government at all levels is sub-
ject to the written law.
