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

Monday Morning Regulatory Review – 7/1/13

Posted in Judicial Review & Remedies, Regulatory Process

The Administration filled a key regulatory post and the Office of Management and Budget (OMB) completed review on another economically significant Patient Protection and Affordable Care Act regulation, in addition to the preventive contraceptives final rule.  In the courts, a district court judge set extended deadlines for the Food and Drug Administration (FDA) to promulgate Food Safety Modernization Act regulations.  President Obama set some priorities for future climate change regulations – an action of limited efficacy.

OMB / OIRA Administrator:  On its way out the door for July 4th recess, the Senate confirmed by unanimous consent the nomination of Howard Shelanski to be the Administrator of Office of Information and Regulatory Affairs (OIRA) in OMB.

Climate Change:  President Obama (POTUS) delivered, with much fanfare, released a report and gave a speech on climate change, and issued a memorandum to the Environmental Protection Agency (EPA) on June 25, 2013, published this morning.  Press reports suggest that POTUS is creating a new Department of Energy (DOE) $8 billion loan guarantee program for advanced fossil fuel projects.  Moreover, POTUS envisioned drawing 20% of federal energy requirements from renewable sources by 2020.  The memorandum, in particular, lays out the specifications for implementation of new regulations and guidance for emission reductions by existing electric power plants; read “coal.”  POTUS directed EPA to issue standards, regulations, or guidelines that address carbon pollution from modified, reconstructed, and existing power plants – and requested a proposal by June 1, 2014, and final standards, regulations, or guidelines, by June 1, 2015.  He also asked EPA to produce a requirement that States submit implementation plans by June 30, 2016.

All together, these efforts are management and political tools.  While politicians and pundits applaud or slam the speech, memorandum, and POTUS’s intent, the law has not changed.  Some have suggested that POTUS is circumventing Congress.  The memorandum is just that – a memorandum – and carries no legal force, nor does it purport to do so.  POTUS cannot create power in this domestic realm – he can prioritize work within the agencies, manage their resources, and direct their action to some extent, but he cannot create law that does not already exist.  If EPA or DOE or other agencies have the authority to do what POTUS wants, that is because Congress has granted the authority.  Whether EPA, DOE and other agencies can conform to POTUS’s wishes within the bounds of the Administrative Procedure Act (APA), authorizing, and appropriating statutes will take several years to unfold, and surely will be the grist of public comments on any proposed rules and litigation.

Food Safety Schedule:  The district judge in Center for Food Safety v. Hamburg recognized the difficulty of mandating that an agency (here the HHS’s Food and Drug Administration (FDA)) promulgate rules by a date certain.  The court previously found that FDA had failed to meet congressional deadlines and sought a negotiated conclusion.  The court did order that FDA promulgate statutorily mandated and deadlined food safety rules – but set the promulgation date two years out, admitted the need for detailed public comments in light of the complexity of the issues presented, and declined to order that OMB review by bypassed (thereby avoiding the issue of whether a court can do so).  The Center for Food Safety may claim this to be a “victory,” but the real victor may be deference to the need for well thought out regulations.

PPACA Exchanges:  OMB completed review  of the economically significant Department of Health and Human Services (HHS) final rule Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Essential Coverage Provisions, consistent with change, of course.

Tip of the Hat to our 237th year of democratic independence:

A republic, if you can keep it.

 – attributed to Ben Franklin.