Week in Review

IN THE NEWS

• The Consumer Financial Protection Bureau issued a rule designed to protect consumers of short-term loans, such as payday and vehicle title loans. The final rule requires lenders to confirm that customers will be able to pay back their loans and fees within two weeks and forbids lenders from offering these loans “in quick succession.”
• The U.S. Environmental Protection Agency (EPA) reportedly failed to announce “which areas of the country” go above the accepted standard for ozone. EPA Administrator Scott Pruitt was required to have done so by October 1, a deadline imposed by a 2015 memorandum pursuant to the Clean Air Act. John Walke, director of the Clean Air Project at the Natural Resources Defense Council, said EPA’s omission is “illegal.”
• The U.S. District Court for the Northern District of California reportedly ruled that the Bureau of Land Management cannot use a provision of the Administrative Procedure Act to delay implementation of an Obama-era methane rule. The same day the court issued its ruling, the Bureau proposed delaying implementation of the rule “to avoid imposing temporary or permanent compliance costs on operators for requirements that may be rescinded in the near future.”
• The U.S. Senate confirmed Federal Communications Commission (FCC) Chairman Ajit Pai for another term. Last week, U.S. Senator John Thune (R-S.D.) praised Pai for bringing about “much-needed reforms to improve the processes at the FCC.” U.S. Senator Chuck Schumer (D-N.Y.) expressed disapproval of the nomination, reportedly saying before the vote, “Mr. Pai has established a clear record of favoring big corporations at the expense of consumers, innovators, and small businesses.”
• The American Civil Liberties Union (ACLU) sued the U.S. Food and Drug Administration (FDA) challenging FDA’s restrictions on access to the so-called abortion pill. FDA does not allow retail pharmacies to dispense the pill—only medical offices and hospitals may do so—“to ensure the safe use of the drug.” The ACLU claimed the restrictions violate due process by obstructing access to the bill with no medical basis.
• The U.S. Securities and Exchange Commission (SEC) charged two companies, REcoin Group Foundation and Diamond Reserve Club, with defrauding investors seeking to buy “digital tokens” through a pair of initial coin offerings. The SEC alleged that the coins being sold did not exist and had not been registered with the SEC.
• The U.S. Department of Transportation requested public comment on existing “regulations…and other agency actions that are good candidates for repeal, replacement, or modification” in accordance with President Donald Trump’s one-in-two-out Executive Order.
• FDA released two drafts of guidance to help streamline “the generic drug approval process.” Ultimately, FDA seeks to increase “generic competition” with “complex drugs” like “high cost medicines…as well as some costly injectable drugs.” One of the draft releases “describes an enhanced pathway for discussions between FDA and a prospective” generic drug maker. The other draft provides information for those who make generic drugs on how to classify certain categories of drugs.
• The SEC extended the filing deadline for its crowdfunding reporting requirements “in order to address the needs of companies directly or indirectly affected by Hurricane Harvey, Hurricane Irma, or Hurricane Maria.”
• The U.S. Department of the Treasury released a report outlining upcoming actions it believes will reduce the burden of eight Obama-era tax regulations, including rules regarding corporate debt and transfers of estates. Treasury Secretary Steven Mnuchin said this action was only the beginning of efforts to reduce the burden of tax regulations and that these efforts will “ensure that we have a tax system that fosters economic growth.”

WHAT WE’RE READING THIS WEEK

• In a paper for the Administrative Law Review, Cary Coglianese, a professor at the University of Pennsylvania Law School, examined the degree of control presidents have over agency heads. Coglianese argued for a signature rule to limit presidential power over agency heads that would require each agency head to “sign off, literally, on all agency actions delegated to that official.”
• In a paper for the Harvard Negotiation Law Review, Art Hinshaw, clinical professor at the Arizona State University Sandra Day O’Connor College of Law, discussed the lack of regulation of mediators, impartial third parties that assist with dispute resolution between disputing parties. Hinshaw argued that mediators should be regulated and provided “an innovative method for regulating mediators that avoid the pitfalls of prior regulatory attempts.”
• “Deregulation can unleash the greater potential of the U.S. economy,” the Council of Economic Advisers concluded in a report. The report examined “the economic literature on regulation” and found that “the negative consequences of excessive, duplicative, or badly designed regulation are a tax on the U.S. economy.”