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
Monday Morning Regulatory Review –12/15/14: FLSA Security Screenings; NLRB Elections Rule; Contractor Rehab Act Rule; Contractor Inversions & Minimum Wage Rules
Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process
For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type. Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors. The United States Supreme Court (SCOTUS) surprised many with a unanimous interpretation of the Fair Labor Standards Act (FLSA), the latest in a series of FLSA interpretations. Of affirmative interest, the National Labor Relations Board (NLRB) today published a final union election rule that is likely to be challenged in court – for the second time. On the government contractor front, the United States Court of Appeals for the District of Columbia Circuit ended a challenge to Department of Labor (DOL) regulations attempting to increase employment of persons with handicaps. Finally, two sets of amendments to the Federal Acquisition Regulations (FAR) implement bars to contracts with tax-inverted companies and implement a minimum wage.
Monday Morning Regulatory Review – 12/8/14: Immigration Executive Action; H2B Wage Rates; Regulations & Non-Discretionary Duties; and Waters of the United States
Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process
The immigration “executive action” became much clearer with the Department of Homeland Security (DHS) rolling out a variety of memoranda implementing the President (POTUS)’s priorities, but there was no, and many not have ever been, an “Executive Order.” Nonetheless, the first legal challenge has been filed and the state of affairs deserves review. On another immigration front, the United States Court of Appeals for the Third Circuit vacated a Department of Labor (DOL) regulation and guidance on temporary non-agricultural workers. The Ninth Circuit, on the other hand, affirmed dismissal of a suit seeking to compel the Environmental Protection Agency (EPA) to promulgate regulations under a non-discretionary duty theory. Speaking of the EPA, the comment period for one of its most contentious water regulations finally closed. Continue Reading
SCOTUS, Interpretative Rules & the Government’s Shifting Interpretation
Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process
The United States Supreme Court (SCOTUS) oral argument on Monday in Perez v. Mortgage Bankers Association underscored the complexity of the distinction between legislative rules and interpretative rules under the Administrative Procedure Act (APA) and the degree of deference that courts grant to agencies in resolving ambiguity under their delegated programmatic statutes. Oral argument may not be a good indication of how SCOTUS will decide a case – Justices may test different theories for different reasons and reading tea leaves is speculative at best. That said, however, the breadth and depth of the problems of existing precedent illustrated by the argument indicate that SCOTUS must eventually return to the fundamental issues raised by the potential collision of several lines of cases. Continue Reading
Monday Morning Regulatory Review – 12/1/14: Electric Generating Hazardous Emissions & Costs; Quintennial Ozone Standard; Calorie Counting; and Election Financing Disclosure
Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies, Regulatory Process
The very short Thanksgiving workweek was punctuated by a significant new United States Supreme Court (SCOTUS) grant of review of requirements for the Environmental Protection Agency (EPA) in regulating hazardous air pollutants – this time by electric utilities. The day before Thanksgiving has traditionally been a day for rolling out controversial actions to reduce adverse publicity, and so the EPA released its proposed new national ambient air quality standards for ozone. A little late for analyzing that Thanksgiving dinner, the Food and Drug Administration (FDA) released its new calorie labeling requirements for restaurants and vending machines. And, in what may become another litigation saga, the United States District Court for the District of Columbia again vacated regulations promulgated by the Federal Election Commission (FEC) that reduced the amount of disclosure of corporate and union campaign support. Continue Reading
SCOTUS Argument Preview: Must Agencies Use Notice and Comment Rulemaking to Change Interpretation
Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process
Next Monday, the United States Supreme Court (SCOTUS) will hear argument in Perez v. Mortgage Bankers Association, No. 13-1041, asking whether a federal agency must engage in advance notice and public comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an established interpretive rule articulating the agency’s interpretation of an agency regulation. Although the case presents a narrow set of factual circumstances over the Department of Labor (DOL) application of the Federal Labor Standards Act (FLSA), as amended, the implications for federal agency rulemaking and guidance of a SCOTUS decision are far reaching and could alter fundamentally the way that agencies regulate. Continue Reading