White House Adds Clues to Deregulatory Agenda

By Cheryl Bolen

Lists of rules that agencies intend to cut in the upcoming year will appear in the fall regulatory agenda, which is scheduled to be published by the end of November, said Neomi Rao, administrator of the White House Office of Information and Regulatory Affairs.

This was an additional clue about the broad deregulatory agenda of President Donald Trump that Rao offered to a conference hosted by the American Bar Association’s Section of Administrative Law and Regulatory Practice.

“Looking ahead to fiscal year 2018, the president has called on every agency to set a negative regulatory cost allocation, which means that every agency has to reduce their overall burdens in 2018,” Rao said.

Nearly every agency has submitted its allocation, such as the Department of Transportation, which anticipates achieving $35 million per year in net regulatory savings, Rao said. OIRA is working with agencies on their fall agendas and regulatory plans to make sure they identify unnecessary regulatory burdens, she said.

A Fine Line

Rao, a former member of the ABA admin law section, walked a fine line in her remarks between the clear wishes of the president to massively slash regulation and the concerns of lawyers, practitioners, and regulators if he succeeds.

“We believe that rolling back unnecessary and unlawful regulations is essential to restoring regulatory freedom and to promoting economic growth, job creation, and innovation,” Rao said.

“Now to be sure, regulatory actions can implement important health, safety, and welfare priorities . . . and we’re certainly not looking to unravel regulations that are working,” she added.

The push to reduce regulatory burdens depends on an understanding that there are many areas in which agencies can reduce or eliminate regulatory costs without compromising important health or safety goals, Rao said.

Not on the Margins

“We’re also not looking at regulatory reform just on the margins,” Rao said. “We’re not trying to get a few more benefits at slightly more cost. We’re really trying to get agencies to focus on duplicative, outdated, or unnecessary regulations, and to reduce the cumulative burden,” she said.

OIRA must ensure that the benefits and costs of new regulations are calculated based on accurate information and reasonable assumptions, Rao said.

Similarly, deregulatory actions also must meet cost-benefit standards, Rao said.

“We want to make sure that deregulatory actions are responsible, and that we’re not dismantling those regulations that serve important public purposes or those regulations that continue to provide significant net benefits,” she said.

Historical Perspective

“I would say what President Trump is doing is qualitatively different than any of his predecessors,” said Sally Katzen, professor of practice and distinguished scholar at the New York University School of Law and former OIRA administrator in the Clinton administration.

So far, the president has taken credit for rolling back a lot of regulations, but those have consisted mostly of motions of disapproval under the Congressional Review Act, Katzen said.

Trump also has taken credit for freezing and returning regulations pending at the time of his inauguration, which has been done by every modern president, she said.

Nonetheless, the number of significant regulations, both proposed and final, reviewed by OIRA in the first nine months of the administration is far below the number reviewed in prior administrations, and most of those have been deregulatory in nature, Katzen said.

Uncertainty Persists

The possible reasons for the “paucity” of proposed rules are many, including relatively few political appointees at agencies to shepherd rules through; because agencies are scrambling to find two existing rules to cut for every new rule; or because agencies are not able or willing to counter the edicts from the White House, Katzen said.

“Whatever the reason, it is clear to me at least that the regulatory state has ground to a virtual halt,” Katzen said.

There is no forward progress, leaving the question of whether agencies are prepared to cut existing regulations by the president’s proposed 75 percent, Katzen said.

“Are we truly dismantling the regulatory state?” she said.

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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