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

Monday Morning Regulatory Review – 12/24/12

Posted in Judicial Review & Remedies, Regulatory Process

Numerous regulations moved prior to year-end annual leave, which is not as surprising as it may seem – holiday planning sometimes invigorates action.  Among the highlights, the Office of Management and Budget (OMB) completed review on major Environmental Protection Agency (EPA) Clean Air Act (CAA) final rules on commercial boilers and Portland cement in response to judicial decisions, setting the stage for the next chapter in the regulation litigation saga.  The United States Court of Appeals for the District of Columbia Circuit, on the other hand, declined an invitation to revisit en banc its panel decision upholding the EPA’s Greenhouse Gas Rules.  OMB completed review also of a number of the Department of Homeland Security (DHS) immigration actions and DHS published its proposed version of prison rape prevention rules for immigration detainees.

EPA Clean Air:  OMB’s Office of Information and Regulatory Affairs (OIRA) completed review of interrelated CAA final rules (all air is interrelated) on December 20 and EPA released typescript copies the next day for:

Initial press reports indicate sufficient dissonance by both environmental groups and manufacturers, setting the stage for more litigation.

Chemical HAPs:  EPA published the National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources final rule, another step in the progression of designated hazardous air pollutants.  This final rule responds to another petition for reconsideration, lifts several stays previously granted, and extends compliance dates.

Greenhouse Gases:  The United States Court of Appeals for the District of Columbia Circuit denied a petition to rehear en banc Coalition for Responsible Regulation, Inc. v. EPA, on December 20.  As the panel opinion explained:

Following the Supreme Court’s decision in Massachusetts v. EPA, … which clarified that greenhouse gases are an “air pollutant” subject to regulation under the [CAA] — the Environmental Protection Agency promulgated a series of greenhouse gas-related rules.  First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.”  ….  Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks.  Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits.  But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

The panel concluded that:  (1) EPA’s Endangerment Finding and Tailpipe Rule were neither arbitrary nor capricious; (2) EPA’s interpretation of the governing Clean Air Act (CAA) provisions was “unambiguously” correct; and (3) none of the State and industry petitioners had standing to challenge the Timing and Tailoring Rules.  Denial of rehearing and rehearing en banc is not normally notable, but three judges filed a concurring opinion and two judges filed separate dissents.  Given the scope of the greenhouse gas rules and the scope of the litigants’ concerns, multiple petitions for certiorari to the Supreme Court are likely.

Alien Presence Provisional Waivers:  OMB completed review of the economically significant DHS Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives final rule to permit certain immediate relatives of U.S. citizens who are physically but not lawfully present in the United States under the Immigration and Nationality Act (INA) to request a waiver of inadmissibility, anticipating immigrant visa processing abroad.  Presently, such a relative must travel abroad first and then seek an immigrant visa and waiver of inadmissibility, prolonging their foreign travel.  DHS proposed that an approved provisional waiver would not become effective until the alien departed the United States, appeared for an immigrant visa interview and was found admissible by the Department of State.  The provisional waiver would then become a permanent waiver of inadmissibility based on the period of unlawful presence noted in the waiver request.  While the rule looks like a timing rule, it may benefit many undocumented aliens.

DHS Detainee Rape:  DHS proposed its version of prison rape elimination standards:  Standards to Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities; Proposed Rule.  The original Prison Rape Elimination Act required the Attorney General to promulgate standards for the Federal Bureau of Prisons that accrediting organizations would be required to adopt to receive federal funding, and, hence, compliance by State and local government would be mandated through a new accreditation / standard of care regime.  DHS was not part of those requirements, but President Obama instructed DHS to adopt rules for immigration detainees.  The extent to which this rule can and will actually reach is likely to the subject of numerous comments.