Week in Review

IN THE NEWS

• The Federal Motor Carrier Safety Administration and the Federal Railroad Administration (FRA) withdrew a proposed rule requiring all railroad and trucking companies to test drivers for sleep apnea. The agencies said that “current safety programs are the appropriate avenues” to regulate sleep apnea. Former FRA Administrator Sarah Feinberg reportedly said of the decision not to pursue this rulemaking, “It’s very hard to argue that people aren’t being put at risk.”
• The U.S. Court of Appeals for the District of Columbia Circuit ruled that the U.S. Environmental Protection Agency (EPA) did not have the authority to regulate the use of hydrofluorocarbons (HFCs). EPA issued the regulation under a provision of the Clean Air Act which allows EPA to require “replacement” of ozone-depleting chemicals in order to “reduce overall risks to human health and the environment.” The court held that because HFCs are not ozone-depleting substances, EPA did not have “the authority to order the replacement.”
• The Federal Trade Commission (FTC) charged an online marketing scheme with “deceptively luring people into an expensive negative option scam” in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act. The FTC claimed that the marketing scheme “lured” customers in with an initial “low-cost trial offer” with “hidden” find-print disclosures, which started charging customers hundreds of dollars if they did not cancel the plan within eight days.
• Sixteen state attorneys general and the D.C. Attorney General sent a letter to the Centers for Medicare and Medicaid Services (CMS) asking CMS to cancel a proposed rule intended to rescind an earlier rule disallowing “pre-dispute arbitration clauses in long-term care facility arrangements.” In support of the earlier rule, the attorneys general argued that “the prohibition provides an important protection for consumers…at a time when consumers are undertaking a difficult and emotional decision.”
• In a brief filed in a Minnesota lawsuit, the U.S. Department of Labor (DOL) indicated it had submitted to the Office of Management and Budget a proposal to delay implementation for parts of the fiduciary rule. Thrivent Financial for Lutherans challenged the “best-interest-contract exemption” that allows brokers to “charge variable compensation for products as long as they sign a legally binding agreement to put their clients’ interests ahead of their own.” Joshua Lichenstein, an associate at the law firm of Ropes and Gray, reportedly said the DOL’s request for delay would “give the DOL time to conduct its review” pursuant to President Donald Trump’s memorandum requiring review of the rule and “would allow the U.S. Securities and Exchange Commission to get involved.”
• The U.S. Food and Drug Administration (FDA) said it would undertake “a strategic, new public health education campaign” to prevent kids from using e-cigarettes and other electronic nicotine delivery systems. The FDA will “expand” the FDA’s The Real Cost campaign, which began in 2014 and endeavors to cut back on tobacco use by teens. The e-cigarette initiative comes as part of a “new comprehensive plan for tobacco and nicotine regulation” announced in July of this year, and the initiative marks the first time the FDA will be directing its campaign at the use of e-cigarettes by kids. The FDA suggested it could “address known risks” by regulating “flavors that appeal to youth, child-resistant packaging, and product labeling” as well as “seeking public comment on the role that flavors in tobacco products play in attracting youth.”
• The U.S. Department of the Interior’s Office of Natural Resources Revenue (ONRR) repealed the 2017 Valuation Rule, which intended to clarify and bolster regulations on revenues that lessees gained from the production of oil, gas, and coal on their property. The repeal was prompted by ONRR’s internal audit, which revealed that part of the rule “would unnecessarily burden the development” oil, gas, and coal development, and by concerned comments from affected entities.
• The Environmental Protection Agency proposed to amend the existing national emission standards for hazardous air pollutants (NESHAP) for offsite waste and recovery operations. The proposed changes would address “monitoring pressure relief devices on containers,” an issue which was raised in a petition for reconsideration.

WHAT WE’RE READING THIS WEEK

• “Severe housing problems are on the rise,” according to the U.S. Department of Housing and Urban Development’s (HUD) Office of Policy Development and Research 2017 report on Worst Case Housing Needs. Households that present “worst case needs” are made up of “very low-income renters who do not receive government housing assistance and who paid more than one-half of their income for rent, lived in severely inadequate conditions, or both.” The HUD report noted an increase in “severe housing problems” since the start of the recession in 2007 and cited a “shift from homeownership to renting” as a factor in the increased worst case needs scenarios.
• In a recent paper, Leslie Gielow Jacobs, Director of the Capital Center for Law & Policy and Professor of Law at the University of the Pacific – McGeorge School of Law, provided an analysis and guidance for regulators “seeking to balance the electoral mandate to provide access to marijuana products with their ongoing and urgent responsibilities to protect public health.” Jacobs argued that regulators must understand how courts will respond to different types of regulations so as to “implement their public health objectives without provoking expensive legal challenges.”
• In an article published in the University of Michigan Journal of Law Reform, Cary Coglianese, a professor at the University of Pennsylvania Law School and faculty advisor to The Regulatory Review, discussed the weaknesses of performance-based regulation, which “requires the attainment of outcomes rather than specifying the actions regulated entities must take.” Coglianese argued that if “not designed and deployed well,” performance-based regulation “can prove costly, ineffectual, and even dangerous.”