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.