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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 12/22/14: H-2B Visa Regulation Vacated; Immigration Executive Action Dicta; Agency Regulatory Plans & OMB Completions; EPA Coal Ash Rules; Uniform Grant Rules; Trucker Hours of Service; & ACUS Recommendations

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

The penultimate Monday of the year, when many federal workers are using rather than losing annual leave, is hardly the time to believe that the regulatory machine is slowing down.  Quite to the contrary, after Congress has left town, both the courts and the agencies remain at full throttle.  Judicial highlights of the past week include a district court order vacating Department of Labor (DOL) temporary non-agricultural worker visa regulations and dicta on the immigration executive action.  Agency highlights include the new agency regulatory plans and a spate of executive and interagency review completions – perhaps the preamble to a tsunami of regulations in the Administration’s final two years.  Among the first waves are new coal ash rules and the expected consolidation of grant-making regulations.  At the same time, implementation of the FY2015 budget device required suspension of some trucking hours of service limitations.  For the long-term minded, the Administrative Conference of the United States (ACUS) published new recommendations for portions of the administrative state. Continue Reading

Monday Morning Regulatory Review –12/15/14: FLSA Security Screenings; NLRB Elections Rule; Contractor Rehab Act Rule; Contractor Inversions & Minimum Wage Rules

Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type.  Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors.  The United States Supreme Court (SCOTUS) surprised many with a unanimous interpretation of the Fair Labor Standards Act (FLSA), the latest in a series of FLSA interpretations.  Of affirmative interest, the National Labor Relations Board (NLRB) today published a final union election rule that is likely to be challenged in court – for the second time.  On the government contractor front, the United States Court of Appeals for the District of Columbia Circuit ended a challenge to Department of Labor (DOL) regulations attempting to increase employment of persons with handicaps.  Finally, two sets of amendments to the Federal Acquisition Regulations (FAR) implement bars to contracts with tax-inverted companies and implement a minimum wage.

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Monday Morning Regulatory Review – 12/8/14: Immigration Executive Action; H2B Wage Rates; Regulations & Non-Discretionary Duties; and Waters of the United States

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

The immigration “executive action” became much clearer with the Department of Homeland Security (DHS) rolling out a variety of memoranda implementing the President (POTUS)’s priorities, but there was no, and many not have ever been, an “Executive Order.”  Nonetheless, the first legal challenge has been filed and the state of affairs deserves review.  On another immigration front, the United States Court of Appeals for the Third Circuit vacated a Department of Labor (DOL) regulation and guidance on temporary non-agricultural workers.  The Ninth Circuit, on the other hand, affirmed dismissal of a suit seeking to compel the Environmental Protection Agency (EPA) to promulgate regulations under a non-discretionary duty theory.  Speaking of the EPA, the comment period for one of its most contentious water regulations finally closed. Continue Reading

SCOTUS, Interpretative Rules & the Government’s Shifting Interpretation

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

The United States Supreme Court (SCOTUS) oral argument on Monday in Perez v. Mortgage Bankers Association underscored the complexity of the distinction between legislative rules and interpretative rules under the Administrative Procedure Act (APA) and the degree of deference that courts grant to agencies in resolving ambiguity under their delegated programmatic statutes.  Oral argument may not be a good indication of how SCOTUS will decide a case – Justices may test different theories for different reasons and reading tea leaves is speculative at best.  That said, however, the breadth and depth of the problems of existing precedent illustrated by the argument indicate that SCOTUS must eventually return to the fundamental issues raised by the potential collision of several lines of cases. Continue Reading

Monday Morning Regulatory Review – 12/1/14: Electric Generating Hazardous Emissions & Costs; Quintennial Ozone Standard; Calorie Counting; and Election Financing Disclosure

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

The very short Thanksgiving workweek was punctuated by a significant new United States Supreme Court (SCOTUS) grant of review of requirements for the Environmental Protection Agency (EPA) in regulating hazardous air pollutants – this time by electric utilities.  The day before Thanksgiving has traditionally been a day for rolling out controversial actions to reduce adverse publicity, and so the EPA released its proposed new national ambient air quality standards for ozone.  A little late for analyzing that Thanksgiving dinner, the Food and Drug Administration (FDA) released its new calorie labeling requirements for restaurants and vending machines.  And, in what may become another litigation saga, the United States District Court for the District of Columbia again vacated regulations promulgated by the Federal Election Commission (FEC) that reduced the amount of disclosure of corporate and union campaign support. Continue Reading

SCOTUS Argument Preview: Must Agencies Use Notice and Comment Rulemaking to Change Interpretation

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

Next Monday, the United States Supreme Court (SCOTUS) will hear argument in Perez v. Mortgage Bankers Association, No. 13-1041, asking whether a federal agency must engage in advance notice and public comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an established interpretive rule articulating the agency’s interpretation of an agency regulation.  Although the case presents a narrow set of factual circumstances over the Department of Labor (DOL) application of the Federal Labor Standards Act (FLSA), as amended, the implications for federal agency rulemaking and guidance of a SCOTUS decision are far reaching and could alter fundamentally the way that agencies regulate. Continue Reading

Monday Morning Regulatory Review – 11/24/14: POTUS Immigration Reform; Obamacare Subsidies Docket Clearing; Conflict Minerals Redux; Drones Predux; Renewable Fuel Standards Exdux; and Unified Agenda

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

President Obama (POTUS) finally moved last week to alter immigration policy by signing an executive order and issuing two memoranda, and amid all the political debate over the action, some legal questions need serious answers.  Also last week, several docket changes helped clear different regulatory issues to be ultimately decided by the United States Supreme Court (SCOTUS), particularly the efficacy of the Internal Revenue Service (IRS) regulations permitting subsidies under the federal health care exchanges when Obamacare (Patient Protection and Affordable Care Act or PPACA) appears to permit subsidies to the insured under State health care exchanges, and the scope of authority to compel disclosure by regulation (i.e. forced speech) under the First Amendment to the United States Constitution.  Although agencies continued to issue proposed and final rules, of interest last week the National Traffic Safety Board (NTSB) bolstered the Federal Aviation Administration (FAA)’s view of its legal authority to regulate “drones” as aircraft.  The Environmental Protection Agency (EPA) admitted that it would further delay the 2014 Renewable Fuel Standards (RFS) and the Office of Management and Budget (OMB) released the Fall 2014 Unified Agenda.

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Monday Morning Regulatory Review – 11/17/14: Obamacare Subsidies Docket; Obamacare 2nd Contraceptives Accommodation & SCOTUS Criminal / Administrative Deference Invitation

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

Last week focused on appellate practice, notably cases related to but not necessarily before, the United States Supreme Court (SCOTUS).  The United States Court of Appeals for the District of Columbia Circuit delayed further consideration of the issue of whether the Internal Revenue Service (IRS) could interpret the Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies provisions for “State” exchanges to include the federal exchanges run by the Department of Health and Human Services (HHS) while SCOTUS considers the issue.  The D.C. Circuit also turned aside a challenge to the second edition of Obamacare regulations accommodating religious objections to the contraceptive mandate in light of previous SCOTUS decisions.  Finally, a growing issue of deference in the relationship between administrative law and criminal law caught the attention of two Justices, leading to an invitation.

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Monday Morning Regulatory Review – 11/10/14: SCOTUS to Review Obamacare Subsidy Rule; Final Rule Statute of Limitations; Gainful Employment Metrics Litigation; Incorporation by Reference; and WOTUS Comments

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

Last week in regulations was entirely expected – it was all just a matter of time.  The United States Supreme Court (SCOTUS) agreed that it will decide this Term whether the Internal Revenue Service (IRS) may, by regulation, extend Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies to participants in federally-operated health care exchanges.  One step lower in the judicial pyramid, the United States Court of Appeals for the District of Columbia Circuit reversed a district court dismissal of a regulatory challenge on statute of limitation grounds.  And still one more step lower on the judicial pyramid, suit was filed in that district court challenging, again, the Administration’s latest attempt to regulate for-profit colleges and universities.

For all of the agencies, the Office of the Federal Register (OFR) published its revision of incorporating privately developed standards as federal regulations.  One chapter in the contentious issue of the definition of “Waters of the United States” will come to an end this week, but that means that a great deal of quieter work begins in the agencies. Continue Reading

HUD Housing Disparate Impact Rules Vacated – How an APA Case Could Clarify Complicated Private Litigation

Posted in Agency Authority, Judicial Review & Remedies

The United States District Court for the District of Columbia vacated the Department of Housing and Urban Development (HUD) 2013 rules (ostensibly) under the Fair Housing Act (FHA) establishing disparate-impact liability in a case revolving on homeowners’ insurance coverage policies.  Plaintiffs in American Insurance Association v. Department of Housing and Urban Development claimed that HUD violated the Administrative Procedure Act (APA) by exceeding its statutory authority when it expanded the scope of the FHA to recognize not only disparate-treatment claims (i.e. intentional discrimination) but also disparate-impact claims (i.e. facially neutral practices with discriminatory effects).  The district court granted plaintiffs’ motion for summary judgment, but the Administration is certain to appeal the ruling, setting the stage for a significant appellate argument over agency authority under the FHA.  This case presents a needed forum to clarify the scope of the FHA (and HUD’s authority under the FHA) with far fewer obstacles than the long and torturous history of private disparate-impact litigation. Continue Reading