Job Vacancies: CPSC

The Consumer Product Safety Commission has posted a vacancy for a General Attorney position, GS 11/14 (excepted service). The closing date is Monday, August 2.

Electronic Access to Information: Recent Developments

Since last week, there have been two noteworthy developments that concern federal agency practices with respect to electronic information. First, on July 22, the General Accountability Office (GAO) published testimony about challenges that federal agencies face in using Web 2.0 technologies (e.g., agencies' presence on Facebook, Twitter, and YouTube). In brief, the challenges that GAO identified included (1) determining how the Privacy Act applies to information exchanged in the use of Web 2.0 technologies, such as social networking sites; (2)determining how to appropriately limit collection and use of personal information and how and when to extend privacy protections to information collected and used by third-party providers of Web 2.0 services; (3) safeguarding personal information from security threats; (4)government identification and preservation of federal records; and (5) appropriately responding to Freedom of Information Act requests.

Second, on July 26, at a ceremony to mark the 75th anniversary of the Federal Register, the Archivist of the United States and the Director of the Federal Register unveiled Federal Register 2.0. According to a National Archives press release, Federal Register 2.0 is "a new user-friendly version of the daily online Federal Register" accessible at http://www.federalregister.gov/.

Communications: Second Circuit Invalidates FCC Indecency Policy

On July 13, the U.S. Court of Appeals for the Second Circuit held in Fox Television Stations v. FCC, that the Federal Communications Commission's indecency policy "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." (Slip op. at 4) While the Supreme Court had held, on appeal from the Second Circuit's prior decision in this case, that the FCC's policy was not arbitrary and capricious under the Administrative Procedure Act, it remanded for the Second Circuit to consider the vagueness argument.
The Court of Appeals found the FCC's standards to be "indiscernible," and noted that "even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment " (id. at 27). It also found that the FCC's policy "has chilled protected speech" (id. at 29), citing examples from various television and radio programs.
In striking down the FCC's policy, the court was careful to state that "[w]e do not suggest that the FCC could not create a constitutional policy." It held only that the FCC's current policy -- which the court stated "has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment" --"fails constitutional muster" (id. at 32).

Administrative Conference of the United States: Oversight Hearing on ACUS

Last Thursday, May 20, the House Judiciary Committee's Subcommittee on Commercial and Administrative Law held an oversight hearing on ACUS. The two panels of witnesses included Justices Breyer and Scalia, as well as two former Admin Law Section Chairs (Paul Verkuil, the new ACUS Chairman, and Sally Katzen of the Podesta Group), Jeffrey Lubbers of American University's Washington College of Law, and Curtis Copeland of the Congressional Research Service. Copies of the witnesses' prepared statements are available on the Committee's website. In addition, Thomas Susman, Director of the ABA Governmental Affairs Office, submitted for the record a letter expressing support for ACUS and attaching an August 2009 list of recommended study topics for ACUS.

Education: New York City Municipal Regulation on Sale of Home-Baked Goods

On February 25, 2010, the New York City Department of Education (DOE) issued Regulation A-812 "to provide additional flexibility for fundraising while conforming to the Department of Education’s Wellness Policy and initiatives to improve the quality and nutritional value of foods and beverages that are available for children." In brief, Regulation A-812 allows New York City public school students to sell any “approved“ items (from a DOE list) any time during the day in the chool "as long as the sale of the approved food items occurs outside of the school cafeteria." Homemade food items, however, are not "approved" items. PTAs are permitted to hold monthly fundraisers with non-approved food items during the day "as long as the sale of the non-approved food items occurs outside the cafeteria" and complies with other specified DOE Regulations.

In response, as a New Yorker article entitled "Free Betty Crocker!" recently reported, a few hundred parents and children held a protest in downtown Manhattan to protest the bake-sale ban. This protest, however, appears to be just one of a series of actions reflecting popular unrest that was first triggered by the 2009 version of Regulation A-812, which included an outright ban on bake sales. Those actions included the establishment of a Facebook page, student petitions, and resolutions by community boards and a local school council. So far, this resistance by parents and children has not crumbled.

Administrative Conference of the United States: Posted Openings

The Administrative Conference of the United States has two senior-level vacancies for which it has posted announcements on USAJobs: Administrative Officer (GS-14) and Public Affairs Specialist (Communications Director) (GS-15). Both positions are full-time career/career-conditional appointments. The closing date for both postings is Monday, May 17, 2010.

Energy: D.C. Circuit Decision in Washington Gas Light Co. v. FERC

On April 27, in Washington Gas Light Company v. FERC, No. 09-1100, the U.S. Court of Appeals for the D.C. Circuit denied a petition by Washington Gas Light Company for review of a Federal Energy Regulatory Commission (FERC) decision approving a construction project (known as “the Expansion”) that would allow two companies that receive and transmit natural gas, respectively, to import greater quantities of liquefied natural gas and distribute it in gaseous form. Although FERC had originally approved the project in 2006, the D.C. Circuit decided, in Washington Gas Light Co. v. FERC, 532 F.3d 928 (D.C. Cir. 2008), that FERC had failed to carry out its obligation, under scetions 3 and 7 of the Natural Gas Act, "of ensuring the Expansion can go forward consistent with the public interest." In that prior decision, the court issued a remand order Our remand order directed FERC to “more fully address whether the Expansion can go forward without causing unsafe leakage.”

On remand, the court explained, "FERC explained that the Expansion could not be said to cause any unsafe leakage if the amount of regasified liquefied natural gas that could be delivered post-Expansion was identical to the amount that could be delivered pre-Expansion." The court found that FERC's imposition of a post-Expansion limit that matches the pre-Expansion limit "has satisfactorily ensured that the Expansion will not result in an increased risk of unsafe natural gas leakage."