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Trump Order Targets Rules From ‘Unaccountable Bureaucrats’

Ari Natter

(Bloomberg) -- President Donald Trump signed a pair of executive orders on Wednesday to limit the use of memos, letters, and other federal guidance from agencies saying they represented an unchecked “pernicious kind of regulation imposed by unaccountable bureaucrats.”

Conservatives and business groups have long complained that the agencies use the process to establish “stealth regulation” that circumvents Congress and avoids public scrutiny. Unlike formal government rules the interpretations are issued without the typical notice and comment period required by law.

“Guidance has frequently been used to subject U.S. citizens and businesses to arbitrary” enforcement actions, Trump said at a White House signing ceremony.

One critic of the move, the watchdog group Public Citizen, said Trump’s orders would actually undermine his own promise to combat a spate of illnesses and deaths tied to vaping, as the Food and Drug Administration is seeking to use guidance to implement a ban on flavored vaping products.

“At the very least, the executive order will make it harder for the agency to ban vaping products that have yet to receive approval, and conservative groups opposed to the ban will point to the executive order as grounds for blocking it,” said Amit Narang, regulatory policy advocate at the group.

Under the Obama administration, agencies broadened existing laws and regulations through interpretations that were then issued in blogs, letters memos and brochures.

“President Trump is returning control over the government to the American people,” Russ Vought, acting director of the White House Office of Management and Budget, said in a statement. “These executive orders give this administration the tools to defend Americans’ freedom and liberty against off-the-book regulations and prevent unfair penalties from being levied on American families and businesses by rogue agencies.”

One executive order would require agencies to seek public input on certain guidance while a second order seeks to prohibit “secret or unlawful bureaucratic interpretations of rules” as well as “unfair or unexpected penalties from agencies.”

Among the examples given was a 2015 blog post from the Department of Labor that said many independent contractors should be classified as employees, which the White House said would have increased costs for thousands of small businesses.

Another example cited involved the Army Corps of Engineers deeming permafrost in Alaska to be subject to the Clean Water Act thereby prohibiting the expansion of a pipe fabrication business that provided services to the North Slope Oil Fields.

Other past agency rules have included a 2013 Consumer Financial Protection Bureau guidance meant to discourage discriminatory automobile lending practices, and a U.S. Forest Service document issued during the waning days of the Obama administration restricting access to timber, mining, and other activities in the Tongass National Forest in Alaska.

Other examples include a 2016 Housing and Urban Development document warning landlords that denying leases to people with criminal records might be a violation of the Fair Housing Act, and an Education Department policy statement limiting preschoolers from being suspended or expelled.

A 2018 report by the House Oversight Committee, then under Republican leadership, found that of more than 13,000 guidance documents issued by federal agencies since 2008, only 138 had been formally submitted to Congress and the General Accounting Office.

James Goodwin, a senior policy analyst with the Center for Progressive Reform, said agency guidance documents are a form of public protection, many of which help businesses understand how to comply with rules.

“The primary function of guidance is to alleviate regulatory uncertainty, which is a huge plus for industry,” Goodwin said. “It would be a mistake for Trump supporters to see this as part of his broader anti-safeguard agenda.”

The new policy may not endure. A future president could repeal Trump’s executive orders immediately -- just as he has spiked initiatives from his predecessor.

“The next administration should repeal this executive order on day one and refocus on safeguarding the public,” Public Citizen’s Narang said.

--With assistance from Jennifer A. Dlouhy.

To contact the reporter on this story: Ari Natter in Washington at anatter5@bloomberg.net

To contact the editors responsible for this story: Jon Morgan at jmorgan97@bloomberg.net, John Harney

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