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On February 8, three organizations—Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America—sued the Trump administration over the President’s recent Executive Order (as clarified by the OMB’s interim guidance issued on February 2), which directs agencies to identify two regulations for repeal for every rule written (covered in InfoBytes here). The action seeks to have the Executive Order declared unconstitutional and enforcement thereby stayed. Among other things, the complaint asserts that the President’s Executive Order unlawfully forces agencies to make decisions based on an “impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards.” To repeal “two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits,” Plaintiffs argue, “is arbitrary, capricious, an abuse of discretion, and not in accordance with law.” The case has been assigned to Judge Gladys Kessler of the U.S. District Court for D.C.
On February 3, President Trump issued an Executive Memorandum directing the Department of Labor (DOL) to examine the Fiduciary Rule—an April 2016 DOL rule that expands the circumstances in which a person will be treated as a fiduciary under both ERISA and Section 4975 of the Internal Revenue Code by reason of providing investment advice to retirement plans and IRAs. In the memorandum, President Trump calls for an examination of the Fiduciary Rule to determine whether it (i) has harmed or is likely to harm investors; (ii) has resulted in dislocations or disruptions within the retirement services industry; and (iii) is likely to cause an increase in litigation and an increase in the prices that investors and retirees must pay to gain access to retirement services. If the Secretary of Labor makes any of these findings, the memorandum directs the Secretary of Labor to publish a proposed rule rescinding or revising the Fiduciary Rule. Initial compliance with the Fiduciary Rule is currently required by April 10, but the DOL has announced that it “will now consider its legal options to delay the applicability date as we comply with the President’s memorandum.”
On February 3, President Trump signed an executive order (the Executive Order) directing the Treasury Secretary and the heads of the member agencies of the Financial Stability Oversight Council (FSOC) to review financial laws and regulations—including the Dodd-Frank Act and regulations implementing that law—thereby setting into motion a process by which the 2010 financial law could be significantly scaled back.
Under the Executive Order, the Secretary of the Treasury – who has yet to be confirmed – has 120 days to review and report to the President which existing laws, treaties, regulations, guidance, reporting and recordkeeping requirements promote the “core principles” listed below and those that do not. The core principles include:
- restoring public accountability within Federal financial regulatory agencies and rationalize the Federal financial regulatory framework
- fostering economic growth and vibrant financial markets through more rigorous regulatory impact analysis that addresses systemic risk and market failures, such as moral hazard and information asymmetry
- enabling American companies to be competitive with foreign firms in domestic and foreign markets
- advancing American interests in international financial regulatory negotiations and meetings
- preventing taxpayer-funded bailouts, and
- empowering Americans to make independent financial decisions and informed choices in the marketplace, save for retirement, and build individual wealth
* * *
If you have questions about the order or other related issues, visit our Consumer Financial Protection Bureau practice for more information, or contact a BuckleySandler attorney with whom you have worked in the past.
On January 30, President Trump signed an Executive Order aimed at reducing the “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations” and ensuring that such costs are “prudently managed and controlled through a budgeting process.” The measure requires all executive departments and agencies to cut two existing regulations for every new regulation they implement. The Order also establishes a regulatory budget of $0 for FY 2017—meaning that the total incremental cost of all new regulations, when adding the cost burden of any new regulation and then subtracting the cost savings of repealed regulations, can be no greater than $0. Thereafter, beginning in FY 2018, each agency will be required to provide the Office of Management and Budget (OMB) with its best approximation of the total costs or savings to be expected from any new regulations. To the extent such estimates predict an increase in that Agency or department’s “incremental regulatory costs,” such increase will need to be authorized by the OMB (or by congress via a new law).
Details concerning how the new budgeting process and cost-offsetting policy will be implemented are left to the Office of Management and Budget, which is directed to provide agencies with guidance. House Financial Services Subcommittee Chairman Tom Graves sent a January 30 letter to CFPB Director Richard Cordray, seeking clarification as to the Bureau’s stance on whether the Trump Administration’s January 20 “Regulatory Freeze” Memorandum—which is similarly directed at “executive agencies”—applies to the CFPB.
On October 18, OFAC granted General License No. 2B renewing the authorization regarding nine Belarusian entities to enter into transactions otherwise prohibited by Executive Order 13405. General License No. 2B replaces and supersedes in its entirety General License No. 2A, which was set to expire later this month, and authorizes transactions with any entities that are owned 50 percent or more by the nine named entities. All property and interests in property of these entities, if blocked, remain blocked. U.S. persons must report authorized transactions or any series of transactions exceeding $50,000 to the U.S. Department of State no later than 30 days after execution. The authorization expires on April 30, 2017, unless otherwise extended or revoked.
On October 29, OFAC granted a General License authorizing nine Belarusian entities to make transactions otherwise prohibited by Executive Order 13405, effective October 30. The General License also authorizes transactions with any entities that are owned 50 percent or more by the nine named entities. U.S. persons must report authorized transactions or series of transactions exceeding $10,000 to the U.S. Department of State no later than 15 days after execution. The General License expires on October 31, 2016, unless extended or revoked.
- Jeffrey P. Naimon to discuss "Post-pandemic CFPB exam preparation" at the Mortgage Bankers Association Spring Conference & Expo
- Jonice Gray Tucker to discuss "Making fair lending work for you" at the Mortgage Bankers Association Spring Conference & Expo
- Jonice Gray Tucker to discuss "Reading the tea leaves of President Biden’s initial financial appointees" at LendIt Fintech
- APPROVED Webcast: Staying in the know with Buckley regtech solutions
- Moorari K. Shah to discuss “CA, NY, federal licensing and disclosure” at the Equipment Leasing & Finance Association Legal Forum
- Jonice Gray Tucker to discuss "Compliance under Biden" at the WSJ Risk & Compliance Forum
- Sherry-Maria Safchuk to discuss UDAAP at an American Bar Association webinar
- Jeffrey P. Naimon to discuss "What to expect: The new administration and regulatory changes" at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Jonice Gray Tucker to discuss “The future of fair lending” at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Steven R. vonBerg to discuss "LO comp challenges" at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Michelle L. Rogers to discuss "Major litigation" at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Michelle L. Rogers to discuss “The False Claims Act today” at the Federal Bar Association Qui Tam Section Roundtable