The Regulatory Week in Review: July 15, 2016

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The House votes to eliminate Chevron deference, energy legislation heads to conference, and more…

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IN THE NEWS

  • The U.S. House of Representatives passed, along party lines, the Separation of Powers Restoration Act of 2016, legislation that would overturn the 1984 U.S. Supreme Court decision in Chevron v. NRDC—the decision which established the “Chevron” doctrine, under which courts must defer to an agency’s reasonable interpretation of an ambiguous statute—by amending the Administrative Procedure Act to require courts to conduct a “de novo” review of “all relevant questions of law,” rather than looking to agency interpretations. The law was hailed by its Republican sponsors as a step towards restoring the balance of powers among the three branches of government, but President Obama’s advisers reportedly will recommend that he veto the bill, because it would add “needless complexity” to judicial review of regulatory actions.
  • The U.S. House of Representatives voted 306-117 to pass a bill that sets federal standards for labeling genetically modified foods—standards under which food manufacturers would be able to label genetically modified foods using text, QR codes, or symbols, but which would not allow states to enforce their own standards, and which have prompted some to argue that the bill is actually a step backward for the pro-labeling movement. The U.S. Senate passed the bill last week, and it now awaits President Obama’s signature.
  • The European Commission announced that it has expanded the scope of its multi-year antitrust probe into Google, adding allegations that the tech giant blocked competition in the market for embedded search engines—stripped down search tools that website operators can use instead of building their own tool—by imposing strict terms on the websites it partners with. Included in the Commission’s press release are charges that the terms bar websites from displaying advertisements for Google’s competitors and require them to feature Google advertisements prominently.
  • The U.S. Equal Employment Opportunity Commission (EEOC) released a modified version of its proposed rule to expand collection of pay data from employers with more than 100 employees—a proposed rule which would require such employers to report summary pay data in an effort to identify and address pay discrimination. In reference to the rule, Secretary of Labor Thomas E. Perez reportedly said “better data means better policy and less pay disparity,” but those opposed to the rule have allegedly suggested that reporting obstacles could prevent the kind of collection needed for substantive analysis.
  • In an effort to reduce the regulatory burden on the maritime shipping industry, the U.S. Coast Guard issued a proposed rule that would permit tanker ships to use autopilot systems in zones of water subject to traffic separation schemes and “shipping safety fairway” regulations, where their use is currently prohibited. In its proposal, the Coast Guard stated that improvements in navigation technology over the past two decades have rendered the prohibition an unnecessary safeguard, and that the rule would eliminate the need for the Coast Guard to grant case-by-case waivers to individual ships.
  • Senator Tammy Baldwin (D-Wis.) and Senator Patty Murray (D-Wash.) introduced legislation that would require federal agencies to include questions about sexual orientation and gender identity on the census and other federal surveys—a proposal that is supported by the liberal Center for American Progress, which has advocated for the inclusion of such questions and argued that policymakers and researchers “need more and better data related to the experiences and needs of the LGBT population,” but which comes at a time when issues related to gender identity, such as restroom assignment, have stoked fierce debate.
  • In an effort aimed at reducing accidental gun deaths, Senator Ed Markey (D-Mass.) and Representative Ruben Gallego (D-Ariz.) introduced legislation that would prohibit children under 16 from shooting or possessing assault weapons and machine guns, including at gun shows, firing ranges, and for hunting. Senator Markey argued that such weapons are “weapons of war” and that children and machine guns are a “deadly combination,” while Rep. Gallego characterized the measure as a “common sense step” to prevent accidental gun deaths.

WHAT WE’RE READING THIS WEEK

  • President Barack Obama, writing in the Journal of the American Medical Association, discussed the successes and failures of the Affordable Care Act (ACA), citing data to show that the ACA “has made significant progress toward solving long-standing challenges facing the U.S. health care system related to access, affordability, and quality of care.” President Obama called for policy makers to “build on the progress” made by the ACA by increasing financial assistance to health care consumers, introducing a “public option” to improve competition in the health insurance exchanges, and passing legislation to address prescription drug costs.
  • Kent H. Barnett of the University of Georgia Law School and Christopher J. Walker of the Ohio State University Michael E. Moritz College of Law recently authored an article that assessed 1561 agency interpretations that were reviewed by circuit courts between 2003 and 2013. They found that agencies enjoyed a 25 percentage-point higher win rate when Chevron deference was applied.
  • In a letter to Niantic, Inc., the developer of Pokémon Go, Senator Al Franken (D-Minn.) weighed in on privacy concerns surrounding the game, writing that he is “concerned about the extent to which Niantic may be unnecessarily collecting, using, and sharing a wide range of users’ personal information without their appropriate consent.” After citing to reports that suggested the game was collecting a wide array of data from users, Senator Franken posed a series of seven questions to Niantic aimed at increasing public awareness of their data collection process.