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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

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 Process

dawn over the capitol aocExecutive 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 Process

dawn over the capitol aocAll 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 Process

dawn over the capitol aocUnsurprising, 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 Process

dawn over the capitol aocIn 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 Process

dawn over the capitol aocRegulatory 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 Process

dawn over the capitol aocThe 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 Process

dawn over the capitol aocThe 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

Monday Morning Regulatory Review – 2/27/17: Transgender Student Bathroom Deguidance; Student Loan Cost Guidance Adherence; Immigration Enforcement Revisited; ORNA Good Cause Intercircuit Conflict & Implementation Executive Order

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aoc“Guidance” seems to have been the word for last week and that requires many words to explain.  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current Administration would adhere to a prior guidance document, an agency revisited enforcement guidance while avoiding prior judicially enjoined benefits guidance, and a court rejected a guidance document as sufficient notice and an opportunity for public comment under the Administrative Procedure Act (APA) (and an interim rule for insufficient good cause to avoid advance notice and comment).  The substance of all this guidance ranged from sex or gender discrimination to student loans to immigration enforcement to sex offender registration.  Finally, the President of the United States (POTUS) issued another Executive Order to guide agencies in the management of the regulatory process that does not seem to add much substance. Continue Reading

Monday Morning Regulatory Review – 2/20/17: Delay Challenge; Withdrawal Challenge; First Disapprovals Complete with More to Come & Stability Struggles in a New Regulatory Docket

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

dawn over the capitol aocTwo cases that challenge the effect of a new Administration’s moratorium on rules pending review by new appointees deserve some attention this week – one challenges a delay of effective date while the other challenges a withdrawal from public inspection prior to publication.  The march of regulatory  disapprovals continued to build with the first two completions and many more clearing one or the second House of Congress.  The regulatory machine itself is also showing signs of life as an agency seeks to provide some stability amid growing concern about the repeal of the underlying statute. Continue Reading

Monday Morning Regulatory Review – 2/13/17: Fiduciary Reconsideration; Executive Order Litigation; Regulatory Deconstruction & Executive and Interagency Review

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocRelative quietude on the surface of regulatory practice belies shifting tides.  A challenge to one major rule from the prior Administration failed, but a new rule is being reviewed to delay the existing rule while a new challenge raises a host of old issues applied to a new Administration.  The First Branch, on the other hand, continues to prepare joint resolutions of disapproval of the past Administration’s regulations.  And the new Administration has begun to push out its first economically significant proposed rule. Continue Reading