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®: CRE Regulatory Action of the Week

BOEMRE Denies Public Access to Public Comments
On June 14, 2011 the U.S. National Marine Fisheries Service published Federal Register notice of a revised application submitted to NMFS by the U.S. Bureau of Ocean Energy Management, Regulation, and Enforcement. BOEMRE's revised application seeks authorization from NMFS under the Marine Mammal Protection Act to take marine mammals, by Level A and Level B harassment. The requested Takes would be authorized incidental to oil and gas industry sponsored seismic surveys on the Outer Continental Shelf in the Gulf of Mexico from approximately 2012 to 2017.

NMFS' Federal Register notice "invit[es] information, suggestions, and comments on BOEMRE's revised application." NMFS' notice explains that:

    "All comments received are a part of the public record and will generally be posted to without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information."
NMFS' approach to public comments is consistent with CRE's experience with other federal agencies-except one.

BOEMRE itself refuses to disclose any public comments to the public. While BOEMRE may summarize some comments and make the agency's summaries available, BOEMRE will not disclose the comments themselves even in response to a Freedom of Information Act request. BOEMRE won't disclose them because, according to BOEMRE, the comments might contain commercial or financial information.

For example, CRE filed a FOIA request for some public comments filed with BOEMRE. BOEMRE entirely denied CRE's request on the grounds stated in the preceding paragraph: i.e., the comments might contain some commercial information. BOEMRE did not even attempt to segregate out any genuinely privileged material, and provide CRE the rest.

CRE is appealing BOEMRE's FOIA denial because we believe it is illegal and bad policy. It is also inconsistent with the practice of BOEMRE's sister agencies like NMFS.

  • Click here fto read NMFS' request for public comment on BOEMRE's revised Take application