February 8, 2017

The effects of President Trump’s swearing-in on the federal regulatory environment continue to be felt.

On January 20, White House Chief of Staff Rence Priebus sent a directive to all federal agencies directing them to (a) stop sending regulations to the Office of the Federal Register until a Trump appointee can approve them; (b) pull back any regulations already sent to the OFR but not yet printed in the Register; and (c) extend the effective date of any final regulations already published but not yet effective for at least 60 days so they can be reviewed by Trump appointees.

As implemented by the Office of Management and Budget in a January 24 memo, there are two exceptions to the regulatory freeze:

First, exclude from those actions any regulations “subject to statutory or judicial deadlines.” These are regulations where performing the otherwise required review actions would endanger compliance with an operative statutory or judicial deadline. For example, agency civil monetary penalty adjustments that were due this month and were not significant regulatory actions under EO 12866 likely fall within this exception. After you have identified such regulations, please contact your OIRA Desk Officer with a list of those regulations as well as a brief explanation of your determination that provides a reference to the statutory or judicial deadline.

Second, the Freeze Memo authorizes the Director or Acting Director of the Office of Management and Budget to make exceptions from the Freeze Memo’s requirements under paragraphs 1-3 “for emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise.” Please send your OIRA Desk Officer a list of such regulations, if any; the type of regulatory action each regulation is; which paragraphs of the Freeze Memo those regulations should be excepted from; and a brief explanation for each such regulation of the emergency situation or urgent health, safety, financial, national security, or other matter that forms the basis of the requested exception. The Office of Management and Budget will review your justification promptly and provide further guidance.

Team ETW gets up at the crack of dawn each day and reads the Federal Register so you don’t have to. So far, it appears that the U.S. Department of Transportation has extended the effective date of four final rules published in December 2016 that had effective dates between January 27 and February 13, 2017 – a NHTSA civil penalty inflation adjustment, the STB performance data rule, the FMCSA entry-level CMV training rule, and a NHTSA rule requiring electric cars to make some kind of noise so blind people can hear them.

The most controversial rule that has been published but is not yet effective is the Federal Highway Administration’s final rule establishing performance measures for National Highway System performance, which also establishes a greenhouse gas emission measurement that was not explicitly authorized in the statute (Republicans and Democrats disagree on whether it was implicitly authorized in other statutes). That final rule was published in the Federal Register on January 18, making it a real “midnight regulation” and is set to take effect on February 17. DOT has not yet published a notice in the Register extending the effective date.

Part of this may be confusion over the deadline in statue, which the OMB directive says can exempt rules from the Freeze Memo. Section 1203 of the MAP-21 law required USDOT to “promulgate a rulemaking that establishes performance measures and standards” within 18 months of the enactment of MAP-21. MAP-21 was enacted in July 2012, so the 18-month deadline came and went in January 2014. The proposed rule did not appear in the Federal Register until April 2016.

Since DOT already missed the statutory deadline by several years, it is uncertain whether or not the deadline provisions of the Freeze Memo apply.

Other recent rules that have already taken effect, if issued in the last seven months of the Obama Administration, could be subject to repeal by Congress under the Congressional Review Act if the House passes a resolution repealing the rule and if Senate Majority Leader McConnell (R-KY) wants to spend 10 hours of the Senate’s time considering the repeal resolution. Of the significant final rules that have taken effect and are subject to the CRA, almost all seem broadly popular. The only exceptions are the EPA/NHTSA greenhouse gas emission rule for heavy trucks and DOT’s rule forcing metropolitan planning organizations to consolidate across state lines.

While the GHG rule for heavy trucks does seem like a likely candidate for CRA repeal, it is important to note that the Senate has only found the time to debate one CRA repeal resolution so far, and if Democrats continue to demand the full 30 hours of around-the-clock debate on nominee after nominee, as they have this week, it may be hard to fit CRA repeals into the schedule. Some of these rules may be addressed by repeal provisions in the omnibus appropriations bill in April or in other legislation.