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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 11/5/12

Posted in Judicial Review & Remedies, Regulatory Process

The election is tomorrow and regulatory activity seems to be in the calm before the storm.  Congress further pressured the Administration on the lack of a Unified Agenda, but the Office of Management and Budget (OMB) did complete review on some very time-sensitive regulations, while the Environmental Protection Agency (EPA) announced at least some compliance with the Regulatory Flexibility Act (RFA).  The Supreme Court scheduled its argument over whether courts should defer to agency judgments about their own jurisdiction, and the Administration lost another small exception to the contraceptives mandate under the Patient Protection and Affordable Care Act.

Unified Agenda:  House Committee on the Judiciary and Committee on Oversight and Government Reform wrote again to the Administrator of Office of Information and Regulatory Affairs (OIRA) expressing disappointment with OMB’s failure to produce the Spring 2012 Unified Agenda.  Additionally, Senator James Inhofe, ranking minority member of the Senate Committee on the Environment and Public Works, wrote to President Obama complaining that “Business and communities need to understand the future regulatory landscape in order to properly plan an invest in the economy.”  Kimberley Strassel, at the Wall Street Journal, brought more public attention to the issue, opining, “So keen is the president to keep his ideas from leaking to the public, that his administration is now trying to hide its regulatory agenda.”

Not only is the Spring 2012 Unified Agenda defunct, but the Fall 2012 Unified Agenda and Regulatory Plan are now overdue.  The Regulatory Flexibility Act (RFA) requires that “During the months of October and April of each year, each agency shall publish in the Federal Register a regulatory flexibility agenda ….”  Admittedly the Unified Agenda and Regulatory Plan go further, but the Administration should at least comply with the statute (5 U.S.C. § 602(a)).

It is hard to disagree with Ms. Strassel’s conclusion that “when it comes to his own plans for regulating the country, the president who pledged to be the most transparent in history would prefer to keep voters in the dark.”

EPA Regflex Reviews:  At least EPA announced on October 31, that it will review three regulations under RFA:

  • Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements;
  • NESHAP: Reinforced Plastic Composites Production; and
  • NPDES Permit Regulation and Effluent Limitations Guidelines Standards for CAFOs.

As part of this review, EPA solicits comments on the continued need for the rules; the nature of complaints or comments received concerning the rules; the complexity of the rules; the extent to which the rules overlap, duplicate, or conflict with other Federal, State, or local government rules; and the degree to which the technology, economic conditions or other factors have changed in areas affected by the rules.

CY2013 Medical Rates:  OMB did complete review (on November 1, 2012) of four Department of Health and Human Services (HHS) economically significant / statutorily required health care payment final rules “consistent with change”:

  1. Payments for Services Furnished by Certain Primary Care Physicians and Charges for Vaccine Administration Under the Vaccines for Children Program;
  2. Home Health Prospective Payment System Rate for CY 2013;
  3. Proposed Changes to Hospital OPPS and CY 2013 Payment Rates; ASC Payment System and CY 2013 Payment Rates; and
  4. Revisions to Payment Policies Under the Physician Fee Schedule and Part B for CY 2013.

Agency Jurisdiction Deference:  The Supreme Court scheduled oral argument in City of Arlington v. FCC, for Wednesday, January 16, 2013, on whether courts should afford Chevron deference to a federal agency determination of its own jurisdiction.  That scheduling leaves little room for counsel to seek additional time to file briefs.

Contraceptives:  Finally, the District Court in Eastern Michigan enjoined application of the HHS contraceptives rule to several individuals in Legatus, Weingartz, and Weingartz Supply Co. v. Sebelius, another suit claiming that the Patient Protection and Affordable Care Act (ACA) does not comport with the First Amendment Freedom of Religion clause.  The Legatus court enjoined application of the regulatory requirement that the plaintiff provide contraceptives through its insurer to an individual business owner – the owner of the non-exempt Weingartz Supply Co.  The court’s preliminary injunction reasoning merits reading.

The point here is that HHS has not yet published a proposed rule or taken other steps promised last winter, steps on which the United States District Court for the District of Columbia relied in Belmont Abbey College in finding that similar litigation was not ripe.  Individual injunctions reduce universality to a patchwork, but the rule has yet to be stayed.

Also worth noting, the United States Court of Appeals for the District of Columbia Circuit has ordered oral argument in the Belmont Abbey College appeal of the original “ripeness” decision for December 14, 2012.

HHS’s burden to adopt a timely rule on exceptions to the universal contraceptives mandate increases with each preliminary injunction entered affecting an individual or company because HHS will be required to address the merits of each decision in order to show that it considered all relevant factors.  HHS issued an advance notice of proposed rulemaking on March 21, 2012, but has not submitted a proposed rule to OMB or published a proposed rule for comment.  The Legatus court recognized this predicament and HHS’s obvious difficulty in promulgating a final rule in the next nine months.  The district court ordered HHS (through the Department of Justice (DOJ)) to “to file a brief statement describing the status of the amendment process for final regulations occurring under the temporary enforcement safe harbor not later than the first Monday of each month.”