Administrative Conference of the United States: ACUS to Hold November 30 Forum on e-Rulemaking

On November 30, the Administrative Conference of the United States (ACUS) will hold a forum on "Transforming E-rulemaking to Promote Public Participation and Efficiency." Paul Verkuil, ACUS Chair, will provide an introduction to the forum, which will include a keynote address by Cass Sunstein, Administrator of OMB's Office of Information and Regulatory Affairs, and eight distinguished panelists and presenters. The forum will take place from 9:30 a.m. to 12:00 noon at the Brookings Institution, Falk Auditorium, 1775 Massachusetts Avenue, N.W., Washington, D.C. People may register via the forum webpage or by email at info@acus.gov.

Adjudication: AP Reports Growing Number of Threats to Social Security Administration ALJs

On November 14, the Associated Press reported that Social Security Administration (SSA) administrative law judges and staff "are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims." According to the article, SSA data show "[t]here were at least 80 threats to kill or harm administrative law judges or staff over the past year — an 18 percent increase over the previous reporting period."

Food and Drug: FDA Issues Proposed Rule on Graphic Health Warnings on Cigarette Packaging and Advertisements

On November 12, in a widely reported action, the Food and Drug Administration published in the Federal Register a notice of a proposed rule that would amend FDA regulations "to add a new requirement for the display of health warnings on cigarette packages and in cigarette advertisements. The proposed rule would implement a provision of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) that requires FDA to issue regulations requiring color graphics depicting the negative health consequences of smoking to accompany the nine new textual warning statements that will be required under the Tobacco Control Act. The Tobacco Control Act amends the Federal Cigarette Labeling and Advertising Act (FCLAA) to require each cigarette package and advertisement to bear one of nine new textual warning statements. This proposed rule, once finalized, would specify the color graphics that must accompany each of the nine new textual warning statements."

According to a paper published in the Bulletin of the World Health Organization, "28 countries have introduced pictorial warnings and many other countries are in the process of drafting regulations for pictorial warnings." The comment period on the proposed rule ends January 11, 2011.

International Trade: President Obama Signs Executive Order Establishing Export Enforcement Coordination Center

On November 10, President Obama signed an Executive Order establishing within the Department of Homeland Security an interagency Federal Export Enforcement Coordination Center (Center). The Executive Order stated that the Center "shall coordinate on matters relating to export enforcement among" seven executive branch departments (i.e., the Departments of Commerce, Defense, Energy, Homeland Security, Justice, State,and the Treasury), as well as the Office of the Director of National Intelligence and other executive branch departments and agencies as the President may designate.

The Executive Order also specified that the Center's functions will include "(a) serv[ing] as the primary forum within the Federal Government for executive departments and agencies to coordinate and enhance their export control enforcement efforts and identify and resolve conflicts that have not been otherwise resolved in criminal and administrative investigations and actions involving violations of U.S. export control laws; (b) serv[ing] as a conduit between Federal law enforcement agencies and the U.S. Intelligence Community for the exchange of information related to potential U.S. export control violations; (c) serv[ing] as a primary point of contact between enforcement authorities and agencies engaged in export licensing; (d) coordinat[ing] law enforcement public outreach activities related to U.S. export controls; and (e) establish[ing] Government wide statistical tracking capabilities for U.S. criminal and administrative export control enforcement activities, to be conducted by the Department of Homeland Security with information provided by and shared with all relevant departments and agencies participating in the Center." (See the August 31 Notice and Comment post that first mentioned the President's intention to create the Center.)

Securities, Commodities, and Exchanges/International Law: European Parliament Approves Hedge Funds Directive

On November 11, the European Parliament, at a plenary session, announced that it had adopted a directive to impose European Union-wide rules on registration, reporting, and initial capital requirements on marketing of alternative investment funds such as hedge funds and private equity funds. The EP, which approved the directive by a vote of 513-92 with 3 abstentions, also announced that it "successfully pushed for strict liability of depositaries, who are key players in the running of these funds, to ensure that damages can always be claimed by the investors."

Securities, Commodities, and Exchanges: SEC Proposes New Dodd-Frank Rules

On November 3, the Securities and Exchange Commission (SEC) unanimously approved two new proposed rules pursuant to provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). One proposed rule, according to the SEC release, would "help prevent fraud, manipulation, and deception in connection with security-based swaps." It would do so by ensuring "that market conduct in connection with the offer, purchase or sale of any security-based swap is subject to the same general anti-fraud provisions that apply to all securities," and by explicitly reaching "misconduct in connection with ongoing payments and deliveries under a security-based swap." Comments on this proposed rule may be filed online.

The other proposed rule, according to the SEC release, would establish "a whistleblower program to reward individuals who provide the agency with high-quality tips that lead to successful enforcement actions." Comments on this proposed rule may be filed online.

Intellectual Property/International Law: EU Competitiveness Council of Ministers to Revisit Improved EU Patent System

On November 11, the European Union (EU) Competitiveness Council of Ministers will meet in extraordinary session in Brussels to revisit the issue of an improved EU patent system. Noting that "[o]btaining a patent in Europe currently costs ten times more than in the US," the Council meeting notice indicated that the Council will be considering a draft regulation to ensure that "translation arrangements for the EU patent are cost-effective, simplified and ensure legal certainty." The European Commission has issued a descriptive agenda for the session.

Securities, Commodities, and Exchanges: CFTC Issues Proposed and Interim Final Rules for Dodd-Frank Implementation

From October 14 through November 3, the Commodity Futures Trading Commission (CFTC) published in the Federal Register a series of nine sets of proposed rules and interim final rules to implement various provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). The notices include an interim final rule for reporting pre-
enactment swap transactions (October 14); a notice of proposed rulemaking (NPR) on financial resources requirements for derivatives clearing organizations (October 14); an NPR on requirements for derivatives clearing organizations, designated contract markets, and swap execution facilities regarding the mitigation of conflicts of interest (October 18); an ANPR on antidisruptive practices authority in Dodd-Frank (November 2); an NPR on the process for review of swaps for mandatory clearing (November 2); an NPR on position reports for physical commodity swaps (November 2); an NPR requiring the CFTC to remove any reference to or reliance on credit ratings in Commission regulations, and proposing alternatives to the use of credit ratings (November 2); an NPR on new authority prohibiting market manipulation (November 3); and a proposed rule on investment of customer funds and funds held in an account for foreign futures and foreign options transactions (November 3).

Banking and Financial Services/Criminal Process: FinCEN Issues Final Rule Transferring and Reorganizing Bank Secrecy Act Regs

On October 26, the Financial Crimes Enforcement Network (FinCEN) published in the Federal Register its final notice transferring and reorganizing the Bank Secrecy Act (BSA) regulations in 31 C.F.R. to a new chapter. The notice explains that the BSA regulations in the new chapter "are generally reorganized by financial industry. Moving the BSA regulations to a new chapter and organizing the chapter by financial industry creates a user-friendly way to find regulations applicable to a particular financial industry. This new organization within the new chapter also allows for the renumbering of the BSA regulations in a manner that makes it easier to find regulatory requirements than under the numbering system currently used in the existing regulations."

Criminal Process: FinCEN Releases Identity Theft Study

On October 18, the Financial Crimes Enforcement Network (FinCEN) announced the release of a new study analyzing Suspicious Activity Reports (SARs) citing identity theft. According to FnCen, the study "shows while suspected cases of identity theft are on the rise, vigilant financial institution employees are reportedly rejecting over half of fraudulent vehicle or student loans facilitated by identity theft prior to funding." The report shows that the number of SARs characterized as identity theft increased 123 percent between 2004 and 2009 -- a substantially greater rate of increase than the rise of total SARs filed by depository institutions (89 percent during the same five years).

Antitrust Law/International Law: U.K. Announces Merger of Competition Regulators

On October 14, the United Kingdom Department for Business, Innovation and Skills announced proposals to strengthen competition regulation by merging the Competition Commission (CC) and the competition functions of the Office of Fair Trading (OFT) to form a single competition and markets authority. The OFT, the presumptive survivor of the proposed merger, issued a supportive statement by its Chief Executive, John Fingleton. A statement by Vince Cable, Secretary of State of the Department for Business, Innovation and Skills, explains the background and purpose of the proposed merger at greater length.

Intellectual Property/International Law: Canadian Federal Court Declares "One-Click" Order Method Patentable

On October 14, the Canadian Federal Court held, in Amazon.com, Inc. v. Canada (Attorney General), No. T-1476-09, that Amazon's "one-click" online ordering system was a "business method" that was patentable under section 2 of the Patent Act, R.S.C. 1985, c. P-4. In doing so, the Federal Court overruled a decision by the Canadian Patents Commissioner. Copies of the decision are available in English and French.

Criminal Process: U.S. Parole Commission Issues Proposed Rule Relating to Crack and Powder Cocaine Offenses

On October 8, the U.S. Parole Commission issued a proposed rule that would amend the Offense Behavior Severity Index in its paroling policy guidelines to equalize the ratings for crack cocaine and powder cocaine offenses. Comments may be submitted by the Regulations.gov e-Rulemaking portal, or by mail or fax, but must be received by December 1, 2010.

Administrative Law (General): Cardozo Law Festschrift for Paul Verkuil

On October 18, Cardozo Law School in New York will conduct a day-long Festschrift for Paul Verkuil, who left the Cardozo faculty to serve as Chairman of the Administrative Conference of the United States. According to the Cardozo release, distinguished speakers will include Justice Stephen Breyer, Preeta Bansal of OMB, and 15 other distinguished legal scholars and practitioners (including former ABA Administrative Law Section Chairs Sally Katzen, Ron Levin, and Peter Strauss). The Cardozo Law Review reportedly will publish the Festschrift next year.

Securities, Commodities, and Exchanges: SEC Issues NPR on Asset-Backed Securities

On October 4, the Securities and Exchange Commission (SEC) issued a notice of proposed rulemaking to require issuers of asset-backed securities (ABS), and credit rating agencies that rate ABS, to provide investors with new disclosures about representations, warranties, and enforcement mechanisms. As the SEC release about the proposed rulemaking states, section 943 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank)requires the SEC to promulgate regulations on the use of representations and warranties in the ABS market by January 14, 2011, 180 days after enactment of Dodd-Frank.

The deadline for public comments, which may be submitted via the SEC website, is November 15, 2010.

Antitrust and Trade Regulation/Environmental Law: FTC Proposes Revisions to "Green Guides"

On October 6, the Federal Trade Commission (FTC) issued proposed revisions to its so-called "Green Guides," the guidance that it gives marketers to help them avoid making misleading environmental claims. The proposed changes, according to the FTC's release, "include new guidance on marketers’ use of product certifications and seals of approval, 'renewable energy' claims, 'renewable materials' claims, and 'carbon offset' claims." The FTC is seeking public comments on the proposed changes until December 10, 2010.

The FTC's release on the proposed revisions include links to the 229-page text of the Federal Register notice, a summary of the proposal, and additional material.

International Trade/Intellectual Property: ACTA Parties Release Draft Text of ACTA

On October 6, U.S. Trade Representative Ron Kirk issued a statement in which he announced the public release of the draft text of the Anti-Counterfeiting Trade Agreement (ACTA) by the ACTA parties, after the conclusion of what the statement termed "the final round of negotiations" in Tokyo on October 2.

The statement also noted that "[t]he participants agreed in Tokyo to work expeditiously to resolve the small number of outstanding issues that require further examination in their own countries with a view to finalizing the text of the agreement as promptly as possible." While the ACTA parties included the European Union (represented by the European Commission and the EU Presidency (Belgium) and the EU Member States), members of the European Parliament previously had issued a written declaration criticizing the lack of transparency in the ACTA process as well as certain content in the text.

International Trade: USTR Releases Statement of ACTA Negotiating Partners on Recent ACTA Negotiations

On October 1, the Office of the U.S. Trade Representative (USTR) issued a statement of the Anti-Counterfeiting Trade Agreement (ACTA) negotiating partners about the recent round of ACTA negotiations in Tokyo. The statement noted, in part, that "[p]articipants in the negotiations constructively resolved nearly all substantive issues and produced a consolidated and largely finalized text of the proposed agreement, which will be submitted ad referendum to their respective authorities. The participants agreed to work expeditiously to resolve the small number of outstanding issues that require further examination in capitals, with a view to finalizing the text of the agreement as promptly as possible." The statement also reported that the participants would "publicly release the text of the agreement shortly."

Securities, Commodities, and Exchanges: CFTC Issues Proposed Rules on Derivatives

On October 1, at a public meeting, the Commodity Futures Trading Commission (CFTC) announced a first series of proposed regulations pertaining to derivatives, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. One proposed rule would establish financial resources requirements for derivatives clearing organizations (DCOs) and systemically important DCOs (SIDCOs). The CFTC also proposed to mitigate potential conflicts of interest in the operation of a DCO, designated contract market (DCM), or a swap execution facility (SEF) through (1) structural governance requirements and (2) limits on ownership of voting equity and exercise of voting power.

Administrative Conference of the United States: ACUS Appoints Senior Fellows, Senior Counsel

On October 4, the Administrative Conference of the United States (ACUS) announced the appointment of 18 Senior Fellows, including six former ACUS Chairmen and 12 other individuals with substantial prior service as ACUS government or public members. The appointments include Justice Antonin Scalia (a former ACUS Chairman) and five former Chairs of the ABA Administrative Law and Regulatory Practice Section (William H. Allen, Warren Belmar, Neil Eisner, Sally Katzen, and Justice Scalia), among other distinguished practitioners, scholars, and judges. ACUS also announced the selection of Jeffrey Lubbers as Special Counsel. Lubbers, currently Professor of Practice in Administrative Law at American University's Washington College of Law, served as ACUS's Research Director from 1982 to 1995.

Banking and Financial Services/Securities, Commodities, and Exchanges: Agency Heads Testify About Implementing Dodd-Frank

On September 30, the Senate Banking Committee held a hearing on implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act. Senior officials of the Treasury Department, the Federal Reserve Board, the FDIC, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Office of the Comptroller of the Currency testified about their respective agencies' efforts to implement Dodd-Frank.

Banking and Financial Services/Criminal Process: Treasury Department Issues Proposed Rule on Cross-Border Money Transfers

On September 30, the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury, issued a proposed rule "that would require certain banks and money transmitters to report to FinCEN transmittal orders associated with certain cross-border electronic transmittals of funds (CBETFs)." The proposed rule also would require all banks to file annually with FinCEN a list of taxpayer identification numbers of accountholders who transmitted or received a CBETF. Comments are due by December 29, 2010. FinCEN will accept comments online or by mail, but encourages commenters to do so online.

Administrative Law (General): AJR Report on Lack of Watchdog Reporting on Federal Government

Recently, the American Journalism Review published an online article by Jodi Enda decrying the fact that "most parts of the federal government--the very offices that write the rules and execute the decisions of Congress and the president--remain uncovered or undercovered by the mainstream media." The article includes a highly informative interactive chart and spreadsheet detailing news organization coverage of federal agencies.

Administrative Conference of the United States: ACUS Appoints 40 Public Members

On September 28, the Administrative Conference of the United States (ACUS) announced its intention to appoint 40 public members. The list of public members includes numerous distinguished practitioners, law professors, and deans, including four former Chairs of the ABA Administrative Law and Regulatory Practice Section (Russell Frisby, Philip Harter, Ronald Levin, and Randolph May), the current Chair-Elect of the Section (Michael Herz), and both current Section delegates to the ABA House of Delegates (Randy May and John Vittone). These 40 public members will join 50 senior federal officials and notable administrative law experts (as senior fellows) to form ACUS.

Judicial Review/Environmental Law: Ninth Circuit Dismisses Wilderness Society Challenge to ARA Regulations

On September 22, the U.S. Court of Appeals for the Ninth Circuit, in Wilderness Society v. Rey, No. 06-35565, dismissed as nonjusticiable a challenge by The Wilderness Society and other environmental groups (TWS) to revised regulations by the U.S. Forest Service under the Forest Service Decisionmaking and Appeals Reform Act (“ARA”). In 2003, according to the Court, "the Forest Service revised the regulations implementing the ARA to significantly limit the scope and availability of notice, comment,and appeals procedures." The district court had granted TWS declaratory and injunctive relief on the basis that the revised regulations were inconsistent with the ARA.

Subsequently, the U.S. Supreme Court held, in Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149 (2009), that "[t]o seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." As the Ninth Circuit noted in Wilderness Society, "[t]he Court [in Summers] reiterated that where the regulations being challenged do not require or forbid any action on the part of the respondents, standing is substantially more difficult to establish. Id. Earth Island lacked standing to challenge [the relevant regulations], because it failed to identify an “application of the invalidated regulation that threaten[ed] imminent and concrete harm to the interests of [its] members.” Id. at 1150. In this case, the Ninth Circuit declined to find that either procedural or informational injury was sufficient to confer standing on the plaintiffs.

Intellectual Property/International Law: European Parliament Calls on EC to Propose EU-Wide IPR Strategy

On September 22, the European Parliament, by a vote of 328 to 245, approved a report on intellectual property rights (IPR), calling on the European Commission (EC) "to propose a comprehensive strategy on IPR which will remove obstacles to creating a single market in the online environment and adapt the European legislative framework in the field of IPR to current trends in society as well as technical developments." Members of the European Parliament (MEP) characterized the ""enormous growth of unauthorised file sharing of copyrighted works [as] an increasing problem for the European economy in terms of job opportunities and revenues for the industry as well as for government." They also asked the EC "to think broadly about methods of facilitating industry's access to the digital market without geographical borders by addressing urgently the issue of multi-territory licences and the harmonisation of legislation on copyright," adding that a pan-European licensing system should provide consumers with "access to the widest possible choice of content and not at the expense of European local repertoire."

Constitutional Law: New Yorker Article on Justice Breyer

The September 27 issue of the New Yorker featured an article by Jeffrey Toobin on U.S. Supreme Court Justice Stephen Breyer and his work on the Court. An abstract of the article noted that "as a scholar and a judge, Breyer has been most interested in the less glamorous field of administrative law, which is now, suddenly, at the center of the Court’s agenda." New Yorker subscribers may read the full text of the article online.

Antitrust and Trade Regulation/International Law: U.K. Competition Commission and OFT Issue Joint Merger Guidelines

On September 16, the United Kingdom Competition Commission (CC) and the Office of Fair Trading (OFT) jointly issued Merger Assessment Guidelines. This document, which supersedes various prior OFT and CC guidelines, "explains the approach of the OFT when considering whether or not to refer a merger to the CC for further investigation and the approach of the CC when exploring more extensively the statutory questions posed in merger references. It highlights the differences of emphasis, as well as the commonalities, between the approaches of the OFT and the CC (‘the Authorities’)."

The new Guidelines consist of seven parts: (1) explanatory notes and an outline of the UK merger regime; (2) overarching questions that the OFT and the CC must consider in conducting reviews of mergers; (3) an explanation of what is meant by a "relevant merger situation"; (4) an explanation of the Authorities’ approach to the concept of a "substantial
lessening of competition’ (SLC) and outlines the notions of "theories of harm" and the "counterfactual"; (5) a description of the analytical approach and methodologies applied by the Authorities in considering the SLC test; (6) guidance on public interest cases; and (7) additional guidance relevant to the UK merger control regime.

Ethics: European Court of Justice Affirms Scope of Legal Professional Privilege

On September 14, the European Court of Justice held, in Akzo Nobel Chemicals v. European Commission, No. C-550/O7 P, that the legal professional privilege did not apply to e-mail communications between a corporate oficer and a corporate in-house lawyer. The decision stemmed from a 2003 investigation by Commission oficials into alleged anticompetitive practices involving two companies established in the United Kingdom, Akzo Nobel Chemicals Ltd (Akzo) and Akcros Chemicals Ltd (Akcros). As part of that investigation, Commission officials took copies of two emails between Akcros’s general manager and Akzo’s coordinator for competition law, who was a member of the Netherlands bar and, at the time, a member of Akzo’s legal department.

The European Court of Justice rejected the companies' argument that the emails came within the scope of the legal professional privilege. In its 1982 decision in AM & S Europe v Commission, [1982] ECR 1575, the Court had held that the confidentiality of written communications between lawyers and clients should be protected at Community level, but was subject to two cumulative conditions: (1) that the exchange with the lawyer must be connected to "the client’s rights of defence"; and (2) that "the exchange must emanate from 'independent lawyers', that is to say ‘lawyers who are not bound to the client by a relationship of employment’." With regard to the second condition, the Court had also held, in AM & S Europe, "that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart to that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest. The Court also held . . . that such a conception reflects the legal traditions common to the Member States and is also to be found in the legal order of the European Union, as is demonstrated by the provisions of Article 19 of the Statute of the Court of Justice."

In the present case, the Court found "that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers." Since it found, "both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer," the Court concluded that the lower court had correctly applied the second condition for the legal professional privilege set forth in AM & S Europe.

Securities/Commodities: FT Special Report on Commodities

For those interested in commodities issues, the Financial Times has put out a special report on the subject with a variety of articles and analyses.

Antitrust/International Law: Canadian Competition Bureau Plans Consultations on Revising Merger Enforcement Guidelines

On September 7, the Canadian Competition Bureau announced that "it will hold a series of roundtables to explore the merits of revising the Merger Enforcement Guidelines." Those Guidelines, which were issued in 2004, set out the framework that the Competition Bureau uses to evaluate the potential competitive effects of mergers. The announcement also stated that "[t]he purpose of the roundtables will be to assess whether the guidelines accurately reflect current merger review practices at the Bureau and the potential impact of the recent publication of the revised Horizontal Merger Guidelines by the antitrust authorities in the United States, as well as other legal and economic developments." This announcement follows closely on the heels of the recent issuance of revised merger guidelines by the U.S. Department of Justice and the Federal Trade Commission. (See the August 19 N&C post for details.)

Environment/Energy: BP Issues Internal Investigations Report on Deepwater Horizon Accident

On September 8, BP issued its internal investigations report into the accident on the Deepwater Horizon rig in the Gulf of Mexico on 20 April 20. In brief, BP stated that "[t]he investigation found that no single factor caused the Macondo well tragedy. Rather, a sequence of failures involving a number of different parties led to the explosion and fire which killed 11 people and caused widespread pollution in the Gulf of Mexico earlier this year." The BP webpage on the report includes links to the executive summary, the full text of the report, presentation slides, and even a 29-minute video about the investigation.

Communications/International Law: U.K. Ofcom Issues Consultation Paper on Net Neutrality

On June 24, Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, issued a consultation paper on traffic management and net neutrality. An Ofcom statement reported that the purpose of the consultation paper is to open up a discussion on how existing and future powers "might be used to address traffic management concerns and what stance Ofcom should take on any potential anti-competitive discrimination," and that the paper "raises questions about transparency and consumers’ awareness of the traffic management policy of the broadband service they have paid for." Comments may be submitted online, by email, or mail, but must be received by September 9.

Trade Regulation/International Law: Australia Enacts New National Consumer Protection Law

On July 13, the Australian Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 received final assent. According to the summary by the Australian Parliament, the lengthy bill (402 pages total) "amends: the Trade Practices Act 1974, Australian Securities and Investments Commission Act 2001 and Corporations Act 2001 to implement a national consumer law regime (the Australian Consumer Law) in relation to: general and specific consumer protections; misleading and deceptive conduct; unconscionable conduct; unfair practices; consumer transactions; statutory consumer guarantees; a standard consumer product safety law for consumer goods; and product-related services; the Trade Practices Act 1974 to rename it as the Competition and Consumer Act 2010; and 61 Acts to reflect the change in title of the Trade Practices Act 1974."

Veterans Benefits: VA Proposes Plain-Language Rewrite of Service-Connected and Other Disability Compensation Regs

On September 1, the Veterans Administration announced that it "proposes to reorganize and rewrite in plain language its regulations concerning service-connected and other disability compensation." The VA proposed the revisions as part of its "reorganization of all of its compensation and pension regulations in a logical, claimant-focused, and user-friendly format." The VA stated thet "[t]he intended effect of the proposed revisions is to assist claimants, beneficiaries, and VA personnel in locating and understanding these regulations."

The comment period on the proposed rule ends November 1, 2010. Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to: Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM07—Service-Connected and Other Disability Compensation.”

Securities/Commodities: SEC Announces Temporary Rule Requiring Registration of Municipal Advisors

On September 2, the Securities and Exchange Cmomission announced that it "has adopted a temporary rule requiring municipal advisors to register with the SEC by October 1." The SEC stated that this deadline "was established by the newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act." Subject to certain exemptions, Dodd-Frank defines "municipal advisors" -- who provide advice to state and local governments and other borrowers involved in the issuance of municipal securities and solicit business from a state or local government for a third party -- to include "financial advisors, guaranteed investment contract brokers, third-party marketers, placement agents, solicitors, finders, and certain swap advisors that provide municipal advisory services." Municipal advisors may register online with the SEC.

Intellectual Property: Patent and Trademark Office Issues New Obviousness Guidelines

On September 1, the U.S. Patent and Trademark Office (USPTO) published in the Federal Register an update to its examination guidelines "concerning the law of obviousness under 35 U.S.C. 103 in light of recent precedential decisions of the United States Court of Appeals for the Federal Circuit issued since the 2007 decision by the United States Supreme Court in KSR Int’l Co. v. Teleflex Inc." The USPTO invited public comment on the update, specifically noting that it "is especially interested in receiving additional suggestions in the field of obviousness that would have particular value as teaching tools." Comments may be sent to KSR_Guidance@uspto.gov.

International Trade: New WTO Report on World Merchandise Trade

On Septemebr 1, the World Trade Organization issued a release reporting that the value of world merchandise trade rose around 25 percent in the first six months of 2010, "up strongly from the same period of 2009." The release also stated that "[t]his surge in trade growth marks a continuation of the trend begun in the first quarter of the year."

Securities/Commodities: CFTC Issues New Rules on Retail Forex Trading

On August 30, the Commodity Futures Trading Commission (CFTC) announced the publication in the Federal Register of final regulations concerning off-exchange retail foreign currency transactions. According to the announcement, the rules "implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Food, Conservation, and Energy Act of 2008."

In brief, "[t]he final forex rules put in place requirements for, among other things, registration, disclosure, recordkeeping, financial reporting, minimum capital and other business conduct and operational standards. Specifically, the regulations require the registration of counterparties offering retail foreign currency contracts as either futures commission merchants (FCMs) or retail foreign exchange dealers (RFEDs), a new category of registrant. Persons who solicit orders, exercise discretionary trading authority or operate pools with respect to retail forex also will be required to register, either as introducing brokers, commodity trading advisors, commodity pool operators (as appropriate) or as associated persons of such entities. 'Otherwise regulated' entities, such as United States financial institutions and SEC-registered brokers or dealers, remain able to serve as counterparties in such transactions under the oversight of their primary regulators." The rules become effective October 18, 2010.

International Trade: President Obama Sets Out Substantial Changes in Export Control System

On August 30, the White House issued a statement reporting that on August 31, President Obama would announce "a major step forward in the Administration’s efforts to fundamentally reform the export control system and will outline the foundation of our new export control system." According to the statement, the Administration's planned changes would address four areas:
(1) Export Control Lists. "[A]gencies will apply new criteria for determining what items need to be controlled and a common set of policies for determining when an export license is required," and the existing two control lists will be split into three tiers based on the extent to which the items provide a military or intelligence advantage to the United States and the availability of those items.
(2) Licensing Policies. Once a controlled item is placed into one of the three tiers, "a corresponding licensing policy will be assigned to it to focus agency reviews on the most sensitive items."
(3) Export Enforcement. The announcement states that plans to strengthen export enforcement will include the President's signing of an Executive Order today "establishing an Export Enforcement Coordination Center that will coordinate and strengthen the U.S. Government’s enforcement efforts – and eliminate gaps and duplication – across all relevant departments and agencies."
(4) Information Technology Systems. The statement noted that "the U.S. Government is transitioning to a single information technology (IT) system to administer its export control system."
The statement added that "[t]he Administration’s goal is to begin issuing proposed revisions to the control lists and licensing policies later this year."

Trade Regulation: ABA Files D.C. Circuit Brief on "Red Flags" Rule

On August 20, the American Bar Association filed its brief in the D.C. Court of Appeals in ABA v. Federal Trade Commission, No. 10-5057. The ABA, as appellee in the case, successfully challenged at the district court level the application of the FTC's so-called "red flags rule," which the brief states "imposes substantial obligations [on various entities] to detect, combat, and report signs of identity theft," to attorneys.

The D.C. Circuit 's briefing schedule set September 7 as the deadline for amicus curiae for the ABA's brief, and September 21 as the deadline for the FTC's reply brief. Oral argument has not yet been scheduled.

Veterans Benefits: VA Secretary Shinseki Announces Changes to Regulations for Agent Orange Claims

On August 30, Veterans Administration (VA) Eric Shinseki announced on the White House Blog that the VA is issuing a new regulation creating presumptions that there is a service connection between exposure to Agent Orange and three diseases: Parkinson’s disease, hairy cell and other chronic B-cell leukemia, and ischemic heart disease. In the announcement, Secretary Shinseki stated that Congress, the VA, and the Institute of Medicine had previously validated "some 12 diseases, which, to date, have been granted presumption of service connection for those exposed to Agent Orange." The new regulation stemmed from the Secretary's October 2009 determination, based on the requirements of the Agent Orange Act of 1991 and the Institute of Medicine’s report, “Veterans and Agent Orange: Update 2008,” "that the evidence provided was sufficient to support presumptions of service connection" for these three additional diseases.

The Secretary also stated that "[a]s many as 150,000 Veterans may submit Agent Orange claims in the next 12 to 18 months," and that the VA "will review approximately 90,000 previously denied claims from Vietnam Veterans for service connection for these three new diseases."

International Trade/Export: Commerce Secretary Announces 14 Proposals to Strengthen U.S. Trade Law Enforcement

On August 26, U.S. Secretary of Commerce Gary Locke announced 14 proposed measures – especially focused on illegal import practices from non-market economies - that, according to the Secretary, "will strengthen trade enforcement and help keep U.S companies competitive." The 14 measures, summarized in the release, are intended to help strengthen the administration of U.S. antidumping and countervailing duty laws.

Dispute Resolution/Environment: Gulf Coast Claims Facility Begins Receiving Claims Applications

On August 23, the Gulf Coast Claims Facility (GCCF), the independent fund administered by Kenneth Feinberg to handle the $20 billion being placed in escrow by BP PLC to address claims arising from the Deepwater Horizon oil spill, began to receive claims applications at its 35 facilities across the Gulf Coast. The GCCF website contains details about the application process, including eligibility to participate and instructions for filing online, by mail, or in person.

Antitrust/International Law: U.K. Office of Fair Trading Issues Draft Guidelines on Antitrust Investigative Process

On August 20, the United Kingdom Office of Fair Trading (OFT) issued a proposed guide to its antitrust investigation procedures under the Competition Act 1988 as a consultation paper. The OFT webpage on the paper states that the guide "is intended to give interested parties the opportunity to provide views and comments on the proposed new guidance." The OFT will accept responses to the paper by mail or email until November 12, 2010.

International Trade: U.S. Treasury Issues Iranian Financial Sanctions Regulations

On August 16, the U.S. Department of the Treasury issued the Iranian Financial Sanctions Regulations (IFSR) to implement subsections 104(c) and 104(d) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA). According to Treasury, "CISADA requires the Secretary of the Treasury to issue regulations that prohibit, or impose strict conditions on, the opening or maintaining of a U.S. correspondent account or payable-through account for a foreign financial institution that the Secretary of the Treasury finds knowingly engages in the following activities:
"Facilitating the efforts of the Government of Iran (GOI) to acquire or develop weapons of mass destruction (WMD) or delivery systems for WMD or to provide support for terrorist organizations or acts of international terrorism;
"Facilitating the activities of a person subject to financial sanctions pursuant to United Nations Security Council Resolutions 1737, 1747, 1803, or 1929, or any other Security Council Resolution that imposes sanctions with respect to Iran;
"Engaging in money laundering, or facilitating efforts by the Central Bank of Iran or any other Iranian financial institution, to carry out either of the above; or
"Facilitating a significant transaction or transactions or providing significant financial services for Iran's Islamic Revolutionary Guard Corps (IRGC) or any of its agents or affiliates whose property or interests in property are blocked pursuant to the International Emergency Economic Powers Act (IEEPA) or a financial institution whose property or interests in property are blocked pursuant to IEEPA in connection with the GOI's proliferation of WMD or support for international terrorism."

Insurance/Securities/International Law: Recent U.K. Financial Services Authority Actions

Two sets of recent actions by the United Kingdom Financial Services Authority (FSA) may be of interest to insurance and financial services practitioners. First, on August 17, the FSA banned five individuals for failings related to insurance fraud. The FSA also imposed one of its largest fines of £150,000 for insurance fraud on one of the five individuals and £50,000 on another. Since the beginning of 2010, the FSA has banned 14 individuals for failings relating to insurance businesses, with fines totaling more than £500,000.

Second, on August 25 the FSA published a discussion paper that considers fundamental changes to the regulation of trading activities. This was one of the key recommendations of the so-called Turner Review (i.e., a review by the FSA's Chairman Lord Turner) following material trading losses incurred during the United Kingdom's financial crisis. The FSA stated that it will accept responses to the discussion paper until November 26, 2010, and will issue a "feedback statement" in the first half of 2011.

E-Rulemaking: Federal Times Article on DOT Pilot Project

An August 22 article in Federal Times reported on a pilot project that the Department of Transportation is running, in collaboration with the Cornell e-Rulemaking Institute, to increase public participation in the rulemaking process through electronic media. The project reportedly includes the creation of a website with the URL www.regulationroom.org, an online moderator to field comments from the public, and even a Facebook page.

Antitrust: Justice Department and FTC Issue Revised Horizontal Merger Guidelines

On August 19, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly announced their issuance of revised Horizontal Merger Guidelines that outline the principal analytical techniques, practices, and the enforcement policy of the DOJ and the FTC Department of Justice and the Federal Trade Commission (the “Agencies”) with respect to mergers and acquisitions involving actual or potential competitors under the federal antitrust laws. The announcement states that the revised Guidelines "mark the first major revision of the merger guidelines in 18 years," and sets out a summary of the principal changes.

Environment: EPA Proposed Rules on Greenhouse Gases

On August 12, the Environmental Protection Agency announced that it "is proposing two rules to ensure that businesses planning to build new, large facilities or make major expansions to existing ones will be able to obtain Clean Air Act permits that address their greenhouse gas (GHG) emissions. In the spring of 2010, EPA finalized the GHG Tailoring Rule, which specifies that beginning in 2011, projects that will increase GHG emissions substantially will require an air permit. Today’s rules will help ensure that these sources will be able to get those permits regardless of where they are located." The announcement also stated that "[i]n the first rule, EPA is proposing to require permitting programs in 13 states to make changes to their implementation plans to ensure that GHG emissions will be covered. All other states that implement an EPA-approved air permitting program must review their existing permitting authority and inform EPA if their programs do not address GHG emissions." The EPA will accept comment on the first proposal for updated state implementation plans for 30 days after publication in the Federal Register, and on the second proposal for the federal implementation plan for 30 days after its August 25 hearing on the plan.

Securities/Commodities: Recent SEC and CFTC Activity on Swaps

On August 13, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) jointly issued two releases pertaining to swaps. First, the SEC and CFTC announced that their staffs "will hold a public roundtable on August 20 to discuss issues related to governance and conflicts of interest in the clearing and listing of swaps and security-based swaps." The release noted that the roundtable "will assist both agencies in the rulemaking process to implement the Dodd-Frank Wall Street Reform and Consumer Protection Act." The release includes details about attendance in person and by phone.

Second, the SEC and the CFTC published a joint advance notice of proposed rulemaking (ANPR) that requests public comment to assist both agencies in further defining certain key terms and prescribing regulations regarding "mixed swaps" as required by Title VII of Dodd-Frank. The press release regarding the ANPR states that the agencies "invite public comment with respect to all aspects of the statutory definitions of these key terms," and on the regulation of "mixed swaps." The SEC has a portal for comments on the ANPR.

Homeland Security/Emergency Management: 8th Circuit Decision in Great Rivers Habitat Alliance v. FEMA

On August 12th, the U.S. Court of Appeals for the Eighth Circuit, in Great Rivers Habitat Alliance v. FEMA, No. 09-3183, affirmed a decision by the U.S. District Court for the Eastern District of Missouri that the appellants had failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) and that the Administrative Procedure Act (APA) did not apply because another statute, the National Flood Insurance Act of 1968 (NFIA), provided an adequate remedy.

As part of the National Flood Insurance Program that it administers, FEMA publishes Flood Insurance Rate Maps (FIRM). A FIRM is an official map of a community “delineat[ing] both the special hazard areas and the risk premium zones applicable to the community.” 44 C.F.R. § 59.1. FIRMs are used to assess premiums for flood insurance policies that the NFIP regulates.

The basis for the lawsuit was a FEMA determination to issue a Letter of Map Revision (LOMR), requested by the City of St. Peters, to revise a particular FIRM by removing a tract of land from the Mississippi River floodplain. Although the appellants had sent St. Peters a letter challenging the proposed LOMR, they filed suit to challenge the determination without first taking an administrative appeal of FEMA’s determination under subsection 4104(b) of the NFIA. The Eighth Circuit agreed with the district court that the NFIA provided an adequate remedy, and that the appellants’ challenge was not based upon the scientific or technical accuracy of the LOMR "and thus did not constitute an appeal within the meaning of 44 C.F.R. § 67.6." (Slip op. at 8.)

Banking and Financial Services: Federal Regulators' ANPR on Alternatives to Use of Credit Ratings in Regulatory Capital Guidelines

On August 10, the Federal Reserve Board of Governors, the FDIC, the Office of the Comptroller of the Curency, and the Office of Thrift Supervision jointly issued an Advance Notice of Proposed Rulemaking (ANPR) regarding alternatives to the use of credit ratings in the four agencies' risk-based capital rules for banking organizations. A joint release by the agencies stated that the ANPR "is issued in response to section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), enacted on July 21, 2010, which requires the agencies to review regulations that (1) require an assessment of the credit-worthiness of a security or money market instrument and (2) contain references to or requirements regarding credit ratings. In addition, the agencies are required to remove such references and requirements and substitute in their place uniform standards of credit-worthiness, where feasible." Comments will be due no later than 60 days after the ANPR is published in the Federal Register.

Trade Regulation: FTC Amendment of Telemarketing Sales Rule to Cover Debt Relief Services

On August 10, the Federal Trade Commission published amendments to its Telemarketing Sales Rule, which prohibits certain unfair or deceptive telemarketing acts or practices. The FTC's summary of the amendments states that they "define debt relief services, prohibit debt relief providers from collecting fees until after services have been provided, require specific disclosures of material information about offered debt relief services, prohibit specific misrepresentations about material aspects of debt relief services, and extend the TSR’s coverage to include inbound calls made to debt relief companies in response to general media advertisements."

Environment: August 25 Meeting of BP Deepwater Horizon Oil Spill Commission

The U.S. Department of Energy announced that the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling will hold an open meeting on August 25. The Commission, which was organized under the Federal Advisory Committee Act, will meet from 9:00 a.m. to 5:00 p.m. at the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, N.W., Washington, DC 20004.

Securities/Commodities: SEC "Comment and Notice" Process on Dodd-Frank Provisions

In a little-noticed announcement on July 27, Securities and Exchange Commission (SEC) Chair Mary L. Schapiro announced that the SEC will make it easier for the public to provide comments as the SEC "sets out to make rules required under the Dodd-Frank Wall Street Reform and Consumer Protection Act." Under the SEC's new process, "the public will be able to comment before the agency even proposes its regulatory reform rules and amendments," and the SEC "will provide greater public disclosure of meetings with SEC staff." The announcement states that the new process "goes well beyond what is legally required and will provide expanded opportunity for public comment and greater transparency and accountability," and that the SEC also expects to hold public hearings on selected Dodd-Frank topics.

Persons who want to provide pre-rulemaking comments on the SEC's Dodd-Frank regulatory initiatives can go to the SEC's special webpage to submit comments on a variety of provisions. These include orderly liquidation authority; transfer of certain powers to the Comptroller of the Currency, the FDIC, and the Federal Reserve Board of Governors; regulation of advisers to hedge funds; improvements to regulation of bank and savings associations holding companies and depository institutions; Wall Street transparency and accountability; payment, clearing, and settlement supervision; investor protection and improvements to securities regulation; and specialized disclosure provisions such as the Congo conflict minerals disclosure requirements.

Antitrust/Insurance: Senate Bill Would Grant FTC Oversight Over Insurance Issuers

On August 2, Senator Mark L. Pryor (D-AR) introduced S. 3685, the Insurance Competition and Transparency Act of 2010. In brief, the bill would authorize the Federal Trade Commission, notwithstanding the provisions of the McCarran-Ferguson Act, to use the authority described in section 6 of the Federal Trade Commission Act "to conduct studies, prepare reports, and disclose information relating to insurance, without regard to whether the subject of the study, report, or the information is for-profit or not-for-profit." The bill was referred the same day to the Senate Committee on Commerce, Science, and Transportation.

International Trade: Treasury List of Iranian Government-Owned or Controlled Businesses

On August 4, the U.S. Department of the Treasury, pursuant to the Iranian Transactions Regulations, issued a press release listing 21 entities in Iran's banking, insurance and investment, mining, and engineering industries that were determined to be owned or controlled by the Government of Iran. As guidance by Treasury's Office of Foreign Assets Control make clear, the Iranian Transactions Regulations prohibit transactions between U.S. persons and the Government of Iran, as well as facilitation by U.S. persons of such transactions.

Job Vacancies: CPSC

The Consumer Product Safety Commission has posted a vacancy for a General Attorney position, GS 11/14 (excepted service). The closing date is Monday, August 2.

Electronic Access to Information: Recent Developments

Since last week, there have been two noteworthy developments that concern federal agency practices with respect to electronic information. First, on July 22, the General Accountability Office (GAO) published testimony about challenges that federal agencies face in using Web 2.0 technologies (e.g., agencies' presence on Facebook, Twitter, and YouTube). In brief, the challenges that GAO identified included (1) determining how the Privacy Act applies to information exchanged in the use of Web 2.0 technologies, such as social networking sites; (2)determining how to appropriately limit collection and use of personal information and how and when to extend privacy protections to information collected and used by third-party providers of Web 2.0 services; (3) safeguarding personal information from security threats; (4)government identification and preservation of federal records; and (5) appropriately responding to Freedom of Information Act requests.

Second, on July 26, at a ceremony to mark the 75th anniversary of the Federal Register, the Archivist of the United States and the Director of the Federal Register unveiled Federal Register 2.0. According to a National Archives press release, Federal Register 2.0 is "a new user-friendly version of the daily online Federal Register" accessible at http://www.federalregister.gov/.

Communications: Second Circuit Invalidates FCC Indecency Policy

On July 13, the U.S. Court of Appeals for the Second Circuit held in Fox Television Stations v. FCC, that the Federal Communications Commission's indecency policy "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." (Slip op. at 4) While the Supreme Court had held, on appeal from the Second Circuit's prior decision in this case, that the FCC's policy was not arbitrary and capricious under the Administrative Procedure Act, it remanded for the Second Circuit to consider the vagueness argument.
The Court of Appeals found the FCC's standards to be "indiscernible," and noted that "even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment " (id. at 27). It also found that the FCC's policy "has chilled protected speech" (id. at 29), citing examples from various television and radio programs.
In striking down the FCC's policy, the court was careful to state that "[w]e do not suggest that the FCC could not create a constitutional policy." It held only that the FCC's current policy -- which the court stated "has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment" --"fails constitutional muster" (id. at 32).

Administrative Conference of the United States: Oversight Hearing on ACUS

Last Thursday, May 20, the House Judiciary Committee's Subcommittee on Commercial and Administrative Law held an oversight hearing on ACUS. The two panels of witnesses included Justices Breyer and Scalia, as well as two former Admin Law Section Chairs (Paul Verkuil, the new ACUS Chairman, and Sally Katzen of the Podesta Group), Jeffrey Lubbers of American University's Washington College of Law, and Curtis Copeland of the Congressional Research Service. Copies of the witnesses' prepared statements are available on the Committee's website. In addition, Thomas Susman, Director of the ABA Governmental Affairs Office, submitted for the record a letter expressing support for ACUS and attaching an August 2009 list of recommended study topics for ACUS.

Education: New York City Municipal Regulation on Sale of Home-Baked Goods

On February 25, 2010, the New York City Department of Education (DOE) issued Regulation A-812 "to provide additional flexibility for fundraising while conforming to the Department of Education’s Wellness Policy and initiatives to improve the quality and nutritional value of foods and beverages that are available for children." In brief, Regulation A-812 allows New York City public school students to sell any “approved“ items (from a DOE list) any time during the day in the chool "as long as the sale of the approved food items occurs outside of the school cafeteria." Homemade food items, however, are not "approved" items. PTAs are permitted to hold monthly fundraisers with non-approved food items during the day "as long as the sale of the non-approved food items occurs outside the cafeteria" and complies with other specified DOE Regulations.

In response, as a New Yorker article entitled "Free Betty Crocker!" recently reported, a few hundred parents and children held a protest in downtown Manhattan to protest the bake-sale ban. This protest, however, appears to be just one of a series of actions reflecting popular unrest that was first triggered by the 2009 version of Regulation A-812, which included an outright ban on bake sales. Those actions included the establishment of a Facebook page, student petitions, and resolutions by community boards and a local school council. So far, this resistance by parents and children has not crumbled.

Administrative Conference of the United States: Posted Openings

The Administrative Conference of the United States has two senior-level vacancies for which it has posted announcements on USAJobs: Administrative Officer (GS-14) and Public Affairs Specialist (Communications Director) (GS-15). Both positions are full-time career/career-conditional appointments. The closing date for both postings is Monday, May 17, 2010.

Energy: D.C. Circuit Decision in Washington Gas Light Co. v. FERC

On April 27, in Washington Gas Light Company v. FERC, No. 09-1100, the U.S. Court of Appeals for the D.C. Circuit denied a petition by Washington Gas Light Company for review of a Federal Energy Regulatory Commission (FERC) decision approving a construction project (known as “the Expansion”) that would allow two companies that receive and transmit natural gas, respectively, to import greater quantities of liquefied natural gas and distribute it in gaseous form. Although FERC had originally approved the project in 2006, the D.C. Circuit decided, in Washington Gas Light Co. v. FERC, 532 F.3d 928 (D.C. Cir. 2008), that FERC had failed to carry out its obligation, under scetions 3 and 7 of the Natural Gas Act, "of ensuring the Expansion can go forward consistent with the public interest." In that prior decision, the court issued a remand order Our remand order directed FERC to “more fully address whether the Expansion can go forward without causing unsafe leakage.”

On remand, the court explained, "FERC explained that the Expansion could not be said to cause any unsafe leakage if the amount of regasified liquefied natural gas that could be delivered post-Expansion was identical to the amount that could be delivered pre-Expansion." The court found that FERC's imposition of a post-Expansion limit that matches the pre-Expansion limit "has satisfactorily ensured that the Expansion will not result in an increased risk of unsafe natural gas leakage."

Food and Drug: New FDA Initiative on Infusion Pumps

Today, the Food and Drug Administration announced a new initiative "to address safety problems associated with external infusion pumps, which are devices that deliver fluids, including nutrients and medications, into a patient’s body in a controlled manner." The initiative will include (1) "additional premarket requirements for infusion pumps, in part through issuance today of a new draft guidance and letter to infusion pump manufacturers"; (2) a May 2010 public workshop on infusion pump design; and (3) the launch of a new Web page devoted to infusion pump safety. The Wall Street Journal reported that one of the biggest changes affecting infusion-pump manufacturers would be the FDA's conducting of plant inspections before approving new pumps.

Privacy/Information Technology: Oral Argument in City of Ontario v. Quon

Last Monday, April 19, the U.S. Supreme Court heard oral argument in City of Ontario v. Quon, No. 08-1332, a case with potentially significant effects in workplaces across the country. The critical issue is whether the Ontario Police Department violated the Fourth Amendment by searching the department-issued pager of one of its officers who was using the pager to send and receive messages for both his wife and his mistress. The New York Times has an interesting summary of the oral argument.

As the summary indicates, one of the critical elements in the analysis may prove to be whether the Department's policy on use of its pagers was sufficiently well-defined to preclude the officer's use of the pager for sexually explicit messages. While the formal policy told users they should have no expectation of privacy, it also allowed "light personal communications." In addition, as the Times noted, a police lieutenant had established an informal policy that "those who paid for messages over a monthly maximum would not have their records inspected." These divergent elements may complicate the Court's task of rendering a decision in a manner consistent with other Fourth Amendment decisions.

Intellectual Property: Draft Anti-Counterfeiting Trade Agreement

On Wednesday, April 21, the European Commission posted for the first time a draft of the Anti-Counterfeiting Trade Agreement (ACTA) for public review and comment. The draft, which the EC termed a "PUBLIC Predecisional/Deliberative Draft," is the product of a multinational process going back to 2006. Currently, Australia, Canada, the European Union and its 27 member states, Japan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, Switzerland and the United States all have participated in the negotiations and drafting of ACTA.

The Office of the U.S. Trade Representative has published a summary a summaryof ACTA's principal provisions. In brief, ACTA includes provisions for civil and criminal enforcement, as well as border measures by customs authorities, in respect of intellectual property rights, international cooperation (including information-sharing, capacity-building, and technical assistance), enforcement practices, and oversight of implementation by an ACTA Oversight Council (or Committee - the text leaves open both possibilities).

Although parties to the negotiations have been posting scheduled agendas and post-meeting summaries of discussions, civil liberties organizations such as the Electronic Frontier Foundation had criticized the overall process for a lack of transparency, particularly (in the EFF's view) in excluding "civil society and developing nations," as well as extension of the potential scope of ACTA to "Internet distribution and information technology”. In addition, a major Internet service provider (ISP) association, the European Internet Service Providers Association, has already criticized the published draft for its reported requirement that ISPs will be required to monitor Internet users' traffic to spot unlawful file-sharing of copyrighted material.

International Coverage of SEC Suit Against Goldman Sachs

While many people may have been focusing just on U.S. media coverage of the SEC's suit against Goldman Sachs, a sampling of the international coverage may be worth noting. In China, the Xinhua News Agency commented that the suit "has again sounded an alarm bell for financial regulation, which may stimulate U.S. authorities to speed up reforms of financial supervision mechanisms." Xinhua also repeated the assertion that "the SEC launched the lawsuit without any advance warning," notwithstanding the Washington Post's reporting that the SEC and Goldman had been in "secret talks" for months about the allegations of fraud and that "SEC lawyers had told Goldman in writing they were prepared to file a federal suit."

In the United Kingdom, the Independent focused on the fact that Goldman, even as it resists the SEC's charges, "earned a record $3.46bn (£2.25bn) in the first three months of the year, and was bringing in revenues at the rate of $1m every 10 minutes." The Financial Times repeated Goldman's statement that "[q]uarterly net income and revenue surged, . . . driven by a 'diversified business model' that showed few weak spots during the period." Meanwhile, several U.K. newspapers such as the Telegraph reported that the Financial Services Authority, the U.K. financial regulator, has started a formal investigation into Goldman Sachs in relation to the SEC's fraud charges.

In Australia, the Sydney Morning Herald ran the AFP article that, like the Independent, juxtaposed Goldman's record earnings with the fraud allegations. The Australian reported that Australian executives of Goldman Sachs met voluntarily with Australian Securities & Investments Commission officials to brief them about the suit and told "staff and clients that the Australian operations were not involved in the alleged investment fraud."

Transportation: EU Announcement on Passenger Rights and Icelandic Volcanic Cloud

Today, in response to the expanding Icelandic volcanic cloud that has extensively disrupted air travel, EU Vice President Siim Kallas announced that "EU passenger rights continue to apply and air travellers should speak up to claim their rights." Those rights, which were established by the EU Directive on air passenger rights (Regulation 261/2004), include (1) "the right to receive information from airlines (e.g. on your rights, on the situation as it evolves, cancellations and length of delays)"; (2) "the right to care (refreshments, meals, accommodation as appropriate)"; and (3) "the right to cho[o]se between reimbursement of fares or be re-routed to final destination." The EU release added that "[i]n an exceptional circumstance such as this, passengers are not however entitled to additional financial compensation that would be the case where delays or cancellations are the fault of the airline."

Education: Department of Education Assessment Grant Final Regs

There's an interesting blog posting by Eliza Krigman of NationalJournal.com, and responses to her posting, about the final regulations that the Department of Education promulgated last week for its $350 million assessment grant competition. Krigman notes that "[a]ccording to Education Week, the rules make clear the administration's desire to shift away from multiple-choice testing in favor of more sophisticated methods of evaluating students."

Chart: Timeline of Health Care Reform

For anyone who still has difficulty in sorting out which provisions of the new health care legislation take effect at which times, the website Visual Economics has a chart that concisely lays out the timeline for the major provisions.

D.C. Circuit Decision on "Unit of Prosecution" Doctrine in Civil Enforcement

Today, the U.S. Court of Appeals issued an interesting decision in a case involving the "unit of prosecution," a doctrine well-known in criminal enforcement but less frequently raised in civil regulatory enforcement. In National Association of Home Builders v. OSHA, No. 09-1053, three trade associations had challenged the Secretary of Labor's amendment of regulations under the Occupational Safety and Health Act "to clarify that an employer’s failure to provide respirators or workplace training constitutes not one violation of the applicable health and safety standards, but separate violations for each employee who did not receive the respirator or training." (Slip op. at 1)

The Secretary did so after a 2005 decision by the Occupational Safety and Health Review Commission (OSHRC), an independent tribunal, involving an employer's failure to provide asbestos training or respirators to 11 employees. Although the Secretary cited Ho for 11 violations of the asbestos training standard and 11 violations of the respirator standard, the OSHRC rejected the Secretary's employee-by-employee approach. In essence, it held that the unit of prosecution under the Act was the failure to meet each standard with respect to the group as a whole, which would have inviolved only two violations. The OSHRC went further, however, and openly invited the Secretary to draft standards that prescribe individual units of prosecution.

Senior Circuit Judge A. Raymond Randolph, writing for the panel, rejected the petitioners' claim that the Secretary had no statutory authority to issue the amendments. Just as in criminal law, where a legislature defines the unit of prosecution by defining the violation, the court determined that in civil enforcement under the Act, "the Secretary stands in the shoes of the legislature. . . . In giving the Secretary the authority to define what constitutes a violation, see 29 U.S.C. §§ 654(a)(2), 655(b), the Act necessarily gave the Secretary the authority to define the unit of prosecution." (Slip op. at 5-6) Although the petitioners asserted that the OSHRC alone had the responsibility to determine units of prosecution, on the theory that the assessment of penalties is the
OSHRC’s exclusive domain, the court tartly responded: "This is like saying that in a criminal case the court – not the legislature – defines the unit of prosecution because the court has exclusive authority to determine the punishment. That of course is not the law." (Slip op. at 6)

Introduction

This blog is intended to deliver content that is timely, interesting, and useful (or at least some combination thereof) on all fields of regulatory practice and administrative law and procedure. Although the primary focus will be U.S. law at all levels of government, Arbitrary and Capricious will also present items involving foreign substantive and procedural developments in regulatory law and practice whenever possible. Visitors are invited and encouraged to suggest new postings or to comment on posts. All comments will be reviewed by a moderator before posting.