PublicationsInsights on Current Policy Issues

  • August 13, 2018

    By David E. Franasiak, Joel G. Oswald, Michael D. Kans, and Rebecca L. Konst

     This memorandum will provide a survey of federal action on cryptocurrencies (aka virtual currencies), including enforcement and guidance. At present, some federal regulators have begun asserting oversight and enforcement authority under their existing powers while other potential regulators have not yet indicated publicly what, if any, oversight they will exercise. Other federal stakeholders on cryptocurrencies have also begun to engage. However, the U.S. government’s approach to virtual currencies remains fluid.

     

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  • January 11, 2018

    By Frank Vlossak

    Since taking office, President Trump and his Administration have worked toward regulatory reform that includes the review, revision, and repeal of existing regulations, with a focus on rules promulgated by the Obama Administration. Congress has played a key role in this effort, through the use of the Congressional Review Act to repeal rules finalized in the waning months of the prior Administration, as well as one rule issued by the Consumer Financial Protection Bureau (CFPB) in 2017.

    President Trump signed a series of executive orders in the early months of his presidency that are propelling the deregulatory efforts of federal agencies. These executive orders: set a cap limiting regulations in Fiscal Year 2017 to zero net cost; provide agencies with a framework for limiting new regulations and identifying existing rules to repeal or revise; direct review and revision or repeal of the “Waters of the United States” rule issued by the Obama Administration; and require review and reform of energy and climate-related regulations.

     

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  • October 10, 2017

    By Frank Vlossak

    On October 10, Environmental Protection Agency (EPA) Administrator Scott Pruitt signed a Notice of Proposed Rulemaking (NPRM) titled “Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating Units”. The NPRM would rescind the Obama Administration’s Clean Power Plan (CPP), a rule that would reduce greenhouse gas (GHG) emissions from existing power generation sector sources, namely coal and natural gas power plants.

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W&J Publications

Insights on Current Policy Issues

By Frank Vlossak

On December 3, the House of Representatives approved the “North American Energy Security and Infrastructure Act of 2015” (H.R. 8) by a 249-174 vote. The House Energy and Commerce Committee approved the legislation on September 30. As described in the Committee’s report (H.Rept. 114-347), the legislation includes provisions that would:

  • Enhance the Federal Energy Regulatory Commission’s (FERC) “role as the lead agency to coordinate concurrent [interstate natural gas pipeline] permit reviews, establish timelines, and require transparency in the process.”
  • Establish “an interagency task force to coordinate with Canada and Mexico on mutually-beneficial energy policy decisions affecting North America…”
  • Direct the Department of Energy (DOE) to “streamline the regulatory process for authorizing U.S. LNG exports by establishing a thirty day deadline for DOE to act on applications at the conclusion of the review required by the National Environmental Policy Act” (NEPA).
  • Direct “FERC to establish an Office of Compliance Assistance and Public Participation to be responsible for promoting improved compliance with Commission regulations, make recommendations on energy market behavior and enforcement, and perform outreach to the regulated community.”

 

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By Shane Doucet and Michael Kans

On October 29, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as they relate to wellness programs that offer limited inducements for an employee’s covered spouse to disclose his or her personal health information. After the EEOC issued its 2010 final rule on Title II of GINA, the EEOC noted that they had received numerous inquiries about “whether an employer will violate GINA and in particular, 29 CFR 1635.8(b)(2), by offering an employee and inducement if the employee’s spouse who is covered under the employer’s group health plan completes a health risk assessment (HRA) – including those involving a medical questionnaire, a medical examination (e.g. to detect high blood pressure or high cholesterol), or both – that seeks information about the spouse’s current or past health status, in connection with the spouse’s receipt of health or genetic services as part of an employer-sponsored wellness program.” The EEOC more recently had sued Honeywell International on October 27, 2014 alleging that their wellness program violated GINA because employees were penalized if their spouse did not complete a biometric screening. The U.S. District Court later denied the EEOC’s request for a temporary restraining order for Honeywell’s wellness program and, ever since, a cloud of uncertainty remained as to whether the EEOC would sue on these grounds again in the future. Instead, the EEOC is using its rulemaking authority to now address this issue.

 

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By Frank Vlossak

On October 1, the Pipeline and Hazardous Material Safety Administration (PHMSA) released the Notice of Proposed Rulemaking (NPRM) titled “Pipeline Safety: Safety of Hazardous Liquid Pipelines.” The NPRM proposes significant new requirements for operators of crude oil, refined product and other hazardous liquid pipelines, including requirements to: conduct integrity assessments for all pipeline segments; repair defects found at any location within set deadlines; and install leak detection systems on all new pipelines. Public comments on the NPRM must be submitted by January 8, 2016. PHMSA officials have also indicated that the NPRM will be subject to discussion at the next meeting of the Liquid Pipeline Advisory Committee, which may be held before the end of the year.

 

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By David E. Franasiak, Joel G. Oswald, and Rebecca Konst

On April 5, 2012, the Jumpstart Our Business Startups (JOBS) Act was signed into law. The Act requires the SEC “to write rules and issue studies on capital formation, disclosure and registration requirements.” Section 106(b) of the JOBS Act required the SEC to conduct a study and report to Congress on “how decimalization affected the number of initial public offerings (IPOs) and the liquidity and trading of smaller capitalization company securities.” This memo highlights the implementation dates and progress made thus far.

 

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Frank Vlossak

On September 18, Pipeline and Hazardous Material Safety Administration (PHMSA) Administrator Marie Theresa Dominguez told the Senate Commerce Committee that the agency anticipates publication of the hazardous liquid pipeline safety Notice of Proposed Rulemaking (NPRM) within the next week. PHMSA began the process of developing this NPRM in 2010, with publication of an Advance Notice of Proposed Rulemaking (ANPRM) titled “Pipeline Safety: Safety of On-Shore Hazardous Liquid Pipelines”. PHMSA stated that it is “considering whether changes are needed to the regulations covering hazardous liquid onshore pipelines.”

 

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By David E. Franasiak, Joel G. Oswald, and Hanna Laver

On July 20, the U.S. Treasury Department published a Request for Information (RFI) in the Federal Register soliciting industry feedback regarding the rapidly growing online lending marketplace. The Department defines online marketplace lending as “the segment of the financial services industry that uses investment capital and data-driven online platforms to lend to small businesses and consumers.” Specifically, Treasury is seeking public comment on: (i) the various business models of, and products offered by, online marketplace lenders to small businesses and consumers; (ii) the potential for online marketplace lending to expand access to credit to historically underserved market segments; and (iii) how the financial regulatory framework should evolve to support the safe growth of this industry.

 

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By Frank Vlossak

On July 10, PHMSA published a Notice of Proposed Rulemaking (NPRM) titled “Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety Proposed Changes”. The NPRM would: establish new requirements for certain pipeline employee qualifications; require that pipelines notify the National Response Center “as soon as practicable” following “confirmed discovery” of a covered incident; establish a process for recovering costs for safety review of new projects that cost more than $2.5 billion or employ new technologies; require notification to PHMSA of pipeline flow reversals and changes to the type of product transported; incorporate by reference industry standards on inline inspections and stress corrosion cracking direct assessment (SSCDA); and implement other changes to pipeline safety regulations. Comments are due on August 8, 2015.

 

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By David E. Franasiak, Joel G. Oswald, and Hanna Laver

On December 10, 2014, the U.S. Court of Appeals for the Second Circuit reversed the insider trading convictions of two former hedge fund managers. The court held an individual can only be convicted of insider trading for trading on confidential information if he or she knew the original tipper disclosed it in exchange for a personal benefit. The Court denied a request for an en banc rehearing on April 3, 2015. The only remaining option is to appeal to the Supreme Court, but legal analysts assert that is unlikely. A recent U.S. District Court decision applying the Second Circuit ruling requires the SEC meet a tougher standard at trial for what constitutes insider trading. Judge Jed Rakoff also suggested Congress should formally define insider trading, saying “if unlawful insider trading is to be properly deterred, it must be adequately defined.” In light of the December ruling, several bills were introduced in Congress that would modify the Securities Exchange Act of 1934 to strengthen its prohibitions on trading on material or inside information.  

 

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By Frank Vlossak.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has begun an effort to develop requirements for hazardous liquid pipeline operators to verify the integrity and maximum operating pressure of their pipelines. The initiative is based on a parallel effort targeting natural gas pipelines. PHMSA has not yet developed the integrity verification process (IVP) proposal as a notice of proposed rulemaking (NPRM), however the details provided in a draft flow chart indicate the requirements of a rule could be significant. 

 

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By David E. Franasiak, Joel G. Oswald and Rebecca L. Konst

On November 17, 2014 the Financial Industry Regulatory Authority (FINRA) and the Municipal Securities Rulemaking Board (MSRB) released companion proposals to “require disclosure of pricing reference information on customer confirmations for transactions in fixed income securities.” The MSRB proposal covers municipal bonds and the FINRA proposal covers fixed income securities in general. FINRA and the MSRB are taking a coordinated approach to this rulemaking and their proposals are substantially similar though apply to their different portions of the market.    


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PublicationsInsights on Current Policy Issues

  • August 13, 2018

    By David E. Franasiak, Joel G. Oswald, Michael D. Kans, and Rebecca L. Konst

     This memorandum will provide a survey of federal action on cryptocurrencies (aka virtual currencies), including enforcement and guidance. At present, some federal regulators have begun asserting oversight and enforcement authority under their existing powers while other potential regulators have not yet indicated publicly what, if any, oversight they will exercise. Other federal stakeholders on cryptocurrencies have also begun to engage. However, the U.S. government’s approach to virtual currencies remains fluid.

     

    Read...

    Read More
  • January 11, 2018

    By Frank Vlossak

    Since taking office, President Trump and his Administration have worked toward regulatory reform that includes the review, revision, and repeal of existing regulations, with a focus on rules promulgated by the Obama Administration. Congress has played a key role in this effort, through the use of the Congressional Review Act to repeal rules finalized in the waning months of the prior Administration, as well as one rule issued by the Consumer Financial Protection Bureau (CFPB) in 2017.

    President Trump signed a series of executive orders in the early months of his presidency that are propelling the deregulatory efforts of federal agencies. These executive orders: set a cap limiting regulations in Fiscal Year 2017 to zero net cost; provide agencies with a framework for limiting new regulations and identifying existing rules to repeal or revise; direct review and revision or repeal of the “Waters of the United States” rule issued by the Obama Administration; and require review and reform of energy and climate-related regulations.

     

    Read...

    Read More
  • October 10, 2017

    By Frank Vlossak

    On October 10, Environmental Protection Agency (EPA) Administrator Scott Pruitt signed a Notice of Proposed Rulemaking (NPRM) titled “Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating Units”. The NPRM would rescind the Obama Administration’s Clean Power Plan (CPP), a rule that would reduce greenhouse gas (GHG) emissions from existing power generation sector sources, namely coal and natural gas power plants.

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