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

Tag Archives: guidance

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

SCOTUS Affirms Injunction of Obama Administration Immigration Policy with Silence

Posted in Judicial Process, Regulatory Process

The United States Supreme Court (SCOTUS) in United States v. Texas today affirmed the United States Court of Appeals for the Firth Circuit decision by an equally divided Court (4 – 4):  the preliminary injunction continues to bar the Obama Administration’s deferred action and employment authorization program for aliens.  The Fifth Circuit decision will have… Continue Reading

SCOTUS Affirms “Waters of the United States” Jurisdictional Determination is Final Agency Action Subject to Judicial Review

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

The United States Supreme Court (SCOTUS) today unanimously (with concurrences) held that in United States Army Corps of Engineers v. Hawkes Co., Inc. that the Armey Corps of Engineers’ decision to assert Clean Water Act (CWA) jurisdiction over a parcel of land is a final agency action subject to judicial review under the Administrative Procedure… Continue Reading

Monday Morning Regulatory Review – 5/30/16: Agency Delays and Judicial Remands; Gender Guidelines Complaint; Fiduciary Rule Joint Disapproval Disapproval; Education Accountability Accountability & Fueling Renewable Fuels

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies, Legislation, Regulatory Flexibility & Small Business, Regulatory Process

The long-running saga of the Federal Communications Commission (FCC) attempts to provide diversity in the broadcast industry pushed forward by a court last week.  Another court, however, faces the daunting task of sorting out whether a high-profile “Dear Colleague” “guidance” letter actually constitutes a rule that the agency must promulgate through Administrative Procedure Act (APA)… Continue Reading

Monday Morning Regulatory Review – 5/16/16: Deeming Rule & Litigation; Safety and Health Electronic Recordkeeping; Reconstructed or Modified Methane; Transgender Accommodations Guidance; & Conflicting Disability Compliance

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Process, Regulatory Flexibility & Small Business, Regulatory Process

Highlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions.  The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued.  A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive… Continue Reading

Monday Morning Regulatory Review – 1/25/16: SCOTUS Takes on Immigration Executive Action; Clean Power Progresses; STEM Vacatur Delayed; Joint Employer Guidance; Programming Vacation

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

Washington shut down for the weekend, but the administrative process never sleeps. Prime from last week, the United States Supreme Court (SCOTUS) decided to hear a mishmash of immigration executive action questions, but may not decide them, while the United States Court of Appeals for the District of Columbia decided not to stay the Administration’s… 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 – 7/20/15: More WOTUS Litigation; Contraceptive Coverage Uncovered & Employee / Independent Contractor Guidance

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

As Washington swelters, the regulatory docket remains relatively cool. Among last week’s highlights, litigants further challenged the regulatory jurisdictional definition of “Waters of the United States” and the current, now published final iteration of Obamacare contraceptive coverage rules generate more issues for potential litigation. On a less-than-regulatory front, new guidance on the distinction between employees… Continue Reading

Monday Morning Regulatory Review – 07/06/15: Empty Overtime Proposal & WOTUS Litigation Deluge

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

Two significant actions in regulatory affairs in the week past, other than United States Supreme Court decision, are worth note. The Department of Labor (DOL) published its controversial Fair Labor Standards Act (FLSA) minimum wage ceiling requirement in today’s Federal Register, but the proposed rule raises less substance and greater procedural problems than expected. At… 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 – 12/8/14: 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

Monday Morning Regulatory Review – 9/29/14: SCOTUS 2014 Term Preview

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

Rather than looking back to last week, this edition of the Monday Morning Regulatory Review focuses on the United States Supreme Court (SCOTUS) return to the conference room this morning, and to the bench on October 6, after a three-month flextime / flexplace schedule.  SCOTUS will take up a number of critical regulatory and administrative… Continue Reading

Monday Morning Regulatory Review – 9/22/14: CFTC Extraterritorial Application; Food Safety Rules; & OMB Reviews

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

Summer is clearly over and the regulatory machinery is back up to full speed.  The United States District Court for the District of Columbia remanded without vacatur more than half a dozen Commodities Futures Trading Commission (CFTC) rules for failure to adequately explain the costs and benefits of extraterritorial application of those rules.  Within the… Continue Reading

Monday Morning Regulatory Review – 7/14/14: Hobby Lobby Legislation; Guidance Finality; & Minimum Wage Extension

Posted in Judicial Review & Remedies, Legislation, Regulatory Process

Each branch of government contributed a highlight to an otherwise somnambulant summertime week.  Congressional members responded to the United States Supreme Court (SCOTUS) Hobby Lobby decision with new legislation that raises new questions.  The United States Court of Appeals for the District of Columbia Circuit held Friday that the Environmental Protection Agency (EPA) guidance to… Continue Reading

Monday Morning Regulatory Review – 7/7/14: Hobby Lobby Realities; Open Internet, Closed FCC; and ACUS Recommendations: Preambles as Guidance & Ex Parte Contacts

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

The holiday-shortened week was highlighted by judicial and Administration reaction to the United States Supreme Court (SCOTUS) decision in Burwell v. Hobby Lobby that the Administration failed to comply with the Religious Freedom Restoration Act (RFRA) in promulgating Obamacare preventative contraceptive care exemption regulations – and the issue will return frequently as the parties and… Continue Reading

SCOTUS to Decide Whether Rulemaking Is Required When Agencies Change Established Guidance on Statutes and Regulations

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) today granted certiorari in Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association and consolidated the cases for one hour of oral argument next term.  These two cases arise from the previously noted United States Court of Appeals for the District of Columbia Circuit decision in Mortgage… Continue Reading

Monday Morning Regulatory Review – 5/19/14: Open Internet or Net Neutrality; Broadcaster Shared Resources; Conflict Mineral Stays III; Coal Dust Consolidation; & ACUS Agenda

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

The Federal Communications Commission (FCC) proposed their response to the loss of their “net neutrality” rules, and a petition was filed challenging guidance on transactions under the broadcast ownership rules, another sore spot in the FCC’s regulatory warehouse.  The United States Court of Appeals for the District of Columbia Circuit declined to stay the remainder… Continue Reading

Monday Morning Regulatory Review – 3/31/14: Obamacare Extension; Waters of the United States; IRS Meets Bitcoin; & COOL Regulations Preliminary Injunction Denial Affirmed

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

Anthology of the highlights of the last week in regulatory practice is somewhat focuses on some large issues that drew immediate attention, even if the substantive resolutions are many years away.  Foremost (of course) is the latest adjustment in Obamacare in Bulletins from the Department of Health and Human Services (HHS) Centers for Medicare and… Continue Reading

Monday Morning Regulatory Review – 3/3/14: FDA Food Labeling; DOJ Guidelines on Journalist Subpoenas; & EPA Greenhouse Gas Data

Posted in Agency Authority, Regulatory Process

Odds and ends from the Federal Register last week  The Department of Health and Human Services (HHS) Food and Drug Administration (FDA) proposed wholesale changes in food labeling, a White House priority.  The Department of Justice (DOJ) published a non-regulatory controversial final policy on how it will relate to news media in requesting information and… 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 – 12/9/13: Deferring Obamacare; International Swaps Derivatives; Economically Significant Right Whales & Social Cost of Carbon Comments

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

Significant events of the past week include a hearing before the House Judiciary Committee on the implementation of Obamacare – and the legality of deferring enforcement; a new suit challenging the Commodities Futures Trading Commission (CFTC) ongoing attempts to regulate the complex international derivative swaps markets; concluding the latest chapter in protecting the Right Whale… Continue Reading

Monday Morning Regulatory Review – 11/4/13

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

Obamacare (the Patient Protection and Affordable Care Act or PPACA) remained in the spotlight last week with visible website problems and individual non-conforming insurance policy cancellations, but here the issues are more distinct:  the growing intercircuit conflict over the contraceptives mandate under the Religious Freedom Restoration Act (RFRA), and adoption of a new “hardship” exemption… Continue Reading

Monday Morning Regulatory Review – 10/28/13

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

The Engine of Government fully engaged last week, paperwork to follow.  The Administration “announced” an interpretation of the Patient Protection and Affordable Care Act (PPACA, aka ObamaCare) that permits more time for individuals to acquire health care and avoid tax penalties, while the United States District Court for the District of Columbia denied a preliminary… Continue Reading

Monday Morning Regulatory Review – 9/23/13

Posted in Regulatory Process

Substantial regulatory movement last week portends future litigation as agencies took major steps that will impose new costs or alter business planning.  The most significant three releases were: Environmental Protection Agency (EPA) greenhouse gas proposed rules for new electrical generating plants; Department of Labor (DOL) final Fair Labor Standards Act (FLSA) regulations applicable to home… Continue Reading