New report: Fishery management councils are unaccountable and must be fixed by Congress

Washington, DC; January 15, 2025: Regional fishery management councils, tasked with regulating the U.S. fishing industry, operate with little to no accountability or oversight, according to new research from Pacific Legal Foundation. Council members, who are virtually impossible to fire and wield enormous power over thousands of small businesses, must be made subject to the rule of law and congressional oversight.

“Under current law, council members are not required to undergo the Senate confirmation process, making them unaccountable bureaucrats that wield immense power over hundreds of small businesses in the fishing industry,” said Michael Poon, attorney at Pacific Legal Foundation. “The Constitution’s Appointments Clause requires all principal officers of the United States to be Senate confirmed so that Congress has a say in who wields the government’s power.”

Key Findings

• Since the passage of the Magnuson-Stevens Act, the councils have passed over 5,000 rules, with nearly 100 deemed “significant regulatory actions” — each expected to have an impact on the economy of $100 million or more.
• Rules issued by fishery management councils can be disapproved by the Secretary of Commerce only if the rule is unlawful, not because of policy or political disagreements. FOIA responses identified only six rules that have ever been disapproved in whole or in part by the Secretary, out of more than 5,000.
• Council members who are nominated by each state’s governor can be rejected only if they do not meet objective qualifications, rather than for policy reasons. Between 2015 and 2024, governors submitted 287 individual slates of nominees. Only eight were rejected by the Secretary. And more than 82 percent of the time, the Secretary rubberstamped whoever the governor indicated was their top choice.
• Once appointed, members cannot be removed for any reason other than for cause, rendering council members largely immune from voters’ approval about their rules and decision-making.

“Our research demonstrates that the members of the fishery management councils, who wield enormous power over the U.S. fishing industry, are not at all held in check by the Secretary or anyone else in the executive branch,” said Mitchell Scacchi, strategic research manager at Pacific Legal Foundation. “Rejecting less than 10 rules out of over 5,000 and rejecting only eight slates of nominees in nearly 10 years is not oversight, but rather a demonstration of just how little control the Secretary has over what decisions these councils make and who makes them.”

The report is Unconstitutionally Appointed: Introducing Accountability to Marine Fisheries Management by Mitchell Scacchi and Michael Poon, published January 15, 2025.