President Trump’s executive order requiring the repeal of two rules for every one promulgated is a bit of a red-herring when it comes to activities at agencies focused on safety such as the National Highway Traffic Safety Administration, Food and Drug Administration, and Consumer Product Safety Commission. The real regulatory burden often comes not from official rulemaking, with its due process protections and comment and cost benefit analysis, but from guidance, best practices and enforcement activities that lack those same checks and balances. For a variety of reasons, the safety agencies have favored guidance over regulation. Those guidances may not be technically enforceable, but they can have significant regulatory consequences that the 2 for 1 executive order does not address.

By way of example, NHTSA has issued autonomous vehicle performance guidelines outlining 15 best practices for manufacturers regarding the safe pre-deployment design and development and testing of automated vehicles prior to commercial sale or use on public roads. Avoiding any discussion of the legal enforcement of its guidance document, NHTSA made clear it has ample enforcement authority to address safety risks in automated cars under its existing statutory authorities. The agency guidance document states, “Where a fully automated (selfdriving) vehicle or other automated safety technology causes crashes or injuries, or poses other safety risks, the Agency will evaluate such technology through its investigative authority to determine whether the technology presents an unreasonable risk to safety.” It doesn’t take too much reading between the lines to understand the need to follow the guidance documents in developing new technology vehicles.

There are some other reasons why the two for one executive order won’t have much affect at the safety agencies. At the CPSC, very few $100 million rules have been issued over the entire life of the agency given that its enabling statute favors voluntary industry standards over mandatory rules. Indeed, many of the CPSC rules affecting product performance have been mandated by Congress and could not be repealed by the agency absent an act of Congress.