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

Tag Archives: OIRA

Monday Morning Regulatory Review – 5/8/17: Appropriations Impact on Regulations; Pending Disapproval; Legislation Repealing Regulation; WOTUS Reconsideration; Contraceptive Mandate Reconsideration; & Compliance Extension Good Cause

Posted in Agency Authority, Executive - OMB Review, Regulatory Process

Regulatory practice last week presented a number of different Congressional interventions – from the complexity of a Consolidated Appropriation for the remainder of the fiscal year, to disapproval of a regulation under the Congressional Review Act (CRA), to a direct legislative vitiation of a final rule.  The Administration took two different steps toward reconsideration of… Continue Reading

Monday Morning Regulatory Review – 5/1/17: Clean Power Plan & Mercury Holds; Litigation Choice & Appropriation Limitation; and Complicated Executive and Interagency Reviews

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

Litigation over two more major rules was put on hold last week, leaving little actual litigation over past Administration rules proceeding – with small exceptions that may be short lived.  At the same time, one court of appeals recognized the reality of appropriations effectively limiting agency discretion – particularly when court orders have consumed limited… Continue Reading

Monday Morning Regulatory Review – 4/24/17: Buy and Hire American; Rethinking Tax Regulations Review Exceptionalism & Executive Order Law

Posted in Executive - OMB Review, Regulatory Process

Executive Orders dominated last week in regulatory practice, with one policy redirection and a second that has potential for doctrinal change.  A limited executive and interagency review docket, Congressional recess ahead of a budget showdown, and judicial review being held in abeyance in most challenges to regulations leave little more to discuss, but a summation… Continue Reading

Monday Morning Regulatory Review – 4/17/17: Animal Waste Exception Flushed; Ozone on Hold & Review Docket Nap

Posted in Judicial Process, Regulatory Process

All relatively quiet on the regulatory front – but that could be deceptive.  One notable decision vacated a rule adopted in the waning days of the Bush Administration in 2008.  Many pending cases are being held in abeyance pending review and reconsideration by the present Administration – the latest being a challenge to the national… Continue Reading

Monday Morning Regulatory Review – 4/10/17: Gorsuch to SCOTUS while SCOTUS Denies WOTUS Abeyance; Implementing Regulatory Reform Memorandum & Administrator Nominee; and Plain Snakes Not InterSTATE Shipments

Posted in Judicial Process, Regulatory Process

Unsurprising, the Senate confirmed a new Justice last Friday while the United States Supreme Court (SCOTUS) he is about to join continued adjudicating a minimal regulatory law docket, at least rejecting the notion that it should stay one case where the new Administration seeks to modify the underlying rule.  At the other end of Pennsylvania… Continue Reading

Monday Morning Regulatory Review – 3/27/17: Lack of Regulatory Plan as Default

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

Regulatory practice remains in a curious near-catatonic state two months after the inauguration of a new Administration.  Legislation is amputating prior rules, almost no affirmative regulatory activity is noticeable, and judicial review has slowed markedly while awaiting the Administrative to state of its intentions.  Doctrinal development has all but ceased for the time being.

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 – 2/13/17: Fiduciary Reconsideration; Executive Order Litigation; Regulatory Deconstruction & Executive and Interagency Review

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

Relative quietude on the surface of regulatory practice belies shifting tides.  A challenge to one major rule from the prior Administration failed, but a new rule is being reviewed to delay the existing rule while a new challenge raises a host of old issues applied to a new Administration.  The First Branch, on the other… 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 – 1/9/17: New Legislative Outlook; Occupational Beryllium & V2V Communications Proposal

Posted in Legislation, Regulatory Process

Congress returned this week and began consideration of old legislative ideas for regulatory reform with a new perspective – and one that now merits attention.  Perhaps the last major labor regulation is published today, but one that may not be as contentious as previous rules have proven to be.  And among transition jumping proposals, vehicle… 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

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 – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

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

Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading

Monday Morning Regulatory Review – 5/23/16: Clean Power En Banc; FLSA Overtime & Exemptions; Food Labeling; E-Cigarettes Baggage & Unified Agenda

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

More surprises after Spokeo and Zubik leavened last week’s regulatory practice, including an order by the United States Court of Appeals for the District of Columbia Circuit to hold en banc oral argument on the many challenges to the Administration’s environmental signature Clean Power Plan.  Major economically significant final rules to hit the street last… Continue Reading

Monday Morning Regulatory Review – 11/30/15: Immigration Executive Action Review; Airport Body Scanners & Drone Registration Recommendations

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

Thanksgiving week is traditionally a slow government period, but a few timing tidbits deserve a nod. Immigration executive action remains a hot topic, even if only timing of when a decision on whether to review might occur. Timing of Department of Homeland Security (DHS) regulations managing whole body scanners at airports remains a problem, but… Continue Reading

Monday Morning Regulatory Review – 2/2/15: OMB Review Substance, Process, Docket & Issues

Posted in Regulatory Process

Last night, the Department of Transportation (DOT) Federal Aviation Administration (FAA) banned drones (and nearly all other flight) from within 30 nautical miles (34.5 miles) and under 18,000’ mean sea level of Super Bowl XLIX in a Notice to Airmen (NOTAM), while its proposed rule to regulate the use of drones – technically known as… Continue Reading

Monday Morning Regulatory Review – 12/1/14: Electric Generating Hazardous Emissions & Costs; Quintennial Ozone Standard; Calorie Counting; and Election Financing Disclosure

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

The very short Thanksgiving workweek was punctuated by a significant new United States Supreme Court (SCOTUS) grant of review of requirements for the Environmental Protection Agency (EPA) in regulating hazardous air pollutants – this time by electric utilities.  The day before Thanksgiving has traditionally been a day for rolling out controversial actions to reduce adverse… Continue Reading

Monday Morning Regulatory Review – 11/24/14: POTUS Immigration Reform; Obamacare Subsidies Docket Clearing; Conflict Minerals Redux; Drones Predux; Renewable Fuel Standards Exdux; and Unified Agenda

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

President Obama (POTUS) finally moved last week to alter immigration policy by signing an executive order and issuing two memoranda, and amid all the political debate over the action, some legal questions need serious answers.  Also last week, several docket changes helped clear different regulatory issues to be ultimately decided by the United States Supreme… Continue Reading

Monday Morning Regulatory Review II – 11/3/14: Gainful Employment; WOTUS Science; and OMB Reviews

Posted in Executive - OMB Review, Regulatory Process

The agencies began to get busy in the two weeks running up to tomorrow’s mid-term elections.  Among key events, the Department of Education (ED) published yet another chapter in the gainful employment saga.  The Environmental Protection Agency (EPA) released the results of a scientific advisory board opining on the Waters of the United States.  The… Continue Reading

Monday Morning Regulatory Review – 10/20/14: Management by Executive Order; Gainful Employment Meetings; OMB Meetings; & Record Completion and Privilege

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

A holiday-shortened workweek and a pre-midterm election pause provide the opportunity to review a few miscellaneous topics.  President Obama (POTUS) issued a new Executive Order seeking to improve the security of federal government credit and debit cards, and improve the anti-fraud environment, but with limited effect.  The Office of Management and Budget (OMB) Office of… Continue Reading

Monday Morning Regulatory Review – 10/6/14: Failing Grades Episode 4; Oklahoma & Obamacare Intercircuit Conflict; and Contractor Minimum Wage

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

Two district court decisions from last week warrant some comment while agencies added more fodder for the judicial review of rules.  The United States District Court for the District of Columbia again revisited the Administration’s failing grades in regulating for-profit colleges, and their scores have not improved, but the court failed to incentivize compliance with… Continue Reading

Monday Morning Regulatory Review – 9/8/14: King / Halbig Delayed & OMB Reviews

Posted in Executive - OMB Review, Judicial Review & Remedies

Welcome back from summer vacation and a brief hiatus for this column.  Even with the Labor Day weekend out of the way, regulatory actions continue at a slow pace.  Of note, two procedural orders delayed the resolution of the intercircuit conflict over whether the Internal Revenue Service (IRS) may permit tax subsidies in States where… Continue Reading

Monday Morning Regulatory Review – 8/25/14: Poultry Inspection; HAZMAT Harmonization; & OMB Reviews

Posted in Executive - OMB Review, Regulatory Process

The Administration’s release last Friday of new Obamacare contraceptive mandate rules in light of recent adverse United States Supreme Court (SCOTUS) decisions overshadowed other agency actions last week, but some are noteworthy.  The Department of Agriculture (DOA) published controversial poultry inspection regulations and the Department of Transportation (DOT) proposed harmonization of hazardous materials regulations with… Continue Reading

Monday Morning Regulatory Review – 6/9/14: Changing Interpretive Rules; Benefit / Cost Analysis Summary; Acronyms & Initializations Caution; and Maintenance Week

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

Today’s review defies categorization, but four significant unrelated events are worth noting.  The United States Supreme Court (SCOTUS) today may grant review in a critical regulatory case raising the necessity of following notice and comment rulemaking for an agency to alter an existing interpretive rule, setting the stage for argument and decision next Term in… Continue Reading