Is Public Commenting on Future Proposed Rules by the National Marine Fisheries Service at Risk?

Over time, fishing has evolved from a sustenance-based activity to a lucrative commercial industry.[1] This shift from sustenance to commercial fishing, however, is not without its consequences. The high economic value of certain marine life has encouraged overfishing and, consequently, decimation of certain fish populations.[2] As a species becomes increasingly threatened and harder to obtain, the price of these species and the economic incentive to continue exploiting them dramatically increases.[3] In addition, commercial fishing leads to extensive bycatch, where unwanted marine life (such as dolphins and sea turtles) are harmed or killed by fishing gear and dumped back into the water.[4] Another consequence is the vast destruction of marine habitat that negatively impacts the entire ecosystem’s overall ability to thrive, and sometimes eliminates the ecosystem entirely.[5]

The Magnuson-Stevens Fishery Conservation and Management Act (MSA) is Congress’s attempt to balance commercial fishing with these environmental concerns. Driven by utilitarianism,[6] the purpose of the MSA is to conserve and manage fishery resources to maximize their use.[7] The National Marine Fisheries Service (NMFS) is the agency responsible for carrying out the MSA.[8] Under the current MSA, information submitted to NMFS that is otherwise confidential may be released in “aggregate or summary form” as long as the information does not “directly or indirectly disclose the identity or business of any [submitter].”[9]

The provision, “identity or business of any person,” has historically been interpreted by NMFS as information that “would identify [submitters] personally and that would identify their businesses.”[10] The NMFS has recently issued a proposed rule, however, to define “identity or business of any person” to include financial and operational information, including “fishing locations, time of fishing, type and quantity of gear used, catch by species in numbers or weight thereof, number of hauls, number of employees, estimated processing capacity of, and the actual processing capacity utilized, by U.S. fish processors.”[11]

If implemented, this proposed definition would severely limit public participation for future rulemakings, which is blatantly contrary to the notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA). Before implementing a proposed rule under the APA, the federal agencies are required to publish the proposed rule to “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.”[12] In United States v. Nova Scotia Food Products, the Second Circuit has held that “[w]hen the basis for a proposed rule is a scientific decision, the scientific material [supporting] the rule should be exposed to the view of interested parties for their comment. . . . To suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether.”[13] The Ninth Circuit more specifically held that “Congress clearly intended to give those members of the public interested or affected by fishery management plans and regulations a meaningful voice in shaping those plans and regulations,” which occurs “only if the public is able to make intelligent, informed, meaningful comments.”[14] By limiting the type of scientific information made available to the public, such as the type of gear used and the species caught,[15] the public is unable to meaningfully comment on future proposed rules that are based on this type of scientific data, thus violating the APA.[16]

Failure by an agency to ensure informed public commenting is also a violation of public policy, as commenting is one of the primary ways in which the public acts as a check on agency actions.[17] If the rationale behind future rules proposed by NMFS is unknown, the public is unable to certify that the agency and fisheries managers are acting responsibility and in conformity with the MSA. Thus, as a violation of public policy as well as the APA, it is necessary that NMFS either substantially modify or completely withdraw this proposed rule.

 

— Sharlene Morris, Associate 


[1] See Commercial Fishing, Encyclopedia Britannica (2012), available at http://www.britannica.com.

[2] Overfishing: Plenty of Fish in the Sea? Not Always, National Geographic, http://ocean.nationalgeographic.com/ocean/critical-issues-overfishing/

[3] Richard J. Hall et al., Endangering the Endangered: The Effects of Perceived Rarity on Species Exploitation, 1 Conservation Letters 75, 75-76 (2008).

[4] What is Bycatch?, National Oceanic and Atmospheric Administration Fisheries Service, http://www.nmfs.noaa.gov/by_catch/bycatch_whatis.htm

[5] See Pacific Ocean Threats & Impacts: Habitat Destruction, Center for Ocean Solutions, http://www.centerforoceansolutions.org/?q=projects/pacific-ocean-initiative/major-threats-pacific-ocean/habitat-destruction (last accessed Oct. 10, 2012).

[6] Shaun M. Gehan, Maine’s Groundfishing Industry Survives Another Challenge – but Faces More, 20 Maine Bar J. 86, 88 (2005).

[7] See 16 U.S.C. § 1801 (2012).

[8] Magnuson-Stevens Fishery Conservation and Management Act Reauthorized, National Oceanic and Atmospheric Administration, http://www.nmfs.noaa.gov/msa2007/index.html

[9] 16 U.S.C. 1881a(b)(3) (2012).

[10] Proposed Rule, 77 Fed. Reg. 30486, 30491 (May 23, 2012).

[11] Id.

[12] 5 U.S.C. §553(c) (2012).

[13] United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2nd Cir. 1977) (emphasis added).

[14] Washington Trollers Ass’n v. Kreps, 645 F.2d 684, 686 (9th Cir. 1981).

[15] Proposed Rule, 77 Fed. Reg. 30486, 30491 (May 23, 2012).

[16] See 5 U.S.C. §553(c) (2012).

[17] Cary Coglianese et al., Transparency and Public Participation in the Rulemaking Process (July, 2008), available at http://www.hks.harvard.edu/hepg/Papers/transparencyReport.pdf.

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