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

Tag Archives: public comment

Monday Morning Regulatory Review – 2/20/17: Delay Challenge; Withdrawal Challenge; First Disapprovals Complete with More to Come & Stability Struggles in a New Regulatory Docket

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

Two cases that challenge the effect of a new Administration’s moratorium on rules pending review by new appointees deserve some attention this week – one challenges a delay of effective date while the other challenges a withdrawal from public inspection prior to publication.  The march of regulatory  disapprovals continued to build with the first two… 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

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

Monday Morning Regulatory Review – 9/26/16: Narrowing Safety Standards Exemptions Still Standards; Money Laundering Adjudication by Regulation; To Be or Not To Be Autonomous Vehicle Policy & Regulatory Week Ahead

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

Regulatory practice highlights this week seem to focus on the margins of general practice and unique relationships of specialty practice.  In one decision, a court of appeals held that an agency failed to follow statutory requirements that supplanted the default requirements while a district court stayed and remanded an unusual regulation as adjudication for failure… Continue Reading

Monday Morning Regulatory Review – 6/20/16: Net Neutrality Upheld; Student Loan De-Arbitration & Removing Affirmative Defenses

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

A court decision upholding the controversial net neutrality rule dominated regulatory practice last week but only for a dearth of other news.  Two proposed rules deserve attention:  another proposal to limit arbitration and class action waiver clauses and a proposal to remove affirmative defenses in certain environmental litigation.

Monday Morning Regulatory Review – 4/11/16: Corporate Inversions Ruled Out; Untrusted Fiduciary Rule; Sanitary Transport; Silica Suits & Agency Authority Constitutional Challenge

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

The Administration fully engaged in institutionalizing its policies through promulgated rules with the Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Food and Drug Administration (FDA) all publishing economically significant final rules this week.  Petitions for review challenged the Occupational Safety and Health Administration (OSHA)’s crystalline silica rule as expected.  In… Continue Reading

Monday Morning Regulatory Review — 3/14/16: Administration’s Unpublished Grade; OPT STEM ReRule; Joint Passport and Visa Emergencies & Aircraft Performance / Design

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

The Administration may have finally dispatched litigation over one of its more troubling proxy choices last week, while agencies responded to one recent potential and one ancient complete vacatur. On a positive note, a new proposal to replace control standards with performance standards deserves a look as a matter of principle if not for its… Continue Reading

Monday Morning Regulatory Review – 3/7/16: Clean Water Rule Complicated; MATS Stay Rejected; Airport Screening Legalized; OPT STEM Revision to Avoid Vacatur; COOL Handful of Nothin’ & De-Vaporizing Airplanes

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

Legal minutiae often drives the greatest of issues and last week proves that point with a petition for rehearing en banc over jurisdiction and the denial of a stay. Logistically, compliance with detailed court orders can prove a challenge for agencies, exhibited by action on two judicially-required rules. In addition, even the nondiscretionary rulemaking and… Continue Reading

Monday Morning Regulatory Review – 12/21/15: Drone Registration; Remand Without Vacatur Time & Commercial Air Efficiency

Posted in Judicial Review & Remedies, Regulatory Process

A holiday drone gift contains a new requirement today – registration with the Federal Aviation Administration (FAA). On old issues, the United States Court of Appeals for the District of Columbia Circuit remanded a regulatory action and denied mandamus to compel an agency response to a remand. Finally, the Department of Energy (DOE) claimed the… Continue Reading

Monday Morning Regulatory Review – 10/19/15: WOTUS Unconsolidated; Orphan Drug Misinterpretation; Optional Practical Training Proposed Extension-Extension; & OMB Benefit / Cost Report

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

Some regulatory litigation settled slightly last week as the multitude of district court cases challenging the Waters of the United States (WOTUS) rule will remain where they were filed. Administrative agencies continue to amend regulations in responses to litigation with varying success, including skirting the issues that lead to a prior regulatory vacatur and a… Continue Reading

Monday Morning Regulatory Review 9/28/15: Two Midnight Rule Remand; Final Rules Respond & Proposed Rules Review

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

Judicial vacaturs and remands, and agency responses to them, dominated the past week in regulatory practice. In a new case, a court found that the balancing of equities warranted only a remand for notice and comment rulemaking. Two final rules respond to a prior vacatur and impact present litigation. In addition, two agencies respond to… Continue Reading

Monday Morning Regulatory Review – 8/17/15: Clean Power Plan Litigation Preview; WOTUS Litigation Update; STEM Extension Vacatur Stay & Delayed Effective Date

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

Highlights from last week in regulatory practice include commencement of litigation over the Administration’s Clean Power Plan in an unusual form while the usual form continued in judicial review of the Administration’s Waters of the United States (WOTUS) final rule. Application of “good cause” exceptions to Administrative Procedure Act (APA) requirements led one district court… Continue Reading

Monday Morning Regulatory Review – 7/13/15: Nutrition Labeling Extended; Housing Grants; Contraceptive Mandate Update; Truck Emissions & Immigration Executive Action Again

Posted in Judicial Review & Remedies, Regulatory Process

Summer in Washington and the regulatory agenda is not on vacation, but small sauntering through large items. For example, one agency has extended by a year the compliance date for a major rule, another agency created a public relations controversy while releasing a much narrower rule, a third agency released only a fact sheet on… Continue Reading

Monday Morning Regulatory Review – 4/20/15: Retirement Fiduciary Definition; H-2B Authority Redux; Open Neutral Utility Internet Review; & Contraceptive Mandate

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

A hodgepodge of highlights from regulatory practice in the past week. The Department of Labor (DOL) today publishes its long-awaited and controversial proposed fiduciary duties rule for public comment. Slightly further down a different rocky road, DOL last week submitted two final rules to the Office of Management and Budget (OMB) that may represent an… Continue Reading

SCOTUS Rejects D.C. Circuit Notice & Comment Rulemaking Requirement for Changing Agency Interpretation

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

The United States Supreme Court (SCOTUS) held today, in Perez v. Mortgage Bankers Association, that an interpretative rule does not require advance notice and an opportunity for public comment under the Administrative Procedure Act (APA) no matter when the agency adopts the interpretation, unanimously reversing the contrary decision of the United States Court of Appeals… Continue Reading

SCOTUS Argument Preview: Must Agencies Use Notice and Comment Rulemaking to Change Interpretation

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

Next Monday, the United States Supreme Court (SCOTUS) will hear argument in Perez v. Mortgage Bankers Association, No. 13-1041, asking whether a federal agency must engage in advance notice and public comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an established interpretive rule articulating the agency’s interpretation of an… Continue Reading

Monday Morning Regulatory Review – 11/17/14: Obamacare Subsidies Docket; Obamacare 2nd Contraceptives Accommodation & SCOTUS Criminal / Administrative Deference Invitation

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

Last week focused on appellate practice, notably cases related to but not necessarily before, the United States Supreme Court (SCOTUS).  The United States Court of Appeals for the District of Columbia Circuit delayed further consideration of the issue of whether the Internal Revenue Service (IRS) could interpret the Obamacare (Patient Protection and Affordable Care Act… 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 – 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 – 7/7/14: 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 – 6/30/14: Hazardous Waste Fuel; Affirmative Defenses in CAA Suits II; Waters of the United States Extension; & Drones & Model Aircraft Interpretation

Posted in Agency Authority, Judicial Review & Remedies

A very busy last week was dominated by the United States Supreme Court (SCOTUS) (near) end-of-term decisions, but some slightly less notable regulatory actions deserve attention.  On Friday, the United States Court of Appeals for the District of Columbia vacated two separate exceptions to Environmental Protection Agency (EPA) Resource Conservation and Recovery Act of 1976… Continue Reading

SCOTUS to Review D.C. Circuit Constitutional Non-delegation Decision that Amtrak is a Railroad, Not a Regulator

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

The United States Supreme Court (SCOTUS) today granted certiorari in DOT v. Association of American Railroads (U.S. No. 13-1080) to review of a decision of the United States Court of Appeals for the District of Columbia Circuit that Congress unconstitutionally granted Amtrak regulatory authority over its priority of service among railroads.  Such a delegation, according… Continue Reading

Monday Morning Regulatory Review – 6/16/14: Legislative v. Interpretive or Procedural Rules; Contractor Minimum Wage; Inflated Size Matters; Changing Interpretation; Regulatory Agendas; & EPA Delays RFS

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

Last week focuses (mostly) on wages and small business.  The United States Court of Appeals for the District of Columbia Circuit handed another setback to the Department of Labor (DOL)’s detachment of binding requirements from regulations.  DOL, for its part, proposed regulations to increase the minimum wage paid by government contractors, a costly proposed rule… Continue Reading