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Category Archives: Regulatory Process

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Monday Morning Regulatory Review – 8/25/14: Poultry Inspection; HAZMAT Harmonization; & OMB Reviews

Posted in Executive - OMB Review, Regulatory Process

The Administration’s release last Friday of new Obamacare contraceptive mandate rules in light of recent adverse United States Supreme Court (SCOTUS) decisions overshadowed other agency actions last week, but some are noteworthy.  The Department of Agriculture (DOA) published controversial poultry inspection regulations and the Department of Transportation (DOT) proposed harmonization of hazardous materials regulations with… 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 – 8/18/14: FERC Regional Electricity Grid Planning; EPA Pollution Permit Applications; GAO Critiques EPA Cost Analysis; and OMB Snapshot

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

The summer doldrums advanced further last week.  Several different actions by the Courts of Appeals warrant mention this morning, including denial of multiple petitions for review of a Federal Energy Regulatory Commission (FERC) rule that manages the development of the nationwide electricity grid and a remand of an Environmental Protection Agency (EPA) pollution permit waiver… Continue Reading

Monday Morning Regulatory Review – 8/11/14: EPA Power Plant Litigation; NLRB Ratifies Administrative Actions; FCC Open Internet / Fast Lane Comments & Attorney General Habeas Corpus Certifications

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

The dog days of summer mean that this column is filled with many odds and few ends.  In new litigation, a dozen states sued the Environmental Protection Agency (EPA) claiming that the agency lacks authority to issue a rule that it has not yet been issued.  On the other hand, the National Labor Relations Board… Continue Reading

Monday Morning Regulatory Review – 7/28/14: Contraception Regulations Revision; Advisory Committee Appointments; Orphan Drugs; and Oil & Ethanol Rail Cars

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

A number of volatile issues made ripples in regulatory practice last week that will not be found in the general media.  The saga of the religious exemption from the contraceptives mandate in Obamacare (Patient Protection and Affordable Care Act or PPACA) added an introduction to a new chapter last week when the Department of Justice… Continue Reading

Monday Morning Regulatory Review – 7/21/14: IRS Tax Preparer Suits; Hobby Lobby FAQ; Obamacare in the Territories; Drone Dismissal; and an Upgrade

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

Among its woes, the Internal Revenue Service (IRS) lost another regulatory case for exceeding its statutory authority last week, and was sued yet again.  In other fallout, the Department of Health and Human Services (HHS), Department of Labor (DOL), and Department of the Treasury (DOTr) released a FAQ in light of the United States Supreme… Continue Reading

Monday Morning Regulatory Review – 7/14/14: Hobby Lobby Legislation; Guidance Finality; & Minimum Wage Extension

Posted in Judicial Review & Remedies, Legislation, Regulatory Process

Each branch of government contributed a highlight to an otherwise somnambulant summertime week.  Congressional members responded to the United States Supreme Court (SCOTUS) Hobby Lobby decision with new legislation that raises new questions.  The United States Court of Appeals for the District of Columbia Circuit held Friday that the Environmental Protection Agency (EPA) guidance to… 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

SCOTUS: Obamacare Contraceptive Rule Failed to Accommodate Corporate Owner’s Religious Rights

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) today required the Obama Administration to implement Obamacare (Patient Protection and Affordable Care Act or PPACA) and it’s regulations to permit closely held corporations to decline to purchase preventative or contraceptive health care coverage that would violate their owners’ religious beliefs in Burwell v. Hobby Lobby.  SCOTUS found that… Continue Reading

Monday Morning Regulatory Review – 6/23/14: Air Passenger Fees; Electric Generating Carbon Emissions; SCOTUS Zenith

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

A short review of significant odds and ends from last week will be overshadowed by major decisions this week.  Among the significant odds and ends, the Department of Homeland Security (DHS) Transportation Security Administration (TSA) promulgated an increase in air passenger security fees under statutory authority to do so without advance notice and comment, but… Continue Reading

D.C. Circuit Vacates FCC IP Captioning Rule Provisions: Violated APA

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the District of Columbia Circuit today vacated two provisions of the Federal Communications Commission (FCC)’s Misuse of Internet Protocol (IP) Captioned Telephone Service interim rule (IFR) and final rule in Sorenson Communications v. FCC.  The court provided clear precedent that judicial review of “good cause” exceptions to the… Continue Reading

SCOTUS to Decide Whether Rulemaking Is Required When Agencies Change Established Guidance on Statutes and Regulations

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) today granted certiorari in Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association and consolidated the cases for one hour of oral argument next term.  These two cases arise from the previously noted United States Court of Appeals for the District of Columbia Circuit decision in Mortgage… Continue Reading

Monday Morning Regulatory Review – 6/16/14: Legislative v. Interpretive or Procedural Rules; Contractor Minimum Wage; Inflated Size Matters; Changing Interpretation; Regulatory Agendas; & EPA Delays RFS

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

Last week focuses (mostly) on wages and small business.  The United States Court of Appeals for the District of Columbia Circuit handed another setback to the Department of Labor (DOL)’s detachment of binding requirements from regulations.  DOL, for its part, proposed regulations to increase the minimum wage paid by government contractors, a costly proposed rule… Continue Reading

Monday Morning Regulatory Review – 6/9/14: Changing Interpretive Rules; Benefit / Cost Analysis Summary; Acronyms & Initializations Caution; and Maintenance Week

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

Today’s review defies categorization, but four significant unrelated events are worth noting.  The United States Supreme Court (SCOTUS) today may grant review in a critical regulatory case raising the necessity of following notice and comment rulemaking for an agency to alter an existing interpretive rule, setting the stage for argument and decision next Term in… 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 – 5/19/14: Open Internet or Net Neutrality; Broadcaster Shared Resources; Conflict Mineral Stays III; Coal Dust Consolidation; & ACUS Agenda

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

The Federal Communications Commission (FCC) proposed their response to the loss of their “net neutrality” rules, and a petition was filed challenging guidance on transactions under the broadcast ownership rules, another sore spot in the FCC’s regulatory warehouse.  The United States Court of Appeals for the District of Columbia Circuit declined to stay the remainder… Continue Reading

Monday Morning Regulatory Review: 5/12/14: Coal Dust Review; Conflict Minerals Stay II; Renewable Fuels Standard; & Particulate Matter

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

Much follow-up on last week’s Monday Morning Regulatory Review, including multiple petitions for judicial review of the Federal Mine Safety and Health Administration (FMSHA)’s coal dust rule and stay litigation in the Securities and Exchange Commission (SEC)’s conflict minerals rule.  In two new judicial decisions, the Environmental Protection Agency (EPA) renewable fuel standards and particulate… Continue Reading

Monday Morning Regulatory Review – 5/5/14: SCOTUS on EPA Cross State / Transport Rule; SEC Conflict Minerals Stay; DOT Trucker Coercion; & TSA Air Passenger Fees

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

Travail between the agencies and the courts present three of last week’s major events in federal regulations while an agency’s view of its authority to change fees by a final rule presents a fourth significant issue.  The United States Supreme Court (SCOTUS) reversed and remanded a lower court vacatur of the Environmental Protection Agency (EPA)… 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 – 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