Regulatory Refresher: Updates and Trends in Federal Rulemaking

This virtual four-hour half-day seminar is a refresher on the rulemaking process, focusing on the key elements of administrative law. Participants will gain insights into the fundamental concepts of rulemaking, explore current trends and updates in agency rulemaking, and understand the impact of relevant Executive Orders and Office of Management and Budget (OMB) guidance on rulemaking procedures.

Topics covered in this refresher workshop include:

• A Recap of the Rulemaking Process Under the Administrative Procedures Act (APA). Topics covered include key definitions and provisions of the APA, an overview of formal, hybrid, informal, and negotiated rulemaking, a discussion of non-legislative rules and other exceptions to the standard rulemaking requirements, the use of direct final and interim final rules, and the standard notice-and-comment procedure under informal rulemaking.
• Regulatory Flexibility Act (RFA): Recap and Refresher. Topics covered include a big-picture overview of RFA requirements, the semiannual Regulatory Flexibility Agenda, the application of the RFA by type of rule, the RFA process in rulemaking, the initial and final regulatory flexibility analysis, and judicial review of agency RFA actions.
• Paperwork Reduction Act (PRA): Recap and Refresher. Topics covered include a big-picture overview of PRA requirements, the definition of a “collection of information” for PRA purposes, the OMB’s five-step process for applying the PRA to agency rulemaking, application of the PRA to proposed rules, interim final rules, and direct final rules, key PRA timeframes, and judicial review of agency PRA actions.
• Key Executive Orders Impacting Rulemaking: Recap and Refresher. Topics covered include the big-picture requirements of Executive Orders 12866, 13563, and 14094, the “costs and benefits” analysis required under the EOs, the requirement for an annual regulatory plan, the requirements for entries to the Unified Regulatory Agenda, the definition of a “significant regulatory action,” and judicial review concerning matters falling under the EOs.
• The Unfunded Mandates Reform ACT (UMRA): Recap and Refresher. Topics covered include a big-picture overview of UMRA requirements, the definitions of “significant regulatory action” and “federal mandate” under the UMRA, the required contents of a UMRA written statement, and judicial review of agency actions related to the UMRA.
• Judicial and Congressional Review of Agency APA Rulemaking: Recap and Refresher. Topics covered include the permitted reasons for court review of APA actions, a discussion of the “arbitrary and capricious” standard, the recent Loper Bright Supreme Court decision, eliminating so-called “Chevron deference” to agency rulemaking judgments, forms of agency deference remaining under separate Supreme Court precedent, and an overview of the Congressional Review Act.
• Updates on Recent and/or Pending Legal Changes Impacting Federal Agency Rulemaking. This section of the course will cover, as appropriate, recent lower court decisions applying Loper Bright, efforts in the House of Representatives to adopt a package of changes to certain rulemaking statutes, and an overview of how the results of the 2024 election may impact rulemaking in the next administration.