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.