Midnight Rulemaking: Considerations for Congress and a New Administration
Prepared for Members and Committees of Congress
At the end of every recent presidential administration involving a change in the party controlling
the White House, the level of rulemaking activity by federal agencies tends to increase. On May
9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of
executive departments and agencies stating that “regulations to be finalized in this Administration
should be proposed no later than June 1, 2008, and final regulations should be issued no later than
November 1, 2008.” Despite this directive, federal agencies appear to be issuing an increasing
number of “midnight rules” at the end of the Bush Administration, including a number of rules
One approach that previous Presidents have used to control rulemaking at the start of their
administrations has been the imposition of a moratorium on new regulations by executive
departments and independent agencies, accompanied by a requirement that the departments and
agencies postpone the effective dates of certain rules. However, for final rules that have already
been published in the Federal Register, the only way for the departments or agencies to eliminate
or change the rules is by going back through the rulemaking process. Although the Administrative
Procedure Act (5 U.S.C. § 551 et seq.) permits agencies to shorten the rulemaking process for
“good cause,” an agency’s use of this exception is subject to judicial review.
The Congressional Review Act (CRA, 5 U.S.C. §§ 801-808) permits the use of expedited
procedures, primarily in the Senate, to disapprove agencies’ final rules. The CRA requires that
agencies submit all final rules to Congress before they take effect. If Congress adjourns its annual
session sine die less than 60 “legislative days” in the House of Representatives or 60 “session
days” in the Senate after a rule is submitted to it, then the rule is carried over to the next session
of Congress and subject to possible disapproval during that session.
Although only one rule has been disapproved using CRA procedures since the legislation was
enacted in 1996, Congress has frequently added provisions to agency appropriations bills to
prohibit the finalization of particular proposed rules, prohibit the development of particular
regulations, restrict the implementation or enforcement of certain rules, and put conditions on the
development or implementation of particular rules. Unlike CRA disapprovals, however, these
provisions do not eliminate the regulations from the Code of Federal Regulations, and do not
prevent the agency from issuing the same or similar regulation.
Legislation introduced late in the 110th Congress (H.R. 7296) would generally prevent any
“midnight rule” (i.e., a rule published in the last 90 days that a President serves in office) from
taking effect for 90 days after an agency head is appointed by a new President, and would allow a
new agency head to disapprove a midnight rule within 90 days after being appointed.
This report will be updated when additional information becomes available.
Midnight Rules at the End of the Bush Administration...................................................................1
Final Rules Submitted...............................................................................................................2
Rules Under OIRA Review.......................................................................................................2
Rules Attracting Controversy....................................................................................................3
Options for a New Administration..................................................................................................5
Regulatory Moratoriums and Postponements...........................................................................5
Effects of the Card Memorandum.......................................................................................6
The Bolten Memorandum...................................................................................................7
New Rulemaking to Eliminate or Change Rules......................................................................8
Possible Congressional Approaches................................................................................................9
Congressional Review Act........................................................................................................9
CRA “Carryover” Provisions.............................................................................................11 th
The Second Session of the 110 Congress........................................................................11
A Legislative Proposal...................................................................................................................14
Author Contact Information..........................................................................................................14
s various authors have documented, at the end of every recent presidential administration
involving a change in the party controlling the White House, the level of rulemaking
activity by federal agencies tends to increase—a phenomenon often referred to as 1A
“midnight rulemaking.” For example, Jay Cochran of the Mercatus Center at George Mason
University reported that, between 1948 and 2001, when the party in control of the White House
changed, the number of pages printed in the Federal Register increased an average of 17% during
the final three months of an outgoing administration when compared to the number of pages 2
during the same period in non-election years. Susan Dudley, the current administrator of the
Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget
(OMB), wrote in 2001 (while a senior research fellow at the Mercatus Center) that the sharp
increase in regulatory output at the end of the Clinton Administration was “not an anomaly,” and
that “sudden bursts of regulatory activity at the end of a presidential administration are 3
systematic, significant, and cut across party lines.”
One explanation for the issuance of “midnight rules” is the desire of the outgoing administration
to complete its work and achieve certain policy goals before the end of its term of office—what
Cochran termed the “Cinderella effect.” However, issuing midnight rules can also help ensure a
legacy for a President. As another observer said, putting agency rules into effect before the end of 4
a presidency is “a way for an administration to have life after death.”
Recognizing the tendency for midnight rulemaking at the end of a presidency, on May 9, 2008,
White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive
departments and agencies stating that, except for “extraordinary circumstances, regulations to be
finalized in this Administration should be proposed no later than June 1, 2008, and final 5
regulations should be issued no later than November 1, 2008.” He also said the administrator of
OIRA would “coordinate an effort to complete Administration priorities in this final year,” and
that the OIRA administrator would “report on a regular basis regarding agency compliance with 6
this memorandum.” (As of the date of this report, however, the OIRA administrator had not
produced any such reports.)
1 See Jerry Brito and Veronique de Rugy, “Midnight Regulations and Regulatory Review,” Working Paper No. 08-34,
Mercatus Center, George Mason University, available at http://www.mercatus.org/uploadedFiles/Mercatus/
Publications/Midnight%20Regulations.pdf for a recent example of this research.
2 Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters
(Arlington, VA: Mercatus Center, 2001), available at http://www.mercatus.org/PublicationDetails.aspx?id=17546.
3 Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, Spring 2001, p. 9.
4 John M. Broder, “A Legacy Bush Can Control,” New York Times, September 9, 2007, p. A1, quoting Phillip Clapp,
president of the National Environmental Trust.
5 See http://www.whitehouse.gov/omb/inforeg/cos_memo_5_9_08.pdf for a copy of this memorandum. The
memorandum said that agencies needed to “resist the historical tendency of administrations to increase regulatory
activity in their final months.”
6 Under Executive Order 12866, OIRA reviews all significant rules before they are published in the Federal Register,
and is the President’s chief representative in the rulemaking process. See CRS Report RL32397, Federal Rulemaking:
The Role of the Office of Information and Regulatory Affairs, by Curtis W. Copeland.
Despite this initiative, federal agencies appear to be issuing an increasing number of rules at the
end of the Bush Administration. One indication is the number of final rules being sent to the
Government Accountability Office (GAO) pursuant to requirements in the Congressional Review 7
Act (CRA, 5 U.S.C. §§ 801-808). According to data obtained from GAO, from January through
May 2008, GAO received an average of 232 rules per month from federal agencies. However,
from June through October 2008, GAO received an average of 310 rules per month—a 33.6%
increase. The rate of rule submissions from June through October 2008 is also higher when
compared to the same June-through-October period in 2007 (241 rules per month in 2007
compared with 310 rules per month in 2008—a 28.6% increase).
The CRA also requires GAO to provide Congress with a report on each “major” rule (e.g., rules
with at least a $100 million impact on the economy) within 15 calendar days of the rule being 8
sent to GAO and Congress. During the first five months of 2008, federal agencies sent a total of
21 major rules to GAO. However, in the second five months of 2008 (June through October), the
agencies sent GAO 46 major rules (including 18 in the month of October alone)—a 119%
increase. The number of major rules in the second five months of 2008 is also higher than the
number in the second five months of 2007 (46 major rules during this period in 2008 compared
with 28 major rules in 2007—a 64% increase).
Another indication of increased rulemaking activity in the final months of the Bush
Administration is the number of rules being reviewed by OIRA before being published in the
Federal Register. Although the OIRA data do not include rules issued by independent boards and
commissions (e.g., the Securities and Exchange Commission, or the Federal Communications
Commission), the data do include all cabinet departments and independent agencies like the
Environmental Protection Agency (EPA) and the Social Security Administration. Also, the data
include only rules considered “significant” under Executive Order 12866—rules that are the most 9
likely to be controversial.
In September, October, and November 2008, OIRA reviewed a total of 222 significant rules,
including 150 final rules. The monthly average number of rules reviewed in those months (74)
was 45% higher than the average for the preceding eight months of 2008 (51). More tellingly, the
monthly average number of final rules that OIRA reviewed in September, October, and November
2008 (50) was more than three times the average of the previous eight months (16). Also, the
7 The Congressional Review Act (in 5 U.S.C. § 801(a)(1)(A)) requires all final rules to be sent to each house of
Congress and GAO before they can take effect. This requirement applies to all federal agencies, including independent
boards and commissions such as the Securities and Exchange Commission and the Federal Communications
8 5 U.S.C. § 801(a)(2)(A).
9 Section 3(f) of Executive Order 12866 defines a rule as “significant” if it would “(1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or
communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another
agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s
priorities, or the principles set forth in this Executive order.”
number of rules that OIRA reviewed in September, October, and November 2008 was nearly 82%
higher than the same three months in 2007 ( 222 versus 122), and the number of final rules was
nearly 146% higher (150 versus 61).
On the other hand, there is also evidence that the pace of OIRA’s work is declining. As of October
31, 2008, there were 136 rules under review at OIRA, including 84 final rules. The agencies with
the most rules under review at OIRA at that time were
• EPA (21 rules, including 7 final rules);
• the Department of Health and Human Services (HHS, 18 rules, including 13 final
• the Department of Justice (DOJ, 11 rules, including 8 final rules);
• the Department of Veterans Affairs (DVA, 11 rules, including 8 final rules);
• the Department of Transportation (DOT, 11 rules, including 7 final rules); and
• the Department of Homeland Security (DHS, 10 rules, including 8 final rules).
As of December 12, 2008, however, there were only 79 rules under review at OIRA, including 44
final rules. Certain agencies evidenced a marked decline in the number of rules under review. For
example, the number of DVA rules under OIRA review went from 11 to zero; EPA went from 21
rules under review (including 7 final rules) to 11 rules under review (and no final rules).
Several Members of Congress and others have expressed concerns about many proposed and final
rules that have been published or that are still under review, and some have called for the next 10
President or Congress to stop certain rules from taking effect. Rules that have been identified as
problematic include the following:
• a Department of the Interior (DOI) final rule that, in the words of the rule,
requires that surface coal mining operations be designed to “minimize the
creation of excess spoil and the adverse environmental impacts of fills
constructed to dispose of excess spoil and coal mine waste,” but that some
observers have said would allow deposits of waste mountaintop material within 11
10 For example, the chairman of the House Select Committee on Energy Independence and Global Warming released a
report on October 31, 2008, listing a number of rules that the majority staff considered problematic. To view a copy of
this report, see http://globalwarming.house.gov/mediacenter/pressreleases_2008?id=0056. The same day, the Speaker
of the House issued a list of “ghoulish midnight regulations” being issued by the Bush Administration. To view a copy
of this list, see http://www.speaker.gov/blog/?p=1567. On November 3, 2008, OMB Watch published a list of
“controversial rules worth watching.” To view this list, see http://www.ombwatch.org/article/blogs/entry/5494. For a
recent article on this issue, see Cindy Skrzycki, “Democrats Eye Bush Midnight Regulations,” Washington Post,
November 11, 2008, p. D3.
11 For the final rule, see U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement,
“Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams,” 73 Federal Register 75814,
December 12, 2008. For characterizations of the rule, see John M. Broder, “Rule to Expand Mountaintop Coal
Mining,” New York Times, August 23, 2007, p. A1.
• a DOI final rule that would, among other things, give federal agencies greater
responsibility in determining when and how their actions may affect species 12
under the Endangered Species Act. Several Members of Congress have 13
expressed concerns about the draft rule.
• a DOJ proposed rule that would “clarify and update” the policies governing
criminal intelligence systems that receive federal funding, but that some contend
would make it easier for state and local police to collect, share, and retain
sensitive information about Americans, even when no underlying crime is 14
• a DOJ proposed rule that would “adopt enforceable accessibility standards under
the Americans with Disabilities Act of 1990 (ADA),” but that critics contend 15
would weaken those standards and reduce enforcement efforts.
• an EPA revision of the definition of “solid waste” that would exclude certain
types of sludge and byproducts (referred to in the proposed rule as “hazardous
secondary waste”) from regulation under the Resource Conservation and 16
• a National Park Service final rule that would permit state laws to determine 17
whether concealed firearms could be carried in national parks.
• an amendment to the Federal Acquisition Regulation to require certain
contractors and subcontractors to use the E-Verify system to confirm that certain
of their employees are eligible to work in the United States, but which the U.S.
Chamber of Commerce and others said contravenes the intent of Congress and 18
raises numerous practical difficulties.
12 Although DOI announced the promulgation of this final rule on December 11, 2008, as of December 12, 2008, the
rule had not been published in the Federal Register. See http://www.doi.gov/initiatives/ESA_Section7FR.pdf for a
copy of the final rule. For the proposed rule, see U.S. Department of the Interior, Fish and Wildlife Service, and U.S.
Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service,
“Interagency Cooperation Under the Endangered Species Act,” 73 Federal Register 47868, August 15, 2008. See also
Juliet Eilperin, “Endangered Species Act Changes Give Agencies More Say,” Washington Post, August 12, 2008, p.
A1, for characterizations of the rule.
13 For more detailed information about this rule, see CRS Report RL34641, Proposed Changes to Regulations
Governing Consultation Under the Endangered Species Act (ESA), by Kristina Alexander and M. Lynne Corn.
14 For the proposed rule, see U.S. Department of Justice, Office of Justice Programs, “Criminal Intelligence Systems
Operating Procedures,” 73 Federal Register 44673, July 31, 2008. For a characterization of the rule, see Spencer S.
Hsu and Carrie Johnson, “U.S. May Ease Police Spy Rules,” Washington Post, August 16, 2008, p. A1. As of
December 12, 2008, the final version of this rule was not under review at OIRA.
15 For the proposed rule, see U.S. Department of Justice, Civil Rights Division, “Nondiscrimination on the Basis of
Disability by Public Accommodations and in Commercial Facilities,” 73 Federal Register 34508, June 17, 2008. For a
characterization of the rule, see “Ghoulish Midnight Regulations,” available at http://www.speaker.gov/blog/?p=1567.
The final version of this rule was submitted to OIRA for review on December 3, 2008.
16 For the final rule, see U.S. Environmental Protection Agency, “Revisions to the Definition of Solid Waste,” 73
Federal Register 64668, October 30, 2008. For more information on this rule and the perspectives of various parties,
see Charlotte E. Tucker, “EPA Completing Last Steps for Regulation to Redefine Waste to Encourage Recycling,”
BNA Daily Report for Executives, July 17, 2008, p. C-1.
17 For the final rule, see U.S. Department of the Interior, National Park Service, “General Regulations for Areas
Administered by the National Park Service and the Fish and Wildlife Service,” 73 Federal Register 74966, December
18 For the final rule, see U.S. Department of Defense, General Services Administration, and National Aeronautics and
• a Department of Labor proposed rule that would change the way that
occupational health risk assessments are conducted within the department. th
Legislation has been introduced in the 110 Congress (H.R. 6660 and S. 3566) 19
that would prohibit the issuance or enforcement of this rule.
As discussed in detail in the remainder of this report, various options are available to both a new
President and Congress to delay or prevent the implementation of regulations viewed as
problematic, or to eliminate them entirely.
One approach that previous Presidents have used to control rulemaking at the start of their
administrations has been the imposition of a moratorium on new regulations by executive
departments and independent agencies, accompanied by a requirement that the departments and 20
agencies postpone the effective dates of certain rules. However, for rules that have already been
published in the Federal Register, the only way for the departments or agencies to eliminate or
change the rules is by going back through the rulemaking process.
On January 29, 1981, shortly after taking office, President Reagan issued a memorandum to the
heads of the Cabinet departments and the EPA Administrator directing them to take certain
actions that would give the new administration time to implement a “new regulatory oversight 21
process,” particularly for “last-minute decisions” made by the previous administration.
Specifically, the memorandum said that agencies must, to the extent permitted by law, (1) publish
a notice in the Federal Register postponing for 60 days the effective date of all final rules that
were scheduled to take effect during the next 60 days, and (2) refrain from promulgating any new
final rules. Executive Order 12291, issued a few weeks later, contained another moratorium on
Space Administration, “Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification,” 73
Federal Register 67651, November 14, 2008. See http://www.uschamber.com/assets/labor/080811_fed_Ks.pdf for the
views of the U.S. Chamber of Commerce. The day after the proposed rule was published, the Department of Homeland
Security announced it was requiring its contractors to use the E-verify program. U.S. Department of Homeland
Security, Office of the Secretary, “Designation of the Electronic Employment Eligibility Verification System Under
Executive Order 12989, as Amended by the Executive Order Entitled ‘Amending Executive Order 12989, as Amended’
of June 6, 2008,” 73 Federal Register 33837, June 13, 2008.
19 For the proposed rule, see U.S. Department of Labor, Office of the Secretary, “Requirements for DOL Agencies’
Assessment of Occupational Health Risks,” 73 Federal Register 50909, August 29, 2008. For characterizations of the
rule, see Carol D. Leonnig, “U.S. Rushes to Change Workplace Toxin Rules,” Washington Post, July 23, 2008, p. A1;
and Gayle Cinquegrani, “Miller Introduces House Bill to Prohibit DOL ‘Secret Rule’ on Workplace Toxin Exposure,”
BNA Daily Report for Executives, August 1, 2008, p. A-7. On August 18, 2008, a Washington Post editorial
recommended that the Department of Labor withdraw its proposed rule (“A Toxic Proposal: The Labor Department
Politicizes a Regulation of Workplace Health,” Washington Post, August 18, 2008, p. A10). As of December 12, 2008,
the final version of this rule had not been submitted to OIRA for review.
20 All of these presidential moratoriums on rulemaking have generally exempted regulations issued by independent
regulatory boards and commissions, as well as regulations issued in response to emergency situations or statutory or
21 See http://www.presidency.ucsb.edu/ws/index.php?pid=44134 for a copy of this memorandum.
rulemaking that supplemented, but did not supplant, the January 29, 1981, memorandum.22
Section 7 of the executive order directed agencies to “suspend or postpone the effective dates of
all ‘major’ rules that they have promulgated in final form as of the date of this Order, but that 23
have not yet become effective.” Excluded were major rules that could not be legally postponed
or suspended, and those that ought to become effective “for good cause.” Agencies were also
directed to prepare a regulatory impact analysis for each major rule suspended or postponed, and
to refrain from promulgating any new final rules until a final regulatory impact analysis had been
On January 22, 1993, Leon E. Panetta, the Director of OMB for the incoming Clinton
Administration, sent a memorandum to the heads and acting heads of Cabinet departments and
independent agencies requesting them to (1) not send proposed or final rules to the Office of the
Federal Register for publication until they had been approved by an agency head appointed by
President Clinton and confirmed by the Senate, and (2) withdraw from the Office of the Federal
Register all regulations that had not been published in the Federal Register and that could be 24
withdrawn under existing procedures. The requirements did not apply, however, to any rules
that had to be issued immediately because of a statutory or judicial deadline. The OMB Director
said these actions were needed because it was “important that President Clinton’s appointees have
an opportunity to review and approve new regulations.” In contrast to the Reagan memorandum
and Executive Order 12291, the Panetta memorandum did not instruct agencies to postpone the
effective dates of any rules.
Most recently, on January 20, 2001, Andrew H. Card, Jr., assistant to President George W. Bush
and chief of staff, sent a memorandum to the heads and acting heads of all executive departments
and agencies generally directing them to (1) not send proposed or final rules to the Office of the
Federal Register, (2) withdraw from the Office rules that had not yet been published in the
Federal Register, and (3) postpone for 60 days the effective dates of rules that had been published 25
but had not yet taken effect. The Card memorandum instructed agencies to exclude any rules
promulgated pursuant to statutory or judicial deadlines, and to notify the OMB Director of any
rules that should be excluded because they “impact critical health and safety functions of the
agency.” The memorandum indicated that these actions were needed to “ensure that the
President’s appointees have the opportunity to review any new or pending regulations.”
In February 2002, GAO reported on the delay of effective dates of final rules subject to the Card 26
memorandum. GAO indicated that 371 final rules were subject to this aspect of the Card
memorandum, and federal agencies delayed the effective dates of at least 90 of them. As of the
one-year anniversary of the Card memorandum, most of the 90 rules had taken effect, but one had
been withdrawn and not replaced by a new rule, three had been withdrawn and replaced by new
22 Executive Order 12291, “Federal Regulation,” 46 Federal Register 13193, February 17, 1981.
23 The CRA used the same definition of a “major” rule as was used in Executive Order 12291 (e.g., a $100 million
impact on the economy).
24 See http://www.prop1.org/rainbow/adminrec/930122lp.htm for a copy of this memorandum.
25 U.S. White House Office, “Regulatory Review Plan,” Federal Register, vol. 66, no. 16, January 24, 2001, p. 7702.
To view a copy of this memorandum, see http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf.
26 General Accounting Office, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the
Administration’s Jan. 20, 2001, Memorandum, GAO-02-370R, February 15, 2002.
rules, and nine others had been altered (e.g., different implementation date or reporting
requirement). While some agencies allowed the public to comment on the extensions of the
effective dates, most agencies simply published final rules citing the Administrative Procedure 27
Act’s “good cause” or “procedural rule” exceptions to notice and comment rulemaking. One
author noted that such practices “tended to evade judicial challenge due to their short time frames, 28
but they did occasion criticism.”
Viewed in this context, the May 2008 memorandum by White House Chief of Staff Bolten
represents both a continuation of a trend of presidential involvement in rulemaking and an
evolution in that involvement. Because the Congressional Review Act prohibits “major” rules
from taking effect for 60 days after they are promulgated, one effect of the Bolten memorandum’s
requirement that final rules be published in the Federal Register by November 1, 2008, would be th
to ensure that these rules will have taken effect before the 111 Congress begins in early January,
and before the new President takes office on January 20, 2009. As a result, the new President
would be unable to do what was done via the Card memorandum—direct federal agencies to
extend the effective dates of any rules that had been published during the final days of the Bush
Administration, but had not taken effect—since the rules would have already taken effect by the
time the next President takes office.
However, the OIRA data discussed previously indicate that at least some major rules could be
published late enough that they may not take effect before January 20, 2009, thereby presenting 29
an opportunity for their effective dates to be extended by the next administration. One 30
publication has recommended that President-elect Obama do so. Other rules published after
November 2008 could become final before the new President takes office if they are not major
rules, or if the issuing agency makes the rules effective in less than 30 days for “good cause.”
27 As discussed later in this report, the Administrative Procedure Act allows an agency to avoid notice and comment
procedures for rules of agency organization, procedure, or practice when an agency finds, for “good cause,” that those
procedures are “impracticable, unnecessary, or contrary to the public interest.”
28 Jeffrey S. Lubbers, ed., A Guide to Federal Agency Rulemaking, Fourth Edition (Chicago: ABA Publishing, 2006),
pp. 121-122. For a discussion of these criticisms, see William M. Jack, “Taking Care That Presidential Oversight of the
Regulatory Process is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush
Administration’s Card Memorandum,” Administrative Law Review, vol. 54 (Fall 2002), pp. 1479-1518. Some federal
courts have considered any delay in a rule’s effective date to require notice and comment rulemaking. See Natural
Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v.
Donovan, 653 F.2d 573 (D.C. Cir. 1981). One such action pursuant to the Card memorandum was rejected by a court.
See Natural Resources Defense Council v. Abraham, 355 F.3d 179, 204-05 (2d Cir. 2004).
29 See also Ralph Lindeman, “Agencies Continue to Propose New Rules After White-House Imposed June Deadline,”
BNA Daily Report for Executives, August 11, 2008, p. A-9.
30 OMB Watch, Advancing the Public Interest Through Regulatory Reform; Recommendations for President-Elect
Obama and the 111th Congress, November 2008. The report was actually the product of a steering committee
composed of 17 regulatory experts that was assembled by OMB Watch. Specifically, the report recommended the
following: “Place a moratorium on finalizing new regulations, and review those rules finalized but not yet in effect,
except those required by statutory deadlines, court order, or necessary to meet regulatory emergencies, for 60 days
pending agency review and reconsideration.”
If an agency has published a proposed rule, but has not published a final rule, the agency is under
no obligation to issue a final rule unless required to do so by statute or court order. To preclude
further action on a rule, the agency may wish to publish a notice in the Federal Register 31
announcing its withdrawal of the rule.
Once a final rule has been published in the Federal Register, the only way for an agency to 32
change or undo the rule is by going back through the federal rulemaking process. Under
informal rulemaking procedures established by the Administrative Procedure Act (APA, 5 U.S.C.
§ 551 et seq.), agencies are generally required to publish a notice of proposed rulemaking
(NPRM) in the Federal Register, allow “interested persons” an opportunity to comment on the
proposed rule, and, after considering those comments, publish the final rule along with a general
statement of its basis and purpose. The APA does not specify how long rules must be available for
comment, but agencies commonly allow at least 30 days. The APA generally says that the final
rule cannot become effective until at least 30 days after its publication.
However, the APA (5 U.S.C. § 553) states that full “notice and comment” procedures are not
required when an agency finds, for “good cause,” that those procedures are “impracticable,
unnecessary, or contrary to the public interest.” Agencies can also make their rules take effect in 33
less than 30 days by invoking the “good cause” exception. When agencies use the good cause
exception, the APA requires that they explicitly say so and provide a rationale for the exception’s
use when the rule is published in the Federal Register. The APA also provides explicit exceptions
to the NPRM requirement for certain categories of regulatory actions, such as rules dealing with
military or foreign affairs; agency management or personnel; or public property, loans, grants,
benefits, or contracts. Further, the APA says that the NPRM requirements do not apply to
interpretative rules; general statements of policy; or rules of agency organization, procedure, or
Two procedures for noncontroversial and expedited rulemaking were designed not to involve
NPRMs. “Direct final” rulemaking involves agency publication of a rule in the Federal Register
with a statement that the rule will be effective on a particular date unless an adverse comment is
received within a specified period of time (e.g., 30 days). However, if an adverse comment is
filed, the direct final rule is withdrawn and the agency may publish the rule as a proposed rule
under normal NPRM procedures. Direct final rulemaking can be viewed as a particular
application of the APA’s good cause exception in which agencies claim NPRMs are 34
“unnecessary.” The other procedure is what is known as “interim final” rulemaking, in which an
31 These withdrawals are recorded in the Unified Agenda of Federal Regulatory and Deregulatory Actions, which is
published twice a year by the Regulatory Information Service Center within the General Services Administration.
32 Advocates of the “unitary executive” theory of presidential power assert that the President should be able to make the
final decision regarding the substance of agency rules—even when Congress has assigned rulemaking responsibilities
to agency officials. Even in those instances, however, it is the agency that must take the rulemaking action, not the
President. The President cannot unilaterally eliminate or change a rule issued by an executive agency (e.g., by issuing
an executive order), but advocates of the unitary executive and others assert that the President can generally direct an
agency official to do so. For more on this issue, see testimony of Curtis W. Copeland, Specialist in American National
Government, U.S. Congress, House Committee on the Judiciary, Federal Rulemaking and the Unitary Executive thnd
Principle, hearings, 110 Congress, 2 sess., May 6, 2008 (available from the author).
33 The APA also allows rules to take effect in less than 30 days if the rule grants or recognizes an exemption or relieves
a restriction, or if the rule is an interpretative rule or statement of policy.
34 For more, see Ronald M. Levin, “More on Direct Final Rulemaking: Streamlining, Not Corner Cutting,”
agency issues a final rule without an NPRM that is generally effective immediately, but with a
post-promulgation opportunity for the public to comment. If the public comments persuade the
agency that changes are needed in the interim final rule, the agency may revise the rule by
publishing a final rule reflecting those changes. Interim final rulemaking can be viewed as
another particular application of the good cause exception in the APA, but with the addition of a 35
comment period after the rule has become effective.
The legislative history of the APA makes it clear that Congress did not believe that the act’s good 36
cause exception to the notice and comment requirements should be an “escape clause.” A
federal agency’s invocation of the good cause exception (or other exceptions to notice and
comment procedures) is subject to judicial review. After having reviewed the totality of
circumstances, the courts can and sometimes do determine that an agency’s reliance on the good 37
cause exception was not authorized under the APA. The case law has generally reinforced the 38
view that the good cause exception should be “narrowly construed.” That said, GAO reported
that about half of the 4,658 final rules published in 1997 were not preceded by an NPRM, and 39
that, in these cases, the agencies most commonly cited the good cause exception.
Congress may examine proposed and final “midnight” regulations being issued at the end of the
Bush Administration and conclude that they should be allowed to go forward. Should Congress
conclude otherwise, though, various options are available—even for rules that have already taken
Congress may use its general powers to overturn agency rules by regular legislation. However,
for various reasons, Congress may find it difficult to do so. The Congressional Review Act
(CRA), enacted in March 1996, was an attempt by Congress to reassert control over agency
Administrative Law Review, 51 (Summer 1999), pp. 757-766.
35 For more, see Michael Asimow, “Interim Final Rules: Making Haste Slowly,” Administrative Law Review, 51
(Summer 1999), pp. 703-755.
36 Senate Committee on the Judiciary, Administrative Procedure Act: Legislative History, Senate Document 248, 79th
Congress, 2nd sess. (1946).
37 For discussions of these court cases, see Ellen R. Jordan, “The Administrative Procedure Act’s ‘Good Cause’
Exemption,” Administrative Law Review, 36 (Spring 1984), pp. 113-178; and Catherine J. Lanctot, “The Good Cause
Exception: Danger to Notice and Comment Requirements Under the Administrative Procedure Act,” Georgetown Law
Journal, 68 (Feb. 1980), pp. 765-782.
38 See American Federation of Government Employees, AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); and
Mobay Chemical Corp. v. Gorsuch, (682 F.2d 419, 426 (3rd Cir.), cert. denied, 459 U.S. 988 (1982)). In another case
(Action on Smoking and Health v. CAB, 713 F.2d 795, 800 (D.C. Cir. 1983)), the court said that allowing broad use of
the good cause exception would “carve the heart out of the statute.”
39 U.S. General Accounting Office, Federal Rulemaking: Agencies Often Published Final Actions Without Proposed
Rules, GAO/GGD-98-126, August 31, 1998.
rulemaking by establishing a special set of expedited or “fast track” legislative procedures for this 40
purpose, primarily in the Senate.
In essence, the act requires that all final rules (including rules issued by independent boards and
commissions) be submitted to both houses of Congress and to GAO before they can take effect.
Members of Congress have 60 “days of continuous session” to introduce a joint resolution of
disapproval after a rule has been submitted to Congress (hereafter referred to as the “initiation 41
period”). The Senate has 60 “session days” from the date the rule is submitted to Congress to
use expedited procedures to act on a resolution of disapproval (hereafter referred to as the “action 42
period”). For example, once a joint resolution has reached the floor of the Senate, the CRA
makes consideration of the measure privileged, prohibits various other dilatory actions, disallows
amendments, and limits floor debate to 10 hours. If passed by both houses of Congress, the joint
resolution is then presented to the President for signature or veto. If the President signs the
resolution, the CRA specifies not only that the rule “shall not take effect” (or shall not continue if
it has already taken effect), but also that the rule may not be reissued in “substantially the same 43
form” without subsequent statutory authorization. Also, the act states that any rule disapproved 44
through these procedures “shall be treated as though such rule had never taken effect.” If, on the
other hand, the President vetoes the joint resolution, then (as is the case with any other piece of
legislation) Congress can override the President’s veto by a two-thirds vote in both houses of
Under most circumstances, it is likely that the President would veto such a resolution in order to
protect rules developed under his own administration, and it may also be difficult for Congress to
muster the two-thirds vote in both houses needed to overturn the veto. Of the nearly 50,000 final
rules that have been submitted to Congress since the legislation was enacted in March 1996, the
CRA has been used to disapprove only one rule—the Occupational Safety and Health 45
Administration’s November 2000 final rule on ergonomics.
40 The following discussion is a synopsis of more detailed information provided in other CRS reports. For a detailed
discussion of CRA disapproval procedures, see CRS Report RL31160, Disapproval of Regulations by Congress:
Procedure Under the Congressional Review Act, by Richard S. Beth. For a discussion of the “carryover” procedures,
see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress, by
Curtis W. Copeland and Richard S. Beth. For a discussion of the implementation of the CRA, see CRS Report
RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The Congressional Review Act
after a Decade, by Morton Rosenberg.
41 “Days of continuous session” excludes all days when either the House of Representatives or the Senate is adjourned
for more than three days.
42 “Session days” include only calendar days on which a chamber is in session. Once introduced, resolutions of
disapproval are referred to the committees of jurisdiction in each house of Congress. The House of Representatives
would consider the resolution under its general procedures, very likely as prescribed by a special rule reported from the
Committee on Rules. In the Senate, however, if the committee has not reported a disapproval resolution within 20
calendar days after the regulation has been submitted and published, then the committee may be discharged of its
responsibilities and the resolution placed on the Senate calendar if 30 Senators submit a petition to do so.
43 5 U.S.C. § 801(b)(2).
44 5 U.S.C. § 801(f).
45 U.S. Department of Labor, Occupational Safety and Health Administration, “Ergonomics Program,” 65 Federal
Register 68261, November 14, 2000. Although the CRA has been used to disapprove only one rule, it may have other,
less direct or discernable effects (e.g., keeping Congress informed about agency rulemaking and preventing the
publication of rules that may be disapproved).
The March 2001 rejection of the ergonomics rule was the result of a specific set of circumstances
created by a transition in party control of the presidency. The majority party in both houses of
Congress was the same as the party of the incoming President (George W. Bush). When the new
Congress convened in 2001 and adopted a resolution disapproving the rule published under the
outgoing President (William J. Clinton), the incoming President did not veto the resolution.
Congress may be most able to use the CRA to disapprove rules in similar, transition-related 46
The ergonomics disapproval was also an example of the “carryover” provisions in the CRA.
Section 801(d) of the CRA provides that, if Congress adjourns its annual session sine die less than
60 legislative days in the House of Representatives or 60 session days in the Senate after a rule is
submitted to it, then the rule is subject, during the following session of Congress, to (1) a new 47
initiation period in both chambers and (2) a new action period in the Senate. The purpose of this
provision is to ensure that both houses of Congress have sufficient time to consider disapproving
rules submitted during this end-of-session “carryover period.” In any given year, the carryover th
period begins after the 60 legislative day in the House or session day in the Senate before the
sine die adjournment, whichever date is earlier. The renewal of the CRA process in the following
session occurs even if no resolution to disapprove the rule had been introduced during the session
when the rule was submitted.
For purposes of this new initiation period and Senate action period, a rule originally submitted
during the carryover period of the previous session is treated as if it had been published in the th
Federal Register on the 15 legislative day (House) or session day (Senate) after Congress
reconvenes for the next session. In each chamber, resolutions of disapproval may be introduced at
any point in the 60 days of continuous session of Congress that follow this date, and the Senate
may use expedited procedures to act on the resolution during the 60 days of session that follow
the same date.
The exact starting point for the CRA carryover period in the second session of the 110th Congress
can be determined only after sine die adjournment has taken place. However, the likely date or
range of dates may be illuminated by examining congressional activity in prior years. Perhaps
most relevantly, since the CRA was enacted in March 1996, the starting points for the carryover
periods during second sessions of Congress have always been determined by the House of
Representatives, and have ranged from May 12 to June 23, with the median starting point being 48
46 See, for example, Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, vol. 24 (Spring 2001), p. 9, who
noted that the “veto threat is diminished [after a transition], since the president whose administration issued the
regulations is no longer in office.” See also testimony of Curtis W. Copeland, in U.S. Congress, House Committee on
Government Reform, Subcommittee on Regulatory Affairs, The Effectiveness of Federal Regulatory Reform Initiatives, thst
109 Cong., 1 sess., July 27, 2005, p. 13. See CRS Report RL30116, Congressional Review of Agency Rulemaking:
An Update and Assessment of The Congressional Review Act after a Decade, by Morton Rosenberg, for a description
of this and several other possible factors affecting the law’s use.
47 “Legislative days” end each time a chamber adjourns and begin each time it convenes after an adjournment.
48 For the cutoff dates in all recent sessions of Congress, see CRS Report RL34633, Congressional Review Act:
There are some indications that the cutoff date for the carryover provisions in the second session th
of the 110 Congress may be even earlier. Again, it appears that the calendar for the House of
Representatives will determine the cutoff date (because the Senate has been in session more days
late in the year). As of December 12, 2008, if the House of Representatives remains in recess until th
sine die adjournment, the 60 legislative day prior to adjournment will be May 15, 2008. Under
these conditions, any final rule sent to Congress after May 15, 2008, will be subject to th
disapproval in the 111 Congress.
Although the CRA has been used only once to overturn an agency rule, Congress has frequently
used provisions added to agency appropriations bills to affect rulemaking and regulations. A CRS
analysis of the Consolidated Appropriations Act for 2008 revealed nearly two dozen such
provisions in the act, which generally fell into four categories: (1) prohibitions on the finalization
of particular proposed rules, (2) prohibitions on the development of regulations with regard to
particular statutes or issues, (3) restrictions on implementation or enforcement, and (4) 49
conditional restrictions on the development or implementation of particular rules. A review of
appropriations legislation that was enacted from FY1999 through FY2007 indicated that many of
the regulatory restrictions in the Consolidated Appropriations Act for 2008 had appeared in one or
more appropriations statutes in previous years. Some were in relevant appropriations bills in all
10 years, some had been in multiple years (but not all 10), and some were present in only one
year. In some cases, the provisions appear to have been designed to slow down or prevent the
issuance of “midnight” rules issued near the end of a presidential administration, or to ensure the
implementation of rules issued during that period.
These restrictions in appropriations bills illustrate that Congress can have a substantial effect on
agency rulemaking and regulatory activity beyond the introduction of joint resolutions of
disapproval pursuant to the CRA. However, unlike CRA joint resolutions of disapproval, these
appropriations provisions cannot nullify an existing regulation (i.e., remove it from the Code of
Federal Regulations) or permanently prevent the agency from issuing the same or similar
regulations. Therefore, any final rule that has taken effect and been codified in the Code of
Federal Regulations will continue to be binding law—even if language in the relevant regulatory
agency’s appropriations act prohibits the use of funds to enforce the rule. Regulated entities are
still required to adhere to applicable requirements (e.g., installation of pollution control devices,
submission of relevant paperwork), even if violations are unlikely to be detected and enforcement
actions cannot be taken by federal agencies.
Also, unless otherwise indicated, regulatory restrictions in appropriations acts are binding only 50
for the period of time covered by the legislation (i.e., a fiscal year or a portion of a fiscal year).
Disapproval of Rules in a Subsequent Session of Congress, by Curtis W. Copeland and Richard S. Beth, pp. 7-9.
49 CRS Report RL34354, Congressional Influence on Rulemaking and Regulation Through Appropriations
Restrictions, by Curtis W. Copeland.
50 See U.S. General Accounting Office, Principles of Appropriations Law, Third Edition, Volume I, GAO-04-261SP,
(January 2004), p. 2-34, which states that, “Since an appropriation act is made for a particular fiscal year, the starting
presumption is that everything contained in the act is effective only for the fiscal year covered. Thus, the rule is: A
provision contained in an annual appropriation act is not to be construed to be permanent legislation unless the
language used therein or the nature of the provision makes it clear that Congress intended it to be permanent.”
Therefore, any restriction that is not repeated in the next relevant appropriations act or enacted in
other legislation is no longer binding on the relevant agency or agencies. However, some
appropriations provisions are worded in such a way that they have essentially become permanent
or multi-year requirements.
Most of the regulatory restrictions are in appropriations bills providing funds for particular
agencies or groups of agencies. Therefore, the prohibitions are generally applicable only to the
agencies funded by that appropriations measure. However, some of the regulatory prohibitions
are in the “General Provisions—Government-wide” section of one of the appropriations measures
(for FY2008, Title VII of the Financial Services and General Government Appropriations Act),
and are, therefore, applicable to virtually all federal agencies. Other provisions are worded in
such a way that their effects are broader than the agencies funded by those particular
appropriations bills (e.g., those that prohibit the use of funds in “this or any other Act” to publish 51
or implement regulations).
On the other hand, some of the appropriations provisions limiting regulatory actions may not be
as restrictive as they initially appear. Some federal regulatory agencies derive a substantial
amount of their operating funds from sources other than congressional appropriations (e.g., user
fees), and the use of those funds to develop, implement, or enforce rules may not be legally 52
constrained by language preventing the use of appropriated funds. Also, some federal
regulations (e.g., many of those issued by the Environmental Protection Agency and the
Occupational Safety and Health Administration) are primarily implemented or enforced by state
or local governments, and those governments may have sources of funding that are independent
of the federal funds that are restricted by the appropriations provisions. Some state or local
governments may also have their own statutory and regulatory requirements that are the same as 53
or similar to the federal rules at issue, or may even go beyond federal standards. If state or local
funds or legal authorities are used to develop, implement, or enforce regulations, those actions
would not appear to be constrained by statutory provisions limiting the use of federal funds to 54
restrict action on particular federal laws and regulations.
Agencies may also find ways around provisions prohibiting the use of appropriated funds for
rulemaking or other regulatory actions. For example, if an agency is not permitted to use its
appropriation to issue a formal rule on a particular issue, it might attempt to achieve the end result
through other means (e.g., a guidance document that, while technically having no binding effect,
51See U.S. General Accounting Office, Principles of Appropriations Law, p. 2-33, which says that a general provision
“may apply solely to the act in which it is contained (‘No part of any appropriation contained in this Act shall be used
...’), or it may have general applicability (‘No part of any appropriation contained in this or any other Act shall be used
52 Others, however, take the view that even these non-appropriated funds must be at least figuratively deposited into the
Treasury, and that “all spending in the name of the United States must be pursuant to legislative appropriation.” Kate
Stith, “Congress’ Power of the Purse,” The Yale Law Journal, vol. 97 (1988), p. 1345.
53 For example, under the Occupational Safety and Health Act, states may set standards for hazards such as ergonomic
injury for which no federal standard has been established. See U.S. General Accounting Office, Regulatory Programs:
Balancing Federal and State Responsibilities for Standard Setting and Implementation, GAO-02-495, March 2002.
54 See U.S. Government Accountability Office, Principles of Federal Appropriations Law, Third Edition, Volume II,
GAO-06-382, February 2006, which says that, unless stated otherwise, expenditures by recipients of federal grants “are
not subject to all the same restrictions and limitations imposed on direct expenditures by the federal government. For
this reason, grant funds in the hands of a grantee have been said to largely lose their character and identity as federal
may be granted great deference by affected parties).55 More generally, if Congress restricts one
agency or group of agencies from issuing a rule on a particular topic, another agency with similar
or overlapping statutory authority may be assigned that responsibility.
On November 20, 2008, Representative Jerrold Nadler introduced H.R. 7296, the “Midnight Rule
Act.” The bill defines a “midnight rule” as one “adopted by an agency within the final 90 days a
President serves in office.” The bill proposes to (1) prohibit any midnight rule from taking effect
until 90 days after the head of the agency issuing the rule is appointed by the new President; and
(2) allow the new agency head to disapprove a midnight rule within 90 days after being appointed
by publishing a “statement of disapproval” in the Federal Register and sending a “notice of
disapproval” to the congressional committees of jurisdiction. However, an outgoing President
could permit a midnight rule to take effect within 90 days of its publication if the President
determines by executive order that the rule is (1) necessary because of an imminent threat to
health or safety or other emergency; (2) necessary for the enforcement of criminal laws; (3)
necessary for national security; or (4) issued pursuant to any statute implementing an
international trade agreement. The bill states that this action by an outgoing President has no
effect on the disapproval procedures established by the Congressional Review Act, and says that
the bill’s provisions apply to any rule adopted on or after October 22, 2008.
Curtis W. Copeland
Specialist in American National Government
55 See Office of Management and Budget, “Final Bulletin for Agency Good Guidance Practices,” 72 Federal Register
3432, January 25, 2007. OMB issued the bulletin, in part, because of concerns that agencies were treating guidance
documents as binding rules. Nevertheless, as OMB points out, guidance documents can have significant effects on