Section Co-Hosting NLRB Update Webinar July 19, 2014

The Section of Administrative Law and Regulatory Practice will co-host a webinar July 9, 2014 from 1:00-2:30 p.m. with the Center for Professional Development and Section of Labor and Employment entitled NLRB Update: The Impact of Noel Canning, Proposed Representation Rules and Other Developments.  Panelists include H. Victoria Hedian of Abato, Rubenstein and Abato, P.A., James Bucking of Foley Hoag LLP, and Richard Griffin, the NLRB's General Counsel.  Panelists will discuss a variety of hot topics, including the Board's ruling concerning bargaining units in Specialty Healthcare and the issue of whether private college football players are employees and able to unionize.  Register here.

VA Prepares An EIS For Proposed Improvements In BHHCS Service Area

by Shannon Allen

In light of the recent controversy at the Department of Veterans Affairs (“VA”), now is a good time to highlight some of the agency’s efforts to improve services to Veterans.  Notably, the VA is planning to create an integrated environmental impact statement (“EIS”) for proposed improvements to and reconfiguration of the VA Black Hills Health Care System (“VA BHHCS”) services in the Hot Springs and Rapid City, South Dakota, vicinities.  The VA’s proposal includes reconfiguring existing services and expanding points of access health care within the VA BHHCS service area in order to better serve the health care needs and distribution of Veterans over the next 20 to 30 years in parts of South Dakota, northwestern Nebraska, and eastern Wyoming.  The VA’s proposal will impact issues identified in 40 CFR 1508.8 (e.g. ecological, aesthetic, historic, cultural, economic, social, and health, whether direct, indirect, or cumulative). The VA seeks public comment on the importance of these environmental concerns, and ideas about other environmental impacts that should be evaluated.

The VA’s EIS will address the following potential issues: physical and biological resources, cultural and historic resources, cultural environment as perceived by Veterans, their families, Indian tribes and communities of the area, impacts on the cultural values ascribed to the Hot Springs and Fort Meade campuses by Veterans, local residents, Indian tribes and others, impact on historic properties, land use, impacts to ongoing or traditional cultural uses of such locations, socioeconomics, impacts on archaeological, historical, and scientific data, community services, transportation and parking, and cumulative effects.

Operating small, highly rural facilities located in communities with populations smaller in number than the number of Veterans who need care raises concerns about safety, quality of care, sustainability over time, recruitment and retention of staff, and cost of operations and maintenance and upgrades to the facility.  These facilities have difficulty complying with rules and laws governing handicapped access.  In addition, there is the increasing age and cost of operating, maintaining and improving buildings ranging from 40 to over 100 years old.

The purpose of the VA’s December 2011 proposal to improve and reconfigure the VA BHHCS services was to: enhance and maintain the quality and safety of care for Veterans in the 100,000 square-mile VA BHHCS service area; replace aging buildings for Veterans in Residential Rehabilitation and Treatment Programs (RRTP) and Community-Based Outpatient Clinics (CBOC); increase access to care closer to Veterans' homes; and reduce out-of-pocket expenses for Veterans' travel.

There are a number of factors that suggest the need for reconfiguring these services.  The Veteran population centers are currently not in the same location as VA facilities.  VA also struggles to recruit and retain qualified staff at the Hot Springs facility.  This makes it difficult to maintain high-quality, safe and accessible care.  There are also limits to the kind of care available to Veterans and long travel times for specialty care.  To complicate factors, operating costs are higher than the facility’s financial allocations.

The VA has identified the following seven potential action alternatives that will be analyzed in the EIS:

1. Alternative A would involve building/leasing a CBOC in Hot Springs and a Multi-Specialty Outpatient Clinic (MSOC) and 100-bed RRTP in Rapid City.
2. Alternative B would involve building/leasing a 100-bed RRTP in Hot Springs and a MSOC in Rapid City.
3. Alternative C would entail renovating Building 12 for a CBOC and the Domiciliary for a 100-bed RRTP at Hot Springs and building/leasing a MSOC at Rapid City.
4. Alternative D would involve building/leasing a CBOC and 24-bed RRTP at Hot Springs and a MSOC and 76-bed RRTP at Rapid City.
5. Alternative E would involve implementing a proposal put forward by the “Save the VA” committee, a Hot Springs public interest group, to repurpose VA Hot Springs as a multifaceted national demonstration project for Veterans care in a rural environment.
6. Alternative F would be an as yet unidentified alternative use that might be proposed during the EIS process.
7. Supplemental Alternative G would entail repurposing all or part of the Hot Springs campus through an enhanced-use lease or other agreement with another governmental agency or private entity in conjunction with Alternatives A through F.
8. In addition to the above seven action alternatives, the EIS also will evaluate the impacts associated with the No Action or “status quo” alternative (Alternative H) as a basis for comparison to the action alternatives.

Interested parties are invited to submit written comments (referencing: “VA BHHCS Notice of Intent to Prepare an Integrated EIS”) by June 16, 2014 by one of the following methods:

• Website: through www.Regulations.gov
• Email: vablackhillsfuture@va.gov OR
• Mail: to Staff Assistant to the Director, VA Black Hills Health Care System, 113 Comanche Rd., Fort Meade, SD 57741.

EPA Seeks Comment on Revised Definition of “Waters of the United States”

by Elisabeth Ulmer

The Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) seeks comment on a proposed rule regarding the scope of waters regulated by the Clean Water Act (CWA).  The rules are the result of two recent U.S. Supreme Court cases, U.S. v. Riverside Bayview, Rapanos v. United States (“Rapanos”) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), that narrowed the reading of CWA jurisdiction.  The EPA and the Corps would like to ensure that the definition of “waters of the United States” is “consistent with the CWA, as interpreted by the Supreme Court, and as supported by science.”

The Federal Water Pollution Control Act Amendments of 1972 established the CWA, which Congress passed in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”  The CWA covers “navigable waters,” defined in the Act as “waters of the United States, including the territorial seas.”  However, according to the legislative history and the case law, the “waters of the United States” do not comprise only navigable waters.

In the 2001 “SWANCC” case, the Court referred to the 1985 United States v. Riverside Bayview Homes case, in which the Court adopted the Corps' judgment that “adjacent wetlands are ‘inseparably bound up’ with the waters to which they are adjacent.”  The Court also approved adding adjacent wetlands to the regulatory definition of “waters of the United States.”

In the 2006 “Rapanos” case, all Justices agreed that “waters of the United States” include non-navigable waters that “are connected to traditional navigable waters,” and wetlands “with a continuous surface connection to such relatively permanent water bodies.”  However, in his concurring opinion, Justice Kennedy stated that “waters of the United States” include wetlands with a “significant nexus” to navigable waters.  If wetlands “significantly affect the chemical, physical, and biological integrity” of navigable waters, then they satisfy the significant nexus requirement.

The EPA and the Corps advocate applying this “significant nexus” standard for CWA jurisdiction over adjacent wetlands to other water bodies.  The proposed rule would remove the part of the regulatory provision that defines “waters of the United States” as “all other waters…”  These “other waters” would then be evaluated on a case-by-case basis to determine whether they have a significant nexus and the CWA should cover them.

Commentators on the proposed rule are invited to share improvements on how jurisdictional determinations are made, as well as on alternative options for determining which “other waters” would fall under the jurisdiction of the CWA.  The proposed rule also seeks information on the connectivity of waters that could reduce a need for the case-by-case significant nexus determinations.  Commentators may discuss any concerns about the proposed definition of “waters of the United States.”

Comments are due on July 21, 2014.  Interested parties are invited to submit comments by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov
• E-mail: ow-docket@epa.gov.  Include EPA-HQ-OW-2011-0880 in the subject line of the message.
• Mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.  Send the original and three copies of your comments.
• Hand Delivery/Courier: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0880.

All comments should include Docket ID No. EPA-HQ-OW-2011-0880.

DOT Proposes Rule Requiring Increased Transparency of Airline Ancillary Fees

by Shannon Allen

The U.S. Department of Transportation (“DOT”) invites public comment on a notice of proposed rulemaking (“NPRM”) issuing several proposals aimed at improving the air travel environment of consumers in order to prohibit unfair or deceptive practices in air transportation. (49 U.S.C. 41712).  The DOT seeks to reinforce the rights of air travelers when they purchase tickets from ticket agents, make sure that passengers have adequate information . . . to make informed decisions . . ., increase notice to consumers of ancillary service fees, and prohibit unfair and deceptive practices, (e.g. post-purchase price increases, . . .or undisclosed biasing in fare and schedule displays).

Under the Enhancing Airline Passenger Protections final rule (“EAPP”), (76 FR 23110 (April 25, 2011)), the DOT promulgated passenger protections, but did not require airlines to provide their fee information for ancillary services to Global Distribution Systems (“GDSs”), because the DOT needed to learn more about the complexities of the issue. This NPRM addresses issues identified in the second EAPP.  The DOT proposes to enhance airline passenger protections by: expanding the pool of “reporting” carriers; requiring enhanced reporting by mainline carriers for their domestic code-share partner operations; requiring large travel agents to adopt minimum customer service standards; codifying the statutory requirement that carriers and ticket agents disclose any airline code-share arrangements on their Web sites; prohibiting unfair and deceptive practices such as undisclosed biasing in schedule and fare displays and post-purchase price increases; and requiring ticket agents to disclose the carriers whose tickets they sell in order to avoid having consumers mistakenly believe they are searching all possible flight options for a particular city-pair market when in fact there may be other options available.

The DOT invites the public to comment on the following questions regarding Airline Fees:

• Do you have a problem finding fee information? If yes, how significant is that problem? How does it affect your ability to comparison shop?
• What types of fees would you most like to have more information about during the shopping process, prior to purchase?
• When would you like to see that information displayed in your search process? As soon as you see a list of fares? Or, later in the process?
• How would you like to see the information regarding ancillary fees displayed? As a link, as a specific dollar amount shown with the airfare quote? As a table or menu on the homepage? Or, flight search results list?
• Should the DOT require large ticket agents to maintain and display lists of carriers whose tickets they market and sell?
• Should the DOT require a standardized format for disclosure?
• Do you feel that our proposed disclosure requirements would improve your search experience?
• Has the DOT selected the ancillary fees that are most important to your decision making process? Will disclosure of all these fees at the point of search cause further confusion on ticket agent Web sites? Or, diminish your user experience (e.g. because of screen clutter, diminished usability features, etc.)?
• Would the DOT proposals make fees easy to find?

Interested parties are invited to submit comments (identified by the docket number DOT-OST-2014-0056) by August 21, 2014 by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting comments;
• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 20590-0001;
• Hand Delivery or Courier: The Docket Management Facility is located on the West Building, Ground Floor, of the U.S. Department of Transportation, 1200 New Jersey Ave. SE., Room W12-140, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; OR
• Fax: 202-493-2251.

FDA Seeks Comment on Changes to Food Labeling

by Elisabeth Ulmer

Since the original serving size regulations passed in 1993, the size of food portions noticeably increased.  The Food and Drug Administration’s proposed rule will revise serving sizes to reflect current consumption data and offer serving size information on nutrition facts labels “that will help [consumers] maintain healthy dietary practices.”

This proposed rule has three main objectives:

1. Amend the definition of a single-serving container;
2. Require dual-column labeling for certain containers; and
3. Update and modify several reference amounts customarily consumed (RACCs)

The Nutrition Labeling and Education Act of 1990 (NLEA) updated the Federal Food, Drug, and Cosmetic Act (the FD&C Act) of 1938 by adding section 403(q), which authorizes the FDA to require nutrition labeling on most of the packaged foods that it regulates.  Section 403(q)(1)(A)(i) states that “a food intended for human consumption and is offered for sale” must, with some exceptions, carry nutrition information that provides “the serving size which is an amount customarily consumed and which is expressed in a common household measure that is appropriate to the food.”  This section defines a serving size as an amount customarily consumed, instead of as a recommended amount of food.  Thus, RACCs are the “reference amounts customarily consumed” that are used to determine serving sizes.

First, the FDA proposes to change the definition of single-serving containers.  They are now defined as products “that [are] packaged and sold individually and that [contain] less than 200 percent of the RACC.”  Products that have “large” (greater than or equal to 100 g or 100 mL) RACCs may currently be labeled as containers with either one or two servings.  However, the FDA proposes to categorize all products with less than 200 percent of the RACC as single-serving containers.

The FDA’s second preposition relates to dual-column labels for containers of products with at least 200 percent and up to and including 400 percent of the RACC.  One column that lists nutrition information for the serving size derived from the RACC is already required.  For this category of containers, the FDA is proposing the addition of a second column to the label that would list nutrition information for the container as a whole.

Third, the FDA proposes to update, modify, or establish RACCs for various product categories.  If the median consumption data from the National Health and Nutrition Examination Surveys “have increased or decreased by at least 25 percent compared to the 1993 RACCs,” the FDA will consider updating the RACCs.  On the other hand, if this data has not shown such an increase or decrease in consumption, the FDA will consider modifying the RACCs.  The FDA seeks comment on whether it should update the RACCs and serving sizes for the products that were identified as products of concern in the comments on the Advanced Notice of Proposed Rulemaking.  The FDA also invites comment on whether other product categories that the FDA did not address in this proposed rule should be amended.

Comments are due on June 2, 2014.  Interested parties are invited to submit comments by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov or
• Mail/Hand delivery/Courier: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852

All comments must include the Agency name, Docket No. FDA-2004-N-0258, and Regulatory Information Number 0910-AF23.

Brown Bag Lunch: Federal Sector Developments at EEOC

Please join us June 3, 2014 from 12:00 - 1:30 p.m. for a brown bag lunch on the latest federal sector developments at the Equal Employment Opportunity Commission, Office of Federal Operations.  This event is co-sponsored by the Sections of Administrative Law and Regulatory Practice and Government Operations and Personnel Committee.  Guests will include Joel Cavicchia, Supervising Attorney at the EEOC, Office of Federal Operations.  The event will be held at 1050 Connecticut Avenue, 5th Floor NW, Washington, DC in the John Marshall Room.  Click here to register.  We hope to see you there!

SEC Proposes New Recordkeeping Requirements For SBSDs and MSBSPs

by Shannon Allen

The Securities and Exchange Commission (“SEC”), per the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), pursuant to the Securities Exchange Act of 1934 (“Exchange Act”), proposes new recordkeeping, reporting, and notification requirements for security-based swap dealers (“SBSDs”) and major security-based swap participants (“MSBSPs”), an additional capital charge provision, and technical amendments to the broker-dealer recordkeeping, reporting, and notification requirements.

The Dodd-Frank Act created a new regulatory agenda for over-the-counter (“OTC”) derivatives markets and was enacted, among other reasons, to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things:

1. Providing for the registration and regulation of SBSDs and MSBSPs;
2. Imposing clearing and trade execution requirements on swaps and security-based swaps, subject to certain exceptions;
3. Creating recordkeeping and real-time reporting regimes; and
4. Enhancing the SEC’s rulemaking and enforcement authorities with respect to all registered entities and intermediaries subject to SEC oversight.

The SEC’s proposed rules are modeled on broker-dealer Rules because SBSDs and MSBSPs are anticipated to operate in financial markets and effect financial transactions that are comparable to the financial markets in which broker-dealers operate and the financial transactions that broker-dealers effect.  The SEC’s proposal also includes the addition of a capital charge provision to create net capital requirements for stand-alone SBSDs. 

The SEC seeks comment on, including empirical data in support of:

• The general approach that would require SBSDs and MSBSPs to comply with recordkeeping, reporting, notification, and securities count rules modeled on the broker-dealer recordkeeping, reporting, notification, and securities count rules.
• Whether the entities that register as nonbank SBSDs will engage in a securities business with respect to security-based swaps that is comparable to the securities business conducted by broker-dealers.  If not, how will the securities activities of nonbank SBSDs differ from the securities activities of broker-dealers?
• Whether the entities that register as bank SBSDs will engage in a securities business with respect to security-based swaps that is comparable to the securities business conducted by broker-dealers. If not, how will the securities activities of bank SBSDs will differ from the securities activities of broker-dealers?
• How many broker-dealers will register as SBSDs? What types of broker-dealers will register as SBSDs and what types of activities will these broker-dealers currently engage in?
• How many banks will register as SBSDs? What types of banks will register as SBSDs and what types of activities these banks currently engage in?
• How many entities will register as MSBSPs? What types of entities?
• How many broker-dealers will register as MSBSPs? How many banks will register as MSBSPs?
• Are there requirements in these proposed rules applicable to broker-dealer SBSDs and broker-dealer MSBSPs but currently not applicable to stand-alone SBSDs or stand-alone MSBSPs that should be applicable to standalone SBSDs or stand-alone MSBSPs, or vice versa?
• Are there requirements in these proposed rules applicable to broker-dealer SBSDs and broker-dealer MSBSPs but currently not applicable to bank SBSDs or bank MSBSPs that should be applicable to bank SBSDs or bank MSBSPs, or vice versa?
• Are there provisions in the rules that the U.S. Commodities Futures Trading Commission (“CFTC”) adopted governing recordkeeping and reporting obligations of swap dealers and major swap participants that the SEC should consider incorporating into the recordkeeping and reporting requirements for SBSDs and MSBSPs? If so, please identify the specific provision and explain why.
• Identify any operational compliance challenges with respect to the proposed recordkeeping requirements raised by attributing guaranteed security-based swap positions to an MSBSP.

Interested parties are invited to submit comments (referencing File Number S7-05-14) by July 1, 2014 by any (choose only one) of the following methods:

• Electronically:  Use the SEC’s Internet comment form (http://www.sec.gov/rules/proposed.shtml);
• Email: Send an email to rule-comments@sec.gov. Please include File Number S7-05-14 on the subject line;
• Federal eRulemaking Portal: (http://www.regulations.gov). Follow the instructions for submitting comments; OR
• Paper Comments: Send paper comments to Kevin M. O'Neill, Deputy Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.