Jan 30, 2017 (San Diego) In the latest Executive Order President Donald Trump has commanded that for every regulation proposed, two are identified for elimination. This is in the order:
Sec. 2. Regulatory Cap for Fiscal Year 2017. (a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.
(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the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 (Director).
This will create two effects. The first is quite frankly chaos. What is to be proposed, for necessary reasons, will need to identify things that perhaps are linked, or necessary.
Yes, there are some regulations that are still on the books that should not be there. A good example is putting cowbells on cow trains. But this is not an attempt to clean up such regulations. This is an attempt to create chaos in government.
It may very well be impossible to implement. Reuters interviewed and expert on this:
Implementing the new policy may be difficult alongside the Trump administration’s push to repeal and replace the Affordable Care Act, said Tom Bulleit, head of the healthcare practice in the Washington D.C. office of law firm Ropes & Gray.
As the Congress passes new legislation on healthcare, there will need to be new rules, Bulleit said.
“There’s a great deal of regulation that is either expressly required by legislation or is necessary to make the legislation work,” he said.
Moreover, there are already rules in place to offset costs.
This order will also affect trade groups. According to the Regulatory Affairs Professional Society:
But how such a “one in, two out” plan would work for an agency with a public health mission like FDA remains to be understood, particularly as most regulations are not necessarily intertwined. So if the agency needed to put in place a new regulation, it would then have to presumably cut out two other, unrelated regulations linked to public health.
According to the text of the EO, this plan will likely apply to FDA guidance documents too, which will be a problem for pharmaceutical and medical device companies that rely on such guidance to understand how FDA interprets the law.
So we are expecting to see confusion.