The Regulatory Week in Review: August 12, 2011
The Obama Administration, in conjunction with the EPA and National Highway Traffic Safety Administration (NHTSA), announced that tractor-trailer trucks will need to get 20 percent more miles per gallon by the 2018 model year, under the first-ever fuel economy rules for heavy vehicles. The Food and Drug Administration (FDA) approved a daily dose tablet for treatment of HIV-1, the most common strain of HIV, in adults who are new to treatment. Due to the Environmental Protection Agency's (EPA) delay in issuing standards governing ozone pollution, environmental and public health groups asked the D.C. Circuit to set a deadline for the agency to act. The chair of the U.S. Chemical Safety Board (CSB) told Reuters that chemical companies need to make improvements to avoid "errors in the bread-and-butter issues of health and safety." Under the Furloughed FAA Employees Compensation Act of 2011 introduced in the House, about 4,000 employees of the Federal Aviation Administration (FAA) would receive back pay for the two weeks they were furloughed. The Chinese government announced a suspension of approval of new high-speed railways in response to the July 23 deadly rail accident, but allowed construction of previously approved projects to continue. The FDA issued a warning about a fake birth control pill that may be on the market in the United States. A report to the Administrative Conference of the United States by Penn Law Professor Cary Coglianese surveyed federal agencies' use of the Internet in the rulemaking process. The report recommended ways to improve how non-English speakers, vision-impaired users, and citizens with low-bandwidth Internet connections learn about and comment on proposed rules.
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- Unsatisfactory rating voided because employee's "performance review," failed to comply with the employer's own procedures and thus undermined the integrity of the process Joyce v City of New York, 2018 NY Slip Op 03433, Appellate Division, First Department The Appellate Division annulled the determination of respondent New York City Department of Education [DOE] sustaining the "unsatisfactory" rating for the 2010-2011 academic year give to John Joyce, a tenured teacher. The court said that the record demonstrates "deficiencies in the performance review process" that resulted in Mr. Joyce being given an unsatisfactory rating for the 2010-2011 academic year. Citing Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484, and Matter of Richards v Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 AD3d 605, the Appellate Division noted that these deficiencies "were not merely technical, but undermined the integrity and fairness of the process." Mr. Joyce had received a satisfactory rating for the previous academic year and, in contravention of its own procedures, DOE failed to place him on notice that he was in danger of receiving an unsatisfactory rating for the 2010-2011 academic year until after April 28, 2011. Although DOE's procedures required that tenured teachers in danger of receiving an unsatisfactory rating have "formal observations including a pre-observation and post-observation conference by the principal … as part of a prescriptive plan to improve their teaching," Mr. Joyce received only one formal observation which took place one week before the end of the academic year and was not part of a prescriptive plan to improve his performance as a teacher. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2018/2018_03433.htm
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