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Category Archives: Regulatory Process

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Monday Morning Regulatory Review – 4/21/14: EPA Electricity Generating Units; Beer, Grain & Cattle; Tax Exempt Organizations & Politics; Waters of the United States; & Helicopter Ambulances

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

Regulatory practice was illustrated by several specific actions in the past week, some of which have subtle implications.  The United States Court of Appeals for the District of Columbia Circuit opined on the efficacy of the Environmental Protection Agency (EPA)’s 2012 air pollution regulation of electric generating units, but with several deep divisions.  In the… Continue Reading

D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech

Posted in Agency Authority, Constitutional Issues in Regulations, Regulatory Process

The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the… Continue Reading

Monday Morning Regulatory Review: 4/14/14 – Syrian Sanctions Regulations Withdrawal; Medical Safety Codes Incorporated; & Official Seals Banned

Posted in Executive - OMB Review, Regulatory Process

With income tax filings due tomorrow, regulators appear glued to their computers, not preparing regulations, but entering numbers on their keypads, and, therefore, this week’s Monday Morning Regulatory Review focuses on three very different regulatory events:  The Department of the Treasury (DOTr)’s Office of Foreign Assets Control (OFAC) withdrew from public inspection a final rule… 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 – 3/24/14: Debit Card Fees Revival; Contractors & Disability Data Analyses; Mathematics & Law; Food Safety Slip; & Obamacare Slide

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

This column changes each and every week as the moving parts of regulatory law shift.  Highlights from the past week illuminate significant government litigation victories in the revival of a regulation that set maximum fees between retailers and servicers of debit cards, summary judgment for the government in a challenge to a rule setting affirmative… 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 I – 3/17/14: Obamacare Risks; Third-Party Payments; Medicare Drug Withdrawal; & Congressional Interventions

Posted in Legislation, Regulatory Process

Frenetic regulatory activity in the past week covered large swaths of substantive administrative law in the Administration and the Congress, and likely set the stage for more regulatory litigation, so much so that this Monday Morning Regulatory Review (MMRR) must be divided into two posts.  This post highlights the Department of Health and Human Services… Continue Reading

Monday Morning Regulatory Review – 3/10/14: Obamacare Delays & Exceptions; Regulatory Budget; & EPA Tier 3 Vehicle Emissions

Posted in Regulatory Process

Last week heard significant noise in the regulatory world with very little actual substantive movement.  The key events were a further delay in the Obamacare revision of insurance plans, while, at the same time, finality on some large employer insurance requirements.  Obamacare reporting reflected a larger sweep of regulatory budgeting – more funds swept (or… Continue Reading

Monday Morning Regulatory Review – 3/3/14: FDA Food Labeling; DOJ Guidelines on Journalist Subpoenas; & EPA Greenhouse Gas Data

Posted in Agency Authority, Regulatory Process

Odds and ends from the Federal Register last week  The Department of Health and Human Services (HHS) Food and Drug Administration (FDA) proposed wholesale changes in food labeling, a White House priority.  The Department of Justice (DOJ) published a non-regulatory controversial final policy on how it will relate to news media in requesting information and… Continue Reading

Monday Morning Regulatory Review – 2/24/14: Preliminary Injunctions & Obamacare Contraceptives Mandate; FCC Net Neutrality; & Food Safety Time

Posted in Judicial Review & Remedies, Regulatory Process

The Administration pushed a number of new positions in the past week, but three more discrete actions at the intersection of regulatory process and judicial review of final rules deserve attention.  The United States Court of Appeals for the Seventh Circuit affirmed denial of a preliminary injunction in the Obamacare contraceptives mandate war because the… Continue Reading

ABA 10th Annual Administrative Law & Regulatory Practice Institute – One Meeting Worth Attending

Posted in Judicial Review & Remedies, Regulatory Process

Attorneys must keep up to date with the developments in the law – one reason for this blog and one reason for attending the American Bar Association (ABA) Administrative Law and Regulatory Practice Section’s 10th Annual Administrative Law & Regulatory Practice Institute on April 3 – 4, 2014.  Many courts require attorneys to attend “continuing… Continue Reading

Monday Morning Regulatory Review – 2/17/14: Obamacare Employer Mandate & Marijuana Dispensary Banking

Posted in Agency Authority, Regulatory Process

Another seemingly quiet week was punctuated by incursions on the twilight zone between regulations and guidance.  The Department of the Treasury’s Internal Revenue Service (IRS) delayed and refined the Obamacare employer mandate by a final rule.  On the other hand, the Treasury’s Financial Crimes Enforcement Network (FINCEN) and the Department of Justice (DOJ) attempted to… Continue Reading

Monday Morning Regulatory Review – 2/10/14: NLRB Election Rule Resurrection; Auto Auto Communications; & Lithium Batteries

Posted in Regulatory Process

Among few highlights from the regulatory world last week other than one problematic court decision previously noted, the National Labor Relations Board (NLRB) resurrected a union election process rule that had been vacated for want of a quorum.  The Department of Transportation (DOT) took two interesting steps – moving forward with new technology for light… Continue Reading

Third Circuit Upholds Labor H-2B Regulations & Confuses Agency Rulemaking Jurisdiction

Posted in Agency Authority, Regulatory Process

The United States Court of Appeals for the Third Circuit recently upheld the Department of Labor (DOL) promulgation of regulations governing the calculation of the minimum wage a United States employer must offer to recruit non-agricultural foreign workers under the Department of Homeland Security (DHS) “H-2B” visa program in Louisiana Forestry Association v. Secretary United… Continue Reading

Monday Morning Regulatory Review – 2/3/14: Volcker & Trust Preferred Securities; SOTU Contractor Minimum Wage; Battery Charger Efficiency; Safe Food Transport; and CDL Drug & Alcohol Clearinghouse

Posted in Agency Authority, Regulatory Process

This week in federal regulatory practice was highlighted by agency action rather than litigation, particularly the long-anticipated and delayed publication of the Volcker Rule and its first amendment, formally starting the clock for implementation and litigation.  The most significant action in the Administration’s long-term goals was President (POTUS)’s announcement that he would require federal contractors… Continue Reading

D.C. Circuit Remands PHMSA Fuel Cell Rule for Adequate Explanation

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the District of Columbia Circuit today remanded a final rule that barred butane fuel cell cartridges from checked luggage in Lilliputian Systems, Inc. v. Pipeline and Hazardous Materials Safety Administration.  At bottom, the Department of Transportation (DOT)’s Pipeline and Hazardous Materials Safety Administration (PHMSA) failed to explain the… Continue Reading

Monday Morning Regulatory Review – 1/27/14: SCOTUS Enjoins Obamacare Preventive Contraception Rule; NLRB Rescinds Vacated Rule; OMB Economically Significant Reviews; and Social Cost of Carbon & Crystalline Silica Extensions

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) last Friday enjoined enforcement of the Department of Health and Human Services (HHS) regulations on preventive contraception minimum regulations under Obamacare against several non-profit organizations in a procedural order that may be a guidepost for future litigation.  Regulatory activity of interest included the National Labor Relations Board (NLRB) best… Continue Reading

Monday Morning Regulatory Review – 1/13/14: Electric Generating Emissions; Demise of the NLRB Posting Rule; Obamacare Regulation by Blog Post; Aircraft Repair Stations Coordination; Unified Agendas & Regulatory Plans

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

The beginning of a new year raises several process questions for regulatory practitioners.  The Environmental Protection Agency (EPA) published a new proposed rule to limit emissions from new electric power generators – a rule EPA released several months ago, but only published last week.  The National Labor Relations Board (NLRB) threw in the towel on… Continue Reading

Monday Morning Regulatory Review – 12/30/13: Obamacare Fractal Geography; Volcker Rule Stay & Reconsideration; OSHA Interpretations & Ripeness; and Rearview Mirrors & Cameras

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

The final week of 2013 does not go gently into that good night, with four unrelated but significant issues.  Obamacare further disintegrated as a nationwide legal program with further administrative exceptions and delays and piecemeal judicial bars to enforcement that have worn out their welcome.  The Volcker Rule still awaits publication in the Federal Register,… 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

ACUS Fall 2013 Recommendations and Statement & Some Thoughts

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

The Administrative Conference of the United States (ACUS) published its recommendations, and a statement, adopted during the December 5 – 6, 2013, plenary session in today’s Federal Register.  The recommendations provide solid guidance to agencies, and the general public, on the controversial topic of agency use of social media in rulemaking, and to the federal… Continue Reading

Monday Morning Regulatory Review – 12/16/13: Obamacare Deadlines; Labor Elections Rule; Swaps Litigation; Vacating Empty Rules; & the Volcker Rule

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

Regulatory highlights from the past week include the Administration pushing back the deadline for applying for Obamacare and then begging insurance companies for even more time and leniency.  Two independent agencies – the Commodities Futures Trading Commission (CFTC) and the National Labor Relations Board (NLRB) threw in the towel on litigation and proposed new rules… Continue Reading

Monday Morning Regulatory Review – 12/9/13: Deferring Obamacare; International Swaps Derivatives; Economically Significant Right Whales & Social Cost of Carbon Comments

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

Significant events of the past week include a hearing before the House Judiciary Committee on the implementation of Obamacare – and the legality of deferring enforcement; a new suit challenging the Commodities Futures Trading Commission (CFTC) ongoing attempts to regulate the complex international derivative swaps markets; concluding the latest chapter in protecting the Right Whale… Continue Reading

Monday Morning Regulatory Review – 12/2/13: Obamacare, Tax Exempt Organizations, Social Cost of Carbon, and Litigation Management

Posted in Judicial Review & Remedies, Regulatory Process

The Administration made major and often unheralded moves last week on several different issues that deserve highlighting.  The success or failure of the Obamacare website may have dominated the general and political news media, but lurking behind that behemoth political risk the Administration moved with haste to finalize and publish massive new Obamacare / Medicare… Continue Reading