The United States Court of Appeals for the District of Columbia Circuit decided last Friday in Natural Resources Defense Council v. Environmental Protection Agency (EPA) that (1) the emissions-related provisions of the 2013 Portland Cement Rule were permissible but that (2) EPA exceeded its statutory authority in a 2010 version by promulgating an affirmative defense in private civil suits when control equipment unavoidably malfunctions. The court, therefore, granted the petitions for judicial review in part and vacated the provision of the rule pertaining to the affirmative defense. The vacatur illustrates several limitations of agency regulatory authority that agencies can easily forget and that counsel for regulated parties must constantly consider. Continue Reading
Monday Morning Regulatory Review – 4/21/14: EPA Electricity Generating Units; Beer, Grain & Cattle; Tax Exempt Organizations & Politics; Waters of the United States; & Helicopter Ambulances
Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process
Regulatory practice was illustrated by several specific actions in the past week, some of which have subtle implications. The United States Court of Appeals for the District of Columbia Circuit opined on the efficacy of the Environmental Protection Agency (EPA)’s 2012 air pollution regulation of electric generating units, but with several deep divisions. In the agencies, a topic close to your author’s palette arose in the intelligence scour that generates this blog: beer, and how it is regulated and by whom, in this case the Food and Drug Administration (FDA) proposed rules on animal feed. Additionally, the Internal Revenue Service (IRS) signaled a probable revised proposed rule on political activities by social welfare organizations, the EPA and the Army Corps of Engineers (Engineers) finally published the proposed definition of “waters of the United States” for clean water purposes, and the Federal Aviation Administration (FAA) extended the effective date of rules applicable to air ambulances because the industry could not comply within the original time limits. Continue Reading
D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech
Posted in Agency Authority, Constitutional Issues in Regulations, Regulatory Process
The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the rule because the requirements compelled speech in violation of the First Amendment to the United States Constitution. Compelling reporting, disclosure, and publication to the extent that entails “compelled speech” pose a distinct constitutional limitation on both statutes and rulemaking under statutes. Agencies must consider carefully this developing caselaw in formulating any reporting requirement that will be publicly disclosed – and provide a detailed justification for such requirements in the preamble of any such rule – or counsel for regulated parties will, and should, press judicial review. Continue Reading
Monday Morning Regulatory Review: 4/14/14 – Syrian Sanctions Regulations Withdrawal; Medical Safety Codes Incorporated; & Official Seals Banned
Posted in Executive - OMB Review, Regulatory Process
With income tax filings due tomorrow, regulators appear glued to their computers, not preparing regulations, but entering numbers on their keypads, and, therefore, this week’s Monday Morning Regulatory Review focuses on three very different regulatory events: The Department of the Treasury (DOTr)’s Office of Foreign Assets Control (OFAC) withdrew from public inspection a final rule on sanctions applicable to Syria, perhaps for all the wrong reasons. The Department of Health and Human Services (HHS) cleared an update of fire safety rules for regulated health care facilities through executive and interagency review that illustrates the extensive use of incorporation of consensus standards by reference, and may implement recent recommendations. HHS also published a troubling unlimited ban on the use of HHS logos and seals without advance permission. Each of these actions has a distinct procedural issue that warrants review, entirely separate from the substance of the action. Continue Reading
Monday Morning Regulatory Review – 4/7/14: COOL First Amendment; Rearview Cameras; Electric Utility Safety Standards; & OMB Reviews
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies
The United States Court of Appeals for the District of Columbia Circuit took a significant step toward giving agencies more definitive guidance on the whether and how information disclosure can be used as a regulatory mechanism by ordering, on its own initiative, en banc review of a panel decision issued only a week ago. On the agency side, two substantial and economically significant final rules were released by the Department of Labor (DOL)’s Occupational Safety and Health Administration (OSHA) and the Department of Transportation (DOT)’s National Highway Traffic Safety Administration (NHTSA). Additionally, the Environmental Protection Agency (EPA), Department of Health and Human Services (HHS), and Department of Energy (DOE) added notable economically significant proposed or final rules to the interagency and executive review docket. Continue Reading
Administrative Procedure Act Logical Outgrowth & Lack of Notice: D.C. Circuit Affirms Vacatur of HHS Hospital Reimbursement Rule
Posted in Judicial Review & Remedies
The United States Court of Appeals for the District of Columbia today affirmed the vacatur the portion of a Department of Health and Human Services (HHS) final rule setting hospital reimbursement rates because the final rule took a position diametrically opposed to the proposed rule without adequate notice that the final position was a possibility in Allina Health Services v. Sebelius. Without that notice, and relying on HHS’s own explanation of the economic impact of the proposed rule as evidence, the court reiterated that vacatur of the final rule was not only the normal (default) remedy under the Administrative Procedure Act (APA) but the appropriate remedy in this case. Agencies and counsel for regulated parties would be well served by reading carefully this decision and the precedent on which it relies. Continue Reading
Monday Morning Regulatory Review – 3/31/14: Obamacare Extension; Waters of the United States; IRS Meets Bitcoin; & COOL Regulations Preliminary Injunction Denial Affirmed
Posted in Agency Authority, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process
Anthology of the highlights of the last week in regulatory practice is somewhat focuses on some large issues that drew immediate attention, even if the substantive resolutions are many years away. Foremost (of course) is the latest adjustment in Obamacare in Bulletins from the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) eroding the universality of the statue without regulatory changes and consuming insurance law. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released a draft revised definition of “waters of the United States” for Clean Water Act (CWA) purposes, setting in motion what will become one of the most debated and litigated issues of the decade. The Internal Revenue Service (IRS) finally provided some guidance on the labyrinthine intersection of virtual currencies and federal taxation, compounding the problems for those who engage in virtual currencies. Finally, the Department of Agriculture (DOA)’s Country of Origin Labeling regulations survived appellate review of a preliminary challenge, adding complexity to the management of herds to the slaughter and the dinner table, but not adding a critical mass to an intercircuit conflict about judicial review. Continue Reading
Monday Morning Regulatory Review – 3/24/14: Debit Card Fees Revival; Contractors & Disability Data Analyses; Mathematics & Law; Food Safety Slip; & Obamacare Slide
Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process
This column changes each and every week as the moving parts of regulatory law shift. Highlights from the past week illuminate significant government litigation victories in the revival of a regulation that set maximum fees between retailers and servicers of debit cards, summary judgment for the government in a challenge to a rule setting affirmative action and nondiscrimination requirements for federal contractors, and deference to the agency in calculating the amounts due to hospitals for certain Medicare payments. In agency actions, the Food and Drug Administration (FDA) announced that it would announce further time for comment in Food Safety Modernization Act regulations that are subject to timing litigation and the White House hinted at further relaxation of Obamacare deadlines. Continue Reading
Monday Morning Regulatory Review II – 3/17/14: FLSA Overtime Standards; H-2B Wage Methodology; Gainful Employment; & Electronic Logging Hours of Service
Posted in Agency Authority, Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process
While Part I of today’s Monday Morning Regulatory Review (MMRR) focused on Obamacare and health care, this Part II focuses on a wider range of regulatory activity. President Obama instructed the Department of Labor (DOL) to charge into the breach of Fair Labor Standards Act (FLSA) regulations and DOL, on its own hook, proposed another round of contentious wage methodology standards for paying non-agricultural non-immigrant workers. The Department of Education (ED) returned to the regulatory field with a new set of gainful employment regulations for private sector for profit education companies and the Department of Transportation (DOT) issued new electronic log regulations, both after previous regulations had been vacated. Continue Reading
Monday Morning Regulatory Review I – 3/17/14: Obamacare Risks; Third-Party Payments; Medicare Drug Withdrawal; & Congressional Interventions
Posted in Legislation, Regulatory Process
Frenetic regulatory activity in the past week covered large swaths of substantive administrative law in the Administration and the Congress, and likely set the stage for more regulatory litigation, so much so that this Monday Morning Regulatory Review (MMRR) must be divided into two posts. This post highlights the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) further adjustments to Obamacare by regulatory and subregulatory means, and subregulatory “withdrawal” of proposed changes to Medicare in light of a torrent of criticism, and its haste to correct problems as the Obamacare enrollment deadline nears. Even a deeply fractured Congress appears poised to make adjustments in light of past administrative action. Part II of the MMRR will cover the rest of the week’s highlights. Continue Reading