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1 1 (July 30, 2024)

handle is hein.crs/goveqcf0001 and id is 1 raw text is: * Congressional Research Service Informing the legislative debate since 1914 July 30, 2024 Presidential Transitions: Midnight Rulemaking Midni t uemaking Overview During the final months of presidential Administrations, federal agencies have often increased the pace of their regulatory activities. This phenomenon is often referred to as midnight rulemaking. Because it can be a challenge to change or eliminate rules after they have been finalized, issuing midnight rules can help ensure a legacy for an outgoing President-especially when an incoming Administration is of a different party. Some concerns that have been raised over midnight rulemaking include the decreased political accountability for an outgoing Administration, the potential for rules that are hurried through at the end of an Administration not to have the same opportunity for public input, and the potential for the quality of regulations to suffer during the midnight period because the departing Administration may issue rules quickly and without subjecting them to rigorous review or analysis. In addition, some have argued that evaluating a previous Administration's midnight rules can potentially overwhelm a new Administration. On the other hand, one study from 2012 concluded that the perception of midnight rulemaking as an unseemly practice is worse than the reality. The Administrative Conference of the United States issued a number of recommendations regarding midnight rulemaking in 2012, concluding after a study that many midnight rules were relatively routine matters not implicating new policy initiatives by incumbent administrations and that the majority of the rules appear to be the result of finishing tasks that were initiated before the presidential transition period or the result of deadlines outside the agency's control. Options for a New Administration: Changing or Repeaing Midnight Rules A new Administration has various options for reviewing, amending, or repealing midnight regulations. New Administrations have often revisited policies established under prior Administrations, and they have fairly wide authority to do so-provided the new policies are consistent with procedural and other legal requirements. The options available to a new Administration for responding to midnight rules depend on the status of each rule at the time the new President takes office. Amending or Repealng Finalized Ru es To change or repeal rules that were finalized by a previous Administration, federal agencies are generally subject to a well-established set of procedural requirements. A regulation is considered finalized if it was published in the Federal Register as a final rule or, pursuant to a 2022 ruling from the U.S. Court of Appeals for the D.C. Circuit, placed on public inspection ahead of being published in the Federal Register. Rulemaking requirements derive primarily from the Administrative Procedure Act (APA; 5 U.S.C. §551 et seq.), as well as other statutes and executive orders. Section 553 of the APA generally requires agencies to (1) publish a notice of proposed rulemaking (also commonly referred to as a proposed rule) in the Federal Register; (2) allow interested persons an opportunity to comment on the proposed rule; and (3) after reading and considering those comments, publish the final rule in the Federal Register. Furthermore, in most cases, the final rule may not become effective until at least 30 days after its publication. Most agencies are also subject to Executive Order 12866, which requires review of significant proposed and final rules by the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB). For a subset of those rules, an agency must also conduct a regulatory impact analysis when a rule is expected to have a particularly large economic effect. In conducting such analysis, agencies are generally required to follow the guidance of OMB Circular A-4. Other applicable statutes and executive orders, such as the Regulatory Flexibility Act (5 U.S.C. §§601-612), may also require agencies to conduct analyses or take additional procedural steps at various points in the rulemaking process. Congress has also sometimes enacted rule- or program-specific procedural requirements, which would further supplement any general rulemaking requirements. Under the APA, rulemaking is defined as formulating, amending, or repealing a rule, meaning an agency must follow the rulemaking procedures set forth by the APA and other statutory and executive order requirements to change or repeal a rule, not just to issue a new rule. Halting or Repealng Not-Yet-Finalized Rules: Regulatory Moratoria and Postponements While a rulemaking process is generally required to overturn midnight rules that have been finalized by the time a new President is sworn in, new Presidents typically have more authority over rules that have not yet been finalized. If a rule has not yet been finalized, a new Administration may be able, immediately upon taking office, to prevent the rule from being issued. One approach Presidents have used has been to impose a moratorium on regulations under development-that is, those that have not yet been published as final rules in the Federal Register. Such moratoria have essentially put a halt to rulemaking activities within federal agencies to allow the

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