Key Provisions

Potential Impact

Important Links

January 30, 2017 Presidential Executive Order: Reducing Regulation and Controlling Regulatory Costs

Whenever an executive department or agency (“agency”) publicly proposes for comment or promulgates a new regulation, it generally must identify at least two existing regulations to be repealed.

Incremental costs of the new regulation must be offset by the elimination of at least two existing regulations and their associated costs.

The total incremental cost of all new regulations, including repealed regulations, during the current fiscal year must be no greater than zero, subject to exceptions.

Beginning with FY 2018, the OMB will establish an incremental amount of new regulation-related costs per agency (taking into account repeals) that generally may not be exceeded without OMB approval.

The Order by its terms does not limit the agencies to which it applies. This contrasts with the January 20, 2017 Regulatory Freeze Memorandum which does not apply to independent regulatory agencies, such as the FRB, OCC, FDIC, SEC and CFTC. The Office of Information and Regulatory Affairs published guidance stating that the Order does not apply to independent regulatory agencies but encourages those agencies to “identify existing regulations that, if repealed or revised, would achieve cost savings that would fully offset the costs of new significant regulatory actions.”

The Order will impose a significant deterrent to future rulemaking, as agencies will have to weigh the relative importance and costs of proposed and existing rules. The tone set by the Order is also likely to impact the actions of agencies to which it may not technically apply.

One thing to watch is the potential that the Order pushes agencies toward regulation through enforcement, which raises a different set of issues.

The Order will also place greater significance on the process under which agencies and the OMB evaluate costs associated with proposed and existing regulations.

In developing regulatory agendas, including repeals of existing regulations, agencies will have to consider and balance a variety of administrative law challenges and EO requirements.

Executive Order

Feb. 2 OIRA Guidance Regarding the Executive Order

January 20, 2017

Memorandum from Reince Priebus, Assistant to the President and Chief of Staff, to Heads of Executive Departments and Agencies regarding Regulatory Freeze Pending Review

The Memorandum provides the following guidance regarding the Administration’s plan to ensure that the President’s appointees or designees have the opportunity to review new or pending regulations.

The Memorandum is directed at substantive rules of general applicability and not at orders in individual administrative proceedings. It also applies to any agency statement of general applicability and future effect that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.

The Memorandum applies to Executive Departments but not to independent regulatory agencies, which are defined to include the FRB, OCC, FDIC, SEC and CFTC. Subject to certain exceptions, no regulation shall be sent to the Office of the Federal Register (OFR) until a department or agency head appointed or designated by the President reviews and approves the regulation.

Subject to certain exceptions, any regulations that have been sent to the OFR but not yet published in the Federal Register are to be immediately withdrawn and subject to the review process set forth above.

Subject to certain exceptions, in the case of regulations that have been published in the Federal Register but have not taken effect, as permitted by applicable law, the department or agency is generally directed to temporarily postpone their effective date for 60 days for the purpose of reviewing questions of fact, law, and policy they raise. In certain circumstances the Memorandum suggests that a department or agency should consider proposing for notice and comment a rule to delay the effective date for an addition period of time or proposing a further notice and comment rulemaking.

The Memorandum is intended to give the new Administration an opportunity to determine whether to proceed with proposed regulations or whether to allow final regulations that have been published in the Federal Register that are not yet effective to become effective.

The Memorandum will most likely be effective in situations involving regulations that have not yet been published in the Federal Register.

The Memorandum’s impact in other circumstances is likely to vary based on the timing status of the particular regulatory action.