The Administration made major and often unheralded moves last week on several different issues that deserve highlighting. The success or failure of the Obamacare website may have dominated the general and political news media, but lurking behind that behemoth political risk the Administration moved with haste to finalize and publish massive new Obamacare / Medicare / Medicaid regulations. On a second front, the Internal Revenue Service (IRS) proposed a politically significant revision of tax exempt “social welfare” organization regulations that cannot be seen as other than a response to the unresolved Tea Party applications scandal. Finally, the Office of Management and Budget (OMB) opened a public docket for comments as promised on the highly technical and controversial Social Cost of Carbon. In litigation, a recent challenge to an Administration regulation illustrated the right way to manage Administrative Procedure Act (APA) litigation. Continue Reading
The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) released the Fall 2013 Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions on November 26, 2013. Many of the rulemakings are “old hat” and have appeared in the plan and agenda many times – illustrating the fundamental issue of relevancy and currency – but OIRA Administrator Howard Shelanski has succeeded in putting the semi-annual publication back on a timely track. The agenda provides only a semi-filtered view of each agency’s intentions, and must be considered within its limitations.
The “Unified Agenda” is shorthand for three distinctly different public statements of agency priorities.
- Each agency Fall 2013 Agency Statements of Regulatory Priorities – often called the Regulatory Plan – is currently available on Reginfo.gov and should begin appearing in the Federal Register indicates important or priority regulatory actions that are now under contemplation for issuance in proposed or final form during the upcoming fiscal year. The Regulatory Plan is that which an agency is most sure about.
- The agency Regulatory Agenda publications that will appear soon in the Federal Register include agency regulatory flexibility agendas to comply with the requirements of the Regulatory Flexibility Act (RFA) – only Agenda entries that are likely to have a significant economic impact on a substantial number of small entities and entries that have been selected for periodic re-review under the RFA.
- The full Unified Agenda of Regulatory and Deregulatory Actions found on Reginfo.gov more comprehensively lists all agency regulatory actions, including less important, ministerial, and routine rulemakings that the agency expects to issue within the next year, but may also include long-term initiatives that the agencies do not expect to complete in the coming year.
The entire Unified Agenda is only a “snapshot” of intentions, and foreseen and unforeseen events can change an agency’s priorities quickly and frequently. Moreover, the agency agendas reflect what the agency wants to make public, not necessarily all that they are actually considering, and some highly controversial issues may be withheld. Finally, the agendas may indicate a posture that will not ultimately be approved – such as an interim final rule that may not pass Administrative Procedure Act (APA) muster on review – and skepticism is merited. All that said, the Unified Agenda is worth reviewing by any regulated party.
The United States Supreme Court (SCOTUS) announced today that it will hear two cases raising questions of whether the Administration has adequately respected a business owner’s freedom of religion in the Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations when it required that employers provide no cost preventive contraceptive care in employee health insurance: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Sebelius. SCOTUS consolidated the cases for one hour of oral argument next Spring. Hobby Lobby and Conestoga reflect a clear, direct, and growing conflict among the United States Courts of Appeals over a fundamentally important and recurring issue. but that issue is definitely regulatory, possibly statutory, but likely not constitutional. Continue Reading
Economically significant rules dominated the past week, with extensions of the comment periods on four Food and Drug Administration (FDA) Food Safety Modernization Act proposed rules, Environmental Protection Agency (EPA)’s release of 2014 standards for renewable fuels proposed rule, and Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) completing review of several Department of Health and Human Services (HHS) health-related final rules, now the dominant participant in executive review. The most controversial action, however, came from oft-overlooked release of a Federal Communications Commission (FCC) public meeting agenda – the FCC will consider permitting cellular phone service in flight – while pilot health regulation quietly ratcheted up a notch in the general aviation community. Continue Reading
After a deluge in last week’s multi-part Monday Morning Regulatory Review, this week is composed of odds and ends mostly bound together by the issue of funds transfers. The Congressional Budget Office (CBO) released a menu of cost cutting and revenue enhancing measures that included the ever-devilish idea of increasing (and collecting) more fees from the regulated – a direct cost. Following that train of thought, the Consumer Financial Protection Bureau (CFPB) sought regulatory information that would implicate, and the Commodities Futures Trading Commission (CFTC) promulgated rules that impose, indirect costs to industry participants, which raises the CBO’s step to impose the agency cost of regulation on the industry as well. Finally, newly suggested Obamacare transfers raised new statutory and regulatory legal and operational problems, when the website that drives Obamacare is still subject to outages. And speaking of website outages, that brings up the usually steady, but recently troubled, Regulations.gov, which is now worthy of concern. Continue Reading
In litigation, the Obamacare contraceptives intercircuit conflict deepened as the United States Court of Appeals for the Seventh Circuit remanded two cases for entry of preliminary injunctions against enforcement of the HHS’ regulation, and the /United States District Court for the District of Columbia transferred a case back to the plaintiff’s home district because of “forum shopping.” In the latest food (safety) fight, the United States Court of Appeals for the Ninth Circuit granted the Food and Drug Administration (FDA) minimal relief from a district court proposed rule publication deadline – concomitant with the government shutdown. Continue Reading
- Securities and Exchange Commission (SEC)’s overdue crowdfunding proposal,
- Departments of Health and Human Services (HHS)’s (and others) mental health parity rule,
- Department of Labor (DOL), Occupational Safety and Health Administration (OSHA)’s electronic reporting proposal,
- Environmental Protection Agency (EPA)’s civil penalty inflation adjustment rule, and
- Department of Transportation (DOT)’s pilot qualifications rule and website / kiosk accessibility proposal.
And this is just the agency side; a separate post is needed – Part II – to cover litigation. Continue Reading
The White House released President Obama’s new Executive Order: Preparing the United States for the Impacts of Climate Change, on November 1. Politicians, pundits, and the press either immediately overheated pro or con or totally ignored the release. As with many such Executive Orders, pronouncements by the President of the United States (POTUS) do not fulfill anyone’s expectations and a careful review suggests great caution. Constitutional and administrative law is very limiting and Executive Orders cannot change that law. This Executive Order only enunciates POTUS’ agenda. Continue Reading
Today’s oral argument before the United States Supreme Court (SCOTUS) in Sandifer v. U.S. Steel yielded largely what was expected. SCOTUS – and the parties – barely touched upon the issue of the Department of Labor (DOL)’s shifting policy on what constitutes changing clothes under the Fair Labor Standards Act (FLSA), and focused their attention on the substantive issue of the meaning of “changing clothes.” Argument may have given the Justices little clarity and may have given them more reason to wish they had heard argument on when they should defer to an agency’s position in amicus curiae briefs. Continue Reading
Obamacare (the Patient Protection and Affordable Care Act or PPACA) remained in the spotlight last week with visible website problems and individual non-conforming insurance policy cancellations, but here the issues are more distinct: the growing intercircuit conflict over the contraceptives mandate under the Religious Freedom Restoration Act (RFRA), and adoption of a new “hardship” exemption by FAQ. While the Administration continues that multi-front battle, the Commodities Futures Trading Commission (CFTC) walked away from its appeal of a district court order striking down its Position Limits rule, and a district court ordered the Environmental Protection Agency (EPA) to provide its plans for complying with a nondiscretionary rulemaking review. The Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), completed two interesting reviews, but more importantly revised (again) its guidance on the Social Cost of Carbon. Continue Reading