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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Tuesday Morning Regulatory Review – 1/3/17: Statutes of Limitation & Regulations; Finality, Power & Constitutionality; Another Sex & Gender Preliminary Injunction; Streaming Suit; Effective Date Delay Dance; Inaction as Action; Energy Efficiency Standards Efficiencies; and Irrelevant and Relevant Facts

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

dawn over the capitol aocWelcome back for the fifth anniversary post of the Federal Regulations Advisor (No. 393) and a new year of poking the Federal regulatory bear (and sometimes praising it).  Among highlights from regulatory practice in the past few weeks are a recurring regulatory misinterpretation of a statute of limitations, a new intercircuit conflict over appointments of inferior officers, and another injunction against implementation of a regulation that expanded sex to include gender.  In one instance, an agency entered the controversial arena of stream protection and was immediately sued.  Agencies took exception to delayed effective dates to avoid review by a new Administration and withdrew model rules to released drafts avoiding the regulatory process, but also continued a practice of advance release and delayed publication for technical corrections.  Finally, some operative facts in regulatory practice are irrelevant and others are relevant – a distinction needs to be made. Continue Reading

Monday Morning Regulatory Review – 12/19/16: Continuing Reporting Obligations; Litigation Risk & Process Speed; FAR Injunction Notice, Land Use Planning and Plans & a Programming Note

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

dawn over the capitol aocWith the 30-day deadline for making rules effecting during the current Administration fast approaching (Wednesday), agencies took a number of actions that raise concerns – or at least perceived concerns.  One final rule challenges a court determination of the agency’s authority, while another agency took pains to adopt an interim rule on a not-very-controversial subject.  In the twilight of between regulation and litigation, the acquisition agencies provided an uncommon but effective example of how to notice a temporary judicial bar of the effect of certain provisions of a final rule, litigation commenced immediately on a hot button issue that will be resolved by the next Administration. Continue Reading

Monday Morning Regulatory Review – 12/12/16: Administration’s Litigation Twilight; Delay, Haste, Explanation & Air, Cell, Wi-Fi

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

dawn over the capitol aocThe twilight of an Administration brings out some haste to institutionalize policy through regulations and also complex litigating postures driven by policy and institutional concerns, reflected last week in several procedural motions and decisions.  Curiously, a final rule was promulgated to respond to a remand over a decade old, raising a fundamental question of timeliness.  Less curiously, an agency cleared for takeoff a substantial and likely volatile policy debate by proposing possible use of cell phones in flight. 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

Seal_Of_The_President_Of_The_United_States_Of_America.svgSigns 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 any Administration, and a more nuanced review suggests that some actions will stand the test of transition and time while others will not.  Some examples illustrate how the perspicacity of the President of the United States (POTUS)’s current Administration tests the perspicacity of the POTUS-elect’s incoming Administration. Continue Reading

Monday Morning Regulatory Review – 11/28/16: Overtime Increase Rule Enjoined; Buckyballs Rule Vacated; and Agency Demarche & Prepaid Cards

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

dawn over the capitol aocA short work week did not mean a lack of regulatory substance, something else to be thankful for.  In two significant decisions declaring final rules to be turkeys, a district court preliminarily enjoined an agency rule potentially effecting 4.2 million American wage earners, while a Court of Appeals decision vacated a rule that effectively prohibited an adult toy.  Agency authority and viability return to the fore this week as one agency challenged the demise of one of its significant political protections and asserted authority over an expansive and expensive line of financial products. Continue Reading

Monday Morning Regulatory Review – 11/21/16: Persuader Rule Set Aside; Nursing Home Arbitration Bar Enjoined; Executive Immigration Action Litigation Postponed; Agency Authority Retread & Final Regulatory Agenda

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

dawn over the capitol aocSeveral regulatory highlights from the last week illustrate the more forthright and subtle aspects of the transition from one Administration to the next.  A judgment in one district court probably sounded the death knell for a major labor regulation while another district court enjoined a regulation barring arbitration clauses.  Judgment and discretion were displayed in one judgment to hold a losing cause in abeyance for the new Administration, while another agency pursued a losing agenda without regard to realities.  Finally, the Administration released its last Unified Agenda – one that presents more of a future decision tree than regulatory intentions. Continue Reading

Presidential Regulatory Transition: A Post-Election Monday Morning Review – 11/14/16

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

POTUS sealUnderstanding the regulatory significance of the 2016 Presidential election focuses on both the authority of the current President of the United States (POTUS) and the President-elect of the United States.  The current POTUS, quite naturally, will seek to institutionalize his legacy while the incoming POTUS will seek to undo his predecessor’s regulatory actions that are anathemic to his own policies and make an immediate imprint on the regulatory process.  A nuanced review illuminates options and issues often misunderstood. Continue Reading

Monday Morning Regulatory Review – 11/7/16: SCOTUS Grants New Regulatory Preemption Case

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

dawn over the capitol aocThe United States Supreme Court (SCOTUS) added another administrative law case to its argument docket on Friday, granting certiorari in Coventry Health Care of Missouri v. Nevils (SCOTUSblog case page), a case of whether deference is due a regulatory interpretation of a statute that preempts State law.  The issues present an opportunity for clarification of regulatory preemption, but the case might also fail on other terms. Continue Reading

Monday Morning Regulatory Review – 10/31/16: Sex, Identity, Statute, Regulation, and Guidance; Blacklist Blacklisted; Wellness Complaint & Education Borrowers Defenses

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

dawn over the capitol aocFour highlights in regulatory practice from the past week present diverse but overlapping issues.  The United States Supreme Court (SCOTUS) granted review in a case that may or may not have significant regulatory implications, but certainly contains drama.  Another Administration priority of enforcing its preferences through procurement contracts was enjoined, setting the stage for a difficult appeal.  At the very beginning of the regulatory litigation process, a new complaint poses a difficult question of agency reliance on statutory standards related to other programs.  And finally, the Administration adds yet another brick to the precarious wall against arbitration. Continue Reading

Monday Morning Regulatory Review – 10/24/16: Nondiscretionary Employment Analysis; Discretionary Dismissal Remand; Long-Term Care Arbitration & Immigration Fees, Budgets, and Policy

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

dawn over the capitol aocIn two very different cases, one district court found that an agency has a nondiscretionary duty to conduct detailed analysis under a statute in taking many different actions, while another district court found that an agency erred in dismissing an appeal because it misinterpreted its own regulations as mandatory when they were clearly discretionary.  An additional case was filed challenging another agency rule eschewing mandatory arbitration, but with several added twists.  And a new final rule raises the question again of how much discretion an agency possesses in setting fees for service recovery to align with social policy. Continue Reading