… An article on ESPN.com about government regulation, encouraging the public to submit comments. Anglers are worried that the Administration is going to limit their ability to fish recreationally (although a progressive media watchdog debunks this characterization). There are a number of interesting administrative law issues here.
First, what’s the legal status of the Interagency Ocean Policy Task Force and the recommendations they make? Will the recommendations becoming binding?
Second, why doesn’t NOAA (the National Oceanic and Atmospheric Administration) simply propose regulations and start the rulemaking process?
It seems that the Interagency’s recommendations would be just that–not binding. However, because the task force consists of agency heads and also has the backing of the President, I can’t see the NOAA rejecting the recommendations. Maybe that is one perk of having everyone down the line politically supportive of the President. It would be interesting if President Obama ordered the agency to accept the recommendations by Executive Order. Politically, it seems the pressure would come behind closed doors rather than in that form. If my understanding is correct, the Interim Report is not the final report of the Interagenc task force. My guess would be the NOAA is waiting to hear more public comments and allow the Interagency to hash out the recreational aspect in its recommendations before getting stuck with a very controversial, political topic in the rulemaking process. Although it seems that the rulemaking process attempts to be somewhat flexible by hearing community debate on proposed regulations, the clock still begins ticking. I wonder if the NOAA is trying to have the Task Force sort some of the controversy out before it feels that pressure.
Regarding the first issue, I agree with Nicole. The IOPTF does not appear to be an agency and is not in a position to establish rules. Thus, it recommendations will not be binding. Regarding the second issue, I suspect that one of the primary reasons that the NOAA has not started the rulemaking process is because the task force has not issued its final report. If the NOAA issued its proposed regulations, without considering the final report, then relied on the final report in their final rules, they could be required to re-open the public comment period. If the final report is simply more data that supports the general proposition, then they would not be required to re-open the public comment. However, if it will be central to the agency’s final rule, then the agency would be required to re-open the public comment period. It would be unfair to not allow the public to comment on it.
I agree with Nicole and Jody in that the recommendations of the Interagency Ocean Policy Task Force are not binding yet. However, this task force was recently created for the sole purpose of making recommendations to shape national policy on these issues (http://www.whitehouse.gov/administration/eop/ceq/initiatives/oceans). Therefore, I think these recommendations provide a pretty accurate preview of any future binding rules.
As to the second issue, I think the NOAA did not start the process itself because of any number of issues – including lack of staff and budget – to tackle such a big policy project right away. But because President Obama wanted this addressed, he created the task force to tackle this sooner rather than later (http://www.whitehouse.gov/sites/default/files/page/files/2009ocean_mem_rel.pdf). That way the agency does not have to do all the heavy lifting upfront.
I don’t have a lot to add to what Jody and Nicole said because I agree with them. I am sure they are waiting for the final report, not just so that they get the science right (which is obviously important) but also so they get the politics right. Reading the articles posted on the Media Matters website show you what a hot button issue this could be. There is a vocal demographic who are very interested in protecting hunting and fishing as part of their culture. Not to mention if there are jobs at stake, as the ESPN article suggested, that will cause public outcry also.
In our country’s heated political climate, conservatives are looking for the Obama administration to do anything that they can turn into a talking point. Agencies should take public comments seriously, but due to the political agendas of certain media elements, the public comments may be based on false or misleading information, rendering them useless (on a practical level, if not on a public relations level).
It doesn’t seem to me that the IOPTF decision would be binding, but seen more as influential. I believe there are many reasons why the NOAA has not started the rule-making process, but the main one that I would think halts their progress is that they need more input and have left the notice and comment period open for suggestions. Once they reach a decision after analyzing the pros and cons, then they will be able to administer an appropriate rule, instead of promulgating a rule and having to go back and forth with amendments and issues because it is prematurely decided.
On the first issue, I agree with those that posted before me: The IOPTF is not an agency; any guidance documents that they produce will not carry the force of law, as they are not based upon any delegated authority to issue binding rules.
The second issue, use of the IOPTF to initiate the investigation and debate, rather than simply starting the rulemaking process, is a little more complex. Certainly for the reasons already mentioned – funding, complex scientific issues, and political ramifications – but I think there are deeper considerations controlling the issue. Brandy scratched the surface in her comment, remarking on the relationships of the two most visible groups with “opposing” interests, environmentalists and recreational anglers. In truth, the interaction between these two groups goes far deeper than the public-at-large is aware, and it’s all about funding. The various licenses, fees and taxes on hunting and fishing fund more than 90 percent of the budgets of state fish and wildlife agencies. Nationwide, it is estimated that hunters and anglers provide 70 percent of all funds spent on wildlife and natural resource management. (Funding includes the 10% excise tax imposed on all hunting and angling equipment, the only manufacturers of outdoor recreational to be subjected to such a tax.) Those figures do not include contributions from non-profit entities, representing both “sportsmen” and environmentalists. That financial interdependence, however, does not escape politicians, agency officers, and leaders of the interested entities. (For a little look into the extent of cooperation between these “opposing” entities, see http://www.refugenet.org/CARE/CareHome.html. For the truly bizarre, click the “Resources” link to see the group, co-founded by the NRA, thanking Sen. Feinstein.) Any rulemaking process initiated as a result of the IOPTF/NOAA effort will have to consider interests far beyond than the political leanings of your average angler or environmental activist. While the ESPN article referenced by Prof. Cortez has (thankfully) been outed as nothing more than a biased opinion piece (see new link in the original article), the massive role that hunters and anglers play in the conservation of the environment should be of huge concern to all of the decisionmakers involved. (Oh, and for the record, I neither fish nor hunt.)