New EPA Rule Not Compliant With Trump Regulatory Order

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By Cheryl Bolen

The first rule that appears to be subject to President Donald Trump’s executive order on regulation was issued without identifying two deregulatory actions or offsets, puzzling some regulatory scholars.

Sofie Miller, a senior policy analyst at the George Washington University Regulatory Studies Center, took to Twitter to question why an Environmental Protection Agency rule, published in the June 14 Federal Register, was not offset.

The rule in question is EPA’s final rule on Effluent Limitations Guidelines and Standards for the Dental Category, which sets new standards to reduce discharges of mercury from dental offices into municipal sewage treatment plants.

However, the rule doesn’t appear to comply with Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs, which requires that any significant regulation issued after noon on Jan. 20 include two deregulatory actions and be completely offset.

Exemptions Exist

The Office of Management and Budget did not have an immediate response to inquiries about the rule by Bloomberg BNA.

To date, agency rulemaking has been slow and the few final rules that have been issued during the Trump administration haven’t been subject to the executive order’s requirements.

In April, OMB issued guidance to agencies explaining the regulatory order. It said that each Federal Register notice should identify whether the regulation is an EO 13771 regulatory action.

Then, to the extent practicable, agencies should issue deregulatory actions before, or concurrently with, the regulation it intends to offset, the guidance said.

Several categories of regulation may qualify for a full or partial exemption, including expressly exempt actions, emergency actions, statutorily or judicially required actions and de minimis actions, the guidance said.

Question of Timing

Timing may be a factor in the EPA’s rule, which was sent to the Office of Information and Regulatory Affairs (OIRA) for review late last year. OIRA concluded its review on Dec. 8, 2016, but the rule was not published in the Federal Register until now.

Although EPA’s rule is not economically significant, it is a significant regulatory action that was submitted to OIRA for review because it raises novel legal or policy issues. The rule, effective July 14, has costs associated with compliance.

“What caught my attention about the rule was that it is a ‘significant’ rule, meaning it’s subject to Executive Order 13771, but it does not appear to include a regulatory offset,” Miller told Bloomberg BNA.

“Per OMB’s guidance, significant regulatory actions issued after Jan. 20 are subject to the two-for-one executive order,” Miller said. “OMB concluded its review of the rule in December, so it’s not clear how enforcement will work,” she added.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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