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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Tag Archives: APA

Monday Morning Regulatory Review – 4/13/15: Waters of the United States; Renewable Fuels Consent Decree; Open Internet Utility Rule; Shepherd’s Wages; Immigration Executive Action Litigation VII; and Religious Workers & Legal Status

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

Half a dozen highlights from regulatory practice last week – from environmental to communications, to labor to immigration. The Environmental Protection Agency (EPA) and Army Corps of Engineers (Engineers) submitted a controversial Waters of the United States (WOTUS) final rule for executive and interagency review, and EPA also proposed resolution of the long delayed Renewable… Continue Reading

Monday Morning Regulatory Review – 4/6/15: Cyber-Threat Executive Order; NLRB Elections Rule; Drones & Privacy; and Confined Spaces in Construction

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

Issues on the periphery of regulatory practice highlighted the last week. The President of the United States (POTUS) unleashed financial regulation resources against cyber-threats by applying regulations and enforcement processes that have historically been used to combat foreign regimes, terrorists, international narcotics traffickers, and the proliferation of weapons of mass destruction. On the other hand,… Continue Reading

Monday Morning Regulatory Review – 3/30/15: Open Internet Randomness to the Courthouse; State / Local Internet Preemption; Immigration Executive Action Litigation VI; Same-Sex Family Medical Leave Regulations Preliminary Injunction; Fuel Cells & Airplanes

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

Litigation and agency responses dominate last week’s regulatory practice. Two different protective petitions for review of the Federal Communication Commission (FCC)’s open internet / net neutrality / net utility final rules were filed with the United States Court of Appeals for the District of Columbia Circuit and the Fifth Circuit, and a State challenged the… Continue Reading

Monday Morning Regulatory Review – 3/23/15: White House Transparency Regulations; Federal Fleet Pollution; Federal Fracking; & H-2B Vacatur & Emergency Regulations

Posted in Agency Authority, Executive - OMB Review, Regulatory Process

Prioritizing last week’s interesting regulatory affairs proves a little difficult because the affairs are so diverse, so this post may seem random. The White House’s administrative side removed regulations in a Federal Register final rule, perhaps for the right reason, but perhaps in the wrong way. The President of the United States (POTUS) also issued… Continue Reading

Monday Morning Regulatory Review – 3/16/15: Functional Delegation Test; Open Internet Neutrality Rule Opened; Immigration Executive Action Litigation V

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

Three regulatory highlights for the past week do not appear to have any discernable connections. The United States Supreme Court (SCOTUS) disappointed (or maybe disowned) a cousin of the constitutional nondelegation doctrine by reversing and remanding a case limited to the regulatory power of a unique government corporation – Amtrak. The Federal Communications Commission (FCC)… Continue Reading

SCOTUS Rejects D.C. Circuit Notice & Comment Rulemaking Requirement for Changing Agency Interpretation

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

The United States Supreme Court (SCOTUS) held today, in Perez v. Mortgage Bankers Association, that an interpretative rule does not require advance notice and an opportunity for public comment under the Administrative Procedure Act (APA) no matter when the agency adopts the interpretation, unanimously reversing the contrary decision of the United States Court of Appeals… Continue Reading

Monday Morning Regulatory Review – 3/9/15: H-2B Regulations Vacated – Again; Immigration Executive Action Litigation IV; and Aircraft Engines & Greenhouse Gases

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

Last week’s highlights in regulatory practice were few and tread familiar ground, but have much meaning. The Department of Labor (DOL) suffered another loss in the jurisdictional kerfuffle over the non-agricultural workers visa program when a district court vacated its 2008 regulations, just as it had previously done with more recent regulations, and contrary to… Continue Reading

Monday Morning Regulatory Review – 3/2/15: Open Utility Internet; Immigration Executive Action Litigation III; and Retirement Investment Fiduciaries

Posted in Agency Authority, Judicial Process, Regulatory Process

Regulations were a significant topic in the news last week, led by the Federal Communications Commission (FCC) decision to treat internet service providers as a common carrier and left the general public in the dark. Litigation over the Department of Homeland Security (DHS) memorandum on granting status to parents and children of aliens who otherwise… Continue Reading

Immigration Executive Action Preliminary Injunction – A Hold on Benefits and Costs for Now

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

The United States District Court for the Southern District of Texas preliminarily enjoined the United States, its agencies, officials, and employees from implementing all aspects of President Obama’s (or POTUS) executive action on immigration on the eve of implementation pending further order of the court or higher judicial authority. In essence, the district court found… Continue Reading

Monday Morning Regulatory Review – 2/9/15: Net Neutrality Utility; Statutory Supplements & Foreign Religious Workers; and Regulatory Reform Redux

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Legislation, Regulatory Process

Interesting regulatory events of the past week come from all three branches of the United States Government.  From the independent Federal Communications Commission (FCC), the Chairman signaled his proposed way forward on the issue of “net neutrality” that could become a significant regulatory morass.  A district court vacated several provisions of immigration regulations in the… Continue Reading

Monday Morning Regulatory Review – 2/2/15: OMB Review Substance, Process, Docket & Issues

Posted in Regulatory Process

Last night, the Department of Transportation (DOT) Federal Aviation Administration (FAA) banned drones (and nearly all other flight) from within 30 nautical miles (34.5 miles) and under 18,000’ mean sea level of Super Bowl XLIX in a Notice to Airmen (NOTAM), while its proposed rule to regulate the use of drones – technically known as… Continue Reading

Monday Morning Regulatory Review – 1/26/15: Florescent Lights & Analytical Balance; NESHAP & Affirmative Defenses; and WOTUS Supporting Documents & Public Comments

Posted in Judicial Review & Remedies, Regulatory Process

Focus recently on the courts does not mean that the agencies have been silent, and while they have been relatively quiet, they continue to raise some interesting issues.  For example, the Department of Energy (DOE) today published the latest in a long series of energy efficiency rulemakings and one that will affect every consumer.  The… Continue Reading

Monday Morning Regulatory Review – 1/19/15: Judicial Review of Agency Standards of Discretion; Regulatory Takings Standards; FLSA Home Care Regulations II; NLRB Elections Rule Litigation IIA; Be Sued & Settle

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) granted review in several cases with significant regulatory implications last Friday – neither of which is the case that has drawn all the press attention and both of which should be decided early this summer.  In one case, SCOTUS may be approaching the twilight zone of judicial review of… Continue Reading

Monday Morning Regulatory Review – 1/12/14: NLRB Election Rule Litigation II; Regulatory Reform; & Conciliation Prerequisite

Posted in Agency Authority, Judicial Review & Remedies, Legislation

A few small nuggets deserve attention, although no earth shattering developments rocked administrative law last week.  Reopening two old chapters in the annals, a new suit challenges the National Labor Relations Board (NLRB) 2014 union representation election rule and the House of Representatives this week moves reform of the Administrative Procedure Act (APA) near the… Continue Reading

Monday Morning Regulatory Review – 1/5/15: Ozone Standards Authority; Toxic Spent Munitions; FLSA Home Care Regulations; Medicaid Hospital Limits FAQ; & Immigration Executive Action

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

Welcome to 2015, the fourth year of the Federal Regulations Advisor.  Two short holiday workweeks are compiled today in one loaded post.  The agencies may have been (largely) quiet, but the courts provided grist for the mill.  The United States Court of Appeals for the District of Columbia Circuit vacated parts of the Environmental Protection… Continue Reading

Monday Morning Regulatory Review – 12/22/14: H-2B Visa Regulation Vacated; Immigration Executive Action Dicta; Agency Regulatory Plans & OMB Completions; EPA Coal Ash Rules; Uniform Grant Rules; Trucker Hours of Service; & ACUS Recommendations

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

The penultimate Monday of the year, when many federal workers are using rather than losing annual leave, is hardly the time to believe that the regulatory machine is slowing down.  Quite to the contrary, after Congress has left town, both the courts and the agencies remain at full throttle.  Judicial highlights of the past week… 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 – 12/8/14: Immigration Executive Action; H2B Wage Rates; Regulations & Non-Discretionary Duties; and Waters of the United States

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

The immigration “executive action” became much clearer with the Department of Homeland Security (DHS) rolling out a variety of memoranda implementing the President (POTUS)’s priorities, but there was no, and many not have ever been, an “Executive Order.”  Nonetheless, the first legal challenge has been filed and the state of affairs deserves review.  On another… Continue Reading

SCOTUS, Interpretative Rules & the Government’s Shifting Interpretation

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

The United States Supreme Court (SCOTUS) oral argument on Monday in Perez v. Mortgage Bankers Association underscored the complexity of the distinction between legislative rules and interpretative rules under the Administrative Procedure Act (APA) and the degree of deference that courts grant to agencies in resolving ambiguity under their delegated programmatic statutes.  Oral argument may… Continue Reading

SCOTUS Argument Preview: Must Agencies Use Notice and Comment Rulemaking to Change Interpretation

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

Next Monday, the United States Supreme Court (SCOTUS) will hear argument in Perez v. Mortgage Bankers Association, No. 13-1041, asking whether a federal agency must engage in advance notice and public comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an established interpretive rule articulating the agency’s interpretation of an… Continue Reading

Monday Morning Regulatory Review – 11/24/14: POTUS Immigration Reform; Obamacare Subsidies Docket Clearing; Conflict Minerals Redux; Drones Predux; Renewable Fuel Standards Exdux; and Unified Agenda

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

President Obama (POTUS) finally moved last week to alter immigration policy by signing an executive order and issuing two memoranda, and amid all the political debate over the action, some legal questions need serious answers.  Also last week, several docket changes helped clear different regulatory issues to be ultimately decided by the United States Supreme… Continue Reading

Monday Morning Regulatory Review – 11/17/14: Obamacare Subsidies Docket; Obamacare 2nd Contraceptives Accommodation & SCOTUS Criminal / Administrative Deference Invitation

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

Last week focused on appellate practice, notably cases related to but not necessarily before, the United States Supreme Court (SCOTUS).  The United States Court of Appeals for the District of Columbia Circuit delayed further consideration of the issue of whether the Internal Revenue Service (IRS) could interpret the Obamacare (Patient Protection and Affordable Care Act… Continue Reading

Monday Morning Regulatory Review – 11/10/14: SCOTUS to Review Obamacare Subsidy Rule; Final Rule Statute of Limitations; Gainful Employment Metrics Litigation; Incorporation by Reference; and WOTUS Comments

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

Last week in regulations was entirely expected – it was all just a matter of time.  The United States Supreme Court (SCOTUS) agreed that it will decide this Term whether the Internal Revenue Service (IRS) may, by regulation, extend Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies to participants in federally-operated health care… Continue Reading

HUD Housing Disparate Impact Rules Vacated – How an APA Case Could Clarify Complicated Private Litigation

Posted in Agency Authority, Judicial Review & Remedies

The United States District Court for the District of Columbia vacated the Department of Housing and Urban Development (HUD) 2013 rules (ostensibly) under the Fair Housing Act (FHA) establishing disparate-impact liability in a case revolving on homeowners’ insurance coverage policies.  Plaintiffs in American Insurance Association v. Department of Housing and Urban Development claimed that HUD… Continue Reading