The Trump Administration is continuing its deregulation initiative with two new Executive Orders:

A February 24, 2017, Executive Order requires federal agencies to form “Regulatory Reform Task Forces” to evaluate existing regulations and identify candidates for repeal, replacement or modification of regulations seen as costly and unnecessary. Task forces must seek input and other assistance from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations. The task forces must evaluate existing regulations and identify candidates for repeal, replacement or modification, and identify regulations that:

• Eliminate jobs, or inhibit job creation;
• Are outdated, unnecessary, or ineffective;
• Impose costs that exceed benefits;
• Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
• Rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
• Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

As discussed in our previous blog post, a January 30, 2017, Executive Order requires that, unless otherwise prohibited by law, if an executive agency or department proposes a new regulation, it must identify at least two existing regulations to be repealed. Under the February 24 Executive Order, when implementing this “2-for-1” requirement, each agency head should identify for elimination regulations that the agency task force has identified as being outdated, unnecessary, or ineffective. Agencies are required to report regularly to the President on their progress in achieving the President’s directives.

Moving on from designating individual regulations for possible repeal, on March 13, 2017, the President signed a “Presidential Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch.” Under this Executive Order, the Director of the Office of Management and Budget (OMB) is to develop a “Proposed Plan to Improve the Efficiency, Effectiveness, and Accountability of Federal Agencies, Including, as Appropriate, to Eliminate or Reorganize Unnecessary or Redundant Federal Agencies” (Proposed Plan).

Under the Executive Order:

• By September (180 days from the date of issuance of the Executive Order), the head of each executive agency must submit to the OMB Director “a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency”
• The public is to be invited to submit to the OMB their own ideas for improving the organization and functioning of the executive branch and the Director is to consider the public’s comments in formulating the Proposed Plan
• Within six months after the closing date for the public to submit their ideas for the reorganization plan, the OMB Director must develop and submit the Proposed Plan to the President, after consulting with the head of each agency and, “consistent with applicable law, with persons or entities outside the Federal Government with relevant expertise in organizational structure and management”
• The Proposed Plan’s recommendations are to include (i) elimination of “unnecessary” agencies, agency components or agency programs, (ii) the merging of agency functions and (iii) a description of the specific means by which the Proposed Plan can be accomplished, such as through necessary administrative or legislative action
• While developing the Proposed Plan, the OMB Director must take into consideration the following:
  • Whether some or all of the functions of an agency, a component, or a program are appropriate for the Federal Government or would be better left to State or local governments or to the private sector through free enterprise;
  • Whether some or all of the functions of an agency, a component, or a program are redundant, including with those of another agency, component, or program;
  • Whether certain administrative capabilities necessary for operating an agency, a component, or a program are redundant with those of another agency, component, or program;
  • Whether the costs of continuing to operate an agency, a component, or a program are justified by the public benefits it provides; and
  • The costs of shutting down or merging agencies, components, or programs, including the costs of addressing the equities of affected agency staff