Pending Regulations

• New York Finalizes Disclosure Requirements for Commercial Financing Transactions

  02.10/Alert

  In December 2020, New York became the second state to enact legislation to impose consumer-style disclosure requirements for commercial financing transactions. Although these requirements were initially scheduled to become effective on January 1, 2022, the New York Department of Financial Services (NYDFS) issued guidance stating that compliance with the requirements would be delayed until NYDFS issued final implementing regulations. NYDFS issued those final regulations on February 1, 2023, and the disclosure requirements will now become effective in New York on August 1, 2023.

• HSR Merger Filing Fees Significantly Increase for Transactions Valued at $500 Million or More; Highest Fee Increasing by 800%

  01/09/2023

  The Merger Filing Fee Modernization Act (MFFM Act), included in the year-end omnibus spending bill that President Biden signed into law on December 29, 2022, updates the fee structure for filings submitted pursuant to the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) for the first time since 2001. Under the HSR Act, parties to certain mergers and acquisitions are required to report transactions valued in excess of the lowest filing threshold, currently $101 million, to the Federal Trade Commission (FTC) and Department of Justice (DOJ) and wait a proscribed period of time before closing.

• FCC Modifies Equipment Authorization Rules for Certain Chinese Manufacturers

  11.28/Alert

  The FCC seeks further comment on the revocation of existing equipment authorizations issued to manufacturers on FCC Covered List.

• Proposed Rule to Designate Two PFAS Chemicals as Hazardous Substances Stands to Up the Ante for Site Remediation

  09.02/Alert

  On Friday, August 26, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of a long-awaited proposed rule to designate two of the most-studied per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

• General Services Adminisration Information Request Foreshadows Potentially Significant Rulemaking on Single-Use Plastic Packaging

  08.04/Alert

  Given the federal government’s buying power and wide use of plastic packaging, the GSA’s proposed rulemaking could have consequences for the plastics, packaging and shipping industries.

• Department of Labor Proposes Rule to Give Service Employees a Right of First Refusal under Successor Contracts

  07.19/Alert

  To avoid displacement of current service employees, the proposed rule will require contractors and their subcontractors to offer qualified employees a right of first refusal of employment under the successor contract.

• Supreme Court Issues Opinion in West Virginia v. EPA

  07.01/Alert

  The Supreme Court rejected EPA’s Obama-era Clean Power Plan in a decision that has significant implications both for future attempts by EPA to regulate CO2 emissions and for other agencies attempting to promulgate rules that implicate “major questions.”

• FTC Announces Largest-Ever HSR Threshold Increase for 2022 Transactions

  01.24/Alert

  As a result of the increase in the U.S. Gross National Product (GNP) for 2021, after the first decrease in U.S. GNP in over a decade in 2020, the Federal Trade Commission (FTC) has announced higher revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), which will become effective on February 23, 2022. Since the FTC began adjusting the thresholds in 2005, the 2022 threshold increase is the largest year-over-year increase, both in terms of dollar value and percentage increase. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities, assets, or unincorporated interests must notify the FTC and the Antitrust Division of the Department of Justice (DOJ) of a proposed transaction and comply with a mandatory waiting period before the transaction may be consummated. Note that the current $92 million threshold is still in effect for transactions that will close on or before February 22, 2022.

• State-Level Permitting Primacy May Boost Carbon Capture and Storage

  08.11/Alert

  Texas and Louisiana are stepping up efforts to assume regulatory authority for an emerging wave of Carbon Capture and Storage (CCS) projects.

• Navigating Uncertain ESG-Related Risks at the SEC

  07.06/Alert

  Although the SEC’s ESG-related agenda is in its early stages, market participants should pay close attention to the emerging regulatory framework, which often portends both enforcement actions and shareholder litigation. As previously noted here, these regulatory developments call for careful evaluation, particularly in light of widely held expectations that the SEC will move swiftly on climate-related disclosure rulemaking following the conclusion of a notice-and-comment period this summer, as well as on potential rulemaking requiring public companies to disclose workforce metrics, including in relation to diversity.

• EPA’s Wide-Ranging Rule on Perfluoroalkyl Substances

  02.27/Alert

  The United States Environmental Protection Agency (EPA or the Agency) has taken another step toward regulating perfluoroalkyl substances (PFAS). Specifically, on February 20, 2020, EPA issued a pre-publication version of a Supplemental Proposed Rule that could affect a host of businesses that traditionally have not had to concern themselves with Toxic Substances Control Act (TSCA) compliance and enforcement. The proposal concerns a subcategory of PFAS known as “Long-Chain Perfluoroalkyl Carboxylates and Perfluoroalkyl Sulfonates” (collectively, LCPFAC) under TSCA. Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), two of the most problematic PFAS substances, are among the chemicals that would be regulated.

• DFARS Clause Blocks Funding for Unsafe Projects in Afghanistan

  04.25/Alert

  A new rule prohibits the use of funds for DoD construction and infrastructure programs and projects in Afghanistan that cannot be safely accessed by U.S. Government personnel.

• Court of Appeals Rolls Back Portions of the FCC’s 2015 Robocall and Text Ruling

  03.19/Blog

  A recent Court of Appeals decision will rescind some aspects of the Telephone Consumer Protection Act and have significant implications for businesses contacting consumers by telephone or text.

• Prime Contractors Take Note of New California Law Imposing Liability for Subcontractors’ Employees’ Unpaid Wages

  11.22/Blog

  A new California law requires prime contractors on private projects to be as involved in monitoring their subcontractors’ payroll practices as their public works counterparts.

• U.S. DOT Releases Draft Strategic Plan Beginning Implementation of Trump Administration’s Executive Order on Project Streamlining

  10.27/Blog

  The U.S. Department of Transportation (DOT) has released a draft Strategic Plan that establishes goals for increasing investment and streamlining environmental review and approval of transportation infrastructure projects over the next five years. The draft Plan is DOT’s first formal action in response to the Administration’s Executive Order on streamlining. Although it identifies needs and objectives it provides few specifics.

• ARC Dispute May Mean Further Delay in Needed Drone Regulation

  10.19/Blog

  The Unmanned Aircraft Systems Identification and Tracking Aviation Rulemaking Committee has failed to reach consensus on issues described as fundamental for operations over people and operations beyond the visual line-of-sight (BVLOS). The UAS industry is growing rapidly but If users are to capitalize on this opportunity, the FAA will need to get serious about catching up.

• Brace for 2018: The SEC’s Pay Ratio Rule

  08.18/Alert

  Starting in January 2018, public companies must disclose the ratio between their CEO’s salary and the salary of the company’s “median employee.” This article reviews SEC guidance on those calculations, and provides a six-step plan to prepare your company for the new requirements.

• FTA Proposes Rule Waiving Regulatory Burdens on Public-Private Partnerships (P3s) for Public Transportation Projects

  08.01/Blog

  The FTA has proposed new rules to encourage the use of public-private partnerships (P3s), joint developments and other private investment mechanisms in surface transportation. Under the proposal, a P3 can obtain a divergence from certain existing FTA requirements, as detailed in the article.