Pathways for Regulatory Reform

As the business community, encouraged by the Trump administration’s pro-business policies, anticipates the review and possible repeal or revision of regulations that have hampered their ability to operate and grow, it’s important to understand the complex process by which regulations both come into being and cease to be. The process—which is virtually the same whether you’re proposing the development or the dismantling of a regulation—is as straightforward as anything you learned in middle school civics. Yet, at the same time, there’s nothing straightforward about it. The seemingly simple path shown in the diagram is actually rife with pitfalls, potholes, and detours. A proposal or rescission can be changed or derailed at many points: during policy formulation or the public comment period, during interagency review (run by the Office of Information and Regulatory Analysis, a little-known yet very powerful arm of the White House’s Office of Management and Budget), in ensuing litigation, or through congressional review. Above all, the process takes time, lots of time, including a 30- to 60-day waiting period before implementation, even after the final rule is issued. “Anyone who believes a new rule can be put in place, or an old one rescinded, in days or weeks is in for a surprise,” says Crowell & Moring partner Dan Wolff. “Stakeholders should be prepared for a lengthy process involving development and presentation of positions on favored outcomes, submission of comments once a rule or rule rescission is proposed, and likely litigation over any final agency action.”

[VIEW PDF]

[VIEW PNG]