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

Tag Archives: unnecessary

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 – 3/13/17: 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 – 2/20/17: 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

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 – 9/5/16: Guns, Drugs, and Guidelines; Nonacquiescence Not Arbitrary and Capricious; & Anti-Bacterial Soap and Passport Over-Regulation

Posted in Judicial Review & Remedies, Regulatory Process

Labor Day 2016 will be no holiday for regulatory experazzi, at least in this post.  Last week, a court of appeals affirmed dismissal of a host of constitutional claims that overshadowed an ineffectively plead Administrative Procedure Act (APA) claim – and the decision reprises the circuit law on when guidance becomes a rule only to… Continue Reading

Monday Morning Regulatory Review – 8/29/16: School Gender Identity Guidance Enjoined; Medicare Reconciliation Criteria; Food Rules Compliance Reality; Broadcast Ownership Again – Still & Heavy Speed Limiters

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

Summer’s end (not Childhood’s End) brings the opening of schools across the country without the looming Administration guidance on gender identity.  More complex is the new overhang of Medicare hospital reimbursements that may not be recouped because of an agency failure to adopt criteria through notice and comment rulemaking.  On the other hand, in reality… Continue Reading

Monday Morning Regulatory Review – 6/27/16: Drone Regulations Finally Fly; Hydraulic Fracking Rule Drilled; First Persuader Decision Unpersuaded; Compost Guidance Composted & Civil Monetary Penalties Adjusted

Posted in Agency Authority, Judicial Process, Regulatory Process

With the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice.  In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively… Continue Reading

Monday Morning Regulatory Review – 3/21/16: SCOTUS Weighing Regulatory Accommodation; Another MATS Challenge; Overtime Laboring; Speculative Endangerment; & Removing Obsolescence

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

This week the United States Supreme Court (SCOTUS) will take up the latest edition of a significant statutory and regulatory conflict and SCOTUS may soon return to another substantial Administrative Procedure Act (APA) remand without vacatur case.  Far up the street, the Office of Management and Budget (OMB) began review of one of the more… 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 – 1/18/16: SCOTUS Returns; Law Practice & Mortgage Relief Regulation; V2V Communications; and No Reginfo

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

The United States Supreme Court (SCOTUS) returned last week to open several new lines of inquiry that impact regulatory practice, but has not yet decided whether the hear the case of the year. At the trial level, a district court invalidated narrow regulations applicable to attorneys practicing law in one federalized realm. The Department of… 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 – 11/16/15: Food Safety Rules Up; Energy Efficiency Removal; Conflict Minerals Review Denial; & WOTUS Forward

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

The most significant agency action in regulatory practice last week may have been the release of three long-delayed Food Safety Modernization Act (FSMA) final rules. Courts took a number of small steps toward resolving challenges to Administration priority regulations, but no particular signal from these actions appears evident, except for the affirmance of the preliminary… 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 – 5/4/15: SCOTUS Statutory Standing; Emergency Generators; & H-2B Regulations Again

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

Three unrelated highlights from last week in regulatory practice: The United States Supreme Court (SCOTUS) agreed last Monday to consider a case of private causes of action that has potentially stunning constitutional and regulatory implications. The United States Court of Appeals for the District of Columbia Circuit “reversed” an Environmental Protection Agency (EPA) regulation that… Continue Reading

Monday Morning Regulatory Review – 3/23/15: White House Transparency Regulations; Federal Fleet Pollution; Federal Fracking; & H-2B Vacatur & Emergency Regulations

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

Prioritizing last week’s interesting regulatory affairs proves a little difficult because the affairs are so diverse, so this post may seem random. The White House’s administrative side removed regulations in a Federal Register final rule, perhaps for the right reason, but perhaps in the wrong way. The President of the United States (POTUS) also issued… 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 – 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 – 6/16/14: 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

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

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

D.C. Circuit Vacates EPA Nonconformance Penalties Interim Final Rule: Violated Administrative Procedure Act

Posted in Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit today vacated and remanded the Environmental Protection Agency (EPA)’s Nonconformance Penalties for On-Highway Heavy Heavy-Duty Diesel Engines interim final rule (IFR) because EPA failed to satisfy any of the statutory criteria for “good cause” under the Administrative Procedure Act (APA).  Mack Trucks v…. Continue Reading