President Donald Trump’s first action after being sworn in as our 45th President of the United States was to order a freeze of all Obama Administration regulations that had not yet taken effect pending review.
Trump’s chief of staff, Reince Priebus, sent a memo to all department and agency heads that read:
The President has asked me to communicate to each of you his plan for managing the Federal regulatory process at the outset of his Administration. In order to ensure that the President’s appointees or designees have the opportunity to review any new or pending regulations, I ask on behalf of the President that you immediately take the following steps:
- Subject to any exceptions the Director or Acting Director of the Office of Management and Budget (the “OMB Director”) allows for emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise, send no regulation to the Office of the Federal Register (the “OFR”) until a department or agency head appointed or designated by the President after noon on January 20, 2017, reviews and approves the regulation. The department or agency head may delegate this power of review and approval to any other person so appointed or designated by the President, consistent with applicable law.
- With respect to regulations that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval as described in paragraph 1, subject to the exceptions described in paragraph 1. This withdrawal must be conducted consistent with OFR procedures.
- With respect to regulations that have been published in the OFR but have not taken effect, as permitted by applicable law, temporarily postpone their effective date for 60 days from the date of this memorandum, subject to the exceptions described in paragraph 1, for the purpose of reviewing questions of fact, law, and policy they raise. Where appropriate and as permitted by applicable law, you should consider proposing for notice and comment a rule to delay the effective date for regulations beyond that 60-day period. In cases where the effective date has been delayed in order to review questions of fact, law, or policy, you should consider potentially proposing further notice-and-comment rulemaking. Following the delay in effective date
a. for those regulations that raise no substantial questions of law or policy, no further action needs to be taken; and
b. for those regulations that raise substantial questions of law or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.
- Exclude from the actions requested in paragraphs 1 through 3 any regulations subject to statutory or judicial deadlines and identify such exclusions to the OMB Director as soon as possible.
- Notify the OMB Director promptly of any regulations that, in your view, should be excluded from the directives in paragraphs 1 through 3 because those regulations affect critical health, safety, financial, or national security matters, or for some other reason. The OMB Director will review any such notifications and determine whether such exclusion is appropriate under the circumstances.
- Continue in all circumstances to comply with any applicable Executive Orders concerning regulatory management.
As used in this memorandum, “regulation” has the meaning given to “regulatory action” in section 3(e) of Executive Order 12866, and also includes any “guidance document” as defined in section 3(g) thereof as it existed when Executive Order 13422 was in effect. That is, the requirements of this memorandum apply to “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking,” and also covers any agency statement of general applicability and future effect “that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”
This regulatory review will be implemented by the OMB Director. Communications regarding any matters pertaining to this review should be addressed to the OMB Director.
The OMB Director is authorized and directed to publish this memorandum in the Federal Register.
In November the final draft of regulations that laid out the requirements for the submission of state accountability plans under the Every Student Succeeds Act was approved. Those regulations were set to go into effect on January 30, 2017.
Since these regulations have been already published in the Federal Register they will be delayed at least 60 days. If Betsy DeVos is confirmed as Secretary of Education she could propose a rule delaying the regulations longer.
It’s unclear what will happen with these regulations after the pause period has ended.