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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

5th Circuit Continues Temporary Bar of Immigration Executive Action

Posted in Agency Authority, Judicial Review & Remedies

Fifth-Circuit-SealThe United States Court of Appeals for the Fifth Circuit, in an extensive but divided panel opinion, today denied the Obama Administration’s request to stay a preliminary injunction of its immigration executive action to grant work authorization to several million aliens. Texas and 25 other states challenged the specific executive action claiming (among other things) that the government was required to, but did not, promulgate a substantive rule under the Administrative Procedure Act (APA). The district court determined that Texas was likely to succeed on this procedural APA claim and temporarily enjoined implementation of the program pending final resolution of the merits. The government appealed the preliminary injunction and moved for a stay pending resolution of the merits of that appeal. Finding that the government was unlikely to succeed on the merits of the appeal from the preliminary injunction, a divided panel of the Fifth Circuit denied the motion for a stay and a request to narrow the scope of the injunction. Continue Reading

Tuesday Morning Regulatory Review – 5/26/15: Tailoring Snakes; COOL Trade; Spring 2015 Unified Agenda; & Approaching WOTUS Storm

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

iwo jima at dawn govWelcome back from the Memorial Day holiday with a slightly delayed review of last week’s highlights in regulatory practice. As expected, the United States District Court for the District of Columbia entered a tailored preliminary injunction of the Department of the Interior (DOI)’s regulation of interstate transfers of certain harmful snakes. The World Trade Organization may have set in motion further Country of Original Labeling (COOL) regulatory efforts by finding that the regulations violated United States trade obligations. The Office of Management and Budget (OMB) released the Administration’s current regulatory planning – the 2015 Spring Unified Agenda. One rule that may meet its planned release could be the controversial Environmental Protection Agency (EPA) definition of “Waters of the United States.” Continue Reading

Monday Morning Regulatory Review – 5/18/15: Snakes in the Interior; Traditional Waters of the United States; Retirement Account Fiduciary Standards; & Upcoming Discussions of Interest

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

dawn over the capitol aocA most interesting opinion from the United States District Court for the District of Columbia preliminarily enjoined the Department of the Interior (DOI) from enforcing regulations that prohibited the interstate transportation of two species of reptiles found to be “injurious” under the Lacey Act. United States Court of Appeals for the District of Columbia Circuit last week ended one of the long-running preliminaries to the hotly contested definition of waters of the United States on a less dramatic issue of standing. The Department of Labor (DOL) indicated that it will extend the public comment period on its controversial proposed rule to impose fiduciary requirements on retirement account advisors. And finally, several near-term discussions focusing on recurrent and important regulatory issues warrant consideration. Continue Reading

Monday Morning Regulatory Review – 5/11/15: Wholesale & Retail Electricity; FLSA Overtime Regulations; and Renewable Fuel Standards

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

dawn over the capitol aocThree different and recurring intersections of regulations and litigation highlight the past week. The United States Supreme Court (SCOTUS) added another case to the oral argument calendar with potentially significant regulatory implications. The Department of Labor (DOL) finally submitted a proposal to revise the executive and administrative exemptions under the Fair Labor Standards Act (FLSA) for executive and interagency review. And the Environmental Protection Agency (EPA) moved forward with overdue and litigated revision to the Renewable Fuels Standard (RFS). Continue Reading

Monday Morning Regulatory Review – 5/4/15: SCOTUS Statutory Standing; Emergency Generators; & H-2B Regulations Again

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

dawn over the capitol aocThree unrelated highlights from last week in regulatory practice: The United States Supreme Court (SCOTUS) agreed last Monday to consider a case of private causes of action that has potentially stunning constitutional and regulatory implications. The United States Court of Appeals for the District of Columbia Circuit “reversed” an Environmental Protection Agency (EPA) regulation that permitted greater use of emergency generators. And the Department of Homeland Security (DHS) and Department of Labor (DOL) finally published an interim final rule and a final rule to respond to court orders vacating DOL regulations of low-skilled alien worker visa (H-2B) regulations. Continue Reading

Monday Morning Regulatory Review – 4/27/15: Open Internet Challenges; Fiduciary Duty Comments Request; & H-2B Temporary Worker Regulations Authority

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

dawn over the capitol aocThree short updates to last week’s Monday Morning Regulatory Review: New challenges to the Federal Communications Commission (FCC) open internet rule will likely cause another judicial lottery, and one of the petitions for review has a twist. Several groups of financial professionals asked the Department of Labor (DOL) to extend the comment period for the newly published proposed definition of fiduciary responsibilities of financial advisors for retirement accounts, less than a week into the 75 day comment period. And the Office of Management and Budget (OMB) moved quickly to complete review of final rules submitted by DOL to attempt to resolve the authority to regulate the temporary alien non-agricultural employment, which may already be overdue for publication. Continue Reading

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