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.