White House Issues Interim Guidance Concerning its “2-for-1” Regulatory Order

On February 2, the OMB Acting Administrator of the Office of Information and Regulatory Affairs (OIRA) released a memorandum providing interim guidance for implementing President Trump’s January 30 Executive Order entitled “Reducing Regulation and Controlling Regulatory Costs.” Among other things, the memorandum clarifies that the January 30 Order—which was covered previously by InfoBytes here—(i) does not apply to agencies defined as an “independent regulatory agency” by 44 U.S.C. § 3502(5), which include the CFPB; (ii) applies only to significant regulatory actions that have an annual effect on the economy of at least $100 million or result in other material effects as defined in Executive Order 12,866; and (iii) applies only to significant regulatory actions issued between noon on January 20 and September 30, 2017.

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Groups Seek Injunction Blocking Trump’s “2-for-1” Regulatory Order

On February 8, three organizations—Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America—sued the Trump administration over the President’s recent Executive Order (as clarified by the OMB’s interim guidance issued on February 2), which directs agencies to identify two regulations for repeal for every rule written (covered in InfoBytes here). The action seeks to have the Executive Order declared unconstitutional and enforcement thereby stayed. Among other things, the complaint asserts that the President’s Executive Order unlawfully forces agencies to make decisions based on an “impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards.” To repeal “two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits,” Plaintiffs argue, “is arbitrary, capricious, an abuse of discretion, and not in accordance with law.” The case has been assigned to Judge Gladys Kessler of the U.S. District Court for D.C.

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President Issues Executive Order to Study the DOL’s Fiduciary Rule

On February 3, President Trump issued an Executive Memorandum directing the Department of Labor (DOL) to examine the Fiduciary Rule—an April 2016 DOL rule that expands the circumstances in which a person will be treated as a fiduciary under both ERISA and Section 4975 of the Internal Revenue Code by reason of providing investment advice to retirement plans and IRAs. In the memorandum, President Trump calls for an examination of the Fiduciary Rule to determine whether it (i) has harmed or is likely to harm investors; (ii) has resulted in dislocations or disruptions within the retirement services industry; and (iii) is likely to cause an increase in litigation and an increase in the prices that investors and retirees must pay to gain access to retirement services. If the Secretary of Labor makes any of these findings, the memorandum directs the Secretary of Labor to publish a proposed rule rescinding or revising the Fiduciary Rule. Initial compliance with the Fiduciary Rule is currently required by April 10, but the DOL has announced that it “will now consider its legal options to delay the applicability date as we comply with the President’s memorandum.”

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President Trump Issues Executive Order “Reducing Regulation and Controlling Regulatory Costs”

On January 30, President Trump signed an Executive Order aimed at reducing the “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations” and ensuring that such costs are “prudently managed and controlled through a budgeting process.” The measure requires all executive departments and agencies to cut two existing regulations for every new regulation they implement. The Order also establishes a regulatory budget of $0 for FY 2017—meaning that the total incremental cost of all new regulations, when adding the cost burden of any new regulation and then subtracting the cost savings of repealed regulations, can be no greater than $0. Thereafter, beginning in FY 2018, each agency will be required to provide the Office of Management and Budget (OMB) with its best approximation of the total costs or savings to be expected from any new regulations. To the extent such estimates predict an increase in that Agency or department’s “incremental regulatory costs,” such increase will need to be authorized by the OMB (or by congress via a new law).

Details concerning how the new budgeting process and cost-offsetting policy will be implemented are left to the Office of Management and Budget, which is directed to provide agencies with guidance. House Financial Services Subcommittee Chairman Tom Graves sent a January 30 letter to CFPB Director Richard Cordray, seeking clarification as to the Bureau’s stance on whether the Trump Administration’s January 20 “Regulatory Freeze” Memorandum—which is similarly directed at “executive agencies”—applies to the CFPB.

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