Elizabeth BuehlerRobert BurtonLorraine M. CamposPeter J. Eyre

Continuing his trend of fulfilling the promises set forth in his Contract with the American Voter, President Trump, on January 30, 2017, issued an Executive Order mandating the elimination of at least two existing regulations for every new regulation issued.  In particular, the order explains that “whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”  In this way, the Administration intends to offset “any new incremental costs associated with new regulations….” Notably, however, the definition of regulation does not include: (1) “regulations issued with respect to a military, national security, or foreign affairs function of the United States”; (2) “regulations related to agency organization, management, or personnel;” or (3) “any other category of regulations exempted by the Director.”

Though implementation guidance is forthcoming from the Director of the Office of Management and Budget’s (“OMB”), the order explains that, for fiscal year 2017, “the total incremental cost of all new regulations…to be finalized this year” cannot exceed zero, “unless otherwise required by law or consistent with” the OMB Director’s advice.  Moreover, beginning in fiscal year 2018, “and for each fiscal year thereafter, the head of each agency” must “identify, for each regulation that increases incremental cost, the offsetting regulations…and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation.”  According to the Order, agencies will not be permitted to exceed the total amount of incremental costs established by the OMB Director during the Presidential budget process for each fiscal year and only approved regulations – as the OMB Director identifies in the Unified Regulatory Agenda – will be issued.