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OIRA guidance confirms executive order to reduce regulations does not apply to independent agencies

Posted in CFPB Rulemaking

Interim Guidance issued by the Office of Information and Regulatory Affairs (OIRA) to implement President Trump’s executive order entitled “Reducing Regulation and Controlling Regulatory Costs” confirms that the order does not apply to independent agencies.  The executive order, issued on January 30, includes the requirement for an agency that publicly proposes a new regulation for notice and comment to identify at least two existing regulations to be repealed.

The guidance states that the executive order’s so-called “2 for 1” requirement and related limit on incremental cost resulting from any new regulations only apply to agencies required to submit significant regulatory actions to OIRA for review before publication in the Federal Register pursuant to Executive Order 12866.  As discussed in a previous blog post, the OIRA review requirement does not apply to agencies defined as an “independent regulatory agency” by 44 U.S.C. Sec. 3502(5), which include the CFPB.

Nevertheless, the guidance states that “we encourage independent regulatory agencies to identify existing regulations that, if repealed or revised, would achieve cost savings that would fully offset the costs of new significant regulatory actions.”

The guidance therefore confirms that unless the Trump Administration takes the position that it does not have to wait for the PHH appeal to be resolved before it considers the CFPB to no longer be an independent regulatory agency, the executive order does not currently apply to the CFPB except on a voluntary basis.