Trump Administration once again violates law and regulation on preserving government information

Yesterday, the Web Integrity Project at the Sunlight Foundation released its third report about Web censorship at the Office on Women’s Health (OWH): Removal of Breast Cancer Website and Related Webpages from within HHS’s Office on Women’s Health Website.  The report documents how the OWH Breast Cancer website and corresponding factsheets, which contained information about the disease, including symptoms, treatment, risk factors, and public no- or low-cost cancer screening programs, have been entirely removed from within the Department of Health and Human Services’ (HHS) Office on Women’s Health (OWH) website and are no longer found elsewhere on the OWH site.

The office did not proactively announce or explain the removals. The Paperwork Reduction Act1 requires that any agency must “provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products.”   The National Archives and Records Administration (NARA) also reminded agencies in December 20162 that when significant changes are made to agency websites, federal web records, including data sets, must be scheduled and transferred to NARA for preservation.  A question has been sent to NARA as to whether the agency has complied.

1 Paperwork Reduction Act, 44 U.S.C. § 3506(d)(3)

2 NARA, “Agency Responsibilities for Managing Web Records”, December 22, 2016.

Trump Admin’s secret reorganizations/staff decimation ‘swamped’ in Omnibus

In addition to the article detailing the rescue of 19 agencies Trump intended to eliminate, Government Executive writes today on the much broader issue of government reorganization—which it apparently wished to do under the congressional and public radars. In Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Eric Katz notes that in the omnibus spending bill approved this week Congress codified its role in overseeing the process of agency reorganization (and often related diminution of staffing levels). Some of the provisions would prohibit specific proposals or workforce cuts from taking place, while others simply demand congressional review and input.

At the Environmental Protection Agency, for example, lawmakers said in an explanatory statement they were rejecting Trump’s proposed cuts and not providing any funding for “workforce reshaping.” The measure would allow for just $1 million for reprogramming, which would include “proposed reorganizations, workforce restructure, reshaping, transfer of functions, or downsizing, especially those of significant national or regional importance, and include closures, consolidations, and relocations of offices, facilities, and laboratories.” Congress said it does not expect EPA to “consolidate or close any regional offices in fiscal year 2018.”

At the State Department, the bill would require the department’s inspector general to review the “redesign” at State and the Agency for International Development to ensure proper processes were used and the input of employees was included. State would also be required to report to Congress on any actions taken last year in response to Trump’s call for reorganization and subsequent guidance from the Office of Management and Budget. Congress said it expected State to maintain the foreign service and civil service staff levels on board as of Dec. 31, 2017.

The Education Department is directly blocked from decentralizing its budget office, which reportedly sparked dissension both within the agency and at the White House.“There remains concern that adequate information about and justification for its reorganization have not been transparently shared with Congress and stakeholders to be able to evaluate the changes being proposed, including the potential benefits or existing challenges they are meant to address,” lawmakers said.

The Food and Drug Administration, Commodity Futures Trading Commission and the rest of the Agriculture Department were warned to “be mindful” of the legislative branch’s role in setting funding levels for fiscal 2019.  Even though the Trump administration has instructed agencies to assume the drastic cuts proposed in the president’s budget would be implemented, Congress told agencies to hit the brakes.

“Therefore, the agencies should not presuppose program funding outcomes and prematurely initiate action to redirect staffing prior to knowing final outcomes on fiscal year 2019 program funding.”

A provision funding the departments of Commerce and Justice would specifically prohibit any preprogramming of funds to “reassign an employee or reorganize offices.” If those agencies were to issue a reduction in force, they must first provide 30-days notice to Congress.

The Homeland Security Department would need to provide lawmakers with 60-days notice if they follow through on reorganizing its headquarters.

OMB originally said agencies would make their reorganization and workforce reduction plans public in Trump’s fiscal 2019 budget. That document provided some details on agency plans when it was released in February, but promised more details in the president’s management agenda. The management agenda, released this week, also promised more details on the overhauls in the coming months. See Government Reorganization in the Dark for a discussion of how OMB has been hiding that information and has been sued for it.

As noted in that post, Rep. Elijah Cummings, D-Md., the top Democrat on the House Oversight and Government Reform Committee, has said the Trump administration’s proposals would amount to a “degradation of the federal workforce” that was occurring “in darkness.” He has called for hearings on the plans and attempted, unsuccessfully, to solicit them from OMB.

 

Small agencies killed in Trump’s 2017 “skinny budget’ are revived in Omnibus

According to articles in Government Executive today,  The 19 Agencies Trump Tried To Kill Aren’t Going Away and Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Congress has reasserted its authority and its standing as a co-equal branch of government.  A strong message is being sent to not only the President but also federal agencies and federal employees.

This post covers the The 19 Agencies Trump Tried To Kill Aren’t Going Away.

The President’s “skinny budget” released in March 2017 called for closing 19 small agencies to help offset a spending increase for the Defense and Veterans Affairs departments as well as some elements of Homeland Security. They were:

The African Development Foundation, an independent agency that establishes targeted development programs in underserved parts of Africa. It will receive $30 million through Sept. 30, 2019.
The Appalachian Regional Commission, an economic development agency created in 1965 to work in partnership with federal, state, and local government. It will receive $155 million, a rise of $3 million over its fiscal 2017 level.
The Chemical Safety Board, an independent reviewer of chemical industry accidents and regulations, will receive $11 million, the same as it received in 2017.
The Corporation for National and Community Service, which runs AmeriCorps/VISTA and other volunteer programs. It will receive $1.06 billion, a hike of almost $34 million, the bulk of it going to AmeriCorps, its largest program.
The Corporation for Public Broadcasting, which ensures Americans have universal access to public media’s educational and informational programming and services, will be fully funded at $445 million for both fiscal 2018 and 2019.
The Delta Regional Authority, a partnership that supports job creation and development in rural Mississippi and Alabama, will receive $25 million, a $10 million hike over 2017 funding.
The Denali Commission, which was created in 1998 to provide economic support throughout Alaska and in 2015 assigned to be a lead coordinating agency for relocating villages in rural Alaska that face environmental risks, will receive $30 million, double its 2017 budget. The commission’s federal co-chair, Joel Neimeyer, told Government Executive on Thursday that,

“With the pending decision by Congress to add an additional $15 million to the agency’s fiscal 2018 budget, it is clear that the legislative branch is now telling the commission to start implementing solutions to protect the built environment and carry out village relocations. The commission stands ready to transition to an implementing agency, and we are pleased that Congress holds this trust in our small independent federal agency.”

The Institute of Museum and Library Services, which enables museums and libraries to offer learning experiences for students and families, as well as to increase care for, and access to, the nation’s collections that are entrusted to museums and libraries by the public. It will receive $240 million, a hike of $9 million.
The Inter-American Foundation, created in 1969 to give grants that channel development assistance directly to the organized poor and “grass roots” in Latin America and the Caribbean. It will get $22.5 million through Sept. 30, 2019.
The Legal Services Corporation, created in 1974 to serve the legal needs of low-income Americans. It will receive $410 million, a hike of $25 million over fiscal 2017’s level.
The National Endowment for the Arts will get $152,849,000—a more than a $7 million increase.
The National Endowment for the Humanities will get $152,848,000—a more than a $7 million increase.
The Neighborhood Reinvestment Corporation, located in the Housing and Urban Development Department, is an independent organization created in 1977 that provides rental assistance to low-income Americans. It will receive $140 million, the same as 2017.
The Northern Border Regional Commission, a federal-state partnership for economic and community development in northern Maine, New Hampshire, Vermont and New York. It will receive a raise from $10 million in 2017 to $15 million.
The Overseas Private Investment Corporation, set up in 1971 to mobilize private capital to help solve critical development challenges and in doing so, advance U.S. foreign policy. It is authorized to spend up to $79.2 million for its administrative, noncredit account, a rise of more than $9 million over 2017’s level. That comes with an additional $20 million (double last year’s amount) for the cost of direct and guaranteed loans under the Foreign Assistance Act.
The United States Institute of Peace works with nongovernmental parties in conflict zones. It will receive $37,884,000 through Sept. 30, 2019, the same as last fiscal year.
The United States Interagency Council on Homelessness was created in 1987 to coordinate between 19 agencies to reduce homelessness. It will receive $3.6 million, the same amount it got in 2017.
The U.S. Trade and Development Agency, helps companies create U.S. jobs through the export of U.S. goods and services for priority development projects in emerging economies. It will receive $79.5 million through Sept. 30, 2019.
The Woodrow Wilson International Center for Scholars, which calls itself “the nation’s key nonpartisan policy forum for tackling global issues through independent research and policy dialogue, will receive $12 million through Sept. 30, 2019, a $2 million raise from last year’s level.
 

E-mails obtained through FOIA confirm Scott Pruitt’s direct hand in removal of EPA information

According to e-mails obtained by the Environmental Defense Fund (EDF) in response to a  FOIA request, EPA Administrator Scott Pruitt directly approved the removal of a number of pages about climate change from the EPA website that appears to the public. EDF has posted the released files.

The emails center on a website purge at EPA in April 2017, reported by Chris Mooney and Juliet Eilperin last summer. Along with pages about climate change and climate science, the purge removed the page about the Clean Power Plan. EDF had previously obtained and posted information about climate change removed from EPA’s website.

 

Government Reorganization in the Dark

Public Employees for Environmental Responsibility (PEER is suing the Office of Management and Budget for the submissions made by the public in response to an executive order signed by President Trump in March and ensuing guidance from OMB.  According to PEER (as reported by Government Executive) Mick Mulvaney, the OMB director, made a YouTube video inviting  American citizens to weigh in with ideas for “making the federal government more efficient, effective and accountable to the American people.” The video was implemented through a May 15, 2017 Federal Register notice inviting public comment on improvements to the organization and functioning of the Executive Branch.

OMB subsequently set up a website for the public to submit those ideas, with comments due by June 12th. OMB has averred that it had received more than 100,000 submissions and distributed them to relevant agencies. The website is not to be found — although it is a federal record; the link takes one to the bare bones OMB site.1

As Government Executive reported in December, agencies first turned in rough drafts of their plans to OMB in April, which were not made public. Efforts by Government Executive to obtain copies through Freedom of Information Act requests were denied, with the administration citing the deliberative process to prevent their release.

Agencies were required to turn in the final drafts of their reorganization plans in September 2017. Those submissions, according to guidance issued by the Office of Management and Budget in April, were required to include both short and long-term plans to cut the size of their workforces. As Government Executive noted in the December article, those plans have remained a secret, with administration officials saying they would only be made public when the White House releases its fiscal 2019 budget.

In a December 19, 2017 letter to OMB Director Mulvaney, Representative Elijah Cummings told the Director that, as he knows,2 the Oversight and Government Reform Committee (on which he is the Ranking Member) has oversight of the federal workforce and therefore of the agency reform plans. Mr. Cummings told Government Executive that such reforms should take place in full view of the public and with proper oversight.

Cummings asked for the documents by January 3; OMB did not respond to an inquiry on whether it would meet Cummings’ request.

A panel of the Senate Homeland Security and Governmental Affairs Committee has held two hearings to examine the reorganization plans. OMB declined to testify at both of those hearings, telling the subcommittee it was too early to offer its thoughts to Congress. Instead, leaders from various agencies gave broad outlines of their goals going into the process. According to Government Executive, federal employee representatives and some lawmakers bemoaned the lack of transparency in the reorganization process, including a failure to include ideas from front-line personnel.

1 If I manage to unearth the site, I will post the information.
2 As a previous Member of Congress, if nothing else.

Seven Words You Cannot Say on…a CDC budget

Those of us of a certain vintage remember George Carlin and “7 Words You Can’t Say On TV“.  Who would have imagined that our federal government would come up with its own list? For all the outrage that Mr. Trump and his supporters express about “political correctness,” i.e., calling people and communities by the names by which they choose to be called, the Washington Post reports that this administration has its own list of, quite literally, politically incorrect words and terms.

The forbidden words are “vulnerable,” “entitlement,” “diversity,” “transgender,” “fetus,” “evidence-based” and “science-based.”

On Thursday, 14 December 2017, senior CDC officials who oversee the budget told policy analysts at the Centers for Disease Control and Prevention in Atlanta of the list of forbidden words —that may not be included in any document related to the budget and supporting materials that are to be given to the CDC’s partners and to Congress, according to an analyst who took part in the 90-minute briefing.

Alison Kelly, a senior leader in the agency’s Office of Financial Services, told the analysts that “certain words” in the CDC’s budget drafts were being sent back to the agency for correction: “vulnerable,” “entitlement” and “diversity.” Kelly told the group the ban on the other words had been conveyed verbally. [Emphasis added]

In some instances, the analysts were given alternative phrases. Instead of “science-based” or ­“evidence-based,” the suggested phrase is “CDC bases its recommendations on science in consideration with community standards and wishes,” the person said. In other cases, no replacement words were immediately offered.

The article by

 

Deregulating Transparency— DOT and the Airlines v. Public


USA Today recently reported that—in the Administration’s effort to reduce regulations and their costs—the Transportation Department has abandoned two proposals from the Obama administration that aimed to provide air travelers with more information about fees on bags and other services before they buy tickets.

According to DOT Secretary Elaine Chao, “The department is committed to protecting consumers from hidden fees and to ensuring transparency. However, we do not believe that departmental action is necessary to meet this objective at this time. … Although we believe there would be benefits of collecting and publishing the proposed aviation data, the department also takes seriously industry concerns about the potential burden of this rule.”

The burdens on industry, that is.  According to USA Today, “most airlines said the costs providing the information would be burdensome and the information wouldn’t increase the transparency of pricing. Airlines also worried that the disclosures could require reporting of propriety information.”

In other words, as in most Republican administrations, asserted burdens outweigh public benefits from transparency and the ability to make informed choices.

Trump nominates person with no statistical experience to head Bureau of Justice Statistics, further threatening credibility of DOJ information

As reported in The Crime Report, the assault on the credibility of the Bureau of Justice Statistics continues:

President Trump has announced his intention to appoint a director of the Justice Department’s Bureau of Justice Statistics (BJS) who has no apparent experience in the field. … The only statistical experience cited by the White House in Anderson’s background was co-creating the Anderson and Hester Computer Rankings, which boast of computing college football’s “most accurate strength of schedule ratings,” taking into account the quality of teams’ opponents.

The Bureau was established in 1979 “to collect, analyze, publish, and disseminate information on crime, criminal offenders, victims of crime, and the operation of justice systems at all levels of government.”

Until 2012, the BJS directorship required Senate confirmation— when Congress changed the law and made the job a presidential appointment. According to Washington Bureau Chief, Ted Gest:

BJS directors under President Obama, James Lynch of the University of Maryland and William Sabol, now of Georgia State University, both were long-time criminologists and recognized experts in crime and justice statistics.

In May, under the auspices of the American Statistical Association, four former BJS directors wrote to Attorney General Jeff Sessions urging that “serious consideration” to head BJS, which operates in Sessions’ Department of Justice, “to individuals who have strong leadership, management, and scientific skills; experience with federal statistical agencies; familiarity with BJS and its products; visibility in the nation’s statistical community; ability to interact productively with Congress and senior DOJ staff; and acceptance of the National Academies’ Principles and Practices for a Federal Statistical Agency.”

The letter was signed by Lynch, Sabol, Jeffrey Sedgwick, who served as BJS director in the last three years of the George W. Bush administration and now directs the Justice Research and Statistics Association, and Lawrence Greenfeld, who headed BJS in the first five years of the Bush administration.

Anderson does not appear to have any of those qualifications.

The same four recent BJS directors wrote in May to leaders of the Senate and House Judiciary Committees arguing that the requirement for Senate confirmation for the BJS director should “be restored and that the director’s status be changed from serving at the will of the president to serving a fixed term of at least four years, staggered from the presidential election.”

The ex-directors said in their letter: “It is imperative that policy discussions about the often-contentious issues regarding crime and justice be informed by statistical data trusted by the public to be objective, valid, and reliable…”

“To ensure BJS data are viewed as objective and of highest quality, BJS must be seen as an independent statistical agency wherein data collection, analysis, and dissemination are under the sole control of the BJS.”

 

Zinke Evading Public Scrutiny — and Public Comment — to Build a Road Through a National Wildlife Refuge

On July 12, 2017 and August 2, 2017, Defenders of Wildlife filed Freedom of Information Act requests with the U.S. Fish and Wildlife Service for all records related to the Trump administration’s consideration of a potentially illegal land exchange to remove wilderness wetlands in Izembek National Wildlife Refuge in Alaska from federal public ownership for the construction of a road through Izembek National Wildlife Refuge. Defenders of Wildlife received more than 600 documents including evidence that the Interior Department is pursuing the land trade with King Cove Corporation — and doing so as much under the radar and without public comment as possible.

In order to pursue the road, the Interior Department is preparing to set aside a decades-old ban on development in federally protected wilderness areas. As notes in her Washington Post article, the documents obtained by Defenders of Wildlife, primarily internal agency emails, reveal how much discussion is intentionally taking place out of public view as federal, state, local and tribal officials work to approve a land exchange.

Congress directed Interior in 2009 to study whether it served the public interest to construct a road through the refuge. Four years later, the department produced an environmental-impact statement that concluded that the project should not be pursued because many species would be harmed, as the road’s construction, use and maintenance would disturb and fragment their habitat. In spring 2017, Fish and Wildlife Service officials produced an updated analysis of the two routes Alaska is contemplating through the refuge. It concluded that both would have “major” impacts on brants, tundra swans, emperor geese, bears, fish and, potentially, caribou.

“Both routes are equally destructive to the refuge’s purposes,” one official wrote in an April 28 email.

The documents from the U.S. Fish and Wildlife Service make clear that Interior Secretary Ryan Zinke has elevated the issue to one of the agency’s top priorities, and his appointees have taken deliberate steps to conceal the plan from the public.

At one point, a refuge official relayed his conversation with a department attorney about questions Zinke raised over public review of agency action related to Alaska’s survey of a possible road through Izembek:

He indicated the Secretary would like to see folks on the ground doing the survey in the next couple of days,” the official emailed colleagues. “He did not seem to [sic] excited about the direction that it was going out for public comment.”

In a separate exchange three days later, a senior Interior Department attorney in Alaska emailed another high-ranking official there to clarify that the land swap proposed by the town’s tribal corporation should be kept under wraps.

“I’m not sure if you were provided a copy of the letter from King Cove Corporation to Secretary Zinke requesting a land exchange so here it is,” the lawyer wrote. “I understand it [sic] King Cove is not going to make this request public but rather let the Department roll it out when it is ready.”

 

 

Trying to See Into, If Not Through, the Swamp

A recent investigation by ProPublica and The New York Times reveals that, at key regulatory federal agencies, members of the deregulation teams, have deep industry ties and are reviewing regulations their previous employers sought to weaken or kill. As ProPublica notes, “Appointees include lawyers who represented businesses in cases against government regulators, staff members of political groups raising so-called dark money and employees of industry-funded organizations opposed to environmental rules. At least four were registered to lobby the agencies they now work for and at least two may be positioned to profit if certain regulations are undone..  As ProPublica points out, however, “a full vetting of industry connections has been difficult because some agencies have declined to provide information about the appointees — in many cases, not even their names.”  It is not just to the media who have been stonewalled…

Rep. David Cicilline (D-R.I.) is among a group of Congress members who wrote to Mick Mulvaney (OMB Director) and Neomi Rao (Administrator of OIRA) in August expressing grave concerns about the secrecy of the Regulatory Reform Task Forces, calling on the administration to release the names of all deregulation team members as well as documents relating to their potential conflicts of interest, and requesting information about the nature of their meetings. They have received no response to date.

The result of the information revealed by ProPublica and the New York Times, combined with the non-response from OMB, has led Cicilline and a group of other House Democrats to introduce a bill — the Determining if Regulatory Actions are in the Interest of the Nation or the Swamp (DRAIN the Swamp) Act — to require federal officials —before they implement significant changes in U.S. regulations—to disclose any potential conflicts of interest and project how much they would personally benefit from any particular regulatory changes. They would also be required to identify any conflicts of interest for President Trump or senior members of his administration when changing major rules. The bill is co-sponsored by leading House Democrats, including Reps. John Conyers, Jr. (D-MI), Peter DeFazio (D-OR), Raul M. Grijalva (D-AZ), Gerald Connolly (D-VA), and Lloyd Doggett (D-TX). As of this posting, it does not yet have a bill number.  To date, it has no Republican co-sponsors.