On October 21, the White House Office of Information and Regulatory Affairs (OIRA) issued a memo intended to speed up deregulatory actions, citing faster internal reviews and increased use of the Administrative Procedures Act (APA) “good cause” exceptions.
The rulemaking process is primarily controlled by the APA and Executive Order 12866. During the rulemaking process, EO 12866 requires significant rules to be sent to OIRA for White House and interagency review before publication. This process can be a bottleneck and has become a major reason why rulemaking projects can drag on for years at a time. The status quo calls for review within 90 days, but this timeline is more aspirational than realistic in recent times. In the memo, Administrator Clark calls for a 28-day review for typical deregulatory actions and a 14-day timeline for rules that are repealed for being unlawful.
After clearing OIRA review, the APA requires notice and comment rulemaking, except in certain situations in which an agency is deemed to have “good cause” to forego the process. The memo directs agencies to move “as expeditiously as possible on all legal grounds to bypass notice and comment under the APA’s ‘good cause’ exception.” The notice and comment process is extremely effective at developing the administrative record and protecting a rulemaking from litigation but can add months to the process at the best of times.
So, what does this mean for construction? AGC members can expect deregulatory actions to move more quickly but should also be on the lookout for continued uncertainty as fast-track deregulations face inevitable litigation. For a sneak peek on what rules may be imminent for construction and impacted by the memo, take a look at AGC’s reporting on the Unified Agenda.
For more information on the regulatory process, take a look at AGC’s series on the Executive branch:
Part 1: The Oval Office and Beyond: Inside the Executive Branch
Part 2: The Deregulatory Push Begins: Building the Administrative Record to Prevent the Pendulum Swing
Part 3: Decoding Proposed Rules: What They Say, Why They Matter, and What AGC Is Watching
For more information, please contact Spencer Phillips.