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White House Debuts New Regulatory Playbook After Virus Delay (2)

June 30, 2020, 4:08 PMUpdated: June 30, 2020, 9:13 PM

A comprehensive list of all regulations federal agencies plan to advance or cut over the next year was released by the White House Office of Management and Budget, revealing some surprise upcoming labor and environmental moves.

The mandatory report to Congress, known as the unified regulatory agenda and made public Tuesday, details an array of new regulatory and deregulatory proposals agencies will push through early 2021. It includes a major new proposal on worker classification, one on pay-data reporting for companies, and coming regulations on PFAS, a class of compounds known as “forever chemicals” that have been linked to numerous health problems.

“This spring agenda caps off four years of unprecedented results, removing government obstacles that stifle small business growth, while growing our economy and saving American jobs,” acting OMB Director Russell Vought said in a statement.

The report updates the fall 2019 regulatory agenda, which was released months before the pandemic hit the U.S. The administration typically produces a unified agenda in the fall and spring every year. The spring edition, often referred to as a midyear update, was released in May in five of the last six years, but the new installment was delayed because of the coronavirus pandemic.

The fall agenda anticipated that agencies would issue almost double the number of expensive new rules this year compared with rollbacks of major rules, according to an analysis by the George Washington University Regulatory Studies Center.

Gig Economy, PFAS

The spring installment includes a previously unannounced Labor Department plan to issue a proposed rule this year for determining whether workers are independent contractors—and therefore exempted from minimum wage and overtime requirements—or employees. The issue has taken on increasing legal significance with the rise of the gig economy.

The administration’s playbook said PFAS substances are expected to join the list of chemicals the Environmental Protection Agency targets in federal cleanup efforts. The agency said it will release preliminary details in August about designating PFAS chemicals as hazardous under Superfund law. The chemicals are found in a range of consumer goods, from nonstick cookware to carpeting, and may cause adverse health effects such as liver tissue damage, developmental harm, and certain types of cancer, the agency said.

“EPA has mapped out our regulatory agenda through the first half of 2021 that will continue to reduce pollution and improve the health of all Americans, while bolstering the economy,” EPA Administrator Andrew Wheeler said in a statement.

Elsewhere in the agenda, the Equal Employment Opportunity Commission said it will consider revisiting the practice of collecting worker pay data from companies to assist its enforcement of equal pay and anti-discrimination law. The White House earlier halted a previous version of a pay-data collection.

And the playbook reveals the National Labor Relations Board plans to issue by the end of September a final rule on student-workers’ rights to unionize at private universities.

More Moves in Pipeline

The last few months have seen agencies complete some of their most important rulemakings of President Donald Trump’s first term, including the Waters of the U.S. rule and the Safer Affordable Fuel Efficient Vehicles rule, said Paul Ray, administrator of OMB’s Office of Information and Regulatory Affairs.

“With the rulemakings featured in this year’s spring agenda, agencies will continue to rescind and revise regulations to promote economic recovery and growth,” Ray said in a statement.

The agenda outlined plans for several new proposals as well:

  • The Treasury Department is working on new proposed rules for virtual currency brokers to report traders’ obligations to the Internal Revenue Service. The rules will involve a section of tax code that sets thresholds for third-party platforms to report individuals’ incomes from contract work. Some cryptocurrency trading platforms send traders the same tax forms companies like Uber and Lyft must send to drivers, depending on how much they make.

  • EPA said it won’t be issuing revised toxic air pollution limits until January for heavy boilers used in refineries, steel mills, and power plants, after missing its June deadline for publishing a proposed rule.
  • The Agriculture Department is taking aim at abuse of federal food assistance with a new proposed rule to “deter retailer fraud” within the Supplemental Nutrition Assistance Program.
  • USDA’s Rural Housing Service is reviving a rule that had been delayed indefinitely in 2005 to impose citizenship requirements for multi-family housing direct loans and grants.
  • The Department of Homeland Security is proposing to require domestic sponsors of immigrants to repay the government for the costs of any public benefits the immigrant receives.
  • EPA said it will propose a rule this fall to streamline its reviews of new chemicals, a process that determines whether chemical companies can bring the products to market.
  • The Bureau of Land Management plans to revise its regulations to specify that oil and gas wells burning, or “flaring,” excess natural gas can do so without having to pay royalties on the leaked gas. The proposal specifies only oil wells, although both oil and gas wells are flared.

At least one notable planned rule was dropped from the agenda since last year. The Food and Drug Administration is no longer pursuing a rule that would have established limits for impurities found in e-cigarette liquid.

“The agency has listed regulations in the Spring 2020 Unified Agenda that reflect its most immediate plans,” said an FDA spokesperson. “However, it is important to note that just because an action is not listed in the Unified Agenda, that does not mean the agency does not consider it a priority or that it will not continue to work on its development.”

Over the last few months, the Trump administration has taken 740 administrative actions in response to the pandemic, many of them deregulatory, OMB said in a statement. As part of their work moving forward, agencies are determining which of their virus-related changes can be made permanent.

With assistance from Ben Penn, Paige Smith, Shira Stein, Hassan Kanu, Amena Saiyid, Megan Boyanton, Lydia O’Neal, Shaun Courtney, Bobby Magill, Sylvia Carignan, and Denise Pat Rizzuto.

(Updated throughout with details of proposals.)

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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