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Where is the Peer Review?

 

We at Ocean Beach Dog Owners Group (OBDOG) have called for the withdrawal of the proposed use changes for recreation with dogs in the Golden Gate National Recreation Area (GGNRA) and the reinstatement of the original 1979 GGNRA Pet Policy.  This may appear on its face to be a radical position, but in actuality it is the only action the GGNRA can take in order to comply with current law.  In the Draft Environmental Impact Statement (DEIS) the GGNRA promulgated several "studies/scientific claims" that clearly were not peer-reviewed and OBDOG discredited these "studies/scientific claims" quite effectively in our  document "Comments on the GGNRA Draft Environmental Impact Statement" (dated May 26, 2011) .  The Supplemental Environmental Impact Statement (SEIS) no longer contains the "studies/scientific claims" that we discredited. Further, in the current SEIS the GGNRA acknowledges that they have no peer reviewed, site-specific studies to support their claims that dogs adversely affect water quality in the GGNRA.  Accordingly, in the SEIS, the GGNRA announced they were dropping their claim of water quality impairment (see SEIS; page 28).  However, the GGNRA also acknowledges in the SEIS that they have no site-specific peer reviewed studies to support their claims of soil, vegetation or wildlife impairment by dogs in the GGNRA (see SEIS; pages 373 and 376).

Rather than dropping these claims the SEIS relies upon possible outcomes, potential for degradation, and so on.  In fact, there has been no peer review of the faux science the GGNRA has used for any closures since the original 1979 GGNRA Pet Policy was reinstated by Judge Alsup in 2005 (see United States of America v. Barley, Sayad and Kieselhorst; June 2, 2005) .

 

First exhibit:  a letter dated November 13, 2013 from National Park Service (NPS) Director Jon Jarvis to Congressional Representative Rob Bishop in response to Representative Bishop's inquiry about a comment the NPS submitted regarding a technical (scientific) matter being considered in Committee (click here to view the letter).  In the letter,  Director Jarvis states:

 

"The inclusion of a quote from an article on the New York Times' Op-Ed page was inappropriate.  Citations to peer-reviewed scientific studies should have been referenced to support the technical comments that were submitted.  In addition, the comments did not receive appropriate review and were not signed.  For these reasons I have requested that the comments be withdrawn from the record". 

 

A review of the law (see below) will explain why Jon Jarvis, as head of the NPS, had no choice but to retract the comments/assertions referred to in this letter and why the GGNRA has no choice but to withdraw their proposed changes to their Dog Management Policy. The law requires findings or conclusions that represent the official position of one or more agencies of the Federal government with regards to scientific matters shall be peer-reviewed before dissemination. Further, this example illustrates that it is entirely inappropriate (unlawful) to utilize opinion only to support technical assertions.

 

On December 16, 2004, Joshua Bolten, Director of the Executive Office of the President of the Office of Management and Budget (OMB) in Washington, D.C., published and circulated a "Memorandum for Heads of Departments and Agencies" about the issuance of the OMB’s “Final Information Quality Bulletin for Peer Review”. This bulletin was subsequently published in the Federal Register (2664 Federal Register / Vol. 70, No. 10 / Friday, January 14, 2005 / Notices; see http://www.nrc.gov/public-involve/70fr2664.pdf)

Following are direct excerpts from the aforementioned memorandum and bulletin which are applicable to our situation here in the GGNRA:

AGENCY: Office of Management and Budget, Executive Office of the President

SUMMARY: On December 16, 2004, the Office of Management and Budget (OMB), in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review to the heads of departments and agencies (available at

http://www.whitehouse.gov/omb/memoranda/ fy2005/m05–03.html). This new guidance is designed to realize the benefits of meaningful peer review of the most important science disseminated by the Federal Government. It is part of an ongoing effort to improve the quality, objectivity, utility, and integrity of information disseminated by the Federal Government to the public.

This Bulletin establishes that important scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal government. The term ‘‘influential scientific information’’ means scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions. To the extent permitted by law, each agency shall conduct a peer review on all influential scientific information that the agency intends to disseminate. [Emphasis added]

This Bulletin addresses peer review of scientific information disseminations that contain findings or conclusions that represent the official position of one or more agencies of the Federal government.

DATES: The requirements of this Bulletin, with the exception of those in Section V (Peer Review Planning), apply to information disseminated on or after June 16, 2005.

Peer review is one of the important procedures used to ensure that the quality of published information meets the standards of the scientific and technical community....Peer review is the review of a draft product for quality by specialists in the field who were not involved in producing the draft.

The peer reviewer’s report is an evaluation or critique that is used by the authors of the draft to improve the product. Peer review typically evaluates the clarity of hypotheses, the validity of the research design, the quality of data collection procedures, the robustness of the methods employed, the appropriateness of the methods for the hypotheses being tested, the extent to which the conclusions follow from the analysis, and the strengths and limitations of the overall product.

In some cases, reviewers might recommend major changes to the draft, such as refinement of hypotheses, reconsideration of research design, modifications of data collection or analysis methods, or alternative conclusions.

This Bulletin establishes minimum standards for when peer review is required for scientific information and the types of peer review that should be considered by agencies in different circumstances. It also establishes a transparent process for public disclosure of peer review planning, including a web-accessible description of the peer review plan that the agency has developed for each of its forthcoming influential scientific disseminations. http://www.nps.gov/policy/peerreview.htm

Regardless of the peer review mechanism chosen, agencies should strive to ensure that their peer review practices are characterized by both scientific integrity and process integrity. ‘‘Scientific integrity,’’ in the context of peer review, refers to such issues as ‘‘expertise and balance of the panel members; the identification of the scientific issues and clarity of the charge to the panel; the quality, focus and depth of the discussion of the issues by the panel; the rationale and supportability of the panel’s findings; and the accuracy and clarity of the panel report.’’ ‘‘Process integrity’’ includes such issues as ‘‘transparency and openness, avoidance of real or perceived conflicts of interest, a workable process for public comment and involvement,’’ and adherence to defined procedures.

When an information product is a critical component of rule-making, it is important to obtain peer review before the agency announces its regulatory options so that any technical corrections can be made before the agency becomes invested in a specific approach or the positions of interest groups have hardened. If review occurs too late, it is unlikely to contribute to the course of a rulemaking. Furthermore, investing in a more rigorous peer review early in the process ‘‘may provide net benefit by reducing the prospect of challenges to a regulation that later may trigger time consuming and resource-draining litigation.’’ The peer review report shall be discussed in the preamble to any related rulemaking and included in the administrative record for any related agency action. [Emphasis added]

Peer review should not be confused with public comment and other stakeholder processes. The selection of participants in a peer review is based on expertise, with due consideration of independence and conflict of interest. Furthermore, notice-and-comment procedures for agency rulemaking do not provide an adequate substitute for peer review, as some experts -- especially those most knowledgeable in a field -- may not file public comments with federal agencies.

Legal Authority for the Bulletin

This Bulletin is issued under the Information Quality Act and OMB’s general authorities to oversee the quality of agency information, analyses, and regulatory actions. In the Information Quality Act, Congress directed OMB to issue guidelines to ‘‘provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility and integrity of information’’ disseminated by Federal agencies. Public Law No. 106–554, 515(a). The Information Quality Act was developed as a supplement to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., which requires OMB, among other things, to “develop and oversee the implementation of policies, principles, standards, and guidelines to . . . apply to Federal agency dissemination of public information.” In addition, Executive Order 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993), establishes that OIRA is “the repository of expertise concerning regulatory issues,” and it directs OMB to provide guidance to the agencies on regulatory planning. E.O. 12866, 2(b). The Order also requires that “[e]ach agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, or other information.” E.O. 12866, 1(b)(7). Finally, OMB has authority in certain circumstances to manage the agencies under the purview of the President’s Constitutional authority to supervise the unitary Executive Branch. All of these authorities support this Bulletin.

In response to the Bulletin, on January 31, 2008 Herbert C. Frost, as Acting Associate Director of Natural Resource Stewardship and Science for the NPS, published the "Interim Guidance Document Governing Code of Conduct, Peer Review, and Information Quality Correction for National Park Service Cultural and Natural Resource Disciplines". Following are excerpts from this document:

Sound management and interpretation of National Park System resources and National Park Service technical assistance programs depend on authoritative information from scientific and scholarly activities. Peer review provides the appropriate process for ensuring technical quality and accuracy of these activities, which include inventory, monitoring, research, assessment, and management projects. This peer review must be applied appropriately at all stages, which may include proposals at the funding decision point, detailed proposals or plans of action at the point of initiating an activity, progress of an activity at key points during its duration, and results and draft reports of accomplishments of the activity.

The scientific and scholarly guidance presented in this document ensures that the review requirement is met using a consistent, conscientious, and appropriate level of effort. Such technical peer review is essential to demonstrate the professional stature and ensure the accountability of the National Park Service's acquisition and application of scientific and scholarly information. Such scientific peer review complements, and is part of, administrative review.

I.b. Purpose

NPS issues this guidance to ensure that NPS scientific and scholarly activities comply with the OMB Final Information Quality Bulletin for Peer Review (70 FR 2664-2677), the Department of the Interior draft 305 DM 4 Peer Review, NPS Director’s Order 11B: Ensuring Quality of Information Disseminated by the National Park Service, and the Secretary of the Interior’s December 21, 2007 memorandum “Ensuring Integrity in Scientific Activities”. This guidance is expected to:

A. Enhance the quality, objectivity, utility, and integrity of scientific and scholarly information generated or supported by the NPS;

B. Increase the credibility of decisions to which these and other scientific information contributes; and

C. Extend application of the concepts of the OMB Final Information Quality Bulletin for Peer Review (70 FR 2664-2677), henceforth referred to as the OMB Peer Review Bulletin, to information disseminated by the Service that is neither a highly influential scientific assessment nor influential scientific information.

The NPS shall ensure appropriate peer review of all scientific and scholarly information prior to use in decision-making, regulatory processes, or dissemination to the public and regardless of media (i.e., print, digital, audiovisual, or Web). Any information that the NPS determines to be either “influential scientific information” and/or “highly influential scientific assessment” will require more specific, independent peer review consistent with the OMB Peer Review Bulletin. NPS will place these guidelines, its peer review agendas for influential scientific information and highly influential scientific assessment (as defined by the OMB Peer Review Bulletin), and its information quality correction site on a publicly available webpage. These guidelines become effective on an interim basis February 1, 2008.

These guidelines apply to all scientific and scholarly information and assessments produced, used, or sponsored by the NPS. The guidelines identify the ethical standards within which employees and volunteers will conduct NPS-sponsored scientific and scholarly activities. The peer review component of these guidelines applies to scientific and scholarly activities. It does not apply to policy or management decisions, although it does apply to the underlying scientific and scholarly information that, along with other factors, informs a decision maker.

II. AUTHORITY TO ISSUE THIS REFERENCE MANUAL

II.a. Guidance for Science, Peer Review, and Information Quality

       305 DM 2 requires that science must be integrated into and used in setting regulatory and management policies in the Department and its bureaus;

       DOI Information Quality Guidelines establish policy to ensure and maximize the objectivity, utility, and integrity of information disseminated to the public by the Department. These guidelines implement the Information Quality Act (P.L. 106-554 Section 515) and associated OMB Guidelines (67 FR 8452-8460);

       E.O. 12866 establishes a government-wide policy that each agency shall base its regulatory decisions on the best reasonably obtainable scientific, technical, economic and other information; and

       OMB Final Information Quality Bulletin for Peer Review (70 FR 2664-2677) establishes government-wide requirements for the peer review of “influential scientific information” and “highly influential scientific assessments.” It also establishes requirements for posting peer review plans on a website and annual reporting of associated peer review activities to the OMB.

II.b. Guidance for Scientific Code of Conduct

       5 U.S.C. 301 allows the head of an executive department to prescribe regulations for the conduct of its employees;

       43 CFR 20.501 requires employees of the Department to comply with all Federal statutes; Executive Orders; and Office of Government Ethics, Office of Personnel Management, and Departmental regulations;

       43 CFR 20.502 states that employees are required to carry out the announced policies and programs of the Department;

       43 CFR 20.502(a) states that an employee is subject to appropriate disciplinary action if he or she fails to comply with any lawful regulations, orders, or policies;

       Federal Policy on Research Misconduct, 65 FR 76260-76264, December 6, 2000; and

       Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR 2635.

II.c. General Authority

       16 U.S.C. 1 through 4 (the National Park Service Organic Act).

II.d. Other Relevant Policy and Guidance

       NPS Management Policies 2006

Chapter 1, The Foundation, Sections 1.8 (Managing Excellence); 1.9.4 (Public Information and Media Relations);

Chapter 2, Park System Planning, Sections 2.1.2 (Scientific, Technical, and Scholarly Analysis), 2.1.3 (Public Participation); 2.3.1.4 (Science and Scholarship);

Chapter 4, Natural Resource Management, Sections 4.1.2 (Natural Resource Information); 4.2 (Studies and Collection); 4.8.2.1 (Paleontological Resources and Their Contexts); 4.8.2.2 (Caves);

Chapter 5, Cultural Resource Management, Sections 5.1.1 (National Park Service Research); 5.2.3 (Confidentiality); 5.3.5.3.2 (Sacred Sites); 5.3.5.5.4 (Acquisition, Management, Disposition, and Use); 5.3.5.5.6 (Archives and Manuscripts);

Chapter 7, Requirements for All Interpretive and Educational Services, Section 7.5.4 (Research and Scholarship);

Chapter 8, Use of the Parks, Sections 8.5 (Use by American Indians and Other Traditionally Associated Groups); 8.11 (Social Science Studies);

Chapter 10, Commercial Visitor Services, Section 10.2.4.9 (Natural and Cultural Resource Management Requirements).

       DO #11B Ensuring Quality of Information Disseminated by the National Park Service;

       DO #12 Environmental Impact Analysis;

       DO #19 Records Management; and

       DO #78 Social Science, Section III.I (Peer Review).

V. THRESHHOLDS FOR PEER REVIEW

V.a. When is Peer Review Required?

Although peer review generally benefits all scientific and scholarly activities, existing workloads do not permit conducting the same intensity of peer review in every case. As a result, supervisors apply professional judgment to each activity to determine what level of peer review is required at any step in the implementation process. In general the need for peer review should be decided by a supervisor or program leader at least one level above the person who conducts the work. The following factors are examples of considerations used in making this professional judgment:

       the probable degree of controversy likely to be associated with the activity or the management, regulatory, or policy decision that it informs;

       the potential for societal and resource impacts associated with management, regulatory, or policy decisions that the information might influence;

(Note: We would point out that Federal Judge Alsup, in reinstating the original 1979 GGNRA Pet Policy on June 2, 2005 concluded as follows:

"In 1983, the NPS revamped its regulations and added a new provision to require notice-and-comment procedures before any "highly controversial" closure or opening of NPS land or before any such action that would have a major impact on visitor use patterns...Judge Laporte was correct that the 2002 closures were "highly controversial" and the government's appellate brief herein did not argue otherwise."

Clearly precedent and the government's decision to utilize the notice and comment process here confirm this proposed change to the DMP is both highly controversial and will have a major impact upon visitor use patterns in the GGNRA. Peer review is required in this circumstance, and the SEIS acknowledges such.)

The last document we see in the chain of regulations following the initial Bulletin regarding Peer Review is Chapter 3 "Integrity of Scientific and Scholarly Activities" of the official Department of Interior Departmental Manual, effective 1/28/11.

Following are excerpts taken directly from the aforementioned document:

This chapter establishes Departmental policy on the integrity of scientific and scholarly activities the Department conducts and science and scholarship it uses to inform management and public policy decisions. Scientific and scholarly information considered in Departmental decision making must be robust, of the highest quality, and the result of as rigorous scientific and scholarly processes as can be achieved. Most importantly, it must be trustworthy. It is essential that the Department establish and maintain integrity in its scientific and scholarly activities because information from such activities is a critical factor that informs decision making on public policies. [Emphasis added]

This chapter establishes requirements for the professional conduct and management of scientific and scholarly activities, and the use of scientific and scholarly information, by and on behalf of the Department.

The Department is dedicated to preserving the integrity of the scientific and scholarly activities it conducts, and activities that are conducted on its behalf. It will not tolerate loss of integrity in the performance of scientific and scholarly activities or in the application of science and scholarship in decision making.

Code of Scientific and Scholarly Conduct includes provisions requiring:

       avoidance of conflict of interest (real or perceived)

       adherence to scientific standards including the Scientific Method

       publication of data along with study conclusions

(Note: this comment contains review of "studies" proffered by the GGNRA to substantiate restrictions designed to protect the Western snowy plover. These "studies" fail to adhere to the Code of Scientific and Scholarly conduct with respect to all three provisions listed above. We should point out that upon receiving these allegations in written form by way of our Comment on the DEIS, the NPS did not modify their planned restrictions but did remove the studies from the SEIS. Compliance with the law would have required withdrawal of the entire DMP. The same flaws are found in the 2006 Daphne Hatch "study" utilized by the GGNRA in 2008 to abolish off-leash recreation on the southern 2.4 miles of Ocean Beach. We raised, in our written comment opposing the closure, the same objections to the Hatch "study" however our objections were ignored by the GGNRA.)

Allegations of scientific and scholarly misconduct with respect to DOI employees, volunteers, contractors, cooperators, partners, permittees, leasees, and grantees must be submitted in writing. The Department will consider allegations submitted within 60 days of discovery of alleged misconduct. Allegations may be submitted by individuals or entities, internal or external to the Department.

Three criteria are necessary to establish research misconduct (Federal Policy on Research Misconduct):

(1) There is a significant departure from accepted practices of the relevant research community, and

(2) The misconduct is committed intentionally or knowingly or recklessly, and

(3) The allegation is proven by a majority of evidence.

43 CFR 20.501 requires employees of the Department to comply with all Federal statutes, Executive Orders, Office of Government Ethics and Office of Personnel Management regulations, and Departmental regulations.

43 CFR 20.502 states that employees are required to carry out the announced policies and programs of the Department.

18 U.S.C. 208 and 5 CFR 2635 Subparts D and E state that department scientists and scholars are subject to requirements pertaining to conflict of interest and appearance of a lack of impartiality.

(Note: We would point out that a good case can be made that the Code of Scientific and Scholarly Conduct and Federal Policy on Research Misconduct have been violated repeatedly by GGNRA personnel since the 2005 reinstatement of the 1979 GGNRA Pet Policy. Evidence of the misconduct has been submitted by OBDOG by way of public comment when "studies" were revealed to support closures. It is unconscionable that GGNRA/NPS/DOI personnel who reviewed comments prior to these closures never made any attempt to rectify the shortcomings, and apparently condoned them. Certainly, comments regarding the 2006 Daphne Hatch "study" out at Ocean Beach confirmed scientific and research misconduct based upon Federal policy guidelines. The GGNRA/NPS/DOI ignored the scientific policy violations, and actually implemented the closure this discredited "study" was submitted to support! Clearly, there is no scientific accountability within the GGNRA/NPS/DOI and, in fact, scientific misconduct is authorized and supported by management all the way up to the highest levels of the Department of the Interior.)

 


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