POSTPONED: Administrative Law Section Winter Mix and Mingle

The American Bar Association, Section of Administrative Law and Regulatory Practice Winter Membership Mix and Mingle is postponed.  We'll let you know as soon as the event is rescheduled!

PTO Seeks Comment On Codification of Current Trademark Practices

by Shannon Allen

The United States Patent and Trademark Office (“PTO”) seeks input on codifying current practices.  This notice of proposed rulemaking proposes changes to the “Trademark Rules of Practice” and the “ Rules of Practice in Filings Pursuant to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks.”  

In general, the proposed amendments are “intended to codify existing practice.”  Specifically, the PTO’s goal is to“benefit the public” by offering more “clarity” regarding mandates relating to the following:

• Representation by Attorneys or Other Authorized Persons before the PTO
• Applications for Registration
• Examination of Application and Action by Applicants Procedures
• Amendment of Applications
• Publication and Post Publication Procedures
• Appeals
• Petitions
• Post Registration Practice
• General Information and Correspondence in Trademark Cases
• Classification of Goods and Services
• Procedures Under The Madrid Protocol

The PTO solicits input in order to:

• evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• enhance the quality, utility, and clarity of the information to be collected; and
• minimize the burden of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g. permitting electronic submission of responses).

According to the Administrative Procedure Act, prior notice and opportunity for public comment are not required for interpretive rules or rulemaking that involves rules of agency practice and procedure.   This notice of proposed rulemaking proposes changes that simply clarify agency practices.  Thus, these amendments do not require notice and comment. The PTO, however, “has chosen to seek public comment before implementing the rule.”

Interested parties are invited to submit comments by April 23, 2014.  The PTO prefers comments be submitted via electronic mail message to: TMFRNotices@uspto.gov.  They can also be sent:

• by mail to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451, attention Cynthia C. Lynch;
• by hand delivery to: the Trademark Assistance Center, Concourse Level, James Madison Building-East Wing, 600 Dulany Street, Alexandria, Virginia, attention Cynthia C. Lynch; OR
• by electronic message via the Federal eRulemaking Portal at: http://www.regulations.gov.

FCC’s Proposes Changes to Rules Regarding In-Flight Calls

by Elisabeth Ulmer

The Federal Communications Commission ("FCC") is seeking public comment on allowing in-flight mobile use, including calls, texting, and data services. At the open commission meeting on December 12, 2013, the Wireless Telecommunications Bureau introduced the notice of proposed rulemaking ("NPRM") to revise its outdated rules and give airlines the option of offering mobile wireless services via onboard airborne access systems.

 

The FCC prohibits in-flight mobile use because of concerns that it would interfere with wireless networks on the ground. However, there are now onboard airborne access systems available that would prevent such disruption and allow for the use of mobile devices during flight. Some airlines in Europe and Australia already permit the use of mobile communications services in flight.

 

The FCC proposes continuing to prohibit in-flight cellular use and extending the ban to all frequency bands. The NPRM would allow airlines to "voluntarily opt into offering in-flight mobile services" by taking two affirmative steps:

1. "Apply[ing] to the FCC for a modification of their existing aircraft station authorization under Part 87 of the Commission’s rules; and
2. Install[ing] and operat[ing] an airborne access system to manage in-flight use of mobile wireless devices."

 

The FCC based its reasoning for allowing in-flight mobile services on its duty to regulate technology and update outdated rules. Now that the technology is available to ensure non-disruptive in-flight mobile use, the FCC rule banning it for its interference is obsolete. According to FCC Chairman Tom Wheeler, "[m]odern technologies can deliver mobile services in the air safely and reliably, and the time is right to review our outdated and restrictive rules." 

 

In its Q&A about the proposed rule change, the FCC further emphasizes that the final decision about in-flight mobile use rests with each airline: "[u]ltimately, if the FCC adopts new rules, it will be the airlines’ decision, in consultation with their customers whether to permit the use of data, text and/or voice services while airborne."

 

The possibility of in-flight calls has generated negative attention among airlines and consumers. Delta Air Lines and Jet Blue have both decided to prohibit in-flight calls because of unenthusiastic customer feedback. For instance, a 2012 Delta Air Lines customer survey revealed, "64% of passengers said the ability to make phone calls inflight would have a negative impact on their onboard experience." United Airlines is also leaning toward not allowing in-flight calls.

 

While the FCC views its role as solely "to examine the technical feasibility of the use of mobile devices in flight," Anthony Foxx, the Secretary of the Department of Transportation ("DOT"), has said that the duty to "determine if allowing these calls is fair to consumers" belongs to the DOT. As a result, the DOT has announced its intent to initiate proceedings to ban in-flight calls.

 

USDA Seeks Comment on Expanded Nondiscrimination Policy

by Shannon Allen

The United States Department of Agriculture (“USDA”) seeks comment on proposed amendments to regulations on “nondiscrimination” in “programs” or “activities” conducted by the USDA.  This notice of proposed rulemaking aims to “clarify the roles and responsibilities” of the USDA’s Office of the Assistant Secretary for Civil Rights (“OASCR”) and USDA agencies in “enforcing nondiscrimination” in order to strengthen USDA’s “civil rights compliance.”  Ultimately, the Secretary would like to hold the USDA and its employees “accountable for a nondiscrimination standard equal to or greater than the standard recipients of Federal financial assistance must follow.”

In order to promote the “early resolution of customer complaints,” the amendment requires OASCR to offer Alternative Dispute Resolution (“ADR”) services, where appropriate.  In addition, the proposed amendments provide that each USDA agency shall, “for civil rights compliance purposes, collect, maintain, and annually compile data” regarding the “race, ethnicity, and gender of all conducted program applicants and participants by county and State.” Lastly, the USDA proposes to change regulations by expanding “protection from discrimination in programs or activities” performed by the USDA, by including “political beliefs and gender identity.”  The purpose of this part of the amendment is to make “explicit protections against discrimination based on USDA program customers’ political beliefs or gender identity.”

The USDA believes these amendments will “afford several benefits” including, but not limited to:

• compliance with the requirements of the 2008 Farm Bill through standardized collection of data; 
• strengthening of the USDA’s agency compliance monitoring with regard to civil rights requirements; 
• enhancing the USDA’s ability to resolve complaints through the expansion of ADR; 
• a small net annual savings to the USDA; 
• improved protection of USDA customers’ rights by ensuring that USDA conducted programs are delivered fairly and consistently; 
• providing a cost-effective opportunity for early complaint resolution; 
• enhancing customer experience with the USDA; 
• aligning regulations with USDA’s civil rights goals; 
• prohibiting discrimination consistent with the Food Stamp Act of 1964, the Civil Service Reform Act of 1978, and the Secretary of Agriculture’s civil rights policy statements by adding the protection of political beliefs; 
• recognizing USDA program customers’ gender expression, including how USDA program customers act, dress, perceive themselves, or otherwise express their gender; and 
• ensuring equal treatment of transgender and other gender nonconforming individuals in USDA’s conducted programs and activities.

The USDA invites interested parties to submit comments (referencing Docket No. 0503-AA52) before January 27, 2014 by:

• Submitting general comments on the proposed amendments to: Anna G. Stroman, Chief, Policy Division, at Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington DC, 20250; or 
• Submitting comments on the information collection or recordkeeping requirements to:  the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), attention: Desk Officer for Agriculture, Washington, DC 20503.

NLRB v. Noel Canning Panel Discussion

On Friday, January 10, 2014 the Section will host a webinar entitled NLRB v. Noel Canning: The President, Congress, and the Power to Make Recess Appointments.  The U.S. Supreme Court is set to hear oral arguments in NLRB v. Noel Canning on January 13, 2014.  The webinar will discuss the issues before the Court, featuring the authors of two prominent amicus briefs in the case.  The webinar will also kick off the Section's new project on Supreme Court litigation where we will monitor and analyze cases involving regulatory agencies and administrative law issues.  See the full program brochure here.  Contact Angela Petro with any questions at (202) 662-1582 or angela.petro@americanbar.org.  Hope you can participate!

IRS Seeks Input To Clarify Political Activities For 501(c)(4) Organizations

by Shannon Allen

The Internal Revenue Service (“IRS”) seeks input on proposed rules guiding “tax-exempt social welfare organizations” on “political activities related to candidates” that will not be recognized as the promotion of “social welfare.” Currently, a group that “primarily” participates in activities that “promote social welfare” can be recognized as operating “exclusively for the promotion of social welfare” (potentially qualifying for tax-exempt status), even though it participates in “some political campaign intervention.”

Specifically, section 501(c)(4) states that “[a]n organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community.” Treas. Reg. § 1.501(c)(4)-1(a)(2)(i). An organization “embraced” within section 501(c)(4) is one that is “operate[s] primarily for the purpose of bringing about civic betterments and social improvements.”Id. [Further,] “[t]he promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.” Treas. Reg. § 1.501(c)(4)-1(a)(2)(ii).  

With this notice of proposed rulemaking (“NPRM”), both the Treasury Department and the IRS aim to provide more “definitive rules” regarding “political activities related to candidates” instead of the current “fact-intensive analysis.” This proposed amendment to Treas. Reg. § 1.501(c)(4)-1(a)(2) will “identify specific political activities” that would be recognized as “candidate-related political activities” that do not “ promote social welfare.”

The Treasury Department and the IRS seek comments from the public and from a broad range of organizations.  Generally, comments are requested on all aspects of the proposed rules.  In particular:

• whether the use of the “primarily” standard in section 501(c)(4) should be modified; 
• if the “primarily” standard is retained, whether the standard should be defined with more precision or revised to mirror the standard under the section 501(c)(3) regulations; 
• what proportion of an organization’s activities must promote social welfare for an organization to qualify under section 501(c)(4); 
• whether additional limits should be imposed on any or all activities that do not further social welfare; 
• how to measure the activities of organizations seeking to qualify as section 501(c)(4) social welfare organizations for these purposes; 
• the advisability of adopting an approach to defining political campaign intervention under section 501(c)(3) similar to the approach set forth in these regulations, either in lieu of the facts and circumstances approach reflected in Rev. Rul. 2007-41 or in addition to that approach (e.g. by creating a clearly defined presumption or safe harbor); 
• whether any modifications or exceptions would be needed in the section 501(c)(3) context and, if so, how to ensure that any such modifications or exceptions are clearly defined and administrable; 
• whether there are other specific activities that should be included in, or excepted from, the definition of candidate-related political activity for purposes of section 501(c)(4); and 
• how the proposed addition or exception is consistent with the goals of providing more definitive rules and reducing the need for fact-intensive analysis of the activity. 

Comments must be received by February 27, 2014 in one of the following ways:

1. Mail: send submissions to: CC:PA:LPD:PR (REG-134417-13), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044; 
2. Hand-delivery:  Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-134417-13), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC; or 
3. Electronically: via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-134417-13).