Week in Regulation
November 20, 2023
A Busy but Insubstantial Week
Last week, there was no shortage of activity in the pages of the Federal Register. There were 17 rulemakings with some measurable economic impact. Despite the steady volume of actions, the quantified effects of this tranche of regulations were relatively muted. Across all rulemakings, agencies published $300.8 million in total costs and added 298,258 annual paperwork burden hours.
- Proposed Rules: 43
- Final Rules: 60
- 2023 Total Pages: 80,430
- 2023 Final Rule Costs: $118.1 billion
- 2023 Proposed Rule Costs: $521 billion
NOTABLE REGULATORY ACTIONS
The most significant action of the week – at least in terms of quantifiable impact – was a proposed rule from the Department of Health and Human Services (HHS) regarding “Contract Year 2025 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly.” As the wordy title suggests, the rulemaking seeks to make a series of changes to various aspects of programs under the Medicare umbrella. HHS lays out a dozen policy changes here. As with many Medicare payment rules, much of the emphasis is on the adjustment in transfer payment levels. This rulemaking, however, also includes adjustments to certain reporting requirements. HHS expects the rule to add nearly 71,000 hours of paperwork annually, with a commensurate cost of $36.8 million (or roughly $110.5 million total across the three-year window during which paperwork requirements get approved).
TRACKING THE ADMINISTRATIONS
As we have already seen from executive orders and memos, the Biden Administration will surely provide plenty of contrasts with the Trump Administration on the regulatory front. And while there is a general expectation that the current administration will seek to broadly restore Obama-esque regulatory actions, there will also be areas where it charts its own course. Since the AAF RegRodeo data extend back to 2005, it is possible to provide weekly updates on how the top-level trends of President Biden’s regulatory record track with those of his two most recent predecessors. The following table provides the cumulative totals of final rules containing some quantified economic impact from each administration through this point in their respective terms.With most of the week’s action coming from proposed rules, there was only nominal movement in the Biden Administration’s final rule totals. There were, however, some substantial shifts in the tallies for the Trump and Obama Administrations. Trump-era costs and paperwork decreased by $202 million and 1.7 million hours, respectively. A handful of rules combined to yield this deregulatory dip. Meanwhile, Obama-era costs and paperwork increased by $7.1 billion and 1.7 million hours, respectively. A set of energy efficiency standards for fluorescent lamps fueled that cost surge and a Medicare payment rule brought most of the paperwork.
THIS WEEK’S REGULATORY PICTURE
This week, the Environmental Protection Agency (EPA) would like to hear further input on how to craft its requirements involving “the reporting of animal waste air emissions.”Source: Photo by Alexandr Podvalny on Unsplash
Thankfully, this is a visual rather than olfactory medium. Last Friday, EPA published an Advanced Notice of Proposed Rulemaking (ANPRM) entitled “Potential Future Regulation for Emergency Release Notification Requirements for Animal Waste Air Emissions Under the Emergency Planning and Community Right-to-Know Act (EPCRA).” Essentially, the ANPRM marks the first substantive step in EPA’s pursuit of reversing a 2019 rule on the matter that amended “the release notification regulations under the [EPCRA] to add the reporting exemption for air emissions from animal waste at farms provided in section 103(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).”
In what may be something of a revelation to most readers, “the history of release reporting for air emissions from animal waste at farms is long and complex.” This back-and-forth apparently dates to a 2008 rule that first attempted to grant a series of emissions-reporting exemptions for farms under both EPCRA and CERCLA. The D.C. Circuit Court of Appeals struck that rule down in 2017. In 2018, “The [Fair Agricultural Reporting Method] FARM Act expressly exempted all farms from reporting air emissions from animal waste under CERCLA but did not amend EPCRA in any way.” Thus, the aforementioned 2019 rule sought to restore the EPCRA exemption via administrative action when it could not pass muster legislatively. As with so many items, the Biden Administration is now examining how to reverse a Trump-era rulemaking.
Given the long-winding and convoluted path of this particular patch of policymaking, EPA is likely beginning its action here as an ANPRM to further bolster the legal standing of some eventual final rule on the matter. The rulemaking’s entry from last spring’s Unified Agenda of planned regulatory actions does not shed much light on a prospective timeline for the regulation though. Since it is still in the ANPRM stage, this action largely amounts to a fact-finding exercise by EPA. As such, the agency seeks further input “on the following five topics: (1) health impacts; (2) implementation challenges; (3) costs and benefits; (4) small farm definition and potential reporting exemption, and (5) a national report on animal waste air emissions.” Interested parties have until February 15, 2024, to submit comment on the matter.
Since January 1, the federal government has published $639.1 billion in total net costs (with $118.1 billion in new costs from finalized rules) and 191.5 million hours of net annual paperwork burden increases (with 8.1 million hours in coming from final rules).