Congressman Faleomavaega announced today that he has received the Senate Concurrent Resolution requesting congressional review of all issues presented by the NOAA’s proposal to add five sanctuary units to the Fagatele Bay National Marine Sanctuary (FBNMS).
The full text of Faleomavaega’s letter, sent to both the Speaker and President of the Fono with copies to Governor Togiola, Lt, Governor Faoa, Attorney General Fepualea’i, Senators and Representatives, is inserted below.
I am writing to inform you that I have received the Senate Concurrent Resolution (SCR 32-13) requesting congressional review of all issues presented by the National Oceanic and Atmospheric Administration’s (NOAA) proposal to revise the terms of designation for the Fagatele Bay National Marine Sanctuary (FBNMS). I appreciate the resolution raising some critically important issues of legal, practical, and political ramifications, and I have requested the Congressional Research Service (CRS) for their review. I am pleased nonetheless to comment below on the process for revising the terms of designation and the role of Congress.
As you are aware, NOAA’s proposal is going through the vetting process that Congress established under the National Marine Sanctuaries Act (NMSA) for the designation of any new Sanctuary (16 U.S.C. 1434 et seq.). While NOAA’s proposal is not a new designation but an expansion of an existing Sanctuary, the same procedures under NMSA apply. According to the Act, “the terms of designation may be modified only by the same procedures by which the original designation is made” (16 U.S.C. 1434 (a) (4)). As such, the same standards and procedures must also apply to NOAA’s proposal to revise terms of designation for the FBNMS.
In addition, NOAA’s proposal is also governed by the administrative rulemaking and procedures stipulated by Congress under the Administrative Procedures Act (APA) (5 U.S.C. 553). These procedures consist mainly of a public comment period to allow for inputs from the public and all stakeholders, especially those that are directly affected by the proposed regulations. It is the intent of Congress that NOAA would give these inputs much consideration in their final rule, and I am pleased that in several discussions with NOAA officials, they have assured my office that they would respond to all public comments submitted for the record.
These procedural requirements under the NMSA and APA exist to ensure that NOAA is held accountable, especially to those individuals and communities that are affected the most. Once NOAA has reviewed all the comments, it is required by law to “publish in the Federal Register notice of the designation together with final regulations”, and to also “submit such notice to the Congress” (16 U.S.C. 1434 (b) (1)).
Congress can ultimately nullify the final designation by introducing legislation with specific language to disapprove the new boundaries of the Sanctuary. In addition, it may also insert restrictive language in the annual Appropriations for the National Marine Sanctuaries program that would effectively disallow the use of funds to implement the proposed expansion at Fagatele Bay.
As you may be aware, Governor Togiola and I discussed this matter during his recent visit to Washington D.C. It is certainly my hope therefore that NOAA will continue the consultation process with everyone including members of the Fono. While it is a long and cumbersome process, continuing discussions and dialogue on the proposal is essential to ensure that there is a better understanding.