House Committee on Financial Services Chair Maxine Waters (D-CA) urged President-Elect Joseph Biden to issue a Presidential Memorandum that would temporarily suspend midnight rulemaking actions by the Trump administration. Representative Waters requested that the independent agencies, including the CFPB, the SEC, the OCC, the Federal Housing Finance Agency, the National Credit Union Administration, and the Federal Reserve Board, (i) not send proposed or final rules to the Office of the Register, (ii) withdraw unpublished rules in the Federal Register and (iii) postpone by at least 60 days the effective date of rules that have been published in the Federal Register, but have not yet taken effect.
Commentary
The term "midnight rulemaking" refers to the rush by an outgoing administration to adopt rules before a new administration comes into office. According to GAO, such rulemaking is quite common, but in some cases may reflect noncompliance with administrative law requirements. See, e.g., GAO Report on Federal Rulemaking (March 2018) at page 22 (finding that a significant percentage of midnight rulemakings at the end of the Obama administration did not comply with the Congressional Review Act, which contains additional procedural requirements applicable to "major rules," defined as including rules having an annual effect on the economy of $100 million or more).
There are a variety of ways in which a new President's administration can seek to undo rules adopted by a prior administration. See CRS Report: Can a New Administration Undo a Previous Administration's Regulation?
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