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

Tag Archives: arbitrary and capricious

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

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 – 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

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

D.C. Circuit Vacates EPA Directive – Consistency and Non-Acquiescence: Conflict in Need of Further Rulemaking

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

The United States Court of Appeals for the District of Columbia Circuit today vacated an Environmental Protection Agency (EPA) Clean Air Act (CAA) directive that implemented a decision of the United States Court of Appeals for the Sixth Circuit only in that circuit.  National Environmental Development Association’s Clean Air Project v. EPA illustrates several classic… 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

D.C. Circuit Vacates EPA Affirmative Defense Regulation – Some Limits on Regulatory Authority

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit decided last Friday in Natural Resources Defense Council v. Environmental Protection Agency (EPA) that (1) the emissions-related provisions of the 2013 Portland Cement Rule were permissible but that (2) EPA exceeded its statutory authority in a 2010 version by promulgating an affirmative defense… 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 – 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

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

FCC “Net Neutrality” Rules Vacated by U.S. Court of Appeals for D.C. Circuit

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia today vacated the Federal Communications Commission (FCC) “net neutrality” rules in Verizon v. FCC.  At the heart of the net neutrality issue is whether the FCC has authority to prohibit broadband Internet providers such as Verizon or Comcast or others from giving priority to… 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

Monday Morning Regulatory Review – 10/21/13

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

United States Government agencies lurched back into business and began to resolve the problems created by their absence, to the extent they can – and litigation has already commenced over the legality of a number of agency actions during the shutdown.  Post-reopening, some agencies, such as the Federal Communications Commission (FCC) have attempted to make… Continue Reading

Monday Morning Regulatory Review – 8/12/13

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

The Office of Management and Budget (OMB) completed review (ubiquitously consistent with change) on several sensitive significant rules last week, including the Environmental Protection Agency (EPA)’s proposed greenhouse gas reporting amendments and final renewable fuels volumes for 2013, as well as a proposal to fix an Patient Protection and Affordable Care Act problem for Members… Continue Reading

Monday Morning Regulatory Review – 7/29/13

Posted in Judicial Review & Remedies, Regulatory Process

Several key regulatory events in the past week include decisions from the courts on rules on greenhouse gases, air quality standards for ozone, and conflict minerals.  Two court of appeals split on whether companies can exercise religious views, lessening the likelihood that the United States Supreme Court (SCOTUS) will decide any administrative law issues relating… 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 Process

The 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

Administration’s Failing Grades 3: Educational Race to the Bottom?

Posted in Judicial Process, Judicial Review & Remedies

The Department of Education (ED) took one step last week in its attempt to better regulate the “for profit” colleges, universities, and other schools:  ED published a revision of a preamble to rules that the United States Court of Appeals for the District of Columbia Circuit remanded because the prior explanation was inadequate.  Amending a… 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