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

Monthly Archives: August 2012

Judicial Review & EO 12866 Regulatory Impact Analysis

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

A common but little understood Administrative Procedure Act (APA) issue arose from last Monday’s Regulatory Review: How does an aggrieved business acquire APA judicial review of a rulemaking under Executive Order 12886 – the executive and inter-agency review performed by the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs… Continue Reading

Monday Morning Regulatory Review – 8/27/12

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

The Department of Health and Human Services (HHS) dominated last week.  The United States Court of Appeals for the District of Columbia Circuit affirmed the District Court in two cases of note:  upholding HHS’s revised embryonic stem cell research rules and striking down HHS’s tobacco packaging rules – which will be the subjects of future… Continue Reading

OMB Missing in Action: Unified Agenda and Presidential Transition Planning

Posted in Regulatory Process

Amid every Presidential campaign, some regulatory actions become the grist of the political mill, while others are laid to rest peacefully.  The regulatory process – as a process – transcends the politics and some institutional “continuity of operations / continuity of government” steps need to be taken.  So far, however, the Office of Management and… Continue Reading

ABA Accepting Nominations for Blawg 100

Posted in Regulatory Process

This is a personal note, not a substantive post:  I hope my colleagues enjoy this blog (or blawg) and learn from it; I enjoy writing it.  I try to focus on correctable errors in rulemaking and help improve the process.  If this makes sense to you, please consider nominating this blog for the ABA Journal… Continue Reading

Conflicting Decisions on Delegated Rulemaking Authority: the Uncertain Fate of H-2B Regulations

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies

A new decision in Louisiana Forestry Assn. v. Solis upheld the Department of Labor (DOL) Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, adding another piece to a confusing jigsaw puzzle over the efficacy of the H-2B regulations.  District Court decisions upholding regulations normally do not garner major attention by this blog because there… Continue Reading

D.C. Circuit Vacates EPA “Cross-State” Air Pollution Rule: Exceeds Statutory Authority

Posted in Agency Authority, Judicial Review & Remedies

In a major setback to the Obama Administration, the United States Court of Appeals for the District of Columbia Circuit today vacated the Environmental Protection Agency (EPA)’s “Cross-State” or “Transport” Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals final rule because EPA yet again exceeded its statutory… Continue Reading

Monday Morning Regulatory Review – 8/20/12

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

It may be vacation season, but this week agencies are steadily proposing and finalizing regulations – mortgages, settlements, electronic transfers, swaps, HAZMAT, Deepwater Horizon, and small business classification: The Bureau of Consumer Finance Protection (CFPB) proposed two mortgage rules and finalized its EFT rule, while the Commodities Futures Trading Commission (CFTC) and the Securities and… Continue Reading

Testing Paperwork Reduction Act Burdens: A Request for Public Information

Posted in Regulatory Process

Cass Sunstein, Administrator of the Office of Management and Budget (OMB)’s Office of Information and Regulatory Affairs (OIRA) instructed the executive departments and independent regulatory agencies on August 9, 2012, to test their information collection forms under the Paperwork Reduction Act before using them.  The instruction addresses a long-standing complaint that the burdens calculated by… Continue Reading

Monday Morning Regulatory Review – 8/13/12

Posted in Judicial Review & Remedies, Regulatory Process

Congress is away until September 10, highlighting the summer vacation season, but the Executive and Judicial Branches plug away (albeit at a more relaxed pace). EPA “adjacent” is physical, not functional:  The United States Court of Appeals for the Sixth Circuit rejected an Environmental Protection Agency (EPA) conclusion that facilities satisfy the regulatory requirement of… Continue Reading

EPA Exceeds Authority in Clean Water Act “Guidance” for Surface Mining

Posted in Agency Authority, Judicial Review & Remedies

The United States District Court for the District of Columbia struck down the Environmental Protection Agency (EPA) Final Guidance Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order on July 31st.  The complicated decision in National Mining Association v. Jackson… Continue Reading

Monday Morning Regulatory Review – 8/6/12

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

Last week had a little of everything.  The Environmental Protection Agency (EPA) noticed a reconsideration of some issues pending judicial review and backed out regulations determined to violate the Administrative Procedure Act (APA).  The United States Court of Appeals for the Ninth Circuit found that Congress left a discrete authority in the Department of Justice… Continue Reading

Opinion: From EEOB to Langdell: A Change for Cass Sunstein

Posted in Executive - OMB Review

The White House and Harvard Law School announced the departure of Cass Sunstein from his role as Administrator of the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) and his new position running a new law school Program on Behavioral Economics and Public Policy.  Numerous press reports focused on dissatisfaction… Continue Reading