Header graphic for print
Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Category Archives: Agency Authority

Subscribe to Agency Authority RSS Feed

Monday Morning Regulatory Review – 4/25/16: Medicare Reimbursements; Medical Facility Fire Safety; Internet Neutrality Privacy; WOTUS on the Ohio River & Drone Review

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

This week’s highlights in regulatory practice seem to focus on periodic regulations from the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS).  CMS last week submitted an annual batch of Medicare financing regulations for publication this week, with at least one hidden response to a court.  Not far behind,… Continue Reading

Monday Morning Regulatory Review – 4/18/16: Immigration Injury Costs & Regulation; FLSA Exemption Definition; Contraceptive Accommodation Remedies; Post Hoc Appropriate and Necessary Notice; Respirable Silica Consolidated; CFPB Appointment & Ratification; and Petitions, Delay & Funding Bars

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

Springtime means the United States Supreme Court (SCOTUS) will be busy and they are not alone.  SCOTUS will hear argument in immigration policy and Fair Labor Standards Act (FLSA) regulatory cases this week, and may consider responses to SCOTUS’ remedies question in the conflict between a regulatory contraceptive mandate and statutory religious rights.  Other highlights… Continue Reading

Monday Morning Regulatory Review – 4/11/16: Corporate Inversions Ruled Out; Untrusted Fiduciary Rule; Sanitary Transport; Silica Suits & Agency Authority Constitutional Challenge

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

The Administration fully engaged in institutionalizing its policies through promulgated rules with the Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Food and Drug Administration (FDA) all publishing economically significant final rules this week.  Petitions for review challenged the Occupational Safety and Health Administration (OSHA)’s crystalline silica rule as expected.  In… Continue Reading

Monday Morning Regulatory Review – 3/28/16: SCOTUS on WOTUS Jurisdiction & Finality; Privilege & Persuader Agreements; and Respirable Crystalline Silica, Morbidity & Mortality Values

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

This week, the United States Supreme Court (SCOTUS) will hear argument over a thorny issue of finality when the determination imposes a draconian choice.  The Department of Labor (DOL) took center stage in the regulatory practice last week with the publication of two long anticipated final rules:  exposure limitations on one of the most common… Continue Reading

Monday Morning Regulatory Review – 3/21/16: SCOTUS Weighing Regulatory Accommodation; Another MATS Challenge; Overtime Laboring; Speculative Endangerment; & Removing Obsolescence

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

This week the United States Supreme Court (SCOTUS) will take up the latest edition of a significant statutory and regulatory conflict and SCOTUS may soon return to another substantial Administrative Procedure Act (APA) remand without vacatur case.  Far up the street, the Office of Management and Budget (OMB) began review of one of the more… Continue Reading

Monday Morning Regulatory Review — 3/14/16: Administration’s Unpublished Grade; OPT STEM ReRule; Joint Passport and Visa Emergencies & Aircraft Performance / Design

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

The Administration may have finally dispatched litigation over one of its more troubling proxy choices last week, while agencies responded to one recent potential and one ancient complete vacatur. On a positive note, a new proposal to replace control standards with performance standards deserves a look as a matter of principle if not for its… Continue Reading

Monday Morning Regulatory Review – 1/25/16: SCOTUS Takes on Immigration Executive Action; Clean Power Progresses; STEM Vacatur Delayed; Joint Employer Guidance; Programming Vacation

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

Washington shut down for the weekend, but the administrative process never sleeps. Prime from last week, the United States Supreme Court (SCOTUS) decided to hear a mishmash of immigration executive action questions, but may not decide them, while the United States Court of Appeals for the District of Columbia decided not to stay the Administration’s… Continue Reading

Monday Morning Regulatory Review – 1/18/16: SCOTUS Returns; Law Practice & Mortgage Relief Regulation; V2V Communications; and No Reginfo

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

The United States Supreme Court (SCOTUS) returned last week to open several new lines of inquiry that impact regulatory practice, but has not yet decided whether the hear the case of the year. At the trial level, a district court invalidated narrow regulations applicable to attorneys practicing law in one federalized realm. The Department of… Continue Reading

Monday Morning Regulatory Review – 1/11/16: Firearms Executive Action; IRS Withdrawal & Petition Petition Jurisdiction

Posted in Agency Authority, Judicial Process, Regulatory Process

The President of the United States (POTUS) dominated regulatory affairs last week by announcing firearms executive actions and the devil, as always, is in the details. Two other actions at least deserve a mention – the appropriate withdrawal of a contentious proposed rule that simply did not work and the dismissal of a complaint in… Continue Reading

Monday Morning Regulatory Review – 1/4/16: Regulatory Priorities in an Administration’s Final Year

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

The end of 2015 warranted a review of Congressional regulatory interventions and limitations, and the beginning of 2016 warrants a review of expectations for the coming (Presidential election) year – the final year of an Administration, a final chance to establish its regulatory legacy. Do not confuse this review with the Unified Agenda, a mere… Continue Reading

Monday Morning Regulatory Review – 12/28/15: A Regulatory Appropriation

Posted in Agency Authority, Legislation

This last column of the year takes a different approach to regulatory practice – a survey of some of the realities of Congressional “review” in the omnibus Consolidated Appropriations Act, 2016 (CAA16), signed into law December 18, 2015. This massive appropriation includes many different styles of Congressional oversight and intervention – from outright prohibition, to… Continue Reading

Monday Morning Regulatory Review – 12/7/15: Drone Registration Prospects: APA Petitions & A Sovereign Immunity Caution; and D.C. Circuit Argument Docket

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

The regulation of drones took a step forward last week, but that step may be very tentative. The interrelationship between general petitions for rulemaking and specific requirements of programmatic statutes was the focus of a district court dismissal, albeit a temporary one. In the United States Court of Appeals for the District of Columbia Circuit,… Continue Reading

Monday Morning Regulatory Review – 10/26/15: Clean Power Plan Published, EPA sued; And Ozone, too; TSA Mandamused on Body Scanners; Drone Registry Comments and Committee; & Labor Fiduciary Standards Interpretation

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

The Environmental Protection Agency (EPA) took center stage last week with the publication of the Clean Power Plan and the immediate litigation, but also with today’s publication of new ozone standards. Drawing less public attention, but equally important, a court demanded a schedule for long overdue airport screening regulations, a new advisory committee will consider… Continue Reading

Monday Morning Regulatory Review – 10/05/15: Fracking Rule Enjoined, Rule Withdrawal Judicial Review & Environmental Push

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

Environmental versions of administrative law issues dominate this week’s review of regulatory practice. In different district courts, a hydraulic fracturing rule was preliminarily enjoined pending final resolution of litigation, while another district court rejected a challenge to a rule withdrawal. The Environmental Protection Agency (EPA) contributed all of the rules of interest, including ozone standards,… Continue Reading

Monday Morning Regulatory Review – 9/7/15: Inter-agency Sub-delegation; WOTUS Injunction Limited & Mineral Payments Disclosure Reset

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

Regulatory highlights from the last week could fill pages, but only three receive attention here. First, another court of appeals weighed in against one agency subdelegating authority to another agency. Second, a following up on last week’s Waters of the United States preliminary injunction clarified application to the plaintiff States. And third, a district court… Continue Reading

Monday Morning Regulatory Review – 8/31/15: WOTUS Dammed, but How Much?

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

One highlight from the last week in regulatory practice overshadowed all else: confusion over fundamental administrative law and judicial review issues far beyond the confines of environmental law became evident in conflicting court decisions and the damming of the Environmental Protection Agency (EPA) and Army Corps of Engineers’ Clean Water Rule: Definition of Waters of… Continue Reading

Monday Morning Regulatory Review – 8/24/15: Conflict Minerals Demise; Home Health Care Reversal & Ministerial Removal

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

Three completely different and unrelated regulatory events in the past week deserve attention. A confluence of coincidences last Tuesday illustrated the First Amendment to the United States Constitution limits on symbolic rather than functional regulation. At the same time, changed facts and a changed industry justify a change in regulation. Finally, some rules are purely… Continue Reading

Monday Morning Regulatory Review – 7/20/15: More WOTUS Litigation; Contraceptive Coverage Uncovered & Employee / Independent Contractor Guidance

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

As Washington swelters, the regulatory docket remains relatively cool. Among last week’s highlights, litigants further challenged the regulatory jurisdictional definition of “Waters of the United States” and the current, now published final iteration of Obamacare contraceptive coverage rules generate more issues for potential litigation. On a less-than-regulatory front, new guidance on the distinction between employees… Continue Reading

Monday Morning Regulatory Review – 06/29/15: Fracking Rule Stayed; Gainful Employment Passing Grade; Waters of the United States; & ACUS Recommendation

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

Aside from the United States Supreme Court (SCOTUS)’s end of Term fireworks (covered previously and later today), a few highlights in regulatory practice from the last week included a stay of the Department of the Interior (DOI)’s hydraulic fracturing rule for federal and Indian lands and summary judgment in favor of the Department of Education… Continue Reading

SCOTUS Upholds Obamacare Subsidies at Chevron “0” – Cautions to Congress and the Agencies

Posted in Agency Authority, Judicial Review & Remedies

The United States Supreme Court (SCOTUS) today decided, in King v. Burwell, that the Patient Protection and Affordable Care Act (Obamacare or PPACA) permitted health care insurance premium tax subsidies for those enrolled in Federal Exchanges, not just State Exchanges. But there is a catch: SCOTUS found Obamacare so poorly written that ambiguity must be… Continue Reading

Monday Morning Regulatory Review – 6/22/15: Truck Emissions Standards & Orphan Drugs Revisited

Posted in Agency Authority, Regulatory Process

While we await the major decisions of the year by the United States Supreme Court (SCOTUS), the regulatory process was relatively quiet last week. The most significant activity focused on proposed emission standards for heavy duty trucks and a proposed rethinking of the orphan drug program, both of which deserve critical review for regulatory process… Continue Reading

Monday Morning Regulatory Review – 6/15/15: Final Rules, not Proposed; Open Internet Unstayed & Effective; Complete Agency Rulemaking Records; Aircraft Engine Endangerment; & Food Safety Returns

Posted in Agency Authority, Judicial Process, Regulatory Process

Federal courts reminded by agencies and litigators of lessons they should have previously learned last week, while agencies banked more fuel for future regulatory fires. The United States Court of Appeals for the District of Columbia Circuit reiterated that only final rules, not proposed rules, are subject to judicial review, and it also denied a… Continue Reading

Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation

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

This week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union… Continue Reading

Monday Morning Regulatory Review – 6/1/15: Final Waters of the United States; Proposed RFS Returns; SCOTUS in June; & Immigration Executive Action Non-Action

Posted in Agency Authority, Judicial Review & Remedies

This week’s review focuses on two significant environmental regulations by the Environmental Protection Agency (EPA): preliminary release of a final definition of “waters of the United States” and release of a proposed rule to establish multiple years of volume requirements for renewable fuels, at least in part in response to a proposed consent decree. On… Continue Reading