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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monthly Archives: March 2012

Clear Statutes & Unforeseen Circumstances: The Danger of Overreach

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Legislation

The United States District Court for the District of Columbia has invalidated the Federal Election Commission (FEC) electioneering contributor disclosure limitations, or campaign donor advertising, regulations.  The court found that statutory rulemaking delegation did not authorize the FEC to promulgate rules to respond to changes occasioned by Supreme Court decisions that parts of the statute… Continue Reading

New OMB Guidance on “Cumulative Regulatory Burden”

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

The Administration took another small step in the debate on the effect of regulations on small business and startups with new policy guidance.  OMB / OIRA Administrator Cass Sunstein issued a Memorandum for the Heads of Executive Departments and Agencies advising that they “should take active steps to take account of the cumulative effects of… Continue Reading

Be Sued & Settle – Agencies Can’t Avoid Administrative Law

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

The practice of suing and (immediately) settling litigation does not override the requirements of the Administrative Procedure Act (APA), the Regulatory Flexibility Act (RFA), and other statutory requirements, but it may limit the Administration’s discretion to review regulations under Executive Orders 12866 and 13653.  Defenders of Wildlife v. Jackson illustrates this practice’s lack of transparency… Continue Reading

SBA Advocacy Releases New Database Tool for Regulatory Review

Posted in Regulatory Flexibility & Small Business, Regulatory Process

The SBA Office of Advocacy released a new document that may assist business (small and large), agencies, and others in evaluating the efficacy of regulations.  Data on small business (or entities) is scattered; SBA has published a short list (with links) of government and private databases to simplify access to common data and ease review… Continue Reading

Petitioning for Rulemaking: As Slippery as Mercury (or Thimerosal)

Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory Process

Petitioning for rulemaking may not be judicially reviewable unless the petitioner takes great care in drafting their petition.  I was reminded of this core issue by the D.C. Circuit’s decision in Coalition for Mercury-Free Drugs, Inc. v. Sebelius, where plaintiffs petitioned and then sued the FDA to remove mercury (or thimerosal) from vaccines.  At bottom,… Continue Reading

NLRB Posting Rule Enforcement Provisions Struck Down

Posted in Judicial Review & Remedies

The U.S. District Court in D.C. (Judge Jackson) invalidated provisions of the NLRB’s “posting rule” that (1) made an employer’s failure to display NLRB-provided posters to be an unfair labor practice, and (2) would toll the statute of limitations in unfair labor practice actions against employers who have failed to display the posters.  These provisions… Continue Reading

Management by Temporary Rule Evading Judicial Review

Posted in Judicial Review & Remedies, Regulatory Process

A recent Tenth Circuit Court of Appeals decision highlights a significant timing problem:  when an agency issues a “temporary rule” and the rule expires during judicial review, what is a court to do?  In Wyoming v. Salazar, the court reasoned that it could decide certain substantive issues, but not certain procedural issues, because the procedural… Continue Reading