The New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), seeks to approve and implement a controversial set of regulatory amendments that would create a new industry-funding requirement for at-sea monitoring in the Atlantic herring fishery and, moreover, create a standardized process for introducing similar requirements in other New England fisheries. Under the so-called Omnibus Amendment, the fishing industry would be forced to bear the burdensome cost of allowing third-party monitors to ride their boats in line with the NEFMC’s supplemental monitoring goals. This would unfairly and unlawfully restrict economic opportunity in the fishing industry.
Cause of Action Institute (CoA Institute) filed a public comment last month requesting that NMFS disapprove the Omnibus Amendment and scrap the NEFMC’s plans to shift monitoring costs onto fishermen. CoA Institute explained that the Omnibus Amendment raised serious legal questions concerning the authority of the government to compel regulated parties to pay for discretionary agency programs that cannot be funded with congressional appropriations or other statutorily-authorized means.
At the December 2018 meeting of the NEFMC, I reiterated the lack of statutory authorization for the Council’s efforts to create an industry-funded at-sea monitoring regime for the Atlantic herring fishery. A similar monitoring program currently exists in the Northeast multispecies groundfish fishery; CoA Institute represented a group of sector fishermen in a lawsuit challenging that requirement, but the case was dismissed on procedural grounds.
It is a fundamental principle of administrative law that federal agencies only possess congressionally delegated powers and are limited in their operation by the funding provided by Congress. The NEFMC and NMFS’s efforts to coerce the fishing industry—including many small, family-owned businesses—to support monitoring programs that Congress has declined to fund sustain sets a dangerous precedent that lends itself to unaccountable and unlimited government.
Beyond the clear lack of statutory authorization, industry-funded monitoring in the herring fishery will also have devastating economic consequences. Monitors are expected to cost between $710–810 per sea day, which would cut heavily into the economic viability of many small-scale operations. And according to the government’s own proposed rule, at least some portion of the herring fleet would suffer up to a 20% reduction in annual “return-to-owner,” which is roughly analogous to profit.
Worse yet, the government’s cost estimates are based on data collected in 2014–2015, and the situation in the herring fishery has only worsened over the past few years. This past summer, for example, the NEFMC and NMFS cut herring quota for the remainder of 2018 by 52%, and they now propose to cut the quota for the next three years by upwards of 70%. Recent NMFS estimates suggest that these adjustments may cause an 80–87% reduction in herring revenue. Coupled with new industry-funded monitoring requirements, that could spell the end of small-scale fishing firms dependent on herring operations. That is an unacceptable result, and CoA Institute remains committed to fighting to prevent the effects of such burdensome overregulation.
Ryan P. Mulvey is Counsel at Cause of Action Institute