Summer in Washington and the regulatory agenda is not on vacation, but small sauntering through large items. For example, one agency has extended by a year the compliance date for a major rule, another agency created a public relations controversy while releasing a much narrower rule, a third agency released only a fact sheet on a hotly contested final rule, and another pair published a rule released three weeks ago. The biggest “news” was that the press overstated a court of appeals argument.
Nutrition Labeling Extended: The Food and Drug Administration (FDA) extended the compliance date for the Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments until December 1, 2016, in light of multiple requests for additional time, including detailed implementation problems. Technically a final rule, the extension permits more time (and greater opportunity for guidance and compliance) of nutrition information disclosure requirements for restaurant menus and menu boards in locations that sell pre-packaged food (including restaurants) (chains with 20 or more locations), and cuts across business models to include franchises.
► The rule divided the food industry and its implementation will vary greatly – some chains with fully standardized menus have supported the rules, while a number of grocers have opposed the rules because of the lack of standardization in service. FDA’s response to requests for delay in the compliance date noted that whole systems may need to be developed to comply. FDA appears to be responding to real-world issues that could not be wholly explicated and addressed in the public comment process.
Housing Grants: The Department of Housing and Urban Development (HUD) released a final rule that “provides HUD program participants with an approach to more effectively and efficiently incorporate into their planning processes the duty to affirmatively further the purposes and policies of the Fair Housing Act.” Under the rules, HUD will provide states, local governments, public housing agencies (PHA), and the public with local and regional information about “segregated living patterns” and “racially or ethnically concentrated areas of poverty” that HUD wants program participants to address. HUD will incentivize compliance with grant money.
► Notable differences exist between the public relations and the regulatory text – not a criticism of the goals, but of the means and agency public statements. The pro and con public relations focus on a much broader application than HUD program grantees – it is not universal. Indeed, the rule could have a disincentivizing effect: small grantees may eschew future funding to avoid the increased costs and burdens, while non-participants may decide not to seek participation. Effectiveness may not be known for several grant-funding cycles.
Contraceptive Mandate Update: The Department of Health and Human Services (HHS) released a fact sheet on its final rules on contraceptive services without cost sharing with limited changes to past contraceptive mandate regulations, but without the regulations. The serial regulations have been subject to numerous challenges by for profit, religious, and religious-related non-profit entities, with mixed results. The new versions allow eligible organizations to notify HHS in writing of their religious objection to providing contraception coverage without completing a prescribed form (EBSA Form 700) – complying with court orders and backing away from strict Paperwork Reduction Act (PRA) requirements. The final rule purportedly uses a definition from federal tax law to define a “closely held for-profit entity” as one not publicly traded and at least 50% owned by five or fewer individuals and treats family members as a single owner.
► The announcement is nothing more than an announcement – HHS provided a link to the Office of the Federal Register (OFR)’s public inspection list, and the regulation has not been filed for public inspection. This process represents a least acceptable “middle ground” for releasing regulations. Some agencies release nothing prior to the OFR’s filing for public inspection – a historical norm that remains quite acceptable. Other agencies proactively release regulation drafts when signed and before submitting them to the OFR, giving even more timely public awareness and additional implementation planning time. HHS’s only transparency lies in seeking to manipulate favorable press coverage while insulating itself from any substantive review or criticism – and that practice deserves criticism.
Truck Emissions: The Environmental Protection Agency (EPA) and Department of Transportation (DOT) National Highway Traffic Safety Administration (NHTSA) finally published their Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles in today’s Federal Register. EPA and NHTSA released a draft version on June 19, along with supporting documents, and even a helpful regulatory text redline. Comments are due September 11, 2015.
► As helpful as the agencies have attempted to be, a 60-day public comment period is still far too short to digest and provide meaningful comments on this leviathan.
Immigration Executive Action Again: A panel of the United States Court of Appeals for the Fifth Circuit heard oral argument, as the press has noted ubiquitously, last Friday, but, again, the actual issues presented seem to confound. Both general and trade press expressed skepticism about the likelihood that the Administration will succeed in overturning a preliminary injunction entered by the United States District Court for the Southern District of Texas. The Texas v. United States preliminary injunction barred implementation of one Administration executive action (not an Executive Order) that granted work permits to a category of aliens who were otherwise undocumented and not in a legal status. The district court held that Department of Homeland Security (DHS) failed to comply with the Administrative Procedure Act (APA) notice and comment rulemaking requirements by issuing a memorandum. The Administration previously failed to stay that preliminary injunction, and the panel heard argument on the Administration’s appeal from the preliminary injunction.
Appellate courts review a preliminary injunction for abuse of discretion, but, despite that deferential standard, a decision grounded in erroneous legal principles is reviewed de novo. Findings of fact underlying each element of a district court’s preliminary injunction analysis are subject to a clearly erroneous standard of review. Against this legal background, the Department of Justice (DOJ) has faced a difficult argument convincing an appellate court that the district court was so wrong. In the meantime, the parties have agreed that further proceedings in the district court toward final resolution (i.e. summary judgment) should be stayed pending the appellate process on interim relief.
► The general and trade press both lose sight of the issue presented because covering protests and policy disputes are far more interesting than the substance: whether the district court abused its discretion in granted the preliminary injunction until it resolves the issues presented by the substance of the complaint. The wisdom of granting work permits is not, and will not be, before the courts. Do not expect any of the hyperbole to have any impact on the court’s decision. The court of appeals has expedited proceedings, but interim resolution may still be weeks if not months away, to be followed by further district court proceedings.
The post Monday Morning Regulatory Review – 7/13/15: Nutrition Labeling Extended; Housing Grants; Contraceptive Mandate Update; Truck Emissions & Immigration Executive Action Again appeared first on Federal Regulations Advisor.