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

Monday Morning Regulatory Review – 10/29/12

Posted in Regulatory Process

Washington (with the Federal Government closed) braces for approaching storm Sandy – not regulatory, at least this week, but the regulatory tsunami appears more destined to occur than ever.  The Spring 2012 Unified Agenda now appears to have been an exercise in futility and wasted resources, as the Office of Information and Regulatory Affairs (OIRA) indicates that it is working on the Fall 2012 Unified Agenda and Regulatory Plan.  Notwithstanding the pre-election regulatory desert in the Executive Branch, some regulations trickle out, and independent regulatory commissions continue to churn out releases.  Notably, the CFPB may be taking on the regulation of law practice, the SEC adjusts clearinghouse requirements, DOS repeals marriage definitions, and Education implements loan forgiveness.

Unfiled Agenda (not a typo):  The House Committee on Education and the Workforce shed light on the lack of status for the Spring 2012 Unified Agenda in responding to a meeting with the Office of Management and Budget (OMB) OIRA acting Administrator:

Thank you for taking the time to discuss the status of the Spring 2012 Unified Agenda … on October 12, 2012.  It became clear during our conversation that rather than publishing the Spring Agenda, the Office of Information and Regulatory Affairs (OIRA) is working to publish the Fall 2012 Unified Agenda ….  OIRA’s handling of the Spring Agenda is unacceptable and unlawful.

The Committee chair clearly means “mishandling” or “not handling” of the 2012 Spring Agenda, but OMB appears to have embarked on a course of ignoring public reporting requirements if those requirements could be politically problematic.  “UA” now means “unfiled agenda.”

CFPB and Attorney Debt Collection:  The Consumer Finance Protection Bureau (CFPB) issued its final rules for “large” debt collectors – including attorneys – reports Alan S. Kaplinsky in the CFPB Monitor.

The rule does not discuss the Federal Trade Commission (FTC)’s previous failed attempt to regulate the practice of law and this rule may suffer a similar fate.

SEC Clearing:  The Securities and Exchange Commission (SEC) adopted new minimum requirements for registered clearing agencies to maintain effective risk management procedures and controls as well as meet statutory requirements on an ongoing basis.

DOS Obsolescence:   The Department of State (DOS) eliminated as “obsolete” the definition of marriage in its regulations through a final rule based on “good cause” not to provide advance notice and an opportunity for public comment.

Immigration lawyers may debate whether the definition was “obsolete,” but if so, no quarrel will be found here with using the exception to notice and comment rulemaking.  At least DOS did not suggest that the rule change was not required to undergo public scrutiny because it affected foreign policy.

ED Perkins:  At least OMB completed review on one economically significant Department of Education (DOEd) final rule on October 22, 2012: Federal Perkins Loan Program, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program.  The rule ends Federal Family Education Loan Program loans as of July 1, 2010, and makes other changes to “improve the effectiveness and efficiency of the student loan programs, particularly with regard to the discharge of loans for persons with total and permanent disabilities.”  Indebtedness loss from the income contingent and income based repayment rules exceeded $1.2 billion in the proposed rule.