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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 10/20/14: Management by Executive Order; Gainful Employment Meetings; OMB Meetings; & Record Completion and Privilege

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

A holiday-shortened workweek and a pre-midterm election pause provide the opportunity to review a few miscellaneous topics.  President Obama (POTUS) issued a new Executive Order seeking to improve the security of federal government credit and debit cards, and improve the anti-fraud environment, but with limited effect.  The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) continued an extensive series of meetings with private parties on the Department of Education (ED)’s attempts to limit government student loan defaults in for-profit colleges and universities, and some key points about OMB meetings are worth reiterating.  Finally, the United States District Court for the District of Columbia granted in part and denied in part motions to supplement an agency administrative record, posing again a problem of when an agency will be called to account. Continue Reading

Monday Morning Regulatory Review – 10/13/14: Hobby Lobby Implementation; Jumping the Gun on a Final Rule; Extended Waters of the United States; and EPA Rules to Watch

Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

Two highly technical cases from the past week illustrate the complexity of invoking federal jurisdiction to challenge administrative action:  one, a failure to sufficiently allege that the harm was imposed by the governmental action and is redressable by the court, and the other an attempt to enforce an interpretation of potentially conflicting statues that would bar the administrative action before it becomes final.   The bulk of regulatory interest focused on Environmental Protection Agency (EPA) regulatory process, including a further extension of the comment period for the controversial definition of “waters of the United States.”  EPA also submitted two new proposals for Office of Management and Budget (OMB) review dealing with nanotechnologies and the controversial ground level ozone standards. Continue Reading

Monday Morning Regulatory Review – 10/6/14: Failing Grades Episode 4; Oklahoma & Obamacare Intercircuit Conflict; and Contractor Minimum Wage

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

Two district court decisions from last week warrant some comment while agencies added more fodder for the judicial review of rules.  The United States District Court for the District of Columbia again revisited the Administration’s failing grades in regulating for-profit colleges, and their scores have not improved, but the court failed to incentivize compliance with the Administrative Procedure Act (APA).  The district court for the Eastern District of Oklahoma added its view – negative – to the growing conflict over whether the Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies could be granted to individuals in states that did not create their own health care exchanges.  In the agencies, the Department of Labor (DOL) finalized its minimum wage rules for federal contractors, the efficacy of which is still in doubt. Continue Reading

Monday Morning Regulatory Review – 9/29/14: SCOTUS 2014 Term Preview

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

Rather than looking back to last week, this edition of the Monday Morning Regulatory Review focuses on the United States Supreme Court (SCOTUS) return to the conference room this morning, and to the bench on October 6, after a three-month flextime / flexplace schedule.  SCOTUS will take up a number of critical regulatory and administrative law issues in the weeks and months to come.  Although the individual cases rest on specific statutes, regulations, and contentions, broader regulatory and administrative law implications are the subject of concern here – implications that affect many agencies and regulated parties in ways that may not be found in the briefs or decision of the specific cases. Continue Reading

Monday Morning Regulatory Review – 9/22/14: CFTC Extraterritorial Application; Food Safety Rules; & OMB Reviews

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

Summer is clearly over and the regulatory machinery is back up to full speed.  The United States District Court for the District of Columbia remanded without vacatur more than half a dozen Commodities Futures Trading Commission (CFTC) rules for failure to adequately explain the costs and benefits of extraterritorial application of those rules.  Within the Executive Branch, the Office of Management and Budget (OMB) completed review, and the Department of Health and Human Services (HHS)’s Food and Drug Administration (FDA) released four supplemental proposed Food Safety Modernization Act (FSMA) rules for publication.  OMB also completed review of several additional economically or legal / policy significant rule reviews that deserve note. Continue Reading

Monday Morning Regulatory Review – 9/15/14: SORNA Good Cause Conflict; H-2B Limbo; & FCC Net Neutrality / Fast Lane Comment Avalanche

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

Last week, the United States Court of Appeals for the Eighth Circuit joined the intercircuit conflict over the Administrative Procedure Act (APA) validity of the Attorney General’s regulations applying the Sex Offender Registration and Notification Act (SORNA) to offenses committed prior to SORNA’s effective date.  The United States District Court for the Eastern District of Pennsylvania continued the confusion over the Department of Labor (DOL)’s authority to regulate H-2B visas.  In the agencies, the Federal Communications Commission (FCC) was pummeled with inconsequential public comments on its net neutrality / fast lane proposed rule – with no substantive effect. Continue Reading

Monday Morning Regulatory Review – 9/8/14: King / Halbig Delayed & OMB Reviews

Posted in Executive - OMB Review, Judicial Review & Remedies

Welcome back from summer vacation and a brief hiatus for this column.  Even with the Labor Day weekend out of the way, regulatory actions continue at a slow pace.  Of note, two procedural orders delayed the resolution of the intercircuit conflict over whether the Internal Revenue Service (IRS) may permit tax subsidies in States where the federal government operates a health exchange under Obamacare.  From the administrative side, the Office of Management and Budget (OMB) continued a slow march of policy and legal significant regulatory reviews. Continue Reading

Monday Morning Regulatory Review – 8/25/14: Poultry Inspection; HAZMAT Harmonization; & OMB Reviews

Posted in Executive - OMB Review, Regulatory Process

The Administration’s release last Friday of new Obamacare contraceptive mandate rules in light of recent adverse United States Supreme Court (SCOTUS) decisions overshadowed other agency actions last week, but some are noteworthy.  The Department of Agriculture (DOA) published controversial poultry inspection regulations and the Department of Transportation (DOT) proposed harmonization of hazardous materials regulations with certain international standards through incorporation by reference (IBR).  IBR is notable in its own right because the National Archives and Records Administration (NARA) submitted its final IBR revisions to the Office of Management and Budget (OMB) for interagency and executive review, while the Department of Homeland Security (DHS) submitted a rollback of airline fees and the Environmental Protection Agency (EPA) submitted its overdue Renewable Fuel Standards.  The widely reported increased tempo of regulatory activity has not yet materialized in a tangible form, but intangible indications suggest that the Fall will be very active. Continue Reading

Obamacare Contraceptive Mandate Regulations Respond to Hobby Lobby and Wheaton College: A Preliminary Review

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

The Administration released new and expected revisions and proposals to Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations to address exemption from the contraceptives mandate for non-profit and for-profit organizations in light of recent adverse United States Supreme Court (SCOTUS) decisions.  One interim final rule (IFR) addresses non-profits related to religious institutions, while a proposed rule addresses privately held for-profits whose owners have religious objections to the contraceptive mandate.  A preliminary review suggests that the Administration has set an awkward path forward and probably ensured another round of more refined litigation. Continue Reading

Monday Morning Regulatory Review – 8/18/14: FERC Regional Electricity Grid Planning; EPA Pollution Permit Applications; GAO Critiques EPA Cost Analysis; and OMB Snapshot

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

The summer doldrums advanced further last week.  Several different actions by the Courts of Appeals warrant mention this morning, including denial of multiple petitions for review of a Federal Energy Regulatory Commission (FERC) rule that manages the development of the nationwide electricity grid and a remand of an Environmental Protection Agency (EPA) pollution permit waiver as violating the Clean Air Act (CAA).  Additionally, the Government Accountability Office (GAO) critiqued EPA’s economic and impact analyses, a point of litigation contention, illuminating a few weaknesses that may appear in court.  And lest we forget that the Office of Management and Budget (OMB) continues to review significant regulatory actions, a snapshot of the week. Continue Reading