ADMINISTRATIVE LAW AND REGULATORY PRACTICE INSTITUTE: CRITICAL ISSUES IN REGULATION

Transcription

1 9 th Annual ADMINISTRATIVE LAW AND REGULATORY PRACTICE INSTITUTE: CRITICAL ISSUES IN REGULATION APRIL 3-4, 2013 CAPITAL HILTON WASHINGTON, DC Platinum Sponsors The Center for the Study of Rulemaking American University Program Chair: Anna W. Shavers Section Chair: James W. Conrad, Jr. 9 Hours of Professional Practice CLE Credit Requested

2 9th Annual Administrative Law Institute Critical Issues in Regulation Wednesday April 3, 2013 Rulemaking 101 Congressional Ballroom, Capital Hilton 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 Thursday April 4, 2013 The Institute Presidential Ballroom, Capital Hilton 7:30 a.m. 9:00 a.m. Registration 7:30 a.m. 8:30 a.m. Young Lawyers Division Networking Breakfast 9:00 a.m. 9:15 a.m. Welcoming Remarks 9:15 a.m. 10:45 a.m. Proposals to Extend OIRA Review to Independent Agencies, CLE 10:45 a.m. 11:00 a.m. Networking Break 11:00 a.m. 12:30 p.m. Hot Topics in Regulation: Judicial Developments, Executive Branch Development and Recess Appointments, CLE 12:30 p.m. 2:00 p.m. Lunch in Congressional Room with presentation (NON-CLE) 2:00 p.m. 3:30 p.m. Public-Private Governance: Third-Party Compliance Programs, CLE 3:30 p.m. 3:45 p.m. Networking Break 3:45 p.m. 5:15 p.m. What Technology Can Do for Rulemaking, CLE 5:15 p.m. Concluding Remarks

3 PROGRAM FACULTY Anna W. Shavers, Vice Chair of the ABA Section of Administrative Law, Cline Williams Professor of Citizenship Law, University of Nebraska, Lincoln, NE Michael Fitzpatrick, Senior Manager and Senior Counsel for Government and Regulatory Affairs General Electric Washington DC Brian Callanan, Chief Counsel, Senator Rob Portman. U.S. Senate, Washington DC Marcia Cash, Management Analyst, U.S. Fish and Wildlife Service, Federal Docket Management System Administrator, Arlington, VA Gordon Gillerman, Chief, Standards Services, National Institute of Standards and Technology, Gaithersburg, MD Gretchen Jacobs, Research Director, Administrative Conference of the U.S., Washington, DC James W. Conrad, Jr., Chair, ABA Section of Administrative Law, Principal, Conrad Law & Policy Counsel, Washington, DC Charles J. Cooper, Chairman, Cooper & Kirk PLLC, Washington, DC William S. Jordan, III, Associate Dean and C. Blake McDowell, Jr. Professor of Law, The University of Akron School of Law, Akron, OH Joan Dailey, Senior Attorney, Office of the General Counsel, U.S. Department of Health and Human Services, Washington, DC Andrew Emery, Principal, The Regulatory Group Inc., Arlington, VA William Eskridge, Jr., Professor of Law, Yale University, New Haven CT Brett Jortland, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, Washington, DC Christine N. Kohl, Senior Counsel, Civil Appellate Staff, U.S. Department of Justice, Washington, DC Cynthia R. Farina, McRoberts Professor of Research in the Administration of the Law; CeRI Principal Researcher, Cornell Law School, Ithaca, NY Bruce Kraus, Partner, Kelley Drye & Warren LLP, New York NY

4 PROGRAM FACULTY Renée M. Landers, Professor, Suffolk University Law School, Boston, MA Erik Olson, Director of Food Programs, The Pew Charitable Trusts, Washington, DC Whitney Patross, Attorney, Consumer Financial Protection Bureau, Washington, DC Jeff Lubbers, Professor of Practice in Administrative Law, American University Washington College of Law, Washington, DC Connor Raso, Attorney-Advisor, Consumer Financial Protection Bureau, Washington DC Lesley K. McAllister, Stanley Legro Professor in Environmental Law, University of San Diego School of Law, San Diego, CA Eugene Scalia, Partner, Gibson, Dunn & Crutcher, Washington DC Christina E. McDonald, Associate General Counsel for Regulatory Affairs, U.S. Department of Homeland Security, Washington, DC Eamon Monahan, Program Manager, Environmental Protection Agency ENERGY STAR Program, Washington, DC Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, The Ohio State University, Columbus, OH Stuart W. Shulman, Assistant Professor, Department of Political Science, University of Massachusetts Amherst, Amherst, MA Mary J. Newhart, Executive Director, CeRI (Cornell erulemaking Initiative), Cornell Law School, Ithaca, NY Richard G. Stoll, Partner, Foley & Lardner LLP, Washington, DC John Wagner, Senior Attorney, American Petroleum Institute, Washington DC

5 PROGRAM AGENDA Wednesday April 3, 2013 Rulemaking 101, Congressional Ballroom 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 Inside Government : Joan Dailey, Andrew Emery Outside Government : James W. Conrad, Jr. This panel will provide an introductory/refresher course on the procedural steps, legal requirements, and practical constraints applicable to issuing rules. The course will be co-taught by a team of lawyers with government and private practice experience, each bringing out considerations most relevant from their particular perspectives. 3:30 p.m. 5:00 p.m. Judicial Review of Rules Inside Government : Christine Kohl Outside Government : Richard G. Stoll, John Wagner This panel will provide an introductory/refresher course on judicial review of rulemaking. The panel will present government and private practice perspectives on procedural and strategic considerations, legal standards and practical constraints applicable to challenging (or defending) regulations in court. NEW!!! A Guide to Federal Agency Rulemaking, 5th Edition Given the extensive use of rulemaking in federal agencies, it is important that agency rulemakers have available as clear guidance as possible. As procedures governing the rulemaking process have proliferated since the Administrative Procedure Act was enacted, the potential procedural pitfalls have multiplied. This fifth edition continues the tradition, and brings the Guide up to date with respect to recent cases and changes introduced during the second term of the Bush II Administration, and the first three years of the Obama Administration. SPECIAL RATE FOR MEETING ATTENDEES ONLY: $ SECTION MEMBER ATTENDEE RATE: $95.96 SPECIAL PRICE VALID FOR ADVANCE/ON-SITE PURCHASE ONLY

6 Thursday April 4, 2013 The Institute, Presidential Ballroom 7:30 a.m. 8:30 a.m. Young Lawyers Networking Breakfast, Congressional Ballroom 8:00 a.m. 9:00 a.m. Registration 9:00 a.m. 9:15 a.m. Welcoming Remarks We invite the Young Lawyer Members of the Administrative Law Section to a Networking Breakfast with YLD Liaison Allison Bonnenburg. This event is complimentary for Section Members James W. Conrad, Jr., Anna W. Shavers 9:15 a.m. 10:45 a.m. Proposals to Extend OIRA Review to Independent Agencies 10:45 a.m. 11:00 a.m. Networking Break Connor Raso (Moderator) Brian Callanan, William Eskridge, Jr., Michael Fitzpatrick, Bruce Kraus, Eugene Scalia This panel will discuss extending OIRA review of rulemaking to independent agencies. Panelists will discuss the merits of recently proposed legislation to explicitly authorize such OIRA review in the context of the broader debate regarding the relationship between the president and independent regulatory agencies, and related topics 11:00 a.m. 12:30 p.m. Hot Topics in Regulation: Judicial Developments, Executive Branch Developments and Recess Appointments Jeffrey S. Lubbers (Moderator) Charles J. Cooper, William S. Jordan, III, Renée M. Landers, Peter M. Shane This panel will discuss the significant court cases in rulemaking and regulatory practice over the past year. Special attention will be focused on the recent opinion by the D.C. Circuit, Canning v. NLRB, in which President Obama s recess appointments to the NLRB were declared invalid. The constitutionality of the NLRB appointments and other similar appointments such as the CFPB Director will be discussed. In addition, the consequences of a court s declaration that an agency is improperly constituted such as in the Canning v NLRB and New Process Steel cases will be examined 12:30 p.m. 2:00 p.m. Lunch, Congressional Ballroom Presenter to be confirmed

7 2:00 p.m. 3:30 p.m. Public-Private Governance: Federal Agency Third-Party Regulatory Compliance Programs Gretchen Jacobs (Moderator) Eamon Monahan, Lesley K. McAllister, Erik Olson, Gordon Gillerman Agencies in diverse areas of regulation are using or contemplating the use of private third parties to carry out inspections and verify that regulated entities are in conformity with standards and other requirements. Moreover, Congress appears enthusiastic about third-party verification, having mandated or authorized its use in recent legislation. For example, see Title III of the Food Safety Modernization Act of 2011 (Pub. L ). Some agencies have used private inspectors to control quality and to a limited degree enforce safety or economic regulations. Third parties also ensure that products labeled as organic, energy-efficient, and water-efficient meet applicable federal standards. In these third-party programs, entities generally contract with and pay third parties to carry out product testing, facility inspections, and other compliance assessment activities in the place of regulatory agencies. Regulatory agencies then adopt new public-private roles in coordinating and overseeing these third-parties. Recommendation of the Administrative Conference of the United States addresses issues that arise when agencies develop programs in which third parties assess whether regulated entities are in compliance with regulatory standards and other requirements. The recommendation sets forth guidance for federal agencies that are establishing, or considering establishing, such programs. 3:30 p.m. 3:45 p.m. Networking Break 3:45 p.m. 5:15 p.m. What Technology Can Do For Rulemaking Mary J. Newhart (Moderator) Marcia Cash, Cynthia R. Farina, Brett Jortland, Christina E. McDonald, Stuart W. Shulman, Whitney Patross New information and communication technologies have brought new opportunities but also new challenges for the practice of rulemaking. This panel focuses on three successful applications of technology at various points of the rulemaking process. The structure is designed to give attendees a good introduction to how these technologies work as well as guidance on when and how they are most effectively deployed. (1) Panelists will describe their rulemaking management systems; they will discuss similarities and differences between DOT s longstanding system and DHS s new one. (2) DiscoverText, software that sorts and identifies unique text in mass comments; the researcher involved in its creation and an official from US Fish & Wildlife Service will describe its successful use in several USFWS rulemakings. (3) Use of Web 2.0 techniques to get broader, better public comments; a researcher with the CeRI Regulation Room project and an official from the Consumer Finance Protection Bureau, who had a proposed rule recently offered on Regulation Room, will discuss how to pick the right rules and use the right tools for successful e-participation.

8 General Information Deadlines: Meeting Registration MARCH 29, 2013, Special Needs Request: MARCH 15, 2013 Advance Registration: Visit the AL 2013 Institute website to register or complete the registration form included in this brochure. The Advance Registration Fee is the lowest available rate, and includes attendance at April 3 and 4 events including lunch on April 4. 9 hours of professional practice CLE (applied for). CLE course materials and refreshment breaks. Registration confirmations will be sent by within 10 business days. On-Site Registration: On-site registrations will be accepted if space is available. Call Alisha Dixon at 202/ or alisha.dixon@americanbar.org, 72 hours prior to the program to confirm that space is available. On-site registrants must pay the program fee by credit card or check made payable to the American Bar Association. A $25 fee will be charged to individuals registering on-site. Cancellation Policy: No registration fee refunds will be granted for cancellations received after March 15, All cancellations must be in writing to anne.kiefer@americanbar.org. Registrants who are unable to attend may send a substitute please notify us by March 29 if a substitute will participate. ABA Member Travel Discounts: Please note that there is no room block at the Capital Hilton for this event. Discounted airfares are available from ABA Orbitz For Business including ABA negotiated discounts on American and United Airlines. Visit for discount information. You may also call Orbitz toll free at for assistance with reservations. Discounts can also be obtained directly from American and United Airlines: AMERICAN AIRLINES Call and use Code # A8913TT (not available at AA.com). UNITED AIRLINES You may book online at and enter your Offer Code. For meetings (date of travel) in 2013 use ZP in the offer code box when searching flights. CLE Information: ABA programs ordinarily receive CLE credit in AK, AL, AR, AZ, CA, CO, DE, FL, GA, GU, HI, IA, ID, IL, IN, KS, KY, LA, ME, MN, MS, MO, MT, NH, NM, NV, NY, NC, ND, OH, OK, OR, PA, RI, SC, TN, TX, UT, VT, VA, VI, WA, WI, WV, and WY. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for TBD CLE credit hours in 60-minute-hour states, and TBD credit hours in 50-minutehour states. This transitional program is approved for both newly admitted and experienced attorneys in NY. For more information about CLE accreditation in your state, visit or check with your state agency for confirmation of this program s approval. Registration fees must be paid in full before registrants can receive credit. You may contact Alisha Dixon at 202/ two weeks prior to the conference for confirmation of the number of CLE credit hours requested by the ABA. Special Needs (Persons with Disabilities, Dietary Requirements, Etc.): Services for persons with disabilities are available. If special arrangements are required for an individual to attend this program, including special dietary requirements, please contact Anne Kiefer by March 15, 2013 at 202/ or anne.kiefer@americanbar.org. Scholarships: A limited number of scholarships are available. Please contact Anne Kiefer for more information at or anne.kiefer@americanbar.org. Program Brochure: administrative_lawandregulatorypracticeinstitute/april_3-4_brochure.authcheckdam.pdf Meeting Portal:

9 REGISTRATION FORM 9 th Annual Administrative Law and Regulatory Practice Institute Critical Issues in Regulation Washington, DC Capital Hilton April 3 4, 2013 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 March 29, After that date you may register on-site. THIS PROGRAM INCLUDES LUNCH APRIL 4. CLE: Rulemaking 101: 3 hours of Professional Practice CLE. Institute: 6 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 Anne Kiefer at or anne.kiefer@americanbar.org to request accommodation for any special needs no later than March 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 March 15, No refunds are possible after that date substitutions only. anne.kiefer@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 April 3-4, 2013 Full Program, 9 Hours Professional Practice CLE, Lunch April 4 ABA Administrative Law Section Member $229 Government Employee $229 Non-Section Member $299 Law Student $25 Special Price Valid in Advance/On-Site only: Guide to Federal Agency Rulemaking, 5th $ Edition. ADD TAX: DC residents add 5.75%, IL residents add 9.25% Individual Day Rate April 3 Rulemaking 101 ONLY (3 Hours Professional Practice CLE) $199 April 4 ONLY (6 Hours Professional Practice CLE) $199 Payment by check or credit card is required at time of registration. Make checks payable to the American Bar Association. Return this form by anne.kiefer@americanbar.org OR MAIL: Anne Kiefer, ABA Section of Administrative Law, th Street NW, Washington, DC METHOD OF PAYMENT Total Fees Paid 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).