SBA Seeks Comment on Proposed Changes to Bond Program

by Shannon Allen

The Small Business Administration (“SBA”) announces proposed rule changes to the Surety Bond Guarantee Program (“Bond Program”).  Under the Bond Program, the SBA “guarantees bid, payment and performance bonds” for small contractors who are unable to acquire surety bonds “through regular commercial channels.”  The SBA agrees to “assume a certain percentage of the Surety's loss” if a small contractor defaults.  The Bond Program provides an incentive to Sureties and helps small businesses obtain “greater access to contracting opportunities.” 

The SBA’s proposal would make Bond Program regulations conform to particular provisions of the National Defense Authorization Act for Fiscal Year 2013 (“NDAA”).  These changes include:

• increasing the contract amount from $2 million to $6.5 million;
• increasing the contract amount to $10 million with a Federal contracting officer's certification that it is crucial for the small business to obtain bonding;
• authorizing the SBA to deny liability at its discretion;
• prohibiting the SBA from denying liability based on material information that was provided as part of the guarantee application in the Prior Approval Program;
• clarifying that the principal must retain full responsibility for the oversight and management of the contract;
• encouraging greater use of the Quick Bond Guarantee Application and Agreement;
• updating the dollar threshold to $100,000 for certain provisions determining when a change in the contract or bond amounts meet particular criteria; and
• reducing timeframes for taking certain actions related to claims.

Interested parties are invited to submit comments, identified by RIN 3245-AG56, by September 30, 2013 by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Office of Surety Guarantees, Suite 8600, 409 Third Street SW., Washington, DC 20416.
• Hand Delivery/Courier: Office of Surety Guarantees, 409 Third Street SW., Washington, DC 20416.
• Confidential business information (“CBI”) as defined in the User Notice at www.regulations.gov.  Please submit the information to Office of Surety Guarantees, 409 Third Street SW., Washington, DC 20416 or send an email to the Office of Surety Guarantees. Highlight the information that you consider to be CBI and explain why you believe the SBA should hold this information as confidential. The SBA will review the information and make the final determination whether it will publish the information.

SEC Seeks Input on Proposed Delay of Plan to Prevent Rapid Market Changes

by Shannon Allen

The Securities and Exchange Commission (“SEC”) issued a notice soliciting comments on a proposed Fourth Amendment to the Plan to Address Extraordinary Market Volatility (“Plan”).  Specifically, the Plan is calculated to prevent the kind of “sudden price movements” in the market that occurred “on the afternoon of May 6, 2010.”  The Plan creates “market-wide limit up-limit down requirements” intended to stop “trades in individual NMS Stocks . . . outside of . . .  specified Price Bands.”  The “limit up-limit down requirements” combine with “Trading Pauses . . . to accommodate more fundamental price moves . . . .”

In accordance with Section 11A of the Securities Exchange Act of 1934 (“Act”) and Rule 608, NYSE Euronext, on behalf of New York Stock Exchange, LLC (“NYSE”), NYSE MKT, LLC (“NYSE MKT”), and NYSE Arca, Inc. (“NYSE Arca”), and the following parties: BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., NASDAQ OMX BX, Inc., NASDAQ OMX PHLX, LLC, the Nasdaq Stock Market, LLC, and National Stock Exchange, Inc. (the “Participants”), filed a proposal to amend the Plan.  The Participants determined that the proposed amendment involves only technical matters, thus, under Regulation NMS, Rule 608 (b)(3)(iii) the amendment becomes effective upon filing with the SEC.

The Plan’s “limit up-limit down mechanism” is aimed at lessening the “negative impacts of sudden, unanticipated price movements in NMS Stocks” resulting in better protection for investors and “promoting a fair and orderly market.”  The Plan currently provides that mechanisms shall be “fully implemented by October 8, 2013.” 

The securities industry requested more time for Participants to test systems.  And Participants claim that providing this additional time to test the way the Plan functions “around the close,” especially “when there is a trading pause less than five minutes before the scheduled close of trading,” is essential and “in the public interest” and for the “protection of investors.”  The Participants propose to delay implementation of the Plan to December 8, 2013.

The SEC solicits comments from interested parties on the Fourth Amendment to the Plan.  All submissions should refer to File Number 4-631, should be submitted by September 24, 2013, and may be submitted by any of the following methods:

• Electronic Comments:  Use the SEC's Internet comment form;
• Email: to rule-comments@sec.gov (include File Number 4-631 on the subject line); or
• Paper:  Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

Meet Joe Whitley, 2013-2014 Section Chair

by Nina Hart

 

Meet Joe Whitley, the incoming Chair of the ABA Section of Administrative Law and Regulatory Practice.  Below, he shares his goals for the Section, insight into his experience with administrative law, and thoughts on challenges facing the legal profession.

1. Where do you work now and what led you to a career in law?

I am currently working at Greenberg Traurig (GT) law firm.  I have two offices – one in Atlanta, Georgia and the other in Washington, DC.  I serve as Chair of GT’s Atlanta White Collar Practice and work as a shareholder in GT’s White Collar Practice in the Washington, DC office. 

I have always wanted to be an attorney since I can remember.  The legal profession has always been a passion of mine and I am proud to have been given the privilege and opportunity to serve both in the public and now private sectors.

2. What experiences with administrative or regulatory law have you had?  What interested you in administrative law?

My experiences in administrative and regulatory law occurred mostly in the interpretation of regulations in criminal settings earlier in my career as a U.S. Attorney and a DOJ official in Washington, DC.  Regulations play a substantial role in the enforcement arena in health care, environmental cases and securities cases among others. 

Later, when I defended the practices of my clients, a strong knowledge of regulations gave me an advantage in my casework.  For example, the Resource Conservation and Recovery Act (RCRA) regulations played a crucial role in one case I defended after returning to private practice.

Finally, most recently when I served as first General Counsel at the Department of Homeland Security (DHS), my office had the overwhelming responsibility of coordinating the regulatory startup of DHS.  Fortunately, we had the great privilege of working with regulatory experts throughout the legacy agencies that made up the new Department.

3. Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process?  Or, for attorneys representing government agencies?

My counsel is to keep all of your options open early in your career, to consider practice areas outside of your comfort zone.  Sometimes success is defined as traveling in different directions.  Hopefully, more law firms and the government appreciate the need for younger lawyers to have a diversity of experience early in their career. 

I would advise attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process to join and be active in the Administrative Law Section, together with building a group of peers who practice administrative law.  There is no better way to get a grip on “best practices” than to have a group of colleagues to help you set the approach/tone for your casework.

4. As someone who has spent significant amounts of time in government and also in private practice, do you have any advice for attorneys who similarly hope to work in both the public and private sectors?

I know I may sound like a broken record on the American Bar Association’s Administrative Law & Regulatory Practice Section blog, but I believe we are the right place to start for young lawyers, both in the public and private sectors, who are looking for mentors in the practice of Administrative Law.

5. What do you think are the biggest challenges facing administrative law practitioners? How could the Section assist attorneys with these challenges?

I believe the challenges that AdLaw practitioners face may not be unique to them, but perhaps apply across the board to the practice of law in the United States.  Our still shaky economy is impacting the practice of law and the economics of law practice.  All of this is happening at a time when the relevance of administrative law has never been greater.

6. As incoming Chair of the Section, what are your priorities or goals for the Section this year?  Are there ways the Section members may be able to help you achieve these goals?

I want the AdLaw Section to continue its outstanding programs in my year as Chair, together with its many publications.  Also, I will be utilizing the various Committees of the Section to help grow our membership.  I will be giving a special emphasis to the private sectors and their concerns about overregulation.  Plus, I plan to build a stronger regional presence for the Section through the help of our Committees, Subcommittees and Liaisons.  Finally, I will be adapting and adjusting the Section’s web page and blog to make them more user-friendly.

7. What advice might you give to lawyers or law students interested in being more involved with the Section?  Perhaps you could explain how and why you became involved with the ABA and this Section.

The AdLaw Section’s motto, “Administrative Law – Everybody Does It!” can’t be any clearer.  I’d encourage lawyers and law students to sign up with the Section today.  The cost is minimal compared to other Sections and trust me, they won’t regret it.  The AdLaw Section is relevant to lawyers and law students in a number of ways.  For me, regulatory law was central to my time at DHS as the first General Counsel.  The startup of the Department required intense involvement by me in the regulatory process.  After my tenure at DHS, it was important to me to find the right home for a seminar on Homeland Security Law.  For the last eight years, the AdLaw Section has been home to the Homeland Security Law Institute.  We have started plans for the conference in March of 2014.  Don’t forget to “Save the Date!”

8. For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

The best way to start the familiarization process would be to take a course on Administrative Law while still in law school.  Outside of coursework, there are a number of outstanding publications by the Section that are worth mentioning: 

• Developments in Administrative Law and Regulatory Practice 2012
• Veterans Appeals Guidebook: Representing Veterans in the U.S. Court of Appeals for Veterans Claims
• Federal Agency Adjudication
• Federal Agency Rulemaking
• Federal Tort Claims Act
• The Complete Guide to Lobbying Law and Practice, 4th Edition
• Blackletter Administrative Law
• Judicial and Political Review
• Federal Preemption of State Law
• Federal Administrative Procedure Sourcebook
• Homeland Security: Legal and Policy Issue
• Realists Guide to Redistricting
• International Election Principles
• Government in the Sunshine Act
• Lawyers in Your Living Room
• The Cost-Benefit State: The Future of Regulatory Protection, Cass R. Sunstein
• Evolving Use and the Changing Role of Interstate Compacts
• Careers in Administrative Law
• Law of Counterterrorism
• Supreme Court Takings: A First Look at Koontz and Horne
• Cyber Security and Critical Infrastructure
• Manipulation or Arbitrage: Energy Traders, FERC, and the RTOs
• Administrative Law of the European Union

I would also encourage law students and young lawyers to attend the annual Administrative Law Institute in the Spring of 2014.  The conference provides a pre-program workshop on “Administrative Law 101” which gives a crash course in Administrative Law.  Many of our attendees have found it to be useful.

9. Outside of the law, what are your favorite activities or hobbies?

I enjoy sports – mostly watching these days.  I used to play basketball in high school and college.  I have a small garden that I get to toil in every once in a while.  I also enjoy American history.  And of course, there is my love of books – I’ve purchased many more than I will ever read.

Register Now for the 2013 Administrative Law Fall Conference

Registration is open for the 2013 Administrative Law Fall Conference. The Conference will be held November 7 and 8 at Georgetown University in Washington D.C. There will be CLE programming on such topics as Statutory Interpretation, Rulemaking 101, Developments in Administrative Law Technology, and Rulemaking in Comparative Perspective. Award and Scholarship recipients will also be honored. Find the brochure and registration forms online here.

DoD Proposes Privacy Policy Changes

by Shannon Allen

Privacy of the individual is a “fundamental legal right” that must be defended.  The Department of Defense (“DoD”) seeks public comment on a proposed rule to update its privacy policy.  The purpose of the DoD’s proposed rule is to balance the DoD’s statutory obligation to “collect, use, maintain, or disseminate personally identifiable information . . . about individuals” against the right of the individual to be “protected” from “unwarranted privacy invasions.”  In addition, the DoD issued this rule to further secure the information it maintains.

The proposed rule:

• updates established policies, guidance, and assigned responsibilities of the DoD Privacy Program pursuant to The Privacy Act and Office of Management and Budget (“OMB”) Circular No. A-130,
• authorizes the Defense Privacy Board and the Defense Data Integrity Board,
• prescribes uniform procedures for implementation of and compliance with the DoD Privacy Program, and
• delegates authorities and responsibilities for the effective administration of the DoD Privacy Program.

On August 9, 2013, the American Forces Press Service recounted President Obama’s statements about privacy during an hour-long press conference at the White House.  The President said that it was “right to ask questions about surveillance . . . .”  He explained that America “is not interested in spying on ordinary people . . .” and reiterated that, in America, “we show restraint” and find resolution “through vigorous public debate guided by our constitution . . . .”

To that end, the DOD seeks public input on any of the following major provisions of its proposed rule including, but not limited to:

• implementing rules of conduct for DoD personnel and DoD contractors involved in the design, development, operation, or maintenance of any system of records,
• maintaining safeguards to ensure the confidentiality of records and to protect against any anticipated threats to their security that could result in substantial harm to any individual about whom information is preserved,
• guiding, assisting, and providing subject matter expert support to the combatant command privacy officers, and/or
• ensuring the implementation of policies for protecting privacy rights throughout the DoD.

Comments should identify Docket ID: DOD-2013-OS-0023-0001.  Interested parties are invited to submit comments by October 21, 2013, either by:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments; or
• Mail: Federal Docket Management System Office, 4800 Mark Center Drive,East Tower, Suite 02G09, Alexandria VA 22350-3100.

Membership Mix & Mingle POSTPONED

EDIT: This event has been postponed due to concerns about traffic surrounding the commemoration of Dr. King's March on Washington. The Mix & Mingle will take place on September 19, 2013. More information will be forthcoming in the next week. 

Meet other members of the Section this Wednesday at the Membership Mix & Mingle. The event takes place from 5:30 to 7:00 pm, following the Leadership Orientation at ABA Headquarters: 1050 Connecticut Ave, Washington D.C. 20036. RSVP to Anne Kiefer at anne.kiefer@americanbar.org.

ITC Seeks Public Comment on Draft Digital Trade Questionnaire

by Shannon Allen

The International Trade Commission (“ITC”) seeks public comment on a draft digital trade questionnaire.  The ITC plans to submit a request for approval of the questionnaire to the Office of Management and Budget (“OMB”).  According to a 2013 ITC report, digital trade is “commerce in products and services delivered via the Internet.”  The Internet has made substantial contributions to “U.S. output, employment, consumer welfare, trade, innovation, productivity, and corporate financial performance.”  Digital trade helps producers lower operating cost, provides small businesses access to a broader range of products and services, and aids consumers in obtaining product information and convenience.

The ITC drafted the digital trade questionnaire in response to a request from the U.S. Senate Finance Committee (“Committee”) to produce a report that:

1. estimates the value and potential growth of U.S. digital trade;
2. provides insight into the overall connection between digital trade and the U.S. economy;
3. presents case studies examining the value of digital trade to participating U.S. industries; and
4. examines the impact of challenges to digital trade on industries and the U.S. economy.

The ITC will mail a letter to U.S. firms involved in digital trade.  The letter will request the respondents to download and fill out a PDF questionnaire and submit it to the ITC.  The ITC will draft its report on a “review of available data and other information, including the collection of primary data through a survey of U.S. firms in industries particularly involved in digital trade.”  The ITC anticipates delivery of its report to the Committee by July 14, 2014.

Interested parties are invited to submit comments on:

• the necessity of the proposed collection of information;
• the accuracy of the hour and cost estimate of the proposed collection of information;
•  improvements on the quality, utility, and clarity of the information to be collected; and
• burden minimizing ideas (e.g. automated collection techniques or other technology).

Comments must be submitted by October 1, 2013 and directed to Mr. James Stamps, Project Leader, by one of the following methods:

• Mail:  James Stamps, Project Leader, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436 or
• Email:  james.stamps@usitc.gov