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
Tag Archives: notice and comment
Homeland Security & Labor Issue H-2B Regulations: Authority Solved?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessThe 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 ProcessLast 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 ProcessWhile 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 ProcessOccasionally, 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 ProcessThe 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 ProcessThe 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 ProcessThe 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 & RemediesOn 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 ProcessWashington (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
Labor Rules Increasing Notice of Tip Off-Set Do Not Violate APA or RFA
Posted in Judicial Review & RemediesAt the end of last month, this blog noted that the United States District Court for the District of Columbia would hear cross motions to dismiss / summary judgment in National Restaurant Association [NRA] v. Solis, a challenge to the Department of Labor (DOL)’s update of the Fair Labor Standards Act (FLSA) regulations. This case… Continue Reading
Supreme Court Argument: Interpreting Regulations During Litigation II
Posted in Judicial Process, Judicial Review & RemediesThe 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 & RemediesThe 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 ProcessThe 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
Shifting an Agency’s Responsibility to the Public: The FCC’s Bad Idea
Posted in Judicial Review & Remedies, Regulatory ProcessIn an editorial in the University of Pennsylvania Program on Regulations RegBlog this week, Prof. Cary Coglianese pointed out that the FCC has published a notice in the Federal Register Public seeking comment on whether it should require commenters to file materials they cite in their comments on FCC rules so that the cited material… Continue Reading
Clean Air Act and APA Effective Date Stays: Sierra Club v. Jackson – again
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe EPA’s Clean Air Act (CAA) rules may become effective in short order, imposing major new requirements on industry: National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler Rule) and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and… Continue Reading