New England fishermen and conservationists fear one of President Trump’s executive orders will have disruptive effects on fisheries management, although it will not affect routine seasonal fisheries regulation, as some had initially feared.
The ambiguously worded Jan. 30 order requires that two regulations be effectively eliminated for each new one promulgated by most federal agencies. The order prompted a fiery letter three days later from two prominent Democratic congressmen pointing out it could have “devastating impacts on commercial and recreational fisheries and the businesses and communities they support.”
In the letter, U.S. Rep. Raul Grijalva of Arizona, the top Democrat on the House Committee on Natural Resources, and Jared Huffman of California, the ranking member of the subcommittee on oceans, likened the order to “managing our federal regulatory system as if it were a children’s game.”
“Effectively what it means is that nobody can do anything because agencies will have to stop doing major regulatory actions because you can’t comply with this order, which may be the point,” says a former top federal fisheries management official, Andrew Rosenberg, who is now director of the Center for Science and Democracy at the Union of Concerned Scientists.
Several fishing organizations raised concerns about the order, including the Maine Coast Fishermen’s Association, the Alaska Longline Fishermen’s Association, the Massachusetts Striped Bass Association and the Association of Northwest Steelheaders, with the focus on concerns that routine regulatory actions such as opening and closing seasons and amending quotas and rules on a particular species would fall afoul of the order.
“Our big concern is making sure we have certainty around our opening and closing of fishing seasons, especially with the scallop season coming up in less than a month and the groundfishery after that,” says Ben Martens, executive director of the Maine Coast Fishermen’s Association, which represents traditional Maine fishermen, most of them engaged in fishing scallops or so-called groundfish – cod, haddock, flounder, hake, pollock and other bottom-dwelling species. “It can become a little scary when fishermen don’t know what their next business year is going to look like.”
The uncertainty has been compounded because the federal fisheries management agency, the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service – also known as NOAA Fisheries – has been unable to provide official clarification. In a short written statement from its regional office in Gloucester, Massachusetts, the organization said only that it “is working with the Department of Commerce, Office of Management and Budget, and the new administration to determine how the executive orders could possibly affect regulatory actions.”
CONFLICTING OPINIONS ABOUT ORDER’S IMPACT
However, on Feb. 2 the acting head of OMB’s Office of Information and Regulatory Affairs issued an advisory memo that clarified that the president’s order applied only to “significant regulatory actions” as defined under a 1993 executive order issued by President Bill Clinton. The memo is posted at the White House’s website, suggesting it has presidential approval.
The good news for fishermen: The vast majority of federal fisheries regulations do not meet this standard, meaning routine closures and assessments should proceed as they always have.
However, NOAA Fisheries has several regulations currently under consideration that OMB does consider “significant regulatory actions” and therefore are expected to run afoul of Trump’s order, according to OMB’s official “reginfo” database. These include a proposed update to ensure consistent application of rules at federal marine sanctuaries and an effort to combat the spread of illegally caught or fraudulently identified seafood in U.S. markets.
In recent years, numerous fisheries regulations were also treated as “significant” actions by the OMB, including the 2013 overhaul of the framework for managing 16 commercial groundfish off New England and the mid-Atlantic states; a 2013 rule to better protect the endangered North Atlantic right whale from ship strikes; and a 2016 regulation that protected critical spawning habitat for Atlantic sturgeon in the Gulf of Maine and New York Bight.
Drew Minkiewicz, a Washington, D.C., lawyer representing larger Eastern Seaboard scallop fishermen, says fishermen need not be concerned about most regulations. “This executive order has zero impact on 99.9 percent of the fishing regulations going out, so people who are wondering if the fishing season will be delayed don’t need to,” he says. “It’s much ado about nothing.”
What has other experts concerned is that when a really big regulatory change is needed for a fishery, Trump’s executive order will render action effectively impossible.
“If cod, knock on wood, recovers in the Gulf of Maine and you want to expand fishing and put out a lot of cod regulations, the impact could well fall under this order and you would have to find two regulations for every cod regulation to remove,” says Peter Shelley, Maine-based vice president of the Conservation Law Foundation, which for decades has challenged regulators in court to protect the long-term health of fish stocks. “It would be completely unworkable in the fishing sector, because the order was written without the real world in mind.”
FROM REGULATORY PERSPECTIVE, ‘MAKES NO SENSE’
Rosenberg, NOAA’s deputy director for fisheries in the late 1990s, notes that big amendments to groundfish and scallop plans in New England were considered “significant regulatory actions” under the Clinton-era rule, and so would others going forward. For these sorts of large and important revisions to management – whether opening up a fishery or closing one down in an emergency – compliance with Trump’s new order would be impossible. “The whole thing makes no sense at all from a regulatory perspective,” he says.
“Let’s say you want to implement a regulation to protect a fish. Now you’d have to remove protections on two others, which makes no sense,” he says. “How would you decide which two? And how would you go through the full rulemaking to withdraw those rules, with public hearings and a reasoning that would stand up to a court challenge?” Add to that the need to develop new regulations with the fishing industry representatives who sit on regional fisheries management councils and the fact that the executive order compels agencies to develop new “cost estimates” of their existing and repealed rules, and you have a set of insurmountable requirements, he says.
The result, Rosenberg says, is that NOAA Fisheries and other regulatory agencies won’t be able to act at all, because they can’t comply with the new order. “Some people may say, ‘Good, we’ll have less regulation,’ but no. What it means is that you can’t respond to the public and make adjustments.”
It also means other agencies won’t be able to take action on issues that fishing communities care about, from pipelines and gravel mining to waste disposal and coastal development. “These all affect the fishing environment, but it will be impossible to move forward,” he adds. “The agencies will be hamstrung.”
Martens of the Maine Coast Fishermen’s Association says the uncertainty is bad news for fishermen.
“In the fishing business we need business plans and security and certainty, and right now I don’t know that anybody in NOAA has any good idea of what this means for the industry and the making of regulations,” he says. “Adding more uncertainty to the mix only complicates the problem.”
Colin Woodard can be contacted at 791-6317 or at: