Temporary Rules

Every agency rule possesses a temporal dimension. Although agencies typically issue rules intended to remain in effect indefinitely, they also often issue temporary rules. These temporary rules reverse the default mechanism for policy continuation, making the rule self-terminating—meaning that it ceases to have legal effect upon expiration. Despite their widespread use, temporary rules have yet to be studied comprehensively as a regulatory phenomenon.

The Administrative Conference of the United States (ACUS) recently adopted Recommendation 2026-2, “Temporary Rules,” which is intended to address this gap and provide agencies with guidance on issuing, monitoring, and developing internal procedures for temporary rules.

My report informing this recommendation explored the historical uses of temporary lawmaking, tracing it back to the Roman Empire, Medieval England, and the Founding Era. The report’s findings demonstrated that rationales for using temporary laws in these historical contexts—responding to emergencies, testing new policies, and reaching political compromises—drove the use of temporary rules as the administrative state expanded throughout the 20th century.

Because the Administrative Procedure Act (APA), which establishes the baseline procedural requirements for agency rulemaking, neither explicitly restricts nor authorizes the use of temporary rules, agencies retain 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.

Meeting these legal standards, however, can be challenging. For example, agencies must not only justify the reasonableness of a rule’s 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 held that when agencies repeal a rule, they must adhere to the same procedural requirements as they do when issuing a rule.

Because a temporary rule encompasses two regulatory actions in one—issuance and subsequent repeal—agencies need to explain the rationale for both. Agencies often issue 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’s good cause exemption, which permits agencies to forgo notice and comment if doing so would be “impracticable, unnecessary, or contrary to the public interest.”

Agencies also issue temporary rules for other purposes that allow for full compliance with notice-and-comment requirements, such as promoting regulatory learning. In this context, agencies may include a sunset provision requiring retrospective review before the stated expiration date. A complete notice-and-comment process could also be possible if the regulatory deviation is expected and not emergency-driven.

Temporary rules have several benefits. They can increase 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 temporary rule designation, in which the Office will automatically remove the temporary rule from the Code of Federal Regulations. This designation relieves agencies of the burden of manually amending their regulations upon the expiration of the temporary rule, enhancing accuracy and efficiency.

Temporary rules can also offer 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 similar outcomes.

Despite these advantages, temporary rules present certain drawbacks. Agencies must allocate sufficient resources to monitor temporary rules and determine whether to extend, amend, repeal, or make them permanent. Inadequate monitoring can lead 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 regulatory uncertainty and hinder behavioral adjustments by regulated parties.

The report’s analysis also covers how states developed tailored policies on temporary rulemaking. A survey of statutory provisions on the use of temporary rules across all 50 states found 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’s comparative analysis demonstrates 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.

In Recommendation 2026-2, ACUS recommended that agencies explain in the preamble to a temporary rule why it should be effective only for a limited time, specify its effective period, and present a plan for monitoring it. ACUS also recommended 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.

ACUS addressed additional technical considerations for publishing temporary rules in the Federal Register and factors to determine whether to use Office of the Federal Register’s temporary rule designation with automatic removal.

Finally, ACUS encouraged the U.S. Congress to authorize agencies to issue temporary rules without the APA notice-and-comment requirements when granting specific emergency rulemaking authority.

These best practices can guide agencies in issuing temporary rules with greater precision while establishing the structured internal frameworks necessary for their oversight.

Eyal Lurie-Pardes is an attorney advisor at the Administrative Conference of the United States.