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

Tag Archives: final rule

Monday Morning Regulatory Review – 5/22/17: De-Regulating Model Aircraft

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

The United States Court of Appeals for the District of Columbia Circuit, last Friday in Taylor v. Huerta, partially vacated the Department of Transportation (DOT) Federal Aviation Administration (FAA) Registration and Marking Requirements for Small Unmanned Aircraft interim final rule (IFR).  The panel concluded that Congress explicitly barred the FAA from promulgating “any rule or… Continue Reading

Monday Morning Regulatory Review – 5/8/17: Appropriations Impact on Regulations; Pending Disapproval; Legislation Repealing Regulation; WOTUS Reconsideration; Contraceptive Mandate Reconsideration; & Compliance Extension Good Cause

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

Regulatory practice last week presented a number of different Congressional interventions – from the complexity of a Consolidated Appropriation for the remainder of the fiscal year, to disapproval of a regulation under the Congressional Review Act (CRA), to a direct legislative vitiation of a final rule.  The Administration took two different steps toward reconsideration of… Continue Reading

Monday Morning Regulatory Review – 5/1/17: Clean Power Plan & Mercury Holds; Litigation Choice & Appropriation Limitation; and Complicated Executive and Interagency Reviews

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

Litigation over two more major rules was put on hold last week, leaving little actual litigation over past Administration rules proceeding – with small exceptions that may be short lived.  At the same time, one court of appeals recognized the reality of appropriations effectively limiting agency discretion – particularly when court orders have consumed limited… Continue Reading

Monday Morning Regulatory Review 3/6/17: Reconsidering WOTUS; Transgender Guidance Appeal Ignominious End & Proposed Rules to Delay Rules

Posted in Judicial Review & Remedies, Regulatory Process

The current Administration continued its undoing of prior the Administration’s priorities, but with more finesse.  The definition of Waters of the United States that garnered so much attention during the last Administration was put on the sideline for an extended period last week, with ramifications for several court cases.  The direct challenge to the rescinded… Continue Reading

Monday Morning Regulatory Review – 2/27/17: Transgender Student Bathroom Deguidance; Student Loan Cost Guidance Adherence; Immigration Enforcement Revisited; ORNA Good Cause Intercircuit Conflict & Implementation Executive Order

Posted in Judicial Review & Remedies, Regulatory Process

“Guidance” seems to have been the word for last week and that requires many words to explain.  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current Administration would adhere to a prior guidance document, an agency revisited enforcement guidance while… Continue Reading

Monday Morning Regulatory Review – 2/20/17: Delay Challenge; Withdrawal Challenge; First Disapprovals Complete with More to Come & Stability Struggles in a New Regulatory Docket

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

Two cases that challenge the effect of a new Administration’s moratorium on rules pending review by new appointees deserve some attention this week – one challenges a delay of effective date while the other challenges a withdrawal from public inspection prior to publication.  The march of regulatory  disapprovals continued to build with the first two… Continue Reading

Monday Morning Regulatory Review – 2/6/17: Gorsuch to SCOTUS; Regulatory Budgeting; Fiduciary Rule Reconsideration; Congressional Disapproval Resurrection; and Petitions & Political Debates

Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory Process

A complicated and busy week in regulatory practice requires extended comments and a little patience.  The President of the United States (POTUS) nominated Judge Neil Gorsuch to be an Associate Justice of the Supreme Court of the United States (SCOTUS) and that will likely soon require new thinking about judicial deference to agency interpretations.  POTUS… Continue Reading

Monday Morning Regulatory Review – 1/23/17: Transition Continuity of Operations; Stream Protection Suit 2 & RFS Mandatory Duty Suit

Posted in Judicial Process, Regulatory Process

The first Monday and official workday of a new Administration presents a challenge – agencies have been instructed to hold all regulations for the moment pending further review; implementation will take some time.  On the other hand, a suit to enjoin the prior Administration’s stream protection rule and to compel an agency to consult with… Continue Reading

Monday Morning Regulatory Review – 1/9/17: New Legislative Outlook; Occupational Beryllium & V2V Communications Proposal

Posted in Legislation, Regulatory Process

Congress returned this week and began consideration of old legislative ideas for regulatory reform with a new perspective – and one that now merits attention.  Perhaps the last major labor regulation is published today, but one that may not be as contentious as previous rules have proven to be.  And among transition jumping proposals, vehicle… Continue Reading

Tuesday Morning Regulatory Review – 1/3/17: Statutes of Limitation & Regulations; Finality, Power & Constitutionality; Another Sex & Gender Preliminary Injunction; Streaming Suit; Effective Date Delay Dance; Inaction as Action; Energy Efficiency Standards Efficiencies; and Irrelevant and Relevant Facts

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

Welcome back for the fifth anniversary post of the Federal Regulations Advisor (No. 393) and a new year of poking the Federal regulatory bear (and sometimes praising it).  Among highlights from regulatory practice in the past few weeks are a recurring regulatory misinterpretation of a statute of limitations, a new intercircuit conflict over appointments of… Continue Reading

Monday Morning Regulatory Review – 12/19/16: Continuing Reporting Obligations; Litigation Risk & Process Speed; FAR Injunction Notice, Land Use Planning and Plans & a Programming Note

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

With the 30-day deadline for making rules effecting during the current Administration fast approaching (Wednesday), agencies took a number of actions that raise concerns – or at least perceived concerns.  One final rule challenges a court determination of the agency’s authority, while another agency took pains to adopt an interim rule on a not-very-controversial subject. … Continue Reading

Monday Morning Regulatory Review – 12/12/16: Administration’s Litigation Twilight; Delay, Haste, Explanation & Air, Cell, Wi-Fi

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

The twilight of an Administration brings out some haste to institutionalize policy through regulations and also complex litigating postures driven by policy and institutional concerns, reflected last week in several procedural motions and decisions.  Curiously, a final rule was promulgated to respond to a remand over a decade old, raising a fundamental question of timeliness. … Continue Reading

Monday Morning Regulatory Transition Review – 12/5/16: Healthcare Funding Responses; Hardrock Mining Liabilities; Mid-Term CAFE; Last Education Regulations Tango & Banning the Personnel Box

Posted in Executive - OMB Review, Regulatory Process

Signs of increased speed in the Obama Administration’s quest to institutionalize its policies became apparent with the approval and publication of several economically significant / major rules, even more lesser rules, and even a proposed adjudication.  Much publicity has suggested a gaming of the system, but this is a natural result of the end of… Continue Reading

Monday Morning Regulatory Review – 11/28/16: Overtime Increase Rule Enjoined; Buckyballs Rule Vacated; and Agency Demarche & Prepaid Cards

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

A short work week did not mean a lack of regulatory substance, something else to be thankful for.  In two significant decisions declaring final rules to be turkeys, a district court preliminarily enjoined an agency rule potentially effecting 4.2 million American wage earners, while a Court of Appeals decision vacated a rule that effectively prohibited… Continue Reading

Monday Morning Regulatory Review – 11/21/16: Persuader Rule Set Aside; Nursing Home Arbitration Bar Enjoined; Executive Immigration Action Litigation Postponed; Agency Authority Retread & Final Regulatory Agenda

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

Several regulatory highlights from the last week illustrate the more forthright and subtle aspects of the transition from one Administration to the next.  A judgment in one district court probably sounded the death knell for a major labor regulation while another district court enjoined a regulation barring arbitration clauses.  Judgment and discretion were displayed in… Continue Reading

Presidential Regulatory Transition: A Post-Election Monday Morning Review – 11/14/16

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

Understanding the regulatory significance of the 2016 Presidential election focuses on both the authority of the current President of the United States (POTUS) and the President-elect of the United States.  The current POTUS, quite naturally, will seek to institutionalize his legacy while the incoming POTUS will seek to undo his predecessor’s regulatory actions that are… Continue Reading

Monday Morning Regulatory Review – 11/7/16: SCOTUS Grants New Regulatory Preemption Case

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

The United States Supreme Court (SCOTUS) added another administrative law case to its argument docket on Friday, granting certiorari in Coventry Health Care of Missouri v. Nevils (SCOTUSblog case page), a case of whether deference is due a regulatory interpretation of a statute that preempts State law.  The issues present an opportunity for clarification of… Continue Reading

Monday Morning Regulatory Review – 10/24/16: Nondiscretionary Employment Analysis; Discretionary Dismissal Remand; Long-Term Care Arbitration & Immigration Fees, Budgets, and Policy

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Flexibility & Small Business

In two very different cases, one district court found that an agency has a nondiscretionary duty to conduct detailed analysis under a statute in taking many different actions, while another district court found that an agency erred in dismissing an appeal because it misinterpreted its own regulations as mandatory when they were clearly discretionary.  An… Continue Reading

Monday Morning Regulatory Review – 10/17/16: Mortgage Lending Enforcement Failure; Labor Complaints Contract Clause & Pipeline Emergency Confusion

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

A major loss for the Administration’s policy occurred last week in the failure of a most significant enforcement of post-mortgage-crisis legislation, but not in the organic constitutional way that garnered much attention, but rather in the field of specific rights and administrative law.  A new challenge was filed to another Administration signature regulation – in… Continue Reading

Monday Morning Regulatory Review – 10/10/16: Fiduciary Litigation and Arbitration; Mandatory Labeling Speech & Nonacquiescence Regulation Petitions

Posted in Judicial Process, Judicial Review & Remedies

New grist for the regulatory litigation mill emerged in an additional but very different challenge to one aspect of a suite of highly litigated rules; a follow-on challenge to an agency’s lack of response to vacatur of prior statutorily required regulations; and a challenge to an agency policy guiding how it will respond to adverse… Continue Reading

Monday Morning Regulatory Review – 9/12/16: Silence, Gaps, Limits & Tips; Flashing Lights, Highway Guidance & Standing; and Remanded Emissions Budgets Return

Posted in Judicial Process, Judicial Review & Remedies

Two interesting cases were handed down last week.  One is a complicated dissent from denial of a petition for rehearing en banc that raises questions of agency regulation of a subject that falls either in a gap in the statute or outside the subject of the statute.  The second case focuses on standing to challenge… Continue Reading

Monday Morning Regulatory Review – 9/5/16: Guns, Drugs, and Guidelines; Nonacquiescence Not Arbitrary and Capricious; & Anti-Bacterial Soap and Passport Over-Regulation

Posted in Judicial Review & Remedies, Regulatory Process

Labor Day 2016 will be no holiday for regulatory experazzi, at least in this post.  Last week, a court of appeals affirmed dismissal of a host of constitutional claims that overshadowed an ineffectively plead Administrative Procedure Act (APA) claim – and the decision reprises the circuit law on when guidance becomes a rule only to… Continue Reading

Monday Morning Regulatory Review – 8/29/16: School Gender Identity Guidance Enjoined; Medicare Reconciliation Criteria; Food Rules Compliance Reality; Broadcast Ownership Again – Still & Heavy Speed Limiters

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

Summer’s end (not Childhood’s End) brings the opening of schools across the country without the looming Administration guidance on gender identity.  More complex is the new overhang of Medicare hospital reimbursements that may not be recouped because of an agency failure to adopt criteria through notice and comment rulemaking.  On the other hand, in reality… Continue Reading

Monday Morning Regulatory Review – 8/15/16: Energy, Coolers & Carbon, and Crude Oil Trains Time

Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

A summer lull in regulatory practice provides two significant actions are worth noting.  The first major challenge to the Administration’s theoretical Social Cost of Carbon (SCC) came up short – as did a bevy of other challenges in a court of appeals.  At the other end of the procedural spectrum, an agency publishes today a… Continue Reading