Enforcing the Regulatory Reform Agenda: Bureaucracy Designed to End Bureaucracy

ComplianceOn February 24, 2017, President Trump issued an Executive Order–“Enforcing the Regulatory Reform Agenda–that creates mechanisms designed to reduce bureaucracy.  The Order, which advances the president’s campaign agenda of diminishing regulatory burdens, requires the head of each federal executive agency to designate a Regulatory Reform Officer (RRO) and to establish a “Regulatory Reform Task Force.”  The RRO will implement regulatory reform initiatives and policies, while the Task Force will evaluate existing regulations and make recommendations to the agency head regarding repeal, replacement, or modification of 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(ii) are outdated, unnecessary, or ineffective;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 the Paperwork Reduction Act (44 U.S.C. § 3516 note) or the guidance issued pursuant to that provision, with a particular emphasis on government requirements for information that is not publically available, transparent, or reproducible; or

(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

The Task Forces are on a relatively tight schedule, being required to report their progress to the agency head within 90 days of the Order’s issuing date.  They will be assisted by the Director of the Office of Management and Budget, who is to issue guidance on reforms within 60 days of the issuing date of Order.  The Order also provides for waivers for agencies that issue very few regulations.

Agencies will presumably use the new Task Forces’ recommendations to help them fulfill the mandate of Executive Order 13771.  More popularly known as the “two-out, one-in” order and signed on January 30, 2017, that EO instructs agencies to identify two regulations for potential repeal for every one regulation issued, and caps the net incremental costs of new regulations.  If EO 13771 stands–it has been challenged in court as contrary to the Administrative Procedure Act–many agencies will have a significant long-term incentive to implement recommendations for repeal.