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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 4/20/15: Retirement Fiduciary Definition; H-2B Authority Redux; Open Neutral Utility Internet Review; & Contraceptive Mandate

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

dawn over the capitol aocA hodgepodge of highlights from regulatory practice in the past week. The Department of Labor (DOL) today publishes its long-awaited and controversial proposed fiduciary duties rule for public comment. Slightly further down a different rocky road, DOL last week submitted two final rules to the Office of Management and Budget (OMB) that may represent an attempt to resolve the jurisdictional issues surrounding DOL’s authority to issue legislative rules for the non-agricultural temporary workers visa program. The Federal Communications Commission (FCC) was drawn down a road travelled often by the filing of new challenges to its open internet regulation. And finally, the Department of Health and Human Services (HHS) submitted a final contraceptives mandate rule to OMB for review and a new court decision may further complicate that review and a final rule’s efficacy. Continue Reading

Monday Morning Regulatory Review – 4/13/15: Waters of the United States; Renewable Fuels Consent Decree; Open Internet Utility Rule; Shepherd’s Wages; Immigration Executive Action Litigation VII; and Religious Workers & Legal Status

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

dawn over the capitol aocHalf a dozen highlights from regulatory practice last week – from environmental to communications, to labor to immigration. The Environmental Protection Agency (EPA) and Army Corps of Engineers (Engineers) submitted a controversial Waters of the United States (WOTUS) final rule for executive and interagency review, and EPA also proposed resolution of the long delayed Renewable Fuels Standard (RFS) regulations and litigation. The Federal Communications Commission (FCC) today publishes in the Federal Register the open internet neutrality utility final rule. The Department of Labor (DOL) responded to the prospective vacatur of its shepherd’s wages guidance. Further small and unsurprising steps were taken in immigration executive action litigation, but the Department of Homeland Security (DHS) lost an appeal from vacatur of a portion of its religious worker regulations. Continue Reading

Monday Morning Regulatory Review – 4/6/15: Cyber-Threat Executive Order; NLRB Elections Rule; Drones & Privacy; and Confined Spaces in Construction

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

dawn over the capitol aocIssues on the periphery of regulatory practice highlighted the last week. The President of the United States (POTUS) unleashed financial regulation resources against cyber-threats by applying regulations and enforcement processes that have historically been used to combat foreign regimes, terrorists, international narcotics traffickers, and the proliferation of weapons of mass destruction. On the other hand, POTUS also vetoed a joint resolution of disapproval of the National Labor Relations Board (NLRB) union elections rule. An odd challenge was filed to the Federal Aviation Administration (FAA) proposed rule on drones. And an old proposed rule is being brought to finality – perhaps too old a proposed rule. Continue Reading

Monday Morning Regulatory Review – 3/30/15: Open Internet Randomness to the Courthouse; State / Local Internet Preemption; Immigration Executive Action Litigation VI; Same-Sex Family Medical Leave Regulations Preliminary Injunction; Fuel Cells & Airplanes

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

dawn over the capitol aocLitigation and agency responses dominate last week’s regulatory practice. Two different protective petitions for review of the Federal Communication Commission (FCC)’s open internet / net neutrality / net utility final rules were filed with the United States Court of Appeals for the District of Columbia Circuit and the Fifth Circuit, and a State challenged the FCC’s preemption of State laws limiting political subdivisions’ authority to provide internet services outside their geographic boundaries in the Sixth Circuit. The Fifth Circuit ordered oral argument on a Department of Justice (DOJ) for the Department of Homeland Security (DHS) motion to stay the preliminary injunction of the immigration executive actions. The Department of Labor (DOL) regulations expanding application of the Family and Medical Leave Act (FMLA) came under fire before becoming effective and a recent district court order will require more clarity. Finally, the Department of Transportation (DOT)’s Pipeline and Hazardous Materials Safety Administration (PHMSA) responded to a remand from the District of Columbia Circuit, but may have added more than required or allowed. Continue Reading

Monday Morning Regulatory Review – 3/23/15: White House Transparency Regulations; Federal Fleet Pollution; Federal Fracking; & H-2B Vacatur & Emergency Regulations

Posted in Agency Authority, Executive - OMB Review, Regulatory Process

dawn over the capitol aocPrioritizing last week’s interesting regulatory affairs proves a little difficult because the affairs are so diverse, so this post may seem random. The White House’s administrative side removed regulations in a Federal Register final rule, perhaps for the right reason, but perhaps in the wrong way. The President of the United States (POTUS) also issued an Executive Order directing his subordinates to reduce the environmental impact of the United States government vehicle fleet (and other things), while the Department of Energy (DOE) withdrew statutorily-required regulations on the same subject, events that require some further explanation. The Department of the Interior (DOI) released its long-awaited final rules on the practice of hydraulic fracturing in oil and gas wells on federal and (most) Indian lands. Finally, the Department of Justice (DOJ) won a temporary reprieve for the Department of Labor (DOL) on the vacatur of its H-2B regulations with the promise of an emergency rule. Continue Reading

Monday Morning Regulatory Review – 3/16/15: Functional Delegation Test; Open Internet Neutrality Rule Opened; Immigration Executive Action Litigation V

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

dawn over the capitol aocThree regulatory highlights for the past week do not appear to have any discernable connections. The United States Supreme Court (SCOTUS) disappointed (or maybe disowned) a cousin of the constitutional nondelegation doctrine by reversing and remanding a case limited to the regulatory power of a unique government corporation – Amtrak. The Federal Communications Commission (FCC) finally released its open common carrier internet rule, perhaps raising as many questions as it answers, and the countdown to another round of litigation begins. The Department of Justice (DOJ), on the other hand, answered the question of when it would press for judicial resolution of whether the Department of Homeland Security (DHS) immigration executive actions requires Administrative Procedure Act (APA) rulemaking, but seemed to leave the courts unconvinced that a crisis had been created by the district court’s preliminary injunction. Continue Reading

SCOTUS Rejects D.C. Circuit Notice & Comment Rulemaking Requirement for Changing Agency Interpretation

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

USSC SealThe United States Supreme Court (SCOTUS) held today, in Perez v. Mortgage Bankers Association, that an interpretative rule does not require advance notice and an opportunity for public comment under the Administrative Procedure Act (APA) no matter when the agency adopts the interpretation, unanimously reversing the contrary decision of the United States Court of Appeals for the District of Columbia Circuit. The decision ends nearly two decades of limitations on federal agencies in interpreting their programmatic statute and implementing regulations and opens the door to many reversals of prior administrative interpretations, even if relied upon by private parties now to their detriment. The decision leaves untouched, however, more complex problems for agency regulators and potential litigation over when a rule is interpretive or substantive, and whether courts should defer to those agency interpretations. Continue Reading

Monday Morning Regulatory Review – 3/9/15: H-2B Regulations Vacated – Again; Immigration Executive Action Litigation IV; and Aircraft Engines & Greenhouse Gases

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

dawn over the capitol aocLast week’s highlights in regulatory practice were few and tread familiar ground, but have much meaning. The Department of Labor (DOL) suffered another loss in the jurisdictional kerfuffle over the non-agricultural workers visa program when a district court vacated its 2008 regulations, just as it had previously done with more recent regulations, and contrary to other court holdings. The authority for the Department of Homeland Security (DHS) executive actions favoring undocumented immigrants, on the other hand, took only a half-step forward despite pressure from Department of Justice (DOJ) for the court to stay its preliminary injunction. If the immigration labyrinth does not suit, the Office of Management and Budget (OMB) began one of the more complicated executive and interagency reviews of Environmental Protection Agency (EPA) proposals to regulate aircraft emissions. Continue Reading

Monday Morning Regulatory Review – 3/2/15: Open Utility Internet; Immigration Executive Action Litigation III; and Retirement Investment Fiduciaries

Posted in Agency Authority, Judicial Process, Regulatory Process

dawn over the capitol aocRegulations 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 & Remedies

dawn over the capitol aocThe 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