Consistent with past changes in presidential administrations, on President Trump’s Inauguration Day, White House Chief of Staff Reince Priebus issued a “claw back” memo describing the process of reconsidering previously finalized regulations. Similar to memos issued by President Obama and President Bush, President Trump’s claw back memo speaks to three specific groups of rules:

  • For rules not yet published in the Federal Register, the memo requests the applicable federal agencies to review and approve the regulations before sending them for publication in the Federal Register.
  • For rules sent to the Federal Register, but not yet published, the memo requests the applicable agencies to withdraw the rules.
  • For any rules already published in the Federal Register but not yet effective, the memo requests agencies to “temporarily postpone” the effective date of the regulations  to sixty days after Inauguration Day and consider reopening the notice-and-comment period to extend the effective date further.

Under the terms of the memo, for those rules with a temporarily postponed effective date, any rules published in the Federal Register but not yet effective that raise “substantial questions of law or policy” require agencies to notify the Office of Management and Budget Director to take further appropriate action.

Also, the distinction between effective dates and implementation dates is important. A rule’s effective date normally occurs sixty or ninety days after the publication of a final rule in the Federal Register, and exists to give regulated entities notice of a rule after publication. The implementation date, however, is the date upon which the rule’s substantive requirements apply.  For example, although the U.S. Environmental Protection Agency’s Clean Power Plan has already become effective, the rule’s substantive requirements do not yet apply. To rescind these types of rules, EPA will have to open a completely new notice-and-comment rulemaking.

The Trump Administration will publish a Federal Register notice tomorrow, delaying the effective date for thirty environmental rules promulgated by the U.S. EPA until sixty days after Inauguration Day (also the date of the Priebus claw back memo). These rules – while mostly consisting of state-specific authorizations – include some rules applicable nationwide, such as the “Revisions to Guideline on Air Quality Models,” addressing ozone and fine particulate matter.

Rules with effective dates after sixty days from Inauguration Day will still be subject to reconsideration, but will not have their effective dates automatically postponed. This article explains the historical use of the claw back memo in greater detail. For more information on these documents or the impacts on pending or recently finalized EPA rules, please contact Mack McGuffey, Karlie Webb, or Rich Pepper