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Trump begins 'war on regulation' in earnest

Chris Hamblin, Editor, London, 6 February 2017

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President Donald Trump has begun signing executive orders to cut regulation in all areas of the US Government but especially in finance and the environment. During one signing ceremony he said: "Today we're signing core principles for regulating the United States financial system - doesn't get much bigger than that, right?"

His most important new executive order for our purposes, entitled "Reducing regulation and controlling regulatory costs," draws its legitimacy from the Budget and Accounting Act 1921, as amended (31 USC 1101 et seq.), section 1105 of title 31 USC and section 301 of title 3 USC. Dictating for the fiscal year of 2017 only, it states that unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment (or otherwise promulgates) a new regulation, it must identify at least two existing regulations to be repealed.

Moreover, for the same fiscal year, which is in progress, the heads of all agencies have been told that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year must be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget.

The order contains an explanation for these policies: "It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources...it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with federal regulations. Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process."

In furtherance of the "pass one, repeal two" rule, the order proclaims that any new incremental costs associated with new regulations ought, to the extent permitted by law, to be offset by the elimination of existing costs associated with at least two prior regulations.

More detailed guidance is to come from the director. It will cover, among other things, processes for standardising 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. There will be a 'phasing in' process.

"Regulation" or "rule" means an "agency statement" of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include anything to do with the military, foreign affairs, or the way in which this-or-that agency organises itself internally.

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