Presidential Memorandum Delaying

Proposed and Pending Regulations

T he President has authority, under Article II, § 3 o f the Constitution, to direct executive 

agencies to postpone proposed and pending regulations for a 60-day period.

Even w here a regulation has been published in final form, the Adm inistrative Procedure 

A ct does not require an agency to follow notice and comment procedures in connection w ith a tem porary postponement o f its effective date, since such a postponement 

will not generally be regarded as a rulemaking. Even if it were so regarded, an agency 

will in general have good cause for dispensing w ith notice and comment procedures 

w here a new President is assuming office during a time o f econom ic distress.

January 28, 1981

MEMORANDUM OPINION FOR TH E DIRECTOR, OFFICE OF 

M ANAGEM ENT AND BUDGET

The President is currently considering a series of measures to establish new procedures for the supervision of the regulatory process and 

the improvement of federal regulation. Among those measures is a 

proposed Memorandum to the heads of certain executive departments 

and agencies, directing a 60-day postponement in the effective date of 

pending and proposed regulations. This memorandum will discuss the 

legal basis for the President’s directive and will outline the procedures 

for affected agencies to follow in complying with that directive.*

The President’s authority to impose obligations of the kind included 

in the proposed Memorandum derives from his power to ensure that 

the laws are faithfully executed. U.S. Const., Art. II, § 3. This provision 

authorizes the President to supervise and guide executive agencies and 

officers in the execution of their responsibilities. As the Supreme Court 

stated in Myers v. United States, 272 U.S. 52, 135 (1926):

The ordinary duties of officers prescribed by statute come 

under the general administrative control of the President 

by virtue of the general grant to him of the executive 

power, and he may properly supervise and guide their 

construction of the statutes under which they act in order 

to secure that unitary and uniform execution of the laws 

which Article II of the Constitution evidently contem-

• N o t e : The President’s Memorandum, entitled “Postponement o f Pending Regulations,” was published on January 29, 1981, 46 Fed. Reg. 11227. Ed.

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plated in vesting general executive power in the President 

alone. Laws are often passed with specific provision for 

the adoption of regulations by a department or bureau 

head to make the law workable and effective. The ability 

and judgment manifested by the official thus empowered, 

as well as his energy and stimulation of his subordinates, 

are subjects which the President must consider and supervise in his administrative control.

In accordance with these principles, we believe that the President’s 

authority to direct executive agencies to postpone proposed and pending regulations for a 60-day period, for the reasons stated in the Memorandum, is beyond reasonable dispute. See generally Bruff, Presidential

Power and Administrative Rulemaking, 88 Yale L.J. 451 (1979).

The proposed Memorandum covers two major categories of regulations: those which have been proposed but have not been published in 

final form; and those which have been published in final form but have 

not taken legal effect. A s to the first category, the Administrative 

Procedure Act (APA) imposes no special procedural requirements. The 

notice and comment procedures of 5 U.S.C. § 553 need not be followed, for nothing in that provision requires an agency to allow a 

period for comment on a decision briefly to delay final adoption of a 

proposed rule. However, the agency’s decision may be subject to judicial review, and the agency may have to furnish a reasoned explanation 

for that decision. See A SG Industries, Inc. v. Consumer Product Safety

Commission, 593 F.2d 1323, 1335 (D.C. Cir. 1979). The explanation 

here—that the new Administration needs time to review initiatives 

proposed by its predecessor—is, we believe, sufficient.

The second category of regulations covered by the President’s 

Memorandum raises somewhat different legal issues. Under the APA, a 

substantive rule must be published “not less than 30 days before its 

effective date.” 5 U.S.C. § 553(d). As the language and legislative 

history of this provision make clear, the 30-day period is a minimum, 

and agencies are generally free to delay the effectiveness of regulations 

beyond the 30-day period. See Administrative Procedure Act—Legislative

History, S. Doc. No. 248, 79th Cong., 2d Sess. 259-60 (1946) (reproducing report of House Committee on the Judiciary); id. at 201 (report of 

Senate Committee on the Judiciary). The purposes of the 30-day delay 

in effective date are, first, to permit private parties to adjust their 

conduct in order to conform to new regulations and, second, to permit 

agencies to correct errors or oversights. See id. at 259-60, 359; Final 

Report, Attorney General’s Committee on Administrative Procedure 

114-15 (1941); Sannon v. United States, 460 F. Supp. 458, 467 (S.D. Fla. 

1978). It is therefore plain that the APA permits an agency to adopt in 

the first instance an effective date provision extending beyond 30 days. 

We do not find anything in the language or legislative history of

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§ 553(d) to suggest that agencies are forbidden to reach the same result 

by initially providing a 30-day period, and subsequently taking action to 

extend this period.

Nevertheless, it is necessary to consider what procedures an agency 

must follow in order to extend an effective date provision after the 

regulations at issue have been published in final form but have not yet 

become effective. For purposes of § 553, the issue is whether a suspension of the effective date of a rule is an “amendment” of the rule.1 If so, 

notice and comment procedures or a finding of good cause to dispense 

with them are required before an agency may suspend the operation of 

a rule, and the regulations issued by the previous Administration will 

take effect before the new Administration has an opportunity to review 

them.

We believe that such a result would not comport with either the 

terms or the purposes of § 553. Therefore, we conclude that a 60-day 

delay in the effective date should not be regarded as “rule making” for 

the purposes of the APA. Although such a delay technically alters the 

date on which a rule has legal effect, nothing in the APA or in any 

judicial decision suggests that a delay in effective date is the sort of 

agency action that Congress intended to include within the procedural 

requirements of § 553(b).2 This conclusion is supported by the clear 

congressional intent to give agencies discretion to extend the effective 

date provision beyond 30 days. The purposes of the minimum 30-day 

requirement would plainly be furthered if an extension of the effective 

date were not considered “rule making,” for such an extension would 

permit the new Administration to review the pertinent regulations and 

would free private parties from having to adjust their conduct to 

regulations that are simultaneously under review.

We would note, however, that even if an extension of effective dates 

does not trigger notice and comment procedures, it may still be subject 

to judicial review under § 706. A statement of reasons for the deferral 

should therefore be provided. See Action for Children's Television v. 

FCC, 564 F.2d 458, 478-79 (D.C. Cir. 1977). For this purpose a reference to the President’s Memorandum should be sufficient in most cases. 

The exception would be any rule for which the effective date has been 

a matter of controversy during the notice and comment period. In these

'U nder 5 U.S.C. § SS3, notice and comment procedures must be followed for “rule making*’ unless 

“the agency for good cause finds (and incorporates the finding and a brief statement of reasons 

therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, 

or contrary to the public interest ’’ Under 5 U.S C. § 551(5), the term “rule making” is in turn defined 

as “agency process for formulating, amending, or repealing a rule.”

3 Indeed, it is not clear that an agency is, as a general rule, required to provide an opportunity for 

comment on the intended effective date of a rule in the first instance. If agencies are not required to 

do so, a mere extension of that provision would not trigger the procedures of § 553

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cases, the explanation should refer to the specific considerations justifying deferral of the rule in question.3

Even if the suspension o f a rule’s effective date is regarded as rulemaking, we believe that agencies will in general have good cause for 

dispensing with notice and comment procedures. A new President 

assuming office during a time of economic distress must have some 

period in which to evaluate the nature and effect of regulations promulgated by a previous Administration. Cf. Nader v. Sawhill, 514 F.2d 1064 

(Temp. Emer. Ct. App. 1975) (good cause for dispensing with notice 

and comment when increase in petroleum price necessitated by economic conditions); Reeves v. Simon, 507 F.2d 455 (Temp. Emer. Ct. 

App. 1974), cert, denied, 420 U.S. 991 (1975) (same conclusion for 

regulation issued during gasoline crisis); Derieux v. Five Smiths, Inc.,

499 F.2d 1321 (Temp. Emer. Ct. App.), cert, denied, 419 U.S. 896 (1974) 

(same conclusion for executive order freezing prices and salaries). If 

notice and comment procedures were required, the President would not 

be permitted to undertake such an evaluation until the regulations at 

issue had beome effective. A notice and comment period, preventing 

the new Administration from reviewing pending regulations until they 

imposed possibly burdensome and disruptive costs of compliance on 

private parties, would for this reason be “impracticable, unnecessary, or 

contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). This rationale 

furnishes good cause for dispensing with public procedures for a brief 

suspension of an effective date.

For the foregoing reasons, we conclude that: (1) the President’s 

Memorandum is a lawful exercise of his authority; (2) agencies need not 

allow a period for notice and comment on a 60-day suspension of the 

effective date of proposed regulations; and (3) at least in general, 

agencies need not allow such notice and comment for final but not yet 

effective regulations, and may comply with legal requirements with a 

simple statement incorporating the President’s reasons for the proposed 

suspension.4

L a r r y L. S i m m s

Acting Assistant Attorney General

Office o f Legal Counsel

3 If the effective date provision in a final rule has been the product of an agency resolution of a 

dispute among afTected parties, the view that an alteration o f the effective date is an “amendment" 

under the APA is of greater weight. Even in such cases, however, there may be good cause to 

dispense with notice and comment procedures. The explanation of specific considerations discussed in 

text above should suffice as a good cause statement even if the agency action is viewed as rulemaking.

4 As indicated above, a more detailed explanation may be necessary when the effective date 

provision was itself a subject of controversy during the notice and comment period.

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