“Agency Rescissions of Legislative Rules,” CRS Report R46673

Federal administrative agencies carry out their statutorily prescribed responsibilities in many ways. Perhaps most significantly, agencies may, pursuant to congressionally delegated authority, promulgate rules with the force of law, commonly known as “regulations,” “substantive rules,” or “legislative rules.”

The Administrative Procedure Act (APA) establishes the procedural framework with which 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-andcomment” 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 (noninterim) 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.

Agency Rescissions of Legislative Rules,” CRS Report R46673, February 8, 2021 (33-page PDFPDF)

See alsoFederal Register / Rulemaking / Unified Agenda (CongressionalGlossary.com)