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

Monday Morning Regulatory Review – 4/1/13

Posted in Regulatory Process

A busy last week leaves more to cover – particularly from the perspective of the Office of Management and Budget (OMB).  While the OMB docket held relatively steady, OMB completed its long-term review of radiological incident guidance that probably involved substantial inter-agency discussion.  Agencies submitted some interesting new proposed and final rules that are also likely to generate significant internal policy and legal debate.  Agencies submitted several economically significant actions, including a final rule on energy efficiency in microwave ovens and a proposed (annual) skilled nursing prospective payment update.

EPA Radiological Incidents:  OMB reported completion of the Environmental Protection Agency (EPA) Protective Action Guidance for Radiological Incidents on March 29.  This guidance document – not a rule, but a notice – has been in OMB review since July 2011, which is not surprising given the number of agencies that will have an interest in responding to a radiological incident and their varied points of view, which may not coalesce with EPA’s environmental cleanup point of view.  Press reports have suggested this protective action guidance (PAG) may be a rollback of some protection, but it also may be a dose of reality based on specialized inputs from the sharp end of the lance.

DOC Munitions List:  The Department of Commerce (DOC) (Bureau of Industry and Security (BIS)) added a final rule and a proposed rule to OMB’s docket.  The final Control of Submersible Vessels, Oceanographic Equipment, and Related Articles That the President Determines No Longer Warrant Control Under the United States Munitions List rule amends the Export Administration Regulations to complete moving four series of equipment to the Commerce Control List (CCL) from control under United States Munitions List (USML).

DOC also sent a Revisions to the Export Administration Regulations: Control of Spacecraft Systems and Related Items the President Determines No Longer Warrant Control Under the United States Munitions List proposed rule to OMB, which is a middle step on the process.  Both rules are part of the Administration’s long term Export Control Reform Initiative.

DOE Microwaves:  The Department of Energy (DOE) submitted to OMB an economically significant final Energy Efficiency Standards for Microwave Ovens (Standby and Off Mode) rule.  This step suggests that DOE believes they have revised test procedures at least sufficiently ready to revisit the energy conservation standard rulemaking and finalize standards for microwaves ovens in standby-mode and off-mode – and, yes, they do consumer energy when they are off.  The key is whether standards are technologically feasible and economically justified.  OMB’s economists come into play.

HHS Prospective Payment Systems:  This blog does not often note the annual prospective pay system changes for Medicare and Medicaid, but the economic significance of many of these changes is compelling.  In this instance, Department of Health and Human Services (HHS) is proposing a Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities-Update for FY 2014 that must be completed in time to facilitate the FY2014 billing cycle.  In many ways, these annual payment rules “follow” changes made by other substantive rules.

HHS Privacy and Criminal…:  HHS set the stage for an interesting interagency debate by submitting a Health Insurance Portability and Accountability Act of 1996 (HIPAA) pre-rule document to OMB that will draw the attention of the Department of Justice (DOJ) Federal Bureau of Investigation (FBI), if no one else:  HIPAA Privacy Rule and the National Instant Criminal Background Check System (NICS).  The FBI runs NICS – the background check system for firearms purchasers.  Any proposal relating to either NICS or HIPPA will draw attention and cause debate; put both in one document ….

DOT Commercial Drivers Licenses:  The Department of Transportation (DOT) submitted an economically significant Commercial Driver’s License Drug and Alcohol Clearinghouse proposed rule for review.  DOT has stated that this rule would create a central database for verified positive controlled substances and alcohol test results for commercial driver´s license (CDL) holders and refusals by such drivers to submit to testing.  How this will fit with the existing the Commercial Driver’s License Information System (CDLIS) and the National Driver Register (NDR) databases will be of great interest to the approximately 10.5 million CDL holders.