Tuesday, February 25, 2014

Meet Adam Schlosser, Director, Center for Global Regulatory Cooperation

by Lynn White

Adam C. Schlosser
Meet Adam Schlosser, the Director of the Center for Global Regulatory Cooperation at the U.S. Chamber of Commerce.  Below, he discusses his international regulatory work, career in administrative law, and critical issues facing the profession.

1. Could you please describe your current role?

I am the Director of the Center for Global Regulatory Cooperation (GRC) at the U.S. Chamber of Commerce.  The Chamber is the largest business association in the United States with approximately three million members.  Ninety-six percent of our members are small businesses.  We cover all sectors and industries. 

The GRC seeks to align trade, regulatory, and competition policy in support of open and competitive markets.  This includes promoting good regulatory practices and efficient regulatory results with governments around the world.  We also encourage U.S. businesses to work with the international community. 

For example, I currently work on the U.S.-Canada Regulatory Cooperation Council (RCC).  The RCC examines regulations and seeks to find compatibility and duplication amongst both countries’ requirements and promote solutions that are good for businesses.  Similarly, I work on issues related to the U.S.-EU Transatlantic Trade and Investment Partnership to encourage regulatory cooperation that supports economic growth and job creation. 

I also work extensively on issues related to cross-border data flows and data privacy, which has been occupying a great deal of my time lately.

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

I work extensively with many foreign governments on regulatory issues and through that lens I have gotten to experience the administrative law process and regulatory systems of many different governments, particularly the European Union.

I previously served as an International Trade Specialist  at the U.S. Department of Agriculture Foreign Agricultural Service.  While there, I worked with various foreign governments on regulatory issues that impacted U.S. exports. During my time with FAS I also got to conduct face to face negotiations with foreign officials to work through any trade issues. Prior to that, I worked at the General Services Administration, Office of Government-wide Policy writing regulations.

3. How did you become interested in practicing administrative law?

I first became interested in administrative law because it serves as a foundation for any subject. It is such a broadly applicable topic. If you know the process of how things work, you can work effectively on any legal issue.  

4. Do you have any advice for aspiring or seasoned administrative lawyers?

I would say don’t be afraid to take chances.  When considering a job opportunity, don’t just look at the organization, but also consider the possibility for growth and increased responsibility.  For example, if it’s a new project, this may give you an opportunity to help shape the direction of the program.  I also recommend networking.  Don’t be afraid to meet folks for lunch or coffee and learn more about what they do.  You’ll never know when your paths may cross again.

5. What are some of the skills necessary to be a good administrative lawyer?

You have to pay attention to detail.  One or two words can substantially change the meaning and cost of a regulation.  Knowing the process and being a careful writer are essential to this practice.

6. What do you think are the biggest challenges facing administrative law practitioners?

The Administrative Procedure Act needs to adapt to changing society to really take the practice area to the next level. It should address the issue of independent agencies.  Also, as the world increasingly becomes more interconnected, , agencies need to consider the international impact of certain regulations and ensure that our regulators interact with their foreign counterparts. This will allow the field to improve and grow.

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

I like to keep pretty active by running, playing racquetball and exercising.  My wife and I are foodies so we go to a lot of restaurants.  We also like to travel. 

Monday, February 24, 2014

Former Section Chair Ron Levin Testifies Before House Committee

by Lynn White

On February 11, 2014, the House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2014 (SCRUB Act).  The bill would establish a Retrospective Regulatory Review Commission (Commission) that would have broad authority to force the repeal or modification of agency rules.  Former Section Chair Ronald Levin, the William R. Orthwein Distinguished Professor of Law at Washington University School of Law, testified on the bill.

The primary purpose of the Commission would be to review regulations and determine whether they should be repealed or amended to reduce regulatory burdens.  The bill would establish a “cut-go” process that would require agencies to offset the cost of any new regulations by repealing or amending regulations identified by the Commission.  The Office of Management and Budget, Office of Information and Regulatory Affairs would also be required to review and certify the accuracy of agencies’ estimates of the costs of new rules.  House Judiciary Chairman Bob Goodlatte (R-VA) stated that “American taxpayers who are carrying the burden of federal regulations deserve better, and the SCRUB Act will cut unnecessary, costly federal regulations, which result in more jobs, better wage opportunities for workers and a more competitive America.”

Professor Levin expressed a number of concerns regarding the SCRUB Act.  Most notably, he said that it would violate the Appointments Clause of the Constitution, because most of the Commission's members would be appointed by legislative leaders.  Under long settled case law, he noted, such appointees cannot exercise significant authority under U.S. laws.  Professor Levin further contended that “the provisions defining the Commission’s powers would pose major risks of arbitrary decisionmaking.  Essentially, the Commission would have authority to order elimination or amendment of any agency rule that it considers unnecessarily burdensome, and no external body could provide a check on its decisions.  Under some circumstances a minority of the Commission could wield the same powers.”

Professor Levin also questioned the bill’s approach to retrospective review of agency rules.  The bill would require agencies to include a plan for retrospective regulatory review in the issuance of any new rule.  Professor Levin called this requirement “enormously overbroad.”  He recommended that the subcommittee wait until the Administrative Conference publishes an upcoming study on retrospective review before taking action on this issue. 

To learn more about the SCRUB Act, visit this website. 

Friday, February 21, 2014

EPA & DoD Set Discharge Standards for Military Vessels in US Waters

by Shannon Allen

The U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Defense (“DoD”) participate jointly in making rules for the Uniform National Discharge Standards (“UNDS”) for Vessels of the Armed Forces.  The UNDS is under development in three phases.  Phase I is complete (64 FR 25126) and this proposed rule is part of Phase II.

The EPA and DoD are required to “promulgate uniform national discharge standards for certain discharges incidental to the normal operation of a vessel of the Armed Forces (CWA § 312(a)(12)), unless the Secretary finds that compliance with UNDS would not be in the national security interests of the United States (CWA § 312(n)(1)).”  The EPA and DoD propose “performance standards” for particular discharges attendant to the “normal operation of a vessel of the Armed Forces” in U.S. territorial waters.  The goal of theses proposed standards is to reduce negative environmental impacts related to discharges, encourage the development of better “pollution control devices,” and promote development of “environmentally sound ships by the Armed Forces.”  These standards are consistent with the “effluent limitations” in the National Pollutant Discharge Elimination System (“NPDES”) general permit for discharges incidental to the normal operation of a non-military vessel.”

The proposal establishes performance standards for “11 of the discharges incidental to the normal operation of a vessel of the Armed Forces.”  The 11 discharges addressed by the proposed standards are: aqueous film-forming foam; chain locker effluent; distillation and reverse osmosis brine; elevator pit effluent; gas turbine water wash; non-oily machinery wastewater; photographic laboratory drains; seawater cooling overboard discharge; seawater piping biofouling prevention; small boat engine wet exhaust; and welldeck discharges.

The UNDS do not apply to the following discharges from vessels of the Armed Forces:
  • overboard discharges of rubbish, trash, garbage, or other such materials;
  • sewage;
  • air emissions resulting from the operation of a vessel propulsion system, motor driven equipment, or incinerator; or
  • discharges that require permitting under the NPDES program, including operational discharges and other discharges that are not incidental to the normal operation of a vessel of the Armed Forces.
EPA and DoD are permitted to establish discharge standards that (1) distinguish among classes, types, and sizes of vessels; (2) distinguish between new and existing vessels; and (3) provide for a waiver of applicability of standards as necessary or appropriate to a particular class, type, age, or size of vessel.  In addition, the EPA and DoD have been directed to consider the following seven factors with promulgating discharge standards: the nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or the operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of installation and use of the MPCD.

Interested parties are invited to consider the following when submitting comments:
  • Identify the proposed rule by docket number and other identifying information (subject heading, Federal Register date, and page number).
  • Explain why you agree or disagree with any proposed performance standards; suggest alternatives and substitute language for your requested changes.
  • Describe any assumptions and provide any technical information and/or data that you used.
  • Provide specific examples to illustrate your concerns and suggest alternatives.
  • Explain your views as clearly as possible.
Comments (identified by Docket No. EPA-HQ-OW-2013-0469) are due by April 4, 2014, and may be submitted by one of the following methods:
  • Federal eRulemaking Portal: http://www.regulations.gov
  • Mail: Send an original and one copy of your comments and enclosures (including references) to EPA Water Docket, U.S. Environmental Protection Agency, Mail Code: 2822-IT, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention Docket No. EPA-HQ-OW-2013-0469.
  • Hand Delivery: EPA Water Docket, EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004, Docket No. EPA-HQ-OW-2013-0469. Deliveries to the docket are accepted only during their normal hours of operation: 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. For access to docket materials, call (202) 566-2426, to schedule an appointment.
  • Email: ow-docket@epa.gov; Attention Docket No. EPA-HQ-OW-2013-0469.

Thursday, February 20, 2014

10th Annual Administrative Law & Regulatory Practice Institute

Institute Banner

Save the date for the Section's 10th Annual Administrative Law and Regulatory Practice Institute April 3-4, 2014.  On Thursday, April 3, 2014 we will address what's new in federal rulemaking.  On Friday, April 4, 2014 we will host our popular Rulemaking 101 program which outlines the rulemaking process and judicial review of rules.  Visit our website here to get more details.  We hope to see you there!

Friday, February 14, 2014

FDA Seeks Comment on Safety of Consumer Antiseptic Washes

by Elisabeth Ulmer

The FDA is inviting public comment on the safety and effectiveness of “consumer antiseptic products intended for use with water,” referred to as consumer antiseptic washes.  This proposed rule seeks to update a 1994 rule (1994 TFM) that was published in the Federal Register on June 17, 1994 (59 FR 31402) that classified “certain antiseptic active ingredients” as safe.

The FDA now has two objectives.  First, it seeks to gather additional information to support the safe nature of the active ingredients in antiseptics.  Second, it will require manufacturers to prove that their consumer antiseptic washes are more clinically beneficial than nonantibacterial soap and water.

This proposed rule distinguishes between health care antiseptics and consumer antiseptic handwashes.  The FDA planned to apply the same effectiveness criteria to both consumer antiseptic and health care personnel handwashes, but agrees with public comment that these two categories should be handled separately because they serve different purposes.  Thus, the current proposed rule covers only consumer antiseptics, which include “antibacterial soaps, handwashes, and antibacterial body washes,” but do not include hand sanitizers.

Because of new developments in technology and new information about the amount and risks of systemic exposure to these active ingredients, the active ingredients in antiseptic washes that had been classified as safe should be reevaluated to comply with current safety standards.  Triclosan, a primary ingredient, was found in a recent study to have a negative effect on muscle function in mice and fish.  Therefore, the FDA invites “comment on what these findings tell us about triclosan's potential impact on human health and the submission of additional data on this subject.”  The FDA is also concerned about widespread antiseptic use impacting the development of bacterial resistance.

Furthermore, a demonstration that consumer antiseptic washes are more clinically beneficial than nonantibacterial soap and water is necessary to balance the perceived risk of using these washes.  After the end of the 180-day commenting period, manufacturers will have one year to submit their research.  If they cannot prove that consumer antiseptic washes are safe for human use and more beneficial as regular soap and water, then the FDA will require them to change the advertising of these products or to stop selling them.

Interested parties are invited to submit comments about any aspect of this proposed rule by June 16, 2014, by any of the following methods:
  • Regulations.gov: http://www.regulations.gov;
  • Mail: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852
All comments must include the Agency name, Docket No. FDA-1975-N-0012, and Regulatory Information Number (RIN) 0910-AF69.

Thursday, February 13, 2014

Meet Joanne Zimolzak, Managing Partner at McKenna Long DC Office

by Nina Hart

Meet Joanne Zimolzak, head of the Insurance Division and Managing Partner in the DC Office of  McKenna Long & Aldridge LLP.  Below, Ms. Zimolzak describes her experiences with administrative law and several major challenges facing both practitioners and clients.

1.  What led you to a career in law?

I am the first member of my family to attend law school.  I started thinking about a career in law when I was in junior high school.  Apparently I had a strong tendency to play "devil's advocate," and my friends and family often suggested that law might be a good field for me.  I spent a year between college and law school working at a small firm, which cemented my choice. 

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

Understanding the administrative law process, including limitations on agency action, has proven extremely valuable in connection with my Freedom of Information Act (FOIA) work.  Throughout my career, I have assisted government contractors with obtaining and/or successfully preventing the release of sensitive business information under federal and state FOIA provisions.  In certain cases, the agency's failure properly to justify its determination has provided a strong basis to press for the best possible result from the client's perspective. 

In terms of regulatory compliance, I have assisted several companies in alleged procurement fraud matters and in conducting related internal investigations.  I also routinely advise insurance industry clients regarding regulatory compliance issues.  Recently, much of this work has focused on the emerging risk of climate change and its resulting impact on the industry, both from a regulatory standpoint and a potential liability standpoint.

3.  How did you become interested in pursuing a career in administrative law?

Early in my career, I had an opportunity to work on several Administrative Procedure Act challenges to federal agency actions.  These were important matters to our clients, whose industries were negatively affected by agency actions that did not (at least in our view) comport with applicable standards.  I also had the opportunity early in my career to assist clients with litigating federal preemption cases to state law claims, including as amicus curiae in proceedings before the U.S. Supreme Court.  These experiences piqued my interest in administrative law and helped me appreciate its utility as a tool to minimize the risks of agency arbitrariness and overreaching. 

4.  Do you have any advice about “best practices” for attorneys, particularly for those whose work requires frequent interaction with government agencies?

In law, as in life, communication is key.  It is helpful to have relationships within government agencies and to deal respectfully and productively with agency personnel, even in an adversarial situation.  Depending on who you are dealing with within an agency, there is often a good deal of useful information available.  Make sure you know your issue, and avoid taking unnecessary "pot shots" at the opposition – after all, chances are you will be dealing with them again and may even need their help.

5.  Is there a difference in how attorneys should approach appearances before specialized courts, such as the Court of Federal Claims or Federal Circuit, as opposed to generalist courts?  In your experience, are the judges on specialized courts looking for different things from attorneys, or do you perceive them as having a somewhat different outlook from their generalist colleagues?

When appearing before specialized courts, practitioners sometimes get tripped up by things as simple as the court's particular rules and procedures.  Spend some time getting to know these, and talk to or associate with someone who routinely practices before these courts.  It will be time well spent.  I think on one level, all courts are looking for the same kinds of things – competence, respectful conduct to the court and other counsel, adherence to court rules and practices, etc.  Certainly specialized courts are used to seeing practitioners who are very experienced in certain types of cases, so there is a high level of competence that they have come to expect in such matters. 

6.  What do you think are the biggest challenges facing administrative law practitioners?

Managing client expectations is very important.  Both the agency decision-making process and any eventual legal challenge to agency action involve multiple steps and can take a good deal of time.  The standard of review applicable to agency action in certain situations can be difficult to overcome. 

7.  You have handled numerous insurance cases during your career.  Would you describe some of the challenges facing international/multinational companies and their attorneys in terms of regulatory compliance?

Globalization has led to increased opportunities for international commerce, but the flip side involves increased potential for legal liability.  Multinational companies frequently find themselves in the position of facing financial and reputational risk across multiple jurisdictions.  Companies appreciate the importance of identifying regulatory issues and ensuring compliance across a growing geographical footprint, but in the reality of today's environment, they often are doing so with fewer resources.  Substantively, large insurers and other multinational companies are facing a host of regulatory compliance issues, including in the areas of antitrust/competition, data privacy and protection, environmental/safety, and anti-corruption/bribery.  One thing to keep in mind in assisting multinational companies with these issues is the different privilege rules that apply in different jurisdictions.

8.  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?

It may sound obvious, but I would encourage law students to take a course in Administrative Law and Procedure.  This was one of the best courses I took at Georgetown and it provided an excellent introduction to the field.  In my view, this course should be a prerequisite for anyone thinking of practicing law in the Washington D.C. area (regardless of eventual discipline).  Another suggestion would be to intern with a federal agency during or after law school.

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

I enjoy spending time with my two daughters, ages 11 and 4.  In my spare time, I love to cook (and in this regard, it is helpful that I also love to eat!).  I enjoy traveling to different cities and countries, where I try to immerse myself in the local culture.  I'm a huge movie buff – some recent favorites include Her and Silver Linings Playbook.  I'm a big fan of ice-skating and recently took up stand up paddleboarding, which is a hoot. 

Friday, February 7, 2014

DOE Seeks Input on Proposed Improvements to Migrant Education

by Shannon Allen

The Department of Education (“ED” or the “Department”) issued a notice of proposed rulemaking (“NPRM”) aimed at improving the Migrant Education Program (“MEP”).  The children of migratory agricultural workers and migratory fishers have educational needs that present unique challenges for educators and our Nation’s schools.”  One significant result of a migratory way of life is that the children often enroll in new schools and in new school districts without sufficient documentation of their health and educational history.  Lacking health and educational information may cause children of migrant workers “delays in student enrollment, lead to inappropriate classroom and course placements, complicate or hinder the accrual of course credits needed for high school graduation, and result in duplicate services, such as multiple assessments and immunizations.”

 The Elementary and Secondary Education Act (“ESEA”) directed the Secretary of Education to “ensure the linkage of migrant student record systems for the purpose of electronically exchanging, among the States, health and educational information regarding all migratory students.”  To this end, the ESEA required the Department to implement a national “electronic records exchange mechanism” called the Migrant Student Information Exchange(“MSIX”).  This NPRM proposes to implement the MSIX, introduces regulations that would “facilitate timely school enrollment, placement, and accrual of secondary course credits for migratory children,” and assists the Department in determining “accurate migratory child counts.”   

The MSIX may be used to produce national data on the migrant population,” but the primary purpose of MSIX is to provide educational personnel with the information they need in order to facilitate:
  1. The timely enrollment of all school-aged migrant children;
  2. The placement of migratory students in the appropriate grade level and courses of instruction; and
  3. For secondary students, the accrual of course credits needed to graduate from high school.
Specifically, the Department’s proposals would require each SEA that receives a grant of MEP funds to:
  • Collect, maintain, and submit current and updated Minimum Data Elements (“MDEs”) for eligible migratory children to MSIX within established timeframes;
  • Ensure that all data submitted to MSIX are accurate and complete and that appropriate safeguards are in place to protect the integrity, security, and confidentiality of Consolidated Migrant Student Records in MSIX;
  • Establish procedures for using, and requiring each of its sub-grantees to use, Consolidated Migrant Student Records in MSIX; and
  • Establish procedures for MSIX data correction by parents, guardians, and migratory children.
The Department seeks public comment on the following:
  • the MDEs that each State receiving MEP funds would be required to collect for purposes of the electronic transfer of migratory student information;
  • the requirements that States must meet for immediate electronic access to this information.
  • how these proposed regulations can be made easier to understand;
  • whether the requirements in the proposed regulations are clearly stated;
  • if the proposed regulations contain technical terms or other wording that interferes with their clarity;
  • whether the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity;
  • if the proposed regulations would be easier to understand if they were divided into more (but shorter) sections;
  • how the description of the proposed regulations in the supplementary information section of this preamble could be more helpful in making the proposed regulations easier to understand;
  • compliance with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations; and
  • ways to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department’s programs and activities.
Interested parties may submit comments, referencing Docket ID: ED-2013-OESE-0119-0001 at the top of the comment, by February 25, 2014, by one of the below methods.  Please note: comments cannot be accepted via fax or by email.
  • Electronically through the Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically; OR
  • Postal Mail, Commercial Delivery, or Hand Delivery: Addressed to Lisa C. Gillette, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E313, Washington, DC 20202-6135.

Wednesday, February 5, 2014

Save the Date: 10th Annual Administrative Law Institute April 3-4, 2014

Join the Section of Administrative Law and Regulatory Practice for the 10th Annual Administrative Law Institute in Washington, DC.  There will be a number of sessions on exciting topics, including Executive Branch Oversight of Rulemaking, Affordable Care Act Rulemakings, Observations About Rulemaking Under Dodd-Frank, and many more.  Get a sneak preview of the schedule here.  Stay tuned for more information!

Monday, February 3, 2014

DoD Seeks Comment on Procedures for Afghanistan Contract Payments

by Shannon Allen

The Department of Defense ("DoD") seeks public comment on a proposal to amend the Defense Federal Acquisition Regulation Supplement ("DFARS"). This proposed rule aims to include policies and procedures regarding payment for contracts for performance in Afghanistan into the DFARS. The DoD intends to promulgate policy and procedures on the use of a "new solicitation provision" that provides notice that the "payment currency" used for "contracts for performance in Afghanistan" will be "dependent on the nationality of the vendor." This rule applies the procedures concerning payment currency contained in the U.S. Central Command’s Fragmentary Order ("FRAGO") 09-1567 and FRAGO 10-143.

Specifically, the "solicitation provision" states that if the contract is awarded to a "host nation vendor (Afghan)," then the contractor will "receive payment in Afghani (local currency)" through an "electronic funds transfer to a local (Afghan) banking institution." The DoD’s proposal further provides that contracts will not be awarded to "host nation vendors (Afghans)" that are not banking locally. In addition, the proposed amendment states that if awarded to "other than a host nation vendor," then the contract will be awarded in U.S. currency. 
Changes are added to "provide direction" to contracting officers, so they can follow the procedures included in the DFARS Procedures, Guidance, and Information ("PGI") 225.7703(c), when they issue "solicitations" and "contracts for performance" in "Afghanistan." The DoD does not anticipate that this proposal will have a "significant economic impact" on a considerable quantity of small entities because this proposed amendment simply provides mandates for payment to host nation vendors for performance in Afghanistan. Finally, the proposed rule does not duplicate, overlap, or conflict with any other Federal rules.

Comments may be about any aspect of this proposal including, but not limited to:
  • the assessment of costs and benefits of available regulatory alternatives;
  • if regulation is necessary;
  • the selected regulatory approach that maximize net benefits
  • the potential economic, environmental, or public health and safety effects; or
  • how this proposal reduces cost, harmonizes rules, or promotes flexibility.
Interested parties are invited to submit comments, identified by DFARS Case 2013-D029, by March 31, 2014, by any of the following methods:
  • Regulations.gov: http://www.regulations.gov;
  • Email: dfars@mail.mil. Include DFARS Case 2013-D029 in the subject line of the message;
  • Fax: 571-372-6094;
  • Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.