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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 7/25/16: Immigration Rule or Non-Rule Rehearing; Contraceptives Information Request & Zubik Review; Distance Learning Accreditation & Payday Loans

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocInter-convention, highlights from regulatory practice might be sparse, but both litigation and regulation provide some spice.  The Administration filed a petition for rehearing in the immigration policy case and a further response to the remand of a dozen decisions on the Administration’s contraceptive mandate application to religious organizations.  Two rules with regulatory process implications were published last week or today – one responding to a logical outgrowth fault and the other illustrating the value and limitations of advance release. Continue Reading

SCOTUS Review – 2015 Term Ramifications for Regulatory Practice

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

USSC SealThe United States Supreme Court (SCOTUS) declined or was unable to resolve several regulatory issues in the Term just ended, but its few substantive decisions set in motion significant changes in the regulatory process.  Three cases made key points:

  • Congress may not expand the scope of injury necessary to sue in federal court.
  • While agencies may define the finality of their processes, finality may also be attributed to them.
  • Agency process failure will result in judicial interpretation not deference to agency interpretation.

In a fourth case, SCOTUS said nothing and left the most profound regulatory practice issues for another day, another case, another Term. Continue Reading

Monday Morning Regulatory Review – 7/11/16: A Regulatory Litigation Snapshot

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

dawn over the capitol aocThe shortened holiday week generated few regulatory events and no real highlights, creating an opportunity to survey the major regulatory litigation as this Administration enters its final six months.  This post highlights major litigation over the Administration’s priorities – particularly those stayed or preliminarily enjoined, and those at risk.  The extent of this litigation risk is extraordinary – a level not seen previously – and may suggest patterns of lax regulatory practice or heightened judicial skepticism.   Each challenged regulations could be an element for choices by the American people about their new government and will present choices for the new Administration. Continue Reading

Monday Morning Regulatory Review – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Regulatory Flexibility & Small Business

Capitol Flag AOCIndependence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and a guidance document that, at a minimum, appears to be a final agency action and requires further review in a lower court.  Expect more proposed and final rules in the near future as the Administration attempts to clear policy into regulatory form before its end. Continue Reading

Monday Morning Regulatory Review – 6/27/16: Drone Regulations Finally Fly; Hydraulic Fracking Rule Drilled; First Persuader Decision Unpersuaded; Compost Guidance Composted & Civil Monetary Penalties Adjusted

Posted in Agency Authority, Judicial Process, Regulatory Process

dawn over the capitol aocWith the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice.  In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively vacated agency guidance that was inconsistent with extant agency regulations.  In broad policy implementation, many agencies are adjusting civil monetary penalties in a spate of interim final rules mandated by statute. Continue Reading

SCOTUS Affirms Injunction of Obama Administration Immigration Policy with Silence

Posted in Judicial Process, Regulatory Process

USSC SealThe United States Supreme Court (SCOTUS) in United States v. Texas today affirmed the United States Court of Appeals for the Firth Circuit decision by an equally divided Court (4 – 4):  the preliminary injunction continues to bar the Obama Administration’s deferred action and employment authorization program for aliens.  The Fifth Circuit decision will have no precedential value outside the Fifth Circuit, but the preliminary injunction was nationwide in scope and, therefore, the Obama Administration may not take action to implement its employment authorization program under its deferred action decision. Continue Reading

SCOTUS: Agency Must Explain Changed Position or Lose Chevron Deference

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

USSC SealIn a decision turning on black-letter law, the United States Supreme Court (SCOTUS) reiterated Administrative Procedure Act (APA) precedent that an agency must explain its change in position and remanded Encino Motorcars, LLC v. Navarro for further proceedings in the court below.  SCOTUS found that the Department of Labor (DOL) failed to adequately explain its 2011 regulations (reversing prior direction) and, therefore, those regulations were not entitled to Chevron deference. Continue Reading

Monday Morning Regulatory Review – 6/20/16: Net Neutrality Upheld; Student Loan De-Arbitration & Removing Affirmative Defenses

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocA court decision upholding the controversial net neutrality rule dominated regulatory practice last week but only for a dearth of other news.  Two proposed rules deserve attention:  another proposal to limit arbitration and class action waiver clauses and a proposal to remove affirmative defenses in certain environmental litigation. Continue Reading

Monday Morning Regulatory Review – 6/13/16: Records Inspection as Unreasonable Search; Union Election Rule Litigation Demise; Statutes or Regulation Compliance Discipline; Regulation-Sensitive Incentive Based Compensation; Commodity Derivative Swaps & Regulatory Flexibility Plans

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocEsoterica seem to dominate regulatory practice last week.  Structure and compliance issues dominated regulatory litigation highlights with the demise of an inspection regulation for violation of constitutional standards, the affirmance of another rule against facial attack rather than as applied attack, and discipline of an official for refusal to violate a regulation.  In agency proposals, a consortium of agencies acting jointly and a single agency published supplemental proposed rules in the more arcane reaches of finance.  Finally, a host of agencies published their Regulatory Flexibility Act (RFA) agendas last Thursday. Continue Reading

Monday Morning Regulatory Review – 6/6/16: Warning Letter Finality; Untrusted Fiduciary Rule Tested; Great Lakes Pilotage Foundering; Oyster Illness Hazard Petition Grounding & Payday Loans Proposal Interest

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocThe United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation.  In two different district courts, expected litigation challenged another Department of Labor (DOL) assertion – the complex of rules defining fiduciary under the Employee Retirement Income Security Act (ERISA).  A complaint, and highly unusual, challenged the annual determination of Great Lakes pilotage rates, and the new methodology used for this small sector.  A complaint challenging an agency’s failure to respond to a petition for rulemaking may soon raise issues of standing particularity and concreteness within statutory requirements of the Administrative Procedure Act (APA).  On the regulatory docket, the Consumer Financial Protection Bureau (CFPB) released its payday loan proposal that will generate high interest. Continue Reading