Agency Rescissions of Legislative Rules

February 8, 2021 R46673

Agency Rescissions of Legislative Rules
February 8, 2021
Federal administrative agencies carry out their statutorily prescribed responsibilities in many
ways. Perhaps most significantly, agencies may, pursuant to congressionally delegated authority,
Kate R. Bowers
promulgate rules with the force of law, commonly known as “regulations,” “substantive rules,”
Legislative Attorney
or “legislative rules.”

Daniel J. Sheffner
The Administrative Procedure Act (APA) establishes the procedural framework with which
Legislative Attorney
agencies generally must comply when issuing legislative rules. Under the APA, an agency

generally must publish a notice of proposed rulemaking in the Federal Register and allow the
public to comment on the proposal. After reviewing the comments received, the agency may

publish a final rule in the Federal Register. The APA provides that final rules generally do not
become effective until at least 30 days after publication. This type of rulemaking is known as “informal” or “notice-and-
comment” rulemaking and is codified at 5 U.S.C. § 553.
Not all rules must comply with the APA’s informal rulemaking requirements. The APA exempts non-legislative rules—such
as interpretive rules that construe the laws an agency administers, but which carry no legal force—from notice-and-comment
procedures. And the APA may exempt some legislative rules from informal rulemaking requirements. For example, an
agency is not obligated to provide notice and an opportunity for public comment for a legislative rule if there is “good cause”
to bypass the procedure because it would be “impracticable, unnecessary, or contrary to the public interest.” And not all
legislative rules are issued as “traditional” final rules. For example, when agencies avoid notice and comment under the
“good cause” exception, they sometimes issue an “interim final rule.” An interim final rule may be replaced with a (non-
interim) final rule after the agency considers post-promulgation public comments.
In addition to issuing legislative rules, agencies generally are able to rescind or alter such rules. The APA’s rulemaking
requirements generally apply to the repeal and amendment of rules, as well as to their initial issuance. Thus, if an agency
seeks to rescind or change an existing legislative rule, it generally must do so in compliance with the APA’s requirements,
unless an exception applies.
Agencies may also attempt to withdraw a final rule from the Office of the Federal Register (OFR) prior to its publication in
the Federal Register, or delay the effective date or compliance deadlines of a rule that has been published in the Federal
Register. Agencies generally may withdraw final rules before publication in the Federal Register without undergoing notice
and comment. However, courts also typically have held that to suspend the effective date or compliance deadlines of a rule,
an agency generally must adhere to the APA’s rulemaking requirements. Additionally, while 5 U.S.C. § 705 permits an
agency to postpone or stay a rule’s effective date pending judicial review if the “agency finds that justice so requires,” courts
have rejected recent efforts under that section to postpone compliance dates for rules that have already taken effect, and to
postpone effective dates where an agency has failed to adequately justify the stay.
Many agency suspensions and withdrawals of rules are driven by directives from the White House. Soon after taking office,
recent presidential administrations typically have directed agencies to cease pending rulemaking activities of the prior
administration, withdraw proposed and final rules from OFR prior to publication, and stay (or consider staying) the effective
dates of published rules that have not yet become effective to give the new administration time to review the prior
administration’s late-term rulemakings.
Courts generally apply the same scrutiny to review an agency’s rescission of a rule as they do for a rule’s issuance. An
agency must explain its departure from prior policy and show that its new policy adheres to the underlying statute; is
supported by “good reasons”; and is better, in the agency’s belief, than the prior policy. It must also address factual findings
that are inconsistent with those supporting the former rule and consider “serious reliance interests” affected by a change in
policy.
Congress has a number of options for rescinding or amending particular rules or altering the manner by which agencies or a
particular agency may rescind or amend rules. Congress can overturn or amend a rule pursuant to its legislative power, either
through ordinary legislation or the fast-track procedures authorized by the Congressional Review Act. In addition, along with
establishing new or additional procedures with which agencies must comply when issuing certain rules, Congress may also
specify in statute the procedures to which agencies must adhere when amending or repealing rules. And pursuant to its power
of the purse, Congress may prohibit an agency from using funds to develop, finalize, or implement rules.
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Introduction
Federal administrative agencies may carry out their statutory obligations in many ways, including
by adjudicating claims or disputes involving private parties, or by issuing oral or written guidance
explaining how they understand or interpret their statutory authority or obligations.1 In addition to
these and other actions and activities, federal administrative agencies may, pursuant to
congressionally delegated authority, carry out their responsibilities through the promulgation of
“legislative rules”—that is, rules that carry the force of law.2 Such rules, if consistent with
applicable procedural and substantive laws, may impose requirements and standards that bind
regulated parties and the agency.3 Legislative rules are also often referred to as “regulations” or
“substantive rules.”4
The Administrative Procedure Act (APA)5 establishes the procedural framework with which
agencies generally must comply when promulgating legislative rules.6 Under the APA, in order to

1 See CRS Legal Sidebar LSB10182, D.C. Circuit Rules FTC Opinion Letter Not “Final Agency Action” Subject to
Judicial Review, by Daniel J. Sheffner, at 2.
2 See Nat’l Latino Media Coal. v. FCC, 816 F.2d 785, 787-88 (D.C. Cir. 1983) (“[A] ‘legislative rule[]’ . . . is a rule
that is intended to have and does have the force of law. A valid legislative rule is binding upon all persons, and on the
courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and
the agency adopts legislative rules, the agency stands in the place of Congress and makes law.”). Legislative (or
“substantive rules” (see infra text accompanying note 4 & note 4)) are distinct from interpretive rules, general policy
statements, and rules of agency organization or procedure, which are exempt from the requirements for legislative
rulemaking. See 5 U.S.C. § 553(b)(3)(A); see infra “Exceptions to Notice-and-Comment Procedures.”
3 See Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014) (“An agency action that purports to impose
legally binding obligations or prohibitions on regulated parties—and that would be the basis for an enforcement action
for violations of those obligations or requirements—is a legislative rule. An agency action that sets forth legally
binding requirements for a private party to obtain a permit or license is a legislative rule.”). Courts have held that a rule
has the force of law “only if Congress has delegated legislative power to the agency and if the agency intended to
exercise that power in promulgating the rule.” Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106,
1109 (D.C. Cir. 1993).
4 See, e.g., Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987) (explaining that “‘regulations,’
‘substantive rules,’ or ‘legislative rules’ are those which create law, usually implementary to an existing law”) (internal
quotation marks and citation omitted). However, courts have sometimes used the term “regulations” more broadly to
embrace rules that do not carry the force of law and, therefore, are not required to issue under the APA’s notice-and-
comment procedures. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979) (“The central distinction among
agency regulations found in the APA is that between ‘substantive rules’ on the one hand and ‘interpretive rules, general
statements of policy, or rules of agency organization, procedure, or practice’ on the other.”).
The APA does not contain the term “legislative rule.” But as discussed below, see infra “Withdrawing Rules from
OFR,” the APA directs agencies to publish “substantive rules of general applicability” in the Federal Register, 5 U.S.C.
§ 552(a)(1)(D), and refers to “substantive rule[s]” in its requirement that agencies delay the effective dates of rules
required to be published in the Federal Register by at least 30 days after publication, id. § 553(d). And the Attorney
General’s 1947 manual interpreting the APA, issued shortly after the APA was enacted, refers to “substantive rules” as
the rules that must be issued pursuant to notice and comment. See TOM C. CLARK, ATTORNEY GENERAL’S MANUAL ON
THE ADMINISTRATIVE PROCEDURE ACT 26, 30 (1947). The Manual defines “substantive rules” as “rules, other than
organizational or procedural under section 3(a)(1) and (2), issued by an agency pursuant to statutory authority and
which implement the statute . . . . Such rules have the force and effect of law.” Id. at 30 n.3.
The notice-and-comment rulemaking section of the APA, discussed below, see infra, does not refer to “regulations” as
the type of rules that must comply with its requirements. But other related provisions, such as the Freedom of
Information Act, authorize or direct agencies to issue “regulations” on particular subjects. See, e.g., 5 U.S.C. §
552(a)(6)(E) (directing agencies to “promulgate regulations, pursuant to notice and receipt of public comment,
providing for expedited processing of requests for records” under the Freedom of Information Act).
5 5 U.S.C. §§ 551-559, 701-706.
6 See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015).
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issue a legislative rule, an agency generally must publish a notice of proposed rulemaking in the
Federal Register and allow the public to comment on the proposal.7 After reviewing the
comments received, the agency may publish a final rule in the Federal Register.8 The APA
provides that final rules generally do not become effective until at least 30 days after publication.9
This type of rulemaking is known as “informal” or “notice-and-comment” rulemaking10 and is
codified at 5 U.S.C. § 553.11
Not all rules must comply with the APA’s informal rulemaking requirements. For example, the
APA exempts non-legislative rules—such as interpretive rules that construe the laws an agency
administers but which carry no legal force—from its notice-and-comment procedures.12 Further, a
legislative rule may be exempt from all or some of the APA’s informal rulemaking requirements
under specific exceptions in the APA.13 For example, an agency does not need to engage in notice
and comment for a legislative rule if there is “good cause” to bypass the procedure because it
would be “impracticable, unnecessary, or contrary to the public interest.”14
Not all legislative rules are issued as “traditional” final rules.15 For example, when agencies avoid
notice and comment under the “good cause” exception, they sometimes issue what is known as an
“interim final rule.” An interim final rule is a final rule that an agency issues without providing
prior notice and an opportunity for public comment, but which the agency may replace with a
(non-interim) final rule after considering post-promulgation public comments.16
Besides issuing legislative rules, agencies generally are able to rescind or alter such rules. The
APA’s rulemaking requirements generally apply to the repeal and amendment of rules, as well as
to their initial issuance.17 Thus, if an agency seeks to rescind or alter a legislative rule, under the
APA, it must do so in compliance with these requirements, unless an exception applies.18 In
effect, the agency must issue a new rule that replaces the existing rule.
Agencies may also seek to withdraw a final rule from the Office of the Federal Register (OFR)
before its publication in the Federal Register, or delay the rule’s effective date or compliance
deadlines after it has been published. Agencies generally may withdraw final rules before

7 5 U.S.C. § 553(b), (c); see infra “Overview of Notice-and-Comment Rulemaking Under the APA.”
8 See 5 U.S.C. § 552(a)(1)(D).
9 Id. § 553(d).
10 See CRS Report R41546, A Brief Overview of Rulemaking and Judicial Review, by Todd Garvey, at 2.
11 5 U.S.C. § 553.
12 Id. §§ 551(4), 553(b)(A); see infra “Exceptions to Notice-and-Comment Procedures.”
13 See 5 U.S.C. § 553(a), (b)(B), (d)(1), (3); see infra “Exceptions to the APA’s Notice-and-Comment Rulemaking
Requirements.”
14 5 U.S.C. § 553(b)(B); see infra “Exceptions to Notice-and-Comment Procedures.”
15 See Jacob E. Gersen & Anne Joseph O’Connell, Deadlines in Administrative Law, 156 U. PA. L. REV. 923, 945 n.74
(2008).
16 See Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 ADMIN. L. REV. 703, 704 (1999) (footnote &
emphasis omitted); see infra “Exceptions to the APA’s Notice-and-Comment Rulemaking Requirements.” Interim final
rules are distinct from direct final rules. A direct final rule is a rule that an agency publishes in the Federal Register that
states that it will become effective at some time as a final rule unless the agency receives an adverse comment or a
notice of intention to submit an adverse comment. Garvey, supra note 10, at 4; Ronald M. Levin, Direct Final
Rulemaking, 64 GEO. WASH. L. REV. 1, 1 (1995). The agency withdraws the direct final rule if it receives any adverse
comments or notices of intention to submit adverse comments. Garvey, supra note 10, at 4; Levin, supra, at 1.
17 See 5 U.S.C. § 551(5).
18 See infra “Rescinding Rules.”
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publication without undergoing notice and comment.19 In contrast, courts have held that
suspending or delaying a rule’s effective date is tantamount to amending or repealing the rule.20
Thus, to suspend the effective date or compliance deadlines of a rule after its publication, an
agency generally must adhere to the APA’s rulemaking requirements.21 Further, although 5 U.S.C.
§ 705 permits an agency to postpone a rule’s effective date pending judicial review if the “agency
finds that justice so requires,”22 courts have rejected recent efforts under that section to postpone
compliance dates for already effective rules, and to postpone effective dates without adequate
justification that is tied to the pending litigation.23
Many agency suspensions and withdrawals of rules are driven by directives from the White
House. Soon after taking office, recent presidential administrations typically have directed
agencies to cease pending rulemaking activities of the prior administration, withdraw proposed
and final rules from OFR prior to publication, and stay (or consider staying) the effective dates of
published rules that have not yet become effective to give the new administration time to review
the late-term rulemakings of the prior administration.24
The APA establishes standards for judicial review of most agency rules, including rules that
rescind other rules.25 The Supreme Court has explained that courts apply the same level of
scrutiny in reviewing an agency’s rescission of a rule as they do when reviewing the initial
issuance of a rule.26 An agency must explain its departure from the prior policy and show that its
new policy is consistent with the underlying statute; supported by “good reasons”; and better, in
the agency’s belief, than the previous policy.27 Agencies must also address factual findings that
are inconsistent with those supporting the previous rule and consider “serious reliance interests”
that are affected by a change in policy.28 Recent Supreme Court decisions suggest that reviewing
courts should more closely scrutinize an agency’s consideration of reliance interests when
rescinding rules in the future.29
This report provides an overview of agency rescissions and alterations of rules. First, it briefly
examines the APA’s notice-and-comment rulemaking requirements and exceptions to such
requirements.30 It then discusses selected topics central to agency rescissions and alterations.
After considering the general requirements agencies must follow when rescinding or altering a
rule,31 the report explains how courts have treated agencies’ withdrawal of rules from OFR,32

19 See infra “Withdrawing Rules from OFR.”
20 See, e.g., Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 194 (2d Cir. 2004) (noting that “altering the effective
date of a duly promulgated standard could be, in substance, tantamount to an amendment or rescission of the
standards”).
21 See infra “Suspension of Rules.”
22 5 U.S.C. § 705.
23 See infra “Postponement Pending Judicial Review.”
24 See infra “New Presidential Administrations’ Responses to ‘Midnight Rulemaking.’”
25 See 5 U.S.C. § 706.
26 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009).
27 Id. at 515.
28 Id.
29 Id.; see infra “Judicial Review of Rule Rescissions.”
30 See infra “Overview of Notice-and-Comment Rulemaking Under the APA.”
31 See infra “Rescinding Rules.”
32 See infra “Withdrawing Rules from OFR.”
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suspension and postponement of rules,33 and stay of rules pending judicial review under the
APA.34 Following a brief explanation of how new presidential administrations typically respond
to the late-term rulemaking activities of prior administrations,35 the report then discusses the
general review standards and principles courts apply when reviewing an agency rescission or
change of a rule.36 Lastly, the report concludes with a summary of selected options available to
Congress pertaining to the rescission or alteration of rules and how Congress can use its power of
the purse to prohibit agencies from developing, finalizing, or implementing rules.37
Overview of Notice-and-Comment Rulemaking
Under the APA
The APA prescribes default procedures for agency rulemakings with which federal agencies
generally must comply.38 Codified at 5 U.S.C. § 553, the APA’s notice-and-comment rulemaking
procedures are grounded in Congress’s desire to ensure public involvement in the rulemaking
process.39 Under Section 553, an agency seeking to promulgate a legislative rule generally first
must publish a notice of proposed rulemaking in the Federal Register40 and allow members of the
public an opportunity to submit comments on the proposal.41 Section 553 states that such notice
of the agency’s proposed rulemaking must contain “a statement of the time, place, and nature of
public rule making proceedings”; a “reference to the legal authority under which the rule is
proposed”; and “either the terms or substance of the proposed rule or a description of the subjects
and issues involved.”42 The agency must incorporate into the final rule a “concise general
statement of [its] basis and purpose”43 and the agency’s responses to what the courts have
characterized as the “significant” comments it received during the comment period.44 The APA

33 See infra “Suspension of Rules.”
34 See infra “Postponement Pending Judicial Review.”
35 See infra “New Presidential Administrations’ Responses to ‘Midnight Rulemaking.’”
36 See infra “Judicial Review of Rule Rescissions.”
37 See infra “Considerations for Congress.”
38 See 5 U.S.C. § 553. The APA defines “agency” as “each authority of the Government of the United States, whether
or not it is within or subject to review by another agency.” Id. § 551(1). Several entities are explicitly excluded from
this definition, including Congress and the federal courts. See id. § 551(1)(A), (B). In addition to rulemaking
procedures, the APA also prescribes administrative adjudication procedures and standards of judicial review of final
agency actions. See id. §§ 554-558, 701-706.
39 5 U.S.C. § 553; see Kathryn E. Kovacs, Constraining the Statutory President, 98 WASH. U. L. REV. 63, 99-100
(2020) (“Congress pursued the value of public participation in the APA . . . by requiring agencies to provide public
notice of their proposed rules and an opportunity for the public to comment.”).
40 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015); 5 U.S.C. § 553(b).
41 5 U.S.C. § 553(c) (“After notice required by this section, the agency shall give interested persons an opportunity to
participate in the rule making through submission of written data, views, or arguments with or without opportunity for
oral presentation.”).
42 Id. § 553(b)(1)-(3).
43 Id. § 553(c). Although the statutory language describes such statements as “concise,” in practice, they often consist
of extensive preambles to final rules that agencies use “to advise interested persons how the rule will be applied, to
respond to questions raised by comments received during the rulemaking, and as a ‘history of the proceeding’ that can
be referred to in future applications of the rule.” JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 380
(6th ed. 2019).
44 Perez, 575 U.S. at 96.
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provides that an agency’s final rule generally must be published in the Federal Register at least 30
days before the rule becomes effective.45
It is important to note that several forms of rulemaking exist other than notice-and-comment
rulemaking under the APA. For example, under Section 553, “when rules are required by statute
to be made on the record after opportunity for an agency hearing,” an agency may issue a rule
only after engaging in a trial-type, evidentiary proceeding governed by the formal procedures
contained in 5 U.S.C. §§ 556 and 557.46 This is known as “formal” rulemaking.47 In addition, the
APA is not the only statute that imposes rulemaking requirements. Although the APA’s
procedures apply to agency rulemakings as a default, Congress may require that agencies engage
in additional or alternative procedures.48 For example, under what is known as “hybrid
rulemaking,” Congress imposes additional rulemaking procedures on agencies that build on the
APA’s procedures. Hybrid rulemakings are often of an adjudicative nature, in that they typically
require an agency to hold a hearing or provide an opportunity for a hearing before issuing a rule,
and may contain other trial-type attributes.49
However, notice-and-comment rulemaking under the APA is the most common form of legislative
rulemaking.50 And just as it is important to understand the notice-and-comment process discussed
above, it is also essential to recognize which rules do not have to comply with those requirements.
The materials below, accordingly, briefly discuss exceptions to the APA’s notice-and-comment
rulemaking requirements.

45 5 U.S.C. § 553(d); cf. id. § 552(a)(1)(D) (directing agencies to publish in the Federal Register “substantive rules of
general applicability adopted as authorized by law”).
46 5 U.S.C. § 553(c).
47 See Garvey, supra note 10, at 3. Formal rulemaking proceedings are normally presided over by impartial
administrative law judges. See 5 U.S.C. § 556(b). The proponent of a proposed rule bears the burden of proof in formal
rulemaking proceedings, and a party may support his position through the submission of “oral or documentary
evidence” and cross-examination. Id. § 556(d). The rule must be “issued . . . on consideration of the whole record or
those parts thereof cited by a party and supported by . . . substantial evidence.” Id. The APA’s formal rulemaking
procedures apply to a particular rulemaking only when a statute explicitly requires that the rulemaking proceed “on the
record after opportunity for an agency hearing” or else uses language “quite close to [those] magic words.” United
States v. Florida E. Coast Ry., 410 U.S. 224, 237-38 (1973); Aaron L. Nielson, In Defense of Formal Rulemaking, 75
OHIO ST. L.J. 237, 240 (2014) (internal quotation marks and citation omitted). Agencies engage in informal much more
often than formal rulemaking. See David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the
Short Cut, 120 YALE L.J. 276, 282 (2010).
48 Cf. 5 U.S.C. § 559 (providing that a “[s]ubsequent statute may . . . supersede or modify” the APA if “it does so
expressly”).
49 MICHAEL ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL ADMINISTRATIVE LAW 239 (3d ed. 2009) (quoting
JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 308-09 (4th ed. 2006)); id. at 236. See, e.g., 15
U.S.C. § 57a(b)(1), (c)(2) (providing that the Federal Trade Commission, when developing rules under that section,
must, inter alia, “provide an opportunity for an informal hearing” that allows “an interested person . . . to present his
position orally or by documentary submission” and, in certain circumstances, to conduct cross-examination). However,
while Congress can impose procedures on agencies in excess of those required by the APA, courts may not. See Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 546 (1978). For an overview of formal, hybrid,
and other types of rulemaking, see Garvey, supra note 10, at 1-6.
50 See Katherine J. Strandburg, Rulemaking and Inscrutable Automated Decision Tools, 119 COLUM. L. REV. 1851,
1865 (2019).
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Exceptions to the APA’s Notice-and-Comment Rulemaking
Requirements
Only a subset of agency rules must comply with the APA’s notice-and-comment rulemaking
requirements. The APA defines “rule” 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.”51 This
definition includes traditional regulations, but also a wide array of other agency actions, including
nonbinding general policy statements.52 Not every type of rule falling under that definition,
however, must comply with Section 553. As discussed above, Section 553’s notice-and-comment
requirements apply only to legislative rules having the force of law.53 Further, some rules are
either wholly exempt from Section 553’s provisions due to their subject matter54 or are exempt
specifically from the section’s notice-and-comment procedures.55 Lastly, some rules are exempt
from the APA’s general requirement that final rules become effective no earlier than 30 days after
publication.56
When agencies are authorized to issue a rule without complying with notice-and-comment
procedures, most often by invoking the “good cause” exception to Section 553’s notice-and-
comment requirements, they sometimes issue an interim final rule. An interim final rule is a final
rule that an agency publishes immediately—without providing notice and an opportunity to
comment prior to publication—and which requests the submission of comments following
issuance.57 The agency may revise the interim final rule and replace it with a (non-interim) final
rule in response to any post-promulgation comments received.58 Interim final rules are identical in
substance to non-interim final rules.59 As the D.C. Circuit has explained, the “key word” in the
term interim final rule “is not interim, but final. ‘Interim’ refers only to the [r]ule’s intended
duration—not its tentative nature.”60 If an interim final rule qualifies under an applicable

51 Id. § 551(4). This definition embraces “the approval or prescription for the future of rates, wages, corporate 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.” Id. A “rule” is in contrast to an “order,”
which the APA defines as “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or
declaratory in form, of an agency in a matter other than rule making but including licensing.” Id. § 551(6). An order is
the product of an agency “adjudication”—the “agency process for the formulation of an order”—not a rulemaking. Id.
§ 551(7).
52 See id. § 553(b)(A).
53 See supra “Introduction” & “Overview of Notice-and-Comment Rulemaking Under the APA.”
54 5 U.S.C. § 553(a); see infra “Rules That Are Wholly Exempt from 5 U.S.C. § 553.”
55 5 U.S.C. § 553(b); see infra “Exceptions to Notice-and-Comment Procedures.”
56 5 U.S.C. § 553(d); see infra “Exceptions to the 30-Day Delayed-Effectiveness Requirement.”
57 Asimow, supra note 16, at 704 (footnote & emphasis omitted). As mentioned above, interim final rules are used most
frequently when an agency invokes the good cause exception to the APA’s notice-and-comment procedures. See
Admin. Conf. of the U.S., Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60
Fed. Reg. 43110 (Aug. 18, 1995) (explaining that, while interim final rules have “been used in a variety of contexts,
[they are] used most frequently where an agency finds that the ‘good cause’ exemption of the APA justifies dispensing
with pre-promulgation notice and comment”).
58 See Asimow supra, note 16, at 704, 736; cf. Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical
Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 903 n.38 (2008) (writing that, “[t]echnically, agencies
are supposed to issue [non-interim final rules to replace interim final rules], but most agencies do not, leaving interim
final rules in force”).
59 See Career College Ass’n v. Riley, 74 F.3d 1265, 1268–69 (D.C. Cir. 1996).
60 Id. at 1268; but see Analysas Corp. v. Bowles, 827 F. Supp. 20, 21 n.3 (D.D.C. 1993) (expressing uncertainty as to
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exception to the 30-day delayed-effective requirement discussed below,61 it may take effect
immediately upon publication.62
Rules That Are Wholly Exempt from 5 U.S.C. § 553
Some rules are wholly exempt from the rulemaking provisions of 5 U.S.C. § 553 even though
they may carry the force of law. Section 553 does not apply “to the extent that there is involved”
in a rule either “a military or foreign affairs function of the United States,” or “a matter relating to
agency management or personnel or to public property, loans, grants, benefits, or contracts.”63
Rules involving such criteria are entirely exempt from Section 553. This means that these rules
are exempt not only from the section’s notice-and-comment procedures, but also from the
section’s provisions generally requiring that substantive rules only become effective 30 or more
days after publication and allowing parties to petition an agency to institute a rulemaking
proceeding.64
Exceptions to Notice-and-Comment Procedures
Although the rules discussed above are wholly exempt from 5 U.S.C. § 553’s requirements, the
APA also contains two exceptions that permit agencies to issue, alter, or rescind covered rules
without using the APA’s notice-and-comment procedures (unless “notice or hearing is required by
statute”).65 Both exceptions are contained in Section 553(b).
First, that subsection exempts from the APA’s notice-and-comment procedures “interpretative
rules, general statements of policy, [and] rules of agency organization, procedure, or practice.”66
Interpretative rules (or “interpretive” rules, as they are more commonly known67) are statements
that “advise the public of the agency’s construction of the statutes and rules which it administers”

whether “‘interim final rule’ means that [the agency] has issued a final rule which only applies temporarily (i.e., in the
interim), or that [the agency] has agreed upon a final version of an interim rule”). The court in Bowles, however, did
note that the latter “structure violates standard rules of construction in the English language, that adjectives precede the
nouns that they modify.” Id.
61 See 5 U.S.C. § 553(d).
62 See infra “Exceptions to the 30-Day Delayed-Effectiveness Requirement.”
63 5 U.S.C. § 553(a)(1)–(2). With respect to the second group of rules, the exception applies “‘to the extent that’ any
one of the enumerated categories is ‘clearly and directly’ involved in the regulatory effort at issue.” Humana of S.C.,
Inc. v. Califano, 590 F.2d 1070, 1082 (D.C. Cir. 1978) (citation omitted). The U.S. District Court for the District of
Columbia (D.C. District Court) recently applied this standard to the “military or foreign affairs function” prong, as
well. Cap. Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d 25, 52 (D.D.C. 2020) (“[A] rule falls within the
foreign affairs function exception only if it ‘clearly and directly’ involves ‘a foreign affairs function of the United
States.’”) (citations omitted).
64 5 U.S.C. § 553(d), (e); see Arthur Earl Bonfield, Public Participation in Federal Rulemaking Relating to Public
Property, Loans, Grants, Benefits, or Contracts, 118 U. PENN. L. REV. 540, 549 (1970) (“The exemptions contained in
section 553(a) for rulemaking involving ‘a military or foreign affairs function,’ rulemaking ‘relating to agency
management or personnel,’ and rulemaking relating to ‘public property, loans, grants, benefits, or contracts’ operate to
exclude entirely, and without qualification, all rulemaking in these categories from every provision of subsections
553(b)-(e).”). For more information on the subsection (a) exceptions, see Garvey, supra note 10, at 6.
65 5 U.S.C. § 553(b)(A)–(B). The exceptions do not specify that the covered rules are exempt from the other provisions
of § 553. However, as noted below, see infra, the requirement in Section 553 that rules take effect no earlier than at
least 30 days after publication does not apply to interpretive rules and “statements of policy” or when an agency finds
there is “good cause” for a rule to take immediate effect, 5 U.S.C. § 553(d)(2)-(3).
66 5 U.S.C. § 553(b)(A).
67 See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 n.1 (2015) (remarking that “interpretive” “is the more common
phrasing today”).
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but which lack the force of law.68 General policy statements, which also lack the force of law, are
“statements issued by an agency to advise the public prospectively of the manner in which the
agency proposes to exercise a discretionary power.”69 Lastly, the U.S. Court of Appeals for the
D.C. Circuit (D.C. Circuit) has explained that “rules of agency organization, procedure, or
practice”—commonly referred to as “procedural rules”70—refer to the “technical regulation of the
form of agency action and proceedings” and “merely prescribe[] order and formality in the
transaction of . . . business.”71

68 Id. at 97 (internal quotation marks and citation omitted).
69 Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (internal quotation marks and citation omitted); see William Funk, A
Primer on Nonlegislative Rules, 53 ADMIN. L. REV. 1321, 1322 (2001) (explaining that general policy statements, as
well as interpretive rules, “are often called nonlegislative rules, because they are not ‘law’ in the way that statutes and
substantive rules that have gone through notice and comment are ‘law,’ in the sense of creating legal obligations on
private parties.”). For a general overview of general statements of policy, see CRS Report R44468, General Policy
Statements: Legal Overview, by Jared P. Cole and Todd Garvey.
Interpretive rules and general policy statements are often referred to as “non-legislative rules,” see Funk, supra, at
1322, or “guidance documents,” see Cole & Garvey, supra, at 1. Courts are commonly tasked with determining
whether an interpretive rule or general policy statement is in fact binding and, therefore, should have undergone the
APA’s notice-and-comment procedures. See, e.g., Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir.
2014) (examining the distinction between legislative rules, interpretive rules, and general policy statements, and
explaining that the “most important factor” for determining whether an agency action is a legislative rule or a general
policy statement “concerns the actual legal effect (or lack thereof) of the agency action in question on regulated
entities”). For a discussion of the approaches courts takes to determine whether a general policy statement or
interpretive rule is actually a legislative rule, see Cole & Garvey, supra, at 6-13; LUBBERS, supra note 43, at 74-96.
70 See Elec. Privacy Info. Ctr. v. DHS, 653 F.3d 1, 5 (D.C. Cir. 2011) (“We consider first the [agency’s] argument it has
announced a rule of ‘agency organization, procedure, or practice,’ which our cases refer to as a ‘procedural rule.’”).
71 Pickus v. United States Bd. of Parole, 507 F.2d 1107, 113-14 (D.C. Cir. 1974). Procedural rules do not themselves
“alter the rights or interests of parties,” even though they “may alter the manner in which the parties present themselves
or their viewpoints to [an] agency.” Elec. Privacy Info. Ctr., 653 F.3d at 5 (internal quotation marks and citation
omitted).
Courts generally categorize procedural rules as non-legislative rules. See, e.g., Preminger v. Sec’y of Veterans Affairs,
632 F.3d 1345, 1349 (Fed. Cir. 2011) (noting that the term “‘non-legislative rules’ is used to describe collectively those
rules that are exempt from notice-and-comment rulemaking, including those with labels such as ‘interpretive rules,’
‘procedural rules,’ and ‘policy statements.’”) (footnotes and citations omitted); DOL v. Kast Metals Corp., 744 F.2d
1145, 1152 (5th Cir. 1984) (“The central distinction among agency regulations found in the APA is that between
substantive rules on the one hand and interpretive rules, general statements of policy, or rules of agency organization,
procedure, or practice on the other. Whereas substantive or ‘legislative’ rules affect individual rights and obligations
and are binding on the courts, nonlegislative rules do not have the force of law.”) (internal quotation marks and
citations omitted); Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 46 (D.D.C. 2018) (“Unlike a legislative rule, a procedural
rule does not itself alter the rights or interests of parties or impose new substantive burdens.”) (internal quotation marks
omitted).
Commentators, however, differ on whether to identify procedural rules as non-legislative rules or instead view them as
not susceptible to simple categorization as either non-legislative or legislative rules. See, e.g., ASIMOW & LEVIN, supra
note 49, at 319 (“Legislative rules are sometimes known as ‘substantive rules.’ That usage can be misleading, because
it undesirably implies a contrast with ‘procedural rules.’ Actually, procedural rules are often legislative rules.”); Kristin
E. Hickman, IRB Guidance: The No Man’s Land of Tax Code Interpretation, 2009 MICH. ST. L. REV. 239, 254
(“Whether characterized as interpretative rules, procedural rules, or policy statements, none of these nonlegislative
rules carries the force and effect of law.”) (footnotes omitted); Thomas W. Merrill, The Accardi Principle, 74 GEO.
WASH. L. REV. 569, 602 (2006) (“This does not mean that the distinction between legislative rules and nonlegislative
rules does not apply to procedural rules. Agencies can issue legally binding procedural rules and procedural rules that
are merely advisory or that act as guidelines to good practice.”); Sidney A. Shapiro, Administrative Law After the
Counter-Reformation: Restoring Faith in Pragmatic Government, 48 U. KAN. L. REV. 689, 716 (2000) (“The APA does
not require rulemaking procedures for either non-legislative or procedural rules . . . .”) (footnotes omitted).
A related and consequential issue subject to litigation is whether a rule is “procedural” or “substantive.” See ASIMOW &
LEVIN, supra note 49, at 316 (“A constant problem in the law is to distinguish ‘procedure’ from ‘substance.’
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Interpretive Rules, General Policy Statements, and Procedural Rules
Interpretive rules construe the laws an agency administers but lack the force of law.

General policy statements explain how an agency plans to apply a discretionary authority, but lack the force of
law.

Procedural rules govern the format of agency actions and proceedings, agency organization, and other procedural
matters.
Second, subsection (b) of Section 553 exempts from its notice-and-comment requirements a rule
that otherwise is required to undergo notice-and-comment rulemaking when an “agency for good
cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.”72 Courts have applied this “good cause” exception to notice-and-
comment requirements in a variety of circumstances, such as when a rule involves “emergency
situations, or [situations] where delay could result in serious harm.”73 Application of the
exception is necessarily fact-specific, and courts have instructed that the “exception should be
narrowly construed and only reluctantly countenanced.”74 To properly invoke the good cause
exception, an agency must “incorporate[] the finding [of good cause] and a brief statement of
reasons therefor in the rules issued.”75
Exceptions to the 30-Day Delayed-Effectiveness Requirement
Section 553 prohibits the “publication or service of a substantive rule” less than 30 days before
the rule’s effective date.76 The APA’s legislative history indicates that this requirement was
included to provide affected parties “a reasonable time to prepare for the effective date of a rule
or rules or to take any other action which the issuance of rules may prompt.”77 This directive,
however, does not apply (1) to “a substantive rule [that] grants or recognizes an exemption or
relieves a restriction,” (2) to interpretive rules or “statements of policy,” or (3) when an agency
finds there is “good cause” for the rule to take immediate effect.78 Rules fitting any of these
categories may take effect immediately upon being published.

Nevertheless, such a distinction must be drawn under [the exception from notice-and-comment under the APA for
procedural rules]”).
72 5 U.S.C. § 553(b)(B).
73 Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). For more information on the good cause exception, including
the circumstances under which it may apply, see CRS Report R44356, The Good Cause Exception to Notice and
Comment Rulemaking: Judicial Review of Agency Action, by Jared P. Cole.
74 Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 114 (2d Cir. 2018) (internal quotation
marks and citation omitted).
75 5 U.S.C. § 553(b)(B).
76 Id. § 553(d) (“The required publication or service of a substantive rule shall be made not less than 30 days before its
effective date . . . .”).
77 CLARK, supra note 4, at 36 (quoting ADMINISTRATIVE PROCEDURE ACT: LEGISLATIVE HISTORY, SEN. DOC. NO. 248, at
201, 259 (1948)).
78 5 U.S.C. § 553(d)(1)–(3). Recall that agencies may also be excused from notice-and-comment procedures for “good
cause.” Id. § 553(b)(B); see supra “Exceptions to Notice-and-Comment Procedures.”
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Rescinding Rules
An agency typically may amend or repeal a rule it has issued.79 The APA defines “rule making” as
the “agency process for formulating, amending, or repealing a rule.”80 In light of this definition,
the Supreme Court has recognized that, under the APA, an agency must comply with 5 U.S.C. §
553’s requirements not only when issuing a new rule with the force of law, but also when altering
or rescinding such a rule.81 But unless a statute or rule provides otherwise, an agency is not
required to follow notice-and-comment procedures when amending or repealing an interpretive
rule, general policy statement, or procedural rule.82
The effect of the rescission of a rule likely depends on both the specific rule being repealed and
the content of the rule announcing the repeal. When a court vacates a rule as invalid, the ordinary
effect is to return the law to its state before the rule was promulgated.83 But when an agency
“rescinds” a rule, it does so through a new rulemaking that may retain or amend some of the
provisions of the prior agency action that it addresses.
For example, in 2019, the Environmental Protection Agency (EPA) and Army Corps of Engineers
(Corps) repealed their 2015 rule84 defining “waters of the United States” subject to the
jurisdiction of the Clean Water Act (CWA).85 Instead of replacing the 2015 definition with a
newly developed definition, the 2019 rule reimposed “the regulations [that were] in existence
immediately prior to the 2015 [r]ule.”86 However, in April 2020, the agencies then rescinded the
2019 repeal-rule and replaced it with the Navigable Waters Protection Rule, which imposed a
revised definition of “waters of the United States.”87
Sometimes, however, a repeal-rule revokes a rule without either imposing new requirements or
reimposing prior ones. For example, in 2017, the Department of Agriculture (USDA) repealed88
an interim final rule it had issued in December 2016 that would have added a new paragraph to
regulations implementing the Packers and Stockyards Act, codifying the agency’s interpretation

79 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). An agency may not be authorized to rescind
rules that are legally required (for example, by statute), as such actions would “not [be] in accordance with law” under
the APA. 5 U.S.C. § 706(2)(A).
80 5 U.S.C. § 551(5).
81 See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015) (explaining that the definition of “rule making” in the
APA “mandate[s] that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule
in the first instance”). A statute that requires procedures different from or in addition to the APA’s informal rulemaking
procedures could require that the agency use such alternative procedures to amend or repeal the rule, as well. See
Garvey, supra note 10, at 10 & n.88.
82 5 U.S.C. § 553(b)(A); cf. Perez, 575 U.S. at 101 (“Because an agency is not required to use notice-and-comment
procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals
that interpretive rule.”).
83 See Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (“Normally when an agency so
clearly violates the APA we would vacate its action . . . and simply remand for the agency to start again.”).
84 Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015).
85 Definition of ‘‘Waters of the United States’’—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22,
2019); see 33 U.S.C. § 1362(7) (defining “[t]he term ‘navigable waters’” subject to the CWA’s jurisdiction as “the
waters of the United States”).
86 84 Fed. Reg. at 56,664.
87 The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States,’’ 85 Fed. Reg. 22250 (Apr. 21,
2020). EPA issued the two rules pursuant to a planned two-step process. See EPA, Navigable Waters Protection Rule,
Rulemaking Process (last updated Aug. 27, 2020), https://www.epa.gov/nwpr/rulemaking-process.
88 Scope of Sections 202(a) and (b) of the Packers and Stockyards Act, 82 Fed. Reg. 48,594, 48,594 (Oct. 18, 2017).
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of a provision of that statute.89 Instead of substituting a different interpretation of the statute,
USDA’s 2017 repeal-rule simply ensured that its regulations did not contain the additional
paragraph created by the interim final rule.90
As discussed above, while 5 U.S.C. § 553 generally prohibits rules that must undergo notice and
comment from becoming effective until at least 30 days after their publication in the Federal
Register, certain rules are exempt from this requirement.91 Thus, if an agency has “good cause” or
if amending or repealing a rule would remove a restriction or provide an exemption, an agency’s
amendment to or repeal of a rule with the force of law may become effective immediately upon
publication.92
Selected Issues
Because rescinding a rule generally requires new rulemaking, including notice-and-comment
procedures, agencies have at times sought alternatives to formal rescission. In some instances,
rather than repealing a rule, an agency may attempt to (1) withdraw a rule from OFR prior to
publication; (2) delay the effective date of a rule that has been published in the Federal Register
or the date on which the regulated public must comply with the rule; or (3) stay a published rule’s
effective date or compliance date pending judicial review. Courts generally have held that
agencies may withdraw a rule from OFR prior to its publication in the Federal Register without
engaging in notice-and-comment proceedings.93 And courts typically have held that an agency
must adhere to the APA’s rulemaking procedures when delaying a rule’s effective or compliance
dates,94 and that such a delay may not be used to stay the effective or compliance dates of a rule
that has already become effective.95
Many agency suspensions and withdrawals of rules are driven by directives from the White
House. As examined below, soon after taking office, recent presidential administrations typically
have directed agencies to cease pending rulemaking activities, withdraw proposed and final rules
from OFR prior to publication, and stay or consider staying the effective dates of published rules
that have not yet become effective to give the new administration sufficient time to review the
late-term rulemakings of the prior administration.96

89 Scope of Sections 202(a) and (b) of the Packers and Stockyards Act, 81 Fed. Reg. 92,566 (Dec. 20, 2016). The
agency had twice delayed the effective date of the 2016 interim final rule before proposing to rescind it. See 82 Fed.
Reg. 9489 (Feb. 7, 2017); 82 Fed. Reg. 17,531 (April 12, 2017). The Packers and Stockyards Act is codified at 7
U.S.C. §§ 181 et seq.
90 82 Fed. Reg. at 48,594.
91 See supra “Exceptions to the 30-Day Delayed-Effectiveness Requirement”; 5 U.S.C. § 553(d). Pursuant to the
Congressional Review Act, 5 U.S.C. §§ 801 et seq., a rule as defined by that act, id. § 804(3); see infra text
accompanying note 205 & note 205, may not take effect until the promulgating agency submits a report that contains “a
copy of the rule”; “a concise general statement relating to the rule”; and “the proposed effective date of the rule” to
both houses of Congress and the Comptroller General of the United States, 5 U.S.C. § 801(a)(1). “Major rules,” as
defined by the act, may not go into effect until 60 days after Congress receives the rule or the rule is published in the
Federal Register (if the rule is “so published”), whichever is later. Id. § 801(a)(3)(A). For the definition of “major rule”
under the act, see id. § 804(2). The Congressional Review Act is discussed below. See infra “Considerations for
Congress.”
92 5 U.S.C. § 553(d)(1), (3).
93 See infra “Withdrawing Rules from OFR.”
94 See infra “Suspension of Rules.”
95 See infra “Postponement Pending Judicial Review.”
96 See infra “New Presidential Administrations’ Responses to ‘Midnight Rulemaking.’”
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Withdrawing Rules from OFR
The Freedom of Information Act (FOIA),97 a component of the APA, directs agencies to publish
their “substantive rules of general applicability adopted as authorized by law” in the Federal
Register.98 To comply, an agency submits these rules to OFR—a component of the National
Archives and Records Administration.99 OFR does not publish a rule immediately; it holds the
rule for “confidential processing” and then files the rule for “public inspection.”100 Generally, a
rule OFR receives before 2:00 p.m. will be filed for public inspection on the second working day
following receipt, and a rule received after 2:00 p.m. will be filed on the third working day.101
Publication generally occurs the day after the rule is filed for public inspection.102 OFR permits
agencies to withdraw rules during either the “confidential processing” or “public inspection”
phases.103
Case law generally supports an agency’s ability to withdraw a rule from OFR before the rule has
been published in the Federal Register to prevent the rule from taking effect.104 For example, in
Kennecott Utah Copper Corp. v. Department of the Interior,105 the D.C. Circuit held that the
government did not violate FOIA, the Federal Register Act,106 or the APA when the Department

97 5 U.S.C. § 552.
98 Id. § 552(a)(1)(D); see id. § 553(d) (referring to the “required publication . . . of a substantive rule”). For more
information on the Freedom of Information Act’s affirmative disclosure requirements, see CRS Report R46238, The
Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner, at 11-15.
Courts have held that, under the APA, a legislative rule cannot become legally effective if it has not been published in
the Federal Register. See, e.g., Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 106 (2d
Cir. 2018) (“[A] regulation . . . does not have legal effect until it is published in the Federal Register.”); Nat. Res. Def.
Council v. EPA, 559 F.3d 561, 565 (D.C. Cir. 2009) (“Agencies must publish substantive rules in the Federal Register
to give them effect.”); Humane Soc’y of the United States v. USDA, No. 19-02458, 2020 U.S. Dist. LEXIS 132378, at
*18 (D.D.C. July 27, 2020) (“[I]n a case where the agency does not consider a rule to be finalized, and the rule has not
been published in the Federal Register, it does not constitute a finalized, legislative rule.”).
99 44 U.S.C. § 1503 (“The original and two duplicate originals or certified copies of a document required or authorized
to be published by [44 U.S.C. § 1505] . . . shall be filed with [OFR], which shall be open for that purpose during all
hours of the working days when the National Archives Building is open for official business.”); see id. § 1505(a)(3)
(providing that “documents or classes of documents that may be required so to be published by Act of Congress” must
“be published in the Federal Register”).
100 1 C.F.R. § 17.1; see id. § 17.2(a) (“Each document received shall be filed for public inspection only after it has been
received, processed and assigned a publication date.”).
101 Id. § 17.2(b)–(c); Jack M. Beermann, Midnight Rules: A Reform Agenda, 2 MICH. J. ENVTL. & ADMIN. L. 285, 339
(2013).
102 1 C.F.R. § 17.2(b)-(c).
103 Id. § 18.13(a); NAT’L ARCHIVES & RECORDS ADMIN., DOCUMENT DRAFTING HANDBOOK, at 5.3 (Apr. 2019),
https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf; see Beermann, supra note 101, at 340 (noting
that generally, OFR will not allow withdrawal of a document that has been filed for public inspection without “a legal
justification such as a legal mistake in the drafting of the document”).
104 See Nat. Res. Def. Council v. Perry, 940 F.3d 1072, 1077 (9th Cir. 2018) (“[O]rdinarily, agencies are free to
withdraw a proposed rule before it has been published in the Federal Register, even if the rule has received final agency
approval.”); Chen v. INS, 95 F.3d 801, 805 (9th Cir. 1996) (“[O]n its own terms, th[e] rule was to become effective
only on the date of publication in the Federal Register. In accordance with President Clinton’s directive, this rule was
withdrawn from publication. It was never subsequently published; therefore, it has no legal effect and is not binding on
this court.”); but see Xin-Chang Zhang v. Slattery, 859 F. Supp. 708, 713 (S.D.N.Y. 1994) (holding that an unpublished
rule that had been “signed by the Attorney General,” intended for publication in the Federal Register, and “confer[red]
a substantive benefit” on the petitioner, “became effective despite the agency’s failure to publish it in the Federal
Register”), rev’d on other grounds, 55 F.3d 732 (2d Cir. 1995).
105 88 F.3d 1191 (D.C. Cir. 1996).
106 44 U.S.C. §§ 1501 et seq.
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of the Interior withdrew a rule, without providing notice and an opportunity to comment, just two
days after OFR had received the rule and before the rule had been made available for public
inspection.107 The court explained that “permitting agencies to . . . withdraw regulations until
virtually the last minute before public release” ensures “that regulations appearing in the Federal
Register are as correct as possible in both form and substance” and “that the work of publishing
the government’s regulations proceeds in an orderly fashion.”108 The D.C. District Court recently
concluded that agencies may also withdraw rules during the public inspection stage.109 However,
withdrawal is not permitted where an agency is under a non-discretionary legal responsibility to
publish a rule in the Federal Register.110
Suspension of Rules
In some instances, an agency may suspend (or postpone) the effective date or compliance
deadlines of a rule that has already been published. Agencies may seek to suspend a rule’s
implementation in order to reconsider the rule or undertake notice-and-comment rulemaking to
replace it,111 to collect additional information necessary for the rule’s implementation,112 or to
implement a new presidential administration’s directive to temporarily postpone all regulations
published after a certain date that had not yet taken effect.113 While agencies sometimes pair
suspension with repeal and replacement,114 courts have cautioned that “a decision to reconsider a
rule” in and of itself “does not simultaneously convey authority to indefinitely delay the existing
rule pending that reconsideration.”115
Courts have uniformly held that suspension of a published rule is normally tantamount to an
amendment or repeal of a rule.116 This is because the effective date is “an essential part of any

107 Kennecott, 88 F.3d at 1202-09.
108 Id. at 1206.
109 Humane Soc’y of the United States v. USDA, No. 19-02458, 2020 U.S. Dist. LEXIS 132378, at *21-26 (D.D.C.
July 27, 2020); see id. at 33 (“As was held in Chen v. INS [see supra note 104], a signed, purportedly final rule that is
withdrawn and never published has no legal effect, and the Court sees no reason why this would not be true regardless
of whether the public is aware of the rule’s existence or not.”) (citation omitted).
110 See Perry, 940 F.3d at 1078-80.
111 E.g., Definition of “Waters of the United States”—Addition of an Applicability Date to 2015 Clean Water Rule, 83
Fed. Reg. 5200 (Feb. 6, 2018) (delaying effective date of 2015 rule amending definition of “waters of the United
States” under the CWA in order to maintain status quo while EPA and the Corps took steps to review and revise the
definition).
112 E.g., Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 1981) (upholding Mine Safety and Health
Administration’s postponement of safety regulations for coal mine operators while the agency gathered additional field-
testing information regarding the equipment to be required under the rule).
113 E.g., 82 Fed. Reg. at 8499 (setting new effective date for 30 regulations in order to implement the Priebus
Memorandum).
114 See 83 Fed. Reg. 5200.
115 Nat. Res. Def. Council v. Nat’l Hwy. Traffic Safety Admin., 894 F.3d 95, 111-12 (2d Cir. 2018) (citing Clean Air
Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2019)). See also Air Alliance Houston v. EPA, 906 F.3d 1049, 1065 (D.C.
Cir. 2018) (rejecting agency argument that statutory grant of authority to amend a final rule also authorized agency “to
delay a final rule merely because [the agency] is considering revising it”).
116 Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 194 (2d Cir. 2004) (noting that “altering the effective date of a
duly promulgated standard could be, in substance, tantamount to an amendment or rescission of the standards”); Env’t
Def. Fund, Inc. v. EPA, 716 F.2d 915, 920 (D.C. Cir. 1983) (“[S]uspension or delayed implementation of a final
regulation normally constitutes substantive rulemaking under APA § 553.”); Nat. Res. Def. Council, Inc. v. EPA, 683
F.2d 752, 761-62 (3d Cir. 1982). See also Lisa Heinzerling, Unreasonable Delays: The Legal Problems (So Far) of
Trump’s Deregulatory Regime, 12 Harv. L. & Pol’y Rev. 13, 17-18 (2018).
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rule” in that it gives an agency statement future effect and ensures that adherence to the rule will
be required.117 As with the promulgation of a rule, suspension of a rule’s deadlines has a
“substantive effect on the obligations of [regulated entities] and on the rights of the public.”118
Such a decision “affects regulated parties’ rights or obligations” in that it “relieves regulated
parties of liability they would otherwise face.”119
As a result, courts regard rule suspensions as final agency actions that are subject to judicial
review.120 For an agency action to be reviewable under the APA, it must be final.121 The Supreme
Court has held that for an agency action to be “final,” it must (1) “mark the ‘consummation’ of
the agency’s decisionmaking process,” and (2) be an action “by which ‘rights or obligations have
been determined,’ or from which ‘legal consequences will flow.’”122 In Clean Air Council v.
Pruitt, the D.C. Circuit concluded that an EPA order suspending for 90 days a 2016 rule
establishing new source performance standards under the Clean Air Act for fugitive emissions of
methane and other pollutants by the oil and natural gas industries was “essentially an order
delaying the rule’s effective date,” that this was equivalent to amending or revoking the rule, and
was thus a reviewable final agency action.123
Additionally, the APA’s procedural requirements for rulemaking apply with equal force to rule
suspensions. This includes the requirements for notice and comment, unless an agency can satisfy
the statute’s good-cause exception or another relevant exception set forth in 5 U.S.C. § 553.124
Courts have noted that applying the APA’s rulemaking requirements to rule suspensions prevents
agencies from “[employing] delay tactics to effectively repeal a final rule while sidestepping the
statutorily mandated process for revising or repealing that rule on the merits.”125 Similarly, the
reinstatement of a prior rule also qualifies as a rulemaking for purposes of determining whether
the relevant requirements apply.126
Reviewing courts typically focus on a rule suspension’s effects (for instance, whether the
suspension effectively allows an agency to repeal a rule without undertaking the processes

117 Nat. Res. Def. Council, 683 F.2d at 761-62.
118 Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802, 815-16 (D.C. Cir. 1983).
119 Clean Air Council, 862 F.3d at 6-7.
120 The APA provides that “[a]gency action made reviewable by statute and final agency action for which there is no
other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. For further discussion of finality and
the prerequisites to judicial review, see CRS Report R44699, An Introduction to Judicial Review of Federal Agency
Action, by Jared P. Cole [hereinafter Cole, Judicial Review], at 9-12.
121 5 U.S.C. § 704.
122 Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
123 Clean Air Council, 862 F.3d at 6. EPA issued the stay pursuant to Section 307(d)(7)(B) of the Clean Air Act, which
provides that the agency may stay a rule for up to three months if the Administrator has initiated proceedings to
reconsider the rule if the CAA provisions for mandatory reconsideration apply. 42 U.S.C. § 7607(d)(7)(B). The Clean
Air Act requires EPA to convene reconsideration proceedings if it receives objections to a rule and the objector can
demonstrate that it was impracticable to raise the objection during the period for public comment, and if the objection
“is of central relevance to the outcome of the rule.” Id. See also Council of S. Mountains, Inc. v. Donovan, 653 F.2d
573, 579-80 nn. 26 & 28 (D.C. Cir. 1981) (concluding that the court had jurisdiction to review Department of Labor’s
deferral of the implementation of safety regulations for coal mine operators).
124 E.g., Nat. Res. Def. Council v. Nat’l Hwy. Traffic Safety Admin., 894 F.3d 95, 113-14 (2d Cir. 2018).
125 Air All. Houston v. EPA, 906 F.3d 1049, 1065 (D.C. Cir. 2018). See also Nat. Res. Def. Council, 683 F.2d at 762
(noting that allowing agencies to suspend rules without adhering to the notice-and-comment requirement could result in
the indirect repeal of a rule “simply by eliminating (or indefinitely postponing) its effective date, thereby
accomplishing without rulemaking something for which the statute requires a rulemaking proceeding”).
126 N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 765 (4th Cir. 2012).
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required by the APA) as opposed to the precise duration of the suspension. In this vein, some
courts have been wary of rule suspensions that offer only a limited opportunity for public
comment. In North Carolina Growers’ Association, Inc. v. United Farm Workers, the United
States Court of Appeals for the Fourth Circuit (Fourth Circuit) struck down a 2009 Department of
Labor rule that suspended 2008 regulatory changes to certain employment regulations. The
Department’s proposed rule allowed for a 10-day comment period and indicated that the agency
would consider comments regarding only the suspension, and not the substance of the
regulations.127
The Fourth Circuit held that the suspension of the 2008 regulation and temporary reinstatement of
an earlier regulation constituted a rulemaking that was subject to the APA’s notice-and-comment
procedures.128 The court concluded that, although the Department’s reasons for suspending the
2008 regulation called into question the substance of that rule, “the Department refused to receive
comments on and to consider or explain ‘relevant and significant issues.’”129 Accordingly, the
court held that the agency arbitrarily and capriciously failed to provide a meaningful opportunity
for public comment or to give adequate consideration to “relevant and significant issues.”130
Similarly, two courts cited North Carolina Growers’ Association in striking down the suspension
of an earlier regulation clarifying the regulatory definition of “waters of the United States” under
the CWA.131
Finally, as with the promulgation and repeal of rules, the suspension or postponement of a rule
may be exempt from the APA’s notice-and-comment requirements if an agency properly invokes
the statute’s good cause exception.132 But courts have held that an agency may not invoke the
exception to suspend or postpone a rule simply because it wishes to have time to review and
amend the rule.133 For example, in 2018, the U.S. Court of Appeals for the Second Circuit held
that the National Highway Traffic Safety Administration had failed to establish good cause to
indefinitely suspend, without notice and comment, the effective date of a rule setting penalties for
noncompliance with fuel economy standards.134 In sum, although agencies may suspend or

127 Id. at 761.
128 Id. at 765.
129 Id. at 770.
130 Id.
131 S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 963 (D.S.C. 2018); Puget Soundkeeper All. v.
Wheeler, No. C15-1342, 2018 WL 6169196 (W.D. Wash. Nov. 26, 2018). In November 2017, EPA and the Corps
proposed to add an applicability date to the 2015 Clean Water Rule, thereby delaying its implementation for two years.
Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed. Reg. 55,542 (Nov. 22, 2017). The proposed rule
provided a 21-day period for public comment, solicited comment only on whether it would be appropriate to add an
applicability date to the 2015 Rule, and declined to solicit comments on the scope of the definition of “navigable
waters” or on the regulation that the 2015 Clean Water Rule replaced. Id. at 55,544-45.
132 5 U.S.C. § 553(b)(B).
133 Pineros y Campesinos Unidos del Noroeste v. Pruitt, 293 F. Supp. 3d 1062, 1067 (N.D. Cal. 2018) (citing Clean Air
Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017)). See also Nat’l Educ. Ass’n v. DeVos, 379 F. Supp. 3d 1001, 1021-28
(N.D. Cal. 2019).
134 Nat. Res. Def. Council v. Nat’l Hwy. Traffic Safety Admin., 894 F.3d 95, 114 (2d Cir. 2018). But see Council of S.
Mountains, Inc. v. Donovan, 653 F.2d 573, 581-82 (D.C. Cir. 1981) (in an “extremely close case,” upholding the
Secretary of Labor’s deferral without notice or an opportunity for comment of the implementation of safety regulations
for coal mine operators when the agency had not completed field testing for the relevant safety equipment because the
agency did not realize, despite its best efforts, that a postponement would be necessary for reasons beyond its control
until it was too late to follow notice-and-comment procedures).
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postpone rules for various reasons, agency attempts to bypass the APA’s procedural requirements
when doing so have received close scrutiny from reviewing courts.
Postponement Pending Judicial Review
The APA also permits an agency to postpone a rule’s effective date, without providing notice and
an opportunity for public comment, if the rule is pending judicial review and “an agency finds
that justice so requires.”135 One court has observed that the purpose of a stay pursuant to 5 U.S.C.
§ 705, unlike the other actions discussed in this report, is not to amend or repeal a rule but “to
maintain the status quo in order to allow judicial review of the underlying regulation to proceed in
a ‘just’ manner.”136 Case law on agencies’ use of 5 U.S.C. § 705 is limited. District courts have
generally allowed agencies to invoke Section 705 only to postpone rules that are not yet in effect,
rather than compliance dates after the rule’s effective date.137 Additionally, the statute does not
specify what an agency must consider in determining whether “justice so requires” a stay while
legal challenges to a rule are pending.
Though federal appellate courts have not weighed in on the issue, district courts have endorsed
different approaches to construing Section 705. Some have held that that a stay is appropriate
only if the agency finds all four of the factors that are commonly necessary for a court to grant a
preliminary injunction while a legal challenge is pending.138 Another court has instructed that
agencies need not consider whether the legal challenge is likely to succeed, but must weigh the
other three injunction factors.139
Regardless of what framework they use to evaluate the substance of an agency’s invocation of 5
U.S.C. § 705, several courts have rejected recent agency attempts to use the statute to postpone
rules both before and after those rules’ effective dates.140 For example, the U.S. District Court for
the District of Columbia held in Bauer v. DeVos that the Department of Education failed to
support its stay of the implementation of student loan borrower regulations where it provided only
a “boilerplate” statement that pending litigation had raised questions about the validity of the

135 5 U.S.C. § 705. Section 705 also provides that the reviewing court may postpone the effective date of an agency
action “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury.” The
authority of reviewing courts to alter a rule’s effective date is beyond the scope of this report.
136 Bauer v. DeVos, 325 F. Supp. 3d 74, 106-07 (D.D.C. 2018).
137 Becerra v. U.S. Dep’t of the Interior, 276 F. Supp. 3d 953, 965 (N.D. Cal. 2017) (holding that Department of
Interior could not delay oil and gas valuation rule’s compliance deadlines after effective date had passed); California v.
U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106, 1121 (N.D. Cal. 2017) (discussing Becerra, and noting that
“[e]ffective and compliance dates have distinct meanings”); Nat. Res. Def. Council v. U.S. Dep’t of Energy, 362 F.
Supp. 3d 126, 151 (S.D.N.Y. 2019). See also Heinzerling, supra note 116, at 26-27.
138 Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30-31 (D.D.C. 2012); Nat. Res. Def. Council, 362 F. Supp. 3d at 149;
Bauer, 325 F. Supp. 3d at 106. The four-factor test instructs courts to weigh the likelihood of success on the merits, the
possibility of irreparable harm absent an injunction, the balance of equities, and the public interest in evaluating
whether to issue a preliminary injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Courts have
also rejected the government’s contention that stays under 5 U.S.C. § 705 are “committed to agency discretion by law”
under Section 701(a)(2) of the APA and therefore unreviewable. Nat. Res. Def. Council, 362 F. Supp. 3d at 144-47; 5
U.S.C. § 701(a)(2). For an overview of Section 701(a)(2), see CRS Legal Sidebar LSB10536, Judicial Review of
Actions Legally Committed to an Agency’s Discretion, by Daniel J. Sheffner.
139 Bauer, 325 F. Supp. 3d at 105-06.
140 E.g., Nat. Res. Def. Council, 362 F. Supp. 3d at 150-51 (holding that Department of Energy’s indefinite
postponement of effective date of energy efficiency regulations was arbitrary and capricious); Bauer, 325 F. Supp. 3d
74 (holding that Department of Education’s stay of implementation of student loan borrower regulations was arbitrary
and capricious); Becerra, 276 F. Supp. 3d at 965; California, 277 F. Supp. 3d at 1121.
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rule.141 The court reasoned that this statement failed to explain why it was necessary to stay a
large portion of the rule, did not connect the possibility of potential compliance costs absent a
stay or the agency’s decision to review and revise the regulation to the pending litigation, and did
not consider the impact of a stay on the public interest or the interest of student borrowers.142
New Presidential Administrations’ Responses to “Midnight Rulemaking”
It is common for federal agencies to increase their rulemaking activities during the final months
of a presidential administration.143 Incoming administrations have responded to such late-term
rulemaking activities—typically referred to as “midnight rulemaking”144—in a number of ways.
Either by memorandum or executive order,145 the White House has often instructed agencies to
take some or all of the following actions—subject to exceptions—to give the new administration
sufficient time to review the prior administration’s midnight rulemakings: (1) refrain from
sending any proposed or final rules to OFR for publication in the Federal Register; (2) withdraw
from OFR any proposed or final rules that have not yet been published in the Federal Register;
and (3) postpone or consider postponing the effective dates of rules that have been published in
the Federal Register but that have not yet taken effect.146 Such directives often exempt
rulemakings responding to emergencies “or other urgent circumstances” (such as health or safety
matters), as well as those subject to deadlines imposed by statute or court order.147
The Biden Administration’s response to midnight rules issued by the outgoing Trump
Administration fits this pattern. On January 20, 2021—President Joe Biden’s first day in office—
the White House issued a memorandum to executive departments and agencies outlining the
President’s “plan for managing the Federal regulatory process at the outset of his
Administration.”148 The memorandum instructed agencies to

141 Bauer, 325 F. Supp. 3d at 107-10.
142 Id.
143 See Beermann, supra note 101, at 1; CRS Report R42612, Midnight Rulemaking: Background and Options for
Congress, by Maeve P. Carey, at 1.
144 See Carey, supra note 143, at 1.
145 See, e.g., Memorandum from President Ronald Reagan to the Attorney General, Secretary of the Interior, Secretary
of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of
Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, and
Administrator of the Environmental Protection Agency (Jan. 29, 1981) [hereinafter Reagan Memorandum];
Memorandum from Reince Priebus, Assistant to the President and Chief of Staff, for the Heads of Executive
Departments and Agencies, 82 Fed. Reg. 8346 (Jan. 24, 2017) [hereinafter Priebus Memorandum]; Exec. Order 12291,
46 Fed. Reg. 13,193 (Feb. 17, 1981).
146 See Carey, supra note 143, at 3–8; Priebus Memorandum, 82 Fed. Reg. at 8346. The modern presidential approach
to midnight rulemaking began in the Reagan Administration, and has been used to some extent by each subsequent
administration. See Reagan Memorandum; Exec. Order 12291, 46 Fed. Reg. 13191 (Feb. 17, 1981); see also
Heinzerling, supra note 116, at 16. During the Reagan Administration, DOJ’s Office of Legal Counsel opined that a
presidential suspension of the effective date of a final, published rule that has not yet become effective is not a “rule
making” under the APA and, therefore, need not be issued in compliance with the APA’s rulemaking procedures.
Presidential Memorandum Delaying Proposed and Pending Regulations, 5 Op. O.L.C. 55, 57 (1981).
147 See, e.g., Priebus Memorandum, 82 Fed. Reg. at 8346; Memorandum from Rahm Emanuel, Assistant to the
President and Chief of Staff, for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435, 4435-36 (Jan.
26, 2009); see Carey, supra note 143, at 3 n.13.
148 Memorandum from Ronald A. Klain, Assistant to the President and Chief of Staff, for the Heads of Executive
Departments and Agencies (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/presidential-
actions/2021/01/20/regulatory-freeze-pending-review/.
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 refrain from proposing or issuing any “rule”149 until an appointee or designee of
President Biden has reviewed and approved it;
 withdraw from OFR those rules that had been sent to OFR by the prior
administration but not yet published “for review and approval as described”
above; and
 consider postponing for 60 days the effective dates of rules published in the
Federal Register or issued in another manner that have not yet become effective
“for the purpose of reviewing any questions of fact, law, and policy the rules may
raise.”150
The memorandum directed agencies postponing rules for 60 days to consider instituting a 30-day
comment period during the 60-day postponement time frame “to allow interested parties to
provide comments about issues of fact, law, and policy raised by those rules,” and to “consider
pending petitions for reconsideration involving such rules.”151 It also instructed agencies to
“consider further delaying, or publishing for notice and comment proposed rules further delaying,
such rules beyond the 60-day period.”152 Agencies have implemented the memorandum on an
individual basis.153
Judicial Review of Rule Rescissions
As the foregoing discussion suggests, the APA establishes standards for judicial review of certain
types of agency actions, which may apply to challenges to agency rule rescissions. What, then,
must an agency show to justify its rescission of a rule under those standards? Section 706 of the
APA directs courts to “hold unlawful and set aside agency action, findings, and conclusions” that
are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”154
Courts apply the “arbitrary and capricious” standard of review when reviewing final agency
action that is not precluded from review.155 Judicial review of rules and rescissions may entail
consideration of both the substance of the agency’s action and the agency’s compliance with

149 The memorandum explained that it applied “not only to ‘rules’ as defined in [the APA], but also to” “any
substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to
the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking,
and notices of proposed rulemaking,” as well as to “any agency statement of general applicability and future effect that
sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”
Id. (emphasis omitted).
150 Id. The memorandum was subject to “exceptions [from OMB allowing] for emergency situations or other urgent
circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise,” and did
not apply to “any rules subject to statutory or judicial deadlines.” Id.
151 Id.
152 Id.
153 See, e.g., Implementation of Executive Order on Access to Affordable Life-Saving Medications, 86 Fed. Reg. 7059,
7059 (Jan. 26, 2021) (“In accordance with the memorandum of January 20, 2021, from the Assistant to the President
and Chief of Staff, . . . this action temporarily delays for 60 days from the date of the memorandum the effective date of
the final rule titled ‘Implementation of Executive Order on Access to Affordable Life-saving Medications,’ published
in the December 23, 2020, Federal Register.”) (emphasis omitted).
154 5 U.S.C. § 706(2)(A). For additional discussion of the arbitrary and capricious standard of review, see Cole, Judicial
Review, supra note 120.
155 5 U.S.C. § 706.
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statutory procedural requirements, including the procedures for notice-and-comment
rulemaking.156
The Supreme Court elaborated on the arbitrary and capricious standard of review in Motor
Vehicle Manufacturers Association v. State Farm Auto Mutual Insurance Co (State Farm).157 In
State Farm, the Court explained that an agency “must examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational connection between the facts found
and the choice made.’”158 A court will typically hold a rule to be arbitrary and capricious “if the
agency has relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”159 The court must base its decision on the
administrative record compiled by the agency and submitted for review; a reviewing court may
not “substitute its judgment for that of the agency,” or supply a basis for upholding agency action
that the agency itself did not provide.160
As discussed above, an agency’s rescission of a substantive rule is generally considered to require
a new substantive rulemaking, and the same APA standards for judicial review apply in both
contexts.161 In State Farm, the Supreme Court affirmed that agencies must supply a “reasoned
analysis” when changing course.162 Over the past four decades, the Court has clarified the
stringency of the standard of review for rule rescission relative to other agency actions.163
Although rules representing a change in administration policy generally are subject to the same
standard of review as other rules, an agency must set forth a “reasoned explanation” for its
change in policy. 164 The “reasoned explanation” requirement means that an agency must include
certain elements in its analysis in addition to the general requirements that apply to all agency
rules. First, the agency must explain its departure from its prior regulatory approach.165 Agencies

156 Id. § 553; FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (noting that the APA “sets forth the full
extent of judicial authority to review executive agency action for procedural correctness”).
157 463 U.S. 29 (1983).
158 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)).
159 Id.
160 Id. A reviewing court may, however, uphold a rule where the agency’s decision is “of less than ideal clarity if the
agency’s path may reasonably be discerned.” Id. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys. Inc.,
419 U.S. 281, 286 (1974).
161 5 U.S.C. § 706(2) (enumerating conditions under which courts shall set aside “agency action, findings, and
conclusions”); FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). See also Wyoming v. U.S. Dep’t of Agric.,
277 F. Supp. 1197, 1212 (D. Wyo. 2003) (applying arbitrary and capricious standard of review in considering U.S.
Forest Service rule regarding protection of roadless wilderness areas); California v. U.S. Dep’t of Agric., 459 F. Supp.
2d 874, 904 (N.D. Cal. 2006) (applying arbitrary and capricious standard to review of the earlier roadless rule).
162 State Farm, 463 U.S. at 57 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971)).
163 See id.; Fox, 556 U.S. at 514; Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016).
164 Fox, 556 U.S. at 514. In ruling that the standard of review when considering the substance of a rule rescission is no
more or less stringent, the Court rejected the Second and D.C. Circuits’ position that the APA and the Court’s
precedent required a more substantial justification when an agency changes its position. Id. (discussing Fox Television
Stations, Inc. v. FCC, 489 F.3d 444, 456-57 (2d Cir. 2007), and NAACP v. FCC, 682 F.2d 993, 998 (D.C Cir. 1982)).
See also Encino, 136 S. Ct. at 2127 (Ginsburg, J., concurring) (emphasizing that “where an agency has departed from a
prior position, there is no ‘heightened standard’ of arbitrary-and-capricious review”); California by and through
Becerra v. Azar, 950 F.3d 1067, 1096 (9th Cir. 2020) (noting that initial agency positions are “not instantly carved in
stone,” and changes in agency policy therefore are not subject to heightened review).
165 Encino, 136 S. Ct. at 2125 (“Agencies are free to change their existing policies as long as they provide a reasoned
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“may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the
books.”166 This explanation must come at the time the agency suspends or repeals a rule, not after
it has completed reconsideration or finalized a replacement for the rule.167
The requirement that an agency “show that there are good reasons for the new policy” does not,
however, mean it must “demonstrate to a court’s satisfaction that the reasons for the new policy
are better than the reasons for the old one.”168 Instead, as the Supreme Court explained in FCC v.
Fox Television Stations, Inc., an agency need only show “that the new policy is permissible under
the statute, that there are good reasons for it, and that the agency believes it to be better, which the
conscious change of course adequately indicates.”169 In many circumstances, an agency therefore
“need not . . . provide a more detailed justification than what would suffice for a new policy
created on a blank slate.”170
Where an agency is changing a prior rule, that prior rule constitutes an additional factor that the
agency must consider as part of its reasoned decisionmaking. In Fox Television Stations, the
Supreme Court identified two examples. First, an agency must provide a more detailed
justification when it issues a rule that “rests upon factual findings that contradict those which
underlay its prior policy.”171 An agency may not “simply disregard contrary or inconvenient
factual determinations that it made in the past, any more than it can ignore inconvenient facts
when it writes on a blank slate.”172 For instance, in California v. Bernhardt, the U.S. District
Court for the Northern District of California held that the Bureau of Land Management’s
(BLM’s) rescission of a rule governing waste prevention by oil and gas lessees was arbitrary and
capricious because the agency failed to address its prior factual findings.173 Specifically, the
agency ignored several independent oversight reviews that gave rise to the rule, and did not
explain why it disagreed with the conclusions or recommendations of those reviews.174
Second, the Supreme Court explained in Fox Television Stations that agencies must consider
“serious reliance interests” that are affected by a change in policy.175 This element of agency
decisionmaking has been of increasing interest to the Supreme Court in recent years. In Encino
Motorcars, LLC v. Navarro, the Court struck down a 2011 Department of Labor regulation that

explanation for the change.”) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 961, 981-
82 (2005); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863-64 (1984)).
166 Fox, 556 U.S. at 514.
167 State Farm, 463 U.S. at 52 (noting that a reasonable explanation should include “a justification of rescinding the
regulation before engaging in a search for further evidence”); Pub. Citizen v. Steed, 733 F.2d 93, 98 (D.C. Cir. 1984)
(holding that an agency’s suspension of a program while it further studied the program was arbitrary and capricious).
See also Bethany A. Davis Noll & Denise A. Grab, Deregulation: Process and Procedures that Govern Agency
Decisionmaking in an Era of Rollbacks, 38 ENERGY L.J. 269, 278-79 (2017).
168 Fox, 556 U.S. at 514.
169 Id. at 515.
170 Id.
171 Id.
172 Id. at 537 (Kennedy, J., concurring in part and concurring in the judgment).
173 California v. Bernhardt, 472 F. Supp. 3d 573, 600-01 (N.D. Cal. 2020).
174 Id. See also State Farm, 463 U.S. at 47-51 (invalidating the National Highway Traffic and Safety Administration’s
rescission of a rule requiring automobile manufacturers to install passive car safety restraints because the agency did
not address the benefits of airbags or the earlier finding that such restraints saved lives); Organized Village of Kake v.
USDA, 795 F.3d 956, 969 (9th Cir. 2015) (holding that U.S. Department of Agriculture’s rescission of land
management rule was arbitrary and capricious because the agency did not explain “why an action that it found posed a
prohibitive risk to the . . . environment only two years before now poses merely a ‘minor’ one”).
175 Fox, 556 U.S. at 515.
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would have had the effect of requiring automobile dealerships to pay overtime compensation to
certain covered employees.176 In a prior interpretation dating to 1978, the Department had taken
the position that those employees were not entitled to overtime compensation.177 The Court noted
that the Department “offered barely any explanation” for its change in position in the 2011
regulation, and concluded that the agency’s rationale was inadequate in light of the significant
reliance interests affected by the rule.178 Writing for the majority, Justice Kennedy paid
particularly close attention to the fact that dealerships had relied for decades on the Department’s
prior policy and would need to make major changes to their compensation agreements in order to
avoid “substantial” FLSA liability.179
The Supreme Court has continued to emphasize agencies’ need to consider reliance interests. In
Department of Homeland Security v. Regents of the University of California, the Court held in a
5-4 opinion that the Department of Homeland Security’s (DHS’s) rescission of the Deferred
Action for Childhood Arrivals (DACA) initiative violated the APA.180 The DACA program,
established eight years earlier by the Obama Administration, granted benefits to certain
unlawfully present individuals who arrived in the United States as children, including temporary
relief from removal and work authorization.181 One of the flaws the Supreme Court identified
with DHS’s rescission of the program was the agency’s failure to consider the ways in which
DACA recipients and those connected to them had come to rely on the program for their
educational, professional, and personal endeavors.182 Citing Fox Television and Encino
Motorcars, the Court held that it would be arbitrary and capricious for an agency to change
course and fail to take into account “serious reliance interests” a long-standing policy may have
engendered.183 While DHS had discretion to conclude that reliance on DACA was unjustified or
that other concerns outweighed any reliance interests, the Court held that the agency at a
minimum must “assess whether there were reliance interests, determine whether they were
significant, and weigh any such interests against competing policy concerns.”184
DHS created and then rescinded DACA through memoranda, not notice-and-comment
rulemaking. Some commentators have observed, however, that the majority opinion marks an
expanded focus on reliance interests in judicial review of agency action more generally.185 Under
Encino and DHS v. Regents, it is possible that reviewing courts will expect agencies to more
robustly address reliance interests when rescinding rules.
To the extent a rule rescission involves an interpretation of a governing statute that is inconsistent
with the agency’s prior approach, such an interpretation may still be entitled to deference under

176 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).
177 Id. at 2123.
178 Id. at 2126.
179 Id.
180 140 S. Ct. 1891 (2020). For additional discussion of DHS v. Regents of the University of California, see CRS Legal
Sidebar LSB10497, Supreme Court: DACA Rescission Violated the APA, by Ben Harrington.
181 See generally CRS Report R45158, An Overview of Discretionary Reprieves from Removal: Deferred Action,
DACA, TPS, and Others, by Ben Harrington, at 13-14.
182 Regents, 140 S. Ct. at 1913-14.
183 Id. at 1913
184 Id. at 1914-15.
185 William Yeatman, Taking a Hard Look at DHS v. Regents of the University of California, YALE JOURNAL ON
REGULATION NOTICE & COMMENT (June 25, 2020), https://www.yalejreg.com/nc/taking-a-hard-look-at-dhs-v-regents-
of-the-university-of-california-by-william-yeatman/.
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the two-step framework outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council.186
Under step one, courts consider “whether Congress has directly spoke to the precise question at
issue.”187 If so, “that is the end of the matter,” and a court must enforce the “unambiguously
expressed intent of Congress.”188 Where a statute is silent or ambiguous on an issue, the court
moves to step two and must defer to a reasonable agency interpretation even if the court would
have otherwise reached a different conclusion.189
Courts may accord “considerably less deference” to an agency interpretation that conflicts with a
previous interpretation of a statute it administers.190 A rescission that fails to satisfy the “reasoned
explanation” requirement is procedurally defective, and thus unlawful in and of itself, and
therefore is not entitled to Chevron deference.191 And although an agency’s interpretations of its
own regulations are governed by a different framework than Chevron, if a rescission of an agency
rule is premised on an agency reinterpreting a prior regulation to justify the rescission, those
changes must likewise include a “reasoned explanation,” and will rarely receive deference.192
Finally, after a rule has been challenged, an agency may sometimes be able to achieve an outcome
through litigation that would ordinarily require notice-and-comment rulemaking as described
above. Such examples, however, depend upon outside factors (such as litigation strategy and
court decisions that the agency itself does not fully control), and are therefore beyond the scope
of this report.193

186 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) (“Agency inconsistency is
not a basis for declining to analyze the agency’s interpretation under the Chevron framework. Unexplained
inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency
practice under the Administrative Procedure Act.”). The precise level of deference due to an agency relates to certain
characteristics of the agency’s action that are beyond the scope of this report. For further discussion of deference to
agency interpretations of statutes and regulations, see Cole, Judicial Review, supra note 120, at 12-18.
187 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
188 Id. at 842-43.
189 Id. at 843. Recent trends suggest that the Supreme Court could narrow Chevron’s scope. For additional discussion,
see CRS Legal Sidebar LSB10204, Deference and its Discontents: Will the Supreme Court Overrule Chevron?, by
Valerie C. Brannon and Jared P. Cole.
190 Good Samaritan Hospital v. Shalala, 508 U.S. 402, 417 (1993).
191 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016).
192 Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (discussing the framework for deference to agencies’ interpretation of
their regulations as set forth in Auer v. Robbins, 519 U.S. 452 (1997)).
193 Agencies occasionally confess error and decline to defend a rule in pending litigation, particularly where it is the
prior administration’s rule that is subject to litigation. Such an action is separate from, and may proceed parallel to the
rule rescission process, which can result in a complicated tangle of agency actions. This process is evident in the
progress of two related rules issued by BLM to address methane emissions from oil and gas operations on public lands.
In 2016, BLM issued the Waste Prevention Rule to achieve reductions in waste from oil and gas flaring, venting, and
equipment leaks. Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 6,616
(Feb. 8, 2016). After the rule was challenged in the U.S. District Court for the District of Wyoming, the Trump
Administration postponed compliance dates for certain provisions of the rule pursuant to 5 U.S.C. § 705. Waste
Prevention, Production Subject to Royalties, and Resource Conservation; Postponement of Certain Compliance Dates,
82 Fed. Reg. 27,430 (June 15, 2017). The U.S. District Court for the Northern District of California then overturned the
postponement. California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106 (N.D. Cal. 2017). BLM subsequently
issued a rule suspending certain requirements of the 2016 rule, Waste Prevention, Production Subject to Royalties, and
Resource Conservation; Delay and Suspension of Certain Requirements, 82 Fed. Reg. 58,050 (Dec. 8, 2017), which the
court also enjoined. California v. U.S. Bureau of Land Mgmt., 286 F. Supp. 3d 1054 (N.D. Cal. 2018). Next, BLM
issued a final rule rescinding and modifying portions of the 2016 rule. Waste Prevention, Production Subject to
Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements, 83 Fed. Reg. 49,184 (Sept. 28,
2018). On July 15, 2020, the Northern District of California vacated the 2018 rule. California v. Bernhardt, 2020 WL
4001480 (N.D. Cal. Jul. 15, 2020). In a brief filed in August 2020, the government confessed error in the Wyoming
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In sum, the rescission of agency rules that are governed by the APA is generally subject to the
same “arbitrary and capricious” standard of judicial review as the promulgation of such rules.
This means that an agency must provide a reasoned analysis when changing course. While this
standard is no more stringent than for other agency regulations that do not mark a change in
administrative policy, a “reasoned analysis” for an agency’s change in position generally must
explain the departure from the prior regulatory approach, show that there are good reasons for the
new policy (but not necessarily that the new policy is better than the old one), address
contradictory factual findings, and consider reliance interests that are affected by the rule.
Considerations for Congress
Congress has a number of options for altering the manner by which agencies or a particular
agency may rescind or amend rules, or for rescinding or amending particular rules itself. For
example, Congress can overturn or alter a particular rule through exercise of its legislative
power.194 Administrative agencies are creatures of statute and exercise only such authority as has
been delegated to them by Congress.195 Thus, an agency may not issue a legislative rule unless it
does so pursuant to a relevant statutory grant of authority.196 And just as Congress may, by statute,
authorize or require an agency to issue rules, it also may rescind or alter an agency’s rules
through the normal legislative process.197 For example, in 2017, Congress passed and President
Trump signed into law a bill rescinding the Metropolitan Planning Organization Coordination and
Planning Area Reform rule,198 which had been promulgated by the Federal Highway
Administration and Federal Transit Administration in December 2016.199 The statute stated that

litigation. Federal Respondents’ Supplemental Merits Response Brief, Wyoming v. U.S. Dep’t of the Interior, No. 16-
cv-00285, ECF No. 278 (D. Wyo. Aug. 18, 2020). The District of Wyoming vacated all but two severable provisions of
the 2016 rule on October 8, 2020. Order on Petitions for Review of Final Agency Action, Wyoming v. U.S. Dep’t of
the Interior, No. 16-cv-00285, ECF No. 284 (D. Wyo. Aug. 18, 2020). For further discussion of agencies’ changes in
litigation posture, see William W. Buzbee, Deregulatory Splintering, 94 CHI.-KENT L.R. 439, 452-54 (2019).
194 See U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.”). Congress may also by statute prohibit an agency from
amending or repealing a regulation.
195 See Int’l Union of Elec., Radio & Mach. Workers, AFL-CIO v. NLRB, 502 F.2d 349, 353 n.* (D.C Cir. 1974) (“An
administrative agency . . . is a creature of the statute that brought it into existence . . . [and] has no powers except those
specifically conferred upon it by statute.”); accord Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) (per
curiam) (“[I]t is axiomatic that administrative agencies may act only pursuant to authority delegated to them by
Congress.”) (internal quotation marks and citation omitted).
196 See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative agency’s
power to promulgate legislative regulations is limited to the authority delegated by Congress.”). It follows that
Congress can by statute prohibit or limit an agency’s existing ability to issue rules by removing or amending the
relevant grant of statutory authority.
197 See CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd
Garvey and Daniel J. Sheffner, at 9. Further, amendments to the statute granting an agency rulemaking authority could
require the agency to amend or repeal a rule issued under such authority. See Carey, supra note 143, at 10; see, e.g.,
Repeal of Regulations Concerning the Rural Telephone Bank, the Public Television Station Digital Transition Grant
Program, and the Local Television Loan Guarantee Program, 84 Fed. Reg. 59,919 (Nov. 7, 2019) (adjusting the Code
of Federal Regulations and modifying rules to remove references to several Rural Utilities Service programs that
Congress repealed in the 2018 Agricultural Improvement Act).
198 81 Fed. Reg. 93,448 (Dec. 20, 2016).
199 Pub. L. No. 115-33, 131 Stat. 845 (May 12, 2017).
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the rule “shall have no force or effect,” and further provided that “any regulation revised by that
rule shall be applied as if that rule had not been issued.”200
Congress also, via application of its legislative power, may use the expedited procedures provided
by the Congressional Review Act (CRA) to overturn an agency’s rule.201 Under the CRA, an
agency must submit a covered rule to Congress before the rule may go into effect and, once
submitted, Congress can use special, fast-track procedures to consider a joint resolution of
disapproval of the rule.202 If a joint resolution is enacted either by presidential signature or
congressional override of a presidential veto, the relevant rule “shall not take effect (or
continue).”203 An agency is prohibited from reissuing a rejected rule “in substantially the same
form” or from issuing “a new rule that is substantially the same,” unless the “rule is specifically
authorized” under a subsequently enacted law.204 The CRA’s definition of what constitutes a
covered “rule” under the act is broader than the category of rules that generally must undergo the
APA’s notice-and-comment procedures.205
Congress by statute often imposes procedural requirements on agency rulemakings in addition to
or in place of the APA’s rulemaking procedures.206 Along with establishing new or additional
procedures with which agencies must comply when issuing certain rules, such requirements may
also explicitly specify the procedures to which agencies must adhere when amending or repealing
such rules. For example, the Consumer Product Safety Act207 specifically provides that the
Consumer Product Safety Commission may only revoke a “consumer product safety rule”208 by,
inter alia, “publish[ing] a proposal to revoke [the] rule in the Federal Register, and allow[ing] oral
and written presentations.”209 And revocation is only permitted if the Commission “determines
that the rule is not reasonably necessary to eliminate or reduce an unreasonable risk of injury
associated with the product.”210 Congress also can amend the rulemaking provisions of the APA if
it seeks to alter the default manner by which most agencies amend and repeal rules.211

200 Id.
201 For information on the CRA, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked
Questions, by Maeve P. Carey and Christopher M. Davis; CRS Report R45248, The Congressional Review Act:
Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and Maeve P. Carey [hereinafter
Brannon & Carey, “Rules”]; CRS In Focus IF10023, The Congressional Review Act (CRA), by Maeve P. Carey and
Christopher M. Davis; CRS In Focus IF11096, The Congressional Review Act: Defining a “Rule” and Overturning a
Rule an Agency Did Not Submit to Congress, by Maeve P. Carey and Valerie C. Brannon.
202 See 5 U.S.C. §§ 801(a)–(b), 802; see supra note 91.
203 5 U.S.C. § 801(b)(2).
204 Id.
205 See Brannon & Carey, “Rules,” supra note 201, at 11-12. The CRA adopts the definition of “rule” from the APA,
subject to three exceptions. 5 U.S.C. § 804(3). As discussed above, the APA’s definition of “rule” embraces not only
rules with the force of law that must go through notice and comment, but also procedural rules, interpretive rules, and
general policy statements, which are not required to undergo such procedures. Id. §§ 551(4), 553(b)(A); see supra
“Exceptions to Notice-and-Comment Procedures.” Thus, in addition to legislative rules, many procedural rules and
agency statements often referred to as guidance documents may also potentially be governed by the CRA, subject to the
act’s exceptions. See id. at § 804(3)(A)-(C); Brannon & Carey, “Rules,” supra note 201, at 11-12.
206 See supra text accompanying notes 48-49.
207 15 U.S.C. §§ 2051 et seq.
208 See id. § 2052(a)(6) (defining “[c]onsumer product safety rules”).
209 Id. § 2058(h).
210 Id.
211 Cf. Am. Inst. of Certified Pub. Accountants v. IRS, 746 F. App’x 1, 18 (D.C. Cir. 2018) (explaining that “the APA’s
rule making procedures apply by default”).
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Congress has near plenary authority over the provision of funds to federal agencies.212 In addition
to allocating money for agency operations and activities, Congress also is authorized, as the
Supreme Court has recognized, to “circumscribe agency discretion to allocate resources by
putting restrictions in the operative statutes.”213 Thus Congress may, pursuant to its power of the
purse, prohibit an agency from using funds to develop, finalize, or implement rules.214 For
example, Congress has prohibited the Occupational Safety and Health Administration from using
appropriated funds “to prescribe, issue, administer, or enforce any standard, rule, regulation, or
order under the [Occupational Safety and Health] Act which is applicable to any person who is
engaged in a farming operation which does not maintain a temporary labor camp and employs 10
or fewer employees.”215

Author Information

Kate R. Bowers
Daniel J. Sheffner
Legislative Attorney
Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
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copy or otherwise use copyrighted material.

212 See generally CRS Report R46417, Congress’s Power Over Appropriations: Constitutional and Statutory
Provisions, by Sean M. Stiff.
213 Lincoln v. Vigil, 508 U.S. 182, 193 (1993); cf. U.S. CONST. art. I, § 9, cl. 7 (“No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law.”).
214 See Carey, supra note 143, at 12-13.
215 See Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, div. A, tit. I, 133 Stat. 2534, 2546 (Dec. 20,
2019). For more information on Congress’s funding authority over the executive branch, see Garvey & Sheffner, supra
note 197, at 13–14.
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