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

Tag Archives: good cause

Monday Morning Regulatory Review – 3/13/17: Unified Agenda Data Call; Rare Earth Magnet Exit; Regulatory Defense Jitters & Disapproval Resolutions

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

The Administration attempts to move toward a normal flow in the regulatory process as the docket thaws ever so slightly and it instructs agencies on the process of establishing their regulatory agendas.  Old regulations, however, sometimes die ignominious deaths, such as removal from the Code of Federal Regulations after vacatur, while others fate is so… 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  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current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 – 1/30/17: High Policy, Politics & Limitations; Withdrawals; and Request for Information not a Proposed Rule

Posted in Judicial Review & Remedies, Regulatory Process

The first full week of the Trump Administration provided few surprises.  The White House continued to enunciate the high-level policy (or Policy) that its expects agencies to implement and the agencies have retreated to rereview rules that have not taken effect or were still pending review.  A least one hasty final rule met a temporary… Continue Reading

Monday Morning Regulatory Review – 1/16/17: WOTUS Jurisdiction & Venue; Arbitration Bars; Deference without Deference; Mandatory Duties & Remedies; Regulatory Accountability Act Reprise; Expedited Removal and Cubans; Good Cause Overdose & Communicable Disease Incaution

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

The United States Supreme Court (SCOTUS) added to its argument calendar Friday, including several that could implicate future regulatory practice – including jurisdiction to review regulations and the potential scope of arbitration-limiting regulations.  In lesser lights, a Court of Appeals determined that an agency’s interpretation was correct without the agency, while a district court imposed… 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

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 – 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 – 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

Monday Morning Regulatory Review – 7/11/16: A Regulatory Litigation Snapshot

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

The shortened holiday week generated few regulatory events and no real highlights, creating an opportunity to survey the major regulatory litigation as this Administration enters its final six months.  This post highlights major litigation over the Administration’s priorities – particularly those stayed or preliminarily enjoined, and those at risk.  The extent of this litigation risk… Continue Reading

Monday Morning Regulatory Review – 6/27/16: Drone Regulations Finally Fly; Hydraulic Fracking Rule Drilled; First Persuader Decision Unpersuaded; Compost Guidance Composted & Civil Monetary Penalties Adjusted

Posted in Agency Authority, Judicial Process, Regulatory Process

With the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice.  In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively… Continue Reading

Monday Morning Regulatory Review – 5/9/16: Consumer Class Non-Arbitration; Citizenship and Immigration Fees, Mental Competency for Firearms & Health COOP Exceptionalism

Posted in Agency Authority, Regulatory Process

Four highlights from last week’s regulatory practice include unsurprisingly swings in money issues and engagement in one of the most emotional topics for any regulatory.  The Consumer Financial Protection Bureau (CFPB) took steps to rein in arbitration clauses in consumer financial services contracts.  The Department of Homeland Security (DHS) proposed substantial increases in citizenship and… Continue Reading

Monday Morning Regulatory Review – 4/11/16: Corporate Inversions Ruled Out; Untrusted Fiduciary Rule; Sanitary Transport; Silica Suits & Agency Authority Constitutional Challenge

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

The Administration fully engaged in institutionalizing its policies through promulgated rules with the Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Food and Drug Administration (FDA) all publishing economically significant final rules this week.  Petitions for review challenged the Occupational Safety and Health Administration (OSHA)’s crystalline silica rule as expected.  In… Continue Reading

Monday Morning Regulatory Review – 3/21/16: SCOTUS Weighing Regulatory Accommodation; Another MATS Challenge; Overtime Laboring; Speculative Endangerment; & Removing Obsolescence

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

This week the United States Supreme Court (SCOTUS) will take up the latest edition of a significant statutory and regulatory conflict and SCOTUS may soon return to another substantial Administrative Procedure Act (APA) remand without vacatur case.  Far up the street, the Office of Management and Budget (OMB) began review of one of the more… Continue Reading

Monday Morning Regulatory Review — 3/14/16: Administration’s Unpublished Grade; OPT STEM ReRule; Joint Passport and Visa Emergencies & Aircraft Performance / Design

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

The Administration may have finally dispatched litigation over one of its more troubling proxy choices last week, while agencies responded to one recent potential and one ancient complete vacatur. On a positive note, a new proposal to replace control standards with performance standards deserves a look as a matter of principle if not for its… Continue Reading

Monday Morning Regulatory Review – 2/22/16: Drone Litigation; COOL Removal & Passenger Screening

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

A holiday-shortened week in regulatory practice found new challenges to drone regulations highlighting some of the peculiarities of regulations attempting to catch up with reality. The demise of authority for country of origin labeling regulations caused its originating agency to submit a new rule for interagency and executive review. Completing review of passenger screening rules… Continue Reading

Monday Morning Regulatory Review – 1/18/16: SCOTUS Returns; Law Practice & Mortgage Relief Regulation; V2V Communications; and No Reginfo

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

The United States Supreme Court (SCOTUS) returned last week to open several new lines of inquiry that impact regulatory practice, but has not yet decided whether the hear the case of the year. At the trial level, a district court invalidated narrow regulations applicable to attorneys practicing law in one federalized realm. The Department of… Continue Reading

Monday Morning Regulatory Review – 1/11/16: Firearms Executive Action; IRS Withdrawal & Petition Petition Jurisdiction

Posted in Agency Authority, Judicial Process, Regulatory Process

The President of the United States (POTUS) dominated regulatory affairs last week by announcing firearms executive actions and the devil, as always, is in the details. Two other actions at least deserve a mention – the appropriate withdrawal of a contentious proposed rule that simply did not work and the dismissal of a complaint in… Continue Reading

Monday Morning Regulatory Review – 12/21/15: Drone Registration; Remand Without Vacatur Time & Commercial Air Efficiency

Posted in Judicial Review & Remedies, Regulatory Process

A holiday drone gift contains a new requirement today – registration with the Federal Aviation Administration (FAA). On old issues, the United States Court of Appeals for the District of Columbia Circuit remanded a regulatory action and denied mandamus to compel an agency response to a remand. Finally, the Department of Energy (DOE) claimed the… Continue Reading

Monday Morning Regulatory Review – 12/7/15: Drone Registration Prospects: APA Petitions & A Sovereign Immunity Caution; and D.C. Circuit Argument Docket

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

The regulation of drones took a step forward last week, but that step may be very tentative. The interrelationship between general petitions for rulemaking and specific requirements of programmatic statutes was the focus of a district court dismissal, albeit a temporary one. In the United States Court of Appeals for the District of Columbia Circuit,… Continue Reading

Monday Morning Regulatory Review – 11/16/15: Food Safety Rules Up; Energy Efficiency Removal; Conflict Minerals Review Denial; & WOTUS Forward

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

The most significant agency action in regulatory practice last week may have been the release of three long-delayed Food Safety Modernization Act (FSMA) final rules. Courts took a number of small steps toward resolving challenges to Administration priority regulations, but no particular signal from these actions appears evident, except for the affirmance of the preliminary… Continue Reading