Trump White House Directs Agencies To Start Lining Up Regulations For Chopping Block

Image courtesy of Mike Matney

In January, President Trump signed an executive order dictating that for every new federal regulation put in place, at least two existing regulations would need to be removed. Today, the President took things even further, directing these agencies to start thinking now about which rules should be eliminated.

According to the order (full text of which is below), affected federal agencies must establish a Regulatory Reform Task Force within the next 60 days to look at the existing regulations and “identify candidates for repeal or modification.”

The focus, says the Trump administration, is getting rid of “costly and unnecessary regulations,” but exactly what constitutes a “costly” rule?

The order itself is remarkably vague, only saying that a regulation should be flagged if it “eliminate[s] jobs, or inhibit[s] job creation;” is “outdated, unnecessary, or ineffective,” or imposes “costs that exceed benefits.”

Is Trump talking about the cost for the agency to administer these rules? The cost on industry to comply? Both? How does one properly measure the benefit of a saved life — or potable water, or products that don’t poison, burn, or strangle people — versus its impact on the bottom line of a company?

In his comments at the signing — where he was joined by CEOs of companies, including Lockheed-Martin, Dow Chemical, Archer Daniels Midland, Merck, and Johnson & Johnson — the President mentioned potential harms to consumers only once, when said there should be a simple test for whether or not a regulation is vital: “Does it make life better or safer for American workers or consumers?”

Otherwise, President Trump’s focus appeared to be primarily on easing restrictions on industry by eliminating “all regulations that are unnecessary, burdensome and harmful to the economy, and harmful to the creation of jobs and business.”

“We will stop punishing companies for doing business in the United States,” explained Trump. “It’s going to be absolutely just the opposite. They’re going to be incentivized to do business in the United States.”

It’s currently unclear whether this Task Force requirement applies to all federal agencies, or whether independent agencies — like the Consumer Financial Protection Bureau, Federal Communications Commission, Securities and Exchange Commission, Consumer Product Safety Commission, Federal Trade Commission, Environmental Protection Agency, Federal Reserve Board of Governors, and others — are not included.

The previous two-out, one-in executive order did not apply to these bodies, though the heads of the independent agencies could choose to abide by the spirit of the order. The only agencies explicitly mentioned in today’s order are the federal executive agencies — those, like Defense, Education, Agriculture, Commerce, Treasury, Energy, Transportation, with cabinet-level representation — but that does not necessarily exclude the independents.

We’ve asked the White House for clarification with regard to this matter but have not yet received a reply.

Consumer advocacy group Public Citizen, which is currently suing over that previous executive order, contends that today’s declaration “will install Trump’s hand-picked deregulatory henchmen in agencies throughout our government and empower them to hack away at critical public protections.”

Public Citizen’s Amit Narang says that today’s order puts the interests of business above taxpayers.

“These task forces are about carving out special favors for powerful corporations that already are sending the administration wish lists of public protections to repeal,” claims Narang. “The safeguards targeted by big business include the clean water rule, climate change measures, updates to overtime pay for millions of hardworking Americans, incentives to keep corporations from offshoring income to avoid paying taxes, disclosures of unequal pay based on gender, net neutrality, and much-need transparency on the gap between CEO and average worker pay.”

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Full text of today’s executive order:

EXECUTIVE ORDER

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ENFORCING THE REGULATORY REFORM AGENDA

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to lower regulatory burdens on the American people by implementing and enforcing regulatory reform, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.

Sec. 2. Regulatory Reform Officers. (a) Within 60 days of the date of this order, the head of each agency, except the heads of agencies receiving waivers under section 5 of this order, shall designate an agency official as its Regulatory Reform Officer (RRO). Each RRO shall oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. These initiatives and policies include:

(i) Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs), regarding offsetting the number and cost of new regulations;

(ii) Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), as amended, regarding regulatory planning and review;

(iii) section 6 of Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), regarding retrospective review; and

(iv) the termination, consistent with applicable law, of programs and activities that derive from or implement Executive Orders, guidance documents, policy memoranda, rule interpretations, and similar documents, or relevant portions thereof, that have been rescinded.

(b) Each agency RRO shall periodically report to the agency head and regularly consult with agency leadership.

Sec. 3. Regulatory Reform Task Forces. (a) Each agency shall establish a Regulatory Reform Task Force composed of:

(i) the agency RRO;

(ii) the agency Regulatory Policy Officer designated under section 6(a)(2) of Executive Order 12866;

(iii) a representative from the agency’s central policy office or equivalent central office; and

(iv) for agencies listed in section 901(b)(1) of title 31, United States Code, at least three additional senior agency officials as determined by the agency head.

(b) Unless otherwise designated by the agency head, the agency RRO shall chair the agency’s Regulatory Reform Task Force.

(c) Each entity staffed by officials of multiple agencies, such as the Chief Acquisition Officers Council, shall form a joint Regulatory Reform Task Force composed of at least one official described in subsection (a) of this section from each constituent agency’s Regulatory Reform Task Force. Joint Regulatory Reform Task Forces shall implement this order in coordination with the Regulatory Reform Task Forces of their members’ respective agencies.

(d) Each Regulatory Reform Task Force shall evaluate existing regulations (as defined in section 4 of Executive Order 13771) and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law. At a minimum, each Regulatory Reform Task Force shall attempt to identify regulations that:

(i) eliminate jobs, or inhibit job creation;

(ii) are outdated, unnecessary, or ineffective;

(iii) impose costs that exceed benefits;

(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision, in particular 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; or

(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

(e) In performing the evaluation described in subsection (d) of this section, each Regulatory Reform Task Force shall seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations.

(f) When implementing the regulatory offsets required by Executive Order 13771, each agency head should prioritize, to the extent permitted by law, those regulations that the agency’s Regulatory Reform Task Force has identified as being outdated, unnecessary, or ineffective pursuant to subsection (d)(ii) of this section.

(g) Within 90 days of the date of this order, and on a schedule determined by the agency head thereafter, each Regulatory Reform Task Force shall provide a report to the agency head detailing the agency’s progress toward the following goals:

(i) improving implementation of regulatory reform initiatives and policies pursuant to section 2 of this order; and

(ii) identifying regulations for repeal, replacement, or modification.

Sec. 4. Accountability. Consistent with the policy set forth in section 1 of this order, each agency should measure its progress in performing the tasks outlined in section 3 of this order.

(a) Agencies listed in section 901(b)(1) of title 31, United States Code, shall incorporate in their annual performance plans (required under the Government Performance and Results Act, as amended (see 31 U.S.C. 1115(b))), performance indicators that measure progress toward the two goals listed in section 3(g) of this order. Within 60 days of the date of this order, the Director of the Office of Management and Budget (Director) shall issue guidance regarding the implementation of this subsection. Such guidance may also address how agencies not otherwise covered under this subsection should be held accountable for compliance with this order.

(b) The head of each agency shall consider the progress toward the two goals listed in section 3(g) of this order in assessing the performance of the Regulatory Reform Task Force and, to the extent permitted by law, those individuals responsible for developing and issuing agency regulations.

Sec. 5. Waiver. Upon the request of an agency head, the Director may waive compliance with this order if the Director determines that the agency generally issues very few or no regulations (as defined in section 4 of Executive Order 13771). The Director may revoke a waiver at any time. The Director shall publish, at least once every 3 months, a list of agencies with current waivers.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP
THE WHITE HOUSE,
February 24, 2017.