USDA Seeks Comment on Expanded Nondiscrimination Policy

by Shannon Allen

The United States Department of Agriculture (“USDA”) seeks comment on proposed amendments to regulations on “nondiscrimination” in “programs” or “activities” conducted by the USDA.  This notice of proposed rulemaking aims to “clarify the roles and responsibilities” of the USDA’s Office of the Assistant Secretary for Civil Rights (“OASCR”) and USDA agencies in “enforcing nondiscrimination” in order to strengthen USDA’s “civil rights compliance.”  Ultimately, the Secretary would like to hold the USDA and its employees “accountable for a nondiscrimination standard equal to or greater than the standard recipients of Federal financial assistance must follow.”

In order to promote the “early resolution of customer complaints,” the amendment requires OASCR to offer Alternative Dispute Resolution (“ADR”) services, where appropriate.  In addition, the proposed amendments provide that each USDA agency shall, “for civil rights compliance purposes, collect, maintain, and annually compile data” regarding the “race, ethnicity, and gender of all conducted program applicants and participants by county and State.” Lastly, the USDA proposes to change regulations by expanding “protection from discrimination in programs or activities” performed by the USDA, by including “political beliefs and gender identity.”  The purpose of this part of the amendment is to make “explicit protections against discrimination based on USDA program customers’ political beliefs or gender identity.”

The USDA believes these amendments will “afford several benefits” including, but not limited to:

• compliance with the requirements of the 2008 Farm Bill through standardized collection of data; 
• strengthening of the USDA’s agency compliance monitoring with regard to civil rights requirements; 
• enhancing the USDA’s ability to resolve complaints through the expansion of ADR; 
• a small net annual savings to the USDA; 
• improved protection of USDA customers’ rights by ensuring that USDA conducted programs are delivered fairly and consistently; 
• providing a cost-effective opportunity for early complaint resolution; 
• enhancing customer experience with the USDA; 
• aligning regulations with USDA’s civil rights goals; 
• prohibiting discrimination consistent with the Food Stamp Act of 1964, the Civil Service Reform Act of 1978, and the Secretary of Agriculture’s civil rights policy statements by adding the protection of political beliefs; 
• recognizing USDA program customers’ gender expression, including how USDA program customers act, dress, perceive themselves, or otherwise express their gender; and 
• ensuring equal treatment of transgender and other gender nonconforming individuals in USDA’s conducted programs and activities.

The USDA invites interested parties to submit comments (referencing Docket No. 0503-AA52) before January 27, 2014 by:

• Submitting general comments on the proposed amendments to: Anna G. Stroman, Chief, Policy Division, at Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington DC, 20250; or 
• Submitting comments on the information collection or recordkeeping requirements to:  the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), attention: Desk Officer for Agriculture, Washington, DC 20503.

NLRB v. Noel Canning Panel Discussion

On Friday, January 10, 2014 the Section will host a webinar entitled NLRB v. Noel Canning: The President, Congress, and the Power to Make Recess Appointments.  The U.S. Supreme Court is set to hear oral arguments in NLRB v. Noel Canning on January 13, 2014.  The webinar will discuss the issues before the Court, featuring the authors of two prominent amicus briefs in the case.  The webinar will also kick off the Section's new project on Supreme Court litigation where we will monitor and analyze cases involving regulatory agencies and administrative law issues.  See the full program brochure here.  Contact Angela Petro with any questions at (202) 662-1582 or angela.petro@americanbar.org.  Hope you can participate!

IRS Seeks Input To Clarify Political Activities For 501(c)(4) Organizations

by Shannon Allen

The Internal Revenue Service (“IRS”) seeks input on proposed rules guiding “tax-exempt social welfare organizations” on “political activities related to candidates” that will not be recognized as the promotion of “social welfare.” Currently, a group that “primarily” participates in activities that “promote social welfare” can be recognized as operating “exclusively for the promotion of social welfare” (potentially qualifying for tax-exempt status), even though it participates in “some political campaign intervention.”

Specifically, section 501(c)(4) states that “[a]n organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community.” Treas. Reg. § 1.501(c)(4)-1(a)(2)(i). An organization “embraced” within section 501(c)(4) is one that is “operate[s] primarily for the purpose of bringing about civic betterments and social improvements.”Id. [Further,] “[t]he promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.” Treas. Reg. § 1.501(c)(4)-1(a)(2)(ii).  

With this notice of proposed rulemaking (“NPRM”), both the Treasury Department and the IRS aim to provide more “definitive rules” regarding “political activities related to candidates” instead of the current “fact-intensive analysis.” This proposed amendment to Treas. Reg. § 1.501(c)(4)-1(a)(2) will “identify specific political activities” that would be recognized as “candidate-related political activities” that do not “ promote social welfare.”

The Treasury Department and the IRS seek comments from the public and from a broad range of organizations.  Generally, comments are requested on all aspects of the proposed rules.  In particular:

• whether the use of the “primarily” standard in section 501(c)(4) should be modified; 
• if the “primarily” standard is retained, whether the standard should be defined with more precision or revised to mirror the standard under the section 501(c)(3) regulations; 
• what proportion of an organization’s activities must promote social welfare for an organization to qualify under section 501(c)(4); 
• whether additional limits should be imposed on any or all activities that do not further social welfare; 
• how to measure the activities of organizations seeking to qualify as section 501(c)(4) social welfare organizations for these purposes; 
• the advisability of adopting an approach to defining political campaign intervention under section 501(c)(3) similar to the approach set forth in these regulations, either in lieu of the facts and circumstances approach reflected in Rev. Rul. 2007-41 or in addition to that approach (e.g. by creating a clearly defined presumption or safe harbor); 
• whether any modifications or exceptions would be needed in the section 501(c)(3) context and, if so, how to ensure that any such modifications or exceptions are clearly defined and administrable; 
• whether there are other specific activities that should be included in, or excepted from, the definition of candidate-related political activity for purposes of section 501(c)(4); and 
• how the proposed addition or exception is consistent with the goals of providing more definitive rules and reducing the need for fact-intensive analysis of the activity. 

Comments must be received by February 27, 2014 in one of the following ways:

1. Mail: send submissions to: CC:PA:LPD:PR (REG-134417-13), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044; 
2. Hand-delivery:  Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-134417-13), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC; or 
3. Electronically: via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-134417-13).

FCC Seeks Input On Proposed Rules Implementing CVAA

by Shannon Allen

The Federal Communications Commission (“FCC”) seeks comment on proposed rules implementing the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”).  In this Further Notice of Proposed Rule Making (“FNPRM”), the FCC seeks input on issues regarding the implementation of Sections 204 and 205 of the CVAA.  Sections 204 and 205, generally charge the FCC with promulgating rules mandating that “digital apparatus” and “navigation device user interfaces,” used in order to view “video programming,” be “accessible to” and “usable by” people who are “blind or visually impaired.” 

First, Section 204 specifically directs the FCC to require that “appropriate built-in apparatus functions” be made accessible to blind or visually impaired people.  Second, Section 205 specifically directs the FCC to require that “on-screen text menus and guides provided by navigation devices” be made accessible upon request by blind or visually impaired individuals. Third, both Sections require covered devices provide a mechanism that is “reasonably comparable to a button, key, or icon designated for activating” closed captioning, video description, and accessibility features.

The FCC specifically seeks comment on the following: 

1. whether the FCC should adopt rules to define the term “usable” for purposes of implementing Section 204 of the CVAA; 
2. whether the phrase “accessibility features” in Sections 303(aa)(3) and 303(bb)(2) of the CVAA includes user display settings for closed captioning and whether those sections can be interpreted to require covered entities to ensure that consumers are able to locate and control such settings; 
3. whether there are possible sources of authority for the FCC to require Multichannel video programming distributors (“MVPDs”) to ensure that video programming guides and menus that provide channel and program information include high level channel and program descriptions and titles, as well as a symbol identifying the programs with accessibility options; 
4. the FCC should require manufacturers of apparatus covered by Section 203 of the CVAA to provide access to the secondary audio stream used for audible emergency information by a mechanism reasonably comparable to a button, key, or icon; 
5. whether the FCC should impose additional notification requirements on MVPDs regarding the availability of accessible equipment and, if so, what those notification requirements should be; and 
6. whether the FCC should tentatively conclude that equipment manufacturers subject to Section 205 should be required pursuant to Section 205(b)(1) to inform consumers about the availability of audibly accessible devices and accessibility solutions.

Comments are due by February 18, 2014 and interested parties are encouraged to submit comments, identified by MB Docket Nos. 12-108, 12-107, by any of the following methods: 

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
• Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments. 
• Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. 
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: (202) 418-0530 or TTY: (202) 418-0432.

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

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 12866of 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 conclude this series of posts by blogger Nina Hart on some of the critical issues discussed during the panel and key policy recommendations.

Regardless of Whether OIRA is Viewed as a Political Entity, the Office has Definitively Changed the Regulatory Landscape

The panelists all concurred that OIRA is not an apolitical actor in the sense of being a neutral party, but characterized the political nature of OIRA in differing terms. Ultimately, however, each panelist agreed that the CBA process in place has fundamentally changed how rulemaking is done in at least two ways: 1) all agencies use the same process, and 2) the public knows what the regulations look like in draft form and final form.

Katzen said that OIRA serves the president’s agenda, but helps to implement it through a parallel process. Its major contribution is subjecting policies to different views within the Executive Branch.

Elliott characterized OIRA as being a counterweight to the agencies, where “politics is not underrepresented.” In other words, OIRA adds technocrats to the mix to rein in the agencies.

Bershtyn added that transparency is the key to the process, and OIRA has greatly increased the transparency of the regulatory process, albeit to an imperfect degree. Without the review process, agency heads would still communicate with the White House, but no one would know.

Elliott added that these conversations between the players are often the force behind the changes made between the draft regulation sent to OIRA and the final form, but no one ever knows why certain changes were made. To remedy the uncertainty, it might be occasionally appropriate for agencies to issue statements concerning its reasoning.

The panelists concluded the session by reiterating that OIRA changed the political and analytical dynamics of rulemaking. And, in the long run, this has proven to be and will remain a positive change for government.