The White House is currently delaying the completion of a final rule intended to protect a critically endangered whale species. Critics are concerned the Bush administration is giving special access to business interests and overemphasizing economic considerations in its review of the rule. The delay of the whale protection rule is indicative of a larger problem in the White House regulatory review process.

The North Atlantic right whale is a large species native to the waters off the coast of America's eastern seaboard. According to the National Oceanic and Atmospheric Administration (NOAA), "The population is believed to be at or less than 300 individuals, making it one of the most critically endangered large whale species in the world." The species is protected under both the Endangered Species Act and the Marine Mammal Protection Act.

Although the species has benefited from federal protections for years, it is still having difficulty recovering. Human activity is the primary impediment to species recovery. Collisions between whales and shipping vessels are a particularly serious problem. According to NOAA, "One of the greatest known causes of deaths of North Atlantic right whales from human activities is ship strikes."

In response, NOAA began working in 1999 on a federal rule to limit the speed of large shipping vessels traveling along the eastern seaboard. The speed limits would vary based on geographic location and season.

NOAA submitted a draft proposed rule to the White House Office of Information and Regulatory Affairs (OIRA) in March 2006. In June 2006, NOAA published the proposed rule in the Federal Register and opened the rule for a public comment period which lasted until October.

On Feb. 20, 2007, NOAA submitted a draft final rule to OIRA. 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. Agencies must submit the rule at least twice — once as a draft proposed rule and once as a draft final rule.

E.O. 12866 also 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.

Because NOAA submitted the whale protection rule on Feb. 20, the OIRA review period has expired, even after use of its 30-day extension. Neither OIRA nor NOAA has given word as to when the review period will end. Although OIRA is to consult with agencies during the review process, NOAA has been kept in the dark as to the status of the rule, according to Public Employees for Environmental Responsibility (PEER), a public interest organization closely following the issue.

Delay of agency rules during the OIRA review process is not uncommon — nine percent of rules currently under review have exceeded OIRA's time limit. As of July 20, OIRA was reviewing 124 rules, according to RegInfo.gov. Of those 124 rules, OIRA has extended the review period of 13. Ten of those rules, including the whale protection rule, have exceeded the maximum 120-day review period. One additional rule has surpassed the initial 90-day window and has not officially had its review period extended. The most egregious case of delay is an EPA proposed rule on radiation exposure. The rule was submitted to OIRA in October 2005.

The exact nature of the OIRA review is also unclear because of a lack of transparency in the review process. RegInfo.gov, the federal government's regulatory review database, lists only dates of submission and identifies the results of OIRA's review in one of three ways: "consistent without change," "consistent with change," or "withdrawn" by the agency.

During the review period of the whale protection rule, OIRA has consulted with outside interests groups at least once. On March 28, officials from OIRA and NOAA met with representatives from the International Fund for Animal Welfare, a nonprofit organization dedicated to animal rights issues.

The World Shipping Council has also lobbied OIRA on the whale protection rule. In a May 3 letter to OIRA Administrator Susan Dudley, the World Shipping Council expressed opposition to the rule citing economic costs and questioning the validity of NOAA's research. The World Shipping Council represents some domestic but mostly foreign shippers.

PEER is concerned about the influence of industry during the review. New England PEER Director Kyla Bennett said in a statement, "Foreign shippers want no environmental restrictions on how they use and sometimes abuse American waters but our government is supposed to be protecting our national interests, which include our endangered wildlife." She added, "The Bush administration should listen to our own experts rather than corporate lobbyists representing largely foreign interests."

In another unusual development, OIRA has involved the White House Council of Economic Advisors (CEA) in reviewing the rule, according to PEER. NOAA has already conducted extensive economic analysis in order to determine the rule's impact on the shipping industry and small businesses. NOAA has concluded the biological benefits of the rule far exceed any economic impact levied against shipping interests.

It is rare for the OIRA administrator to seek consultation with the Council of Economic Advisors on regulations. Rick Melberth, Director of Federal Regulatory Policy for OMB Watch, called it "a case example of OIRA overemphasizing economic considerations and protecting special interests instead of public need."