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, or 377 printed tricolumn pages, proposal would adopt California emissions standards for the entire United States. Although EPA posted a copy of this proposal on its website shortly after it was signed on March 29, 2013, today’s publication and comment closing date provide inadequate notice and an opportunity for the public to comment. Continue Reading
SCOTUS Permits Chevron Deference to Agency’s View of Jurisdiction: A New Void to Fill
Posted in Agency Authority, Judicial Process, Judicial Review & Remedies
The Supreme Court of the United States (SCOTUS) today decided (5+1–3), in City of Arlington v. FCC, that courts do owe agencies deference in interpreting the statutory scope of agency jurisdiction. The court held that lower courts should apply Chevron deference to agency determinations of their own jurisdiction in ambiguous statutes by rejecting the jurisdictional / non-jurisdictional distinction. The decision, in effect, permits wider judicial deference to agency interpretation of its underlying statute, leaves a void for agencies to fill, and may shift the focus of litigation more to the actual statutory terms and the standard of review. Continue Reading
Monday Morning Regulatory Review – 5/20/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies
This week’s review is all about litigation updates: A new decision from the United States Court of Appeals for the Third Circuit struck down President Obama (POTUS)’s recess appointments to the National Labor Relations Board (NLRB) as unconstitutional. The ongoing authority feud surrounding the Food and Drug Administration (FDA) limitation of the emergency contraceptives for teenagers moved to the United States Court of Appeals for the Second Circuit. The regulatory timing of FDA Food Safety and Modernization Act regulations remains unclear as that litigation slowed for negotiation. Continue Reading
ACUS 58th Plenary Session: Authoritative Recommendations & Studies Worth Reading
Posted in Regulatory Process
The Administrative Conference of the United States (ACUS) has released the agenda, recommendations, and supporting studies for its 58th Plenary Session to be held June 13 – 14, 2013. ACUS will consider adopting recommendations on:
- Social Security Disability Adjudication
- Benefit-Cost Analysis at Independent Regulatory Agencies
- Science in the Administrative Process
- Administrative Record in Informal Agency Proceedings
ACUS is an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures. ACUS’s plenary (or Assembly) membership is composed of approximately 100 of the most experienced and innovative federal officials, private practitioners, and academics in administrative law.
ACUS recommendations are considered authoritative and the consultants’ supporting studies are worth reading.* ACUS Plenary Sessions are both open to the public and broadcast on the internet through the ACUS website.
* Except, perhaps, the last study, with the disclaimer that the author is the consultant to ACUS on that subject.
Monday Morning Regulatory Review – 5/13/13
Posted in Judicial Review & Remedies, Regulatory Process
This week a sprinkling of interesting events flavors administrative law. Recess appointments litigation may get closer to sweetening the United States Supreme Court (SCOTUS) calendar. A court decision on timing of electronic filing soured one agency’s day, and provides lessons for others. Another court fed a bitter pill to the Department of Justice (DOJ) in denying a request for a stay pending appeal of the court’s emergency contraceptive over-the-counter order, while the menu of contraceptive / preventive care cases continues to cook. The Department of Homeland Security extended the brew time for a proposal for electronic digestion of transportation worker identity card data. Alas, several non-actions pepper the stew, but…. Continue Reading
D.C. Circuit Vacates NLRB Posting Rule – Enforcement Provisions Violated NLRA and Posting Requirement Could Not Be Severed
Posted in Judicial Review & Remedies, Regulatory Process
The United States Court of Appeals for the District of Columbia today vacated – in National Association of Manufacturers v. NLRB – the National Labor Relations Board (NLRB) Notification of Employee Rights under the National Labor Relations Act {NLRA), or “Posting Rule.” The court’s decision clarified the starting point for judicial review of final agency rulemaking – filing of a rule on the Federal Register public inspections list, not actual publication – and found each of the enforcement provisions of the posting rule violated provisions of the NLRA. Continue Reading
Monday Morning Regulatory Review – 5/6/13
Posted in Judicial Review & Remedies, Regulatory Process
All dollars great and small about regulations this week: the Consumer Financial Protection Bureau (CFPB) theoretically made credit more available, but reality may not be so easy. Stock Exchange data cost rules, are no longer the subject of Securities and Exchange Commission (SEC) approval under Dodd-Frank, and are also no long subject to a petition for review in United States Court of Appeals for the District Court Circuit. The Office of Management and Budget (OMB) released a draft of its annual analysis of benefits and costs in rulemaking with no surprises. Continue Reading
Teenagers and Plan B One Step: Appeal and Request for Stay of FDA Compliance with District Court Order
Posted in Agency Authority, Judicial Review & Remedies
UPDATE (May 1, 2013 2015): In an unsurprising move, the Department of Justice (DOJ) is appealing the district court’s ruling in Tummino v. Hamburg II after the FDA announced yesterday a new approval for the sale of the Plan B One Step (or morning after pill) over the counter with proof of age of at least 15. Numerous reports (often repeats of the Associated Press report, and with no documentation) indicate that DOJ is appealing to the district court order to the United States Court of Appeals for the Second Circuit and has asked the district court to stay its order pending appeal.
Politico’s Kathryn Smith reports:
In a court filing, the federal government asked for a stay so that the FDA would not be forced to comply with that decision immediately, and argued that the court didn’t have the authority to control the FDA’s decision.
“This court lacks subject matter jurisdiction to review any aspect of [the manufacturer’s application], including the HHS Secretary’s December 2011 directive to the FDA Commissioner to issue a complete response letter that rejected that SNDA. A district court does not have jurisdiction to review such agency action,” the DOJ states in a court filing.
Expect much more litigation on core authority and administrative law issues.
Teenagers and Plan B One Step: FDA’s Compliance with a Court Order or Just a Different Decision
Posted in Judicial Review & Remedies, Regulatory Process
The Food and Drug Administration (FDA) approved an application by Teva Women’s Health, Inc. to market Plan B One-Step (levonorgestrel) for use without a prescription by teens 15 years of age and older. The approval of Teva’s application may or may not comply with the order the United States District Court for the Eastern District of New York in Tummino v. Hamburg II – and may not need to comply in this decision. Continue Reading
Monday Morning Regulatory Review – 4/29/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process
Busy and long today: The Department of Health and Human Services (HHS) submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), a hospital disproportionate share payment reduction proposed rule. OIRA may have a new Administrator who may or may not have the opportunity to review the rule – subject to Senate confirmation. At the other end of the process, the Department of Homeland Security (DHS), Transportation Security Administration (TSA) published a potentially problematic final fee rule and Environmental Protection Agency (EPA) finalized its reconsideration of the electric steam generator final rule. More regulations headed for the courts are below.
In the courts, the United States Court of Appeals for the District of Columbia Circuit dismissed a challenged to the Securities and Exchange Commission (SEC) mineral extraction rule, but the litigation will go forward in the District Court. At the United States Supreme Court (SCOTUS), the Solicitor General petitioned for review of the D.C. Circuit’s recess appointments decision, adding to his administrative law docket already occupied by the EPA’s cross-state air pollution rule. Continue Reading