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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 3/23/15: White House Transparency Regulations; Federal Fleet Pollution; Federal Fracking; & H-2B Vacatur & Emergency Regulations

Posted in Agency Authority, Executive - OMB Review, Regulatory Process

dawn over the capitol aocPrioritizing last week’s interesting regulatory affairs proves a little difficult because the affairs are so diverse, so this post may seem random. The White House’s administrative side removed regulations in a Federal Register final rule, perhaps for the right reason, but perhaps in the wrong way. The President of the United States (POTUS) also issued an Executive Order directing his subordinates to reduce the environmental impact of the United States government vehicle fleet (and other things), while the Department of Energy (DOE) withdrew statutorily-required regulations on the same subject, events that require some further explanation. The Department of the Interior (DOI) released its long-awaited final rules on the practice of hydraulic fracturing in oil and gas wells on federal and (most) Indian lands. Finally, the Department of Justice (DOJ) won a temporary reprieve for the Department of Labor (DOL) on the vacatur of its H-2B regulations with the promise of an emergency rule. Continue Reading

Monday Morning Regulatory Review – 3/16/15: Functional Delegation Test; Open Internet Neutrality Rule Opened; Immigration Executive Action Litigation V

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocThree regulatory highlights for the past week do not appear to have any discernable connections. The United States Supreme Court (SCOTUS) disappointed (or maybe disowned) a cousin of the constitutional nondelegation doctrine by reversing and remanding a case limited to the regulatory power of a unique government corporation – Amtrak. The Federal Communications Commission (FCC) finally released its open common carrier internet rule, perhaps raising as many questions as it answers, and the countdown to another round of litigation begins. The Department of Justice (DOJ), on the other hand, answered the question of when it would press for judicial resolution of whether the Department of Homeland Security (DHS) immigration executive actions requires Administrative Procedure Act (APA) rulemaking, but seemed to leave the courts unconvinced that a crisis had been created by the district court’s preliminary injunction. Continue Reading

SCOTUS Rejects D.C. Circuit Notice & Comment Rulemaking Requirement for Changing Agency Interpretation

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

USSC SealThe United States Supreme Court (SCOTUS) held today, in Perez v. Mortgage Bankers Association, that an interpretative rule does not require advance notice and an opportunity for public comment under the Administrative Procedure Act (APA) no matter when the agency adopts the interpretation, unanimously reversing the contrary decision of the United States Court of Appeals for the District of Columbia Circuit. The decision ends nearly two decades of limitations on federal agencies in interpreting their programmatic statute and implementing regulations and opens the door to many reversals of prior administrative interpretations, even if relied upon by private parties now to their detriment. The decision leaves untouched, however, more complex problems for agency regulators and potential litigation over when a rule is interpretive or substantive, and whether courts should defer to those agency interpretations. Continue Reading

Monday Morning Regulatory Review – 3/9/15: H-2B Regulations Vacated – Again; Immigration Executive Action Litigation IV; and Aircraft Engines & Greenhouse Gases

Posted in Agency Authority, Executive - OMB Review, Judicial Process, Judicial Review & Remedies

dawn over the capitol aocLast week’s highlights in regulatory practice were few and tread familiar ground, but have much meaning. The Department of Labor (DOL) suffered another loss in the jurisdictional kerfuffle over the non-agricultural workers visa program when a district court vacated its 2008 regulations, just as it had previously done with more recent regulations, and contrary to other court holdings. The authority for the Department of Homeland Security (DHS) executive actions favoring undocumented immigrants, on the other hand, took only a half-step forward despite pressure from Department of Justice (DOJ) for the court to stay its preliminary injunction. If the immigration labyrinth does not suit, the Office of Management and Budget (OMB) began one of the more complicated executive and interagency reviews of Environmental Protection Agency (EPA) proposals to regulate aircraft emissions. Continue Reading

Monday Morning Regulatory Review – 3/2/15: Open Utility Internet; Immigration Executive Action Litigation III; and Retirement Investment Fiduciaries

Posted in Agency Authority, Judicial Process, Regulatory Process

dawn over the capitol aocRegulations were a significant topic in the news last week, led by the Federal Communications Commission (FCC) decision to treat internet service providers as a common carrier and left the general public in the dark. Litigation over the Department of Homeland Security (DHS) memorandum on granting status to parents and children of aliens who otherwise would not have status in the United States proceeded only incrementally despite extensive press coverage. At the same time, a Department of Labor (DOL) regulatory revision of the definition of “fiduciary” for retirement investment purposes (but with a much greater impact) long in development took a step toward being proposed – again. Continue Reading

Monday Afternoon Regulatory Review – 2/23/15: Drone Release & Problems; Arctic Drilling; Immigration Executive Action Litigation II & IIA; and Agriculture High-Stepping Authority

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

dawn over the capitol aocThe most noteworthy highlight of this week in review is the Department of Transportation (DOT)’s Federal Aviation Administration (FAA) publication of the much anticipated proposed drone rule – which, now that it is available, may or may not have justified the anticipation. The Department of the Interior (DOI) will publish tomorrow a proposal to revise its arctic oil and gas drilling regulations. The Administration also responded to the preliminary injunction of some of the key features of its immigration policy – and may have more work ahead on related immigration policies. And a court of appeals faulted the Department of Agriculture (DOA) (not for the first time) in its regulation of one particular non-agricultural aspect of its regulatory portfolio – Tennessee walking horses. Continue Reading

Immigration Executive Action Preliminary Injunction – A Hold on Benefits and Costs for Now

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

The United States District Court for the Southern District of Texas preliminarily enjoined the United States, its agencies, officials, and employees from implementing all aspects of President Obama’s (or POTUS) executive action on immigration on the eve of implementation pending further order of the court or higher judicial authority. In essence, the district court found that the Department of Homeland Security (DHS) failed to comply with the requirements of the Administrative Procedure Act (APA) in promulgating a rule by memorandum that granted affirmative immigration benefits to the detriment of at least one plaintiff. The preliminary injunction will be the subject of substantial debate in the coming days and an appeal by the Department of Justice (DOJ). Continue Reading

Monday Morning Regulatory Review – 2/9/15: Net Neutrality Utility; Statutory Supplements & Foreign Religious Workers; and Regulatory Reform Redux

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Legislation, Regulatory Process

Interesting regulatory events of the past week come from all three branches of the United States Government.  From the independent Federal Communications Commission (FCC), the Chairman signaled his proposed way forward on the issue of “net neutrality” that could become a significant regulatory morass.  A district court vacated several provisions of immigration regulations in the issue-fraught realm of special immigrant religious workers, a decision that will surely be appealed.  And the House of Representatives reiterated its plans for revamping the regulatory process by passing to the Senate two more bills that the White House has signaled would be subject to veto. Continue Reading

Monday Morning Regulatory Review – 2/2/15: OMB Review Substance, Process, Docket & Issues

Posted in Regulatory Process

Last night, the Department of Transportation (DOT) Federal Aviation Administration (FAA) banned drones (and nearly all other flight) from within 30 nautical miles (34.5 miles) and under 18,000’ mean sea level of Super Bowl XLIX in a Notice to Airmen (NOTAM), while its proposed rule to regulate the use of drones – technically known as small unmanned aircraft systems (sUAS) – remained under review at the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA).  In light of OMB’s review and the substantial media coverage of drone issues, the Federal Regulations Advisor takes the opportunity to review OMB’s role in the regulatory process, some reasons why review may take an extended time, and the docket of regulatory efforts long pending at OMB – a process that will become increasingly important in the last two years of the Administration. Continue Reading

Monday Morning Regulatory Review – 1/26/15: Florescent Lights & Analytical Balance; NESHAP & Affirmative Defenses; and WOTUS Supporting Documents & Public Comments

Posted in Judicial Review & Remedies, Regulatory Process

Focus recently on the courts does not mean that the agencies have been silent, and while they have been relatively quiet, they continue to raise some interesting issues.  For example, the Department of Energy (DOE) today published the latest in a long series of energy efficiency rulemakings and one that will affect every consumer.  The Environmental Protection Agency (EPA) took two steps recently that raise interesting questions:  a rule to more broadly adopt a court opinion, which may require notice and comment rulemaking; and release of a synthesis that directly implicates a proposed rule in which the extended public comment period is closed, but which may need to be reopened. Continue Reading