Journalism in the Public Interest

Midnight Regs: Skipping Public Comments, Pricey FOIAs and More

ProPublicaYou may be sated on turkey, holiday cookies and eggnog, but we have another holiday treat for you: more pesky final rules from the Bush administration. ProPublica continues to track the midnight regulations and will do so through the final hours. There is less than a month left—with some exceptions, rules finalized now will not go into effect until after President-elect Barack Obama is sworn into office. Nevertheless the rules continue to trickle in.

To help distract you from your holiday hangover, we bring you six rules today. Our first rule comes from the Department of Homeland Security. On Dec. 17, the agency issued an interim final rule that eliminates expired forms of identification from the list of acceptable employment verification documents.

The department did not publish this rule in draft form for public review or comment, but is accepting public comments now before it promulgates a final rule. It justified its move by pointing to a 1998 notice of proposed rulemaking that also prohibited expired documentation; that rule was never implemented. The public had an opportunity to comment back then—a decade ago—and the department says those comments were considered when writing this rule.

ProPublica is looking into how common it is to skip the public comment and review step in the early stages of the rulemaking process.

On Dec. 9, the Department of Energy published a rule proposal that would eliminate the “public interest” balancing test when determining whether to release an otherwise exempted document under the Freedom of Information Act. It would also require people to pay more for FOIA’d documents. Paper copies, now at 5 cents a page, will increase to 20 cents per page.

Another rule is for the use of snowmobiles in Yellowstone National Park. A Clinton-era midnight regulation banned their use entirely but never saw the light of day. The current administration delayed implementation, and then a federal court vacated the rule. The Bush alternatives have faced a similar fate of legal wrangling. But undaunted, the Interior Department is trying one last time. They proposed a new snowmobile rule on Nov. 5.

We also take a look at a finalized rule from the Treasury Department that seeks to clamp down on illicit online gambling, and at a directive from the Department of Agriculture that regulates the management of bighorn sheep to ensure they are kept separate from domestic sheep. The latter rule has placed state authorities at odds with federal officials. In what has been called an under-the-radar move by the USDA, state wildlife managers believe the meddling by the federal government will only further endanger the health of an already fragile bighorn sheep population.

One last note: The National Oceanic and Atmospheric Administration has withdrawn its proposed changes to the environmental review procedure for fisheries. Critics charged the rule would have complicated the review process and given too much power to the fishing industry when determining environmental impact. According to Monica Allen, a spokesperson for NOAA, the agency realized it would not be able to complete work on the rule within the next few weeks and so they withdrew the proposed rule from consideration by the Office of Management and Budget. “OMB wants to have a clean slate for the next administration,” Allen wrote us in an e-mail.

As always, we welcome your suggestions of rules we may have missed. Have a happy and safe New Year!

Obviously you haven’t followed the snowmobile issue in Yellowstone because the snowmobiles banned by the Clinton administration were banned and continue to be banned. The snowmobiles now allowed in Yellowstone have 4 stroke engines and were first produced in 2002. Also the current two strokes continue to be banned so yes the Bush administration allowed snowmobiles that meet emissions and noise standards that have been set for the National Parks.

Dear Hatley,

Thank you for your comment. My understanding of the intent of the Clinton administration was to phase out the use of snowmobiles entirely. “The National Park Service (NPS) is proposing to phase out snowmobile use in Yellowstone National Park, the John D. Rockefeller, Jr., Memorial Parkway, and, with some exceptions, in Grand Teton National Park, and to prohibit snowplane use in Grand Teton National Park, by the winter of 2003-2004. We also are proposing interim measures to limit the impacts of snowmobiles before their use is prohibited.” (

I also refer you to the articles we cite on our Midnight Regulations chart ( You will also see on the chart I go into more detail about the history.

If I have missed something, please let me know.

Have a Happy New Year!

Jesse Nankin

First of all Jesse I can’t get anything to open on your fist link so I can’t comment on it.

Second on the history of the snowmobile issue in Yellowstone is greatly distorted and not truly reported. There are some who want snowmobiles out of Yellowstone and they keep moving the bar around as to the reasons why. In 1997 the Fund For Animal sued to stop the trail grooming as they felt that led to the bison leaving the park. After the studies that showed it wasn’t true so now compare that to the issue of getting rid of snowmobiles today and you see nothing is mentioned of bison leaving the park on the trails. That would have also shut down the snowcoaches though if grooming wasn’t allowed.

Then it became a noise combined with emissions issue. You can’t just say they are too loud and polluting. Therefore the group helped establish a rediculously low noise and emissions thresholds that are even more stringent than the EPA has proposed to be in place by 2012. After those levels were established, the snowmobile manufactures stepped up and built models to meet those standards by the winter of 2001-2002 which is over 10 years ahead of what the EPA had proposed.

Now it has become a number allowed in the park daily game which is battled in the court. I see your reference articles your special interest groups were trying to say the daily cap was going to be raised to 540. In reality in other articles you have it shows the daily cap for several years has been at 720 and I don’t know how the media could put out articles saying a daily cap of 540 is greater than a daily cap of 720 but it goes to show they will totally ignore the true facts.

It is far from a late midnight regulation change during the Bush administration as it has been battled during his entire two terms. Have you checked into the end of the Clinton term about the original EIS? The original draft EIS didn’t have eliminating snowmobiles as the preferred alternative. In fact it didn’t even have eliminating snowmobiles as one of the many alternatives. Then the original final EIS came out with eliminating them as the preferred alternative when political people got ahold of it and it left the original scientific studies produced by the Clinton era NPS officials.

The snowmobiles are used as transportation to see the beauty within Yellowstone that can only be seen by snowmobile or snowcoach. To see the same sights by snowcoaches takes almost three days plus a couple nights lodging inside Yellowstone to accomplish what you can do in one day by snowmobile. Compare those costs for a family of four and you will see why the snowmobiles are a lot more affordable to see the park.

The snowmobiles are clean and quiet while they are still trying to get the snowcoaches to meet those standards but all you hear about is the snowmobiles. Take the Yamaha snowmobile that has a street bike motor in it and it still doesn’t meet the standards to operate in the park but the same motor in a street bike in the summer isn’t even looked at a second time and is allowed in the park without question. That shows how stingent the winter rules are compared to the rest of the year.

If you are really into seeing Yellowstone when it is quiet then do it in the winter as it is much quieter than the summer no matter what others may try to tell you. There are over ten thousand unregulated vehicles daily running around in the summer in a lot more areas than the last proposal of 540 regulated snowmobiles daily that would have been allowed.

The real science supports the use of regulated snowmobiles in Yellowstone while the special interest groups try to twist it as you list that they can’t be allowed. There used to be protest groups in Yellowstone yearly during the busiest weekend of the year when the old snowmobiles ran in the park. After the new snowmobiles are the only ones allowed in the park the annual protest has stopped as the protesters saw that their concerns had been addressed and they don’t take time in more for the annual trek to protest them because their issue has been taken off the table when they see reality. Unfortunately you don’t ever see that those critics have seen the improvements.

Here is the correct link for the rule in the Federal Register:

Jesse Nankin

That is the original FEIS that started the whole mess. All you have to do is read the draft EIS it mentions that was released in July 1999 and you will see that banning snowmobiles wasn’t the preferred alternative nor was it even one of the alternatives proposed at all. As the FEIS states nine agencies from three states worked on the plan for two years and none of their alternatives were to ban snowmobiles. Unfortunately the FEIS doesn’t state that with no more studying the end result changed and it wasn’t the science that did it.

That is why you can’t just ban snowmobiles by saying too noisy and too polluting if you don’t have levels set for them to meet. They had never exceeded the thresholds according to the Montana Dept. of Environmental Quality.

The bottom line though is new improved machines have come into play and Yellowstone is much nicer now in the winter than the summer and they don’t need to be completely banned.

Now my question is how is this considered a Midnight regulation if it has been ongoing during the entire Bush administration? The last rule to come out in November 2008 calls for studies for three more years to come up with a new final plan. It wasn’t a final plan because the judge had said to start all over and that is what the plan addressed to cover snowmobiling for three years while studies continued. That is hardly a last minute midnight regulation.

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