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Category Archives: Executive – OMB Review

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Monday Morning Regulatory Review – 5/8/17: Appropriations Impact on Regulations; Pending Disapproval; Legislation Repealing Regulation; WOTUS Reconsideration; Contraceptive Mandate Reconsideration; & Compliance Extension Good Cause

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

Regulatory practice last week presented a number of different Congressional interventions – from the complexity of a Consolidated Appropriation for the remainder of the fiscal year, to disapproval of a regulation under the Congressional Review Act (CRA), to a direct legislative vitiation of a final rule.  The Administration took two different steps toward reconsideration of… Continue Reading

Monday Morning Regulatory Review – 5/1/17: Clean Power Plan & Mercury Holds; Litigation Choice & Appropriation Limitation; and Complicated Executive and Interagency Reviews

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

Litigation over two more major rules was put on hold last week, leaving little actual litigation over past Administration rules proceeding – with small exceptions that may be short lived.  At the same time, one court of appeals recognized the reality of appropriations effectively limiting agency discretion – particularly when court orders have consumed limited… Continue Reading

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

Executive 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… 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

In 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… Continue Reading

Monday Morning Regulatory Transition Review – 12/5/16: Healthcare Funding Responses; Hardrock Mining Liabilities; Mid-Term CAFE; Last Education Regulations Tango & Banning the Personnel Box

Posted in Executive - OMB Review, Regulatory Process

Signs of increased speed in the Obama Administration’s quest to institutionalize its policies became apparent with the approval and publication of several economically significant / major rules, even more lesser rules, and even a proposed adjudication.  Much publicity has suggested a gaming of the system, but this is a natural result of the end of… Continue Reading

Monday Morning Regulatory Review – 5/30/16: Agency Delays and Judicial Remands; Gender Guidelines Complaint; Fiduciary Rule Joint Disapproval Disapproval; Education Accountability Accountability & Fueling Renewable Fuels

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

The long-running saga of the Federal Communications Commission (FCC) attempts to provide diversity in the broadcast industry pushed forward by a court last week.  Another court, however, faces the daunting task of sorting out whether a high-profile “Dear Colleague” “guidance” letter actually constitutes a rule that the agency must promulgate through Administrative Procedure Act (APA)… Continue Reading

Monday Morning Regulatory Review – 5/23/16: Clean Power En Banc; FLSA Overtime & Exemptions; Food Labeling; E-Cigarettes Baggage & Unified Agenda

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

More surprises after Spokeo and Zubik leavened last week’s regulatory practice, including an order by the United States Court of Appeals for the District of Columbia Circuit to hold en banc oral argument on the many challenges to the Administration’s environmental signature Clean Power Plan.  Major economically significant final rules to hit the street last… Continue Reading

Monday Morning Regulatory Review – 5/16/16: Deeming Rule & Litigation; Safety and Health Electronic Recordkeeping; Reconstructed or Modified Methane; Transgender Accommodations Guidance; & Conflicting Disability Compliance

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Process, Regulatory Flexibility & Small Business, Regulatory Process

Highlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions.  The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued.  A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive… Continue Reading

Monday Morning Regulatory Review – 5/2/16: Amtrak’s Regulatory Derailment; Blowout Prevention; Dodd-Frank Long Cleanup; State and Local Internet Nondiscrimination & Reginfo Missing Again

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

Highlights in regulatory practice last week included an arcane railroad timetable management train wreck may have complicated the authority of a number of different government-related organizations.  The Department of the Interior (DOI) finally published its major response to the Deepwater Horizon, but with risks.  Less risky, though not with élan or elegance, the Consumer Financial… Continue Reading

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 – 4/4/16: SCOTUS Seeks Contraceptive Alternatives; Religious Discrimination Regulations; Persuader Suits & Retirement Fiduciary Duties Debut

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

The United States Supreme Court (SCOTUS) rarely orders post-argument briefing, particularly on a discrete but lopsided question, but it did so last week on an issue of agency compliance with specific statutory freedom of religion requirements.  Several agencies, also last week, adopted “regulations” that further express grant administration policy for religiously affiliated non-profits.  Of the… 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 – 3/7/16: Clean Water Rule Complicated; MATS Stay Rejected; Airport Screening Legalized; OPT STEM Revision to Avoid Vacatur; COOL Handful of Nothin’ & De-Vaporizing Airplanes

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

Legal minutiae often drives the greatest of issues and last week proves that point with a petition for rehearing en banc over jurisdiction and the denial of a stay. Logistically, compliance with detailed court orders can prove a challenge for agencies, exhibited by action on two judicially-required rules. In addition, even the nondiscretionary rulemaking and… Continue Reading

Monday Morning Regulatory Review – 2/22/16: Drone Litigation; COOL Removal & Passenger Screening

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

A holiday-shortened week in regulatory practice found new challenges to drone regulations highlighting some of the peculiarities of regulations attempting to catch up with reality. The demise of authority for country of origin labeling regulations caused its originating agency to submit a new rule for interagency and executive review. Completing review of passenger screening rules… 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 – 11/30/15: Immigration Executive Action Review; Airport Body Scanners & Drone Registration Recommendations

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

Thanksgiving week is traditionally a slow government period, but a few timing tidbits deserve a nod. Immigration executive action remains a hot topic, even if only timing of when a decision on whether to review might occur. Timing of Department of Homeland Security (DHS) regulations managing whole body scanners at airports remains a problem, but… Continue Reading

Monday Morning Regulatory Review – 11/16/15: Food Safety Rules Up; Energy Efficiency Removal; Conflict Minerals Review Denial; & WOTUS Forward

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

The most significant agency action in regulatory practice last week may have been the release of three long-delayed Food Safety Modernization Act (FSMA) final rules. Courts took a number of small steps toward resolving challenges to Administration priority regulations, but no particular signal from these actions appears evident, except for the affirmance of the preliminary… Continue Reading

Monday Morning Regulatory Review 9/28/15: Two Midnight Rule Remand; Final Rules Respond & Proposed Rules Review

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

Judicial vacaturs and remands, and agency responses to them, dominated the past week in regulatory practice. In a new case, a court found that the balancing of equities warranted only a remand for notice and comment rulemaking. Two final rules respond to a prior vacatur and impact present litigation. In addition, two agencies respond to… Continue Reading

Tuesday Morning Regulatory Review – 5/26/15: Tailoring Snakes; COOL Trade; Spring 2015 Unified Agenda; & Approaching WOTUS Storm

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

Welcome back from the Memorial Day holiday with a slightly delayed review of last week’s highlights in regulatory practice. As expected, the United States District Court for the District of Columbia entered a tailored preliminary injunction of the Department of the Interior (DOI)’s regulation of interstate transfers of certain harmful snakes. The World Trade Organization… Continue Reading

Monday Morning Regulatory Review – 5/11/15: Wholesale & Retail Electricity; FLSA Overtime Regulations; and Renewable Fuel Standards

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

Three different and recurring intersections of regulations and litigation highlight the past week. The United States Supreme Court (SCOTUS) added another case to the oral argument calendar with potentially significant regulatory implications. The Department of Labor (DOL) finally submitted a proposal to revise the executive and administrative exemptions under the Fair Labor Standards Act (FLSA)… Continue Reading

Monday Morning Regulatory Review – 4/27/15: Open Internet Challenges; Fiduciary Duty Comments Request; & H-2B Temporary Worker Regulations Authority

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

Three short updates to last week’s Monday Morning Regulatory Review: New challenges to the Federal Communications Commission (FCC) open internet rule will likely cause another judicial lottery, and one of the petitions for review has a twist. Several groups of financial professionals asked the Department of Labor (DOL) to extend the comment period for the… Continue Reading

Monday Morning Regulatory Review – 4/20/15: Retirement Fiduciary Definition; H-2B Authority Redux; Open Neutral Utility Internet Review; & Contraceptive Mandate

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

A hodgepodge of highlights from regulatory practice in the past week. The Department of Labor (DOL) today publishes its long-awaited and controversial proposed fiduciary duties rule for public comment. Slightly further down a different rocky road, DOL last week submitted two final rules to the Office of Management and Budget (OMB) that may represent an… Continue Reading

Monday Morning Regulatory Review – 4/6/15: Cyber-Threat Executive Order; NLRB Elections Rule; Drones & Privacy; and Confined Spaces in Construction

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

Issues on the periphery of regulatory practice highlighted the last week. The President of the United States (POTUS) unleashed financial regulation resources against cyber-threats by applying regulations and enforcement processes that have historically been used to combat foreign regimes, terrorists, international narcotics traffickers, and the proliferation of weapons of mass destruction. On the other hand,… Continue Reading

Monday Morning Regulatory Review – 3/23/15: White House Transparency Regulations; Federal Fleet Pollution; Federal Fracking; & H-2B Vacatur & Emergency Regulations

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

Prioritizing last week’s interesting regulatory affairs proves a little difficult because the affairs are so diverse, so this post may seem random. The White House’s administrative side removed regulations in a Federal Register final rule, perhaps for the right reason, but perhaps in the wrong way. The President of the United States (POTUS) also issued… Continue Reading