On January 20, the new White House Chief of Staff Reince Priebus released a memorandum to agency and department heads announcing a freeze on new or pending regulations. The agencies and departments are asked to not send any regulation to the Office of the Federal Register until a Presidential appointee/designate reviews and approves it. The Office of Management and Budget (OMB) Director can make exceptions to the freeze for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise.” The freeze is similar to one put in place by President Obama upon his inauguration in 2009.
In addition, the White House requested the withdrawal of submissions to the Federal Register that have not yet been published. The memo also asks for the temporary postponement of rules that have already been published but have not yet taken effect. The effective date of those rules would be postponed “for 60 days from the date of this memorandum …for the purpose of reviewing questions of fact, law, and policy they raise.” Both the withdrawn and postponed rules would be subject to the same exceptions for emergencies and urgent circumstances as for new rules. Agency and department heads are instructed to consider proposing for notice and comment further delays beyond the 60-day period, or further notice-and-comment rulemaking.
The memo specifically excludes “any regulations subject to statutory or judicial deadlines,” and asks that such exclusions be identified to the OMB Director. Agency and department heads are also asked to notify the OMB Director of any regulations that should be excluded from the freeze because they “affect critical health, safety, financial, or national security matters, or for some other reason.”
As we have discussed on this blog, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which modernizes the Toxic Substances Control Act (TSCA), requires that EPA promulgate a variety of implementing regulations. EPA has already proposed and finalized several of these implementing rules in recent months. Most of these actions should be excluded from the announced regulatory freeze, as they are subject to deadlines specified in the Lautenberg Act. However, while EPA had planned to develop a proposed rule on new fees by mid-December, that rule has yet to be released and is not subject to a statutory deadline. EPA had set finalizing the fees rule as a goal for mid-June 2017, but the final rule is also not required by statute, although the agency’s First Year Implementation Plan notes that
“authority to require fees will be needed ASAP.”
The regulatory freeze seems likely to affect the nanoscale reporting and recordkeeping rule which was finalized earlier this month. Although that rule’s effective date is not until May 12, 2017, EPA may consider delaying the effective date or re-opening the rulemaking process to review questions of fact, law, or policy.