The Nickel Report

On Friday, January 20, President Trump’s Chief of Staff Reince Priebus issued a memorandum to executive branch department and agency heads placing an immediate hold on federal regulations that are under development.

This regulatory “freeze” has become standard practice in recent Administrations. In 2009, President Obama issued a temporary halt to regulations being developed by the outgoing George W. Bush Administration. In 2001, President Bush issued a temporary stay on regulations under development by the outgoing Clinton Administration. New presidents want to ensure that federal regulations reflect their policies and priorities.

Reviewing the Trump, Obama, and Bush regulatory freezes together, the language is in many respects identical. The Trump regulatory freeze directs the following:

• No regulation is to be sent to the Office of Federal Register (OFR) “until a department or agency head appointed or designated by the President after noon on January 20, 2017, reviews and approves the regulation.” Exception is made for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise” allowed by the Director or Acting Director of the Office of Management and Budget (OMB). The Obama freeze was practically identical. The Bush freeze covered only emergency and urgent matters “relating to health and safety.”

• Regulations sent to the OFR but not yet published are to be immediately withdrawn, subject to the above exceptions.

• The effective date of regulations published in the Federal Register that have not yet taken effect is to be postponed 60 days, as permitted by law, and again subject to the above exceptions, for review of questions of “fact, law, and policy.” This is a slight change from prior freeze memoranda. The Obama freeze specified review only of questions of “law and policy.” The Bush freeze did not specify a scope of review. If a regulation raises “substantial questions of law or policy,” agencies are to notify the OMB and take further action in consultation with the OMB Director. If not, no further action is required.

Regulations that are subject to statutory or judicial deadlines are to be excluded from the above directions.

The regulatory freeze applies not only to final rules, but also 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.” This language has been consistent through the prior two freezes as well.

However, the Trump memorandum also specifies that the freeze includes any “guidance document,” which it defines (by reference to a definition in Executive Order 13422) to mean “an agency statement of general applicability and future effect, other than a regulatory action, that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”

At a press conference on January 23, President Trump said, “We are going to be cutting regulation massively. Now we are going to have regulation and it will be just as strong and just as good and just as protective of the people as the regulation we have right now. The problem with the regulation you have right now is that you can’t do anything. We think we can cut regulations by 75 percent. Maybe more.”

That would be a stark change in government. For now, the Trump Administration has begun with a firm but conventional step.