ABA Endorses S. 1173, the Independent Agency Regulatory Analysis Act

by Lynn White

The American Bar Association recently sent a letter to members of the Senate Committee on Homeland Security & Governmental Affairs endorsing S. 1173, the Independent Agency Regulatory Analysis Act of 2013 by Senator Rob Portman (R-Ohio).  The bill would affirm the authority of the President to issue an executive order requiring independent regulatory agencies to comply, to the extent permitted by law, with regulatory analysis requirements that are currently applicable to executive agencies when adopting new regulations.

Under current law, a number of regulatory agencies like the National Labor Relations Board, Securities and Exchange Commission, and Federal Trade Commission, are excluded from the requirements of Executive Orders 12866 and 13563.  The orders require agencies to conduct an economic analysis of certain costly regulations and obtain approval from the Office of Information and Regulatory Affairs (OIRA) prior to publishing rules.  A Senate aide noted that these regulatory agencies exercise a vast degree of power over huge sectors of the economy and would benefit from having OIRA review the cost benefit analysis of significant rules.

The ABA letter expressed support for greater presidential coordination, review and oversight of the regulatory process for several important reasons.  First, the President is in the best position to centralize and coordinate the regulatory process, a task that has become increasingly important.  Second, the President, unlike administrative officials, is electorally accountable to the people and is the only official in government with a true national constituency.  These characteristics make the President uniquely well-situated to design regulatory policy in a way that is response to the interests of the public as a whole.  Finally, the President by virtue of his accountability and capacity for inter-agency coordination and centralization, has the unique ability to energize and direct regulatory policy in a way that would be impossible if that policy were to be set exclusively by administrative agency officials.  The ABA urged Congress to ensure that implementing the legislation would not impair the ability of regulatory agencies to perform their statutory functions.

S. 1173 contains some of the broader regulatory reforms contained in S. 1029, also sponsored by Senator Portman (H.R. 2122).  S. 1029 would codify some of the core requirements of Executive Orders 12866 and 13563, require greater input from the regulated community early in the rulemaking process for high-impact regulations, and allow for heightened judicial review.  The House Committee on the Judiciary passed the House version of the bill out of committee on July 24, 2013 by a vote of 13 -9.

Department of Education Seeks to Clarify IDEA Regulations

by Shannon Allen

The Secretary of the Department of Education (“ED”) issued a notice of proposed rulemaking (“NPRM”) proposing to amend regulations under Part B of the Individuals with Disabilities Act (“IDEA”).  The Assistance to States for the Education of Children with Disabilities program is governed by these regulations.  The ED seeks public comment to help clarify current policy.

Under Part B of the IDEA, the ED offers grants to States to “assist them in providing special education and related services to children with disabilities.”  The purpose of Part B regulations is to:

1. make certain all children with disabilities have access to free appropriate public education (“FAPE”) emphasizing unique needs and preparation for further education, employment, and independent living;
2. ensure that the rights of children with disabilities and their parents are protected;
3. assist States, localities, educational service agencies, and Federal agencies with providing education to all children with disabilities; and
4. assess and ensure the effectiveness of efforts to educate children with disabilities.

Part B funding is aimed at helping States and local educational agencies (“LEAs”) meet their “financial obligation to provide special education and related services to eligible children with disabilities.”  States must apply to the Secretary of the ED and LEAs must apply to their states in order to obtain funds.  “The statute and its regulations impose conditions on Part B grants, including a maintenance of State financial support provision and a maintenance of effort (“MOE”) provision for LEAs.”  This NPRM is only focused on proposed amendments to the LEA MOE provision.

The ED’s proposed amendments include;

• clarifying the compliance standard;
• explaining the eligibility standard;
• addressing the level of effort required of an LEA in the year after it fails to maintain effort under the IDEA;
• specifying the consequence for a failure to maintain local effort; and
• deciding whether States and LEAs or other interested parties think these proposed amendments will be helpful in increasing understanding of, and ensuring compliance with, the current local maintenance of effort requirements.

The ED “continues to receive questions on these complex requirements” and “has found that a significant lack of understanding regarding the local MOE requirements persists.”  Thus, the ED invites comment from States and LEAs “to identify where they are experiencing the most problems in implementing the maintenance of effort requirements and whether these proposed regulations will help to address those problems.”  In addition, the ED invites comments on decreasing “potential costs” or increasing “potential benefits while preserving the effective and efficient administration of the IDEA Part B program.”

Interested parties must submit comments by December 2, 2013.  Comments should include the Docket ID: ED-2012-OSERS-0020-0001 at the top of the comments and may be submitted by any of the following methods:

• Electronically:  Go to http://www.regulations.gov to submit your comments; OR
• Postal Mail, Commercial Delivery, or Hand Delivery: Address comments to Mary Louise Dirrigl, U.S. Department of Education, 400 Maryland Avenue SW., room 5103, Potomac Center Plaza, Washington, DC 20202-2600.
• NOTE: The ED will not accept comments by fax or by email.

Meet Rob Quinan, Managing Attorney, Administrative Law Division

by Nina Hart

Meet Rob Quinan, Managing Attorney for the Administrative Law Division of the Office of the Attorney General of Massachusetts.  Below, he discusses his diverse experiences with administration law and advice for attorneys interacting with or hoping to work for government agencies.

1. What led you to a career in law?

I was a Government major in college with a concentration in international relations.  I had thought about trying to enter the Foreign Service and applied to Georgetown University’s Master of Science in Foreign Service program.  My father, who is a lawyer, convinced me to apply to Georgetown’s joint JD/MS program.  Once in that program, I discovered that pursuing a law career appealed to me more than a Foreign Service career would.

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

After a short stint in an entry-level law firm job in Washington, DC, which first exposed me to regulatory law issues, I worked for a major Boston law firm as a general commercial litigator for nearly 5 years.  I then spent three years as deputy general counsel to the Massachusetts Department of Children & Families (DCF) before joining the Attorney General’s Administrative Law Division 15 years ago.  DCF operates under an extensive regulatory scheme and conducts hundreds of administrative adjudications each year.  My current job exposes me to administrative law issues on a daily basis, but I gained a deeper appreciation of such issues when I began editing the Manual for Conducting Administrative Adjudicatory Hearings [a copy of which can be accessed for free at http://tinyurl.com/cdzrz8d].

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

My major field of study in college, combined with my administrative law course in law school, and the fact that administrative law surrounds practically all budding lawyers in Washington, DC, first sparked my interest in administrative law.  The position I took in the Massachusetts Attorney General’s Administrative Law Division proved to be an excellent platform for expanding my horizons and experiencing many of the different ways in which administrative law affects the lives of millions of U.S. citizens.

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

Before filing a court pleading that rests on principles of administrative law, take the time to consult a good treatise on administrative law.  The Massachusetts Practice series, for example, includes a three-volume treatise on administrative law.  An inordinate amount of time is wasted advancing arguments that either contravene or do not satisfy basic principles of administrative law.  In any area of the law that’s currently unfamiliar to you, take the time to scope out the lay of the land and view the big picture by consulting treatises or handbooks before delving into the minutiae of the issue that most concerns your client.  Cultivate acquaintances in the legal departments of the agencies you are most likely to deal with.  Join the public law section of your bar association.

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

If you represent a private client or plaintiff challenging an administrative decision, a major challenge is to craft an argument that will overcome most judges’ natural inclination to defer to the greater subject-matter expertise of agency decision-makers.  If you represent a government defendant, an often-daunting challenge in controversial cases is to persuade a reviewing court that the agency’s interpretation of law is correct and reasonable and that the court must defer to it.  Another challenge for all admin law practitioners is to master and then be able to distill cogently the more arcane aspects of the governing legal scheme.  Legislators and regulators are not known to be masters of clear, concise, easy-to-understand language.

6. As someone who has worked in 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 or develop in government work that may not be as crucial in a more traditional litigation practice and vice versa?

Private sector lawyers looking to break into government service should be on the lookout for pro bono opportunities that will bring them into contact with government lawyers and/or familiarize them with public law issues.  For example, an associate interested in child welfare law might sign up for the court-appointed special advocate program, join a foster-care review team, or explore whether the state Office of Child Advocate could use some research assistance.  Join and become active in the public law section of your bar association.  Work on an amicus brief that touches on issues of concern to government entities.  The culture of private law firms usually differs considerably from the public law office environment.  The former is often more bottom-line driven and the latter more issues oriented, so it helps if you can undergo experiences that give you a broader outlook than you’re likely to get as an associate in a law firm.  In the public sector position, you are likely to have greater responsibilities but more flexibility in managing your own time.

7. 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?

Probably nothing beats interning or volunteering in a public law office.  Serving as a research assistant to a professor of administrative law or volunteering to help those responsible for publications in the field, including treatises and the above-mentioned Manual, might also be invaluable opportunities.  Although the opportunities might not arise that frequently, keep your eyes peeled for conferences sponsored by the public law section of your bar association.  Inquire as to whether your law school is associated with any public service fellowship programs.

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

Notwithstanding my decision to veer away from a Foreign Service career, I still enjoy traveling overseas and gaining exposure to foreign languages and cultures.  I’m taking a refresher advanced French class this fall.  I try to watch a couple of foreign language movies each season and I am interested in the music that’s popular overseas.  Closer to home, I enjoy nature hikes, kayaking, swimming, and generally being outdoors in clement weather.  I like to read biographies, historical novels, and all about politics and current affairs.  And I visit museums and the theater fairly regularly.

SBA Seeks Comment on Proposed Changes to Bond Program

by Shannon Allen

The Small Business Administration (“SBA”) announces proposed rule changes to the Surety Bond Guarantee Program (“Bond Program”).  Under the Bond Program, the SBA “guarantees bid, payment and performance bonds” for small contractors who are unable to acquire surety bonds “through regular commercial channels.”  The SBA agrees to “assume a certain percentage of the Surety's loss” if a small contractor defaults.  The Bond Program provides an incentive to Sureties and helps small businesses obtain “greater access to contracting opportunities.” 

The SBA’s proposal would make Bond Program regulations conform to particular provisions of the National Defense Authorization Act for Fiscal Year 2013 (“NDAA”).  These changes include:

• increasing the contract amount from $2 million to $6.5 million;
• increasing the contract amount to $10 million with a Federal contracting officer's certification that it is crucial for the small business to obtain bonding;
• authorizing the SBA to deny liability at its discretion;
• prohibiting the SBA from denying liability based on material information that was provided as part of the guarantee application in the Prior Approval Program;
• clarifying that the principal must retain full responsibility for the oversight and management of the contract;
• encouraging greater use of the Quick Bond Guarantee Application and Agreement;
• updating the dollar threshold to $100,000 for certain provisions determining when a change in the contract or bond amounts meet particular criteria; and
• reducing timeframes for taking certain actions related to claims.

Interested parties are invited to submit comments, identified by RIN 3245-AG56, by September 30, 2013 by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Office of Surety Guarantees, Suite 8600, 409 Third Street SW., Washington, DC 20416.
• Hand Delivery/Courier: Office of Surety Guarantees, 409 Third Street SW., Washington, DC 20416.
• Confidential business information (“CBI”) as defined in the User Notice at www.regulations.gov.  Please submit the information to Office of Surety Guarantees, 409 Third Street SW., Washington, DC 20416 or send an email to the Office of Surety Guarantees. Highlight the information that you consider to be CBI and explain why you believe the SBA should hold this information as confidential. The SBA will review the information and make the final determination whether it will publish the information.

SEC Seeks Input on Proposed Delay of Plan to Prevent Rapid Market Changes

by Shannon Allen

The Securities and Exchange Commission (“SEC”) issued a notice soliciting comments on a proposed Fourth Amendment to the Plan to Address Extraordinary Market Volatility (“Plan”).  Specifically, the Plan is calculated to prevent the kind of “sudden price movements” in the market that occurred “on the afternoon of May 6, 2010.”  The Plan creates “market-wide limit up-limit down requirements” intended to stop “trades in individual NMS Stocks . . . outside of . . .  specified Price Bands.”  The “limit up-limit down requirements” combine with “Trading Pauses . . . to accommodate more fundamental price moves . . . .”

In accordance with Section 11A of the Securities Exchange Act of 1934 (“Act”) and Rule 608, NYSE Euronext, on behalf of New York Stock Exchange, LLC (“NYSE”), NYSE MKT, LLC (“NYSE MKT”), and NYSE Arca, Inc. (“NYSE Arca”), and the following parties: BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., NASDAQ OMX BX, Inc., NASDAQ OMX PHLX, LLC, the Nasdaq Stock Market, LLC, and National Stock Exchange, Inc. (the “Participants”), filed a proposal to amend the Plan.  The Participants determined that the proposed amendment involves only technical matters, thus, under Regulation NMS, Rule 608 (b)(3)(iii) the amendment becomes effective upon filing with the SEC.

The Plan’s “limit up-limit down mechanism” is aimed at lessening the “negative impacts of sudden, unanticipated price movements in NMS Stocks” resulting in better protection for investors and “promoting a fair and orderly market.”  The Plan currently provides that mechanisms shall be “fully implemented by October 8, 2013.” 

The securities industry requested more time for Participants to test systems.  And Participants claim that providing this additional time to test the way the Plan functions “around the close,” especially “when there is a trading pause less than five minutes before the scheduled close of trading,” is essential and “in the public interest” and for the “protection of investors.”  The Participants propose to delay implementation of the Plan to December 8, 2013.

The SEC solicits comments from interested parties on the Fourth Amendment to the Plan.  All submissions should refer to File Number 4-631, should be submitted by September 24, 2013, and may be submitted by any of the following methods:

• Electronic Comments:  Use the SEC's Internet comment form;
• Email: to rule-comments@sec.gov (include File Number 4-631 on the subject line); or
• Paper:  Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

Meet Joe Whitley, 2013-2014 Section Chair

by Nina Hart

 

Meet Joe Whitley, the incoming Chair of the ABA Section of Administrative Law and Regulatory Practice.  Below, he shares his goals for the Section, insight into his experience with administrative law, and thoughts on challenges facing the legal profession.

1. Where do you work now and what led you to a career in law?

I am currently working at Greenberg Traurig (GT) law firm.  I have two offices – one in Atlanta, Georgia and the other in Washington, DC.  I serve as Chair of GT’s Atlanta White Collar Practice and work as a shareholder in GT’s White Collar Practice in the Washington, DC office. 

I have always wanted to be an attorney since I can remember.  The legal profession has always been a passion of mine and I am proud to have been given the privilege and opportunity to serve both in the public and now private sectors.

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

My experiences in administrative and regulatory law occurred mostly in the interpretation of regulations in criminal settings earlier in my career as a U.S. Attorney and a DOJ official in Washington, DC.  Regulations play a substantial role in the enforcement arena in health care, environmental cases and securities cases among others. 

Later, when I defended the practices of my clients, a strong knowledge of regulations gave me an advantage in my casework.  For example, the Resource Conservation and Recovery Act (RCRA) regulations played a crucial role in one case I defended after returning to private practice.

Finally, most recently when I served as first General Counsel at the Department of Homeland Security (DHS), my office had the overwhelming responsibility of coordinating the regulatory startup of DHS.  Fortunately, we had the great privilege of working with regulatory experts throughout the legacy agencies that made up the new Department.

3. Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process?  Or, for attorneys representing government agencies?

My counsel is to keep all of your options open early in your career, to consider practice areas outside of your comfort zone.  Sometimes success is defined as traveling in different directions.  Hopefully, more law firms and the government appreciate the need for younger lawyers to have a diversity of experience early in their career. 

I would advise attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process to join and be active in the Administrative Law Section, together with building a group of peers who practice administrative law.  There is no better way to get a grip on “best practices” than to have a group of colleagues to help you set the approach/tone for your casework.

4. As someone who has spent significant amounts of time in government and also in private practice, do you have any advice for attorneys who similarly hope to work in both the public and private sectors?

I know I may sound like a broken record on the American Bar Association’s Administrative Law & Regulatory Practice Section blog, but I believe we are the right place to start for young lawyers, both in the public and private sectors, who are looking for mentors in the practice of Administrative Law.

5. What do you think are the biggest challenges facing administrative law practitioners? How could the Section assist attorneys with these challenges?

I believe the challenges that AdLaw practitioners face may not be unique to them, but perhaps apply across the board to the practice of law in the United States.  Our still shaky economy is impacting the practice of law and the economics of law practice.  All of this is happening at a time when the relevance of administrative law has never been greater.

6. As incoming Chair of the Section, what are your priorities or goals for the Section this year?  Are there ways the Section members may be able to help you achieve these goals?

I want the AdLaw Section to continue its outstanding programs in my year as Chair, together with its many publications.  Also, I will be utilizing the various Committees of the Section to help grow our membership.  I will be giving a special emphasis to the private sectors and their concerns about overregulation.  Plus, I plan to build a stronger regional presence for the Section through the help of our Committees, Subcommittees and Liaisons.  Finally, I will be adapting and adjusting the Section’s web page and blog to make them more user-friendly.

7. What advice might you give to lawyers or law students interested in being more involved with the Section?  Perhaps you could explain how and why you became involved with the ABA and this Section.

The AdLaw Section’s motto, “Administrative Law – Everybody Does It!” can’t be any clearer.  I’d encourage lawyers and law students to sign up with the Section today.  The cost is minimal compared to other Sections and trust me, they won’t regret it.  The AdLaw Section is relevant to lawyers and law students in a number of ways.  For me, regulatory law was central to my time at DHS as the first General Counsel.  The startup of the Department required intense involvement by me in the regulatory process.  After my tenure at DHS, it was important to me to find the right home for a seminar on Homeland Security Law.  For the last eight years, the AdLaw Section has been home to the Homeland Security Law Institute.  We have started plans for the conference in March of 2014.  Don’t forget to “Save the Date!”

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?

The best way to start the familiarization process would be to take a course on Administrative Law while still in law school.  Outside of coursework, there are a number of outstanding publications by the Section that are worth mentioning: 

• Developments in Administrative Law and Regulatory Practice 2012
• Veterans Appeals Guidebook: Representing Veterans in the U.S. Court of Appeals for Veterans Claims
• Federal Agency Adjudication
• Federal Agency Rulemaking
• Federal Tort Claims Act
• The Complete Guide to Lobbying Law and Practice, 4th Edition
• Blackletter Administrative Law
• Judicial and Political Review
• Federal Preemption of State Law
• Federal Administrative Procedure Sourcebook
• Homeland Security: Legal and Policy Issue
• Realists Guide to Redistricting
• International Election Principles
• Government in the Sunshine Act
• Lawyers in Your Living Room
• The Cost-Benefit State: The Future of Regulatory Protection, Cass R. Sunstein
• Evolving Use and the Changing Role of Interstate Compacts
• Careers in Administrative Law
• Law of Counterterrorism
• Supreme Court Takings: A First Look at Koontz and Horne
• Cyber Security and Critical Infrastructure
• Manipulation or Arbitrage: Energy Traders, FERC, and the RTOs
• Administrative Law of the European Union

I would also encourage law students and young lawyers to attend the annual Administrative Law Institute in the Spring of 2014.  The conference provides a pre-program workshop on “Administrative Law 101” which gives a crash course in Administrative Law.  Many of our attendees have found it to be useful.

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

I enjoy sports – mostly watching these days.  I used to play basketball in high school and college.  I have a small garden that I get to toil in every once in a while.  I also enjoy American history.  And of course, there is my love of books – I’ve purchased many more than I will ever read.

Register Now for the 2013 Administrative Law Fall Conference

Registration is open for the 2013 Administrative Law Fall Conference. The Conference will be held November 7 and 8 at Georgetown University in Washington D.C. There will be CLE programming on such topics as Statutory Interpretation, Rulemaking 101, Developments in Administrative Law Technology, and Rulemaking in Comparative Perspective. Award and Scholarship recipients will also be honored. Find the brochure and registration forms online here.