Executive Order Could Impact Coastal Fisheries, Habitats: Part I

Commercial fishing boats - NOAA photo

International Fisheries, International Trade, and Commercial Fishing Regulations

Read the second installment of this two-part series, which covers aquaculture.

On May 7, 2020, President Donald Trump issued an “Executive Order on Promoting American Seafood Competitiveness and Economic Growth” (Executive Order). Unlike many executive orders, which are relatively brief and limited in scope, the most recent Executive Order is expansive, and covers four very different seafood issues: reducing the regulatory burden on United States fishermen; combatting illegal, unreported, and unregulated (IUU) fishing; facilitating offshore aquaculture; and creating a global seafood trade strategy.

During his Senate confirmation hearing, Commerce Secretary Wilbur Ross said that “Given the enormity of our coastlines, given the enormity of our freshwater, I would like to try to figure out how we can become much more self-sufficient in fishing and perhaps even a net exporter.” He also stated, in his first port-confirmation address to department employees, that he was intent on “obtaining maximum sustainable yield for our fisheries.”

The Executive Order, which among other things seeks to “identify and remove unnecessary regulatory barriers restricting American fishermen and aquaculture producers,” and “facilitate aquaculture projects through regulatory transparency and long-term strategic planning,” is very much in accord with both of those comments. But a bigger question is whether the Executive Order is in accord with the need to maintain healthy fish stocks and a fully functional coastal ecosystem.

That is not an easy question to answer.

International fisheries

IUU fishing takes many forms which, collectively, many pose the largest single threat to international fisheries management programs. Thus, it is heartening that the President directed the Secretary of Commerce to promulgate regulations that will support the United Nations Food and Agriculture Organization’s (FAO) efforts to rein in fishing vessels that operate outside the rules. It is also good to see him instruct agency heads to prioritize training and technical assistance in “key geographic locations” in order to promote sustainable fisheries management, to “strengthen and enhance” law enforcement capabilities to combat IUU fishing, and to promote implementation of the FAO’s anti-IUU fishing measures.

The President’s decision to create an Interagency Seafood Trade Task Force, intended to further “fair and reciprocal trade in seafood products,” is more difficult to evaluate. There’s certainly nothing wrong with helping out U.S. fishermen by developing an international seafood trade strategy “that identifies opportunities to improve access to foreign markets…, resolves technical barriers to United States seafood exports, and otherwise supports fair market access for United States seafood products.”

But the worth of any international trade strategy cannot be separated from its implementation. If the planned seafood trade strategy is coupled with an effective diplomatic campaign that opens more foreign markets to United States seafood and helps United States fishermen compete on a level playing field, both domestic fishermen and their foreign customers should benefit. On the other hand, if diplomatic efforts fall short, the trade strategy could conceivably disrupt patterns of international trade, resulting in United States markets being closed to some seafood imports, some foreign markets being closed to United States exports, and the possible imposition of retaliatory tariffs that, in the end, hurt fishermen and consumers alike.

Only time will reveal what course the seafood trade strategy will take.

Increasing domestic fisheries landings; Magnuson-Stevens still applies

Section 4 of the Executive Order instructs each regional fishery management council (Council) to produce “a prioritized list of recommended actions to reduce burdens on domestic fishing and increase production within sustainable fisheries.” That instruction might have a significant impact on federal fisheries management. Or, it could have almost no impact at all.

The Executive Order explicitly acknowledges that any actions taken thereunder are subject to the provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens). Magnuson-Stevens requires that “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.” It also states that

The term ‘optimum’, with respect to the yield from a fishery, means 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 from such fishery. [internal numbering and formatting omitted]

It could thus be argued that, if the Councils are currently executing their responsibilities, and are already managing fisheries for their optimum yield, it will be difficult for them to increase landings much beyond their existing levels. Additional provisions of Magnuson-Stevens may make it difficult for such Councils to make other changes to federal fishery management programs.

For example, fishermen often complain that federal fisheries management measures are “overly precautionary” and lead to the “underfishing” of some fish stocks. Ever since the U.S. Supreme Court decided Natural Resources Defense Council v. Daley twenty years ago, federal fishery managers have been required to adopt management measures that have at least a 50 percent probability of preventing overfishing and timely rebuilding overfished stocks. Immediately after that decision was issued, in order to maintain harvests at the highest levels permitted by law, the Councils began to adopt management measures that were calculated to have a 50 percent—but no more than a 50 percent—probability of succeeding.

Those management measures often didn’t work out very well. Even the best fisheries data includes some level of scientific uncertainty, and there is also uncertainty about recreational and commercial catch levels, illegal landings, and how effective regulations might turn out to be. Because of such unknowns, which can’t be fully incorporated into managers’ calculations, regulations thought to have a bare 50 percent probability of success often end up falling short.

To address such uncertainty, the National Marine Fisheries Service (NMFS) issued fishery management guidelines which instruct the Councils that “When specifying limits and accountability measures, Councils must take an approach that considers uncertainty in scientific information and management controls of a fishery.” The guidelines also direct that “As [maximum sustainable yield] values are estimates or are based on proxies, they will have some level of uncertainty associated with them.

The degree of uncertainty in the estimates should be identified, when practicable, through the stock assessment process and peer review, and should be taken into account when specifying the [Acceptable Biological Catch] Control rule.” The guidelines then go on to define acceptable biological catch (ABC) as “a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of [Overfishing Limit], any other scientific uncertainty, and the Council’s risk policy.”

If those guidelines are followed, the acceptable biological catch will always be set at some point below maximum sustainable yield (MSY), in order to lessen the likelihood that uncertainty will lead to overfishing. It is that gap between the ABC and MSY, created to buffer the possible effects of uncertainty, that has led fishermen to assert that NMFS is setting “overly precautionary” regulations that burden domestic fishing and hamper Secretary Ross’ goal of “obtaining maximum sustainable yield for our fisheries.”

Yet the Councils would probably find it difficult to significantly reduce such buffers pursuant to the Executive Order, because Magnuson-Stevens directs that each Council shall “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process. [emphasis added]” Any Council’s effort to replace such recommended ABC, which includes a buffer to account for uncertainty, with an ABC that simply equals MSY, would stand in clear violation of that provision, and would probably be challenged in court.

Recreational vs. commercial fishing

Yet there are other ways that the Councils could try to eliminate burdens on domestic fishermen. One of those is to shift allocation from the recreational to the commercial sector. While Section 4 of the Executive Order itself makes no distinction between commercial and recreational “production,” and could arguably apply to both sectors, a May 7 news release issued by the National Oceanic and Atmospheric Administration explicitly states that one purpose of the Executive Order was “Regulatory reform to maximize commercial fishing. [emphasis added]”

Thus, some members of the recreational fishing community are expressing concern about the Executive Order. Mike Leonard, government affairs vice president for the American Sportfishing Association, said, “While federal law provides protections against overfishing, we’re still concerned that requiring fisheries managers to ‘increase production’ may come at the expense of conservation and recreational fishing. We would strongly object to any actions that would increase unsustainable commercial fishing practices or reduce recreational fishing access.”

Anglers might also worry that the Executive Order’s emphasis on “production” could have an adverse impact on efforts to manage some primarily recreational species for abundance, rather than for maximum landings, in order to support robust catch-and-release fisheries. That is currently an issue at the Mid-Atlantic Fishery Management Council, which is contemplating a new amendment to its Bluefish Fishery Management Plan. Such Council could easily decide, in light of the Executive Order, to abandon that effort, and instead reallocate unharvested recreational quota to the commercial sector.

But, once again, provisions of Magnuson-Stevens might dictate a different outcome. As noted above, optimum yield shall be calculated “particularly with respect to food production and recreational opportunities, [emphasis added]” giving neither food production nor recreation priority over the other. Another provision states that one purpose of Magnuson-Stevens is to “to promote domestic commercial and recreational fishing under sound conservation and management principles, including the promotion of catch and release programs in recreational fishing. [emphasis added]” Thus, the ability of the Councils to favor commercial over recreational fishing, in order to comply with the Executive Order, is far from clear.

One thing the Councils could not do on their own is reopen commercial fisheries for striped bass, red drum, sailfish and marlin in federal waters, where such commercial harvest is not currently allowed. In the case of striped bass and red drum, such fishing was prohibited by an executive order signed by President George W. Bush on October 20, 2007, and it would take a new executive order to undo such prohibition. The commercial harvest of sailfish and marlin was outlawed by the Billfish Conservation Act of 2012, which would have to be repealed by Congress before such fishing might resume.

Reducing ecosystem-related protections

In their efforts to comply with the Executive Order, Councils might also seek to eliminate restrictions on fishing gear types, restrictions on bycatch, closed areas and other habitat protections, and similar measures that seek to protect one or more fish stocks, but at the same time place regulatory burdens on the commercial fishing industry and result in decreased production.

Ted Venker, conservation director for the Coastal Conservation Association, observed, “There is the potential for NOAA Fisheries to interpret this order as encouraging increased use of commercial fishing gears such as longlines, gill nets and trawls, which would be a tremendous step backwards for marine conservation.” Such an interpretation could result in NMFS rejecting Amendment 8 to the Atlantic Herring Fishery Management Plan, adopted late last year by the New England Fishery Management Council, which would prohibit large mid-water trawlers from targeting herring in nearshore waters, in order to prevent localized depletion and provide sufficient forage for a host of predator species.

Council efforts to reduce regulatory burdens could also lead to the elimination of current bycatch restrictions, which shut down directed fisheries when the incidental catch of other species becomes too great. Such efforts could have a substantial adverse impact on already depleted stocks of shad and river herring, if rules which shut down the directed Atlantic mackerel fishery, and segments of the Atlantic herring fishery, when such caps are exceeded were abolished. They could also lead to the elimination of gear-restricted areas, such as those established in the Mid-Atlantic to prevent the incidental catch of juvenile scup in the small-mesh nets used by squid trawlers.

Councils could seek to reopen areas currently closed to some or all fishing activity. Such areas have been widely employed in New England to facilitate research, preserve fragile habitat, and protect spawning areas. They have also been used in other regions, including the South Atlantic and Gulf of Mexico, to provide protection for deep-water species of snapper and grouper, to prevent fishermen from targeting spawning aggregations of fish, and to conserve important fish habitat.

Yet those restrictions, too, are arguably protected by Magnuson-Stevens, which allows the Councils to “designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear,” “prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment for such vessels,” and “include management measures in [a fishery management] plan to conserve target and non-target species and habitats, considering the variety of ecological factors affecting fishery populations.”

Given that Congress specifically authorized the Councils to adopt such measures, it would be very difficult to successfully argue that the Executive Order now required the Councils to abandon them.

Magnuson-Stevens limits Council options

Magnuson-Stevens compels federal fishery managers to end overfishing, rebuild overfished stocks, and maintain fish stocks at levels that are sustainable in the long term, and provides such managers with the legal authority to protect non-target species of fish, marine food webs, and marine ecosystems from the adverse effects of fishing activities. The Executive Order cannot revoke such legal authority, and cannot compel the Councils to reverse any previous action that was authorized by Magnuson-Stevens. In complying with the Executive Order’s edict to remove regulatory barriers to increasing fish production, the Councils must stay within the bounds established by Congress.

Given that most U.S. fisheries are already being prosecuted at or near their maximum sustainable fishing rates, there is a very real possibility that the Executive Order will not materially impact domestic fisheries management. It is also likely that, if any Council seeks to significantly increase the production of any species by ignoring or reinterpreting one or more provisions of Magnuson-Stevens, litigation will ensue.

However, Magnuson-Stevens probably does not grant NMFS the authority to regulate offshore aquaculture, an activity that was extensively discussed in the Executive Order. How the Executive Order might affect offshore fish farms will be addressed in the second half of this post.

Top photo courtesy of NOAA.

About Charles Witek

Charles Witek is an attorney, salt water angler and award-winning blogger. Read his work at One Angler’s Voyage.

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