With the 30-day deadline for making rules effecting during the current Administration fast approaching (Wednesday), agencies took a number of actions that raise concerns – or at least perceived concerns. One final rule challenges a court determination of the agency’s authority, while another agency took pains to adopt an interim rule on a not-very-controversial subject. In the twilight of between regulation and litigation, the acquisition agencies provided an uncommon but effective example of how to notice a temporary judicial bar of the effect of certain provisions of a final rule, litigation commenced immediately on a hot button issue that will be resolved by the next Administration.
Continuing Reporting Obligations: The Department of Labor (DOL)’s Occupational Safety and Health Administration (OSHA) today published a Clarification of Employer’s Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness final rule. The rule purports to “clarify” that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation that continues for as long as the employer must keep records of the recordable injury or illness. The final rule revises the titles of some existing sections and subparts and alter some regulatory text, but do not add new compliance obligations and do not require employers to make records of any injuries or illnesses that are not currently required. OSHA proposed changed in July 2015 and received 30 public comments.
The rule responds to the United States Court of Appeals for the District of Columbia Circuit held in AKM LLC v. Sec’y of Labor decision in 2012 that OSHA must cite an employer for failing to record an injury or illness within six months of the first day on which the regulations require that record; a citation issued later than that date is barred by the Occupational Safety and Health Act (OSH Act)’s statute of limitations that “[n]o citation may be issued … after the expiration of six months following the occurrence of any violation.” Undaunted, OSHA’s intent is quite clear:
[AKM LLC aka Volks II] held that the [OSH Act] does not permit OSHA to impose a continuing recordkeeping obligation on employers. One judge filed a concurring opinion disagreeing with this reading of the statute, but finding that the text of OSHA’s recordkeeping regulations did not impose continuing recordkeeping duties. OSHA disagrees with the majority’s reading of the law, but agrees that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations. This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.
OSHA argues from the United States Supreme Court (SCOTUS) Brand X decision that the D.C. Circuit’s construction of the OSH Act does not trump its own construction otherwise entitled to Chevron deference because the D.C. Circuit did not clearly hold that its decision was compelled by the unambiguous terms of the OSH Act – but a reading of AKM LLC raises questions about that interpretation. Four years, eight months after the decision that set the rulemaking in motion, this final rule becomes effective January 18, 2017.
► The Brand X / Chevron application to the D.C. Circuit’s decision will undoubtedly arise as soon as OSHA prosecutes a violation of the record keeping requirements beyond the six-month statute of limitations in the OSH Act. This type of non-acquiescence is not particularly common, but the only real mans for OSHA to pursue the distinction, other than seeking certiorari to review the original D.C. Circuit decision from SCOTUS, which either OSHA or the Department of Justice (DOJ)’s Solicitor General declined. The subject is a natural for the rushed end-of-Administration regulation as the incoming Administration is unlikely to be supportive, countermand or oppose OSHA’s interpretation in the courts, and even seek legislative intervention.
Litigation Risk & Process Speed: The Department of Homeland Security (DHS) today published a Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status interim rule with request for comments. The “T” classification is designed to assist law enforcement and the victims of severe forms of human trafficking in prosecuting offenders by providing a legal status for assisting victims. The “T” classification was originally authorized in 2000, and the predecessor to DHS’s United States Citizenship and Immigration Services (USCIS) and other immigration components, adopted an interim rule in 2002. The classification has been reauthorized several times, most recently in 2013. The classification is available only to 5,000 primary beneficiaries in any fiscal year, but applications have never approached that number. Although the rule has previously appeared in the Unified Agenda for some years, this interim rule becomes effective January 18, 2017, and comments are due February 17, 2017.
► The “T” classification can be exceptionally useful in the prosecution of human trafficking, but the regulatory management of the process leaves a great deal to be desired. First, this interim rule responds to public comments filed in response to the 2002 interim rule – a rule that was never finalized. DHS asserts that the Administrative Procedure Act (APA) either does not apply, that portions of the rule are exempt from the APA’s advance notice and an opportunity for public comment requirements, or that it has “good cause” to promulgate the rule in advance of considering the public comments, and therein lie several problems.
Some of DHS’s changes in this interim rule do not require advance notice and opportunity for public comment, but DHS doth protest too much. First, although some changes may be required by statutory changes and non-discretionary, DHS seems to believe this encompasses “[w]hen regulations merely restate the statute they implement,” and those statutes are self-executing (and already implemented), but statutory regurgitation is not properly a regulation at all. Second, DHS notes that portions of the final rule are procedural (and exempt from notice and comment procedures), but the rule suggests also that the final rule redefines certain bases for DHS’s decision – and that is generally substantive. Third, DHS argues that some changes are logical outgrowths of the 2002 interim rule, but bootstraps changes from suggestions in the public comments, not a logical outgrowth of the decade’s old interim (viz proposed) rule itself.
Finally, DHS argues that some regulatory changes are exempt from advance public comment as contrary to the public interest. DHS’s good cause statement, however, argues the importance of the rule to its beneficiaries and conjectural harm from delay, not that delay would adversely affect the public, such as by creating the opportunity to evade regulatory proscriptions. The need for speed is likewise undercut by the rule’s 30-day delayed effectively date. More likely, DHS’s good cause is premised on the notion that no one will have standing to object before a United States court – a risky proposition. The substance the rule may be unobjectionable, but the process for its adoption is objectionable.
FAR Injunction Notice: The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) jointly published Federal Acquisition Regulation; Fair Pay and Safe Workplaces; Injunction rule amendments last Friday to effectuate the preliminary injunction ordered by the United States District Court for the Eastern District of Texas in Associated Builders and Contractors of Southeast Texas v. Rung. The core requirements enjoined here required that most significant prime contractors report allegations that they have violated any of 14 different labor, employment, or discrimination statutes, even when those actions are pending and unresolved, and that agency contracting officers must decide whether such allegations should bar the potential bidder from a federal procurement contract.
► Modification of the regulations is one way to notice their inapplicability – at least temporarily – and the formal notice of such impairments of a regulation’s legal effect are appropriate. Key here is the detail of how the agencies have parsed the regulation and applied the injunction; the entire rule was not enjoined – only certain provisions as specified in the preliminary injunction. Federal Acquisition Regulations (FAR) adoption of contract clauses may be unique, but this particular final rule is worth review by any agency engaged in litigation barring the effect of a regulation.
Land Use Planning and Plans: In another example, the Department of the Interior (DOI)’s Bureau of Land Management (BLM)’s Resource Management Planning final rule did not make the cut last week (published last Monday), but does this week because litigation has already been joined in Kane County, Utah v. Department of the Interior in the United States District Court for the District of Utah. The final rule revises procedures used to prepare, revise, or amend land use plans under the Federal Land Policy and Management Act (FLPMA) – the Resource Management Plans (RMP) that govern the use of nearly all of the land in some counties in the Western United States and most of the Western United States – including the intergovernmental consultation process. The final rule will become effective on January 11, 2017, unless the court orders otherwise.
Past land use plans have been the subject of heated litigation from interested parties across the spectrum. Kane County (pop. ±7,000; 2.6 million acres, 85% owned by the United States), and a half dozen other local jurisdictions, claim that the overall land use planning rule, and several ancillary DOI actions, violated the FLPMA, and was adopted in violation of the National Environmental Policy Act (NEPA) and the APA. A particular issue within the case is the extent to which local jurisdictions must be consulted with regard to land use planning and RMPs that have profound effects on their economies. The planning process goes back a number of years, although BLM only proposed a rule at the end of February, and the public comments closed in April, of this year.
► Land use planning by the United States, and particularly BLM, has been contentious to the point of occupation and criminal prosecution. Within the Western States, BLM can effect substantial changes on local economies. The land use rule is more than a likely a target for change by the new Administration – and of additional litigation by other interested parties – and a possible consent decree and revision should be expected.
a Programming Note: There will be no Monday Morning Regulatory Review next week due to planned travel. Back at the beginning of 2017.
The post Monday Morning Regulatory Review – 12/19/16: Continuing Reporting Obligations; Litigation Risk & Process Speed; FAR Injunction Notice, Land Use Planning and Plans & a Programming Note appeared first on Federal Regulations Advisor.