This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. It is excerpted here.
On the day before President Biden’s inauguration, the Department of Health and Human Services (HHS) adopted the Securing Updated and Necessary Statutory Evaluations Timely rule, colloquially known as the SUNSET Rule, because it would sunset any regulation that had not been assessed and, where required, reviewed within a specific timetable.
Specifically, it provided that all HHS regulations would expire at the end of: (i) five calendar years after the year that the regulation first becomes effective; (ii) ten calendar years after the year of the regulation’s promulgation; or (iii) ten calendar years after the last year in which HHS assessed and (if review of the regulation was required) reviewed the regulation, whichever is latest.
The purpose of the rule, according to HHS, was to incentivize the agency to undertake the reviews required under the Regulatory Flexibility Act (RFA). That Act requires agencies to have a plan for reviewing every ten years those regulations that have a significant effect on a substantial number of small entities, and each year to publish a list of those regulations that the agency will review that year. As interpreted by HHS, the RFA required it to “assess” all of its existing regulations to determine whether they had a significant effect on a substantial number of small entities, and then to review those determined to have such an effect. HHS admitted that it had failed over the years to make all the required reviews required by its plan. Under the SUNSET Rule such failures would result in the automatic termination of the unassessed or unreviewed regulation.
The rule was almost immediately challenged in court on substantive and procedural grounds. In response, the new administration’s HHS delayed the effective date of the rule until March 22, 2022, pending judicial review. Because HHS said that it was reconsidering the SUNSET Rule in light of the claims made in the lawsuit, the parties sought a stay of the litigation, which the court granted. Then, in October 2021, HHS issued a notice of proposed rulemaking to rescind the SUNSET Rule, and in early March 2022, HHS further extended the effective date to September 22, 2022, in order to give it adequate time to consider the comments on the proposed repeal of the rule.
Everyone is expecting HHS to rescind the SUNSET Rule in the near future, and HHS should indeed take this action. Unlike the SUNSET Rule itself, which was neither lawful nor good policy, its rescission would be both lawful and good policy. But before we go any further, let us be clear that what is really at issue here is not HHS’s SUNSET Rule, but the concept of having sunset rules for regulations at all. There is nothing special about HHS or its regulations, or its failure to fulfill the requirements of the Regulatory Flexibility Act. HHS’s situation is faced by all federal agencies.
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William Funk | March 30, 2022
On the day before President Biden’s inauguration, the Department of Health and Human Services (HHS) adopted the Securing Updated and Necessary Statutory Evaluations Timely rule, colloquially known as the SUNSET Rule, because it would sunset any regulation that had not been assessed and, where required, reviewed within a specific timetable. Everyone is now expecting HHS to rescind the SUNSET Rule in the near future, and the agency should indeed take this action.
James Goodwin | March 29, 2022
The regulatory system, contrary to the claims of its conservative critics, is an indispensable part of the broader civic infrastructure on which our democracy is built. Significantly, the ability to exercise voting rights -- the most visible and potent act of civic engagement -- necessitates a stronger and more inclusive regulatory system.
Ian Campbell | March 28, 2022
Women led the battle for industrial democracy — even before they won the vote. However, women’s contributions to and leadership of the organized labor movement, though lionized within the movement itself, have largely escaped public consciousness.
Marcha Chaudry | March 24, 2022
Women’s History Month isn’t just a time to recognize achievements made throughout the decades to advance women’s rights and demand equity. It’s also an opportunity to celebrate women making history today, the ones in our unwritten history books.
Daniel Farber | March 22, 2022
In describing cost-benefit analysis to students, I've often told them that the "cost" side of the equation is pretty simple. And it does seem simple: just get some engineers to figure out how industry can comply and run some spreadsheets of the costs. But this seemingly simple calculation turns out to be riddled with uncertainties, particularly when you're talking about regulating the energy industry. Those uncertainties need more attention in designing regulations.
Alexandra Klass, Hannah Wiseman | March 21, 2022
The U.S. system for regulating electricity divides responsibility among too many players, assigns too many overlapping or competing tasks, and creates too many distorted incentives, a group of law professors says. They propose reforms that would break down governance silos to ensure greater collaboration in the clean energy transition.
Catalina Gonzalez | March 16, 2022
State officials in California are leading an extensive multisector planning effort to develop the 2022 Scoping Plan, the third update to California’s climate mitigation strategy. The new plan will outline a pathway for statewide action toward reducing greenhouse gas emissions by 40% by 2030 and reaching net-zero emissions no later than 2045.
Daniel Farber | March 15, 2022
On March 11, there were two seismic shocks in the world of gas pipeline regulation. The Federal Energy Regulatory Commission (FERC) has spent years resisting pressure to change the way it licenses new gas pipelines. The whole point of a natural gas pipeline is to deliver the gas to users who will burn it, thereby releasing carbon dioxide into the atmosphere. FERC has steadfastly refused to take those emissions into account. The D.C. Circuit held that position illegal in an opinion released last Friday. That same day, by coincidence, FERC published guidelines in the Federal Register explaining how it proposed to consider those emissions.
Sidney A. Shapiro | March 14, 2022
When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive. Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process. Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.