Friday, October 17, 2014

Social Media: Changing the Landscape of Rulemaking

by Lynn White

Just as we have seen in politics and other forms of policymaking, rulemakers and regulated communities are taking to social media to engage stakeholders and influence public policy.  This is a tricky strategy since rulemaking does not lend itself to boiling down policies into 140 characters or less.  Most proposed and final rules are well over 200 pages and written in (oftentimes unnecessarily) complex language by administrative lawyers. 

An excellent recent example of this phenomenon comes from the U.S. Environmental Protection Agency’s (EPA) proposal to revise the scope of waters protected under the Clean Water Act (CWA).  According to the EPA, the proposed rule “would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.”  The proposal was over 110,000 words or 300-plus pages of normal text. 

The American Farm Bureau Federation (AFBF) immediately pushed back on the rule because of the potentially devastating impact on farmers.  Ellen Steen, the AFBF’s General Counsel, stated that the proposal would make many farm activities subject to CWA permit requirements and there is no guarantee that EPA will issue the permits necessary to keep farms operational.  The process of getting a permit is also costly and requires lawyers.  The Farm Bureau quickly established a coordinated social media campaign called “Ditch the Rule” that gives stakeholders quick access to digestible information on the 100 page rule and directions on how to file comments. 

The AFBF’s efforts yielded great results.  There have been over 210,000 comments filed on the rule.  The EPA was forced to extend the comment period twice because of the strong public opposition.  The extended comment period allowed many farmers who were in the rush of planting season when the proposal was released to comment on the rule. 

The EPA engaged in its own social media outreach.  The proposed rule has a cutting edge webpage entitled “Ditch the Myths,” (a not-too subtle parody of AFBF’s site) which you generally don’t see on dry government websites.  William Rodger, the Director of Policy Communications at the AFBF, stated “we’ve never seen an agency produce its own mini site to counter opposing viewpoints.”

In September, the EPA coordinated a “Thunderclap,” or a single message to be mass-shared at a scheduled time, on the CWA rule entitled “I Choose Clean Water.”  The messaging on the rule simply stated that the agency, along with the U.S. Army Corps of Engineers, “has proposed to strengthen protection for the clean water that is vital to all Americans.”  The message purportedly reached over 1,800,000 people.  Ditch the Rule launched a corresponding social media campaign encouraging supports to give its own message, “I support clean water, but @EPA’s water rule is a problem for everyone. #ReadtheFinePrint here: #DitchtheRule.”

We expect to see more rulemaking battles like this as the Administration continues to use some of the social media tools and strategies that made its political campaigns so successful in agency rulemaking.  With hundreds of thousands of comments for the EPA to process, it will be interesting to see how the agency weighs public feedback. 

Friday, October 3, 2014

FTC Seeks Comment on Proposed Children's Online Privacy Protection Rule

by Elisabeth Ulmer

The Federal Trade Commission seeks comment on the parental consent method that AgeCheq Inc. (“AgeCheq”) has suggested in accordance with the FTC’s Children's Online Privacy Protection Rule.

Congress enacted the Children's Online Privacy Protection Act (“COPPA”), which became effective in 2000.  It applies to any person or entity that collects personal information (defined as “individually identifiable information”) from children under the age of 13, online.  COPPA covers “what a Web site operator must include in a privacy policy, when and how to seek verifiable consent from a parent and what responsibilities an operator has to protect children's privacy and safety online.”

Pursuant to COPPA, the FTC issued the Children's Online Privacy Protection Rule (“Rule”) in 1999 and amended it in 2012.  Under this Rule, certain website operators must provide privacy policies and obtain verifiable parental consent before they collect, use, or disclose personal information from children under 13.  Interested parties may offer for the FTC’s review any parental consent method not listed in the Rule, and the FTC now seeks comment on the parental consent method that AgeCheq has proposed.

AgeCheq’s single identity verification process calls for parents to register themselves and their children's device(s) with a third party common consent administrator (“CCA”).  The CCA would then verify the parental identity and link it to the children’s mobile devices.  Codes within applications would automatically check the CCA‘s database for the required parental consent.  If the parent has not yet consented to an application’s access, h/she “must use the CCA service to review the developer's app-specific privacy disclosures and affirmatively grant consent.”  According to AgeCheq, this method “achieves the Commission's vision of a reliable, manageable, parent-curated online experience for children who use smartphones, tablets, or PCs to interact with mobile applications or other online services.”

Commenters may address any topic relating to AgeCheq’s parental consent method, but the FTC specifically encourages comments that address any of the following three questions:

  1. Is this method, both with respect to the process for obtaining consent for an initial operator and any subsequent operators, already covered by existing methods enumerated in § 312.5(b)(1) of the Rule? 
  2. If this is a new method, provide comments on whether the proposed parental consent method, both with respect to an initial operator and any subsequent operators, meets the requirements for parental consent laid out in 16 CFR 312.5(b)(1). Specifically, the Commission is looking for comments on whether the proposed parental consent method is reasonably calculated, in light of available technology, to ensure that the person providing consent is the child's parent. 
  3. Does this proposed method pose a risk to consumers' personal information? If so, is that risk outweighed by the benefit to consumers and businesses of using this method?
If a comment addresses any of these questions, it should cite the number of the question. 

Comments are due on September 30, 2014.  Interested parties are invited to submit comments by any of the following methods:

  • Online Filing: 
  • Mail: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex K), Washington, DC 20580 
  • Hand Delivery: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex K), Washington, DC 20024

All comments should include: “AgeCheq Application for Parental Consent Method, Project No. P-145410.”  If choosing the hard copy option, add this identifier to the envelope as well.

Friday, September 26, 2014

Recapping the Homeland Security Institute - Part 2

by Nina Hart

On August 21–22, 2014, the American Bar Association hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The previous post focused on several major themes of the Institute.  This week’s post will focus on issues in immigration law, which was the topic of several panels.  These reflections come from the following presentations: America’s Immigration Agenda and Executive Power in Immigration Law.  A copy of the full agenda is here.

Part Two

One topic of interest at the Homeland Security Institute was improving immigration law and practice to enhance national security.  Panelists discussed the politics and policy behind previous and pending immigration reforms and the authority vested with both the legislative and executive branches that may enable such reforms.

Congressional Action

Congress has been active—at least in terms of debate—in the area of immigration law for decades, if not centuries.  Much of the modern immigration system, however, is based on the Immigration & Naturalization Act of 1952 (INA).  The INA has been amended several times as Congress has revisited certain policy questions in an attempt to modernize and improve the system.  For instance, in 1986, Congress shifted its attention to illegal aliens, and passed the Immigration Reform & Control Act (IRCA), which focused on paths to legalization and, for the first time, imposed sanctions on employers who knowingly hired illegal aliens.  In 1990, Congress returned its attention to immigrants who arrived legally, and passed amendments to the INA to address visa petition backlogs and how to better adjudicate family reunification cases. 

Since the 1990s, the two political parties have continued debating these issues, particularly with respect to increased border security measures and how to address the issue of illegal aliens.  Despite the high level and volume of debate, no major legislation has been passed since 1996.  Much of this inaction has less to do with policy divergences, but results from political incentives to take or not take action.  As one panelist pointed out, in 2006, the Senate introduced but did not pass a bill addressing border security and the e-verify system.  At the time, the parties could not reach a consensus on the substantive policies in the bill.  Ten years later, however, the parties have both moved to the center.  They largely agree that the path to legalization should be longer and more resources should be spent on border security.  However, the emotional undertones and political forces at work have prevented congressional action.  In particular, the demographic makeup of individual congressional districts has had a powerful effect on the political incentives of members of Congress with respect to their stances on immigration reform.  For example, there are 24 districts with an Hispanic population of over 25%.  Republicans Poe and Denham represent two of those districts, which, at first, may indicate that they have similar incentives with respect to supporting immigration reform.  However, President Obama won one of those two districts in the last election, which means that these two Republican members of Congress actually have divergent political incentives.  This complicated political backdrop, the panelists concluded, is largely the cause of the ongoing political impasse on immigration reform.

This political impasse is currently playing out with respect to Senate Bill 744 (“SB 744”), which has passed the Senate and is awaiting action in the House.  However, because of the ever-present electoral concerns, which are magnified by the fact that this is an election year, it seems unlikely that any action will be taken before the end of this congressional session.

Executive Action

In view of the active role that Congress has historically played in the immigration arena and the current political situation, one key question arises with respect to the Executive Branch.  How much discretion and “space” do the executive agencies have to shape policy?

At a general level, there is a consensus that the Executive Branch has broad authority to act in the area of immigration law.  However, numerous factors influence agency discretion and these factors may lead to more or less discretion in particular cases.  First, agencies are always limited by what Congress has expressly mandated.  Second, individual actors also influence agency powers in the sense that the people interpreting the statutes may reach conclusions about the mandates that vary over time and possibly with what Congress may have intended.  For example, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Pursuant to this Act, agencies had greater freedom to make rules increasing the grounds for deportation.  The ALJs also interpreted this Act to reduce their ability to grant clemency in deportation cases.  Congress disagreed with this interpretation and subsequently wrote a letter to the agencies to remind them of the many tools, especially prosecutorial discretion, at their disposal to address deportation.  Despite this letter, the agencies continued to believe that their discretion had been reduced and concluded that this was the result of Congress’ action, not the agencies’ inability to properly identify tools giving them discretion.

Third, where agencies believe they possess broad authority, the extent to which they shape policy depends on how they actually deploy the tools at their disposal.  For example, prosecutorial discretion is often the most critical tool in the context of immigration cases.  Rather than deport a particular individual, an agency may grant a temporary reprieve, choose not to bring a particular proceeding or choose not to bring certain charges.  Other statutes have granted similarly broad powers to the Executive to make individual admissions decisions on humanitarian reasons or economic reasons.  For example, under the Deferred Action for Childhood Arrivals Act, the Executive Branch may promise not to deport certain children for specified periods of time.  Additionally, Section 235 of the INA permits the Executive Branch to make asylum determinations and insulates those decisions from judicial review.

In sum, the Executive Branch is empowered to “reform” the immigration system by shaping enforcement priorities and determining how to expend its resources.  As noted, however, executive authority is cabined by legislative mandates.  Thus, if a broader overhaul is to be accomplished, such action must ultimately come from Congress.

Monday, September 22, 2014

2014 Administrative Law Conference - Registration Open

Registration is open for the Section's 2014 Administrative Law Conference at the Omni Shoreham Hotel in Washington, D.C., October 16 - 17, 2014.  Agenda topics include Interpreting the APA - Text and Common Law, Where Regulation and Innovation Converge, and the Developments in Administrative Law, Parts 1 & 2.  Visit our website to register.  Hope to see you there!

Friday, September 19, 2014

USPS Seeks Input on Proposal to Simplify Return Services

by Shannon Allen

The United States Postal Service (“USPS”), issued a Rule document, inviting public comment on a proposed interim rule to simplify return services.  The USPS proposes to reduce “customer confusion” and guarantee dependable administration by adjusting the “total annual volume thresholds” that USPS Return Services products have to meet in order to “qualify for Commercial Plus® pricing.”  Specifically, the proposal establishes a “minimum volume of 50,000” pieces of mail for Return Service “across the board” which will simplify the product and make it less confusing for “customers to do business with the Postal Service.”

At this time, Commercial Plus® pricing” for products under the “USPS Return Services umbrella” require “different annual volume thresholds.”  These products are: Priority Mail® Return Service, First-Class TM Package Return® Service, and Ground Return Service.  Because of the confusion surrounding different products with different volume threshold requirements, the USPS has determined that it is immediately necessary to simplify its returns shipping options.

Current requirements are as follows: 

  • Commercial Plus pricing is available for cumulative Priority Mail Return Service and First-Class Package Return Service volume exceeding a combined total of 25,000 return pieces in the previous calendar year.  
  • Commercial Plus cubic volume must exceed a combined total of 85,000 pieces returned in approved packaging in the previous calendar year, or cumulative returns and outbound volume must exceed a combined total of 90,000 pieces in the previous calendar year to qualify. 
  • Commercial Plus pricing customer commitments may differ depending on the individual signed agreements with USPS.

The USPS has learned that these varied and overlapping requirements are unclear to customers and make it challenging to do business with the Postal Service.  Not only does this proposed interim rule help make it easier for customers to do business with the Postal Service by providing better clarity of criteria, but also it better aligns with “recently adopted changes to the Priority Mail cubic threshold, and to the outbound Priority Mail CPP threshold, of 50,000 pieces.”

This proposed interim rule seeks to provide consistency for customers without signed agreements by creating a “minimum total annual threshold volume requirement of 50,000” for all USPS Return Service products “in order to qualify for Commercial Plus pricing.”  This new approach would not impact customers with the “25,000 piece threshold until their agreements expire.”  At which time, the “50,000 piece threshold” would become applicable unless an extension is requested and approved by the Vice President, Sales.”

This proposed interim rule is effective September 15, 2014.  The USPS invites interested parties to submit comments on or before November 10, 2014 by one of the following methods: 

  • Mail or deliver written comments: To the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW., Room 4446, Washington, DC 20260-5015; You may inspect and photocopy all written comments at the USPS® Headquarters Library, 475 L'Enfant Plaza SW., 11th Floor N, Washington, DC, by appointment only between the hours of 9 a.m. and 4 p.m., Monday through Friday, by calling 202-268-2906 in advance.
  • Email comments: Email must contain the name and address of the commenter and may be sent to:, with a subject line of “Threshold Volume for USPS Return Services.” 
  • Fax:  Faxed comments are not accepted.