The United States Court of Appeals for the District of Columbia Circuit, last Friday in Taylor v. Huerta, partially vacated the Department of Transportation (DOT) Federal Aviation Administration (FAA) Registration and Marking Requirements for Small Unmanned Aircraft interim final rule (IFR). The panel concluded that Congress explicitly barred the FAA from promulgating “any rule or regulation regarding a model aircraft.” The opinion, statute, and regulation all require further explication, for all is not quite what it seems, and potentially dangerously so. Continue Reading
Monday Morning Regulatory Review – 5/8/17: Appropriations Impact on Regulations; Pending Disapproval; Legislation Repealing Regulation; WOTUS Reconsideration; Contraceptive Mandate Reconsideration; & Compliance Extension Good Cause
Posted in Agency Authority, Executive - OMB Review, Regulatory Process
Regulatory practice last week presented a number of different Congressional interventions – from the complexity of a Consolidated Appropriation for the remainder of the fiscal year, to disapproval of a regulation under the Congressional Review Act (CRA), to a direct legislative vitiation of a final rule. The Administration took two different steps toward reconsideration of politically and judicially contested issues through executive and interagency review of a new Waters of the United States (WOTUS) rule and an Executive Order mandating reconsideration of exemptions under the contraceptive mandate. Finally, the Food and Drug Administration (FDA) published a compliance date extension as an interim final rule, with dubious exceptions from Administrative Procedure Act (APA) requirements. Continue Reading
Monday Morning Regulatory Review – 5/1/17: Clean Power Plan & Mercury Holds; Litigation Choice & Appropriation Limitation; and Complicated Executive and Interagency Reviews
Posted in Executive - OMB Review, Judicial Process, Regulatory ProcessLitigation over two more major rules was put on hold last week, leaving little actual litigation over past Administration rules proceeding – with small exceptions that may be short lived. At the same time, one court of appeals recognized the reality of appropriations effectively limiting agency discretion – particularly when court orders have consumed limited agency resources. Much of the actual regulatory practice resides within intra-agency reconsideration but the public face of that process is reflecting in a very few complicated executive and interagency reviews. Continue Reading
Monday Morning Regulatory Review – 4/24/17: Buy and Hire American; Rethinking Tax Regulations Review Exceptionalism & Executive Order Law
Posted in Executive - OMB Review, Regulatory ProcessExecutive Orders dominated last week in regulatory practice, with one policy redirection and a second that has potential for doctrinal change. A limited executive and interagency review docket, Congressional recess ahead of a budget showdown, and judicial review being held in abeyance in most challenges to regulations leave little more to discuss, but a summation of law of “Executive Orders” may be appropriate. Continue Reading
Monday Morning Regulatory Review – 4/17/17: Animal Waste Exception Flushed; Ozone on Hold & Review Docket Nap
Posted in Judicial Process, Regulatory ProcessAll relatively quiet on the regulatory front – but that could be deceptive. One notable decision vacated a rule adopted in the waning days of the Bush Administration in 2008. Many pending cases are being held in abeyance pending review and reconsideration by the present Administration – the latest being a challenge to the national standard for ozone, but no word on the Clean Power Plan (CPP). The regulatory docket at OMB awaits filling – and the review and reconsideration will amply fill that docket. Continue Reading
Monday Morning Regulatory Review – 4/10/17: Gorsuch to SCOTUS while SCOTUS Denies WOTUS Abeyance; Implementing Regulatory Reform Memorandum & Administrator Nominee; and Plain Snakes Not InterSTATE Shipments
Posted in Judicial Process, Regulatory ProcessUnsurprising, the Senate confirmed a new Justice last Friday while the United States Supreme Court (SCOTUS) he is about to join continued adjudicating a minimal regulatory law docket, at least rejecting the notion that it should stay one case where the new Administration seeks to modify the underlying rule. At the other end of Pennsylvania Avenue, the Office of Information and Regulatory Affairs (OIRA) issued new guidance on the latest regulatory reform Executive Order and the White House finally announced a nominee to run that critical operation. Somewhere in the middle, the Court of Appeals affirmed a plain language judgment. Continue Reading
Monday Morning Regulatory Review – 4/3/17: Social Cost of Carbon Withdrawal; Congressional Review Act Terminus & Speed Rulemaking Delay
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Regulatory Flexibility & Small Business, Regulatory ProcessIn another Executive Order, the President of the United States (POTUS) directed subordinates to reconsider certain rules, but this time included a process change that has more subtle process implications. The “deadline” for filing joint resolutions to set aside regulations from a prior Administration appears to have passed, but that may mean very little. And as expected, an agency sent a speed rule to delay application dates of a prior regulation for review, perhaps setting a pattern, but perhaps not. Continue Reading
Monday Morning Regulatory Review – 3/27/17: Lack of Regulatory Plan as Default
Posted in Judicial Process, Regulatory Flexibility & Small Business, Regulatory ProcessRegulatory 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 ProcessThe 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 ProcessThe 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