Friday, January 23, 2015

USDA Proposes Changes To Rules Regarding Livestock Marketing Facilities

by Shannon Allen

The United States Department of Agriculture’s (“USDA’s”) Animal and Plant Health Inspection Service (“APHIS”) issued proposed changes to regulations regarding facilities that receive livestock moved in interstate commerce.  This proposed rule includes several amendments to the conditions under which livestock may move to such facilities without official identification. The goal is to update rules specifically regulating livestock marketing facilities in order to further aid in ensuring animal disease traceability of livestock transported in interstate commerce to such facilities.

9 CFR subchapter B focuses on Cooperative State-Federal programs for the control or eradication of disease of livestock; subchapter C addresses interstate movement of livestock to prevent the dissemination of disease of livestock in the United States (“The Regulations”); and part 71 states that the APHIS can approve a livestock facility to accept livestock transported interstate and facility approval requires the execution of an agreement with APHIS.  The APHIS believes the agreement in § 71.20 is antiquated because it contains provisions that were necessary when diseases of livestock were more prevalent in the United States. Thus, APHIS proposes the following changes to the regulations, including, but not limited to the following (by topic):

Approved Livestock Marketing Facilities - Replacing all references to “livestock facilities” with “livestock marketing facilities.” The the term “livestock marketing facility” describes different facilities (e.g. stockyards, auction barns, buying stations, etc.).  “Livestock  marketing facility” helps differentiate such facilities from other locations (e.g. slaughtering facilities, quarantine lots, feed lots, dairies, farms, ranches, etc.).

Proposed Revisions to Part 71 - Requiring all livestock marketing facilities, regardless of whether they have sought APHIS approval to allow APHIS to conduct operations in such facilities in order to detect, control, and eradicate disease of livestock, and maintain a record of the receipt, distribution, and application of all official identification devices and USDA-approved backtags at the facility.  The proposal would also remove the requirement that an accredited veterinarian be physically present at all times on sale days because it causes logistical problems . . . at some facilities.

Proposed Revisions to Part 86 - Clarifying that the exemption “no more than one” applies only to cattle and bison, transported interstate from their farm of origin to an approved livestock marketing facility.  Also, clarifying that the exemption “directly to an approved livestock marketing facility” applies only to cattle and bison moved interstate from their farm of origin to an approved livestock marketing facility.  If cattle or bison commingle with animals from different premises, there will be a greater risk of disease introduction and spread of disease of livestock.

Application of USDA-Approved Backtags - Requesting public comment regarding specifying a location for backtags.

APHIS asserts this proposed rule will not cause any significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act. However, without current data required for a comprehensive analysis of the effects of this proposed rule on small entities, APHIS seeks comment on potential effects.  Specifically, APHIS seeks input on determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

Interested parties are invited to submit comments on or before March 3, 2015, by either of the following methods:

  • Online: Federal eRulemaking Portal: Go to!docketDetail;D=APHIS-2014-0018; OR 
  • By Mail (Postal Mail/Commercial Delivery): Send your comment to Docket No. APHIS-2014-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

Friday, January 16, 2015

VA Seeks Comment on Proposal to Permit Service Animals on Agency Grounds

by Elisabeth Ulmer

The Department of Veterans Affairs (“VA”) seeks comment on a proposed rule regarding service animals on VA grounds.  At present, VA facility heads or designees have the discretion to approve or bar the presence of service animals on VA property.  In contrast, federal law, specifically the Americans with Disabilities Act (“ADA”), more broadly permits guide dogs and other service animals when they accompany individuals with disabilities on federal government property.

As the proposed rule mentions, “Though the ADA and the regulations implementing the ADA do not apply to agencies of the executive branch such as VA, VA is not prevented from adopting standards similar to those in the ADA when appropriate and applicable.”  The proposed rule would make VA regulations more consistent with the applicable federal law and would establish nationally applicable criteria regarding the presence of service animals on VA property.”

The VA agrees with the Department of Justice (“DOJ”) in limiting the category of service animals to dogs that “are individually trained to do work and perform tasks for the benefit of an individual with a disability.”  Pursuant to the ADA, the DOJ has asserted that only these dogs “should be defined as a ‘service animal’ for consistent admittance to and presence in a variety of public settings.”  The VA excludes dogs in training to do service work from this category.  Furthermore, dogs without formal training that provide emotional support or companionship will not be permitted on VA property because “the mere presence of a dog that is not trained to perform work or tasks is not required by individuals in the context of public accommodations.”  However, service dogs “trained to mitigate the effects of mental health disabilities” will be permitted.  All of these restrictions regarding the classification of service animals “will provide greater predictability regarding the presence of animals on VA property and facilities, and will reduce risks to the health and safety of those on VA property.”

Although service animals will be allowed on VA property, the proposed rule asserts that they will not be permitted in certain areas and that these restrictions are consistent with both the ADA and VA limitations on the public.  The VA states that it would limit “the right of service animal access” in accordance with standards for patient care, patient safety, and infection control, “just as we restrict the right of members of the public.”  For instance, with respect to VA property under the control of the Veterans Health Administration, service animals will not be permitted in areas such as operating rooms and surgical suites, acute inpatient hospital settings, and food preparation areas.  With regard to VA property under the control of the National Cemetery Administration, service animals will not be allowed in open interment areas, construction sites, and grounds keeping and storage facilities.  Where the public may not go, service animals may not go.

The VA reserves the right to remove any service animal that, based on objective indications from an individualized assessment, “poses a risk to the health or safety of people or other service animals.”  In keeping with the ADA, if a service animal were not permitted on VA property, VA “would give the individual with a disability the opportunity to obtain services without having the service animal on VA property.”

Comments are due on January 20, 2015.  Interested parties are invited to submit comments by any of the following methods:

  • Federal eRulemaking Portal:; 
  • Mail or Hand Delivery: Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or
  • Fax: (202) 273-9026.

All comments should indicate that they are submitted in response to “RIN 2900-AO39-Animals on VA Property.”

Monday, January 5, 2015

Profile on William Jay: Rising Star in Appellate Advocacy

William Jay, a partner at Goodwin Procter LLP, was recently a featured speaker in the Section’s Supreme Court Series Teleconference entitled Perez v. Mortgage Bankers Association: The Supreme Court Considers the Limits on Notice-and-Comment Rulemaking Requirements.   Notice and Comment had the opportunity to sit down with the Law360 2014 Rising Star and hear about his diverse career and advice for aspiring administrative lawyers.

Growing up on a horse and cattle farm, Jay did not always plan to pursue a legal career.  He became interested in the law while attending Harvard College, where he had the opportunity to intern for a local member of Congress and the Chief Counsel of the Senate Republican Policy Committee.  His experience working for the committee ultimately led him to apply to Harvard Law School. 

Jay began his legal career as a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit.  It was an invaluable experience in light of the variety of cases that clerks can work on, ranging from criminal matters to contract interpretation.  “I would recommend clerking to anyone who is interested in litigation because it gives you a perspective on how judges think and review legal issues,” he noted. Jay also had the opportunity to serve as a law clerk to Supreme Court Justice Antonin Scalia, an experience he described as unlike any other job a young lawyer can have.  Although the Justices do a lot of their own work, it was an amazing opportunity just to be a “fly on the wall,” and an experience that would greatly inform his appellate litigation practice.

After clerking for Justice Scalia, Jay returned to the law firm of Gibson Dunn & Crutcher LLP where he worked for a total of four years.  While at Gibson Dunn, he was a litigation associate with the firm’s Appellate and Constitutional Law practice group.  He also worked on administrative law matters, ranging from an APA challenge to a Transportation Department rulemaking to advising clients on compliance with campaign finance regulations.  The firm is known for its high profile appellate practice, but Jay was drawn to the opportunity to work with great people and mentors. 

Even though he was very happy at Gibson Dunn, Jay’s career took another interesting turn when the Office of the Solicitor General at the U.S. Department of Justice posted several vacancies in 2007.  The Solicitor General’s office represents federal agencies before the Supreme Court and also supervises the government’s appellate litigation and defense of federal statutes.  This was only the second time in the previous three years the office was hiring, so Jay felt he would regret not pursuing such a rare opportunity.  To his surprise he was hired to serve as an Assistant to the Solicitor General. In his nearly five years in the Solicitor General’s office, he argued 11 Supreme Court cases, wrote 20 Supreme Court merits briefs, worked on approximately 150 briefs in opposition to certiorari, argued cases in Courts of Appeals, and participated in other aspects of litigation. 

Jay’s variety of experience greatly informs his current role as Co-Chair of Goodwin Procter’s Appellate Litigation group.  He represents clients in Supreme Court cases like Perez v. Mortgage Bankers Association (in which he co-authored a brief for the National Mining Association); briefs and argues cases in appellate courts around the country;  and handles a number of trial court matters, including administrative law cases for both plaintiffs and defendant-intervenors.  Jay noted that he enjoys working on a mix of appellate and trial-court cases, and that it is important to understand how trial courts operate when handling appellate matters.  Gaining that understanding is difficult to do if you haven’t experienced motion practice. 

Jay recommended aspiring administrative lawyers consider diversifying their careers.  In the rulemaking context, he said, “whether you are writing rules for an agency or comments for a client, it’s important to fully understand the opposing side’s perspective.”  In order for an attorney to draft useful comments on an agency proposal, he stated, it helps to experience what it’s like for agency staff to read comments and write rules.  He also noted that it helps to know how businesses think if you are drafting regulations for an agency.  He offered a word of caution, however, noting that even recognized experts in a field cannot anticipate every possible scenario during a rulemaking, so even seemingly clear rules will end up needing interpretation as they are applied to unanticipated facts.  What clients need most in that situation is not just experts in the subject matter, but counsel with good judgment.

Friday, December 19, 2014

Meet Nina Mendelson, Professor of Law at University of Michigan Law School

Professorby Nina Hart

Meet Nina Mendelson, the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School.  Below, Prof. Mendelson discusses her diverse experiences with administrative law, and shares her thoughts about challenges facing both attorneys and agencies.

1.  What led you to a career in law?  How did you become interested in studying and teaching administrative law?

Since high school, I had thought about law.  I was impressed by civil rights lawyers and, closer to home, a grandfather who was known for criminal defense work.  I was drawn to the idea of seeking, with integrity, justice and fair treatment for individuals.  Then, in college, where I studied political science, history, and economics, I became intrigued by another side of the law.  It is in the design and application of legal rules that we realize our ideas of how a good society should function.   That sealed it; I was headed to law school.

Administrative law is another story.  At Yale Law School, I was very lucky to have the opportunity to study administrative law with Professor Jerry Mashaw, a true giant of the field.  But I did not fully appreciate the field’s importance until I spent a few years in government, at the Department of Justice Environment and Natural Resources Division, prior to entering teaching.  I worked on a variety of environmental issues in a small policy and special litigation section.  There I was privileged both to work with many talented individuals and to get an inside view of agency function and the dynamics among executive branch agencies.  I continue to emphasize to my students just how much of modern governance takes place in agencies.  It is accordingly critical to understand the processes by which the administrative state creates law and policy and the legal framework that constrains it.

2.  What experiences with administrative or regulatory law have you had?

Besides my past environmental law practice, both at Justice and at a large private firm, as well as occasional pro bono work here in Michigan, I have been fortunate to serve on the Section’s Council and to serve as a public member of the Administrative Conference of the United States.  I also serve as a research fellow for a think tank, the Center for Progressive Reform.  Spending time in all these institutions has given me wonderful opportunities to learn from others and to consider what is working and what might be reformed in the administrative state.   Finally, in my over 15 years of teaching administrative law here at Michigan, I have enjoyed discussing administrative law issues with my students, and I always appreciate hearing their fresh perspectives. 

3.  As someone who has written extensively about the federal agencies, what do you think is the greatest challenge facing agencies and advocates involved in assessing or creating regulations?  Are there any “best practices” that attorneys involved in the process should follow?

It’s hard to pick one single “greatest challenge,” but there are two issues involving the general public and regulation that I think deserve more sustained attention.  One is what to do with the thousands and thousands of rulemaking comments that ordinary citizens are filing.  This is happening more frequently because e-rulemaking makes comments easier to file.  Moreover, this Administration has taken a strong stance in favor of transparency and public engagement, beyond simply voting in elections.  Comments numbered in the millions for the FCC’s net neutrality rulemaking this past summer, and they often are in the hundreds of thousands for important rules from EPA and other agencies.  As others have pointed out, these comments often amount to an expression of preference, rather than directly engaging the regulatory issues in detail, and they surely range in quality.  But agencies’ failure even to acknowledge them may increase already significant levels of public cynicism about ordinary citizens’ role in government. 

The other issue concerns public access to agency rules.  Federal agencies have elected to use thousands of privately written standards in lieu of drafting their own rules on issues ranging from oil pipeline operation and product safety to occupational safety.  These rules cannot be readily accessed in either the Federal Register or the Code of Federal Regulations, as with the rest of agency rules.  They are often referred to as “incorporated by reference” or “IBR” rules, a reference to agency practice in referencing the rules as binding in the CFR without including their text.  They’re reliably publicly available only by physically visiting the Office of the Federal Register.  Otherwise, individuals must obtain the rule from the private drafting organization, often for quite a significant fee.  Meanwhile, pipeline neighbors, consumers, and employees are typically less able to afford these standards than many companies who must comply with them.  The Section has taken a position on this issue that Jamie Conrad, Professor Peter Strauss, and I helped draft.   The United States has a long tradition of high levels of public access to the law’s text, and the discussion over public access to IBR rules has yet to properly engage the public’s interest in being able to read them.

4.  As someone who has worked in both the public and private sectors, do you have any advice for attorneys looking to transition between the two areas?  Is there a different skill or mindset that attorneys need to bring to or develop for government work that may not be as crucial in a more traditional litigation practice and vice versa?

I don’t think the skill set required is any different.  Whether an attorney is working in government or in the private sector, he or she must be prepared to employ meticulous research and analysis and innovative thinking, along with integrity in the use of sources and the representation of clients.   Of course, a client’s concerns and needs may be different in the two settings, but in both cases, attorneys should be prepared to do their work to the highest standards.  Attorneys must also be able to consider legal issues both at the narrowest level of what the law, today, requires, and at the broader level of how the law functions and the policies it serves.  

5.  For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

Of course, students should take Administrative Law!  Beyond that, students and new lawyers might explore the issues of the field in the context of a specific area of interest, whether it is immigration, environmental law, benefits programs, or consumer safety.  The importance of administrative law principles can be easier to appreciate by seeing how they impact people and institutions in a particular substantive area.   A federal agency internship also would provide an excellent chance to explore administrative law issues.  All this would give someone a great start.  I would also particularly recommend that new lawyers and students attend the Section’s fall and spring administrative law conferences.  They are a great way to learn about cutting-edge administrative law issues.  Finally, I would say that even for those of us who have long been in the field, new issues are constantly arising, so we are never done becoming “familiar” with administrative law.  

6.  Outside of the law, what are your favorite activities or hobbies?

I spend a lot of time with my family; I have two very active teenagers, so there’s usually a lacrosse game, cross country meet, or band concert to enjoy.  When possible, I also like to be in the beautiful outdoors hiking or canoeing.