Summer 2012

LEGISLATION

National Ocean Policy:

A New Bureaucracy That Could Compromise Regional Fisheries Management


By Stephanie Madsen    |    The most disappointing aspect of the Obama Administration’s relationship with the Pacific Northwest/Alaska commercial fishing industry is its rigid and inflexible approach in creating a National Ocean Policy (NOP). In July 2010, President Obama issued Executive Order 13547, formally establishing an ocean policy, creating new councils and committees throughout the federal government, and directing agencies to undertake a broad array of new oceans-related activities.

While the fishing and fish processing sectors could embrace many aspects of the NOP initiative, several aspects of the NOP are so unpalatable that we cannot support the policy going forward until these shortcomings are fixed. The Administration, however, has ignored concerns repeatedly expressed over the past three years by the industry, both in public comment at various stages of the NOP rollout and in Congressional testimony. We are left only to conclude that the outcomes that we fear – and that threaten jobs and opportunity – are exactly what the Administration intends.

The commercial fishing industry has registered the following three primary concerns with the President’s directive, and while we have been rebuffed to date, we still welcome the opportunity to work with the Administration to address our concerns.

A New Federal Bureaucracy Could Usurp Existing Regional Fishery Management Council Authorities
The Regional Planning Bodies established by executive fiat in the NOP are tasked with developing ocean zoning plans. The relevant federal agencies are directed to implement each provision of the plan through regulations, drawing on authorities contained in more than 100 existing oceans-related statutes. There is nothing in the NOP that precludes a regional zoning plan from restricting sport or commercial fishing, and the Secretary of Commerce is obligated under the Executive Order to implement provisions of such plans.

Proponents of the new policy argue disingenuously that NOP is simply a benign, collaborative planning process, but policies incorporated by reference in the Executive Order state clearly that ocean zoning measures represent a “new, comprehensive, integrated, regionally-based approach to planning and managing uses and activities.” The key phrase is “managing uses and activities.” Management means new regulations. The commercial fishing industry is no stranger to regulations, but this could well mean new regulations that are not developed through the stakeholder-driven regional fishery management council process. Instead, new regulations affecting our industry could spring from a new regional planning body composed, not of fisheries managers and stakeholders knowledgeable about the fisheries, but primarily from officials from myriad federal agencies without the requisite knowledge or experience.

Notwithstanding repeated requests by the commercial fishing industry for the Administration to clarify that regional planning bodies are not authorized to restrict fishing activity, the policies and procedures in the Executive order remain unchanged.

Federal Officials with No Expertise in Fisheries Management are Empowered to Create New Fisheries Regulations
The NOP Regional Planning Bodies are to be populated largely by federal officials from up to two-dozen agencies, very few of whom have expertise in fisheries management. To get around public meeting requirements in federal law that apply to federal entities that include private citizen participation, only a federal or state official or Tribal member from a regional fishery management council can serve on a Regional Planning Body. Neither a council’s executive director nor any member of the public appointed to serve on a fishery management council by the Secretary of Commerce is eligible to serve on the newly created Regional Planning Bodies. And if they could, what weight would one individual carry on a two-dozen-member body charged with managing all ocean uses in a region?

In Alaska and on the West Coast, the fishing industry has confidence in the regional fishery management process created under the Magnuson-Stevens Act. The regional fishery management councils are composed of state officials, as well as commercial, sport, tribal, and environmental stakeholders – all individuals required by law to be knowledgeable and experienced about the fisheries. NOAA Fisheries holds one voting seat on the councils as well. Unlike the NOP’s Regional Planning Bodies, stakeholders play a meaningful role in the decision making process. Fisheries management in our region is widely regarded as successful because an inclusive and transparent public process supports the precautionary, science-based approach.

The NOP opens the door for a Regional Planning Body with little expertise, operating in a process that denies stakeholders the voice they currently enjoy in the regional fishery management council process, to make decisions that could have far-reaching consequences for fishing communities.

Core Funding for NOAA Fisheries Science and Management Could Be Diverted to Fund a New Federal Bureaucracy Not Authorized by Congress
The Administration’s draft NOP Implementation Plan proposes 53 federal governmental actions and nearly 300 milestones, with 158 of those milestones to be completed in 2012 or 2013. Congress is cutting funding for most federal agencies and has not provided new funding for NOP implementation, so where is the money coming from to fund these new activities? Commercial fishing interests are concerned that money has been, and will be, diverted from under-funded core NOAA Fisheries science and management programs to pay for a new bureaucracy and for new activities not authorized by Congress.

Proponents are well aware of the tenuous authority of the Administration to implement the NOP, yet they move ahead without apparent concern. These same proponents, however, insisted previously that Congressional action to create a national ocean policy was necessary. NOP proponents supported bills introduced in the previous four Congresses that proposed a national ocean policy, as well as many of the councils and committees subsequently established through Executive Order. None of the bills introduced in successive Congresses passed. In fact, none passed either body of Congress.

Now, without Congressional authorization or dedicated appropriations, the Administration states that funding to implement the NOP, including ocean zoning activities, will come from “repurposing” existing resources. The commercial fishing industry does not support “repurposing” core NOAA Fisheries science and management programs to establish a new oceans bureaucracy that at the very least creates duplicative fisheries management authority. It is a hollow argument advanced to date by the Administration that repurposing funds creates efficiencies when, at least in the case of fisheries management, it creates confusing, overlapping jurisdictional lines and duplicates existing resource management processes.

In May, the House of Representatives voted to prohibit certain federal agencies, including NOAA, from spending taxpayer dollars on the NOP, in large part, because Congress has not authorized many of the activities contained in the NOP implementation plan. Hopefully, the Senate will act, as well. The Administration could show good faith by not moving forward with establishing ocean zoning bodies until either Congress acts to define their scope of authority or the Administration appropriately limits their mandate.

The Pacific Northwest and Alaska fishing industry are proud of our progressive and innovative approach to properly managing ocean resources. And we are proud of our collaborative working relationship with state and federal fishery managers. We do not welcome that relationship being put at risk by implementation of an NOP that is being rushed forward without regard for constituents’ concerns.

Stephanie Madsen is currently the Executive Director of the At-sea Processors Association. Stephanie has been involved in the Alaska seafood industry for more than 20 years, and served on the North Pacific Fishery Management Council for six years, four of those as Chair.