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[327 U.S. 358, 359] Mr.Paul A. Sweeney, of Washington, D.C., for petitioner.
Mr. Ernest Goodman, of Detroit, Mich., for responde t.
A problem as to whether 'back pay,' which is granted to an employee under the National Labor Relations Act, shall be treated as 'wages' under the Social Security Act comes before us on this record. If such 'back pay' is a wage payment, there is also at issue the proper allocation of such sums to the quarters of coverage for which the 'back pay' was allowed.
The respondent, Joseph Nierotko, was found by the National Labor Relations Board to have been wrongfully discharged for union activity by his employer, the Ford Motor Company, and was reinstated by that Board in his employment with directions for 'back pay' for the period February 2, 1937, to September 25, 1939.1 The 'back [327 U.S. 358, 360] pay' was paid by the employer on July 18, 1941. Thereafter Nierotko requested the Social Security Board to credit him in the sum of the 'back pay' on his Old Age and Survivor's Insurance account with the Board. 2 In conformity with its minute of formal general action of March 27, 1942, the Board refused to credit Nierotko's 'back pay' as wages. On review of the Board's decision,3 the District Court upheld the Board. The Circuit Court of Appeals reversed. 149 F.2d 273. On account of the importance of the issues in the administration of the Social Security Act, we granted certiorari. 4 326 U.S. 700 , 66 S.Ct. 55; Judicial Code 240, 28 U.S.C.A. 347.
But it is urged by petitioner that the administrative construction on the question of whether 'back pay' is to be treated as wages should lead us to follow the agencies' determination. There is a suggestion that the administrative decision should be treated as conclusive, and reliance for that argument is placed upon National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130 , 64 S.Ct. 851, 860, and Gray v. Powell, 314 U.S. 402, 411 , 62 S.Ct. 326, 332. In the acts which were construed in the cases just cited, as in the Social Security Act, the administrators of those acts were given power to reach preliminary conclusions as to coverage in the application of the respective acts. Each act contains a standardized phrase that Board findings supported by substantial evidence shall be conclusive. 21 The validity of regulations is specifically res rved for judicial determination by the Social Security Act Amendments of 1939, sec. 205(g).
The Social Security Board and the Treasury were compelled to decide, administratively, whether or not to treat 'back pay' as wages and their expert judgment is entitled, as we have said, to great weight. 22 The very fact [327 U.S. 358, 369] that judicial review has been accorded, however, makes evident that such decisions are only conclusive as to properly supported findings of fact. Both N.L.R.B. v. Hearst Publications, page 131, of 322 U.S., page 860 of 64 S.Ct., and Gray v. Powell, page 411 of 314 U.S., page 332 of 62 S.Ct., advert to the limitations of administrative interpretations. Administrative determinations must have a basis in law and must be within the granted authority. Administration when it interprets a statute so as to make it apply to particular circumstances acts as a delegate to the legislative power. Congress might have declared that 'back pay' awards under the Labor Act should or should not be treated as wages. Congress might have delegated to the Social Security Board to determine what compensation paid by employers to employees should be treated as wages. Except as such interpretive power may be included in the agencies' administrative functions, Congress did neither. An agency may not finally decide the limits of its statutory power. That is a judicial function. 23 Congress used a well-understood word-'wages'-to indicate the receipts which were to govern taxes and benefits under the Social Security Act. There may be borderline payments to employees on which courts would follow administrative determination as to whether such payments were or were not wages under the act.
We conclude, however, that the Board's interpretation of this statute to exclude back pay goes beyond the boundaries of administrative routine and the statutory limits. This is a ruling which excludes from the ambit [327 U.S. 358, 370] of the Social Security Act payments which we think were included by Congress. It is beyond the permissible limits of administrative interpretation.
[327 U.S. 358, 371] though he be inactive. E.g., Armour & Co. v. Wantock, 323 U.S. 126 , 65 S. Ct. 165. This is, practically speaking, the ordinary situation of employment in a 'stand-by' capacity. United States v. Local 807, 315 U.S. 521, 535 , 62 S.Ct. 642, 647. The basis of a back-pay order under the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. 151, 29 U.S.C.A. 151 et seq., is precisely that. When the employer is liable for back pay, he is so liable because under the circumstances, though he has illegally discharged the employee, he still absorbs his time. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177 , 61 S.Ct. 845, 133 A.L.R. 1217. In short, an employer must pay wages although, in violation of law, he has subjected his employee to enforced idleness. Since such compensation is in fact paid as wages, it is a plain disregard of the law for the Social Security Board not to include such payments among the employees' wages. Neither the terms of the Social Security Act, 49 Stat. 620, 53 Stat. 1360, 42 U.S.C. 301, et seq., 42 U.S.C.A. 301 et seq., nor the implications of policy, comparable to some aspects of the Railway Labor Act, 44 Stat. 577, 48 Stat. 926, 48 Stat. 1185, 49 Stat. 1921, 54 Stat. 785, 45 U.S.C. 151, et seq., 45 U.S.C.A. 151 et seq., give the Board judicially unreviewable authority to exclude from wages what as a matter of law are wages. And so I concur in the decision of the Court.
[ Footnote 1 ] National Labor Relations Act, Sec. 10(c), 49 Stat. 454, 29 U.S.C.A . 160(c).
[ Footnote 2 ] Social Security Act, Sec. 205(c)(3), 53 Stat. 1369, 42 U.S.C.A. 405(c) (3).
[ Footnote 3 ] Sec. 205(g).
[ Footnote 4 ] The briefs of the Government advise us that more than thirty thousand individual employees were allowed 'back pay' in 'closed' cases by the National Labor Relations Board under Sec. 10(c), 49 Stat. 454, in the period 1939-1945. See Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 187 , 61 S.Ct. 845, 849, 133 A.L.R. 1217. Second. The aggregate in money exceeded $7,700,000 in the fiscal years 1939 to 1944 as shown by the reports of the N.L.R.B. for those years.
'(2) He had at least forty quarters of coverage.
'(1) With respect to employment during the calendar years 1937, 1938, and 1939, the rate shall be 1 per centum. ...' 42 U.S.C.A. 1001(1).
'(1) With respect to employment during the calendar years 1937, 1938, and 1939, the rate shall be 1 per centum. ...' 42 U.S.C.A. 1004(1).
[ Footnote 9 ] Sections 811(a) and (b), and 907(b) and (c), 42 U.S.C.A. 1011(a, b) and 1107(b, c).
[ Footnote 10 ] Provisions similar to those quoted are found in the Social Security Act Amendments of 1939. See sections 202(a), 202(e), 203(d), 209( a), (b), (e), (g), (h), and 601, 604, and 606 at 53 Stat. 1362 et seq., 42 U.S.C.A. 402(a, e), 403(d), 409(a, b, e, g, h), 26 U.S.C.A. Int.Rev. Code, 1400, 1410, 1426.
[ Footnote 11 ] 49 Stat. 449, 29 U.S.C.A. 151 et seq.
[ Footnote 12 ] See Helvering v. Davis, 301 U.S. 619, 641 , 57 S.Ct. 904, 908, 109 A.L.R. 1319; H.Rep.No.728, 76th Congress, 1st Sess., 3-4; S. Rep.No.734, 76th Cong., 1st Sess. 3-4.
[ Footnote 13 ] Under the Social Security Act of 1935, see sec. 202(a) and sec. 210(c), supra, note 6. Under the 1939 Amendments, see sec. 202 and 209(e), ( f) and (g), 53 Stat. 1363, et seq.
[ Footnote 14 ] Virginia Electric Co. v. Labor Board, 319 U.S. 533, 543 , 63 S.Ct. 1214, 1220.
[ Footnote 15 ] Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 196 , 198 S., 61 S.Ct. 845, 853, 854, 133 A.L.R. 1217. See Third Annual Report, National Labor Relations Board, 202, n. 11; Eighth Annual Report 41; Ninth Annual Report 49. Nierotko's order was in this form, 14 N.L.R.B. 346, 410.
[ Footnote 16 ] H.Rep.No.615, 74th Cong., 1st Sess., pp. 6, 21, 32, and S.Rep.No. 628, 74th Cong., 1st Sess., pp. 7, 32.
[ Footnote 17 ] For example the Social Security Board's Regulations No. 3 in considering 'wages' treats vacation allowances as wages. 26 CFR, 1940 Supp ., 402.227(b).
Compare Armour & Co. v. Wantock, 323 U.S. 126, 133 , 65 S.Ct. 165, 168.
Treasury Department Regulations No. 91 relating to the Employees' Tax and the Employer's Tax under Title VIII of the Social Security Act, 1939, Art. 16, classifies dismissal pay, vacation allowances or sick pay, as wages. Regulations 106 under the Federal Insurance Contributions Act, 1940, pp. 48, 51, continues to consider vacation allowances as wages. It differentiates voluntary dismissal pay.
Though formal action was taken by the Social Security Board on March 27, 1942, our attention has not been called to any regulation of any governmental agency excluding 'back pay' from wages. The Treasury Department has authority to issue regulations for Social Security taxes. Secs. 808 and 908, 49 Stat. 638, et seq., 42 U.S.C.A. 1008, 1108; Internal Revenue Code, Sec. 1429, 53 Stat. 178, 26 U.S.C.A. Int.Rev.Code 1426. So has the Social Security Board, sec. 1102, 49 Stat. 647, 42 U.S.C. A. 1302, and sec. 205(a), 53 Stat. 1368, 42 U.S.C.A. 405(a). All authority for the promulgation of regulations limits the action to rules and regulations not inconsistent with the provisions of the various sections.
'(a) Wages. The term 'wages' means all remuneration (other than fees paid to a public official) for services performed by n employee for his employer, including the cash value of all remuneration paid in any medium other than cash; except that such term shall not include remuneration paid-' . See 26 CFR, 1944 Supp., 405.101(d) and (e).
[ Footnote 18 ] I.R.B., 1939, 14-9776, S.S.T. 359. No regulations covering 'back pay' under the Social Security Act have been found. They are authorized by 808 and 908, 49 Stat. 638, 643.
[ Footnote 19 ] The states have largely followed the Bureau of Internal Revenue in their classification of 'back pay.' Some have disagreed. Unemployment Insurance Service, All State Treatise, C.C.H., Paragraph 1201. See In re Tonra, 258 App.Div. 835, 15 N.Y.S.2d 755; Id., 283 N.Y. 676, 28 N.E.2d 402.
[ Footnote 20 ] This is the view of the Eighth Circuit when a 'back pay' claim was presented in bankruptcy. National Labor Relations Board v. Killoren, 122 F. 2d 609, 614.
[ Footnote 21 ] National Labor Relations Act, 49 Stat. 454, see 10(e), 29 U.S.C.A . 160(e); Bituminous Coal Act of 1937, 50 Stat. 72, 85, sec. 4-A, 15 U.S. C.A. 834; Social Security Act Amendments of 1939, secs. 205(c)(3) and (g).
[ Footnote 22 ] See Sanford Estate v. Com'r, 308 U.S. 39, 52 , 60 S.Ct. 51, 59; Skidmore v. Swift & Co., 323 U.S. 134, 139 , 140 S., 65 S.Ct. 161, 164.
[ Footnote 23 ] American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 , 23 S.Ct. 33, 39; International Ry. Co. v. Davidson, 257 U.S. 506, 514 , 42 S.Ct. 179, 182; Iselin v. United States, 270 U.S. 245 , 46 S.Ct. 248; Koshland v. Helvering, 298 U.S. 441 , 56 S.Ct. 767, 105 A.L.R. 756; Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 144 , 145 S., 60 S.Ct. 437, 442; United States v. Carolina Carriers Corp., 315 U.S. 475, 489 , 62 S.Ct. 722, 729; Helvering v. Credit Alliance Co., 316 U.S. 107, 113 , 62 S.Ct. 989, 992; Helvering v. Sabine Trans. Co., 318 U.S. 306, 311 , 312 S., 63 S.Ct. 569, 572; Addison v. Holly Hill Products, 322 U.S. 607 , 611, et seq., 64 S.Ct. 1215, 1218, 153 A.L.R. 1007; cf. Steuart & Bro. v. Bowles, 322 U.S. 398, 403 , 61 S.Ct. 1097, 1099.
[ Footnote 24 ] See Nierotko v. Social Security Board, 6 Cir., 149 F.2d 273, loc. cit. 274.
[ Footnote 25 ] See note 7, supra. The same problem would arise under the Social Security Act, 49 Stat. 625, sec. 210(c).
A pending bill, S. 1050, 79th Cong., 1st Sess., Part F, sec. 275, makes provision for the inclusion in wages under the Social Security Act of sums paid pursuant to the National Labor Relations Act.
'Back pay' is now treated distributively under the Internal Revenue Code. Sec. 119, Revenue Act of 1943, 53 Stat. 39, 26 U.S.C.A. Int.Rev.Acts.

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The EPA has proposed to remove the affirmative defense provisions for emergencies in the state and federal operating permit programs. 81 Fed. Reg. 38645 (June 14, 2016). Specifically, EPA proposes to simply delete 40 CFR §70.6(g) and §71.6(g). As noted in more detail below, this proposed action is part of an ongoing effort to strip reasonable and long-standing defenses from the regulated community.
Under the currently existing rules, an emergency constitutes an affirmative defense to an action brought for noncompliance with technology-based emission limitations if certain conditions are met. Generally, an affirmative defense is one that, if proven, will defeat the allegations of a violation. In other words, if proven, there is no violation or non-compliance.
The burden of proof to establish the defense rests with the permittee, who must prove that an emergency occurred and that the permittee can identify the cause(s) of the emergency, the facility was being properly operated, reasonable steps were taken during the emergency to minimize levels of emissions that exceeded the emission standards, and notice of the emergency is submitted within two working days.
An emergency is any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which requires immediate corrective action to restore normal operation and that causes the source to exceed a technology-based emission limitation under the permit due to unavoidable increases in emissions attributable to the emergency. An emergency does not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error. See §70.6(g) and §71.6(g).
EPA noted that these provisions have been part of the operating permit program since 1992. Over the years, it has approved numerous State Implementation Plans (SIPs) and state operating permits with these types of provisions. It has even issued numerous federal operating permits with these types of provisions. However, EPA now finds that “emergency affirmative defense provisions are not required program elements.” 81 Fed. Reg. at p. 38647. Indeed, the “provision has always been discretionary” because States were not obligated to include the §70.6(g) affirmative defense provision in their operating permit programs. Id.
To support the proposal, EPA relies on a recent decision from the D.C. Circuit and its pending State Implementation Plan (SIP) call regarding startup, shutdown, and malfunction (SSM) events.
EPA mainly relies on the D.C. Circuit’s decision in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). The case dealt with the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Portland cement facilities, promulgated under CAA Section 112, which contained an affirmative defense for violations of emissions limits caused by malfunctions which sources could assert in civil enforcement proceedings. The affirmative defense in the Portland cement rule (formerly at 40 CFR §63.1344) specifically applied to malfunctions and stated that the defense could be asserted “in an action to enforce the standards” as a defense “to a claim for civil penalties.” 78 Fed. Reg. 10039 (Feb. 12, 2013). The court held that the affirmative defense provision exceeded EPA’s statutory authority because only the courts have the authority under the CAA to decide whether to assess penalties for violations in civil suits.
EPA “interprets the decision to be relevant to all similar affirmative defense provisions, such as those found in part 70 and part 71, that may interfere with the authority of courts to assess penalties or to impose other remedies authorized in CAA section 113(b) in civil enforcement suits.” 81 FR at p. 38648. The proposed rule, then, “seeks to ensure that the EPA’s part 70 and part 71 regulations are consistent with the enforcement structure of the CAA in accordance with the reasoning of the NRDC v. EPA decision.” Id.
EPA also cited and relied on its own the “SSM SIP Call.” 80 Fed. Reg. 33840 (June 12, 2015). EPA found that the SIP’s of 36 states were inadequate as they contained affirmative defense type provisions analogous to the ones in the state and federal operating permit programs. EPA relied on the NRDC decision in the SSM SIP Call, finding that the “logic” of the decision extends beyond CAA Section 112 to affirmative defenses in SIPs. 81 Fed. Reg. at p. 38648. As a result, EPA broadly stated in the SSM SIP Call that these types of provisions “are not appropriate under the CAA, no matter what type of event they apply to, what criteria they contain or what forms of remedy they purport to limit or eliminate.” 80 Fed. Reg. at p. 33851.
However, EPA does not explain in the preamble how or why stripping the affirmative defense creates consistency with the NRDC decision. The affirmative defense in the Portland cement rule specifically applied in civil suits to assess penalties. The affirmative defense in the state and federal permit programs contains no such language. Removing the defense in its entirety means that it cannot even be included in federal or state operating permits and can never be asserted in any administrative or civil action for compliance or penalties.
EPA’s rationale in this regard makes even less sense given the decision in the Fifth Circuit in Luminant Generation Co. LLC v. EPA, 714 F.3d 841 (5th Cir. 2013). Indeed, EPA even relied on Luminant in the Portland cement rule to support the affirmative defense in that rule. In Luminant, the court upheld EPA’s approval of Texas’s SIP as it related to unplanned SSM events. The defense in the Texas SIP only applied to unplanned SSM events that did not include ‘excessive emissions’ and only if nine designated criteria were met. Even then, injunctive relief was available. EPA approved the SIP because the defense was narrowly tailored and did not conflict with a court’s enforcement authority in civil suits. The court found this interpretation to be reasonable.
EPA envisions that the states will revise their operating programs to remove provisions similar to §70.6(g) and §71.6(g). EPA does not feel it is “appropriate for states to retain affirmative defense provisions within their approved part 70 programs.” 81 Fed. Reg. at p. 38652. The provisions should be removed and the program revisions submitted to EPA “within 12 months after the final rule’s effective date.” Id. Permits containing similar provisions should be revised “in the ordinary course of business as the state issues new permits or reviews and revises existing permits.” Id.
The comment period on this proposed rule ends on August 15, 2016. EPA stated that it will hold a public hearing on the proposal “if anyone contacts the EPA requesting a public hearing on or before June 29, 2016.” 81 Fed. Reg. at p. 38645.
Posted on June 15, 2016 August 9, 2016 by BSWPosted in EPA, NESHAPSTagged Luminant Generation Co. LLC v. EPA, NRDC v. EPA, State Implementation Plans.


§ 7-2 Membership; terms; vacancies.
§ 7-3 Organization; Chairman; meetings.
§ 7-8 Municipal Housing Liaison; compensation; powers and duties.
Apartment rental businesses — See Ch. 145.
Heating of buildings — See Ch. 269.
Housing standards — See Ch. 273.
Illegal occupancies and conversions — See Ch. 283.
Protected tenancies — See Ch. 417.
Affordable housing regulations — See Ch. 461, § 461-24.2.
Editor's Note: This ordinance also superseded former Ch. 7, Affordable Housing Agency, adopted 10-3-1989 by resolution. See § 7-5.
Pursuant to the provisions of the New Jersey Administrative Code, N.J.A.C. 5:92-12.1 et seq., and all other applicable rules and regulations of the Council on Affordable Housing and pursuant to the provisions of § 461-24.2 of Chapter 461 of the Code of the City of Clifton, entitled "Zoning," there is hereby created in and for the City of Clifton a Clifton Affordable Housing Agency, the members of which shall serve without compensation in matters touching on or concerning the requirements of all applicable rules and regulations of the Council on Affordable Housing and of § 461-24.2 of Chapter 461 of the Code of the City of Clifton, entitled "Zoning."
The Clifton Affordable Housing Agency shall consist of three members to be appointed by the Clifton Municipal Council, one of whom shall be a member of the Municipal Council, one of whom shall be a professional experienced in planning and one of whom shall be a member of the Clifton Housing Department.
Clifton Municipal Council: one year.
Clifton Housing Department: three years.
In the event of a vacancy, the same shall be filled by the Municipal Council for the unexpired balance of the term.
The Clifton Affordable Housing Agency shall organize as soon as reasonably possible following appointment of its members, and annually thereafter, by the election of a Chairman from among its members.
The Agency may hold regular and special meetings and, subject to the provisions of this article, may make and amend rules and regulations concerning the conduct thereof.
Be responsible for assuring that low- and moderate-income housing units remain affordable to low- and moderate-income households, as required by § 461-24.2 of Chapter 461 of the Code of the City of Clifton and as required by the regulations of the Council on Affordable Housing as set forth in N.J.A.C. 5:92-12.1 et seq., and as required by any other statutes, rules or regulations made applicable to the function and operation of said Agency.
Make recommendations to the Municipal Council concerning any subject matter within its jurisdiction.
Make a written report, at least annually, to the Municipal Council concerning the Agency's activities.
Not incur any debt or obligation or make any expenditures of funds except as specifically authorized by the Municipal Council and as provided in the City budget.
All ordinances or parts of ordinances inconsistent herewith are hereby repealed as to such inconsistency only. This article shall supersede a resolution creating the Clifton Affordable Housing Agency, adopted October 3, 1989; provided, however, that all acts or actions taken by said Agency pursuant to said resolution are hereby authorized, ratified and confirmed.
The purpose of this article is to create the administrative mechanisms needed for the execution of the City of Clifton's responsibility to assist in the provision of affordable housing pursuant to the Fair Housing Act of 1985.
The entity responsible for administering the affordability controls of some or all units in the affordable housing program for the City of Clifton to ensure that the restricted units under administration are affirmatively marketed and sold or rented, as applicable, only to low- and moderate-income households.
The employee charged by the governing body with the responsibility for oversight and administration of the affordable housing program for the City of Clifton.
There is hereby established the position of Municipal Housing Liaison for the City of Clifton.
Subject to the approval of the Council on Affordable Housing (COAH), the Municipal Housing Liaison shall be appointed by the Municipal Council and may be a full- or part-time municipal employee.
Serving as the City of Clifton's primary point of contact for all inquiries from the state, affordable housing providers, administrative agents and interested households.
Monitoring the status of all restricted units in the City of Clifton's Fair Share Plan.
Compiling, verifying and submitting annual reports as required by COAH.
Coordinating meetings with affordable housing providers and administrative agents, as applicable.
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH.
If applicable, serving as the administrative agent for some or all of the restricted units in the City of Clifton as described in Subsection F below.
Subject to approval by COAH, the City of Clifton may contract with or authorize a consultant, authority, government or any agency charged by the governing body, which entity shall have the responsibility of administering the affordable housing program of the City of Clifton, except for those responsibilities which may not be contracted out pursuant to Subsection C above. If the City of Clifton contracts with another entity to administer all or any part of the affordable housing program, including the affordability controls and Affirmative Marketing Plan, the Municipal Housing Liaison shall supervise the contracting administrative agent.
Compensation shall be fixed by the governing body at the time of the appointment of the Municipal Housing Liaison.
Providing counseling or contract to provide counseling services to low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, rental lease requirements and landlord/tenant law.
Employing the random selection process as provided in the Affirmative Marketing Plan of the City of Clifton when referring households for certification to affordable units.
Ensuring the issuance of continuing certificates of occupany or certifications pursuant to N.J.A.C. 5:80-26.10.


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Minh, N.N., Meharg, A., Carey, M., Dultz, S., Marone, F., Cichy, S.B., Tran, C.T., Le, G.H., Nguyen, V.T., Mai, N.T. and Nguyen, T.T.H., 2018, Fern Dicranopteris linearis derived phytolith: micromorphology, solubility, and content in soils in relation to soil properties, European Journal of Soil Sciences, ID: EJSS-103-18.R1.
Friðleifsson, G.O., Elders, W., Zierenberg, R., Fowler, A., Weisenberger, T., Mesfin, K.,Sigurðsson, O., Albertsson, A., Níelsson, S., Einarsson, G., Óskarsson, F., Guðnason, E., Tulinius, H., Hokstad, K., Jóhannesson, Þ., Gibert, B., Nono, F., Loggia, D., Parat, F., Cichy, S.B., Escobedo, D., and Mainprice, D., 2018, The Iceland Deep Drilling Project at Reykjanes: Drilling into the root zone of an analog of a black smoker, Journal of Volcanology and Geothermal Research, VOLGEO_2017_411_R1.
Nono, F., Gibert, B., Parat, F., Loggia, D., Cichy, S.B. and Violay, M., Electrical conductivity of Icelandic deep geothermal reservoirs at supercritical conditions: insights from laboratory experiments, Journal of Volcanology and Geothermal Research, special issue: Reykjanes, doi: 10.1016/j.volgeores.2018.04.021.
Minh, N.N., Meharg, A., Carey, M., Dultz, S., Marone, F., Cichy, S.B., Tran, C.T., Le, G.H., Nguyen, V.T. and Mai, N.T., 2018, Phytolith-associated potassium in fern: Characterization, dissolution properties and implications for slash-and-burn agriculture, Soil Use and Management, doi: 10.1111/sum.12409.
Fiege, A. and Cichy, S.B., 2015, Experimental constraints on bubble formation and growth during magma ascent: A Review, American Mineralogist 100 (11-12), p. 2426-2442, Special Section “Rates and Depths of Magma Ascent in Earth”, Centennial Volume (2015-2016).
Gurioli, L., Andronico, D., Bachelery, P., Balcone-Boissard, H., Battaglia, J., Boudon, G., Burgisser, A., Cichy, S.B., Burton, M., Cashman, K., Cioni, R., Di Muro, A., Dominguez, L., D'Oriano, C., Druitt, T., Harris, A., Hort, M., Kelfoun, K., Komorosky, J.-C., Kueppers, U., Le Pennec, J.-l., Menand, T., Paris, R., Pioli, L., Pistolesi, M., Polacci, M., Pompilio, M., Ripepe, M., Roche, O., Rose-Koga, E., Rust, A., Schiavi, F., Sharff, L., Sulpizio, R., Taddeucci, J. and Thordarson, T., 2015, MeMoVolc consensual document: a review of cross-disciplinary approaches to characterizing small explosive magmatic eruptions, Bulletin of Volcanology 77 (6), 1-33.
Fiege, A., Holtz, F. and Cichy, S.B., 2014, Bubble formation during decompression of andesitic melts: American Mineralogist, v. 99, 1052-1062.
Friese, K.I., Cichy, S.B., Wolter, F.E. and Botcharnikov, R.E, 2013, Analysis of tomographical mineralogical data using YaDiV – Overview and practical case study: Computers & Geosciences, v. 56, p. 92-103.
Backnaes, L., Deubener, J., Behrens, H., Stelling, J., Cichy, S.B. & Bartels, A., 2011, Diffusion of the 35S isotope in soda-lime-silica and sodium trisilicate glass melts: Journal of Non-Crystalline Solids, v. 357 (15), p. 2941-2948.
Nowak, M., Cichy, S.B., Botcharnikov, R.E., Walker, N. and Hurkuck, W., 2011, A new type of high pressure low-flow metering valve for experiments at continuous decompression: First experimental results for magmatic systems: American Mineralogist, v. 96, p. 1373-1380.
Cichy, S.B., Botcharnikov, R.E., Holtz, F. and Behrens, H., 2011, Vesiculation and Microlite Crystallization Induced by Decompression: A Case Study of the 1991-95 Mt Unzen Eruption (Japan): Journal of Petrology, v. 52 (7-8), p. 1469-1492.
France, L., Koepke, J., Ildefonse, B., Cichy, S.B. and Deschamps, F., 2010, Hydrous partial melting in the sheeted dike complex at fast spreading ridges: experimental and natural observations: Contributions to Mineralogy and Petrology, v. 160, p. 683-704.

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Contract disputes can often be complicated when multiple parties and corporations are involved. Courts are forced to sort out multiple claims and counterclaims and figure out who is accountable for what. Even after a decision is made, there can be multiple appeals and judgments that a higher court is asked to review. In complicated cases, it’s common for mistakes to happen, as a case that landed in the Fifth Circuit will demonstrate, and the appeal process is available for parties to have their case double checked.
In this case, a contract dispute arose between Comar Marine, LLC (Comar) and four LLCs that owned vessels (Owners) that Comar managed on their behalf after the Owners decided to stop this management arrangement before the specified end date in the contracts. In response, Comar sued the Owners for breach of contract and secured the vessels under arrest, which means they took possession of the vessels, on the grounds that Comar was allowed termination fees under the agreement which provided them with a lien on the vessels. The Owners countersued, alleging that Comar wrongfully arrested the vessels.
JPMorgan Chase Bank (JPMorgan) and Allegiance Bank Texas (Allegiance) held the mortgages for the vessels and entered this dispute to defend their ownership interests. The District Court granted summary judgment in favor of the banks. According to the Federal Rules of Civil Procedure 56(a) the court should grant summary judgment if the person asking for the judgment shows that there is no genuine question over the material facts and they are entitled to a judgment under the law. The District Court held that the four LLCs materially breached the agreements by terminating early, that the termination fee in the agreement was unenforceable, that Comar did not have a valid lien on the vessels, and that Comar wrongfully arrested the vessels. Both Comar and the Owners appealed the judgment from the court and Comar appealed the grant of the summary judgment.
The Court of Appeal reviewed the District Court’s grant of summary judgment for the banks as de novo, which means that Court of Appeal applied the same legal standards the the district court used in the first case. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
The District Court first held that the breach of the agreement did not create a lien and that the bank’s claim on the vessels had priority and secondly, even if the lien was created, Comar could not claim it. Comar disagrees with both decisions. To determine whether a maritime lien is valid the court should look at statutory law or liens that have been recognized historically by the courts. See Racal Survey, 231 F.3d at 192 (citing Lake Charles Stevedores, Inc. v. Professor Vladimir Popov MV, 199 F.3d 220, 224 (5th Cir. 1999)). Comar claims that the management agreement with the Owners is the functional equivalent to the agreements that have been historically recognized as giving rise to maritime liens. The court disagrees with this as Comar operated the boats for the Owner’s benefit and cannot claim the agreement created a maritime lien simply because the agreement states that it does. The court upholds the grant for summary judgment in the first instance but does not agree that if it was created Comar could not claim it, but as there was no lien created this decision has no bearing.
The court then looks to the appeals from Comar and the Owners. Comar disputes the holdings that the termination fees were unenforceable and that Comar wrongfully arrested that vessels. The Owners dispute the district court’s decision to not award damages from the wrongful arrest, the conclusion that the Owners personally guaranteed the management agreement, and the calculation of Comar’s damages. Both parties believe that the district court made a mistake in not awarding prejudgment interest.
The first issue the court looks at on appeal is the termination fee or liquidated damages. A two-part test is used to determine if a sum is unreasonably large. The first part is to look at the anticipated or actual loss caused by the breach of contract. See Farmers Exp. Co. v. M/V Georgis Prois, 799 F.2d 159, 162 (5th Cir. 1986). The court in this case decided that the trial court was correct in their decision that the termination fee for the breach of contract by the Owners was not an appropriate sum because it does not align with the approximate loss that they suffered because of the loss of the management profit.
The second issue the court looks at is the issue of the damages awarded to Comar. Because of the decision on the termination fee the court instead awarded Comar a sum per month for each vessel from the date of termination to the end of the original agreement. The court states that the damages award is a finding of fact on the part of the district court. See Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006) (per curiam). Even if the court would have chosen a different number, if the award is plausible the court should uphold it. See St. Martin v. Mobil Exploration & Producing U.S. Inc., 224 F.3d 402, 410 (5th Cir. 2000). On appeal the court reviewed the district court’s reasoning behind the damages award and found that is was plausible given the facts of the case.
The third issue looked at by the court is the holding against Comar for the wrongful arrest of the vessels. To have a wrongful arrest there must be no bona fide claim of a lien on the vessel and a showing of bad faith by the offending party. See Arochem Corp., 962 F.2d at 499 (quoting Frontera Fruit Co. v. Dowling, 91 F.2d 293, 297 (5th Cir. 1937)). The court has decided that there was no lien on behalf of Comar and so they look to the finding of bad faith. Comar claims that it acted under the advice of a lawyer and so there was no bad faith. Given conflicting testimony the court found that Comar lacked probable cause to arrest the vessels and did not provide the legal counsel with all of the relevant information. The court upheld the finding of wrongful arrest on the part of Comar.
The fourth issue looked at on appeal is that of the court declining to award lost profits to the Owners stemming from Comar’s wrongful arrest. This denial of damages is again a finding of fact by the district court and should only be set aside if they are erroneous. See Marine Transp. Lines, Inc. v. M/V Tako Invader, 37 F.3d 1138, 1140 (5th Cir. 1994); accord In re M/V Nicole Trahan, 10 F.3d 1190, 1193-94 (5th Cir. 1994). The court can only award lost profits if the loss has actually been or the supposed amount can be proven with reasonable certainty. The district court decided that the Owners had failed to provide them with the evidence to determine the damages with reasonable certainty and this court agrees and uphold the denial of damages.
The fifth issue at appeal is the issue of the personal guarantee from the private individuals behind the four LLCs as the Owners. The parties agree that in this case Louisiana law applies and under Louisiana law a guaranty must be clear and interpreted as intended by the parties but guaranty contracts are still subject to the same rules of interpretation as general contract. See Ferrell v. S. Cent. Bell Tel. Co., 403 So. 2d 698, 700 (La. 1981) (citing Am. Bank & Trust Co. v. Blue Bird Rest. & Lounge, Inc., 279 So. 2d 720 (La. App. 1 Cir. 1973)). The agreement contained a guaranty agreement to which the private individuals both signed their names followed by the title ‘Guarantor.’ Although the corporation name is given, the district court determined that the contract clearly indicated that the private individuals signed in their individual capacity as guarantors. The appeals court agrees and found no error in the district court’s findings.
The final issue the court looks at on appeal is that of the denial of prejudgment interest. Prejudgment interest is a compensation for the use of money that the claimant was entitled to in a maritime case. See Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. Unit A 1980).
If in the case there is some circumstance that would make the judgment inequitable for the losing party then the court can deny by its discretion. The district court cited finding peculiar circumstances that would cause them to deny prejudgment interest but did not state what it was. The appeals court affirmed the denial because they could not find anywhere in the record that would point to a clear error on the part of the district court.
For all of these reasons the United States Court of Appeals for the Fifth Circuit affirmed the decision of the district court and settled the contract dispute and the following judgments and appeals between Comar and the Owners. Multiple party cases are tricky to handle but the decisions of the district court were appropriate and the Fifth Circuit Court of Appeals was up to the challenge.

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We study the over-focusing of spatial light beams due to self-focusing nonlinearity, in both local and nonlocal nonlinear media. Numerical simulation of both cases reveals a peaked profile, with a near-cusp at the center surrounded by exponentially-decaying tails, at a critical self-focusing power. The profile is a local effect, occurring as diffraction counteracts nonlinearity. Nonlocality, however, is needed to prevent modulation instability of the initial beam and to prevent catastrophic collapse in 2D. The peaked profile remains for weak nonlocality but disappears for wide nonlocal responses. Beyond the critical power for a peaked solution, or for longer propagation distances, competition between nonlinearity and diffraction causes oscillatory collapse-bounce behavior. The numerical results are confirmed by observing these dynamics in a self-focusing glass with a nonlocal, thermal response.
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Fig. 1. Simulation results showing a Gaussian beam propagating in (a)local; (b)weakly nonlocal (w=a/5); and (c) highly nonlocal (w=5a) media. In the local case, the beam narrows and generates a train of solitons; in the highly nonlocal case, the NLS is reduced to a linear harmonic oscillator equation and the beam width and intensity bounce as a function of distance; the weakly nonlocal case is in between the two extremes.
Fig. 2. Numerical results of beam profiles and wavefront forces (a-b) before, (c-d) near and (e-f) after peakon profile in the case of local nonlinearity. Top row: intensity (normalized to peak intensity in each case). Bottom row: derivative of total pressure (quantum pressure and nonlinear index change in Eq. (4)); inset: derivative of nonlinear index change term only. (a) Before the peakon, the Gaussian beam is wider in the center and lower in the tails and (b) focusing nonlinear index change dominates the force and compresses the beam inwards. (c) As the beam propagates, the beam matches the peakon profile exactly while (d) the force of the quantum pressure term becomes comparable to that of the nonlinear index change in the center. (e) Past the peakon, the profile continues to steepen and becomes narrower in the center and higher in the tails while (f) the derivative of the quantum pressure term overtakes the focusing index change near the center, creating a defocusing force near the origin while the rest of the beam continues to focus inwards.
Fig. 3. Simulation results showing peakon profile with increasing nonlocality (a,c,e) in the presence of noise(b,d,f). In the local case (a), the peakon profile is obtained, but is unstable to noise(b); Using a weak nonlocality(c) of w=a/3, the profile is also obtained, albeit with a slightly rounded peak, and is stable to noise(d); with high nonlocality (e-f) of w=2a, the peakon profile is totally lost. Figures are normalized to the maximum intensity in each case.
Fig. 4. Simulation results using different nonlocal kernels — (a) Gaussian, (b) Lorentzian, (c) exp(-|x|), and (d) solving the 2D heat diffusion equation (6) explicitly. Peakon-like profiles are obtained in each case at the same propagation distance, albeit with different input powers required.
Fig. 5. Results of 2+1D simulation of NLS with nonlocal nonlinearity (w=a/5) showing collapse-bounce cycles of an initial Gaussian beam. The beam starts off as a Gaussian (a). As it self-focuses, it narrows (b) and approaches the peakon profile (c), after which it continues to focus into a pedestal-shape profile (d). It then defocuses into a ring-shaped profile (e) before focusing again (f) in an oscillatory manner. The focusing-defocusing bounce cycles continue quasi-periodically throughout the beam propagation.
Fig. 6. Experimental results of self-focusing of a 2D Gaussian beam in a nonlocal nonlinear medium. Shown are experimental output pictures at (a) 200mW, (b) 400mW, (c) 510mW, and (d) 600mW. (e) Cross-sectional profiles of (a-d), individually normalized to peak power.
Fig. 7. Transverse profile of experimentally-observed peakon in Fig. 6(c) showing best fits to hyperbolic secant, Townes and a peakon exp(-|x|) profiles.
Fig. 8. Experimental output pictures for an initial Gaussian beam with power (a) 600mW, (b) 800mW, (c) 1300mW, (d) 1500mW, (e) 1700mW, and (f) 1900mW. The beam focuses, defocuses, and focuses in an oscillatory, quasi-periodic fashion.

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Regulation by Information is one of three types of Off-Register Regulation identified by the CRE. In Regulation by Information, the CRE addresses agencies' use of the internet as a powerful new regulatory tool, prompting a call for an amendment to Paperwork Reduction Act and the implementation of a Federal Data Quality Program. CRE examines important litigation that demonstrates need for Congressional revision to public oversight mechanisms.
An article in the Harvard Environmental Law Review, by William F. Pedersen, advocates "social cost disclosure programs" as a means of regulating by information disclosure. The article defines this type of program as one that requires regulated entities to disclose information (e.g., pollutant emissions) that will urge non-federal governments to consider regulation to reduce the social cost being addressed, and will pressure the creators of that cost to consider voluntary action to reduce it. This, in other words, is regulation by information. The article, entitled "Regulation and Information Disclosure: Parallel Universes and Beyond", focuses on EPA's TRI program as an inefficient example of such a program, and provides suggestions as to how this program could be improved. The overall recommendation of the article is best summarized in its last paragraph: "Publicizing the sources of a socially undesirable activity can reduce its extent faster and less intrusively then reliance on a regulatory approach." This statement is accurate; and it emphasizes the importance of the Data Quality Act, which imposes new standards on the quality of information disseminated by federal agencies.
Federal regulation of SUVs and other light trucks affects virtually all Americans. However, until now, it was difficult or impossible for most citizens to effectively participate in the government's decision-making process. FuelEconomyIn.US was launched by the CRE to help grassroots stakeholders ensure that proposed new federal regulations don't strip Americans of their ability to choose, or afford, the vehicles that best meet their needs. To this end, FuelEconomyIn.US will be providing stakeholders with the information they need to make a difference in regulatory process. FuelEconomyIn.US will also be directly contacting diverse stakeholders to support their participation in the regulatory process. Please read FuelEconomyIn.US to learn more about this important project.
Under the Data Quality Act, CRE and several agricultural groups filed a Request for Correction of certain statements in EPA's FIFRA/FQPA environmental risk assessment for atrazine. As the result of widespread interest in the Request for Correction on the part of stakeholders, CRE placed on its website a new subsite entitled Atrazine.US. The Site will serve as a central repository of views of interested stakeholders. CRE welcomes the views of the public and all stakeholders on this important issue. The Atrazine.US site will be updated continually for use by the public, stakeholders, Congress and the media.
CRE is concerned that EPA disseminates public documents (such as Federal Register notices and Internet Website pages) that lead readers to believe that we know as scientific fact that: (1) global climate change is occurring because of anthropogenic emissions of greenhouse gases; and (2) the effects will include numerous specific adverse effects on human health and the environment. CRE petitioned EPA to correct a recent Federal Register notice, by publishing a notice alerting readers about the considerable scientific uncertainties surrounding the issue of global climate change. CRE also petitioned EPA to assure that all future EPA public documents that describe potential global climate change include a statement about scientific uncertainties.
Read CRE's petition to EPA.
Read EPA's Federal Register notice.
EPA is using an ICF Model to predict the economic effects of multi-pollutant air emission legislation being considered by Congress and the Administration. These modeling results could have a major impact on both the legislation and the economy. Their accuracy and reproducibility are critically important. Yet EPA has not allowed public review of and comment on the Model. Given the importance of this issue, CRE has sent EPA's Chief Information Officer a letter urging her to disclose the Model to the public. CRE has also filed a Freedom of Information Act request for the Model and related documents.
EPA, the Labor Department's Office of Federal Contract Compliance Programs, the Equal Employment Opportunity Commission, and other Federal agencies have issued, or tried to issue, thousands of quasi-enforcement letters to regulated entities (and to non-regulated entities such as suppliers of equipment to EPA-regulated entities), demanding that those entities reply to numerous questions that concern compliance with legal requirements.
CRE is concerned that agencies may be improperly invoking the Paperwork Reduction Act's statutory "enforcement exemption" to avoid prior OMB review and approval for those agency information demands. CRE believes OMB needs to clarify what evidence of a violation an agency must have before the agency properly may invoke the PRA "enforcement exemption".
1.	CRE petitioned OMB to review approximately 400 Clean Air Act (CAA) �114 information demand letters, which EPA Region V sent to industrial facilities, asking questions concerning the facilities' compliance with the "Risk Management Plan" requirements of � 112(r) of the CAA. CRE asked OMB to determine whether those � 114 letters are properly within the "enforcement exemption" in the PRA and whether EPA must seek OMB's prior review and clearance. The CRE petition includes a legal memorandum by Multinational Legal Services, counsel to the CRE, suggesting a specific evidentiary standard that is derived from OMB's Guidance implementing the PRA.
2.	CRE petitioned OMB to conduct a rulemaking pursuant to the Administrative Procedure Act and the PRA, to define the term "case file" as used in OMB's regulation implementing the PRA "enforcement exemption", to establish a specific evidentiary standard for when an agency may assert the PRA exemption and avoid prior OMB review and clearance.
On December 5, 2000, the U.S. Chamber of Commerce wrote to OMB in support of both CRE petitions. The Chamber is the Nation's and the world's largest business federation and represents over 3 million businesses.
� Click here to view the U.S. Chamber of Commerce's letter to OMB.
� Click here to view the CRE petitions and the MLS legal memorandum.
In July 2000, CRE wrote to EPA Region V and requested, pursuant to the Freedom of Information Act, the names, addresses, and related contact information for approximately 400 industrial facilities to which EPA sent Clean Air Act � 114 letters demanding the facilities submit detailed information relating to the facilities' compliance with the Risk Management Plan provisions of the Clean Air Act (CAA � 112(r)). EPA Region V denied the CRE's FOIA request. On September 28, CRE filed an appeal with EPA Headquarters. CRE believes the requested information is public information under FOIA.
Accessibility of non-public personal and corporate information is an area of growing federal regulatory activity. The proposed regulations governing allowable use of personal financial information by banks and affiliated institutions is only one example of the federal role in determining both the amount of privacy enjoyed by US citizens and businesses as well as the costs incurred as the result of privacy protection.
A powerful form of regulation that has emerged during the last 15-20 years involves the government's practice of collecting and making public various types of information on private business activities. This "Regulation by Information" often puts the private entities in an unfavorable light in pursuit of a particular government policy, with the express intent that resulting public and political pressures will force desired changes in private sector behavior.
The Regulation by Information approach has been applauded in some circles as a means of obtaining policy objectives without the need for "costly" and "time consuming" public rulemaking. Supporters of the practice often cite as a successful example of this "sunshine" regulatory practice the reported reductions in toxic emissions levels following introduction of the Toxics Release Inventory ("TRI") in 1988. See 42 U.S.C. � 11023.
Regulation by Information has taken on an entirely new dimension, however, with the emergence of the Internet. Now corporate reporting data are instantly made available worldwide once posted on any of dozens of huge government websites, postings which can happen only days after the information is conveyed to state or federal authorities. Often the company has absolutely no control over how that information is presented to the public or even whether the data are being accurately reproduced. In addition, government agencies are increasingly posting on their websites the results of scientific studies performed by various non-governmental bodies, many of which receive little independent scrutiny before being posted.
The pace with which this new information is being submitted to and disseminated by federal agencies is outstripping existing administrative mechanisms that Congress has created to allow the public and interested stakeholders to comment on federal data collection and use. Under the Paperwork Reduction Act, for example, the public is granted two opportunities (60 days and 30 days) to review and comment on an agency's proposed "collection of information." See 44 U.S.C. �� 3506(c)(2), 3507(b). As discussed below, however, at least one court has ruled that these comment provisions do not apply to certain key aspects of federal agency data dissemination.
One classic example of Regulation by Information was challenged in federal court in 1998. In the case of Tozzi v. EPA, (D.D.C. No. 98 CV-00169), CRE Advisory Board Member Jim Tozzi brought suit to prevent EPA's publication of certain data to the public, including publication on the Internet. EPA had assembled the data as part of a new "pilot data integration and dissemination" program called the Sector Facility Indexing Project, or "SFIP". EPA had compiled the proposed SFIP data set from previously collected TRI filings, as well as from other publicly available data that EPA had gathered through OMB-approved "collections of information."
Mr. Tozzi and the other plaintiffs claimed that one aspect of SFIP in particular should not be published. Using a much contested logarithmic calculation -- over which EPA's own Science Advisory Board had expressed grave concerns -- EPA had proposed to publish a series of "toxicity weighting factors" as a means by which data users ostensibly could compare the relative toxicity of different reported toxic releases.
Following briefing by the parties on plaintiffs' motion for a preliminary injunction, and just three days before the case was to be argued, EPA dropped its plan to include the controversial toxicity weighting factors in the SFIP. The Tozzi plaintiffs were therefore successful in this one key respect.
As the principal basis for his legal challenge, Tozzi alleged that EPA had failed to obtain necessary OMB clearance to use the TRI data for SFIP, as mandated under the Paperwork Reduction Act, 44 U.S.C. � 3501, et seq. The Paperwork Reduction Act requires that, in order to obtain OMB approval, an agency wishing to perform a "collection of information" must submit to OMB a "clearance package" that contains, among other things, a description of the "practical utility" of the data the agency seeks. The package that EPA submitted to OMB for the renewed clearance of the TRI data collection, however, made no mention of the agency's plan to use the data for the SFIP program.
An agency may not substantially or materially modify a collection of information previously approved by OMB without OMB approval of the modification. A substantive or material modification is any revision to the collection of information that . . . significantly changes the uses of the information or otherwise meaningfully alters any aspect of the collection of information from that previously approved by OMB.
OMB Implementing Guidance (Preliminary Draft, Feb. 3, 1997) at 21-22 (emphasis added).
[W]hile OMB's analysis includes and assessment of how the information is expected to be used, the object of OMB's review and approval under the PRA remains the "collection of information" itself. In other words, it is the agency's collection of information, not the agency's subsequent use of the information, that requires OMB's approval. . . . Accordingly, contrary to Plaintiff's argument, the PRA does not require an agency to obtain OMB approval in order for the agency to use information that it collects in additional ("new") ways.
Tozzi v. EPA, Mem. Op. at 7-8 (quoting Decl. of Robert G. Damus (Feb. 12, 1998) at 8).
Judge Thomas Hogan denied plaintiffs' motion for a preliminary injunction, holding that -- in light of EPA's withdrawal of the proposed toxicity weighting factors -- plaintiffs were unlikely to succeed on the merits of their statutory claim. The court noted that, unlike the proposed toxicity weighting factors, the balance of SFIP did not "change the self-reported numbers drawn from the independent databases." Tozzi v. EPA, Mem. Op. at 4 & n. 1.
The court also quoted at length from the declaration of OMB General Counsel in which OMB's chief attorney disputed the meaning of the above draft guidance. Citing Chevron, USA v. Natural Resources Defense Council, 467 U.S. 837, 844, reh'g denied, 468 U.S. 1227 (1984), the court deferred to the General Counsel's interpretation that OMB was not required to approve all modifications to the use of previously collected data. Tozzi v. EPA, Mem. Op. at 7-8.
if an agency is able to change the data's use after it has been already been approved it would be able to subvert the PRA by seeking OMB approvals of proposed data collections for noncontroversial purposes and then use the data, once collected, for other, more questionable purposes never disclosed to OMB or the affected public.
Tozzi v. EPA, Mem. Op. at 7 n. 3.
CLICK HERE FOR PLAINTIFFS' BRIEFING ON MOTION FOR PRELIMINARY INJUNCTION.
One of the government's principal arguments in the Tozzi v. EPA case had been that private parties do not have a "private right of action" to bring suit for an agency's failure to comply with the Paperwork Reduction Act. In his ruling on the motion for preliminary injunction, Judge Hogan did not reach the private right of action question, however, or the other jurisdictional defenses the government had raised (sovereign immunity and standing). Tozzi v. EPA, Mem. Op. at 5 n. 2.
CLICK HERE TO LINK TO JUDGE HOGAN'S OPINION.
That agencies are required to seek and obtain renewed OMB approval -- after public notice and comment -- before engaging in substantially modified uses of data previously gathered for a different purpose.
One solution to the above two shortfalls of the Tozzi v. EPA litigation is therefore to amend the Paperwork Reduction Act to provide for (1) a private right of action, and (2) an express requirement that agencies seek renewed OMB approval of previously authorized "collections of information" before the agency embarks on new and different uses of the data . The attached proposed statutory revision would do exactly that.
CLICK HERE TO REVIEW PROPOSED AMENDMENT.
develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the Paperwork Reduction Act of 1995.
The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules.
H. Rep. 105-592 at 49-50.
Significantly, Congress also indicated that OMB and the separate agencies should establish petition processes whereby individuals affected by agency dissemination that arguably did not satisfy the above criteria could seek and obtain administrative relief.
CRE has developed a detailed strategy for implementing these congressional objectives. That strategy and related documents are set out in the "Data Quality" section of this website.

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