Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule

Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat

Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate job-killing fisheries regulations called the “Omnibus Amendment.” CoA Institute filed suit in February to challenge the industry-killing rule, which requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” at their own cost.

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Family Fishermen Challenge Illegal, Industry-Killing At-Sea Monitoring Rule from Department of Commerce

Arlington, VA (Feb. 19, 2020) – Cause of Action Institute (“CoA Institute”) today filed a lawsuit on behalf of a group of New Jersey family fishermen to block a new regulation that would force them to pay for third-party “at-sea monitors.”  The industry-killing rule—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic and Atmospheric Administration and U.S. Department of Commerce—will require certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at their own cost. Learn More

CoA Institute Sends Letter to Secretary Ross Requesting Public Confirmation of Controversial Fishery Regulation

The importance of an open and transparent government is rooted in the federal government’s ability to choose winners and losers, create barriers to economic freedom, and limit personal liberties. Family-owned fishing firms in New England recently had their economic freedom put at-risk when it was revealed that the government had secretly approved a proposal to impose new, and statutorily unauthorized, costs on their fishing operations. That’s why Cause of Action Institute (CoA Institute) sent a letter to U.S. Department of Commerce Secretary Wilbur Ross yesterday, criticizing his office’s lack of transparency and inadequate analysis surrounding the controversial fishery management regulations.

In January, CoA Instituted published a previously unreported letter, which revealed that the National Oceanic and Atmospheric Administration (NOAA) and the U.S Department of Commerce (Commerce) approved the New England Industry-Funded Monitoring Omnibus Amendment (Omnibus Amendment), but without providing any reasoned responses to public comments.  The approval also came in the midst of a second public comment period for implementing regulations. The Omnibus Amendment is estimated to impose new costs of up to $810-per-day on certain herring fishermen.  These costs, which will be used to fund a third-party monitoring scheme, would have  devastating economic consequences—especially for small and family-owned fishing operations.

Commerce’s failure to address the valid and pressing concerns raised by several interested parties in the first round of public comments, including questions about the statutory authorization for industry-funded monitoring raised by CoA Institute, is particularly egregious.  CoA Institute has repeatedly argued that the government lacks statutory authority to force commercial fishermen on the East Coast to pay for at-sea monitoring. The Secretary of Commerce was responsible for reviewing the Omnibus Amendment for compliance with applicable laws as well as considering public comments. The Secretary appears to have failed to do so in this case.  Government officials also are expected to conduct rulemaking in a manner that promotes accountability and transparency.  This is meant to protect the openness of the regulatory process. That transparency was seriously lacking in this instance.

CoA Institute’s letter requests that Secretary Ross (1) publicly confirm his approval of the Omnibus Amendment (2) and publish responses to the issues raised during the initial comment period. CoA Institute also requests that Commerce disapprove the implementing regulations for the Omnibus Amendment, which are expected to be finalized later this spring.  We look forward to a response addressing these concerns.

A copy of the letter to Secretary Ross can be found here. Additional background on this issue can be found here, here, and here.

Government Officials Ignore Public Comment, Create New Financial Burden on Fisherman

In a letter acquired by Cause of Action Institute (CoA Institute), it appears that the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Department of Commerce have approved a controversial fishery management proposal while ignoring public comments critical of the plan. This approval also seems to have been issued before the close of a second public comment period for implementing regulations. The NOAA rulemaking is expected to seriously impact commercial fishing on the Eastern seaboard by applying costly new burdens on fishermen.

The Background

In September 2018, the New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), a component of NOAA, sought approval for a controversial set of regulatory measures known as the New England Industry-Funded Monitoring Omnibus Amendment. The Omnibus Amendment would create a new financial burden on fishermen by mandating that they pay as much as $810 per sea day for at-sea monitoring in the Atlantic herring fishery. It would also create a standardized process for introducing similar costly monitoring requirements to other New England fisheries.

CoA Institute argued in its initial public comment on the Omnibus Amendment that the burdensome monitoring would unfairly and unlawfully restrict economic opportunity in the fishery. Aside from the questionable legal authority to create this effective new tax on fishermen, the $810-per-sea-day cost has the potential to wipe out the narrow margins that small-scale fishermen rely on to survive.

Following the publication of the notice of availability for the Omnibus Amendment, but before any approval decision was made, the agency oddly proposed implementing regulations in November 2018. Again, CoA Institute filed a public comment in opposition to the regulations.

CoA Institute’s second comment reiterated the legal infirmities with the funding scheme and, among other things, highlighted fatal flaws in the rulemaking’s Environmental Assessment. For example, after NEFMC’s adoption of the Omnibus Amendment’s herring measures, herring quota was reduced by more than 50%. The Council and NMFS plan to lower the annual catch limit even further over the next three years. By some estimates, these new cuts could reduce herring revenue by up to 87%. Such a loss in profitability on top of the costs associated with industry-funded monitoring would cripple fishermen who rely on the industry. Yet the government has done nothing to address these concerns or dilemma.

The Letter

Now, CoA Institute has discovered a letter from Michael Pentony, the Regional Administrator for NMFS’s Greater Atlantic Regional Office, which suggests that the Commerce Department has already approved the Omnibus Amendment, despite the fact that nothing has been published in the Federal Register, posted to NMFS’s herring bulletin, or communicated to the general public.

This supposed “approval” of the Omnibus Amendment ostensibly occurred on or around December 18, 2018, nearly a week before the close of public comment on NMFS’s implementing regulations. Given the agency’s publication of a notice of availability, and its solicitation of public comments on the substance of the Omnibus Amendment, it should also have published its approval decision for the fishery management plan in the Federal Register.

The fact that NMFS secretly approved the Omnibus Amendment, perhaps to avoid public outcry, only adds to concerns surrounding its decision to propose implementing regulations before publicly approving, in part or in full, the amendment’s various management measures, including industry-funded monitoring. Taken together, these facts strongly suggest the government prejudged the legality of the Omnibus Amendment and intended to force it through no matter the pushback. Indeed, it seems the government never planned to give adequate attention to the concerns raised by stakeholders, including CoA Institute. Those concerns certainly went unaddressed in the newly discovered letter.

The Questions

Administrator Pentony’s letter indicates that NMFS does not have adequate funding to administer the at-sea monitoring and portside sampling programs in the herring fishery for the current fishing year, which already started on January 1, 2019. Instead, NMFS would plan to implement the industry funding requirement in 2020. This estimated date of implementation, however, assumes that the Omnibus Amendment will not face challenge in the courts. CoA Institute has filed a Freedom of Information Act request for background information on the December 18, 2018 letter, and the possible reasoning for why the agency has yet to make any public announcements. We will provide additional details as they become available.

Ryan P. Mulvey is Counsel at Cause of Action Institute

CoA Institute Highlights Deficiencies in Proposed Rule to Shift Burdensome Costs of At-Sea Monitoring to Commercial Fishermen

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

Is NOAA deleting records? CoA Institute sues for important communications about fisheries regulation

In passing the Freedom of Information Act (“FOIA”) and the Federal Records Act, Congress intended for internal agency communications to be logged and, in many cases, retrievable under the FOIA.  Attempts by agencies and officials to evade such transparency violate the core principles of government accountability and recently resulted in a highly publicized scandal that enveloped Secretary Hillary Clinton’s campaign for president.

So in the wake of the Clinton e-mail scandal, have agencies learned their lesson?  For the National Oceanic and Atmospheric Administration (“NOAA”), this doesn’t appear to be the case.  Cause of Action Institute (“CoA Institute”) recently submitted multiple FOIA requests for NOAA’s records retention policies and internal communications from the time period surrounding the recent New England Fishery Management Council (“NEFMC”) meetings.  In addition to asking for emails, CoA Institute also requested Google Chat/Google Hangout (“GChat”) records.

Anyone who regularly uses G-Mail is familiar with GChat and its “off the record” feature, which disables message logging.  Unfortunately, a 2012 NOAA memo indicates that NOAA enabled the “off the record” feature agency-wide.  There’s no indication that NOAA is using any other method to log these communications.  This likely violates the Federal Records Act and frustrates public efforts to file FOIA requests seeking to better understand government decision-making.

CoA Institute is interested in the communications between NOAA officials during the recent NEFMC meetings.  These meetings were important because, at their conclusion, the NEFMC voted to adopt an amendment that would extend coverage of “at-sea monitors” on the fishing industry.  This could have devastating effects on the ability of small-boat fishermen to continue to pursue their livelihoods.  This amendment now goes to the Secretary of Commerce for his approval, and it is critical that the public understand the thought process used by NOAA to get this result, which would be revealed by reading its internal communications.

NOAA’s response to CoA Institute’s FOIA request was unusual.  First, it declared the request was non-billable, meaning CoA Institute would not need to pay fees for compiling the information.  This is appropriate given both the public interest in these records and CoA Institute’s status as a news media requester organization.  NOAA later rescinded its non-billable determination and demanded CoA Institute submit more information relevant to the fee waiver request.  CoA Institute did so, but, to date, NOAA has not responded.  In our letter, we express concern with how NOAA is handling this request:

If NOAA is concerned that records responsive to this request will cast the agency in an unflattering light or reveal that its recordkeeping practices are in violation of law, it cannot weaponize fee waivers to prevent disclosure. To do so would not only be a violation of the law, but it would strike a grave blow to transparency.

With today’s lawsuit, NOAA has no choice but to produce the requested records.  If the agency is unable to locate any GChat records because they were improperly deleted, NOAA must publicly admit this, immediately take steps to recover the records, and change its policies for future record retention to comply with the law.

Eric Bolinder is Counsel at Cause of Action Institute.

CoAI Sues NOAA for G-Chat Records Surrounding Controversial Amendment to Expand Industry-Funded At-Sea Monitoring

Unlawful agency directive appears to greenlight concealed communications on internal messaging platform

Washington D.C. –Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the National Oceanic and Atmospheric Administration (“NOAA”) for Google Chat or Hangouts communications from the New England Fishery Management Council’s (“NEFMC”) April 2017 meeting. The suit also seeks internal guidance on retention of Google Chat records on the agency’s internal messaging platform. NOAA failed to respond to two Freedom of Information Act (“FOIA”) requests submitted in May for these records.

The records sought by CoA Institute include guidance from NOAA’s Office of General Counsel for the retention of instant messages through the “Google Chat” or “Google Hangouts” feature of NOAA’s internal Unified Messaging System. According to a March 2012 NOAA handbook, employees were instructed that these messages “will be considered ‘off the record’ and will not be recorded in anyway.”

CoA Institute Vice President Julie Smith: “NOAA appears to have created an internal messaging platform to hide records from public disclosure. Any directive to make certain communications be considered ‘off-the-record’ clearly violates transparency laws.  Americans have a right to know how decisions are made that could jeopardize their livelihoods.”

The lawsuit also seeks all communications sent or received by employees of NOAA’s NEFMC who attended the April 18–20, 2017 meeting. During this meeting, the NEFMC approved a controversial amendment to expand the use of industry-funded at-sea monitors to the herring fishery and to prepare for its further expansion through all regional fisheries.

CoA Institute submitted a regulatory comment opposing the so-called Industry-Funded Monitoring Omnibus Amendment due to negative economic impacts that threaten the livelihoods of countless small-business fishermen. The cost for a monitor under the amendment would cost fishermen more than $700 per day at sea.  That would exceed the revenue a fisherman typically lands from his daily catch. The Secretary of Commerce has since commenced a review of the rule for compliance with federal law.

The full complaint is available here.
The two earlier FOIA requests are available here and here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org