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

Tag Archives: notice and comment

Monday Morning Regulatory Review – 2/3/14: Volcker & Trust Preferred Securities; SOTU Contractor Minimum Wage; Battery Charger Efficiency; Safe Food Transport; and CDL Drug & Alcohol Clearinghouse

Posted in Agency Authority, Regulatory Process

This week in federal regulatory practice was highlighted by agency action rather than litigation, particularly the long-anticipated and delayed publication of the Volcker Rule and its first amendment, formally starting the clock for implementation and litigation.  The most significant action in the Administration’s long-term goals was President (POTUS)’s announcement that he would require federal contractors… 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

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 – 11/18/13

Posted in Agency Authority, Regulatory Process

After a deluge in last week’s multi-part Monday Morning Regulatory Review, this week is composed of odds and ends mostly bound together by the issue of funds transfers.  The Congressional Budget Office (CBO) released a menu of cost cutting and revenue enhancing measures that included the ever-devilish idea of increasing (and collecting) more fees from… 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 – 10/14/13

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

The government shutdown – now in its 14th day – should leave little for a blog on federal regulations, but not quite so.  Admittedly, the weekly scour has become more complicated, but much fodder remains to be chewed.  A brief look at the state of the process reveals agencies like the Federal Reserve Bank and… Continue Reading

Judicial Review of An Orderly Shutdown of Government – Regulatory Process

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

The Government is closed – somewhat – and the regulatory process surely is winding down but will not entirely stop.  The funding lapse with closing the books on FY2013 and no appropriations in place for FY2014 set in motion an “orderly shutdown” yesterday.  What that means from a regulatory process perspective is as varied as… Continue Reading

APA Notice, Public Comment & Procedural Rules: Learning from FCC Mistakes

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the Second Circuit, in Time Warner Cable Inc. v. Federal Communications Commission (FCC), recently vacated and remanded one portion of the FCC’s 2011 rules that govern (loosely said) “television” that sought to prevent program blackouts by extending network programming contracts beyond their expiration.  While petitioners launched a broad… Continue Reading

D.C. Circuit Orders Labor FLSA Interpretation Vacated & Clarifies APA Requirements

Posted in Judicial Review & Remedies, Regulatory Process

In yet another blow to the current Administration’s attempts to rewrite policy, the United States Court of Appeals for the District of Columbia Circuit vacated a decision of the district court and remanded with instructions to vacate a 2010 Department of Labor (DOL) Fair Labor Standards Act (FLSA) opinion letter – Mortgage Bankers Association v…. Continue Reading

SCOTUS Review: Administrative Law Cases in the 2012 Term

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

The United States Supreme Court (SCOTUS) decides a few significant administrative law cases each Term and the Term just concluded was no exception.  Although “administrative law” decisions do not draw the interest of the more volatile constitutional cases that the general press finds so tantalizing, administrative law and related decisions profoundly affect how Americans live… Continue Reading

EPA Tier 3 Vehicle Emissions Standards: Too Little Time to Comment

Posted in Judicial Review & Remedies, Regulatory Process

The Environmental Protection Agency (EPA) today published its Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards proposed rule in the Federal Register.  Unfortunately, public comments are due on this proposed rule on June 13, 2013 – only 24 days from now.  In short, the massive 1,572 typescript pages,… Continue Reading

Homeland Security & Labor Issue H-2B Regulations: Authority Solved?

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

The Department of Homeland Security (DHS) and the Department of Labor (DOL) moved quickly – perhaps too quickly – to resolve legal authority issues raised by recent court decisions vacating low-skilled worker visa (H-2B) regulations by adopting a “joint” interim final rules (IFR) that is available for public inspection and will be published in tomorrow’s… Continue Reading

EPA’s Tier 3 Vehicle Emission Reduction Proposed Rule: Good, Bad, …

Posted in Regulatory Process

Last week’s major administrative law milestones are not over, but this post is a little different:  plaudits and pans for the Environmental Protection Agency (EPA) regulatory process.  EPA released its pre-publication, long awaited, much debated, and massive Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards proposed rule on… Continue Reading

More Alien Worker Wage Rules Vacated under APA: What H-2B Rules Apply?

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

While much attention in the immigration arena has focused on a new employment verification document, the potentially rapid filling of the professional employees (H-1B) temporary visa quota, and the apparent conflict over determining wage rates for foreign workers that may be stalling Senate negotiators, wage methodology for the unskilled workers temporary visa category (H-2B) is… Continue Reading

Letters to a Senator: 8th Cir. says EPA violated APA Requirements

Posted in Judicial Review & Remedies, Regulatory Process

Occasionally, an opinion begs to be quoted, and so no further introduction is needed to the United States Court of Appeals for the Eighth Circuit’s March 25, 2013, opinion in Iowa League of Cities v. EPA: The Iowa League of Cities (“League”) seeks direct appellate review of two letters sent by the Environmental Protection Agency… Continue Reading

APA Circuit Split – Notice and Comment Good Cause Bypass in SORNA Retroactivity Regulations

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the Third Circuit, on remand from the United States Supreme Court (SCOTUS) in United States v. Reynolds, summarized and joined the complex circuit split on three Administrative Procedure Act (APA) questions applied to the retroactivity of the Sex Offender and Registration Notification Act’s (SORNA) registration requirements.  The first… Continue Reading

Monday Morning Regulatory Review – 2/18/13

Posted in Constitutional Issues in Regulations, Executive - OMB Review, Regulatory Process

The Consumer Finance Protection Bureau (CFPB), along with some cohorts, published a flurry of four final rules last week that will give banking and mortgage attorneys plenty to read and absorb – and consider anew whether the CFPB can legitimately issue these rules.  Adding a little fuel to the Noel Canning fire, a House of… Continue Reading

4th Circuit Reinforces APA Requirements in Rejecting Alien Worker Wage Appeal

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the Fourth Circuit turned aside workers attempts to collect back wages from a time while the Obama Administration Department of Labor (DOL) had attempted to “suspend” a Bush Administration rule through a deficient Administrative Procedure Act (APA) notice and comment process.  North Carolina Growers Ass’n v. United Farm… Continue Reading

Monday Morning Regulatory Review – 11/12/12

Posted in Executive - OMB Review, Judicial Review & Remedies

On Election Night, the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) was reviewing 147 significant rules, proposed rules, and other notices.  With the election over, the floodgates have now cracked.  OMB’s docket has suddenly grown to 158, and we may expect to see many more rules – and perhaps… Continue Reading

Monday Morning Regulatory Review – 10/29/12

Posted in Regulatory Process

Washington (with the Federal Government closed) braces for approaching storm Sandy – not regulatory, at least this week, but the regulatory tsunami appears more destined to occur than ever.  The Spring 2012 Unified Agenda now appears to have been an exercise in futility and wasted resources, as the Office of Information and Regulatory Affairs (OIRA)… Continue Reading

Supreme Court Argument: Interpreting Regulations During Litigation II

Posted in Judicial Process, Judicial Review & Remedies

The United States Supreme Court heard argument this morning in Christopher v. SmithKline Beecham Corporation on the issue of the proper interpretation of the Fair Labor Standards Act’s (FLSA) outside sales representative exception to overtime, and, more importantly from this blog’s perspective, whether courts should defer to agency interpretations that appear only in amicus curiae… Continue Reading

IRS violated APA, Must Propose Rule, in Phone Service Excise Tax Refund Case

Posted in Judicial Review & Remedies

The U.S. District Court for the District of Columbia today finally held that an IRS published “notice” (setting out the requirements for taxpayers to claim credit for illegally levied telephone excise taxes) should have been issued through Administrative Procedure Act (APA) “notice and comment” rulemaking.  In Re Long-Distance Telephone Service Federal Excise Tax Refund Litigation. … Continue Reading

Be Sued & Settle – Agencies Can’t Avoid Administrative Law

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

The practice of suing and (immediately) settling litigation does not override the requirements of the Administrative Procedure Act (APA), the Regulatory Flexibility Act (RFA), and other statutory requirements, but it may limit the Administration’s discretion to review regulations under Executive Orders 12866 and 13653.  Defenders of Wildlife v. Jackson illustrates this practice’s lack of transparency… Continue Reading