The U.S. Fish and Wildlife Service (FWS) will take a second look at seven endangered species decisions made by a former senior official, Julie MacDonald. MacDonald resigned her post in April after the Department of the Interior, of which FWS is a part, discovered she had been allowing political considerations to taint species protection decisions.

After outcry from conservationists, scientific integrity advocates and the House Natural Resources Committee, FWS decided to review eight decisions in which MacDonald had been involved. FWS will now revise seven of the policy decisions after finding only one of the cases was based on "scientifically supportable" evidence.

FWS should be commended for choosing to review and revise the decisions; but the book may not be closed on MacDonald's interference. Seven of eight is a pretty big proportion and begs the question: How many other decisions did MacDonald's political ideology affect?

The Chairman of the Natural Resources Committee, Nick Rahall (D-WV), expressed that concern yesterday in a statement:

This announcement is the latest illustration of the depth of incompetence at the highest levels of management within the Interior Department and breadth of this Administration's penchant for torpedoing science. Today we hear that seven out of eight decisions she made need to be scrapped, causing us once again to question the integrity of the entire program under her watch.

Every two weeks, in OMB Watch's e-newsletter The Watcher, we analyze a few recent issues in regulatory policy. Here are the articles from the November 20 issue:

More of the Same: Import Safety Panel Leaves Business in Charge
The Bush administration's cabinet-level Interagency Working Group on Import Safety released its final report Nov. 6 on ways to improve the safety of food and consumer products imported into the U.S. The report calls for limited increases in some federal agencies' responsibilities but does little to change the current voluntary regulatory scheme for imports. Read more...

Bush Fuel Economy Measure Rejected by Court
A U.S. court of appeals has overturned a recent National Highway Traffic and Safety Administration (NHTSA) rule that revised a national standard for fuel economy. Environmentalists hailed the ruling as a victory and framed it as condemnation of the Bush administration's record on fuel economy and global warming. Read more...

OSHA Issues Personal Protective Equipment Rule
Eight years after proposing it, the Occupational Safety and Health Administration (OSHA) has finalized a worker safety rule. The final rule mandates employers pay for worker personal protective equipment (PPE). Read more...

White House Rejects Krill Protection Rule
The White House has rejected an effort by the National Oceanic and Atmospheric Administration (NOAA) to protect krill, an important marine species abundant in the Pacific Ocean. NOAA's proposed rule is a precautionary measure aimed at protecting krill in the future but was rejected by White House officials for failing to identify a need for the regulation. Read more...

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Yesterday, the National Park Service (NPS) announced a limit on snowmobile use in Yellowstone National Park. As expected, NPS will allow 540 snowmobiles per day.

For at least a decade, the limit on snowmobiles in Yellowstone has been the subject of a pitched battle between conservationists and snowmobile advocates. Just before leaving office in Jan. 2001, the Clinton administration banned all snowmobile use in Yellowstone. The Bush administration was able to delay implementation until a federal court invalidated the ban in 2004 in a case brought by the snowmobile industry.

For the past few winters, NPS had a temporary cap in place (720), but has been promising to finalize the limit. Conservationists want an outright ban on snowmobile use in Yellowstone. An Associated Press article (via the LA Times) has the story:

Bill Wade of the Coalition of National Park Service Retirees said the decision ignored science and was not good for the park, the park system and the American people.

"It circumvents the conservation emphasis that has guided management of the national parks since the establishment of the National Park Service in 1916," Wade said.

In October, 86 Congressmen (none from the Yellowstone region) wrote to NPS also asking for a ban on snowmobile use.

Interestingly, based on figures from previous winters, the new limit may not have a practical effect on snowmobile activity in the park. According to AP, average daily snowmobile use last winter was about 290.

Reg•Watch is not surprised NPS announced the policy yesterday. Media accounts will now surface on or around Thanksgiving, when almost no one is paying attention. Kudos to the media strategists at NPS.

NPS says it will publish in December a rule on implementing the limit.

Yesterday, Reg•Watch blogged about a National Oceanic and Atmospheric Administration (NOAA) rule which would expand protections for krill (a shrimp-like creature that serves as an important food source for larger marine animals) and how White House officials are blocking it.

NOAA proposed the policy even though krill is not currently fished in U.S. waters. However, NOAA experts recognized an opportunity to take a proactive step toward maintaining a sustainable marine ecosystem. In its proposal, NOAA's Pacific Fishery Management Council states, "The Council has agreed it is critical to take preventive action at this time to ensure that a krill fishery will not develop that could potentially harm krill stocks, and in turn harm other fish and non-fish stocks."

But the NOAA policy was rejected by the Office of Information and Regulatory Affairs (OIRA) — the White House office in charge of reviewing federal rules and regulations. OIRA's administrator, Susan Dudley, found fault with NOAA's rationale for pursuing the policy.

In a letter returning the rule to NOAA for reconsideration, Dudley complained NOAA did not adequately identify the need for regulation since krill is "completely unexploited" and "there are no known plans for exploitation." Apparently, Dudley believes, short of outright exploitation, the need for natural resource management does not exist.

The issue highlights a larger debate over the proper role for government. On one side is NOAA, looking ahead and making strategic judgments, then taking action to prevent any negative impact on the economy or the environment. NOAA's policy is an attempt to sort of head crisis off at the pass.

On the other side is OIRA, playing the waiting game. OIRA would prefer to let problems emerge and develop fully and then see if the market sorts it all out. If the market fails, only then would government intervention be justified. Meanwhile, as months and years pass, fishers whose stocks rely on krill would suffer, and a fragile ecosystem may fracture beyond repair.

It seems NOAA's strategy of prevention and precaution is exactly the role we would want government to play. (Imagine if government officials had approached greenhouse gas emissions with such foresight.) As a nation, we cannot afford to stand idly by and hope that certain problems will resolve themselves.

The White House Office of Management and Budget (OMB) has rejected a National Oceanic and Atmospheric Administration (NOAA) proposed rule intended to protect krill. According to NOAA's proposal, "As the principal food source for many fish and non-fish species, krill are a critical component of the marine ecosystem."

The rule would have prohibited krill harvesting off the west coast of the United States. NOAA began the rulemaking at the recommendation of the Pacific Fishery Management Council (Council), one of several independent regional advisory panels comprised of fishery management experts and local government officials.

According to NOAA, krill is not currently fished in U.S. waters. However, because of krill's importance in the food chain, "The Council has agreed it is critical to take preventive action at this time to ensure that a krill fishery will not develop that could potentially harm krill stocks, and in turn harm other fish and non-fish stocks."

On Oct. 30, OMB's Office of Information and Regulatory Affairs (OIRA) rejected the proposed rule. In a letter, OIRA Administrator Susan Dudley identified why her office is rejecting the rule. Among other things, Dudley accuses NOAA of failing to identify the rationale for the rulemaking and scolds the agency for not including measurable performance objectives.

Under Executive Order 12866, Regulatory Planning and Review, OIRA reviews agency proposed and final regulations before they are released to the public. Usually, OIRA reviews "economically significant" rules (those expected to have an economic impact of $100 million or more) and "other significant" rules (those that interfere with the actions of other agencies, materially alter budgetary impacts, or raise novel legal or policy issues).

The krill rule does not meet any of those criteria. In fact, because krill is not currently fished in the U.S., NOAA believes no economic impact would result. It appears OIRA chose to review this rule for other reasons.

The rejection of the rule comes at the end of a long-delayed White House review period. NOAA submitted the proposal to OIRA on May 29. Under E.O. 12866, OIRA is to complete its review within 90 days of receiving the rule from the agency. In consultation with the agency, OIRA may extend the review period once for 30 days. Since OIRA did not complete its review until Oct. 30, the office had exceeded its time limit by more than a month.

NOAA may go forward with a revised rule if the agency addresses Dudley's concerns.

Reg•Watch Update: "A Proactive NOAA Vs. a Reactive White House"

As promised, California filed suit yesterday against the U.S. Environmental Protection Agency for its refusal to make a decision on the state's proposal to set strict standards for vehicle greenhouse gas emissions.

In December 2005, California petitioned EPA to let the state develop its own program for regulating emissions. Under the Clean Air Act, the federal government holds the express right to regulate emissions but may grant waivers to states, which it often does. (EPA has granted California more than 50 waivers since the 1970's, according to The Los Angeles Times.) If EPA grants California's waiver request, 14 other states would follow with similar programs.

Governor Arnold Schwarzenegger gave EPA plenty of advanced notice about the suit; he wrote to administrator Stephen Johnson in April notifying EPA that California would sue if the agency did not decide on the request by October.

Nonetheless, Johnson has continued to stall and would only commit to making a decision by the end of the year. According to the LA Times, "California officials said they were pressing ahead with their lawsuit out of fear that the White House could order Johnson to postpone his decision."

Officials' fear about White House interference is not unfounded. White House officials are not happy about state attempts to impose greenhouse gas emission limits. In September, the House Oversight and Government Reform Committee unearthed an administration-wide campaign, coordinated by the White House, in which cabinet-level officials lobbied state officials and federal lawmakers with the intent of killing the state programs.

Sen. Barbara Boxer (D-CA) has requested from the White House documents related to the Office of Management and Budget's editing of testimony on climate change given by the head of the CDC. White House Counsel Fred Fielding responded with a letter on Tuesday. Here's an excerpt:

I note that the request by its very nature seeks communications involving pre-decisional deliberative materials relating to an inter-agency review process. … It is clear that the request implicates core Executive Branch interests and raises separation of powers concerns as well. For that reason … it will be necessary to discuss…the possibility of reaching an accommodation that balances Executive Branch prerogatives with the committee's legitimate oversight needs.

Translation: "Yeah right, we're never showing you any documents ever. Nice try."

Boxer wrote back yesterday saying she is "stunned" the White House would consider claiming executive privilege or separation of powers in this case. Boxer must be feeling hyperbolic this week, because one could not possibly be "stunned" the Bush White House is withholding information.

Seriously though, the controversy surrounding OMB's edits of the climate change testimony brings to light a serious point of opacity in the executive branch's policy of information disclosure. OMB officials should not be editing the congressional testimonies of public health officers simply to serve an intended political objective.

The best way to prevent future occurrences is to make the process transparent and ensure the public can see how its government is communicating.