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… Continue Reading
Tag Archives: arbitrary and capricious
Administration’s Failing Grades 3: Educational Race to the Bottom?
Posted in Judicial Process, Judicial Review & RemediesThe Department of Education (ED) took one step last week in its attempt to better regulate the “for profit” colleges, universities, and other schools: ED published a revision of a preamble to rules that the United States Court of Appeals for the District of Columbia Circuit remanded because the prior explanation was inadequate. Amending a… Continue Reading
CFTC Pool Operator Rule Upheld – Broader Lessons Need Consideration
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessThe United States District Court for the District of Columbia granted the agency summary judgment in Investment Company Institute v. Commodity Futures Trading Commission (CFTC), leaving intact the Commodity Pool Operators and Commodity Trading Advisors: Compliance Obligations final rule (as corrected) (the “pool” rule). Plaintiffs claimed that the CFTC had violated the Administrative Procedure Act… Continue Reading
Monday Morning Regulatory Review – 10/15/12
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessLast week a number of small events, mostly in the courts. The Environmental Protection Agency (EPA)’s long awaited CAFÉ regulation finally published in the Federal Register; a suit was filed to invalidate the Securities and Exchange Commission (SEC)’s extractive industries reporting rule, the Department of Justice (DOJ) sought further review of decisions in Food and… Continue Reading
Delicate Technicalities of Judicial Review of Final Agency Action
Posted in Judicial Process, Judicial Review & RemediesSeveral weeks ago, this blog alluded to a court of appeals criticism of its district court that focused on the nature of the remedy in judicial review of final agency action under the Administrative Procedure Act (APA): that the court enjoined a rule when it should have set the rule aside. This criticism may seem… Continue Reading
Judicial Review & EO 12866 Regulatory Impact Analysis
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessA common but little understood Administrative Procedure Act (APA) issue arose from last Monday’s Regulatory Review: How does an aggrieved business acquire APA judicial review of a rulemaking under Executive Order 12886 – the executive and inter-agency review performed by the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs… Continue Reading
Administration’s Failing Grades: Education’s “For Profit” Debt Measure Rule Vacated
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessThe United States District Court for the District of Columbia vacated more Department of Education (DOE) “for-profit college” student loan funding rules on June 30. In this edition, the court accepted DOE’s interpretation of a statutory “gainful employment” requirement, but rejected DOE’s debt measure proxy and subsidiary reporting and approval rules. Association of Private Sector… Continue Reading
Labor Rules Increasing Notice of Tip Off-Set Do Not Violate APA or RFA
Posted in Judicial Review & RemediesAt the end of last month, this blog noted that the United States District Court for the District of Columbia would hear cross motions to dismiss / summary judgment in National Restaurant Association [NRA] v. Solis, a challenge to the Department of Labor (DOL)’s update of the Fair Labor Standards Act (FLSA) regulations. This case… Continue Reading
Labor Enjoined from Regulating Temporary Worker Visas: No Statutory Delegated Authority
Posted in Judicial Process, Judicial Review & RemediesThe United States District Court for the Northern District of Florida has preliminarily enjoined the Department of Labor (DOL) from enforcing its Temporary Non-Agricultural Employment of H–2B Aliens in the United States rule published last February and that was scheduled to become effective today. Bayou Lawn & Landscape Services v. Solis, N.D. Fla. No. 3:12-cv-00183-rv-CJK…. Continue Reading
Monday Morning Regulatory Review – 4/23/12
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessLast Week: Inadequate economic analysis at the Securities and Exchange Commission (SEC) and delay in rulemaking by the Occupational Safety and Health Administration (OSHA) were the focus of Congressional hearings. Meanwhile, the Environmental Protection Agency (EPA) issued new rules and proposals with both economic analysis and delay issues. This Week: United States District Court decisions… Continue Reading
Monday Morning Regulatory Review – 4/16/12
Posted in Executive - OMB Review, Judicial Review & Remedies, LegislationLast Week: The post-Easter week was as quiet as the pre-Easter week, but significant new developments are expected. OMB does not appear to have completed review of any “significant” rules, but one rule that OMB cleared illustrates a flaw in the transparency of the review process. EPA finally published its proposed rule limiting “new” coal-fired… Continue Reading
Arbitrary and Capricious Aging Data and Old Models – New 9th Circuit Case
Posted in Judicial Review & RemediesDoes data have a shelf life? Do models get old and replaced? Under the Administrative Procedure Act (APA), according to the U.S. Court of Appeals for the Ninth Circuit, they do – and the EPA act arbitrarily and capriciously when it failed to consider that known new model and data in reaching its decision. The… Continue Reading
Clean Air Act and APA Effective Date Stays: Sierra Club v. Jackson – again
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe EPA’s Clean Air Act (CAA) rules may become effective in short order, imposing major new requirements on industry: National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler Rule) and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and… Continue Reading
Judicial Skepticism of Administrative Rulemaking Quality – A Growing Trend?
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessFederal courts of appeals appear increasingly skeptical of regulation in 2011, and may be more skeptical in 2012. Major HHS, EPA, DOE, DOT, DHS, FCC, SEC, and other rules and rule-based actions were struck down in the U.S. Courts of Appeals because the Administration or the “independent agencies” failed to comply with the Administrative Procedure… Continue Reading