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

Tag Archives: logical outgrowth

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 – 7/25/16: Immigration Rule or Non-Rule Rehearing; Contraceptives Information Request & Zubik Review; Distance Learning Accreditation & Payday Loans

Posted in Judicial Review & Remedies, Regulatory Process

Inter-convention, highlights from regulatory practice might be sparse, but both litigation and regulation provide some spice.  The Administration filed a petition for rehearing in the immigration policy case and a further response to the remand of a dozen decisions on the Administration’s contraceptive mandate application to religious organizations.  Two rules with regulatory process implications were… Continue Reading

Monday Morning Regulatory Review – 6/6/16: Warning Letter Finality; Untrusted Fiduciary Rule Tested; Great Lakes Pilotage Foundering; Oyster Illness Hazard Petition Grounding & Payday Loans Proposal Interest

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

The United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation.  In two different district courts, expected litigation challenged another Department of Labor (DOL)… 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 – 11/23/15: Immigration Executive Action Petition; Electric MATS Appropriate and Necessary Finding; Pollutant Good Neighbors; Airport Passenger Screening; & Unified Agenda Expectations

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

The Administration, unsurprisingly but nonetheless most significantly, petitioned the United States Supreme Court (SCOTUS) to review the continuing preliminary injunction against part of the Department of Homeland Security (DHS) not-a-regulation immigration executive action. On the other hand, the Environmental Protection Agency (EPA) responded to a not-yet remand and a remand of different rules. DHS took… Continue Reading

Monday Morning Regulatory Review – 10/26/15: Clean Power Plan Published, EPA sued; And Ozone, too; TSA Mandamused on Body Scanners; Drone Registry Comments and Committee; & Labor Fiduciary Standards Interpretation

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

The Environmental Protection Agency (EPA) took center stage last week with the publication of the Clean Power Plan and the immediate litigation, but also with today’s publication of new ozone standards. Drawing less public attention, but equally important, a court demanded a schedule for long overdue airport screening regulations, a new advisory committee will consider… Continue Reading

Monday Morning Regulatory Review – 10/12/15: WOTUS Stayed Nationwide & Vacatur Remedies – Shepherds Wages or Optional Practical Training

Posted in Judicial Process, Judicial Review & Remedies

Regulatory practice events of the past week focused on judicial review and agency response. On one hand, the Administration lost a major skirmish in the tangled litigation over the regulatory definition of waters of the United States. On the other hand, two interim regulatory events illustrate the effect of judicial delayed vacatur orders and agency… Continue Reading

Monday Morning Regulatory Review – 8/31/15: WOTUS Dammed, but How Much?

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

One highlight from the last week in regulatory practice overshadowed all else: confusion over fundamental administrative law and judicial review issues far beyond the confines of environmental law became evident in conflicting court decisions and the damming of the Environmental Protection Agency (EPA) and Army Corps of Engineers’ Clean Water Rule: Definition of Waters of… Continue Reading

Monday Morning Regulatory Review – 7/27/15: WOTUS Litigation Joined; CFPB Recess Appointment Challenge Revived; Contraceptive Insurance Exception & Immigration Executive Action Regulation

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

Litigation dominated regulatory practice last week. New filings in the Waters of the United States litigation clarified, as expected, some issues and process in nearly a dozen different district courts, and two court of appeals standing decisions will require the Administration to respond to a recess appointment challenge and an individual exception to the Obamacare… Continue Reading

Monday Afternoon Regulatory Review – 2/23/15: Drone Release & Problems; Arctic Drilling; Immigration Executive Action Litigation II & IIA; and Agriculture High-Stepping Authority

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

The most noteworthy highlight of this week in review is the Department of Transportation (DOT)’s Federal Aviation Administration (FAA) publication of the much anticipated proposed drone rule – which, now that it is available, may or may not have justified the anticipation. The Department of the Interior (DOI) will publish tomorrow a proposal to revise… Continue Reading

Monday Morning Regulatory Review I – 11/3/14: Notice and Logical Outgrowth; Standing Fall Down; Revised Contraceptive Rule Preliminary Injunction; SCOTUS Watch; and Shepherds’ Wages Rule

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

Catching up on the last two weeks presents a challenge:  many small actions vie for attention with a small lesson.  The United States Court of Appeals for the District of Columbia Circuit focused on the Administrative Procedure Act (APA)’s notice / logical outgrowth problem and organizational standing in two recent cases.  Two district courts issued… 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

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

Administrative Procedure Act Logical Outgrowth & Lack of Notice: D.C. Circuit Affirms Vacatur of HHS Hospital Reimbursement Rule

Posted in Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia today affirmed the vacatur the portion of a Department of Health and Human Services (HHS) final rule setting hospital reimbursement rates because the final rule took a position diametrically opposed to the proposed rule without adequate notice that the final position was a possibility… 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 – 12/16/13: Obamacare Deadlines; Labor Elections Rule; Swaps Litigation; Vacating Empty Rules; & the Volcker Rule

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

Regulatory highlights from the past week include the Administration pushing back the deadline for applying for Obamacare and then begging insurance companies for even more time and leniency.  Two independent agencies – the Commodities Futures Trading Commission (CFTC) and the National Labor Relations Board (NLRB) threw in the towel on litigation and proposed new rules… 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

Administration’s Higher Education Act Rules Get Failing Grade from D.C. Circuit

Posted in Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit in a lengthy opinion today vacated or remanded significant parts of the Department of Education (DOE)’s signature Higher Education Act (HEA) regulations in Association of Private Sector Colleges and Universities v. Duncan.  The court of appeals reasoned that DOE: failed to provide an… Continue Reading

Monday Morning Regulatory Review – 4/30/12

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

Regulations:  The Office of Management and Budget (OMB) began review on three more Small Business Administration (SBA) planned system of adjustments to the Small Business Size Standards, which generally increase the scope of regulatory flexibility analyses and the pool of businesses that are eligible for small business contracts.  OMB completed review of SBA final rules… Continue Reading