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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 2/8/16: Petitions for Clean Power Stay; Rural Hospitals Shifts; Superfund Insurance; Size Matters More & Pay Disclosure

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

dawn over the capitol aocRegulatory practice litigation highlights over the past two weeks include the latest round of applications to stay the Administration’s Clean Power Plan, another problematic rework of Medicare rules for hospitals, and a consent decree to propose superfund insurance 30 years after authorization. On the rulemaking front, the Small Business Administration (SBA) completed critical size standards adjustments, and the Administration proposed an information collection at the cusp of authority without a further rulemaking. Continue Reading

Monday Morning Regulatory Review – 1/25/16: SCOTUS Takes on Immigration Executive Action; Clean Power Progresses; STEM Vacatur Delayed; Joint Employer Guidance; Programming Vacation

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

dawn over the capitol aocWashington shut down for the weekend, but the administrative process never sleeps. Prime from last week, the United States Supreme Court (SCOTUS) decided to hear a mishmash of immigration executive action questions, but may not decide them, while the United States Court of Appeals for the District of Columbia decided not to stay the Administration’s most ambitious Clean Power Plan. To prove that a blizzard is no match for a court, the United States District Court for the District of Columbia extended its stay of vacatur of a rule. The Department of Labor (DOL) released the most significant administrative action with a mere guidance document – but one fraught with litigation potential. Continue Reading

Monday Morning Regulatory Review – 1/18/16: SCOTUS Returns; Law Practice & Mortgage Relief Regulation; V2V Communications; and No Reginfo

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

dawn over the capitol aocThe United States Supreme Court (SCOTUS) returned last week to open several new lines of inquiry that impact regulatory practice, but has not yet decided whether the hear the case of the year. At the trial level, a district court invalidated narrow regulations applicable to attorneys practicing law in one federalized realm. The Department of Transportation (DOT) took the most significant regulatory action of last week in forwarding one of the potentially complicated regulations for executive and interagency review. And sadly, a key docket website has become predominantly unavailability without explanation. Continue Reading

Monday Morning Regulatory Review – 1/11/16: Firearms Executive Action; IRS Withdrawal & Petition Petition Jurisdiction

Posted in Agency Authority, Judicial Process, Regulatory Process

dawn over the capitol aocThe President of the United States (POTUS) dominated regulatory affairs last week by announcing firearms executive actions and the devil, as always, is in the details. Two other actions at least deserve a mention – the appropriate withdrawal of a contentious proposed rule that simply did not work and the dismissal of a complaint in the trail court that should have been filed as a petition in the court of appeals. Continue Reading

Monday Morning Regulatory Review – 1/4/16: Regulatory Priorities in an Administration’s Final Year

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

dawn over the capitol aocThe end of 2015 warranted a review of Congressional regulatory interventions and limitations, and the beginning of 2016 warrants a review of expectations for the coming (Presidential election) year – the final year of an Administration, a final chance to establish its regulatory legacy. Do not confuse this review with the Unified Agenda, a mere snapshot of agency hopes at a moment in time before publication — review here focuses on likely events, not necessarily what the agencies may wish or attempt to accomplish or what anyone believes to be politic. The final year of this or any Administration presents a long list of issues and prospects, some of which deserve attention. Continue Reading

Monday Morning Regulatory Review – 12/28/15: A Regulatory Appropriation

Posted in Agency Authority, Legislation

dawn over the capitol aocThis last column of the year takes a different approach to regulatory practice – a survey of some of the realities of Congressional “review” in the omnibus Consolidated Appropriations Act, 2016 (CAA16), signed into law December 18, 2015. This massive appropriation includes many different styles of Congressional oversight and intervention – from outright prohibition, to repealing underlying statutory authority, to enforcement limitation, and more. Many appropriations provisions affect significant regulatory actions, a few of which deserve attention here. Continue Reading

Monday Morning Regulatory Review – 12/21/15: Drone Registration; Remand Without Vacatur Time & Commercial Air Efficiency

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocA holiday drone gift contains a new requirement today – registration with the Federal Aviation Administration (FAA). On old issues, the United States Court of Appeals for the District of Columbia Circuit remanded a regulatory action and denied mandamus to compel an agency response to a remand. Finally, the Department of Energy (DOE) claimed the largest benefit for energy efficiency ever – commercial heating and air conditioning units – through a consensus process. Continue Reading

Monday Morning Regulatory Review – 12/14/15: Water, Jurisdiction, Finality; Mineral Extraction Payments; Hours of Service Reporting; & Renewable Fuel Standards

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

dawn over the capitol aocThe United States Supreme Court (SCOTUS) returned to one of the thorniest of briar patches of statutory imprecision and jurisdictional delegation, the Clean Water Act (CWA). Another regulatory issue likely to eventually reach SCOTUS revolves on the scope of First Amendment rights and forced corporate speech, currently joined in one agency’s proposed rule. Two other agencies moved forward with finals rules in light of prior litigation, one certain to generate new litigation and the other raising old concerns about efficacy, not legality. Continue Reading

Monday Morning Regulatory Review – 12/7/15: Drone Registration Prospects: APA Petitions & A Sovereign Immunity Caution; and D.C. Circuit Argument Docket

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

dawn over the capitol aocThe regulation of drones took a step forward last week, but that step may be very tentative. The interrelationship between general petitions for rulemaking and specific requirements of programmatic statutes was the focus of a district court dismissal, albeit a temporary one. In the United States Court of Appeals for the District of Columbia Circuit, two oral arguments presented potentially significant precedent decisions for the coming year. Continue Reading

Monday Morning Regulatory Review – 11/30/15: Immigration Executive Action Review; Airport Body Scanners & Drone Registration Recommendations

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

dawn over the capitol aocThanksgiving week is traditionally a slow government period, but a few timing tidbits deserve a nod. Immigration executive action remains a hot topic, even if only timing of when a decision on whether to review might occur. Timing of Department of Homeland Security (DHS) regulations managing whole body scanners at airports remains a problem, but a Department of Transportation (DOT) advisory task force delivered its drone registration recommendations on time. Continue Reading