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Category Archives: Regulatory Flexibility & Small Business

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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

Monday Morning Regulatory Review – 12/23/13: Obamacare Guidance, not Rules, & More Exceptions; Carbon Capture & Sequestration; OMB Reviews; Contracts, Dogs & Cats

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

As the end of year holidays and the health insurance deadline nears, the patchwork of Obamacare fixes and court decisions creating exceptions grows geometrically, making Obamacare less and less universal: at least two core policy changes and three new court decisions highlight the week.  The Environmental Protection Agency (EPA) released a final rule that may… Continue Reading

Fall 2013 Unified Agenda Published: Something New, Something Old

Posted in Regulatory Flexibility & Small Business, Regulatory Process

The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) released the Fall 2013 Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions on November 26, 2013.  Many of the rulemakings are “old hat” and have appeared in the plan and agenda many times – illustrating the fundamental… Continue Reading

Monday Morning Regulatory Review – 11/11/13 – Part I: Regulations

Posted in Regulatory Flexibility & Small Business, Regulatory Process

Agencies charged new rules and proposed new charges to the American economy last week with renewed vigor, including the Securities and Exchange Commission (SEC)’s overdue crowdfunding proposal, Departments of Health and Human Services (HHS)’s (and others) mental health parity rule, Department of Labor (DOL), Occupational Safety and Health Administration (OSHA)’s electronic reporting proposal, Environmental Protection… Continue Reading

Monday Morning Regulatory Review – 6/24/13

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

Regulatory process returned to the forefront last week, with Department of Health and Human Services (HHS) proposing the latest in Patient Protection and Affordable Care Act rule for small business, while the Small Business Administration (SBA) published four more size standard adjustments and will soon publish new size integrity standards.  The Securities and Exchange Commission… Continue Reading

First FDA Food Safety Proposed Rules Released: A Long, Long Road Ahead

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

The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) completed review of the first of the long-awaited major Department of Health and Human Services (HHS) Food and Drug Administration (FDA) Food Safety Modernization Act (FSMA) “first wave” proposed rules: Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls… Continue Reading

OMB Releases Fall 2012 Unified Agenda & Regulatory Plan: Meaning what?

Posted in Regulatory Flexibility & Small Business, Regulatory Process

The Obama Administration released a Unified Agenda and Regulatory Plan overnight December 22, 2012, after being missing in action for months and finally skipping the Spring 2012 version altogether, not releasing any instructions for the development of the Fall 2012 Unified Agenda, and with no announcement of the 2012 Fall Unified Agenda whatever.  OMB’s lack… Continue Reading

CFTC Pool Operator Rule Upheld – Broader Lessons Need Consideration

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

The United States District Court for the District of Columbia granted the agency summary judgment in Investment Company Institute v. Commodity Futures Trading Commission  (CFTC), leaving intact the Commodity Pool Operators and Commodity Trading Advisors: Compliance Obligations final rule (as corrected) (the “pool” rule).  Plaintiffs claimed that the CFTC had violated the Administrative Procedure Act… Continue Reading

Monday Morning Regulatory Review – 11/19/12

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

Activity at the Office of Management and Budget (OMB) has begun to pick up after the election – the Patient Protection and Affordable Care Act (ACA) regulations lead the way.  On the other hand, another court ordered an exemption from the mandatory contraceptive coverage regulation ahead of Department of Health and Human Services (HHS) submitting… Continue Reading

Monday Morning Regulatory Review – 10/1/12

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

Small movements with potentially large impact over time occurred last week, but most did not see the light of day in the national or legal media.  Key points: Department of Labor (DOL) extended the effective date of the H-2B Wage Methodology rule given another appropriation rider; Department of Homeland Security (DHS) continues to lag behind… Continue Reading

Monday Morning Regulatory Review – 9/24/12

Posted in Legislation, Regulatory Flexibility & Small Business

A relatively quiet week allows us to catch up on some important odds and ends.  The Small Business Administration (SBA) published three new small business size standards that affect large swaths of the economy and many future regulatory analyses.  The Congress left town (they were here for a short period), but the House passed limitations… Continue Reading

Monday Morning Regulatory Review – 9/17/12

Posted in Regulatory Flexibility & Small Business, Regulatory Process

A bevy of new rules and proposed rules were issued last week.  Most notable contributions come from the Bureau of Consumer Financial Protection (CFPB), Securities and Exchange Commission (SEC), Commodities Futures Trading Commission (CFTC), Environmental Protection Agency (EPA), and Small Business Administration (SBA).  On the management side, the Office of Management and Budget (OMB) has… Continue Reading

Food Safety Statute & Delay: Litigating Congressional Deadlines

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

Food safety – what could be more important?  The FDA Food Safety and Modernization Act (FSMA), signed into law on January 4, 2011, requires a significant regulatory shift by the Food and Drug Administration (FDA).  FSMA imposed numerous deadlines for FDA to adopt regulations and those deadlines have passed into history without rules.  Given those… Continue Reading

Judicial Review & EO 12866 Regulatory Impact Analysis

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

A common but little understood Administrative Procedure Act (APA) issue arose from last Monday’s Regulatory Review: How does an aggrieved business acquire APA judicial review of a rulemaking under Executive Order 12886 – the executive and inter-agency review performed by the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs… Continue Reading

Monday Morning Regulatory Review – 8/20/12

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

It may be vacation season, but this week agencies are steadily proposing and finalizing regulations – mortgages, settlements, electronic transfers, swaps, HAZMAT, Deepwater Horizon, and small business classification: The Bureau of Consumer Finance Protection (CFPB) proposed two mortgage rules and finalized its EFT rule, while the Commodities Futures Trading Commission (CFTC) and the Securities and… Continue Reading