The new Trump Administration moved quickly to impose a freeze on regulatory rulemaking, a not uncommon event when a new President is from a different political party than the previous President. In a January 20, 2017, Memorandum to the heads of executive departments and agencies, Reince Priebus, Assistant to the President and Chief of Staff, stated that the new President was ordering the following:

  • Subject to limited exceptions to be approved by the new Director or Acting Director of the Office of Management and Budget (OMB), no regulations (including certain regulatory guidance issuances) may be sent to be published in the Federal Register, the U.S. Government’s official publication for regulations and notices, or must be pulled back if they had been sent but not yet published, unless approved by a department or agency head appointed or designated by the new President.
  • Subject to the same limited exceptions mentioned above, for those final regulations that have been published in the Federal Register but not yet taken effect, the departments and agencies must temporarily postpone the effective date for 60 days and consider whether to propose for comment a rule to further delay the effective date beyond the 60 day period. Once the initial 60 day postponement period ends, departments and agencies may need prior approval from the OMB in order to move ahead with respect to certain categories of regulations.

One of those categories are regulations that “raise substantial questions of law or policy.” Those regulations must be referred to OMB and any further action must be taken in consultation with the OMB before moving ahead. This category undoubtedly includes the controversial Department of Labor “fiduciary rule,” which will be the subject of the New York office’s next 40 Minute Briefing taking place on February 2, with deregulation one of the topics to be discussed.

The Memorandum only applies to Executive departments and agencies. Independent agencies such as the Federal Reserve Board, the Securities and Exchange Commission and the Commodity Futures Trading Commission are not covered. However, if these independent agencies are part of a required joint rulemaking with a department or agency that is subject to the Memorandum, as a practical matter, such joint rulemakings will be affected by the freeze as well.