The Administrative Conference of the United States (ACUS) recently adopted Recommendation 2026-2,\u00a0\u201cTemporary Rules<\/a>,\u201d which is intended to address<\/a> this gap and provide agencies with guidance on issuing, monitoring, and developing internal procedures for temporary rules.<\/p>\n My report<\/a> informing this recommendation explored the historical uses of temporary lawmaking, tracing<\/a> it back to the Roman Empire, Medieval England, and the Founding Era. The report\u2019s findings demonstrated<\/a> that rationales for using temporary laws in these historical contexts\u2014responding to emergencies, testing new policies, and reaching political compromises\u2014drove<\/a> the use of temporary rules as the administrative state expanded throughout the 20th century.<\/p>\n Because the Administrative Procedure Act<\/a> (APA), which establishes the baseline procedural requirements for agency rulemaking, neither explicitly restricts<\/a> nor authorizes the use of temporary rules, agencies retain<\/a> significant discretion. They may issue temporary rules so long as they comply with the procedural and substantive requirements of the APA and other applicable legal standards.<\/p>\n Meeting these legal standards, however, can be challenging. For example, agencies must not only justify<\/a> the reasonableness of a rule\u2019s substance but also the decision to limit its duration. The U.S. Supreme Court in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance<\/a> held that when agencies repeal a rule, they must adhere to the same procedural requirements as they do when issuing a rule.<\/p>\n Because a temporary rule encompasses<\/a> two regulatory actions in one\u2014issuance and subsequent repeal\u2014agencies need to explain the rationale for both. Agencies often issue<\/a> temporary rules when they lack the time or reason to pursue the full notice-and-comment process required by the APA. In such circumstances, particularly when responding to emergencies or adapting to legal changes, agencies rely on the APA\u2019s good cause exemption, which permits<\/a> agencies to forgo notice and comment if doing so would be \u201cimpracticable, unnecessary, or contrary to the public interest.\u201d<\/p>\n Agencies also issue<\/a> temporary rules for other purposes that allow for full compliance with notice-and-comment requirements, such as promoting<\/a> regulatory learning. In this context, agencies may include<\/a> a sunset provision requiring retrospective review before the stated expiration date. A complete notice-and-comment process could<\/a> also be possible if the regulatory deviation is expected and not emergency-driven.<\/p>\n Temporary rules have several benefits. They can increase<\/a> efficiency by combining the issuance and repeal of the rule into a single action. This consolidation could be particularly effective if the agency uses the Office of the Federal Register<\/a> temporary rule designation<\/a>, in which the Office will automatically remove the temporary rule from the Code of Federal Regulations<\/a>. This designation relieves<\/a> agencies of the burden of manually amending their regulations upon the expiration of the temporary rule, enhancing accuracy and efficiency.<\/p>\n Temporary rules can also offer<\/a> agencies the flexibility to address emergencies or temporarily deviate from their ordinary regulatory framework, while maintaining regulatory clarity for regulated parties. In some cases, other regulatory tools could achieve<\/a> similar outcomes.<\/p>\n Despite these advantages, temporary rules present certain drawbacks. Agencies must allocate<\/a> sufficient resources to monitor temporary rules and determine whether to extend, amend, repeal, or make them permanent. Inadequate monitoring can lead<\/a> to discrepancies between the regulations in effect and the content of the Code of Federal Regulations. In addition, excessive reliance on temporary rules may increase<\/a> regulatory uncertainty and hinder behavioral adjustments by regulated parties.<\/p>\n The report\u2019s analysis also covers<\/a> how states developed tailored policies on temporary rulemaking. A survey<\/a> of statutory provisions on the use of temporary rules across all 50 states found<\/a> that every state, except Pennsylvania, has a detailed statutory framework that authorizes temporary rulemaking, particularly in emergencies or to adapt to legal changes. The report\u2019s comparative analysis demonstrates<\/a> that legislatures seek to strike a balance between providing agencies with regulatory flexibility to address changing realities and maintaining adequate procedural protections for public engagement and political oversight.<\/p>\n In Recommendation 2026-2<\/a>, ACUS recommended that agencies explain<\/a> in the preamble to a temporary rule why it should be effective only for a limited time, specify<\/a> its effective period, and present<\/a> a plan for monitoring it. ACUS also recommended<\/a> that agencies conduct a timely assessment of a temporary rule to determine whether to extend the rule, let it expire, or make it permanent, while complying with the appropriate procedural requirements for each option.<\/p>\n ACUS addressed<\/a> additional technical considerations for publishing temporary rules in the Federal Register and factors to determine<\/a> whether to use Office of the Federal Register\u2019s temporary rule designation with automatic removal.<\/p>\n
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