Regulatory Transactions

EPA proposed a rule (RIN: 2080-AAI4) under which the agency would “require that the underlying data for all scientific studies used by the agency to formulate air and water regulations be publicly available.” The EPA Administrator was quoted as saying “The science that we use is going to be transparent. It’s going to be reproducible.”

If enacted and enforced, EPA’s rule would (1) be consistent with the US Data Access and Data Quality statutes and (2) match similar standards for transparency in environmental science that have been established by the UK’s Natural Environment Research Council (NERC). NERC’s Data Policy explains that “The environmental data produced by the activities funded by NERC are considered a public good and they will be made openly available for others to use.” Moreover, NERC’s Data Policy emphasizes the centrality of the government maintaining open access to data it funds so that others can challenge it:

From: HME News

WASHINGTON – Office of Management and Budget Director Mick Mulvaney said this week that the agency is working to release an interim final rule that would provide relief from Medicare’s competitive bidding program, but he gave no timeline for when that might happen.

“I will say this: I have probably received more calls about this than any other rule put together,” he said during a hearing for the fiscal year 2019 budget on Wednesday. “Since we’re aware of the urgency to members of both parties, I’m interested in getting it out as quickly as we possibly can. That being said, it’s a fairly complex rule, and it’s absolutely critical that we get it right because of the scope of this rule, so I won’t be able to comment.”

Editor’s Note: Regulatory agencies have long been on notice of their duty to adhere to the Congressional Review Act. EPA’s failure to comply with the CRA was an issue in Tozzi v. EPA. Moreover, in a 2010 letter, CRE advised President of the Senate Biden and Speaker Pelosi to inform EPA that a major regulatory program could not be implemented because the agency had not informed Congress of it as required by the CRA. See “Experts Disagree on Impact of Agency Failure To Notify on Rules; EPA May Face Challenge,” (BNA Daily Report for Executives). 

From: Politico

By ZACHARY WARMBRODT

From: Lexology

Rebecca D. Barho and Stephanie N. Clark | Nossaman LLP

On Monday, April 2, 2018, multiple news outlets reported that the U.S. Fish and Wildlife Service (“FWS”) submitted a proposal to change its existing policy regarding the prohibition on “take” for species listed as threatened under the Endangered Species Act (“ESA”). The proposed policy would mark a change in FWS rules and policy providing a blanket prohibition on “take” of most threatened species under FWS jurisdiction. Under the proposed rule blanket application of the take prohibition would not apply to newly-listed threatened species, although those species listed prior to the effective date of a final rule would retain protection under the blanket prohibition on take of threatened species.

From: Space News

by Jeff Foust

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One reason for the decreased review time is the establishment of a memorandum of understanding last year involving the Departments of Commerce, State, Defense and Interior, and the Office of the Director of National Intelligence, establishing procedures for interagency reviews for commercial remote sensing license applications. That agreement has been invoked 14 times in the last year to enable the processing of license applications “in a timely manner,” she said.

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SILVER SPRING, Md. — The small office that currently handles licensing of commercial remote sensing systems says it’s made major progress in processing license applications, even as the government moves ahead with broader reforms.