Agencies’ rules and regulations surged during Barack Obama’s last year, helping create a Federal Register 20 percent larger than the prior record.
Bureaus and the former president rejoiced. However, the national election we just had has brought careerist bureaucratic priorities into severe conflict with a new president’s preferences.
The result seems unique and unprecedented; one can’t quite imagine the pace of executive orders cutting regulation and speeding construction projects, under, say, Jeb!
During the presidential campaign, Donald Trump promised a moratorium on regulations; that was issued January 24 (“Memorandum: Implementation of Regulatory Freeze“).
Then right after the election, Trump promised that for every rule agencies issued, they must eliminate two existing ones; that was implemented January 30 (“Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs“).
Proposed rules, of which there were 2,391 at year-end 2016, are on pause as a result. Also finalized rules that had yet to hit their effective date were put on hold, such as 30 Environmental Protection Agency rules listed in the shortest Federal Register I recall seeing.
A lot is happening: here’s some of what Trump can stop, alone and/or with Congress
Before the election, much attention was given to last-minute Obama regulations.
Last minute Obama rules can be stopped
As it happens, owing to the Congressional Review Act (CRA), Obama final rules issued within the concluding 60 “legislative days” of the 114th Congress can be individually stopped by a congressional “Resolution of Disapproval,” for Trump to sign. Ledge days are like dog years, so this means rules going back to mid-June.
There are actually hundreds of such rules subject to disapproval. Republicans have whittled the list down to five this week. If they elect to get more aggressive, here is a sample of notable rules in the CRA window or on the cusp that could potentially be stopped:
- The Department of Transportation’s quiet car rule (already subsidized into existence, now these vehicles must make noise; “Minimum Sound Requirements for Hybrid and Electric Vehicles“);
- Federal Aviation Administration rule on operation and certification of drones (must stay in line-of-sight, for example);
- National Highway Traffic Safety Administration rule on Lighting and Marking on Agricultural Equipment;
- Department of Agriculture school lunch and breakfast nutrition standards;
- Food and Drug Administration ban on certain antibacterial soaps;
- Centers for Medicare and Medicaid Services standards for long-term nursing care facilities and home health service providers;
- Department of Labor rules on paid sick leave for businesses that contract with the federal government,
- DoL slip/fall rules on walking/working surfaces;
- Various Department of Energy conservation rules on items like battery chargers, dehumidifiers dishwashers, hearth products, fans, computers, pre-fab housing; stand-up heaters
- Certain EPA rules on methane emission;
- Environmental Protection Agency cross-state ozone pollution rule;
- EPA/DoT fuel economy standards for vehicles;
- Certain EPA landfill/solid waste rules;
- Department of Interior’s Office of Surface Mining Reclamtion and Enforcement’s “Stream Protection Rule” on coal.;
- The Federal Communications Commission’s rule on Protecting the Privacy of Customers of Broadband and Other Telecommunications Services;
- Department of Housing and Urban Development’s rule on “Instituting Smoke-Free Public Housing”;
- The Department of the Interior’s rule on exploratory drilling and operations on the Arctic outer continental shelf.
This is just a sample of the items potentially in play. I’ve got a list of over 200 here.
It’s inside baseball, but a new legal interpretation holds that rules going back many years are actually subject to resolutions of disapproval because of a sweeping failure by agencies to follow technical reporting requirements that formally initiate the 60-day clock.
Perhaps that can be tested legally via businessmen who’ve been punished for “violating” regulations that were technically invalid.
But to expect Congress to get aggressive on that interpretation, it would need to show intensity in addressing rules already known to be subject to overturn, likely more than what I listed above.
CRA resolutions consume floor debate time (however, that could be truncated), so there are only likely to be a handful. The House-passed measure to “bulk process” them, the Midnight Rules Relief Act, will not pass the Senate.
If Congress out of convenience or necessity downplays CRA disapprovals, Obama’s wager that he could issue a flurry of last minute rules and get away with them was sound.
But Mr. Trump has more options, as his regulatory freeze and his “2-for-1” approaches show.
Anything at the “proposed rule” stage can be stopped
We noted that in the pipeline year-end 2016 were 2,391 rules, to which Obama added 156 more between New Year’s and January 20. Trump boasted about “stopping 70 % of rules”: one interpretation of that is that he meant it in this narrow sense, rather than “getting rid” of the existing body of regs. But that should be a priority too.
Trump’s executive order directed ordered agencies to stop issuing rules, which would seem to incorporate both these and the writing of new ones. Notable proposed rules include:
- The Consumer Financial Protection Bureau rule on payday and vehicle title loans;
- The Federal Railroad Administration’s “Train Crew Staffing” rule seeking a two-engineers-on-a-train mandate;
- DoT’s Federal Motor Carrier Safety Administration’s anticipated rule on “Heavy Vehicle Speed Limiters“;
- DoT’s “Rear Seat Belt Reminder System“;
- National Highway Traffic Safety Administration on vehicle-to-vehicle (V2V) communications standardization.
Agency “guidance documents” or “memoranda” can be stopped
Often agencies don’t issue rules, but “interpretations” or “guidance.” Sometimes businesses legitimately want these; other times they quack like a regulatory duck. Recent guidance has included:
- Department of Labor “administrator’s interpretation” on independent contractors (who may get reclassified as “employees”);
- DoL administrator’s interpretation on franchising/joint employment;
- National Highway Traffic Safety Administration proposed guidelines on automated vehicles “to speed the delivery of an initial regulatory framework and best practices”;
- NHTSA’s “commonsense guidelines” on altering smartphones to create a “Driver Mode” to purportedly “help designers of mobile devices build products that cut down on distraction on the road”;
- Federal Highway Administration guidance on “vehicle to infrastructure” (V2I) communications that poses some considerable problems.
- A Consumer Financial Protection Bureau “Bulletin” on Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act that limted the ability of automobile dealers to offer discounts
Agencies like FCC in the wake of net neutrality, and CFPB in the wake of Dodd-Frank will be increasingly fond of guidance; I’ve taken to calling it regulatory dark matter, and Congress has become concerned about the phenomenon. Trump can say no to it, and he took the first step by incorporating guidance into his regulatory freeze last week.
Trump can refuse to enforce certain rules, “pen and phone” style.
It is unclear what Trump will see as parameters here. It will be highly interesting.
Congress can de-fund agency initiatives, especially in coordinating with Trump.
When Sen. Ted Cruz wanted to stop Obamacare, a federal government shutdown happened. Nowadays, a the government shutdown is not the same prospect it once was.
Some big rules are beyond the reach of Congress’s CRA window for a resolution of disapproval, but important to members and to Trump. In regard to these latter two highlights – non-enforcement or de-funding — examples of targets might include:
- EPA’s Clean Power Plan;
- EPA’s Waters of the United States rule;
- DOT/FAA vaping ban on planes (“Use of Electronic Cigarettes on Aircraft“);
- DoL overtime rule (in legal challenge);
- FDA’s declaration of authority over eCigarettes;
- FDA’s serving size regulations for food items, even breath mints; “Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion“;
- The Federal Communications Commission’s net neutrality rule.
It’s not known whether or how such rules will be targeted, and this is just a sample. Best is for Congress to legislate to overturn, but Senate votes for such will fall short.
Finally, apart from Trump’s moratoria and these specific items above, are the regulatory process reforms that would deal with future rulemaking
We noted the Midnight Rules Relief Act already passed in the 115th Congress. The House has also passed:
- The REINS Act (that stands for “Regulations from the Executive In Need of Scrutiny”), to force Congress to approve the most costly among new rules (rather than have to get up on their hind legs to disapprove them, as under current law, the CRA).
- The Regulatory Accountability Act, and
There aren’t (yet) enough Senate votes on either; but the latter, in some modified version, probably stands the best chance of passage in some form if items with some bipartisan pedigree get incorporated or substituted for certain elements.
For example, there is or has been bipartisan support for: a one-in, one-out law for regulations (which would give durability to Trump’s executive decree); a “regulatory improvement commission”; and addressing guidance all have some bipartisan support.
Originally posted to Forbes.com.