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

Monday Morning Regulatory Review – 4/2/12: A New Feature

Posted in Executive - OMB Review, Judicial Review & Remedies, Legislation

This blog focuses on the large issues presented in Federal rulemaking.  Colleagues have suggested that I review interesting regulatory and administrative law events that, while significant, don’t warrant a separate post.  To accommodate that interest, the Federal Regulations Advisor offers this first Monday Morning Regulatory Review summarizing OMB completion of review and agency publication in the Federal Register of notable rules, legislative activity short of passage by the House or Senate, and significant administrative law litigation.  The content will vary based on events.  The prototype follows the jump (i.e. “read more”).

This Week:

Congress is out of town and court argument calendars are lighter, although OMB, the agencies, and the courts may try to clear the tables a bit before the Easter weekend.

The Supreme Court is expected to release orders and, perhaps, opinions at 10 this morning, before a two week recess.

The Federal Register should publish EPA’s Greenhouse Gas New Source Performance Standard for Electric Generating Units for New Sources (see below).

OMB should be completing review of a few rules, although review has been extended in three rules that were approaching Executive Order 12866’s nominal 90-day review timeframe.  I count 33 extended reviews, at present, of a total of 165 pending actions.

Last Week:


OMB completed review and the State Department published an interim final rule, Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.  The rule becomes effective April 13, 2012, with public comments due by May 29, 2012 (interestingly, some fees go down).  State argues for an exception to Administrative Procedure Act’s (APA) advance notice and public comment with this summary (and I think dubious) statement:

Delaying implementation of this rule would be contrary to the public interest because the fees in this rule fund consular services that are critical to national security, including screening visa applicants.  In addition, the Department will not be able to sustain the anticipated growth in consular overseas operations if these fees are not effective within 15 days of publication.

EPA Administrator Jackson signed and released (March 27, 2012), but the Federal Register has not yet published, a much anticipated Greenhouse Gas New Source Performance Standard for Electric Generating Units for New Sources proposed rule.  The rule would set carbon emission standards only for new coal-fired power generating plants – comments will be due 60 days after publication.  EPA argues that its proposed rule “will have no notable compliance costs.”

OMB completed review on March 28, 3012, and DHS published this morning, a proposed rule, Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives.  USCIS announced its intention to develop this rule in January and has moved the rule quickly.  Comments are due June 1, 2012.

Treasury & U.S. Customs and Border Protection published a proposed rule, Members of a Family for Purpose of Filing a CBP Family Declaration, to expand the definition of a family for customs declaration purposes, to accommodate non-traditional family units.  Comments are due May 29, 2012.


The House Judiciary Committee marked up and approved H.R. 3862, the “Sunshine for Regulatory Decrees and Settlements Act of 2012” with an amendment in the nature of a substitute, on March 27, 2012.  Committee Report to follow.


EPA was also chastised by the U.S. Court of Appeals for the Fifth Circuit in Luminant Generating Co., LLC, v. EPA.   EPA tried to disapprove certain Texas clean air regulations three years after the Clean Air Act deadline.  The Wall Street Journal opined that this victory for Texas illustrates EPA overreaching in seeking to transfer power from the states to the federal government, even if Congress intended otherwise.

Please let me know if this review is helpful.