Header graphic for print
Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monthly Archives: May 2012

Regulations and Something Else: DOT’s “Free” Frequent Flyer Guidance

Posted in Regulatory Process

A recurring question confuses lawyers, businesses, and agencies:  When can an agency issue a “guideline” and when must it issue a “rule.”  Several instances of the issue have arisen recently that reiterate why this issue deserves attention. Patrick Rizzi pointed out, for example, that the Department of Transportation (DOT) issued new guidance on the use… Continue Reading

Plain Meaning & A Warning to Agencies: Supreme Court’s RESPA Decision

Posted in Judicial Review & Remedies, Legislation

The Supreme Court of the United States unanimously took Congress at its word last week.  The Court decided that an unlawful division of mortgage processing or origination fees requires that the fees be divided.  The Court found the “plain language” of the Real Estate Procedures Act of 1974 (“RESPA”) to be controlling in Freeman v…. Continue Reading

Monday Morning Regulatory Review – 5/28/12

Posted in Uncategorized

A normally quiet week was punctuated by significant rules and proposals from the FCC on phone bills and the EPA on emergency generators.  The Senate, on its way out the door to a recess, provided the lighter side, sending a bill to the House that would eliminate “lunatic” from the United States Code.

DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss

Posted in Judicial Review & Remedies

The United States Court of Appeals for the Eleventh Circuit joined several other circuits in holding contrary to statute a Department of Justice (DOJ) regulation divesting the Board of Immigration Appeals (BIA) of jurisdiction when an alien leaves the United States in Lin v. U.S. Attorney General.  The Eleventh Circuit found that the “Departure Bar”… Continue Reading

Monday Morning Regulatory Review – 5/21/12

Posted in Judicial Review & Remedies, Regulatory Process

The Office of Management and Budget (OMB), Office for Information and Regulatory Affairs (OIRA) completed review of a number of high profile regulations last week, received a few new significant rules, and the NLRB recognized the quickie election injunction. Justice:  Disabilities.  The Department of Justice (DOJ) will extend until January 31, 2013, the compliance date… Continue Reading

NLRB Union Representation Election Rule Struck Down for Lack of Quorum

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

“According to Woody Allen, eighty percent of life is just showing up,” but for the National Labor Relations Board (NRLB), according to Judge James Boasberg, one hundred percent of its quorum is needed to vote.  Chamber of Commerce v. NLRB.  On that basis, Judge Boasberg struck down the NLRB’s Representation–Case Procedures rule based on the… Continue Reading

Monday Morning Regulatory Review – 5/14/12

Posted in Executive - OMB Review, Judicial Review & Remedies

Regulations: Petroleum Refineries:  The Office of Management and Budget (OMB) completed review of the Environmental Protection Agency (EPA)’s economically significant final rule to complete the Petroleum Refineries – New Source Performance Standards (NSPS)–Subparts J and Ja interim final rule.  EPA has previously promulgated new source standards for refineries, then granted reconsideration of, and stayed, specific… Continue Reading

Obama Adds Three Requirements to Retroactive Review of Regulations

Posted in Executive - OMB Review

President Barack Obama today added three new requirements to agency development of regulations and retrospective review of regulations in a new Executive Order:  The new order supplements Executive Order 13563 by – Telling agencies to invite public suggestions and publicly releasing retrospective analyses of regulations and supporting data; Prioritizing initiatives that will produce significant quantifiable… Continue Reading

Rule-Related Limits in Appropriations: A Viable Congressional Review Act

Posted in Constitutional Issues in Regulations, Legislation

Ilyse Schuman recently reported in the Employment Law Update that the House Appropriations Committee had approved FY2013 funding, and filed a report, for the Equal Employment Opportunity Commission (EEOC).  She focused on the catch that “none of the funds made available in this Act” can be used to implement the EEOC’s Disparate Impact and Reasonable… Continue Reading

Monday Morning Regulatory Review – 5/7/12

Posted in Executive - OMB Review, Regulatory Process

Regulations:  In candor, but with no surprise, the National Labor Relations Board (NLRB) published a notice delaying the effective date of its Posting Rule, which required “posting” of the NLRB-generated notice of employee rights and specifying that failure to do so was an unfair labor practice, “until further notice.”  The United States Court of Appeals… Continue Reading

Guns, Ammo, Conflicting Agency Views & the Importance of OMB Review

Posted in Executive - OMB Review

This morning’s Wall Street Journal highlights an often overlooked, critical, confusing, and somewhat misnomered regulatory function:  Office of Management and Budget (OMB) review.  Adam Entous and Evan Perez write that “U.S. homeland-security and law-enforcement agencies have objected to Obama administration proposals to relax export restrictions on high-powered firearms, threatening a centerpiece of the president’s trade… Continue Reading

President Obama’s International Regulatory Harmonization Initiative – An Opinion

Posted in Executive - OMB Review

President Obama (aka POTUS) issued an Executive Order, Promoting International Regulatory Cooperation, on May 1, 2012, that increases the visibility of agencies’ interest in international regulatory harmonization, but does it really do more than reiterate platitudes?  A careful review suggest that it reiterates many of the normative functions of the regulatory review process and, perhaps,… Continue Reading