NEW EXECUTIVE ORDER TO IMPACT FISHERIES MANAGEMENT

On April 17, the White House issued a new executive order, with the hope of “Restoring American Seafood Competitiveness.”  It will take some time to determine how close that executive order will come to achieving its goal.  But whether or not it is ever deemed successful, the new executive order will undoubtedly impact and almost certainly impair the federal fisheries management process.

Although substantially shorter, the new executive order is, in substance, similar to Executive Order 13921, which was titled “Promoting American Seafood Competitiveness and Economic Growth,” which was issued by President Donald Trump on May 7, 2020.  Both executive orders (and it’s probably important to note that Executive Order 13921 remains in effect) seek to minimize the regulation of commercial fisheries.  Both have the laudable goal of reducing IUU (illegal, unreported, and unregulated) fishing.  Both seek in increase the safety of imported seafood, increase the United States’ seafood exports, and support aquaculture, although the latter issue was more completely addressed in EO 13921.

But there is one very big difference between the two executive orders, and that difference is timing.

Trump’s loss in the 2020 election meant that his administration would have to cede power only eight months after EO 13921 was issued.  Thus, despite the ambitious policy initiatives outlined in that order, there was little time to put them in place.

Some directives contained in the earlier executive order couldn’t even be carried out before Trump was voted out of office.  For example, one section of the earlier order read

“Within 1 year of the date of this order, the Secretary of Commerce shall submit to the Director of the Office of Management and Budget, the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, and the Chair of the Council of Environmental Quality a report evaluating the recommendations [to reduce the number of regulations affecting the commercial fishing industry] and describing any actions taken to implement those recommendations.  The report shall be updated annually for the following 2 years.”

Before the specified 1-year period had run, Trump was no longer in office, so his administration had no opportunity to create or review the specified report, and the two years of required updates quickly became irrelevant.  Existing fisheries regulations remained in place, other than for routine adjustments.

This time, things are different. 

The new executive order was issued when the current administration has about 3 ¾ years yet to run, which provides more than enough time for its provisions to be implemented.  When a provision reads,

“The Secretary of Commerce, in consultation with the Secretary of Health and Human Services and with input from the United States fishing industry, shall immediately consider suspending, revising, or rescinding regulations that overly burden America’s commercial fishing, aquaculture, and fish processing industries at the fishery-specific level.  Within 30 days of the date of this order, the Secretary of Commerce shall identify the most heavily overregulated fisheries requiring action and take appropriate action to reduce the regulatory burden on them, in cooperation with the Regional Fishery Management Councils, interagency partners, and through public-private partnerships, as appropriate…”

we can reasonably expect to see some regulations put on the chopping block fairly quickly.

Of course, picking which regulations are going to get the axe is going to be an interesting process.  The most recent executive order targets “regulations that overly burden America’s commercial fishing,” those creating “the most heavily overregulated fisheries,” “unnecessary regulatory burdens,” and “outdated and unnecessarily burdensome regulations,” while seeking “additional streamlining of fishery regulations.”

But what criteria will be used to determine that a regulation is “overly” or “unnecessarily” burdensome?  Or to determine that a fishery has become “heavily overregulated?”  

Such questions become particularly important when the recent executive order itself concedes that, in recommending the “suspending, revising, or rescinding” of supposedly unnecessary fisheries regulations,

“Recommended actions shall be consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the Endangered Species Act (16 U.S.C. 1531 et seq.), the Marine Mammals Protection Act (16 U.S.C. 1361 et seq.) and other applicable laws.”

Given that existing regulations were only put in place after a full rulemaking process, which involved publishing the proposed rules, followed by a public comment period, revisions made in consideration of such public comment, and a final review by agency counsel to determine that the regulations themselves were consistent with applicable law, it wouldn’t seem that may current rules could be abolished or amended while remaining within the executive order’s (and well-established law’s) “consistent with the requirements” standard.

Magnuson-Stevens’ requirements for fishery management plans, plan amendments, and related actions are, in the end, very clear.  Among other things, the statute includes National Standard 1, which reads,

“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.”

“Optimum,” with respect to yield, is defined as

“the amount of fish which will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor; and in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.”

Thus, given that current regulations must, by law, already be designed to achieve optimum yield, which in most cases will be something close to maximum sustainable yield, it’s difficult to believe that many existing regulations will be ripe for “suspending, revising, or rescinding,” if the administration truly wishes to increase commercial landings only by taking action “consistent with the requirements of…Magnuson-Stevens.” 

However, Magnuson-Stevens also provides that

“The Secretary [of Commerce] shall also establish advisory guidelines (which shall not have the force and effect of law), based on the national standards [for fishery conservation and management], to assist in the development of fishery management plans.”

Revising such guidelines could provide the administration with a way to increase fish landings without running afoul of Magnuson-Stevens, albeit at additional risk to managed fish stocks. To look at just one example, the guidelines issued to help regional fishery management councils meet the objectives of National Standard 1 include guidance on

“specifying maximum sustainable yield (MSY) and [optimum yield]; specifying status determination criteria…so that overfishing and overfished determinations can be made for stocks and stock complexes in [a fishery management plan]; preventing overfishing and achieving [optimum yield], incorporation of scientific and management uncertainty in control rules, and adaptive management using annual catch limits…and measures to ensure accountability…; and rebuilding stocks and stock complexes.  [formatting omitted]”

The guidelines direct that

“When specifying limits and accountability measures, Councils must take an approach that considers uncertainty in scientific information and management control of the fishery,”

and provide advice for doing so.  However, there is no explicit language in Magnuson-Stevens that requires regional fishery management councils to consider uncertainty (although there is language requiring such councils not to set catch levels above the levels recommended by their scientific and statistical committees, which typically consider uncertainty when establishing the acceptable biological catch).  

Thus, the National Marine Fisheries Service could, if it chose, rewrite the guidelines to eliminate references to uncertainty of any kind.  If that was done, higher catch limits could be set, although ignoring uncertainty would make it more likely that such higher limits could unintentionally lead to overfishing.

The risk of such higher limits causing harm to fish stocks is increased, since any quota increases would be adopted at a time when other administration actions promise to increase the amount of uncertainty that fisheries managers will have to contend with.  Current administration proposals would reduce NMFS funding by roughly 30 percent, and lead to cuts in the agency’s scientific staff.  

That will mean that stock assessments, critical to determining the status of fish stocks, wouls be prepared less often, making changes in stock status harder to detect, and making it more likely that a stock will become overfished, or become subject to overfishing, before managers have enough information to prevent such conditions from developing.  Under such conditions, eliminating or even reducing the uncertainty buffers built into catch limits could cause long-term harm to fish stocks.

Yet, pursuant to the latest executive order, such a thing could easily occur.

And while any fish stock could be affected, the executive order instructs agency management to focus on “the most heavily overregulated fisheries.”  It’s darkly entertaining to speculate about just what those fisheries might be, as it’s difficult to find a commercial fishermen who, to a greater or lesser degree, doesn’t feel that their own fishery is overregulated.

New England groundfishermen have historically fought back hard against any threat of regulation; despite the dire condition of cod stocks, they’re still putting up a struggle in their efforts to catch the last one.  Many New England fishermen were also staunch Trump supporters ahead of the 2024 election, so it’s not impossible that they might earn the coveted “most heavily overregulated” designation.

The pelagic longline fleet, much of which is also based in New England, could be another contender for the title.  For many years, it has had to take steps to reduce its once-notorious bycatch of various sharks, sea turtles, marine mammals, billfish, and other creatures, all of which supposedly reduced its landings of target species while increasing fleet expenses.  Regulatory changes, which impact not only the fishermen and their target fish species, but also marine mammals and other endangered species, could put bycatch concerns on the back burner and allow longliners to fish without worries again.

Other commercial fisheries will almost certainly seek to qualify, and many could  probably make as good a case as the New England groundfishermen or the longliners might.  There is little doubt that the effort to be named “most heavily overregulated” will be intense.

Yet, when discussing the executive order, it’s important to note that only commercial, and not recreational, fisheries are considered. 

Were recreational fisheries omitted through oversight?  Will another executive order addressing only recreational fisheries be forthcoming?  Or is it just possible that commercial landings might be increased by reducing recreational harvest?

It’s more plausible than it might at first appear.

After all, fisheries management is, in the end, a zero-sum game.  In most federally-managed fisheries, landings are split between the commercial and recreational sectors; increasing one sector’s share of a fishery’s landings inevitably means reducing the share of the other. 

Thus, with a species’ biology strictly limiting the overall number of fish that might be sustainably landed, the simplest way to increase commercial fishermen's landings is to increase the amount of fish allocated to the commercial fishery, while making a corresponding reduction to the recreational allocation.  While such a change wouldn’t be too popular with the angling public, and might even cause a net reduction in the economic benefits provided by a particular fishery, it would certainly be in accord with the plain language of the executive order, which doesn’t mention recreational fisheries at all.

And it might be the only way to meaningfully increase commercial landings that doesn’t result in overfishing, or cause a stock to become overfished.  In fact, because commercial fishermen must typically adhere to hard-poundage quotas, while anglers are only expected to stay somewhat close to largely aspirational recreational harvest limits—one management plan created by the Mid-AtlanticFishery Management Council even allows anglers to routinely exceed such limits without meaningful consequences—a reallocation of fish from the recreational to the commercial sector could conceivably lead to a substantial increase in commercial landings while, by placing greater restrictions on the recreational fishery, causing overall landings to modestly decline.

It's extremely doubtful that the executive order was intended to cause such a result; nevertheless, such result would certainly be in accord with that order’s explicit goals.

Certainly, last week’s executive order could have consequences beyond those contemplated herein.  The direction to open national marine monuments to commercial fishing could support an essay in itself.  But whatever the consequences of the executive order may be, once they begin to accrue, we can expect them to endure, unlike the administration that spawned them, for far more than just four years.