On Jan. 8, the U.S. Department of Health and Human Services (HHS) finalized the rule “Securing Updated and Necessary Statutory Evaluations Timely” (SUNSET), which sets a 10-year review deadline for regulations created by HHS and its agencies. The rule would also require any regulation older than 10 years be reviewed within 5 years of the enactment of the final rule, an extension from the original proposed deadline of 2 years.
NADP commented in opposition to the rule, citing concerns about the potential instability caused by the accidental expiration of regulations. In response, HHS noted:
“Some commenters expressed concern that regulations might accidentally expire due to the Department not timely conducting an Assessment or Review. The Department intends to review all regulations subject to this final rule, and that any regulations that are eliminated will be formally rescinded following the Review process. This is consistent with the experiences of other jurisdictions with sunset provisions, where rules (or boards or commissions) are first subjected to a review process before they are reauthorized or rescinded. As an example, Idaho recently conducted a sunset review of its entire regulatory code. While a significant number of rule chapters were eliminated as part of that effort, those chapters were rescinded as part of a deliberate review process.” (p.191)
HHS also noted that based on the use of sunset clauses at the state level, they did not believe it was likely that regulations would be repealed without undergoing a review. However, this comparison does not fully demonstrate that federal resources would be utilized to effectively review every regulation before its respective deadline.
As part of its ongoing advocacy on this and other regulatory issues, NADP is preparing to engage with congress to request the use of the Congressional Review Act (CRA) to repeal the final rule. The CRA allows Congress to unilaterally repeal rules and regulations within 60 legislative days of its finalization. It is often utilized by incoming presidents and their allies in Congress to repeal rules finalized at the end of the previous administration. In 2017, President Trump and the unified Republican Congress utilized the CRA on several Obama era rules.