Why US Federal Rules Generally Wait 30 Days, and How Congress Can Disapprove Them

Many US federal rules begin as a proposal published by an agency and end as a final rule, which is generally published in the Federal Register. The Administrative Procedure Act sets the basic steps. A separate law, the Congressional Review Act, gives Congress a route to reverse a rule after it has been issued.

The sequence below follows the general path for a substantive rule. Procedure can differ by rule type.

Step One: Proposal Published in the Federal Register

Under 5 U.S.C. 553, an agency generally must publish a general notice of proposed rulemaking in the Federal Register, unless the persons subject to the rule are named and personally served or otherwise have actual notice. The notice must give the time, place and nature of the proceeding, the legal authority for the proposed rule, and either its terms or substance or a description of the subjects and issues involved.

Agencies act only within authority delegated by a statute, and the notice identifies that authority. The notice requirement generally does not cover interpretive rules, general statements of policy, or rules of agency organization, procedure or practice.

The notice requirement can also be set aside when an agency finds for good cause that notice is impracticable, unnecessary or contrary to the public interest, and states that finding in the rule.

The 30-Day Rule
Under 5 U.S.C. 553(d), a substantive rule must be published or served at least 30 days before its effective date, unless one of the listed exceptions applies.

Step Two: Public Comment and the Final Rule

After the notice, interested people must be given a chance to comment in writing, with or without an oral presentation. Before issuing the rule, the agency must consider the input and include a concise general statement of the rule’s basis and purpose.

Many comments are filed through the public docket on Regulations.gov. After considering them, the agency may issue a final rule, which is generally published in the Federal Register.

Rules of general and permanent applicability are generally codified in the Code of Federal Regulations.

The 30-Day Wait and the 60-Day Rule for Major Rules

A substantive rule must be published or served at least 30 days before its effective date. Section 553(d) lists three exceptions: a rule that grants an exemption or relieves a restriction, interpretive rules and policy statements, and cases the agency sets for good cause and states in the rule.

Interpretive rules and statements of policy are excluded from the notice requirement and from the 30-day wait, which applies to substantive rules.

Major rules follow a longer timetable under the Congressional Review Act, generally with a delay of at least 60 days before taking effect.

Before any rule takes effect, the agency must send a report to each House of Congress and to the Government Accountability Office. The report includes a concise general statement relating to the rule, including whether it is a major rule.

How Congress Can Disapprove a Rule

The mechanism is a joint resolution of disapproval. A rule generally cannot take effect until the agency has sent it to both houses of Congress and to GAO. If an agency has not submitted an action, a GAO opinion that it is a rule can start the same procedures, and the date of that opinion becomes the submission date.

In the Senate, the resolution needs only a simple majority to pass. Debate is capped at 10 hours, no cloture vote is needed, and amendments are not allowed. The fast-track window lasts 60 days of Senate session, counting days on which the Senate meets, including pro forma sessions.

Two other clocks run alongside the Senate window: a 60-legislative-day period in which one chamber must introduce a resolution, and a 20-day period after receipt and publication before a 30-senator discharge petition can be filed. The House counts its window in legislative days.

The resolution must still be signed by the President. A veto would require a two-thirds override in both chambers.

Once a rule is disapproved, the law treats it as though it had never taken effect. The agency may not reissue it in substantially the same form, or issue a substantially similar new rule, unless a later law specifically authorizes it.

Once a rule is disapproved, the law treats it as though it had never taken effect.

Lookback Periods, GAO Opinions and Late-Submitted Rules

If Congress adjourns sine die before a review window closes, the full period restarts in the next session. An incoming Congress can therefore reach back to rules submitted late in the previous session. CRS says rules submitted on or after the 60th Senate session day, or the 60th House legislative day, before adjournment qualify.

The clock starts on the 15th Senate session day or the 15th House legislative day, depending on the chamber. The Regulatory Review says most rules invalidated under the Act were targeted this way, after transitions between presidents of different parties when the incoming president’s party controls both chambers.

The Regulatory Review reports that GAO issued 31 opinions during the Biden term, a record, and 25 in the current Trump term to date. Eight of the 10 opinions requested by Republicans on Biden-era actions found a rule.

The article gives an example of a Biden-administration Bureau of Land Management action that predated the lookback period and was disapproved in the past year. It also says the Trump Administration invalidated a Biden-era order on mining near the Boundary Waters through the agency-submission route, with no GAO opinion on that action.

The article also notes that Republicans disapproved Clean Air Act waivers for California, which GAO and the Senate parliamentarian had found were not rules. The agency submitted them, and the President signed the resolutions.

Courts and Other Points of Challenge

Final rules are generally subject to judicial review. Courts determine whether an agency acted within its statutory authority, complied with required procedures, and avoided arbitrary or capricious decision-making.

Under section 553(d), an agency can set aside the 30-day requirement for good cause, but it must state that finding in the rule. Where a statute requires rules to be made on the record after an opportunity for an agency hearing, sections 556 and 557 apply instead of the ordinary comment procedure in section 553(c).

The CRA itself states that no determination, finding, action, or omission under that chapter is subject to judicial review.