Memorandum: Regulatory Freeze Pending Review. January 20, 2021. Memorandum for the Heads of Executive Departments and Agencies, from Biden Chief of Staff Ronald Klain at the direction of President Biden. Published in the Federal Register at 86 FR 7424 (January 28, 2021). Sets varied temporary stops on implementation of "midnight rules" issued by the Trump administration, to give the Biden administration time to review those regulations and policies. It covers "rules," which includes both regulations and significant agency policies.
General freeze on proposing or issuing rules
Paragraph 1 of the Regulatory Freeze memorandum asks all heads of executive departments and agencies to "propose or issue no rule in any manner — including by sending a rule to the Office of the Federal Register (the "OFR") — until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule."
Specific directions for rules already sent to the Office of the Federal Register or otherwise published or issued
Paragraphs 2 and 3 of the Regulatory Freeze memorandum provide directions on actions the agencies should take for rules at specific stages in the rule process.
Paragraph 2 - Rules sent to the Office of the Federal Register but not yet published in the Federal Register: "immediately withdraw them from the OFR for review and approval as described in paragraph 1, subject to the exceptions described in paragraph 1. This withdrawal must be conducted consistent with OFR procedures."
Paragraph 3 - Rules that have been published in the Federal Register, or policies otherwise issued, that have not yet taken effect:
- Consider postponing the rules' effective dates for 60 days from January 20, 2021, "for the purpose of reviewing any questions of fact, law, and policy the rules may raise."
- Consider opening a 30-day comment period during the 60-day delay for rules postponed in this manner, "to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules."
- "As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period."
Then after the 60-day delay of rules postponed in this manner:
"a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and
b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director."
Exceptions to the freeze protocol
The memorandum also establishes exceptions to these general postponement protocols, for:
- "emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise," (paragraph 1 of the memorandum)
- "any rules subject to statutory or judicial deadlines" (paragraph 4 of the memorandum); and
- any other rules regarding which the OMB Director concurs with the agency that should otherwise be excluded from the general delay (paragraph 5 of the memorandum)
Impact on Certain Regulations and Policies Issued under the Trump Administration
Impact on DHS proposal to eliminate duration of status. When the Biden Administration issued its Regulatory Freeze memorandum on January 20, 2021, DHS had not yet sent a final duration of status elimination rule rule to OMB for review or to the Office of the Federal Register for publication. Paragraph 1 of the Regulatory Freeze memorandum likely means that no final rule could advance "until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule." In the meantime, NAFSA will post any available updates on our Proposal to Replace Duration of Status page.
Impact on employment-based regulations. For the impact of the Regulatory Freeze memo on recent employment-based regulations and policies, see NAFSA's page: Recent Employment-Based Changes and Proposals.
Also review NAFSA's page on the Fall 2020 Agency Regulatory Agenda to assess how the Regulatory Freeze memo might affect the many other rules at various stages of development.