On the night of the
Inauguration the Trump Administration issued a regulatory freeze in a memo from Chief
of Staff Reince Priebus to the heads of Executive departments and agencies. The
memo notes that it is for the purpose of allowing the President's appointees or
designees to have the opportunity to review any new or pending regulations.
Such a directive is not unprecedented, with the Obama Administration having
issued something similar in 2009 from White House Chief of Staff Rahm Emanuel.
Some of the key takeaways
from the memo are as follows:
- It
directs that regulations that have been sent to the Office of the Federal
Register (OFR) but not published in the Federal Register, should be
immediately withdrawn from OFR for review and approval. (Note the memo
allows exceptions to be made to this - emergency situations or other
urgent circumstances relating to health, safety, financial, or national
security matters. An agency head appointed or designated by the President
after noon on January 20, 2017, can review and approve the regulation. The
department or agency head may also delegate this power of review and
approval to any other person so appointed or designated by the President,
consistent with applicable law.)
- With
respect to regulations that have been published in the OFR but have not
taken effect, as permitted by applicable law, it directs to temporarily
postpone their effective date for 60 days from the date of this
memorandum, subject to the exceptions mentioned.
- The
memo also encourages agencies to: Where appropriate and as permitted by
applicable law, consider proposing for notice and comment a rule to delay
the effective date for regulations beyond that 60-day period.
- It
also states that in cases where the effective date has been delayed in
order to review questions of fact, law, or policy, agencies should
consider potentially proposing further notice-and-comment rulemaking.
Following the delay in effective date:
(a) for those regulations
that raise no substantial questions of law or policy, no further action needs
to be taken; and
(b) for those regulations
that raise substantial questions of law or policy, agencies should notify the
OMB Director and take further appropriate action in consultation with the OMB
Director.
- Rules
subject to statutory or judicial deadlines are excluded from the
directive. The memo asks Executive departments and agencies to identify
such exclusions to the OMB Director as soon as possible.
- The
memo also outlines that agencies and Executive departments should notify
the OMB Director promptly of any regulations that should be excluded from
the directives because those regulations affect critical health, safety,
financial, or national security matters, or for some other reason. The OMB
Director will review any such notifications and determine whether such
exclusion is appropriate under the circumstances.
CUNA is in the process of
determining which rules may be impacted. CUNA has also sent a letter to the
CFPB stating that with the new administration having taken office, and in light
of both the recent ruling in the PHH case as well as the President’s directive for a
government-wide freeze on regulations, we expect the Bureau will suspend
rulemaking activity that creates new burdens for credit unions and other
providers. The letter notes that a moratorium will give credit unions
time to catch up with all of the recently imposed requirements and it will give
the Bureau time to figure out how to focus its rules on Wall Street and get out
of the way of Main Street.