Visitors to the Securities and Exchange Commission’s website will find a pull-down menu entitled “Regulation”. One of the items on that menu has the oxymoronic title of “Interim Final Temporary Rules”. How can a rule be both interim (meaning provisional or for an intervening time period) and final (meaning, coming at the end)? The nomenclature makes no sense, but there is at least an explicable rationale for the terminology.
The Administrative Procedure Act generally requires agencies to publish notice of proposed rulemaking in the Federal Register. 5 U.S.C. § 553(b). There is a “good cause” exception to this requirement. Thus, an agency may adopt a rule without publication of a proposed rule when “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). Rules adopted pursuant to this “good cause” exception generally become effective upon publication in the Federal Register. Usually, however, an agency will provide a post-publication public comment period; thereby, leaving the door open to a future revision to the rule.
For example, the SEC recently adopted an “interim final amendment” to Form 10-K in response to Section 72001 of the Fixing America’s Surface Transportation (“FAST”) Act. Section 72001 gave the SEC 180 days to issue regulations permitting issuers to submit a...
