Executive Order to reduce regulations

Executive Order to reduce regulations

President Trump today signed an Executive Order having a goal of “reducing regulation and controlling regulatory costs.”

The Executive Order provides (among other things) that:
  • Unless prohibited by law, whenever an executive department or agency publicly proposes for notice or comment or otherwise promulgates a new regulation, it must identify at least two existing regulations to be repealed.
  • For the fiscal year that is currently in progress, the heads of all agencies are directed that “the total incremental cost of all new regulations, including repealed regulations, to be finalized this year” shall be no greater than zero ($0), unless otherwise required by law or consistent with advice provided by the Office of Management and Budget (OMB).
  • Any incremental costs associated with new regulations will be, to the extent permissible by law, offset by the elimination of costs associated with at least two prior regulations (with eliminating existing costs being done in accordance with the Administrative Procedure Act and other applicable law).
  • OMB is to provide agencies with guidance on the implementation of the Executive Order, including guidance for measuring regulatory costs and what qualifies as “new” regulations.
  • Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent or updated version of the published Unified Regulatory Agenda required under Executive Order 12866 (issued in 1993), or any successor order, unless the issuance was approved in advance by OMB.
  • During the administration’s budget process, OMB will identify for agencies a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the fiscal year—and the agency cannot exceed that allowance unless required by law or approved by OMB.

For purposes of these rules, the Executive Order generally defines the term “regulation” or “rule” as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency,” but provides exceptions for:

  • Regulations issued with respect to a military, national security, or foreign affairs function of the United States
  • Regulations related to agency organization, management, or personnel
  • Any other category of regulations exempted by OMB

KPMG observation

The Executive Order, on its face, does not provide exceptions for tax regulations. However, OMB seemingly has broad authority to provide exceptions for categories of regulations. To the extent OMB does not provide exceptions for some or all tax rulemaking, the Executive Order seemingly could potentially affect the issuance of not only proposed and final tax regulations, but also revenue rulings, revenue procedures, and IRS announcements.   

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