Omnibus Appropriations Act, 2009

Floor Speech

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Ms. MURKOWSKI. Madam President, I rise to speak this afternoon in favor of an amendment I laid down yesterday, No. 599. I wish to respond to some comments that have been made on the floor by several colleagues.

The amendment I have introduced would modify section 429 of the Omnibus appropriations bill that allows the Secretary of the Interior and the Secretary of Commerce to withdraw the final rule relating to the ``Interagency Cooperation under the Endangered Species Act,'' and the final rule that relates to the ``Endangered and Threatened Wildlife and Plants: Special Rule for the Polar Bear.'' This is a special rule for the polar bear.

These provisions allow the Secretaries of Commerce and Interior, or both, to withdraw the two Endangered Species Act rules inserted under section 7 of the ESA within 60 days of adoption of the omnibus bill and then reissue the ESA rule without having to go through any notice or any public comment period, and without being subject to any judicial review as to whether their actions were responsible.

Neither of the ESA rules that are part of this amendment were promulgated in the dark of night. Nothing happened in the back room. The existing rules were the result of a public process that fully complied with all applicable laws. In fact, one of the rules is under judicial review now, as the Administrative Procedures Act allowed.

The polar bear 4(d) interim final rule was certainly not a ``midnight rule.'' Look at the process it went through. It was announced and made available as a final special rule on May 15 of 2008, concurrent with the announcement of the decision to list the polar bear as threatened under the ESA. That announcement then triggered or opened a 60-day public comment period to all interested parties to submit comments that might contribute to the development of a final rule. Then those comments come in throughout that period. After the comments are received, the U.S. Fish and Wildlife Service made several appropriate revisions to the final rule.

Nothing in this special rule changed the recovery planning provisions and the consultation requirements that exist under section 7 of the ESA. The 4(d) rules that are contained are not exclusions, and they are not exemptions. Under the ESA itself, section 4(d) says that for threatened species, the Secretary may promulgate such regulations as he deems necessary or advisable. So what happened was Secretary Kempthorne used this very strict authority to develop a rule that states if an activity is permissible under the stricter standards of the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear.

I wish to repeat a comment the Senator from California made yesterday. It is one I absolutely agreed with. I agree we must follow the process; we must follow the law. The problem is, the House rider circumvents the public process because it completely eliminates the law. Section 429 doesn't require public notice and doesn't allow public comment or judicial review, as is required by the law.

What my amendment does is maintain the public process. It not only requires that any withdrawal or repromulgation of either of these two rules follows the Administrative Procedures Act, with at least a 60-day comment period to allow for that adequate public comment. This is the same amount of time the public had to comment on the polar bear 4(d) interim final rule last year.

Without this amendment, this provision allows the Secretaries to make dramatic changes in rules and regulations, without having to comply with multiple, longstanding Federal laws that require public notice and comment by the American public and knowledgeable scientists. These challenges have the potential for far-reaching and truly unintended consequences in our country.

The House rider we are dealing with in this omnibus bill shortchanges the public process. It is certainly not my amendment that shortchanges anything or tries to go outside the process. What we are providing in this amendment is ensuring we follow that public process.

I ask Members of this body to vote in favor of my amendment to maintain this public process. That is what this amendment does. We owe it to ourselves to keep the integrity of the process intact. It is a dangerous precedent for this body to set. I ask Members to look very carefully at this amendment and truly attempt to understand the full implications if we are not successful in removing this rider from the bill.

I yield the floor.

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