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

Monday Morning Regulatory Review – 4/8/13

Posted in Judicial Review & Remedies, Regulatory Process

Follow-up on previous events of interest is the focus of this morning’s review.  The Environmental Protection Agency (EPA) has published its intentions on comments and hearings on new motor vehicle emission and fuel standards proposed rule, but has not published the proposed rule.  Both the Department of Labor (DOL) and the Department of Homeland Security (DHS) have shut down their temporary non-agricultural workers (H-2B) programs because of a district court injunction, but have said nothing about a much larger court of appeals loss.  And one more preliminary injunction was added to the exceptions from the Department of Health and Human Services (HHS) regulations requiring employers to provide preventive contraceptive services.  Little significant activity occurred in the Office of Management and Budget (OMB)’s docket.

EPA Tier 3:  EPA published a notice this morning announcing that two public hearings will be held and public comments will be due on June 13, 2013, on its yet-to-published Control of Air Pollution from Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards proposed rule.  As the notice points out, the typescript of the proposed rule has been available from EPA since March 29, 2013.  The notice is explicit that the public comment period will end on Sunday, June 13, 2013 – not a traditional closing date and not a standard date that is calculated from the date of publication.  The notice does not signal when the proposed rule will be published in the Federal Register and the proposed rule has not been filed for public inspection by the Federal Register.  The most that can be discerned from this state of affairs is that the proposed rule could be filed for public inspection later today and published tomorrow at the earliest – or it could be delayed much longer given its size and possible workload issues.  While the typescript may be available, EPA has not yet given public “notice” of its proposal.

H-2B Program Shutdown:  On April 2, 2013, DHS, U.S. Citizenship and Immigration Services (USCIS) advised stakeholders that it is “temporarily suspending adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in [CATA].  USCIS suspended also premium processing of H-2B petitions until further notice and that pending premium processing service fees will be refunded.  The advisory was based on CATA, but came a day after the United States Court of Appeals for the Eleventh Circuit found that DOL had no authority to issue regulations for the H-2B program, the predicate for USCIS processing of visa applications, in Bayou Lawn & Landscape Services.  No indication yet of regulatory movement by DOL or DHS or on the Department of Justice (DOJ)’s intentions regarding the 11th Circuit defeat.

Contraceptives Injunction:  In reconsidering a previous denial, a United States Court of Appeals for the District of Columbia Circuit panel on March 29 granted a preliminary injunction pending appeal against enforcement of the Patient Protection and Affordable Care Act (PPACA) regulations requiring free preventive birth control services to women against a for-profit food company (Gilardi. v. United States Department of Health and Human Services, D.C. Cir. No. 13-5069).  The court ordered that the expedited briefing schedule remain in effect, setting oral argument for September with the government’s appeal Tyndale House Publishers, Inc. v. Sebelius, No. 13-5018.  By one count, this is the 17th preliminary injunction granted while the courts resolve the litigation.