Pension & Benefits News Biden Administration orders regulatory freeze pending OMB review
Monday, February 22, 2021

Biden Administration orders regulatory freeze pending OMB review

By Pension and Benefits Editorial Staff

In a January 20, 2021 memorandum, Ronald A. Klain, the President Biden’s assistant and chief of staff, has directed the heads of executive departments and agencies to institute a regulatory freeze to allow new appointees and designees to review any new or pending regulations. The directive provides exceptions for emergencies or other circumstances that affect health, safety, environmental, financial, or national security matters. The Trump administration, the Obama administration, and the administration of President George W. Bush issued similar directives in the past. The memorandum also specifies that the term “regulation” applies to any “regulatory action” including all “guidance documents.”

For regulations that have been sent to the Office of the Federal Register, but have not yet been published in the Federal Register, the memorandum seeks their immediate withdrawal so that they can be reviewed and approved. For regulations that have been published in the Federal Register (or rules that have been issued in any manner) but have not yet taken effect, the memo seeks a temporary postponement of the effective date for 60 days and states that during the 60-day period, where appropriate, consideration should be given to opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules. Departments and agencies should consider proposing for notice and comment a rule to delay the effective date beyond the 60-day period where appropriate, according to the memo.

However, following the delay in effective date, no further action needs to be taken for rules that do not raise “substantial questions.” According to the memorandum, the Office of Management and Budget (OMB) must be notified about rules that raise significant policy or law concerns for further action.

The memo excludes any regulations that are subject to statutory or judicial deadlines. Executive departments and agencies are asked to notify the director of the OMB of any exclusions from the memo based on statutory or judicial deadlines, or of any regulations that should be excluded because of critical health, safety, financial or national security matters. The OMB director, which will conduct the regulatory review, also will determine whether any exclusions are appropriate under the circumstances.

Executive departments and agencies should continue to comply with any applicable executive orders with respect to regulatory management.

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