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Feb. 10 — Final rules, such as the Occupational Safety and Health Administration's proposed silica regulations, need to be submitted to Congress no later than May 16 to avoid being overturned by the next Congress and president using the Congressional Review Act, according to a new report from the Congressional Research Service.
While the report's estimate isn't binding on lawmakers, a May 16 deadline means Obama administration agencies and the White House's Office of Information and Regulatory Affairs will have to complete their work on controversial major rules eight months before the administration leaves office on Jan. 20, 2017.
The review act defines a major rule as a regulation considered “economically significant” because the annual effect on the economy is $100 million or more.
The CRS is a branch of the Library of Congress providing policy and legal analysis to lawmakers.
Among the OSHA major rules that will need to meet the deadline or face possible revocation in 2017 by the 115th Congress and a potentially Republican president are the OSHA's silica (RIN 1218-AB70) and beryllium (RIN 1218-AB76) rules, policy analysts told Bloomberg BNA.
In addition, Department of Labor rules for financial advisers (RIN 1210-AB32), contractor compliance (ZRIN 1290-ZA02)and overtime pay (RIN 1235-AA11) face the same deadline, the analysts said.
The Congressional Review Act (CRA) has been used once to overturn a rule, the ergonomics standard developed by the Clinton administration. The final rule was issued in November 1990.
After President George W. Bush (R) took office in January 2001, he signed Congress's disapproval resolution, killing the regulation.
“Such circumstances could repeat in 2017 if the nation elects a President and Congress that oppose some late-issued final rules of the Obama Administration,” the Congressional Research Service (CRS) report said.
The review act allows the House and Senate to block final rules they object to. The CRS report explains that if a rule is submitted to the Senate with fewer than 60 “session days” left or to the House with fewer than 60 “legislative days” remaining, then the next Congress will have a similar 60-day period to consider the rule.
For 2016, the CRS says, the 60-day window means that if a final rule is delivered to Congress after May 16, then the Congress seated in January 2017 will be able to review the rule and have its disapproval resolution considered by the new president.
The May 16 deadline would change if House and Senate leaders revise the legislative calendars, with final determinations made by the chambers' parliamentarians, the CRS said.
Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, said there has been a lot of discussion on when the review act filing deadline would be and that the CRS report was the first indication to come from a congressional agency.
Amit Narang, regulatory policy analyst with Public Citizen, told Bloomberg BNA Feb. 10 that the CRS's May 16 estimate agrees with his calculations on filing deadlines. While the actual date could change based on how long Congress's lame duck session is following the Nov. 8 general election, adhering to the May 16 deadline is the safest option for agencies submitting major rules, Narang said.
Judging by rules sent to OIRA for review before issuing final rules, the Obama administration is aware of the approaching deadline, Peg Seminario, safety and health director at the AFL-CIO, told Bloomberg BNA Feb. 10.
The draft final silica rule arrived at OIRA on Dec. 21, and OSHA has projected releasing the final rule in February .
However, OIRA's review of a proposed version of the silica rule lasted two-and-a-half years.
Seminario said meeting a filing deadline won't be the end to opponents trying to stop or limit regulations. She anticipates court challenges after final rules are issued.
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The CRS report, “Agency Final Rules Submitted After May 16, 2016, May Be Subject to Disapproval in 2017 Under the Congressional Review Act,” is available at http://src.bna.com/cAk.
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