Obama Administration Orders Review of Pending Proposed or Final Regulations, Etc.

The memorandum requests executive department and agency heads to immediately take the following steps:

Send No Proposed or Final Regulations to the OFR Until Reviewed and Approved

Subject to any exceptions the Director or Acting Director of the Office of Management and Budget (OMB Director) allows for emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise, no proposed or final regulation should be sent to the Office of the Federal Register (OFR) for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009, or in the case of the Department of Defense, the Secretary of Defense. (The department or agency head may delegate this review and approval power to any other person so appointed or designated by the President, consistent with applicable law.)

Withdraw All Unpublished Proposed or Final Regulations in Order to Review

Withdraw from the OFR all proposed or final regulations that have not been published in the Federal Register so that they can be reviewed and approved by a department or agency head as described above. (This withdrawal is subject to the exceptions described above and must be conducted consistent with OFR procedures.)

Consider Extending Effective Date of Published Regulations Not Yet in Effect

Consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect, subject to the exceptions described above, for the purpose of reviewing questions of law or policy raised by those regulations.

Where such an extension is made for this purpose, the department and agency heads should immediately reopen the notice-and-comment period for 30 days to allow interested parties to provide comments about issues of law and policy raised by those rules.

Following the 60-day extension:

for those rules that raise no substantial questions of law or policy, no further action needs to be taken; and

for those rules that raise substantial questions of law or policy, agencies should notify the OMB Director and take appropriate further action.

Additional Details

The memorandum also states that:

1. The actions requested above do not apply to any regulations subject to statutory or judicial deadlines.
2. The OMB Director should be promptly notified of any regulations that the department or agency head believes should not be subject to the directives above because they affect critical health, safety, environmental, financial, or national security functions of the department or agency, or for some other reason. (The OMB Director will review all such notifications and determine whether an exception is appropriate.)
3. Continue in all instances to comply with any applicable Executive orders concerning regulatory management.
4. As used in the memorandum, "regulation" has the meaning set forth in Section 3(e) of Executive Order 12866 (09/30/93), as amended; this memorandum covers "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."

President's Chief of Staff memorandum (FR Pub 01/26/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-1639.pdf