Brown Bag Lunch Series: Latest Developments at the OSC

Please join the ABA Section of Administrative Law and Regulatory Practice, Government Personnel Committee for a brown bag lunch event on the Latest Developments at the Office of Special Counsel, October 30, 2013 from 12:00 - 1: 30 p.m.  The event will be held at the ABA Washington, D.C. office in the John Marshall Room (1050 Connecticut Ave., NW 5th Floor).  Staff from the Office of Special Counsel (OSC) and other practitioners will discuss tips for practicing before the OSC, case investigations and trends, and OSC's new policy initiatives.  Confirmed panelists include Shirine Moazed, Chief Washington Field Office, OSC, Jason Zuckerman, Senior Legal Advisor, OSC, and Andrew Perlmutter, Attorney, Passman & Kaplan P.C.  Download your registration form here.  Hope to see you there!

Meet Eric Holden, Fellow at the U.S. Merit Systems Protection Board

by Nina Hart

Meet Eric D. Holden, a post-graduate fellow at the U.S. Merit Systems Protection Board.  Below he describes how his experience in the military led him to a career in law, offers advice to young attorneys, and discusses the benefits of pro bono service.

1.  What led you to a career in law?

While serving in the Marine Corps, I had the opportunity to work with the Navy's Judge Advocate General's Corps. I really enjoyed researching the Uniform Code of Military Justice and preparing legal documents for the JAG lawyers. After leaving the military, I committed myself to the goal of attending law school.

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

As a young lawyer, much of my experience has come from internships and fellowships. I first interned with the Louisiana Department of Labor, working with an administrative law judge in a workers' compensation court. Next, I interned full-time with the Attorney General for the District of Columbia in the Personal and Labor Relations Section. Most recently, I have been serving in a post-graduate fellowship position with the U.S. Merit Systems Protection Board. From all of these opportunities, I have gained a diverse knowledge of administrative and regulatory law in both the state and federal context.

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

As a veteran, serving my country is very important to me. I view practicing administrative law as a way to protect our country's most valuable asset, our rule of law. I also enjoy the challenge of analyzing administrative laws and trying to determine their meanings by researching legislative history and precedential cases.

4.  As someone with several experiences with administrative law in the employment context, do you have any advice for attorneys preparing to appear before ALJs?

In my experience, ALJ's appreciate straightforward, well-researched arguments. They are not influenced by emotional pleas to the court. Most importantly, everything argued must be supported by the appropriate administrative code and case law.

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

Administrative law can be a complex field of law. As time passes and government leadership shifts, judicial interpretation of the codes can change. Additionally, new laws and amendments are always coming into existence. I feel administrative law is an area where lawyers must continuously keep themselves abreast of judicial and legislative activity.

6.  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?

For law students, I believe internships are necessary for gaining an understanding of administrative law. Law schools do a great job of teaching legal theory; however, the practical application of the law cannot be learned in a classroom. There is no substitute for actually attending hearings and working with experienced lawyers.

For new attorneys, there are many opportunities to work on pro bono cases before administrative courts, at least in the District of Columbia. Administrative courts can be very different from trial courts, particularly in regards to evidence rules. If someone is interested in administrative law, I believe it is imperative they seek out opportunities to try cases before ALJs to get a feel for the unique nuances. 

7.  As someone with a number of experiences in government, do you have any advice for attorneys looking to transition from the private to public sectors?

From what I have learned from other young lawyers, serving as a pro bono lawyer is a great way to get one's foot in the door. Government positions typically have strict experience requirements. In today’s challenging legal job market, it seems that working as a pro bono lawyer is the best way to acquire the necessary experience.

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

In my free time, I enjoy cooking for friends and family. I also love spending time in the District of Columbia's amazing museums.

Annual Administrative Law Conference November 7-8, 2013

The shutdown is over and the program is ON! Join the ABA Section of Administrative Law and Regulatory Practice for the Administrative Law Fall Conference, November 7-8, 2013 at the Georgetown University Hotel and Conference Center in Washington, DC.  The conference will include CLE Panels on a wide-range of topics including Developments in Administrative Law Parts 1 and 2, Where Regulation and Innovation Converge, and the Centralization of Regulatory Power in the White House.  Click here for the full meeting agenda and additional event details. Contact Section Director Anne Keifer to learn more about the special group discount (202-662-1690 or anne.keifer@americanbar.org).

CMS Proposes to Establish Basic Health Program for Low-Income Individuals

by Shannon Allen

The Centers for Medicare Medicaid Services (“CMS”) proposes a rule that establishes the Basic Health Program required by Section 1331 of the Affordable Care Act.  States, under the Basic Health Program, are provided with “flexibility” to set up a “health benefits coverage program” to help “low-income individuals” who are not eligible for Medicaid and who are eligible to buy insurance through the state’s “Affordable Insurance Exchange” (“Exchange”) (also known as a “Health Insurance Marketplace”).  Under this proposed rule, states will have another option to create a Basic Health Program for certain low-income individuals starting January 1, 2015.  The Basic Health Program aims to “coordinate with enrollment” in a Qualified Health Plan (“QHP”) through the Exchange, and assist with enrollment in the Children’s Health Insurance Program (“CHIP”) and Medicaid.

The CMS invites comment on the establishment and operation of the Basic Health Program and seeks input on areas of further development and coordination within existing regulations.  The CMS proposes to:

• Create certification requirements for state submitted Basic Health Program Blueprints and state administration of the Basic Health Program consistent with that Blueprint;
• Institute eligibility and enrollment requirements for standard health plan coverage offered through the Basic Health Program;
• Establish requirements for the benefits covered by such standard health plans;
• Provide for federal funding of certified state Basic Health Programs;
• Regulate the purposes for which states can use such federal funding;
• Set forth parameters for enrollee financial participation; and
• Establish requirements for state and federal administration and oversight of Basic Health Program funds.

Interested parties should submit comments by November 25, 2013 and should refer to file code CMS-2380-P.  Comments may be submitted in one of the following four ways (Note: comments cannot be accepted via facsimile (“fax”):

• Electronically: http://www.regulations.gov.
• Regular mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2380-P, P.O. Box 8016, Baltimore, MD 21244-8016.
• Express or overnight mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2380-P, Mail Stop C4-26-0, 7500 Security Boulevard, Baltimore, MD 21244-1850.
• Hand or courier: Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201. Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 500 Security Boulevard, Baltimore, MD 21244-1850. If you plan to deliver your comments to the Baltimore address, please call (410) 786-7195 begin_of_the_skype_highlighting in advance to schedule your arrival with one of our staff members.

Agencies Seek Input on Supplementary Leverage Ratio Increase for BHCs

by Shannon Allen

The Office of the Comptroller of the Currency (“OCC”), the Board of Governors of the Federal Reserve System (“Board”), and the Federal Deposit Insurance Corporation (“FDIC”) (collectively,  the “Agencies”) invite public comment on enhanced supplementary leverage ratio standards for certain Bank Holding Companies (“BHCs”).  The Agencies propose to create a “well capitalized” threshold of 6% for any insured depository institution (“IDI”) that is a subsidiary of a covered BHC.  In addition, the Board proposes that a covered BHC that preserves a “leverage buffer of tier 1 capital in an amount greater than 2 percent of its total leverage exposure” would no longer be held to “limitations on distributions and discretionary bonus payments.”

Financial companies had grown so big, leveraged, and interconnected that their collapse destabilized the financial system and the U.S. government responded.  Congress established the International Lending Supervision Act (“ILSA”) and codified its intentions by stating, “It is the policy of the Congress to assure that the economic health and stability of the United States and the other nations of the world shall not be adversely affected or threatened in the future by imprudent lending practices or inadequate supervision.”  This joint notice of proposed rulemaking (“NPRM”), builds on regulatory efforts by “increasing leverage standards” for the “largest and most interconnected U.S. banking organizations.”

The Agencies invite input on all aspects of the proposal and specific comments sought include: 

• How the proposal would contribute to financial stability and economic growth;
• Mitigating public-policy concerns; 
• Tools to prevent the failure of large systemically-important banking organization; 
• Risk-reducing incentives;
• Whether the proposed 6 % well-capitalized standard for subsidiary IDIs should be higher or lower; 
•  Challenges institutions would face in meeting the proposed well-capitalized threshold of 6 % beginning on January 1, 2018; 
• Whether the proposal would enhance the competitive position of U.S. banking organizations or put them at a competitive disadvantage relative to foreign banking organizations; 
•  How the proposal would affect counterparty incentives and behavior; 
•  Whether the proposal could cause a shift in favor of lending to individuals and businesses as opposed to markets- based activity by banking organizations; 
• Whether better capitalized BHCs might improve their ability to serve as a source of credit to the economy during periods of economic stress; 
•  How the proposal creates incentives for banking organizations to shrink or otherwise modify their activities; 
•  Incremental costs to banking organizations compared to currently anticipated costs; 
•  Alternatives to the definition of total leverage exposure; and 
• Rulemaking efforts that should be considered for simplification;

Interested parties are encouraged to submit comments electronically and should submit comments by October 21, 2013.

Comments to the OCC should use the following title:  “Regulatory Capital Rules: Regulatory Capital, Enhanced Supplementary Leverage Ratio Standards for Certain Bank Holding Companies and Their Subsidiary Insured Depository Institutions,”  must include “OCC” as the agency name and “Docket ID OCC-2013-0008” in the comment, and may be submitted by any of the following methods: 

• Federal eRulemaking Portal—“regulations.gov”: Go to http://www.regulations.gov. 
• Email: regs.comments@occ.treas.gov. 
•  Mail: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. 
•  Hand Delivery/Courier: 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. 
•  Fax: (571) 465-4326.

Comments to the Board should be identified by Docket No. R-1460 and may be submitted by any of the following methods: 

• Agency Web site: http://www.federalreserve.gov.
• Federal eRulemaking Portal: http://www.regulations.gov. 
•  Email: regs.comments@federalreserve.gov. Include docket number in subject line. 
•  Fax: (202) 452-3819 or (202) 452-3102.
• Mail: Robert de V. Frierson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551.

Comments to the FDIC should be identified by RIN 3064-AE01 and may be submitted by any of the following methods:

•  Agency Web site: http://www.fdic.gov/regulations/laws/federal/propose.html. 
•  Email: Comments@fdic.gov. Include the RIN 3064-AE01 in subject line. 
•  Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. 
• Hand Delivery: Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7:00 a.m. and 5:00 p.m.

Archives Proposes Amendments to Incorporation by Reference Policy

by Shannon Allen

The National Archives and Records Administration (“NARA”) seeks comment on proposed amendments regulating the process for incorporated by reference (“IBR”) materials into the Code of Federal Regulations (“CFR”).  This notice of proposed rulemaking (“NPRM”) is in response to a petition to amend these regulations received by the Office of the Federal Register (“OFR”) on February 13, 2012.  

This NPRM proposes that agencies include additional details about the “materials incorporated by reference” into the “preambles of their rulemaking documents.”  In addition, the proposed amendments seek to require agencies to state in the preambles “a discussion of” actions taken to make certain the “materials are reasonably available to interested parties” or to “summarize the contents of the materials they wish to incorporate by reference.”

Specifically requested comments, include:

1. Whether "reasonably available" means materials should be for free to anyone online.  Would it create a digital divide by excluding people without internet access? 
2. Does “class of persons affected” need to be defined? If so, how should it be defined?
3. Should agencies bear the cost of making the material available for free online?
4. For example, how would this impact agencies' budget and infrastructure?
5. How would OFR’s review of proposed rules for IBR impact agency rulemaking and policy, given the additional time and possibility of denial of an IBR approval request at the final rule stage of the rulemaking?
6. Should OFR have the authority to deny IBR approval requests if the material is not available online for free?
7. The Administrative Conference of the United States recently issued a recommendation on IBR. 77 FR 2257 (January 17, 2012). In light of this recommendation, should the guidance on this topic be updated instead of amending the regulations?
8. Given that the petition raises policy rather than procedural issues; would the Office of Management and Budget (“OMB”) be a better placed to determine reasonable availability?
9. How would an extended IBR review period at both the NPRM and final rule stages impact agencies?

Other topics for comment include:

• Constitutional Issues.
• Copyright Issues.
• Outdated standards IBR'd into the CFR.
• What standards should be used as guidance not requirements?
• Concerns regarding the misuse of the IBR process.
• Indirect IBR of standards.
• International stance (e.g. trade imbalance, Export Administration Regulations, International Traffic in Arms Regulations).
• OFR mission.

Interested parties should submit comments by December 31, 2013, identified using the subject line of this document (Incorporation By Reference), by any of the following methods:

•  Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: Fedreg.legal@nara.gov. Include the subject line of this document in the subject line of the message (Incorporation By Reference).
• Mail: the Office of the Federal Register (NF), The National Archives and Records Administration, 8601 Adelphi Road, College Park, MD.
• Hand Delivery/Courier: Office of the Federal Register, 800 North Capitol Street NW., Suite 700, Washington, DC 20001.