Trump took shot at fishery management councils in signing of Modern Fish Act
By Jason Huffman Jan. 7, 2019
Despite earlier resistance from commercial fishing and ocean conservation groups, little uproar was registered after US president Donald Trump signed the Modernizing Recreational Fisheries Management Act of 2018 (S. 1520), also known as “the Modern Fish Act”, last week. The parts of the bill most objected to were removed.
However, the president’s brief comments – in a statement released after his signing of the bill – are raising a few eyebrows as well as questions about what actions might be taken next at the National Oceanic and Atmospheric Administration (NOAA).Trump suggested his administration has concerns about both the increasing authority and makeup of the country’s eight fishery management councils (FMCs ).
“The power of these councils,” he said, “has steadily increased over time, raising constitutional concerns related to the manner of the appointment and removal of their members and of members of certain scientific and statistical committees that assist them.
“Keeping with past practice of the executive branch, my administration will treat the plans promulgated by the council as advisory only; the adoption of the plans will be subject to the discretion of the secretary of Commerce as part of the regulatory process described in section 304 of the Magnuson‑Stevens Act [MSA],” he said.
Passage of S. 1520 was a surprise
The US House of Representatives, on Dec. 19, passed the Modern Fish Act by a lopsided 350-11 vote, sending it to the president’s desk for a signature, which happened on Dec. 31, the last day of the 115th Congress. The bill, initially sponsored by Republican Mississippi senator Roger Wicker, had passed the Senate on Dec. 17 by unanimous consent.
The recreational fishing and boating lobby was quick to celebrate.
“The Modern Fish Act is the most significant update to America’s saltwater fishing regulations in more than 40 years and the recreational fishing community couldn’t be more excited,” said Johnny Morris, noted conservationist and founder of Bass Pro Shops, according to a report from boatingindustry.com.
“On behalf of America’s 11 million saltwater anglers, we’re grateful to speaker [Paul] Ryan, the 115th Congress and all the elected leaders who came together to support and enhance recreational fishing across America,” Morris said.
Supporters of the bill included also the American Sportfishing Association, Center for Sportfishing Policy, Coastal Conservation Association, Congressional Sportsmen’s Foundation, Guy Harvey Ocean Foundation, International Game Fish Association, National Marine Manufacturers Association, Recreational Fishing Alliance, The Billfish Foundation and Theodore Roosevelt Conservation Partnership.
But S. 1520’s last-minute advance was a surprise to many as it was earlier deemed dead on arrival due in part to strong opposition by both the commercial fishing industry and ocean conservation groups.
As reported by Undercurrent News, to get it to the finish line, the bill’s champions agreed to gut or significantly tweak provisions that would’ve required the FMCs in the Gulf of Mexico and South Atlantic to review catch allocations between commercial and recreational harvesters every five years and also changes that would’ve required the National Academy of Science to study the effects of limited access privilege programs (LAPP, or catch shares) and temporarily ban their establishment.
Critics of the original version of the bill had feared it would reduce stock rebuilding timelines and group some species together when determining annual catch limits, while eliminating the tools regulators could use to manage fisheries.
Source of contention remains unclear
What remains in S. 1520 are mostly the requirements for the federal government to conduct multiple studies, including one on how FMCs handle the reallocation reviews between recreational and commercial fishing.
The bill also adds language that clarifies that the FMCs “have the authority to use fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulations, such as extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities in such fishery or fishery component…”
So it’s not clear what additional authority the Trump administration is expressing concern about the FMCs gaining in his post-signature comments, several industry stakeholders tell Undercurrent.
MSA has long maintained the councils are advisory panels, giving the secretary of Commerce, the parent agency under which NOAA is situated, the power to approve, disapprove or partially approve policy decisions put forth by the eight councils.
Likewise, when it comes to the makeup of the council seats, state governors and the councils nominate prospective members but its ultimately the job of the Commerce secretary — the Trump administration — to approve them.
Each regional council is constituted differently, but in the case of the New England Fishery Management Council (NEFMC), for example, the panel is made up of 18 voting members and four non-voting members. That includes a representative from each of the five states involved in the region, multiple academics, and a handful of commercial fishing industry representatives. Two of the council members come from the recreational fishing industry.
The low number of recreational fishing representatives could be one source of the administration’s apparent irritation, suggested one source.
Seafood Harvesters: ‘The president’s comments surprise us…’
Despite Trump’s comments, count Leigh Habegger, the new executive director at the Seafood Harvesters Association, as among those who believe the current federal approach to fishing policy is plainly drawn and working well.
“The president’s comments surprise us insofar as they seem to diminish the role of regional councils in developing regulations and managing the resources under their jurisdiction; this process is clearly laid out in the MSA,” she noted.
The secretary of Commerce “must specify the applicable law with which a council-proposed [fishery management policy] or FMP amendment is inconsistent (including the MSA’s national standards)”, Habegger explained. “It is also clear in sect. 304 that the secretary may only return council-proposed regulations for revision if the proposed regulations are inconsistent with the FMP, FMP amendment, MSA, or other applicable law. If the council-proposed regulations are not inconsistent, sect. 304 requires the secretary to publish the regulations”.
“…The bottom-up process of regulation-making and the councils’ regional expertise has led to the 40+ years of success for the [FMC] model envisioned by the early authors of the MSA and should be considered a resounding success of the act,” she said.
As for the makeup of the councils and their reliance on scientific committees, Habegger said sect. 302 of the law clearly lays out the process.
However, Peter Shelley, senior counsel of the Conservation Law Foundation (CLF), an ocean conservation group based in Boston, Massachusetts, said Friday that he concurs with the sentiments expressed by the president.
“I find myself in the rare position of agreeing with the president,” he told Undercurrent.
Shelley said his group has maintained for several years that, because previous administrations have often rubber-stamped FMC policy recommendations, the councils seem to be acting more as the policymakers than the advisors.
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