On August 21, 2017, the Center for Regulatory Effectiveness filed comments with the U.S. National Marine Fisheries Service addressing NMFS’ regulation of Marine Mammal Protection Act Take Authorizations. NMFS had asked for such comments as part of NMFS’ proceedings to streamline its regulatory processes and reduce its regulatory burden. CRE’s comments included the following executive summary (footnotes omitted):
“These CRE comments address NMFS’ regulation of MMPA Take Authorizations.
CRE is filing separate comments that address NMFS’ Endangered Species Act Section 7 consultations for pesticides.
CRE’s MMPA comments focus on NMFS’ development of regulations governing the incidental taking of marine mammals by oil and gas geophysical surveys in the Gulf of Mexico (“GOM Seismic Rules”).
GOM Seismic has occurred for decades. NMFS has not yet promulgated or proposed any MMPA rules for GOM Seismic, but the Bureau of Ocean Energy Management (‘BOEM’) has successfully regulated GOM Seismic under other statutes for decades. There is no evidence of harm to marine mammals under BOEM’s long-standing regulation.
BOEM’s regulation includes a 500-meter exclusion zone. This size zone is consistent with NMFS’ proposed IHAs for Atlantic Seismic. This 500-meter zone should continue to be used in NMFS’ GOM Seismic Rules.
NMFS’ GOM Seismic Rules must comply with the requirements of Executive Orders 12866, 13563, 13211 and 13795. These requirements include submitting draft GOM Seismic Rules to OMB/OIRA for review, along with a cost benefit assessment of the Rules. NMFS has so far not complied with these and other requirements of the Executive Orders.
The GOM Seismic Rules are also subject to the requirements of OMB’s Peer Review Bulletin. NMFS has so far not complied with these peer review requirements
CRE requests that NMFS take all actions necessary to ensure that any GOM Seismic Rules comply with Executive Orders 12866, 13563, 13211 and 13795, and with OMB’s Peer Review Bulletin. The public should be allowed to comment on compliance before NMFS sends draft rules to OMB/OIRA for review.
CRE also requests that NMFS develop guidelines for preventing sue-and-settle litigation from subverting the rulemaking, congressional and OMB review processes that Congress has established for GOM Seismic Rules.
Executive Order 13795 states:
‘It shall be the policy of the United States to encourage energy exploration and production, including on the Outer Continental Shelf, in order to maintain the Nation’s position as a global energy leader and foster energy security and resilience for the benefit of the American people, while ensuring that any such activity is safe and environmentally responsible.’
CRE’s requested actions are necessary to implement that policy.