The Administrative Conference of the United States (ACUS) adopted four sets of recommendations at the plenary session of its Assembly last week after some substantial debate and amendment. ACUS, a highly influential federal advisory committee, often recommends authoritative agency best practices and solutions to problems facing the federal administrative state. The most recent ACUS recommendations are available in the links below on:
- Improving Consistency in Social Security Disability Adjudications, Recommendation 2013-1, Adopted June 13, 2013;
- Benefit-Cost Analysis at Independent Regulatory Agencies, Recommendation 2013-2, Adopted June 13, 2013;
- Science in the Administrative Process, Recommendation 2013-3, Adopted June 14, 2013; and
- Administrative Record in Informal Rulemaking, Recommendation 2013-4, Adopted June 14, 2013.
Each set of recommendations, debated and adopted by the leading 100 federal officials, law professors, and practitioners of administrative law, is accompanied by a consultant’s report and committee consideration, all of which are available from ACUS.
Disclosure: The author of this blog was the consultant to ACUS on The Administrative Record in Informal Rulemaking.
Litigation involving various aspects of Department of Health and Human Services (HHS) regulations and operations dominated the past week with quiet endings. The intense debate over the Food and Drug Administration (FDA) plans for emergency contraceptives Plan B and Plan B One Step fizzled with the government’s capitulation. The organ donor litigation that captured much attention for a short period of time may also end quietly with new guidance. And a door once opened in calculating Medicare reimbursements closed with reversal of the district court decision that HHS’s regulations were impermissibly retroactive because the court of appeals found the regulations consistent with prior adjudications that established the policy. Continue Reading
The United States Court of Appeals for the Fourth Circuit affirmed a district court judgment that the National Labor Relations Board (NLRB) had no statutory authority to promulgate its Notification of Employee Rights Under the National Labor Relations Act, or “posting rule.” The Fourth Circuit thus joined the District of Columbia Circuit. The latest opinion is broader, however, than the D.C. Circuit opinion and limits the NLRB’s authority to promulgate substantive rules under the National Labor Relations Act (NLRA). Applied broadly, the opinion cautions agencies to carefully circumscribe their rules to the contours of statutory delegations and the purposes of enactment. Continue Reading
Unrelated events of the past week in regulatory practice include the publication of Environmental Protection Agency (EPA)’s proposed new limitations on power plant water effluents – the result of cleaner air requirements – and wider dissemination of new “social cost of carbon” standards for regulatory impact analyses. The Department of Health and Human Services (HHS) continued to engage in the courts on the efficacy of age limits on emergency contraceptives and on the efficacy of limitations on organ transplant donor / recipient policies that flow out of HHS regulations. The complexities of regulatory litigation were illustrated also in the dismissal of a challenge to Commodities Futures Trading Commission (CFTC) swap rules. Continue Reading
The Environmental Protection Agency (EPA) did not heed calls for extension of the public comment period on a massive rulemaking – granting a stingy extension that will cause more requests. The Consumer Financial Protection Bureau (CFPB), on the other hand, delayed the effective date on a major mortgage rule for seven months to try to figure out potential unintended consequences. The National Highway Traffic Safety Administration (NHTSA) recognized that it and the States need to know more about autonomous vehicles before regulating both the technology and the humans using that technology. The Office of Management and Budget (OMB) completed review of several economically significant proposed Right Whales and final microwave oven rules, and a high policy significant small business health care rule that (dubiously) may not be economically significant. Continue Reading
This week, a little more movement toward the Supreme Court resolving the constitutionality of intrasession recess appointments – and the impact on a number of regulations approved by such recess appointees. A new study outlines to some extent the (environmental) agency practice of being sued by environmental supportive groups and settling on regulatory timing and substance, thereby avoiding or limiting regulatory processes. Such a contentious process may be leaching through Environmental Protection Agency (EPA) formaldehyde regulations that cleared Office of Management and Budget (OMB) review. Finally, the United States Court of Appeals for the Fifth Circuit declined to grant deference to a Department of Health and Human Services (HHS) interpretation of its own ambiguous manual that clarified its ambiguous regulations. Continue Reading
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
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
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
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.