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

Monday Morning Regulatory Review – 4/30/12

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

Regulations:  The Office of Management and Budget (OMB) began review on three more Small Business Administration (SBA) planned system of adjustments to the Small Business Size Standards, which generally increase the scope of regulatory flexibility analyses and the pool of businesses that are eligible for small business contracts.  OMB completed review of SBA final rules on the information classification, and Administrative and Support, Waste Management and Remediation Services, and an SBA proposed rule on size standards for Mining, Quarrying, and Oil and Gas Extraction.

OMB also completed review of economically significant rules for the Department of Education’s (DOEd) Pell Grant Program, and the Department of Health and Human Services’ (HHS) (1) Home and Community-Based State Plan Services Program and Provider Payment Reassignments, and (2) Community First Choice Option.


The Senate failed to approve S.J. Res. 36, a resolution of disapproval of the National Labor Relations Board Representation – Case Proceedings on Tuesday, April 24.  As discussed last week, litigation is still pending, but there will be no legislative intervention (POTUS had threatened to veto a resolution in any event).

After the hearing the Securities and Exchange Commission’s (SEC) aversion to regulatory analysis reported here, the Financial Services Committee filed a report on April 25, 2012, recommending (to the Committee of the Whole House), H.R. 2308, to improve the consideration by the Securities and Exchange Commission of the costs and benefits of its regulations and orders, with an amendment (H. Rept. 112–453).


The United States District Court for the District of Columbia will hear cross motions to dismiss / summary judgment in National Restaurant Association [NRA] v. Solis, D.D.C. No. 11-cv-1116, on whether the Department of Labor (DOL) gave the public adequate notice and an opportunity to comment in its 2008 proposed rule of notice requirements to employees that tips would be offset against minimum wage requirements that were ultimately contained in the 2011 final rule.  NRA claims that the 2011 final rule is a significant revision of (and detrimentally unnoticed increase in) the level of information that employers are required to provide to tipped employees, which itself is a reversal of DOL’s position from adhering to prior court decisions (2008) to rejecting those decisions (2011).  (Note also the change in Administration between proposed and final rule).

This may be a close “logical outgrowth” case, but the change and rationale (to the extent it exists, is rather dramatic.  Plaintiffs also raise a significant Regulatory Flexibility Act (RFA) claim that DOL improperly certified that the rule would not have a significant impact on a substantial number of small entities.   Fortunately, plaintiffs appear to have dropped some of their more problematic contentions about executive management, which can only be raised in a much more intricate Administrative Procedure Act (APA) claim.

Short version this week because I’m on travel.