Monday, November 22, 2010

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

Monday, November 15, 2010

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."

Sunday, November 14, 2010

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."

Wednesday, November 10, 2010

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).