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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 3/27/17: Lack of Regulatory Plan as Default

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

dawn over the capitol aocRegulatory practice remains in a curious near-catatonic state two months after the inauguration of a new Administration.  Legislation is amputating prior rules, almost no affirmative regulatory activity is noticeable, and judicial review has slowed markedly while awaiting the Administrative to state of its intentions.  Doctrinal development has all but ceased for the time being. Continue Reading

Monday Morning Regulatory Review – 3/13/17: Unified Agenda Data Call; Rare Earth Magnet Exit; Regulatory Defense Jitters & Disapproval Resolutions

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

dawn over the capitol aocThe Administration attempts to move toward a normal flow in the regulatory process as the docket thaws ever so slightly and it instructs agencies on the process of establishing their regulatory agendas.  Old regulations, however, sometimes die ignominious deaths, such as removal from the Code of Federal Regulations after vacatur, while others fate is so unsure that the courts must ask for guidance, while others continue to fall to Congressional joint resolutions of disapproval. Continue Reading

Monday Morning Regulatory Review 3/6/17: Reconsidering WOTUS; Transgender Guidance Appeal Ignominious End & Proposed Rules to Delay Rules

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocThe current Administration continued its undoing of prior the Administration’s priorities, but with more finesse.  The definition of Waters of the United States that garnered so much attention during the last Administration was put on the sideline for an extended period last week, with ramifications for several court cases.  The direct challenge to the rescinded transgender student bathroom guidance ended with a whimper and the indirect challenge may soon follow.  And two proposed rules to delay substantial final rules deserve note for the justifiable shortness of public comment periods. Continue Reading

Monday Morning Regulatory Review – 2/27/17: Transgender Student Bathroom Deguidance; Student Loan Cost Guidance Adherence; Immigration Enforcement Revisited; ORNA Good Cause Intercircuit Conflict & Implementation Executive Order

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aoc“Guidance” seems to have been the word for last week and that requires many words to explain.  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current Administration would adhere to a prior guidance document, an agency revisited enforcement guidance while avoiding prior judicially enjoined benefits guidance, and a court rejected a guidance document as sufficient notice and an opportunity for public comment under the Administrative Procedure Act (APA) (and an interim rule for insufficient good cause to avoid advance notice and comment).  The substance of all this guidance ranged from sex or gender discrimination to student loans to immigration enforcement to sex offender registration.  Finally, the President of the United States (POTUS) issued another Executive Order to guide agencies in the management of the regulatory process that does not seem to add much substance. Continue Reading

Monday Morning Regulatory Review – 2/20/17: Delay Challenge; Withdrawal Challenge; First Disapprovals Complete with More to Come & Stability Struggles in a New Regulatory Docket

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

dawn over the capitol aocTwo cases that challenge the effect of a new Administration’s moratorium on rules pending review by new appointees deserve some attention this week – one challenges a delay of effective date while the other challenges a withdrawal from public inspection prior to publication.  The march of regulatory  disapprovals continued to build with the first two completions and many more clearing one or the second House of Congress.  The regulatory machine itself is also showing signs of life as an agency seeks to provide some stability amid growing concern about the repeal of the underlying statute. Continue Reading

Monday Morning Regulatory Review – 2/13/17: Fiduciary Reconsideration; Executive Order Litigation; Regulatory Deconstruction & Executive and Interagency Review

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

dawn over the capitol aocRelative quietude on the surface of regulatory practice belies shifting tides.  A challenge to one major rule from the prior Administration failed, but a new rule is being reviewed to delay the existing rule while a new challenge raises a host of old issues applied to a new Administration.  The First Branch, on the other hand, continues to prepare joint resolutions of disapproval of the past Administration’s regulations.  And the new Administration has begun to push out its first economically significant proposed rule. Continue Reading

Monday Morning Regulatory Review – 2/6/17: Gorsuch to SCOTUS; Regulatory Budgeting; Fiduciary Rule Reconsideration; Congressional Disapproval Resurrection; and Petitions & Political Debates

Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory Process

dawn over the capitol aocA complicated and busy week in regulatory practice requires extended comments and a little patience.  The President of the United States (POTUS) nominated Judge Neil Gorsuch to be an Associate Justice of the Supreme Court of the United States (SCOTUS) and that will likely soon require new thinking about judicial deference to agency interpretations.  POTUS added requirements for regulatory budgeting to the stable of regulatory management Executive Orders and directed the Department of Labor (DOL) to reconsider a major rule under the Administrative Procedure Act (APA), the only way to change it.  Congress, on the other hand, will soon present five resolutions of disapproval for Presidential signature.  Finally, a district court remanded a petition for rulemaking for a fully explication that may have a significant impact in the next Presidential campaign. Continue Reading

Monday Morning Regulatory Review – 1/30/17: High Policy, Politics & Limitations; Withdrawals; and Request for Information not a Proposed Rule

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocThe first full week of the Trump Administration provided few surprises.  The White House continued to enunciate the high-level policy (or Policy) that its expects agencies to implement and the agencies have retreated to rereview rules that have not taken effect or were still pending review.  A least one hasty final rule met a temporary roadblock when a district court preliminarily enjoined implementation because the agency violated the Administrative Procedure Act (APA). Continue Reading

Monday Morning Regulatory Review – 1/23/17: Transition Continuity of Operations; Stream Protection Suit 2 & RFS Mandatory Duty Suit

Posted in Judicial Process, Regulatory Process

dawn over the capitol aocThe first Monday and official workday of a new Administration presents a challenge – agencies have been instructed to hold all regulations for the moment pending further review; implementation will take some time.  On the other hand, a suit to enjoin the prior Administration’s stream protection rule and to compel an agency to consult with the States joined prior litigation, and a new challenged an agency failure to fully comply with mandatory duties in promulgating renewable fuel standards. Continue Reading

Monday Morning Regulatory Review – 1/16/17: WOTUS Jurisdiction & Venue; Arbitration Bars; Deference without Deference; Mandatory Duties & Remedies; Regulatory Accountability Act Reprise; Expedited Removal and Cubans; Good Cause Overdose & Communicable Disease Incaution

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

dawn over the capitol aocThe United States Supreme Court (SCOTUS) added to its argument calendar Friday, including several that could implicate future regulatory practice – including jurisdiction to review regulations and the potential scope of arbitration-limiting regulations.  In lesser lights, a Court of Appeals determined that an agency’s interpretation was correct without the agency, while a district court imposed deadlines on an agency that failed to comply with mandatory duties.  In regulatory highlights, one agency took expedited action where appropriate, another overdosed on in its concise statements, and a third acted incautiously on a highly controversial rule that will in all likelihood come to a halt pending further review.  And these are just the highlights … this week …. Continue Reading