Introduction
President Trump signed his second executive order (EO) aimed at government-wide regulatory practice Friday afternoon. This one is not as dramatic as EO 13771, signed on January 30, 2017, which required agencies to offset the costs of new regulations by removing existing burdens. The new order, titled “Enforcing the Regulatory Reform Agenda,” establishes mechanisms and provides direction for implementing the Trump administration’s previous order, as well as other principles. In particular, it requires heads of regulatory agencies to 1) designate an agency official to be the Regulatory Reform Officer (RRO), responsible for overseeing implementation of regulatory reform initiatives and policies; and 2) form a Regulatory Reform Task Force to make recommendations for agency regulatory reforms. It also provides guidance for those recommendations.
Reinforces bipartisan principles
A positive sign that the president appreciates the value of long-standing bipartisan principles is that the order specifically directs the RROs to enforce the regulatory procedures and policies that Presidents Clinton and Obama put in place, as well as his own. These include analysis of regulatory benefits and costs, and retrospective review of regulatory impacts.
Regulatory Policy Officer and Regulatory Reform Officer?
There could be some confusion as to the relationship between the person designated as Regulatory Reform Officer and the person designated as “Regulatory Policy Officer (RPO)” pursuant to President Clinton’s EO 12866. The new EO specifies that both are to serve on the agency’s Regulatory Reform Task Force, and the order doesn’t seem to preclude the possibility that the RRO and RPO could be the same person (which would seem logical).
Regulatory Reform Task Forces
Each agency’s Regulatory Reform Task Force will be responsible for evaluating existing regulations and recommending to the agency head which rules should be repealed, replaced, or modified pursuant to EO 13771 which includes the “one-in, two-out” regulatory requirement. Consistent with the president’s focus on jobs, the new order directs the task forces to prioritize review of regulations that “eliminate jobs, or inhibit job creation.” They should also identify regulations that “are outdated, unnecessary, or ineffective; impose costs that exceed benefits; [or] create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies.”
Target regulations with non-transparent justifications and those driven by rescinded executive orders
Two other criteria for review are quite interesting. The new order directs agency task forces to look particularly at “those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility,” which may be aimed at Environmental Protection Agency regulations that have long frustrated the regulated community. It also focuses the task forces’ attention on rules that “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” This language may be aimed at regulations developed in response to President Obama’s orders regarding immigration, gender discrimination, and worker pay.
The clock is ticking
The task forces have 90 days in which to report to their respective agency heads on the progress of their efforts to identify regulations for repeal, replacement, or modification and to improve how regulatory reform initiatives and policies are implemented in general. Thereafter, each agency head is responsible for setting deadlines for progress reports. Agencies will have to scramble to designate their RROs and form their task forces to meet this short deadline.