Presidential Executive Order 13771 (Donald Trump, 2017)

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Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs was a presidential executive order issued by President Donald Trump (R) in January 2017 that established a regulatory budget by instituting a regulatory cap on federal agencies for the remainder of fiscal year 2017, including a requirement that agencies eliminate two old regulations for each new regulation issued. The order also put forth procedures for the Office of Management and Budget (OMB) to determine annual regulatory cost allowances for agencies beginning in fiscal year 2018.[1]

President Joe Biden (D) revoked E.O. 13771 on January 20, 2021, via E.O. 13992.

Background

See also: Regulatory review

In 2016, then-presidential candidate Donald Trump (R) campaigned on a platform that included a pledge to rein in what he considered to be burdensome federal regulations that slowed down economic growth—an agenda that his former chief strategist Steve Bannon characterized as the "deconstruction of the administrative state." After taking the oath of office on January 20, 2017, President Trump launched his agenda by instituting a regulatory freeze. Ten days later, on January 30, 2017, Trump issued E.O. 13771, which called for any new regulatory activity by agencies to amount to a net cost of zero dollars by the end of the fiscal year.[2][3]

In order to achieve the goal of E.O. 13771, the order required that agencies eliminate two old regulations for each new regulation issued. The order also required continued compliance with the cost-benefit analysis provisions for economically significant rules outlined in President Bill Clinton's (D) E.O. 12866, which E.O. 13771 identified as one of the major policies and initiatives guiding regulatory review and reform efforts by the executive branch. E.O. 13771 did not include any penalties for noncompliance by the end of the fiscal year, but it required noncompliant agencies to submit a report to the OMB detailing the agency's plan to achieve compliance.[2][3][4]

The Office of Information and Regulatory Affairs (OIRA) later issued a series of guidance documents outlining procedures for implementing E.O. 13771. In particular, the guidance specified that the two-for-one regulation provision only applied to economically significant rules, those with an anticipated economic impact of $100 million or more. Rules pertaining to national security, emergency actions, and statutory or judicial mandates were exempt from the order. The Trump administration later issued E.O. 13777 on February 24, 2017, which established new regulatory reform officers and regulatory reform task forces to implement the provisions of E.O. 13771.[4]

Provisions

Regulatory cap

E.O. 13771 required agencies to repeal two regulations for each new regulation issued and put in place a regulatory cap of zero for fiscal year 2017, with certain exceptions. It required the director of the OMB to provide guidance to agencies on how to implement the new requirements:[1][5]

“ (d) The Director shall provide the heads of agencies with guidance on the implementation of this section. Such guidance shall address, among other things, processes for standardizing the measurement and estimation of regulatory costs; standards for determining what qualifies as new and offsetting regulations; standards for determining the costs of existing regulations that are considered for elimination; processes for accounting for costs in different fiscal years; methods to oversee the issuance of rules with costs offset by savings at different times or different agencies; and emergencies and other circumstances that might justify individual waivers of the requirements of this section. The Director shall consider phasing in and updating these requirements.[1][6] ”

Submission of regulatory costs

Beginning with fiscal year 2018, the order required agencies to submit a total cost analysis detailing the expected regulatory costs of any new regulations and the offsets provided by the repeal of two old regulations. Regulations approved by the OMB director were included in the Unified Regulatory Agenda. The order prohibited the issuance of any new regulations not included in the agenda. The OMB director was also required to assign an annual total incremental cost allowance, or a cap, for each agency's regulatory plan. Agencies could not exceed their total incremental cost allowances.[1][5]

“ (d) During the Presidential budget process, the Director shall identify to agencies a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year. No regulations exceeding the agency's total incremental cost allowance will be permitted in that fiscal year, unless required by law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost.[1][6] ”

OMB guidance

See also: Guidance document

OIRA issued a series of guidance documents to provide direction for agencies regarding compliance with E.O. 13771. The guidance provided the following clarification for implementation of E.O. 13771, according to an analysis by the American Action Forum:[7]

“
  • Agencies only need to tally up final rules published after noon on January 20, 2017.
  • The EO only applies to executive agency rules that the Office of Information and Regulatory Affairs (OIRA) deem to be “significant” under EO 12,866.
  • It exempts rules related to direct national security or emergency concerns and those explicitly directed by a judicial or statutory mandate.
  • Agencies can, via written requests to OMB, transfer savings from other agencies.
  • Agencies can include savings from legislatively repealed or revised rules. Thus, they can use savings from such actions as the 14 rules repealed by under the Congressional Review Act (CRA) earlier this year.
  • If an agency is not in compliance by the end of the fiscal year, they must submit a report to OMB detailing how they plan on coming into compliance.[7][6]
 ”

Impact

2017

A November 2017 OIRA report, titled "Regulatory Reform: Two-for-One Status Report and Regulatory Cost Caps," provided information about agency compliance with E.O. 13771 during fiscal year 2017, which closed on September 30, 2017. The report found that "in the first eight months of the Administration, agencies have far exceeded the two-for-one and regulatory cap requirements." The report included the following findings for economically significant regulatory actions subject to E.O 13771:[4][8]

  • Agencies issued 67 applicable deregulatory actions and three regulatory actions for a ratio of 22-to-1.
  • Agencies saved a projected $8.1 billion in regulatory costs ($570.4 million per year).[4][8]

OIRA released another report, titled "Regulatory Reform: Cost Caps Fiscal Year 2018," which provided information about agency cost caps for 2018 and the anticipated fiscal impact of the provision. OIRA reported that "in Fiscal Year 2018, across the federal government, agencies anticipate saving $9.8 billion in regulatory costs, or $686.6 million per year."[4][9]

On December 29, 2017, the last federal working day of the 2017 calendar year, the Federal Register closed with the fewest number of total final rules (not limited to economically significant rules) since the mid-1970s, according to the Competitive Enterprise Institute, an organization that describes itself as a free-market group. Click here to view Ballotpedia's analysis of additions to the Federal Register during 2017.[10]

2018

At the close of the 2018 fiscal year, the Trump administration reported that $23 billion in savings were accrued from 176 deregulatory actions. OIRA reported that agencies issued 57 applicable deregulatory actions and 14 regulatory actions for a ratio of 4-to-1. At the time of the report, the administration had issued 65% fewer economically significant rules—defined as rules that impose costs exceeding $100 million per year—than the Obama administration and 51% fewer than the Bush administration.[11][12]

The Trump administration projected that regulatory costs would decrease by $18 billion in the coming 2019 fiscal year.[12]

2019

At the close of the 2019 fiscal year, OIRA issued an update on the Trump administration's 2-to-1 regulatory policy. The update featured the following highlights:[13]

  • Agencies accrued $13.5 billion in savings from 150 deregulatory actions.
  • Sixty-one deregulatory actions were deemed significant.
  • Agencies issued 35 significant regulatory actions.
  • Comparing significant deregulatory to significant regulatory actions yielded a ratio of 1.7- to-1—just shy of the administration’s 2- to-1 goal.[13]

Looking ahead to the 2020 fiscal year, OIRA anticipated that agencies would accrue $51 billion in regulatory cost savings. From 2017 to 2019, agencies eliminated $50.9 billion in regulatory costs.[13]

2020

OIRA issued an update on the Trump administration's 2-to-1 regulatory policy as part of the Fall 2020 edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions. The update featured the following highlights:[14]

  • Agencies eliminated $198.6 billion in overall regulatory costs across the federal government.
  • Agencies eliminated 5.5 regulations for every new significant regulation added.
  • Agencies issued 538 deregulatory actions overall.[14]

Noteworthy events

Lawsuits challenging E.O. 13771 (2017-2020)

California v. Trump

California, Oregon, and Minnesota filed a joint lawsuit in the United States District Court for the District of Columbia on April 4, 2019, arguing that E.O. 13771 is unconstitutional and violates the Administrative Procedure Act (APA). In California v. Trump, the states claim that the executive order is unconstitutional because it exceeds the president's authority, violates the separation of powers, and undermines the president's responsibility to faithfully execute the law. The states further argue that the executive order violates the APA because it has resulted in agencies acting in excess of their authority in order to comply with the order.[15][16]

Judge Randolph D. Moss dismissed the case on April 2, 2020, because the plaintiffs failed to demonstrate that they had Article III standing to sue.[17]

Public Citizen v. Trump

A group of organizations and unions, including Public Citizen, the Natural Resources Defense Council, and the Communication Workers of America, filed a lawsuit, Public Citizen v. Trump, in the United States District Court for the District of Columbia on February 8, 2017. The lawsuit claims that E.O. 13771 cannot be lawfully implemented because it would require agencies to violate existing statutes. Judge Randolph D. Moss found that the plaintiffs lacked standing and dismissed the case on February 26, 2018.[18][19]

The plaintiffs filed an amended complaint in April 2018. On February 8, 2019, the court ruled that the plaintiffs demonstrated standing, but not sufficient standing to advance to summary judgment. Judge Moss ruled on December 20, 2019, that the plaintiffs lacked standing because they could not demonstrate that the executive order would impact specific regulations affecting their members. A spokesperson for Public Citizen told Safety + Health on January 16, 2020, that the organization would not appeal the decision.[20][21]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 Federal Register, "Reducing Regulation and Controlling Regulatory Costs," January 30, 2017
  2. ↑ 2.0 2.1 The Washington Post, "Bannon vows a daily fight for ‘deconstruction of the administrative state,'" February 23, 2017
  3. ↑ 3.0 3.1 Bloomberg News, "Trump’s 2-for-1 Regulatory Policy Yields Minimal Results," September 29, 2017
  4. ↑ 4.0 4.1 4.2 4.3 4.4 RegInfo.gov, "Regulatory Reform: Two-for-One and Regulatory Cost Caps," accessed March 21, 2018
  5. ↑ 5.0 5.1 Environmental Protection Agency, "Executive Order 13771 - Reducing Regulation and Controlling Regulatory Costs," accessed March 21, 2018
  6. ↑ 6.0 6.1 6.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  7. ↑ 7.0 7.1 American Action Forum, "One Month Out: A One-In, Two-Out Program Status Report," September 19, 2017
  8. ↑ 8.0 8.1 RegInfo.gov, "Regulatory Reform: Two-for-One Status Report and Regulatory Cost Caps," accessed March 21, 2018
  9. ↑ RegInfo.gov, "Regulatory Reform: Cost Caps Fiscal Year 2018," accessed March 21, 2018
  10. ↑ Competitive Enterprise Institute, "Trump Regulations: Federal Register Page Count Is Lowest In Quarter Century," December 29, 2017
  11. ↑ Daily Signal, "Here’s How Much Red Tape Trump Has Cut," October 17, 2018
  12. ↑ 12.0 12.1 Unified Agenda of Regulatory and Deregulatory Actions, "Introduction to the Fall 2018 Regulatory Plan," accessed October 17, 2018
  13. ↑ 13.0 13.1 13.2 Office of Information and Regulatory Affairs, "Regulatory Reform Results for Fiscal Year 2019," accessed December 9, 2019
  14. ↑ 14.0 14.1 Office of Information and Regulatory Affairs, "Introduction to the Fall 2020 Regulatory Plan," accessed December 9, 2019
  15. ↑ The Hill, "States sue Trump admin over deregulations executive order," April 4, 2019
  16. ↑ Bloomberg, "California, Other States Challenge Trump’s Deregulation Plan," April 4, 2019
  17. ↑ United States District Court for the District of Columbia, "California v. Trump, April 2, 2020
  18. ↑ Notice and Comment, "Update: Litigation Challenging Trump’s Regulatory 'Two-for-One' EO," September 4, 2018
  19. ↑ Compliance Week, "Suit against Trump’s deregulation centerpiece gets mixed results," February 13, 2019
  20. ↑ Reuters, "Judge says groups lack standing to challenge '2 for 1' executive order," December 20, 2019
  21. ↑ Safety + Health, "Public Citizen: We won’t appeal another dismissal of ‘2-for-1’ regulatory lawsuit," January 22, 2020
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