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

Monthly Archives: June 2012

GW Regulatory Studies Program Executive Course Announced

Posted in Regulatory Process

Federal agencies completing sufficient, quality regulatory impact analyses in proposed and final rules just became a little easier.  The George Washington University Regulatory Studies Program (RSC) has announced its Executive Course on Federal Regulatory Policy, Process, and Analysis, to be held October 3 – 4, 2012.  Not only will this course be useful to agency… Continue Reading

Monday Morning Regulatory Review – 6/25/12

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

Regulations: DOJ Prison Rape:  The Department of Justice (DOJ) published its final National Standards to Prevent, Detect, and Respond to Prison Rape final rule with a request for additional comments on June 20, 2012.  This massive (it would have been ream-sized if double-spaced) rule may illustrate the need for careful evaluation of cumulative estimates and… Continue Reading

OMB Requests Paperwork Reduction Reporting, More Needed to Reduce Burden

Posted in Executive - OMB Review, Regulatory Process

The Office of Management and Budget (OMB) has followed up President Obama’s Executive Order 13610, Identifying and Reducing Regulatory Burdens, with specific examples of how agencies can reduce “paperwork” burdens on the “American people, including small businesses.”   The OMB memo could have done more to ensure that agency reduce Paperwork Reduction Act (PRA) burdens but… Continue Reading

Administrative Conference Adopts Five Recommendations … and Requests Additional Proposals

Posted in Regulatory Process

The Administrative Conference of the United States (ACUS) adopted five sets of recommendations at the plenary session of its Assembly last week, although not without some substantial debate and amendment.  ACUS, a federal advisory committee, focuses on the broader issues of federal administrative law, as reflected by the scope of the recommendations made last week. … Continue Reading

Supreme Court Limits Deference to Agency Amicus Brief Interpretations: Christopher v. SmithKline Beecham

Posted in Judicial Review & Remedies

The Supreme Court of the United States declined today to end the judicial practice of deferring to an agency’s interpretation of its own regulations in “friend of the court” briefs filed with a court in Christopher v. SmithKline Beecham Corp.  The Court, however, reaffirmed hard limitations on this practice, distinguishing this case because the Department… Continue Reading

Monday Morning Regulatory Review – 6/18/12

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

Regulations: FCC Cell Phone Privacy:  The Federal Communications Commission (FCC) sought public comment on its Privacy and Security of Information Stored on Mobile Communications Devices proposed rule.  The summary published in the Federal Register notes that the FCC seeks comment on its idiosyncratic website on the privacy and data security practices of mobile wireless service… Continue Reading

Regulations and Something Else 3: DHS “DREAM” Announcement Raises Many Administrative Law Questions

Posted in Regulatory Process

The Department of Homeland Security (DHS) this week joined the political campaign headlines by announcing that it will, by policy memorandum, defer enforcement (i.e. removal) for certain aliens who were brought to the United States as children, and “accept applications to determine whether” they qualify for authorization to work in the United States.  Rhetoric and… Continue Reading

D.C. Circuit Vacates EPA Nonconformance Penalties Interim Final Rule: Violated Administrative Procedure Act

Posted in Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit today vacated and remanded the Environmental Protection Agency (EPA)’s Nonconformance Penalties for On-Highway Heavy Heavy-Duty Diesel Engines interim final rule (IFR) because EPA failed to satisfy any of the statutory criteria for “good cause” under the Administrative Procedure Act (APA).  Mack Trucks v…. Continue Reading

Monday Morning Regulatory Review – 6/11/12

Posted in Judicial Review & Remedies, Regulatory Process

Litigation: DOL FLSA Interpretation.  The United States District Court for the District of Columbia decided that a change in the Department of Labor (DOL)’s interpretation that the Fair Labor Standards Act (FLSA) exemption from overtime pay requirements for administrative personnel does not apply to a bank’s mortgage loan officers.  Mortgage Bankers Association v. Solis did… Continue Reading

Justice’s Long March: Updating Alcohol, Tobacco, Firearms, and Explosives Regulations

Posted in Regulatory Process

No regulation lasts forever – its viability is constantly challenged, and its environment constantly changes and is influenced by new statutes, judicial decisions, other regulations, and second looks.  The Department of Justice (DOJ) provides two good examples in Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regulations, but with issues.  The rules alter nonimmigrant alien… Continue Reading

ACUS Requests Proposals for Administrative Record and Social Media Studies

Posted in Judicial Review & Remedies, Regulatory Process

The Administrative Conference of the United States (ACUS) today released two requests for proposals (RFPs) for new studies and recommendations on: Administrative Record and Judicial Review of Informal Agency Proceedings, and Social Media in Rulemaking. ACUS – as the Executive Branch Advisory Committee / Think Tank on administrative law does most of its research and… Continue Reading

Administration’s Higher Education Act Rules Get Failing Grade from D.C. Circuit

Posted in Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit in a lengthy opinion today vacated or remanded significant parts of the Department of Education (DOE)’s signature Higher Education Act (HEA) regulations in Association of Private Sector Colleges and Universities v. Duncan.  The court of appeals reasoned that DOE: failed to provide an… Continue Reading

Regulations and Something Else 2: NLRB’s Murky “Social Media” Memo

Posted in Regulatory Process

The distinction between mandatory regulations and advisory guidance arises frequently, and some “guidance” from Federal agencies is more problematic than most.  A good example of problematic guidance is the National Labor Relations Board (NLRB) Acting General Counsel’s (AGC) hotly contested report concerning social media cases.  To summarize, the report provides examples of cases found by… Continue Reading

Monday Morning Regulatory Review – 6/4/12

Posted in Regulatory Process

Litigation: Public Trust Theory.  Judge Wilkins, of the United States District Court for the District of Columbia, threw out litigation alleging the “public trust” doctrine as a predicate to mandating federal rulemaking to restrict greenhouse gases in Alec L. v. Environmental Protection Agency (EPA).  The EPA, other agencies, and intervenors, including the National Association of… Continue Reading