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

Monday Morning Regulatory Review – 3/11/13

Posted in Agency Authority, Regulatory Process

Forgive the absence – surprisingly little to report over the past two weeks.  The Office of Management and Budget maintained a relatively stable docket with no truly significant rules being submitted or completed.  One might attribute this lull to sequestration – fears and realities – but it remains a question.  Congress may be tied up with the budget, but what is even more surprising is the dearth of judicial decisions that warrant a post.  A statute of limitations case draws attention because a single agency started a position that results in limits on the entire government.  Several items after the jump.

EPA NESHAP Steam Generators:  The Environmental Protection Agency (EPA) submitted its National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units final rule to OMB for review on March 5, 2013.  EPA lists the rule as economically non-significant, but nearly all EPA rules will have some policy or legal significance warranting OMB review.  Whether this rule moves quickly may depend on the Administration’s priority  and the level of risk the Administration’s risk evaluation of the new EPA Administrator’s nominated.

Statute of Limitation – Civil Penalties:  The United States Supreme Court (SCOTUS) unanimously limited the government’s authority to seek civil penalties for fraud to five years from when the fraud was committed, not five years from when fraud was or should have been discovered, in a case originally commenced by the Securities and Exchange Commission (SEC): Gabelli v. SEC.  This was not a particularly difficult case – but SCOTUS was examining the default statute of limitations in 28 U.S.C. § 2462.  The decision is therefore important because of its breadth of application to any case in which the underlying statute does not provide a separate limitations period.  The Solicitor General ultimately defended the SEC in the Supreme Court, perhaps with little choice; whether the Department of Justice (DOJ) would have taken such an expansive position on behalf of the United States as an initial matter may have a different answer.

Hopefully more next week.