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Freeze affects three regulations that impact dentistry

February 07, 2017

By Jennifer Garvin

Washington — In response to the White House's memorandum freezing all new or pending federal regulations, the ADA has determined that three of these regulations are rules that impact the dental profession.

The memorandum applies to any regulation that was not published in the Federal Register or had not taken effect prior to Jan. 20 in accordance with the proper Federal Register procedures.

The three final rules that were affected are:
  1. The Environmental Protection Agency's final rule requiring dental offices to install amalgam separators by 2019. This rule was finalized Dec. 15, 2016, and submitted for publication in the Federal Register. The EPA withdrew this rule on Jan. 23, the day before it was due to officially be published. The Office of the Federal Register is required by law to file documents for public inspection on the business day before publication. On Feb. 1, the Natural Resources Defense Council filed a lawsuit contending that because the EPA requested the amalgam separator rule be withdrawn before it had been published but after it had already been filed for public inspection, the regulation was already legally in effect.

    Officially, the rule has been withdrawn. However, if the court concludes EPA did not have the legal authority to withdraw the rule, then the rule could be subject to the 60-day review period, depending on the agency's interpretation of whether (and when) the rule was (or will be) "published." Moreover, the Administrative Procedures Act requires that federal agencies must issue a public notice and provide the public an opportunity to comment before a final rule can be withdrawn.

    The ADA spent more than a decade communicating with agency officials, testifying at public hearings and submitting written comments for the record. The final rule is consistent with the ADA principles for developing a national pretreatment standard for dental office wastewater, as approved by the 2010 House of Delegates in Resolution 50H-2010.

  2. The Occupational Safety and Health Administration's final rule to lower the amount of beryllium to which workers can be exposed. This final rule was issued Jan. 9 and was set to take effect March 10. Because the rule was not technically in effect on Jan. 20, it is subject to the 60-day review. As a result, OSHA has temporarily delayed the effective date until at least March 21. The ADA filed comments on this rule in 2015.

  3. The Department of Labor's May 2016 final rule expanding the number of lower-income workers guaranteed overtime pay. This regulation was set to take effect on Dec. 1, 2016, before a federal judge in Texas issued a preliminary injunction based on two lawsuits. Because the rule was not technically in effect on Jan. 20, 2017, it is subject to the 60-day review. If the Labor Department decides to withdraw the rule, the Administrative Procedures Act requires that it issue a public notice and provide the public an opportunity to comment before it can be withdrawn. The two lawsuits could also complicate what happens during the 60-day review. The ADA filed comments in September 2015 and is continuing to monitor the rule's progress.
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