We have reached the six-month anniversary of President Trump’s landmark executive order that extended the regulatory review process run by the White House’s Office of Information and Regulatory Affairs (OIRA) to regulations issued by independent agencies.[1]  This order marked an important change for many companies, especially in the financial services and energy sectors, whose regulators are now subject to White House regulatory review for the first time.

President Trump’s order left open many questions about how OIRA review of independent agency rules would work in practice.  Here at the six-month mark, we have seen enough such reviews to begin to answer these questions.  The bottom line for business is that OIRA and the independent agencies have begun to work out a harmonious relationship.  The independent agencies have acquiesced in OIRA review; indeed, nearly all major independent regulators have by now submitted rules for review.  Reviews—far from imposing major delays on independent agency rulemaking, as some feared—have been remarkably speedy, with both OIRA and the agencies themselves willing to dispense with formalities to expedite reviews.  In short, OIRA review is being integrated into the regulatory process of the independent agencies without undue disruption.

First, some background.  OIRA review was created by President Reagan in an order that empowered OMB to review proposed and final regulations by agencies.  Independent agencies, however, were exempted from review.[2]  President Clinton carried over this exception when he replaced President Reagan’s order with a new order which governs OIRA review today.[3]  The exception’s rationale was never clear.  After all, OIRA review promised much the same benefits—interagency coordination, improved cost-benefit analysis, and democratic accountability—to independent agency rulemakings as it conferred on rulemakings by non-independent agencies.[4]  And the Department of Justice’s Office of Legal Counsel concluded that extending OIRA review to independent agencies would not violate statutory protections for agency independence.[5]  Regardless, presidents from Clinton onward left the exception intact.

That changed on February 18, 2025, when President Trump issued an order entitled Ensuring Accountability for All Agencies.  This order directed independent agency chairs to consult with various White House policy officials, subjected independent agencies to OMB’s apportionment authority, and required independent agency staff to abide by the Attorney General’s legal interpretations.[6]  It also revised the Clinton-era order to include independent agencies.  President Trump’s order swept quite broadly, including under OIRA review even rulemakings by the Federal Election Commission; its only exception is for the Federal Reserve in its conduct of monetary policy (but not in the exercise of its banking regulatory function; Fed banking regulations are now subject to OIRA review).[7]

President Trump’s order left open many questions about OIRA review of independent agency rulemakings.  For one, would the agencies comply?  Six months after the issuance of the order, we can now answer this question with a resounding yes.  In the last six months, most of the major independent agencies have submitted regulations for review.  OIRA has concluded four reviews of regulations by the Federal Communications Commission; two reviews (of a single regulatory action) by the Securities and Exchange Commission; two of actions by the Federal Deposit Insurance Corporation (one of which is a joint rulemaking with the Federal Reserve and the Office of the Comptroller of the Currency); two of rules by the Federal Energy Regulatory Commission; and two of rules by the Nuclear Regulatory Commission.  OIRA has also reviewed nine rules by the Consumer Financial Protection Bureau, an agency listed as independent in federal law though lacking removal protections in light of Seila Law LLC v. CFPB.[8]

Also unclear at the time of the Trump order’s issuance was whether OIRA review would substantially delay independent agency rulemakings.  Indeed, fear of undue delay was one main objection urged against the extension of OIRA review to independent agencies.  But the experience of the last six months suggests that OIRA review does little to delay independent agency rulemakings.  OIRA review of independent agency rulemakings (excluding rulemakings by the sui generis CFPB) lasted an average of 17 days, and no review took more than 29 days.  To date, then, OIRA has reviewed independent agency rulemakings in a fraction of the ninety days allotted to it for regulatory reviews under the Clinton-era order.

A final question after the issuance of the Trump order was how OIRA review would relate to commission voting.  The principal independent agencies are collegial in structure (again, except for the CFPB), and a rule drafted by agency staff doesn’t become the agency’s own until adopted by a vote of the commissioners.  Yet OIRA typically reviews only draft rules that have been approved by agency leadership.  When the Trump order issued, it was unclear whether OIRA would accept for review draft rules that do not bear the imprimatur of a commission vote, or conversely whether the independent agencies would be comfortable sending to the White House for review draft rules that the commissioners have not yet adopted or perhaps even seen.  Of course, the conclusion by either OIRA or the agencies that a commission vote is necessary before sending a draft to OIRA would have dramatically driven up the transaction costs of independent agency rulemaking.

But six months of practice have resolved these doubts.  In that time, in a large majority of cases, the independent agencies held a commission vote on a draft rule only after OIRA concluded review of the draft[9]; the agencies did not feel the need to vote before sending draft rules to OIRA, and OIRA accepted for review rules drafted by agency staff and not yet approved by the author agencies’ leadership.

The picture of OIRA review of independent agency rulemakings that has emerged over the last six months suggests that OIRA and the independent agencies have found a workable modus vivendi.  Going forward, firms regulated by independent agencies—especially in the financial services and energy sectors—should take OIRA review as an established part of the regulatory environment.  They should also have some degree of confidence that OIRA review will not significantly delay the rulemaking timelines of their regulators.

We encourage clients with questions about the OIRA review process—including questions about how to request meetings with OIRA about rules under review—to contact Covington’s public policy practice.

[1] Ensuring Accountability for All Agencies, 90 Fed. Reg. 10,447 (Feb. 24, 2025).

[2] See Federal Regulation, 46 Fed. Reg. 13193 (Feb. 19, 1981) (referencing 44 U.S.C § 3502).

[3] See Regulatory Planning and Review, 58 Fed. Reg. 51735 (Oct. 4, 1993).

[4] See generally Paul J. Ray, 19 J. of Law, Economics, and Policy 260 (2024).

[5] See Extending Regulatory Review Under Executive Order 12866 to Independent Regulatory Agencies, 43 Op. O.L.C. 232 (2019).

[6] See 90 Fed. Reg. 10447.

[7] Id.

[8] 591 U.S. 197 (2020).

[9] There are exceptions: in one case, the FDIC’s board adopted a rule before sending it to OIRA for review.

Photo of Paul Ray Paul Ray

Paul Ray advises clients on regulatory opportunities and challenges and helps them formulate and execute advocacy strategies for their regulatory policy priorities before the executive branch and Congress.

During the first Trump Administration, Paul held various senior positions at the Office of Information…

Paul Ray advises clients on regulatory opportunities and challenges and helps them formulate and execute advocacy strategies for their regulatory policy priorities before the executive branch and Congress.

During the first Trump Administration, Paul held various senior positions at the Office of Information and Regulatory Affairs (OIRA) within the White House’s Office of Management and Budget, including as acting, and then Senate-confirmed, head of the office. As OIRA Administrator (the “regulations czar”), Paul supervised the review of hundreds of regulations from across the government, drafted numerous executive orders governing the regulatory process, and led the Administration’s regulatory reform effort. As a result of this experience, Paul is well-positioned to help clients understand and achieve regulatory policy priorities in the context of the government’s regulatory agenda and ongoing reform efforts.

Most recently, Paul was also the Director of the Roe Institute for Economic Policy Studies at The Heritage Foundation. In that role, he supervised the formulation of the Foundation’s economic and regulatory policy recommendations and provided technical assistance to congressional committees and staff regarding legislative changes to the regulatory process. In addition to his role at The Heritage Foundation, Paul also served as a Senior Advisor at a strategic advisory firm. Before his time in government, Paul practiced law at a law firm in Washington, specializing in administrative law matters.

Prior to his role at the White House, Paul was Counselor to the Secretary at the U.S. Department of Labor. There he led departmental efforts in high-profile rulemakings and helped formulate the Department’s legal positions and strategy.

Paul served as a law clerk to Supreme Court Justice Samuel Alito and as a law clerk to the Honorable Debra Livingston of the U.S. Court of Appeals for the Second Circuit.

Paul is a thought leader in the conservative legal movement and is a frequent commentator and speaker on regulatory policy and reform matters, including at law schools, professional gatherings, and other venues. He is the Chairman of Innovations in Peacebuilding International and the Regulatory Process Working Group of the Federalist Society’s Regulatory Transparency Project and a public member of the Administrative Conference of the United States. Paul is also an adjunct lecturer at the Hillsdale College School of Government.

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