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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 5/23/16: Clean Power En Banc; FLSA Overtime & Exemptions; Food Labeling; E-Cigarettes Baggage & Unified Agenda

Posted in Executive - OMB Review, Judicial Process, Regulatory Process

dawn over the capitol aocMore surprises after Spokeo and Zubik leavened last week’s regulatory practice, including an order by the United States Court of Appeals for the District of Columbia Circuit to hold en banc oral argument on the many challenges to the Administration’s environmental signature Clean Power Plan.  Major economically significant final rules to hit the street last week include Department of Labor (DOL)’s revision of the minimum salary for overtime exemption and the Department of Health and Human Services (HHS) Food and Drug Administration (FDA)’s nutrition labeling rules.  The Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) final rule on baggage for e-cigarettes joins other related rules.  The Office of Management and Budget (OMB) released the penultimate Unified Agenda of Regulatory and Deregulatory Actions for this Administration, setting expectations for this Administration’s final deluge of regulations. Continue Reading

SCOTUS Remands Contraceptives Regulation Cases to Uncertain Future

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

USSC SealThe United States Supreme Court (SCOTUS) on Monday remanded to the lower courts its docket of cases raising the question of whether the Department of Health and Human Services (HHS) sufficiently accommodated religiously affiliated non-profits in its exception from the contraceptives mandate.  The SCOTUS orders in Zubik v. Burwell and its dozen fellow travelers make clear only one thing – resolution of the question presented is unlikely in the near future, if at all, unless the issue returns to SCOTUS or HHS amends its regulations, or both. Continue Reading

SCOTUS Warns Concrete Injury Needed to Enforce Statutory Rights

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

USSC SealThe United States Supreme Court (SCOTUS) today returned the critical case of Spokeo, Inc. v. Robins to the United States Court of Appeals for the Ninth Circuit to decide whether plaintiff Robins had established a concrete injury.  While Spokeo resonates deeply in the class action milieu, but it serves also as a warning that Article III limits Congress in creating statutory injuries for private enforcement of statutes, or to compel, challenge, or enforce implementing regulations.  Some statutes already enacted may be at risk. Continue Reading

Monday Morning Regulatory Review – 5/16/16: Deeming Rule & Litigation; Safety and Health Electronic Recordkeeping; Reconstructed or Modified Methane; Transgender Accommodations Guidance; & Conflicting Disability Compliance

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Process, Regulatory Flexibility & Small Business, Regulatory Process

dawn over the capitol aocHighlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions.  The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued.  A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive enforcement proceedings.  Methane capture was the subject of a new rule, and that rule must also be challenged directly.  A highly controversial guidance from two agencies is likely to be litigated, but in defense to a funding cut off.  And a coming regulation under the Americans with Disability Act (ADA) may alleviate potential conflicts with health care regulations. Continue Reading

Monday Morning Regulatory Review – 5/9/16: Consumer Class Non-Arbitration; Citizenship and Immigration Fees, Mental Competency for Firearms & Health COOP Exceptionalism

Posted in Agency Authority, Regulatory Process

dawn over the capitol aocFour highlights from last week’s regulatory practice include unsurprisingly swings in money issues and engagement in one of the most emotional topics for any regulatory.  The Consumer Financial Protection Bureau (CFPB) took steps to rein in arbitration clauses in consumer financial services contracts.  The Department of Homeland Security (DHS) proposed substantial increases in citizenship and immigration services fees (and the Department of State (DOS) will shortly proposed to adjust consular services fees).  Third, the Federal Register today includes a potentially most contentions proposed rule – the intersection between mental health and the right to bear arms.  Finally, among the ongoing host of Obamacare regulations, the Department of Health and Human Services (HHS) stretches the good cause exception to advance notice and an opportunity for public comment. Continue Reading

Monday Morning Regulatory Review – 5/2/16: Amtrak’s Regulatory Derailment; Blowout Prevention; Dodd-Frank Long Cleanup; State and Local Internet Nondiscrimination & Reginfo Missing Again

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

dawn over the capitol aocHighlights in regulatory practice last week included an arcane railroad timetable management train wreck may have complicated the authority of a number of different government-related organizations.  The Department of the Interior (DOI) finally published its major response to the Deepwater Horizon, but with risks.  Less risky, though not with élan or elegance, the Consumer Financial Protection Bureau (CFPB) adopted without change 14 interim final rules from its regulatory inception.  The Department of Justice (DOJ) sought to avoid or reduce risk by downsizing a potentially problematic proposed rule to a pre-rule notice.  And that may be the last we will see of Office of Management and Budget (OMB) executive and interagency review until OMB corrects its own docket problems. Continue Reading

Monday Morning Regulatory Review – 4/25/16: Medicare Reimbursements; Medical Facility Fire Safety; Internet Neutrality Privacy; WOTUS on the Ohio River & Drone Review

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

dawn over the capitol aocThis week’s highlights in regulatory practice seem to focus on periodic regulations from the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS).  CMS last week submitted an annual batch of Medicare financing regulations for publication this week, with at least one hidden response to a court.  Not far behind, the Office of Management and Budget (OMB) completed interagency and executive review of a CMS rule that governs medical facility safety.  The Federal Communications Commission (FCC) proposed privacy rules for internet providers, while on small matters, a court of appeals declined to rehear en banc a splintered jurisdictional decision on the major Waters of the United States (WOTUS) rule.  Up soon will be a final drone rule with high expectations and high risks. Continue Reading

Monday Morning Regulatory Review – 4/18/16: Immigration Injury Costs & Regulation; FLSA Exemption Definition; Contraceptive Accommodation Remedies; Post Hoc Appropriate and Necessary Notice; Respirable Silica Consolidated; CFPB Appointment & Ratification; and Petitions, Delay & Funding Bars

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

dawn over the capitol aocSpringtime means the United States Supreme Court (SCOTUS) will be busy and they are not alone.  SCOTUS will hear argument in immigration policy and Fair Labor Standards Act (FLSA) regulatory cases this week, and may consider responses to SCOTUS’ remedies question in the conflict between a regulatory contraceptive mandate and statutory religious rights.  Other highlights include a belated Environmental Protection Agency (EPA) response to a statutory mandate; the consolidation of several petitions for review of the Occupational Safety and Health Administration (OSHA) respirable crystalline silica rule; judicial avoidance of authority issues in a Consumer Financial Protection Bureau (CFPB)’s enforcement action; and a court order directing the Securities and Exchange Commission (SEC) to respond to a mandamus petition. Continue Reading

Monday Morning Regulatory Review – 4/11/16: Corporate Inversions Ruled Out; Untrusted Fiduciary Rule; Sanitary Transport; Silica Suits & Agency Authority Constitutional Challenge

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

dawn over the capitol aocThe Administration fully engaged in institutionalizing its policies through promulgated rules with the Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Food and Drug Administration (FDA) all publishing economically significant final rules this week.  Petitions for review challenged the Occupational Safety and Health Administration (OSHA)’s crystalline silica rule as expected.  In a not expected event, a court ordered counsel to prepare to argue remedies, indicating the court has a serious concern that the Consumer Financial Protection Bureau (CFPB) lacks constitutional authority. Continue Reading

Monday Morning Regulatory Review – 4/4/16: SCOTUS Seeks Contraceptive Alternatives; Religious Discrimination Regulations; Persuader Suits & Retirement Fiduciary Duties Debut

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocThe United States Supreme Court (SCOTUS) rarely orders post-argument briefing, particularly on a discrete but lopsided question, but it did so last week on an issue of agency compliance with specific statutory freedom of religion requirements.  Several agencies, also last week, adopted “regulations” that further express grant administration policy for religiously affiliated non-profits.  Of the totally expected, various groups filed at least three challenges to the Department of Labor (DOL)’s recent “persuader” rule.  Looking forward, the word is that DOL will release another major rule this week:  fiduciary duties. Continue Reading