Midnight Regulations

Here is a rundown of rules and regulations that the Bush administration is pushing through the rulemaking process in its waning days. We will update the list regularly by adding new rules, inserting links to breaking news on each rule, and tracking each rule through the rulemaking process. If you know of other rules we should add to this list, please send us an email here. You can use our tip-sheet to get started on your rules research.

More on Midnight Regulations:

See status legend.

Proposal

Status Proposed Date Topic

VA Proposes Changes to Informed Consent Regulations for HIV Testing

Open to Comment December 29, 2008 Health & Science

Agency: Department of Veterans Affairs

Formal Name: Elimination of Requirements for Prior Signature Consent and Pre- and Post- Test Counseling for HIV Testing

At Issue: Legislation in 2008 repealed provisions that required the Department of Veterans Affairs to obtain written consent before testing a patient for HIV, and to provide pre- and post-test counseling. But because Congress did not explicitly abrogate those requirements, they remain in effect. Through the rulemaking process, the agency now seeks to eliminate the written consent policy — as was recommended generally by the Centers for Disease Control in 2006 — and counseling requirements. The agency argues that these steps impede the testing process, delay diagnosis and heighten the risk of spreading HIV, all of which are contrary to the nation’s public health goals of curbing the disease. The VA also points out that other routine testing it administers requires only oral consent.

RIN: 2900-AN20

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7018

The Proposal

This document proposes to amend the Department of Veterans Affairs (VA) Informed Consent regulations to update requirements concerning testing for Human Immunodeficiency Virus (HIV) so that they are consistent with the Veterans’ Mental Health and Other Care Improvements Act of 2008, which repealed provisions that had been enacted in 2003.

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Public Comments

This rule is open to comment.

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In the News

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Treasury Revises Legal Services Provisions under Terrorism Sanctions Regulations

In Effect December 23, 2008 National Security

Agency: Department of the Treasury

Formal Name: Global Terrorism Sanctions Regulations; Terrorism Sanctions Regulations; Foreign Terrorist Organizations Sanctions Regulations

At Issue: The Office of Foreign Assets Control has expanded the scope of programs that authorize U.S. attorneys to offer specified legal services to individuals whose assets have been blocked by terrorism sanctions regulations and who are detained within the jurisdiction of the United States, and to be reimbursed for the services. The legal services approved by the agency include fighting the detention, the charges for which the client had been detained and the sanctions imposed under the regulations. Because this rule affects only foreign individuals, the agency states in the rule, it was not made available for public comment. It was finalized and made effective on Dec. 23, 2008.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7017

The Proposal

The Office of Foreign Assets Control of the U.S. Department of the Treasury (``OFAC’‘) is amending the Global Terrorism Sanctions
Regulations and the Terrorism Sanctions Regulations to expand the scope of authorizations in each of those programs for the provision of
certain legal services. Similarly, OFAC is amending the Foreign Terrorist Organizations Sanctions Regulations to expand the scope of a
statement of licensing policy concerning payment for certain legal services.

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Public Comments

This rule was not make available for public review.

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In the News

  • We haven’t found any articles about this rule yet. If you find something, please let us know.

SEC Raises Hourly Fees for Processing Records for the Public

Open to Comment December 23, 2008 Secrecy

Agency: Securities and Exchange Commission

Formal Name: The Securities and Exchange Commission is proposing to increase its fees to produce records under the Freedom of Information Act. Depending on the seniority level of the employee retrieving the records, hourly processing fees would range from $26 to $70. Currently, the cost ranges from $16 to $28 per hour.

At Issue: The Securities and Exchange Commission is proposing to increase its fees to produce records under the Freedom of Information Act. Depending on the seniority level of the employee retrieving the records, hourly processing fees would range from $26 to $70. Currently, the cost ranges from $16 to $28 per hour.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7177

The Proposal

The Securities and Exchange Commission (``Commission’‘) is
soliciting comments on a proposed amendment to its regulation governing
the fees for records services. The Commission’s schedule of fees for
records services will be updated using a formula for the calculation of
fees under the Freedom of Information Act (``FOIA’‘) and language that
directs FOIA requesters to the Commission’s Web site. Using a formula,
instead of set rates, will allow the Commission to charge fees that
reflect its allowable direct costs.

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Public Comments

You can comment on this rule by clicking here.

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In the News

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USDA Sets Verification Process for School Lunches and Breakfasts

Finalized December 18, 2008 Education

Agency: Department of Agriculture

Formal Name: Verification of Eligibility for Free and Reduced Price Meals in the National School Lunch and School Breakfast Programs

At Issue: This rule lays out the process for determining whether a child is eligible to receive free or reduced price meals under the National School Lunch Program and the School Breakfast Program. Provisions implemented by this rule include “direct verification” alternatives to allow a school to verify a child’s eligibility and the information on an application by contacting other needs-based programs, such as the Temporary Assistance to Needy Families program, rather than contacting the family directly to request documentation. This should help reduce duplicated efforts and speed up verification. The agency published this as an interim final rule on Dec. 18, 2008, without a notice of proposed rulemaking or offering a public review period. However, there is a 90-day comment period in effect now, and revisions may be made before the rule sheds its “interim” status.To submit a comment, click here.

RIN: 0584-AD61

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6873

The Proposal

When verifying eligibility for free or reduced-price school meals, local educational agencies can first use direct verification and obtain and use income and program participation information from public agencies administering certain programs. The programs are: The Food Stamp Program, the Food Distribution Program on Indian Reservations, State TANF programs, State Medicaid programs, or similar income-tested programs (or other sources of information). In cases in which there are not enough error-prone applications to comply with the options, local educational agencies would be required to randomly select additional applications to fulfill the percentage or number requirement. 2. Requires local educational agencies to complete all verification activities (including required “follow-up” activities) by November 15 of each school year; States may extend this deadline to December 15 under criteria set by the Secretary. It will also require local educational agencies to make appropriate modifications to eligibility determinations based on their verification activities. 3. It also allows local educational agencies to “decline” to verify up to 5 percent of their verification sample and replace the declined applications with other approved applications. 4. Requires that the local educational agency provide written notice to households selected for verification. The notice must include a toll-free phone number that the household can call for assistance with the verification process.

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Public Comments

This interim final rule is open for comment.

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In the News

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Expired Passports, IDs No Longer Accepted for Verifying Employment Eligibility

Finalized December 17, 2008 Business

Agency: Department of Homeland Security

Formal Name: Documents and Receipts Acceptable for Employment Eligibility Verification

At Issue: Citizenship and Immigration Services published an interim final rule on Dec. 17, 2008, that prohibits the use of expired documents when verifying whether a potential employee is eligible to work in the United States, among other changes. The rule will go into effect on Feb. 2, 2009. The draft form of this rule was not available for public review or comment, but the agency is now accepting comments until Feb. 2, 2009, which it will consider before promulgating a final rule. The agency cited a 1998 notice of proposed rulemaking that also proposed eliminated expired forms of identification from the list of acceptable documents and allowed for public comment as its justification for not doing so this time around. (The 1998 rule was not finalized.) It also argued that it is in the public interest to have this rule go into effect as quickly as possible so that the Department of Homeland Security can "stay ahead" of document counterfeiters.

RIN: 1615-AB69

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6876

The Proposal

The Department of Homeland Security is amending its regulations listing the identity and employment authorization documents and receipts that individuals may present to their employers for completion of Form I-9,“Employment Eligibility Verification.” This rule changes the list of documents by: requiring that acceptable documents be unexpired, and eliminating several identity (List B) and employment authorization (List C) documents. A copy of the amended Form I-9 reflecting these changes will be published as an attachment to this rule. The affect of this rule is to improve the integrity of the employment eligibility verification process by simplifying the list of acceptable documents for ease of use by employers, ensuring that the list contains secure and fraud-resistant documents, and adding safeguards to the verification process.

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Public Comments

This interim rule is now accepting public comments.

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In the News

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Homeland Security Seeks to Implement Exemptions to 1974 Privacy Act

Open to Comment December 09, 2008 Business

Agency: Department of Homeland Security

Formal Name: (1) Privacy Act of 1974: Implementation of Exemptions; Immigration and Customs Enforcement Search, Arrest, and Seizure Records; (2) Privacy Act of 1974: Implementation of Exemptions; United States Immigration and Customs Enforcement Confidential and Other Sources of Information; (3) Privacy Act of 1974: Implementation of Exemptions; United States Immigration and Customs Enforcement Law Enforcement Support Center Alien Criminal Response Information Management System; (4) Privacy Act of 1974: Implementation of Exemptions; U.S. Immigration and Customs Enforcement Intelligence Records System (IIRS)

At Issue: On Dec. 9, 2008, the Department of Homeland Security published four proposed rules to implement exemptions permitted under the Privacy Act of 1974. The act requires agencies to maintain a degree of transparency and accessibility by publishing in the Federal Register a description of the types of records they maintain and how these records are used. (For example, under the act an individual may be granted access to any personal records maintained by a particular agency.) An agency wanting to promulgate an exemption must first issue a Notice of Proposed Rulemaking. In this instance, Homeland Security is claiming exemptions for some Immigration and Customs Enforcement records that fall under these categories: search, arrest and seizure records; records that pertain to confidential sources and intelligence; and records that are a part of an information system for immigration status and criminality. According to DHS, these exemptions are necessary to ensure investigations are not compromised and that classified information and confidential sources are adequately protected. But these exemptions may restrict public access to the records of anyone who has been detained or investigated by the agency, possibly removing the layer of protection transparency can offer.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7013

The Proposal

The Department of Homeland Security (DHS) is giving concurrent notice of a revised and updated system of records pursuant to the Privacy Act of 1974 for the Immigration and Customs Enforcement (ICE) Search, Arrest, and Seizure Records system of records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. The exemptions for the legacy system of records notices will continue to be applicable until the final rule for this SORN has been completed.

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Public Comments

These proposals are open for comment. Click on the rule to submit a comment:

(1) Privacy Act of 1974: Implementation of Exemptions; Immigration and Customs Enforcement Search, Arrest, and Seizure Records; (2) Privacy Act of 1974: Implementation of Exemptions; United States Immigration and Customs Enforcement Confidential and Other Sources of Information; (3) Privacy Act of 1974: Implementation of Exemptions; United States Immigration and Customs Enforcement Law Enforcement Support Center Alien Criminal Response Information Management System; (4) Privacy Act of 1974: Implementation of Exemptions; U.S. Immigration and Customs Enforcement Intelligence Records System (IIRS)

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In the News

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Energy Department Raises Bar for FOIA Documents, and Their Price

Open to Comment December 09, 2008 Secrecy

Agency: Department of Energy

Formal Name: Energy Department Revises Its Freedom of Information Act Policy

At Issue: The Energy Department is proposing to amend its procedure for releasing documents under the Freedom of Information Act, and to raise its rate for reproduction of documents to 20 cents per page for both paper-to-paper copies and for microform-to-paper copies. Currently, the price is 5 cents and 10 cents per page, respectively. The agency also refers to other changes that will appear in the final rule, but will not be made available for public review and comment. Of particular concern is the proposed elimination of the “public interest” balancing test. This provision, the agency states in the rule, requires the agency to release documents otherwise legally exempt under FOIA and creates an administrative burden for employees. Moreover, the DOE says removing the test will not affect the decision to withhold information; it will only eliminate an onerous step in the FOIA process. As for that price increase? The DOE points out that other cabinet departments charge that much, too.

RIN: 1901-AA32

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6874

The Proposal

The Freedom of Information Act (FOIA), as amended, permits any person to request access to agency records. DOE has promulgated a regulation at part 1004 of title 10 of the Code of Federal Regulations to implement the FOIA. DOE will revise its FOIA regulations to reflect current procedures for processing requests for information that are submitted to the Agency, to ensure compliance with the Electronic Freedom of Information Act Amendments of 1996, and to make the regulation more user friendly.

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Public Comments

This rule is still open for comment. Click here to comment on this rule.

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In the News

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EPA Narrows Definition of ‘Navigable Waters’

In Effect November 26, 2008 Environment

Agency: Environmental Protection Agency

Formal Name: Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule; Revisions to the Regulatory Definition of "Navigable Waters"

At Issue: The Clean Water Act forbids the discharge of oil in "harmful quantities" into navigable waters — but what qualifies as navigable has been a slippery subject. In March, the U.S. District Court for the District of Columbia overturned revisions made in 2002 to the definition, and restored it to its 1973 iteration. The Environmental Protection Agency returns now to set in cement the 1973 definition, which excludes from protection some marshes, streams and other small or seasonally-affected bodies of water. Among the other controversies surrounding this rule is the agency's decision to cite "good cause" under the Administrative Procedures Act to issue an immediately effective final rule without a public comment period. This rule, critics say, is one of several blows to the Clean Water Act during the Bush administration. We listed another rule that offered guidance on jurisdiction of navigable waters in our Midnight Regulation chart.

RIN: 2050-AG48

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6718

The Proposal

EPA is developing a final rule to amend a Clean Water Act (CWA) section 311 regulation that defines the term “navigable waters.” On July 17, 2002, EPA promulgated a final rule that included revisions to the definition of “navigable waters” in the Spill Prevention, Countermeasure and Control (SPCC) regulation. On March 31, 2008, the United States District Court for the District of Columbia (D.D.C.) in American Petroleum Institute v. Johnson, 571 F.Supp.2d 165 (D.D.C. 2008), invalidated the revisions to the definition of “navigable waters” and restored the regulatory definition of “navigable waters” promulgated by EPA in 1973. EPA plans to amend the definition of “navigable waters” in part 112 to comply with that decision.

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Public Comments

No solicitation of public comments.

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In the News

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Snowmobile Use in National Parks Remains an Issue

Closed to Comment November 05, 2008 Environment

Agency: Department of the Interior

Formal Name: Special Regulations; Areas of the National Park System

At Issue: A late-night rule change by the Clinton administration banned the use of snowmobiles in Yellowstone National Park, Grand Teton National Park and the John D. Rockefeller Jr. Memorial Parkway, but the Bush administration delayed implementation. A 2004 court decision vacated the Clinton rule, and the Bush administration promulgated a temporary rule while a final plan was drafted. In 2007, the Interior Department issued a new rule for the use of snowmobiles, capping the number allowed at 540 per day. This rule was challenged by many environmental groups and ultimately thrown out by the court in September 2008. A Wyoming court order in November reinstated the 2004 temporary rule for the three parks, which allows 720 snowmobiles per day for Yellowstone and 140 for the other two. All snowmobiles are subject to air emissions and sound requirements. The latest proposed rule will continue to allow snowmobiles, but lowers the daily cap for Yellowstone National Park to 318. The department argues that this number is well below the threshold for what would cause an adverse environmental impact. Critics, including more than 80 members of Congress from both sides of the aisle, believe snowmobile use should be prohibited, and point to the agency’s own studies that indicate a negative impact on the health and safety of visitors and wildlife.

RIN: 1024-AD73

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6881

The Proposal

The National Park Service is proposing this rule to manage winter visitation and recreational use in Yellowstone National Park for an interim period of three winter seasons commencing with the 2008-2009 season. The proposed rule would also establish the framework for the long-term management of winter use in Grand Teton National Park and the John D. Rockefeller, Jr., Memorial Parkway. This proposed rule would require that most recreational snowmobiles and snowcoaches operating in the parks meet certain air and sound requirements, and that snowmobilers in Yellowstone be accompanied by a commercial guide. It also proposes daily entry limits on the numbers of snowmobiles and snowcoaches that may enter the parks. Traveling off designated oversnow routes will remain prohibited.

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Public Comments

No public comments posted at this time.

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In the News

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Feds and States at Odds Over Bighorn Sheep Rule

Unknown November 01, 2008 Environment

Agency: Department of Agriculture

Formal Name: Habitat Planning and Evaluation, Bighorn Sheep vs Domestic Sheep

At Issue: The Agriculture Department has stepped in with a directive for managing bighorn sheep when the potential exists for interaction with domestic sheep, which can introduce disease to an already fragile bighorn sheep population. The new policy calls for all bighorn sheep to be quarantined and tested for disease before they can be relocated across state lines; the wild sheep are moved by state wildlife agencies as a protective measure. Western environmentalists and state wildlife managers have cried out against the rule. The states, not the federal government, should have jurisdiction over the management of the wild sheep, they say. The agency argues that the states’ current protocol is not effective – diseases continue to crop up among the wild sheep. State officials fear the USDA’s plan will significantly slow down the relocation process, and fear the extended captivity would harm the sheep’s health. They have also criticized the rule for being “industry friendly.” Ranchers say there is no scientific evidence that domesticated sheep are the cause of disease among bighorns, and have expressed hope the federal policy will slow down relocation efforts and leave more open space for domestic sheep.

RIN: 0596-AC72

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6899

The Proposal

A new policy will be included in the FSM 2620 chapter to provide guidance on management of native bighorn sheep if there is a potential to interact with domestic sheep. The guidance will outline procedures to design and implement collaborative processes to resolve potential management conflicts between native bighorn sheep and domestic sheep where contact and interaction between the two species may occur. The policy will identify possible participants in the collaborative process including livestock permittees, State Fish and Game and Agriculture agencies, sheep scientists, and relevant Forest Service wildlife and range personnel, and U.S. Fish and Wildlife Service employees if threatened or endangered species are involved. The policy will identify information necessary to bring the collaborative process to design agreeable solutions when there are probable conflicts. Justification for Proposed Action (Market Failure or Other Problem Addressed, Objectives, Alternatives, Expected Results): There is currently no Agency policy providing guidance on resolving conflicts between native bighorn sheep and domestic sheep. Scientific evidence suggests that when bighorn sheep come into contact with domestic sheep significant mortality among native bighorns is likely to occur.

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Public Comments

n/a

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In the News

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Interior Department Dithers on Taking Northern Rocky Mountain Gray Wolf Off Endangered List

Closed to Comment October 28, 2008 Environment

Agency: Department of the Interior

Formal Name: Endangered and Threatened Wildlife and Plants; Designating the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment (DPS) and Delisting This DPS

At Issue: In February 2008, the U.S. Fish and Wildlife Service issued a rule removing from the federal list of Endangered and Threatened Wildlife the population of gray wolves that live in the Northern Rocky Mountains. This rule was challenged by a number of conservation groups before the U.S. District Court for the District of Columbia, and ultimately vacated by the U.S. District Court for the District of Montana upon request by the Fish and Wildlife Service. On Oct. 28, 2008, the agency reopened the comment period for its initial rule and agreed to reconsider delisting the gray wolf. Though there were indications from an FWS official that the gray wolf would once again be delisted before the end of the year, the agency has not yet finalized a new rule.

RIN: 1018-AW37

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7012

The Proposal

As the result of the U.S. District Court for the District of Montana vacating our February 27, 2008, final rule (73 FR 10514) on October 14, 2008, we are reopening the comment period on our February 8, 2007, proposed rule (72 FR 6106). We will issue a new listing determination.

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Public Comments

The Fish and Wildlife Service must develop a complete and comprehensive national recovery plan for wolves in the lower-48 states to ensure coordinated, consistent management guidelines and a truly recovered and restored U.S. wolf population.

I urge you to delay removing federal protection for the wolves until a national recovery plan is in place. As part of that plan, all three Northern Rockies states need to have management plans that ensure these magnificent animals will thrive for generations to come. -excerpt from a letter signed by a group of citizens

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In the News

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Labor Rule Protects Privacy of Contract Construction Workers

Finalized October 20, 2008 Business

Agency: Department of Labor

Formal Name: Protecting Privacy of Workers on Payroll Report Forms Under the Davis-Bacon and Related Act

At Issue: The Department of Labor issued a final rule on Dec. 19, 2008, intended to protect the privacy of employees who work under on construction projects covered under the Davis-Bacon and Related Acts and the Copeland Anti-Kickback Act by reducing the reporting requirements. Specifically, contractors are no longer required to include home addresses and complete Social Security numbers when submitting payroll information to the government. The agency received a number of comments in opposition to this rule, including concerns that if this information is unavailable to contractors, it could open the door to the underpayment of wages or lead to the misclassification of workers or illegal kickbacks. This rule goes into effect on Jan 18.

RIN: 1215-AB67

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7335

The Proposal

The Department of Labor will revise the regulations issued under the Davis-Bacon and Related Acts and the Copeland “Anti-Kickback” Act to better safeguard personally identifiable information by removing employees’ Social Security numbers and home addresses from the information that contractors and subcontractors submit each week to contracting agencies in certified payroll reports covering laborers and mechanics working on construction contracts subject to the labor standards of the Davis-Bacon and Related Acts.

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Public Comments

The Sheet Metal Workers’ International Association strongly opposes the proposal to eliminate the requirement that contractors and subcontractors must provide government agencies with the addresses and social security numbers of workers whose wages and fringe benefits are reported weekly on federal or federally-assisted construction projects on the certified payroll reporting form (WH Form 347).  Only DOL can bring an action to collect underpaid wages.  The certified payroll reports are needed by Wage & Hour and contracting agencies to determine if there have been underpayment of wages, misclassification of workers, fringe benefit abuse and illegal kickbacks on federal construction projects. -Patrick J. Riley, counsel for the Sheet Metal Workers’ International Association

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In the News

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EPA Won’t Regulate a Contaminant in Drinking Water

Closed to Comment October 10, 2008 Health & Science

Agency: Environmental Protection Agency

Formal Name: Drinking Water: Preliminary Regulatory Determination on Perchlorate

At Issue: Perchlorate is a chemical component of rocket fuel that can contaminate water both naturally and, more frequently, through improper disposal at rocket test sites, military bases and chemical plants. Cleaning it up would cost billions of dollars. But the contaminant has been linked to thyroid problems in young children, pregnant woman and newborns, leaving critics concerned for the developmental health of those most vulnerable to the chemical's effects.

RIN: 2040–ZA02

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5844

The Proposal

This action presents EPA’s preliminary regulatory determination for perchlorate in accordance with the Safe Drinking Water Act (SDWA). The Agency has determined that a national primary drinking water regulation (NPDWR) for perchlorate would not present ‘‘a meaningful opportunity for health risk reduction for persons served by public water systems.’’

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Public Comments

The maximum safe level for perchlorate in drinking water is now 15 times higher than what was declared safe in 2002. Under this new standard, more than 16 million Americans are exposed to unsafe levels of perchlorate in their drinking water, and independent analysis shows anywhere from 20 to 40 million Americans at risk. Perchlorate has been found in the drinking water in 35 states in the U.S. This chemical has been linked to thyroid problems in vulnerable populations of newborns, young children and pregnant women. The relaxation of this standard is harmful to public health. -Irene Mehlos, St. Francis Xavier Social Concerns Committee

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In the News

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Uranium Mining Permits Near Grand Canyon Could Increase

In Effect October 10, 2008 Environment

Agency: Department of the Interior: Bureau of Land Management

Formal Name: Land Withdrawals; Removal of Regulations Covering Emergency Withdrawals

At Issue: The Bureau of Land Management proposed a rule that would prevent Congress from slowing a flood of uranium mining permits being issued near the Grand Canyon.

RIN: 1004-AE05

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5762

The Proposal

This proposed rule would remove regulations that provide for emergency withdrawals. These regulations are redundant, since public lands can be protected without substantial delay via conventional withdrawal procedures, without recourse to the regulations providing for
emergency withdrawals. Moreover, constitutional issues may arise whenever a Congressional committee directs the Secretary of the Interior (Secretary) to withdraw lands immediately.

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Public Comments

We are writing to you in opposition to your proposed rule change, eliminating the existing regulations that provide for the emergency withdrawal of lands recently endorsed by Congressman Raul Grijalva (AZ) for the withdrawal of uranium exploration and drilling on one million acres surrounding Grand Canyon National Park. Your misguided proposal is short sighted, unprecedented, and obviously on behalf of out-of-state financial interests and not that of local citizens. -Lisa Berkson and Steve Bokenkamp, citzens

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In the News

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Regulations on Genetically Engineered Plants Could Change

Closed to Comment October 09, 2008 Environment

Agency: Department of Agriculture

Formal Name: Introduction of Organisms and Products Altered or Produced Through Genetic Engineering

At Issue: The Dept. of Agriculture seeks to revise the current regulations for the transportation, implementation and environmental release of genetically engineered plants and other organisms. The new regulations would better conform to the guidelines of the Plant Protection Act, which seeks to, among other goals, combat the risk that noxious weeds and other plant pests could be introduced into the environment and spread. The revisions are the first significant ones to the regulations since 1987, and take into account technological advances in genetic engineering. Proposed changes include allowing a designated person "responsible" for a particular genetically engineered organism to determine whether it poses a risk to the environment and needs regulation; modifications to the information required on permit applications; and a new procedure that would allow the Animal and Plant Health Inspection Service to approve conditional exemptions for permits when crossing state lines with genetically engineered plants rather than using notice and comment rulemaking for individual exemptions. The Center for Food Safety criticized the agency for failing to draft a rule that would better protect the health of the public and the environment.

RIN: 0579-AC31

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6225

The Proposal

[Animal and Plant Health Inspection Service] is considering changes to its regulations regarding the importation, interstate movement, and environmental release of genetically engineered organisms. We are seeking public comment on the regulatory alternatives we have identified through scoping and on the draft environmental impact statement (DEIS) we have prepared relative to those alternatives. This notice reflects the Agency’s current thinking on policy and program design issues affecting our biotechnology programs. The DEIS evaluates the alternatives we have identified so far in terms of their potential effects on the human environment compared to our current regulatory program.

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Public Comments

We are concerned with the potential impact of the elimination of the notification process.  As APHIS acknowledges the notification process has streamlined the administrative procedures for those eligible genetically engineered plants.  The notification processes and procedures allow for the timely implementation of research projects and programs. The use of performance-based standards in the notification process allows research institutions to achieve full compliance in the manner best suited to each unique research project and institution.  Without more compelling evidence of non-compliance, we are not persuaded that APHIS inspectors’ frustration with specificity and documentation are sufficient reasons to make this change in the regulations.

Our principal concern is the length of time the permit process will take in comparison with the current notification mechanism.  - Anthony P. DeCrappeo, president, Council on Governmental Relations

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In the News

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Motorcycle Helmet Rule Could Improve Safety But Supersede State Law

Closed to Comment October 02, 2008 Health & Science

Agency: Department of Transportation

Formal Name: FMVSS No. 218, Motorcycle Helmets Upgrade

At Issue: The National Highway Traffic Safety Administration is proposing significant improvements to the safety requirements of motorcycle helmets. Also in the rule are provisions to aid state and local police enforce compliance with NHTSA requirements, including the clamping down on helmets that do not actually have the NHTSA safety seal of approval (though they may appear to), known as novelty helmets. But the American Association for Justice, a trial lawyers group, is not quite so enthusiastic about language included that pre-empts state tort law. This clause, the group says, would prevent consumers from suing helmet manufacturers who have met NHTSA's minimum safety standards.

RIN: 2127-AK15

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6590

The Proposal

This rulemaking would upgrade FMVSS No. 218 to revise the labeling requirements to reduce the use of counterfeit certification labels for novelty helmets. Various other standards maintenance and improvements for enforceability of the existing requirements would also be included in the upgrade.

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Public Comments

As a Trauma Nurse Coordinator at a 600 bed, Level II trauma facility in Eastern Washington state, I have had numerous occasions to deal with patients who have had an inadequate helmet and have been involved in a motorcycle crash. Unfortunately, patients with these types of helmets suffer significant brain trauma. While I understand the arguments put forward by organizations such as ABASH, I applaude the DOT for proposing to close the loop hole that allows inadequate helmets to bear stickers that IMPLY DOT certification, thus luring a unsuspecting MC rider into choosing an inadequate helmet. -Michael W.  Day, citizen

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In the News

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FDA Rule Would Cover Genetically Engineered Meat and Milk

Closed to Comment September 19, 2008 Environment

Agency: Food and Drug Administration

Formal Name: Guidance for Industry: Regulation of Genetically Engineered Animals Containing Heritable rDNA Constructs

At Issue: The draft guidelines proposed by FDA establish an approval process for the marketing of genetically modified meat and animal products--examples include farmed salmon engineered to grow faster and pigs with modified genes that make their manure more environmentally friendly. Under the new regulations, animals that have been genetically modified must obtain agency approval before commercialization -- much like a new drug. But this rigorous review would largely take place behind closed doors and not all genetically engineered modified food would carry labels disclosing its origins, and critics say consumers deserve more information about the food they eat.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6230

The Proposal

The Food and Drug Administration (FDA) is announcing the
availability of a draft guidance document (GFI187) entitled
``Regulation of Genetically Engineered Animals Containing Heritable
rDNA Constructs.’’ This draft guidance is intended to clarify FDA’s
requirements and recommendations for producers and developers of
genetically engineered (GE) animals and their products. The draft
guidance describes how the new animal drug provisions of the Federal
Food, Drug, and Cosmetic Act (the act) apply with respect to GE
animals, including FDA’s intent to exercise enforcement discretion
regarding requirements for certain GE animals.

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Public Comments

A second problem is lack of transparency.  FDA has decided to regulate all genetically engineered animals under the New Animal Drug provisions of the Food Drug and Cosmetic Act, arguing that the rDNA construct inserted into the animal’s genome is a drug.  This is an important and positive step, although we do have specific comments on the kind of safety data that should be required, which we discuss below.  However, the down side of using the New Animal Drug provisions of the FDCA is that there is not enough transparency.  Virtually all the safety data may remain confidential until after the GE animal is approved.  -Michael Hansen, PhD, senior scientist, Consumers Union

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New Accident-Reporting Regulation for Railroads

Open to Comment September 09, 2008 Business

Agency: Department of Transportation

Formal Name: Miscellaneous Amendments to the Federal Railroad Administration's Accident/Incident Reporting Requirements

At Issue: The Federal Railroad Administration seeks to revise current regulations on reporting accidents. Its modifications, the agency says, would resolve ambiguities and better ensure the integrity of information made available for analysis of railroad casualties. It would also allow for the collection of suicide data. This rule contains pre-emptive language saying that, with respect to certain railroad safety matters, FRA's authority will continue to supersede that of the Occupational Safety and Health Administration. The adoption of these regulations would also continue to pre-empt states from imposing their own accident and incident reporting requirements.

RIN: 2130-AB82

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6600

The Proposal

The Federal Railroad Administration (FRA) proposes to amend its accident/incident reporting regulations to, among other things, conform certain definitions to those set forth in 49 U.S.C. 20102, as amended; incorporate provisions allowing for consolidated accident/incident reporting by integrated railroad systems; allow for the collection of suicide data; clarify ambiguous regulations, and enhance the quality of information available for railroad casualty analysis. In addition to proposing revisions to its regulations in the Code of Federal Regulations (CFR), FRA is proposing revisions to its Guide for Preparing Accident/Incident Reports (FRA Guide) and to certain applicable forms.

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Public Comments

The proposed rule appears to improve accuracy and allow more detailed analysis of railroad incident reports. As suggested by the [Federal Railroad Administration] in this Notice of Proposed Rulemaking, the [California Public Utilities Commission] believes the proposed amendments may allow it to better identify and prioritize railroad safety hazards throughout the state. Consequently, the CPUC generally supports the FRA’s effort to modify the railroad incident reporting requirements. -Patrick S. Berdge, attorney for the CPUC

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In the News

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Labor Moves to Expand Anti-Drug Policies for Miners

Closed to Comment September 08, 2008 Business

Agency: Department of Labor

Formal Name: Alcohol- and Drug-Free Mines: Policy, Prohibitions, Testing, Training, and Assistance

At Issue: The Mine Safety and Health Administration has proposed amendments to the existing guidelines prohibiting the use and possession of drugs and alcohol by mine employees in "safety sensitive" positions while on mine property. The new rule would also expand the number of miners who would be subject to drug testing. Those who fail would be removed from their "safety sensitive" job duties until they complete the recommended drug or alcohol rehabilitation, and would be required to take a drug test upon their return to duty. The MSHA believes its new regulation will help improve mine safety. But mine operators and industry groups contend it will weaken employer-implemented anti-drug policies. Some also view it as a chilly parting gesture from an otherwise industry-friendly administration.

RIN: 1219-AB41

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5913

The Proposal

The Mine Safety and Health Administration (MSHA) will hold a public hearing on its proposed rule to amend the existing metal and nonmetal standards for the possession and use of intoxicating beverages and narcotics and make the new standard applicable to all mines. The
proposed rule would also require those who violate the prohibitions to be removed from the performance of safety-sensitive job duties until they successfully complete the recommended treatment and their alcohol- and drug-free status is confirmed by a return-to-duty test.

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Public Comments

As with many well intentioned but one-size-fits-all regulations, this proposal undoubtedly has a place at mines that hire a large number of people from an even larger pool of applicants. However, it imposes an unfair burden on small miners and contractors who have few employees and are very selective in choosing those employees. Unlike a large mine, where individual shortcomings and unsafe behavior can be easily overlooked, the small mine depends on an intimate working relationship between the miners that is self-policing. Anyone with a drug or alcohol habit that affects his/her work, and the safety of others, will be corrected or discharged. The cost of drug testing would be onerous in both direct cost and lost time. -Larry Hoffman, Blue Range Engineering Co., Inc.

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OSHA Provides Guidelines to Assess Risk of Chemicals in the Workplace

Closed to Comment August 29, 2008 Health & Science

Agency: Department of Labor: Occupational Safety and Health Administration

Formal Name: Requirements for DOL Agencies’ Assessment of Occupational Health Risks

At Issue: The agency wants to establish formal regulations and internal guidelines for determining the risk of exposure to toxic substances in the workplace. Although the rule calls for more transparency in how OSHA assesses risk, The Washington Post reported in July that the agency has been accused of drafting this rule behind closed doors and of taking a position that is too friendly to business.

RIN: 1290-AA23

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5756

The Proposal

The Department of Labor is proposing requirements for its Agencies to follow when preparing risk assessments in conjunction with the development of health standards governing occupational exposure to toxic substances and hazardous chemicals. The proposed rule requires DOL agencies to follow a consistent, reliable, and transparent set of procedures when conducting risk assessments, outlines the components that should be included in a risk assessment, and provides for improved public access to rulemaking information.

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Public Comments

There is extensive evidence regarding ongoing harm to workers from inadequately regulated chemicals and the economic toll that takes on our country.*  The DOL proposal would incur a greater toll, leaving workers unprotected for longer time periods. The workplace exposure limits for carcinogens are a clear example, with outdated exposure limits that incur risks far in excess of de minimis.  At the individual level,  patients suffer unnecessarily from asbestos-related illnesses due to regulatory delays.-Kathleen M. Burns, Ph.D.
Director, Sciencecorps, and Michael R. Harbut, MD, MPH, FCCP, CoDirector, National Center for Vermiculite and Asbestos-Related Cancers, Karmanos Cancer Institute, Wayne State University, Chief, Center for Occupational and Environmental Medicine

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Federally Funded Institutions Could Turn Down Abortion Requests for Moral or Religious Reasons

In Effect August 26, 2008 Health & Science

Agency: Health and Human Services

Formal Name: Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law

At Issue: Described by HHS as a safeguard to protect the "conscience rights" of health care providers, federally funded health institutions would be required to certify they will allow employees to refuse to provide services that they find morally reprehensible or at odds with their religious principles. Should the institution refuse to comply, it risks losing funding. Critics fear the rule will limit a woman's access to federally funded reproductive health services.

RIN: 0991–AB48

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5761

The Proposal

The Department of Health and Human Services proposes to promulgate regulations to ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law, pursuant to the Church Amendments (42 U.S.C. 300a–7), Public Health Service (PHS) Act § 245 (42 U.S.C. 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. 110–161, § 508(d), 121 Stat. 1844, 2209).

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Public Comments

Undoubtedly, the women who will be hit the hardest by these regulations will be the most vulnerable in our society. Many low-income women rely on federally-funded hospitals and clinics and cannot afford to shop around for healthcare providers. By expanding both the types of workers who can refuse services, and the range of services which can be denied, the government will be restricting access to health services for those who already face significant barriers in accessing basic healthcare. -Laurie Campbell, citizen

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DOL Addresses Conflicts of Interests in the Pension Protection Act

OMB Review August 22, 2008 Business

Agency: Department of Labor

Formal Name: Prohibited Transaction Exemption for Provision of Investment Advice to Participants in Individual Account Plans

At Issue: This rule would amend the Pension Protection Act of 2006, which allows employees of financial institutions to provide investment advice to people with individual investment accounts, such as IRAs and 401(k)s, even if the consultants have a financial interest in the advice. Among other changes, the rule would require advisers to disclose to their clients any fees they may receive in connection with the investment options. The DOL says the rule will allow millions more Americans to receive valuable advice. But opponents fear the advisers’ interests could still trump those of investors at a time when American workers and retirees are seeing their savings nosedive.

RIN: 1210-AB13

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5758

The Proposal

Section 601 of the Pension Protection Act (Pub. L. 109-280) amended ERISA by adding new sections 408(b)(14) and 408(g). Section 408(b)(14) is a prohibited transaction exemption that permits the provision of investment advice to participants or beneficiaries of certain individual account plans if the investment advice is provided under an “eligible investment advice arrangement,” as defined in section 408(g). In order to qualify as an “eligible investment advice arrangement,” the arrangement must either provide that any fees received by the adviser do not vary depending on the basis of any investment options selected, or use a computer model under an investment advice program that meets the criteria set forth in section 408(g) in connection with the provision of investment advice.

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Public Comments

[I]f the Department proceeds with the proposed class exemption in its current condition, the Clinic encourages the Department [of Labor] to consider significant penalties to deter manipulation by investment advisers. The Clinic feels that due to the malleable standards promulgated under this proposed class exemption, investment advisers have significant room to justify misleading information, and thus, to preserve the integrity of the system and encourage confidence of investors, the Department should counteract that tendency by providing for severe penalties for noncompliance. -William A. Jacobson, Director Securities Law Clinic, Cornell Law School and Skyler Tanner, student, Cornell Law School

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The Interior Department Could Approve Construction Projects with Less Concern for Protected Species

In Effect August 15, 2008 Environment

Agency: Department of the Interior

Formal Name: Interagency Cooperation Under the Endangered Species Act

At Issue: The Department of the Interior wants to allow agencies to make their own determination of whether a development project, such as highway or dam construction, would significantly harm protected species, rather than relying on extensive scientific review as they have done previously. The DOI said this will eliminate or reduce cumbersome consultations in situations where the effects “are so inconsequential, uncertain, unlikely or beneficial that they are, as a practical matter, tantamount to having no effect on listed species or critical habitat.” Critics worry about giving so much discretion to federal agencies that may lack scientific expertise.

RIN: 1018-AT50

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5759

The Proposal

The Fish and Wildlife Service and the National Marine Fisheries Service will revise the definition of “destruction or adverse modification” in 50 CFR 402.02. The proposed changes would better align this definition with legislative history. Previously, the regulations defined “destruction or adverse modification” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both survival and recovery of a listed species.” The substance of the definition has been altered as a result of several Circuit court cases, which have found the current definition to be invalid.

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Public Comments

This week, the interior secretary, Dirk Kempthorne, proposed a regulatory overhaul of the act that would eliminate the requirement for independent scientific reviews of any project that could harm an endangered species living on federal land. Instead, federal agencies would decide on their own whether the projects -including construction of highways and dams - pose a threat and then move ahead if they determine there is no problem. -Lawrence Turk, citizen

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Changes Proposed to Jobs Program for Low-Income Older Adults

Closed to Comment August 14, 2008 Business

Agency: Department of Labor

Formal Name: Senior Community Service Employment Program

At Issue: The Department of Labor wants to finalize revisions to its Senior Community Service Employment Program, which gives older adults (55 years old and up) paid work experience at public or nonprofit agencies. The changes include implementing a 48-month cap on participation in the program, with a provision that would allow for a one-time 12-month extension, and an increase in the portion of the funds that can be used for training and support services. The DOL says the changes will open the program to more people. But critics believe the revisions shift the emphasis from subsidized employment, which includes support services so older adults can maintain self-sufficiency and independence, to placing program participants in the general workforce.

RIN: 1205-AB48

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6155

The Proposal

The Older Americans Act Amendments of 2006, Pub. L. 109-365, enacted on October 17, 2006, contains provisions amending title V of that Act, which authorizes the Senior Community Service Employment program (SCSEP). The Amendments, effective July 1, 2007, make substantial changes to the current SCSEP provisions in the Older Americans Act, including new requirements relating to performance accountability, income eligibility for program participation, competition of national grants, and services to participants. This proposed NPRM consists of 8 subparts: subpart A—Definitions; Subpart B—Coordination with the Workforce Investment Act; subpart C—the State Plan; subpart D—Grant Application, Eligibility, and Award Requirements; Subpart E—Services to Participants; subpart F—Pilots, Demonstration, and Evaluation Projects, subpart H—Administrative Requirements; and subpart I—Grievance Procedures and Appeals Process. The performance accountability requirements (subpart G) will be implemented through a separate Interim Final Rule (IFR).

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Public Comments

I recently learned about proposed regulations to SCSEP that concern me. As a provider of SCSEP services in San Luis Obispo, CA, I am aware of several individuals that will be devastated if they are forced to leave the program before finding unsubsidized employment.
One individual is a 75-year-old woman with a hearing impairment struggling to help support a daughter with mental illness. Her name is Esther and she is currently serving at our local One-Stop Career Center. While there, Esther has helped numerous other people navigate the Employment Services system and has even helped a number of them secure jobs, but she has been unable to find employment for herself. -Aline Graham, VP/Director, PathPoint San Luis Obispo

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In the News

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HUD Tightens Rules for Responding to Requests for Documents or Testimony

In Effect August 12, 2008 Secrecy

Agency: Department of Housing and Urban Development

Formal Name: Public Access to HUD Records Under the Freedom of Information Act (FOIA) and Production of Material or Provision of Testimony by HUD Employees

At Issue: The Department of Housing and Urban Development tweaked its guidelines for how and when employees may respond to requests for testimony or documents. Neither may occur without official HUD approval. In addition, under the new rule, the agency expanded the number of people within HUD's Office of General Counsel who are permitted to grant approval for the release of documents or to authorize an employee to testify. The agency also revised the criteria for determining whether information is appropriate to disclose.

RIN: 2501-AD39

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5888

The Proposal

This proposed rule would modify HUD’s policies and practices regarding responses to subpoenas and other demands for testimony of HUD employees or for production of documents by HUD. This proposed rule would delegate authority to additional officials within HUD’s Office of General Counsel who would revise the criteria used to evaluate such demands. Finally, this rule would eliminate unnecessary provisions covering HUD’s response to demands in cases in which the United States is a party to the case in which testimony or documents are requested.

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Public Comments

These proposed rules misstate the law and are contrary to the Congressional intent of the Freedom of Information Act and the notion of transparent government that it arose from.  These proposed regulations furthermore offend the Constitution by seeking to elevate HUD, as a department of the executive branch, above the judicial branch.  These proposed regulations can and should be replaced with a simple requirement that such information will not be produced without a properly issued subpoena to the properly designated federal official, and that all information will be produced unless subject to a broadly recognized right of privilege. - Margaret F. Turner and Michael Motta, Boston Tenant Coalition

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Revisions to TANF Could Cut Funding to Families in Need

Unknown August 08, 2008 Government & Politics

Agency: Department of Health and Human Services

Formal Name: Elimination of Enhanced TANF Caseload Reduction Credit for Maintenance of Effort Expenditures

At Issue: Under the Temporary Assistance for Needy Families program, states are required to reduce their caseload--and get people receiving aid into the workplace--by a certain percent each year. But if states spend more money than required on benefits and services for needy families, called “maintenance of effort” expenditures, they receive credit toward their caseload. This rule would eliminate that credit. HHS says the credit is no longer necessary because, among other reasons, states have significantly reduced their caseloads and operate successful programs without spending more than their MOE requirements. But critics, including members of Congress and governors, fear that eliminating the credit incentive means less money will be available to disadvantaged families.

RIN: 0970-AC38

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5881

The Proposal

This proposed rule will revise Temporary Assistance for Needy Families program regulations to eliminate the provision that allows a State to receive additional caseload reduction credit for maintenance-of-effort (MOE) expenditures in excess of its required MOE spending. This provision is no longer necessary and not consistent with Congressional direction in the Deficit Reduction Act of 2005.

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Public Comments

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Law Enforcement Would Get Greater Surveillance Authority

Closed to Comment July 30, 2008 National Security

Agency: Department of Justice

Formal Name: Criminal Intelligence Systems Operating Policies

At Issue: The Department of Justice updated its regulations for surveillance systems that fall under the Omnibus Crime Control and Safe Streets Act in light of technological advances, and expanded its authority to investigate suspected domestic criminal activity in the interest of public safety. The rule is also intended to increase intelligence sharing amongst the various federal agencies. Critics fear the powers are too broad and feel the rule violates the civil liberties of U.S. citizens.

RIN: 1121-AA59

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5826

The Proposal

The purpose of this regulation is to assure that all criminal intelligence systems operating through support under the Omnibus Crime Control and Safe Streets Act of 1968 are used as authorized by law. This revision of 28 CFR part 23 updates the regulation for modern technological advances, and extends the use of criminal intelligence systems for public safety purposes.

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Public Comments

We urge the Department of Justice to withdraw this proposed rule in the interest of ensuring that collected and saved intelligence data is useful, accurate, and timely. As drafted, the proposed rule unduly expands the perception of the scope of information that can, and should, be gathered regarding the activity of law-abiding citizens, and requires the information to be stored, without review or re-validation, for an unjustified period of time. -Patrice McDermott, OpentheGovernment.org

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New Revisions for the Fair Labor and Standards Act

Closed to Comment July 28, 2008 Business

Agency: Department of Labor

Formal Name: Amendments to the Fair Labor Standards Act

At Issue: The Department of Labor seeks to update regulations related to the Fair Labor Standards Act, which establishes standards for minimum wage, overtime pay, maximum work hours, etc. Some of the regulation has become outdated due to recent legislation and court decisions; this new rule aims to reflect those changes, including changes to the minimum wage and to exemptions from minimum-wage requirements.

RIN: 1215-AB13

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5903

The Proposal

In this proposed rule, the Department of Labor (Department or DOL) proposes to revise regulations issued pursuant to the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947 (Portal Act) that have become out of date because of subsequent legislation or court decisions. These proposed revisions will conform the regulations to FLSA amendments passed in 1974, 1977, 1996, 1997, 1998, 1999, 2000, and 2007, and Portal Act amendments passed in 1996.

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Public Comments

Disappointingly, these regulations convey clearly a picture of a Department of Labor (“Department”) which has lost touch with its core mission: to protect and defend the rights of hard-working Americans to full and complete payment of the minimum wages guaranteed them under the FLSA. Rather than seeking to protect workers’ rights to the federal minimum wage—which still does not represent a wage which would put the worker about the federal poverty level—these draft regulations reveal an intent to diminish the hourly compensation through any means possible. -Janet Herold, associate general counsel, Service Employees International Union

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Areas of Colorado Wilderness May Lose Protection

Closed to Comment July 25, 2008 Environment

Agency: Department of Agriculture

Formal Name: Special Areas; State-Specific Inventoried Roadless Area Management: Colorado

At Issue: The U.S. Forest Service and the state of Colorado are collaborating to draft a management plan for Colorado's roughly 4.4 million acres of roadless areas. Under the proposed plan, exceptions would be made in otherwise protected areas to build temporary roads for wildfire prevention, to expand existing coal mines and for some utility infrastructure, and for 10,000 acres designated for ski area special uses. Toward the end of the Clinton administration, in 2001, some 58 million acres of roadless areas were declared protected nationwide. But a Bush policy replaced the Clinton rule, and it has been in and out of court ever since. The Colorado plan now put forth, critics say, is far weaker than Clinton's plan and environmentalists are concerned that it could open the door for gas drilling. But proponents of the plan say it would be an insurance policy for Colorado, restricting development in the roadless areas while the legal issues of the national plan are resolved to protect the vast majority of the state's wilderness. The rule, however, may not be adopted now until after the Obama administration takes office. The Department of Agriculture granted the state additional time to review the plan and submit comments.

RIN: 0596-AC74

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5906

The Proposal

The proposed rulemaking would manage Colorado’s inventoried roadless areas by prohibiting road building and tree cutting, with some exceptions, on 4.1 million acres of inventoried roadless areas in Colorado. The 4.1 million acres reflect the most updated IRA boundaries for Colorado, which incorporate planning rule revisions since 2001 on several Colorado national forests. Inventoried roadless areas that are allocated to ski area special uses (approximately 10,000 acres) would also be removed from roadless designation. Road construction and reconstruction plus timber harvesting would be prohibited in inventoried roadless areas, with some exceptions, on the Arapaho-Roosevelt, Grand Mesa-Uncompahgre, Gunnison, Manti-La Sal, Pike-San Isabel, Rio Grande, Routt, San Juan, and White River National Forests in Colorado. Exceptions to the prohibitions would be allowed for certain health, safety, valid existing rights, resource protection, and ecological management needs.

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Public Comments

No public comments posted.

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Public Lands May Be Leased for the Development of Oil Shale

Finalized July 23, 2008 Energy & Environment

Agency: Department of the Interior

Formal Name: Oil Shale Leasing and Operations

At Issue: Two million acres of public land in Wyoming, Colorado and Utah would be opened for leasing to drill for oil shale and parameters established for development. Environmental impact analysis under the National Environmental Protection Act must still be done before any drilling may take place. Proponents say this new source of oil will help reduce energy prices. Opponents argue the drilling process uses vast amounts of energy and water and emits a significant amount of air pollution.

RIN: 1004-AD90

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5887

The Proposal

The Energy Policy Act of 2005 envisions a 3-step approach to the development of oil shale resources. The first step is the creation of a limited Research, Development, and Demonstration (RDD) Leasing Program designed to evaluate and test promising oil shale technology. Step two in the process is the completion of a Programmatic Environmental Impact Statement for leasing of Oil Shale and Tar Sands on public lands, with an emphasis on the most geologically prospective lands within the States of Colorado, Utah, and Wyoming. The third step in the process is the creation of rules regulating the leasing and development of the oil shale. This rule would create the regulations necessary to develop converted RDD leases and make commercial exploration, leasing, and development possible.

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Public Comments

There is a great need to develop unconventional fuels, such as oil shale and tar sands, in ways that reduce environmental impacts and increase socio-economic benefits for the community. Thus, it is important that the government establish regulations now to help secure our nation’s energy future. Not only will the BLM’s proposed regulations help set out policies and procedures for the implementation of a commercial leasing program but companies will be more likely to invest capital into the industry once there is regulatory certainty. -Luis Moreno, citizen

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In Reversal, FDA to Continue Allowing Off-Label Use of Antibiotic with Animals

Withdrawn July 03, 2008 Health & Science

Agency: Food and Drug Administration

Formal Name: New Animal Drugs; Cephalosporin Drugs; Extralabel Animal Drug Use; Order of Prohibition

At Issue: On July 3, 2008, the Food and Drug Administration published a final rule limiting the use of cephalosporin antimicrobial drugs with animals that produce food for human consumption. Cephalosporins have been used on children suffering from gastrointestinal diseases and with cancer patients. These drugs have also been approved for certain uses among sheep, cows, goats and pigs, among other farm animals, but its off-label use at factory farms may be reducing the effectiveness of the drugs in humans as bacteria build up a resistance to it. In its final rule, the agency gave this reason for prohibiting the off-label use of the antibiotics: “We are issuing this order based on evidence that extra-label use of these drugs in food-producing animals will likely cause an adverse event in humans and, as such, presents a risk to the public health.” But after the agency received “substantive comments” on the ban, the agency reversed the ban on Nov. 25, 2008 — five days before the order was to go into effect — so that it could consider the public input. The Pew Charitable Trusts released a statement that lambasted the agency’s decision and raised concerns that the misuse of the antibiotic leads to an increase in drug-resistant infections and, in turn, an increase in health care costs —a fact that has been acknowledged by the American Medical Association, Centers for Disease Control and Prevention and the FDA.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7009

The Proposal

The Food and Drug Administration (FDA) is issuing an order prohibiting the extralabel use of cephalosporin antimicrobial drugs in food-producing animals. We are issuing this order based on evidence that extralabel use of these drugs in food-producing animals will likely cause an adverse event in humans and, as such, presents a risk to the public health.

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Public Comments

With the rapid growth of the goat industry in the United States it is important that
extra-label medications remain available for responsible use by producers.

Nothing in this regulation illustrates an actual negative impact on human or animal
health. The language is vague and inconclusive and hardly supports such drastic
action as rendering valuable medications inaccesible.

We strongly urge the FDA to recend this order of prohibition. -Kentucky Sheep and Goat Development Office

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BLM Finalizes Rule for Leasing of Land to Mine Solid Minerals

Finalized June 24, 2008 Business

Agency: Bureau of Land Management

Formal Name: Leasing of Solid Minerals Other Than Coal and Oil Shale

At Issue: The Bureau of Land Management has amended its regulations for the leasing of land to mine solid minerals, with the exception of coal and oil shale. This new rule will allow a mining company to expand its lease boundaries under certain circumstances. Under the old regulation, if a mining company wanted to add acreage to an existing lease, its application to do so had to demonstrate that the acres to be added contained the mineral being mined. This rule removes that requirement, and, instead, a mining company must show that the current boundary configuration does not provide for the efficient removal of the mineral. The agency offers two reasons in the rule for this change: (1) potential cost savings to lessees and (2) by maximizing the recovery of leased mineral deposits, the United States may see an increase in returns on its investment. The National Mining Association submitted the only comment during the public comment period. It wrote in support of the rule change and stated, “the current regulations can constrain optimal development and recovery.”

RIN: 1004-AD91

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7179

The Proposal

This rule will amend the procedures for phosphate lease modifications to allow adjustments of lease boundaries to facilitate the ultimate maximum recovery of mineral deposits within a lease, consistent with the protection and use of other natural resources and the protection and preservation of the environment.

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Public Comments

No comments found at www.regulations.gov. Please refer to the final rule to see a summary of the one comment submitted.

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DOJ Proposes Rule for Disabled Access to Public Facilities

OMB Review June 17, 2008 Government & Politics

Agency: Department of Justice

Formal Name: Nondiscrimination on the Basis of Disability in State and Local Government Services

At Issue: The Department of Justice has proposed rules that would adopt the 2004 Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines and make them legally enforceable. The updated regulations would extend the reach of the act, and would clarify standards for making disability-friendly modifications, as well as when upgrades are required. The proposed rule allows for grandfathering. Businesses are concerned about the enormous expense involved in modifications; the American Civil Liberties Union has commended the agency for making changes, but has flagged flaws it hopes the DOJ will address. One such example is a decision by the DOJ to address only those complaints that qualify as "the most critical matters" owing to resource restraints.

RIN: 1190-AA46

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5909

The Proposal

The Department of Justice (Department) is issuing this notice of proposed rulemaking (NPRM) in order to: Adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are ``consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board’’ (Access Board); and perform periodic reviews of any rule judged to have a significant economic impact on a substantial number of small entities, and a regulatory assessment of the costs and benefits of any significant regulatory action as required by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

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Public Comments

The “safe-harbor” clause that allows existing structures to receive a safe harbor from the new rules if they spend 1% of their gross revenues on removing barriers to accessibility is a novel approach, but one that should be more closely considered before adding it to the rules. SOCR would like to see further clarification and would like you to consider the following scenarios. As stated in a July 24, 2008 Associate Press article, a business could spend 1% of its gross revenues putting an accessible restroom on its third floor, yet still not have changed the inaccessible entryway to the same building, thus preventing access to the mobility impaired.  The business owner gets a new restroom and a pass for meeting their obligation for that year under the ADA, but accessibility is not enhanced. -Julie Nelson, director of the Seattle Office for Civil Rights

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New Rules for Verifying Employment Eligibility of Government Contractors

In Effect June 12, 2008 Business

Agency: Department of Defense/General Services Administration/NASA

Formal Name: FAR Case 2007-013, Employment Eligibility Verification

At Issue: Certain contractors and subcontractors must use E-Verify, an Internet-based employee verification system operated by the Department of Homeland Security, to check if their employees are eligible to work in the United States. The new rule establishes guidelines for the use of E-Verify, including the number of days a contractor has to enroll in the program and verify employees; which contractors/subcontractors are required to use the system; and which employees are exempt from the verification requirements. All eligible new contracts after the rule goes into effect on Jan. 15, 2009, must abide by the new guidelines; only certain existing contracts must amend their practices. Some employers fear the new mandate is too burdensome, and could be crippling to their businesses.

RIN: 9000-AK91

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5901

The Proposal

This rule amends the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the United States Citizenship and Immigration Services’ E-Verify system as the means of verifying that their employees are eligible to work in the United States. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

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Public Comments

No public comments found.

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Labor Dept. Issues New Guidelines for Work Visas

In Effect May 22, 2008 Business

Agency: Department of Labor

Formal Name: Labor Certification for the Temporary Employment of H-2B Aliens in the United States

At Issue: The Department of Labor seeks to improve the current labor certification process for H-2B visas, temporary work permits for both skilled and non-skilled foreign nationals not working in the agricultural sector, by centralizing the processing of visa applications. According to the agency, the revisions would revamp a system described as "complicated, time-consuming and inefficient." The rule would also implement an auditing system to ensure employers are in compliance with the requirements of the H-2B program.

RIN: 1205-AB54

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5904

The Proposal

This Notice of Proposed Rulemaking is designed to initiate a redesign of the process by which U.S. employers seek labor certification from the Department of Labor as an initial step to hire temporary non-agricultural labor under the H-2B visa program. The re-engineering of the program would include streamlining of the application process and strengthening of program integrity.

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Public Comments

Though it is almost universally agreed that the H2B visa program needs a major overhaul, the proposals by the Department of Labor will only worsen existing problems exponentially. Though it is clear that the Department of Labor’s proposed changes are an attempt to improve H2B procedural inefficiencies, many of the proposed changes actually have the potential to not only increase inefficiency, but completely destroy the H2B visa program and many businesses that traditionally rely on H2B visas for their seasonal or peak load workforce
needs. -Robert Kershaw, attorney

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Fisheries Rule Calls for Less Public Input

Withdrawn May 14, 2008 Environment

Agency: National Oceanic and Atmospheric Administration

Formal Name: Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) Environmental Review Procedure

At Issue: This new rule explains how fisheries must comply with the National Environmental Policy Act. NOAA says the revisions will more effectively involve the public and clearly define the role of Fishery Management Councils in developing and approving new measures for the operation of a fishery. But critics say the changes would complicate the environmental review process, give too much power to the fishing industry when determining environmental impact and shorten the public comment period.

RIN: 0648-AV53

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5741

The Proposal

The [Magnuson-Stevens Fishery Conservation and Management Reauthorization Act] provides that the resulting procedures will be the sole environmental impact assessment procedure for fishery management actions, and that they must: Conform to the time lines for review and approval of fishery management plans and plan amendments; and integrate applicable environmental analytical procedures, including the time frames for public input, with the procedure for the preparation and dissemination of fishery management plans, plan amendments, and other actions taken or approved pursuant to this Act in order to provide for timely, clear, and concise analysis that is useful to decision makers and the public, reduce extraneous paperwork, and effectively involve the public.

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Public Comments

Disappointingly, the agency has not taken this opportunity for improvement, and instead has moved in the opposite direction, proposing to roll back [National Environmental Policy Act] protections for ocean ecosystems. This was not the intent of Congress in its recent reauthorization of the [Magnuson-Stevens Fishery Conservation and Management Act], and certainly not its intent in the orginal enactment of NEPA. Accordingly, we urge [the National Marine Fisheries Service] to withdraw its proposed rule and develop a new proposal that streamlines the NEPA and MSA decision making process and at the same time maintains robust requirements for neutral decision making, public participation, agency oversight and accountability, and in-depth environmental review. -Robert Dreher and Sierra B. Weaver, Defenders of Wildlife

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Automakers May Soon See New Rules for Fuel Economy

Unknown May 02, 2008 Energy & Environment

Agency: Department of Transportation

Formal Name: Passenger Car and Light Truck Corporate Average Fuel Economy 2011 to 2015

At Issue: The proposed rule, which falls under the Energy Independence and Security Act of 2007, would revise fuel standards for cars and small trucks in an effort to improve fuel economy and lower greenhouse gas emissions. The Department of Transportation estimates that their suggested standards would save a combined total of nearly 55 billion gallons of fuel and 178.3 billion metric tons of CO2 over the lifetime of the light trucks and cars sold for the model years of 2011 to 2015. But consumer groups, automakers and environmentalists are not pleased. Automakers say the standards are too burdensome to meet, at a time when they are already in dire financial straits. Environmentalists and consumer groups say the rule neither meets the demand for more fuel-efficient cars nor does it do enough to combat global warming. Both groups claim DOT and the National Highway Traffic Safety Administration based their calculations on gas prices that were far too low, and, had they used higher and more realistic numbers, the agency could have justified enforcing higher standards more quickly.

RIN: 2127-AK29

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5908

The Proposal

This rulemaking would address Corporate Average Fuel Economy (CAFE) Standards for light trucks and for passenger cars for model years 2011 to 2015. CAFE standards must be set at least 18 months prior to the start of a model year. This action is also subject to a direction by the President of the United States to complete rulemaking in 2008.

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Public Comments

We need to curb pollution created by cars & trucks as soon as possible! The 35 mpg average in the law is a floor, not a ceiling. Technologies are available now to improve fuel economy. Gas prices matter to me and my family, and they should matter to NHTSA. States have the right to implement clean car standards. Close the light truck loophole. Place the right dollar value on CO2. -Rajdeep Bhathal, citizen

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EPA Revises Air Quality Standards for Lead

In Effect May 01, 2008 Health & Science

Agency: Environmental Protection Agency

Formal Name: Review of the National Ambient Air Quality Standards for Lead

At Issue: The rule revises the monitoring requirements for lead and strengthens lead emission standards by cutting the amount allowed in the air by 90 percent. The revisions will provide increased protection to children and other at-risk populations. But some complain the new standards aren’t tough enough and that they exempt some major polluters. Industry leaders also dislike the new standards, saying they will have little to no impact on overall emissions.

RIN: 2060-AN83

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5859

The Proposal

EPA is revising the averaging time to a rolling 3-month period with a maximum (not-to-be-exceeded) form, evaluated over a 3-year period. EPA is revising the secondary standard to be identical in all respects to the revised primary standard. EPA is also revising data handling procedures, including allowance for the use of Pb-PM10 data in certain circumstances, and the treatment of exceptional events, and ambient air monitoring and reporting requirements for Pb, including those related to sampling and analysis methods, network design, sampling schedule, and data reporting. Finally, EPA is revising emissions inventory reporting requirements and providing guidance on its approach for implementing the revised primary and secondary standards for Pb.

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Public Comments

In conclusion, the extreme neurotoxicity of lead, particularly for the developing fetus, infant, and young child, would render it irresponsible for EPA to consider relaxing the regulation of airborne lead emissions. The American Academy of Pediatrics urges you in the strongest terms to maintain and expand the regulatory standards related to lead as a criteria pollutant in its final options for action on this matter. -Jay E. Berkelhamer, MD, FAAP

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Loaded Guns Possible in National Parks

In Effect April 30, 2008 Government & Politics

Agency: Department of the Interior

Formal Name: Firearms on National Park Service Lands

At Issue: The proposed rule would allow loaded guns and concealed weapons into some national parks. Currently guns are allowed only if they are safely stored and unloaded.

RIN: 1024-AD70

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5754

The Proposal

This rule would update firearms policies on National Park Service lands to reflect existing Federal laws (such as those prohibiting weapons in Federal buildings) and state authorities governing the transportation and carrying of firearms on analogous public lands

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Public Comments

Speaking solely as a private citizen, the proposed changes are long overdue. I am an avid hiker, having completed several hundred miles of trails in the Great Smoky Mountains National Park and many sections of the Appalachian Trail. I am also a concealed carry permit holder, a lifelong gun owner, a father of three, an ordained Baptist minister, and a holder of an academic doctorate. I have enjoyed the backcountry of our national parks for years and have longed to be able to carry
personal protection in case of animal attack or hostile individuals. -Donald Scott Courtney, citizen

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New Regulations for HIV/AIDS Prevention Groups that Receive Federal Funding

In Effect April 17, 2008 Government & Politics

Agency: Health and Human Services

Formal Name: Office of Global Health Affairs; Regulation on the Organizational Integrity of Entities Implementing Leadership Act Programs and Activities

At Issue: Similar to the sex trafficking rule, HIV/AIDS prevention groups who apply for federal grants must certify they do not advocate, promote or support the legalization or practice of prostitution. However, these groups may maintain affiliations with organizations that do not have such a policy. This rule outlines the guidelines for doing so.

RIN: 0991-AB46

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5815

The Proposal

The proposed rule provides additional information on the policy requirement expressed in this law for entities that receive grants, contracts, or cooperative agreements from the U.S. Department of Health and Human Services (“HHS”) to implement programs or projects under the authority of the Leadership Act. Specifically, it describes the legal, financial, and organizational separation that must exist between these recipients of HHS funds and an affiliate organization that engages in activities that are not consistent with a policy opposing prostitution and sex trafficking.

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Public Comments

We strongly support the U.S. government’s goals of preventing the spread of HIV and ending trafficking in persons worldwide.  We are concerned, however, that U.S. anti-HIV/AIDS and anti-trafficking efforts are severely undermined by the proposed regulation’s restrictions on the range of interventions that can be used to protect the lives and health of people in prostitution, and of trafficked persons, the very groups intended as beneficiaries of U.S. efforts. -ACLU and 20 other advocacy organizations

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New Rules Govern Transport of Hazmats by Rail

In Effect April 16, 2008 Business

Agency: Department of Transportation

Formal Name: Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments

At Issue: New Transportation Department rules requires railroads to analyze safety and security along proposed routes for hauling hazardous materials and to clarify security plans for storage and delays en route. Security advocates argue this rule was crafted to allow railroads to analyze and select routes in secrecy without input from state and local officials. While the rule asks railroads to “consider” measures to “reduce safety and security risk,” there is no enforcement mechanism worked into the rule to allow DOT to legally force railroad companies to choose what the agency considers to be the safest possible route. DOT can only challenge a railroad company’s selected route if it can suggest an alternative “commercially practicable” route. There is no definition for “commercially practicable” in the rule.

RIN: 2137-AE02

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6586

The Proposal

In consultation with the Federal Railroad Administration (FRA), PHMSA would revise the current requirements on the safe and secure transportation of hazardous materials transported in commerce by rail. It may require rail carriers to (1) compile annual data on certain shipments of hazardous materials and use the data to analyze safety and security risks along rail transportation routes where those materials are transported; (2) assess alternative routing options and make routing decisions based on those assessments; and (3) clarify the current security plan requirements to address en route storage and delays in transit.

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Public Comments

The proposed rule goes to great lengths to accommodate a rail carrier’s interests but ignores the recognized safety concerns (protection of lives, national security interests and national economic interests) of jurisdictions, including jurisdictions where high-consequence targets are located, that a rail carrier has not selected the safest and most secure route. The proposed rule also provides that the [Federal Railroad Administration] expects to mandate temporary route changes only for the most exigent circumstances. -C. Dean McGrath, Jr. on behalf of the Mayo Clinic

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Dept. of Education Amends Its Student Privacy Rule

In Effect March 24, 2008 Education

Agency: Department of Education

Formal Name: Family Educational Rights and Privacy; Final Rule

At Issue: The Department of Education has revised regulations under the Family Educational Rights and Privacy Act to implement provisions of the USA Patriot Act and the Campus Sex Crimes Prevention Act. Among the amendments are clarifications and new exceptions for disclosing personally identifiable information from an education record without the student’s consent. The National School Boards Association in its comment on the proposed rule wrote in support of this provision. Referring to the Virginia Tech tragedy, NSBA wrote, “The Department indicates ‘any and all education records, including health and disciplinary records’ may be disclosed. This is a good policy that will facilitate necessary information sharing.” Other commenters expressed concern that the FERPA safeguards to prevent a student from being identified too readily could prevent the release of educational records used to hold schools accountable, such as test scores.

RIN: 1855-AA05

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7178

The Proposal

These proposed regulations would implement amendments to section 444 of the General Education Provisions Act, as amended—commonly referred to as the Family Educational Rights and Privacy Act of 1974 (FERPA)—resulting from the USA Patriot Act (Pub. L. 107-56), the Campus Sex Crimes Prevention Act, and section 1601(d) of the Victims of Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386). These amendments also would implement two U.S. Supreme Court decisions interpreting FERPA and make other necessary changes regarding permissible disclosures of education records, permissible redisclosures of education records by State and Federal officials, and investigation and enforcement procedures.

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Public Comments

Accordingly, in emergency cases the Department should take a more hands-on approach when investigating complaints to ensure that the covered entity was correct in its assessment that a health or safety emergency occurred and that it was necessary to release the information to the parties to whom it chose to release the information.  A better standard of review would simply be to look at whether, in the totality of the circumstances, there was an “articulable and significant threat to the health and safety of a student or other individual,” as articulated earlier in proposed § 99(c). -Melissa Bowman, staff attorney for Kentucky Protection and Advocacy

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New HUD Rule Aims to Improve Transparency of Mortgage Settlement Costs

In Effect March 14, 2008 Business

Agency: Department of Housing and Urban Development

Formal Name: Real Estate Settlement Procedures Act (RESPA); To Simplify and Improve the Process of Obtaining Mortgages and Reduce Consumer Costs

At Issue: This new rule aims to protect consumers from high mortgage settlement costs by simplifying, improving and standardizing the Good Faith Estimate form, which details the fees borrower pay when settling a loan. With the exception of certain provisions that will be implemented upon the rule's effective date, compliance will not be required until Jan. 1, 2010. Under the new rule, the Good Faith Estimate form would include a clear summary of loan terms and settlement charges on the first page and provide more accurate cost estimates, among other stipulations. The rule would also limit certain fees. A HUD analysis suggests that a typical borrower would save nearly $700 on closing fees.

RIN: 2502-AI61

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5889

The Proposal

HUD is proposing changes to its RESPA regulations that would improve and standardize the Good Faith Estimate (GFE) form to make it easier to use for shopping among settlement providers and help borrowers understand how yield spread premiums can affect their settlement charges.

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Public Comments

I’m a Loan Officer with a Major Lender and have been for the last 8yrs. I spent my first year in the “broker world” and I can attest to differences in both business segments. I agree that a uniformed GFE or Closing Cost Estimate should be used. I say this because there is a “vast” majority of the general public that won’t take the time to read or perform any due dilegence prior to shopping for a mortgage loan. This has always been true and it will remain so. -Larry M., Mortgage Lender

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EPA Lets Factory Farms Decide If They Need A Permit to Discharge Animal Waste into Waterways

In Effect March 07, 2008 Environment

Agency: Environmental Protection Agency

Formal Name: National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations

At Issue: The rule, formulated to address practices voided by a Federal Appeals Court ruling, asks companies that run confined animal feeding operations to voluntarily apply for permits to discharge waste into waterways. If the operators don’t think they pollute enough, they are under no obligation to get permits.

RIN: 2040-AE80

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5649

The Proposal

This rule would maintain the duty to apply for [Confined Animal Feeding Operations] that discharge or propose to discharge, and would establish an optional means for nondischarging CAFOs to self-certify that they do not discharge or propose to discharge if they qualify for certification. The rule also would establish a process to make terms of the [Nutrient Management Plans] available for public comment, approved by the permit authority, and incorporated into the permit.

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Public Comments

By allowing CAFO’s to self-govern is writing the final death to the hopes we have of restoration, of not only our creek and watershed, but also of 1000’s more like it. We have CAFO’s within the watershed, but it is imperative that these operations continue to obtain individual permits. If allowed to self govern, they will covertly and overtly discharge raw, contaminated effluent into an already overloaded system.
Sincerely,
Mark Fiorini
President, Maiden Creek Watershed Association

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Sex Trafficking Victims Could Lose Aid Funds

OMB Review February 26, 2008 Government & Politics

Agency: Health and Human Services

Formal Name: Limitation on Use of Funds and Eligibility for Funds Made Available by the Office of Refugee Resettlement, Within the Administration for Children and Families, of the Department of Health and Human Services, To Monitor and Combat Trafficking in Persons

At Issue: Any organization that seeks federal funding to help victims of sex trafficking must certify that they do not advocate, promote or support the legalization or practice of prostitution.

RIN: 0970-AC28

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5800

The Proposal

This rule will implement provisions of the Trafficking Victims Protection Act which prohibit programs from using trafficking funds to promote, support, or advocate the legalization or practice of prostitution and make organizations ineligible to receive such funds that promote, support, or advocate the legalization or the practice of prostitution if the program operates a program that targets several forms of trafficking unless the organization provides services to individuals solely after they are no longer engaged in activities that resulted from such activities being trafficked.

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Public Comments

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FDA Provides Guidance to Drug Companies for Marketing Off-Label Use of an FDA-Approved Drug

OMB Review February 20, 2008 Health & Science

Agency: Food and Drug Administration

Formal Name: Draft Guidance for Industry on Good Reprint Practices for the Distribution of Medical Journal Articles and Medical or Scientific Reference Publications on Unapproved New Uses of Approved Drugs and Approved or Cleared Medical Devices

At Issue: Drug and medical device companies would be allowed to give doctors articles from medical journals on unapproved uses for FDA-approved products. Advocates of loosening the rules for off-label drug use say the FDA review and approval process is slow and arduous--and lives that could be saved are lost in the meantime. But critics worry that relying on medical studies shared by a pharmaceutical company, and not vetted by the FDA, could put lives at risk.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5880

The Proposal

The draft guidance provides drug, biologics, and device manufacturers with the agency’s views on the distribution of medical journal articles and scientific or medical reference publications that discuss unapproved new uses for FDA approved drugs or biologics or FDA approved or cleared medical devices to health care professionals and health care entities.

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Public Comments

As a physician who interacts with pharmaceutical representatives in the community, I strongly disagree that there are “important public policy reasons for allowing manufacturers to disseminate truthful and non-misleading medical journal articles and medical or scientific reference publications on unapproved uses of approved drugs…” We have seen repeatedly that even when medications have approved indications, that long-term data can show that they are, in fact, harmful in unanticipated ways.  Allowing pharmaceutical representatives to promote unapproved uses will certainly result in additional unanticipated side effects and toxicities. That places our patients at risk. -John Carroll, citizen

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New Rule for Farmers Who Hire Foreign Workers

In Effect February 13, 2008 Business

Agency: Department of Labor

Formal Name: Modernizing the Labor Certification Process and Enforcement for Temporary Agricultural Employment of H-2A Aliens in the United States

At Issue: The Department of Labor has made significant changes to the guest worker program for farms for the first time in 20 years. It's a program the DOL says is "woefully underutilized" because of the cumbersome approval process and the time-sensitive nature of the agricultural industry. In an effort to smooth out some of the bureaucratic snarls and attract more farmers to the program, the DOL has eliminated the duplication in federal and state efforts when processing visa applications. The rule also implements new wage and hour regulations, and stiffens the fines for those employers who fail to comply with the program. But farmers are not satisfied with the government's solution, and say the process is still too complex. On the labor side, critics are concerned the rule could lead to lower wages and a decline in working conditions.

RIN: 1205-AB55

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6591

The Proposal

This Final Rule is designed to initiate a redesign of the process by which U.S. employers seek labor certification from the Department of Labor as an initial step to hire temporary agricultural labor under the H-2A visa program. The re-engineering of the program would include streamlining of the application process and strengthening of program integrity.

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Public Comments

The regulation would reduce wages, diminish labor protections, and lower housing standards for farm workers; would severely limit employment opportunities for American workers; and would undermine oversight and enforcement of the few protections that would remain in the law. I urge the Department [of Labor] to withdraw the proposed regulation and develop a new proposal that fairly reflects Congress’s intent when it created the program, protects high labor standards for American workers, and prevents abuses of vulnerable temporary workers. -Sen. Edward M. Kennedy (D.-Mass.)

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Labor Rule Limits Employee Access to Medical and Family Leave Time

Closed to Comment February 11, 2008 Health & Science

Agency: Department of Labor

Formal Name: Family and Medical Leave Act of 1993; Conform to the Supreme Court's Ragsdale Decision

At Issue: Partly in response to a Supreme Court ruling, the DOL has proposed several revisions to the Family and Medical Leave Act of 1993 that could make it more difficult for employees to use paid vacation or personal days when they take leave for medical or family emergencies. It also specifies that those who suffer from a chronic condition must "recertify" every six months, as opposed to a vague "periodically." Another revision, which some are referring to as a win for workers, would no longer count "light duty" as leave time. Another provides greater leeway for families of active service men and women.

RIN: 1215-AB35

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5757

The Proposal

The U.S. Supreme Court, in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), invalidated regulatory provisions issued under the Family and Medical Leave Act (FMLA) pertaining to the effects of an employer’s failure to timely designate leave that is taken by an employee as being covered by the FMLA. The Department will address this and decisions of other courts in proposed revisions to the FMLA regulations. In addition, effective January 28, 2008, section 585(a) of the National Defense Authorization Act for FY 2008 (NDAA), Public Law 110-181, amended the FMLA to permit an eligible employee who is the “spouse, son, daughter, parent, or next of kin of a covered servicemember” to take up to a total of 26 workweeks of leave during a 12-month period to care for the covered servicemember, defined as “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

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Public Comments

I disagree with the proposed change to FMLA regulations that would permit employers to require workers to recertify their serious medical conditions every six months, even if they have a life-long condition. (Current regulations say recertification cannot be required until the period of treatment specified by a healthcare provider has passed, or once a year, whichever is less.) The new regulations would pose an unreasonable burden on employees who suffer from long-term or chronic conditions, requiring them to make unnecessary visits to
their doctor, and forcing them to pay for the extra visits. -Madeline Gerich, citizen

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Interior Rules Could Limit Public Environmental Comments

In Effect January 02, 2008 Environment

Agency: Department of the Interior

Formal Name: Implementation of the National Environmental Policy Act of 1969

At Issue: The Interior Department says these revisions will "promote greater transparency and accountability to the public." But the rule also gives the agency discretion in determining how to involve the public in the preparation of environmental assessments, including the solicitation of public comments.

RIN: 1090-AA95

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5857

The Proposal

The Department of the Interior proposes to amend its regulations by adding a new part to codify its NEPA procedures currently in the Departmental Manual (DM). The proposed regulations contain Departmental policies and procedures for compliance with NEPA, Executive Order 11514, and the Council on Environmental Quality’s regulations. By converting the Departmental NEPA procedures from the DM to new regulations the Department intends to promote greater transparency and accountability to the public.

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Public Comments

These procedural changes undermine and weaken NEPA, one of this country’s most important environmental laws. NEPA is an invaluable tool to guide policy decisions that affect our quality of life, and it provides citizens a voice in our federal government’s decisions, especially those involving important environmental concerns. -Bryan Bird, citizen

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Less Reporting of Animal Air Pollution Proposed

In Effect December 28, 2007 Environment

Agency: Environmental Protection Agency

Formal Name: CERCLA/EPCRA Notification Requirements and the Agricultural Sector

At Issue: The Environmental Protection Agency will no longer require farms to report on air pollution from animal waste, as long as it is not above a certain threshold within a 24-hour period. The EPA Says this will ease the burden of reporting in situations where an emergency response action is unlikely. But critics worry that less oversight will mean greater health risks to those living near factory farms.

RIN: 2050-AG37

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5763

The Proposal

[T]he proposed administrative reporting exemption applies to releases of hazardous substances to the air where the source of those hazardous substances is animal waste at farms. Nothing in the proposed rule, however, changes the notification requirements if hazardous substances are released to the air from any other source other than animal waste at farms (i.e., ammonia tanks), as well as releases of any hazardous substances from animal waste to any other environmental media (i.e., soil, ground water, surface water) when the release of those hazardous substances is at or above its reportable quantity per 24 hours. This administrative reporting exemption is protective of human health and the environment and consistent with the Agency’s goal to reduce reporting burden where there would likely be no Federal, state or local emergency response to such release reports.

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Public Comments

The adoption of the proposed exemption is vital to prevent further state actions and lawsuits from attempting to subject animal agriculture to CERLCA and EPCRA release and reporting provisions. In the past, a small number of states, lawsuits, and activists have moved to expand federal Superfund provisions to regulate family farms and ranches . Whether justified or not, animal agriculture, the storage of manure, and the application of manure as a natural fertilizer are already regulated by various comprehensive federal and state laws including the Clean Water Act and the Clean Air Act . Adding CERCLA and EPCRA provisions would create even more regulato ry burdens for those that proactively work to produce food and fiber for our nation. -Justin Oldfield, California Cattlemen’s Association

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DOT Finalizes Rule Extending Hours on the Road for Truck Drivers

In Effect December 17, 2007 Business

Agency: Department of Transportation

Formal Name: Hours of Service of Drivers

At Issue: The Department of Transportation has finalized an interim rule for the number of hours a truck driver may spend on the road per day and per week. The rule, which has essentially been in effect since 2004, allows truckers to drive for 11 hours and work no more than 14 consecutive hours each day. They must rest 10 hours between shifts, and may not work more than 60 hours a week. But if they take a 34-hour break, they can restart their weekly tally. The U.S. Court of Appeals for the D.C. Circuit took issue with the rule in 2004 and again in 2007 for failing to adequately explain its rationale for increasing driving hours, among other reasons. Public safety and consumer advocate groups complain that the rule leaves truckers on the road far too long, citing fatigue fatalities as evidence. The DOT says the new rule actually allows more time for sleep than the current rule. It also cites statistics showing fatal crashes have decreased since the driving hours were changed.

RIN: 2126-AB14

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5933

The Proposal

A rulemaking action was initiated in response to the July 2007 decision by the US Court of Appeals for the District of Columbia Circuit that vacated specific provisions of the Agency’s Hours of Service rule published on August 25, 2005. The Court invalidated two provisions: the first relates to increasing the daily driving limit from 10 to 11 hours; the second provision permits drivers to restart their count of weekly accumulations of hours after taking 34 consecutive hours off duty. The Court’s mandate issued on December 27, 2007; the Agency issued the IFR to establish what hours of service are in effect.

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Public Comments

The [interim final rule] signals an agency that has elevated desired economic results over the health and safety concerns that form the foundation of the agency’s statutory mission and constitute the very reason for its existence. -Advocates for Highway and Auto Safety, International Brotherhood of Teamsters, Public Citizen and Truck Safety Coalition

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EPA Finalizes New Source Review Rule for Fugitive Emissions

Finalized November 13, 2007 Energy & Environment

Agency: Environmental Protection Agency

Formal Name: Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions

At Issue: Although the EPA abandoned some of its most controversial changes to the clean air rules, it did not ditch all of them. On Dec. 19, the agency finalized a rule to regulate so-called fugitive emissions, or pollutants released into the air other than through smoke stacks or vents, such as those that occur through equipment leaks or evaporation. The question is when these types of pollutants count toward an emissions threshold, which if passed trigger requirements for installing new pollution-control equipment. The new rule requires only those industries listed under the Clean Air Act -- including coal cleaning plants, fuel conversion plants and iron and steel mills -- to count the fugitive emissions when making operational or physical modifications to facilities. In 1989 a rule change stated that all sources of pollution, regardless of whether they were covered by the Clean Air Act, be required to count the fugitive pollutants. Special interest groups such as the National Association of Clean Air Agencies have criticized the EPA for its decision; the rule will exempt some polluters within the surface mining and agricultural industries, among others. This rule will go into effect on Jan. 20, 2009, the last day of the Bush administration.

RIN: 2060-AM91

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7010

The Proposal

The EPA is finalizing revisions to the December 31, 2002 New Source Review (NSR) Improvement rules to change the requirements of the major NSR programs regarding the treatment of fugitive emissions. Specifically, this final rule requires that fugitive emissions be included in determining whether a physical or operational change results in a major modification only for sources in the source categories that have been designated through rulemaking pursuant to section 302(j) of the Clean Air Act (Act). Also, this action elaborates on guiding principles for determining fugitive emissions for purposes of NSR and title V permitting.

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Public Comments

The Florida Department of Environmental Protection’s Division of Air Resource Management’s (Department) supports EPA’s effort to treat fugitive emissions consistently in the PSD program.  The Department is concerned, however, that EPA’s extension of this PSD rule into minor NSR is premature.  There is insufficient discussion regarding why EPA is excluding fugitive emissions in the determinations of major source status for the vast majority of major sources, but then focusing on such emissions from minor sources.  It doesn’t appear that EPA has conducted any research on how existing minor NSR programs address fugitive emissions at this point.  The Department suggests that EPA evaluate existing minor NSR programs before requiring detailed SIP submittals to address fugitive emissions.  -Trina L. Vielhauer, chief, Bureau of Air Regulation, Division of Air Resource Management

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Treasury Takes a Stab at Internet Gambling

In Effect October 04, 2007 Business

Agency: Department of the Treasury

Formal Name: Prohibition on Funding of Unlawful Internet Gambling

At Issue: In 2006 Congress passed the Unlawful Internet Gambling Enforcement Act. This rule seeks to clarify the act’s murky definitions — including what constitutes unlawful Internet gambling — and to implement provisions designed to block restricted transactions related to illegal online gambling. It also specifies the payment systems that can be used in connection with gambling restricted by the act, including automated clearing house systems, money transmitting business and wire transfer systems. Those who operate such payment systems will be required to establish a policy to weed out illegal transactions. In a letter to Treasury Secretary Henry Paulson, Rep. Barney Frank (D-Mass.) criticized the rule because it would “burden the financial services industry at a time of economic crisis and contradict the stated intent of the Financial Services Committee.” During the public review period, citizens submitted comments chastising the agency for drafting a rule that amounted to a government intrusion into the private lives and decisions of individuals, and suggested that precious government resources be devoted elsewhere.

RIN: 1505-AB78

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6894

The Proposal

The Unlawful Internet Gambling Enforcement Act of 2006 (the Act) requires the Department of the Treasury and the Board of Governors of the Federal Reserve System (collectively, the Agencies), in consultation with the Attorney General, to promulgate regulations to implement applicable provisions of the Act. The Agencies published a proposed rule on October 4, 2007, and the public comment period closed on December 12, 2007. In accordance with the requirements of the Act, the final rule is expected to designate payment systems that could be used in connection with unlawful Internet gambling transactions restricted by the Act. The final rule will require participants in designated payment systems to establish policies and procedures reasonably designed to identify and block or otherwise prevent or prohibit transactions in connection with unlawful Internet gambling.

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Public Comments

The regulations as proposed have some areas that cause our banks some concern as follows:
* “Unlawful Internet Gambling” is not clearly defined,
* Risk of over-blocking legal transactions,
* Places an unreasonable compliance and financial burden on our banks with virtually no actionable guidance.

-Nea R. Rodgers, AVP corporate compliance/BSA officer, Farmers Capital Bank Corporation

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Rules on Dumping of Mine Debris Eased

In Effect August 24, 2007 Environment

Agency: Department of the Interior

Formal Name: Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United States

At Issue: This rule could make it easier for mining companies to dump debris from mountaintop removal into waterways.

RIN: 1029-AC04

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5742

The Proposal

This rule will establish permit application requirements and review procedures for applications that propose to place excess spoil or coal mine waste from surface coal mining operations into waters of the United States. Among other things, it will require that mine operators minimize the creation of excess spoil and the adverse environmental impacts resulting from the construction of excess spoil fills.

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Public Comments

I am strongly opposed to mountain top removal as a means of obtaining coal at the expense of our mountains, the headwaters of our streams and for the health and safety risks that kind of mining poses to families and communities. I am
opposed to this pending regulation that serves those who financially profit from extraction efficiency and punishes all of us who share the harm brought to the commons of the natural communities we call home. -Gary Boyd, Citizen

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Oregon Opens Door to More Logging

Finalized August 09, 2007 Environment

Agency: Bureau of Land Management

Formal Name: Oregon Resource Management Plans

At Issue: On Dec. 31, the Bureau of Land Management announced it had issued records of decisions for new resource management plans for six counties in Oregon. The plan nearly doubles the amount of logging allowed on 2.6 million acres of federal land in the southwestern section of the state. According to a press release from the agency, the expanded timber harvesting will produce roughly $75 million each year to be distributed among the six counties and will create 1,200 jobs. But environmentalists and some public officials—not to mention the 264 protests received by BLM after the release of the Final Environmental Impact Statement on Oct. 9, 2008—are disappointed by the state’s decision to revitalize the logging industry in this section of the state. The contamination of the water and the negative impact logging could have on fish populations are among the concerns cited by the plan’s critics.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7176

The Proposal

The BLM has issued the six Records of Decision (ROD) for the Resource Management Plans (RMP) that were developed under the Western Oregon Plan Revisions. With this action, the BLM has completed its revision of the land use plans that will guide the management of 2.6 million acres in western Oregon in the BLM’s Salem, Eugene, Roseburg, Medford, and Coos Bay Districts, and the Klamath Falls Resource Area of the Lakeview District. The RMPs also comply with all applicable Federal laws including the O&C Lands Act, Endangered Species Act, Clean Water Act, and the Federal Land Policy and Management Act.

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Public Comments

Dear Western Oregon Plan Revisions,

As a sportsman in western Oregon, I am deeply concerned with the Bureau of Land
Management’s recently released draft version of the Western Oregon Plan Revisions.
The plans outlined in the document would dramatically alter public lands management
in western Oregon to the detriment of fish and wildlife and, by extension, hunting
and fishing. ... For example, reduction of streamside buffers to 25 feet would most certainly
have a negative impact on our trout and salmon fisheries throughout the region.
Timber harvest in close vicinity to fish-bearing or fish-spawning waters will
contribute sediment to the systems, with the potential to smother fish eggs and
spawning gravel. Additionally, removing streamside vegetation will reduce cover
and likely result in temperature increases that could prove fatal to our fisheries. -Patty Bonney, citizen

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International Development Seeks to Implement 1974 Privacy Act Exemptions

Finalized July 20, 2007 Secrecy

Agency: Agency for International Development

Formal Name: Privacy Act of 1974; Implementation of Exemptions

At Issue: The Partner Vetting System is intended to help the Agency for International Development screen employees of non-governmental organizations who apply for funds from USAID. The system is meant to ensure the agency is not dispersing funds to a terrorist organization or to an organization that collaborates with terrorists; there have been allegations in the press and from within the U.S. government that USAID funds have ended up in the hands of groups controlled by Hamas, for example. The decision for whether this system will be implemented rests with the Obama administration. In the meantime, USAID has finalized a rule exempting portions of the information collected by the vetting system from disclosure under the Privacy Act, citing national security and protection of classified data. During the public comment period, special interest groups, NGOs and private individuals expressed concerns about the system and the privacy act exemptions, including a lack of transparency and claiming a violation of due process to withhold the screening results from affected NGOs.

RIN: 0412-AA61

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7019

The Proposal

Summary of the rule: The United States Agency for International Development (USAID) is concurrently establishing a new systems of records pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C. 552a), entitled the “Partner Vetting System” (PVS). The PVS will support the vetting of individuals, officers, or other officials of non-governmental organizations who apply for USAID contracts, grants, cooperative agreements, or other funding, or who apply for registration with USAID as Private and Voluntary Organizations (PVOs), ensuring that neither USAID funds nor USAID-funded activities inadvertently or otherwise provide support to entities or individuals associated with terrorism. In this proposed rulemaking, USAID proposes to exempt portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

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Public Comments

The Privacy Act recognized the distinct possibility that federal agencies would collect and maintain information about individuals that is incorrect and that they might act on that information in a manner harmful to those persons. That is why the Act allows individuals to correct, amend or expunge records in which personal information is inaccurate, irrelevant, out of date or incomplete and why it provided a right of action against federal agencies that refuse to make corrections or provide the access permitted. These features introduce proper accountability into federal information collection policy and practices. ... By proposing to exempt the “Partner Vetting System” from the Privacy Act protections that can help mitigate such inaccuracies, USAID expects non-federal organizations and the individuals who work for them to rely on its word that errors of this magnitude will be avoided. Yet, it has introduced nothing in any of its public notices or pronouncements to provide alternative reasonable assurance that it can assess information accuracy on its own. Our view is that, absent such alternative accuracy assurance procedures, the protections afforded by the Privacy Act should not be reduced in any way. -Alison N. Smith, executive director, Association of Private Voluntary Organization Financial Managers

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Interior Reverses Itself on Private Use of Public Land

In Effect July 18, 2007 Government & Politics

Agency: Department of the Interior

Formal Name: Use of Reclamation Land, Facilities, and Water Bodies

At Issue: The Bureau of Reclamation has finalized a rule revising their position on the continued exclusive use of public land; in 2007 the agency proposed a rule that indicated it would “generally not renew” the authorizations for private use of this land. In response to public comments addressing concerns that current private use of the land, as by property owners, would be hurt by this rule, the agency proposed revisions. The 2008 rule, finalized on Dec. 5, relaxes the renewal requirements for current exclusive use. It states that existing private recreational and residential uses “must be compatible with public needs,” but eliminates language indicating that renewal would happen only under rare circumstances. The use and its appropriateness will be reviewed at least once every 20 years, with exceptions, such as when health and safety are at issue — reviews were previously made every 5 years. The Sierra Club criticized the agency for failing to provide an adequate explanation for modifying its position, and for contradicting its mandate to provide for public recreation.

RIN: Use of Reclamation Land, Facilities, and Water Bodies

Permalink: http://www.propublica.org/special/midnight-regulations#reg-7334

The Proposal

This rule will provide: (1) Notification that authorization is required to use Reclamation lands, facilities, and water bodies; (2) information on required forms and clearer application procedures; (3) explicit application review criteria; (4) information on application fees, recovery of administrative costs, and collection of fees; (5) conditions under which costs and fees may be reduced or waived; (6) a listing of prohibited uses; and (7) a clear decisions and appeals process for decisions made under this part.

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Public Comments

I have invested in a nice new cabin so myself and my extended family-children,
grandchildren & Great Grandchildren can enjoy the recreation Nelson Reservoir has to
offer. We gather here for our family functions. We have very little family recreation in
this sparsely populated part of the State. Our cabin on Nelson Reservoir is very much a
part of our lives. If this should be lost, our lifestyle and quality of life will be greatly
diminished. There is plenty of public access to the shoreline around the Reservoir. We
have the old State Park for camping and it has a nice boat ramp for launching watercraft.
There are also numerous boat launching ramps located next to or in-between some of the
cabins on the lake. We have no Marina or Concessionaires on Nelson Reservoir. I urge
the Bureau to consider our leases on Nelson Reservoir on their own merit and not to
include us with the more congested area of the United States where problems exist. A
clarification in layman’s terms as to how this rule will affect my lease would be
appreciated. -Harriet Broadbrooks, citizen

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EPA May Allow Certain Hazardous Waste to be Used as Fuel

In Effect June 15, 2007 Energy & Environment

Agency: Environmental Protection Agency

Formal Name: Expanding the Comparable Fuels Exclusion Under RCRA

At Issue: The EPA excludes certain industrial materials from most hazardous waste management requirements under the Resource Conservation and Recovery Act when the materials can be converted for energy production and if their emissions are comparable to those from burning fuel oil. The EPA is proposing to expand the list of excluded materials, arguing that this in the interest of capitalizing on potential energy sources. Currently about 13,000 tons of fuel per year are excluded; if approved, an additional 107,000 tons would be exempt from the requirements and would be converted into fuel. Twenty-five members of Congress sent a letter to the EPA criticizing the agency for waiting until the public comment period ended before revealing the names of the selected facilities that would manage the waste. They also have requested more information on the potential impact to air quality, and voiced concerns over the selected facilities and their poor track record in managing and disposing of hazardous wastes in the past.

RIN: 2050-AG24

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5905

The Proposal

EPA currently excludes specific industrial wastes, also known as comparable fuels, from most Resource Conservation and Recovery Act (RCRA) hazardous waste management requirements when the wastes are used for energy production and do not contain hazardous constituent levels that exceed those found in a typical benchmark fuel that facilities would otherwise use. Using such wastes as fuel saves energy by reducing the amount of hazardous waste that would otherwise be treated and disposed; promotes energy production from a domestic, renewable source; and reduces use of fossil fuels. With an interest in supplementing the Nation’s energy supplies and to ensure that energy sources are managed only to the degree necessary to protect human health and the environment, EPA, as part of the Resource Conservation Challenge, is examining the effectiveness of the current comparable fuel program and considering whether other industrial wastes could be safely used as fuel as well.

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Public Comments

API, in conclusion, supports EPA’s intention of expanding the comparable fuels exclusion so that it includes legitimate fuel-value components.  However, we disagree with the need for extensive and complex conditions proposed to achieve that goal. Rather, we believe that the proposed complexity will discourage companies from taking advantage of the exclusion and will thus relegate materials that could be legitimately used in commerce as fuels to lesser uses or to waste. This will be a loss of energy resources and a missed opportunity. API suggests that there is an easier, more efficient way to meet the requirements and spirit of the law than the complex pathway proposed in this rule. -Thomas Purcell, senior environmental scientist, API, a trade group for the oil and natural gas industry

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Many Wetlands Cases Fell Through Enforcement Cracks

In Effect June 08, 2007 Environment

Agency: Environmental Protection Agency

Formal Name: Draft EPA/Army Guidance Regarding CWA Jurisdiction after Rapanos

At Issue: A Supreme Court decision in 2006 left federal regulators unclear about who has jurisdiction over non-navigable bodies of water, such as seasonal streams, swamps and marshes, and how to determine the navigability of a body of water. As a result, hundreds of potential violations of the Clean Water Act have fallen to the wayside. The EPA and Army Corps of Engineers have issued guidelines to resolve questions of jurisdiction, enforcement and definition.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5764

The Proposal

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers are today issuing agency guidance, effective immediately, regarding Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States (``Rapanos’‘). The agencies are issuing this guidance to ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions being conducted under the CWA are consistent with the Rapanos decision and provide effective protection for public health and the environment.

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Public Comments

In particular, Audubon is concerned that the exclusion of intermittent streams, ditches, and erosion features will threaten Important Bird Areas (IBAs), environs internationally recognized as being vital to biodiversity, especially with regard to bird life. Since many IBAs include intermittent streams, they will no longer be assured CWA protection, heavily influencing the ecological health of both the area and its related waters. -Betsy Loyless, Dr. Gregory Butcher, Michael Daulton et al.,  Audobon Society

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New Regs for Fast Tracking Federal Review of Capital Cases

In Effect June 06, 2007 Justice

Agency: Department of Justice

Formal Name: Certification Process for State Capital Counsel Systems

At Issue: States that have provisions to guarantee competent counsel for indigent defendants in capital cases would be able to request certification, which would allow the state to expedite federal habeas corpus review. This rule establishes the process for certification. Some U.S. courts are concerned that expediting habeas review will place a heavy, even insurmountable, burden on the system. Others are concerned about shifting the power of certification from federal judges to the U.S. Attorney General.

RIN: 1121-AA74

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5874

The Proposal

The USA PATRIOT Improvement and Reauthorization Act of 2005 instructs the Attorney General to promulgate regulations to implement certification procedures for States seeking to qualify for the expedited Federal habeas corpus review procedures in capital cases under chapter 154 of title 28, United States Code. The benefits of chapter 154 are available to States that establish a mechanism for providing counsel to indigent capital defendants in State postconviction proceedings that satisfies certain statutory requirements. This rule carries out the Act’s requirement of issuing regulations for the certification procedure.

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Public Comments

The proposed regulations also need to explain what evidence the Attorney General will consider before deciding whether a state provides competent and adequate resources to inmates sentenced to death; The proposed regulations must designate a neutral office or official to collect specific information about the state’s system of appointing and compensating competent counsel in death penalty cases.  Objectivity and not politics or favoring the prosecution in death cases is necessary; The proposed regulations must require detailed information from the state to prove that every death penalty inmate receives competent counsel with adequate resources according to the same standards.  -Robert Dudek, Appellate Defense

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EPA May Ease Restrictions for Power Plants Near National Parks and Wilderness Areas

Withdrawn June 06, 2007 Energy & Environment

Agency: Environmental Protection Agency

Formal Name: Prevention of Significant Deterioration: Refinement To Increment Modeling Procedures

At Issue: The EPA proposes to change the way air pollution is measured in national parks and wilderness areas, known as designated Class I areas. The rule would allow a company to obtain a variance for a proposed construction project, so that its pollution would be measured not by stringent Class I standards, but by the laxer standards designated for Class II areas instead. Pollution would be measured as an average over the course of the year, rather than in smaller increments that highlight spikes in pollution, which often violate the law.

RIN: 2060-AO02

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5910

The Proposal

Part C of title I of the Clean Air Act (CAA) contains the requirements for a component of the major New Source Review (NSR) program known as the Prevention of Significant Deterioration (PSD) program. This program sets forth procedures for the preconstruction review and permitting of new and modified major stationary sources of air pollution locating in areas meeting the National Ambient Air Quality Standards (NAAQS), i.e., “attainment” areas, or in areas for which there is insufficient information to classify an area as either attainment or nonattainment, i.e., “unclassifiable” areas. The applicability of the PSD program to a particular source must be determined in advance of construction and is pollutant-specific. The PSD program also established increments, which are maximum increases in ambient air concentrations allowed in a PSD area over a baseline concentration. ... In this rulemaking, we will finalize refinements to several aspects of the method that may be used to calculate an increase in concentration for increment purposes. These refinements are intended to clarify how States and regulated sources may calculate increases in concentration for purposes of determining compliance with the PSD increments.

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Public Comments

I find it distressing when an agency pledged to uphold the law instead creates ways for polluters to get around the law. I also find it disturbing when an agency pledged to protect the American public proposes rules that benefit corporate polluters, but not the rest of us.

Future generations deserve to enjoy our national parks and wilderness areas unimpaired. This rule will negate that, and I urge you not to adopt it. -Mike Mullarkey, citizen

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EPA Establishes Limits for a Fungicide Used in Farming

In Effect May 09, 2007 Health & Science

Agency: Environmental Protection Agency

Formal Name: Ipconazole; Pesticide Tolerances

At Issue: Chemtura Corp. filed a petition with the EPA to request the establishment of tolerances -- the legal limits for a pesticide chemical residue in or on food -- for ipconazole, a fungicide used to treat seeds for cotton and some legumes and grains. The EPA classified the chemical as unlikely to be a human carcinogen. This determination was based on studies conducted in mice and rats.

RIN: n/a

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6152

The Proposal

This notice announces the initial filing of pesticide petitions proposing the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

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Public Comments

WE DO NOT WANT OUR SEEDS TREATED WITH TOXIC CHEMICALS [BEFORE] PLANTING. WE ARE SICK OF THIS AGENCY APPROVING EVERY TOXIC CHEMICAL POLLUTER THAT APPEARS BEFORE IT. NO ATTENTION HAS BEEN GIVEN TO HEALTH AT THIS AGENCY, WHICH EXISTS TO APPROVE EVERY APPLICATION FROM TOXIC [POLLUTERS] FOR THE PAST 17 YEARS. THE PUBLIC WELFARE HAS BEEN FORGOTTEN BY EVERY EMPLOYEE OF THIS AGENCY. THIS IS INCREDIBLY DESTRUCTIVE FOR AMERICA. -Anonymous

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Some Power Plants Could Be Exempted from Installing Pollution Controls

Withdrawn May 08, 2007 Environment

Agency: Environmental Protection Agency

Formal Name: Prevention of Significant Deterioration and Nonattainment New Source Review: Emission Increases for Electric Generating Units

At Issue: Emissions from power plants will be monitored by the hour instead of by the year, which critics say could allow power plants to pollute more than currently allowed and to avoid installing expensive new pollution control technology.

RIN: 2060-AN28

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5648

The Proposal

In the October 2005 NPR, EPA (we) proposed to revise the emissions test for existing electric generating units (EGUs) that are subject to the regulations governing the Prevention of Significant Deterioration (PSD) and nonattainment major New Source Review (NSR) programs (collectively ‘‘NSR’’) mandated by parts C and D of title I of the Clean Air Act (CAA). We proposed three alternatives for the emissions test: a maximum achievable hourly emissions test, a maximum achieved hourly emissions test, and an output-based hourly emissions test.

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Public Comments

ADK strongly opposes both the October 2005 test option as well as the new supplemental preferred option. Both the 2005 test option and the new proposed test option would give power plant operators an opportunity to game the system by undertaking major service life extension projects without a pre-modification NSR permit and avoid the requirement to retrofit air pollution reduction technology by keeping within an hourly rate, but operating for longer time periods and materially increasing the actual, annual amount of air pollution, acid
deposition and mercury emitted. -Neil F. Woodworth, Executive Director, Adirondack Mountain Club

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EPA Narrows the Definition of Solid Waste

In Effect March 26, 2007 Environment

Agency: Environmental Protection Agency

Formal Name: Definition of Solid Wastes Revisions

At Issue: Earlier this month, the Environmental Protection Agency issued a rule that alters the definition of solid waste under the Resource Conservation and Recovery Act. It effectively exempts about 1.5 million tons of hazardous waste that is recycled from a regulation that required such material to meet strict labeling, transportation and disposal rules.

RIN: 2050-AG31

Permalink: http://www.propublica.org/special/midnight-regulations#reg-5740

The Proposal

Based on the comments received and the new information being made available for public comment, the Agency issued a supplemental proposal on March 26, 2007 (72 FR 14172), to exclude from being a solid waste certain hazardous secondary materials that are reclaimed. We also took comment on revisions being considered to the legitimacy criteria, as well as on a variance process regarding hazardous secondary materials that are recycled.

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Public Comments

While this proposal is a small step in the right direction, EPA should support a broader exclusion of recycling activities if recycling is to increase. EPA’s current rules have resulted in the creation of a whole industry devoted to safe recycling of materials – especially for small businesses that can not afford to establish their own internal recycling options. EPA should support this type of specialization when it increases recycling and benefits the environment. It would be unfortunate if a by-product of this proposal could be an undermining of the recycling industry that safely services small businesses in America. -Robert Westcott, Wesco Parts Cleaners

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Electronic On-Board Recorders for Trucks Could Better Enforce Hours Rule

OMB Review January 18, 2007 Business

Agency: Department of Transportation

Formal Name: Electronic On-Board Recorders for Hours-of-Service Compliance

At Issue: The Department of Transportation is seeking ways to make sure long-haul trucker comply with regulations that establish the number of hours they can drive. The proposed rule looks at three alternatives: (1) mandating the recorders across the industry; (2) requiring trucking companies to install the recorders only if they have demonstrated a "serious" level of noncompliance; or (3) allowing use of the recorders to remain voluntary. Public interest groups have complained that the second option will cover only a tiny percentage of the industry, and are advocating for an industry-wide mandate.

RIN: 2126-AA89

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6153

The Proposal

This rulemaking would amend the Federal Motor Carrier Safety Regulations to incorporate new performance standards for electronic on-board recorders (EOBRs) to document compliance with the Federal hours-of-service rules. This would help ensure that performance standards for EOBRs are appropriate and reflect state-of-the-art communication and information management technologies. The rulemaking would consider the potential benefits and costs of requiring motor carriers to install and use EOBRs and evaluate alternative approaches including: 1) mandating such practice industry-wide, 2) limiting the requirement to motor carriers with certain characteristics, and 3) allowing EOBR use to remain voluntary.

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Public Comments

Having a son killed in a head on collision with a truck and trailer driver, who was then taken out of service for falsification of logs. I know the importance and the challenge of the FMCSA to assure compliance with the hours of service. -Chuck Mosqueda, Supervisor, Applied & Engineering Technologies, Commercial Driver Education, Wichita Area Technical College

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Proposed Standards for Car Roof Strength Not Strong Enough, Critics Say

Open to Comment August 23, 2005 Business

Agency: Department of Transportation

Formal Name: Roof Crush Resistance

At Issue: Current standards for the strength of roofs of passenger vehicles have been in place for 35 years. For at least five years, the Department of Transportation has been trying to upgrade the requirements in an attempt to reduce the number of fatalities and serious injuries during rollovers of cars and light trucks. The current standard holds that a roof must be able to withstand a force equivalent to 1.5 times the unloaded vehicle weight. DOT proposes increasing the standard to 2.5. Critics, including those within the insurance industry, say the standard should be at least three times the unloaded vehicle weight. The agency has also been criticized for the methodology it used to determine an appropriate standard. Other provisions in the rule include safety and crash-avoidance initiatives, including electronic stability control, which could help prevent rollovers, and the strengthening of door locks to lower the likelihood of a person’s being ejected from the car when a rollover occurs. This rule, like some others, has pre-emptive language that would prevent consumers from making a claim against an auto manufacturer through the state tort system. But in an interesting twist, DOT has postponed the finalization of the rule until April 30, 2009. This will leave room for the Obama administration to add input should it choose to do so.

RIN: 2127-AG51

Permalink: http://www.propublica.org/special/midnight-regulations#reg-6720

The Proposal

On August 23, 2005, NHTSA published in the Federal Register (70 FR 49223) a notice of proposed rulemaking (NPRM) to upgrade Federal Motor Vehicle Safety Standard (FMVSS) No. 216, Roof Crush Resistance.\1\ As discussed in the NPRM, this ongoing rulemaking is part of a comprehensive plan for reducing the serious risk of rollover crashes and the risk of death and serious injury in those crashes. In addition to roof crush, other strategies in the comprehensive approach include crash-avoidance initiatives such as electronic stability control which will significantly reduce the number of rollovers, as well as crashworthiness efforts such as ejection mitigation and improved door lock strength which will lower the probability of ejection when rollovers do occur.

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Public Comments

Ford Motor Company does not believe that increasing the regulated roof strength-to-weight ratio alone, or the adoption of a two-sided roof strength standard, will provide demonstrable incremental benefits to belted occupants in rollovers. However, if future safety belt systems can be developed, combined with rollover activated side curtains, to work in concert with enhanced roof structures, then some additional benefits for belted occupants in rollovers may be possible. -James P. Vondale, director, Automotive Safety Office, Ford Motor Company

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Legend:

  • RIN stands for Registered Identification Number. Each rule is assigned its own RIN, and it can be a very helpful tool when searching for information on the rule in the federal register and other websites.
  • Unknown ProPublica is waiting to hear back from the appropriate agency to confirm this rule’s status.
  • Open to Comment The agency proposing this rule is accepting comments from the public.
  • Closed to Comment The agency is no longer accepting comments. During this stage the agency reviews public input and may make further revisions to the rule.
  • OMB Review The Office of Budget and Management reviews the rule. They may make recommendations for revisions or approve the rule to be finalized.
  • OMB Approved OMB has approved the rule, it now goes back to the Agency that wrote the rule for finalization in the federal register.
  • Withdrawn The agency has withdrawn its proposed rule from consideration.
  • Finalized The rule is published in the Federal Register as a final rule. If considered a major rule, it is submitted to Congress and the Government Accountability Office. After the 60-day congressional review, it will go into effect. If the rule is not deemed ‘major,’ it may still undergo review by Congress, but it is not subject to the 60-day wait period.
  • In Effect The rule is implemented.