Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/732024
40 AGGREGATES MANAGER / October 2016 While the Congressional Review Act allows Congress to overturn recent rules, it is rarely used following presidential elections. Benjamin J. Ross is an as- sociate in the Denver office of Jackson Kelly PLLC, practicing in the Occupational Safety and Health Practice Group. He can be reached at 303-390-0026 or bross@jacksonkelly.com. MythBusters: Midnight Regulations E very four years, the presidential election prompts a flurry of rule- making activity by federal agencies known as "midnight regulations" where agencies attempt to finalize rules before a potential change in the controlling politi- cal party of the government. Currently, the Mine Safety and Health Administration (MSHA) has three regulations pending: Examinations of Working Places in Metal/Non-metal Mines, Exposure of Underground Miners to Diesel Exhaust, and Proximity Detection Systems for Mobile Machines in Underground Coal Mines. MSHA also announced that it intends to pro- mulgate a silica rule before the end of the year, and the Department of Labor's Penalties Inflation Adjustment Act Catch-Up Adjustments remains active. If those rules are not finalized before a new president is inaugurated on Jan. 20, 2017, the new president could replace the leadership of the Department of Labor and stop those rules. MSHA is likely to finalize its rules to prevent this from occurring. Much has been said about midnight rule- making activity, and, generally, it focuses upon the need for agencies to finalize rules far enough in advance of the inauguration to prevent triggering the Congressional Re- view Act (CRA). The CRA allows Congress to review and overturn rules, within 60 days of the agency's promulgation of a rule. The CRA receives attention and commentary from the media and other sources, especially close to the end of a presidential term, but it is sel- dom explained, less often used, and, in prac- tice, poses little threat of overturning rules. The CRA requires that agencies submit a report of all major rules to Congress for review, giving Congress the chance to disapprove rules and providing opponents of rules hope that Congress will nullify those rules. Agencies must provide Congress with a plethora of information, including a copy of the rule and the agency's cost-benefit analysis of the rule. 5 U.S.C. §§ 801(a)(1)(A), (B). Once an agency submits its rule or publishes it in the Federal Register, which- ever is later, Congress has 60 days to review that rule. In practice, this 60-day period extends for longer than 60 days, as it does not include days when either House of Congress adjourns for three days or more, or when Congress is not in session. 5 U.S.C. § 801(d)(1). Because the CRA limits the scope of con- gressional action under its procedures, it expedites Congress's review of a rule, making it a faster option than traditional legislative action. Both Houses of Congress may con- sider only the joint resolution of disapproval without considering other matters. The CRA designates a template for the matter to be considered: "That Congress disapproves the rule submitted by the ___ relating to ___, and such rule shall have no force or affect." 5 U.S.C. § 802(a). The limitations placed upon the body of the joint resolution prevent Con- gress from impeding it by adding additional measures, or "pork," which members of Con- gress may debate or oppose. If one house passes the joint resolution, the other house cannot submit that resolution to committee by Benjamin J. Ross ROCKLAW