Law

FEDERAL

The best way to stay informed of federal regulations is to visit the centralized federal website that tracks agency rules and other agency actions. Furthermore, the scope of federal rulemaking dwarfs that at the state level, so only a few significant federal rules are tracked here.

In many ways, federal rulemaking is similar to Minnesota rulemaking, in procedure and types of rules. The federal government follows the federal Administrative Procedure Act and several other federal acts and statutory provisions. Federal rulemaking is also heavily influenced by Supreme Court decisions.

 

The main difference, however, is that no OAH-type entity exists on the federal level. And federal agencies may also issue interpretative rules, which help the public better understand the rule. In Minnesota, the Minnesota Department of Revenue is the only agency that can issue interpretative rules.

Because there is no OAH-type review at the federal level, federal rulemaking is overwhelmingly more litigious than at the state level, as notice-and-comment rulemaking is also known as "notice-and-sue rulemaking."

Select Current and Recent Federal Rules

Using the Congressional Review Act, Congress overturned three Trump-era rules from the Equal Employment Opportunity Commission, Environmental Protection Agency, and Treasury Department.

 

On June 30, 2021, President Biden signed into law the three congressional resolutions overturning the rules:

  1. Equal Employment Opportunity Commission: the rescinded rule would have revised the EEOC settlement process to provide employers with the factual and legal basis that the EEOC relied on to make a reasonable-cause finding of a discriminatory practice.

  2. Environmental Protection Agency: the rescinded rule, Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review, published on September 14, 2020, overturned Obama-era requirements on methane emissions under the Clean Air Act for the oil and natural gas sector.

  3. Treasury Department: the rescinded rule was from the Office of the Comptroller of the Currency. The rule, the National Banks and Federal Savings Associations as Lenders, published on October 30, 2020, required that to be considered a lender, a national bank or federal saving association must, as of the loan-origination date, (1) be named as the lender in the loan agreement, or (2) fund the loan.

July 2, 2021: A Trump-era EPA rule was struck down by the US Court of Appeals of DC. The rule lifted summertime restrictions on selling E15, a fuel blend containing 15% ethanol. Previously, the summertime restrictions helped reduce smog and pollutants regulated by the Clean Air Act. The court's analysis was simple, resting on the ordinary and unambiguous meaning of "contain." Because of how "contain" was used unambiguously in the statute (42 U.S.C. § 7545(h)(4)), the EPA's rule, resting on the EPA's erroneous interpretation of the statute, violated the statute's plain language; accordingly, the EPA did not have the statutory authority to lift the E15 summertime restrictions.

July 6, 2021: The Department of Homeland Security withdrew a Trump-era rule that would have added time limits to certain student visas. According to the department, more than 99% of commenters opposed the rule, which could have significantly affected both undergraduate and graduate students: F, J, and certain I nonimmigrants. 

July 9, 2021: President Biden issued a wide-ranging executive order that seeks to promote competition in various economic sectors and industries. The order also pushes federal agencies to develop rules on antitrust enforcement. Expect lots of new agency rules and court challenges from affected industries.

July 13, 2021: Joint federal rulemaking on surprise medical billing by the Treasury Department, Office of Personnel Management, the Employee Benefits Security Administration of the Department of Labor, and the Office of Consumer Information and Insurance Oversight of the Department of Health and Human Services. The Notice of Proposed Rulemaking is open for comments through September 13, 2021.