pageok
pageok
pageok
FWS Staff to Review Seven Comments a Minute:

In August, the Bush Administration proposed substantial revisions to the regulations governing federal agency consultations with the Fish & Wildlife Service and National Marine Fisheries Service regarding the potential impact of federal agency actions on endangered and threatened species under Section 7 of the Endangered Species Act. Section 7 is the portion of the ESA that prohibits federal agencies from authorizing or undertaking actions that could harm endangered or threatened species. Toward this end, it requires federal agencies to consult with the FWS or NMFS to ensure its actions will not harm species. The proposed rules are designed to give federal agencies more discretion about when and whether to consult with FWS or NFMS, thereby limiting the effect that Section 7 has on agency action. As the Interior Department explained when the proposal was issued:

These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species. Under the proposed rule, agency actions that could cause an adverse impact to listed species are still subject to the consultation requirement.

The proposed rule is consistent with the FWS current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears.

The proposal itself is quite extensive, and generated thousands of comments - over 200,000 in fact. Normally this would result in a drawn out rulemaking process, as all the submitted comments must be reviewed and considered. In this case, however, the Interior Department is eager to get the new rules finalized before the Bush Administration leaves office. Senator Obama has indicated his disagreement with the regulatory revision and a finalized rule would be more difficult for an Obama Administration to reverse. So, according to an AP report, the FWS has assembled a special team to review the comments on the rule.

The Fish and Wildlife Service has called a team of 15 people to Washington this week to go through letters and online comments about a proposal to exclude greenhouse gases and the advice of federal biologists from decisions about whether dams, power plants and other federal projects could harm species. That would be the biggest change in endangered species rules since 1986.

In an e-mail last week to Fish and Wildlife managers across the country, Bryan Arroyo, the head of the agency's endangered species program, said the team would work eight hours a day starting Tuesday to the close of business on Friday to sort through the comments. . . .

At that rate, according to a [House Natural Resources] committee aide's calculation, 6,250 comments would have to be reviewed every hour. That means that each member of the team would be reviewing at least seven comments each minute.

It usually takes months to review public comments on a proposed rule, and by law the government must respond before a rule becomes final.

Even considering the fact that a large portion of the comments were form-letters (or their equivalent) generated by environmental activist groups, reviewing 200,000 comments in 32 hours is a stretch — and the public exposure of this process will only make it more difficult for the Interior Department to defend its rules. I was skeptical that the Administration's proposed changes will survive judicial review before, as I do not believe the ESA's consultation requirements are as flexible as the Bush Administration would like, particularly considering the way in which these requirements have been interpreted in federal court. But even if I am wrong about the legality of the proposed changes, agency failure to provide adequate consideration of public comments in the rulemaking process is just asking for more trouble. Those on the FWS comment review team better be up on their Evelyn Wood.

UPDATE: According to this report, the FWS actually received 300,000 comments, but approximately 100,000 of which were form comments of some sort generated by interest groups.

MS (mail):
Lame duck makes Fish and Wildlife work like dogs.
10.23.2008 1:32am
dssinc (mail):
Why would anyone expect this administration to begin acting like it gave a hoot about commonly accepted procedures for good government at this late stage? These clowns have always acted as they wished, public and process be damned.

The sad part is just how much we, the governed, have let them get away with it, not to mention how costly their shenanigans have been.

Thanks for sharing...
10.23.2008 1:53am
UW3L:
God forbid they work overtime. Or get more than 15 people involved. But per Vermont Yankee I don't suppose they can be made to do either...?

They don't have to respond to *all* the comments, the way the article suggests they do -- just the ones that bring up significant problems. And they've got 3 months to do that. But arguably the 3 months left in which to respond and finalize the rule is a harder timeframe to meet than this 4-day review period. That is, if they take seriously their duty to respond. Maybe that depends on whether it'll be Somebody Else's Problem after 1/20/09, or if the FWS people involved can expect to keep their jobs in the next administration.
10.23.2008 2:04am
astrangerwithcandy (mail):

Why would anyone expect this administration to begin acting like it gave a hoot about commonly accepted procedures for good government at this late stage?


thats right! this administration indeed! the only group of politicians to ever engage in suspect practices. you tell'em!
10.23.2008 2:24am
roadwarrior (mail):
The biggest question i have is why is the Bush administration getting so involved in things like this when he is on his way out the door? I know somethings he does to make a big splash before he leave and other things he does just get under the skin of the liberal illuminati but something like this seems peculiar for them to get involved with.
10.23.2008 2:24am
Soronel Haetir (mail):
Would it be allowed to just collate the form letter submissions into some sort of count, possibly extracting names? (I'm thinking electronic comment submission here, not dead tree edition). If that is within the allowed proceedures then a simple match check could be performed to deal with that type comment thus speeding the process greatly.
10.23.2008 2:44am
Splunge:
Oh give me a break. What percentage of those comments actually say something that hasn't already occured to people steeped in the whole issue? I'm guessing of order zero, although I might be off by an order of magnitude or two.

Almost everything else is going to be a hackneyed screed that very likely fits into one of a dozen categories of standard storyline (This is just one more example of how you Bushitler Halliburton bastards hate Bambi you make me sick or I'm a lawyer and I don't think you're spending enough money on hiring lawyers to review stuff and blah blah). You could just make a list of them, after reading the first 1,000, and then sit there and scan the remaining texts, making a tick mark next to that standard speech of which it's yet another slight variation. I don't think it would be hard to parse seven a minute. Indeed, I'm not sure one would need the entire 8.6 seconds once you became familiar with the basic storylines.

I mean, does it take more than 8.6 seconds to parse the standard VC comment? Heck no.
10.23.2008 3:24am
JosephSlater (mail):
Hey, it's just like the law review article selection process -- just get some former editors!

/ducks/
10.23.2008 9:24am
Thorley Winston (mail) (www):
Would it be allowed to just collate the form letter submissions into some sort of count, possibly extracting names? (I'm thinking electronic comment submission here, not dead tree edition). If that is within the allowed proceedures then a simple match check could be performed to deal with that type comment thus speeding the process greatly.


That was my first thought as well. There probably is some sort of software that you can feed electronic comments into and seperate the ones that are ver batim repeats of each other (the electronic "form letters") from the rest. In which case you only need to review that one once and can just note "repeated 150,000 times." I'm guessing that the majority of the comments were submitted electronically, probably at the behest of activist groups who provide a prewritten form letter, to get to that level of volume.

Also some of the comments may be short along the lines of "I oppose/support the proposed rule change" with no additional information or explanation. We had to review comments in my admin law and environmental law classes and I remember seeing quite a few of those.
10.23.2008 9:32am
ghost in the machine:
This is very useful to know. The way to shut down Leviathan is to bury it in submitted comments. When a new regulation is proposed, simply have a "grass roots" campaign to submit millions of comments to gum up the works. This is straight out of Saul Alinsky - make them follow their own rules. Then sue to make sure they have read and considered each comment, nothing will ever get done and we will all be better off.
10.23.2008 10:03am
J. F. Thomas (mail):
That was my first thought as well. There probably is some sort of software that you can feed electronic comments into and seperate the ones that are ver batim repeats of each other (the electronic "form letters") from the rest.

As someone who was given precisely this very tedious task at a federal agency, I can tell you there might very well be such a program, but the federal agencies don't have it. The type of database programs that you refer to are pretty unreliable too. Computers just aren't that smart.

Besides, while organizations do indeed supply a suggested form letter for their members to submit, people are encouraged to add their own comments or modify the letter to personalize it. So sorting out the responses into strictly form letters and non form letters is not as easy as it seems.
10.23.2008 10:23am
Houston Lawyer:
I don't believe that any regulatory agency is obliged to address comments in any meaningful way. They are free to say, and often do, that their prerogatives override the concern raised by the comments or just dismiss the comments as having no merit. I don't believe I've heard of a case where a court threw out regulations for failure to address comments raised.
10.23.2008 11:12am
Fub:
ghost in the machine wrote at 10.23.2008 9:03am:
This is very useful to know. The way to shut down Leviathan is to bury it in submitted comments. When a new regulation is proposed, simply have a "grass roots" campaign to submit millions of comments to gum up the works. This is straight out of Saul Alinsky - make them follow their own rules. Then sue to make sure they have read and considered each comment, nothing will ever get done and we will all be better off.
Sorry, but this isn't even wrong.

Otherwise the FCC would have shut down decades ago from the 30 million comments (by FCC count) to rulemaking petition RM-2493 submitted in 1974, in which neither Saul Alinsky nor any followers or intellectual heirs were involved.
10.23.2008 12:09pm
Sam Draper (mail):
Maybe this will be their excuse for putting the proposed regulations allowing guns in National Parks/Wildlife Refuges on the back burner until after the clock runs out; Bush wants to screw over gun owners one last time before he leaves office. Just like the old man.
10.23.2008 12:13pm
Borealis (mail):

I have reviewed the public comments for other similar controversial environmental policy proposals. If they received 300,000 "comments", then 299,000 of them are people clicking a button on environmental web sites, half of them with names like "Polar Bear" and "Webteen116".

Of the 1000 comments where someone actually wrote some original text:
- 500 of them just say global warming is bad;
- 450 of them copy paragraphs from sample letters of environmental groups and add a couple sentences of their own
- 40 of them are from environmental groups that "sign on" to comments written by non-profit environmental legal groups
- 5 of them are from national environmental groups with lawyers with original legal research and argument against the proposal
- 5 of them are from lawyers hired by industry groups to support the proposal.

Thus, the agency really only needs to deeply analyze ten comments, and also take note of the public sentiment expressed by the others (how they do that is another story).
10.23.2008 12:40pm
courtwatcher:
As Borealis points out, the quantity of comments isn't really the issue.
But to "deeply analyze" even a dozen or so really substantive comments adequately will likely not be possible in that amount of time. The legal and policy issues are complex and contentious, and the comments are quite involved and lengthy and technical, and it is stretching credulity to think that the agency can analyze and respond to them so quickly. The agency will need to draft a final rule that incorporates them effectively if need be, and on a lightning-quick timeframs with that size staff there is a risk serious mistakes in legal analysis, drafting, and judgment. As Jonathan notes, the proposed rule is very likely outside the agency's authority, and in a case like this every word the agency writes will be scrutinized by a reviewing court. It's just not reasonable or wise to draft final regulations on this issue, including a preamble with adequate responses to comments, under these circumstances. It is likely to make a court even more likely to hold the rule invalid.

For some ironic contrast, witness the EPA's 14-month delay in even issuing any federal register notice at all after the Mass v EPA decision. The agency then issued an "advanced notice of proposed rulemaking" with an 180-day comment period, without even a proposed rule, based on its assertion that the issues are so complex that the agency must take extensive public comment before even issuing a proposed rule (which will happen in the next administration at this point). Here, somehow, the issues are so clear and the rulemaking so urgent that it has to be expedited.
10.23.2008 12:58pm
Anderson (mail):
I don't believe I've heard of a case where a court threw out regulations for failure to address comments raised.

That exactly anticipates my question, Houston.

Is there such a case? Anyone?
10.23.2008 1:26pm
Dave Hardy (mail) (www):
Yup, the problem isn't the volume, but finding the quality arguments against (and making sure they weren't buried in an otherwise minor comment) and answering them all.

ESA is hard to get around, it's about as tightly written a set of commands and mandates as I can envision. It won't be easy to answer the argument that "if greenhouse gasses affect the ice caps, and those are shrinking, and the listed polar bear is looking at real trouble (all of them already the agency position), how do you say an action affecting those gasses 'will not affect' (the legal standard for consultation) the polar bear"?
10.23.2008 1:26pm
subpatre (mail):
Borealis nailed it. There are a few other categories: 20-or-so original written letters, emails forwarded from Congress, etc.

But the vast majority are made by using a website form where the client enters a valid zip code, 'signs' with some text, and clicks the "Send Your Comment" button. This generates an email to the President, one to Secretary of the Interior, one to Director of the Fish and Wildlife Service, one to each of two Senators and one Congressman.

Except for Dale Hall (Director F&WS) all these are forwarded to F&WF, effectively quintupling the number of 'comments'. As Borealis notes, "Polar Bear" and "Webteen116" names proliferate, as does profanity, identical IP addresses, timed repetitions and other fraud.

By copy-n-pasting the entire entry paragraph, Microsoft Outlook --the email program-- can find all identical messages and filter them into new folders. Comment counts, signatures, return addresses can all be automatically extracted from this.
10.23.2008 1:30pm
J. F. Thomas (mail):
Bush wants to screw over gun owners one last time before he leaves office. Just like the old man.

In what possible way is continuing a longstanding policy "screwing over gun owners"?
10.23.2008 4:12pm
Virginian:

In what possible way is continuing a longstanding ANTI-GUN policy, DESPITE A REQUEST FROM A MAJORITY OF US SENATORS TO REVERSE THE POLICY, "screwing over gun owners"?


Perhaps my edit above will help you answer your own question.
10.23.2008 4:30pm
zippypinhead:
It amazes me that anyone thinks the sheer number of comments will sway agency rulemaking. The notice and comment provisions of the Administrative Procedures Act are not intended to be a popular referendum where the "votes" are tallied up and the rulemaking agency acts in accordance therewith.

While my experience in this particular area isn't vast (thank heavens), long ago and far away I occasionally got stuck dealing with public comments. Once I was unfortunate enough to be involuntarily roped onto a team reviewing several tens of thousands of public comments on a nightmarish, high-profile matter, which I learned was handled just like such mega-comment rulemakings typically are. Based on that mind-numbing experience: FWS staff will categorize the comments into a half dozen or so substantive subjects. Form comments will be essentially disregarded - they will be treated as *one* substantive comment, and at best the gross number of plagiarists will be tallied for statistical purposes. Non-form comments making the same basic point will be grouped together, and staff will devote its efforts to addressing (and in the case of negative comments, rebutting) the common substantive issues. There will be a very small handful of detailed comments from academics, legal counsel, technical experts, and a few of the more thoughtful interest groups that will be singled out for individual consideration, but the vast majority of public comments will be dealt with collectively.

And, if it's anything like the awful project I was stuck on -- some wag on the staff will spend his free time compiling the most vulgar, scatalogical, and inflammatory comments, and when everything is over, either use them in a "funny" limerick or song for the next office party, make up joke certificates or t-shirts with comment excerpts (usually starting with the phrase "I survived..."), or will figure out how to make some sort of drinking game out of them. Oh, and the Federal Register pages make a great fire-starter for the BBQ grill at the office summer picnic, too.

Your Government At Play...
10.23.2008 4:37pm
rxlawstudent:
I don't believe I've heard of a case where a court threw out regulations for failure to address comments raised.

That exactly anticipates my question, Houston.

Is there such a case? Anyone?


If I recall correctly: Us v. Nova Scotia Food Products 568 F. 2d 240 (2d Cir. 1977)
10.23.2008 11:25pm
Jonathan H. Adler (mail) (www):
Houston Lawyer, et al.,

While a federal agency is not required to respond to each and every comment, it is required to respond to any significant argument or critique offered in the comments, and failure to do so can be cause for remand. For a good statement of the standard, see City of Waukesha v. E.P.A.
320 F.3d 228, 2576-58 (D.C. Cir. 2003).

Section 553 of the APA requires that an agency “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation” and, “[a]fter consideration of the relevant matter presented, ... shall incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553(c). The agency “need not address every comment, but it must respond in a reasoned manner to those that raise significant problems.” Reytblatt v. Nuclear Regulatory Comm'n, 105 F.3d 715, 722 (D.C.Cir.1997) (citing Action on Smoking &Health v. CAB, 699 F.2d 1209, 1216 (D.C.Cir.1983)). Nevertheless, “ ‘[t]he failure to respond to comments is significant only insofar as it demonstrates that the agency's decision was not based on a consideration of the relevant factors.’ ” Texas Mun. Power Agency v. EPA, 89 F.3d 858, 876 (D.C.Cir.1996) (quoting Thompson v. Clark, 741 F.2d 401, 409 (D.C.Cir.1984); alteration in original).

In this case, I don't think the FWS will need to respond to every form letter comment generated by interest groups, but insofar as the administration wants to try and insulate the rule against legal challenge, they need to review every comment and make sure that any significant critiques or concerns are answered.

JHA
10.24.2008 11:11am