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

Monday Morning Regulatory Review – 11/12/12

Posted in Executive - OMB Review, Judicial Review & Remedies

On Election Night, the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) was reviewing 147 significant rules, proposed rules, and other notices.  With the election over, the floodgates have now cracked.  OMB’s docket has suddenly grown to 158, and we may expect to see many more rules – and perhaps a Unified Agenda laying out the Obama Administration’s regulatory plan for next year.

Sandy Redux:  The day after the election, OMB accepted submission of two politically sensitive rules:  the Environmental Protection Agency (EPA) proposed National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units and the Department of Homeland Security (DHS) final Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives.

By Friday, the Department of Health and Human Services (HHS) submitted two highly sensitive Patient Protection and Affordable Care Act proposed rules:  the economically significant  Exchanges Part II–Standards Related to Essential Health Benefits; Health Insurance Issuer and Exchange Responsibilities With Respect to Actuarial Value, Quality, and Accreditation and the law / policy significant  Health Insurance Market Rules.  The National Journal reported what regulatory professionals expected:

Many sources close to the Centers for Medicare and Medicaid Services told National Journal that the administration had a number of important health rules ready to go but was holding them back until after the election to avoid a political backlash.

Bear in mind that OMB’s reporting is largely voluntary – many other rules and actions may be in the pipeline without notice on OMB’s docket.  OMB’s lack of transparency about the Unified Agenda foretells much more being readied behind the scenes.

EPA Determination:  The United States Court of Appeals for the District of Columbia Circuit, in Sierra Club v. EPA, vacated and remanded EPA’s determination that it had met its regulatory obligations under the Clean Air Act (CAA) to list categories and subcategories of sources of seven specified hazardous air pollutants and set pollution standards for emissions.  Setting aside the standing, timeliness, and finality issues raised by EPA, the court concluded that the “Determination” was a legislative rulemaking subject to the notice-and-comment provisions of the Administrative Procedure Act (APA).  The analysis is sparse, but the court’s reasoning is gleaned from a simple proposition:

[The Determination] tread new ground by taking previous rulemakings — which EPA had promulgated without any evident goal of satisfying its … obligations [under the relevant provision of the CAA] — and repurposing them to satisfy [those obligations].  Because the Determination manifests a new yet final agency position on its compliance with [the CAA], it is a legislative rulemaking subject to [the APA’s] notice-and comment requirements.

Because EPA issued the Determination without providing notice and opportunity for comment, the court vacated and remanded to the EPA to follow the APA’s rulemaking procedures.  The decision itself appears to tread no new ground, but provides so little analysis that it is difficult to tell.