Federal Agency Rulemaking

In light of recent announcements by the National Labor Relations Board about rulemaking initiatives, and favorable comments from Chairman John Ring on the issue, the time may be ripe for the filing and advancement of rulemaking petitions to the NLRB in order to bring more stability and predictability to NLRB law by codifying certain precedents and overturning others through rulemaking.
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Federal agencies need not go through the formal and drawn-out “notice-and-comment” process when altering an interpretation of a regulation. In a unanimous decision, the Supreme Court in Perez v. Mortgage Bankers Association stated that the Administrative Procedure Act (the “APA”) does not mandate notice-and-comment rulemaking for interpretive rules.
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