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Killexams : ACT Section action - BingNews Search results Killexams : ACT Section action - BingNews Killexams : The Public Service Reform Act would wreck the civil service

A new bill introduced in the House of Representatives, titled the Public Service Reform Act, is not about public service and is certainly not reform. Rather than addressing accountability or hiring and pay challenges, the bill would make all federal workers at-will employees. The result would be a civil service that is little more than two million political appointees.

Here is the key text of the bill:

IN GENERAL.—Notwithstanding any other provision of law, rule, or...


A new bill introduced in the House of Representatives, titled the Public Service Reform Act, is not about public service and is certainly not reform. Rather than addressing accountability or hiring and pay challenges, the bill would make all federal workers at-will employees. The result would be a civil service that is little more than two million political appointees.

Here is the key text of the bill:

IN GENERAL.—Notwithstanding any other provision of law, rule, or regulation, and except as provided in paragraph (2), any employee in the executive branch of Government shall be considered at will, and—

(A) may be subject to any adverse personnel action (up to and including removal) for good cause, bad cause, or no cause at all; and

(B) may not challenge or otherwise appeal such an action except as provided in subsection (b).


(A) IN GENERAL.—An employee may not be subject to any adverse personnel action under this Act for any reason prohibited section 2302(b) of title 5, United States Code.

(B) PROCEDURES.—The President shall establish procedures to enforce compliance with paragraph (1), including providing for disciplinary measures against any employee who violates such paragraph. Nothing in this subparagraph shall be construed to grant an employee the right to review or appeal an adverse personnel action outside such procedures.

Note the key words here – “at-will” and “may be subject to any adverse personnel action (up to and including removal) for good cause, bad cause, or no cause at all.” If we want to have a civil service that is staffed based on merit, why would any reasonable person want to write into law provisions that say a federal worker can be fired for good cause, bad cause, or no cause at all? Bad cause and no cause at all have no place in a civil service that is based on merit. Indeed, that kind of language would have catastrophic results for the civil service and the American people they serve.

Imagine the civil service after passage of this bill. A supervisor tells his direct report to doctor the numbers in an employment report. The employee, recognizing that factual data is essential to effective government, says no. S/he is fired and replaced with someone who will do as they are told. A political appointee decides an office should be shut down and relocated to somewhere more friendly to his/her cause. No problem, just fire all of the staff in the office. No need to run a RIF, because “Notwithstanding any other provision of law, rule, or regulation” means those rules are irrelevant. In fact, courts have consistently ruled that such language means exactly what it says. Don’t bother pointing to some law that offers protection, because the plain language of the bill says “Notwithstanding any other provision of law, rule, or regulation.” Rather than a government of qualified people, we would end up with a government of partisans and sycophants whose word cannot be trusted and who will no longer have any job security when they choose to do the right thing. Rather than a civil service where the rule of law is enforceable by the courts, we would have a civil service that relies on politicians always doing the right thing.

Supporters of the bill argue that the provisions that say “An employee may not be subject to any adverse personnel action under this Act for any reason prohibited section 2302(b) of title 5, United States Code” would protect employees from prohibited personnel practices. I do not believe that is much protection. First, the bulk of the prohibited personnel practices do not address actions that basically boil down to “I don’t like you.” They are related to veteran preference, racial and other discrimination, and whistleblowing. Second, the only route to appeal a downgrade or removal would be the process the President and an agency creates. It clearly sates “Nothing in this subparagraph shall be construed to grant an employee the right to review or appeal an adverse personnel action outside such procedures.” It goes on to lay out procedures for taking actions, keeping decisions entirely within the agency taking the action. Employees would have no right to a hearing, no right to discovery, and no right to a third party review. Bargaining unit employees would not have a right to grievance and arbitration procedures. Employees with performance problems would not be covered by the adverse action procedures in 5 USC Chapter 43. Because employees would be subject to the whims of their agencies, the Merit Systems Protection Board (MSPB) would no longer be necessary and would be abolished. Let’s just forget the fact that agencies win their cases before the MSPB 85 to 90 percent of the time. Apparently batting .900 isn’t good enough for the sponsors and proponents of this bill.

The bill does appear to provide access to EEOC for complaints regarding prohibited personnel practices, but says “an individual who is an employee or applicant to be an employee and who alleges that the individual was subject to an adverse personnel action that is a prohibited personnel action described in section 2302(b)(1) of title 5, United States Code, shall seek relief for such action from the Equal Employment Opportunity Commission as if such individual was an employee of an employer (as that term is defined in section 701 of such Act).” Section 701 of the Civil Rights Act excludes the United States government from the definition of an employer. The way this bill is constructed, it appears there may really be no recourse outside the agency,

Proponents of this bill argue that the Merit System Principles and Prohibited Personnel Practices are all the protection employees really need. I simply do not believe that is true. After working in and around the federal government for more than 40 years, I have seen examples of managers who took actions against employees they simply did not like. I have seen officials who were supposed to make unbiased decisions on disciplinary and adverse actions proposed by their subordinates have improper conversations with those subordinates before they rendered a decision. I have seen political appointees from both parties deciding in their first week on the job that career employees cannot be trusted, only to see them change their minds once they work with them for a while. If this bill became law, those appointees would likely fire the employees before they had a chance to prove themselves.

If you think the courts would sort this mess out, think again. First of all, the bill says there is no recourse to third parties outside of procedures in the agency and defined by the president. Courts may find they have no ability to review anything, On top of that, the plain language of the bill says federal workers are at-will employees who can be fired for good cause, bad cause, or no cause at all, and that the bill’s provisions are effective notwithstanding any other law, rule or regulation. If some provisions of this law do end up in court, the courts are likely to look at that plain and unambiguous language to determine that federal workers are exactly what the bill says — at-will employees.

The Pendleton Act created the modern civil service in 1883. Prior to its passage, we had a spoils system that meant large swaths of the federal government turned over at every change of administration. Some proponents of this bill and of Schedule F would have you believe that job protections for the civil service did not exist prior to President Kennedy’s 1962 Executive Order 10987, which directed agencies to establish internal appeals processes. What about President McKinley’s Executive Order 101, signed in 1897, that said “No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department, or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.” Or the Lloyd-LaFollette Act of 1912, that codified the protections found in EO 101, saying employees in the classified civil service could not be removed “except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him.” It also provided protections to whistleblowers.

If you think the proposal for Schedule F is bad, wait until this monstrosity is enacted. There is virtually nothing good that can come out of this bill. It might make it possible to fire the small number of poor performers who are not dealt with, but it would do it at the expense of a merit-based civil service. It would have such a chilling effect that civil servants would be hesitant to speak the truth to their bosses.

Given the rabid partisanship that has engulfed this country, do we really think the partisans who are appointed will not clean house every time the White House changes hands? Do we really think a government of political hacks and sycophants is in the best interests of the American people? Do we think that making government more partisan will make it more trusted by the people?

The reality is that there is too much partisanship already, and the more partisan government becomes, the less the people will trust anything federal workers say. They already do not trust the politicians. The only way this bill would make things better is if every political appointee from both parties and every manager and supervisor does the right thing for the American people every day. And that will happen when pigs fly.

Jeff Neal authors the blog and was previously the chief human capital officer at the Department of Homeland Security and the chief human resources officer at the Defense Logistics Agency.

Tue, 09 Aug 2022 09:51:00 -0500 en-US text/html
Killexams : Trump Mar-a-Lago search: What's the Presidential Records Act? No result found, try new keyword!Trump maintains that the search is neither necessary nor appropriate, which presents the question of how presidential records are handled. Mon, 08 Aug 2022 14:57:20 -0500 en-us text/html Killexams : We need a national action plan to contain monkeypox now

On July 23, the World Health Organization (WHO) declared monkeypox a global health emergency, and the United States is currently the world’s epicenter, with more than 6,600 cases across 48 states, the District of Columbia and Puerto Rico. And that is likely a significant undercount due to sporadic testing and underreporting. Most monkeypox cases are among men who have sex with men, but women and children have the disease as well. If we wait much longer to take urgent action, our country will be battling two pathogens novel to America — COVID-19 and monkeypox — for decades to come, severely straining the U.S. health system.

We need a national action plan now.

At last, Health and Human Services Secretary Xavier Becerra today declared monkeypox a national emergency. Such a declaration does not supplant the role of federal agencies or state health departments, but rather can help procure and marshal resources to effectively fight the disease. Monkeypox is a textbook case for an emergency declaration under Section 319 of the Public Health Service Act. Section 319 empowers HHS to make grants, enhance telemedicine, enter contracts, evaluate treatments, and unleash the nation’s public health emergency fund — all crucial for the resources, powers and flexibility needed to fight monkeypox.

Why did we wait so long, well after the WHO, California, Illinois and major cities like New York have sounded a public health alert? There were no downsides to declaring a public health emergency. There was no political opposition, and any legal challenges would be summarily dismissed.

Another important step forward is the president’s appointment this week of Robert Fenton as White House National Monkeypox Response Coordinator. Fenton is a trusted and experienced FEMA regional administrator with expertise in government and supply chain operations who will coordinate and communicate about the government’s multi-agency response, while working with the private sector. His deputy will be Dr. Demetre Daskalakis, director of the Division of HIV Prevention at the Centers for Disease Control and Prevention (CDC), with expertise in infectious disease management, including COVID-19, and health issues affecting the LGBTQ community.

Our flawed response thus far is due in no small measure to a fragmented public health system that lacks coordination and technological innovation. It is impossible to fight infectious disease outbreaks without essential data and effective communication about the disease, but that is exactly what is happening now. We need to collect national data that is accurate and disaggregated by age, gender, race/ethnicity and risk profile. It is unacceptable that the U.S. is currently unable to provide accurate assessments of key scientific factors needed to track and respond to monkeypox.

Think back over the last two years of COVID-19. We got our data on aerosolized spread, masks and vaccine and booster effectiveness from national health systems like those in the United Kingdom, Israel and South Africa. As the disease emerged, the CDC was late or missing in action regarding key data. The same thing is happening with monkeypox.

Since data drives policy, we must develop novel approaches to collecting this critical information in the absence of a seamless, standardized system of federal/state/local reporting. Currently, the CDC relies on state, tribal and local health departments for data, and there is no law that requires states and localities to share this vital information with the agency under our current system. The CDC recently designated monkeypox a nationally notifiable condition, but that still requires state cooperation.

Since 1992, in what is known as the “anti-commandeering” doctrine, the Supreme Court has ruled that the Tenth Amendment prohibits the federal government from forcing states to comply with federal dictates. Given constitutional barriers, novel 21st century data collection methods are urgently needed. A modern data ecosystem with innovative approaches should be established for monkeypox and other diseases so that critical data can be collected in real time, trends monitored efficiently, and forecasting models created.

Such a system could be built from signing long-term data use agreements with states and providing them with technical assistance and support. And while the CDC can’t compel states to share data, it could incentivize them by offering public health funding that is conditioned on their sharing this information. Data could also be gathered from federal sources such as Medicaid, Medicare and the Department of Veterans Affairs, open-source information like social media, and large hospital systems. Additionally, wastewater surveillance has proven highly effective in monitoring COVID-19 infection trends and should now be employed to measure monkeypox in communities across the country.

The reason we are so badly undercounting monkeypox cases is an inadequate testing infrastructure. While U.S. testing capacities have recently improved, there’s still much more to be done. With private laboratories now processing tests, U.S. capacity reached 80,000 tests last week, up from 6,000 tests a week at the beginning of the outbreak. However, the cost of tests is too high and getting a test result can be onerous. We need to make testing inexpensive and easy, including the development and distribution of at-home test kits if possible.

Finally, and most importantly, we must urgently increase supplies of, and equitable access to, treatment and vaccines. Although no therapies are currently authorized specifically for monkeypox, the federal government has medications in the national stockpile including over 1.7 million courses of tecovirimat, an antiviral that is FDA approved for smallpox. While the European Medicines Agency has authorized it for treating monkeypox, the drug is available in America only through an Expanded Access IND research protocol. That is far too laborious. By the end of June, only 300 courses of tecovirimat had been distributed from the stockpile. And while the FDA and CDC recently reduced the need to complete over 100 pages of paperwork to 20 pages, the agencies must go much further. Clinical trials are also needed to determine whether the drug can prevent disease if given as post-exposure prophylaxis.

Supplies of the FDA-authorized Jynneos monkeypox two-dose vaccine also remain under strain as demand skyrockets, leading to long lines at clinics and advocacy protests. The vaccine can be used for pre- and post-exposure prophylaxis. A decade ago there were 20 million doses of this vaccine in the national stockpile but they have expired, so there were just 2,400 usable doses available as the monkeypox outbreak emerged in America in May. While the government has purchased several million new vaccine doses, they will not be available until later this year and into 2023.

FDA Commissioner Dr. Robert Califf announced today that the agency is considering a “dose sparing strategy” to expand the vaccine supply but did not provide all of the scientific evidence behind this plan. With this proposed strategy, health care practitioners would be permitted to split a one-dose vaccine vial into five doses to be administered to five patients. The agency did not cite whether patients would be advised to return for a second dose 28 days following the first, as is the current practice.

Currently, the Danish-based biotechnology company Bavarian Nordic is the sole manufacturer of the monkeypox vaccines needed for Americans and the entire world. Since the Biomedical Advanced Research and Development Authority, an HHS agency, has contributed more than $1 billion as of 2014, with an estimated $2 billion totalto date, in order to develop and produce this vaccine, it should rapidly determine whether this one company has adequate facilities in Denmark to produce enough vaccine now for all those who need it. A declared public health emergency enables the president to require or incentivize this company to contract with other vaccine manufacturers to help produce more vaccine at scale. The Defense Production Act could also help ramp up badly needed manufacturing capacity.

Mark Twain once said, “History never repeats itself, but it does often rhyme.” Let’s apply the lessons learned from the COVID-19 pandemic to ensure that there’s an innovative, effective action plan to contain monkeypox before it becomes endemic in America and worldwide.

Susan J. Blumenthal, MD, MPA, a retired rear admiral and former U.S. assistant surgeon general, is senior medical adviser at amfAR, The Foundation for AIDS Research, a senior fellow in health policy at New America, a clinical professor at Georgetown University School of Medicine and a visiting professor at the MIT Media Lab.

Lawrence O. Gostin, JD, is professor of Global Health Law at Georgetown University, where he directs the O’Neill Institute for National and Global Health Law. He is also director of the WHO Center of Global Health Law.

The authors wish to thank Emily Stark, a research associate in health policy at New America and an entering first-year law student at Boston College, for her contributions to this article.

Thu, 04 Aug 2022 09:30:00 -0500 en-US text/html
Killexams : Not much has changed in the UT departments despite Right to Service Act No result found, try new keyword!There are a list of 486 services from 28 departments in which officials are required to perform in a time-bound manner, but the present case clearly showed how the law is being defied by the officials ... Tue, 09 Aug 2022 10:44:26 -0500 en-in text/html Killexams : The Sherman Antitrust Act is the first in a line of federal laws protecting consumers from unfair prices

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Tue, 02 Aug 2022 06:09:00 -0500 en-US text/html
Killexams : A Plea to Senator Tillis: Words Matter in Section 101 Reform

“In its current state, S.4734 is radically immature. The most important words dangle undefined, and the language used to define software eligibility effectively excludes most software.”

eligibility - U.S. government, setting public policy is the sole and exclusive domain of Congress. The laws they pass effectuate the public policy positions that Congress alone has the power to set.

In law, words are everything. The precise meaning of the words in law determines whether the public policy is implemented as intended by Congress. Altering the meaning of just one word can change the entire public policy set by Congress, even turning the public policy on its head.

Anyone following the debate on patent eligibility can attest to how the Supreme Court’s redefinition of the word “any” in 35 U.S.C. § 101 to have an exception called an “abstract idea” caused a significant public policy change and that change destroyed countless startups, especially those in tech.

Senator Tillis’ Patent Eligibility Restoration Act of 2022, S.4734, wrongly puts the courts in charge of defining public policy because it leaves key words completely undefined.

A Judicially Created Disaster in Patentable Subject Matter

Since the 1952 Patent Act, the words of Section 101 defined subject matter eligibility as “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

These words worked exceedingly well for decades. However, in Alice v. CLS Bank (2014) the Supreme Court created an exception to the word “any” that they called an “abstract idea”. But the Court did not define what an abstract idea is, instead leaving us with a purely eye-of-the-beholder test that produces wildly inconsistent results. Today, nobody knows what is patent eligible.

The Federal Circuit refuses to do anything, and instead has issued a scant few opinions which provide contradictory guidance and a plethora of Rule 36 affirmances with no guidance at all. The Supreme Court, having released the abstract idea demon into the patent system, sits on its thumbs refusing dozens of cases from mostly small entities who have been seriously damaged by their errant public policy setting adventure.

Effectively, the courts are telling us that their own preferred public policy is superior to that set by Congress. Damage to our economic engine, technological leadership, and national security be damned.

Go pound sand.

As a result, U.S. startups, especially those with disruptive emerging technologies, lose funding. They are easy prey for predatory infringers in Big Tech. So, investors just put their money in places where abstract ideas do not exist, like China.

Nearly ten years since Alice v. CLS Bank, Congress now wants to reassert their constitutional authority. While that is a good thing, S.4734 makes the mess worse.

What Does ‘Technological’ Mean?

Among the many exceptions to the word “any” being codified in S.4734, it creates an exception to patentable subject matter called “non-technological”.

Paragraph (1)(B)(i): “(1) a person may not obtain a patent for any of the following, if claimed as such: (B) a process that (i) is a non-technological economic, financial, business, social, cultural or artistic process;”.

This, of course, means that only those process inventions that are deemed technological are patentable subject matter.

But how do we know if a process is technological? What does technological mean? That is left undefined.

No Definition of Technological Will Work

The patent system is forward looking. It protects future inventions, not those of the past. In the 1952 Patent Act, Congress used the very broad word any, without exceptions, for this reason.

Any definition of technological constructed today must be able to encompass future inventions of which we know nothing. In 1952, they knew nothing of today’s Artificial Intelligence, for example, but the word any covers it. Back then, things were simpler. Corporations were smaller, not so multinational, and less influential in patent law, so Congress understood that there should not be any restraint that limits individual creativity and freedom to protect all innovation.

We can only proffer a definition based on what we know, and we cannot know what technological things might be invented in the future. It is likely not possible to define technological in a way that ensures the future inventions are patent eligible, since we do not know what they will be.

The big risk here is that any exception to the word any will almost certainly exclude future technologies from patent eligibility. Eliminating a future technology eliminates investment into it, and therefore the industry it creates.

S.4734 does not even pretend to address this problem. Instead, it leaves technological undefined.

S.4734 Forces the Courts to Define Technological

The courts are experts in law – they are not experts in technology.

Nor is legal process suited to define what is or isn’t technological. The court only knows what is presented to it in briefs submitted by parties in the case.

Courts are not required to accept third party amicus briefs. But even if a court agrees to third party amicus briefs, filing one costs tens of thousands of dollars. So only those with access to money will be able to contribute to the court’s public policy debate. A multitude of small inventors and startups will be silenced based on access to money alone.

In the end, the courts will develop a definition based on information provided to it solely by big corporations. The resulting public policy will no doubt disfavor small inventors and startups who were excluded from the debate.

Tillis’ Bill Excludes Most Software Inventions

S.4734 adds a separate exclusion beyond technological:

Paragraph (2)(A)(i): “Notwithstanding paragraph (1)(B)(i), a person may obtain a patent for a claimed invention that is a process described in such provision unless that machine or manufacture is recited in a patent claim without integrating, beyond merely storing and executing, the steps of the process that the machine or manufacture perform.”

All software inventions store and execute code. But that is not the purpose of software. Its purpose is to effect a change in data, and that new data is used in the real world to accomplish something. That may be a process that a machine or manufacture performs, but it may be something entirely absent a machine or manufacture.

Many software inventions only produce new data. Artificial Intelligence is a prime example of why this approach does not work. It, too, stores and executes code. But in many cases, the new data produced is not used by any machine or manufacture at all. Instead, it is displayed in some way so that the new data guides human action or decisions. For example, fighter jet displays provide new data derived from AI algorithms. That new data enables pilots to make split second decisions more accurately. No machine or manufacture is involved beyond storing and executing code.

Some software applications feed new data into other software systems such as enterprise middleware and security applications. There is no machine or manufacture involved.

Under S.4734, most software and artificial intelligence applications are not eligible for patent protection.

Machine learning, a minor form of AI, may be patent eligible under this restriction, but only if the new data is fed directly into a machine or manufacture, and not if it is used by a human operator independent of the machine or manufacture.

Nobody can predict the course of future inventions, and this highly restrictive exclusion will exclude many new technologies from patent protection, including almost all software inventions.

The Bill, as Written, is Radically Unfit to Become Law

S.4734 will attract focused and powerful litigation from Big Tech multinationals attempting to sustain their monopolies. On the other side of Big Tech’s powerful litigation is the moneyless fact that the resulting definitions will propel, or sink, the effectiveness of U.S. technological competition across the globe.

U.S. technology startups will either attract funding, or startups in China and elsewhere will. Where that early-stage funding ends up will determine who leads the world technologically, and thus economically and militarily.

The stakes cannot be higher. That means reforming Section 101 is clearly a public policy position of the United States, which requires clear and defined law that stems from open and free debate from all parties, not just those with money.

Any legislation must be clearly written and well defined by Congress such that the courts cannot redefine key words to change its intent.

In its current state, S.4734 is radically immature. The most important words dangle undefined, and the language used to define software eligibility effectively excludes most software.

S.4734 seems to deliberately gaff Congress’s constitutional requirements onto the courts, who are incapable of performing that task and have no constitutional power to do it anyway. What’s even worse is that these are the same courts that have irresponsibly demonstrated their willingness to muck up the law and their refusal to fix the mess they created time and again.

Yes, Section 101 is broken. Yes, it needs to be fixed. But passing something for the sake of passing it is not only unserious lawmaking, it is an irresponsible, dangerous, and thoughtless venture.

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Copyright: stuartmiles 

Mon, 08 Aug 2022 04:45:00 -0500 en text/html
Killexams : EPA Publishes Additional Resources for Recipients of TSCA Section 4 Test Orders

Monday, August 8, 2022

The U.S. Environmental Protection Agency (EPA) has posted two new resource documents for recipients of test orders under Section 4 of the Toxic Substances Control Act (TSCA). The August 5, 2022, policy document entitled “Policies Regarding Manufacturers and Processors Subject to TSCA Section 4(a) Testing” provides two policies:

  • Policy 1: Companies engaged in manufacturing activities for a chemical substance during the five years prior to the projected signature date or effective date of a Section 4(a) action (i.e., a rule, consent agreement, or order) will generally be included in the scope of the action. EPA may apply a longer or shorter period of time when appropriate in specific cases, however. EPA states that “[w]here (1) a five-year period fails to identify a sufficient number of manufacturers, (2) fairness reasons warrant inclusion of a manufacturer, especially a high-volume manufacturer, of the chemical substance with less latest manufacturing, (3) a chemical substance has persistence and/or bioaccumulative properties that warrant inclusion of companies that contributed to potential exposures associated with such substance, or (4) where warranted for other reasons, which the Agency would explain as part of the Section 4(a) action, EPA will consider a longer manufacturing period than five years for the identification of companies as manufacturers subject to TSCA Section 4 testing obligations for a given chemical substance.” According to EPA, an example of where it may not include a company that has manufactured in the past five years as a manufacturer subject to testing requirements in a specific Section 4(a) action would be a company that “may have gone into bankruptcy and be in the hands of receivers who do not seek to continue the company’s manufacturing activities involving the chemical substance subject to the testing requirements.”

  • Policy 2: Section 4 actions will not include an option to cease manufacturing as a means to satisfy the requirements of the action. Test orders issued in January 2021 included this option. EPA removed this response option to ensure that a sufficient number of entities remained subject to an order (e.g., for one 2021 order, no manufacturers identified by the order remained available to conduct the testing due to their use of the cease manufacture response option). According to EPA, were all entities subject to the testing requirements able to exit the market to forgo producing the required data, EPA would be unable to seek and obtain data under Section 4(a) to support better its assessments and action. EPA states that where it is conducting a risk evaluation on chemical substances that have conditions of use that “are not currently ongoing but are reasonably foreseen to reoccur or for which the effects and exposures are ongoing, EPA generally believes it is appropriate to include companies responsible for those activities in testing obligations.”

The August 5, 2022, policy document entitled “Removal of Certain Companies from Seven TSCA Section 4(a)(2) Orders Issued in 2022” states that although EPA’s policy is that it will no longer provide a “cease manufacture” response option for a company to cease its manufacture of a chemical substance to satisfy the requirements of an order, EPA recognizes that a company that ceased its manufacture of a chemical substance in response to a 2021 order “forewent a business opportunity in reliance upon EPA’s representation that testing on the chemical substance would not be required by the company.” EPA will remove from a 2022 order on a chemical substance any company that made successful use of the cease manufacture response option for a 2021 order on that same chemical substance, “provided the company has not, and does not, recommence its manufacture of the chemical substance while testing obligations remain in effect for that chemical substance under the applicable 2021 Order and/or 2022 Order.” According to EPA, removal of such companies due to EPA’s approval of the “cease manufacture” response option provided in the 2021 order applies only to the 2022 orders issued for the eight subject chemical substances. EPA notes that any future Section 4 action involving the applicable chemical substance will include manufacturers and/or processors as EPA deems to be appropriate upon any final future action (e.g., should such companies resume their manufacturing and/or processing of the chemical substance following the completion of the testing requirements in the 2021 and 2022 orders).

EPA states in each document that the policy document is not intended to bind EPA or members of the public. EPA “may revisit and depart from these policies based on reasoned consideration as it deems appropriate in the future.”

©2022 Bergeson & Campbell, P.C.National Law Review, Volume XII, Number 220

Sun, 07 Aug 2022 12:00:00 -0500 en text/html
Killexams : NIC takes action against chiefs of 33 offices for defying RTI Act

KATHMANDU, August 9: The National Information Commission (NIC) has punished the chiefs of 33 offices for refusing to deliver information to the seekers. They faced the music for violating the Right to Information (RTI) guaranteed by the constitution. 

The NIC which was established in 2065 BS has so far exercised its rights given by Section 32 of the RTI Act, 2065 BS against such a number of office chiefs. 

According to Information Officer Ratna Prasad Mainali of NIC, among those facing action for failure to implement the RTI, most are from Tribhuvan University subordinate bodies. They include seven controllers of examination, four TU Service Commission employees, one TU rector, four chiefs of local units, six school principals and campus chiefs and 11 others.


Mon, 08 Aug 2022 19:42:00 -0500 en text/html
Killexams : The Federal Trade Commission Act sets the guidelines underpinning the FTC's consumer-protection enforcement

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Tue, 02 Aug 2022 05:53:00 -0500 en-US text/html
Killexams : Section 18 "Eyeball Reliance" Claim Brought to the SPAC Fight

Friday, August 5, 2022

As my Mintz colleague, Peter Saparoff, suggested a few years back, Section 18 of the Securities Exchange Act of 1934, "while seldom used in the past, has been increasingly used by institutional investors in suits against banks and other entities."  In the article linked, Peter noted some of the advantages (and limitations) of utilizing Section 18 to pursue claims where a plaintiff has relied on alleged material misleading statements to its detriment.

In a case filed earlier this week in the U.S. District Court for the Southern District of Texas, in addition to its Section 10(b), 20(a) and 14(a) (and common law fraud) claims, plaintiffs also alleged that defendant Alta Mesa, certain management and board of director defendants all violated Section 18 of the Exchange Act.  Per the Complaint, "an investment analyst working on behalf of Plaintiffs read and actually relied upon information contained in Alta Mesa’s 2017 Form 10-K (to the extent that Form 10-K was on file with the SEC at the time) in making each purchase of Alta Mesa common stock. In ignorance of the falsity of Defendants’ statements, or of the true facts, Plaintiffs purchased Alta Mesa common stock in actual, justifiable, eyeball reliance upon the representations made by Alta Mesa, the Management Defendants, and the Board Defendants."

With core securities class action filings involving SPACs on pace to exceed last years all time high total of 33 (see  Cornerstone Securities Class Action Filings 2022 Mid Year Assessment ), it will be interesting to see what old and new tools plaintiffs continue to utilize in prosecuting these cases.

"Indeed, Defendants’ misconduct included directly misleading Orbis’ investment advisors during numerous in-person meetings and calls. Orbis relied to its detriment on what Defendants misrepresented to Orbis’ investment advisors during these meetings in purchasing and holding Alta Mesa securities."

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 217

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