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Category Archives: Regulatory Flexibility & Small Business

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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

In 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… Continue Reading

Monday Morning Regulatory Review – 8/15/16: Energy, Coolers & Carbon, and Crude Oil Trains Time

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

A summer lull in regulatory practice provides two significant actions are worth noting.  The first major challenge to the Administration’s theoretical Social Cost of Carbon (SCC) came up short – as did a bevy of other challenges in a court of appeals.  At the other end of the procedural spectrum, an agency publishes today a… Continue Reading

Monday Morning Regulatory Review – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Regulatory Flexibility & Small Business

Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading

Monday Morning Regulatory Review – 6/20/16: Net Neutrality Upheld; Student Loan De-Arbitration & Removing Affirmative Defenses

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

A court decision upholding the controversial net neutrality rule dominated regulatory practice last week but only for a dearth of other news.  Two proposed rules deserve attention:  another proposal to limit arbitration and class action waiver clauses and a proposal to remove affirmative defenses in certain environmental litigation.

Monday Morning Regulatory Review – 6/13/16: Records Inspection as Unreasonable Search; Union Election Rule Litigation Demise; Statutes or Regulation Compliance Discipline; Regulation-Sensitive Incentive Based Compensation; Commodity Derivative Swaps & Regulatory Flexibility Plans

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

Esoterica seem to dominate regulatory practice last week.  Structure and compliance issues dominated regulatory litigation highlights with the demise of an inspection regulation for violation of constitutional standards, the affirmance of another rule against facial attack rather than as applied attack, and discipline of an official for refusal to violate a regulation.  In agency proposals,… Continue Reading

Monday Morning Regulatory Review – 6/6/16: Warning Letter Finality; Untrusted Fiduciary Rule Tested; Great Lakes Pilotage Foundering; Oyster Illness Hazard Petition Grounding & Payday Loans Proposal Interest

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

The United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation.  In two different district courts, expected litigation challenged another Department of Labor (DOL)… 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 – 5/16/16: 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 – 2/8/16: Petitions for Clean Power Stay; Rural Hospitals Shifts; Superfund Insurance; Size Matters More & Pay Disclosure

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

Regulatory practice litigation highlights over the past two weeks include the latest round of applications to stay the Administration’s Clean Power Plan, another problematic rework of Medicare rules for hospitals, and a consent decree to propose superfund insurance 30 years after authorization. On the rulemaking front, the Small Business Administration (SBA) completed critical size standards… Continue Reading

Monday Morning Regulatory Review – 12/14/15: Water, Jurisdiction, Finality; Mineral Extraction Payments; Hours of Service Reporting; & Renewable Fuel Standards

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

The United States Supreme Court (SCOTUS) returned to one of the thorniest of briar patches of statutory imprecision and jurisdictional delegation, the Clean Water Act (CWA). Another regulatory issue likely to eventually reach SCOTUS revolves on the scope of First Amendment rights and forced corporate speech, currently joined in one agency’s proposed rule. Two other… Continue Reading

Monday Morning Regulatory Review – 11/9/15: Obamacare Contraceptive Non-Profit Sequel; Crowdfunding Uncrowded; & Electric Water Effluents

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

The United States Supreme Court (SCOTUS) granted certiorari in seven Obamacare contraceptive coverage cases signaling the return of an agency regulatory compliance issue, not a constitutional or “rights” issue. Still noteworthy, however, are two other recent actions: the Securities and Exchange Commission (SEC) adoption of crowdfunding rules and the Environmental Protection Agency (EPA) publication of… Continue Reading

Monday Morning Regulatory Review – 9/14/15: Human Research; Food Safety Rules; Extraordinary Writs Declined; Finality Petition & Obamacare Coverage Regulation Enjoined

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

New food safety rules and a proposed common rule on protection of human subjects in research deserve attention in the regulatory process. An unsurprising denial of an extraordinary writ and an unsurprising petition for certiorari deserve as much attention as a surprising injunction against an insurance coverage regulation in the judicial process.

Monday Morning Regulatory Review – 8/3/15: WOTUS Litigation IV; Cross-State / Transport Rule Remanded; Refrigeration Standards Settlement; Labor Elections Upheld Again; Tax Court Vacates IRS Rule & Clean Power Plan

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

Litigation dominated regulatory affairs last week. Procedural posturing continued in the Waters of the United States (WOTUS) litigation while gaining some clarity and the Clean Air Act (CAA) “good neighbor” regulations returned to the Environmental Protection Agency (EPA) for further refinement. Litigants asked the courts to partially vacate and remand efficiency standards for walk-in refrigerators,… 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 –12/15/14: FLSA Security Screenings; NLRB Elections Rule; Contractor Rehab Act Rule; Contractor Inversions & Minimum Wage Rules

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

For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type.  Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors.  The United States Supreme Court (SCOTUS) surprised many with… 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… 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… Continue Reading

Monday Morning Regulatory Review – 7/7/14: Hobby Lobby Realities; Open Internet, Closed FCC; and ACUS Recommendations: Preambles as Guidance & Ex Parte Contacts

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

The holiday-shortened week was highlighted by judicial and Administration reaction to the United States Supreme Court (SCOTUS) decision in Burwell v. Hobby Lobby that the Administration failed to comply with the Religious Freedom Restoration Act (RFRA) in promulgating Obamacare preventative contraceptive care exemption regulations – and the issue will return frequently as the parties and… Continue Reading

Monday Morning Regulatory Review – 6/2/14: Health & Food Regulations; Expected Electricity Carbon Rule; Waters of the United States; & Acid Rain Litigation

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

The short holiday workweek produced few hard regulatory events although soft indications continue of the federal government’s intent to regulate the minutiae of daily life.  The Department of Health and Human Services (HHS) published its final rule on long-term Obamacare exchange and insurance market standards and extended the comment period on several food labeling proposals. … Continue Reading

Monday Morning Regulatory Review – 4/28/14: Net Neutrality II; Coal Dust; Tier 3 Vehicle Emissions Standards; Beer & Grain Retreat; & Drones Won’t Fly

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

A crowded week of regulatory events means that some highlights must be left behind.  Highlights of the week in review (and the litigation to come) include the Federal Communications Commission (FCC) reboot of its vacated net neutrality rules, the Department of Labor (DOL) Federal Mine Safety and Health Administration (FMSHA) release of its new coal… Continue Reading

Monday Morning Regulatory Review – 3/31/14: Obamacare Extension; Waters of the United States; IRS Meets Bitcoin; & COOL Regulations Preliminary Injunction Denial Affirmed

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

Anthology of the highlights of the last week in regulatory practice is somewhat focuses on some large issues that drew immediate attention, even if the substantive resolutions are many years away.  Foremost (of course) is the latest adjustment in Obamacare in Bulletins from the Department of Health and Human Services (HHS) Centers for Medicare and… Continue Reading

Monday Morning Regulatory Review II – 3/17/14: FLSA Overtime Standards; H-2B Wage Methodology; Gainful Employment; & Electronic Logging Hours of Service

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

While Part I of today’s Monday Morning Regulatory Review (MMRR) focused on Obamacare and health care, this Part II focuses on a wider range of regulatory activity.  President Obama instructed the Department of Labor (DOL) to charge into the breach of Fair Labor Standards Act (FLSA) regulations and DOL, on its own hook, proposed another… Continue Reading

Monday Morning Regulatory Review – 1/20/14: Lobbyist Bar Remanded; Indian Country Clean Air Rule Vacated; Prison Telephone Rule Stayed; Obamacare Subsidies Rule and Non-Resident Alien Interest Reporting Rules Upheld; & Volcker Rule Retreat

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

The United States courts in the District of Columbia were the focus of the regulatory world last week, and the United States Court of Appeals for the District of Columbia Circuit vacatur of the “net neutrality” rule was only the news leader.  The D.C. Circuit also remanded a case to the district court to assess… Continue Reading

Monday Morning Regulatory Review – 1/6/14: Obamacare @ SCOTUS; Mortgage Disclosure Relief; Wood Burning Stoves; and Firearms & Mental Health

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

The end of 2013 was hardly quiet, with five notable events worth highlighting.  While this blog has foresworn further coverage of the crenelated litigation in the United States District Courts over the Obamacare contraceptive coverage requirements, one case has moved to an unusual posture before the United States Supreme Court (SCOTUS) though it may not… Continue Reading