Saturday, June 24, 2017

OMB Approves Two Final Rules for TSCA Update

Over the last two days the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved two final rules (here and here) submitted by the EPA supporting changes required by §6(b) and §8(a) of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (PL 114-182). The EPA has sent copies of those two final rules (here and here) to the Office of the Federal Register for publication. Those rules are not scheduled for Monday publication, but they will almost certainly be published next week.

It is unclear how much of a re-write these rules are from the notices of proposed rulemaking (NPRMs) written by the Obama Administration (here and here) shortly before Trumps inauguration. I did not review those NPRMs at the time because I was sure that there would either be new NPRMs published by the incoming administration or complete rewrites in the final rulemaking. Whether or not the rewrites here are legally justifiable will inevitably be determined by the courts.

I will not start commenting on these rules until they are published in the Federal Register. Other organizations have already started their commenting process (see for example here), but I prefer to wait because the formal publication allows me to link to specific paragraphs in the rule and preamble. This allows people to better understand what I am saying and check on my interpretations.

One point that I will comment upon. Both rules will become effective upon publication. This is unusual, but it is a result of congressionally mandated reporting requirements that become effective upon publication. The EPA determined (rightly so in my opinion) that there was no regulatory purpose to be served by adding a 60-day or 90-day effective date when that would just cut into the 180-day reporting requirements in the bill. There is, of course, the possibility that there could be a court stay of the effective date, but that cannot change the mandated reporting schedule.

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