OMB Releases Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions
The Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA), in conjunction with the U.S. General Services Administration’s (GSA) Regulatory Information Service Center and the 60 Cabinet, Executive, and Independent agencies across the Federal Government, released the Biden Administration’s Unified Agenda of Regulatory and Deregulatory Actions on June 21. The spring report contains agency regulatory flexibility agendas, meaning only those agenda entries for rules that are likely to have a significant economic impact on a substantial number of small entities. Most target dates in the agenda are hopeful rather than obligatory, and they’re frequently missed. However, the report provides an overview of objectives both in the near and long term. The update is a continuation of the previous priorities, notably in reversing Trump-era policies, as laid out in the Fall 2021 publication, including tackling the climate crisis, improving pipeline safety and environmental standards, protecting the public from COVID-19, combatting housing discrimination, lowering mental health and substance abuse costs, and increasing access for people with disabilities.
Beginning with some numbers and rankings, the newest edition includes 2,673 “active” actions, or those that agencies expect to work on over the next 12 months. This is essentially unchanged from December’s 2,678 active actions. The number of rules in the pre-rule and proposed rule stages have dropped marginally, while the number of rules in the final rule stage stand at 29 – an increase of 39. The administration seems to be focusing on more economically expensive actions as major rules increased from 200 to 217. The Department of the Interior (DOI), followed by the Treasury and Transportation Departments, remain in the top three spots among agencies and departments having the most active actions. When compared to the agenda from six months ago, the top ten agencies by active actions are largely the same. However, the Department of Homeland Security (DHS) has taken the number ten spot from the Department of Justice (DOJ), and the Department of Commerce (DOC) has moved ahead of the Department of Defense (DoD).
Likely the most noteworthy updates are those that have extended the estimated timelines for significant regulations the Biden Administration has been working on. This includes a proposed rule at the Department of Labor (DOL) to increase the minimum salary that employers must pay to most of their exempt employees. The Notice of Proposed Rulemaking (NPRM) deadline was set for April, but it has been moved to October. Whatever the agreed increase will be, the impact will certainly affect employers. In addition, there are updated delays for the Environmental Protection Agency’s (EPA) rules that focus on regulating greenhouse gas (GHG) emissions from coal and natural gas fired power plants. These rules have been moved from summer 2022 to March 2023, which may in part be due to the soon-to-be-decided Supreme Court ruling West Virginia v. EPA. This ruling could have significant implications over the EPA’s authority.
The agenda also includes more than 400 newly proposed or pre-rules, which could be some of the most influential rulemakings for the remainder of President Joe Biden’s first term. However, there is no guarantee they will be finalized by the 2025 deadline. Some of the newly listed rules include:
Architectural and Transportation Barriers Compliance Board
Accessibility Guidelines for Electric Vehicle (EV) Charging Stations: At present, there are no federal regulations specifying accessibility requirements for EV charging stations to ensure that they are accessible to and useable by persons with disabilities. The Access Board intends to supplement its Accessibility Guidelines under the Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) with scoping and technical requirements for electric vehicle charging stations. An NPRM is expected in September.
Environmental Protection Agency
Reconsideration of the National Ambient Air Quality Standards for Ozone: EPA will reconsider the Trump Administration’s decision not to update the permissible levels of ground-level ozone. The action would likely be among the most-economically consequential rules of the Biden Administration. When it was last updated in 2015 by the Obama Administration, the rule cost an estimated $1.4 billion annually. A proposed rule is expected in April 2023.
Department of Commerce
Emerging Technology Artificial Intelligence (AI): The Bureau of Industry and Security (BIS) is engaged in a process to identify emerging and foundational technologies that are essential to the national security of the U.S. BIS is publishing an Advance Notice of Public Rulemaking (ANPRM) and seeking public comment on AI items, as well as end-use controls to prevent the use of high-end U.S. AI items in human-rights violations.
Section 232 Exclusions Process: DOC is proposing a rule based on public comments received on Request for Public Comments on the Section 232 Exclusions Process that was published on February 10, 2022.
Department of Defense
Technology Protection Features Activities: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement so it can designate as allowable costs independent research and development costs contractors incur to develop and incorporate technology protection features in a designated system during the research and development phase of the system. An NPRM is expected in November.
Defense Commercial Solutions Opening: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement to implement a section of the fiscal year 2021 (FY21) National Defense Authorization Act (NDAA) to establish a permanent authority for the Secretary of Defense and those of the military departments to acquire innovative commercial products and commercial services through a competitive selection of proposals resulting from a general solicitation and the peer review of such proposals. The NPRM is expected to be released in July.
Modification of Prize Authority For Advanced Technology Achievements: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement and revise the award of prizes for advanced technology achievement to: (1) authorize the award of procurement contracts and other agreements” as another type of prize” (as in other than cash prizes); (2) permit the award of prizes, including procurement contracts and other agreements, in excess of $10,000,000 with the approval of the Under Secretary of Defense for Research and Engineering; and (3) require DoD provide Congress with notice of an award of a procurement contract or other agreement under this program that exceeds $10 million. The NPRM is expected to be released in January 2023.
Department of Energy
Procedures for the Acquisition of Petroleum for the Strategic Petroleum Reserve (SPR): The Department of Energy (DOE) proposes to amend the procedures for the acquisition of petroleum products for the SPR to: (1) more closely align the regulatory language with the applicable statutory language; (2) remove references to DOI and the royalty-in-kind transfers; and (3) increase the Department’s ability and flexibility to enter into contracts while better reflecting the actual petroleum product acquisition operations under Part 626.
Department of Health and Human Services
Tobacco Product Standard for Nicotine Level of Certain Tobacco Products: The Food and Drug Administration (FDA) made headlines with the revelation that it expects to publish a proposed rule that would set a maximum nicotine level in cigarettes. FDA says the action would reduce the addictiveness of cigarettes, “thus giving addicted users a greater ability to quit.” It also believes such a standard would help prevent older kids and young adults from becoming regular smokers. Despite the headlines, a proposed rule is not expected for nearly a year, in May 2023.
Federal Licensing of Office of Refugee Resettlement Facilities: This rule will provide the regulatory framework for new Federal licensing of Office of Refugee Resettlement facilities, which will be used when State governments do not provide State licensing for such facilities. The new office created to manage the Federal licensing will be proposed to be located within the Administration for Children and Families, but not within the Office of Refugee Resettlement. The NPRM is set for January 2023.
Department of the Interior
Carbon Sequestration: The Bureau of Ocean Energy Management (BOEM) is due to propose a rule establishing regulations governing carbon transportation and storage on the Outer Continental Shelf. The agency is required to issue a rule under the Infrastructure Investment and Jobs Act of 2021 (IIJA), and says the rule is “likely needed to achieve mid-century climate goals.” Despite a statutory requirement that BOEM publish a final rule by November 15, 2022, BOEM does not anticipate publishing a proposed rule until December.
Oil and Gas Leasing: The rule would update the Bureau of Land Management’s (BLM) existing rules governing site security and measurement of oil and gas from onshore Federal and Indian oil and gas leases. Since BLM adopted the existing rules in November 2016, the agency has encountered significant challenges in implementing them. This regulatory action would rectify gaps and inconsistencies in the current regulations and improve measurement accuracy, verifiability, and accountability on Federal and Indian minerals. The NPRM is expected to be released in November.
Department of Justice
Release Fund Under the First Step Act: The Bureau of Prisons proposes to add a regulation implementing a provision of the First Step Act (FSA) that requires Federal Prison Industries (FPI) to reserve a portion of the compensation inmates would otherwise receive for working in FPI to assist these inmates with costs associated with release from prison. The NPRM is set for December 2022.
Department of Labor
Coverage of Certain Preventive Services Under the Affordable Care Act: This rule would propose amendments to the final rules regarding religious and moral exemptions and accommodations regarding coverage of certain preventive services under the Patient Protection and Affordable Care Act (ACA). The NPRM is set for August.
Department of State
Passports: Addition of Gender X Marker: The Department proposes to update its regulations governing applications for passports to reflect these changes. The NPRM is set for July.
Department of Transportation
Advanced Impaired Driving Technology: The National Highway Traffic Safety Administration (NHTSA) is kicking off its rulemaking, required under the IIJA, to develop a Motor Vehicle Safety Standard “to require passenger motor vehicles manufactured after the effective date of that standard to be equipped with advanced drunk and impaired driving prevention technology.” NHTSA anticipates publishing an advanced noticed of proposed rulemaking in December 2022. A statutory deadline for a final rule is set for November 2024.
National Electric Vehicle Infrastructure (NEVI) Formula Program: This rulemaking would establish minimum standards and requirements for the implementation of the NEVI Formula Program. A statutory deadline for the establishment of minimum standards and requirements of the NEVI Formula Program is 180 days from May.
Department of the Treasury
Labeling and Advertising of Distilled Spirits, Wines, and Malt Beverages With Statements of Alcohol and Nutritional Content: The Alcohol and Tobacco Tax and Trade Bureau (TTB) is considering a rulemaking that could require alcoholic beverages to have “serving facts” information, including “mandatory information on alcohol content, nutritional content, and appropriate serving sizes for alcohol beverage products.”
Federal Energy Regulatory Commission
Accounting and Reporting Treatment of Certain Renewable Energy Assets: The Commission has sought comments on the accounting and reporting treatment of certain renewable energy generating assets and renewable energy credits. In addition, the Commission sought comments on the ratemaking implications of these accounting and reporting changes. Next action is uncertain.
Internal Network Security Monitoring for High and Medium Impact Bulk Electric System Cyber Systems: The Commission proposed to direct the North American Electric Reliability Corporation (NERC) to develop and submit for Commission approval new or modified reliability S=standards that require internal network security monitoring within a trusted critical infrastructure protection networked environment for high and medium impact bulk electric system cyber systems. Next action is undetermined.
Federal Maritime Commission
Ocean Common Carrier and Marine Terminal Operator Agreements: The Federal Maritime Commission (FMC) proposes to modernize outdated requirements and clarify existing requirements associated with the filing of ocean common carrier and marine terminal operator agreements subject to the Shipping Act of 1984. The NPRM is expected to be released in August and close in September with final action set for December.
Securities and Exchange Commission
Cybersecurity: The Division is considering recommending that the Commission propose rules to address registrant cybersecurity risk and related disclosures, amendments to Regulation S-P and Regulation SCI, and other enhancements related to the cybersecurity and resiliency of certain Commission registrants. The NPRM is set for October.
Veterans’ Affairs
Mental and Behavioral Health Care for Certain Former Members of the Armed Forces: The Department of Veterans Affairs (VA) proposes to amend its medical regulations to provide mental health and behavioral health care to former members of the Armed Forces who received a discharge under other than honorable conditions. In addition, the VA proposes to clarify tentative eligibility for emergency care, address individuals presenting with a clinically significant mental health need, and to address transitioning care when an individual receiving medical services under such regulation is determined to be ineligible for VA health benefits. The VA also proposes moving various current sections of its medical regulations related to provision of mental health care to new sections. The NPRM is expected to be released in November.