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Key Takeaways
- OMB has issued a guidance memorandum to streamline the review of deregulatory actions. OMB will accelerate review timelines for deregulatory actions, establishing presumptive 28-day and 14-day deadlines for OIRA review, depending on the rule's complexity.
- OMB directs agencies to forego notice and comment when repealing "facially unlawful" regulations. Relying on the Administrative Procedure Act's (APA) "good cause" exception, OMB is directing agencies to rely on "interim final" rules and broad interpretations of the universe of "facially unlawful" regulations. OMB posits that detailed "rationales," "record-building," and public comment are unnecessary when deregulation arguments are "purely legal."
- Deregulatory actions will be presumed exempt from certain consultation and analytical requirements under other Executive Orders (e.g., on federalism, tribal consultation, and takings).
- OMB's narrowing of procedural requirements and acceleration of agency timelines requires stakeholders to more actively monitor agency actions and likely will generate more litigation.
Summary
On October 21, 2025, OMB issued Memorandum M-25-36, titled "Streamlining the Review of Deregulatory Actions." The guidance, signed by Acting OIRA Administrator Jeffrey Bossert Clark, reiterates how the "Administration is committed to deregulating at an unprecedented scale" and outlines a detailed plan to accelerate and expand the deregulatory directives in Executive Orders 14192 and 14219 that agencies remove outdated, unlawful, or inefficient regulations. This guidance does not have the force of law, but will likely exert substantial influence on agencies' rulemaking agendas as a practical matter.
The memorandum aims to make OIRA a "partner in the deregulation agenda" by:
- Establishing new presumptive deadlines: (1) 28 days for deregulatory actions requiring factual records and (2) 14 days for repeals of facially unlawful rules.
- Encouraging early engagement with OIRA to identify and develop deregulatory opportunities.
- Streamlining compliance with Executive Orders on topics like federalism, tribal consultation, energy impacts, and small entity analyses by deeming them presumptively inapplicable to deregulatory actions.
The memorandum advises agencies to invoke the APA's "good cause" exception to bypass notice-and-comment requirements when repealing rules they deem to be unlawful. It asserts that agencies "do not appear to be fully maximizing their energy" in carrying out the President's directive to invoke the "good cause" exception, and states that "reflexive adherence" to notice and comment "is improper for facially unlawful regulations."
Analysis
1. Expedited Deregulatory Review
By cutting OIRA review timelines from 90 to 28 (or even 14) days, the memorandum significantly reduces the time for OMB to engage with and revise agency documents. It also limits the time stakeholders have to seek modifications or delays of deregulatory actions with agencies and OMB.
2. Broadening the "Good Cause" Exception
The directive to forego notice and comment is based on an aggressive and novel reading of the APA's "good cause" exception. The memorandum advises that agencies should invoke "good cause" to revoke regulations that they believe are unlawful, citing specifically instances where a regulation does not reflect the "single, best meaning" of the statute under Loper Bright Enterprises v. Raimondo (2024), or violates the "major questions doctrine" articulated in West Virginia v. EPA (2022). Stakeholders will need to closely track agency websites and the Federal Register to stay abreast of regulatory actions that will become effective without an intervening comment period.
3. Reframing Deregulation as a Positive Good
The memorandum's final section offers broad policy arguments reframing deregulation as a source of affirmative public benefits — such as enhanced liberty, market flexibility, and cost savings — rather than simply the removal of regulatory burdens. Where agencies detail their rationale for deregulation, OMB directs them to consider these principles. Stakeholders can bolster agencies' rationales by providing data and other information showing how a regulation has not functioned as intended or is no longer needed.
4. Fostering Litigation
The guidance showcases an OMB that is undeterred by the lawsuits many deregulatory actions are likely to face. For example, the memorandum states that agencies should invoke the good cause exception when "the agency is convinced that the regulation is unlawful and that the position has a reasonably good chance of success on the merits." It also relies on Loper Bright, which overruled Chevron and vested power with courts rather than agencies to decide the "single, best meaning" of a statute governing an agency.
In cases where an agency takes deregulatory action without notice and comment, it will be critical for stakeholders to consider participating in ensuing litigation by intervening or filing an amicus brief. Such stakeholder participation will provide reviewing courts additional views and context that would ordinarily be captured during the comment period.
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