Monday, August 18, 2014

FinCEN Proposes Special Measure Against FBME

by Shannon Allen

The United States Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued a notice of finding and proposed rule.  The Director of FinCEN found that FBME Bank Ltd. (“FBME”), formerly known as Federal Bank of the Middle Ease, Ltd., is a financial institution operating outside of the United States that is of primary money laundering concern. In this notice of proposed rulemaking (“NPRM”), FinCEN seeks to impose a special measure against FBME.  The special measure would proscribe covered financial institutions from opening or maintaining correspondent accounts for or on behalf of FBME.

On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act”), Public Law 107-56. Title III of the USA PATRIOT Act amends the anti-money laundering provisions of the Bank Secrecy Act (“BSA”), codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314, 5316-5332, to promote the prevention, detection, and prosecution of international money laundering and the financing of terrorism. Regulations implementing the BSA appear at 31 CFR Chapter X.

The authority of the Secretary of the Treasury (the “Secretary”) to administer the BSA and its implementing regulations has been delegated to the Director of FinCEN.  The Director of FinCEN has the authority, if reasonable grounds exist, to determine that a foreign jurisdiction, institution, class of transaction, or type of account is of “primary money laundering concern,” and can require domestic financial institutions and financial agencies to take certain “special measures” to address the primary money laundering concern. (31 U.S.C. 5318A). 

FinCEN considered the following factors in deciding which special measures to impose:
  1. Whether Similar Action Has Been Or Will Be Taken By Other Nations Against FBME.  FinCEN encourages other countries to take similar action, although none have so far.
  2. Whether Imposition Of The Measure Would Create Any Undue Burden For Financial Institutions In The United States.  Only one U.S. covered financial institution currently maintains an account for FBME, thus FinCEN does not anticipate this measure will present an undue burden.
  3. The Extent To Which The Proposed Action Would Have A Significant Adverse Systemic Impact On The International Payment, Clearance, And Settlement System.  FBME is not a major player in the international payment system, is not relied on by the international banking community for clearance or settlement services, has only $2 billion in assets, and is headquartered in Tanzania, thus FinCEN does not anticipate this measure will have a significant adverse systemic impact on the international payment, clearance, and settlement system.
  4. The Effect Of The Proposed Action On United States National Security.  Imposing this measure against FBME would make it more challenging for money launderers, transnational organized crime, and terrorists to access the U.S. financial system, thus enhancing national security.

Based on weighing the above factors and finding FBME is a financial institution operating outside of the United States of primary money laundering concern, FinCEN proposes a special measure to proscribe covered financial institutions from opening or maintaining correspondent accounts for or on behalf of FBME. 

Comments on all aspects of this NPRM are invited, and FinCEN specifically seeks comment on the following:
  • The impact of the proposed special measure upon legitimate transactions utilizing FBME involving, in particular, U.S. persons and entities; foreign persons, entities, and governments; and multilateral organizations doing legitimate business.
  • The form and scope of the notice to certain correspondent account holders that would be required under the rule;
  • The appropriate scope of the proposed requirement for a covered financial institution to take reasonable steps to identify any use of its correspondent accounts to process transactions involving FBME; and
  • The appropriate steps a covered financial institution should take once it identifies use of one of its correspondent accounts to process transactions involving FBME.
Interested parties are invited to submit comments (identified by 1506-AB27) by September 22, 2014.  Comments may be submitted by only one of the following:
  • Federal E-rulemaking Portal: http://www.regulations.gov or
  • Mail: The Financial Crimes Enforcement Network, P.O. Box 39, Vienna, VA 22183.

Monday, August 11, 2014

Meet Professor Anna Shavers, Incoming Section Chair

by Nina Hart

Anna Williams Shavers, the Cline Williams Professor of Citizenship Law at the University of Nebraska College of Law, is preparing to take the helm of the Section for the 2014-2015 bar year.  Below, she discusses her top priorities for the Section of Administrative Law and Regulatory Practice during her tenure.

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

My major priority is to assure that Section members realize the benefits of their membership.  This can only be accomplished through the various committees and their leaders.   While achieving this priority, we can retain members as well as attract new members and recognize the diversity that they can bring to the Section.

2.  Are there any ongoing projects or initiatives that you are particularly interested in developing further or publicizing to Section members?
 
Regulatory reform and international regulatory cooperation are two issues that we will focus on this year.   The activity in the Supreme Court and Congress with respect to agency regulatory practice is an area that Section members must be aware of and be provided with some opportunity to have input regarding proposed interpretations of existing law and the creation of new law.   In addition, I believe that the increasing internationalization of regulated conduct will affect many agencies.  Therefore our Section needs to keep abreast of these issues.  We have two committees that focus particularly on international issues and they will present programs at the Fall Conference and throughout the year. 

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

There are lots of opportunities for participation.  A list of our committees can be found at http://www.americanbar.org/groups/administrative_law/committees.html.  Anyone who wants to be involved can contact me at annashavers.aba@gmail.com.  Involvement with the Section can be very rewarding.  As a professor, I find that the unique opportunity to discuss administrative law issues with agency lawyers, judges, lawyers in private practice, as well as other professors enriches my understanding in ways that I could not accomplish otherwise.  While there are other organizations where these groups interact, it is our Section that provides this opportunity for anyone who is an ABA member. The Section also provides an opportunity to create great friendships.

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

Managing the information now available because of the increasing use of technology presents a challenge to administrative law practitioners.  An administrative law practice requires decision making and decision making requires having the right information.  Technology creates massive amounts of information that practitioners must learn to handle.  The Section can assist in this task by providing timely and reliable materials and programming.

5.  What do you think is most valuable about the Section with regards to how it can assist attorneys either in their daily practice or in meeting the challenges of a changing legal market?

No matter how obtuse or difficult an administrative law issue is, there is an expert in the section on that issue.  These experts not only help create the Section publications and programs, but they also attend Section events and discuss these issues.  The experience and expertise of the Section members that is shared among Section members helps meet the challenges that present themselves in an administrative law practice. 

 

Monday, August 4, 2014

Early Bird Rates! 2014 Administrative Law Conference

The Section will hold it's annual 2014 Administrative Law Conference at the Omni Shoreham Hotel in Washington, D.C., October 16-17, 2014.  The agenda will include the following sessions the Regulatory Flexibility Act: A Guide for the Perplexed, The Future of Agency Guidance Documents and Policy Statements, and TTIP Enhanced Stakeholder Input, to name a few.  Register here for the early bird rate until September 15, 2014.  Hope to see you there!

Tuesday, July 22, 2014

GSA Revises FTR’s “Domestic Partnership” Definition

by Shannon Allen

The General Services Administration (“GSA”) proposes a new rule which would amend the Federal Travel Regulation (“FTR”).  GSA’s rule proposes to amend the definition of “Domestic Partnership,” and to add terms and definitions for “Marriage” and “Spouse.”  “Domestic partnership” is to be updated to read that same-sex domestic partners: that have a documented domestic partnership, and reside in a state (or foreign country) whose laws do not recognize the validity of same-sex marriage; will still be recognized as an immediate family member under the FTR; but only if they certify that they would marry but for the failure of their state of residence to permit same-sex marriage. Those, however, who reside in states (or foreign countries) that now permit same-sex marriage, will no longer be considered domestic partners or immediate family members because of the proposed rule’s certification requirement.

Previously, the Defense of Marriage Act (“DOMA”) prevented the Federal Government from recognizing same-sex marriages for the purposes of travel and relocation entitlements.   According to Section 3 of DOMA, when the term “marriage” was used in Federal law it meant only a legal union between one man and one woman as husband and wife, and the term “spouse” referred only to a person of the opposite sex who is a husband or a wife.  In an effort to determine what authority executive agencies had to extend such benefits to same-sex domestic partners of Federal employees, President Obama signed a Presidential Memorandum on June 17, 2009 asking the heads of all other executive departments and agencies . . .to conduct a review of  department and agency benefits.  On June 2, 2010, agencies were directed by President Obama to immediately take actions . . . to extend certain benefits, including travel and relocation benefits, to same-sex domestic partners of Federal employees.  GSA complied by amending the definition of “immediate family” in the FTR to include same-sex domestic partners and their dependents.

On June 26, 2013, however, things changed when the Supreme Court of the United States (“Supreme Court”) held Section 3 of DOMA unconstitutional (United States v. Windsor, 570 U.S. 12 (2013)).  GSA is now permitted to provide travel and relocation benefits to Federal employees who are legally married to spouses of the same sex. Thus, GSA’s proposed new rule adds a definition for the terms “Marriage” and “Spouse,” and proposes to revise the definition of the term “Domestic Partnership.”  The term “marriage” is proposed to include any marriage:
  • including a marriage between individuals of the same sex,
  • that was entered into in a state (or foreign country) whose laws authorize the marriage,
  • even if the married couple is domiciled in a state (or foreign country) that does not recognize the validity of the marriage; and
  • includes common law marriage in states where such marriages are recognized,
The term “marriage,” however, will not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state (or foreign country) law that are not denominated as a marriage under that state's (or foreign country's) law.

GSA’s proposal tailors FTR benefit coverage for same-sex couples who would marry, but live in states where same-sex marriage is prohibited.  GSA reasons that same-sex couples living in states that permit them to marry have access to many . . . of the protections that married opposite-sex couples enjoy.  Federal employees living in states where they are able to marry, have less need for a separate path by which same-sex domestic partners are eligible for FTR benefits.  Thus, for Federal employees not allowed to marry under the laws of the states in which they live, the GSA believes it is appropriate to extend FTR coverage to same-sex domestic partners in the form described in this regulation.

Interested parties are invited to submit written comments by August 25, 2014, (referencing FTR case 2014-301) to the Regulatory Secretariat by any of the following methods:
  • Electronically:  Federal eRulemaking Portals: http://www.regulations.gov;
  • Fax:  202-208-1398; OR
  • Mail:  General Services Administration, Regulatory Secretariat (MVCB), 1800 F Street NW., Attn: Hada Flowers, Washington, DC 20405-0001.

Monday, July 14, 2014

Brown Bag Lunch: Use & Abuse of Agency Guidance Documents

This Wednesday, July 18, 2014, the Section Rulemaking Committee will host a brown bag lunch entitled The Use & Abuse of Agency Guidance Documents from 12:00 to 1:30 p.m. in the John Marshall Room of the ABA's Washington, DC office (1050 Connecticut Ave, NW, 5th Floor).  Confirmed panelists include Professor Richard J. Pierce, Jr., George Washington University Law School, Paul Noe, Vice President for Public Policy, American Forest & Paper Association, and Ronald J. Tenpas, Partner, Morgan Lewis.  Brian Callanan, King & Spalding, will moderate the discussion.  On the heels of the Supreme Court's recent grant of certiorari in Perez v. Mortgage Bankers Association (D.C. Cir. 2013), this program will examine the legal and policy implications of federal agencies' use of guidance documents.  This program is complimentary, but space is limited.  Please e-mail Alisha Dixon at alisha.dixon@americanbar.org to register.  Hope to see you there!


Monday, July 7, 2014

Chair Joe Whitley Discusses His Tenure as Leader of the Section

by Nina Hart

We had the opportunity to talk with Joe Whitley regarding his tenure as Chair of the Section.  Below he shares his reflections on the past year and advice on future goals for the Section in the coming years.

1. As Chair of the Section, what were your priorities or goals for the Section this year?   

I look back on my initial remarks in August of 2013 to the AdLaw Section Council and I see that there were many things that I wanted to accomplish.  First, I wanted to maintain “the excellence of the Section in the categories of publishing and programming.”  Second, I wanted to find a way to overcome the challenges the Section has confronted in growing its membership by reaching out not only to younger lawyers but also to a more diverse group of practitioners – the lawyers who might not identify themselves as AdLaw lawyers but who nevertheless deal extensively with the administrative state – to encourage them to join the Section.  Third, I thought the Section should experiment with growing its programs outside of the Washington, DC area.  These goals were a direct result of the “Strategic Plan” that retired Professor and Section Chair Bill Luneburg and others developed several years ago.  I am very pleased with the support that Vice Chair Jeff Rosen gave to the initiative of implementing the Strategic Plan. 

2. What would you consider to be your most significant achievement as Chair?

Last year, I visited Muir Woods in the San Francisco Bay area and felt very young against the old and mighty Coastal Redwoods that tower hundreds of feet above me.  It reminded me that like the growth of these magnificent trees, the Administrative Law Section is always going to be a work in progress, constantly growing and evolving; and we will always we need new trees to measure that progress.  Thanks to the support of Section Director, Anne Kiefer, we dusted off the Section’s Strategic Plan by setting up meetings with the leadership of the Section to discuss, revive and implement key parts of that plan.  I am proud to say thanks to Vice Chair Jeff Rosen, Chair Elect Anna Shavers, Last Retiring Chair Jamie Conrad, Section Director Anne Kiefer, and others that we have made measurable progress this year.  I look forward to seeing those efforts continue to grow in the years to come.

3.  What, if anything, most surprised or challenged you in your service as Chair?

First, I was surprised by the time commitment that the Chair must make to the Section and to its programs.  Everything that happens both “good” and “bad” in the Section is the Chair’s responsibility.  The buck stops here!  You have to be fully invested – “all in” – to make your Chair year and the Section successful.  It has been challenging, given my full-time practice outside of the ABA AdLaw Section, but I’m sure other Section Chairs would join me in saying that it was worth every minute of the time spent as a Section Leader.  To be able to see something grow under your leadership is very rewarding.

Second, as I look back on the year, the brevity of the Chair’s year is stunning.  At the beginning, a year seemed like a long journey and that I would have time to accomplish the many goals I set out to achieve with the Section.  However, looking back now, the year seems to have gone by all too quickly.  The challenge was time – time to get everything done.  Unfortunately, you never have that luxury as Chair.  You always have a full inbox that you regrettably pass along to the incoming Chair in the hopes that he or she will be able to accomplish in the new year some of the tasks left undone.

4.  Are there any other long-term proposals that you hope the Section will be able undertake or implement in the coming years?

Marketing the Section to grow the Section is a long-term objective.  We must become more youthful and diverse as a Section and at the same time hold on to our more senior and experienced administrative law practitioners.

Regional growth and planning for the Section is something that I initiated as Chair with a CLE program in the Atlanta market.  I believe such programing should continue and it is my hope that my successors will turn the Spring Meeting into more than a CLE opportunity for the Section.

Publishing is another long-term project.  The Section needs to continuously revisit the needs of our members and others for the quality of AdLaw publications under the leadership of Professor Bill Jordan and his successors.

Another long-term proposal is national programming and programs.  I think we should constantly look at how our programs can better reach the far corners of the United States to meet the needs of all of our Section members, as well as others outside of the Section to help draw in those who would normally not give our Section a second glance.  I believe quality programs, webinars, brown bag luncheons, and other events strategically held throughout the United States would be a good opportunity to market the Section and show non-ABA practitioners of administrative law that we are the Section where “everybody does it.”

5.  What advice might you give to lawyers or law students interested in being more involved with the Section?  Do you have any suggestions for how current Section members could encourage more attorneys and law students to become involved with the Section?

As I mentioned at the beginning of my Chair year, the AdLaw Section’s motto, “Administrative Law – Everybody Does It!” is crystal clear.  I would encourage young lawyers and law students to sign up with the Section today.  We have continued to keep the cost to a minimum compared to other Sections within the American Bar Association.  The AdLaw Section is relevant to all lawyers and law students in a number of ways.  Again, for me, regulatory law was central to my time as the first General Counsel at the Department of Homeland Security (DHS).  The startup of the Department required my involvement in the regulatory process.  After my tenure at DHS, the AdLaw section was the perfect home for a seminar I helped to develop for those practicing in the area of homeland security law and policy.  For the last eight years, the AdLaw Section has been home to the Homeland Security Law Institute.  Our 9th annual conference will be held at the Washington Convention Center on August 21-22, 2014.   Registration is very reasonable for this extraordinary two-day conference.  Experts from the private sector, DHS, Department of Defense (DOD), Department of Justice (DOJ), and the White House will speak on today’s hot topics and disciplines in the area of homeland security law.  We provide law students complimentary registration for the Institute, as we do at other AdLaw Section programs and events throughout the year, so we encourage them to register and attend.  Group discounts are available as well.  We look forward to another stellar conference this year.

6.  What do you think is most valuable about the Section with regards to how it can assist attorneys either in their daily practice or in meeting the challenges of a changing legal market?

The Section’s intangibles are the camaraderie and fellowship that come with involvement in the programming, publishing, and committees in the Section.  It is hard to measure the value of this piece of the AdLaw equation.  Although it requires some effort to become involved in the Section’s activities, it is worth it for younger and senior lawyers alike.  Quite simply, if you invest your time in the Section and become an active and participating member – and not just sit on the sidelines – you will become a better lawyer for being a part of the Section; and the Section will become stronger and more valuable because you have made that investment.

The AdLaw Section has begun to implement and utilize the cutting-edge technology that today’s legal market demands.  The Section is providing new opportunities to participate in and access programs through webinars and teleconferencing, making registration more economical and conferences easier to attend from the comfort of your own office.  Program materials and new publications are being made available via the web.

Monday, June 30, 2014

Register for 9th Annual Homeland Security Law Institute Today



Registration is now open for the Section of Administrative Law and Regulatory Practice's 9th Annual Homeland Security Law Institute on August 21 & 22, 2014 at the Walter E. Washington Convention Center in Washington, DC.  This signature program is tailored specifically for those who practice Homeland Security law.  Topics this year include What to Expect from the Department in 2014, Homeland Security Legislative & Regulatory Outlook, Striking the Balance: Privacy & Security, and many more.  Visit the Institute webpage for more information!