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

Monday Morning Regulatory Review – 9/19/16: Firearms & Mental Health; Plain Future Contingencies; and Medical Facility Preparedness Standards

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

dawn over the capitol aocThe campaign for the White House overshadows regulatory practice for another week, but some unique issues deserve note.  In one decision, a court of appeals reversed and remanded a dismissal order for further consideration of constitutional issues by the district court in an instance where Congress defunded a regulatory relief program that might have avoided the issues entirely.  In a second decision, a divided court of appeals panel remanded part of a regulation to an agency as inconsistent with the plain meaning of the authorizing statute creating a conceptual intercircuit conflict.  The agency regulation process highlight of last week deals with incorporation by reference with now-superseded consensus standards.

Firearms & Mental Health:  In a case driven by a long-ago Congressional intervention, the en banc United States Court of Appeals for the Sixth Circuit, in Tyler v. Hillsdale County Sheriff’s Dep’t, that a lack of method for providing relief from a ban on firearms ownership based on previous involuntary mental health hospitalization might render the ban unconstitutional.  Bear with us for the regulatory linkage.

Tyler was involuntarily committed thirty years ago following an emotional divorce, rendering him ineligible to possess a firearm under the appropriate gun control statutes.  The statute prohibits anyone “adjudicated as a mental defective or who has been committed to a mental institution” from possessing a firearm; implementing regulations administered by the Department of Justice (DOJ) Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF or ATFE) clarify that commitment must be involuntary.  The statute also permits relief from the permanent bar if it finds “that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest,” and ATF has promulgated and continues extant regulations for that process.  ATF, however, declined to act on Tyler’s request for relief because Congress, in 1992, defunded the relief-from-disabilities program.  Not only that, the United States Supreme Court (SCOTUS) has held, in United States v. Bean, that Congress’s decision to defund the program, eliminating an actual denial of relief, eliminated judicial review of denial of applications for relief.

Tyler sued the local sheriff who declined to clear his purchase because the Federal Bureau of Investigation (FBI)’s national instant criminal background check system (NICS) indicated his prior commitment, and various federal defendants.  Despite the caption, the case here lies against the United States and is defended by DOJ.  At bottom, Tyler sought a declaratory judgment that the statutory bar was unconstitutional as applied to him – i.e. the Second Amendment to the United States Constitution (right to bear arms) forbids Congress from permanently prohibiting firearm possession by individuals who were long ago committed to a mental institution for what may have been an evanescent mental health issue.  A badly splintered en banc Sixth Circuit reversed and remanded.  The majority appears to take the view that Tyler has sufficiently articulated a cause of action under an intermediate scrutiny standard.

►  The regulatory importance lies not in the decision or even the future of this particular case, but it the conflict between regulations once adopted and the defending of the program that now leaves the statute exposed to direct challenge.  Congress exercised its appropriation prerogatives almost as long ago as Tyler’s commitment, and continued them; the results of what may have been good intentions (doubt about administrative adjudication) could now unravel far more.  Do not expect an answer soon, nor that this case will be heard by SCOTUS – the decision on dismissal for failure to state a claim is not a good medium for final resolution of constitutional standards of scrutiny against rights; the case is most likely headed back to the district court for further proceedings as ordered.  The best-laid schemes o’ mice an ‘men, Gang aft agley.

Plain Future Contingencies:  A divided panel of the United States Court of Appeals for the Ninth Circuit had less difficulty in remanding to the Environmental Protection Agency (EPA) for further consideration of a portion of the Arizona Clean Air Act (CAA) State implementation plan (SIP) treatment of contingencies in Bahr v. EPA.  To vastly oversimplify, the CAA requires States to develop a SIP for pollution reduction under Environmental Protection Agency (EPA)’s National Ambient Air Quality Standards (NAAQS) (in this case particulate matter, or PM-10) or EPA may create a federal implementation plan (FIP) if the State fails to acquire EPA approval of a SIP.  The CAA also requires that plans include contingency measure for failure to meet plan requirements.

A small part of the lengthy decision declines to defer to the EPA’s interpretation of the CAA’s contingency measures requirement under Chevron because the plain language of the CAA provides that contingency measures are measures that will be taken in the future, not measures that have already been implemented.  EPA had allowed Arizona to count certain measures already implemented (e.g. paving dirt roads) as future contingencies if Arizona failed to attain a lower level of particulate pollution.  The panel found that because Congress was clear that “contingency measures” are control measures that will be implemented in the future, and the statutory language is not susceptible to multiple interpretations, it must give effect to its plain meaning.  Thus, EPA could not consider contingency measures adopted in the plan that are completed in advance of plan failure to be contingencies to be taken after plan failure.

In so doing, however, the Ninth Circuit acknowledge that it disagreed with the Fifth Circuit’s decision in Louisiana Envtl. Action Network v. EPA, which found sufficient ambiguity to defer to EPA’s view that the CAA did not preclude the use of past reductions which have already failed to achieve attainment as future contingencies because the adoption continued to manifest an effect after the plan failed.

►  The Ninth Circuit and the Fifth Circuit differ on the interpretation of the CAA and application of Chevron, and on how to consider the fact of specific compliance efforts.  This looks, at first blush, like an intercircuit conflict, but it is unlikely to develop further at this point because the differences between SIPs renders the intercircuit conflict conceptual at best.  EPA’s reliance on the Fifth Circuit being rejected by the Ninth Circuit warrants careful consideration, but EPA probably has the better argument – to limit a plan to measures that were only to be undertaken if the plan failed would prove a great disincentive to going beyond the plan.  Rehearing may be appropriate here even as rehearing en banc may be difficult in the vastness of the Ninth Circuit.

One additional note.  The opinion indicates a remand, suggesting by silence a remand without vacatur, but an Administrative Procedure Act (APA)-like failure to comply with the panel’s view of the plain language of the programmatic CAA normally warrants vacatur.  A curious issue.

Medical Facility Preparedness Standards:  The Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) published its Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers final rule last Friday.  The final rule’s incorporation by reference (IBR) of a number of National Fire Protection Association (NFPA) codes recognizes again that the NFPA is the standards development organization (SDO) for a wide range of standards adopted by State and local authorities having jurisdiction (AHJ).  CMS, in this final rule, establishes national emergency preparedness requirements for Medicare- and Medicaid-participating providers and suppliers.  The final rule requires specific facilities to comply with the 2012 NFPA® 99, Health Care Facilities Code, that has been superseded by the 2015 edition; the 2012 NFPA® 101, Life Safety Code, that has been superseded by the 2015 edition; and the 2010 NFPA® 110, Standard for Emergency and Standby Power Systems, that has been superseded by the 2016 edition.  The rule and IBRs are effective November 15, 2016, and must be implemented by November 15, 2017.

►  The potential preemption of AHJ lesser standards may create problems when the AHJ has imposed more recent and potentially more stringent standards.  The final rule is already problematic and subject to “planned obsolescence.”  The problems of IBRs have been well documented in the past and remain unresolved:  costs are imposed to simply learn the substance of the law that all are presumed to know that law.  At the same time, the SDOs rely on subscription revenue to support the development of those same codes.  In this instance, the regulatory process is too slow to maintain currency and is limited by IBR rules that require specific filing and generally useless disclosure.

This is not to argue that the United States should either adopt the codes itself (a process of dubious expertise) or that it should grant the SDOs funding to render the codes public documents (with mission creep that would destroy the process).  The issue here is whether HHS’s regulations add substantive benefits that outweigh the costs.  HHS can only argue that the final rule will “[h]elp ensure the safety of individuals by requiring providers and suppliers to adequately plan for and respond to both natural and man-made disasters.”  In short, the issue is whether HHS or the NFPA as SDO and AHJs, as well as the professional judgment of the providers themselves, are better suited to make this decision.  There are no simple solutions here.