The White House has rejected an effort by the National Oceanic and Atmospheric Administration (NOAA) to protect krill, an important marine species abundant in the Pacific Ocean. NOAA's proposed rule is a precautionary measure aimed at protecting krill in the future but was rejected by White House officials for failing to identify a need for the regulation.

On Feb. 26, NOAA announced its intent to amend its Fisheries Management Plan (FMP) for waters in the Pacific Ocean off the west coast to include krill. The amendment, which would take the form of a regulation, would prohibit the fishing of krill up to 200 nautical miles off the coast of California, Oregon and Washington.

Krill are small shrimp-like crustaceans abundant in the Pacific Ocean. Krill are a vital link in the marine food chain and serve as a food source for a variety of marine animals including whales, salmon and some sea birds.

NOAA chose to pursue the krill protection rulemaking at the behest of its Pacific Fishery Management Council (Council). The Council is one of several councils that make recommendations on fishery management for various bodies of water adjacent to the U.S. The Council is comprised of representatives from federal and state government agencies, commercial and recreational fisherman groups, and fishery-dependent businesses.

At its March 2006 quarterly meeting, the Council adopted the amendment to the FMP. NOAA generally follows the advice of the fishery management councils, which regularly recommend amendments to FMPs in order to protect marine ecosystems.

The Council's recommendation and NOAA's ensuing proposed rule were an attempt at a proactive step toward preserving an ecologically and economically valuable marine ecosystem. According to NOAA, krill is not currently fished in U.S. waters off the west coast. However, because of krill's importance in the food chain, "The Council has agreed it is critical to take preventive action at this time to ensure that a krill fishery will not develop that could potentially harm krill stocks, and in turn harm other fish and non-fish stocks."

However, the White House Office of Information and Regulatory Affairs (OIRA) took exception to NOAA's rationale. In a letter returning the rule to NOAA for reconsideration, OIRA Administrator Susan Dudley complained NOAA did not adequately identify the need for regulation since krill is "completely unexploited" and "there are no known plans for exploitation." Dudley also chided the agency for not adequately assessing alternatives to its proposal and for failing to include performance objectives.

The issue is representative of a larger tension between those believing government has a responsibility to intervene to prevent problems and those believing government's role should be reactive or even nonexistent. The Council recognizes "the proposed action would be preemptive and precautionary" but also that the importance of the species warrants government action at an early stage. On the other side, OIRA's rejection is a strong statement of how advocates of limited government view environmental protection: short of outright exploitation, the need for natural resource management does not exist.

OIRA's rejection of the krill rule is also consistent with the views of its administrator. Prior to joining OIRA, Dudley worked for the industry-funded Mercatus Center, an anti-regulatory think tank at George Mason University. Dudley is ideologically opposed to government intervention. Dudley's nomination to head OIRA faced opposition from public interest groups including OMB Watch, Public Citizen, the Natural Resources Defense Council, and the United Auto Workers, which forced Bush to resort to installing her by recess appointment in April.

Under Executive Order 12866, Regulatory Planning and Review, OIRA reviews agency proposed and final regulations before they are released to the public. Usually, OIRA reviews "economically significant" rules (those expected to have an economic impact of $100 million or more) and "other significant" rules (those that interfere with the actions of other agencies, materially alter budgetary impacts, or raise novel legal or policy issues).

The krill rule does not meet any of those criteria. In fact, because krill is not currently fished in the U.S., NOAA believes no economic impact would result. It appears OIRA chose to review this rule for other reasons.

The krill protection rule is the first rule OIRA has rejected during Dudley's tenure. The last time OIRA returned a rule to an agency for reconsideration was December 2005. OIRA does not often resort to outright rejection of an agency rule. Generally, the White House works with agencies early in the development of a rule to ensure the president's priorities are met or during the OIRA review process to make changes. During the Bush administration, OIRA has returned 28 rules to agencies for reconsideration, many of which were Clinton-era proposals rejected by OIRA in the early days of the Bush administration. OIRA rejected nine rules from Sept. 30, 1993, when President Clinton signed E.O. 12866, to the end of the Clinton administration.

The rejection comes after a protracted OIRA review period. NOAA submitted the proposal to OIRA on May 29. Under E.O. 12866, 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. Since OIRA did not complete its review until Oct. 30, the office had exceeded its time limit by more than a month.

OIRA is also delaying the completion of another NOAA rule that would protect the North Atlantic right whale, a critically endangered species, by setting limits on ship speeds in certain areas of the Atlantic Ocean during certain seasons. NOAA submitted its draft of the final rule in February.