If an agency proposes to rescind or change an existing final rule, it must issue an NPRM to that effect.

The APA requires Notice of Proposed Rulemaking (NPRM) to:

• be written in plain language,
• include: the time, place and nature of the public rulemaking proceedings, the legal authority the agency claims to issue the rule, a description of the subject of the rule, and the web address at regulations.gov where a brief summary of the rule can be found.
• a preamble that describes the purpose of the rule and a summary of the agency action, why the action is necessary, and the effect of the action.

If not, did the agency justify its decision not to issue an NPRM because:

• The rule meets a statutory exemption: The rule concerns the military or foreign affairs function of the United States, agency management or personnel, or relates to public property, loans, grants, benefits, or contract, which are exempt;
• The rule meets a “good cause” exemption: The agency shows that it would be “impracticable, unnecessary, or contrary to the public interest” pursuant to the APA;
• The rule relates to agency organization, procedure, practice: The rule is related to the “technical regulation of the form of agency action and proceedings.” These rules regulate agencies themselves and do not include actions which affect the rights of regulated parties or the public.

Under Executive Order (EO) 12866, OIRA reviews “significant rules.” However, OIRA can waive review.

“Significant” rules are those rules likely to have an effect on the economy of at least $100 million, create inconsistency or interfere with another agency’s actions, alter the “entitlements, grants, user fees, or loan programs” or the rights of recipients of those programs, or raise “novel legal or policy issues.” Executive Order 12866. An agency must prepare a cost-benefit analysis for significant rules.

The agency must consider public feedback pursuant to the APA. Courts read this requirement to mean that an agency must respond to “significant”  comments in the rule’s preamble.

While courts have not clearly articulated a single standard for “significance,” as a useful guide, the Ninth Circuit defined “significant” as “those which raise relevant points and which, if adopted, would require a change in the agency’s proposed rule.” Am. Min. Cong. v. E.P.A., 965 F.2d 759, 771 (9th Cir. 1992).

The agency must add to or revise the preamble based on comments received pursuant to the APA. The agency must provide a description of any significant differences between the proposed rule and the final rule pursuant to Office of Management and Budget (OMB) regulations.

Courts require the language of the final rule be a “logical outgrowth” of the NPRM such that the public feedback provided on the NPRM is sufficient to inform the promulgation of the rule. The final rule is a “logical outgrowth” as long as “affected parties ‘should have anticipated’ the final rule in light of the notice.” Brennan v. Dickson, 45 F.4th 48, 69-70 (2022) (citing Covad Comms. Co., 450 F.3d 528, 548 (2012)).

Resource: Logical Outgrowth Memorandum

The rule must not go into effect for at least 30 days following publication pursuant to the APA. This period provides notice of the regulatory action before regulated parties must comply.

“Major” rules cannot go into effect until 60 days after publication in the Federal Register or after Congress receives a report on the rule, whichever is later, pursuant to the APA.

If the rule is effective immediately it must meet an exception. Does the agency argue the rule:

• Meets a statutory exemption: The rule concerns the military or foreign affairs function of the United States, agency management or personnel, or relates to public property, loans, grants, benefits, or contract, which are exempt;
• Meets the “good cause” exemption: The agency shows that it would be “impracticable, unnecessary, or contrary to the public interest” pursuant to the APA;
• Reduces a regulatory burden: APA §553(d)(1) waives the 30-day waiting period after publication for substantive rules that relieve a restriction or grant an exemption to a regulated party.
• Or the rule is promulgated by the IRS: Thirty-day notice is likely not required for IRS regulations. Redhouse v. Comm’r, 728 F.2d 1249, 1253 (9th Cir. 1984).

If the rule is “major”:

Major rules are rules OMB decides are: (A) “Likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.” 5 USC § 804(2).

And the rule was promulgated in the last 60 days (or the last 60 days of the previous congressional session).

Then the rule may be subject to the Congressional Review Act. Congress may pass a joint resolution  and if the president signs it, the resolution prevents the rule from taking effect and blocks any rule that is substantially similar from being reissued.