The Environmental Protection Agency (EPA) today published its Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards proposed rule in the Federal Register. Unfortunately, public comments are due on this proposed rule on June 13, 2013 – only 24 days from now. In short, the massive 1,572 typescript pages,… Continue Reading
Category Archives: Regulatory Process
Subscribe to Regulatory Process RSS FeedACUS 58th Plenary Session: Authoritative Recommendations & Studies Worth Reading
Posted in Regulatory ProcessThe Administrative Conference of the United States (ACUS) has released the agenda, recommendations, and supporting studies for its 58th Plenary Session to be held June 13 – 14, 2013. ACUS will consider adopting recommendations on: Social Security Disability Adjudication Benefit-Cost Analysis at Independent Regulatory Agencies Science in the Administrative Process Administrative Record in Informal Agency… Continue Reading
Monday Morning Regulatory Review – 5/13/13
Posted in Judicial Review & Remedies, Regulatory ProcessThis week a sprinkling of interesting events flavors administrative law. Recess appointments litigation may get closer to sweetening the United States Supreme Court (SCOTUS) calendar. A court decision on timing of electronic filing soured one agency’s day, and provides lessons for others. Another court fed a bitter pill to the Department of Justice (DOJ) in… Continue Reading
D.C. Circuit Vacates NLRB Posting Rule – Enforcement Provisions Violated NLRA and Posting Requirement Could Not Be Severed
Posted in Judicial Review & Remedies, Regulatory ProcessThe United States Court of Appeals for the District of Columbia today vacated – in National Association of Manufacturers v. NLRB – the National Labor Relations Board (NLRB) Notification of Employee Rights under the National Labor Relations Act {NLRA), or “Posting Rule.” The court’s decision clarified the starting point for judicial review of final agency… Continue Reading
Monday Morning Regulatory Review – 5/6/13
Posted in Judicial Review & Remedies, Regulatory ProcessAll dollars great and small about regulations this week: the Consumer Financial Protection Bureau (CFPB) theoretically made credit more available, but reality may not be so easy. Stock Exchange data cost rules, are no longer the subject of Securities and Exchange Commission (SEC) approval under Dodd-Frank, and are also no long subject to a petition… Continue Reading
Teenagers and Plan B One Step: FDA’s Compliance with a Court Order or Just a Different Decision
Posted in Judicial Review & Remedies, Regulatory ProcessThe Food and Drug Administration (FDA) approved an application by Teva Women’s Health, Inc. to market Plan B One-Step (levonorgestrel) for use without a prescription by teens 15 years of age and older. The approval of Teva’s application may or may not comply with the order the United States District Court for the Eastern District… Continue Reading
Monday Morning Regulatory Review – 4/29/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory ProcessBusy and long today: The Department of Health and Human Services (HHS) submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), a hospital disproportionate share payment reduction proposed rule. OIRA may have a new Administrator who may or may not have the opportunity to review the rule –… Continue Reading
FDA’s Food Safety Regulations – Court Requires Timing Negotiation
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessThe United States District Court for the Northern District of California has found that the Food and Drug Administration (FDA) clearly exceeded the deadlines set by Congress for promulgating regulations under the Food Safety and Modernization Act of 2010 (FSMA). Rather than impose its own arbitrary deadline, the court sent the parties in Center for… Continue Reading
Homeland Security & Labor Issue H-2B Regulations: Authority Solved?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessThe Department of Homeland Security (DHS) and the Department of Labor (DOL) moved quickly – perhaps too quickly – to resolve legal authority issues raised by recent court decisions vacating low-skilled worker visa (H-2B) regulations by adopting a “joint” interim final rules (IFR) that is available for public inspection and will be published in tomorrow’s… Continue Reading
Monday Morning Regulatory Review – 4/22/13
Posted in Judicial Review & Remedies, Regulatory ProcessThe Office of Management and Budget (OMB) rapidly completed review on a small step in response to President Obama (POTUS)’s agenda on gun violence with an advance notice of proposed rulemaking. The Department of Labor (DOL) submitted to OMB its response to at least one court decision on the H-2B conundrum and needed to explain… Continue Reading
Monday Morning Regulatory Review – 4/15/13
Posted in Judicial Process, Regulatory ProcessA confluence of external factors may have suppressed regulatory activity over the past week – the budget, sequestration, gun control, immigration, tax filing deadline, or what have you. In any event, this morning’s review takes the opportunity to catch up on a few events and questions that might not otherwise garner attention: Environmental Protection Agency… Continue Reading
Monday Morning Regulatory Review – 4/8/13
Posted in Judicial Review & Remedies, Regulatory ProcessFollow-up on previous events of interest is the focus of this morning’s review. The Environmental Protection Agency (EPA) has published its intentions on comments and hearings on new motor vehicle emission and fuel standards proposed rule, but has not published the proposed rule. Both the Department of Labor (DOL) and the Department of Homeland Security… Continue Reading
11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessToday the United States Court of Appeals for the Eleventh Circuit affirmed the decision of the United States District Court for the Northern District of Florida enjoining the Department of Labor (DOL) from enforcing its non-immigrant non-agricultural unskilled labor visa program (H-2B) in Bayou Lawn and Landscape Services v. Solis. The court found that the… Continue Reading
Monday Morning Regulatory Review – 4/1/13
Posted in Regulatory ProcessA busy last week leaves more to cover – particularly from the perspective of the Office of Management and Budget (OMB). While the OMB docket held relatively steady, OMB completed its long-term review of radiological incident guidance that probably involved substantial inter-agency discussion. Agencies submitted some interesting new proposed and final rules that are also… Continue Reading
EPA’s Tier 3 Vehicle Emission Reduction Proposed Rule: Good, Bad, …
Posted in Regulatory ProcessLast week’s major administrative law milestones are not over, but this post is a little different: plaudits and pans for the Environmental Protection Agency (EPA) regulatory process. EPA released its pre-publication, long awaited, much debated, and massive Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards proposed rule on… Continue Reading
More Alien Worker Wage Rules Vacated under APA: What H-2B Rules Apply?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessWhile much attention in the immigration arena has focused on a new employment verification document, the potentially rapid filling of the professional employees (H-1B) temporary visa quota, and the apparent conflict over determining wage rates for foreign workers that may be stalling Senate negotiators, wage methodology for the unskilled workers temporary visa category (H-2B) is… Continue Reading
Letters to a Senator: 8th Cir. says EPA violated APA Requirements
Posted in Judicial Review & Remedies, Regulatory ProcessOccasionally, an opinion begs to be quoted, and so no further introduction is needed to the United States Court of Appeals for the Eighth Circuit’s March 25, 2013, opinion in Iowa League of Cities v. EPA: The Iowa League of Cities (“League”) seeks direct appellate review of two letters sent by the Environmental Protection Agency… Continue Reading
Monday Morning Regulatory Review – 3/25/13
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessThe interplay of regulations and litigation came to the fore in a very busy last week, not just in the United States Supreme Court (SCOTUS)’s recent Decker logging road culverts pollution permit decision and the for-profit colleges litigation, but five other matters: The Department of Justice (DOJ) called it quits in defending the Department of… Continue Reading
SCOTUS Reverses 9th Circuit on Logging Road Culverts – New Rule Irrelevant
Posted in Judicial Review & Remedies, Regulatory ProcessThe Supreme Court of the United States (SCOTUS) today vacated the United States Court of Appeals for the Ninth Circuit decision in Decker v. Northwest Environmental Defense Center, holding that the Environmental Protection Agency (EPA)’s original interpretation of its original regulations warranted Auer deference, that a new EPA rule on the subject did not moot… Continue Reading
APA Circuit Split – Notice and Comment Good Cause Bypass in SORNA Retroactivity Regulations
Posted in Judicial Review & Remedies, Regulatory ProcessThe United States Court of Appeals for the Third Circuit, on remand from the United States Supreme Court (SCOTUS) in United States v. Reynolds, summarized and joined the complex circuit split on three Administrative Procedure Act (APA) questions applied to the retroactivity of the Sex Offender and Registration Notification Act’s (SORNA) registration requirements. The first… Continue Reading
Monday Morning Regulatory Review – 3/11/13
Posted in Agency Authority, Regulatory ProcessForgive the absence – surprisingly little to report over the past two weeks. The Office of Management and Budget maintained a relatively stable docket with no truly significant rules being submitted or completed. One might attribute this lull to sequestration – fears and realities – but it remains a question. Congress may be tied up… Continue Reading
Monday Morning Regulatory Review – 2/18/13
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Regulatory ProcessThe Consumer Finance Protection Bureau (CFPB), along with some cohorts, published a flurry of four final rules last week that will give banking and mortgage attorneys plenty to read and absorb – and consider anew whether the CFPB can legitimately issue these rules. Adding a little fuel to the Noel Canning fire, a House of… Continue Reading
ACUS Spring Committee Meetings – Studies Worth Following
Posted in Judicial Process, Regulatory ProcessThe Administrative Conference of the United States (ACUS) announced today a series of meetings by various committees to consider research projects and recommendations. ACUS is an advisory committee composed of about 100 of the government officials and members of the public most steeped in federal administrative law. Agree or disagree with ACUS recommendations, they are… Continue Reading
Monday Morning Regulatory Review – 2/11/13
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessA quiet week in regulations, punctuated by a few interesting events: The United States Court of Appeals for the District of Columbia Circuit vacated the entire definition of “Vented hearth heater” and remanded in part the Department of Energy (DOE)’s ubiquitous Energy Conservation Program rule. The Department of Health and Human Services (HHS) published their… Continue Reading