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

Monday Morning Regulatory Review – 2/11/13

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

A quiet week in regulations, punctuated by a few interesting events:

  • The United States Court of Appeals for the District of Columbia Circuit vacated the entire definition of “Vented hearth heater” and remanded in part the Department of Energy (DOE)’s ubiquitous Energy Conservation Program rule.
  • The Department of Health and Human Services (HHS) published their preventive services / contraception proposal.
  • The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) kept pace with their docket.

This week may be more fulfilling.

Hearth, Heat, Light:  To summarize, the Energy Policy and Conservation Act (“EPCA”) authorizes DOE to promulgate “energy conservation standards” for “covered products” provided that the standards are “technologically feasible,” “economically justified,” and result in “significant conservation of energy.”  Along the way, manufacturers began to introduce fireplace heaters — heaters designed for both utilitarian heating and general aesthetics.  Petitioners claimed that DOE pulled a bait and switch between the proposed rule and the final rule; petitioner’s decorative products – “designed to stay cool and look pretty — not efficiently convert energy to heat” — were dragged into a final rule, proposed rule, and final rule (yes, it took two).  The court considered Congress’s use of the term “Direct heating equipment” in EPCA – and particularly “heating” – in word and context, sufficiently unambiguous that Congress did not delegate authority to DOE to define it.  The hot and cold if it was that “DOE’s contrived effort to regulate decorative fireplaces as “Direct heating equipment” thus circumvented the plain language of the EPCA.”  Judge Randolph thought the case was “rather like an Escher drawing—once the viewer comes to realize that decorative fireplaces were indeed exempted from the government’s regulating apparatus, it is difficult to see the case in any other light.”

Within the court, the opinions suggest more heat than decorative fireplaces provide, but that is unlikely given so little light for future decisions outside this specific, high-end industry.  The important issue may be this:  has the DOE caused the government and industry to expend more on this rule than the energy standards on decorative stay cool / look pretty fireplaces will save?  As EPCA demanded, DOE should set energy efficiency standards, but this one appears to defy common sense.  Perhaps DOE can answer that question in the next Energy Conservation Program.

Contraceptives…:  The HHS, and colleagues, as promised, published their Coverage of Certain Preventive Services Under the Affordable Care Act on February 6, 2013, with comments due April 8, 2013.  This attempt to find some middle ground between the Administration’s desire for universal contraceptive services at no cost to the individual and individual First Amendment freedom of religion has continued to generate great interest.  The Supreme Court has refused to enter the fray too early.

Review Completed:  OIRA completed review on a number of proposed and final rules, the highlights of which include:

  • Department of Agriculture’s (DOA)’s economically significant (11 month review) National School Lunch and School Breakfast Programs: Nutrition Standards for All Foods Sold in School, as Required by the Healthy, Hunger-Free Kids Act of 2010 proposed rule;
  • Department of Labor’s (DOL)’s Amendments to the Family and Medical Leave Act of 1993 final rule; and
  • Environmental Protection Agency (EPA)’s judicial-settlement-required Protections for Subjects in Human Research Involving Pesticides final rule.