By Kathryn S. Beard, J.D. and Pamela C. Maloney
In a January 20, 2017 memorandum to the heads of executive departments and agencies, Reince Priebus, President Donald Trump’s chief of staff communicated Trump’s plan to manage the federal regulatory process while the Administration is in its early days. With exceptions for regulations subject to statutory or judicial deadlines, and for emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, there is an immediate regulatory freeze pending review in effect. The freeze affects regulations and guidance documents that (1) have not yet been sent to the Office of the Federal Register (OFR); (2) have been sent to the OFR but not yet published in the Federal Register; and (3) have been published in the Federal Register but have not yet taken effect. Although the imposition of a regulatory freeze is common when a new administration takes office, this freeze is broader in that it extends to agency guidance documents as well.
The freeze does not apply to independent agencies like the Consumer Product Safety Commission; but it does apply to pending actions by the National Highway Traffic Safety Administration, including the "quiet car" safety standard scheduled to take effect on February 13, 2017 (81 FR 90416, December 14, 2016).
According to the memo, regulations that have not yet been sent to the OFR should not be sent until Trump’s appointed or designated department or agency head, or his or her designee, reviews and approves the regulation. Regulations that have been sent to the OFR, but have not yet been published, should be withdrawn from the OFR immediately consistent with OFR procedures, and then similarly should be reviewed and approved before being resubmitted for publication.
For regulations that have been published in the Federal Register, but which have not yet taken effect, a temporary 60-day postponement of the effective date, as permitted by law, has been imposed—the earliest effective date for such regulations will now be March 21, 2017. The purpose of the postponement is to review questions of fact, law, and policy raised by each regulation.
The memorandum further directs agency and department heads to consider proposing further notice-and-comment rulemaking for regulations that have been delayed to review questions of fact, law, or policy. The memorandum further provides that after review, regulations which raise substantial questions of law or policy require notification to the Office of Management and Budget (OMB) and the taking further action, as appropriate, in consultation with the OMB Director.
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