CRE Files Comments Opposing NMFS Using Its Acoustic Guidance in IHAs

On June 1, 2017, the Center for Regulatory Effectiveness filed comments with NMFS on the Service’s proposed issuance of an Incidental harassment authorization for Ocean Wind, LLC. This proposed IHA would authorize Ocean Wind to take marine mammals incidental to geophysical and geotechnical activities associated with marine site characterization surveys off the coast of New Jersey.

CRE’s comments do not oppose NMFS’ issuance of this proposed IHA. CRE’s comments do, however, oppose NMFS’ use of its new Acoustic Guidance in this IHA and for any other purpose. As explained in CRE’s comments, CRE’s opposition to Acoustic Guidance use is based on the following and other grounds.

First, NMFS’ Use of the Acoustic Guidance Conflicts with Section 10 of Executive Order 13795.

Second, there are many fatal flaws in the Acoustic Guidance. For example, the Acoustic Guidance

  • violates OMBs Peer Review Bulletin;
  • violates the Information Quality Act (IQA) Guidelines;
  • violates Executive Order 12866 and President Trumps Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs;
  • violates OMBs Guidance Document Bulletin4 and implementing Memoranda; and
  • violates the Marine Mammal Protection Act (MMPA) requirement that all mitigation requirements be practicable. The Acoustic Guidance requires monitoring and reporting requirements and other mitigation requirements that are impossible to comply with.

Third, NMFS Does Not Have an OMB-approved Information Collection Request (“ICR”) for the Acoustic Guidance.

Fourth, NMFS is violating the Information Quality Act by claiming that NMFS has an OMB-approved ICR for the Acoustic Guidance.

Click here to read CRE’s entire filed comments.

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