Odds and ends from the Federal Register last week The Department of Health and Human Services (HHS) Food and Drug Administration (FDA) proposed wholesale changes in food labeling, a White House priority. The Department of Justice (DOJ) published a non-regulatory controversial final policy on how it will relate to news media in requesting information and contacting journalists. And the Environmental Protection Agency (EPA) released a technical document on greenhouse gases generated by new electric power plants and ran close against legal requirements that it provide an effective comment period on its proposals and supporting documents.
FDA Food Labeling: The Food and Drug Administration today published two economically significant proposed rules to substantially alter food labeling nutritional facts and serving sizes, requesting comments by June 2, 2014. The FDA proposes to update the regulations based on new consumption studies and analysis.
► Food labeling poses a distinct set of questions that need serious consideration: (1) whether consumers actually read the labels and (2) whether, if they read the labels, they make choices based upon the labels. Information, the Administration would argue, is power, and the question then becomes whether the consumer wishes to pay for that power, as the costs of food labeling changes will be passed along to the consumer.
DOJ Guidelines on Journalist Subpoenas: On Thursday, Feb. 27, 2014, the Department of Justice (DOJ) published its Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media. DOJ continues to take the position that the Administrative Procedure Act (APA) excepts this general statement of policy from the formal legislative rulemaking requirements, a strong indication that the policy is not a judicially enforceable rule, even though it is called a “rule.” The policy tightens the approval process for subpoenas for records that relate to news information gathering and communications with, and particularly arrests of, members of the media, but the policy has distinct limitations.
The enforcement mechanism is internal: “Failure to obtain the prior approval of the Attorney General, as required by this policy, may constitute grounds for an administrative reprimand or other appropriate disciplinary action.” The policy itself elides judicial enforceability through the boilerplate statement that the policy “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”
► DOJ’s content can give little solace to the undefined “news media” – exemplified only in the description of DOJ activities – for the simple reason that it is not designed to do more than make a public statement of intent and the Attorney General does not have authority to create legislative rules restricting the sources of potential evidence. Like previous enforcement statements, this guidance has only DOJ’s current discretion behind it. Although no other agency can file criminal charges, and other agencies should be loath to seek search warrants in violation of DOJ policy, many agencies my issue subpoenas and are not bound in any way by the Attorney General’s edict.
EPA Greenhouse Gas Data: EPA published on February 26, 2014, a notice of data availability (or NODA) of a technical support document for its proposed Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units that it published January 8, 2014, and on which comments are due Monday, March 10, 2014.
► In short, EPA would be giving less than two weeks to comment on the data supporting its proposed rule – a period that falls woefully short of the requirements of either the APA or the Clean Air Act (CAA) for providing an “effective” opportunity to comment. But wait – Jacob Hollinger at Energy Business Law notes that EPA professes to grant an extension of the public comment period on the proposed rule and the technical document for an additional 60 days to May 9, 2014, in a notice signed on February 26, but not yet published in the Federal Register. The extension should have been coordinated, but at least they got it right.