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Clarification Provided Concerning Regulatory Hold On Federal Agencies

Wednesday, January 21, 2009

(American Meat Institute)

A memorandum from the Office of Management and Budget has been disseminated to federal agencies clarifying a January 20 memorandum issued by White House Chief of Staff Rahm Emanuel placing a “hold” on certain aspects of federal rulemaking until further review can be completed.

Key points of the January 20 memo include:

No proposed or final rules are to be sent to the Federal Register until they have been reviewed and approved by an agency or department head appointed or designated by President Obama.  (There are certain exceptions for Defense Department matters).

Proposed or final rules at the Federal Register are to be withdrawn until they can be approved or reviewed as described above.

The memorandum directs agencies and departments to consider extending for 60 days the effective date of regulations that have been published but have not yet taken effect “for purposes of reviewing questions of law and policy raised by those regulations.” These directions do not apply to regulations subject to statutory or judicial deadlines. 

The term regulation in the memorandum adopts the language found in Executive Order 12866,  section 3(e): “Regulatory action means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”

In a memorandum issued today, OMB provided additional guidance to agencies as they consider whether to engage in an extensive review of rules that have been published but have not gone into effect.  Specifically, for such rules, agencies are instructed to consider: “(1) whether the rulemaking process was procedurally adequate; (2) whether the rule reflected proper consideration of all relevant facts; (3) whether the rule reflected due consideration of the agency’s statutory or other legal obligations; (4) whether the rule is based on a reasonable judgment about the legally relevant policy considerations; (5) whether the rulemaking process was open and transparent; (6) whether objections to the rule were adequately considered, including whether interested parties had fair opportunities to present contrary facts and arguments; (7) whether interested parties had the benefit of access to the facts, data, or other analyses on which the agency relied; and (8) whether the final rule found adequate support in the rulemaking record.”  Rules that satisfy these parameters need no further review.  If an agency determines that it wishes to extend the effective, the agency is instructed to reopen the comment period  for 30 days to consider additional information. 

For more information, click on the following links: http://www.meatinstitute.org/ht/a/GetDocumentAction/i/45546,


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