CRE Files Second Comments on NMFS’ Proposed Bryde’s Whale ESA Listing

On February 6, 2017, CRE filed its First Comments with the U.S. National Marine Fisheries Service on the Service’s proposed Bryde’s Whales listing. On February 23, 2017, CRE filed its Second Comments on NMFS’ proposed Bryde’s whale listing .

CRE’s Second Comments address one additional issue: NMFS’ failure to comply with the Office of Management and Budget’s “Agency Good Guidance Practices” Bulletin and with OMB’s implementing guidance for this Bulletin.

This OMB Bulletin is available here.

NMFS’ Bryde’s Whale Status Review Report (“SRR”) references “NOAA acoustic guidance.” CRE’s prior and current comments demonstrate that either NMFS’ Acoustic Guidance is a rule, in which case it has violates many OMB regulatory review requirements; or NMFS’ Acoustic Guidance is in fact guidance, in which case it violates the OMB Guidance Bulletin and OMB’s implementing guidance for the Bulletin.

In either case, NMFS’ Acoustic Guidance violates IQA Guidelines and OMB’s Peer Review Bulletin.

If NMFS continues to argue that their Acoustic Guidance is just “guidance,” then, pursuant to OMB Guidance Bulletin Section III. 2 (b), CRE has requested that NMFS withdraw both its proposed Bryde’s whale listing and its Acoustic Guidance. NMFS should not republish them in any form until and unless NMFS can demonstrate to OMB’s satisfaction that NMFS has complied with the OMB Guidance Bulletin and implementing guidance, the IQA Guidelines, and the OMB Peer Review Bulletin.

CRE filed this OMB Guidance Bulletin complaint in the proposed Bryde’s whale listing record because NMFS references the Acoustic Guidance in this proposed action, and because there is no official NMFS site to file this OMB Guidance Bulletin complaint, in violation of the Bulletin’s requirements.

If, in the alternative, NMFS decides that its Acoustic Guidance is binding instead of mere guidance, then CRE requests that NMFS withdraw both its proposed Bryde’s whale listing and its Acoustic Guidance. NMFS should not republish them in any form until and unless less NMFS demonstrates to OMB’s satisfaction that NMFS has complied with OMB’s regulatory review and other requirements for rules, with the IQA Guidelines, and with the OMB Peer Review Bulletin.

CRE also reiterated and incorporated its relief requested in CRE’s first comments on the proposed Bryde’s whale comments. CRE’s first filed comments are available here.

Click here to read CRE’s Second Comments on NMFS’ proposed Bryde’s whale listing.

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