- Department of Labor (DOL) extended the effective date of the H-2B Wage Methodology rule given another appropriation rider;
- Department of Homeland Security (DHS) continues to lag behind promulgating a court ordered airport passenger screening rule;
- Congress nudged the Office of Management and Budget (OMB) to comply with the law – in this case the Regulatory Flexibility Act (RFA); and
- Environmental Protection Agency (EPA) finally set biomass fuel volumes requirements for 2013; and
- Supreme Court of the United States returns to the bench.
Wage Methodology: DOL sent to the Office of Management and Budget (OMB) and OMB completed review the next day “consistent with change” another extension of the effective date of the Wage Methodology for the Temporary Nonagricultural Employment H-2B Program. The extension will publish in the Federal Register tomorrow, Oct. 2, 2012.
TSA Passenger Screening: The United States Court of Appeals for the District of Columbia Circuit, in an order that most of the media missed, last week denied a follow up writ of mandamus to compel the rulemaking the court ordered in July 2011 in Electronic Privacy Information Center v. Department of Homeland Security. EPIC found that the Transportation Security Administration (TSA) failed to complete a rulemaking for passenger screening at airports and ordered that TSA complete the rulemaking. The court declined to issue a writ “in light of the Government’s representation that ‘the process of finalizing the [TSA passenger screening] AIT Rulemaking documents so that the NPRM may be published is expected to be complete by or before the end of February 2013.’” The proposed rule, under development for 15 months and currently pending review in the Department of Homeland Security (DHS), has yet to be submitted to OMB.
♦A February 2013 proposed rule publication might still be optimistic because the issue poses substantial policy and legal issues. Economic impact will be quite daunting from a baseline of a current operation that a court has found to be a violation of law. The proposed rule must still undergo a 60-day public comment period, with probably thousands of comments, and a second round of review by TSA, DHS, and OMB before it can be published as a final rule and become effective. Do not expect a final rule for at least another year (being optimistic). If this delay is unconscionable, consider the alternatives – no screening or bad analysis; yet the court must enforce and agencies abide by the law.
Unified Agenda? Congressional and public pressure on OMB to complete the Spring (April?) 2012 Unified Agenda ratcheted up ever so slightly. Senator Rob Portman, as previously reported, and now the House Committee on Education and the Workforce (as reported by the Center for Regulatory Effectiveness) have written to OMB Acting Director Zients questioning OMB compliance with the requirements of the Regulatory Flexibility Act (RFA). Previous requests have been met with ‘thank you’ notes. The Free Enterprise Institute chimes in as well.
♦It is now October, and the “Fall” 2012 UA is due. Is this a windmill or wind turbine, or is the Administration just ignoring the law and its own management directives?
EPA Biomass Volume: EPA published biomass final volume rule: Under the Clean Air Act, EPA published its Regulation of Fuels and Fuel Additives: 2013 Biomass-Based Diesel Renewable Fuel Volume determination. The final rule sets the required volume of biomass-based diesel to be used in setting annual percentage standards under the renewable fuel standard program for years after 2012 – the same as proposed in July 2011 – after extensive comments. EPA previously bifurcated volumes from percentages, leaving many questions.
Supreme Court: The Court begins its 2012 Term today with several administrative law issues, and possible more coming, that will gain attention here, if nowhere else. A preview is planned.