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

Monday Morning Regulatory Review – 12/3/12

Posted in Regulatory Process

Rule submission to and completions by the Office of Management and Budget (OMB) began to pick up speed last week.  Most significant, OMB quickly completed review of a legally significant Environmental Protection Agency (EPA) logging road final rule – a subject of oral argument this morning at the Supreme Court and about which Congress has chimed in.  OMB completed review of, and Department of Health and Human Services (HHS) released, another economically significant Patient Protection and Affordable Care Act (ACA) proposed rule.  Additionally, OMB completed review of two additional Small Business Administration (SBA) size standards adjustment final rules and one proposed rule that will impact future regulatory analyses.  Finally, a court of appeals decision swept away a statutory and constitutional challenge to the Department of Homeland Security (DHS) Transportation Security Administration (TSA) passenger screening procedures that are the subject a rule pending OMB review.

EPA Water & Logging Roads:  OMB completed review and EPA released Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges From Logging Roads final rule last Friday.

EPA routinely releases rules as soon as they are signed – giving the public the benefit of further advance notice (not legally required) of the terms of a proposed or final rule before Federal Register filing and publication.

Swift completion, release, and publication of the final rule were likely prompted by the scheduled argument this morning before the United States Supreme Court in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center.  The Supreme Court argument asks whether the United States Court of Appeals for the Ninth Circuit should have deferred to the EPA’s longstanding position that channeled runoff from forest roads does not require a National Pollutant Discharge Elimination System (NPDES) permit, and erred when it mandated that EPA regulate that runoff as industrial stormwater.  The Solicitor General’s Office, representing EPA, has likely pushed for completion of the interagency and executive review of this rule – if no more than its usual support for timely completion, consistent with its litigating position.

Congress has likewise been sufficiently displeased with the Ninth Circuit’s ruling that it enacted an appropriations rider forbidding NPDES permitting under the Ninth Circuit’s decision – which remains in effect under the current continuing resolution that funds the government.

HHS Exchanges & Medicaid:  OMB also completed review of the HHS’s economically significant Patient Protection and Affordable Care Act [ACA]; HHS Notice of Benefit and Payment Parameters for 2014 proposed rule and the Federal Register filed the rule for publication on December 7, 2012.  This proposed rule would fill in more of the ACA framework for the permanent risk adjustment, transitional reinsurance, and temporary risk corridors programs.

HHS’ submitted the economically significant Medicaid Eligibility Changes Under the Affordable Care Act – Part II proposed rule to OMB for review.  According to the badly outdated Unified Agenda, this proposed rule would fill in provisions of the ACA related to appeals, notices, and other Medicaid eligibility changes.

(Yes, there was another contraceptives regulation district court decision (of the three dozen pending), but it is time to put that theatrical production aside until it hits Broadway – the courts of appeal decisions).

SBA Size Standards:  OMB completed review, on November 28, of two additional SBA small business size standard adjustment final rules:  Information; and Administrative and Support, Waste Management and Remediation Services.  OMB completed review also of a proposed size standard adjustment: Mining, Quarrying, and Oil and Gas Extraction.  A reminder:  these small business size standards rules affect program requirements and alter analytical requirements under the Regulatory Flexibility Act (RFA) for agency certifications, and initial and final regulatory flexibility analyses.  SBA has not released pre-publication typescripts of these rules, but they should be published soon.

DHS Passenger Screening:  While the DHS / TSA passenger-screening rule is pending at OMB, the United States Court of Appeals for the Fourth Circuit rejected a challenge to TSA’s standard operating procedures for checkpoint screening in Blitz v. Napolitano.  The court rejected plaintiffs’ purely statutory TSA “order” and statutory channeling of court jurisdiction challenges and the plaintiffs had not brought an Administrative Procedure Act (APA) claim.

Nextgov, on the other hand, reports that passengers who have been disqualified from TSA’s speedy screening program – TSA Pre✓™ – are being put on watch lists.  These actions may provide more grist for the regulatory mill.