Odds and ends from the Federal Register last week The Department of Health and Human Services (HHS) Food and Drug Administration (FDA) proposed wholesale changes in food labeling, a White House priority. The Department of Justice (DOJ) published a non-regulatory controversial final policy on how it will relate to news media in requesting information and contacting journalists. And the Environmental Protection Agency (EPA) released a technical document on greenhouse gases generated by new electric power plants and ran close against legal requirements that it provide an effective comment period on its proposals and supporting documents. Continue Reading
Monday Morning Regulatory Review – 2/24/14: Preliminary Injunctions & Obamacare Contraceptives Mandate; FCC Net Neutrality; & Food Safety Time
Posted in Judicial Review & Remedies, Regulatory Process
The Administration pushed a number of new positions in the past week, but three more discrete actions at the intersection of regulatory process and judicial review of final rules deserve attention. The United States Court of Appeals for the Seventh Circuit affirmed denial of a preliminary injunction in the Obamacare contraceptives mandate war because the plaintiff had complied with the challenged regulations. The Federal Communications Commission (FCC) restarted the “net neutrality” regulatory process after losing its previous rule, signaling a new phase in the battle over bandwidth consumption. The Food and Drug Administration (FDA) agreed to new deadlines for its implementation of Food Safety Modernization Act regulations, but some caveats limit just what was agreed. Continue Reading
ABA 10th Annual Administrative Law & Regulatory Practice Institute – One Meeting Worth Attending
Posted in Judicial Review & Remedies, Regulatory ProcessAttorneys must keep up to date with the developments in the law – one reason for this blog and one reason for attending the American Bar Association (ABA) Administrative Law and Regulatory Practice Section’s 10th Annual Administrative Law & Regulatory Practice Institute on April 3 – 4, 2014. Many courts require attorneys to attend “continuing legal education” courses as a requirement of bar licensing. Continuing legal education, unfortunately, is often seen as little more than “show and tell” designed to create revenue for the sponsoring organization (and your author is not a fan), but this ABA program (like its predecessors) delivers substance. Continue Reading
Monday Morning Regulatory Review – 2/17/14: Obamacare Employer Mandate & Marijuana Dispensary Banking
Posted in Agency Authority, Regulatory Process
Another seemingly quiet week was punctuated by incursions on the twilight zone between regulations and guidance. The Department of the Treasury’s Internal Revenue Service (IRS) delayed and refined the Obamacare employer mandate by a final rule. On the other hand, the Treasury’s Financial Crimes Enforcement Network (FINCEN) and the Department of Justice (DOJ) attempted to permit banks to do business with marijuana dispensaries with guidance documents. These regulations and “guidance” pose examples of distinct issues for affected parties – issues that will be repeated as the Administration takes executive actions to supports its agenda. Continue Reading
D.C. Circuit Affirms Permanent Injunction of IRS Tax Preparer Rule – No Authority & a Century of Silence
Posted in Agency Authority, Judicial Review & Remedies
The United States Court of Appeals for the District of Columbia today schooled the Internal Revenue Service (IRS) and the Department of the Treasury (DOTr or Treasury) on statutory construction and the limits of delegated regulatory authority in Loving v. IRS, affirming the district court decision by the same name. The court found that the IRS interpretation failed at the traditional Chevron Step 1 analysis because it conflicted with the statute under the cannons of statutory construction and that the IRS interpretation failed at Chevron Step 2 analysis because the interpretation was unreasonable in light of the statute’s text, history, structure, and context. The court firmly applied well established precedent to the IRS’s attempt to arrogate a 130 year old statute into more than it permits. Continue Reading
Monday Morning Regulatory Review – 2/10/14: NLRB Election Rule Resurrection; Auto Auto Communications; & Lithium Batteries
Posted in Regulatory Process
Among few highlights from the regulatory world last week other than one problematic court decision previously noted, the National Labor Relations Board (NLRB) resurrected a union election process rule that had been vacated for want of a quorum. The Department of Transportation (DOT) took two interesting steps – moving forward with new technology for light vehicles and withdrawing a final rule from review by the Office of Management and Budget (OMB) and resubmitting it. OMB, for its part, did not provide grist for this mill – completing review of no economically significant rules. Continue Reading
Third Circuit Upholds Labor H-2B Regulations & Confuses Agency Rulemaking Jurisdiction
Posted in Agency Authority, Regulatory Process
The United States Court of Appeals for the Third Circuit recently upheld the Department of Labor (DOL) promulgation of regulations governing the calculation of the minimum wage a United States employer must offer to recruit non-agricultural foreign workers under the Department of Homeland Security (DHS) “H-2B” visa program in Louisiana Forestry Association v. Secretary United States Department of Labor. The decision fails to answer the core question: can an agency delegate rulemaking authority to another agency. The decision conceptually and potentially directly conflicts with the Eleventh Circuit decision in Bayou Lawn and Landscaping Services v. Secretary of Labor, and adds further confusion to a complicated inter-agency rulemaking jurisdiction problem. Continue Reading
Monday Morning Regulatory Review – 2/3/14: Volcker & Trust Preferred Securities; SOTU Contractor Minimum Wage; Battery Charger Efficiency; Safe Food Transport; and CDL Drug & Alcohol Clearinghouse
Posted in Agency Authority, Regulatory Process
This week in federal regulatory practice was highlighted by agency action rather than litigation, particularly the long-anticipated and delayed publication of the Volcker Rule and its first amendment, formally starting the clock for implementation and litigation. The most significant action in the Administration’s long-term goals was President (POTUS)’s announcement that he would require federal contractors to pay a higher minimum wage – and that decision requires regulations. The Office of Management and Budget (OMB) completed review of the Department of Energy (DOE) economically significant efficiency standards for the ubiquitous battery charger, and several economically significant proposed rules of interest, including the Food and Drug Administration (FDA) proposal for safe food transport, and the Department of Transportation (DOT), Federal Motor Carrier Safety Administration (FMCSA) proposal for a drug and alcohol testing results clearinghouse for commercial drivers. Continue Reading
D.C. Circuit Remands PHMSA Fuel Cell Rule for Adequate Explanation
Posted in Judicial Review & Remedies, Regulatory Process
The United States Court of Appeals for the District of Columbia Circuit today remanded a final rule that barred butane fuel cell cartridges from checked luggage in Lilliputian Systems, Inc. v. Pipeline and Hazardous Materials Safety Administration. At bottom, the Department of Transportation (DOT)’s Pipeline and Hazardous Materials Safety Administration (PHMSA) failed to explain the different treatment of butane fuel cell cartridges from other products containing the same class of hazardous material, such as aerosolized health and beauty products. Lilliputian Systems typifies a problem of agency rulemaking decisions without an adequate explanation in the rulemaking preamble and of judicial review of those inadequate explanations. Continue Reading
Monday Morning Regulatory Review – 1/27/14: SCOTUS Enjoins Obamacare Preventive Contraception Rule; NLRB Rescinds Vacated Rule; OMB Economically Significant Reviews; and Social Cost of Carbon & Crystalline Silica Extensions
Posted in Judicial Review & Remedies, Regulatory Process
The United States Supreme Court (SCOTUS) last Friday enjoined enforcement of the Department of Health and Human Services (HHS) regulations on preventive contraception minimum regulations under Obamacare against several non-profit organizations in a procedural order that may be a guidepost for future litigation. Regulatory activity of interest included the National Labor Relations Board (NLRB) best practice of removing a vacated rule from the Code of Federal Regulations (CFR). Agencies submitted two critical final energy / emissions rules to the Office of Management and Budget (OMB) for review, while OMB completed one such review. OMB extended the comment period on its technical Social Cost of Carbon document and the Occupational Safety and Health Administration (OSHA) extended the comment period on its crystalline silica proposed rule. Agency substantive regulatory action at the public level appears to have chilled somewhat, while notices and other routine management regulations continued apace. Continue Reading