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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 4/23/12

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

Last Week:  Inadequate economic analysis at the Securities and Exchange Commission (SEC) and delay in rulemaking by the Occupational Safety and Health Administration (OSHA) were the focus of Congressional hearings.  Meanwhile, the Environmental Protection Agency (EPA) issued new rules and proposals with both economic analysis and delay issues.

This Week:  United States District Court decisions are likely on whether

  • to preliminarily enjoin the Department of Labor (DOL)’s Changes to the Labor Certification Process for the Temporary Non-Agricultural Employment H-2B visa procedures rule, and
  • the National Labor Relations Board (NLRB) lawfully adopted the Representation — Case Procedures Rule.

Less certain, is whether the Senate may take up a resolution of disapproval of the NLRB Representation — Case Procedures Rule.

Regulations:

Last Week:

The Office of Management and Budget (OMB) completed review, and the EPA released, an overdue Clean Air Act final rule establishing new source performance standards on natural gas wells that are hydraulically fractured (or “fracked”).  This rule, when published and effective (60 days after publication), will be of great interest to the economic interests above the Marcellus and other oil shale fields, and is well discussed in the Utica Marcellus Shale Monitor, the Energy Law Blog, Energy Business Law, and the Ohio Environmental Law Blog.

EPA published its legal- or policy-significant National Emission Standards for Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production,

We do not anticipate the construction of any new PVCPU in the next 5 years and, therefore, there are no new source cost impacts.

As in the past, these no-effect statements raise skepticism.

EPA also published its Electronic Reporting Under the Toxic Substances Control Act proposed rule.  Comments on the rule and EPA’s claimed cost reductions and benefits on over 9,000 filings each year are due June 18, 2012.

Legislation:

Last week:

The House Committee on Oversight and Government Reform heard testimony on the SEC’s Aversion to Cost-Benefit Analysis on Tuesday, April 17.  The hearing returned to the SEC’s failures in Business Roundtable v. SEC, noted in last year’s review, to meet its statutory obligation to assess economic consequences and reliance on insufficient empirical data.

On Thursday, the Senate Committee on Health, Education, Labor and Pensions heard from the Government Accountability Office (GAO) and others on delays in OSHA regulatory delays, discussed in the Employment Law Update.  The natural targets were past court decisions and the OMB, but current delays in both may be the product of poor design in the past.

This week:

The Senate may consider S.J. Res. 36, a resolution under the Congressional Review Act (CRA) to disapprove of the NRLB’s Representation — Case Procedures rule, also known as the “Ambush Elections” rule, reports Seth Borden in the Labor Relations Today.  If enacted, the resolution would be the second such resolution of disapproval under the CRA and neither the Senate Calendar nor a vote is certain.  The House might agree if the Senate were to pass the joint resolution.  The Ambush Election Rule requires union elections within a very short time frame and is being challenged in the U.S. District Court for the District of Columbia (see below).

Litigation:

Last Week:

The U.S. Court of Appeals for the D.C. Circuit vacated the administrative decision in Mobil Pipe Line Co. v. Federal Energy Regulatory COmmission because the FERC denied a request for permission to charge market-based rates for shipping oil through its pipeline even though FERC’s expert staff examined the market and deemed this case a “slam dunk” for allowing Mobil to charge market-based rates.  On examining the record evidence, the court found FERC’s decision to be unreasonable.

The Investment Company Institute and the Chamber of Commerce of the United States sued the Commodities Futures Trading Commission (CFTC) under the Administrative Procedure Act (APA) and the Commodities Exchange Act (CEA), according to the BLT (includes complaint).  Investment Company Institute v. CFTC, D.D.C. No. 1:12-cv-00612.  Plaintiffs claim the CFTC final rule failed to explain its reversal of a 2003 decision not to regulate an area already regulated by the Securities and Exchange Commission.  This suit could be reminiscent of Business Roundtable v. SEC, discussed last winter and above, and highlights the potential for overlap and duplication that OMB should resolve within the Executive Branch, but cannot resolve with the independent agencies.

The Chamber of Commerce, and others, sued the Department of Labor (DOL), claiming DOL violated the APA by promulgating the Temporary Non-Agricultural Employment of H–2B Aliens in the United States rules last February.  Chamber of Commerce v. Solis, N.D. Fla. No.  3:12-cv-00183-rv-CJK.  Plaintiffs claim that (1) DOL lacked legal authority to issue the rules – that regulatory authority over H-2B visas rests with the Secretary of Homeland Security, not DOL, (2) DOL failed to comply with the Regulatory Flexibility Act (RFA), and (3) the regulation is arbitrary and capricious, for example, because DOL’s definition of “temporary” is inconsistent with the definition in DHS regulations.  This morning, DOL extended the effective date to April 27, 2012, to comply with the filing and delay requirements of the Congressional Review Act (CRA), which simplifies the litigation  because…

This Week:

…the District Court in Northern Florida has scheduled a hearing on the Chamber’s motion for a temporary restraining order / preliminary injunction for Tuesday, April 24, 2012.

The District Court in D.C. may decide whether the NLRB violated the Administrative Procedure Act in adopting the Representation–Case Procedures, link above, as alleged in Chamber of Commerce v. NLRB, D.C.D.C. No. 1:11-cv-02262-JEB.  The Chamber claims the NLRB violated the APA by departing from precedent without explanation, failing to respond to public comments, and exceeding its authority (and it’s quorum requirements).  As of this writing, the NRLB has not stayed the rule or its effective date.  Unless the court decides the cross motions for summary judgment adversely to the NLRB, the rule will become effective on April 30, 2012.