Re: Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs.

February 13, 2017

Dominic J. Mancini, Acting Administrator

Office of Information and Regulatory Affairs

Office of Management and Budget

725 17th Street NW

Washington, DC 20503

Re: Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs.”

Dear Acting Administrator:

On behalf of the groups listed below, we submit these comments on the Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs.”

As the interim guidance implements the January 30, 2017 Executive Order, the authority to issue the interim guidance depends on the validity of the Executive Order. In the Executive Order, the President directs federal agencies to identify at least two existing regulations to be repealed for every new existing regulation promulgated. For fiscal year 2017, the Executive Order directs federal agencies to ensure that the total incremental costs from all new and repealed regulations is no greater than $0. For subsequent fiscal years, the Executive Order directs the Director of the Office of Management and Budget (OMB) to place a dollar cap on incremental costs allowed for each agency in issuing new and repealing existing regulations. The Interim Guidance is directed at Section 2 of the Executive Order, the provisions that apply to the current fiscal year.

OMB should revoke the Interim Guidance because OMB lacks the authority to implement or impose any requirements pursuant to the Executive Order. OMB derives its legal authority from Congress or the President. Congress has not enacted legislation imposing regulatory budgets and essentially a regulatory cost trading program on federal agencies. While the President has issued the Executive Order purporting to do so, he lacks the constitutional authority to adopt such program.

Federal agencies issue regulations that have the effect of law pursuant to congressional delegation of authority. In the statutes delegating such authority, Congress has established goals such as providing health care for millions of Americans, protecting workers, fighting hunger, defending civil rights and voting rights, safeguarding our environment, ensuring the safety of food, drinking water, and medicine, promoting the integrity of financial institutions, and supporting public education. Moreover, it has set out the criteria to be applied by the agencies in adopting rules. Congress has also enacted the Administrative Procedure Act establishing rulemaking procedures that insist on transparency, opportunities for public input, and reasoned, evidence-based decision-making. Agencies must adopt regulations based on the laws and rulemaking record for each regulation.No statute authorizes agencies to trade one rule for one or more others based on costs to the private sector. In fact, where agencies consider costs, Congress has prescribed how costs may be considered and, where costs may be considered, balanced decision-making prohibits consideration of economic costs to the regulated industry without considering the public and economic benefits of the regulation.

The Executive Order superimposes a new rulemaking system onto all federal rulemaking. This system elevates costs to the regulated industry, indeed focuses solely on such costs, even though Congress made protecting people paramount in laws like the Occupational Safety and Health Act, the Food Quality Protection Act, and the Clean Air Act, and sought to further national goals of providing health coverage to millions of previously uninsured Americans in the Affordable Care Act and preventing abuse of women in the Violence Against Women Act.

Under the Constitution, the President lacks the authority to direct federal agencies to exceed their authority and violate the laws that give them their powers. Nor can the President unilaterally amend or override such laws or the laws that require fair, transparent, and reasoned rulemaking decisions. Amending laws is the purview of Congress under our constitutional system. The Executive Order is therefore in excess of the President’s authority and unlawful.

The Interim Guidance similarly exceeds the President’s and Executive Branch’s authority. It provides direction to agencies to apply the Executive Order’s requirements to their rulemakings this fiscal year. It identifies the applicable timeframe and which regulations are prohibited unless they offset costs by repealing two other regulations. It provides instructions on how to estimate regulatory costs and that which may be used to offset costs, and it directs agencies to “[f]ully offset the total incremental costs of such new significant regulatory action as of September 30, 2017.” Interim Guidance at 2.

By issuing the Interim Guidance, OMB is taking steps to put in place a regulatory cost trading system overseen by OMB. This system will unlawfully impose extensive burdens and costs on federal agencies. Beyond wasting taxpayer dollars, it will inexcusably delay, weaken, and jettison regulations that have been adopted to protect the public from toxic chemicals, harmful pollution, workplace hazards, consumer fraud, and safety hazards on our highways and railroads.

Like the Executive Order, the Interim Guidance exceeds presidential authority and is unconstitutional. As an officer of the United States, the Director of OMB has taken an oath to “support and defend the Constitution” and to faithfully discharge the duties of his office. See 5 U.S.C. § 3331.

We ask you to uphold your solemn oath and withdraw the Interim Guidance.



AJ Rosen & Associates LLC

Alaska Wilderness League

American Association for Justice

American Association of University Women

American Family Voices

American Federation of State, County and Municipal Employees

American Federation of Teachers

American Sustainable Business Council

American Veterans

American-Arab Anti-Discrimination Committee

Americans for Financial Reform

Amigos Bravos

And All Her Ways Are Peace

Apostolic Faith Center

Association of Asian Pacific Community Health Organizations

Bend the Arc Jewish Action

BlueGreen Alliance

Bluestem Communications

Brazilian Worker Center

California Kids IAQ

Center for Biological Diversity

Center for Digital Democracy

Center for Food Safety

Center for Medicare Advocacy, Inc.

Center for Progressive Reform

Center for Responsible Lending

Clean Water Action

Coalition for a Safe Environment

Coalition on Human Needs

Communities for a Better Environment

Community Dreams

Connecticut Fair Housing Center

Consumer Action

Consumer Federation of America

Consumers for Auto Reliability and Safety

Daily Kos



Ecology Center

Economic Policy Institute


Endangered Habitat League

Endangered Species Coalition

Environmental Working Group

Equal Justice Society

Family Equality Council

Farmworker Justice

Food & Water Watch

Free Press

Freshwater for Life Action Coalition

Friends of the Earth

Health Professionals and Allied Employees, AFT/AFL-CIO

Homeowners Against Deficient Dwellings

Human Rights Campaign

Idaho Conservation League

Institute for Agriculture and Trade Policy

Institute for Science and Human Values

International Alliance for Nurses for Healthy Environments

International Fund for Animal Welfare

Iowa Environmental Council

Labadie Environmental Organization

Labor & Employment Committee of National Lawyers Guild

League of Conservation Voters

League of United Latin American Citizens

League of Women Voters of the United States

Legal Aid At Work

Main Street Alliance

Massachusetts Coalition for Occupational Safety & Health

Maurice & Jane Sugar Law Center for Economic & Social Justice

Milwaukee Riverkeeper


NAACP San Pedro-Wilmington Branch # 1069

National Association for College Admission Counseling

National Center for Lesbian Rights

National Center for Transgender Equality

National Coalition Against Domestic Violence

National Consumer Law Center

National Consumers League

National Education Association

National Employment Law Project

National Employment Lawyers Association

National Law Center on Homelessness & Poverty

National LGBTQ Task Force

National Organization for Women

National Parks Conservation Association

National Partnership for Women & Families

National Women's Law Center

Natural Resources Defense Council

NETWORK Lobby for Catholic Social Justice

Occupational Safety & Health Law Project

Ohio Citizen Action

Parents for Nontoxic Alternatives

Pesticide Action Network

Physicians for Social Responsibility

Poverty & Race Research Action Council

Prairie Rivers Network

Public Citizen

Public Justice Center

San Pedro & Peninsula Homeowners Coalition

Sargent Shriver National Center on Poverty Law


Sierra Club


St. Philomena Social Justice Ministry

The Public Interest Law Center

The Wilderness Society

Trustees for Alaska

Turtle Island Restoration Network

Union of Concerned Scientists

United We Dream

Water Alliance

Water You Fighting For

Waterkeeper Alliance

Western Watersheds Project

Whitman-Walker Health

Wildlands Network

Wilmington Improvement Network

Women's Voices for the Earth

Woodstock Institute

Workers' Center of Central New York