Wednesday, January 21, 2009

Obama Administration Orders Reconsideration/Suspension of New Rules

Yesterday, the new White House Chief of Staff Rahm Emanuel issued a memo to government agencies (e.g., the USPTO) that "no proposed or final regulation should be sent to the Office
of the Federal Register (the "OFR") for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009."

With regard to unpublished rules, the memo order agencies to "withdraw [the unpublished rules] so that they can be reviewed and approved by a department or agency head."

Also, for published rules that have not taken effect, the memo orders agencies to "[c]onsider extending for 60 days the effective date of regulations . . . for the purpose of reviewing questions of law and policy raised by those regulations. Where such an extension is made for this purpose, [the agency] should immediately reopen the notice-and-comment period for 30 days to allow interested parties to provide comments about issues of law and policy raised by those rules."

Thus, for the Continuation Rules, even if the CAFC reverses the district court in Tafas v. Dudas, the USPTO would not be able to implement final rulemaking without submitting the rules to the Under Secretary of Commerce (appointed by Obama) for consideration and approval.

Download the memo here (link)

Hat tip: Hal Wegner

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