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A Fish Story to Illustrate Flaws with “Bait and Switch” Bill

[Update: 1/5/11NY Times reports today on the “death panels” issue – this is an example of a “substantive change on adoption” and why S2014 is a bad idea. We don’t want further politicization of agencies and regulations – “U.S. Alters Rule on Paying for End-of-Life Planning:

WASHINGTON – The Obama administration, reversing course, will revise a Medicare regulation to delete references to end-of-life planning as part of the annual physical examinations covered under the new health care law, administration officials said Tuesday.

The move is an abrupt shift, coming just days after the new policy took effect on Jan. 1.

Many doctors and providers of hospice care had praised the regulation, which listed “advance care planning” as one of the services that could be offered in the “annual wellness visit” for Medicare beneficiaries.

While administration officials cited procedural reasons for changing the rule, it was clear that political concerns were also a factor. The renewed debate over advance care planning threatened to become a distraction to administration officials who were gearing up to defend the health law against attack by the new Republican majority in the House.]

Last Thursday, I wrote about a package of 3 Christie “Red Tape” bills that would radically change and weaken regulatory protections (see this).

Today, I want to do 2 things, first, provide a brief update on one of those bills (S6- Sarlo), and second, give a specific illustration of why one of the bills (S 2014 – Oroho) is so bad.

Rick Engler of NJ Work Environment Council and I were able to meet briefly with Senator Buono and draft amendments to the introduced version of S6. The Senate version was held by the Senate Budget Committee on Thursday, but the amendments we secured were incorporated into the Assembly version (A 2853 1R), which was later released from the Assembly Budget Committee.

The amendments do damage control:

  • subordinate the Lt.  Governor’s permit coordination intervention to the decision rules (i.e. level of protection) afforded in the underlying statutes pursuant to which the permits are issued – e.g. this prevented importing new cost benefit tests into every environmental permit program;
  • force public disclosure
  • require rulemaking to increase transparency and acountability and prevent abuse by special interests
  • eliminate the private compliance certification provisions
  • exempt federally funded and/or federally delegated programs
  • eliminate waivers and hardship waivers
  • eliminate reference to vague “common sense principles” and thereby avoid legislative codification of Christie Executive Order #2

Below please find a letter to legislators on another bad bill in the Red Tape package, S 2014. The letter provides an illustration of the kinds of abuse “substantive change on adoption” could create. I selected fisheries management because of the controversies over fisheries management regulation, but the same problems could occur in any DEP or other state agency regulation:

December 20, 2010

Dear Senators Beck and Van Drew  – Re: S 2014

S 2014 would change current rulemaking requirements under the NJ Administrative Procedures Act to allow state agencies to engage in a practice known as “substantive change on adoption“. Such changes were prohibited by NJ courts in order to protect fundamental due process rights.

The bill may soon be up for Senate vote.

Few realize the significant implications of this change. Complexity makes the issues difficult to explain to legislators.

Because you have been sensitive to recreational fisheries issues, and know first hand of the controverial nature of fisheries management decisions, I thought I’d provide a fisheries illustration of how “substantive change on adoption” could be implemented. .

I previously was Mid Atlantic manager of Pew Environment Group’s “End Overfishing” campaign. The management policies advocated by Pew are reviled by many recreational fishermen.

Pew was seeking a one word change in recent NMFS proposed regulations – from the proposed discretionary “should”, to mandatory “shall”.

Changing one word in proposed NMFS regulations – from “should” to “shall” – is an example of a “substantive change on adoption“.

That change would have fundamentally altered US fisheries management policy, particularly with respect to the legal and scientific management requirements in setting annual catch limits.

The Pew recommended change to “shall” also would have changed the partnership relationship between federal fisheries managers at NMFS and the discretion exercised by regional Fisheries Councils.

For details, see Pew press release  and Pew comments filed with NMFS.

Do you want state agencies like DEP to have this kind of discretionary regulatory power to “bait and switch”?

Please oppose S 2014.

Thank you,

Bill Wolfe, Director

NJ PEER – 609-397-4861

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