The United States Patent and Trademark Office (USPTO), in partnership with the National Institute of Standards and Technology/Manufacturing Extension Partnership, has rolled out a so-called “IP Awareness Assessment,” which is a free, web-based tool designed to help users identify and provide information regarding the users’ intellectual property rights.
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SEC Approves General Solicitation and Advertising for Accredited Investor-Only Securities Offerings: Excludes
On July 10, 2013, the U.S. Securities and Exchange Commission (“SEC”) fulfilled its Congressional mandate by adopting new rules that will dramatically affect the landscape for unregistered securities offerings in the United States. These new rules authorize the use of general advertising and general solicitation methods in accredited investor-only offerings under the newly amended Rule 506. Historically, securities offerings that were not registered with the SEC were uniformly described as “private offerings,” because that was their common identifying feature – the securities could not be publicly offered. With the adoption of new Rule 506(c), that common understanding has been eliminated.
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Court Strikes SEC Rule Requiring Disclosure by Resource Companies of Payments to Governments
On July 2, 2013, the U.S. District Court for the District of Columbia vacated the rule adopted by the Securities and Exchange Commission implementing the statutory provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act mandating disclosure by oil and gas and mining companies of payments to certain governments. The regulation required disclosure on a new Form SD for fiscal years ending after September 30, 2013. The matter was remanded back to the SEC to draft a new rule more consistent with the statutory intent.
The statute had been adopted with the stated Congressional intent of “supporting the commitment of the Federal Government to international transparency promotion efforts relating to the commercial development of oil, natural gas, or minerals”. On September 12, 2012, the SEC adopted its implementing rule, which was challenged by the American Petroleum Institute on a number of grounds, including violation of the First Amendment and of various Administrative Procedure Act (APA) provisions. The court decided the case based on APA grounds, stating that the SEC had (i) misread the statute as requiring public disclosure by resource companies of governmental payments, and (ii) acted in an arbitrary and capricious manner in refusing to grant requests from companies seeking to be exempt from disclosure of payments to foreign governments, such as China, Qatar, Angola and Cameroon, which prohibit disclosure of such payment information. According to the court, the statute left open the possibility that payment disclosures could be made confidentially to the SEC, with only summarized data being made public, and the SEC erred by refusing to consider that possibility. With respect to disclosures prohibited by foreign governments, while the SEC acknowledged that the competitive burden on companies doing business in these countries would be increased, it stated that an exercise of exemptive authority in these cases would defeat the Congressional intent. The court disagreed, reading the statute as requiring compliance with the disclosure mandate only “to the extent practicable,” and imposing an obligation on the SEC to exercise its discretionary authority and consider the costs and burdens on competition in its rulemaking.
The SEC has not announced whether it will appeal the decision or, if no appeal is forthcoming, what the timetable might be on a new rulemaking process. Given the public comment and other procedures required in connection with rule-making, it seems unlikely that rules could go into effect on the original timetable, which required filings on Form SD by May 2014. However, absent Congressional action, some form of reporting of government payments by resource issuers is likely to be mandated in the future.
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Master Limited Partnership Parity Act Would Include Clean Energy Companies
On April 24, 2013, a bipartisan group of senators and representatives reintroduced a revised version of the Master Limited Partnership Parity Act (the MLP Parity Act) to the Senate and House. Currently, a company can qualify as a master limited partnership (MLP) only if at least 90 percent of its gross income consists of “qualifying income,” including income form the production and sale of oil and natural gas, coal extraction, and pipeline projects.
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EPA Proposes New Quad O Standards for the Oil and Gas Industry – Implications for Colorado Operators
On April 12, 2013, the United States Environmental Protection Agency (EPA) issued its proposed revisions to the New Source Performance Standards (NSPS) for the oil and natural gas sector (i.e., Quad O). The reconsidered Quad O standards are the result of several petitions for administrative reconsideration of, as well as judicial challenges to, the final rule published on August 16, 2012. EPA has agreed to reconsider portions of the rule in several phases, in exchange for abeyance of the litigation challenges pending in the D.C. Circuit. The April 12th proposal reflects the Agency’s first phase of that reconsideration, and focuses largely on new requirements and compliance deadlines applicable to storage tanks. Comments are due May 13, 2013, unless a public hearing is requested, in which case comments will be due May 28, 2013.
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Trademark Clearinghouse Goes Live
In anticipation of the Internet Corporation for Assigned Names and Numbers (ICANN) allowing private ownership of a significantly broadened scope of generic Top-Level Domains (gTLDs), ICANN, on March 26, 2013, launched the Trademark Clearinghouse, which gives holders of verified trademark rights an opportunity to register their marks with the Trademark Clearinghouse before new gTLDs are allowed. Among others, nationally and regionally registered marks from any jurisdiction are eligible for registration with the Trademark Clearinghouse.
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Colorado Considering Significant Revisions to Emission Control, Permitting, and Reporting Requirements for the Oil and Gas Industry
At the February 28, 2013 Stakeholder Meeting, the Colorado Air Pollution Control Division (Division) revealed a suite of revisions it is considering to Air Quality Control Commission Regulation No. 7, in the form of significant new and expanded control options for Volatile Organic Compounds (VOCs), Greenhouse Gases (GHGs), and other hydrocarbon emissions from oil and gas facilities. The Division anticipates a formal rulemaking process to begin in November, 2013.
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EPA Proposes Significant Changes to its Startup, Shutdown, and Malfunction Air Rules
On February 22, 2013, the United States Environmental Protection Agency (EPA) issued a sweeping proposal regarding the treatment of excess emissions in state rules from sources during periods of startup, shutdown, and malfunction (SSM). The proposal responds to a petition for rulemaking filed in 2011 by the Sierra Club, and promises to fundamentally alter the way most states, including Colorado and North Dakota, treat SSM events in their State Implementation Plans (SIP). Comments on EPA’s proposal are currently due March 25, 2013.