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

Monday Morning Regulatory Review – 10/7/13

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

The funding lapse of the United States Government – or parts of it – has all but shut down the regulatory process.  As noted previously, the Anti-Deficiency Act bars action in violation of appropriation limits and few regulatory actions fall within its narrow exceptions.  Our source of material may have declined, but note readership.  A few events are worth noting, including a proposal to adjust the way agencies incorporate non-agency standards into their rules, and two new suits against final agency actions that deserve watching closely.  A thread that runs through this weekly review is impediments to transparency.

Incorporation by Reference:  The Office of the Federal Register (still running at a diminished pace) published a new proposal for its own regulations on how an agency may incorporate by reference standards that have been developed (often consensus standards) by third parties.  Some of these third parties are well known, such as the American National Standards Institute (ANSI) or the National Fire Protection Association (the source of most local building codes).  A key study and recommendations were issued by Administrative Conference of the United States (ACUS) in 2011, and a petition filed with the Office of the Federal Register.  A critical problem constantly addressed is the public availability of these private standards – mostly copyrighted and therefore only available for a fee.

► A key issue with incorporation by reference is whether an agency should pay the copyright royalties for public access to the substance of privately owned and copyrighted standards.  At present, each user must pay royalties.  Requiring the public to pay royalties to access the law places a burden on the regulated parties who must access the standards to comply and deprives the public of knowing the law.  Thus practice is well embedded and the Office of the Federal Register claims that it is beyond their authority to change that practice.  While the cost might be a cost of doing business for the regulated party, it is the public that has a right to comment on proposed rules and the public that is burdened by their secrecy.

Nutrient Petition for Rulemaking:  The United States District Court for the Eastern District of Louisiana remanded the Environmental Protection Agency (EPA) denial of a petition for rulemaking to establish numeric water quality standards for phosphorous in rivers or streams or for nitrogen in any waters of States in the Mississippi River Basin.  Gulf Restoration Network v. Jackson.  Plaintiffs petitioned EPA to promulgate rules under the Administrative Procedure Act (APA) petition requirements to promulgate federal standards to control nitrogen and phosphorous pollution.

EPA did not act for five years until suit was threatened.  EPA responded that it did not believe that federal rulemaking would be the most effective or practical means for controlling pollution; that the most effective and sustainable way to address the issue was EPA’s continued cooperation with the States and Tribes in the Mississippi basin to strengthen nutrient management programs.  In a classic priorities argument, EPA suggested that basin-wide (31 States?) regulation would involve vast regional program expenditures to regulate and enforce.

The court found that the APA requirements apply and the decision must be animated by the underlying programmatic statute on which the petition focused – in this case a specific determination – which EPA declined to make.  The court remanded with a 180-day deadline to respond to the petition in a manner consistent with the programmatic statute and the court’s decision.

This decision is likely to be the water equivalent of the Clean Air Act (CAA) decision in Massachusetts v. EPA that was the center of argument in this case and the beginning of another long, convoluted litigation.

► The Eastern District of Louisiana has begun participating in publication of its opinions on the Government Printing Office (GPO) “FDSys” website.  While publishing all substantive orders is both appropriate and beneficial, GPO has taken a magpie approach and published everything, making substance difficult to find at best.  Thus far, publication per se is an improvement, but it can be overdone to the point of frustrating its purpose.

Capital Counsel Rules:  A recent report by Elizabeth Warmerdam, Courthouse News Service, noted that criminal defense lawyers representing indigents sued the Department of Justice (DOJ) and the Attorney General claiming they violated the APA in promulgating the final rule on Certification Process for State Capital Counsel Systems.  In short, the rule implements a DOJ certification that a State has established mechanisms for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by convicted prisoners, and adopts standards of competency for the appointment of counsel.  A State that is certified acquires special procedures in Federal habeas corpus review of cases brought by indigent prisoners in State custody and subject to a death sentence – including a significantly reduced statute of limitations.

A 2008 edition of this rule was preliminarily enjoined until DOJ provided an additional comment period and responded to the substantive comments; the 2008 regulations were removed in 2010.  DOJ undertook a new round of comments in 2011, a supplement round of comments in 2012, and published the final rule two weeks ago.

The suit claims DOJ violated the APA by failing to provide adequate notice, failing to respond to significant public comments, and other things; and that DOJ has a conflict of interest in participating in the rulemaking process, as well as statutory and constitutional violations.  Plaintiffs have filed also a motion for a temporary restraining order (TRO) and a motion for relief from certain scheduling requirements to conduct expedited discovery.

► The original report intrigued that the suit seeks to delay the effective date of the final rule until alleged defects are resolved.  The concept of a stay is less clear in the complaint and memorandum in support of the motion, but we get the point.  Other judicial review of final agency action matters are also muddy, such as the need for discovery when the case is generally limited to the record before the agency, and why a conflict of interest exists at all when the authority for the regulations is statutory.

► The downside, of course, is that actually finding the case requires both initial research and then a venture into PACER, for a fee.  Whenever possible, this blog tries to provide links, for free.  This blog cannot provide a link, but at least a cite:  Habeas Corpus Resource Center v. United States Department of Justice, N.D. Cal. No. 3:13-cv-04517 (filed Sept. 30, 2013).