Fisheries Rule Cuts Public Participation

A Commerce Department proposed rule governing fisheries management threatens to curb public participation in environmental reviews and give greater control to the fishing industry. The public comment period for the proposed rule ended on Aug. 12. Of the almost 200,000 public comments received, opponents argued that the rule would result in less time for the public to comment on the environmental impacts of fishery management actions, fewer alternatives considered, fewer actions reviewed, greater control by managers with financial conflicts of interest, and an unwelcome precedent.

Proposed in May, the rule would define how managers of the nation's fisheries comply with the National Environmental Policy Act (NEPA), one of the country's bedrock environmental laws. NEPA requires federal agencies to examine the environmental effects of proposed actions and to inform the public of the environmental impacts considered during an agency's decision making process. An essential element in the NEPA process is the requirement to make available to the public environmental impact information, including the impacts of various alternative actions, and to give the public opportunity to participate in the decision making process.

The proposed rule is the result of congressional reauthorization of the primary law governing the management of fisheries, the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Congress instructed the Commerce Department, through its National Marine Fisheries Service (NMFS), to better align the environmental review procedures of the MSA with those of NEPA. Congress's intent was to streamline the environmental review process in the context of fishery management.

Instead, the Commerce Department proposed a new rule that would create additional procedures and new forms of documentation that, according to conservation advocates, would make the procedures more complex. The proposed rule would reduce public input and increase the number of actions that would receive no environmental review at all by expanding the scope of categorical exclusions — categories of actions that fishery managers would not need to review for environmental impacts.

In addition to the hundreds of thousands of public comments opposing the proposed rule, 80 members of Congress have also expressed their opposition, including a letter joined by 72 members of the House of Representatives. The letter states that the proposed rule fails to meet congressional intent made clear during the reauthorization of the MSA. Hundreds of scientists and environmental organizations have also signed on to oppose the rule.

Among the changes proposed by the rule is a reduction of the public comment period for environmental analyses, from 45 to 14 days, under certain circumstances. Some fishermen and others have expressed concern that two weeks is insufficient time to evaluate the sometimes hundreds of pages of complex information contained in new management actions and their environmental reviews, especially given that fishermen may often be at sea for longer than 14 days at a stretch.

The rule's opponents argue that too much power over environmental reviews would be placed in the hands of the fishing industry. The MSA, signed in 1976, established eight regional fishery management councils to recommend regulations to NMFS and to defend U.S. fisheries from foreign exploitation; it did not vest these councils with overseeing environmental and conservation issues. The councils are mostly composed of members of the fishing industry appointed in a heavily political process. The councils play the primary role in developing fishery management plans, which then must be approved or rejected by NMFS. More than 97 percent of the councils' recommended management actions are approved by NMFS.

The councils are exempt from the conflict-of-interest restrictions of the Federal Advisory Committee Act, and 60 percent of the appointed council members have a direct financial interest in the fisheries that they regulate, according to the reports Conflicted Councils and Taking Stock by the Pew Charitable Trusts. The same studies found that more than 80 percent of the appointed council members represent fishing interests, with few or no conservation groups represented. Moreover, the councils have been criticized frequently for mismanagement and failing to heed recommendations of their scientific advisory groups, leading to overfishing and bycatch problems. The new proposed rule draws heavily on recommendations from the councils.

Additionally, the proposed rule would restrict public comment to issues raised in previous rounds of public input. Fishery management councils could bring new proposals midway through the public comment process, and public scrutiny of the newly raised issues would be prohibited. The rule also gives the councils authority to decide the scope of the environmental analyses of measures and which new measures would even qualify for environmental review.

Understandably, several of the fishery management councils have come out in support of the new procedures, claiming they will reduce the amount of time needed to enact management decisions and reduce redundant paperwork. However, conservation groups have pointed out that the existing environmental reviews under NEPA do not add time to the decision making process prescribed by the MSA. Other fishing groups have sided with the opponents of the proposed rule, pointing out that the new procedures would curtail public involvement by smaller fishing interests not represented among the politically appointed council memberships.

Conservation groups have also raised the prospect that the new procedures designed for the Department of Commerce would set a precedent for other federal agencies to design unique procedures for their own NEPA compliance, perhaps further reducing public participation and the scope of the alternatives considered during environmental reviews. The NEPA environmental review procedures are often regarded by federal agencies as burdensome, and the prospect of having to do fewer analyses may tempt agencies to craft new procedures.

Opponents of the rule also point to more than thirty years of case law and administrative experience with NEPA that have informed the existing procedures. The departure from this history embodied in the proposed procedures could increase the likelihood of legal actions should the rule be finalized and implemented in its current form.

Recent studies have shown that the world's oceans are in poor health, suffering from the combined problems of climate change, overfishing, habitat loss, and pollution. The most recent NMFS data show that 20 percent of managed fish stocks are overfished or subject to overfishing, but this figure only represents the small portion of stocks for which the agency has enough data to make a determination. According to a report by the Pew Environment Group, globally, one quarter of fish stocks are overexploited, depleted, or recovering from depletion because of excess fishing. In addition, half of the world's fish stocks are on the verge of being overfished. Fish stocks in U.S. waters have been declining for at least 30 years.

Actions that impact these stocks and their habitats have been dominated by the industries that exploit them. Greater public participation and more public information and analyses of environmental impacts — which NEPA is designed to require — could help improve the situation. As the critics have argued, the proposed fisheries rule moves in the opposite direction.

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