Regulations 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 & RemediesThe 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 ProcessThe 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 ProcessInteresting 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
Monday Morning Regulatory Review – 1/19/15: Judicial Review of Agency Standards of Discretion; Regulatory Takings Standards; FLSA Home Care Regulations II; NLRB Elections Rule Litigation IIA; Be Sued & Settle
Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process
The United States Supreme Court (SCOTUS) granted review in several cases with significant regulatory implications last Friday – neither of which is the case that has drawn all the press attention and both of which should be decided early this summer. In one case, SCOTUS may be approaching the twilight zone of judicial review of discretionary decisions based only on the discretionary standards created by the agency itself. In the other case, SCOTUS will consider the fine line between federal regulation and a “taking” that requires just compensation. At a lesser altitude, the United States District Court for the District of Columbia further emasculated the Department of Labor (DOL) Fair Labor Standards Act (FLSA) home health care regulations. Another suit against the National Labor Relations Board (NLRB)’s union elections rules was filed, and, trying to be balanced, the Government Accountability Office (GAO) has concluded that at least some environmental “be sued and settle” practices are irrelevant to the substance of final regulations. Continue Reading
Monday Morning Regulatory Review – 1/12/14: NLRB Election Rule Litigation II; Regulatory Reform; & Conciliation Prerequisite
Posted in Agency Authority, Judicial Review & Remedies, Legislation
A few small nuggets deserve attention, although no earth shattering developments rocked administrative law last week. Reopening two old chapters in the annals, a new suit challenges the National Labor Relations Board (NLRB) 2014 union representation election rule and the House of Representatives this week moves reform of the Administrative Procedure Act (APA) near the top of the agenda. The United States Supreme Court (SCOTUS) will hear oral argument tomorrow on an issue of significance if only peripherally related to regulations. Continue Reading
Monday Morning Regulatory Review – 1/5/15: Ozone Standards Authority; Toxic Spent Munitions; FLSA Home Care Regulations; Medicaid Hospital Limits FAQ; & Immigration Executive Action
Posted in Agency Authority, Judicial Process, Judicial Review & Remedies
Welcome to 2015, the fourth year of the Federal Regulations Advisor. Two short holiday workweeks are compiled today in one loaded post. The agencies may have been (largely) quiet, but the courts provided grist for the mill. The United States Court of Appeals for the District of Columbia Circuit vacated parts of the Environmental Protection Agency (EPA) 2008 ozone regulations for want of authority, and affirmed EPA’s denial of a toxic substances petition for regulation. The United States District Court for the District of Columbia vacated provisions of the Department of Labor (DOL) home health care overtime regulations, preliminarily enjoined part of the Department of Health and Human Services (HHS) Medicaid formula for hospital compensation limitations, and dismissed an early attack on the Department of Homeland Security (DHS) immigration executive actions. Expect the agencies to gear up this week as use-or-lose vacations end. Continue Reading
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