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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 6/27/16: Drone Regulations Finally Fly; Hydraulic Fracking Rule Drilled; First Persuader Decision Unpersuaded; Compost Guidance Composted & Civil Monetary Penalties Adjusted

Posted in Agency Authority, Judicial Process, Regulatory Process

dawn over the capitol aocWith the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice.  In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively vacated agency guidance that was inconsistent with extant agency regulations.  In broad policy implementation, many agencies are adjusting civil monetary penalties in a spate of interim final rules mandated by statute. Continue Reading

SCOTUS Affirms Injunction of Obama Administration Immigration Policy with Silence

Posted in Judicial Process, Regulatory Process

USSC SealThe United States Supreme Court (SCOTUS) in United States v. Texas today affirmed the United States Court of Appeals for the Firth Circuit decision by an equally divided Court (4 – 4):  the preliminary injunction continues to bar the Obama Administration’s deferred action and employment authorization program for aliens.  The Fifth Circuit decision will have no precedential value outside the Fifth Circuit, but the preliminary injunction was nationwide in scope and, therefore, the Obama Administration may not take action to implement its employment authorization program under its deferred action decision. Continue Reading

SCOTUS: Agency Must Explain Changed Position or Lose Chevron Deference

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

USSC SealIn a decision turning on black-letter law, the United States Supreme Court (SCOTUS) reiterated Administrative Procedure Act (APA) precedent that an agency must explain its change in position and remanded Encino Motorcars, LLC v. Navarro for further proceedings in the court below.  SCOTUS found that the Department of Labor (DOL) failed to adequately explain its 2011 regulations (reversing prior direction) and, therefore, those regulations were not entitled to Chevron deference. Continue Reading

Monday Morning Regulatory Review – 6/20/16: Net Neutrality Upheld; Student Loan De-Arbitration & Removing Affirmative Defenses

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocA court decision upholding the controversial net neutrality rule dominated regulatory practice last week but only for a dearth of other news.  Two proposed rules deserve attention:  another proposal to limit arbitration and class action waiver clauses and a proposal to remove affirmative defenses in certain environmental litigation. Continue Reading

Monday Morning Regulatory Review – 6/13/16: Records Inspection as Unreasonable Search; Union Election Rule Litigation Demise; Statutes or Regulation Compliance Discipline; Regulation-Sensitive Incentive Based Compensation; Commodity Derivative Swaps & Regulatory Flexibility Plans

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocEsoterica seem to dominate regulatory practice last week.  Structure and compliance issues dominated regulatory litigation highlights with the demise of an inspection regulation for violation of constitutional standards, the affirmance of another rule against facial attack rather than as applied attack, and discipline of an official for refusal to violate a regulation.  In agency proposals, a consortium of agencies acting jointly and a single agency published supplemental proposed rules in the more arcane reaches of finance.  Finally, a host of agencies published their Regulatory Flexibility Act (RFA) agendas last Thursday. Continue Reading

Monday Morning Regulatory Review – 6/6/16: Warning Letter Finality; Untrusted Fiduciary Rule Tested; Great Lakes Pilotage Foundering; Oyster Illness Hazard Petition Grounding & Payday Loans Proposal Interest

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocThe United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation.  In two different district courts, expected litigation challenged another Department of Labor (DOL) assertion – the complex of rules defining fiduciary under the Employee Retirement Income Security Act (ERISA).  A complaint, and highly unusual, challenged the annual determination of Great Lakes pilotage rates, and the new methodology used for this small sector.  A complaint challenging an agency’s failure to respond to a petition for rulemaking may soon raise issues of standing particularity and concreteness within statutory requirements of the Administrative Procedure Act (APA).  On the regulatory docket, the Consumer Financial Protection Bureau (CFPB) released its payday loan proposal that will generate high interest. Continue Reading

SCOTUS Affirms “Waters of the United States” Jurisdictional Determination is Final Agency Action Subject to Judicial Review

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

USSC SealThe United States Supreme Court (SCOTUS) today unanimously (with concurrences) held that in United States Army Corps of Engineers v. Hawkes Co., Inc. that the Armey Corps of Engineers’ decision to assert Clean Water Act (CWA) jurisdiction over a parcel of land is a final agency action subject to judicial review under the Administrative Procedure Act (APA).  Part of SCOTUS’s reasoning rests on the costliness and uncertainty, but part rests on interagency memoranda of agreement and agency guidance that may quickly be changed. Continue Reading

Monday Morning Regulatory Review – 5/30/16: Agency Delays and Judicial Remands; Gender Guidelines Complaint; Fiduciary Rule Joint Disapproval Disapproval; Education Accountability Accountability & Fueling Renewable Fuels

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies, Legislation, Regulatory Flexibility & Small Business, Regulatory Process

Dawn at Iwo Jima MemorialThe long-running saga of the Federal Communications Commission (FCC) attempts to provide diversity in the broadcast industry pushed forward by a court last week.  Another court, however, faces the daunting task of sorting out whether a high-profile “Dear Colleague” “guidance” letter actually constitutes a rule that the agency must promulgate through Administrative Procedure Act (APA) procedures.  Congress stepped into the debate over the definition of “fiduciary” for retirement plans, but that step appears futile.  Two economically significant proposed rules present interesting issues:  one a broad federalism engagement and the other a recurring reality check. Continue Reading

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