Federal Register Watch

by Charles Hueter

September 26-30, 2005

 What freedoms have you lost this week?

The last few weeks I have focused on the federal government's regulatory response to Hurricane Katrina.  For the previous week, that subject did not get much space. I expect the impact of Hurricane Rita will impel the feds to react and I'll cover that as well.  In the meantime, however, I'll return to the normal focus of this column.  

September 26, 2005 (Volume 70, Number 185)  

ENVIRONMENTAL PROTECTION AGENCY  

"States that have received final authorization from EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize their changes."  The creeping federalization of the law continues.  

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19136.htm ]  

FEDERAL COMMUNICATIONS COMMISSION  

America's Censor is looking to make sure "video programming is accessible to deaf and hard of hearing Americans and whether any revisions should be made to enhance the effectiveness of those rules."  The deaf lobby (for lack of a better term) has petitioned the FCC about "compliance and quality issues."  This includes whether or not the closed captions broadcast by cable, satellite, and other "multi-channel video programming distributor" should be regulated to meet standards of "accuracy of transcription, spelling, grammar, punctuation, placement, identification of nonverbal sounds, pop-on or roll-up style, verbatim or edited for reading speed, and type font."  Other technical aspects are also open for comment, as well as whether "specific per violation forfeiture amounts for non-compliance" should be utilized.   

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19161.htm ]  

DEPARTMENT OF HOMELAND SECURITY - Federal Emergency Management Agency  

A slew of Hurricane Katrina notices, all regarding the "influx of evacuees from states impacted by" the storm.  The specific action authorizes FEMA "to provide emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program, at 100 percent Federal funding" as well as "other forms of assistance under Title V of the Stafford Act" when considered necessary.  

On September 13, declarations like this totaled 974 counties.  We have a lot more to add.  

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19113.htm ] - California, ("[a]ll 58 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19111.htm ] - Connecticut, ("[a]ll eight counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19109.htm ] - Idaho, ("[a]ll 4 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19116.htm ] - Maryland, ("[a]ll 24 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19117.htm ] - Massachusetts, ("[a]ll 14 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19107.htm ] - Minnesota, ("[a]ll 87 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19118.htm ] - Montana, ("[a]ll 56 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19110.htm ] - Nebraska, ("[a]ll 93 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19108.htm ] - Nevada, ("[a]ll 17 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19112.htm ] - North Dakota, ("[a]ll 53 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19115.htm ] - Ohio, ("[a]ll 88 counties")

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19114.htm ] - Wisconsin,("[a]ll 72 counties")  

That is an additional 574 counties covered by Presidential emergency declarations, coming to at least 1,548 counties in at least 22 states.  According to the National Association of Counties, there are 3,066 of the local governments in the United States, meaning that just over half of all counties in America are now affected by Executive Branch emergency declarations.    

September 27, 2005 (Volume 70, Number 186)  

DEPARTMENT OF JUSTICE - Drug Enforcement Administration

Did you know you can import, own, and possess lysergic acid diethylamide (LSD), mescaline, heroin and other opiates, psilocyn (magic mushrooms), gamma hydroxybutyric acid (GHB), amphetamines, cocaine, and the other scary Schedule I and Schedule II drugs?  In the Land of the Free®, all you have to do is register with the DEA!  And submit to their investigations and inspections.  And satisfy the agency's standard of your licensing being "consistent with the public interest and with United States obligations under international treaties."  

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19192.htm ]

ENVIRONMENTAL PROTECTION AGENCY

Sixteen pages that lay out the Notice for the "[development of a] chemical screening program using appropriate validated test systems and other scientifically relevant information to determine whether certain substances may have hormonal effects."  The EPA expects to pick anywhere from 50 to 100 chemicals to screen.  I'd be wary of where that process leads.

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19260.htm ]

DEPARTMENT OF THE INTERIOR - Fish and Wildlife Service

The Coachella Valley milk-vetch needs your help!  Thousands of acres of "critical habitat" and "essential habitat" have been identified and the FWS wants to economically cordon off the areas in the name of the Endangered Species Act.  This means "activities involving residential, commercial, and industrial development" would be affected, possibly by a "Local Development Mitigation Fee" that would be "imposed by local jurisdictions on residential, commercial, and industrial development occurring on private land containing habitat for covered species."

Normally, one ugly plant couldn't stop urban development.  But get the state on its side...

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19098.htm ]

DEPARTMENT OF TRANSPORTATION - National Highway Traffic Safety Administration

Every now and then, I'll post news of a regulatory victory.  In this case, the NHTSA rejected a petition from an Albert Donnay to propose a rule to "require manufacturers to offer carbon monoxide detectors in all new gasoline powered vehicles and to make available retrofit devices for older vehicles" along with requiring the NHTSA to publish a host of educational and advocacy action pertaining to preventing CO poisoning deaths.  However, the rejection was made "because the costs would have been unjustifiable in relation to the benefits."  Not very comforting.  

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19214.htm ]

September 28, 2005 (Volume 70, Number 187)

COMMODITY FUTURES TRADING COMMISSION

This is a Proposed Rule that would, among other things, "reflect the Commission's longstanding view that its antifraud authority extends to all CTAs, irrespective of whether they provide advice on a personalized or nonpersonalized basis."

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19323.htm ]

FEDERAL COMMUNICATIONS COMMISSION

Slate blogger Mickey Kaus once remarked during the 2004 Presidential election that it seemed odd to him that so much attention spent on the McCain-Feingold campaign finance law about what people were prevented from saying a certain time out from election day, when so little ire was raised over what everyone was required to say in all their advertisements ("I'm John Kerry and I approved this message.") whether those ads were 10 days from November 4th or 100.  In this Final Rule, the FCC explains that applicants for permission to "construct or make changes in a low power TV, TV translator, or TV booster station" are "required to publish a notice in a newspaper of general circulation when filing all applications for new or major changes in facilities--the notice is to appear at least twice a week for two consecutive weeks in a three-week period."

Mr. Kaus has a good point.  The federal government often and regularly forces speech from people and it doesn't get nearly the attention of prevented, censored, or suppressed speech.

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19514.htm ]

DEPARTMENT OF COMMERCE - Bureau of Industry and Security

John H. Carrington is in trouble.  He is being accused of 181 violations of Export Administration Regulations.  He allegedly "conspired and acted in concert with others, known and unknown, to do or bring about an act that violates the Regulations" in regards to exporting fingerprinting equipment from the US to Hong Kong.  He allegedly did export such equipment and did so enough to earn him 25 separate regulatory violations.  At the same time, he allegedly sold the same equipment for an additional 25 violations.  Mr. Carrington is also alleged to have tried to evade these regulations each of those 25 times for a likewise increase in violations, as well as another 25 violations for allegedly lying on his export documents.  The merry-go-round continues for nine instances where he allegedly exported, sold, evaded, and lied with regards to fingerprinting ink and powder.  There are more, if you are inclined to read them.  

You should probably read the Order imposed upon him as punishment, though.  Lots of "may not...in any way...any commodity..." language.  

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19314.htm ]

September 29, 2005 (Volume 70, Number 188)

DEPARTMENT OF AGRICULTURE - Animal and Plant Health Inspection Service

Here may be the seeds of a new round of prohibition in Florida.  APHIS "is responsible for safeguarding the United States against plant pests and noxious weeds" so it wants to survey "owners and managers of Florida nurseries and plant dealers to determine how many were aware" of a program that listed more than 40 known invasive plants that "should not be grown or sold in Florida nurseries."  The survey is intended to discover the effectiveness of current voluntary campaigns in getting the word out about the invasive species.

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19453.htm ]

DEPARTMENT OF COMMERCE - International Trade Administration

"The products covered by this order are certain scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: tapers, spirals and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers."

Apparently, you can "dump" candles in the United States.  It's just me, but perhaps those dangerously low prices might come in hand during times of, oh, say an emergency that could knock out power to one's home.  Like a hurricane!

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19508.htm ]

DEPARTMENT OF HEALTH AND HUMAN SERVICES - Food and Drug Administration

Interested in what the FDA thinks "the maximum sodium levels permitted for foods that bear the implied nutrient content claim 'healthy'" should be?  Print out the 21 pages to find out more!

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19511.htm ]

September 30, 2005 (Volume 70, Number 189)

STATE JUSTICE INSTITUTE

I wasn't aware of such a thing.  According to the 1984 (ha, coincidence???) law that gave birth to it, "the Institute is authorized to award grants, cooperative agreements, and contracts to State and local courts, nonprofit organizations, and others for the purpose of improving the quality of justice in the State courts of the United States."  The House passed appropriations legislation that funds the SJI with $2 million and the Senate voted to give it $5 million.  

Perhaps one of their researchers might stumble upon the idea it is unjust to steal income from those who've earned it in order to pay for another person's research into making the process that legitimized that theft more just.

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19439.htm ]

DEPARTMENT OF TRANSPORTATION - Federal Aviation Administration

The Regional Airlines Association asked the FAA "for a blanket waiver of the minimum slot usage requirement for all slots" at three large American airports.  In Title 14, Section 93.312 of the Code of Federal Regulations, a slot is defined as "the operational authority to conduct one IFR landing or takeoff operation each day during a specific hour or 30 minute period at one of the High Density Traffic Airports."  IFR means Instrument Flight Rules and regulates the bulk of commercial airspace and flights.  The FAA has a rule (93.227) that says "any slot not utilized 80 percent of the time over a 2-month period shall be recalled by the FAA."  

The RAA and others were worried that the 80% requirement would be hard and expensive to meet in the current market.  Price competition is already tight, so to make up for rising fuel costs, schedule changes would have to be made.  The 80% requirement would therefore necessitate flights just to keep compliance current so the airlines wouldn't lose their slot.  

This Notice is the published response to the RAA's letter asking for that waiver.  Andrew Steinberg, Chief Counsel of the FAA, denied it.  Thus, the federal government has forced airlines to waste resources.  

[ http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19600.htm ]

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