[co-author: Chigozie Akah]
Last week, President Trump issued several actions, including executive orders and instructions to agencies, that direct agency heads to review and repeal regulations deemed unlawful or anti-competitive. The actions further the Trump Administration’s efforts to reduce the number of federal regulations and will affect the food and agriculture industries. We summarize the actions below.
Directing the Repeal of Unlawful Regulations.
The memorandum “Directing the Repeal of Unlawful Regulations”1 (the Memo) provides guidance to agency heads as they implement President Trump’s earlier Executive Order, “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative.”2 That executive order requires agency heads to review and develop a plan to repeal “unlawful regulations and regulations that undermine the national interest” within 60 days of the order’s date (i.e., by April 20, 2025). The order also directs agencies to deprioritize enforcing regulations based on “anything other than the best reading of a statute” and regulations that “go beyond the powers vested in the Federal Government by the Constitution.”
To that end, the Memo clarifies that during this 60-day review-and-repeal period, agency heads should prioritize evaluating an existing regulation’s lawfulness under several United States Supreme Court decisions that limit agencies’ discretion to issue regulations, including Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) and West Virginia v. EPA, 597 U.S. 697 (2022). Following the 60-day period, agencies must “immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency’s statutory authority or is otherwise unlawful.” The Memo instructs agencies to invoke the “good cause” exception to notice and comment rulemaking under the Administrative Procedure Act when possible, which would let agencies issue interim final rules to repeal regulations. Each repeal must be accompanied by a “brief statement” that outlines why the good cause exception applies. Finally, 30 days after the conclusion of the review-and-repeal period, agencies must submit to the Office of Information and Regulatory Affairs a one-page summary of each regulation under the agency’s authority that was not targeted for repeal and explain the basis for the decision not to repeal that regulation.
OMB Issues Request for Information Regarding Deregulation.
The Office of Management and Budget (OMB) issued a request for information (RFI) that solicits ideas for deregulation.3 The RFI instructs commenters to “identify rules to be rescinded and provide detailed reasons for their rescissions” and invites comments about “any and all regulations currently in effect.” Comments are due by May 12, 2025. The short comment period may be motivated by a desire to include comments in the Spring Unified Regulatory Agenda, which outlines the Administration’s commitments and includes regulatory agendas from all federal entities that currently have regulations under development or review.
Reducing Anti-Competitive Regulatory Barriers.
The executive order “Reducing Anti-Competitive Regulatory Barriers” directs agency heads to review and identify regulations that might pose a barrier to competition by:
- Creating, or facilitating the creation of, de facto or de jure monopolies;
- Creating unnecessary barriers to entry for new market participants;
- Limiting, or having the effect of limiting, competition between competing entities;
- Creating or facilitating licensure or accreditation requirements that unduly limit competition;
- Unnecessarily burdening the agency’s procurement process; or
- Otherwise imposing anti-competitive restraints or distortions on the operation of the free market.4
Within 70 days of the date of the order (i.e., by June 18, 2025), agency heads must provide a list of regulations identified as posing a barrier to competition to the Chairman of the Federal Trade Commission, Andrew N. Ferguson, and U.S. Attorney General Pamela Bondi. The list must include recommendations for whether the listed regulations should be repealed or modified “in light of its anti-competitive effects.” Within 10 days of the order (i.e., by April 19, 2025), Chairman Ferguson must issue a RFI that seeks public input on identifying anti-competitive regulations. The RFI must remain open for 40 days. Finally, within 90 days of receiving a list of anti-competitive regulations, Chairman Ferguson—in consultation with Attorney General Bondi, the Assistant to the President for Economic Policy, and the relevant agency heads—must provide the OMB Director Russel Vought a consolidated list of regulations that warrant repeal or modification, including the recommended modifications. The OMB Director will then decide whether to incorporate the proposed recissions or modifications into the Unified Regulatory Agenda.
References
1 The White House, Directing the Repeal of Unlawful Regulations (Apr. 9, 2025), available at https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/.
2 90 Fed. Reg. 14219 (Feb. 25, 2025).
3 90 Fed. Reg. 15481 (Apr. 11, 2025).
4 The White House, Reducing Anti-Competitive Regulatory Barriers (Apr. 9, 2025), available at https://www.whitehouse.gov/presidential-actions/2025/04/reducing-anti-competitive-regulatory-barriers.
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