By: Zhoudan Xie and Sofie Miller
Download this Regulatory Insight (PDF)
This Regulatory Insight highlights ten important regulatory and deregulatory themes that garnered attention—and changed the regulatory landscape—in 2017. Regulatory policy was a focal point of 2017, and notable executive orders, rulemaking, and legislation all contributed to this theme.
1. President Trump's Deregulatory Agenda
2. Unified Agenda of Regulatory and Deregulatory Actions
3. Disapproval of Rules Under the Congressional Review Act
4. The Accountability of the CFPB
5. Review of WOTUS Rule
6. Repeal of the Clean Power Plan
7. Midterm Evaluation of the CAFE Standards
8. Revocation of Net Neutrality Rules
9. Payday Loan Rule
10. Regulatory Approaches for New Technologies
1. President Trump’s Deregulatory Agenda
On January 30, 2017, President Trump signed Executive Order 13771 on “Reducing Regulation and Controlling Regulatory Costs.” The EO requires agencies to eliminate two regulations for every new one issued (known as “one-in-two-out” or “two-for-one”), and limits the total incremental cost of all new regulations, including repealed ones, to $0 for fiscal year 2017.
In response to this EO, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) issued guidance for agencies to clarify the scope and implementation of its provisions. The OMB guidance specifies that the EO applies to “significant regulatory actions” issued by executive agencies (i.e. excluding independent agencies) and that regulatory costs should be measured as the opportunity cost to society as defined in Circular A-4, and it clarifies that non-significant rules can be considered “deregulatory actions” to offset new significant rules.
While not as newsworthy, President Trump signed Executive Order 13777 on February 24, titled “Enforcing the Regulatory Reform Agenda.” This EO provides direction for implementing EO 13771 by requiring heads of regulatory agencies to designate an agency official as the Regulatory Reform Officer (RRO) to oversee the implementation of regulatory reform initiatives and policies, and form a Regulatory Reform Task Force to make recommendations for agency regulatory reforms. In late April, OMB also issued guidance on EO 13777. The guidance clarifies the EO’s requirements and establishes minimum performance indicators for agencies’ annual performance plans.
2. Unified Agenda of Regulatory and Deregulatory Actions
Since 1978, federal agencies have been required to publish agendas of regulatory and deregulatory activities. The Unified Agenda of Regulatory and Deregulatory Actions is a semiannual compilation of agencies’ agendas published in the spring and fall; the Trump administration’s Spring and Fall 2017 Agendas provide the public with an important glimpse of the administration’s regulatory (and deregulatory) priorities for the next year. It appears that the Unified Agenda will be the vehicle that the Administration uses to track compliance with the requirements of the EOs above.
In contrast to the Spring 2017 Agenda, the Fall 2017 Agenda shows which planned agency actions are regulatory or deregulatory, allowing observers to know how the Trump administration plans to implement its deregulatory policies. The Fall 2017 Agenda includes hundreds of deregulatory activities, including 83 planned deregulatory activities from the Department of Transportation (DOT) and 54 from the Department of Health and Human Services. Though many agencies list no regulatory activities that qualify for offsets under EO 13771, they do list a number of actions that are fully or partially exempt from those requirements.