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Wednesday, October 17, 2007

NOAA Efforts to Protect Marine Species Thwarted by White House

For months, the White House Office of Information and Regulatory Affairs has been blocking the finalization of a rule that would enhance protections for the North Atlantic right whale. The National Oceanic and Atmospheric Administration (NOAA) is pursuing the rulemaking because the right whale is one of the most critically endangered marine species in the world.

Under Executive Order 12866, Regulatory Planning and Review, agencies are required to submit significant rules to the White House in order to give OIRA an opportunity to review and edit the rule.

However E.O. 12866 prescribes a time limit for the OIRA review period. OIRA is to complete its review within 90 days of receiving the rule from the agency. In consultation with the agency, OIRA may extend the review period once for 30 days. NOAA submitted the draft of the final rule on Feb. 20, 2007 which means OIRA has exceeded the time limit by 118 days and counting.

OIRA is holding up another NOAA rule as well. On May 29, NOAA submitted a draft proposed rule in which the agency hopes to expand protections for krill. Krill are shrimp-like creatures that serve as an important source of food for whales and other marine animals. Krill are the most abundant organism on earth (in terms of mass) but the species is in decline, according to an episode of Planet Earth Reg•Watch recently saw on the Discovery Channel.

OIRA generally places rules into three categories: economically significant (those expected to have an economic impact of $100 million or more); other significant (those that interfere with the actions of other agencies, materially alter budgetary impacts, or raise novel legal or policy issues); and nonsignificant (those OIRA wants to review even though they fail to meet any of the aforementioned criteria.)

The right whale rule is considered economically significant — the kind of rule OIRA generally pays lots of attention to. But the krill rule is considered nonsignificant which means the rule drew OIRA's attention for non-economic reasons.

Of course, because of the murkiness of the OIRA review process, the public is shut out of all proceedings. Therefore, it is currently impossible to know what OIRA has been doing with the rules all this time.