CRE files Comments on NMFS’ 2nd Draft Acoustic Guidance

On September 14, 2015, the Center for Regulatory Effectiveness filed comments on the U.S. National Marine Fisheries Service’s “Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing—Acoustic Threshold Levels for Onset of Permanent and Temporary Threshold Shifts.” CRE’s comments included the following Executive Summary:

“CRE commends NMFS for emphasizing the need to comply with Information Quality Act (“IQA”) Guidelines, and for requiring multiple peer reviews of the Draft Guidance.

“NMFS needs to clearly state whether use of the Draft Guidance is mandatory during regulation of offshore oil and gas seismic. If use is mandatory then the Draft Guidance is a rule and should be treated as such.

NMFS should perform a cost benefit analysis of the Draft Guidance. The Draft Guidance is much more cumbersome, burdensome and complex than current regulation without any apparent need or justification. NMFS and the U.S. Bureau of Ocean Energy Management (“BOEM”) have repeatedly and correctly emphasized that there is no adverse impact from oil and gas seismic under current regulation. Consequently, there are few if any benefits from using the Draft Guidance.

No current Information Collection Request (“ICR”) authorizes the Draft Guidance, and any new ICR will have to demonstrate compliance with IQA Guidelines, which NMFS has not yet done.

Demonstrating IQA Compliance is unlikely because peer review and public comment raise significant questions about the Draft Guidance. The Draft Guidance should not be classified as Best Available Science given critical peer reviews of it, and the critical public comments on it.

Several key parts of the draft Guidance will not be available until publication of final Guidance. NMFS should not publish final guidance until the public has had an opportunity to comment on these missing key parts.

In light of these flaws, omissions and concerns, NMFS should not publish the Draft guidance as final.”

Click here to read CRE’s entire filed comments.