CNCS Seeks Comment on Revisions to Enrollment and Exit Forms

by Shannon Allen

The Corporation for National and Community Service (“CNCS”) issued a notice document seeking input on “proposed revised enrollment and exit forms” called “National Service Trust Enrollment Form and National Service Trust Exit Form.” AmeriCorps members and program staff use these forms to enroll in the “National Service Trust” and to “document the completion of AmeriCorps member’s term of service.”  These forms are required for members to receive a “Segal Education Award” and to meet additional obligations of the program.  In addition, this information is electronically entered into the “National Service Trust’s database.”

Specifically, CNSC is renewing the current information collection with changes to “demographics questions” (e.g. income levels, disability, veteran’s status, citizenship status, and educational levels”).  The CNSC anticipates that the information collection will “otherwise be used in the same manner” as current forms.  In addition, the CNCS wishes to “continue using the current forms” until updated forms are approved by the Office of Management and Budget (“OMB”).

In particular, the CNCS is interested in comments that:

1. evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
2. evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used
3. enhance the quality, utility, and clarity of the information to be collected; and
4. minimize the burden of the collection of information on those who are expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g. permitting electronic submissions of responses).

Comments are due by February 10, 2014 and may be submitted by any of the following methods:

• By mail sent to: Corporation for National and Community Service, Attention Bruce Kellogg, 8309C, 1201 New York Avenue NW., Washington, DC 20525;
• By hand delivery or by courier: to the CNCS mailroom at Room 8100 at the mail address given above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except Federal holidays; or
• Electronically: through www.regulations.gov.

Cost-Benefit Analysis & EO 12866: A Twenty-Year Retrospective - Part IV

by Nina Hart

On October 28, 2013, New York University’s Institute for Policy Integrity hosted its Fifth Annual Cost-Benefit Analysis & Issue Advocacy Workshop.  One highlight was an afternoon panel reflecting on the consequences of Executive Order 12866 of 1993, which reaffirmed and expanded on the Reagan Administration’s requirement that significant executive agency regulations be subject to cost-benefit analysis.  The panel featured Boris Bershtyn, former Acting Director of OIRA (2011-13) and General Counsel for OMB (2012-13); Sally Katzen, former Director of OIRA (1993-98); C. Boyden Gray, former White House Counsel (1989-93); and E. Donald Elliott, former Assistant Administrator and General Counsel for the EPA (1989-91).  Richard Revesz, dean emeritus and professor at NYU School of Law, moderated the panel.  Notice and Comment is pleased to present series of posts by blogger Nina Hart on some of the critical issues discussed during the panel and key policy recommendations. 

Agencies are the Most Effective “Lobbyists” but Outside Groups Can Still Influence OIRA

Two of the panelists, Elliott and Katzen, offered their thoughts on what groups influenced OIRA and how.  Elliott, as a former agency counsel and current “outside” practitioner, indicated that agencies view themselves as advocates for their regulations, rather than neutral experts, and draft their Regulatory Impact Analyses (RIAs) accordingly – in effect, “gaming” the regulatory process, which has made it harder for OIRA to second-guess the agencies.

           

Katzen agreed with Elliott’s analysis, but stated that non-agency groups could also impact OIRA’s process if they used their time wisely.  In other words, don’t waste time lecturing OIRA staffers on the law, but identify alternatives and new facts that will force OIRA to rethink the analysis put before it by an agency.  Katzen added that meetings between OIRA and outside groups are largely iterative – OIRA listens and won’t give any indication that it will take the group’s presentation under advisement.  As Katzen concluded, it’s only after a group leaves that a staffer might ask if, based on these facts, the Office needs to look into the issue in greater detail.

The takeaway: if you are an outside group, try to get the agency to “carry the ball” for you.  If that isn’t possible, present new alternatives and facts to OIRA and hope for the best.

CPSC Seeks Input on New Guidelines for Voluntary Recall Notices

by Shannon Allen

The Consumer Product Safety Commission (“CPSC”) seeks comment on a proposed interpretive rule providing “principles” and “guidelines” for the content and form of “voluntary recall notices.” Companies issue recall notices per “corrective action plans” under Section 15 of the Consumer Product Safety Act (“CPSA”).  Current rules require “notice to the public” of the corrective action plan, but do not provide guidance about the details that should be included in a recall notice. This notice of proposed rulemaking provides such guidance by articulating CPSC expectations for “voluntary remedial actions” and “recall notices.”

In general, the proposed rule would establish a new subpart D, titled, “Principles and Guidelines for Voluntary Recall Notices,” in part 1115 of title 16 of the Code of Federal Regulations and would add a new paragraph to 16 CFR 1115.20.

Specifically, 16 CFR 1115.20 states that “the [CPSC] will attempt to protect the public from substantial product hazards by seeking . . . voluntary remedies,” including “corrective action plans.”  The rules further provide that “[c]orrective actions shall include, as appropriate: . . . (xi) An agreement that the Commission may publicize the terms of the plan to the extent necessary to inform the public of the nature and extent of the alleged substantial product hazard and of the actions being undertaken to correct the alleged hazard presented.”  The current regulations, however, do not provide guidance as to the “form or content” of the “notice issued” by the CPSC as a part of “a corrective action plan.” Thus, the CPSC proposes new interpretive rules to set forth such principles and guidelines.

Corrective action plans, negotiated with the CPSC, allow the CPSC to “tailor remedies” to specific circumstances and the “associated health and safety risks” at issue.  These new rules provide wording that allows the CPSC to “pursue compliance program requirements” during the negotiation of “corrective action plans” and permit inclusion of a “corresponding reference” to “compliance program requirements” in an associated “voluntary recall notice.”

The CPSC anticipates the end result in articulating guidelines “regarding the content of voluntary recall notices” will be:

1. greater efficiency during recall negotiations,
2. greater predictability for the regulated community in working with the agency to develop voluntary recall notice content,
3. timelier issuance of recall announcements to the public, and
4. inclusion of compliance program requirements as an element of voluntary corrective action plans would echo compliance program requirements incorporated as part of recent civil penalty settlement agreements.

Comments are due by February 4, 2014.  Interested parties wishing to comment should include the agency name and docket number in their comment (Consumer Product Safety Commission, identified by Docket No. CPSC-2013-0040).  Comments may be submitted electronically or in writing:

• Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments. The Commission is no longer directly accepting comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages submitting electronic comments by using the Federal eRulemaking Portal, as described above.
• Written Submissions: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

Meet Tasheaya Ellison, Senior Tax Attorney at Shell Oil Company

by Nina Hart

Meet Tasheaya Ellison, a senior tax attorney at Shell Oil Company.  Below, she shares her career path, advice for attorneys considering a career in administrative law, and thoughts on how to approach the rulemaking process.

1. What led you to a career in law?

I have wanted to be an attorney since I was 6 years old, when my class took a field trip to the courthouse to watch a trial.  Law is interesting because every day is different and every transaction/case is different (never a dull moment).  I originally went to law school to pursue a career in white-collar crime litigation, and I clerked in the District Attorney's Office during the summers during law school to get litigation experience.  During my second year of law school, a third-year law student told me that Tax Law would probably be on the Oregon State Bar Exam the year that I would sit for the bar, so I should take a tax course.  I took the tax course from an amazing professor, Prof. Nancy Shurtz, and I later became one of her student assistants.  Prof. Shurtz encouraged my to pursue a LL.M. in Taxation, which I did, and that led to a career in International Corporate Tax.

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

During my career, I have worked for a Big Four accounting firm, Fortune 100 companies, and the federal government.  My Federal government position was as an Attorney-Advisor in the National Office of the IRS (Office of the Chief Counsel International).

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

While working as a tax consultant at a Big Four accounting firm, I was asked to prepare a presentation on a newly issued tax regulation.  As I was reading the preamble to that regulation, I realized that I wanted to work for the National Office of the IRS so that I could work on tax regulations and other tax policy projects.  That evening I checked for openings at the Office of Associate Chief Counsel International and there was one open position with a closing date that was two days away.  I sent my application in the next day overnight mail and I got the position.

4. 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?

I would recommend that any attorney preparing to handle administrative law cases or participating in the rulemaking process focus on the big picture.  Although you may be working on case or rulemaking project, take a step back and objectively think about the impact this case or rule will have others cases.  One of the things I enjoyed most about working for the Office of the Chief Counsel International was that I had the opportunity to work on rulemaking projects that impact many taxpayers, so it was important to remain objective in my analysis of what is the "best answer" for this situation.

5. From your experience, do you perceive a need for different skills or mindsets of attorneys who work in-house as opposed to those who work in a more traditional litigation setting?  In terms of the substantive work done by in-house counsel, how does that differ from traditional litigation?

When I worked for the federal government, I was more focused on being a subject matter expert and now that I work in-house, I have the opportunity to focus solely on one company/client.  I spend a lot of time getting to know the company and thinking of ways to deliver value for the company through my role as an attorney.

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

I would encourage administrative law practitioners to have the courage to take risks to pursue their career goals and dreams.  These risks can include taking on new challenging roles, projects/assignments, or making the decision to pursue an in-house role.  Whenever I have been faced with difficult career decisions (i.e. leaving the federal government and becoming an in-house attorney), I force myself to objectively consider (1) where I want to be in my career in 5, 10, and 15 years, and (2) what is the "best" (not necessarily the easiest or most comfortable) next step to progress my career.

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

My favorite hobbies are running, golf, and studying languages with my children (Mandarin Chinese and Spanish).

Cost-Benefit Analysis & EO 12866: A Twenty-Year Retrospective - Part III

by Nina Hart

On October 28, 2013, New York University’s Institute for Policy Integrity hosted its Fifth Annual Cost-Benefit Analysis & Issue Advocacy Workshop.  One highlight was an afternoon panel reflecting on the consequences of Executive Order 12866 of 1993, which reaffirmed and expanded on the Reagan Administration’s requirement that significant executive agency regulations be subject to cost-benefit analysis.  The panel featured Boris Bershtyn, former Acting Director of OIRA (2011-13) and General Counsel for OMB (2012-13); Sally Katzen, former Director of OIRA (1993-98); C. Boyden Gray, former White House Counsel (1989-93); and E. Donald Elliott, former Assistant Administrator and General Counsel for the EPA (1989-91).  Richard Revesz, dean emeritus and professor at NYU School of Law, moderated the panel.  Notice and Comment is pleased to present series of posts by blogger Nina Hart on some of the critical issues discussed during the panel and key policy recommendations. 

Changes in the Political Landscape Present Separate Challenges to OIRA’s Analytic Capacity

One of the arguments often asserted for creating OIRA is the necessity of having a guardian of cost-benefit analysis.  Revesz asked if that rationale was justified considering some of the new regulations stemming from the political issues du jour – namely, regulations from Dodd-Frank and the Department of Homeland Security.

           

First, on DHS regulations, Bershtyn stressed that aside from the typical uneven quality of expertise in OIRA, this area presented unique challenges to the idea that OIRA had the analytic capacity to address the problem.  Specifically, DHS deals with preventing infrequent, catastrophic events, and itself has only a small staff with limited economic analytical ability.  How does OIRA, not versed in national security, deal with its internal lack of expertise and DHS’ potential lack of economic expertise?  Elliott concluded that this presented an even more compelling case for requiring or at least “normalizing” interagency review.  Even though outsiders think of OIRA as doing its own review, the reality is that OIRA often convenes discussion teams but not often enough to make it part of the bureaucratic culture.

           

On financial regulations arising from Dodd-Frank, Gray said this presented a strong case for extending OIRA review to the independent agencies.  Without such review, OIRA might not be able to get all the key players to the table for input on how to avoid conflicts or reach the best outcome.  Katzen said that President Reagan had been the first to ask whether OIRA could constitutionally review independent regulations, and the Office of Legal Counsel informally said yes.  The issue then was that Vice-President Bush did not approve.  Then, President Clinton asked and got the same answer, but Vice-President Gore objected.  Katzen admitted that, at the time, she agreed with Gore, but she has since changed her mind because all agencies go about rulemaking in the same way.  She said that coordination among the Fourth Branch is crucial to ensuring careful analysis and review.  However, she concluded that OIRA most likely lacks the resources to oversee such a large expansion of its authority, but in an ideal world, this expansion would occur.

Multiple Agencies Seek Comment on Flood Insurance Regulation Changes

by Shannon Allen

The Office of the Comptroller of the Currency (“OCC”), Board of Governors of the Federal Reserve System (“Board”), Federal Deposit Insurance Corporation (“FDIC”), the Farm Credit Administration (“FCA”), and the National Credit Union Administration (“NCUA”) (collectively, the “Agencies”) seek input on proposed amendments to regulations on loans in “areas having special flood hazards” in order to apply provisions of the “Biggert-Waters Flood Insurance Reform Act of 2012.”  In particular, this notice of proposed rulemaking would create requirements regarding the “escrow of flood insurance payments,” the receiving of “private flood insurance coverage,” and the “force-placement of flood insurance.”   In addition, the OCC and the FDIC propose to “integrate their flood insurance regulations . . . .”

Federal flood insurance statutes were revised by the Biggert-Waters Flood Insurance Reform Act of 2012 (the “Act”).  Two sections regarding the “escrow of flood insurance payments” and “acceptance of private flood insurance coverage” changed the Flood Disaster Protection Act (“FDPA”) that require the Agencies to issue implementing regulations.  This proposal revises regulations as follows:

1. this proposal requires regulated lending institutions to escrow premiums and fees for flood insurance for any loans secured by residential improved real estate or a mobile home, unless the institutions qualify for the statutory exception;
2. this proposal mandates regulated lending institutions accept private flood insurance that meets the statutory definition to satisfy the mandatory purchase requirement;
3. this proposal includes new and revised sample notice forms and clauses;
4. this proposal amends the force-placement of flood insurance provisions to clarify that a lender or its servicer has the authority to charge a borrower for the cost of flood insurance coverage commencing on the date on which the borrower's coverage lapsed or became insufficient;
5. this proposal makes technical corrections; and
6. the OCC and the FDIC propose to integrate their flood insurance regulations for national banks and Federal savings associations and for State non-member banks and State savings associations, respectively.

Interested parties are invited to comment specifically on the following:

• whether the proposed collection of information is necessary for the proper performance of the Agencies’ functions; including whether the information has practical utility;
• the accuracy of the Agencies’ estimate of the burden of the proposed information collection, including the cost of compliance;
• ways to enhance the quality, utility, and clarity of the information to be collected; and
• ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments should be submitted jointly to all of the Agencies, using the title “Loans in Areas Having Special Flood Hazards” by December 10, 2013 in one of the following ways:

• Federal eRulemaking Portal:  http://www.regulations.gov  Enter “Docket ID OCC-2013-0015” in the Search Box and click “Search;”
• 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; OR
• Fax: (571) 465-4326.

Cost-Benefit Analysis & EO 12866: A Twenty-Year Retrospective - Part II

by Nina Hart

On October 28, 2013, New York University’s Institute for Policy Integrity hosted its Fifth Annual Cost-Benefit Analysis & Issue Advocacy Workshop.  One highlight was an afternoon panel reflecting on the consequences of Executive Order 12866 of 1993, which reaffirmed and expanded on the Reagan Administration’s requirement that significant executive agency regulations be subject to cost-benefit analysis.  The panel featured Boris Bershtyn, former Acting Director of OIRA (2011-13) and General Counsel for OMB (2012-13); Sally Katzen, former Director of OIRA (1993-98); C. Boyden Gray, former White House Counsel (1989-93); and E. Donald Elliott, former Assistant Administrator and General Counsel for the EPA (1989-91).  Richard Revesz, dean emeritus and professor at NYU School of Law, moderated the panel.  Notice and Comment is pleased to present series of posts by blogger Nina Hart on some of the critical issues discussed during the panel and key policy recommendations. 

Part II - OIRA’s Lack of Personnel Challenges its Capacity in terms of Numbers and Expertise

While many of the initial challenges discussed by the panelists were rooted in a sheer dearth in numbers, a related problem is, as Katzen put it, “uneven” expertise.  “I once had someone ask me what an aquifer was,” she admitted.  Bershtyn added that OIRA consists mostly of younger staffers in their 30s, which means they are often grappling with policy issues for the first time.  That said, Katzen and Bershtyn stressed that OIRA has always relied on other agencies and staffers within White House departments such as OMB, the Council of Economic Advisors, and the Office of Science & Technology Policy to fill the gaps.  While this has proven effective at providing OIRA with much-needed assistance, it is not an ideal solution.           

Bershtyn, Katzen, and Gray also stated that OIRA has suffered from “brain drain” due to pay freezes, furloughs, and the ongoing budget fights in Washington.  Gray said that he sees a role for OIRA in promoting greater and routine coordination on regulations between agencies, and this would be easy to solve without greater funding, notwithstanding the agency turf wars that might impede this goal.  As Gray noted, in the early days of the Bush Administration, the fights between the DOJ and DHS were “legendary,” often forcing officials to ask, “are we talking to each other today?”  Thus, if the ultimate hope is to deal with lack of expertise internally, then OIRA will require a much larger budget.