Week in Review

IN THE NEWS

• The U.S. Department of Labor (DOL) issued a final rule that modifies the Employee Retirement Income Security Act (ERISA) by imposing a fiduciary duty on brokers who provide retirement advice—a development that Secretary of Labor Thomas Perez called “a huge win for the middle class,” while the financial industry argued that the complex rule could prevent lower- and middle-class individuals from receiving investment advice, and that it would result in potentially billions of dollars in increased compliance costs.

• U.S. pharmaceutical giant Pfizer called off a contemplated $150 billion merger with Ireland-based Allergan in response to the Internal Revenue Service (IRS) and U.S. Department of the Treasury’s (DoT) proposed rule aimed at curbing “corporate inversions”—deals in which a U.S. company merges with a foreign company to receive its lower tax rate, and a practice which President Obama has called an “insidious tax loophole,” but which Pfizer’s CEO had reportedly considered necessary to deal with the competitive disadvantage that American companies in the face of foreign companies that enjoy lower taxes.

• In a move aimed at thwarting the combination of the world’s first and third-largest oil-field services companies, the U.S. Department of Justice (DOJ) brought a civil antitrust action in federal court seeking to block Halliburton’s acquisition of Baker Hughes—a deal that U.S. Attorney General Loretta Lynch said would “eliminate vital competition, skew energy markets and harm American consumers,” but which Halliburton had tried to save by offering to sell off assets of both companies following the purchase.

• In response to the Bureau of Safety and Environmental Enforcement’s (BSEE) final rule aimed at preventing undersea well explosions from offshore oil rigs in the wake of the 2010 Deepwater Horizon disaster, House Republican leaders wrote a letter to the Office of Information and Regulatory Affairs (OIRA), requesting that OIRA revise certain technical provisions of the rule because of the stifling effect that the legislators claim the rule will have on energy development and investment in offshore energy, but which the U.S. Department of the Interior (DOI) reportedly defended as necessary to “continue raising the bar on safety.”

• The U.S. Court of Appeals for the D.C. Circuit declined to allow the U.S. Department of Labor (DOL) to grant construction workers on CityCenterDC, a mixed-use development in Washington, D.C., entitlement to prevailing local wages under the Davis-Beacon Act—a federal law that requires the payment of local prevailing wages to laborers on public works projects.  The decision, which was praised by the Associated Builders and Contractors for stopping what the trade association called an unprecedented expansion of the Davis-Beacon Act into the realm of private construction, turned largely on CityCenterDC’s failure to qualify as a public work due to the fact that it was neither publicly funded nor owned or operated by the government.

• Based on the recommendations of a working group comprised of consumer advocates and the telecommunications industry, the Federal Communications Commission (FCC) released information labels as a part of the transparency requirement of its Open Internet Order—a rule that reclassified Internet service as a common carrier, allowing the FCC greater authority to ensure providers treat all traffic equally. The labels contain information about the price and performance of Internet service in a format that mirrors the nutrition labels used by the U.S. Food and Drug Administration (FDA), and, while providers will not be compelled to implement them, their use will ensure compliance with the transparency requirements, one of the least contentious elements of the Open Internet Order.

• After facing criticism from lawmakers in both parties concerned that government transparency and accountability would be undermined if fewer government records remained available for historians and the public to access via Freedom of Information Act (FOIA) requests, the Central Intelligence Agency (CIA) reportedly formally withdrew a proposal that would have deleted the emails of all CIA staff after they had left the agency, with the exception of the 22 most senior officials.

• Becoming the first city in the country to mandate paid parental leave, San Francisco’s Board of Supervisors unanimously passed a law mandating six weeks of fully paid leave for all new parents—a significant departure from the 12 weeks of unpaid leave guaranteed by the federal Family and Medical Leave Act (FLMA), and a measure which has wide support in San Francisco, despite the belief of some small business owners that this issue would be better addressed at the federal level.

• In a major regulation issued under the Food Safety Modernization Act (FSMA)—which was passed in 2011 as the most sweeping reform of food safety laws in decades—the U.S. Food and Drug Administration (FDA) finalized a food-safety rule that requires all food transporters to comply with best practices designed to ensure sanitary transportation, including proper refrigeration and cleaning of vehicles.

WHAT WE’RE READING THIS WEEK

• In an article published in the American Journal of Political Science, Michigan State University Professor Ryan C. Black and University of Wisconsin Professor Ryan J. Owens outlined their empirical research about the impact of Supreme Court vacancies on circuit court judges’ decision-making. Professors Black and Owens concluded that, based on their data, potential nominees’ judicial decisions do change in response to vacancies.

• A recent U.S. Government Accountability Office (GAO) report examined the U.S. Environmental Protection Agency’s (EPA) oversight of programs that are designed to protect underground sources of drinking water. The GAO report recommended that the EPA request particular data and that it analyze resources from the programs that it oversees. The report acknowledged, however, that the EPA has stated that it does not plan to follow these recommendations.

• The Competitive Enterprise Institute (CEI) sent a letter to Congress calling for a regulatory budget. In its  letter, CEI argued that a regulatory budget would promote economic growth and protect the low-income families from the regressive effects of burdensome regulations. CEI also advocated for congressional approval of all major regulations and for retrospective review every 10 years.

• But establishing a regulatory budget may be easier said than done, according to  Sam Batkins, Director of Regulatory Policy at the American Action Forum. In a paper recently published in the Administrative Law Review Accord, Batkins explored  Congress’ move towards a regulatory budget as a means of reasserting its constitutional authority in the face of regulatory interventions over the past few years. He asserted that although a regulatory budget might give more responsibility to Congress, there are practical, legal, and political obstacles to its implementation.