On March 4, 2019, the Center for Regulatory Effectiveness (CRE) filed with NOAA an Information Quality Act (IQA) Alert concerning NOAA’s proposed marine mammal Incidental Take Rules for oil and gas exploration in the Gulf of Mexico (GOM Take Rule). An IQA Alert is a mechanism authorized by the Information Quality Act. It notifies a federal agency that if the contents of a proposed information dissemination remain unchanged, then final dissemination of the information will be subject to an IQA Request for Correction; in this instance one to be filed by CRE.
In contrast to an IQA alert, an IQA Request for Correction (RFC) is a formal petition demanding a change(s) in a document disseminated by a federal agency that violates the IQA. A RFC is considerably more controlling than an Alert petition filed solely pursuant to the Administrative Procedure Act in that the IQA establishes deadlines by which the recipient agency must act on an RFC, and the substance of the response is governed by regulations issued by both NOAA and OMB pursuant to the IQA. The Department of Justice has notified the courts that OMB has the authority to make the ultimate decision on an RFC if it wishes to do so.
CRE’s IQA Alert to NOAA included the following Introduction and Summary (footnotes omitted):
“The National Marine Fisheries Service (‘NMFS’) has proposed rules under the Marine Mammal Protection Act (‘MMPA’) for oil and gas geophysical activities in the Gulf of Mexico (‘proposed GOM Take Rules’). These proposed rules authorize and regulate the number of marine mammal ‘Takes’ that companies are allowed when they look for oil and gas in the GOM.
NMFS’ proposed GOM Take Rules violate the Transparency and Reproducibility requirements of the Information Quality Act (‘IQA’) because they are based on proprietary models that have never been subject to peer review and the other especially rigorous robust checks required by the IQA and by NMFS’ IQA Guidelines.
NMFS’ proposed GOM Take Rules also violate OMB’s Information Quality Bulletin for Peer Review because they are, or are based on, ‘highly influential scientific assessments’ that have never been peer reviewed in accordance with OMB’s Bulletin.
NMFS’ proposed GOM Take Rules also violate the OMB Peer Review Bulletin requirement that
‘If an agency relies on influential scientific information or a highly influential scientific assessment subject to the requirements of this Bulletin in support of a regulatory action, the agency shall include in the administrative record for that action as certification that explains how the agency has complied with the requirements of this Bulletin and the Information Quality Act. Relevant materials are to be placed in the administrative record.’
NMFS’ proposed GOM Take Rules also violate the IQA and IQA Guidelines’ Accuracy requirement because
- The proposed Rules’ marine mammal exposure and Take estimates are not supported by real world data;
- The proposed Rules’ exposure and Take estimates are based on proprietary models that have never been peer reviewed and which do not consider the mitigating procedures that NMFS requires to minimize marine mammal exposures;
- The proposed Rules’ exposure and Take estimates are inconsistent with the absence of any harm from decades of oil and gas geophysical operations in the Gulf of Mexico; and
- The proposed Rules’ exposure and Take estimates are not based on the best available information.
NMFS’ proposed GOM Take Rules also violate the IQA because they do not comply with any of Pre-dissemination Review requirements of NOAA/NMFS’ IQA Guidelines. NMFS doesn’t even mention the IQA in the proposed Rules.
The Appendix to CRE’s Alert provides specific examples of NMFS’ IQA violations. This Appendix and the Conclusion Section of CRE’s Alert state the corrective actions necessary to comply with the IQA and with OMB’s Information Quality Bulletin for Peer Review.
These actions include abandoning use of non-transparent, non-reproducible, un-validated and inaccurate models to estimate exposures and Takes. NMFS emphasizes that ‘use of models for estimating the size of ensonified areas and for developing take estimates is not a requirement of the MMPA incidental take authorization process….’ Line Transect currently generates the best available information about exposures and Takes, and NMFS should use Line Transect until and unless NMFS has models that have been properly peer reviewed and determined to be accurate.
Peer review of NMFS’ models should include determining their compliance with the Council for Regulatory Modeling’s (‘CREM’) Guidance on the Development, Evaluation and Application of Environmental Model. There is compelling precedent for this corrective action because NMFS has already done it for use of the proprietary Acoustic Integration Model (‘AIM’) in estimating exposures and Takes under the MMPA.”
Click here to read CRE’s entire IQA Alert to NOAA on the proposed GOM Take Rules.
