FEDERAL AGENCIES

Tricky decision: Who gets a heads-up before a rollout?

Last Thursday, the Center for Biological Diversity made an announcement: The Fish and Wildlife Service was proposing to delist the Yellowstone grizzly.

But FWS didn't release the proposal for another half-hour. CBD had scooped the agency on its own news, criticizing the delisting proposal before FWS had a chance to defend it.

The slip-up was minor and largely unnoticed. But it lifted the curtain on the orchestrated rollout of agency announcements, when interest groups and reporters sometimes get a heads-up before the "public" unveiling.

FWS spokesman Gavin Shire said the decision on whom to tell and when depends on numerous factors, including the type of announcement and which agency office is in charge.

"It varies, but I think in the case where we have partners that have worked with us on a particular issue, we endeavor to let them know a little in advance so they're not surprised," Shire said. "And it's understood -- it's meant to be understood -- that it's embargoed, and it's really a courtesy to them as partners in the effort, whatever the effort may be."

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The proposal to delist the Yellowstone grizzly was expected. FWS removed Endangered Species Act protections for the bear in 2007, only for a court to overrule the decision and send the agency back to the drawing board.

A new process began, with FWS again determining that the bear population was stable enough to lose its threatened status. The agency last week decided to announce its proposal before it ran in the Federal Register and became public record (E&ENews PM, March 3).

Agency officials set up a Thursday morning conference call with nongovernmental organizations that had shown strong interest in the issue. CBD was on the call, along with Defenders of Wildlife and other groups; FWS did not provide a list in time for publication.

Andrea Santarsiere, a CBD staff attorney, said about 10 groups were on the call. FWS had kept them in the loop about the proposal's timing, she said, as a courtesy.

"I think they had just felt that was the right thing to do, which we appreciate," Santarsiere said. She added that there was no talk of an embargo on the Thursday morning call.

Shire emphasized that such advance warning is given to all types of stakeholders: industry groups, state officials and even individuals among them. He pointed to last year's announcement that the greater sage grouse would not be listed under the ESA.

Interior Secretary Sally Jewell announced that decision at a press conference with the governors of Colorado, Nevada, Montana and Wyoming, as well as top Interior and Agriculture officials.

Melanie Gade, spokeswoman for Defenders of Wildlife, also cited that press conference as an example of the variety of stakeholders that are sometimes called upon to help roll out major policies.

Both Democratic and Republican administrations, she said, "spend time planning the communications rollout of major policy announcements."

"Every speaker at the podium with Secretary of the Interior Sally Jewell, from the governors on down, had been given an advanced heads-up on what was coming and spoke supportively of the decision," she said. "That is just the way new policy rollouts work, and conservation advocacy groups are sometimes included in those sorts of heads-ups, and many times they are not."

No surprises

Similar examples can be found at other agencies.

U.S. EPA Administrator Gina McCarthy, for example, scheduled a "green group call" the day before announcing the Clean Power Plan. She gave advance notice to the leaders of some of the biggest environmental groups, such as the Environmental Defense Fund and the Natural Resources Defense Council.

McCarthy then reached out to union leaders, state governors and members of Congress in the run-up to the June 1 announcement (Greenwire, July 20, 2015).

Rebecca Watson, who was Interior's assistant secretary for land and minerals management during the George W. Bush administration, said she quickly learned while at the department that lawmakers expected to be told first of any major announcement.

"The mantra was 'no surprises,'" she said. "They didn't want any surprise. They didn't want to look stupid, like they weren't in the know."

An agency's communications office might also want to secure supportive quotes for a rollout, she said. (In the case of the grizzly delisting proposal, FWS notified CBD and other groups that oppose the delisting, as a courtesy.)

That kind of outreach, Watson said, is usually done right before a decision's announcement; in the case of a rule, for example, an agency might let interested groups know the day they submit it to the Federal Register.

Agencies have to be careful during the decisionmaking on a new policy not to violate the Federal Advisory Committee Act (FACA), which generally requires advisory meetings that include non-federal officials to be open to the public.

That law comes into play when an agency is soliciting input while it's crafting a rule or decision, Watson said. In addition to the public comment period, agencies have meetings with companies or nonprofits to get their point of view. Those meetings must follow FACA.

"It's the frequency of it," said Watson, who is now at the law firm Welborn Sullivan Meck & Tooley PC. "When people would come to meet with me and they would want to have the opportunity to come back, I'd have to get permission from the solicitor's office."

But a heads-up for a decision already made does not appear to fall under FACA. Agencies also regularly give reporters press releases before official announcements, with the agreement that they will not break the news until a specified time.

The length of time for that warning depends on the announcement, its importance, whether there is a legal deadline and other factors. But Shire of FWS said it's usually just a few hours before the public rollout.

The National Marine Fisheries Service has a unique regulatory process that makes such advance notice less impactful.

Most fisheries regulations come from regional fishery management councils, which hold meetings and votes that are open to the public. NMFS -- an agency of the National Oceanic and Atmospheric Administration -- rarely changes those recommendations. By the time they show up in the Federal Register, the stories have been written.

But like FWS, the agency is also responsible for endangered species protections, deciding when to add or remove species from the list. Spokeswoman Connie Barclay said the agency does not notify interested stakeholders in advance of such regulatory action.

"Once the proposed rule or final rule publishes in the Federal Register, we contact interested stakeholders as quickly as we can to alert them of the action," she said.

Unintended leaks

Sometimes it's the interest groups that tip off reporters to news that is not part of an orchestrated rollout. That's often the result of "sources" within agencies who leak information to advocacy and industry groups.

Kathleen Sgamma, vice president of government and public affairs at the Western Energy Alliance, said her group does not get advance notices from agencies, "although we do get career staff who give us inside information because they understand the anti-oil-and-gas policies are unlawful."

"In general, we continue to talk to agency personnel informally and others to find out information like timing of announcements," she said in an email. "Our media response is based on anticipating when major rules and other actions are likely to occur and having in-depth knowledge of issues which affect our industry so that we can respond quickly."

A former senior official at the Bureau of Land Management said such leaks happen in every agency and administration.

"It doesn't matter what interest group or what administration; anyone who is sort of on the outs have people within agencies that are aligned with their interests," said the official, who spoke on the condition of anonymity.

He recalled using that to his advantage once, during the Clinton administration.

The director of his department was concerned about how a particular organization would react to a decision. So this official sent out a draft memo of the decision, clearly labeled "internal review only."

"A day after it got out to the field, all of a sudden, we're getting all kinds of email from various groups," he said. "That's the only time I've ever done that, and I still laugh about it."

BLM referred all questions to Interior spokeswoman Jessica Kershaw, who emphasized the department's appreciation for relationships with "states, stakeholder groups, congressional representatives and the press."

"Out of respect for those relationships, we generally work to make sure that when announcements are made, relevant parties are afforded the courtesy of a notification," Kershaw said, noting that the National Environmental Policy Act process means public input and few surprises. "We do not employ a hard and fast timing rule to each announcement, but we do make an effort when we can to be sure that affected parties understand the announcements that affect them and their interests."

Still, sometimes interest groups have no insider information and must prepare for all options. Santarsiere of CBD said the group often prepares two press releases -- one positive and one negative -- because it only knows the timing of a decision but not the content.

The National Wildlife Federation was among those that did not get advance notice about last week's proposal to delist the Yellowstone grizzly. But the group still got out a press release within an hour of FWS's announcement.

Spokesman Miles Grant said his group had prepared the release based on rumors that a decision was imminent. It was in favor of the proposal, calling it "a major conservation success story."

NWF only prepared one version of the release. Doing otherwise would force staff "to mentally play out what it would be like to get our hopes & dreams crushed," he wrote in an email.

"I've heard that when Peyton Manning played for the Colts, a reporter asked a coach why Manning's backup didn't get more time on the practice field in case Manning got hurt," Grant wrote. "The coach said something like, 'If Peyton gets hurt, we're screwed. Why would we practice being screwed?'"

Email: eyehle@eenews.net

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