On January 23, 2017, the Center for Regulatory Effectiveness filed comment with the U.S. National Marine Fisheries Service on the U.S. Bureau of Ocean Energy Management’s revised application to NMFS for marine mammal take rules for oil and gas Geological and Geophysical operations in the Gulf of Mexico. CRE’s comments included the following Executive Summary:
The Revised Application violates the Information Quality Act Guidelines (“IQA”). These IQA violations include but are not limited to BOEM and NMFS’ admitted use of unvalidated, inaccurate and unreliable models to estimate Takes. This use of indisputably bad models results in inaccurate, unreliable and grossly exaggerated Take estimates.
The Revised Application also violates the requirements of the Office of Management and Budget’s (“OMB”) Peer Review Bulletin.
The Revised Application and BOEM/NMFS’ GOM Take Rules have to comply with Executive Orders 12866, 13563 and 13211, and have not yet done so. For example, BOEM and/or NMFS have to submit draft proposed GOM Take Rules to OMB’s Office of Information and Regulatory Affairs (“OIRA”) for review before publishing the proposed rules. The draft proposed rules sent to OMB/OIRA must contain BOEM/NMFS’ assessment of the cost and benefits of the proposed rules. BOEM and/or NMFS must allow stakeholder input on this assessment before it is sent to OMB/OIRA, and before it is published as a Notice of Proposed Rulemaking (“NPRM”).
BOEM and NMFS have not yet taken these required steps. Yet they intend to publish their NPRM for the GOM Take Rules by April 2017. This April 2017 publication date is infeasible given the Executive Orders’ regulatory review requirements, the change in Administrations, and the likelihood of intense and justified opposition to the proposed GOM Take Rules.
The Revised Application and BOEM/NMFS’ Take Rules for the GOM (as currently known) lack practical utility under the Paperwork Reduction Act (“PRA”). Consequently, OMB/OIRA should not approve the new Information Collection Requests (“ICRs”) that are necessary for BOEM and NMFS’ implementation and enforcement of the Rules.
The Revised Application could lead to GOM Take Rules that in effect ban oil and gas G&G in the GOM. This calamitous cost would be for rules that have little if any benefit.
BOEM should withdraw the Revised Application and publish a new draft Application that is consistent with CRE’s comments set forth above and below. BOEM and NMFS should publish the new draft Application for public comment. BOEM should consider returning to its original Application for GOM Take Rules, which uses Line Transect and not inaccurate models to estimate Takes.
CRE requests that BOEM and NMFS respond to these CRE comments on the Revised Application if and when they propose any GOM Take Rules. CRE also requests that the agencies send their response to CRE’s comments to OMB/OIRA for review along with any draft proposed GOM Take Rules, their proposed assessment of costs and benefits, and proposed ICRs for the Rules.
Click here to read CRE’s entire comments.
