Update from Loper Bright: NOAA Moves to Rescind Industry-Funded Monitoring

As reported by Cause of Action Institute, which represents the fishermen in Loper Bright Enterprises v. Raimondo, the head of NOAA Fisheries sent a letter to the New England Fishery Management Council last week directing it to “revise and potentially withdraw” industry-funded monitoring requirements for the Atlantic herring fishery.  In the absence of council action, the agency suggested the Secretary of Commerce could initiate a direct amendment to “rescind these measures.”

Although most known as the case that overturned Chevron deference, Loper Bright started as a challenge to these industry-funded monitoring provisions, as well as the Council’s broader “Omnibus Amendment.”  The government has long maintained it has authority to require regulated fishermen to pay the salaries of third-party onboard monitors, despite acknowledge the tremendous economic impact that requirement will have on the fleet.  NOAA itself estimates monitoring could cost upwards of $700 per sea day or 20% of a ship’s take-home pay.

On remand at the D.C. Circuit, the Loper Bright fishermen have continued to argue that Congress never authorized industry funding except in specific instances identified in the Magnuson-Stevens Act.  The government, for its part, argues its authority to require monitors be “carried on board a vessel” entails the ability to design funding mechanisms.  On this view, industry funding is merely a type of “compliance cost.”  The government alternatively argues it has discretion to require industry funding as part of its broad authority to prescribe “necessary and appropriate” management measures.  On both counts, the parties’ dispute touches on important Loper Bright-implementation questions: How should courts engage in textual construction post-Chevron?  And how should they police the boundaries of Congress’s express delegations, especially when found in “catch-all” provisions that contain capacious terms?

Interestingly, the NOAA Fisheries letter does not reference the overturning of Chevron deference, nor does it cite to the Trump Administration’s leading deregulatory instruction, Executive Order 14219, under which agencies are expected to rescind regulations “based on anything other than the best reading of the underlying statutory authority or prohibition.”  That language was inspired by the Loper Bright decision.  The letter instead references Executive Order 14276, “Restoring American Seafood Competitive,” which seeks to eliminate “costly and inefficient regulation[s].”

Cause of Action Institute’s full press release is available here.

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.  In his role at Cause of Action Institute, Ryan has served as lead counsel on Loper Bright Enterprises v. Raimondo since the initiation of the case.