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

Monday Morning Regulatory Review – 8/19/13

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

Regulatory complexity and related rulemakings are the focus of the review this week, with multiple rulemaking actions in the

  • Department of Energy (DOE) Energy Conservation Standards program,
  • Department of Health and Human Services (HHS), Food and Drug Administration (FDA) Food Safety and Modernization Act program, and
  • Department of the Interior (DOI) Fish and Wildlife Services (FWS) / Department of Commerce (DOC), National Marine Fisheries Service (NMFS) Endangered Species Act program.

The application of the recent social cost of carbon metrics comes into play, and, first and most unusually, the Environmental Protection Agency (EPA) response to Freedom of Information Act (FOIA) requests for regulatory and administrative records.

FOIA Discovery:  The United States District Court for the District of Columbia took the highly unusual step of authorizing discovery in the FOIA case of Landmark Legal Foundation v. Environmental Protection Agency because EPA equivocated about whether it had searched private email accounts of agency officials.  The controversial use of “blind” email accounts and private email accounts on commercial systems to conduct public business was the focus of requests related to communications between senior EPA officials and private parties aimed at delaying controversial regulations prior to the 2012 presidential election.  EPA’s responses – both to the request and in affidavits filed with the court – were contradictory on the scope of officials whose accounts would be reviewed and whether those officials’ private accounts were reviewed.  Discovery is highly unusual in administrative law cases, including FOIA cases, which are normally resolved on summary judgment based on the record and procedural affidavits from the agency.  The court did not specify the type of discovery to be had, but documentary requests appear redundant to the FOIA request, while written interrogatories and depositions might be appropriate.  The court specified the scope of discovery as:

1) Whether and to what extent the EPA Administrator, Deputy Administrator, and/or Chief of Staff utilized personal email accounts to conduct official business during the relevant time period.

2) Whether the EPA initially excluded the Administrator, Deputy Administrator, and/or Chief of Staff from Landmark’s FOIA request.

While this issue may appear somewhat far afield from regulations, FOIA requests are the proper method for determining the records possessed by an agency when doubts arise about the scope of a regulatory record or administrative record for judicial review.  Judicial discovery is not normally allowed in judicial review of administrative action, including FOIA cases, but there are exceptions and plaintiffs made out a case for discovery based on evidence of agency bad faith.

Social Cost of Carbon:  The DOE sought comment on a petition to reconsider its economically significant Energy Conservation Standards for Standby Mode and Off Mode for Microwave Ovens final rule.  At bottom, DOE published a proposed and supplemental proposed rule based on the 2010 social cost of carbon analysis, but used the 2013 social cost of carbon update in its final rule.  The petition seeks reconsideration because DOE changed the underlying analytical premise between the proposed rule and final rule.  The analytical change poses an Administrative Procedure Act (APA) lack of sufficient notice and doctrinal “logical outgrowth” problem because commenters did not have an opportunity to comment on the higher analytical assumptions.  Comments are due September 16, 2013.

Computer Energy Comments:  DOE, at the request of the Consumer Electronics Association, extended the comment periods September 12, 2013, on its proposed determination under the Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment that computers and computer servers are covered equipment and thus subject to regulation.  These rules seek to reduce computer power usage at economically substantial cost.  The original comment period was only 30 days and the extension brings the comment period into line with the 60-day default comment period for proposed rules under Executive Order 13,563.  This preliminary determination begins a long regulatory road – if DOE issues a final determination that computers are a covered product, DOE will consider test procedures and energy conservation standards for computers.  The application of the underlying statutes is deferred to the energy conservation standards rulemaking process, but the scope of this preliminary determination may be substantially larger than the microwave oven off / standby mode rule.

Food Safety Comments:  The FDA extended the comment periods for two original Food Safety and Modernization Act (FSMA) rules until January 2013:  Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food and Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.  FDA took the action to allow coordination of comments with other proposed rules under the Food Safety and Modernization Act and to coordinate the comment period with the information collection provisions associated with the rules.

Coordination of multiple, complex rules is precisely the type of thinking necessary to reach a rational decision on the entirety of the rulemaking under FSMA.  The FDA and Department of Justice (DOJ) may well have considered this precise problem in defending against litigation to compel regulatory action the FDA to issue proposed rules and final rules that may have been uncoordinated or ill-advised closer to the Congressional deadlines, and which led the district court to provide ample time.

Endangered Species Coordination:  The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) completed review on three proposed and one final DOI / FWS and DOC / NMFS amendments to regulations under the Endangered Species Act, subtitled under the generic Endangered and Threatened Wildlife and Plants:

  • ESA Section 7 Consultation Regulations; Incidental Take Statements – proposal to respond to court decisions;
  • Implementing Changes to the Regulations for Designating Critical Habitat – proposal to clarify criteria;
  • Definition of “Destruction or Adverse Modification” of Critical Habitat – proposal to correct definition consistent with the ESA and court decisions; and
  • Listing and Designating Critical Habitat; Revisions to the Regulations for Impact Analyses of Critical Habitat – final promulgation to implement Presidential memo pertaining to the timing of the economic analysis of a designation of critical habitat.

All are policy / legal significant, not economically significant – but together are the three proposed rules economically significant?  The sum of the parts of the proposed rules – like the FDA FSMA proposed rules – may exceed the separate parts or create other issues.

The structure and parameters of a rule often creates a practical problem for agencies and the commenting public – are the rule sufficient discrete or overlap to determine whether they should be separate rules or combined, and does one rule create changes that affect another.  The EPA and other agencies have faced this question in past; hopefully OMB and the agencies – in this case two agencies acting together – have learned from that experience.

Resource:  This blog focuses on specific regulatory activities in the larger perspective of rulemaking and administrative law.  That effort cannot be accomplished without reaching out to significant resources.  One key resource used for that effort is The George Washington University Regulatory Studies Center’s Regulation Digest.  Published on Wednesday afternoon, the Regulatory Digest provides the most comprehensive weekly menu of actions, news, and opinion for the reader to consider and includes, like this blog, a free listserve option worthy of subscription.