Congress returned this week and began consideration of old legislative ideas for regulatory reform with a new perspective – and one that now merits attention. Perhaps the last major labor regulation is published today, but one that may not be as contentious as previous rules have proven to be. And among transition jumping proposals, vehicle safety standards and new communication and safety technology present an early opportunity for the Administration to actually be consistent with its predecessor.
New Legislative Outlook: The House of Representatives, on Thursday, passed H.R. 26, Regulations from the Executive in Need of Scrutiny Act of 2017, by a recorded vote of 237 ayes to 187 noes (Roll No. 23), with several amendments. The bill would completely revise the Congressional Review Act (CRA) and provides that a “major rule” (likely +$100mn impact, now indexed, etc.) shall take effect upon enactment of a joint resolution of approval but a non-major rule may take effect unless Congress enacts a joint resolution of disapproval (current major rule mechanism). The distinction would remain one made and certified by the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). One major amendments would require an agency to identify and amend or repeal a rule or rules that completely offset any annual costs of the new rule to the United States economy – no monetary threshold is applicable.
The House passed, on Wednesday, H.R. 21, Midnight Rules Relief Act of 2017, to amend the CRA to provide for en bloc consideration in resolutions of disapproval for “midnight rules,” by a recorded vote of 238 ayes to 184 noes (Roll No. 8). The Wednesday engrossed bill may not have been carried forward in Thursday’s engrossed bill.
The House passed, also on Wednesday, on suspension of the rules, H.R. 70, Federal Advisory Committee Act Amendments of 2017, to make numerous changes in the advisory committee structure and operations that can facilitate agency understanding and decision-making. The bill would not alter the Negotiated Rulemaking Act (NegReg) that animates agency proposed rules, but only the Federal Advisory Committee Act (FACA) that serves broader purposes.
More is to come. The House Committee on Rules has posited that the House may take up H.R. 5, Regulatory Accountability Act, next week, to make significant changes in the Administrative Procedure Act (APA) and the Regulatory Flexibility Act (RFA), among other things. Other legislation is pending and no end in the process is in sight.
► This blog has historically ignored these regulatory “reform” bills because of simple mathematics – even if both the House and Senate passed any such bill, the President of the United States (POTUS), through his emissaries, vowed to veto the legislation and neither the House nor the Senate possessed a two-thirds, veto-proof majority. There was no point in discussing legislation that had no hope of enactment. Political posturing (the name of the game last Congress) continues, but the potential for passage has substantially changed. With both Houses and the Presidency about to be controlled by the same political party, what Congress passes is now likely to be signed and become law. Both Congress and the President (and the agencies) must then live with the result. The potential impact of regulatory reform legislation is now very real – imposing on agencies, for example, a positive benefits / cost ratio for a new and repealed rule that would require a significant change in the economic analysis that already exists in the underlying rule administrative record. What once was hoped to present a significant impairment to new regulations in the departing Administration may become a significant impairment to altering those same regulations in the incoming Administration. Be careful what you ask for – you may get it.
Occupational Beryllium: The Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) today published its expected economically significant Occupational Exposure to Beryllium final rule, which significantly lowers the employee permissible exposure limits (PEL) to beryllium under the Occupational Safety and Health Act (OSH Act). The final rule adds requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping. The final rule actually adopts three separate safety standards – general industry, shipyards, and construction – to tailor requirements to specific circumstances.
Most notions in the final rule had support (some were generated by industry – union proposals), but not all interested parties will be pleased with the result. OSHA included standards for construction and shipyards based on responses to the proposed rule, apparently because of feasibility concerns. The final rule is effective March 10, 2017, but compliance dates are extended.
► A major rule might prove the point that the regulatory reform legislation is fraught with peril – although generally supported, how would a converse economic analysis be structured to support removal or alteration of this rule? The final rule, of course, bridges the transition to a new Administration and will likely be reviewed anew prior to the effective date. Whether difference and disagreements will be significant enough for the agency to stay the delayed effective date and reconsider the rule remains unknown.
V2V Communications Proposal: The Department of Transportation (DOT) National Highway Traffic Safety Administration (NHTSA) released its Federal Motor Vehicle Safety Standards: V2V Communications was released for public inspection on January 3, and will be published in the Federal Register on January 12. The proposed Federal Motor Vehicle Safety Standard (FMVSS) would mandate vehicle-to-vehicle (V2V) communications for new light vehicles and to standardize the message and format of V2V transmissions, attempting to create an information environment for vehicle and device manufacturers to create and implement V2V applications. A final FMVSS would preempt inconsistent State and local requirements – a potentially significant problem – but would not alter common law tort liability. Public comments will be due April 12, 2017.
► The proposed rule was expected and not surprising – emerging technology waits for no Administration, old or new, and cares not a whit about politics. The issue naturally bridges the transition without pause – like the majority of rulemakings.