Yesterday the Administrative Conference of the United States, ACUS, the GW Regulatory Studies Center and the Society for Benefit-Cost Analysis co-sponsored a symposium on benefit-cost analysis.
During the course of the discussion a panelist from the FAA asked: how many of you ride commercial aircraft? Virtually every hand in the room was raised.
The panelist then asked how many of you had a safety concern when you rode the aircraft?
Not a single hand was raised.
We are not suggesting that one case in itself should determine the fate of Chevron deference, but if there were one, the following is most certainly an excellent candidate.
A plaintiff seeks relief in the court claiming that the agency had no authority to issue a rule. 340B Complaint
The Court opines in no uncertain terms that the agency does not have the authority to issue the rule. See 340B order
The agency responds by issuing an interpretative rule which renders moot the decision of the court. http://www.hrsa.gov/opa/programrequirements/interpretiverule/interpretiverule.pdf
The FR notice announcing the availability of the rule is here: https://www.federalregister.gov/articles/2014/07/23/2014-17409/availability-of-interpretive-rule-implementation-of-the-exclusion-of-orphan-drugs-for-certain
The Internet Archive is the sponsor of the world’s largest digital library. It is a 501c(3) not-for-profit organization located in San Francisco, California.
We call this organization to the attention of our readers because the Center for Regulatory Effectiveness (CRE) receives inquiries as to our plans for ensuring that our library of the evolution of centralized regulatory review be made available for future generations.
The answer is straightforward; the Internet Archive has been preserving copies of our website since 1999, the day we began operations and only three years after it began. The Internet Archive had a wide range of websites to digitize and CRE is fortunate and appreciates it including CRE as one of its earliest websites to digitize.
OMB, acting through OIRA, has a wide range of mechanisms to manage federal agencies. None of these mechanisms can approach the reach of the Paperwork Reduction Act (PRA). Consider that the PRA:
(1) prohibits any federal agency from imposing any reporting or recordkeeping requirement on ten or more members of the public without an approval by OMB,
(2) is the only substantive control OMB has over independent agencies,
(3) states that OMB approval of the aforementioned reporting and recordkeeping requirements are not judicially reviewable and must comply with the Data quality Act,
This note examines the motivations, biases and expectations of the major institutional players in the Chevron debate, ranging from OMB, to the academic community to federal litigators to legal practitioners and ultimately judges. The Chevron Debate concerns Chevron Deference which is a result of a Supreme Court ruling which declared that when courts review actions taken by federal regulators the courts should defer to the views of the regulators if the underlying statute is ambiguous and if the position of the regulator is reasonable.
