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OMB Hits the Brakes on Right Whale Rule

By Cindy Skrzycki
Tuesday, August 14, 2007

The international shipping industry, in a battle of leviathans, is asking the White House to water down a proposed federal rule requiring that ships reduce speed to avoid collisions with the endangered North Atlantic right whale.

The U.S. National Marine Fisheries Service in June 2006 recommended a 10-knot speed limit around 16 Atlantic ports and coastal areas while the whales are feeding, migrating or reproducing. Shippers say the rule would be expensive and ineffective.

Now, six months after a final draft was completed, the Office of Management and Budget has not approved the rule, and some members of Congress are upset about the delay.

"It is our understanding that the draft final rule is still at OMB and may be undergoing substantive revisions that are not supported by the best available science," six House members said in an Aug. 6 letter to President Bush. Senators, including Edward M. Kennedy (D-Mass.) and Olympia J. Snowe (R-Maine), also wrote the president on behalf of the whales on Aug. 10.

Advocacy groups, including Public Employees for Environmental Responsibility, call the delay a case of the White House dragging out the process to avoid a rule that would hurt industry. Shippers challenge the validity of the scientific data the agency used to justify the action.

The World Shipping Council, whose 28 members include A.P. Moller-Maersk Group in Copenhagen and Evergreen Marine of Taipei, Taiwan, argued against the rule in comments filed in October and again in a May 3 letter to the president's budget office.

"We are concerned that the government will take action despite the fact that there is no meaningful scientific basis to conclude that the chosen action will protect whales," the council's letter said. The group says its members carry $500 billion worth of goods into and out of U.S. ports each year.

The speed limit may ultimately cause more deaths because vessels, which usually travel at speeds of 20 knots or more, will be in whale habitats longer, the shippers say. The council said the rule would cost the shipping industry $100 million to $150 million a year in lost time and increased fuel consumption, or two to three times what the government predicts.

The industry prefers an existing plan, in which right whales are spotted and ships warned to look out for them. An alternative would be a speed limit of 14 to 15 knots, the council said.

The budget office, which routinely reviews major rules in 90 to 120 days, has been double-checking the agency's work since February. There has been interagency consultation as well: An employee of the White House Council of Economic Advisers e-mailed marine scientists last month seeking information on whale deaths.

Andrea Wuebker, a spokeswoman for the budget office, said that it is not unusual to involve other agencies in such work and that she could not comment on the review of the whale rule.

National Marine Fisheries Service scientists say fatal collisions with ships average about two a year and are the greatest source of known deaths in a right whale population that has dwindled to about 300. The whale's name comes from the fact that for centuries it was considered the "right" whale to hunt.

The government's research shows that most deaths occurred when the whales were hit by vessels traveling faster than 13 knots.

"Ship strikes of right whales are a huge issue to us," said Gregory Silber, coordinator of recovery activities for endangered whales at the fisheries agency, which is part of the Commerce Department. "The agency believes it is one of the main factors holding this population in check."

The rule would cover ships longer than 65 feet, including tankers, barges, cruise ships, ferries and whale-watching and fishing boats. The agency estimated the cost to commercial shipping at $49.4 million, not counting indirect costs such as port delays.

Some ship operators complained in comments that the rule could put them out of business.

"I would hate to think we have spent our lives working hard on the water with long hours day after day, generation after generation, to have a speed limit rule be the end of our business," Leslie M. Davis Sr., owner of a charter-fishing service in Atlantic Beach, N.C., told regulators.

The letter that Sens. Kennedy, Snowe and John F. Kerry (D-Mass.) wrote to Bush last week cited their "grave concern" that the administration "is not acting strongly or swiftly enough" to protect the whales. Public interest groups favoring the new restrictions also criticized the delay.

"We have been trying to get this rule out, in any form, for years," said Kyla Bennett, director of the New England office of Public Employees for Environmental Responsibility.

"This has been deliberately pushed into an abyss, and it's not coming out anytime soon," Bennett said. "It's not politically palatable to this administration to put out a rule that will have an economic impact on industry."

Another advocacy group, the International Fund for Animal Welfare, of Yarmouth Port, Mass., carried a similar message to the White House in a meeting in March.

Cindy Skrzycki is a regulatory columnist for Bloomberg News. Her e-mail address iscskrzycki@bloomberg.net.

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