During President Biden’s first day in office, White House Chief of Staff Ron Klain issued a memo halting the implementation of recent Federal regulatory actions taken during the last few days of the Trump Administration.
Klain said the freeze in implementing new regulations was to ensure that the “President’s appointees or designees have the opportunity to review any new or pending rules.” In a memo to the heads of executive departments and agencies, Klain issued several directives.
Directive One
Klain says to not propose or issue any rules until a department or agency head appointed or designated by President Biden reviews and approves the rule. The memo noted that the department or agency head may delegate this power of review and approval to any other person who was appointed or designated by the President. The memo notes that this directive is subject to any exceptions the Director of the Office of Management and Budget (OMB) allows for emergencies or other urgent circumstances relating to health, safety, environmental, financial, or national security matters.
Directive Two
For rules that have already been sent to the Office of the Federal Register (OFR) but not yet published in the Federal Register, Klain says to immediately withdraw them from the OFR for review and approval as described in the first directive. The memo notes that the withdrawal must be conducted consistent with OFR procedures.
Directive Three
Regarding rules that have already been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, the memo says to consider postponing the rules’ effective dates for 60 days from Jan. 20. Again, the memo notes that this decision must be consistent with applicable law and subject to the exceptions described in the first directive. Klain says to postpone the implementation of the rule “for the purpose of reviewing any questions of fact, law, and policy the rules may raise.”
Additionally, for any rules postponed under the directive, the memo suggests “opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.” Klain also said that where needed, the postponement may be extended beyond the 60-day period.
Following the initial 60-day period, Klain said that for rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken. However, for rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.
Directive Four
To address regulations that cannot wait for a 60-day postponement, Klain said to disregard directives one through three for rules that are subject to statutory or judicial deadlines. However, agency leadership must identify these exclusions to the OMB Director as soon as possible.
Directive Five
Klain asks agency leadership to promptly notify the OMB Director of any rules that they believe should be excluded from directives one through three because those rules affect critical health, safety, environmental, financial, or national security matters, or for some other reason. The memo says that the OMB Director will review those notifications and determine whether such exclusion is appropriate under the circumstances.
Directive Six
Agency leadership is asked to comply with any applicable Executive Orders (EO) concerning regulatory management. Klain notes that in addition to the governmental definitions of “rule” (defined in section 551(4), title 5, United States Code), “regulatory action” (defined in section 3(e) of Executive Order 12866 of September 30, 1993), and “guidance document (defined in section 3(g) of Executive Order 13422 of January 18, 2007), the requirements of the memo also apply to:
- “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking; and
- any agency statement of general applicability and future effect that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”
President Biden’s first day in office also saw several other actions regarding Federal regulations. Biden signed an EO revoking specific Trump administration EOs concerning Federal regulation. Biden also issued a memo to agency leadership detailing his plan to modernize the Federal regulatory process. Specifically, Biden said he is looking to “evaluate the processes and principles that govern regulatory review to ensure swift and effective Federal action.”
