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ICYMI: Forbes Op-Ed on Obama Administration's Transparent Lack of Transparency
October 31, 2013

U.S. Sen. David Vitter (R-La.), top Republican on the Senate Environment and Public Works Committee, has been scrutinizing the Obama Administration's problems with transparency, specifically focusing on secret "sue-and-settle" deals that Administration officials will make with far-left environmental groups to enact unnecessary and burdensome regulations without any input from those who will be affected, including States, local governments, and private citizens. Click here to read more.

Op-Ed: The Obama Administration's Transparent Lack Of Transparency
By Henry Miller, October 31, 2013

"How can you tell when a politician is lying," an old quip begins. "His lips are moving." This whopper for the ages from President Obama is getting a lot of attention: "No matter how we reform health care, we will keep this promise to the American people: If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period."

It turns out that under ObamaCare, these oft-repeated, unequivocal assurances do not apply to as many as 12 million Americans.

The president has gone those outright lies one better by managing to mislead the American people even when his lips are motionless, a virtuoso performance of political ventriloquism. In spite of the president's promise that his administration would be the most transparent in history, on matters big and small his minions constantly misrepresent, misbehave and betray our trust.

High-profile examples include the stonewalling over the Benghazi murder of four Americans, including the U.S. ambassador, and the broken promises about ObamaCare. But there are plenty of other examples of gross malfeasance and mendacity by the Obama administration that are occurring largely out of the public eye.

One that has received attention lately from Sen. David Vitter and other Republicans on the Environment and Public Works Committee is the "sue and settle" maneuver that federal agencies, including the Fish and Wildlife Service and EPA, use to advance their radical environmental agenda in a way that substitutes a judicial mechanism for the customary interface of legislation and agency rulemaking. The way this works is that extremist environmental groups (some of which receive government grants) sue the federal government on the grounds that agencies are failing to meet their regulatory obligations, and then, behind closed doors, the activists and Obama administration officials concoct a settlement agreement that furthers activists' (and regulators') radical goals.

This process is typically pursued without consulting affected parties, including states, counties and municipalities that are the sites of the alleged deficiencies of regulation. Once a judge approves a settlement, the administration moves forward with implementing costly regulations that resulted from "wink-wink, nod-nod" negotiations between activist environmental groups and the government. According to Sen. Vitter, "Of the 250 species listings that could occur as a result of the 2011 closed-door settlements, many could have a significant impact on states and local governments, private property rights, energy development, and economic growth."

Leaving aside the merits of these agreements, they are arrived at via a flagrantly non-transparent process that evades the checks and balances of federal rulemaking and oversight.

Another exemplar of the administration's lack of transparency involves the irregular oversight applied to a genetically altered fish that has been treading water in regulatory limbo for years.

The only new characteristic that distinguishes the "AquAdvantage" salmon from its wild cohorts is that it reaches maturity twice as rapidly. Its genetic changes - the insertion into the genome of a growth hormone gene from the Chinook salmon and a regulatory DNA sequence from the ocean pout - confer no detectable difference in the fish's appearance, ultimate size, taste or nutritional value; it just grows faster, a tremendous economic advantage to those farming the fish in a closed water system. Its availability would also be a tremendous boon to consumers seeking low-fat and affordable options for sources of protein, especially in the face of food price inflation and the obesity epidemic.

After almost 13 years of floundering over how to review this fish, in 2009 the FDA opted for the most stringent, expensive and dilatory regulatory approach among various possible policy choices. The FDA's Center for Veterinary Medicine chose to subject genetically engineered animals to the same burdensome pre-market approval procedures and regulations as veterinary drugs such as pain relievers and anti-flea medicines. The rationale was that the new DNA construct in the animal and any proteins it produces are analogous to drugs that have been injected or ingested - even though animals with identical traits introduced by techniques such as breeding or artificial insemination would not be subject to any premarket review at all.

A more apposite and far less burdensome regulatory paradigm for animals used as food would be the approach taken by another FDA unit, the Center for Food Safety and Nutrition, whose policies put the burden of ensuring the safety of foods and food ingredients on those who produce them. Its regulations prohibit the adulteration (contamination) or misbranding (mislabeling) of food, but the agency does not inspect or evaluate every new food prior to its sale in shops, supermarkets, or restaurants. Rather, federal oversight relies primarily on market surveillance and post-marketing regulation, and the FDA takes action if there is an apparent problem. This approach has worked quite well over many years.

The law does require a premarketing safety review for certain food-related products judged to be higher-risk. These include most food additives - a class of ingredients that includes preservatives, emulsifiers, spices, sweeteners, and natural and synthetic flavors and colors, among others. In general, a food additive must be pre-approved if it will become a component of or otherwise affect the characteristics of a food and if it is "not generally recognized as safe (GRAS) by qualified experts for its intended use." (The AquAdvantage salmon would be GRAS.)

If the FDA had applied the food-regulation paradigm to genetically engineered animals at the outset, the fast-maturing salmon would have been on our dinner plates during the Clinton administration.

Not surprisingly, the FDA's several years-long evaluation concluded that the AquAdvantage salmon has no detectable differences and that it "is as safe as food from conventional Atlantic salmon." And because the fish will all be sterile females and farmed inland, there is negligible possibility of any sort of "genetic contamination" of the gene pool or other environmental effects. Even in a worst-case scenario, these fish would be maladapted to compete in the wild.

When in April 2012 the FDA completed its Environmental Assessment and was ready to publish it - the last necessary hurdle before approving the salmon - the decision-making was mysteriously expropriated by the White House. The review process vanished from sight and stalled until December, when the FDA was finally permitted to publish the EA (the unsurprising verdict: "no significant impact"), which should then have gone out for a brief period of public comment. (The comment period, which was extended, ended on April 26, but the salmon still has not been approved.)

The reasons for the delay in FDA's publishing the needed Environmental Assessment in April 2012 were revealed by the inspired investigative reporting of science writer Jon Entine. He related that the White House interference "came after discussions late last spring [2012] between Health and Human Services Secretary Kathleen Sebelius' office and officials linked to Valerie Jarrett at the Executive Office [of the President], who were debating the political implications of approving the [genetically modified] salmon. Genetically modified plants and animals are controversial among the president's political base, which was thought critical to his reelection efforts during a low point in the president's popularity."

There's another influence at work here that is arguably even more sordid. According to several independent, reliable sources, the continued delay in the approval of the AquAdvantage salmon is due to opposition to it from assistant White House chef Sam Kass. A chef who has a bachelor's degree in history influencing critical governmental regulatory decisions that are typically made by Ph.D. scientists and professional regulators? What's next - the Obamas' chiropractor deciding whether a new Alzheimer's drug should be approved?

An example of the ripple effects of the government's malfeasance is this, from an email to me from Henry Clifford, vice-president of AquaBounty: "Next week I am going to our project in Panama (which I manage) [where the salmon is being grown] to harvest 15,000 lbs of beautiful 15 lb (mean weight) AquAdvantage salmon, all of which will end up in a landfill. I can't even donate the harvested fish to the poor. Our regulatory authorizations in Panama are only for ‘R&D' (no human consumption) until we receive FDA approval."

Seven-and-a-half tons of high-quality salmon dumped into a landfill in an impoverished, protein-poor country - courtesy of a White House chef and Obama administration officials who claim they care about nutrition!

Not only are such governmental actions detestable, they're also probably illegal. Entine wrote last December:

"A question remains whether the White House or FDA could face legal challenges for intervening in a scientific evaluation process that is supposed to be insulated from politics. The Federal Food, Drug & Cosmetic Act requires that Health and Human Services secretary approve the AquaBounty application within six months after compliance with Section 512."

That was almost a year ago.

These cynical machinations by the Obama administration should elicit outrage from scholars, the media and the public. Every corporate entity, like every individual, deserves fair, impartial and transparent treatment by the government. But in spite of the president's promises, often we are getting quite the opposite. As David Sanger, the New York Times' Washington bureau chief (who has worked for the paper there for two decades), said recently, "This is the most closed, control-freak administration I've ever covered."

One can understand the desire of the president and his minions to keep Americans from knowing what their government is doing, given that so much is amateurish, incompetent, heavy-handed and politically motivated. Wall Street Journal editor and columnist Dan Henninger wrote, "Mr. Obama's partners are concluding that they cannot do business with him. They don't trust him. Whether it's the Saudis, the Syrian rebels, the French, the Iraqis, the unpivoted Asians or the congressional Republicans, they've all had their fill of coming up on the short end with so mercurial a U.S. president. And when that happens, the world's important business doesn't get done."

Henninger might have added others to the list of those who have become disaffected: industries regulated by the U.S. government, from energy exploration to health care to biotechnology - and also Americans at large, to whom the failures of transparency are increasingly transparent and repugnant.



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