2012 Spring Conference Princeton, New Jersey

Transcription

1 FRIDAY, APRIL 20, 2012 TIME SESSION LOCATION Continental Breakfast & Registration 9:30 am 10:15 am 10:15 am 10:30 am 10:30 am 12:00 pm 2012 Spring Conference Princeton, New Jersey Welcome and Introductions Maximizing the Value of Agency Websites (NON- CLE PANEL) Friend Center, Convocation Room, Princeton University Friend Center, Convocation Room, Princeton University Friend Center, Convocation Room, Princeton University 12:00 pm 1:30 pm 1:45 pm 3:15 pm 3:15 pm 3:30 pm 3:30 pm 5:00 pm 5:00 pm 5:45 pm 9:30 pm 10:30 pm Lunch Keynote: Technological Transformations And Public Value: The Case of Open Government by Theresa A. Pardo (NON-CLE PANEL) Effective Public Engagement in erulemaking and Beyond (CLE PANEL) Break Ubiquitous Monitoring, Information Flows and Privacy (CLE PANEL) Reception Chair s Hospitality Suite Friend Center, Convocation Room, Princeton University Friend Center, Convocation Room, Princeton University Friend Center, Convocation Room, Princeton University Friend Center, Convocation Room, Princeton University Laurie House Living Room, Chauncey Hotel & Conference Center SATURDAY, APRIL 21, 2012 TIME SESSION LOCATION 8:00 am 8:15 am - 12:00 pm Continental Breakfast Council Meeting The Barn, Chauncey Hotel 12:00 pm 5:30 pm Free Time to Explore Princeton 6:30 pm 9:30 pm Reception Dinner with Special Guest Jonathan Oberlander Upper & Lower Brodsky Sundial Room Chauncey Hotel 9:30 pm 10:30 pm Chair s Hospitality Suite Laurie House Living Room, Chauncey Hotel SUNDAY, APRIL 22, 2012 TIME SESSION LOCATION 8:00 am 8:30 am - 12:00 pm Continental Breakfast Council Meeting The Barn, Chauncey Hotel

2 Council Meeting Agenda Saturday, April 21, 2012 Time Subject Materials 7:00 am 9:00 am Full Breakfast in the Hotel Dining Room is included for hotel guests. Continental Breakfast will be provided in the meeting room. 8:30 am 8:35 am Call to Order, Introductions, Herz 8:35 am 8:50 am American University Washington College of Law Report, Edwards 8:50 am 9:20 am Chair's Report, Herz Approval of Feb 4 5, 2012 Meeting Minutes DC Rent Issue, GPSLD Joint Dues, s to Bus Law Section re: STOCK Act and CFPB rulemaking, Letter to President Elect, Cybersecurity Legislative Developments 9:20 am 9:35 am Report of the Chair Elect, Conrad 2013 Spring Meeting, 8 th Annual Administrative Law Institute 9:35 am 9:50 am Report of the Immediate Past Chair, Rusch Membership Committee, SOC Technology Committee, SOC project report 9:50 am 10:20 am Report of the Executive Branch Liaison, Weiss 10:20 am 10:50 am Proposed Resolution: Campaign Finance Disclosure, Young 10:50 am 11:20 am Proposed Resolution: International Regulatory Cooperation, Mahboubi 11:20 am 11:50 am Proposed Resolution: Government Contractor Ethics, Burrows 11:50 am 11:55 am International Law Co Sponsorship Request: Haiti Family Reunion Resolution 11:55 am 12:25 pm Blackletter Statement of Federal Administrative Law, Murphy, Funk Chauncey Resort Dining Room Minutes Joint Dues Issue, STOCK and CFPB Letters, POTUS letter, Cybersecurity Institute Agenda Membership statistics Draft Resolution Draft Resolution Draft Resolution Draft Resolution Scope, Availability of Judicial Review Sunday, April 22, 2012 Time Subject Materials 8:30 am 8:35 am Call to Order, Introductions, Herz 8:35 am 8:50 am Nominating Committee Report, Funk 8:50 am 9:00 am Publications Committee Report, Herz Pubs Report Lowered Pricing on books 9:00 am 9:20 am Report of Legislative Branch Liaison, Callanan Blackletter Statement, Murphy, Funk Standing, Government Management 9:20 am 10:20 am Incorporation by Reference Cover, OMB request 10:20 am 10:50 am Plain Regulations Act Cover, Draft HR :50 am 11:20 am E U.S. Code, Conrad, Bruce Draft Letter 11:20 am 11:35 am ABA Commission on Racial & Ethnic Diversity in the Profession, Shavers 11:35 am 11:45 am Law Student Report, Raiders 11:50 am 12:00 pm Old Business/New Business, Herz 2013 Budget to be approved at Annual Meeting Report Diversity Plan Current Financials

3 To: From: Re: Section Council Michael Herz Joint Dues with Government and Public Sector Lawyers Division Our Section has a long-standing arrangement with the Government and Public Sector Lawyers Division (GPSLD) regarding joint dues. We are one of many Sections with such an arrangement. GPSLD dues are $40; joint dues are as follows: Administrative Law and Reg. Practice $59.00 Antitrust Law Section $60.00 Criminal Justice Section $60.00 Dispute Resolution $69.00 Environment, Energy and Resources $85.00 General Practice, Solo and Small Firm $68.00 Health Law $60.00 International Law and Practice $80.00 Public Contract Law Section $65.00 Public Utility, Communications and Transportation Law $80.00 State and Local Government Law $68.00 Tort and Insurance Practice Section $70.00 There is no particular rhyme or reason to these numbers. For example, Dispute Resolution s dues are $45 and joint dues are $69; SEER s dues are $75 and joint dues $85; antitrust and litigation dues are both $60 and joint dues are $60. But our arrangement is especially peculiar: our Section dues are $60, but you can join our Section and GPSLD for $59. (Second prize, two weeks.) I would propose that we make this slightly more rational by increasing the joint dues figure to a number that is higher than either entity s dues alone but lower than the sum of the two. I would suggest $69, which balances the desire to make the deal attractive against the goal of attracting some members. (Apparently at present there are only 200 ABA members who are members of both our sections. That suggests there is room for growth.) I have spoken to my counterpart at GPSLD, Susan Low, and her position is that what the joint dues fee should be is up to us, but that they will take $30 of whatever it is, as they do now. Any such change will require approval of the big ABA, but must begin with the Section Council.

4 From: To: Subject: Date: Michael E Herz Kiefer, Anne FW: Expedited Blanket Authority Request Tuesday, April 10, :14:36 AM For inclusion in the Council meeting materials under Chair s Report. From: Michael E Herz Sent: Friday, March 02, :25 AM To: lrusch@lawschool.gonzaga.edu Cc: Ronald Levin (Levin@wulaw.wustl.edu); vburrows@crs.loc.gov; 'Hughes, Jack (JHughes@blg.com)' Subject: Expedited Blanket Authority Request Hi Linda I m writing in my capacity as Chair of the Ad Law Section with regard to the Business Law Section s expedited BA request concerning the STOCK Act. Don t worry there s no real problem. But we would like to suggest a couple of changes in light of ABA policy on lobbying disclosure as reflected in the August 2011 Board of Governors resolution. Our concern is not the basic position you re taking; it s only a matter of the wording of one paragraph. The issue has to do with consistency with the resolution, which can be found here. The resolution calls for expansion of the Lobbying Disclosure Act in various respects. None are inconsistent with your position regarding section 17. But there is some tension between the resolution (and its underlying report) and the language in the paragraph on the bottom of page 2 of your letter. We fear this inconsistency is potentially embarrassing and could undercut the effectiveness of both the lobbying resolution and your letter. There are two problems with this paragraph. First, it contrasts the proposed Section 17 with the twenty percent of time threshold test in the current LDA, implicitly endorsing that threshold. However, the ABA resolution calls for the twenty percent criterion to be narrowed. Secondly, the letter complains that the bill s definition of political intelligence activities would demand disclosure of insignificant ministerial efforts on behalf of clients. But the language in the definition runs exactly parallel to, and is taken from, mutatis mutandis, the definition of lobbying activities in the LDA itself. 2 U.S.C. 1602(7). The ABA resolution (and the task force report on which it was based which is attached, though it s way more than you need) evinced no disapproval of that definition. In fact, the resolution favors extending its scope to encompass disclosure of similar activities that are performed by entities cooperating with the lobbying firm. The resolution and report recognize the important principle that if certain contacts or activities are covered, supporting activities should be as well; those supporting activities should not be ignored as mere insignificant ministerial efforts. I don t think any of this is a problem for your letter. It has nothing to do with the bottom line or the core of your argument. But we would suggest modifying some of the language. We have drafted some possible revisions to the paragraph in question that leave its point untouched but resolve the tension with the ABA Resolution. I m attaching both a clean and a red-lined version.

5 Please let me know how this strikes you. I realize time is of the essence; if you want to talk on the phone, the best number is Thanks, Michael Michael Herz Chair, ABA Section of Administrative Law and Regulatory Practice Visiting Research Scholar, Program in Law and Public Affairs, Princeton University Arthur Kaplan Professor of Law, Cardozo School of Law (609) (o) (917) (c) herz@yu.edu

6 From: To: Cc: Subject: Date: Michael E Herz Lampe, Donald; Terry Franzen; Daly Tobias, Susan Kiefer, Anne; Eckman, Rick; "lbarr@goodwinprocter.com" RE: CFSC Letter re: CFPB proposal Wednesday, April 11, :46:17 AM Dear Don Glad to be of service, and thanks for giving our comments such consideration. I hope the Board takes your submission as seriously as you took ours! Best, Michael Michael Herz Chair, ABA Section of Administrative Law and Regulatory Practice Visiting Research Scholar, Program in Law and Public Affairs, Princeton University Arthur Kaplan Professor of Law, Cardozo School of Law (609) (o) (917) (c) herz@yu.edu From: Lampe, Donald [mailto:dlampe@dykema.com] Sent: Wednesday, April 11, :37 AM To: Terry Franzen; Michael E Herz; Daly Tobias, Susan Cc: Kiefer, Anne; Eckman, Rick; 'lbarr@goodwinprocter.com' Subject: RE: CFSC Letter re: CFPB proposal Michael, these comments are very helpful. Based on your feedback and our own internal review, we have decided to eliminate the SBREFA discussion from the comment letter. We are very grateful for the time and effort you expended to help us along. -Don (Former Chair, Consumer Financial Services Committee of the Section of Business Law) Donald C. Lampe DYKEMA Bank of America Corporate Center 100 N. Tryon St., Suite 2700 Charlotte, North Carolina ph. (704)

7 fax (704) Cell (336) Assistant (Charlotte, NC): Christine McLeod ph. (704) From: Terry Franzen Sent: Wednesday, April 11, :33 AM To: Michael E Herz; Daly Tobias, Susan Cc: Kiefer, Anne; Lampe, Donald; Eckman, Rick Subject: RE: CFSC Letter re: CFPB proposal Importance: High Thank you for these comments. Don Lampe and Rick Eckert drafted this portion of the letter. By copy of this , I am asking them to respond to your concerns. Terry Therese (Terry) G. Franzén, Esq. FRANZÉN AND SALZANO, P.C. 40 Technology Parkway South, Suite 202 Norcross, GA Fax CONFIDENTIALITY NOTICE: This transmission contains information from Franzén and Salzano, P.C. which is confidential and legally privileged. The information is intended only for the use of the individual or entity named on this . If you are not the intended recipient, you are hereby notified that reading, disclosing, copying, distributing, or taking any action in reliance on the contents of this information is strictly prohibited, and that the should be returned to this company immediately. If you have received this E- mail in error, please contact the sender immediately. From: Michael E Herz [mailto:herz@yu.edu] Sent: Monday, April 09, :32 PM To: Daly Tobias, Susan Cc: Kiefer, Anne Subject: request for technical commenting authority Dear Susan, Many thanks for sharing a draft of the Business Law Section s comments on the Consumer Financial Protection Board s proposed rule on Defining Larger Participants in Certain Consumer Financial Product and Service Markets. The Section of Administrative Law and Regulatory Practice has no reservations regarding the first two sections of your comments, which are the heart of your submission.

8 We do have reservations about the third part, concerning the Small Business Regulatory Fairness Act (SBRFA). The Board has declined to conduct a Regulatory Flexibility Analysis (RFA) under SBRFA, and has certified that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. It offers a number of reasons for this, but the key justifications are that the rule would not impose any regulatory obligations, period, and even if it is understood to do so, such obligations by their terms would apply only to entities that do not qualify as small entities. Your letter responds that in practice the rule will have important, though indirect, consequences on small businesses. In the real world, small businesses will end up having to conform to new industry practices, even if the regulation does not require them to do so. As a policy matter it may be that RFAs should sometimes be performed in such circumstances, though we would hesitate about adopting that as a general rule. Indirect impacts will often be too inchoate and indeterminate to lend themselves to useful impact analysis, and if such effects count then the scope, and burdens, of the RFA requirement would be vastly increased. Much more importantly, however, the case law uniformly holds that the trigger for requiring a small business RFA is the actual regulation of small businesses; the fact that a regulation will have impacts on small businesses, even though it does not regulate them directly, is not sufficient. The basic citation is Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985). The petitioners in that case argued that FERC had to consider economic effects not only upon regulated industries but also upon the small entities that were their wholesale customers, even though the customers were not directly regulated by FERC. The court disagreed, finding a clear indication in the language of 603 that the Act is limited to small entities subject to the proposed regulation. Id. at 342. The DC Circuit has stuck to this interpretation with complete consistency ever since (including in cases that, unlike Mid-Tex, were decided after the SBRFA amendments). See, e.g., Michigan v. EPA, 213 F.3d 663, (D.C. Cir. 2000) (finding no RFA required when EPA required revision of state implementation plans under the Clean Air Act, despite ultimate impacts on small entities, since EPA s rule did not itself apply to small entities); American Trucking Assns. v. USEPA, 175 F.3d 1027, (D.C. Cir. 1999) (no RFA required for ambient air quality standard, despite its anticipated effects on small entities, because it did not impose regulatory obligations on them), rev d on other grounds, 531 U.S. 457 (2001); Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449, 467 n. 18 (D.C. Cir. 1998) ( The RFA itself distinguishes between small entities subject to an agency rule, to which its requirements apply, and those not subject to the rule, to which the requirements do not apply. ); United Distribution Cos. v. FERC, 88 F.3d 1105, 1170 (D.C.Cir.1996) (agency under no obligation to conduct a small entity impact analysis of effects on entities which it does not regulate as the FRA provision applies only to small entities that are subject to the requirements of the rule ). To our knowledge there are no decisions to the contrary. Some commentators have criticized the Act as being too narrow precisely because it does not require RFAs for foreseeable but indirect impacts on unregulated entities. See, e.g., Keith W. Holman, The Regulatory Flexibility Act at 25: Is the Law Achieving Its Goal?, 33 Fordham Urb. L.J. 1119, (2006). But that only confirms the fact that under current law the agency just does not have any obligation to prepare an RFA in these circumstances. We would therefore suggest that Point III be deleted from the comments.

9 I hope these suggestions are useful, and would be happy to discuss this further. Sincerely, Michael Michael Herz Chair, ABA Section of Administrative Law and Regulatory Practice Visiting Research Scholar, Program in Law and Public Affairs, Princeton University Arthur Kaplan Professor of Law, Cardozo School of Law (609) (o) (917) (c) *** Notice from Dykema Gossett PLLC: To comply with U.S. Treasury regulations, we advise you that any discussion of Federal tax issues in this communication was not intended or written to be used, and cannot be used, by any person (i) for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service, or (ii) to promote, market or recommend to another party any matter addressed herein. This Internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this in error, please (1) do not forward or use this information in any way; and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. DYKEMA

10 American Bar Association Sec t i o n o f Ad m i n i s t r at i v e La w a n d Re g u l at o r y Pr a c t i c e 740 FIFTEENTH STREET, NW WASHINGTON, DC A M E R I C A N B A R A S S O C I A T I O N

11 Defending Liberty Pursuing Justice OFFICERS AND COUNCIL *Executive Committee Member CHAIR *H. Russell Frisby, Jr. CHAIR-ELECT *William V. Luneburg VICE-CHAIR *Jonathan J. Rusch SECRETARY *Anna Williams Shavers BUDGET OFFICER *William S. Morrow, Jr. ASSISTANT BUDGET OFFICER *Ronald L. Smith SECTION DELEGATES TO THE HOUSE *Randolph J. May *The Honorable John Michael Vittone LAST RETIRING CHAIR *Michael R. Asimow SECTION REPRESENTATIVE ON THE BOARD OF GOVERNORS John Hardin Young COUNCIL MEMBERS Charlotte M. Bahin Kenneth Gene Hurwitz William S. Jordan III Richard W. Parker Cary Coglianese Richard W. Murphy Paul R. Noe Joe D. Whitley Daniel Cohen James W. Conrad, Jr. Linda Lasley Steve Vieux COUNCIL MEMBERS EX OFFICIO STATE ADMINISTRATIVE LAW The Honorable Edward J. Schoenbaum EXECUTIVE BRANCH Jeffrey Rosen LEGISLATIVE BRANCH Morton Rosenberg JUDICIARY The Honorable Brett M. Kavanaugh ADMINISTRATIVE JUDICIARY The Honorable Robin Arzt ADMINISTRATIVE & REGULATORY LAW NEWS EDITOR William S. Morrow, Jr. ADMINISTRATIVE LAW REVIEW EDITOR-IN-CHIEF Andrew Kawel ABA BOARD OF GOVERNORS LIAISON The Honorable David Ray Gienapp YOUNG LAWYERS DIVISION LIAISON James Muetzel Jessica Johnson LAW STUDENT DIVISION LIAISON Brandon Sherr SECTION DIRECTOR Anne Kiefer Dear Mr. President-Elect: AMERICAN BAR ASSOCIATION We are pleased to forward to you Improving the Administrative Process: A Report to the President-Elect of the United States. The issues this report addresses, we believe, will have high importance for your administration s success in administrative law matters. We submit it in the hope of contributing to that success, by identifying issues on which expert administrative lawyers, private and public and academic, Republican and Democrat, have been able to agree. The views expressed herein are presented on behalf of the Section of Administrative Law and Regulatory Practice. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. As you may know, the Section of Administrative Law and Regulatory Practice of the American Bar Association has long been committed to promoting improvements in federal administrative process through nonpartisan dialogue. Specialists in administrative law and practice from all segments of the legal profession, from all parts of the country, and from both major political parties have worked hard this year to develop a set of consensus recommendations for Improving the Administrative Process before the election took place. While each of us had his or her own political preference, expressed in the voting booth, here we sought to develop recommendations independent of those preferences. We did not know if we were preparing recommendations for you or for your opponent; your supporters and his worked equally hard and constructively on them and support them fully. Our Section would be delighted to discuss the issues raised in this report with you and assist you in pursuing them. Sincerely yours, H. Russell Frisby Chair William V. Luneburg Chair-Elect Michael R. Asimow Last Retiring Chair Section of Administrative Law and Regulatory Practice th Street NW Washington, DC (202) Fax: (202)

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13 INTRODUCTION As the forty-fourth American President, you will face a pressing need to improve the process by which federal agencies make law and affect the lives of millions of Americans. The American Bar Association s Section of Administrative Law and Regulatory Practice has prepared this report for your consideration in the hope that we have identified focused, non-partisan strategies for improvement and reassessment. The Section is composed of specialists in administrative law. Both politically and geographically diverse, they include private practitioners, government attorneys, judges, law professors and member of nonprofit organizations. Officials from all three branches of the federal government sit on its governing Council. The views expressed herein are presented on behalf of the Section of Administrative Law and Regulatory Practice. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association In generating this report, the Section sought at every stage to achieve consensus among the broad range of interests represented in our membership. As a result, we believe the recommendations discussed in the report should have wide support and be susceptible of early acceptance. RECOMMENDATIONS In brief, our report urges you, first, to make prompt appointments of well qualified individuals to serve in your administration. Second, we urge you to join forces with Congress to rationalize and streamline the rulemaking process. More specifically, in overseeing the rulemaking process, you should (a) support the use of sound scientific risk assessment, (b) aggressively advance the use of information and communication technologies, (c) insist that agencies receive the funding they need for excellence in science and technology, and (d) seek to improve the management of the regulatory process. Third, we urge you to ensure that when federal agencies act to preempt state law, they should address these issues in explicit terms and act only after appropriate consultation with affected state officials. Fourth, we urge you to support ABA-sponsored legislation to reform the adjudication provisions of the Administrative Procedure Act. Finally, we urge you to take steps to revive the Administrative Conference of the United States, which Congress has recently reauthorized but not yet funded. Appointment of Your Administration Among your very first decisions will be to choose the appointees who will people your administration. At the highest level, this requires senatorial confirmation; but many appointments are made by you alone or by those whom you appoint to high office with senatorial confirmation. These are political judgments at root, yet we believe law and experience offer perspectives that are appropriate for us to address here. The views expressed herein are presented on behalf of the Section of Administrative Law and Regulatory Practice. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. 1

14 First, we exhort both you and the Senate to act promptly. Unfilled vacancies imperil effective administration. Nonetheless, past Presidents have not always been prompt in sending nominations forward, and the Senate has not always been prompt in considering nominations once sent. Your primary control over the administrative apparatus does not reside in your ability to issue orders or to monitor performance, but rather is exercised through your selection of sound administrators to lead those agencies. That counsels deep and urgent attention to the appointment process on all sides. Second, effective administration of regulatory and beneficiary programs requires the appointment of persons of high ability to positions of leadership. We recognize that Presidents regularly appoint people who have actively participated in the successful presidential campaign, or who are party loyalists, or who are promoted by influential constituency groups. Appointments stemming from these factors can, of course, be appropriate. Nevertheless, we, as practitioners and others involved in the substantive areas that will be directly affected by your appointments, urge you not to allow those factors to overshadow qualities such as competence, leadership ability, and familiarity with the programs that will fall within their charge. Such qualifications in the people you appoint are important to the fulfillment of your own constitutional responsibility to take Care that the Laws be faithfully executed. A related and equally vital quality for you to seek in your appointees will be a sense of being committed to carrying out the programs that they will respectively be asked to administer. Faithful execution of the laws begins with a President and top officials who are committed to fulfilling the objectives charted by statute. Of course, there may be times when a particular statutory requirement tends to undermine the effectiveness of the program as a whole, or conflicts with your appointees policy preferences, or your own. When such conflicts arise, efforts by you and your administration to secure legislative revision or repeal of those mandates can be entirely appropriate. Unless and until such change occurs, however, the principle of the rule of law dictates that such statutory provisions must be followed. Third, we observe that many time-honored qualifications for presidentially appointed offices are embedded in legislation. We know that some argue that virtually any statutory qualifications requirement unconstitutionally infringes upon the President s appointment powers. Whatever conclusions people might reach on that constitutional issue, our judgment is that many of these statutory requirements have proved over time to be salutary. For example, the requirements that the Solicitor General of the United States be a person learned in the law and that the Surgeon General be appointed from individuals who have specialized training or significant experience in public health programs have surely enhanced the stature of their offices, contributing to the respect they have generally enjoyed. The statutory exclusion of active duty personnel from top posts in the Pentagon has surely contributed to the maintenance of the fundamental principle of civilian control over the military. Statutory qualifications sometimes reflect more political choices. These, too, have generally been salutary. As a means of assuring relative balance in the performance of the multi-member authorities it has created, Congress has often written limitations on party status into the governing statutes so that no more than a bare majority may belong to the same party. In other 2

15 contexts, it has specified representation of particular interests on these bodies. For example, a statute provides that in making appointments to the Federal Reserve Board, the President shall have due regard to a fair representation of the financial, agricultural, industrial, and commercial interests, and geographic divisions of the country. Compliance with provisions of this kind can help an administration to secure the cooperation of disparate interests essential to the success of the governmental program. In short, we believe that these sorts of statutory qualification requirements warrant your respect. With regard to new legislative proposals including qualifications requirements, we urge you to engage with Congress during the legislative process if you believe that such requirements unduly constrain the range of your potential appointees in some concrete way. Oversight and Improvement of the Rulemaking Process Notice-and-comment rulemaking is a cornerstone of the Administrative Procedure Act (APA), the basic charter of federal agency procedure. This process was intended to provide an efficient and open method of promulgating rules. Today, however, it is neither as efficient nor as open as it could be. In order to promote these values, while also ensuring that administrative rulemaking serves the priorities of the incoming Administration, we recommend that, upon taking office, you undertake the following courses of action: First, we urge you to ensure that White House oversight of agency rulemaking is transparent and efficient. The system of centralized executive review of agency rulemaking evolved under several administrations and is currently embodied in Executive Order 12866, which has been in place during the past two presidential administrations, with limited amendments adopted in 2001 and The practice of White House oversight and coordination it reflects has longstanding bipartisan (and ABA) support as an important element in realizing the aims of efficient, coordinated, yet reasonably open administration in a democratic system. The current system has two elements: coordination of the overall rulemaking programs of agencies and review of particular rulemaking proposals. Both elements are sound, but in their details may warrant reflective reconsideration. At the initial stage of setting priorities, your administration has important interests in coordination among agencies and in securing the priorities of your administration. Accordingly, we recommend that you make more effective use of the planning mechanism of Executive Order by convening the agency heads early in your administration to coordinate regulatory priorities. Other issues of possible concern at the initial stage include: (i) (ii) whether the planning process strikes an effective and appropriate balance among the respective responsibilities of all its participants, including those whom you (with the Senate s blessing) will have made directly responsible for agency administration; and whether additional measures of transparency might be warranted to assure the public s trust that decisions taken are grounded in proper concerns of public policy. At the following stage, that of reviewing agency efforts in particular rulemakings, the important considerations are those of efficiency, faithfulness to underlying legislative mandate, and, again, 3

16 political acceptability. At present, review is limited to significant regulatory actions and guidance documents (usually those with high economic consequences or important policy implications); we support maintaining this limitation in the interest of efficiency. Assiduous avoidance of delays and continuing respect for openness are also important elements in the process of centralized regulatory review. Second, we urge you and Congress to join forces to rationalize and streamline the rulemaking process. Over time, both Congress and the executive have laden the process of informal rulemaking with multiple requirements for regulatory analysis. Viewed in isolation, a good case can be made for each of these requirements. Their cumulative effect, however, has been unfortunate. The addition of too many analytical requirements can detract from the seriousness with which any one is taken, deter the initiation of needed rulemaking, and induce agencies to rely on non-regulatory pronouncements that may be issued without public comment procedures but have real-world effects. In 1992, the ABA House of Delegates highlighted these concerns when, at our Section s urging, it unanimously called upon the President and Congress to exercise restraint in the overall number of required rulemaking impact analyses and assess the usefulness of existing and planned impact analyses. The Section anticipates that the next four years will be a time of legislative as well as executive interest in rulemaking. In your interactions with Congress on these important issues, you and your Administration should work to replace the current patchwork of analytical requirements found in various statutes and Executive Orders with one coordinated statutory structure. This structure should work to relate rulemaking requirements to the importance of a given proceeding. Rulemaking is not an undifferentiated process--some rules have major economic or social consequences, while many others are relatively minor in scope and impact. Thus, detailed requirements should be reserved for rules of greatest importance, and uncomplicated procedures should be used for routine matters of less public significance. We urge consideration, as part of that process, of the effectiveness of cost-benefit analysis in the regulatory oversight program. Cost-benefit analysis is valuable as a metric for understanding the economic impact of regulation; at the same time, the rulemaking proceedings within which it is conducted must ultimately culminate in a decision that implements the normative values embodied in the agency s enabling legislation. Controversies over the strengths, limitations, and consequences of cost-benefit analysis as it actually operates in practice have given rise to a substantial literature, both academic and popular. The advent of a new presidential administration furnishes a very appropriate occasion for taking stock of that debate. Accordingly, we hope that you and your appointees will be attentive to these varying appraisals of cost-benefit analysis in the course of establishing your own administration s program for regulatory oversight. Third, we urge you to support the use of sound scientific risk assessment. Many agencies are responsible for regulating risks to health, safety, or the environment. In order for them to implement these missions, they must have adequate expertise in state-of-the-art risk and benefit assessment methods to support optimal risk management. Under the sponsorship of our Section, the ABA has developed a detailed recommendation containing principles for the use of risk 4

17 assessment in the regulatory process. See The recommendation urges, for example, that risk assessments should be based on a careful analysis of the weight and quality of the scientific evidence, including such site-specific and substancespecific information as may be available, as well as information about the range and likely distribution of risk. It also emphasizes that scientific findings and professional judgment in risk assessments should be explicitly distinguished from the policy judgments in risk management. In addition, the recommendation provides that the process should be kept as free as possible from political bias, and that risk assessments should explicitly acknowledge and explain the limitations of their methodology, data, and assumptions. As your incoming administration undertakes to familiarize itself with the challenges of risk assessment and risk management, we commend the ABA principles to its attention. Fourth, we urge your Administration to aggressively advance the use of information and communication technologies in rulemaking. Effective use of such technologies can promote transparency, enhance the breadth and quality of public participation in regulatory decisionmaking, help agencies make better rules more efficiently, and provide (for the first time) readily accessible inter-agency and cross-agency rulemaking data for use in program oversight and evaluation. Progress in technology-supported rulemaking ( e-rulemaking ) has already begun with the creation, over the last six years, of a government-wide electronic docket and database of rulemaking materials (the Federal Docket Management System, or FDMS ) and a web portal, regulations.gov, that allows the public to view and comment on proposed rules. To tap the full potential of e-rulemaking, however, much more needs to be done. A national blue-ribbon Committee on the Status and Future of Federal e-rulemaking, established under the auspices of the Section, has concluded an 18-month study of FDMS and regulations.gov, and you will receive its report and recommendations. Here, we summarize some of its principal conclusions which we commend for your consideration. To gain the benefits of strong, centralized leadership, a lead agency should be charged with developing a core system for e-rulemaking to be shared by all agencies. Appropriations should be specifically dedicated to this task. To gain the benefits of individual agency initiative and experimentation, this core system should adopt an open architecture that encourages agencies to customize their e-rulemaking efforts in innovative ways designed to serve their particular stakeholders. To encourage development of an administrative culture that embraces e-rulemaking, your administration should ensure that agencies have the resources and leadership needed to comply with the E-Government Act of 2002, which, to the degree practicable, requires agencies to make all materials in their rulemaking dockets promptly available on-line to the public. To enhance public understanding of agency policies, agencies should use the on-line electronic libraries they are required to keep under the Electronic Freedom of Information Act to make available, and readily searchable, important yet often hard-to-find items such as 5

18 general statements of policy and interpretive rules. Agencies that make such materials available in their own e-libraries should also make them available from the centralized FDMS so that both public users and users in other agencies can retrieve materials in either location through a single search request. Finally, to help realize the goal of easy online access to rulemaking materials government-wide, we urge you to make efforts to bring the independent commissions into the cross-government system. Fifth, we urge you to insist that agencies receive the funding they need for excellence in science and technology. When regulatory priorities and programs are grounded in robust scientific and technical analysis, the benefits are enormous; conversely, the risks of debilitated, under-performing programs are enormous indeed, they are increasingly apparent. Over the years, Congressional mandates and regulatory demands on many agencies have grown dramatically, but these demands often have not been matched by adequate funding. The burgeoning growth in scientific techniques and understanding only heightens the hurdles facing the agencies. Agencies that regulate risks to health, safety and the environment touch the lives, health and well-being of all Americans and have a major impact on the economy and security of our nation. Other countries around the world traditionally have looked to the United States for leadership on scientifically sound, risk-based regulation. Federal agencies will not be able to fulfill their missions if their expertise and organizational structure are weak. Effective regulation and American leadership in the world on regulatory issues surely will not be possible if the agencies cannot even keep pace with scientific advances. Our nation is at risk if the scientific and technical expertise of the agencies is inadequate. For example, the Food and Drug Administration and until recently the Consumer Product Safety Commission have not been adequately funded to address important safety challenges during a time when international trade has dramatically increased and public confidence has fallen. EPA has not been adequately funded to implement chemicals management initiatives even as chemicals management policy is changing around the world. Consider a recent report by FDA s Science Board raising alarm that FDA cannot fulfill its mission because its scientific base has eroded, its scientific organizational structure is weak, its scientific workforce does not have sufficient capacity and capability, and its information technology infrastructure is inadequate. A crucial part of the problem is the lack of resources during a time of revolutionary change in science and ever-increasing demands on the agency. The result is reactive priority-setting and a fire-fighting regulatory posture instead of a culture of proactive regulatory science. As FDA s Science Board stated: Inadequately trained scientists are generally risk-averse, and tend to give no decision, a slow decision or, even worse, the wrong decision on regulatory approval or disapproval. Adequate resources are imperative to bolster the agencies science capacity and capability, to implement cutting-edge approaches to modeling, risk assessment and 6

19 data analysis, and to bolster agencies information infrastructure. Sixth, we urge you to ensure that attention be given to improving the management of the regulatory process. The development of regulations is a complex task that necessarily draws on a variety of technical disciplines and requires the coordination of multiple levels within an agency and among agencies. Moreover, agencies are expected to work with interested stakeholders in developing and implementing regulatory objectives. The efficient operation of government and the ability of an administration to achieve its policy goals require that this process be managed appropriately. The management of regulation currently enjoys little support in the form of funding, research, technical innovation, and career development from the President, Congress, the public management, and academic communities. But it is essential. It requires, among other things, knowledge, techniques, and experience needed for effective engagement of internal and external stakeholders. Because of the importance of rulemaking, we recommend that you, as the new President, should ensure that management of the regulatory process will occupy a more prominent position in major government-wide management initiatives and programs. Preemption of State Law by Agency Action Since the earliest days of the Republic, there have been conflicts between federal and state regulation of the same matters. In part as a result of congressional ambiguity, federal agency preemption of state law remains a nationally important issue. Of particular concern to many have been statements by agencies asserting that their regulations preempt state tort law, despite the absence of clear statutory language mandating or authorizing such preemption. It is not our purpose to take a side in these debates. Rather, it is our hope that, whatever policies your administration may pursue, agencies subject to your direction will deal with this issue in a manner that is explicit, transparent, and open to public participation, particularly the participation of those state entities most directly affected by possible preemption. The ABA has long recommended that federal agencies should clearly and explicitly address preemption issues in the course of regulatory decisionmaking. The ABA has also recommended that when an agency proposes to preempt a state law or regulation, it should attempt to provide affected states notice and an opportunity for appropriate participation in the proceedings. Similar provisions have been incorporated into a series of presidential executive orders culminating in EO and EO 13132, both issued by President Clinton and continued by President Bush. It is fair to say that agencies have not faithfully adhered to these principles. We do believe, however, that preemption is important enough that state and local officials should be informed of proposed agency actions that may have preemptive effect and should be offered an opportunity to consult with the agencies about those proposed actions. Moreover, in any proposed or final rule or order, an agency should, where relevant and to the extent feasible, include express language regarding what it believes is the preemptive effect of its action and the source of the authority for such preemptive effect. Such clarity and publicity will aid regulated entities, regulatory beneficiaries, state and local officials, and courts in determining the meaning and effect of federal regulations. 7

20 Enhancing the Legitimacy and Uniformity of Agency Adjudications We urge you to support legislation that would enhance both the legitimacy and uniformity of agency adjudicatory decisions. When the Administrative Procedure Act was enacted in 1946, its adjudication provisions set forth a standard package of procedures, including use of independent, impartial hearing examiners, a hearing process, and separation of the functions of investigation, prosecution, and decision. At the time, there was a widespread expectation that when agencies were required by statute to provide hearings in adjudications, the hearings would have to comply with these new provisions, particularly the mandate for an independent, impartial decisionmaker and separation of functions. The Act also specifies, however, that these procedural protections are required only for adjudications required by statute to be determined on the record after opportunity for an agency hearing. Many courts including the D.C. Circuit have ceded broad discretion to agencies to determine for themselves whether the language of their organic statutes triggers application of APA formal adjudication requirements. As a result, even when conducting hearings in matters where the decisionmaker is limited by statute to the record created by the parties, many agencies have managed to avoid the APA s adjudication procedures. In 2005, the American Bar Association adopted Resolution 114, urging Congress to provide the APA protections of an impartial decisionmaker (not necessarily an Administrative Law Judge), separation of functions, and prohibition on ex parte contacts to all non-apa statutory hearings in which the decisions are to be made based upon the evidence compiled in the statutorily required hearing. We urge you to support enactment of legislation embodying these requirements. Administrative Conference of the United States We urge you to promote the revival of the Administrative Conference of the United States (ACUS), a governmental entity that systematically promoted improvements in the administrative process. For over 25 years, ACUS advised the federal government on and coordinated important reforms to the administrative procedural law that is the backbone of federal regulation. ACUS enjoyed strong bipartisan support and assisted all three branches of government from 1964 until it lost its funding during the appropriations process in Its underlying statutory authority remains, however. ACUS was a bargain it employed a very small staff and attracted numerous academic consultants, on an as-needed basis, who received very modest payment for engaging in substantial research tasks. ACUS also leveraged the volunteer efforts of a great many administrative law luminaries government officials, private lawyers, judges, and academics who served in a variety of capacities and attended semiannual meetings for no compensation beyond travel reimbursement. The result, as former OMB Director James Miller noted, was a highly productive forum in which experienced persons deliberated with breadth of input, depth of knowledge, and common interest in developing consensus-based recommendations. As explained in a detailed Congressional Research Service (CRS) memo in September 2005, and follow up testimony in 2007, ACUS proved to be an extremely useful and cost-effective agency. Indeed, 8

21 federal agencies currently are spending more money to address issues that ACUS could resolve than ACUS s entire proposed budget. A large proportion of the Administrative Conference s recommendations eventually achieved implementation in whole or part. As a result, the Conference generated significant improvements in the administrative process. For example, it prepared influential studies and recommendations on such subjects as Social Security procedures, Freedom of Information Act reforms, user fees, and procedural aspects of protecting whistle blowers in the health and safety areas. It was at the forefront of encouraging agency use of alternative dispute resolution (ADR) techniques which can save considerable resources. The Conference took a leading role in drafting the Administrative Dispute Resolution Act and the Negotiated Rulemaking Act, and then worked to build agencies capacities to implement those statutes, offering expertise and training opportunities beyond the scope of what an individual agency could do alone. In 2004, Congress held hearings on ACUS reauthorization during which all six witnesses including Supreme Court Justices Stephen Breyer and Antonin Scalia praised the work and cost-effectiveness of the agency. Following those hearings, Congress unanimously approved bipartisan legislation to reauthorize and resurrect the agency, which President Bush signed into law on October 30, Regrettably, funds were not appropriated before the reauthorization period expired at the end of FY Therefore, new legislation was introduced with bipartisan support in September 2007, H.R. 3564, to renew ACUS reauthorization through FY The President signed the bill, as amended, into law on July 30, 2008, as Public Law Since ACUS ceased operation, no entity in the executive branch regularly convenes officials from across the government, along with interested private practitioners and academics, to deliberate about how to improve the fairness and effectiveness of administration. Such a forum for collegial self-critique and development of best practices is eminently desirable. In this regard, two points are of critical importance: First, the Conference did not and would not have the authority to implement any of its recommendations; rather, its only role was to provide advice for others to consider and implement when and where they believe it is appropriate. Secondly, ACUS assiduously avoided political issues. Its recommendations addressed only the administrative process and not broader political issues as to whether governmental action should or should not be taken on the basis of broader policy considerations. An adequately funded ACUS would provide a forum that could craft nonpartisan solutions to a host of pressing administrative law and regulatory controversies. These include the role of science in agency decisionmaking, electronic rulemaking, possible codification of the process of presidential review of rulemaking, the proper role of the Information Quality Act, refinements to the Congressional Review Act, and many others. Accordingly, the Section urges the incoming President to support the re-establishment of the Administrative Conference. The agency should continue to be structured to give non-partisan analysis and advice; it should be afforded independence from particular policy-based responsibilities, so that it will maintain its credibility as a detached analyst. To this end, the new President should direct that funds be identified for such an agency in his budget, and should 9

22 support necessary steps by Congress to provide appropriations for the agency. These steps would make a major contribution to enhancing the government s capacity to improve itself in our era of dynamic change. 10

23 This report was prepared for the Section by an Ad Hoc Committee on Administrative Law Transition. Members of the Committee included: Michael Asimow Cary Coglianese Mariano-Florentino Cuellar John Duffy Cynthia Farina William Funk Michael Herz William S. Jordan III Katy Kunzer Ronald Levin William V. Luneburg Richard S. Murphy James O Reilly Ed Rubin Peter Strauss Wendy Wagner The Honorable Ann Young Bernard W. Bell James W. Conrad Cynthia A. Drew Fred Emery H. Russell Frisby Philip J. Harter Otto Hetzel Eleanor D. Kinney Renee M. Landers Jeffrey Lubbers Randolph J. May Paul R. Noe Richard Parker Sidney Shapiro Thomas Susman Joe D. Whitley John Hardin Young The recommendations in the report were endorsed in principle by a vote of the Council of the Section on August 8, The Council gave final approval to the report on September 29, The views expressed herein are presented on behalf of the Section of Administrative Law and Regulatory Practice. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. 11

24 CYBERSECURITY LEGISLATIVE TALKING POINTS As of April 15, 2012 I. General Talking Points: Cybersecurity continues to be a hot topic for the White House, Congress, federal agencies, and private entities, with legislative proposals pending from the White House and in both chambers of Congress. The ABA has the opportunity to help shape the future of these proposals, but it must decide soon how to move forward, on what issues, and when. Having the Cybersecurity Working Group examine each of the pending cybersecurity proposals on Capitol Hill, in my opinion, is not the way to proceed in this arena because there are too many of them, and most have limited chances of becoming law. Legislative context to demonstrate this point: There has been no comprehensive cyber security legislation enacted since Executive Branch: Both the Bush & Obama administrations have increased awareness and importance of cybersecurity issues by creating groups and positions focused on cyber issues. President Obama also published a comprehensive cybersecurity legislative proposal in May th Congress: More than 40 bills and resolutions with provisions related to cyber have been introduced. Three bills are pending on the Senate calendar and two are pending on the House calendar (see below). The others remain in Committees or Subcommittees. Note, none of the prominent cyber bills contains a kill switch or any provision that allows anyone to shut down the entire internet in a cyber emergency. 111 th Congress: More than 60 bills and resolutions with provisions related to cyber were introduced. While several received floor action, none have become law. As an alternative, examining the broader issues covered by the pending proposals and determining whether the ABA wants to provide input on any of the specifics issues raised by legislative changes in today s electronic age may be a better use of time.

25 For example, focus on the role of government, protection of personal privacy interests and corporate interests (e.g. liability, litigation, etc.) in the context of electronic commerce, scope of information sharing and coordination, preservation of attorney client privileged information, cybercrime offenses and penalties, protecting US citizen interests while living abroad, antitrust implications of legislative changes, and maintaining national security while balancing other important legal considerations. Using the ABA to help identify gaps in current cybersecurity efforts and coordination would also be helpful, but may be limited by the ABA s access to necessary information. II. Three Bills Pending on Senate Calendar: 1. S. 2105: Cyber Security Act of 2012 Sponsor: Senator Lieberman, Joe [CT] (introduced 2/14/2012) Summary Directs the Secretary of Homeland Security (DHS), in consultation with owners and operators of critical infrastructure, the Critical Infrastructure Partnership Advisory Council, and other federal agencies and private sector entities, to: (1) to conduct a toplevel assessment of cybersecurity risks to determine which sectors face the greatest immediate risk, and beginning with the sectors identified as having the highest priority, conduct, on a sector-by-sector basis, cyber risk assessments of the critical infrastructure; (2) establish a procedure for the designation of critical infrastructure; (3) identify or develop risk-based cybersecurity performance requirements; and (4) implement cyber response and restoration plans. Sets forth requirements for securing critical infrastructure, including notification of cyber risks and threats and reporting of significant cyber incidents affecting critical infrastructure. Primary Concern: The bill is vague on several issues. For example, it does not clearly define what critical internet infrastructure is or what constitutes a cyber crime. It does not explain what counteraction DHS would take if a threat were to emerge. It does require that businesses change data about individuals to make it anonymous before sending info to the government though. 2

26 2. S.1342: Grid Cyber Security Act Sponsor: Senator Bingaman, Jeff [NM] (introduced 7/11/2011) Summary Amends the Federal Power Act to direct the Federal Energy Regulatory Commission (FERC) to: (1) determine whether certain reliability standards are adequate to protect critical electric infrastructure from cyber security vulnerabilities, and (2) order the Electric Reliability Organization (ERO) to submit a proposed reliability standard or a modification to a reliability standard that will provide adequate protection of critical electric infrastructure from cyber security vulnerabilities if FERC determines that such reliability standards are inadequate. Primary Concerns: The bill prohibits access to classified information relating to cyber security threats or vulnerabilities without the appropriate security clearances. It fails to state what classified information may be. This could vary widely affecting anything from large utility companies to family households. 3

27 3. S. 2111: Cyber Crime Protection Security Act Sponsor: Senator Leahy, Patrick J. [VT] (Introduced 2/15/2012) Summary Enhances punishment for identity theft and other violations of data privacy and security, and increases penalties and expands the definition of many of the criminal penalties under the Computer Fraud and Abuse Act. The penalty increases would come in several sections of 18 U.S. Code. Primary Concerns: Narrow focus of the legislation. *********** *********** NOTE WELL NEW PROPOSAL: SEN McCain introduced S. 2151, Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act of 2012 (SECURE IT Act) on March 1, It is sitting in the Senate Commerce, Science and Transportation Committee. Summary Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act of 2012 or SECURE IT - Authorizes private entities to employ countermeasures and use cybersecurity systems to obtain, identify, or possess cyber threat information on its own networks or the networks of another entity with such entity's authorization. Primary concerns: Self reporting or voluntary reporting has been a major point of criticism. Reports could vary on many degrees. There are also privacy concerns, in part because there are fewer requirements to make the data shared anonymous. The ACLU sited worries that this legislation would give the Federal Government access to private s. Media reports that Senator McCain says he would be happy to sit down with privacy groups to address their concerns. March 20 CQ Online News report SEN Lieberman said that he is discussing ways to find a compromise on pending Senate bills with SEN McCain. SEN Lieberman called whether the federal government has the right to set standards for the security of the most vital privatelyowned computer systems, such as those tied to the security grid, the fundamental question. Hope is that the cybersecurity measures will go to the Senate floor after Easter recess. 4

28 III. Two Bills Pending on House Calendar: 1. H.R.2096 Cybersecurity Enhancement Act of 2011 Sponsor: Rep McCaul, Michael T. [TX-10] (introduced 6/2/2011) Related Bills: S.1152 (which is still pending in Senate Committee on Science, Space and Technology) Summary Directs specified federal agencies participating in the National High-Performance Computing Program to: (1) transmit to Congress a cybersecurity strategic research and development plan and triennial updates, and (2) develop and annually update an implementation roadmap for such plan. Primary Concern: Focus is mainly on research, education and training for the cybersecurity profession. Not comprehensive enough. 2. H.R.3523: Cyber Intelligence Sharing and Protection Act of 2011 Sponsor: Rep Rogers, Mike J. [MI-8] (introduced 11/30/2011) Summary Amends the National Security Act of 1947 to add provisions concerning cyber threat intelligence and information sharing. Defines "cyber threat intelligence" as information in the possession of an element of the intelligence community directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity Primary Concerns: The legislation provides for information sharing between the federal government intelligence community, and private companies. It does not identify any specific information that can be shared, just anything that has a significant purpose related to cyber or national security. It also doesn t define how entities can use cyber systems or how far they can go to protect the rights and property of the affected entity. It does not define which federal agency is in charge. This seems overbroad and raises privacy concerns associated with internet surveillance, filtering content, and access to sites for cybersecurity purposes. NOTE: NEW PROPOSAL: Reps. Mary Bono Mack (Calif.) and Marsha Blackburn (Tenn.) introduced H.R on March 27, which is the counterpart to Sen McCain s S. 2151, SECURE IT Act, focused on information sharing initiatives. The bill has been referred to the House Committee on Science, Space, and Technology, and in addition to the Committees on Oversight and Government Reform, the Judiciary, Armed Services, and Select Intelligence (Permanent Select). 5

29 8 th Annual ADMINISTRATIVE LAW AND REGULATORY PRACTICE INSTITUTE Critical Issues in Rulemaking MAY 9 10, 2012 CAPITAL HILTON WASHINGTON, DC Program Chair: Joe D. Whitley Section Chair: Michael Herz Hours of Professional Practice CLE Credit Requested

30 Welcome Message from Joe D. Whitley As Vice Chair of the American Bar Association s Administrative Law and Regulatory Practice Section, I would like to invite you to attend the 8th Annual Administrative Law Institute. Our program will be held on May 9 & 10, 2012 at the Capital Hilton in Washington, D.C. If you, or someone you know, wants a better appreciation of the change that is occurring in the world of administrative law, I encourage you to attend and/or share information about this outstanding and informative program with them. MAY 9 RULEMAKING 101 The Institute will begin with an informative ʺRULEMAKING 101ʺ class on the afternoon of MAY 9. This introductory/refresher course will provide the procedural steps, legal requirements, and practical constraints applicable to issuing rules and challenging (or defending) them in court, suitable for lawyers and non lawyer clients and managers. The course will be co taught by a team of government lawyers and a team of private practitioners, each bringing out considerations most relevant from their particular perspectives. Those attending for CLE credit will receive A Guide to Federal Agency Rulemaking by Jeffrey S. Lubbers, a $94.95 value. MAY 10 CRITICAL ISSUES ON RULEMAKING On MAY 10, the Institute will focus on the following substantive issues and topics: OIRA Running with the Rules A Look at Rulemaking Policy and Future Plans Recent Developments in Rulemaking Law and Practice This panel of experts will address recent judicial and administrative developments concerning rulemaking. Topics will include the operation of regulatory review under E.O. 12,866, activities (and lack thereof) under the Congressional Review Act, rulemaking burdens imposed by the new health care legislation, important recent cases on the rulemaking process, and the ongoing struggles, among agencies and courts, over distinguishing legislative rules, subject to notice and comment, from interpretive rules, guidance documents and the like. Current Proposal and Regulatory Reform AdLaw Section Chair Michael Herz lead this expert panel discussion which will review proposals for regulatory reform, including discussion of cost/benefit analysis, other changes to the rulemaking process, and opportunities to revise or expedite permitting, contained in pending legislation and in recent reports from the Business Roundtable and the Presidentʹs Council on Jobs and Competitiveness.

31 Inside State Rulemaking, Lessons from External and Internal Prospective by Governor John Engler U.S. based corporations often protest the costs and economic uncertainty imposed by federal regulation not just from individual rules that affect a particular industry, but also from the cumulative effects of regulations issued by multiple agencies. Honorable John Engler is the former governor of Michigan and president of Business Roundtable, an association of CEOs of leading U.S. corporations, details business objections and offers a solution to regulatory excess smarter regulation, a transparent process that involves affected parties earlier in the process. The Obama Administration has indicated its support for many of the regulatory principles. Arguing and Deciding Administrative Law Cases in the D.C. Circuit D.C. Circuit Judge Brett Kavanaugh and two expert practitioners, Michael Raab and Catherine Stetson, review administrative law cases, procedures and outcomes, giving perspectives from both sides of the bench. How to Interact Effectively with OIRA and Regulatory Agencies This panel, moderated by AdLaw Sectionʹs Chair Elect Jamie Conrad, will discuss the respective roles of agencies and OIRA under Executive Orders 12866/13563, the Paperwork Reduction Act, and OMBʹs Peer Review Bulletin and Information Quality Act Guidelines. Panelists will review when and how to involve other components of the Executive Office of the President and other agencies. Finally, the panel will discuss interactions between OIRA, agencies and SBAʹs Office of Advocacy under the Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act. I would like to thank our program Planning Committee Members Michael Herz, Jamie Conrad, Jonathan Rusch, Jeffrey Rosen and Paul Noe for helping to select our topics and speakers for this year s Institute. A special thanks goes to Anne Kiefer, Section Director and Toni Martinez, Program Associate of the Section, who make this program work year after year. For more information and to register online, please visit the ABAʹs website. We look forward to seeing you on May 9 th and 10 th. Best regards, Joe D. Whitley Section Vice Chair & Program Chair Former and First General Counsel, DHS Former Appointed U.S. Attorney in the Middle and Northern Districts of Georgia

32 PROGRAM FACULTY Joe D. Whitley, Program Chair Vice Chair, ABA Section of Administrative Law and Regulatory Practice, Shareholder, Greenberg Traurig LLP, Atlanta, GA and Washington, DC Robert P. Charrow Shareholder, Greenberg, Traurig, LLP, Washington, DC James W. Conrad, Jr. Principal, Conrad Law & Policy Counsel, Washington, DC Joan Dailey Senior Attorney, Office of the General Counsel, U.S. Department of Health and Human Services, Washington, DC E. Donald Elliot Yale School of Law, New Haven, CT, Former U.S. Environmental Protection Agency (EPA) General Counsel Andrew Emery Principal, The Regulatory Group Inc., Arlington, VA The Honorable John Engler President, Business Roundtable in Washington, DC and former Governor of Michigan Michael J. Fitzpatrick senior Manager and Senior Counsel, Government and Regulatory Affairs, General Electric, Washington, DC Michael E. Herz Arthur Kaplan Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy, Benjamin N. Cardozo School of Law, Yeshiva University, New York, NY, and Chair of the ABA Section of Administrative Law and Regulatory Practice David R. Hill Partner, Sidley Austin, Washington, DC William S. Jordan III Associate Dean and C. Blake McDowell, Jr. Professor, The University of Akron School of Law, Akron, OH The Honorable Brett M. Kavanaugh Judge, U.S. Court of Appeals for the District of Columbia Circuit, Washington, DC Alisa Klein Appeals Counsel, Appellate Staff, Civil Division, U.S. Department of Justice Ronald M. Levin William R. Orthwein Distinguished Professor of Law, Washington University School of Law, St. Louis, MO Jeffrey S. Lubbers Professor, American University Washington College of Law, Washington, DC Shawne C. McGibbon General Counsel, Administrative Conference of the United States (ACUS), Washington, DC Nina A. Mendelson Professor, University of Michigan School of Law, Ann Arbor, MI Paul Noe Vice President for Public Policy, American Forest & Paper Association, Washington, DC Michael S. Raab Assistant Director, U.S. Department of Justice, Civil Division, Washington, DC Jeffrey A. Rosen Partner, Kirkland & Ellis, Washington, DC Catherine E. Stetson Partner, Hogan Lovells, Washington, DC Richard G. Stoll Partner, Foley & Lardner LLP, Washington, DC Cass Sunstein (invited) Administrator, Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), Washington, DC and Professor, Harvard Law School

33 PROGRAM AGENDA Wednesday May 9, 2012 Rulemaking 101 1:00 p.m. 1:30 p.m. Registration 1:30 p.m. 3:00 p.m. The Rulemaking Process 3:00 p.m. 3:30 p.m. Break 3:30 p.m. 5:00 p.m. Judicial Review of Rules Inside Government Team: Joan Dailey, Andrew Emery, Alisa Klein Outside Government Team: Robert P. Charrow, James W. Conrad, Jr., Richard G. Stoll This program will provide an introductory/refresher course on the procedural steps, legal requirements, and practical constraints applicable to issuing rules and challenging (or defending) them in court, suitable for lawyers and non-lawyer clients and managers. The course will be co-taught by a team of government lawyers and a team of private practitioners, each bringing out considerations most relevant from their particular perspectives. Those attending for CLE credit will receive A Guide to Federal Agency Rulemaking by Jeffrey S. Lubbers.

34 Thursday May 10, 2012 The Institute 7:30 a.m. 8:00 a.m. Registration 8:15 a.m. 8:30 a.m. Welcoming Remarks Michael E. Herz, Joe D. Whitley 8:30 a.m. 9:30 a.m. OIRA Following the Rules A Look at Rulemaking Policy and Future Plans Cass Sunstein (invited) Professor Sunstein will present an inside look at the rulemaking policies of the Obama Administration and future plans. 9:30 a.m. 11:00 a.m. Recent Developments in Rulemaking Law and Practice Jeffrey S. Lubbers (Moderator) David R. Hill, William S. Jordan III, Nina A. Mendelson This panel of experts will address recent judicial and administrative developments concerning rulemaking. Topics will include the operation of regulatory review under E.O. 12,866, activities (and lack thereof) under the Congressional Review Act, rulemaking burdens imposed by the new health care legislation, important recent cases on the rulemaking process, and the ongoing struggles, among agencies and courts, over distinguishing legislative rules, subject to notice and comment, from interpretive rules, guidance documents and the like. 11:00 a.m. 11:15 a.m. Break 11:15 a.m. 12:30 p.m. Current Proposals for Regulatory Reform Michael E. Herz (Moderator) Michael J. Fitzpatrick, Ronald M. Levin, Jeffrey A. Rosen The panel will review proposals for regulatory reform, including discussion of cost/benefit analysis, other changes to the rulemaking process, and opportunities to revise or expedite permitting, contained in pending legislation and in recent reports from the Business Roundtable and the President's Council on Jobs and Competitiveness. 12:30 p.m. 1:00 p.m. Lunch

35 1:00 p.m. 2:00 p.m. Inside State Rulemaking Lessons from External and Internal Perspectives The Honorable John Engler U.S.-based corporations often protest the costs and economic uncertainty imposed by federal regulation not just from individual rules that affect a particular industry, but also from the cumulative effects of regulations issued by multiple agencies. John Engler, former governor of Michigan and president of Business Roundtable, an association of CEOs of leading U.S. corporations, details business objections and offers a solution to regulatory excess smarter regulation, a transparent process that involves affected parties earlier in the process. The Obama Administration has indicated its support for many of the regulatory principles. 2:00 p.m. 3:45 p.m. Arguing and Deciding Administrative Law Cases in the D. C. Circuit 3:45 p.m. 4:00 p.m. Break Michael S. Raab, Catherine E. Stetson The Honorable Brett M. Kavanaugh (Moderator) A D.C. Circuit Judge and two expert practitioners review administrative law cases, procedures and outcomes, giving perspectives from both sides of the bench. 4:00 p.m. 5:15 p.m. How to Interact Effectively with OIRA and Regulatory Agencies James W. Conrad, Jr. (Moderator) E. Donald Elliot, Shawne C. McGibbon, Paul Noe The panel will discuss the respective roles of agencies and OIRA under Executive Orders 12866/13563, the Paperwork Reduction Act, and OMB's Peer Review Bulletin and Information Quality Act Guidelines. Panelists will review when and how to involve other components of the Executive Office of the President and other agencies. Finally, the panel will discuss interactions between OIRA, agencies and SBA's Office of Advocacy under the Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act. 5:15 p.m. Concluding Remarks

36 REGISTRATION FORM 8 th Annual Administrative Law and Regulatory Practice Institute Critical Issues in Rulemaking Washington, DC Capital Hilton May 9 10, 2012 Location: Capital Hilton, th Street NW, Washington, DC, 20036, (202) The hotel is located within blocks of 3 Metro Stations: Farragut North Metro Station (Red Line), Farragut West Metro Station (Blue & Orange Lines), and McPherson Square Metro Station (Blue & Orange Lines). Parking: Valet parking is available at the Capital Hilton at a rate of $42.00 per day. Sorry we can not validate parking. Registration: Register on this form. Credit cards or checks are required at the time of registration (training vouchers or EFT can not be accepted). Receipt copies are ed to the registrant when the registration is processed. Last day to register is May 4, After that date you may register on-site. CLE: Rulemaking 101: 3 hours of Professional Practice CLE. Institute: 7.75 hours of Professional Practice CLE. Credit has been applied for but cannot be guaranteed contact your state or local MCLE board to verify requirements. Special Needs: Please contact Toni Martinez at or antonia.martinez@americanbar.org to request accommodation for any special needs no later than April 15, Scholarships: Contact Anne Kiefer anne.kiefer@americanbar.org or to request a registration Scholarship. Decisions are based upon individual circumstances. Cancellation: Cancellations accepted without charge until May 1, No refunds are possible after that date substitutions only. Antonia.martinez@americanbar.org or Fax request to Name: ABA Member I.D.: Administrative Law Section Member? Yes No Phone: Organization: Address: City, State, Zip: Qty. Registration Type Rates May 9-10, 2012 Full Program, Hours Professional Practice CLE ABA Administrative Law Section Member $229 Government Employee $229 Non-Section Member $299 Law Student $25 May 9, 2012 Rulemaking ONLY 3 Hours Professional Practice CLE Rulemaking 101 ONLY $199 Total Registration Fees Paid: Payment by check or credit card is required at time of registration. Make checks payable to the American Bar Association. Return this form by antonia.martinez@americanbar.org OR FAX: OR MAIL: Toni Martinez, ABA Section of Administrative Law, th Street NW, Washington, DC METHOD OF PAYMENT Check (payable to American Bar Association ) VISA MasterCard AMEX Card Number: Exp. Date: Signature: Name on Card: Would you like to be a Member of the Section of Administrative Law & Regulatory Practice? Check here to have the $60 Annual Dues added to this invoice (must already be an ABA member).

37 FY2012 Monthly Entity Membership Count Report Month February Month 6 Entity Membership: Summary Performance Current Last Year % Change from LY This Month -63,035-65, % YTD -44,764-62, % Discussion * Total entity memberships are up year over year by 1.1%. * Excluding the 7,945 members with paid FY12 ABA dues added through the GPSolo pilot, entity memberships are down just 0.06%. * The decline in entity memberships has nearly reversed, compared to the overall 2.4% decline in FY11. * The February 2012 drop for non-payment occurred on February 29. Entity Membership Count: Category Performance Current YTD Last Year YTD Change Lawyer Associate Student Total Size Lawyer Associate Student Total Lawyer Associate Student Total Entities Admin. Law & Regulatory Practice 4, ,397 11, , ,314 11, % 8.8% 1.3% -2.6% Affordable Housing 2, ,503 5, , ,554 5, % 28.4% -1.4% -2.0% Air & Space Law 1, ,636 4, , ,173 3, % 16.9% 21.3% 19.1% Antitrust Law 6, , , , % 9.6% 5.8% -0.3% Business Law 35,694 1,568 11,736 48, ,740 1,465 11,615 49, % 7.0% 1.0% -1.6% Communications Law 1, ,129 6, , ,074 6, % 19.7% 1.4% -0.9% Construction Industry 4, , , , % 3.1% -3.3% -2.0% Criminal Justice 8, ,068 18, , ,914 18, % 21.5% 1.7% 0.4% Dispute Resolution 6,948 1,244 7,847 16, ,453 1,121 7,837 16, % 11.0% 0.1% -2.3% Entertainment & Sports Industry 2, , , , % 12.0% 10.7% 3.0% Environment, Energy & Resources 7, ,681 9, , ,536 9, % 2.9% 9.4% 2.2% Family Law 6, ,315 8, , ,244 8, % 18.1% 5.7% 3.2% Franchising 1, , , , % 12.2% 11.4% 1.7% General Practice, Solo, and Small Firm 17, ,628 26, , ,660 18, % 5.8% -0.4% 44.9% Govt. & Public Sector Division 5, ,609 15, , ,378 15, % 30.8% 2.5% 3.3% Health Law 6, ,109 8, , , % 6.1% 11.7% 2.6% Indv. Rights & Responsibilities 2, ,185 8, , ,356 8, % 26.8% -3.2% -5.2% Intellectual Property Law 13, ,489 22, , ,386 22, % 7.1% 1.2% -0.7% International Law 9,527 1,525 10,129 21, ,616 1,468 10,207 21, % 3.9% -0.8% -0.5% Judicial Division (combined) 3, , , , % 25.0% 11.2% 7.1% Labor & Employment Law 16, ,406 23, , ,287 23, % 7.7% 1.9% -0.5% Law Practice Management 8, ,596 14, , ,533 15, % 1.7% 1.1% -3.7% Legal Educ. & Admissions to Bar 10,203 1,249 1,684 13, ,130 1,192 1,615 12, % 4.8% 4.3% 1.5% Litigation 41,732 1,179 10,843 53, ,333 1,124 10,764 55, % 4.9% 0.7% -2.7% Public Contract Law 3, ,035 9, , ,051 9, % 1.4% -0.3% -2.5% Public Utility, Comm. & Trans. 2, ,148 5, , ,161 6, % -8.5% -0.4% -4.8% Real Property, Trust & Estate 19, ,786 21, , ,800 22, % 9.0% -0.8% -3.0% Science & Technology 4, ,510 9, , ,416 9, % 1.7% 1.7% -1.2% Senior Lawyers Division 4, , , , % 11.6% -2.2% -5.2% State & Local Government Law 4, ,310 11, , ,745 10, % 8.7% 8.4% 5.2% Taxation 15, ,135 20, , ,138 20, % 4.9% -0.1% -1.2% Tort Trial & Insurance Practice 15, ,851 23, , ,900 22, % 14.8% 16.1% 1.1% TOTAL 296,010 16, , , ,513 15, , , % 9.0% 2.2% 1.1% Center for Professional Responsibility 1, ,843 1, , % 15.2% 9.8% 4.8% Young Lawyers Division 98, , , , , , % -0.1% -21.3% -5.6% ABA Membership Count: Category Performance Current YTD Last Year YTD Change Lawyer Associate Student Total Lawyer Associate Student Total Lawyer Associate Student Total ABA Members** 268,156 10,650 37, , ,879 10,020 35, , % 6.3% 5.4% -0.4% ABA Members in an Entity 174,118 8,778 24, , ,679 8,307 24, , % 5.7% 0.2% 4.5% % of ABA Members in an Entity 64.9% 82.4% 65.3% 65.6% 60.9% 82.9% 68.7% 62.5% 4.0% -0.5% -3.4% 3.1% Average Entities per ABA Member*** % 5.9% 12.3% -7.5% 600,000 YTD Entity Membership Count 580, , , , , ,000 Current 460,000 Last Year 440, , ,000 Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug * Data Source: Data warehouse through 'MMR Section Members' report ** Fiscal year ABA membership numbers are reported as of August 31; all other monthly membership figures experience fluctuation and should remain proprietary *** Among members in at least one entity Proprietary ABA Information: Confidential

38 FY2012 Monthly Entity Lawyer Membership by Dues Class Report Month February Month 6 Discussion * The majority (64.6%) of entity members are in Class 7 those who passed the bar 10+ years ago. * 12.3% of entity memberships are held by new bar admittees (collectively ADMNEW and LS Transfers) those who passed the bar less than one year ago. * While only 2.7% of the ABA s membership is made up of LS Transfer members, the group represents 9.6% of entity lawyer memberships a difference caused by members taking advantage of multiple free entity memberships as law students. Entities ADMNEW Entity Lawyer Membership Count: Category Performance Current Lawyer Members LS Transfer Class 1 Class 3 Class 5 Class 7 Discount** Total Size ADMNEW % of Current Lawyer Members LS Transfer Class 1 Class 3 Class 5 Class 7 Discount** Admin. Law & Regulatory Practice 121 1, , , % 26.7% 13.1% 3.7% 6.4% 46.2% 1.3% Affordable Housing , % 30.8% 14.1% 3.0% 5.3% 44.2% 1.0% Air & Space Law , % 20.8% 10.2% 3.2% 6.1% 56.5% 1.6% Antitrust Law , , % 1.5% 8.2% 5.3% 8.7% 71.1% 3.8% Business Law 994 2,300 3,319 1,527 2,581 24, , % 6.4% 9.3% 4.3% 7.2% 68.0% 2.0% Communications Law , % 34.0% 12.9% 2.1% 4.3% 44.3% 0.9% Construction Industry , , % 1.4% 5.3% 5.2% 9.5% 76.6% 1.1% Criminal Justice 721 1,754 1, , , % 19.9% 16.2% 3.5% 6.1% 44.1% 2.0% Dispute Resolution 91 1, , , % 21.0% 8.9% 1.4% 3.2% 59.0% 5.2% Entertainment & Sports Industry , , % 6.1% 16.0% 6.4% 9.2% 54.7% 1.8% Environment, Energy & Resources , , % 4.1% 10.9% 5.6% 8.3% 65.2% 1.7% Family Law , , % 4.6% 13.7% 5.0% 8.1% 58.0% 3.1% Franchising , , % 1.0% 4.0% 5.1% 8.9% 78.3% 1.7% General Practice, Solo, and Small Firm 411 1,752 2, ,180 10,252 1,409 17, % 9.7% 12.2% 4.4% 6.6% 57.0% 7.8% Govt. & Public Sector Division 249 1, , , % 29.7% 16.4% 3.4% 6.2% 36.5% 3.6% Health Law , , % 2.8% 10.8% 5.2% 8.7% 67.1% 1.8% Indv. Rights & Responsibilities , % 37.9% 13.9% 1.5% 2.7% 38.1% 3.7% Intellectual Property Law 499 1,443 1, ,262 6, , % 11.0% 14.3% 6.4% 9.6% 52.7% 2.1% International Law 353 1,722 1, , , % 18.1% 13.3% 3.9% 7.0% 51.4% 2.6% Judicial Division (combined) , , % 2.4% 3.0% 1.1% 3.0% 83.7% 6.2% Labor & Employment Law 460 1,262 1, ,374 10, , % 7.8% 9.5% 4.6% 8.5% 65.0% 1.8% Law Practice Management 86 1, , , % 13.1% 7.0% 1.9% 3.8% 70.6% 2.5% Legal Educ. & Admissions to Bar , , % 2.5% 2.8% 3.9% 7.7% 82.3% 0.4% Litigation 1,015 2,358 4,040 2,139 3,699 27, , % 5.7% 9.7% 5.1% 8.9% 66.9% 1.4% Public Contract Law , , % 22.2% 11.3% 3.7% 5.8% 53.3% 2.1% Public Utility, Comm. & Trans , , % 22.7% 9.4% 2.6% 5.0% 57.1% 2.2% Real Property, Trust & Estate , ,478 13, , % 2.5% 7.7% 4.2% 7.4% 70.1% 4.8% Science & Technology , , % 24.4% 13.4% 5.0% 6.6% 47.4% 1.7% Senior Lawyers Division ,707 1,605 4, % 0.2% 0.4% 0.3% 0.2% 62.0% 36.8% State & Local Government Law , , % 24.2% 10.4% 2.7% 5.3% 53.5% 1.7% Taxation 310 1,074 1, ,009 10, , % 7.1% 9.3% 4.4% 6.7% 67.1% 3.3% Tort Trial & Insurance Practice 421 1,193 1, , , % 7.7% 7.8% 3.3% 6.1% 70.8% 1.6% TOTAL 8,191 28,321 29,396 12,478 21, ,112 9, , % 9.6% 9.9% 4.2% 7.2% 63.2% 3.2% Center for Professional Responsibility , , % 1.0% 2.9% 1.8% 4.6% 83.1% 5.5% Young Lawyers Division 31,567 7,367 38,979 11,702 7,206 1, , % 7.5% 39.5% 11.9% 7.3% 1.0% 0.7% ABA Lawyer Membership Count: Category Performance Current Lawyer Members % of Current Lawyer Members New Bar Admittee LS Transfer Class 1 Class 3 Class 5 Class 7 Discount Total New Bar Admittee LS Transfer Class 1 Class 3 Class 5 Class 7 Discount ABA Members*** 31,573 7,369 39,310 13,815 20, ,399 15, , % 2.7% 14.7% 5.2% 7.7% 52.0% 6.0% ABA Members in an Entity 7,437 5,610 18,724 8,897 14, ,490 6, , % 3.2% 10.8% 5.1% 8.4% 64.6% 3.6% % of ABA Members in an Entity 23.6% 76.1% 47.6% 64.4% 70.9% 80.7% 39.3% 64.9% Average Entities per ABA Member**** * Data Source: Data warehouse through 'MMR Section Members' report ** The "Discount" category includes 70/25, 75/25, Disability Waiver, Financial Hardship, Honorary, JAG, Lifetime, and ABA staff *** Fiscal year ABA membership numbers are reported as of August 31; all other monthly membership figures experience fluctuation and should remain proprietary **** Among members in at least one Entity Proprietary ABA Information: Confidential

39 FY2012 Monthly Entity Lawyer Membership Activity Report Month February Month 6 Discussion * Excluding Entity-Only Adds from the GPSolo pilot, YTD entity-only adds are up over FY2011 by 1,798 memberships. * Membership Department telemarketing recruitment netted more than 2,400 new entity memberships in January and February. Telemarketing will resume in May. * The YTD net activity has improved by more than 20% year over year. * In January, GPSolo added 16,899 lawyer members through an autoenrollment pilot. * The February 2012 drop for nonpayment occurred on February 29. * The YTD ABA+Entity drop/cancellation count has improved by more than 2,000 members (excluding the more than 8,000 GPSolo pilot members who were dropped due to non-payment). Entities YTD ABA+Entity Adds YTD LST Adds Entity Membership Activity: Lawyer Performance YTD Entity- Only Adds Current YTD ABA+Entity Drops YTD Entity- Only Drops YTD Reinstates YTD Net Activity YTD Net Activity Change from LY % Change from LY Admin. Law & Regulatory Practice , ,211-1, % Affordable Housing % Air & Space Law % Antitrust Law % Business Law ,711-5,269-2, ,637-5, % Communications Law % Construction Industry % Criminal Justice ,915-1, ,133-2, % Dispute Resolution , ,593-1, % Entertainment & Sports Industry % Environment, Energy & Resources , , % Family Law , , % Franchising % General Practice, Solo, and Small Firm ,468-10,684-1, ,361-2,371 8, % Govt. & Public Sector Division , ,564-1, % Health Law , % Indv. Rights & Responsibilities % Intellectual Property Law , ,128-2, % International Law ,029-1, ,780-1, % Judicial Division (combined) % Labor & Employment Law , ,175-2, % Law Practice Management ,521-1, ,662-1, % Legal Educ. & Admissions to Bar % Litigation ,811-6,312-2, ,712-6, % Public Contract Law % Public Utility, Comm. & Trans % Real Property, Probate & Trust ,054-2,828-1, ,532-2, % Science & Technology , % Senior Lawyers Division % State & Local Government Law % Taxation , ,661-1, % Tort Trial & Insurance Practice ,578-1, ,347-2, % TOTAL 7,195 8,178 31,718-58,758-23, ,134-44,348 9, % Last Year Center for Professional Responsibility % Young Lawyers Division 14, ,115-8, ,324-41, % 40,000 30,000 20,000 10, ,000-20,000-30,000-40,000-50,000-60,000-70,000 YTD Entity Lawyer Membership Activity 31,718 12,750 13,021 7,195 5,786 8, ,838-23,323-35,134-44,348-58,758-52,916 YTD ABA+Entity Adds YTD LST Adds YTD Entity-Only Adds YTD ABA+Entity Drops YTD Entity-Only Drops YTD Reinstates YTD Activity This Year Last Year *Data Source: Data warehouse through Decision Cast 'MMR Section Membership Activity Details' report Proprietary ABA Information: Confidential

40 FY2012 Entity Member Drop for Non-Payment of Dues Count Year 2012 Month February Drop Counts by Entity Lawyer Associate Students Totals Entities ABA + Entity Entity-Only ABA + ABA + Total Entity Entity-Only Total Entity Entity-Only Total ABA + Entity Entity-Only Admin. Law & Regulatory Practice , ,631 Admin. Law/Govt Affordable Housing , ,029 Air & Space Law Antitrust Law Anti/Govt Business Law 4, , , ,534 5, ,131 Communications Law , ,078 Construction Industry Criminal Justice 1, , , ,147 3, ,312 Criminal Justice/Govt Dispute Resolution , , ,041 2, ,485 Dispute/Govt Entertainment & Sports Industry Environment, Energy & Resources , ,263 Environment/Govt Family Law 1, , , ,665 Franchising General Practice, Solo, and Small Firm*** 9, , , ,125 10, ,902 Gen Practice/Govt Govt. & Public Sector Division 1, , , ,268 2, ,507 Health Law , ,139 Health/Govt Indv. Rights & Responsibilities , ,495 Intellectual Property Law 2, , , ,194 3, ,529 International Law 1, , , ,399 3, ,217 International Law/Govt Judicial Division (combined) Labor & Employment Law 2, , , ,178 Law Practice Management 1, , , ,939 Legal Educ. & Admissions to Bar Legal Educ/FAC Litigation 4, , , ,391 6, ,870 Public Contract Law , ,335 Public Contract/Govt Public Utility, Comm. & Trans Public Utility/Govt Real Property, Trust & Estate 2, , , ,821 Science & Technology , ,431 Senior Lawyers Division State & Local Government Law , ,531 State & Local/Govt Taxation 1, , , ,395 Tort Trial & Insurance Practice 1, , , ,197 Tort Trial/Govt TOTAL 44,653 2,955 47,608 3, ,633 20, ,589 68,252 3,578 71,830 Grand Total Center for Professional Responsibility Young Lawyers Division 34, , , ,069 ABA Drop Summary Lawyer Associate Students Totals ABA + Entity Entity-Only ABA + ABA + Total Entity Entity-Only Total Entity Entity-Only Total ABA + Entity Entity-Only Grand Total Total ABA Members DNP 71,114 N/A 71,114 2,015 N/A 2,015 4,938 N/A 4,938 78,067 N/A 78,067 Total ABA Members in a Section DNP** 30,358 1,920 32,278 1, ,658 3, ,466 35,156 2,246 37,402 % of Total ABA Members in a Section DNP 42.7% N/A 45.4% 76.0% N/A 82.3% 66.2% N/A 70.2% 45.0% N/A 47.9% Average Sections Per ABA Member DNP * Data Source: static IS files ** Does not include Center for Professional Responsibility or Young Lawyers Division *** Includes those members with unpaid FY2012 ABA dues who were auto-enrolled in GPSolo in mid-january. Proprietary ABA Information: Confidential

41 FY2012 Monthly Entity Membership Count Report Month March Month 7 Entity Membership: Summary Performance This Month YTD Current 7,316-37,448 Last Year 10,036-52,620 % Change from LY -27.1% 28.8% Discussion * Total entity memberships are up year over year by 0.5%. * Excluding the 7,945 members with paid FY12 ABA dues added through the GPSolo pilot, entity memberships are down just 1.1%. * Of those lawyers in an entity, the average SDF memberships held is 1.70, down from 1.78 in March Entity Membership Count: Category Performance Current YTD Last Year YTD Change Lawyer Associate Student Total Size Lawyer Associate Student Total Lawyer Associate Student Total Entities Admin. Law & Regulatory Practice 4, ,407 11, , ,428 11, % 3.1% -0.3% -3.2% Affordable Housing 2, ,513 5, , ,607 6, % 25.9% -2.6% -2.2% Air & Space Law 1, ,655 4, , ,253 3, % 17.6% 17.8% 17.0% Antitrust Law 6,202 1, , , , % 9.2% 4.8% -0.8% Business Law 36,397 1,612 11,669 49, ,515 1,532 11,767 50, % 5.2% -0.8% -2.2% Communications Law 2, ,143 6, , ,119 6, % 19.9% 0.6% -1.6% Construction Industry 4, , , , % 3.0% -4.0% -2.7% Criminal Justice 9, ,022 18, , ,043 18, % 21.3% -0.2% -0.1% Dispute Resolution 7,196 1,295 7,802 16, ,630 1,191 7,971 16, % 8.7% -2.1% -3.0% Entertainment & Sports Industry 2, , , , % 11.7% 7.2% 2.6% Environment, Energy & Resources 8, ,675 10, , ,578 9, % 3.1% 6.1% 1.7% Family Law 7, ,336 8, , ,286 8, % 11.9% 3.9% 2.3% Franchising 1, , , , % 10.7% 7.1% 1.2% General Practice, Solo, and Small Firm 18, ,624 27, , ,770 19, % 0.4% -1.7% 43.5% Govt. & Public Sector Division 6, ,572 16, , ,546 15, % 26.1% 0.3% 2.5% Health Law 7, ,124 8, , ,009 8, % 5.3% 11.4% 2.5% Indv. Rights & Responsibilities 2, ,159 8, , ,417 8, % 25.1% -4.8% -5.5% Intellectual Property Law 13, ,463 22, , ,531 23, % 6.9% -0.8% -1.4% International Law 9,859 1,575 10,085 21, ,969 1,542 10,352 21, % 2.1% -2.6% -1.6% Judicial Division (combined) 3, , , , % 26.7% 11.6% 6.7% Labor & Employment Law 16, ,368 23, , ,383 23, % 8.3% -0.2% -0.9% Law Practice Management 8, ,569 15, , ,591 15, % 0.5% -0.4% -4.1% Legal Educ. & Admissions to Bar 10,253 1,253 1,676 13, ,145 1,208 1,653 13, % 3.7% 1.4% 1.4% Litigation 42,535 1,216 10,757 54, ,160 1,170 10,876 56, % 3.9% -1.1% -3.0% Public Contract Law 4, ,009 9, , ,129 9, % 0.0% -2.3% -3.8% Public Utility, Comm. & Trans. 2, ,141 5, , ,214 6, % -10.0% -2.3% -5.3% Real Property, Trust & Estate 20, ,812 22, , ,843 23, % 9.9% -1.7% -3.4% Science & Technology 4, ,513 10, , ,498 10, % 2.3% 0.3% -1.8% Senior Lawyers Division 4, , , , % 6.7% -1.1% -5.9% State & Local Government Law 4, ,275 11, , ,952 11, % 2.7% 4.6% 3.9% Taxation 15, ,112 20, , ,226 21, % 4.4% -2.2% -1.8% Tort Trial & Insurance Practice 15, ,818 23, , ,965 23, % 14.4% 14.3% 0.6% TOTAL 303,159 17, , , ,406 16, , , % 7.8% 0.3% 0.5% Center for Professional Responsibility 1, ,893 1, , % 13.3% 13.7% 5.8% Young Lawyers Division 105, , , , , , % -0.1% -22.0% -2.8% ABA Membership Count: Category Performance Current YTD Last Year YTD Change Lawyer Associate Student Total Lawyer Associate Student Total Lawyer Associate Student Total ABA Members** 279,007 10,984 37, , ,549 10,393 36, , % 5.7% 3.1% 0.7% ABA Members in an Entity 178,223 9,051 24, , ,869 8,636 25, , % 4.8% -1.8% 4.1% % of ABA Members in an Entity 63.9% 82.4% 65.8% 64.7% 61.0% 83.1% 69.1% 62.6% 2.9% -0.7% -3.3% 2.1% Average Entities per ABA Member*** % 5.4% 12.9% -7.9% 600,000 YTD Entity Membership Count 580, , , , , ,000 Current 460,000 Last Year 440, , ,000 Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug * Data Source: Data warehouse through 'MMR Section Members' report ** Fiscal year ABA membership numbers are reported as of August 31; all other monthly membership figures experience fluctuation and should remain proprietary *** Among members in at least one entity Proprietary ABA Information: Confidential

42 FY2012 Monthly Entity Lawyer Membership by Dues Class Report Month March Month 7 Discussion * The majority (64.0%) of entity members are in Class 7 those who passed the bar 10+ years ago. * 12.2% of entity memberships are held by new bar admittees (collectively ADMNEW and LS Transfers) those who passed the bar less than one year ago. * While only 2.8% of the ABA s membership is made up of LS Transfer members, the group represents 9.5% of entity lawyer memberships a difference caused by members taking advantage of multiple free entity memberships as law students. Entity Lawyer Membership Count: Category Performance Current Lawyer Members % of Current Lawyer Members ADMNEW LS Transfer Class 1 Class 3 Class 5 Class 7 Discount** Total Size ADMNEW LS Transfer Class 1 Class 3 Class 5 Class 7 Discount** Entities Admin. Law & Regulatory Practice 116 1, , , % 25.7% 15.0% 3.6% 6.4% 45.6% 1.3% Affordable Housing , % 29.5% 16.5% 3.1% 5.2% 43.2% 1.0% Air & Space Law , % 21.1% 11.4% 3.2% 6.0% 55.2% 1.6% Antitrust Law , , % 1.6% 8.6% 5.4% 8.8% 70.3% 3.7% Business Law 992 2,346 3,638 1,561 2,644 24, , % 6.4% 10.0% 4.3% 7.3% 67.3% 2.0% Communications Law , % 32.3% 15.6% 2.2% 4.3% 43.6% 0.8% Construction Industry , , % 1.3% 5.6% 5.2% 9.5% 76.3% 1.1% Criminal Justice 726 1,771 1, , , % 19.3% 17.8% 3.5% 6.2% 43.4% 1.9% Dispute Resolution 79 1, , , % 20.7% 10.3% 1.5% 3.2% 58.1% 5.2% Entertainment & Sports Industry , , % 6.0% 17.1% 6.4% 9.0% 54.0% 2.0% Environment, Energy & Resources , , % 4.3% 11.2% 5.7% 8.4% 64.5% 1.7% Family Law , , , % 4.4% 14.4% 5.1% 8.2% 57.4% 3.1% Franchising , , % 0.9% 4.2% 5.1% 9.0% 78.0% 1.7% General Practice, Solo, and Small Firm 422 1,744 2, ,231 10,438 1,427 18, % 9.4% 13.0% 4.4% 6.7% 56.5% 7.7% Govt. & Public Sector Division 240 1,812 1, , , % 29.2% 18.1% 3.4% 6.2% 35.7% 3.6% Health Law , , % 2.9% 11.3% 5.3% 8.8% 66.3% 1.8% Indv. Rights & Responsibilities , , % 36.3% 16.5% 1.5% 2.8% 37.3% 3.6% Intellectual Property Law 528 1,497 2, ,285 6, , % 11.1% 15.2% 6.4% 9.5% 51.7% 2.1% International Law 346 1,752 1, , , % 17.8% 14.8% 3.9% 7.0% 50.4% 2.6% Judicial Division (combined) , , % 2.5% 3.1% 1.1% 3.1% 83.4% 6.1% Labor & Employment Law 475 1,292 1, ,403 10, , % 7.8% 10.3% 4.6% 8.4% 64.2% 1.8% Law Practice Management 87 1, , , % 12.7% 8.0% 1.9% 3.9% 70.0% 2.5% Legal Educ. & Admissions to Bar , , % 2.6% 3.0% 3.9% 7.8% 82.0% 0.4% Litigation 1,000 2,396 4,400 2,185 3,768 28, , % 5.6% 10.3% 5.1% 8.9% 66.3% 1.4% Public Contract Law , , % 21.5% 13.1% 3.6% 5.9% 52.3% 2.1% Public Utility, Comm. & Trans , , % 22.3% 11.1% 2.6% 4.9% 56.1% 2.1% Real Property, Trust & Estate , ,510 14, , % 2.4% 8.2% 4.3% 7.5% 69.7% 4.8% Science & Technology , , % 23.4% 15.1% 5.0% 6.6% 46.7% 1.7% Senior Lawyers Division ,724 1,615 4, % 0.3% 0.4% 0.3% 0.2% 62.0% 36.7% State & Local Government Law 88 1, , , % 25.0% 11.8% 2.6% 5.3% 51.7% 1.6% Taxation 302 1,098 1, ,028 10, , % 7.2% 10.0% 4.4% 6.7% 66.4% 3.3% Tort Trial & Insurance Practice 396 1,181 1, , , % 7.5% 8.7% 3.3% 6.1% 70.2% 1.7% TOTAL 8,186 28,724 32,781 12,826 21, ,392 9, , % 9.5% 10.8% 4.2% 7.2% 62.5% 3.1% Center for Professional Responsibility , , % 1.1% 3.0% 1.8% 4.9% 82.7% 5.4% Young Lawyers Division 33,845 7,791 42,613 12,130 7,462 1, , % 7.4% 40.3% 11.5% 7.1% 1.0% 0.7% ABA Lawyer Membership Count: Category Performance Current Lawyer Members New Bar Admittee LS Transfer Class 1 Class 3 Class 5 Class 7 Discount Total % of Current Lawyer Members New Bar Admittee LS Transfer Class 1 Class 3 Class 5 Class 7 Discount ABA Members*** 33,850 7,795 42,960 14,320 21, ,457 16, , % 2.8% 15.4% 5.1% 7.7% 51.1% 5.8% ABA Members in an Entity 7,499 5,784 20,215 9,173 15, ,037 6, , % 3.2% 11.3% 5.1% 8.5% 64.0% 3.6% % of ABA Members in an Entity 22.2% 74.2% 47.1% 64.1% 70.2% 80.1% 39.8% 63.9% Average Entities per ABA Member**** * Data Source: Data warehouse through 'MMR Section Members' report ** The "Discount" category includes 70/25, 75/25, Disability Waiver, Financial Hardship, Honorary, JAG, Lifetime, and ABA staff *** Fiscal year ABA membership numbers are reported as of August 31; all other monthly membership figures experience fluctuation and should remain proprietary **** Among members in at least one Entity Proprietary ABA Information: Confidential

43 FY2012 Monthly Entity Lawyer Membership Activity Report Month March Month 7 Discussion * Excluding Entity-Only Adds from the GPSolo pilot, YTD entity-only adds are up over FY2011 by 1,169 memberships. * The YTD net activity has improved by more than 25% year over year. * In January, GPSolo added 16,899 lawyer members through an autoenrollment pilot. * The YTD ABA+Entity drop/cancellation count has improved by 2,031 members (excluding the 8,044 GPSolo pilot members who were dropped due to non-payment). YTD ABA+Entity Adds YTD LST Adds Entity Membership Activity: Lawyer Performance YTD Entity- Only Adds Current YTD ABA+Entity Drops YTD Entity- Only Drops YTD Reinstates YTD Net Activity YTD Net Activity Change from LY % Change from LY Entities Admin. Law & Regulatory Practice , ,037-1, % Affordable Housing % Air & Space Law % Antitrust Law % Business Law ,878-5,313-2, ,934-4, % Communications Law % Construction Industry % Criminal Justice ,011-2,949-1, ,741-1, % Dispute Resolution , ,345-1, % Entertainment & Sports Industry % Environment, Energy & Resources , % Family Law , % Franchising % General Practice, Solo, and Small Firm ,531-10,711-1, ,850-1,977 8, % Govt. & Public Sector Division ,927-1, ,272-1, % Health Law , % Indv. Rights & Responsibilities % Intellectual Property Law , ,749-1, % International Law ,051-1, ,448-1, % Judicial Division (combined) % Labor & Employment Law ,803-1, ,789-1, % Law Practice Management ,541-1, ,422-1, % Legal Educ. & Admissions to Bar % Litigation 1, ,967-6,360-2, ,909-5, % Public Contract Law % Public Utility, Comm. & Trans % Real Property, Probate & Trust ,154-2,842-1, ,219-2, % Science & Technology , % Senior Lawyers Division % State & Local Government Law % Taxation , ,386-1, % Tort Trial & Insurance Practice ,607-1, ,034-2, % TOTAL 9,647 11,414 33,090-59,251-25,052 2,167-27,985-37,455 9, % Last Year Center for Professional Responsibility % Young Lawyers Division 21, ,320-8, ,227-37,211 1, % 40,000 20, ,647 11,414 7,324 33,090 15,631 15,022 YTD Entity Lawyer Membership Activity 2,167 3,453-20,000-40,000-60,000-80,000-25,052-25,640-27,985-37,455-59,251-53,245 YTD ABA+Entity Adds YTD LST Adds YTD Entity-Only Adds YTD ABA+Entity Drops YTD Entity-Only Drops YTD Reinstates YTD Activity This Year Last Year *Data Source: Data warehouse through Decision Cast 'MMR Section Membership Activity Details' report Proprietary ABA Information: Confidential

44 FY2011 Final Drop for Non-Payment Numbers SECTION ABA SECTION DROPS LAWYER ASSOCIATE* STUDENT SECTION ABA SECTION ABA SECTION ONLY DROPS TOTAL SECTION DROPS ONLY DROPS TOTAL SECTION DROPS ONLY DROPS GRAND KEY TOTAL TOTAL AH ,223 AL , , AL/GD AS AT AT/GD CI CL 4, , , , CO CR 1, , , , CR/GD DR , , DR/GD EP 1, , ES FL 1, , FR GD , , GP 1, , , , GP/GD HL HL/GD IC 1, , , , IC/GD IL 1, , , , IL/GD IR , , JA JC JD JE JF JG LE LE/FAC LG , , LG/GD LL 2, , , , LT 5, , , , NR , NR/GD PC , , PC/GD PL PL/GD PT 1, , , , RP 2, , SL ST TX 1, , TOTAL 36,519 2,255 38,774 2, ,977 26, ,178 68,929 CP YL 30, , ,647 TOTAL 30, , ABA Members IAS 22,474 1,525 23,999 1, , ,554 Total ABA Drops 62,595 62,595 1,843 1,843 6,128 6,128 70,566 Percent of Members IAS Dropped 36% 38% 72% 74% 64% 68% 42% * The Associate category includes Student Associates

45 From: To: Cc: Subject: Date: Michael E Herz Barney, Adrienne howard@sandlerreiff.com; Zaring, David (zaring@wharton.upenn.edu); Hughes, Jack (JHughes@blg.com) Ad Law Section HOD Resolutions Friday, March 30, :38:49 PM Dear Adrienne, The Section of Administrative Law and Regulatory Practice anticipates bringing the following three resolutions to the House of Delegates at the Annual Meeting: (1) Disclosure of Political Spending The Citizens United decision has made disclosure of political spending more important than ever; indeed the rationale of the opinion relied on the existence of full and meaningful disclosure. In practice, and under relevant legal rules, spending is not as transparent as it should be. This resolution urge full disclosure of political and campaign spending by corporations, unions, 501(c)(4) organizations and other similar non-profit corporations, and all 527 organizations and endorse subjecting such spending to the same disclosure requirements that apply to other political committees. Contact person: Elizabeth Howard Sandler Reiff Young & Lamb 1025 Vermont Avenue NW, Suite 300 Washington, DC howard@sandlerreiff.com (202) (2) International Regulatory Cooperation In today s global economy, with international trade at all-time highs, regulatory action, or inaction, by foreign governments can significantly affect the regulatory efforts of government agencies in this country. Inconsistent regulatory regimes can directly harm US programs, as when pollution or unsafe products cross borders, and can interfere with international trade. This resolution would urge federal agencies to pursue effective strategies for cooperation with their foreign counterparts and, as appropriate, to cooperate directly with foreign authorities. This issue was the subject of recommendations by the Administrative Conference of the United States in 1991 and again in 2011, and the resolution and report would draw on, though not be identical to, ACUS s recommendations. Contact person: Professor David Zaring The Wharton School University of Pennsylvania

46 662 Jon M. Huntsman Hall 3730 Walnut Street Philadelphia, PA (215) (3) Federal Contractor Ethics Federal employees are subject to a completely different set of ethics rules than are contractor employees. Employees must comply with extensive limitations on conflicts of interest, gifts, post-employment contacts with the government, and the like. With limited exceptions, none of these apply to the employees of government contractors. Yet employees and contractors are in many ways functionally indistinguishable. The resolution rests on the conclusion that some, though not all, of the conflict principles applicable to employees should also apply to contractors. In particular, it will likely urge that contractor employees be subject to restrictions on (a) personal conflicts of interest and (b) use of certain non-public information. This issue was the subject of a recommendations by the Administrative Conference of the United States in 2011, and the resolution and report would draw on, though not be identical to, ACUS s recommendation. Contact person: Jack Hughes Borden Ladner Gervais World Exchange Plaza, 100 Queen Street, Suite 1100, Ottawa Ontario K1P 1J9 Canada (613) JHughes@blg.com Please let me know if there is anything else you need at this point. Thanks, Michael Michael Herz Chair, ABA Section of Administrative Law and Regulatory Practice Visiting Research Scholar, Program in Law and Public Affairs, Princeton University Arthur Kaplan Professor of Law, Cardozo School of Law (609) (o) (917) (c) herz@yu.edu

47 AMERICAN BAR ASSOCIATION SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE RECOMMENDATION TO THE HOUSE OF DELEGATES RECOMMENDATION RESOLVED, that the American Bar Association supports efforts to increase disclosure of political and campaign spending and urges Congress to require corporations, unions, 501(c)(4) and similar non-profit corporations, and all 527 organizations engaged in making or receiving political contributions or making political expenditures to report such contributions or expenditures to the Federal Election Commission according to the same requirements applicable to other political committees regulated by the Commission.

48 Preliminary Draft Only. April 9, Do not cite or distribute. REPORT The Supreme Court s landmark decision in Citizens United v. Federal Election Commission, 1 represents the most important campaign finance case in many years. The Court was presented with a non-profit corporation, partly funded by for-profit corporations, seeking to make what amounted to electioneering communications in violation of the Bipartisan Campaign Reform Act (BCRA) of Invoking the First Amendment, the Court struck down several key provisions of BCRA including its ban on certain political spending by corporations and unions. While Citizens United is rightly credited with fundamentally altering the campaign finance regime in this country, the Court left intact one key aspect of campaign finance regulation: the central role of disclosure. However, in the current state of campaign finance law the goal of full disclosure is far from being attained. Disclosure is not mandated for certain entities commonly engaged in political and campaign spending, including 501(c)(4) non-profit corporations and some 527 political organizations. These contributions and expenditures represent an increasing portion of campaign spending, yet they remain hidden from public sight. This resolution addresses this gap; it does not concern the wisdom or constitutionality of direct regulation of campaign contributions and expenditures. The Citizens United decision changed the role of money in political campaigns by opening the door to unlimited political spending by corporations and unions. 3 At the same time, eight Justices agreed that disclosure of the entities and people behind that spending was crucial to a well-functioning campaign finance system. 4 Indeed, not only did the Court uphold the disclosure requirements before it, its rationale for striking down prohibitions on spending relied on such requirements. As the Court stated: The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages. 5 This emphasis is in keeping with a long series of campaign finance cases, including Buckley v. Valeo 6 and McConnell v. FEC, 7 which had also endorsed and upheld disclosure requirements and on which Citizens United expressly relied. 8 The Court s confidence in the transparency of political speech is, unfortunately, unwarranted. The disclosure regime instituted with the 2002 Bipartisan Campaign Reform Act 1 Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). 2 Pub. L. No ; 116 Stat. 81 (amending the Federal Election Campaign Act), codified at 2 U.S.C. 431 et seq. BCRA is also known as the McCain-Feingold bill. 3 Adam Liptak, A Blockbuster Case Yields an Unexpected Result, New York Times, September 19, 2011, at A13, available at: 4 Citizens United, 130 S. Ct. at Id. See also id. at 917 ( With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.... The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. ) U.S. 936 (1976) U.S. 93 (2003) S. Ct. at

49 Preliminary Draft Only. April 9, Do not cite or distribute. (BCRA) 9 has proven inadequate. It turns out to be relatively simple to remain anonymous while making political contributions or expenditures; the mechanisms of choice are 501(c)(4) nonprofit corporations, 527 organizations, and so-called super PACs. It is important to understand these entities and how they are used to skirt disclosure requirements. A 501(c)(4) entity is a non-profit corporation, operated exclusively for the promotion of social welfare. 10 Internal Revenue Service (IRS) regulations specify that: An 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. An organization embraced within this section is one which is operated primarily for the purpose of bringing about civic betterments and social improvements. 11 Although IRS regulations specifically exclude direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office from the category of activities that promote the social welfare, 12 a 501(c)(4) is allowed to engage in some political activity, as long as that is not its primary activity. 13 While there is no clear test for determining when political activity becomes an organization s primary activity, the threshold is generally understood to be near 50% of total expenditures. 14 If an organization crosses that line it will likely have to become a 527 entity and be subject to the rules of those organizations, described below. 15 To the extent a 501(c)(4) engages in political campaign activities (taking care to avoid crossing the primary activity threshold), it is subject to some disclosure. These organizations must disclose political campaign activities on the annual 990 Form filed with the IRS, and this information is made public. However, contributions to a 501(c)(4) organization are not made public. Such an organization must report to the IRS contributions it receives of over $5,000, but that information does not become publicly available. 16 The second important entity is the 527 organization. These tax-exempt political organizations 17 were originally designed to increase the transparency of political activity in the post-watergate era. Since 2000, 527s have had to disclose to the IRS both contributions they 9 Pub. L. No ; 116 Stat. 81 (amending the Federal Election Campaign Act), codified at 2 U.S.C. 431 et seq. BCRA is also known as the McCain-Feingold bill. 10 I.R.C. 501(c)(4). 11 Treas. Reg (c)(4). 12 Treas. Reg (c)(4)(a)(2)(ii). 13 See Rev. Rul , C.B. 332 (interpreting I.R.C. 501(c)(4) and Treas. Reg (c)(4)(a)(2)(ii) to allow 501(c)(4) to engage in political campaign activities including financial assistance to candidates and in-kind contributions); IRS Website, Social Welfare Organizations, available at: 14 B. Holly Schadler, The Connection, Alliance for Justice, 2006, at 11; Cory G. Kalanick, Note, Blowing Up the Pipes: The Use of (C)(4) to Dismantle Campaign Finance Reform, 95 Minn. L. Rev. 2254, , (2011) [hereinafter Kalanick Blowing up the Pipes]. 15 Ciara Torres-Spelliscy, Hiding Behind the Tax Code, The Dark Election of 2010 and Why Tax-Exempt Entities Should be Subject to Robust Federal Campaign Finance Disclosure Laws, 16 Nexus: Chap. J.L & Pol y 59, 79 ( ) [hereinafter Torres-Spelliscy, Hiding Behind the Tax Code]. 16 Torres-Spelliscy, Hiding Behind the Tax Code at I.R.C

50 Preliminary Draft Only. April 9, Do not cite or distribute. receive and expenditures they make. These disclosures are extensive and can be found on the IRS web site. However, their value is significantly undercut by the fact that (a) the web site is not easily searchable and, more important, (b) the disclosure generally does not occur until after the relevant election. 18 In the 2004 presidential cycle, several prominent 527s, including Swift Boat Veterans for Truth and America Coming Together, brought the 527 entity into the public consciousness. In response to the resulting pressure to classify 527s as political committees subject to regulation by the Federal Election Commission (FEC), 19 the Commission began reviewing these entities on a case-by-case basis. 20 The FEC s decides if a 527 must register as a political committee based, in part, on a determination as to if the major purpose of the organization is to influence elections. 21 According to the FEC, all political committees that register and file reports with the FEC are 527 organizations, but not all 527 organizations are required to file with the FEC. 22 The result is that some 527s fall under the FEC reporting regime, which is transparent and frequent, and some continue to fall under the IRS regime, which is neither. With the new, albeit limited, FEC involvement in 527 disclosure and the emergence of new funding mechanisms, pure 527 organizations appear to be falling out of favor. 23 The final important entity is the super PAC. In brief, a super PAC is a 527 entity for tax purposes and a political organization for FEC purposes, subjecting it to FEC regulation. Super PACs emerged as a result two key court decisions, Citizens United and the D.C. Circuit s decision in SpeechNow.Org v. FEC. 24 As stated above, Citizens United held that corporate funding of political activity was constitutionally protected speech, but it left intact the ban on direct corporate donations to candidates and overall limits on donations to candidates from individuals and PACs. SpeechNow, applying the rationale of Citizens United, subsequently struck down contribution limits on organizations making independent expenditures. 25 The result of these rulings was the creation of Independent Expenditure PACs ( IE-PACS ), more commonly known as super PACs, which can accept unlimited corporate or union money for the purposes of making independent expenditures, but cannot funnel that money directly to federal candidates. Super PACs are regulated by the FEC and follow the same reporting requirements as other PACs. This consists mainly of quarterly or monthly reports to the FEC with detailed information regarding contributions and disbursement totals, disbursement purposes, and donor 18 Torres-Spelliscy, Hiding Behind the Tax Code at In contrast to 527s being classified as political organizations for IRS purposes. 20 Kalanick, Blowing up the Pipes at 2254, Paul S. Ryan, 527s in 2008: The Past, Present, and Future of 527 Organization Political Activity Regulation, 45 Harv. J. on Legis. 471, , (Summer 2008) (expressing frustration with the lack of clear guidance on which 527s must register with the FEC). 22 Federal Election Commission Website, Quick Answers to General Questions, available at: 23 Kalanick, Blowing up the Pipes at SpeechNow.Org v. Federal Election Commission, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc). 25 Id.; 2 U.S.C 431(17) (defining independent expenditure as an expenditure by a person for a communication expressly advocating the election or defeat of a clearly identified candidate that is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or their agents, or a political party committee or its agents ). 3

51 Preliminary Draft Only. April 9, Do not cite or distribute. information. 26 Individual independent expenditures must be reported more frequently, usually within 48 hours of the expenditure. 27 In practice, a donor -- be it a person, a corporation, or a union -- wishing to remain anonymous can make a donation to a 501(c)(4), which can then give the money to a super PAC, which can then make an independent expenditure to influence a political campaign. The super PAC will disclose its donor, the non-profit, in its regular FEC filings, effectively masking the true source of the funds. These arrangements exist across the political spectrum. For example, Karl Rove and Ed Gillespie founded American Crossroads, a super PAC, which is affiliated with the conservative Crossroads GPS, a 501(c)(4); former White House Deputy Press Secretary Bill Burton founded a super PAC, Priorities USA Action, which is affiliated with a 501(c)(4), the liberal Priorities USA. 28 Comedian Stephen Colbert, who has been mining campaign finance issues for television humor, exemplified and lampooned this structure when he founded a super PAC, Americans for a Better Tomorrow, Tomorrow, and a 501(c)(4), Anonymous Shell Corporation, with the latter s sole function being to funnel anonymous funds to the former. 29 The upshot of these arrangements is that the donors to the non-profit are never publically revealed, as long as the non-profit maintains its status as a 501(c)(4) and does not slip into 527 status by failing the IRS s primary purpose test. As discussed above, a 501(c)(4) must not allow political activity to become its primary activity. However, the IRS will not audit an organization while its tax year is still open, essentially until the organization files all appropriate paperwork for a given tax year. In effect, this allows for a major lag in any reporting, especially in the first year of an organization s existence. 30 For example, assume a hypothetical party-backed 501(c)(4) organization was formed in July 2010, early enough to be involved in the 2010 midterm elections. By way of several easily obtained IRS filing extensions, the organization s first public disclosure would not be required until May 2012, with its first tax year remaining open. 31 Once the tax year closed, the IRS would have to undertake an investigation and determine that the organization failed the primary purpose test. 32 By the time any investigation into the organization s purpose could be undertaken, its effect on the 2010 election would be long over and the organization itself could be dissolved. 33 In fact, it is not unreasonable to imagine a scenario where the organization s involvement in the 2012 election could be complete before any meaningful action could be taken by the IRS. 26 FEC Website, 2011 Reporting Dates, available at: 27 Id. available at: 28 Joshua Boak, Enter the Era of Super Pacs, Campaigns & Elections, July/Aug 2011, at Justin Sink, Colbert Group Creates Shell Corporation to Lampoon Karl Rove s Groups, The Hill, September 30, 2011, available at: 30 Kinsley, Nonprofits at That public disclosure would consist of IRS Form 990, which would not reveal any donor information. 32 Kinsley, Nonprofits at Id. 4

52 Preliminary Draft Only. April 9, Do not cite or distribute. This Recommendation recommends bringing disclosure in line with the ideal invoked by the Supreme Court by placing all political organizations and all political spending under the same disclosure regime. 34 This is best accomplished through two straightforward changes. First, campaign expenditure should be defined as any contribution, disbursement, or, importantly, transfer related to making an electioneering communication or independent expenditure. Second, any group making a campaign expenditure should be subject to the disclosure requirements applicable to PACs and other political committees. 35 Uniform definitions and disclosure requirements would greatly simplify the current hodgepodge of entities making political expenditures and the myriad of rules that govern them. But simplification is a happy byproduct. More important, these disclosure requirements would ensure actual, across-the-board transparency. Consider the disclosures that would occur under this regime. In the 2012 federal election cycle all covered entities would have filed a mid-year report covering January through June 2011 on July 31, 2011, and a year-end report covering July through December on January 31, Monthly filings would have commenced on February 20, 2012, with a report covering January, and continue monthly through an October 20 report, which would cover September Prior to the general election, entities would be required to file a pre-election report on October 25, covering the first half of that month. Thirty days after the election, on December 6, 2012, a postelection report would be due. Finally, on January 31, 2013, a year-end report would be due. 37 Throughout the two-year cycle, any electioneering communications amounting to $10,000 in the aggregate 38 would trigger an obligation to report within 24 hours. 39 Additionally, independent expenditures 40 of more than $10,000 would be disclosed within 48 hours, and within 20 days of an election, independent expenditures of $1,000 or more would have to be disclosed within 24 hours The Democracy Is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE) Act, recently reintroduced by Rep. Chris Van Hollen in the House, represents the most polished and viable version of this approach. Bill text available at: 35 Currently, PACs (including super PACs) can chose to disclose on either a monthly or quarterly basis. Selecting quarterly reporting requires additional reports before and after primary, general and special elections, which can be onerous if a PAC operates in multiple states. Most major super PACs operating in the 2012 cycle have selected monthly reporting. Federal Election Commission, Campaign Guide: Corporations and Labor Organizations (2007) available at: See supra notes Federal Election Commission Website, 2011 Reporting Dates, available at: 37 Federal Election Commission Website, 2012 Reporting Dates, available at: U.S.C. 434(f)(3) (defining electioneering communication as any broadcast, cable, or satellite communication which refers to a clearly identified candidate for Federal office is made within 60 days before a general, special, or runoff election for the office sought by the candidate; or 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate. ). 39 Federal Election Commission Website, 2012 Reporting Dates, available at: 40 See supra note Federal Election Commission Website, 24 and 48 Hour Reports of Independent Expenditures for 2012, available at: 5

53 Preliminary Draft Only. April 9, Do not cite or distribute. These disclosure requirements are meaningful and enjoy wide, bi-partisan support. There is no justification for applying them only to a portion of functionally indistinguishable expenditures. The recent DC District Court case Van Hollen v. FEC 42 exemplifies the trend towards broader campaign disclosure. While the narrow holding of the case was to invalidate an FEC regulation limiting the disclosure of certain donations made for electioneering communications, the court also noted that Congress spoke broadly about disclosure when writing BCRA, and those broad provisions were untouched by Citizens United. 43 The immediate effect of the ruling may be that all entities making electioneering communications will have to disclose to the FEC donors who contribute an aggregate amount of $1,000, but observers opinions are divided as to what exactly the case will mean. 44 Importantly, the court stated that it is up to Congress to tailor BCRA to the situation created by recent judicial decisions. 45 This Recommendation endorses uniform disclosure rules for 501(c)(4)s and other entities that spend on elections anonymously. It takes no position on and would not affect the First Amendment holdings of Citizens United. Corporate, union, and non-profit money could and would still to flow to super PACs and other 527s, it would simply be disclosed to the FEC and the public in timely and uniform fashion. This is precisely the world envisioned by the Court in Citizens United, one in which transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages Van Hollen v. Federal Election Commission, -- F. Supp. 2d --, No , (D.D.C. March 30, 2012) (Mem. Op.). 43 Id. at 2, 6, 20-28, Id. at 3-4; Schoenberg and Jonathan D. Salant, Campaign Donor Advertising Rule Invalidated by U.S. Judge, Bloomberg, March 31, 2012 available at: Associated Press, Federal Judge Says Federal Election Commission Went Too Far in Shielding Campaign Ad Donors, Washington Post, March 30, 2012, available at: Peter Overby, Partisan Divide May Keep FEC from Heeding Judge s Order on Ad Loophole, NPR Its All Politics Blog, available at: 45 Van Hollen at Citizens United, 130 S. Ct. at

54 Preliminary Draft Only. April 9, Do not cite or distribute. Executive Summary a) Summary of recommendation The recommendation urges Congress to mandate disclosure for all political expenditures and contributions. b) Summary of the issues that the recommendation addresses The Supreme Court left intact, and emphasized the importance of, disclosure requirements for political spending when crafting its Citizens United decision. However, by leveraging the unique status of 501(c)(4) organizations, which can spend some portion of their funds on political activity and do not have to publically disclose their donors, political groups are able to hide the sources of much political speech. Secondarily, other political organizations organized under 527 of the IRS code do not disclose their donors and expenditures in a uniform and useful fashion. c) An explanation of how the proposed policy position will address the issue New legislation would require groups making campaign expenditures to report such activity to the Federal Election Commission for public disclosure in a manner consistent with existing reporting requirements for other political committees. These efforts will not contradict the First Amendment holdings contained in Citizens United; it would simply mandate transparency, which was held to be a crucial aspect of a working campaign finance regime by the Court. d) Related legislation The Democracy Is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE) Act (H.R. 4010) recently reintroduced by Rep. Chris Van Hollen, represents the current legislative version of this approach. In 2010, a similar bill passed the House but died in the Senate. 7

55 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW REPORT TO THE HOUSE OF DELEGATES RESOLUTION RESOLVED, That the American Bar Association urges the Department of Homeland Security ( DHS ) to create a Haitian Family Reunification Parole Program, 1 and immediately begin paroling into the United States already-approved Haitian beneficiaries of family-based visa petitions. 1 See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (permitting parole of an alien into the United States for urgent humanitarian reasons or significant public benefit ); see also 8 CFR 212.5(c) & (d) (discretionary authority for granting parole).

56 REPORT I. HAITAIN FAMILY REUNIFICATION PAROLE PROGRAM The aim of this Resolution is to support the creation of a Haitian Family Reunification Parole Program. Such program would enable already-approved beneficiaries of family-based immigration petitions the ability to travel to the United States to wait for a permanent resident visa rather than waiting in Haiti where the average delay is 3-11 years. 2 Authority to create this program rests within the Secretary of Homeland Security s existing parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act (INA). 3 Approximately 112,450 Haitians currently possess approved family-based petitions and are waiting for immigrant visas to become available in order to travel to the United States. 4 Allowing these Haitians to come to the U.S. in the near-term will aid ongoing humanitarian efforts following the January 2010 earthquake that devastated Haiti. The efforts outlined in this Resolution will specifically assist in Haiti s reconstruction process by allowing more Haitians to send remittances back home to their families. 5 According 2 Royce Murray & Sarah Williamson, Migration as a Tool for Disaster Recovery 1-60 (Center for Global Development, Working Paper No. 225, 2011), available at 3 INA 212(d)(5)(A) authorizes the Attorney General to grant parole for urgent humanitarian reasons, however, this authority was transferred to the Secretary of Homeland Security once immigration functions housed within the Department of Justice and the Immigration and Naturalization Service (INS) were moved to the Department of Homeland Security (DHS) and its component immigration agencies. Section 1512(d) and 1517 (the transition and savings provisions) of the Homeland Security Act of 2002 (HSA) provide that references relating to the INS in statutes and regulations shall be deemed to be related to the appropriate official or office within DHS. Accordingly, the Secretary of Homeland Security possesses authority to grant parole. See Authority of the Secretary of Homeland Security, Delegations of Authority; Immigration Laws, 68 FR (March 6, 2003) available at: 4 Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-based preferences Registered at the National Visa Center, Nov. 1, 2010, at 3, available at Urging the Obama Administration to Create a Haitian Family Reunification Parole Program to Help Haiti Recover, Save Lives, and End a Double Standard, The Council of the city of Philadelphia, April 28, 2011). 5 "Haiti: Expedite visas for family members," Boston Globe editorial, July 17, 2010, s_for_family_members/; "Helping Haitians help themselves," Los Angeles Times editorial, July 21, Helping the Haitians, Philadelphia Inquirer editorial, July 2, 2010, Posting of Dilip Ratha People Move, A blog about migration, remittances, and development blog, Jan. 19, :37 EST. President Obama Could Rapidly Aid Haitian Immigration Seekers, Washington Post editorial, June 26, The U.S. Should Welcome Haitians In, Washington Post editorial, January 29, 2010, U.S. Conference of Mayors Resolution #43: Urging Parole for all Haitian Beneficiaries of Approved Immigrant Visa Petitions and Expedited Consideration and Approval of all Pending Immigrant Visa Petitions. June 14,

57 to the World Bank remittances to Haiti are 20% of Haiti s GDP and key to Haiti s recovery. 6 If just one quarter of the DHS-approved beneficiaries were permitted to come to the United States, approximately 300,000 Haitian earthquake victims would benefit from remittances sent back to Haiti. 7 This Resolution can also potentially save the lives of many DHS approved beneficiaries as many of them may have to wait up to eleven years for their priority dates to become current. 8 The earthquake exacerbated already grave economic and health conditions in Haiti, thus beneficiaries who remain in Haiti are at risk of exposure to cholera, gender-based violence, depraved tent-city conditions, and political and environmental instability. 9 Accordingly, DHSapproved beneficiaries who are forced to wait in Haiti may perish before they are reunited with their families in the United States. Some critics have expressed concern about creating a precedent that would be difficult to follow regarding natural disaster-affected countries, but such precedent already exists. To alleviate concerns about overwhelming resources, DHS need not tackle the entire group of 112,450 at once. The U.S. Government could prioritize parole applications based on the chronology of one s visa priority date or could focus on a single smaller subset of beneficiaries, such as the 15, spouses and minor children of lawful permanent residents ( Preference Category 2A ). Moreover, paroling in already-approved family-based petition beneficiaries does not increase the overall numbers of those immigrating, as these individuals will eventually receive a visa. The only factor that is affected is timing, which can be a life or death decision for a Haitian. The Secretary of Homeland Security and her pre-dhs immigration predecessors at the Department of Justice have possessed statutory authority to parole in non-citizens for decades. Section 212(d)(5)(A) of the INA (8 USC 1182(d)(5)(A)) and Section of Title 8 of the Code of Federal Regulations (CFR) authorize the Secretary and her designees to issue parole to foreign nationals on a case-by-case basis for urgent humanitarian reasons if a visa is unavailable. 11 Since the 1950s the United States government has repeatedly awarded parole status to victims of tragedies, and has continued to exercise its power to grant parole to migrants from other countries, including Cuba. 12 In 2007 the Cuban Family Reunification Parole Program which enables thousands of Cuban beneficiaries to come to the U.S. to wait for their visa priority 6 Haiti Remittances Key to Earthquake Recovery, World Bank, May 17, 2010; "Helping Haitians help themselves," Los Angeles Times editorial, July 21, 2010, ,0, story. 7 Urging the Obama Administration to Create a Haitian Family Reunification Parole Program to Help Haiti Recover, Save Lives, and End a Double Standard, The Council of the city of Philadelphia, (April 28, 2011). 8 Id. 9 Id. 10 Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-based preferences Registered at the National Visa Center, Nov. 1, 2011, at 5, available at 11 Government Accountability Office (GAO), Immigration Benefits: Internal Controls for Adjudicating Humanitarian Parole Cases Are Generally Effective, But Some Can Be Strengthened, (Feb. 2008) available at: 12 Memorandum In Support of a United States Policy Granting Humanitarian Parole for Haitian Victims of the Earthquake of Jan. 12, 1010 (Feb. 25, 2010), available at (hereinafter IJDH Parole Memo). 3

58 dates to become current, was updated to address a similar backlog of cases. 13 The Secretary commenced such a program for Cubans in order to promote family unity in the face of long waits for visas and to encourage legal, orderly migration. Haitian families deserve the same opportunity to be reunited with their loved ones in an analogous manner. Indeed, after the 2010 earthquake DHS issued parole to over 1,000 Haitian orphans who were in the process of being adopted by U.S. Citizen prospective adoptive parents at the time of the disaster. 14 However, Haitian families split between the U.S. and Haiti were not reunited during this time with the use of parole. Moreover, the Secretary of Homeland Security s discretion to grant parole is quite broad, as has been demonstrated in the decision to grant parole to orphans in Haiti. 15 Decisions are largely based on whether there are urgent, compelling reasons why the person needs to enter the United States, such as severe medical conditions and family reunification. 16 The January 12, 2010 earthquake in Haiti killed over 200,000 people and further crippled its government, economy, and already crumbling infrastructure. A subsequent cholera outbreak infected over 400,000 people and killed more than 6, Hundreds of thousands of Haitians continue to live in displacement camps largely scattered around the capital of Port-au-Prince, almost two years after the earthquake. 18 The dire, life-threatening circumstances in which Haitians find themselves fall squarely within these broad humanitarian criteria. Finally, as of November 2011, more than 112,000 Haitian family members had already established their family relationship to a U.S. Citizen or lawful permanent resident and were waiting their turn for an immigrant visa to be issued. 19 Based on the number of petitions, the average wait time is between three and 11 years. As a practical matter, any efforts to parole these 13 See DHS Office of the Press Secretary, USCIS Will Further Strengthen Measures That Support the Reunification of Families Separated by the Castro Regime, Aug. 11, 2006, USCIS, Questions and Answers: Cuban Family Reunification Parole Program, Nov. 21, 2007 (updated Jan. 28, 2008), 14 Secretary Napolitano Announces Humanitarian Parole Policy for Certain Haitian Orphans. 18 Jan See also Whitney A. Reitz, Reflections on the Special Humanitarian Parole Program for Haitian Orphans, New York Law School Law Review, Vol 55, 2010/11, pp ; USCIS, Questions and Answers: Information for U.S. Citizens in the Process of Adopting a Child from Haiti, last updated Feb. 26, 2010, available at: 210VgnVCM ca60aRCRD&vgnextchannel=4653d5e VgnVCM ca60aRCRD. 15 INA sec. 212(d)(5); 8 CFR See also ibid, U.S. Government Accountability Office Report on Parole: 16 INA sec. 212(d)(5); 8 CFR 212.5; IJDH Parole Memo. See also U.S. Citizenship and Immigration Services list of what qualifies and Humanitarian Parole: 210VgnVCM ca60aRCRD&vgnextchannel=accc3e4d77d73210VgnVCM ca60aRCRD 17 NYTimes Editorial, Haiti s Needless Cholera Deaths, Sept. 6, 2011, available at: 18 United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Earthquake Response: Majority of Haitians in camps want to leave but have nowhere to go, Humanitarian Bulletin (26 July-18 August 2011), available at: df. 19 National Visa Center, Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employmentbased preferences Registered at the National Visa Center as of November 1, 2010, p. 3, available at: 4

59 approved family members into the U.S. would need to begin with a more manageable group, such as the nearly 16,000 already-approved spouses or children of lawful permanent residents. 20 (Note: Spouses and children (unmarried and under age 21) of U.S. Citizens are termed immediate relatives and are eligible for an unlimited number of visas; therefore, they do not wait for visas like the other family preference categories do.) In the alternative, the Department of Homeland Security could consider parole requests based on the chronological order in which the visa applications were filed. Respectfully submitted, International Human Rights Committee, Section of International Law, American Bar Association January 12, Id. at 5. 5

60 To: From: Re: Section Council Michael Herz Revised Portions of the Black-letter Statement At the Spring Meeting, the Council will be considering three portions of the revised Blackletter Statement. These reflect the strenuous labors of, and come with the endorsement of, the leadership of the Judicial Review and Constitutional Law Committees: Kevin Stack, Anne O Connell, Bill Funk, Richard Murphy, Kathryn Watts, and Ron Levin, to whom many thanks. In addition, the contributing authors from the Judicial and Political Review book, consisting of several of the foregoing as well as Hal Bruff, Steve Croley, Hal Krent, Liz Magill, Jim Rossi, and yours truly, were also on the distribution list and made occasional interventions. Attached you will find the following separate documents. 1. Redline of Revised Scope of Review Section (BL Scope of Review redline.docx) This portion is the least changed of these sections. Supreme Court watchers will see the tie between particular wording changes and specific decisions, including Brand X and Fox Television Stations. 2. Availability of Judicial Review Section (BL Availability of JR (selected comments).docx) This is the availability of judicial review portion, minus the standing section (on which more below). Chip Murphy, on whose hard drive it resides, writes: It isn't set up as a redline as I moved things around so much that a redline seemed more an unhelpful eyesore than anything else. Although it isn't a redline, there are comments in the distribution draft that I hope are helpful. Most of them are from me, explaining where I've added a section or made some other alteration. The others are from Ron and Bill, indicating their (excellent) suggestions from their review of an earlier draft. I've also added comments noting how the draft tries to respond to their suggestions. 3. Standing (BL Standing redline April 14 draft.docx and BL Standing clean copy April 14 draft.docx) Here are a red-lined version and a clean copy of the standing portion of the availability section. This has been carved out for separate consideration for several reasons. Partly, we are waiting for some decisions from the current Supreme Court Term. Partly it is just such a large topic that it made sense, both for the revisers and the Council, to spread things out. And partly it is arguably the trickiest section, and so would benefit from full consideration. So here is a draft of a revised version prepared by Bill Funk. This is not before the Council

61 for approval, but any reactions or suggestions are welcome. The plan is to lay a final version before the Council at the August meeting. 4. Government Management (Government Management Redline 2012.docx and Government Management Clean Copy docx) Two versions of this one: a clean copy and a red-lined version. Bill Funk and Ron Levin took the lead here, and there were two issues on which they were somewhat divided that people might want to give some thought. The first concerns whether the no-double-for-cause holding of Free Enterprise Institute applies at all times and in all settings, or whether they might be versions of such an arrangement that were constitutional. The current draft uses the term generally in describing the rule, which leaves some wiggle room. (See last full paragraph p. 3) The second concerns whether, in discussing (in the immediately preceding paragraph) the uncertainty as what counts as cause for removal of an executive official, it is appropriate to quote the Bowsher Court s statements that the statutory terms were very broad and said they could be interpreted to include any number of actual or perceived transgressions of the legislative will. On the one hand, it is the statement from the Court that is most on point; on the other than there is some question whether it is consistent with the general understanding.

62 SCOPE OF REVIEW I. GENERAL Except where a statute provides otherwise, courts generally review agency action according to the principles set forth below. These principles collectively constitute a judicial gloss on 706 of the APA, although courts do not always describe them as such. In applying these principles, a court should distinguish among the agency s legal, factual, and policy conclusions, because different standards of review apply to each category. If a particular challenge has not been properly preserved at the administrative level, the reviewing court has discretion not to address it. If the unpreserved challenge relates to an issue of fact or policy, the court typically is not permitted to adjudicate it (see infra VI). II. STANDARDS OF REVIEW: STATUTORY ISSUES A. In General The court will set aside an agency action if it finds that the action exceeds the authority granted, or violates limitations imposed, by a federal statute. APA 706(2)(C). B. Determining Statutory Requirements -- The Chevron Doctrine Where Congress has delegated to an agency the power to speak with the force of law, and the agency has, in the course of exercising that power, interpreted ambiguity in the statute that it administers, the reviewing court must afford some deference to the agency s reasonable statutory interpretation. Such deference is provided by the two-part Chevron test. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Under step one of the Chevron test, the reviewing court determines whether the statutory meaning with respect to the precise issue before it is clear (and thus, not ambiguous ). Step one of Chevron does not dictate that courts use any particular method of statutory interpretation. However, the court should use the traditional tools of statutory construction to determine whether the meaning of the statute is clear with respect to the precise issue before it. For most judges, these tools include examination of the text of the statute, dictionary definitions, canons of construction, statutory structure, legislative purpose, and legislative history. If the statutory meaning on the precise issue before the court is not clear, or if the statute is silent on that issue, the court is required to defer to the agency s interpretation of the statute if that interpretation is reasonable or permissible ( step two of Chevron). While there is no single, established method of conducting the step two analysis, two interrelated approaches are most prominent. First, courts regularly examine the same statutory materials relied on in step one, seeking to determine whether the statute, even if subject to more

63 than one interpretation, can support the particular interpretation adopted by the agency. For example, the court might find that the statutory context, viewed as a whole, clearly rules out the option the agency selected, or a premise on which it relied. (Some courts, however, make essentially the same inquiry within step one when they determine whether the agency interpretation violates the clear meaning of the statute. As a practical matter, the court s review of these legal issues is not affected by which step is deemed to be involved. In either case, the court is measuring the interpretation against congressionally established limitations.) Second, in addition to engaging in conventional statutory construction, or in some cases instead of engaging in it, courts at step two of Chevron evaluate whether the agency, in reaching its interpretation, reasoned from statutory premises in a well-considered fashion. Courts may look, for example, to whether the interpretation is supported by a reasonable explanation and is logically coherent, or they may ask whether the agency interpretation is arbitrary or capricious in substance. In this regard, the step two inquiry tends to merge with review under the arbitrary and capricious standard (see infra V). Deleted: C. The Scope of Chevron 1. Chevron principles apply to an agency s interpretation of a statute the agency administers, where Deleted: that interpretation (a) the interpretation is embodied in a rule that has the force of law; (b) the interpretation was developed in the course of formal adjudication, except where the adjudicating agency s lawmaking power is limited by virtue of a splitenforcement statutory scheme, in which lawmaking authority over the same subject has been vested in an enforcing agency; (c) the interpretation was developed in the course of informal agency action if the agency s conferred authority and other statutory circumstances demonstrate that Congress would expect the agency to be able to speak with the force of law in taking such action, United States v. Mead Corp., 121 S. Ct. 2164, 2172 (2001); or (d) the interstitial nature of the legal question, the related expertise of the agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the agency has given the question over a long period of time indicate that Chevron deference is appropriate. Deleted: or Deleted:. Deleted:. 2. Chevron principles do not apply to agency interpretations (a) of statutes that apply to many agencies and are specially administered by none, such as the APA, FOIA, or the National Environmental Policy Act (although Chevron may apply to interpretations of statutes administered by two or a few agencies);

64 (b) of criminal statutes where the agency s power with respect to the statute consists solely of the power to prosecute offenses in court; (c) that contradict a controlling judicial decision if the prior judicial decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion; Deleted: ; (d) that represent merely the agency s litigating posture developed after the agency s decision; or (e) that are embodied in policy statements, manuals, enforcement guidelines, interpretive rules, and other such documents unless the agency s conferred authority and other statutory circumstances demonstrate that Congress would expect the agency to be able to speak with the force of law in taking such action. 3. Although in general courts have extended Chevron deference to agencies interpretations of the boundaries of their own statutory jurisdiction, Chevron principles have uncertain application to an agency interpretation that significantly expands the agency s previously recognized jurisdiction. D. Skidmore Deference In situations in which Chevron principles do not apply (or in situations where courts want to avoid deciding whether Chevron deference applies), courts ordinarily will give some deference or weight to an agency s interpretation of a statute that it administers. In these circumstances, as the Supreme Court ruled in Skidmore v. Swift & Co., 323 U.S. 134 (1944), the agency s view can have power to persuade, as distinguished from power to control. In determining whether and to what extent an agency interpretation deserves Skidmore deference, courts are guided by such factors as the timing and consistency of the agency s position and the nature of the agency s expertise. III. STANDARDS OF REVIEW: NONSTATUTORY LEGAL ISSUES A. The court will set aside an agency action if it finds that the action exceeds the authority granted, or violates limitations imposed, by: 1. the Constitution; 2. an agency rule having the force of law (as opposed to, for example, internal operating procedures); 3. federal common law, in the rare cases in which it applies; 4. any other source of law that is binding upon the agency, including a consent decree or other judicial order, international law, and (to the extent applicable and enforceable by their terms) Executive Orders.

65 See APA 706(2)(B) (requiring invalidation of agency action that is contrary to constitutional right, power, privilege, or immunity ) & 706(2)(A) (requiring invalidation of agency action not in accordance with law ). B. Except as provided in subsection C, below, in resolving legal issues arising under the foregoing sources of law, courts have no established tradition of deference to any agency, although they occasionally give some weight to the agency s views. C. Pursuant to what is sometimes called Auer deference, a court must accept an agency s interpretation of its own regulation unless an alternative reading is compelled by the plain language of the regulation or by other clear indications of the regulation s meaning. Auer v. Robbins, 519 U.S. 452, 461 (1997). The Supreme Court has applied Auer deference to agency interpretations, as in litigation briefs, that are not the outgrowth of any formal process within the agency as long as it appears that the interpretation reflects the agency s fair and considered judgment. Although courts generally defer to agencies readings of their own regulations, a lesser degree of deference is sometimes considered appropriate where Congress has not delegated lawmaking authority to the agency and/or where an agency seeks deference for an interpretation of a regulation that merely parrots the statute. IV. STANDARDS OF REVIEW: ISSUES OF FACT The following standards apply, as specified herein, when courts review agencies findings regarding purely factual questions. These standards also are commonly used to review agency findings that may be termed factual but actually embody a degree of normative judgment. (Such findings present what are sometimes called questions of ultimate fact or of application of law to fact, or mixed questions of law and fact. ) In reviewing these findings, a court is likely to look exclusively to the standards expounded in this section if the meaning of the law is not in dispute. Where, however, the parties do disagree about the meaning of relevant law, the reviewing court must resolve that dispute using the appropriate test for adjudicating issues of law (see supra II, III); if the agency action survives that scrutiny, the court then applies the appropriate standard stated in this section. Deleted: A Deleted: W Deleted: hile Deleted: the interpretation is made informally without sufficient procedures to ensure careful consideration and full airing of relevant issues. Deleted: Although questions have arisen pertaining to whether Auer should apply when the interpretation is made in a context in which one cannot easily infer a congressional delegation of the power to make law, the Supreme Court has applied Auer deference to agency interpretations that are not the outgrowth of any formal process, such as litigation briefs, where there is no reason to suspect that the interpretation does not reflect the agency s fair and considered judgment. A. Formal Proceedings If the agency action resulted from a proceeding subject to 5 U.S.C. 556 and 557, or otherwise is reviewed on the record of an agency hearing provided by statute, the court determines whether the agency s factual finding or premise is supported by substantial evidence in the record as a whole. APA 706(2)(E). It is impossible to quantify substantial evidence precisely; one much-quoted Supreme Court formulation is such evidence as a reasonable mind might accept as adequate to support a conclusion. This level of review is somewhat less intense than that employed when appellate courts review trial court findings of fact. In reviewing for substantial evidence, the court must consider the entire record, including the decision and factual findings of the Administrative Law Judge, if any, not just those portions of the record that support the agency s findings.

66 B. Trial De Novo When the agency action resulted from a proceeding in which a statute or the Constitution requires that the facts shall be subject to trial de novo, the court makes its own, independent findings of fact and determines whether the agency action is warranted thereby. See APA 706(2)(F). Trial de novo is available when a court reviews an agency s denial of a FOIA request, but is otherwise rare. C. Other Cases 1. In any other case, the court determines whether the factual premise has substantial support in the administrative record viewed as a whole (although the legal standard nominally being applied is the arbitrary and capricious test). APA 706(2)(A). 2. For these purposes, the administrative record consists of a file of materials that the agency maintains as the exclusive basis for its decision; or, if no such file is maintained, it consists of all unprivileged materials that were actively considered by the agency or its staff (or that were submitted by outside parties) in connection with the action under review. Where procedural law so provides, the record must also disclose oral communications between decisionmakers and outside parties. 3. The court may, upon a proper showing, allow discovery and other evidentiary proceedings in order to supervise the agency s compilation (but not the supplementation) of the administrative record. D. Findings not specifically supported by the record Notwithstanding the requirement of record support for agency findings in formal proceedings, an agency may, with notification to the parties and opportunity to rebut, rely on officially noticed facts in a proper case. APA 556(e). In addition, in both formal and informal proceedings, an agency need not provide more support for predictive or other judgmental facts than it can fairly be expected to have gathered at the time of the action. V. REVIEW OF THE EXERCISE OF AGENCY DISCRETION The court may set aside an agency action as an abuse of discretion (alternatively known in APA parlance as the arbitrary and capricious test), see APA 706(2)(A), on any of several grounds. In practice, application of these grounds varies according to the nature and magnitude of the agency action. Thus, a court will typically apply the criteria rigorously during judicial review of high-stakes rulemaking proceedings (a practice commonly termed hard look review), but much more leniently when reviewing a routine, uncomplicated action. A court may not impose its own policy preferences on the agency. Commonly applied bases for reversal include the following:

67 A. The agency relied on factors that may not be taken into account under, or ignored factors that must be taken into account under, any authoritative source of law. (The caselaw often describes this ground as an element of the arbitrary and capricious test, although it seems more properly understood as a component of the court s legal analysis. See supra II, III.) B. The action does not bear a reasonable relationship to statutory purposes or requirements. C. The asserted or necessary factual premises of the action do not withstand scrutiny under the relevant standard of review (see supra IV). D. The action is unsupported by any explanation or rests upon reasoning that is seriously flawed. E. The agency failed, without adequate justification, to give reasonable consideration to an important aspect of the problems presented by the action, such as the effects or costs of the policy choice involved, or the factual circumstances bearing on that choice. F. The action, where inconsistent with prior agency policies or precedents, fails to display an awareness of the change in position, fails to explain a changed view of the facts, or fails to consider serious reliance interests that its prior policy engendered. G. The agency failed, without an adequate justification, to consider or adopt an important alternative solution to the problem addressed in the action. Deleted: Deleted: is, without legitimate reason and adequate explanation, inconsistent with prior agency policies or precedents. H. The agency failed to consider substantial arguments, or respond to relevant and significant comments, made by the participants in the proceeding that gave rise to the agency action. I. The agency has imposed a sanction that is greatly out of proportion to the magnitude of the violation. J. The action fails in other respects to rest upon reasoned decisionmaking. VI. ANCILLARY ISSUES CONCERNING AGENCY EXPLANATIONS In order to decide whether an agency action violates applicable standards of review, as set forth above, courts examine material portions of the agency s own proffered rationale. They normally will allow an agency to defend its action only on the basis of reasons articulated prior to judicial review and will not supply their own rationale for discretionary agency conduct or speculate as to the conceivable purposes underlying the action. A court may deem an error in reasoning to be harmless error if the agency clearly would have reached the same result even if it had not made the error. Deleted: immaterial

68 The court ascertains the agency s rationale as follows: 1. An explanation issued contemporaneously with an agency action is treated as containing the agency s actual rationale for taking the action, unless the party challenging the action impeaches the explanation with a strong showing of bad faith or improper behavior. 2. Where an agency action is not accompanied by a contemporaneous explanation, the court may investigate the agency s rationale by receiving evidence. Under these circumstances there is no presumption as to whether the post hoc explanation tendered by the agency to the court expresses the agency s original rationale. In attempting to identify the agency s actual, though not contemporaneously articulated, rationale, courts generally avoid direct scrutiny of the agency s decisionmaking process and rely on the representations of counsel, affidavits from relevant officials, and extrinsic evidence rather than depositions, interrogatories, and courtroom testimony. VII. PROCEDURAL ISSUES The foregoing standards also apply to allegations that an agency violated procedural law in taking the action under review, see APA 706(2)(D), with the applicable standard of review depending on whether the allegation rests on the agency s organic statute, the APA, agency regulations, etc. The court presumes the procedural regularity of agency action, but a person may come forward with facts to prove the contrary. An action will not be set aside because of a procedural error that plainly did not influence the outcome of the agency proceeding. APA 706 (final sentence). VIII. AGENCY DELAY A court will compel agency action unlawfully withheld or unreasonably delayed. APA 706(1). A claim under 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. An agency s delay in completing a pending action as to which there is no statutory deadline may not be held unlawful unless the delay is unreasonable in light of such considerations as the agency s need to set priorities among lawful objectives, the challenger s interest in prompt action, and any relevant indications of legislative intent. In considering such challenges courts are deferential to agencies allocations of their own limited resources. Deleted: Deleted: IX. REMEDY As noted in the foregoing sections, in general a reviewing court will set aside agency action that does not meet the standards described, instead of mandating a specific disposition of its own design. When an agency s exercise of discretion cannot be upheld on the basis of the agency s rationale, or no rationale can be discerned, or if the agency so requests, the court will almost always remand the action so that the agency can provide further justification. When

69 remanding, a court normally will vacate the agency s action, except in special circumstances. Such circumstances may exist where (1) the court discerns a substantial probability that the agency can cure its error on remand and (2) the challenging party s interest in obtaining relief from the agency s decision is clearly outweighed by the substantial adverse impact that vacation would have on private persons who have reasonably relied on the agency action being remanded.

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71 THE AVAILABILITY OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION I. OVERVIEW OF PREREQUISITES TO JUDICIAL REVIEW A. Statutory Basis for Subject Matter Jurisdiction and Venue The APA itself does not provide jurisdiction in suits seeking review of federal administrative action, but the federal question statute, 28 U.S.C. 1331, generally does. General federal question jurisdiction in district court does not apply, however, where special jurisdictional statutes such as the Hobbs Act, 28 U.S.C. 2342, provide exclusive jurisdiction for review of specified classes of cases in the courts of appeals. Comment [RM1]: This section was entitled Methods of Obtaining Judicial Review. I tried Overview of Prerequisites because some of the subparts (e.g., on jurisdiction) did not seem to fit Methods. Comment [RM2]: This subsection combines the Jurisdiction and the Venue subheadings from the previous version. Under the generally applicable venue statute, 28 U.S.C. 1391(e), venue is proper for a suit against an officer, an agency, or the United States in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. This is a default provision that may be superseded by venue provisions in a special jurisdictional statute. B. Waiver of Sovereign Immunity Section 702 of the APA waives sovereign immunity of the federal government for judicial review of agency action where the plaintiff is seeking relief other than money damages. It bears stressing: (a) this waiver applies regardless of whether a petitioner invokes the APA s cause of action or some other cause of action; and (b) this waiver permits litigants to seek a financial award that does not technically constitute money damages. A claimant seeking money damages from the federal government must invoke a waiver of sovereign immunity other than 702. Examples of such waivers include: (a) provisions in agency enabling acts that authorize an agency to sue and be sued ; (b) the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), , which waives sovereign immunity for certain tort claims; and (c) the Tucker Act, 28 U.S.C. 1491, which applies, inter alia, to contract claims. C. Official Immunity A suit against an agency official in her official capacity is functionally identical to a suit against the government and is subject to the same principles of sovereign immunity. A suit against an agency official in her personal capacity implicates a different set of immunity doctrines. As injunctive relief is generally available directly against the government under 702 of the APA, the primary significance of personal capacity suits is that they create a path for plaintiffs to seek money damages. Comment [RM3]: The first paragraph of this version expands a bit on the earlier version s discussion of 702. It deletes discussion of Ex Parte Young. The second and third paragraphs are new. Comment [RM4]: Made Ron s change. Comment [RL5]: I reworded this because I found the double negative very hard to read. Comment [RM6]: Added this subsection late in the process, so it hasn t been looked over so much. Many thanks to Ron who caught a bad mistake in an earlier version (conflating common law tort and constitutional tort immunity).

72 The Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act ) provides that federal officials are immune from common-law tort liability for actions taken within the scope of their employment. 28 U.S.C. 2679(b)(1). Where the Attorney General certifies that the defendant was acting within the scope of her employment, the United States is substituted as defendant. 28 U.S.C. 2679(d)(1). Whether the United States has waived sovereign immunity is then determined according to the terms of the FTCA. The Westfall Act does not immunize officials from constitutional torts or from claims that they have violated federal statutes that authorize a cause of action. Executive officials, however, are generally protected from suits for civil damages for such claims by the doctrine of qualified immunity. This doctrine blocks claims for damages arising from an official s performance of discretionary functions so long as the official s conduct did not violate clearly established statutory or constitutional rights. A right is clearly established for the purpose of this test if a reasonable officer should have understood that her conduct was illegal given the particular facts she confronted. (Courts have accorded absolute immunity to certain officials in light of their special functions. For instance, administrative law judges enjoy absolute immunity from damages liability allegedly arising from their judicial acts.) D. Cause of Action or Defense Many specific statutes authorize judicial review of particular types of federal agency action. An agency s enabling act may, for instance, contain a set of provisions establishing parameters for review of rules issued pursuant to that act s authority. Review pursuant to such provisions is sometimes characterized as a special statutory proceeding. Often, the jurisdictional provisions for a special statutory review proceeding assign subject matter jurisdiction to courts of appeals (especially the D.C. Circuit). Comment [RM7]: This subsection combines B. Cause of Action and E. Enforcement Actions from old version. The discussion of special statutory review is somewhat expanded. The phrases special statutory review In the absence of a special statutory review scheme, parties may seek review under APA , which provide a general cause of action for parties adversely affected or aggrieved by agency action for which there is no other adequate remedy in court. Where neither a specific statute nor the APA provides a cause of action, parties may obtain review by seeking various forms of relief, including equitable relief under a federal court s general equity jurisdiction, 28 U.S.C. 1331, declaratory relief under the Declaratory Judgment Act, 28 U.S.C. 2201, and mandamus under 28 U.S.C (These forms of review as well as review sought under the APA without authorization by a more specific statute are sometimes described as instances of nonstatutory review. This usage is misleading, however, because almost all of these forms of review rest on a statutory foundation.) In rare circumstances, a plaintiff may sue an agency official in her personal capacity for a constitutional tort in a Bivens action. The Supreme Court has narrowly construed the availability of the Bivens cause of action, and it is not available where Congress has provided an adequate statutory alternative. Comment [RM8]: I d changed usage of nonstatutory review from 2002 version, but basically changed it back after discussions with Ron. 2

73 Rather than challenge an agency action affirmatively, under many circumstances a party may instead raise the invalidity of an agency action as a defense in a subsequent enforcement proceeding based on that agency action. The existence of a prior, adequate, and exclusive opportunity for judicial review may, however, cut off this right to defend in an enforcement proceeding. (Cf. discussion below of Statutory Deadlines at II.D.) E. Reviewability Doctrines of reviewability block judicial review of certain types of claims that would otherwise appear to fall within the scope of the APA s general cause of action. More particularly: (a) the APA s cause of action applies only to challenges to agency action and not everything an agency does satisfies the APA s technical meaning of this phrase; (b) Congress may by statute preclude review of certain types of agency action; and (c) courts regard some agency actions as unreviewable because they are committed to agency discretion by law. For further discussion of Reviewability, see III., below. F. Timing Doctrines A complex set of timing doctrines limits access to the courts for judicial review of agency action. These include: Comment [RM9]: Added this subsection. Comment [RM10]: Added this subsection Finality: Administrative law starts from a presumption that courts should review only final agency actions. Agency action is final if it: (1) is consummated; and (2) determines rights or obligations or otherwise carries legal consequences. Exhaustion: The doctrine of exhaustion, where it applies, insists that parties invoke available intra-agency remedies, such as an appeal to higher agency authorities, before seeking judicial review. Ripeness: A party seeking pre-enforcement review of a rule must demonstrate that it is ripe for review. The two-prong test for ripeness evaluates whether the issues raised in a case are fit for review as well as the level of hardship that the plaintiff would suffer from delaying review. Statutory deadlines: Many agency enabling acts limit the time period for petitioning for review of agency actions. Courts generally construe such statutes to permit a defendant facing an enforcement proceeding to challenge a rule after the statutory deadline has passed on the grounds that the rule is unconstitutional or exceeds the agency s statutory authority. Primary jurisdiction: Courts sometimes invoke this doctrine to stay proceedings that fall within their original jurisdiction, so as to permit an agency to examine an issue that falls within its special competence but that it has not yet addressed. 3

74 For further discussion of these timing doctrines, see II., below. G. Standing Constitutional, Prudential, and Statutory The term standing covers three quite different concepts: For a challenge to administrative action to proceed in federal court, at least one plaintiff must demonstrate constitutional standing. To do so, a plaintiff must show that she has suffered an injury in fact a legally cognizable injury. She must also show that this injury is fairly traceable to the defendant s conduct and that a favorable court order could likely redress it. The case law governing these straightforward-sounding requirements is extremely complex. Even if a plaintiff demonstrates the existence of constitutional standing, a court may nonetheless dismiss based on judge-made prudential standing doctrines. For example, courts may invoke prudential standing to dismiss a suit where a plaintiff sues to protect the rights of a third party rather than her own. Comment [RM11]: Added this subsection Comment [RL12]: I would say the point applies with considerable force to all three. Comment [RM13]: Made change in light of Ron s comment. The doctrine of statutory standing inquires whether a statute authorizes a particular type of plaintiff to seek judicial review of agency action. The most important and recurring question of statutory standing is whether a plaintiff may invoke the APA s cause of action by virtue of having been, in the language of 702, adversely affected or aggrieved by agency action within the meaning of the relevant statute. For further discussion of these standing doctrines, see IV., below. II. TIMING OF JUDICIAL REVIEW In general, a court should not proceed to review the merits of administrative action unless it is satisfied that: (1) the agency action is final; (2) administrative remedies required by law have been exhausted; (3) the agency action is ripe for judicial review; and (4) the plaintiff s suit satisfies any applicable statutory deadlines. In cases where parties have not sought administrative action prior to suit, courts may invoke the doctrine of primary jurisdiction to elicit agency action as a guide to judicial decision. A. Finality Administrative law presumes that judicial review should await final agency action; interlocutory review is generally unavailable. The APA codifies this presumption at 704, which provides, [a]gency action made reviewable by statute and final agency action for which there is no adequate remedy in a court are subject to judicial review. Comment [RM14]: Added reference to statutory deadlines. Comment [RM15]: In this subsection some light editing/restructuring; took out reference to agency decisions subject to Presidential review; expanded discussion of the problem of nonbinding rules that are really binding. Agency action is final for APA purposes if two conditions are met. First, the action must not be tentative or interlocutory, but rather the consummation of the agency s decisionmaking. Issuance of an administrative complaint, for example, does not satisfy this first condition. 4

75 Second, the action must determine rights or obligations, or create legal consequences. This condition implicates the following problem: It is black-letter administrative law that certain types of agency rules interpretative rules and policy statements do not carry the force of law. This black-letter law seems to suggest that such rules cannot constitute final agency action because they do not carry legal consequences. In practice, however, agency interpretative rules and policy statements often have tremendous impact on both regulated parties and the beneficiaries of regulation. This fact suggests that the finality requirement should not immunize these types of agency action from judicial review. Thus, agency actions have often been deemed final for judicial review purposes where the agency treats that decision as binding as a practical matter even if the agency has characterized the decision as nonbinding (e.g., by labeling it as an informal guidance ). Where an agency action is not final and no specific statute authorizes interlocutory review, a party may obtain review of the action in two ways. First, the party may be able to seek so-called nonstatutory review outside of the APA, but only if the agency action is clearly in excess of the agency s delegated powers or the ongoing action plainly cannot result in a valid agency order. Otherwise, the party may obtain review of all preliminary, procedural or intermediate agency action or rulings on the review of the final agency action. B. Exhaustion of Administrative Remedies An agency action may be considered final even though opportunities remain for seeking further review of the action within the agency itself. Nonetheless, where the exhaustion doctrine applies, it requires a plaintiff to seek relief from all available and adequate administrative remedies, including intra-agency appellate remedies, prior to seeking judicial review. Where Congress has mandated an exhaustion scheme, such as in 704 of the APA, courts apply it. Where Congress has not done so, courts determine whether to require exhaustion based on a judicially-crafted balancing test. This test considers: the needs of the reviewing court for judicial economy and an adequate record; the needs of the agency for autonomy and for a fair opportunity to apply its expertise; and the hardship to the plaintiff of denying review. The ordinary cost of exhausting the administrative remedy is not sufficient hardship to justify holding an administrative remedy inadequate. The Supreme Court has identified several sets of circumstances in which a plaintiff s interest in prompt judicial review strongly favors excusing exhaustion. These include: (1) where requiring exhaustion would cause undue prejudice, perhaps due to unreasonable deadlines for administrative review; (2) where the agency lacks authority to grant effective relief; and (3) where the administrative body is biased or has predetermined the issue. It bears stressing that 704 of the APA carves out an exception to the courts common law authority to impose an exhaustion requirement on plaintiffs invoking the APA s cause of Comment [RM16]: In this subsection, some editing/restructuring in part to follow structure suggested by McCarthy v. Madigan. Comment [RM17]: I inserted such as in section 704 of the APA in response to Bill s comment with the thought that the Darby issue is important enough that it should at least be flagged near the start of the discussion but also with the hope that the discussion two paragraphs below can cover the substance. Comment [wf18]: I think you need to make clear that this only applies in non-apa cases. Comment [RL19]: In reply to Bill, doesn t the exhaustion requirement apply in APA cases until such time as the agency s decision is otherwise final? I tend to think that the treatment of Darby two paragraphs later suffices. 5

76 action. Unless expressly required by statute, a party seeking review pursuant to the APA of otherwise final agency action need not pursue any process for agency reconsideration of its decision. However, an agency may require exhaustion of any intra-agency appeals provided: (1) it imposes this requirement by rule; and (2) it provides that the agency action is inoperative during the time of the appeal. In both APA and non-apa cases, the courts have applied exhaustion principles to particular issues contained within a proceeding. Such issue exhaustion requirements are based on an analogy to the judicial rule that appellate courts will not consider arguments that parties failed to raise before trial courts. Courts enforce issue exhaustion more stringently where the parties are expected to develop the issues in an adversarial administrative proceeding than in circumstances in which they review the results of nonadversarial, informal agency hearings. Although rulemaking does not analogize well to adjudication, courts have nonetheless applied the issue exhaustion doctrine to the notice-and-comment process. A party that fails to raise an objection to a rule during notice-and-comment may not press that objection on direct judicial review of the rule unless (1) another party made the objection; or (2) the agency s decision indicates that it did in fact consider the issue. It bears noting that even where courts do not apply the issue exhaustion doctrine, review of agency action under the arbitrary and capricious standard of 706(2)(A) is based on the arguments presented to the agency. Thus, the absence of an argument at the administrative level may affect the substance, if not the availability, of review. C. Ripeness The issue of ripeness arises where a party seeks pre-enforcement review of a rule. The Supreme Court has characterized this doctrine as based on a mix of constitutional and prudential concerns. In APA cases, 704 supplies an additional basis for denying pre-enforcement review of rules insofar as this statutory provision grants judicial review for final agency action only where there is no other adequate remedy in a court. Comment [wf20]: Should there be some discussion of the DC Circuit s application of issue exhaustion to challenges to agency rules, i.e., if the person did not raise the issue to the agency in the rulemaking proceeding, they cannot obtain judicial review of it. Comment [RM21]: Added this paragraph in light of Bill s preceding comment. Comment [RM22]: Some editing/restructuring e.g., the reference to section 704 used to be its own paragraph at end of this subsection. Tightened reference to Ohio Forestry principle. Last two paragraph are from National Park Hosp Ass n. To determine whether agency action is ripe for judicial review, courts balance (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. The Supreme Court has also advised courts to consider whether judicial intervention would unduly interfere with subsequent agency action. This added criterion narrows the thin gap between the ripeness and exhaustion doctrines. The fitness inquiry largely turns on whether delaying judicial review until a rule has been applied to a particular, concrete situation could develop a factual record that would aid judicial resolution of the legality of the rule. Purely legal issues are thus typically, though not always, fit for review. 6

77 The hardship inquiry largely turns on whether a rule requires an immediate and costly change to a regulated party s primary conduct i.e., its day-to-day business. Thus, a rule requiring pharmaceutical firms to change their labeling practices or face possible civil and criminal penalties satisfied the hardship prong of ripeness. By contrast, a rule specifying that color additive manufacturers must permit regulators to inspect their facilities on request did not. Although uncertainty is costly, mere uncertainty as to the legality of a rule does not constitute hardship for the purpose of ripeness analysis. Also, an agency s statements concerning how to implement or interpret a statute that the agency does not administer are unlikely to constitute hardship for the purpose of demonstrating ripeness. D. Statutory Deadlines for Review of Rules Many enabling acts provide for short time limits (e.g., sixty days) for review of agency action especially rules. In the absence of such a time limit, a six-year statute of limitations generally applies to administrative appeals. Courts nonetheless allow post-deadline judicial review of agency rules under some circumstances. The availability of judicial review depends on whether the challenge is substantive or procedural as well as on whether the statutory time limit at issue expressly precludes untimely review. Courts permit parties defending against application of a rule in an enforcement proceeding to challenge the rule on the substantive grounds that is unconstitutional or exceeds the agency s statutory authority. At least in those cases where a statutory time limit does not expressly preclude later judicial review, a party may also pursue these types of substantive challenges after a statutory deadline by making them the basis for a petition to revise or revoke the rule. If the agency denies this rulemaking petition, the party may then seek review of this denial. Such review is limited to issues considered in the denial decision and thus usually does not encompass factual or discretionary determinations underlying the original rule. Comment [RL23]: National Park Hosp. did call it a policy statement, but I am not aware that this highly dubious reasoning has been followed generally. Actually, the pronouncement in dispute was part of a legislative rule, and 553(b)(A) would seem to have been utterly irrelevant anyway. Comment [RM24]: I take Ron s point about National Park containing some dubious statements about policy statements. Made his suggested changes. Comment [RM25]: This subsection is new. Ron just wrote an article on this stuff, so I m hoping he ll tell me if I got it right. Comment [RL26]: At least somebody read it! This is a good summary; my changes are basically editorial. By contrast, courts generally bar post-deadline procedural challenges to rules, regardless of whether they are raised first as a defense in an enforcement proceeding or via a petition for a new rulemaking. Both the ripeness and reopener doctrines can affect the running of a statutory deadline. Ripeness: Courts have held that a statutory deadline for review does not begin to run until a rule is ripe for review. A party wishing to challenge a rule should at least try to do so 7

78 within the statutory time period, because courts have also held that mere speculation that a challenge is unripe does not excuse an untimely petition. Reopener: An agency may restart a statutory time limit on judicial review by reopening its consideration of an earlier action by either explicitly or implicitly undertaking to reexamine it. E. Primary Jurisdiction Primary jurisdiction applies when claims properly cognizable in court contain one or more issues within the special competence of an administrative agency. In such cases, the court enables a referral to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling. In cases of mandatory primary jurisdiction, an agency ruling is required, and the court cannot proceed with the case until the agency has acted. In cases where an agency ruling is not required but the court might benefit from the expertise of the agency, the court may make a referral but also provide that, if the agency has not ruled after a certain time, the court will proceed without the agency ruling. In determining whether to invoke the doctrine of primary jurisdiction, courts consider (1) whether the issues in a case implicate an agency s expertise or discretion, (2) whether the issues need a uniform resolution that the agency is best situated to provide, and (3) whether the referral to the administrative agency will impose undue delays or costs on the litigants. III. REVIEWABILITY The APA codifies a general presumption that final agency action is judicially reviewable. It should be borne in mind, however, that not everything that an agency does constitutes agency action within the meaning of the APA. Also, the APA recognizes that Congress may, subject to indeterminate constitutional limits, preclude or otherwise limit judicial review by statute. Independent of such statutory preclusion, the APA also recognizes that some types of agency action are not subject to judicial review because they are committed to agency discretion by law. A. Agency Action as a Limit on Review The APA s cause of action applies only to agency action. Section 551(13) of the APA defines agency action as including the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. Given this expansive list, the APA s definition of agency action should rarely block judicial review of an agency s affirmative action or its denial of a request for action (e.g., review of a rule or a denial of a petition for rulemaking). Comment [RM27]: Some editing/restructuring. Most notable innovation included the SUWA s discussion of agency action here. Comment [RM28]: This stuff is new. Application of this definition to an agency s failure to act is more problematic. At any given time, any given agency is failing to take an infinite number of actions not all of which should count as agency actions subject to judicial review under the APA. The Supreme Court 8

79 has solved this puzzle by holding that failure to act as used by 551(13) includes only failures to take the types of agency actions listed earlier in that subsection (e.g., failure to adopt a rule, to issue an order, etc.). All of these types of actions are discrete. This shared quality of discreteness excludes the possibility of using the APA cause of action to make a broad, programmatic attack on an agency s general work as opposed to using it to challenge a properly focused agency action. For instance, an environmental group could not invoke 706(1) of the APA, which instructs courts to compel agency action unlawfully withheld or unreasonably delayed, to force the Bureau of Land Management to honor a general statutory duty to ensure that the wilderness qualities of certain government lands were not impaired. B. Statutory Preclusion or Limitation of Review Section 701(a)(1) of the APA recognizes that Congress may by statute preclude judicial review. The Supreme Court has never decided whether the Constitution limits this preclusive power. In part to avoid that question, courts will often work hard to interpret statutory language to avoid preclusive effect, requiring clear and convincing evidence of a contrary legislative intent to overcome a general presumption of judicial review. Statutory preclusion of judicial review need not be express so long as the requisite congressional intent to preclude is fairly discernible from a statutory scheme. The Court has found implicit preclusion where judicial review on behalf of a particular group would severely disrupt a complex and delicate administrative scheme. Courts are especially reluctant to find statutory preclusion where review implicates constitutional questions or the legality of a rule. By contrast, courts are quicker to find preclusion where only issues of fact or of application of law to fact are at issue. Where Congress restricts judicial review to particular courts or times by adopting special statutory review procedures, courts generally presume that Congress intends for these procedures to provide the exclusive means for review. In enforcing such restrictions, the Supreme Court has typically emphasized that remaining avenues for judicial review were sufficient to resolve the issues presented. C. Matters Committed to Agency Discretion Section 701(a)(2) of the APA recognizes that the APA s cause of action is not available to the extent that... agency action is committed to agency discretion by law. This exception to the APA s general presumption of review is narrow. The Supreme Court has stated that this exception applies where statutes are written in such broad terms that there is, in effect, no law to apply. More broadly, the Court has recognized that there are certain categories of administrative decision that are unreviewable as a matter of tradition. Functional inquiries regarding the desirability of judicial review also come into play though not always expressly. Comment [RM29]: Express and Implied Preclusion used to have separate subsections. Comment [wf30]: Clear and convincing evidence is the language from Abbott Labs, but the later case of Block v. CNI states the test as whether the intent to preclude is fairly discernible. I think including only the Abbott Labs language is misleading. Comment [RM31]: Added this paragraph in light of Bill s preceding comment. Comment [RM32]: This last sentence takes a stronger tack toward honoring exclusivity than did the last version. Comment [RM33]: Added these ideas of tradition and functional inquiries as basis for applying 701(a)(2). 9

80 For example: Agency decisions regarding how to allocate lump-sum appropriations are committed to agency discretion by law. In reaching this conclusion, the Supreme Court cited tradition and also noted that such allocations require complicated balancing of many factors and determining agency priorities tasks best handled by agencies, not courts. Agency decisions declining to initiate enforcement actions are presumptively committed to agency discretion by law. This presumption is based on judicial respect for prosecutorial discretion and for an agency s discretion in allocating its resources. Congress can, however, overcome this presumption by providing sufficient standards limiting agency enforcement discretion to guide review in a particular case. Also, where an agency refusal to initiate an enforcement action is based on statutory interpretation, the agency s inaction can usually be reviewed, at least if it is expressed in a written policy, because there is law to apply in such situations. (Notably, the presumption against reviewability is not applicable to an agency decision declining to initiate a rulemaking. The Supreme Court has recently confirmed that such decisions are reviewable albeit under a lax form of arbitrariness review.) Section 701(a)(2) s exemption to review applies only to the extent that agency action is committed to agency discretion. As a result, some issues raised by an action may be reviewable while others are not. The Supreme Court has, for instance, held that a constitutional claim raised in connection with termination of a government employee was reviewable but that a statutory claim was not. Similarly, even where the substance of an agency s decision is found to be committed to agency discretion, the procedure applicable to the action may not be. IV. STANDING CONSTITUTIONAL, PRUDENTIAL, AND STATUTORY [TO BE ADDED.] Comment [RL34]: See Crowley Caribbean Transp., Inc., 37 F.3d 671 (D.C. Cir. 1994). Comment [wf35]: Something is left out here Comment [RM36]: Put back the inadvertent omission. 10

81 IV. STANDING A. Overview The term standing is used in a variety of contexts. First, there is standing that is required by the Constitution. Second, there is standing that courts impose as a matter of judicial discretion, called prudential standing. Third, there is what is sometimes called statutory standing, but what is probably more accurately discussed as whether the plaintiff has a cause of action under the statute. All of these are aimed at determining whether the particular litigant is entitled to an adjudication of the particular claims asserted. Article III s limitation of the judicial power to Cases and Controversies imposes three constitutional standing requirements. First, the plaintiff must have suffered an injury in fact an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Beyond these constitutional minima, additional prudential restrictions may apply as a matter of judicially self-imposed limits on the exercise of federal jurisdiction.. Such restrictions include a prohibition against parties raising claims or defenses that involve a third party s legal rights (the jus tertii limitation) anda requirement that the injury be arguably within the zone of interests protected or regulated by the statute invoked. Congress may, by statute, override prudential restrictions on standing. The general statutory standing requirement for review of agency action under the APA is codified in 702, which provides that [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. Although this language significantly broadened pre-apa availability of standing to challenge agency action, it does not confer standing to the limits of what is constitutionally possible. In addition to showing that she has suffered a constitutionally cognizable injury caused by the agency s action, the plaintiff relying upon 702 must show that her injury is arguably within the zone of interests to be protected or regulated by the statute... in question. Individual regulatory statutes may contain their own statutory standing provisions. Statutory language authorizing challenge by any person aggrieved has traditionally been interpreted to confer standing to the full extent of Article III, without regard to such prudential limitations as the zone-of-interests requirement. Citizen-suit provisions (e.g., those conferring standing on any person without further requirements) are usually given the same interpretation. Other kinds of statutory standing provisions are typically construed to incorporate Deleted: Standing doctrine determines whether the particular [litigant] is entitled to an adjudication of the particular claims asserted. Allen v. Wright, 468 U.S. 737, 752 (1984). It comprises both constitutional requirements and prudential elements. Deleted: Deleted: The party must have suffered an injury that is traceable to the actions of the opposing party and redressable by the relief requested from the court. Although these are constitutional requirements, Congress has some power to affect their application to particular situations, as discussed below. Deleted: Deleted: Deleted: Allen v. Wright, 468 U.S. at 751 Deleted: : Deleted: ; Deleted: Deleted: ; and a prohibition against litigating generalized grievances. (This restriction may have a constitutional dimension as well.) Deleted: is Deleted: as well 1

82 the zone-of-interests test and other prudential requirements absent evidence of a different legislative intent. An association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The second of these criteria is construed very leniently, and the third effectively limits associations suing on behalf of their members to declaratory or injunctive relief, because if the redress required monetary relief, the members themselves would need to be named parties. Usually, therefore, the only important question in litigation is whether the first criterion is met. B. Constitutional Requirements Regarding Injury a. 1. The Constitutional Injury-In-Fact Requirement In General The basic Article III requirement is injury in fact. Constitutionally cognizable injuries can include harm to nonmonetary intangible interests, as well as economic or tangible harm. For example, so long as it is individually experienced, harm to environmental, recreational, or aesthetic interests can support standing. The injury must be actual or imminent, not conjectural or hypothetical. Mere ideological objection to government behavior does not constitute a constitutionally cognizable injury. In addition to the kinds of harm to person or property that would have been recognized at common law, violations of some rights created by statute can also qualify as injury for purposes of standing. For example, violation of a statutory right to obtain certain information can constitute injury. However, not all rights created by statute can so qualify. For example, denial of a statutory right to comment on a proposed rule is not injury sufficient for standing. Recently, the Supreme Court has suggested that when states are plaintiffs suing on their own behalf, as opposed to parens patriae, special concerns are involved that may lessen traditional standing requirements. b. Injury from Violation of Procedural RequirementsWhen a challenged agency action harms an underlying substantive interest of the plaintiff, she has standing to challenge the agency s failure to follow proper procedures even though she cannot prove that the procedural error actually changed the substantive outcome. For example, a taxpayer whose tax liability is increased by a new regulation can challenge the adequacy of the notice of proposed rulemaking, even though it cannot be shown that but for the error a more favorable regulation would have ensued. However, she may be required to show that a favorable regulation is possible. Cognizable injury cannot arise from a procedural violation without a showing that the violation endangers a concrete substantive interest of the plaintiff. Deleted: Deleted: Hunt v. Washington State Apple Advertising Comm n, 432 U.S. 333, 342 (1997). Deleted: comes into play principally in suits for monetary relief, in which the amount of recovery might vary among individuals. Deleted: and Prudential Deleted: <#> Deleted: [t]he actual or threatened injury required by Article III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing. Warth v. Seldin, 422 U.S. 490, 900 (1975). Such statutory rights can include rights to information, access, and participation. Deleted: The right of a prevailing party to claim a statutory bounty satisfies the injury-infact requirement, although provisions for the recovery of attorneys fees and litigation costs do not. Deleted: 2 Deleted: 2

83 Apparently, the statutory right to attend meetings and otherwise have access to government proceedings, such as under the Government In The Sunshine Act and the Federal Advisory Committee Act, are considered substantive, rather than procedural, rights. Freedom of Information Act rights and voter rights to certain information under the Federal Election Campaign Act are also substantive rights, denial of which will support standing without regard to proof of harm to a particular, underlying substantive interest.. c. Generalized Grievances vs. Harm to Informational Rights and Other Broadly Shared Interests A generalized grievance is not injury sufficient to confer standing on a plaintiff. Thus, harm to the general interest shared by all citizens in the government conforming its conduct to law is not a judicially cognizable injury. Accordingly, a statute purporting to allow any person to challenge agency action is constitutionally ineffective to the extent that it attempts to authorize suit by a plaintiff who cannot demonstrate some distinct, constitutionally cognizable injury. However, a person who suffers a concrete, particularized harm does satisfy the injury requirement even though many other persons do or could suffer the same harm. Statutes can create and/or protect broadly shared interests, harm to which can constitutionally support standing. For example, individual voters can vindicate a concrete, though widely shared right to election-finance information required by statute to be made public. Similarly, an individual denied access to information allegedly required to be disclosed by FOIA or to a meeting allegedly required to be open under GITSA or FACA has standing to litigate the denial, even though all citizens have an identical right of access. The widely shared injury, while satisfying constitutional standing requirements, may raise prudential standing concerns. d. Risk as Injury The extent to which risk of harm can constitute injury for standing purposes is not clear at the present time. On the one hand, the Court has denied standing to an organization to sue on behalf of its members when no specific member could establish an imminent concrete harm, even though it was highly probable that some member would suffer a concrete harm in the foreseeable future. On the other hand, the Court found standing on behalf of organic alfalfa farmers to challenge the deregulation of genetically modified alfalfa because of the significant risk to which they would be subject due to the deregulation. The fact that the farmers had already undertaken activities and expended funds to avoid the risk was apparently important in the Court s consideration. The lower courts decisions regarding risk as injury are in tension, with the D.C. Circuit establishing a requirement that for increased risk to justify standing there must be both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account. Other circuits have generally been more receptive to considering any significant increase in risk of physical harm as sufficient. Deleted: Cognizable injury may also arise from a procedural violation without a showing that the violation endangers a concrete substantive interest of the plaintiff, but there is some uncertainty about the situations in which this can occur. The uncertainty stems from the holding in Lujan v. Defenders of Wildlife that, in at least some situations, a violation of procedural duties alone fails to satisfy the Article III injury requirement. Deleted: It is clear, notwithstanding Lujan, that Deleted: Congress can confer upon individuals a right personally to obtain notice of, observe, or get information about an agency activity without regard to their having a particular substantive interest, and that this right can be judicially enforced without reference to any additional, underlying substantive injury. Examples of such rights include the right to Deleted: analogous sorts of Deleted: See B.3 infra Deleted: It is also clear, from Lujan itself, that Congress does not have the power to confer standing upon individuals to enforce a procedural requirement without regard to their underlying substantive interests if the procedural requirement entails a purely internal agency activity as to which persons like the plaintiff have no legal claim to involvement or information. The Endangered Species Act consultation provision challenged in Lujan was such a purely internal executive-branch activity, in which outsiders were given no statutory right of participation or access. The uncertainty arises when a procedural requirement:... [1] Deleted: 3. Deleted: The status and proper application of the generalized grievances restriction is also currently somewhat unsettled. Deleted: The refusal to predicate standing on harm that is shared in substantially equal measure by all or a large class of... [2] Deleted: Statutes can, however, create and/or protect broadly shared interests, harm to which can constitutionally support standing. For example, individual voters can vindicate a... [3] 3

84 C. Constitutional Requirements Regarding Causation & Redressability The constitutionally required elements of causation and redressability ensure that there is at least a reasonable probability that the plaintiff s injury was caused by actions of the defendant and will be remedied by the relief requested from the court. Although they are separately stated in contemporary standing doctrine, the requirements of causation and redressability are typically analyzed in tandem. There is, however, one important category of case in which the analyses may diverge. If the court s remedial options are limited by statute or other law, the injury may indeed be traceable to the defendants action, but incapable of being redressed by any of the available remedies. For example, a plaintiff who has suffered an environmental injury concededly caused by the defendant will be denied standing on redressability grounds where the wrongdoing had ceased before the suit was filed, the plaintiff cannot demonstrate a reasonable likelihood that it will recur, and the only statutory remedies are prospective injunctive relief and civil penalties payable to the government. Causation and redressability analysis tends to be very fact-specific, and in most cases there is no ready formula for predicting when a court will conclude that the causal chain has become too uncertain or attenuated. Cases attempting to challenge either favorable tax treatment of a third party or decisions not to prosecute appear to follow a pattern of dismissal because of either causation or redressability. The outcome of the causation and redressability inquiry can be highly dependent upon how the injury is defined. For example, if the harm to a plaintiff challenging an affirmative action program is defined as not obtaining the relevant position or contract, the plaintiff will often be unable to show that she would have obtained the benefit but for the challenged program. However, the Court defines the injury in such cases as a diminished opportunity to compete for the desired outcome, a definition that eliminates problems of causation or redressability. A similar definitional issue is posed by the suggestion, advanced by some judges, that complaints by regulatory beneficiaries categorically present difficult causation and redressability problems. For example, it has been argued that consumers who can satisfy the particularized injury requirement and wish to challenge an agency s failure to adopt more rigorous fuel economy standards for automobiles must also show that, if a more demanding rule were adopted, manufacturers would change their designs rather than pay noncompliance penalties. Because the standard for redressability is only that the favorable court decision would likely redress (or avoid) the injury, the plaintiff should only have to show that it is likely that the manufacturer will comply with the law. Complaints about procedural violations provide another example. If the injury is defined as actually obtaining favorable agency action on the merits, the plaintiff will rarely be able to show that correcting the procedural errors is likely to change the outcome. The Court, however, Deleted: 4. The Prudential Zone-of- Interests Requirement In addition to a cognizable injury in fact, standing to review agency action under APA 702 requires that the injury be arguably within the zone of interests to be protected or regulated by the statute... in question. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970). Whether the prudential zone-of-interests requirement applies when review is sought under other statutes is a matter of statutory interpretation. In general, courts construe standing provisions to include the zone requirement unless the particular statutory language signals a legislative intent to grant standing more broadly. Examples of language that obviates the zone-of-interests requirement are true citizen-suit provisions (authorizing suit by any person with no further requirement) and, traditionally, any person aggrieved provisions. Section Break (Continuous) A plaintiff who is a member of either (1) the group directly regulated by, or (2) the group intended as beneficiaries of, the relevant statute is indisputably within its zone of interests. Membership in either of these groups can be established by considering the particular statutory provision forming the basis of suit, even if the goals of that provision appear in tension with the overall purposes of the statute generally. Thus, a party having an economic interest in avoiding stringent environmental regulation can be within the zone of interests of a generally proconservation statute if he is suing to enforce a specific provision the purpose... [4] Deleted: Traceability Deleted: traceability Deleted: traceability Deleted: Deleted: Traceability Deleted: traceability Deleted: and Deleted: traceability Deleted: traceability Deleted: traceability Deleted: Deleted: This argument defines the relevant injury as the behavior, vel non, of the regulated entities. Alternatively, several lower court cases define the... [5] 4

85 has made clear that when the alleged violation is procedural the normal standards for redressability do not apply. All that should be required is a showing that if the correct procedures are followed a favorable outcome on the merits is possible. Redressability issues can also arise under citizen suit provisions that provide only injunctive relief and payment of civil penalties to the government when the complained of action has ceased after filing of the action, making an injunction inappropriate. While arguably paying civil penalties to the government does not redress the injury to the citizen plaintiff, the Court has said that such penalties deter future violations and therefore satisfy the redressability requirement. D. Prudential Standing -- The Prudential Limitation on Raising the Rights of Third Parties The jus tertii prohibition is a judicially self-imposed limit on the exercise of jurisdiction that plays an important role in adjudication of constitutional questions but has not been very significant in limiting judicial review of agency action under the APA or specific organic statutes. A litigant attempting to challenge government action on grounds that it violates the constitutional rights of a third party may be prohibited from doing so unless (1) the third party has suffered an injury in fact; (2) the litigant and the third party stand in some close relationship; and (3) some hindrance impedes the third party s ability to assert her own rights. Deleted: Language in Lujan suggests that plaintiffs asserting procedural rights do not have to meet the normal standards for redressability, but does not explain why constitutional requirements would be more lenient for procedural claims than for substantive ones. If, however, the injury is defined not as the substantive harm flowing from the agency s ultimate decision, but rather as denial of the right to participate in an administrative decisional process conducted as required by law, then no special traceability or redressability standard is needed to explain why courts routinely reverse agency action for procedural error even though the agency may ultimately reach the same substantive outcome. Deleted: Congress can, by appropriate legislation, influence the traceability and redressability analysis. Just as statutes can define new cognizable injuries, so they can articulate chains of causation that will give rise to a case or controversy where none existed before. Lujan v. Defenders of Wildlife, 504.U.S. 555, 580 (1992) (Kennedy, J., concurring in part and in the judgment). Some early lower court cases had refused to defer to legislative determinations about causation, but the Supreme Court recently resolved a difficult redressability question by looking in part to congressional findings that, the Court said, warrant[] judicial attention and respect. Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 185 (2000). 5

86 Page 3: [1] Deleted funk 3/9/2012 3:20:00 PM It is also clear, from Lujan itself, that Congress does not have the power to confer standing upon individuals to enforce a procedural requirement without regard to their underlying substantive interests if the procedural requirement entails a purely internal agency activity as to which persons like the plaintiff have no legal claim to involvement or information. The Endangered Species Act consultation provision challenged in Lujan was such a purely internal executivebranch activity, in which outsiders were given no statutory right of participation or access. The uncertainty arises when a procedural requirement: (1) does entail a right on the part of a person like the plaintiff individually to obtain notice of, observe, participate in, or get information about an agency activity, but (2) Congress has not been explicit as to whether the requirement was intended to be enforceable without regard to the plaintiff s having a particular underlying substantive interest, and the Supreme Court has not provided a definitive construction of the statute. Examples include APA 553 notice-and-comment requirements and the public-hearing requirements in numerous organic statutes. Although some lower courts have construed Lujan as automatically requiring an underlying substantive interest in all such cases, this interpretation is not inevitable. The procedural requirement sought to be enforced in Lujan was not such a right of individual participation or access, a distinction that seems important in light of the continued enforceability of individual (though widely shared) rights of notice, participation, and information such as those created by GITSA, FACA FOIA and FECA It may be that the availability of standing in such cases properly depends, in the first instance, on construing the particular statute or regulation that creates the procedural requirement. Specifically, the question would be whether this particular statute or regulation intended to confer a right of individual participation, access, etc., enforceable without regard to whether the agency action on the merits threatens a discrete substantive interest of the plaintiff. So far, the Supreme Court has not clearly indicated how such cases are to be analyzed and resolved. Page 3: [2] Deleted funk 3/9/2012 4:48:00 PM The refusal to predicate standing on harm that is shared in substantially equal measure by all or a large class of citizens, Warth, 422 U.S. at 499, has historically been categorized as prudential, and judicial reluctance to entertain such litigation emerged in cases in which specific statutory authorization for suit was lacking. In Lujan v. Defenders of Wildlife, the Court for the first time construed a statute that attempted to extend standing to any person; its analysis suggested that the generalized grievance restriction has constitutional as well as prudential elements. The core constitutional content, which Congress may not obviate, is that harm to the general interest shared by all citizens in the government conforming its conduct to law is not a judicially

87 cognizable injury. Accordingly, a statute purporting to allow any person to challenge agency action is constitutionally ineffective to the extent that it attempts to authorize suit by a plaintiff who cannot demonstrate some distinct, constitutionally cognizable injury. Page 3: [3] Deleted funk 3/9/2012 3:33:00 PM Statutes can, however, create and/or protect broadly shared interests, harm to which can constitutionally support standing. For example, individual voters can vindicate a concrete, though widely shared right to election-finance information allegedly required by statute to be made public. Federal Election Comm. v. Akins, 524 U.S. 11, 24 (1998). Similarly, an individual denied access to information allegedly required to be disclosed by FOIA or to a meeting allegedly required to be open under GITSA or FACA has standing to litigate the denial, even though all citizens have an identical right of access. Page 4: [4] Deleted funk 3/9/2012 3:34:00 PM 4. The Prudential Zone-of-Interests Requirement In addition to a cognizable injury in fact, standing to review agency action under APA 702 requires that the injury be arguably within the zone of interests to be protected or regulated by the statute... in question. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970). Whether the prudential zone-of-interests requirement applies when review is sought under other statutes is a matter of statutory interpretation. In general, courts construe standing provisions to include the zone requirement unless the particular statutory language signals a legislative intent to grant standing more broadly. Examples of language that obviates the zone-of-interests requirement are true citizen-suit provisions (authorizing suit by any person with no further requirement) and, traditionally, any person aggrieved provisions. Section Break (Next Page)

88 A plaintiff who is a member of either (1) the group directly regulated by, or (2) the group intended as beneficiaries of, the relevant statute is indisputably within its zone of interests. Membership in either of these groups can be established by considering the particular statutory provision forming the basis of suit, even if the goals of that provision appear in tension with the overall purposes of the statute generally. Thus, a party having an economic interest in avoiding stringent environmental regulation can be within the zone of interests of a generally pro-conservation statute if he is suing to enforce a specific provision the purpose of which is to avoid unnecessary economic impact. The zone-of-interests requirement produces greater controversy and confusion when applied to a claimant who has an actual but not directly intended stake in the regulatory scheme. The most common example of such incidentally implicated interests are competitors of the regulated industry. Their financial stake in the continued or enhanced regulation of others provides the requisite injury in fact. In general, such incidentallyimplicated parties will satisfy the zone-of-interests requirement unless their interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. Clarke v. Securities Industry Ass n, 479 U.S. 388, 399 (1987). They do not need to prove that Congress intended to benefit them or persons similarly situated. As with members of the regulated and intended beneficiary communities, congruence between their interests and the statutory purposes can be assessed under the particular statutory provision forming the basis of their challenge, even if these interests do not align with what appears to be the statute s overall objectives. 5. The Prudential Limitation on Raising the Rights of Third Parties The jus tertii prohibition is a judicially self-imposed limit on the exercise of jurisdiction that plays an important role in adjudication of constitutional questions but has not been very significant in limiting judicial review of agency action under the APA or specific organic statutes. A litigant attempting to challenge government action on grounds that it violates the constitutional rights of a third party may be prohibited from doing so unless (1) the third party has suffered an injury in fact; (2) the litigant and the third party stand in some close relationship; and (3) some hindrance impedes the third party s ability to assert her own rights. Campbell v. Louisiana, 523 U.S. 392 (1998). Perhaps because the zone of interests test serves a function similar to that of the jus tertii doctrine, these limitations are not prominent in administrative law cases (other than cases raising constitutional questions). Plaintiffs who have established standing on their own behalf (including satisfying any applicable zone-of-interests requirement) are regularly permitted to attack agency action on grounds that the agency has failed to protect the interests of the public or some other group of third-party beneficiaries of the regulatory statute at issue. Page 4: [5] Deleted funk 3/9/2012 5:39:00 PM

89 This argument defines the relevant injury as the behavior, vel non, of the regulated entities. Alternatively, several lower court cases define the injury from underregulation as the agency s failure to adjust the legal incentives for private behavior in ways that further the ultimate statutory objectives. So understood, regulatory beneficiary claims present no special traceability or redressability problems.

90 IV. STANDING A. Overview The term standing is used in a variety of contexts. First, there is standing that is required by the Constitution. Second, there is standing that courts impose as a matter of judicial discretion, called prudential standing. Third, there is what is sometimes called statutory standing, but what is probably more accurately discussed as whether the plaintiff has a cause of action under the statute. All of these are aimed at determining whether the particular litigant is entitled to an adjudication of the particular claims asserted. Article III s limitation of the judicial power to Cases and Controversies imposes three constitutional standing requirements. First, the plaintiff must have suffered an injury in fact an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Beyond these constitutional minima, additional prudential restrictions may apply as a matter of judicially self-imposed limits on the exercise of federal jurisdiction.. Such restrictions include a prohibition against parties raising claims or defenses that involve a third party s legal rights (the jus tertii limitation) anda requirement that the injury be arguably within the zone of interests protected or regulated by the statute invoked. Congress may, by statute, override prudential restrictions on standing. The general statutory standing requirement for review of agency action under the APA is codified in 702, which provides that [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. Although this language significantly broadened pre-apa availability of standing to challenge agency action, it does not confer standing to the limits of what is constitutionally possible. In addition to showing that she has suffered a constitutionally cognizable injury caused by the agency s action, the plaintiff relying upon 702 must show that her injury is arguably within the zone of interests to be protected or regulated by the statute... in question. Individual regulatory statutes may contain their own statutory standing provisions. Statutory language authorizing challenge by any person aggrieved has traditionally been interpreted to confer standing to the full extent of Article III, without regard to such prudential limitations as the zone-of-interests requirement. Citizen-suit provisions (e.g., those conferring standing on any person without further requirements) are usually given the same interpretation. Other kinds of statutory standing provisions are typically construed to incorporate 1

91 the zone-of-interests test and other prudential requirements absent evidence of a different legislative intent. An association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The second of these criteria is construed very leniently, and the third effectively limits associations suing on behalf of their members to declaratory or injunctive relief, because if the redress required monetary relief, the members themselves would need to be named parties. Usually, therefore, the only important question in litigation is whether the first criterion is met. B. Constitutional Requirements Regarding Injury a. 1. The Constitutional Injury-In-Fact Requirement In General The basic Article III requirement is injury in fact. Constitutionally cognizable injuries can include harm to nonmonetary intangible interests, as well as economic or tangible harm. For example, so long as it is individually experienced, harm to environmental, recreational, or aesthetic interests can support standing. The injury must be actual or imminent, not conjectural or hypothetical. Mere ideological objection to government behavior does not constitute a constitutionally cognizable injury. In addition to the kinds of harm to person or property that would have been recognized at common law, violations of some rights created by statute can also qualify as injury for purposes of standing. For example, violation of a statutory right to obtain certain information can constitute injury. However, not all rights created by statute can so qualify. For example, denial of a statutory right to comment on a proposed rule is not injury sufficient for standing. Recently, the Supreme Court has suggested that when states are plaintiffs suing on their own behalf, as opposed to parens patriae, special concerns are involved that may lessen traditional standing requirements. b. Injury from Violation of Procedural RequirementsWhen a challenged agency action harms an underlying substantive interest of the plaintiff, she has standing to challenge the agency s failure to follow proper procedures even though she cannot prove that the procedural error actually changed the substantive outcome. For example, a taxpayer whose tax liability is increased by a new regulation can challenge the adequacy of the notice of proposed rulemaking, even though it cannot be shown that but for the error a more favorable regulation would have ensued. However, she may be required to show that a favorable regulation is possible. Cognizable injury cannot arise from a procedural violation without a showing that the violation endangers a concrete substantive interest of the plaintiff. 2

92 Apparently, the statutory right to attend meetings and otherwise have access to government proceedings, such as under the Government In The Sunshine Act and the Federal Advisory Committee Act, are considered substantive, rather than procedural, rights. Freedom of Information Act rights and voter rights to certain information under the Federal Election Campaign Act are also substantive rights, denial of which will support standing without regard to proof of harm to a particular, underlying substantive interest.. c. Generalized Grievances vs. Harm to Informational Rights and Other Broadly Shared Interests A generalized grievance is not injury sufficient to confer standing on a plaintiff. Thus, harm to the general interest shared by all citizens in the government conforming its conduct to law is not a judicially cognizable injury. Accordingly, a statute purporting to allow any person to challenge agency action is constitutionally ineffective to the extent that it attempts to authorize suit by a plaintiff who cannot demonstrate some distinct, constitutionally cognizable injury. However, a person who suffers a concrete, particularized harm does satisfy the injury requirement even though many other persons do or could suffer the same harm. Statutes can create and/or protect broadly shared interests, harm to which can constitutionally support standing. For example, individual voters can vindicate a concrete, though widely shared right to election-finance information required by statute to be made public. Similarly, an individual denied access to information allegedly required to be disclosed by FOIA or to a meeting allegedly required to be open under GITSA or FACA has standing to litigate the denial, even though all citizens have an identical right of access. The widely shared injury, while satisfying constitutional standing requirements, may raise prudential standing concerns. d. Risk as Injury The extent to which risk of harm can constitute injury for standing purposes is not clear at the present time. On the one hand, the Court has denied standing to an organization to sue on behalf of its members when no specific member could establish an imminent concrete harm, even though it was highly probable that some member would suffer a concrete harm in the foreseeable future. On the other hand, the Court found standing on behalf of organic alfalfa farmers to challenge the deregulation of genetically modified alfalfa because of the significant risk to which they would be subject due to the deregulation. The fact that the farmers had already undertaken activities and expended funds to avoid the risk was apparently important in the Court s consideration. The lower courts decisions regarding risk as injury are in tension, with the D.C. Circuit establishing a requirement that for increased risk to justify standing there must be both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account. Other circuits have generally been more receptive to considering any significant increase in risk of physical harm as sufficient. 3

93 C. Constitutional Requirements Regarding Causation & Redressability The constitutionally required elements of causation and redressability ensure that there is at least a reasonable probability that the plaintiff s injury was caused by actions of the defendant and will be remedied by the relief requested from the court. Although they are separately stated in contemporary standing doctrine, the requirements of causation and redressability are typically analyzed in tandem. There is, however, one important category of case in which the analyses may diverge. If the court s remedial options are limited by statute or other law, the injury may indeed be traceable to the defendants action, but incapable of being redressed by any of the available remedies. For example, a plaintiff who has suffered an environmental injury concededly caused by the defendant will be denied standing on redressability grounds where the wrongdoing had ceased before the suit was filed, the plaintiff cannot demonstrate a reasonable likelihood that it will recur, and the only statutory remedies are prospective injunctive relief and civil penalties payable to the government. Causation and redressability analysis tends to be very fact-specific, and in most cases there is no ready formula for predicting when a court will conclude that the causal chain has become too uncertain or attenuated. Cases attempting to challenge either favorable tax treatment of a third party or decisions not to prosecute appear to follow a pattern of dismissal because of either causation or redressability. The outcome of the causation and redressability inquiry can be highly dependent upon how the injury is defined. For example, if the harm to a plaintiff challenging an affirmative action program is defined as not obtaining the relevant position or contract, the plaintiff will often be unable to show that she would have obtained the benefit but for the challenged program. However, the Court defines the injury in such cases as a diminished opportunity to compete for the desired outcome, a definition that eliminates problems of causation or redressability. A similar definitional issue is posed by the suggestion, advanced by some judges, that complaints by regulatory beneficiaries categorically present difficult causation and redressability problems. For example, it has been argued that consumers who can satisfy the particularized injury requirement and wish to challenge an agency s failure to adopt more rigorous fuel economy standards for automobiles must also show that, if a more demanding rule were adopted, manufacturers would change their designs rather than pay noncompliance penalties. Because the standard for redressability is only that the favorable court decision would likely redress (or avoid) the injury, the plaintiff should only have to show that it is likely that the manufacturer will comply with the law. Complaints about procedural violations provide another example. If the injury is defined as actually obtaining favorable agency action on the merits, the plaintiff will rarely be able to show that correcting the procedural errors is likely to change the outcome. The Court, however, 4

94 has made clear that when the alleged violation is procedural the normal standards for redressability do not apply. All that should be required is a showing that if the correct procedures are followed a favorable outcome on the merits is possible. Redressability issues can also arise under citizen suit provisions that provide only injunctive relief and payment of civil penalties to the government when the complained of action has ceased after filing of the action, making an injunction inappropriate. While arguably paying civil penalties to the government does not redress the injury to the citizen plaintiff, the Court has said that such penalties deter future violations and therefore satisfy the redressability requirement. D. Prudential Standing -- The Prudential Limitation on Raising the Rights of Third Parties The jus tertii prohibition is a judicially self-imposed limit on the exercise of jurisdiction that plays an important role in adjudication of constitutional questions but has not been very significant in limiting judicial review of agency action under the APA or specific organic statutes. A litigant attempting to challenge government action on grounds that it violates the constitutional rights of a third party may be prohibited from doing so unless (1) the third party has suffered an injury in fact; (2) the litigant and the third party stand in some close relationship; and (3) some hindrance impedes the third party s ability to assert her own rights. 5

95 GOVERNMENT MANAGEMENT OF THE ADMINISTRATIVE PROCESS I. SCOPE This section concerns procedures relating to the management of administrative functions across agencies, particularly requirements for agencies to submit proposed actions for advance review and opportunities for executive and congressional supervision or correction of agency decisionmaking. II. CONGRESSIONAL MANAGEMENT OF AGENCY ACTION The Constitution prohibits members or houses of Congress, or Congress itself, from being, appointing, or removing officers of the United States, or from vetoing an agency action other than through the enactment of legislation. Therefore, Congress has no power of direct supervision or management over agencies even though its power to define and limit an agency s authority is virtually plenary within the bounds of the Constitution. Deleted:. Nevertheless, Congress has the recognized constitutional authority to oversee agency action for a number of purposes, especially for determining whether new legislation is necessary or appropriate. Congress s ultimate control over the agency s budget and its organic statute means that congressional views will have influence with the agency. Also, inherent in the legislative power is a power of inquiry, including the power to subpoena witnesses and documents (subject to applicable privileges, including an executive privilege of uncertain scope) and to enforce compliance therewith through the contempt power. Congressional investigation and public hearings can lead to public scrutiny and political pressure on the agency. Attempts by members or committees of Congress to influence the outcome of an agency proceeding are subject to the APA s constraints on ex parte communications and other restrictions that apply to such attempts by private persons. Beyond those requirements, however, congressional attempts to influence agency proceedings are largely unregulated. Use of the congressional hearing power to try to influence the outcome of a pending formal adjudication has been held a violation of due process, although hearings to explore policy issues that might be involved in an adjudication can be permissible and appropriate if properly managed. Outside the context of formal or other on-the-record proceedings, a court is not likely to set aside an agency decision because of alleged congressional influence unless the evidence shows that the pressure

96 brought to bear caused the agency action to be affected by factors that are not relevant under the governing statute. Pursuant to the Congressional Review of Agency Rulemaking Act, 5 U.S.C , with the exception of rules relating to agency management or personnel or agency organization, procedure, or practice, no economically significant rule can take effect (a) generally until 60 calendar days after the agency has submitted a copy of the rule and a concise general statement relating thereto to both Houses of Congress and the Comptroller General and additional supporting material to the Comptroller General and made such material available to both Houses of Congress, or (b) if a joint resolution disapproving the rule is enacted. III. PRESIDENTIAL MANAGEMENT OF AGENCY ACTION A. President s Constitutional Authority Two provisions of Article II are conceived to be the primary sources of the President s authority to manage agency action. The first, known as the Vesting Clause, states that the executive power shall be vested in the President. U.S. Const., Art. II, Sec. 1, cl. 1. The second, known as the Take Care Clause, states that the President shall take care that the laws be faithfully executed. U.S. Const., Art. II, Sec. 3. In addition, the President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. U.S. Const., Art. II, Sec. 2, cl. 1 These provisions furnish authority to the President to supervise, consult with, and obtain information from executive officers in the performance of their statutory duties. For these purposes, an executive department includes cabinet departments, independent executive agencies, and independent regulatory commissions. However, most statutes place rulemaking and adjudicatory authority in the agency head or the agency itself, not in the President. The extent to which the President can order agency officials to take actions within the officials delegated authority is uncertain. In practice, the President s exercise of his supervisory power has largely correlated with his ability on the one hand to appoint, with the advice and consent of the Senate, principal officers, U.S. Const., Art. II, Sec. 2, cl. 2, and on the other hand to remove agency officials who ignore his direction. While the Constitution may be read to preclude any statutory limitation on the President s appointment power, it is not uncommon for a statute creating an agency to place some limits on whom the President may appoint to head the agency. No cases have addressed the constitutionality of such limits, but Presidents since Ronald Reagan have issued signing Deleted: T Deleted:. This provision authorizes the President to require department heads to report to him concerning proposed actions before they occur as well as to respond to his comments on their proposed actions. More broadly, Article II vests the executive power in the President, id. sec. 1, and requires the President to take care that the laws be faithfully executed, id. sec. 3. Deleted: general duties Deleted: ability

97 statements to the effect that some such limitations are an unconstitutional restriction on the President s appointment powers. The Constitution, other than in the impeachment clause, does not address who may remove executive officers or on what basis, but impeachment is by no means the only permissible route to removal of executive officers. Where statutes do not address removal of particular officers, it is presumed that the President may remove them at will, except perhaps when their sole function is the adjudication of administrative cases. Thus, under these circumstances, the President may remove an official simply for failure to follow supervision. A number of statutes provide that an officer may be removed only for cause. Exactly what kind of conduct can constitute cause is unclear, but in practice removals on this basis are rare,.and the Court has never directly addressed the issue.however, in a case involving the ability of Congress to remove the Comptroller General for inefficiency, neglect of duty, and malfeasance, it characterized these terms as very broad and said they could be interpreted to include any number of actual or perceived transgressions of the legislative will. The validity of for cause removal provisions is not well defined by case law. Even with respect to purely executive officers, such a provision may be valid if it does not impede the President s ability to perform his constitutional duties. This does not necessarily mean, however, that Congress could constrain the President s ability to remove a principal officer, such as the Secretary of State, whose job involves execution of authorities granted by the Constitution to the President. Moreover, generally dual for-cause provisions (whereby a principal officer can be removed only for cause and an inferior officer can be removed only for cause by that principal officer) unconstitutionally constrain the President s ability to oversee the executive branch. B. Regulatory Review Although the specifics have varied with each administration, all Presidents since Richard Nixon have issued Executive Orders that require executive agencies, but not independent regulatory commissions, to perform certain analyses and submit proposed and final rules to an office in the Executive Office of the President for its review before publication. Since President Reagan s E.O. 12,291 (1981), responsibility for such review has lain with the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget. The procedural requirements of such review are set out in the Section on Rulemaking, supra. The relevant executive orders have also included provisions concerning regulatory planning, including the semiannual publication of a Unified Regulatory Agenda, identifying and Deleted: no one imagines that Deleted: form of Deleted: na statute does Deleted: an Deleted: when officers In the case of executive agencies, whose officers are removable at will, Deleted: can Deleted: only Deleted: would suffice Deleted:, Deleted: although, Comment [wf1]: I guess I disagree. The real issue is whether that characterization, made with respect to a legislative removal, is translatable to an executive removal. But I do think it is important to identify what the Court said about the legislative removal. Comment [RL2]: I agree that Bowsher says this, but I am proposing an alternative because the general understanding is otherwise, isn t it? But if you disagree, note that you inadvertently omitted the word broad in your quote. Deleted: Moreover, the Court has upheld a Deleted: even Deleted: a Deleted: i.e, one whose only function was to investigate a prosecute criminal violations, although this officer wat an inferior officer. Nevertheless, the Court has not yet found a for cause provision by itself to be interfere with the President s constitutional authorities. If, however, it were applied to Comment [wf3]: I suggest deletion, because I don t think Free Enterprise... [1] Comment [MEH4]: generally is a compromise, mutually acceptable to... Funk [2] Deleted:, it would be a different question Deleted: under at least some circumstances, Deleted: the Court has squarely held that Deleted: only Deleted: only Deleted: In the case of independent agencies, whose officers are typically... [3] Deleted:.

98 describing all regulations each agency has under development or review. Under the most recent of these, President Clinton s E.O. 12,866, agencies must prepare an annual Regulatory Plan, submitted to OIRA and included in the Unified Regulatory Agenda, describing and justifying the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter. Under E.O. 12,866, but not under its predecessors, these planning requirements extend to independent as well as executive agencies. Current Executive Orders, which are by definition subject to rescission or revision by successive administrations, also require or encourage the pursuit of specific substantive policies by requiring agencies to (a) prepare a cost-benefit analysis for significant regulatory actions, (b) pursue the most cost-effective regulatory alternative, (c) consider the impacts of proposed regulations on certain specified interests, including federalism, the environmental health and safety of children, Indian tribal governments, and takings of private property, and (d) undertake periodic review of existing rules. Deleted: and Most executive orders governing agency rulemaking provide, as they must under the Constitution, that their provisions apply only to the extent permitted by law. A violation of their requirements does not affect the validity of the rule or provide a basis for judicial review. Enforcement of the provisions of the oversight orders is left to the political process. IV. STATUTORY REQUIREMENTS A. Paperwork Reduction Act The Paperwork Reduction Act of 1980, which covers essentially all agencies (including independent regulatory agencies and the Executive Office of the President) except the Government Accountability Office and the Federal Election Commission, applies to agency collection of information. This term includes an agency s (1) collecting facts or information from ten or more persons, (2) requiring ten or more persons to disclose facts or opinions to the public or third parties, (3) requiring ten or more persons to maintain records, (4) collecting information from federal agencies or employees for statistical purposes. It does not include the collection of information as part of criminal investigations, civil or administrative proceedings to which the government is a party, or intelligence activities. Deleted: eneral Accounting Before an agency may engage in the collection of information, it must: 1. undertake an internal review to evaluate the need for the information, describe the information to be collected, create a plan for its collection, and estimate the burden on private parties that the collection will impose.

99 2. publicly announce its reasons for collecting the information, the way in which the information will be used, the burden its collection will impose, whether responses are voluntary or mandatory, and the fact that in the absence of a valid control number a person is not bound to respond to any collection requirement. 3. submit the proposal for public notice and comment. 4. submit the proposal to OIRA, with an accompanying justification. If OIRA takes no action within 60 days, the proposed collection of information is deemed approved. In the case of a collection of information that is not part of or required by a rule that goes through notice and comment, OIRA may disapprove the collection if it determines that it is unnecessary for any reason. In the case of a collection of information that is part of or required by a rule that goes through notice and comment, OIRA must submit comments as part of that proceeding and may disapprove the collection of information only if the agency s response to OIRA s comments was unreasonable. An independent regulatory agency may override an OIRA disapproval by majority vote. The Paperwork Reduction Act states that OIRA s approval (or failure to act on) a proposed collection of information is not subject to judicial review, but it is silent as to judicial review of disapprovals. Presumably, therefore, judicial review by persons adversely affected by a disapproval would be available under the APA subject to conventional requirements for judicial review. When OIRA approves a collection of information, it assigns a control number to the collection. No one is subject to any penalty for failing to comply with an agency s collection of information requirement that does not display a valid control number. The absence of a valid control number, however, is no defense to a penalty for filing false information or for failing to file information required to be filed by statute, even if the agency s implementing forms do not have a valid control number. B. Government Performance and Results Act The Government Performance and Results Act of 1993 required all agencies to prepare a Strategic Plan that set out the agency s overall mission, goals, and objectives, described how they would be achieved, and identified potential obstacles to success. Beginning in fiscal year 1999, and pursuant to OMB regulations, agencies are to prepare an annual performance plan that establishes objective performance goals for each of its program activities in light of the Strategic Plan. Beginning in 2000, each agency is to submit to the President and Congress a

100 performance report evaluating its success in meeting the performance goals for the previous year and discussing any failure to meet a particular goal. C. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980, 5 U.S.C , requires agencies to consider the special needs and concerns of small entities in the regulatory process. Small entities include small businesses as defined in the Small Business Act, 15 U.S.C. 631 et seq., not-forprofit organizations that are not dominant in their field, and governmental jurisdictions with a population of less than 50, Unified Agenda. In October and April of each year, each agency must publish a regulatory flexibility agenda in the Federal Register that identifies and describes all rules under consideration that are likely to have a significant economic impact on a substantial number of small entities. The agenda, which for publication purposes is combined with the Unified Regulatory Agenda required by Executive Order, must be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment. 2. Regulatory Flexibility Analysis. When proposing a regulation subject to APA noticeand-comment requirements, an agency must make available for public comment an initial regulatory flexibility analysis ( RFA ), unless the agency head certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Courts have interpreted the significant economic impact as being limited to the direct cost effects of having to comply with a regulation and not including the indirect economic effects on small entities that may result from a regulation. The initial RFA must be submitted to the Chief Counsel for Advocacy of the Small Business Administration, and either a copy of the initial RFA or a summary must be published in the Federal Register. An initial RFA must contain a description of the reasons why the agency is considering the rule; a statement of the objectives of and legal basis for the rule; a description of the small entities to which the rule will apply and an estimate of their number, where feasible; a description of any reporting or recordkeeping requirements contained in the rule; a identification of other federal rules which may duplicate or overlap with the rule; a description of significant alternatives to the rule that would accomplish the stated objectives while minimizing economic effects on small entities; and a discussion of those alternatives. In the case of rules issued by the Environmental Protection Agency or the Occupational Safety and Health Administration, the agency must, prior to publication of

101 the initial RFA, notify the Chief Counsel for Advocacy of the potential impacts of the proposed rule on small entities, so that he may identify representatives of the likely affected small entities for their advice and recommendations about the potential impacts. Unless waived by the Chief Counsel for Advocacy, these agencies must then convene a review panel consisting of employees from the agency, OIRA, and the Chief Counsel s office to review the proposed regulation, any other material developed in connection with the proposed rule, and the comments of the small entity representatives. Within 60 days, the review panel must publicly report on the comments and its findings on the issues discussed in the initial RFA. Other agencies may in their discretion also utilize this procedure if they wish. The final rule must be published with a final RFA that contains a statement of the need for and objectives of the rule; a summary of and response to significant issues raised by the comments received; a description of and estimate of the number of small entities to which the rule will apply; a description of any reporting or recordkeeping requirements; and a description of the steps the agency has taken to minimize the economic impact on small entities, including a statement as to the reasons for adopting the alternative selected and for not adopting other alternatives. If a rule is a response to an emergency, the head of an agency may delay the completion of the final RFA until not later than 180 days after the publication of the final rule. If the final RFA is not published within 180 days, the rule automatically lapses and has no effect. Neither the Chief Counsel nor a Regulatory Review Panel has authority to veto or reject an agency proposal or RFA. The Chief Counsel is required to report annually to the President and to relevant congressional committees on agency compliance with the Act and is authorized to appear as amicus curiae in any action seeking judicial review of a rule. 3. Periodic Review of Rules. The Regulatory Flexibility Act also requires agencies to engage in a ten-year review cycle of their regulations that have a significant economic effect on a substantial number of small entities. Each year agencies are to publish in the Federal Register the list of such rules that are to be reviewed in the following twelve months. 4. Judicial Review. A small entity adversely affected or aggrieved by final agency action may obtain judicial review under the APA of an agency s compliance with the requirements to prepare an initial and final RFA, the validity of any certification that a rule will not have a significant economic effect on a substantial number of small entities, and an agency s compliance with the requirement for periodic review of its rules. The

102 Act establishes a maximum statute of limitations for such actions at one year from the date of the final agency action. The Act allows a court, in addition to or in lieu of its other remedial powers under the APA, to defer the enforcement of a rule against small entities. D. Attorney General Supervision of Litigation By statute, the Department of Justice authorizes and handles virtually all litigation involving agencies, both enforcement actions that an agency wishes to bring and challenges to agency action under the APA. Even where an agency does have independent litigating authority, the Attorney General and the Solicitor General, with rare exceptions, have the exclusive authority pursue and conduct litigation in the Supreme Court on behalf of the agency. By controlling the agency s litigation, the Department is able to affect the manner in which agencies perform their statutory duties.

103 Page 3: [1] Comment [wf3] funk 4/15/2012 9:01:00 PM I suggest deletion, because I don t think Free Enterprise Fund is limited to some circumstances. I read it as establishing an absolute bar to such double for cause provisions. Page 3: [2] Comment [MEH4] Michael Herz 4/15/2012 9:01:00 PM generally is a compromise, mutually acceptable to Funk (who reads FEF as imposing an absolute bar) and Levin (who thinks that, as suggested by the majority s response to Breyer s parade of horribles dissent, there may be some exceptions to the rule). Page 3: [3] Deleted funk 3/8/2012 5:38:00 PM In the case of independent agencies, whose officers are typically removable only for cause, it appears likely that the President may also be able to remove an official because the official failed to follow the President s lawful supervision, but the matter is unclear because the issue has not arisen in practice or litigation. Rather than use explicit direction, the President has generally relied on the ability to influence members of independent agencies.

104 Draft of October 24, 2001 Council Approved Version With Stylistic Changes GOVERNMENT MANAGEMENT OF THE ADMINISTRATIVE PROCESS I. SCOPE This section concerns procedures relating to the management of administrative functions across agencies, particularly requirements for agencies to submit proposed actions for advance review and opportunities for executive and congressional supervision or correction of agency decisionmaking. II. CONGRESSIONAL MANAGEMENT OF AGENCY ACTION The Constitution prohibits members or houses of Congress, or Congress itself, from being, appointing, or removing officers of the United States, or from vetoing an agency action other than through the enactment of legislation. Therefore, Congress has no power of direct supervision or management over agencies even though its power to define and limit an agency s authority is virtually plenary within the bounds of the Constitution. Nevertheless, Congress has the recognized constitutional authority to oversee agency action for a number of purposes, especially for determining whether new legislation is necessary or appropriate. Congress s ultimate control over the agency s budget and its organic statute means that congressional views will have influence with the agency. Also, inherent in the legislative power is a power of inquiry, including the power to subpoena witnesses and documents (subject to applicable privileges, including an executive privilege of uncertain scope) and to enforce compliance therewith through the contempt power. Congressional investigation and public hearings can lead to public scrutiny and political pressure on the agency. Attempts by members or committees of Congress to influence the outcome of an agency proceeding are subject to the APA s constraints on ex parte communications and other restrictions that apply to such attempts by private persons. Beyond those requirements, however, congressional attempts to influence agency proceedings are largely unregulated. Use of the congressional hearing power to try to influence the outcome of a pending formal adjudication has been held a violation of due process, although hearings to explore policy issues that might be involved in an adjudication can be permissible and appropriate if properly managed. Outside the context of formal or other on-the-record proceedings, a court is not likely to set aside an agency

105 Draft of October 24, 2001 Council Approved Version With Stylistic Changes decision because of alleged congressional influence unless the evidence shows that the pressure brought to bear caused the agency action to be affected by factors that are not relevant under the governing statute. Pursuant to the Congressional Review of Agency Rulemaking Act, 5 U.S.C , with the exception of rules relating to agency management or personnel or agency organization, procedure, or practice, no economically significant rule can take effect (a) generally until 60 calendar days after the agency has submitted a copy of the rule and a concise general statement relating thereto to both Houses of Congress and the Comptroller General and additional supporting material to the Comptroller General and made such material available to both Houses of Congress, or (b) if a joint resolution disapproving the rule is enacted. III. PRESIDENTIAL MANAGEMENT OF AGENCY ACTION A. President s Constitutional Authority Two provisions of Article II are conceived to be the primary sources of the President s authority to manage agency action. The first, known as the Vesting Clause, states that the executive power shall be vested in the President. U.S. Const., Art. II, Sec. 1, cl. 1. The second, known as the Take Care Clause, states that the President shall take care that the laws be faithfully executed. U.S. Const., Art. II, Sec. 3. In addition, the President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. U.S. Const., Art. II, Sec. 2, cl. 1 These provisions furnish authority to the President to supervise, consult with, and obtain information from executive officers in the performance of their statutory duties. For these purposes, an executive department includes cabinet departments, independent executive agencies, and independent regulatory commissions. However, most statutes place rulemaking and adjudicatory authority in the agency head or the agency itself, not in the President. The extent to which the President can order agency officials to take actions within the officials delegated authority is uncertain. In practice, the President s exercise of his supervisory power has largely correlated with his ability on the one hand to appoint, with the advice and consent of the Senate, principal officers, U.S. Const., Art. II, Sec. 2, cl. 2, and on the other hand to remove agency officials who ignore his direction. While the Constitution may be read to preclude any statutory limitation on the President s appointment power, it is not uncommon for a statute creating an agency to place

106 Draft of October 24, 2001 Council Approved Version With Stylistic Changes some limits on whom the President may appoint to head the agency. No cases have addressed the constitutionality of such limits, but Presidents since Ronald Reagan have issued signing statements to the effect that some such limitations are an unconstitutional restriction on the President s appointment powers. The Constitution, other than in the impeachment clause, does not address who may remove executive officers or on what basis, but impeachment is by no means the only permissible route to removal of executive officers. Where statutes do not address removal of particular officers, it is presumed that the President may remove them at will, except perhaps when their sole function is the adjudication of administrative cases. Thus, under these circumstances, the President may remove an official simply for failure to follow supervision. A number of statutes provide that an officer may be removed only for cause. Exactly what kind of conduct can constitute cause is unclear, but in practice removals on this basis are rare and the Court has never directly addressed the issue. However, in a case involving the ability of Congress to remove the Comptroller General for inefficiency, neglect of duty, and malfeasance, it characterized these terms as very broad and said they could be interpreted to include any number of actual or perceived transgressions of the legislative will. The validity of for cause removal provisions is not well defined by case law. Even with respect to purely executive officers, such a provision may be valid if it does not impede the President s ability to perform his constitutional duties. This does not necessarily mean, however, that Congress could constrain the President s ability to remove a principal officer, such as the Secretary of State, whose job involves execution of authorities granted by the Constitution to the President. Moreover, generally dual for-cause provisions (whereby a principal officer can be removed only for cause and an inferior officer can be removed only for cause by that principal officer) unconstitutionally constrain the President s ability to oversee the executive branch. B. Regulatory Review Although the specifics have varied with each administration, all Presidents since Richard Nixon have issued Executive Orders that require executive agencies, but not independent regulatory commissions, to perform certain analyses and submit proposed and final rules to an office in the Executive Office of the President for its review before publication. Since President Reagan s E.O. 12,291 (1981), responsibility for such review has lain with the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget. The procedural requirements of such review are set out in the Section on Rulemaking, supra.

107 Draft of October 24, 2001 Council Approved Version With Stylistic Changes The relevant executive orders have also included provisions concerning regulatory planning, including the semiannual publication of a Unified Regulatory Agenda, identifying and describing all regulations each agency has under development or review. Under the most recent of these, President Clinton s E.O. 12,866, agencies must prepare an annual Regulatory Plan, submitted to OIRA and included in the Unified Regulatory Agenda, describing and justifying the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter. Under E.O. 12,866, but not under its predecessors, these planning requirements extend to independent as well as executive agencies. Current Executive Orders, which are by definition subject to rescission or revision by successive administrations, also require or encourage the pursuit of specific substantive policies by requiring agencies to (a) prepare a cost-benefit analysis for significant regulatory actions, (b) pursue the most cost-effective regulatory alternative, (c) consider the impacts of proposed regulations on certain specified interests, including federalism, the environmental health and safety of children, Indian tribal governments, and takings of private property, and (d) undertake periodic review of existing rules. Most executive orders governing agency rulemaking provide, as they must under the Constitution, that their provisions apply only to the extent permitted by law. A violation of their requirements does not affect the validity of the rule or provide a basis for judicial review. Enforcement of the provisions of the oversight orders is left to the political process. IV. STATUTORY REQUIREMENTS A. Paperwork Reduction Act The Paperwork Reduction Act of 1980, which covers essentially all agencies (including independent regulatory agencies and the Executive Office of the President) except the Government Accountability Office and the Federal Election Commission, applies to agency collection of information. This term includes an agency s (1) collecting facts or information from ten or more persons, (2) requiring ten or more persons to disclose facts or opinions to the public or third parties, (3) requiring ten or more persons to maintain records, (4) collecting information from federal agencies or employees for statistical purposes. It does not include the collection of information as part of criminal investigations, civil or administrative proceedings to which the government is a party, or intelligence activities. Before an agency may engage in the collection of information, it must:

108 Draft of October 24, 2001 Council Approved Version With Stylistic Changes 1. undertake an internal review to evaluate the need for the information, describe the information to be collected, create a plan for its collection, and estimate the burden on private parties that the collection will impose. 2. publicly announce its reasons for collecting the information, the way in which the information will be used, the burden its collection will impose, whether responses are voluntary or mandatory, and the fact that in the absence of a valid control number a person is not bound to respond to any collection requirement. 3. submit the proposal for public notice and comment. 4. submit the proposal to OIRA, with an accompanying justification. If OIRA takes no action within 60 days, the proposed collection of information is deemed approved. In the case of a collection of information that is not part of or required by a rule that goes through notice and comment, OIRA may disapprove the collection if it determines that it is unnecessary for any reason. In the case of a collection of information that is part of or required by a rule that goes through notice and comment, OIRA must submit comments as part of that proceeding and may disapprove the collection of information only if the agency s response to OIRA s comments was unreasonable. An independent regulatory agency may override an OIRA disapproval by majority vote. The Paperwork Reduction Act states that OIRA s approval (or failure to act on) a proposed collection of information is not subject to judicial review, but it is silent as to judicial review of disapprovals. Presumably, therefore, judicial review by persons adversely affected by a disapproval would be available under the APA subject to conventional requirements for judicial review. When OIRA approves a collection of information, it assigns a control number to the collection. No one is subject to any penalty for failing to comply with an agency s collection of information requirement that does not display a valid control number. The absence of a valid control number, however, is no defense to a penalty for filing false information or for failing to file information required to be filed by statute, even if the agency s implementing forms do not have a valid control number. B. Government Performance and Results Act The Government Performance and Results Act of 1993 required all agencies to prepare a Strategic Plan that set out the agency s overall mission, goals, and objectives, described how

109 Draft of October 24, 2001 Council Approved Version With Stylistic Changes they would be achieved, and identified potential obstacles to success. Beginning in fiscal year 1999, and pursuant to OMB regulations, agencies are to prepare an annual performance plan that establishes objective performance goals for each of its program activities in light of the Strategic Plan. Beginning in 2000, each agency is to submit to the President and Congress a performance report evaluating its success in meeting the performance goals for the previous year and discussing any failure to meet a particular goal. C. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980, 5 U.S.C , requires agencies to consider the special needs and concerns of small entities in the regulatory process. Small entities include small businesses as defined in the Small Business Act, 15 U.S.C. 631 et seq., not-forprofit organizations that are not dominant in their field, and governmental jurisdictions with a population of less than 50, Unified Agenda. In October and April of each year, each agency must publish a regulatory flexibility agenda in the Federal Register that identifies and describes all rules under consideration that are likely to have a significant economic impact on a substantial number of small entities. The agenda, which for publication purposes is combined with the Unified Regulatory Agenda required by Executive Order, must be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment. 2. Regulatory Flexibility Analysis. When proposing a regulation subject to APA noticeand-comment requirements, an agency must make available for public comment an initial regulatory flexibility analysis ( RFA ), unless the agency head certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Courts have interpreted the significant economic impact as being limited to the direct cost effects of having to comply with a regulation and not including the indirect economic effects on small entities that may result from a regulation. The initial RFA must be submitted to the Chief Counsel for Advocacy of the Small Business Administration, and either a copy of the initial RFA or a summary must be published in the Federal Register. An initial RFA must contain a description of the reasons why the agency is considering the rule; a statement of the objectives of and legal basis for the rule; a description of the small entities to which the rule will apply and an estimate of their number, where feasible; a description of any reporting or recordkeeping requirements contained in the rule; a identification of other federal rules which may duplicate or overlap with the rule; a description of significant alternatives to the rule that would accomplish the stated

110 Draft of October 24, 2001 Council Approved Version With Stylistic Changes objectives while minimizing economic effects on small entities; and a discussion of those alternatives. In the case of rules issued by the Environmental Protection Agency or the Occupational Safety and Health Administration, the agency must, prior to publication of the initial RFA, notify the Chief Counsel for Advocacy of the potential impacts of the proposed rule on small entities, so that he may identify representatives of the likely affected small entities for their advice and recommendations about the potential impacts. Unless waived by the Chief Counsel for Advocacy, these agencies must then convene a review panel consisting of employees from the agency, OIRA, and the Chief Counsel s office to review the proposed regulation, any other material developed in connection with the proposed rule, and the comments of the small entity representatives. Within 60 days, the review panel must publicly report on the comments and its findings on the issues discussed in the initial RFA. Other agencies may in their discretion also utilize this procedure if they wish. The final rule must be published with a final RFA that contains a statement of the need for and objectives of the rule; a summary of and response to significant issues raised by the comments received; a description of and estimate of the number of small entities to which the rule will apply; a description of any reporting or recordkeeping requirements; and a description of the steps the agency has taken to minimize the economic impact on small entities, including a statement as to the reasons for adopting the alternative selected and for not adopting other alternatives. If a rule is a response to an emergency, the head of an agency may delay the completion of the final RFA until not later than 180 days after the publication of the final rule. If the final RFA is not published within 180 days, the rule automatically lapses and has no effect. Neither the Chief Counsel nor a Regulatory Review Panel has authority to veto or reject an agency proposal or RFA. The Chief Counsel is required to report annually to the President and to relevant congressional committees on agency compliance with the Act and is authorized to appear as amicus curiae in any action seeking judicial review of a rule. 3. Periodic Review of Rules. The Regulatory Flexibility Act also requires agencies to engage in a ten-year review cycle of their regulations that have a significant economic effect on a substantial number of small entities. Each year agencies are to publish in the Federal Register the list of such rules that are to be reviewed in the following twelve months.

111 Draft of October 24, 2001 Council Approved Version With Stylistic Changes 4. Judicial Review. A small entity adversely affected or aggrieved by final agency action may obtain judicial review under the APA of an agency s compliance with the requirements to prepare an initial and final RFA, the validity of any certification that a rule will not have a significant economic effect on a substantial number of small entities, and an agency s compliance with the requirement for periodic review of its rules. The Act establishes a maximum statute of limitations for such actions at one year from the date of the final agency action. The Act allows a court, in addition to or in lieu of its other remedial powers under the APA, to defer the enforcement of a rule against small entities. D. Attorney General Supervision of Litigation By statute, the Department of Justice authorizes and handles virtually all litigation involving agencies, both enforcement actions that an agency wishes to bring and challenges to agency action under the APA. Even where an agency does have independent litigating authority, the Attorney General and the Solicitor General, with rare exceptions, have the exclusive authority pursue and conduct litigation in the Supreme Court on behalf of the agency. By controlling the agency s litigation, the Department is able to affect the manner in which agencies perform their statutory duties.

112 April 16, 2012 Can t go to Princeton. 1st miss in a long time, but we re going to my son s graduation in Denver. Here are the recent conference call minutes again. A few points: 1. I ve drafted the memo referred to in #1, sought comments from Committee members, and will soon send to Katrina Krause. 2. Jeff has submitted the Rulemaking manuscript. 3. The author of the Legislative Drafting book found another publisher. 4. No action items of which I am aware. Have a great meeting. Wish I could be there. Bill Jordan Associate Dean and C. Blake McDowell Professor of Law University of Akron School of Law Akron, Ohio (office) (cell) jordan@uakron.edu

113 Section of Administrative Law and Regulatory Practice Publications Committee Minutes of Conference Call Participating in the call: Bill Jordan, Jeff Lubbers, Michael Herz, Bill Funk, Sarah Orwig, Anna Shavers, Jeff Litwak, Jeff Rosen 1. We discussed the new ABA Marketing Sales Report. The revenue numbers appear to reflect actual sales for the periods in question, although the report is limited to 365 days. We noted that the report reflects two Kindle editions, about which we had not been informed. We also noted that there is no inventory or cost information. Also, there is information for very old editions and for marketing postcards and brochures. Bill Jordan will draft a memo on the information we need for our decision making purposes. We need to find out how there came to be Kindle versions of two of our books. 2. Rulemaking Guide 5 th Edition. Jeff Lubbers will submit the manuscript very shortly. 3. Proposed Legislative Drafting book. Jeff Lubbers knows the author, who has long experience in the Senate and has been a successful adjunct professor at AU. Bill Jordan will ask him for his draft. 4. Interstate Compacts. Jeff Litwak is working with the authors of the previous edition to develop a proposal for a new edition. 5. Developments. Jeff Lubbers is to submit the 4 chapters shortly. Michael Herz will write a Chair s Forward. We discussed the possibility of doing more with the e book platform. Sarah Orwig will explore the matter. 6. Lobbying Manual 4 th Ed. We decided to reprint 200 copies.

114 From: To: Subject: Date: Council Discussion on behalf of Michael E Herz ALCOUNCILPLUS@MAIL.AMERICANBAR.ORG Incorporation by Reference Friday, March 30, :36:58 AM Dear Colleagues, Further on incorporation by reference: As many of you know, the Office of the Federal Register has extended the deadline for comments on the pending petition for rulemaking filed by Peter Strauss et al. The new due date is June 1. An ad hoc sub group is working on comments; as yet it is unclear how extensive they will be or to what extent they will diverge from the petition and Peter s own comments in response to the OFR notice. We will consider this issue at the Spring Council meeting and I hope to circulate something in advance. As before, I d urge anyone with an interest to be in touch with me. Today brought another interesting development, indicating just how salient this question has become. ORIA issued a Request for Information and noticed a public workshop on May 15. A copy is attached and the notice can be accessed here. The public meeting will take place at the National Institute of Standards and Technology in Gaithersburg, MD. You can register here. Best, Michael Michael Herz Chair, ABA Section of Administrative Law and Regulatory Practice Visiting Research Scholar, Program in Law and Public Affairs, Princeton University Arthur Kaplan Professor of Law, Cardozo School of Law (609) (o) (917) (c) herz@yu.edu Thank you for your continued interest in this list. A summary of your discussion list subscriptions, including ALCOUNCILPLUS, can be found at This new List Subscription Page allows you to manage your lists - unsubscribe from existing or join others. If you have any issues you may either contact the list owner via ALCOUNCILPLUS-request@mail.americanbar.org, or the ABA Service Center at phone: or service@americanbar.org.

115 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES to shares of Common Stock should be passed through to the accounts of Participants. 29. The Applicant states that the requested exemption is protective of the rights of Participants and beneficiaries because they had the opportunity, at their own discretion, to participate in the Offering on the same terms as every other Shareholder. The Applicant stresses that Participants and their beneficiaries had no obligation to exercise their Rights, and in fact could not exercise their Rights if the Subscription Price was below the Closing Price on January 14, 2011 (any Rights not exercised by the Participants simply expired). The Applicant states that the terms of the Offering were described to the Participants in clearly written communications, namely the 401(k) Participant Instructions and the 401(k) Participant Election Form, and that the decision by Participants to exercise Rights held in their Plan Accounts of the Participants in the Offering was strictly voluntary. Finally, the Applicant notes that neither TIB nor any of the Plan fiduciaries placed any pressure on Participants to exercise their Rights in the Offering or otherwise attempted to influence their decision, and the Offering was conducted in a manner which did not prejudice the Participants. Summary 30. In summary, the Applicant represents that the covered transactions satisfied the statutory requirements for an exemption under section 408(a) of the Act because: (a) The receipt of the Rights by the Plan occurred pursuant to Plan provisions for individually directed investments of such accounts, in connection with the Offering, and was made available by TIB on the same terms to all Shareholders of Common Stock as of the Record Date; (b) The acquisition of the Rights by the Plan resulted from an independent act of TIB as a corporate entity, and all holders of the Rights, including the Plan, were treated in the same manner with respect to such acquisition; (c) All Shareholders of Common Stock, including the Plan, received the same proportionate number of Rights based on the number of shares of Common Stock held by such Shareholders; (d) All decisions regarding the Rights held by the Plan were made by the Participants whose accounts in the Plan received the Rights pursuant to the Offering, in accordance with the provisions under the Plan for individually-directed investment of such account; and (e) The Plan did not pay any fees or commissions in connection with the acquisition and or holding of the Rights. Notice to Interested Persons Notice of the proposed exemption will be given to all Participants who received Rights within 20 days of the publication of the notice of proposed exemption in the Federal Register, by first class U.S. mail to the last known address of all such Participants. Such notice will contain a copy of the notice of proposed exemption, as published in the Federal Register, and a supplemental statement, as required pursuant to 29 CFR (b)(2). The supplemental statement will inform interested persons of their right to comment on and to request a hearing with respect to the pending exemption. Written comments and hearing requests are due within 50 days of the publication of the notice of proposed exemption in the Federal Register. FOR FURTHER INFORMATION CONTACT: Warren Blinder of the Department, telephone (202) (This is not a toll-free number.) General Information The attention of interested persons is directed to the following: (1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries; (2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan; (3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and (4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption. Signed at Washington, DC, this 27th day of March Lyssa E. Hall, Acting Director of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor. [FR Doc Filed ; 8:45 am] BILLING CODE P VerDate Mar<15> :11 Mar 29, 2012 Jkt PO Frm Fmt 4703 Sfmt 4703 E:\FR\FM\30MRN1.SGM 30MRN1 OFFICE OF MANAGEMENT AND BUDGET Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities ACTION: Request for Information and Notice of public workshop. SUMMARY: The Office of Management and Budget (OMB) invites interested parties to provide input on current issues regarding Federal agencies standards and conformity assessment related activities. Input is being sought to inform OMB s consideration of whether and how to supplement Circular A 119 (Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities). In addition, OMB is announcing a public workshop at the Department of Commerce s National Institute of Standards and Technology (NIST) on May 15, A complementary NIST workshop, Conformity Assessment: Approaches and Best Practices, will take place on April 11, 2012 to seek input from individuals on the planned update of Guidance on Federal Conformity Assessment Activities, issued by NIST in The NIST workshop was announced separately by NIST at (see also 77 FR 15719; March 16, 2012). DATES: Comments: Comments are due on or before April 30, 2012.

116 19358 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Public workshop: In addition to providing written comments, interested parties are invited to attend the public workshop on May 15th. The workshop will include presentations from key government officials, industry, and experts on standards and conformity assessment issues, and time will be allotted for participant input and discussions. There is no registration fee for the workshop. Registration: To gain access to the NIST campus, located at 100 Bureau Drive in Gaithersburg, MD 20899, all participants must register in advance no later than 5 p.m. EST on May 8, Non-U.S. citizens must register no later than May 1, There will be no onsite registration. To register online, visit the Register Now link on the conference web site at conf_disclosure.cfm?conf_id=5262. ADDRESSES: All comments should be submitted via or faxed at Please submit comments only and include your name, company name (if any), and cite Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities in all correspondence. All comments received will be posted, without change or redaction, to so commenters should not include information they do not wish to be posted (e.g., personal or confidential business information). FOR FURTHER INFORMATION CONTACT: Jasmeet Seehra, Office of Information and Regulatory Affairs, at jseehra@omb.eop.gov. SUPPLEMENTARY INFORMATION: In the National Technology Transfer and Advancement Act of 1995 (Pub L ; hereinafter the NTTAA ), Congress stated that Federal agencies shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities, except when an agency determines that such use is inconsistent with applicable law or otherwise impractical. As amended by Section 1115 of Public Law , Section 12(d) provides that: (d) UTILIZATION OF CONSENSUS TECHNICAL STANDARDS BY FEDERAL AGENCIES; REPORTS. (1) IN GENERAL. Except as provided in paragraph (3) of this subsection, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. (2) CONSULTATION; PARTICIPATION. In carrying out paragraph (1) of this subsection, Federal agencies and departments shall consult with voluntary, private sector, consensus standards bodies and shall, when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources, participate with such bodies in the development of technical standards. (3) EXCEPTION. If compliance with paragraph (1) of this subsection is inconsistent with applicable law or otherwise impractical, a Federal agency or department may elect to use technical standards that are not developed or adopted by voluntary consensus standards bodies if the head of each such agency or department transmits to the Office of Management and Budget an explanation of the reasons for using such standards. Each year, beginning with fiscal year 1997, the Office of Management and Budget shall transmit to Congress and its committees a report summarizing all explanations received in the preceding year under this paragraph. (4) EXPENSES OF GOVERNMENT PERSONNEL. Section 5946 of title 5, United States Code, shall not apply with respect to any activity of an employee of a Federal agency or department that is determined by the head of that agency or department as being an activity undertaken in carrying out this subsection. (5) DEFINITION OF TECHNICAL STANDARDS. As used in this subsection, the term technical standards means performance based or design-specific technical specifications and related management systems practices. Section 12(d) is found as a note to 15 U.S.C In response to the enactment of the NTTAA, OMB prepared a proposed set of revisions to Circular A 119 (entitled Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities ) and issued a Federal Register notice seeking public comment on the proposed revisions. 61 FR (December 27, 1996). After consideration of the comments, OMB issued the final revision of the Circular. 63 FR 8546 (February 19, 1998). In the preamble to the final notice, OMB responded to the public comments and provided explanatory background regarding the revised Circular. A copy of the Circular is on OMB s Web site at circulars_a119/. The policies in the Circular are intended to reduce to a minimum the reliance by agencies on governmentunique standards. In accordance with Section 12(d) of the NTTAA, Circular A 119 directs Federal agencies to use voluntary consensus standards in lieu of government-unique standards except VerDate Mar<15> :11 Mar 29, 2012 Jkt PO Frm Fmt 4703 Sfmt 4703 E:\FR\FM\30MRN1.SGM 30MRN1 where inconsistent with law or otherwise impractical. The Circular also provides guidance for agencies participating in the work of bodies that develop voluntary consensus standards and describes procedures for satisfying the NTTAA s agency-reporting requirements. In addition, consistent with Section 12(b) of the NTTAA, the Circular directs the Secretary of Commerce to issue guidance to agencies in order to coordinate conformity assessment activities. On January 17, 2012, the Office of Information and Regulatory Affairs, the Office of Science and Technology Policy, and the United States Trade Representative built on the Circular and issued guidance on Federal engagement in standards activities to address national priorities. 1 We note more generally the requirements of Executive Order 13563, which emphasizes that our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation (emphasis added), and which stresses the importance of public participation and of careful consideration of both benefits and costs. Purpose: The purpose of this Request for Information (RFI) and related public workshop on May 15, 2012, is to allow interested stakeholders to provide input to OMB, NIST, Federal regulators and other relevant agencies on how the Federal government should address issues in standards and conformity assessment that have emerged or moved to the forefront since the Circular was promulgated in Such input could help improve U.S. agencies implementation of the NTTAA and the Circular. In addition, input received through the RFI and during the workshop could be used to inform OMB s consideration of whether and how to supplement Circular A 119 to provide additional or more specific guidance on standards and conformity assessment to agencies engaged in rulemaking, procurement, and other activities. Any such supplemental guidance would be developed in conjunction with NIST s effort to update its conformity assessment guidelines, in order to ensure consistency between the two documents. The NIST conformity assessment guidelines are available at FR_FedGuidanceCA.pdf. Additional information on the conformity assessment workshop objectives was provided by NIST in a separate Federal 1 See files/omb/memoranda/2012/m-12-08_1.pdf.

117 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Register notice published on March 16, 2012 (77 FR 15719). If OMB determines, based on the responses to the RFI, discussions at the workshops, and further consideration of the issues, that it would be useful to develop supplemental guidance for the Circular to address some or all of the issues raised, then OMB will publish a draft notice in the Federal Register at a subsequent date and request public comment. In response to this RFI and at the workshop, OMB is interested in receiving input from interested stakeholders pertaining to one or more of the following issues relating to standards and conformity assessment, specifically with respect to how these issues may affect agencies engaged in rulemaking, procurement, and other activities. Agency Implementation of Circular A 119 in Rulemakings. Are Federal agencies generally following the guidance set out in the Circular and providing an adequate explanation of how they considered standards and conformity assessment-related issues in the preambles to rulemakings? Standardization Activities. OMB A 119 does not establish a preference between consensus and non-consensus standards developed in the private sector. A limited set of foundational attributes of standardization activities are identified in the Circular, focusing on voluntary consensus standard activities. It may also be important to recognize the contributions of standardization activities that take place outside of the voluntary consensus process, in particular certain activities in emerging technology areas. What factors should agencies use in evaluating whether to use voluntary non-consensus standards in regulation, procurement solicitations, or other nonregulatory uses? OMB also invites comments on the respective roles of voluntary consensus standards vs. voluntary non-consensus standards for agency responsibilities in rulemaking, procurement, and other activities. Conformity Assessment. Circular A 119 directs the Secretary of Commerce to issue guidance to Federal agencies on conformity assessment. NIST issued such guidance in 2000 and plans to update the guidance. In conjunction with NIST s efforts to update its conformity assessment guidance, should a supplement to Circular A 119 be issued to set out relevant principles on conformity assessment? If so, what issues should be addressed in such a supplement? The following are among the topics that could be considered: Factors agencies should use in selecting the appropriate conformity assessment procedure, including product/sector specific issues and the level of risk of non-fulfillment of legitimate regulatory, procurement, or other mission-related objectives; Guidance for regulatory agencies on compliance with relevant international obligations pertaining to conformity assessment and accreditation activities; Factors agencies should consider in determining whether to recognize the results of conformity assessment and accreditation activities conducted by private sector bodies in support of regulation; Non-regulatory uses of standards (including vendor conformity for purposes of response to procurement solicitations); and Ensuring that agencies consider how to minimize conformity assessment costs and delays for businesses, especially small and medium sized enterprises, subject to statutory and budgetary constraints and the ability of agencies to fulfill their legitimate regulatory, procurement, or other mission-related objectives. Protection of Copyright Associated With Standards. Standards themselves are considered to be intellectual property and are typically copyrighted by the standards developing bodies that administer the process by which specific standards are developed and maintained. The rights of copyright holders are protected under U.S. law, and standards developers typically charge fees to access their copyrighted materials. Some parties have raised transparency concerns with respect to the availability of copyrighted materials in instances where standards are referenced or incorporated in regulation and compliance with such standards is mandatory. In this respect, we take note of three recent developments relevant to this issue: At its Plenary Session on December 8, 2011, the Administrative Conference of the United States (ACUS) considered and adopted a Recommendation on Incorporation by Reference, specifically addressing the place of voluntary consensus standards in that process and how to determine reasonable availability. Recommendation Incorporationby-Reference.pdf. Second, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (the Act) was signed into law on January 3, 2012 (Pub. L ). Section 24 of the Act created a new subsection (p) of Section of Title VerDate Mar<15> :11 Mar 29, 2012 Jkt PO Frm Fmt 4703 Sfmt 4703 E:\FR\FM\30MRN1.SGM 30MRN1 49 of the U.S. Code. Section 60102(p) prohibits the Secretary of Transportation from issuing guidance or a regulation pursuant to Title 49 of the U.S. Code, Chapter 601 (pipeline safety) that incorporates by reference any documents or portions thereof unless those documents or portions thereof are made available to the public, free of charge, on an Internet Web site. Section 60102(p) takes effect one year from the date of its enactment, i.e., January 3, Third, the National Archives and Records Administration, Office of the Federal Register, recently published a petition for rulemaking received on February 13, 2012, to amend its regulations governing the approval of agency requests to incorporate material by reference into the Code of Federal Regulations, and requested public comment. 77 FR (February 27, 2012). OMB notes that the petition raises issues that are closely related to some of the issues discussed in this RFI and encourages interested stakeholders to provide comments in response to the petition. Circular A 119 specifically contemplates incorporation by reference of voluntary consensus standards by Federal agencies, defining agency use of a voluntary consensus standard as incorporation of a standard in whole, in part, or by reference for procurement purposes, and the inclusion of a standard in whole, in part, or by reference in regulation(s). Circular A 119 also directs agencies to respect intellectual property rights that may exist in voluntary consensus standards that are incorporated into regulation by reference: If a voluntary standard is used and published in an agency document, your agency must observe and protect the rights of the copyright holder and any other similar obligations. Since passage of the NTTAA, major strides have been made by Federal agencies in their use of voluntary consensus standards. The NIST Standards Incorporated by Reference Database includes thousands of such standards incorporated by reference in the CFR query/index.cfm?fuseaction=rsibr.total _regulatory_sibr. Is lack of access to standards incorporated by reference in regulation an issue for commenters responding to a request for public comment in rulemaking or for stakeholders that require access to such standards? Please provide specific examples. What are the best practices for providing access to standards incorporated by reference in regulation

118 19360 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES during rulemaking and during the effective period of the regulation while respecting the copyright associated with the standard? What are the best practices for incorporating standards by reference in regulation while respecting the copyright associated with the standard? Voluntary Consensus Standards and Cost-Benefit Analysis. Standards developing bodies, including not-forprofit organizations, use a variety of cost-recovery models as part of their overall way of doing business. OMB believes that it may be helpful for the purposes of the Circular and for the evaluation of costs and benefits of significant regulatory actions pursuant to Executive Orders and for Federal agencies to have a basic understanding of the costs associated with the development of private sector standards, in addition to the purchase costs of standards. Similarly, agencies and the public should have an understanding of the overall resources and costs that would be involved if Federal agencies were to develop government-unique standards. Both of these can be elements in determining when it is practical or impractical to incorporate a voluntary standard into regulation or otherwise adopt a standard in the course of carrying out an agency s mission, as compared to developing a government-unique standard. What resource and other costs are involved in the development and revision of voluntary standards? What economic and other factors should agencies take into consideration when determining that the use of a voluntary standard is practical for regulatory or other mission purposes? How often do standards-developing bodies review and subsequently update standards? If standards are already incorporated by reference in regulations, do such bodies have mechanisms in place for alerting the relevant agencies and the public, especially in regard to the significance of the changes in the standards? Using and Updating Standards in Regulation. Federal agencies have adopted various methods of using standards as a basis for regulation. They have also developed different approaches to updating standards that have been referenced or incorporated in regulations. Should OMB set out best practices on how to reference/incorporate standards (or the relevant parts) in regulation? If so, what are the best means for doing so? Are the best means of reference/incorporation contextspecific? Are there instances where incorporating a standard or part thereof into a regulation is preferable to referencing a standard in regulation (or vice versa)? Should an OMB supplement to the Circular set out best practices for updating standards referenced in regulation as standards are revised? If so, what updating practices have worked well and which ones have not? OMB recognizes that changes in technology and the need for innovation can result in the updating of private sector standards in a turn-around time of two years or even less. Where such standards are already incorporated into regulations, these changes can suggest a need to update the relevant regulations as well and, in some cases, can result in a need for regulated entities to purchase the newly updated standards on a fairly routine basis. In addition to the costs associated with the continuing purchase of such standards, rapid update cycles may make it difficult for the regulated public to understand the nature and significance of the changing regulations. Is there a role for OMB in providing guidance on how Federal agencies can best manage the need for relevant regulations in the face of changing standards? How should agencies determine the cost-effectiveness of issuing updated regulations in response to updated standards? Do agencies consult sufficiently with private sector standards bodies when considering the update of regulations that incorporate voluntary standards, especially when such standards may be updated on a regular basis? Use of More Than One Standard or Conformity Assessment Procedure in a Regulation or Procurement Solicitation. OMB recognizes that, in some instances, it may be best, in terms of economic activity, if a regulation or procurement solicitation sets out a requirement that can be met by more than one standard and more than one conformity assessment procedure. In some cases, however, allowing the use of more than one standard or conformity assessment procedure may not be possible or meet the regulatory or procurement objective. For example, doing so may be precluded by statute, and an alternate standard or conformity assessment procedure may not provide an equivalent level of protection as the standard or conformity assessment procedure selected by the regulator. Should OMB provide guidance to agencies on when it is appropriate to allow the use of more than one standard or more than one conformity assessment procedure to demonstrate conformity with regulatory requirements or solicitation provisions? Where an agency is requested by stakeholders to consider allowing the demonstration of conformity to another country s standard or the use of an alternate conformity assessment procedure as adequate to fulfilling U.S. requirements, should OMB provide guidance to agencies on how to consider such requests? Other Developments Have there been any developments internationally including but not limited to U.S. regulatory cooperation initiatives since the publication of Circular A 119 that OMB should take into account in developing a possible supplement to the Circular? Does the significant role played by consortia today in standards development in some technology areas have any bearing on (or specific implications for) Federal participation? Are there other issues not set out above that OMB might usefully seek to address in a supplement? Cass Sunstein, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget. [FR Doc Filed ; 8:45 am] BILLING CODE P MILLENNIUM CHALLENGE CORPORATION [MCC 12 04] VerDate Mar<15> :11 Mar 29, 2012 Jkt PO Frm Fmt 4703 Sfmt 4703 E:\FR\FM\30MRN1.SGM 30MRN1 Report on Countries That Are Candidates for Millennium Challenge Account Eligibility in Fiscal Year 2012 and Countries That Would Be Candidates but for Legal Prohibitions AGENCY: Millennium Challenge Corporation. ACTION: Notice. SUMMARY: Section 608(d) of the Millennium Challenge Act of 2003 (the Act ) requires the Millennium Challenge Corporation to publish a report that identifies countries that are candidate countries for Millennium Challenge Account assistance during FY In December 2011, Congress enacted changes in MCC s FY 2012 appropriation that redefined candidate countries for FY 2012 as part of the Consolidated Appropriations Act, 2012 (Pub. L ) (the Appropriations Act ). 1 While this does not affect the 1 The changes to the Act enacted in the Appropriations Act only apply to the FY 2012 selection process. The relevant language would need to be included in next year s appropriations

119 From: To: Subject: Date: Attachments: Council Discussion on behalf of Michael E Herz ALCOUNCILPLUS@MAIL.AMERICANBAR.ORG Proposed Plain Regulations Act Thursday, April 05, :43:59 PM HR 3786.docx [This time with attachment. Sorry.] To: Ad Law Section Leadership; Members of the Rulemaking Committee From: Michael Herz, Section Chair Jeffrey Rosen, Rulemaking Committee Chair Re: Plain Regulations Act Date: April 4, 2012 The Plain Regulations Act of 2012 (H.R. 3786) is currently pending in the House. This proposed legislation would require all federal agencies to use plain language in all new and substantially revised regulations in accordance with the guidance developed by OMB under the Plain Writing Act of (The Plain Writing Act requires the use of plain writing defined as writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience in various documents, but specifically exempts regulations.) OMB would write further guidelines, and would review proposed regulations for compliance with the Act; judicial review is not available. A copy is attached. It would be appropriate for the Section to take a position on the proposed legislation. The Council will discuss this at its April meetings. We are writing in advance of the meeting to get feedback from those with knowledge and experience. The pending legislation is broadly consistent with a 1999 ABA Resolution, which came out of our Section, that reads: RESOLVED, That the American Bar Association urges agencies to use plain language in writing regulations, as a means of promoting the understanding of legal obligations, using such techniques as: Organizing them for the convenience of their readers; Using direct and easily understood language; Writing in short sentences, in the active voice; and Using helpful stylistic devices, such as question-and-answer formats, vertical lists, spacing that facilitates clarity, and tables. To avoid problems in the use of plain language techniques, agencies should: Take into account possible judicial interpretations as well as user understanding; Clearly state the obligations and rights of persons affected, as well as those of the agency; and Identify and explain all intended changes when revising regulations. It is hard to be opposed to plain language in principle, and the bill is essentially consistent with the resolution. On the other hand, language is sometimes complicated not as a result of

120 carelessness or an intentional desire to obfuscate, but because the substance being conveyed is complex. The Report accompanying the 1999 resolution noted other reservations, including a worry that agencies might make the language of regulations plain by the expedient of referring to bureaucratic discretion issues that more complex language could deal with. Here are a couple of specific questions: Some plain writing requirements already apply to regulations, at least in theory. Various Executive Orders require that regulations be accessible, consistent, written in plain language, and easy to understand (13563) or be simple and easy to understand (12866) or the like. A Presidential Directive of June 1, 1998, requires use of plain language in proposed and final rulemaking documents. Pursuant to this Directive and supplemental guidance issued by the Vice President in July 1998, agencies were to prepare a plain language plan. And OMB guidelines say that guidance and rulemaking preambles are covered by the Plain Writing Act even though regulations are not. What has been the experience under these requirements? Are they working so well as to make the proposed legislation unnecessary? Are they being utterly ignored? Have efforts to comply indicated pitfalls with a plain language approach? Do they make the Plain Regulations Act unnecessary? Why did the Plain Writing Act exempt regulations from its coverage? Presumably those concerns have not disappeared in the intervening two years. What is the response to those concerns? Are there some regulations that simply do not lend themselves to plain language and should be exempted? Separate from the concern about plain language, is it appropriate to have OMB supervise agency compliance with this requirement? If there is to be external oversight, OMB is probably the office to perform it, but is there another choice? And are there concerns about delay or substantive interference that outweigh the benefits of a second pair of eyes? Obviously, any thoughts on any other aspect of the proposed bill would be very welcome. Thanks in advance for your help. Michael Herz Arthur Kaplan Professor of Law Cardozo School of Law 55 Fifth Avenue New York, NY (212) herz@yu.edu Thank you for your continued interest in this list. A summary of your discussion list subscriptions, including ALCOUNCILPLUS, can be found at

121 The Plain Regulations Act, HR 3786: Making Federal Regulations Accessible Posted on March 17, 2012 On January 18, Congressman Bruce Braley (D-Iowa) introduced the Plain Regulations Act. Braley also introduced the Plain Writing Act, which became law on October 13, 2010, with strong bipartisan support. The original draft of that Act had covered regulations, but the provision was deleted during the legislative process because of opposition from several sources. These same reasons are certain to resurface. Let s examine them: Criticism 1 A law requiring regulations to be written in plain language would be used to slow down or derail the regulatory process by those who oppose government s role in regulating. Currently, many poorly written regulations languish on policymakers desks awaiting an explanation. Then they are further delayed at the Office of Management and Budget while OMB examiners ask for explanations or clarification from the agency. So rather than delaying regulations, the Plain Regulations Act will probably speed up the regulatory process because plain-language regulations are easier to review. Since the structure and language are clearer, it s easier to tell that the underlying reasoning is sound and that the regulation is both complete and accurate. The same characteristics that make a plain-language regulation easier for the regulated community to read and comprehend make it easier for the reviewers as well. Besides, someone intent on delaying a regulation has many more powerful tools to use, such as demanding additional analyses under the Paperwork Reduction Act, Executive Order 12866, and the Regulatory Flexibility Act. Demands for additional economic analysis under one of these authorities are a much more effective delaying tactic. And if regulations are delayed for lack of clarity, the remedy will be straightforward, unlike in cases of delay for one of these other reasons. Remedying the plain language will take much less time than performing additional economic analyses and will result in a superior product that causes fewer problems for everyone. Criticism 2 It s impossible to measure compliance with the plain-language requirement. Measurement will further tie up the regulatory process. There are three simple ways to check a regulation for clarity: 1. use software to spot obvious flaws,

122 2. use a checklist to catch problems with organization and flow, and 3. have a colleague review the edited product. Readily available software that s part of most word-processing programs, or more sophisticated free-standing programs such as Stylewriter or Visible Thread, will identify fundamental problems like sentence length and passive voice. The Federal Plain Language Guidelines[1] or other document checklists[2] are handy tools for reviewing other issues. And a final review by a fresh pair of eyes should already be part of writing any rule. The gold standard for testing a document s clarity is to test the draft with a sample of the public affected by the regulations. While that won t usually be possible with regulations, comments from the regulations.gov website will serve as a good substitute. Giving the public the right to demand clarity in rulemaking documents should result in more plainlanguage comments on draft regulations. And with the ready availability of simple and cheap on-line surveying software such as Survey Monkey, it is possible to conduct some simple tests of regulatory language. Finally, long-term public reaction to the regulation will show whether it communicates clearly. Does the agency get fewer questions about the regulations? Is the compliance rate higher? Are required forms filled out more completely and correctly? In the 1980s, when the FCC wrote the first plain-language regulation (on citizens band radios), the number of calls to the agency declined significantly. The agency moved all five staff members who had been answering public questions to other jobs. Criticism 3 Plain language is imprecise. Much of what plain language proposes has nothing to do with precision. In the event of default on the part of the buyer is no more precise than if the buyer defaults. Long, complicated sentences crammed with clauses and conditions don t make a complicated idea clearer. Proponents have demonstrated time and again that the verbose, convoluted traditional style of legal writing is unnecessary. You can see many examples on the plainlanguage.gov website.[3] While there are no simple alternatives for terms like good cause and reasonable doubt, terms of art are a tiny part of any legal document less than 3 percent in one study.[4] The rest can be written in plain language, and even technical terms can often be translated into plain language with just a few extra words. If anything, as legal-writing expert Joseph Kimble points out, plain language is more precise than old-style legalese because it lays bare all the confusion and uncertainty that legalese tends to hide.[5] Anyone who has had experience writing in plain language knows that to be true. Criticism 4 It s too hard to write regulations in plain language.

123 We hear this complaint from executive branch attorneys who have spent their careers writing in the traditional federal bureaucratic style. It is hard to write in plain language, without question. Explaining complex legal and technical provisions clearly is a challenge whether it s in the traditional cumbersome style or in plain language. But since several plain-language regulations have already been codified,[6] clearly at least some federal attorneys can cope with the challenge. What s more, while writing plainly may be hard work, it s not as hard as deciphering unclear language. Spending time at the drafting stage to ensure that regulations are clear saves more people more time and money and helps avoid litigation over the meaning of a regulation. So it s likely that the up-front costs of writing in plain language will be repaid many times over by the savings, not only to the regulated community but also to the agencies themselves. In a forthcoming book, Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law, Professor Kimble summarizes 52 studies demonstrating the extraordinary benefits including time and money saved from communicating in plain language. Everybody wins. Finally, there is a simple moral imperative: citizens have a right to be able to understand the regulations that govern their lives. And the government has a corresponding duty to write those regulations in plain language. Guest Blog by Annetta Cheek and Joe Kimble: to be published in the Michigan Bar Journal, Summer 2012 [1] [2] [3] See also Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes Journal of Legal Writing 25 ( ). [4] Joseph Kimble, Answering the Critics of Plain Language, Footnote 14 (citing articles in The Michigan Bar Journal and The Scribes Journal of Legal Writing). [5] Writing for Dollars, Writing to Please, http.plalinlangugenetwork.org/kimble/dollars.htm, page 2. [6]

124 Very rough draft of possible comments on Plain Regulations Act I. General Support The Plain Regulations Act of 2012 (H.R. 3786), currently pending in the House, would require all federal agencies to use plain language in all new and substantially revised regulations in accordance with the guidance developed by OMB under the Plain Writing Act of (The Plain Writing Act requires that agencies use plain writing defined as writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience in various documents, but specifically exempts regulations from its coverage.) OMB would write further guidelines, and would review proposed regulations for compliance with the Act; judicial review of compliance with the Act would not be available. The goals and thrust of this proposal are consistent with ABA policy and a general consensus in support of clear and accessible legal materials. In particular, the ABA has adopted the following Resolution: RESOLVED, That the American Bar Association urges agencies to use plain language in writing regulations, as a means of promoting the understanding of legal obligations, using such techniques as: Organizing them for the convenience of their readers; Using direct and easily understood language; Writing in short sentences, in the active voice; and Using helpful stylistic devices, such as question-and-answer formats, vertical lists, spacing that facilitates clarity, and tables. To avoid problems in the use of plain language techniques, agencies should: Take into account possible judicial interpretations as well as user understanding; Clearly state the obligations and rights of persons affected, as well as those of the agency; and Identify and explain all intended changes when revising regulations. Since that resolution was adopted, the plain-writing movement has continued to gather steam, and appropriately so. As many have pointed out, plain writing in legal materials enables comprehension, reduces enforcement costs for agencies and compliance costs for regulated entities, reduces inconsistency in government positions, decreases errors, and allows citizens to know what it is their government is doing. 1 In short, it advances the values of transparency, efficiency, and the rule of law. 2 1 See, e.g., Memorandum from Cass R. Sunstein, Administrator, Office of Information and Regulatory Affairs, to Heads of Executive Departments and Agencies, Final Guidance on Implementing the Plain Writing Act of 2010 (April 13, 2011); ABA, Section of Administrative Law and Regulatory Practice, Resolution and Report on Plain 1

125 Regulations are a type of government document where clarity and plain writing can be in short supply. While the efforts of recent years, including the requirements of Executive Orders 3 and spillover from the Plain Writing Act, have led to undeniable improvements, it is equally undeniably still the case that regulations are sometimes needlessly opaque. Accordingly, we endorse plain writing in regulations. II. Is a Statute Necessary? We are less certain that statutory codification of a plain writing requirement is sensible. On the one hand, we are not sure that it is necessary. As just noted, there is undeniably room for improvement. The question is whether adding a statutory requirement to the presidential directives, peer pressure, educational efforts, and consensus-based nudging that now takes place will in fact meaningfully change how agencies write regulations. Perhaps an actual statute will break the last bit of resistance. But it may be that the last bit of resistance is awfully resilient, and a statute would have no impact at all. Of course, if there is some chance that the statute would be beneficial, and there is no downside, then the statute makes sense. But there may be some downside. As explained in the report accompanying the 1999 ABA Resolution, regulatory language cannot always be plain. Substantively complex or highly technical subjects cannot always be put in plain language. Clarity and precision is sometimes achieved not by plain language but by the use of terms of art. And there is a risk that regulation-writers will sacrifice precision, achieving to plain-ness by simply not coming to grips with important details: [A]gencies should not make the language of regulations plain by the expedient of referring to bureaucratic discretion issues that more complex language could deal with. Doing so would leave an agency with no standards to cabin its discretion. This approach would disserve not only members of the regulated community, but also agency personnel charged with implementing the regulatory regime, who may look to the regulations for guidance. 4 Language (1999); William Jefferson Clinton, Plain Language in Government Writing, 63 Fed. Reg. 31,885 (June 1, 1998); Office of the Federal Register, Making Regulations Readable, 2 In the extreme, writing a regulation in incomprehensible language is the same as writing a regulation and not making it publicly available. Such a regulation is unenforceable under the Due Process Clause. General Electric Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995). Plain writing requirements would address such extremes, but the real concern is with text that may be understandable, but only to an expert who expends real effort in mastering the text. 3 In addition to the Clinton memorandum cited in note 1, see Executive Order Executive Order 13,563 (2010) 1(a) (stating that [o]ur regulatory system... must ensure that regulations are accessible, consistent, written in plain language, and easy to understand ); Executive Order 12,866 1(B)(12) (1992) (requiring that each agency draft its regulations to be simple and easy to understand ); Executive Order 12,044 (1978) 1 ( Regulations shall be as simple and clear as possible. ), 2(d)(5) (requiring that before a proposed regulation is published the head of the agency must determine that it is written in plain English and is understandable to those who must comply with it ) (revoked by Executive Order 12,291). 4 ABA Report at 5. 2

126 In short, plain language is an important value, but it is not the only or even the most important value. [Therefore?] III. Particular Reservations A few particulars of the bill give us pause. First, the plain language is defined as language that is clear, concise, wellorganized, and follows other best practices appropriate to the subject or field and intended audience. The reference to other appropriate best practices that are appropriate is perhaps plain, but it is not clear or illuminating. It tells agencies to do what is best, and admonition that should not really be necessary. In essence, this is a delegation to OMB to determine what plain language should consist of. However, because this definition exactly tracks the definition in the Plain Writing Act of 2010, we think it unlikely to change. Moreover, a separate definition would imply that plain writing in regulations is something different than plain writing in other documents, which presumably it is not. Accordingly, we would not recommend modifying the definition. [Second, the definition of agency incorporates the definition in 5 U.S.C Again, this tracks the Plain Writing Act and, again, for that reason it should perhaps should not be altered. However, it is a somewhat unexpected incorporation by reference. The definition of Executive agency in that provision is an Executive department, a Government corporation, and an independent establishment, each of which is itself a defined term. Better to use APA definition? Does this matter?] Third, Section 3(2) defines regulation as a rule, as defined by the APA, issued by an agency. This is unnecessarily broad. Under the APA, a rules include certain internal documents that are not intended to be guide, constrain, or be read by regulated entities or the general public. As to such rules, plain writing would generally be welcome, as a matter of general principle, but a congressional dictate is inappropriate. Fourth, 4(c) requires agency heads to certify... that the agency head has read the proposed or final rule and that the rulemaking documents are in plain language. This requirement, which has roots in President Carter s 1978 Executive Order (see supra note 3), apparently applies not only to the text of the regulation but to the entire rulemaking package, including at least the Federal Register preamble and arguably items such as any Regulatory Impact Analysis. This burden is simply unrealistic if read is to have anything like its ordinary meaning. At a minimum, it should be limited to the actual text of the regulation. We would suggest, however, that if such certification is to be required (and we recognize that, especially absent judicial review, some such a mechanism is helpful to induce attention and ensure accountability) officials other than the head could make the required certification. 3

127 Fifth, we are concerned about the provisions regarding review of regulations for compliance by the Office of Management and Budget. 5 Presumably the reviewing task would be undertaken by the Office of Information and Regulatory Affairs. That relatively small office is overtaxed as it is; we simply do not believe it has the staff to fulfill this function effectively. Note that at present OIRA reviews only significant regulations; the Plain Regulations Act would apply to all regulations, which would significantly increase the flow of proposed and final regulations through OMB. In addition, the process of review and return could significantly delay the promulgation of regulations. (If a statutory deadline is missed as a result of such a return, do the requirements of this legislation trump the statutory deadline or vice versa?) Finally, there is some concern that this authority could be abused. Compliance with plain writing requirements is difficult to measure and somewhat subjective (presumably this is one reason why the bill precludes any judicial review). It would be easy for OMB, consciously or unconsciously, to invoke plain writing concerns to derail a rule to which it had substantive objections. 5 Section 5(b) is ambiguous as to whether OMB has review authority, including the power to return noncomplying regulations, for both proposed and final regulations. This section applies to any regulation proposed to be issued by an agency. That could be read to refer to both proposed regulations (prior to publication) and final regulations (prior to publication), which si consistent with section 4(c) s requirement that the agency head certify compliance for both proposed and final regulations. On the other hand, the phrase proposed to be issued might also refer to a final rule, pre-publication. This ambiguity should be clarified. 4

128 112th CONGRESS 2d Session H. R To ensure clarity of regulations to improve the effectiveness of Federal regulatory programs while decreasing burdens on the regulated public. IN THE HOUSE OF REPRESENTATIVES January 18, 2012 Mr. BRALEY of Iowa introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To ensure clarity of regulations to improve the effectiveness of Federal regulatory programs while decreasing burdens on the regulated public. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be referred to as the `Plain Regulations Act of 2012'. SEC. 2. PURPOSE. The purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear regulations that are easier for the Government to implement and for the public to comply with. SEC. 3. DEFINITIONS. In this Act: (1) AGENCY- The term `agency' means an Executive agency, as that term is defined in section 105 of title 5, United States Code. (2) REGULATION- The term `regulation' means a rule, as that term is defined in section 551(4) of title 5, United States Code, that is issued by an agency. (3) PLAIN LANGUAGE- The term `plain language' means language that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.

129 SEC. 4. RESPONSIBILITIES OF FEDERAL AGENCIES. (a) Preparation for Implementation of Plain Writing Requirements for Regulations- (1) IN GENERAL- Not later than 9 months after the date of the enactment of this Act, the head of each agency shall-- (A) designate one or more senior officials within the agency to oversee the agency implementation of this Act; (B) communicate the requirements of this Act to the employees of the agency; (C) train employees of the agency to use plain language in developing and implementing regulations; (D) establish a process for overseeing the ongoing compliance of the agency with the requirements of this Act; and (E) designate one or more agency points-of-contact to receive and respond to public input on-- (i) agency implementation of this Act; and (ii) the agency reports required under section 6. (2) PERSONS DESIGNATED- Persons designated under paragraph (1)(A) or (1)(E) may be the same persons designated to carry out similar functions under the Plain Writing Act of 2010 (Public Law ; 5 U.S.C. 301 note). (b) Requirement To Use Plain Language in New and Revised Regulations- Not later than 12 months after the date of the enactment of this Act, each agency shall use plain language in accordance with the guidance issued by the Director of the Office of Management and Budget under the Plain Writing Act of 2010 (Public Law ; 5 U.S.C. 301 note) in all new and substantially revised proposed and final regulations issued by the agency. (c) Certification of Compliance- For each proposed or final rule issued by an agency, the head of the agency shall certify to the Director that the agency head has read the proposed or final rule and that the rulemaking documents are in plain language. (d) Exemption From Certain Information Collection Provisions- Agency actions to collect information from the public about a regulation are exempt from the information collection provisions of sections 3506(c) and 3507 of title 44, United States Code, if the agency head certifies that the sole reason for the information collection is to improve the clarity of the regulation under the requirements of this Act. SEC. 5. RESPONSIBILITIES OF OFFICE OF MANAGEMENT AND BUDGET. (a) Guidance- Not later than 6 months after the date of the enactment of this Act, the Director of the Office of Management and Budget should develop and issue guidance on implementing the requirements of this Act. The Director may designate a lead agency, and may use interagency working groups to assist in developing and issuing the guidance. (b) Return of Regulations- If the Director finds that, with respect to any regulation proposed to be issued by an agency, the agency did not follow the guidance issued by the Director under the Plain Writing Act of 2010 (Public Law ; 5 U.S.C. 301 note),

130 the Director shall return the regulation to the agency to be redrafted in plain language and resubmitted to the Director for approval. (c) Publication of Certifications- The Director shall publish the certifications from agency heads required under section 4(c) on the official Web site of the Office of Management and Budget. SEC. 6. REPORTS TO CONGRESS. (a) Initial Report- Not later than 9 months after the date of the enactment of this Act, the head of each agency shall publish on the plain writing section of the agency's Web site created under the Plain Writing Act of 2010 (Public Law ; 5 U.S.C. 301 note) a report that describes the agency plan for compliance with the requirements of this Act. (b) Annual Compliance Report- Not later than 18 months after the date of the enactment of this Act, and annually thereafter, the head of each agency shall publish on such plain writing section of the agency's Web site a report on agency compliance with the requirements of this Act. SEC. 7. JUDICIAL REVIEW AND ENFORCEABILITY. (a) Judicial Review- There may be no judicial review of compliance or noncompliance with any provision of this Act. (b) Enforceability- No provision of this Act may be construed to create any right or benefit, substantive or procedural, enforceable by any administrative or judicial action.

131 Diversity Liaison Report Commission and Racial and Ethnic Diversity in the Profession Pipeline Council Anna Williams Shavers I. Regularly Scheduled SOC Diversity Calls II. ABA Diversity Plan a. Available at ersity_plan_may_2011.authcheckdam.pdf b. Diversity is Goal III of the Association Goals: 1. Promote full and equal participation in the Association, our profession, and the justice system by all persons. 2. Eliminate bias in the legal profession and the Justice System. III. GOAL III REPORTS a. Goal III entities i. Commission on Disability Rights ii. Commission on Sexual Orientation and Gender Identity iii. Commission and Racial and Ethnic Diversity in the Profession iv. Commission on Women in the Profession b. Reports are available at < c. The Goal III entities will conduct an informative brown bag session in the fall to launch the Goal data collection process. IV. DIVERSE SPEAKERS' DATABASE a. The Diversity Center is working with the ABA I.S. Department and Sections/Divisions/Forums (SDF) to launch a centralized diverse speakers' database, which will complement and be compatible with existing Section specific databases. b. To ensure that the centralized database best meets the needs of SDFs, the Diversity Center will convene a small focus group to develop the categories and procedures for the database. Several entities have already assigned staff to serve on the first focus group, which will have its first session by mid April. SDFs that would like to have a representative on the focus group should contact Cie Armstead (cie.armstead@americanbar.org) <mailto:cie.armstead@americanbar.org)>. V. Nomination Period Opens for Spirit of Excellence Awards a. The ABA Commission on Racial and Ethnic Diversity in the Profession is accepting nominations for the 2013 Spirit of Excellence Awards. The awards celebrate the accomplishments of lawyers who promote a more racially and ethnically diverse legal profession. For more information and to access the nomination form contact spiritawards@americanbar.org.

132 b. Nominations are due by July s/spirit_of_excellence_awards.html c. Form is attached VI. UPCOMING DIVERSITY PROGRAMS a. American Bar Association Diversity Center Group (DCG) 2012 Joint Spring Meeting May 3 5, 2012 Nashville, TN b. Section of Science & Technology Law (Membership and Diversity Committee) Webinar "Diversity 3.0: Building a Better Pipeline" Wednesday, June 6, 2012, at Noon 1:30 pm Central < for more information c. ANNUAL MEETING DIVERSITY PROGRAMS AND EVENT The Diversity Center will launch a special web site with all diversity related Annual Meeting programming, key in diverse lawyer and local association outreach efforts. The site was previously launched during Midyear. VII. NEW DIVERSITY PUBLICATIONS The Diversity Center has three new publications that can be accessed via web at <

133 DIVERSITY PLAN I. ABA Commitment to Diversity The ABA s Goal III (one of only four Association Goals 1 ), adopted by the House of Delegates in 2008, provides: GOAL III: ELIMINATE BIAS AND ENHANCE DIVERSITY Objectives: 1. Promote full and equal participation in the Association, our profession, and the justice system by all persons. 2. Eliminate bias in the legal profession and the Justice System. Goal III builds on the earlier Goal IX, which was adopted in In the last few decades, the ABA has undertaken a wide range of diversity efforts in furtherance of Goal IX and Goal III. Those efforts have principally occurred through the work of four ABA entities: the Center for Racial and Ethnic Diversity (and its constituent entities: Commission on Racial and Ethnic Diversity in the Profession; Coalition on Racial and Ethnic Justice; and Council on Racial and Ethnic Diversity in the Educational Pipeline), the Commission on Women in the Profession, the Commission on Mental and Physical Disability Law, and the Commission on Sexual Orientation and Gender Identity. In addition to these efforts, many of the ABA s Sections, Divisions, Forums, Committees and Commissions have actively pursued diversity goals, implemented diversity plans or objectives, made diversity a priority and otherwise served the objectives of Goal III. Each year, the Goal III Commissions survey the Sections, Divisions, 1 The other ABA Goals are: Goal I: Serve Our Members; Goal II: Improve Our Profession; and Goal IV: Advance the Rule of Law. May 2011 Page 1

134 Forums and other ABA entities for information about their progress towards achieving diversity in leadership, membership, programming activities and other objectives. In April 2010, the ABA President released a major report with recommendations on Diversity in the Legal Profession: The Next Steps. The report recommended that the ABA establish an Association-wide diversity plan and urge each pertinent entity (e.g., Section, Division, or Forum) to have its own functional diversity plan that assigns responsibility for diversity directly to entity leadership. This Diversity Plan strives to fulfill that recommendation and address several other proposals in the report that are directed to bar associations. II. Purposes of the Diversity Plan This Diversity Plan is intended to lead the ABA to achievement of Goal III as it applies to the Association itself, and thereby to ensure full and equal participation in the Association by all eligible persons (including attorneys and law students) and the elimination of bias in the ABA. When implemented effectively, the Diversity Plan will foster the recruitment and retention of diverse lawyers and law students in the ABA, and their advancement through its leadership; enhance opportunities for diverse individuals to participate in ABA activities and programs, including the provision of accommodations to persons with disabilities; promote a culture of inclusion that attracts diverse members of the profession to the ABA; educate Association members and leaders about the benefits and importance of diversity; and, by building diversity within the Association, support the ABA s efforts to promote diversity in academia, the judiciary, and public and private legal workplaces. For the purposes of this Diversity Plan, the term diversity generally represents both diversity and inclusion. In the diversity management field, the distinction between the terms has been characterized as Diversity is the mix. Inclusion is making the mix work. (Andrés T. Tapia) Diversity often pertains to the numbers insuring sufficient numbers of targeted populations are represented. Inclusion addresses how well the diverse individuals are included in all aspects of the organization. Diversity is often associated with recruitment; inclusion plays a pivotal role in retention. In summary, this Diversity Plan is designed to achieve not just May 2011 Page 2

135 diversity the presence of lawyers and law students from all backgrounds but inclusion as well their full and equal participation in the Association. III. Objectives of the Diversity Plan The Diversity Plan sets forth numerous objectives and broad goals. In addition, certain implementation recommendations are set forth as specific actions the ABA is urged to undertake in the immediate future. A. Require wide dissemination of the Diversity Plan within the ABA, and public availability of the Diversity Plan, including: 1. Membership-wide dissemination of the Diversity Plan after adoption, with a cover letter or from the ABA President. 2. Continuous availability of the Diversity Plan through pertinent pages on the ABA website. 3. Distribution of the Diversity Plan, or ing a link to the Diversity Plan, to all new ABA members. 4. Reference to the Diversity Plan in member solicitation materials. 5. Ensuring accessibility of the Diversity Plan to members with visual or other disabilities. B. Promote and track diversity within the ABA s leadership, including: 1. The Association s Officers (President, President-Elect, etc.). 2. Board of Governors, including the Committees of the Board of Governors. 3. Standing Committees, Administrative Committees, Special Committees, Task Forces, Commissions, and other presidentially appointed positions. 4. House of Delegates. a. Committees of the House. b. Special emphasis on diversity among the Nominating Committee membership (see C below). May 2011 Page 3

136 5. Sections, Divisions, Forums and their components (Officers, Councils, Committee leadership, etc.). Implementation Recommendation 1: That the Association designate the Executive Director or other senior staff person with Chief Diversity Officer responsibilities, principally to include oversight of the implementation of this Diversity Plan. Each year, that person will develop and secure approval of specific annual implementation steps with a corresponding timeline, budget and assessment procedure. C. Promote and track diversity in the ABA s and its entities leadership nominations and leadership development processes. 1. Require diversity as an emphasis in all leadership nominations processes, including diversity among the nominations decision-makers. Implementation Recommendation 2: That the ABA review the composition of the House of Delegates and its Nominating Committee, including the number of positions reserved for women, minorities, lesbian, gay, bisexual and transgender individuals, and persons with disabilities, and the manner of selecting the individuals for those positions, to ensure that the purpose of this Diversity Plan is being served in the nominations process. 2. Require diversity as an emphasis in the Presidential appointments process, including diversity among the appointments committee members (such diversity to be measured, at least in part, by consideration of data that indicates the diversity of Association membership). 3. Urge entities to emphasize diversity in leadership training and development programs. 4. Build diversity-related sessions into Section Officers Conference (SOC) leadership training efforts and annual SOC meetings. May 2011 Page 4

137 D. Urge adoption by Sections, Divisions, Forums, Committees, Commissions and other pertinent ABA entities of entity-specific diversity plans that are consistent with the objectives of this Diversity Plan, or their review and appropriate modification of existing diversity plans. 1. Strongly encourage periodic review and updating of entity diversity plans. 2. Recommend designation of an officer or other entity leader with responsibility for ensuring implementation of diversity plans. 3. Advocate wide dissemination of entity diversity plans, as with the ABA Diversity Plan. 4. Urge the compiling of uniform statistics and information on diversity participation by each entity. E. Promote diversity in ABA membership. 1. Marketing and membership solicitation materials should be welcoming to diverse populations. 2. The ABA should compile and disseminate uniform statistics and other information on lawyers and law students both ABA members and non-members for each of the major diversity categories, and target the non-aba members for membership solicitations. 3. ABA entities are urged to engage in active marketing, recruitment and outreach efforts to affinity bars and other professional organizations, legal communities, and law schools to promote diversity. 4. ABA entities are urged to have formal or informal liaison relationships with the diversity-focused entities of the ABA (e.g., the Goal III entities), and appoint persons who will be active liaisons. 5. The ABA should continue its discounted joint dues campaigns with affinity and specialty bar associations and explore additional membership campaigns designed to enhance diversity. May 2011 Page 5

138 Implementation Recommendation 3: That the ABA consider creating an event, award or other form of recognition to honor on an annual basis the ABA entity that has shown outstanding leadership in diversityrelated membership initiatives and other diversity efforts. F. Promote diversity in CLE and other programming, both live and virtual. 1. Implement strategic actions to improve diversity among speakers, moderators, and attendees. 2. Ensure program content appeals to diverse communities, consistent with the sponsoring entities subject matter specialties, if any. 3. Urge ABA entities to explore partnering or co-sponsoring opportunities with affinity bars and other organizations that can contribute to diversity. 4. Ensure program venues and materials are accessible to participants with disabilities. 5. Urge ABA entities to use program locations and venues, as well as social media, to enhance opportunities for participation by diverse lawyers and law students (e.g., locations that may minimize cost barriers; venues that may increase diverse community participation, like HBCU law schools, affinity bar association locations; and social networking sites that may increase marketing efforts to diverse communities). Implementation Recommendation 4: That the ABA present at least one Presidential Showcase CLE program focused on diversity at each Annual Meeting. G. Promote diversity in ABA publications (hard copy and electronic). 1. Implement strategic actions to increase diversity in ABA members responsible for editorial policy and content of publications. 2. Ensure content of publications appeals to diverse communities, consistent with the sponsoring entities subject matter specialties, if any. May 2011 Page 6

139 3. Ensure content of publications are accessible to persons with disabilities. H. Promote diversity in ABA entities marquee events (e.g., annual awards dinners, luncheons, receptions), including: 1. Diversity of speakers. 2. Diversity of award recipients. 3. Diversity of planning and award nominations committees. I. Enhance the current tracking and reporting of progress in diversity efforts, including: 1. Continue the annual Goal III reporting process, but urge more robust participation and tracking by ABA entities; encourage greater promotion of the reporting process by ABA leadership and accountability for entities that require significant improvement in their diversity efforts. 2. Ensure widespread dissemination of the annual Goal III diversity report among ABA leadership and throughout ABA entities, including in accessible formats for persons with disabilities and through posting on website. Implementation Recommendation 5: That the ABA explore the preparation of a Diversity Impact Statement as recommended in the 2010 ABA Presidential Next Steps Report (recommendation E.2. for Bar Associations). Implementation Recommendation 6: That the ABA coordinate a centralized data collection and reporting center for diversity information, combining data from the Goal III reports and national and regional affinity bars, as recommended in the 2010 ABA Presidential Next Steps Report (recommendation E.3. for Bar Associations). May 2011 Page 7

140 J. Urge ABA entities to develop or enhance mentoring programs that target young lawyers and law students, and are designed to advance diversity within the Association. K. Promote ABA s diversity accomplishments, including the following: 1. Develop and prominently post on the ABA website information about successful diversity programs and activities of the Association and its Sections, Divisions, Forums, and other entities. 2. Invest in a regular presence in pertinent legal and diversity publications to showcase ABA diversity accomplishments. 3. Urge ABA members and staff with an expertise in diversity areas to regularly write and speak on behalf of the ABA. May 2011 Page 8

141 VI. EntIty Honors Selection for CDR s Honor Roll for SDFs that have demonstrated the ABA s commitment to lawyers with disabilities is based on four categories: (1) leadership, i.e., entities that have a significant percentage of their leadership and committees populated by lawyers with disabilities; (2) outreach/promotion, i.e., entities that actively recruit individuals with disabilities and involve members with disabilities in their programs and events; (3) accessibility, i.e., entities that ensure that their websites, meetings/events, CLEs, and publications are accessible to persons with disabilities; and (4) CLEs, i.e., entities that select faculty who have disabilities and/or cover disability-related topics. There are three levels of recognition: platinum, gold, and silver. For this year, no entity achieved platinum status. A. Gold Level Section of Business Law (Linda Rusch, Chair) The Section s mission is: To encourage diversity in the Section by fostering a welcoming environment for all lawyers and promoting full and equal participation by all lawyers, including lawyers of color, women lawyers, gay and lesbian lawyers, and lawyers with disabilities ( Diverse Lawyers ). The Section s Committee on Diversity has a subcommittee that is specifically focused on the participation of lawyers with disabilities in Section activities. This Committee has created the Business Law Diplomat Program to demonstrate its commitment to encouraging the participation of lawyers with disabilities in Section activities, and in the process, develop future Section leaders, facilitate the full participation of lawyers with disabilities in Section activities, and draw more lawyers with disabilities into active membership. The Section reimburses a Diplomat s expenses for attendance at its Spring and Annual Meetings, as well as at any one stand-alone meeting of the Committee to which the Diplomat has been appointed. Also, the Chair of the Committee to which the Diplomat has been appointed provides specific tasks and speaking assignments for the Diplomat, as well as assigns a Committee member to mentor the Diplomat to maximize the opportunity for participation and leadership growth. Currently there are three diplomats. The Section also has created the Diversity Clerkship Program, a summer program that provides business law clerkship placements, as sell as support and mentoring, to qualified diverse first- or second-year law students in order to expose them to business practices. Each year, the Section s Committee on Diversity sponsors a Diversity Networking Reception the evening before its Spring Meeting to welcome attendees who are interested in recruiting and retaining for active involvement in the Section lawyers of color; women lawyers; lawyers with disabilities; gay, lesbian, bisexual and transgender lawyers; young lawyers; and law students. For its Spring 2011 reception in Boston, Massachusetts, the Committee reached out to local groups and associations representing lawyers with disabilities; more than 100 people attended. In addition, at the Spring Meeting, the Committee on Diversity s Subcommittee, Women s Business Law Network, offered complimentary attendance to local lawyers with disabilities to its Sweet Endings Dessert Reception. Finally, a lawyer with a disability (Joan M. Durocher) sits on the editorial board for the Section s web-based Business Law Today, and Section member Margaret M. Foran serves as a liaison to CDR. Section of Labor and Employment Law (Richard T. Seymour, Chair) In April 2011, the Section s Equal Employment Opportunity (EEO) Committee held a Diversity Reception at its National Conference on EEO Law in New Orleans. It included a content-based program regarding disability rights and access. Two practicing attorneys with disabilities from the New Orleans area encouraged those in attendance to strongly consider giving attorneys with disabilities the opportunity to work at their places of employment, and discussed some of the advances in technology available for attorneys with disabilities. In addition, the Section along with CDR and the National Federation of the Blind sponsored the 2011 Jacobus tenbroek Disability Law Symposium. The Section also held three CLEs on disability law topics during its 2011 winter meetings: Dealing with the Dilemma of 14 ABA Commission on Disability Rights American Bar Association. All rights reserved. 2012

142 Disability-Related Workplace Conduct ; ADA: A New Era? ; and The FMLADA-Not the Name of a Puerto Rican Cruise Ship! (a panel on the ADA and Family Medical Leave Act). Law Student Division (Tremaine Reese, Chair) One of the Division s 21 council members identified as having a disability. Also, the Division s leadership includes a Mental Health Initiative Director. Each year in early March, the Division holds Diversity Day at law schools across the country. They are encouraged to sponsor educational programs and events that teach and foster different minority groups, including persons with disabilities. A Diversity Day Toolkit provides law schools with tips on establishing a diversity committee, choosing successful Diversity Day events, and avoiding pitfalls. The Division has selected March 27 as the official National Mental Health Day at law schools across the country, encouraging them to sponsor educational programs and events that teach and foster breaking the stigma associated with severe depression and anxiety amongst law students and lawyers. The Division has an online toolkit that provides information on how law students and law school administrators can implement mental health training and prevention. The Division is currently working on a Law Student Mental Health and Wellness webpage, due out at the end of January. In addition, the Division and its staff took steps to ensure that its website is accessible to persons with disabilities, including adding alternative text to images and key stroke navigation. Also, the Division s homepage features CDR s Goal III Report and its directory of bar information for applicants with disabilities, which provides information from state, territorial, and federal jurisdictions that grant licenses to practice law regarding accommodations and character and fitness inquiries. The Division s diversity webpage features other CDR resources. Finally, the Division s May 2011 Student Lawyer featured an article entitled Character and Fitness: How to Handle Substance Abuse or Mental Illness, which discussed how law students with substance abuse and mental health impairments handle character and fitness questions when applying for the bar. B. Silver Level General Practice, Solo and Small Firms Division (Laura V. Farber, Chair) The Division established the Diversity Fellowship Program in the 1999/2000 bar year in order to promote diversity within the Division while providing leadership development opportunities within the Division for women, attorneys of color, and those with disabilities and persons of differing sexual orientations and gender identities. Fellows are reimbursed to attend the Division s Fall and Spring Meetings, and are expected to show their commitment to the Division by attending the ABA Annual Meeting. Division Chair Laura V. Farber reached out to, and held a joint fall meeting in October 2011 with, CDR and the Commission on Sexual Orientation and Gender Identity, among others. CDR worked with the Division on a Diversity Roundtable; CDR Commissioner Mildred A. Rivera-Rau spoke about the disability diversity perspective. The Division is a sponsor of CDR s 2012 Midyear Meeting resolution urging administrators of law schools admissions test to provide proper accommodations for applicants with disabilities. Tort Trial and Insurance Practice Section (Randy J. Aliment, Chair) The Section s Standing Committee on Diversity in the Profession publishes a quarterly newsletter, Embracing Diversity. The summer 2011 issue featured CDR, its members, and its publications and products. Disability is its diversity theme for the bar year. The Section elects a Diversity Officer to oversee its membership, leadership and initiatives. The Section s Diversity Committee also had a successful program, Providing Persons with Disabilities and the Elderly with Equal Access to Justice. It was specifically designed to educate lawyers, judges, and the public about the needs of those with disabilities, the elderly and others with special needs in providing access to the courtroom, whether they be clients, witnesses, lawyers, or jurors. It also offered a new free CLE program entitled Embracing Diversity in a Jury Trial. 15 ABA Commission on Disability Rights American Bar Association. All rights reserved. 2012

143 AMERICAN BAR ASSOCIATION Call for Nominations 2013 Spirit of Excellence Awards DEADLINE: JULY 16, 2012 Ad Astra per Aspera To the Stars through Difficulty The Spirit of Excellence Awards celebrate the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession. Awards are presented to lawyers who excel in their professional settings; who personify excellence on the national, state, or local level; and who have demonstrated a commitment to racial and ethnic diversity in the legal profession.

144 Nomination Instructions Nomination materials must be received on or before July 16, Please make sure to complete the nomination form. It should be the first page of your nomination materials. NOMINEE S RESUME AND PHOTOGRAPH Please submit the nominee s resume and/or curriculum vitae as well as a narrative biography, describing his or her background and contributions to racial and ethnic diversity efforts, along with a current photo that can be reproduced should your nominee be selected as a recipient. SUPPORTING MATERIALS Please submit no more than three letters of support from individuals or organizations that speak to the questions listed below. Only the first three letters of support received by the Commission will be considered. PROCEDURAL GUIDELINES All nominees must be ABA members. Please include the nomination form with the nomination materials: the nominee s resume and/or biography, current photo, and no more than three letters of support from individuals or organizations. Additional letters will not be considered. Please be aware that nomination materials will not be returned due to the number of nominations received each year. INDIVIDUAL AWARD Please supply responses to the following on a separate sheet(s) and attach them to the nomination materials. Provide responses and specific examples, if applicable. 1. Describe how the nominee has achieved professional excellence in his or her field. 2. Describe how the nominee has served as an inspiration or a role model in overcoming hardships or barriers and achieving success and excellence in the legal profession, thus paving the way for others. 3. Describe how the nominee has influenced racially and ethnically diverse individuals to pursue and/or to succeed in legal careers. 4. Describe how the nominee has opened doors, broken down barriers or otherwise promoted the full and equal participation of racially and ethnically diverse individuals in the legal profession. 5. Describe the nominee s work with or efforts on behalf of racially and ethnically diverse lawyers from racial or ethnic groups other than the nominee s own. 6. Describe the nominee s service or work in the community. CORPORATE AWARD Please supply responses to the following on a separate sheet(s) and attach them to the nomination materials. Provide responses and specific examples, if applicable. 1. Describe the nominee s position within the corporation or law firm, including areas of responsibility and oversight. 2. Describe and specify the nominee s individual role with regard to the corporation s or law firm s efforts to advance and promote the full and equal participation of racially and ethnically diverse lawyers in the broader legal profession. 3. Describe the impact that the corporation s or law firm s diversity efforts and accomplishments have had in advancing and promoting the full and equal participation of racially and ethnically diverse lawyers in the broader legal profession. 4. Describe any other efforts made by the nominee individually to promote diversity in the profession. SUBMIT MATERIALS Electronically: spiritawards@americanbar.org Regular Mail: ABA Commission on Racial and Ethnic Diversity in the Profession SPIRIT OF EXCELLENCE AWARDS 321 N. Clark Street Chicago, IL 60654

145 AMERICAN BAR ASSOCIATION 2013 Spirit of Excellence Awards Nomination Form NOMINATION DEADLINE The American Bar Association Commission on Racial and Ethnic Diversity in the Profession is accepting nominations for the 2013 Spirit of Excellence Awards. Nomination materials must be received by the Commission on or before July 16, Complete all information below. Please print. QUESTIONS If you have any questions regarding the nomination process, please contact the Commission by at NOMINEE INFORMATION Name of nominee Title/position Firm/organization Address City/state/zip Telephone Fax NOMINATOR INFORMATION Name of nominator Title/position Firm/organization Address City/state/zip Telephone Fax CATEGORIES Please indicate one category that most closely describes the nominee s current position or activity. m Academia m Legal author/journalist m State, local or minority bar leader m Corporate/business sector m Non-profit m Other (please explain) m Government m Private practice m Judiciary m Prosecutor/public defender

146 Save The Date 2013 Spirit of Excellence Awards SATURDAY, FEBRUARY 9, 2013 DALLAS, TX 321 North Clark Street Chicago, IL Telephone: (312)