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By Cheryl Bolen
March 16 — Regulatory agencies can expect the next president in 2017 to issue a stop-order preventing any new regulations from being published in the Federal Register, former administrators said March 15.
Former administrators of the Office of Information and Regulatory Affairs (OIRA), speaking at the American Bar Association's 12th annual Administrative Law and Regulatory Practice Institute, outlined what agencies can expect in the transition to the next administration.
“Every new, incoming chief of staff, the afternoon of Jan. 20—so, one of the very first acts—issues a memo that goes out to all agencies saying stop the presses, don't send anything to the Federal Register,” said Susan Dudley, director of the GW Regulatory Studies Center and former OIRA administrator in the last two years of the George W. Bush administration.
The memo will say that if a regulation is at the Federal Register, but not yet published, pull it back, Dudley said. Any new administration wants to evaluate regulations and decide its priorities before moving forward, she said.
Sally Katzen, senior adviser at Podesta Associates and former OIRA administrator in the Clinton administration, said the traditional stop-order is drafted during the transition, and that these orders have been similar going back decades.
The Obama administration's order directed all agencies to stop everything in place and pull back anything at the Federal Register until an official could review it to see if it was consistent with the incoming president's preferences and priorities, she said.
“The second thing that always happens is, you have to take stock of what has just happened in the last month or so,” Katzen said. “What's in, what has already become effective, and to categorize the kinds of things you can do to displace ones that have already become effective.”
There are tools that can be used to change regulations, although each comes with costs, Katzen said. To start, agency staff working with the administration during the transition categorize regulations according to which are satisfactory to publish and which need to be examined again, she said.
The Congressional Review Act is one tool that can be used to eliminate a rule, but its use is unlikely, Katzen said.
There are only so many rules that would be subject to the CRA, they would have to be extremely irritating, and it would require a fair amount of time to debate and pass the resolution, Katzen said.
Dudley said the reason the Obama administration likely did not use the CRA is because it is a “blunt hammer” that prevents regulators from issuing a new rule that is substantially similar.
The Obama administration's concerns with last-minute regulations in the Bush administration likely were that they did not go far enough, but it did not want to completely abolish the rule, she suggested.
Other tools include taking advantage of the long backup at the Federal Register at the end of an administration to pull back rules that have not been published, Dudley said.
The new administration also can work with the judiciary in its response to litigation over regulation, Dudley said. How vigorously a rule is defended affects what the final regulation will look like, she said.
“And then similarly interpretation and enforcement—how a rule is interpreted and enforced could be different,” Dudley said.
Finally, in some cases, the agency has to justify a different outcome than before through a new record and notice and comment, which can be a challenge, Dudley said.
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