Obama administration gives businesses less time to respond to new rules

“We asked for a simple extension. We were denied,” Randy Johnson, vice president for labor policy at the Chamber of Commerce, told reporters Thursday. “We’re scrambling to make to the Friday deadline.”

The shortened timeframe is significant because the public comment periods are a key part of the legal challenges to rules. Registering objections to proposed federal regulations help create legal standing for the objector to later challenge the rule in court later. It is a key part of what many trade associations do. On the more significant rulemakings, the Obama administration sometimes has forced the groups to scramble to file their comments in time.

The overtime rule in particular has many business lobbyists steaming. On July 6, the Labor Department announced the proposed rule, which would raise the “white-collar exemption,” the minimum annual wage workers can earn before their employers deem them “managerial” and therefore exempt from overtime pay requirements, from about $23,000 to $50,000. It announced it would accept comments through Sept 4.

That gave trade associations representing employers just July and August to research the issue and the department’s proposal in all its minutiae and to formulate their responses. On Monday, the administration formally rejected their requests to extend the deadline through at least October.

“In the past, the administration will usually allot 90 days for comments on significant regulation like this. It took them 14 months to come up with the proposed regs,” said Christin Fernandez, spokeswoman for the National Restaurant Association.

Some say the administration made the overtime regulation even harder by not including its own economic impact analysis, forcing the groups to do extensive guesswork in their responses regarding the rule’s impact.

“This lack of clarity further complicates the comment process and increases the amount of time stakeholders will need to provide meaningful feedback,” said David French, senior vice president for government relations for the National Retail Federation.

The National Labor Relations Board did a similar thing with its new rule speeding up union workplace organizing elections, reducing the time from when the union election authorized to when it is held. The board allowed 60 days from when it proposed the rule on Dec. 15 to file a comment. Ironically, the business groups’ objection to the rule was that it wouldn’t give them sufficient time to respond and lodge any objections prior to the election.

The shorter timeframe is a tactic the administration has used going back to when President Obama first took office. When the Environmental Protection Agency first published its legally required “endangerment findings” leading to its new greenhouse gas rules on April 24, 2009, it allowed public comments only through June 23. When the labor board proposed a controversial rule in 2011 requiring employers to post signs laying out workers’ right to form a union, it also allowed only 60 days for comment. The rule was later thrown out in court.

The advantage of this approach is that it’s up to the agency how long it allows for public comments. A guidebook published by the Federal Register, the government’s official daily publication detailing government actions and rulemakings, states that the standard time period is usually up to 60 days. “[B]ut the time period can vary. For complex rulemakings, agencies may provide for longer time periods, such as 180 days or more. Agencies may also use shorter comment periods when that can be justified,” the guidebook says.

Cary Coglianese, director of the University of Pennsylvania Law School’s Program on Regulation, said the 60-day time periods were “not atypical,” noting that nothing in the Administrative Procedures Act, the law that covers federal rulemaking, specifies any time period. “People complain about that under any administration,” he said. “If the time period were 90 days people would say they needed 120 days.”