On November 29, 2016, the Center for Regulatory Effectiveness filed Comments on the National Marine Fisheries Service’s proposed Information Collection Request: Applications and Reporting Requirements for the Incidental Take of Marine Mammals under the Marine Mammal Protection Act. CRE’s comments included the following summary:
“NMFS intends to use its new ‘Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing’ (‘Acoustic Guidance) to establish exclusion zones and to estimate takes during NMFS’ permitting under the MMPA. NMFS’ Guidance will impose very burdensome new information collections on the oil and gas industry and on other parties subject to NMFS’ MMPA permitting. Consequently, NMFS intends to ask OMB’s OIRA to review and approve the Acoustic ICR, which would authorize these new and greatly expanded information collections.
OIRA cannot approve the Acoustic ICR unless it meets certain requirements under the Paperwork Reduction Act (“PRA”). OIRA’s “PRA Primer” explains what these PRA requirements are:
“What does OMB evaluate during its review of proposed collections?
A central goal of OMB review is to help agencies strike a balance between collecting information necessary to fulfill their statutory missions and guarding against unnecessary or duplicative information that imposes unjustified costs on the American public. In this regard, OIRA evaluates whether the collection of information by the agency:
• is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• minimizes the Federal information collection burden, with particular emphasis on those individuals and entities most adversely affected; and
• maximizes the practical utility of and public benefit from information collected by or for the Federal Government.
OIRA also reviews the extent to which the information collection is consistent with applicable laws, regulations, and policies related to privacy, confidentiality, security, information quality, and statistical standards.”
OIRA should not approve NMFS’ Acoustic ICR because the ICR does not meet these PRA requirements. For example:
NMFS’ development of the Acoustic Guidance violates OMB’s Information Quality Bulletin for Peer Review.
NMFS’ Acoustic Guidance and Acoustic ICR violate IQA Guidelines and are not the Best Available Science.
NMFS’ Acoustic Guidance and Acoustic ICR have no practical utility.
NMFS’ development of the Acoustic Guidelines violates Executive Orders 12866 and 13563.
NMFS’ Acoustic Guidance and Acoustic ICR are not necessary to perform NMFS’ duties under the MMPA or any other statute. In fact, they violate NMFS’ duties because, e.g., the Guidance
- violates OMB’s Peer Review Bulletin;
- violates the Information Quality Guidelines;
- violates Executive Orders 12866 and 13563;
- violates the MMPA requirement that all mitigation requirements be “practicable.” NMFS seeks OIRA approval of an Acoustic ICR that authorizes monitoring and reporting requirements that are impossible to comply with.
NMFS’ Acoustic Guidance will provide no benefit over NMFS’ current standards for oil and gas, which have adequately protected marine mammals and other organisms for decades.
NMFS’ Guidance will not minimize the information collection burden. It will in fact greatly increase the burden on oil and gas, and could force closure of all offshore oil and gas exploration.
The information collections and other demands of the Acoustic Guidance will be impossible to comply with.
They provide no additional benefit because current information collections are all that’s necessary to properly perform NMFS’ functions.
NMFS Acoustic ICR burden estimates are incomplete and inaccurate because they do not include the cost of shutting down offshore oil and gas exploration.
For these and other reasons, NMFS should not submit its Acoustic ICR to OIRA for review and approval. NMFS should instead withdraw both its Acoustic ICR and its Acoustic Guidance. They will impose unnecessary and unjustified costs on the American public.”