Judge deals setback to NFI lawsuit opposing NOAA traceability rule

A federal judge has dealt a setback for the National Fisheries Institute's (NFI's) lawsuit that aims to overturn a rule on seafood traceability seeking to prevent imports of illegally-caught fish. But it leaves the next steps up to the administration of President Donald Trump.

NOAA building in Seattle, USA. Credit: Undercurrent News, February 2017

NOAA building in Seattle, USA. Credit: Undercurrent News, February 2017

The NFI -- and several major companies, including Trident Seafoods and Pacific Seafood Group -- had sued the Department of Commerce, the overseer of the National Oceanic Atmospheric Administration (NOAA) alleging that a rule drafted in the waning days of the administration of President Barack Obama was flawed.

The NFI has claimed that the Obama administration "cut corners" in the rule-making process for the regulation, which takes aim at illegal, unreported and unregulated (IUU) fishing by imposing new requirements, because it wanted to enact it before Trump took office.

Legal opinion

In a six-page opinion issued June 22, Washington D.C. federal court judge Amit Mehta wrote that there is a answer to one of the challenges posed in the plaintiffs' arguments.

They argued that two Obama administration officials who had a hand in the rule's creation -- Samuel D. Rauch, NOAA's acting administrator, and Eileen Sobeck, who headed NOAA's National Marine Fisheries Service -- didn't have the legal authority to do what they did. Mehta wrote that even if that argument is proven true, "procedural defects in the rule-making process, even if borne out, need not spell the rule’s demise".

The Trump administration could "cure" any procedural missteps by having a Department of Commerce official ratify the rule, she wrote.

"The proper course at this juncture—just months before the rule goes into effect—is to defer ruling on Plaintiffs’ broader challenge to the agency’s authority to engage in rule-making and, instead, afford the federal defendants an opportunity to submit a signed statement from a principal officer within the Department of Commerce that
ratifies the rule," she wrote.

It remains unclear if the Trump administration, which has generally been opposed to new regulations, will ratify the rule.

NFI and the others have stated that the Commerce Department cut corners by refusing to disclose for public comment the data on which it relied to identify the seafood species subject to the Rule, in violation of the notice-and-comment provisions of the Administrative Procedure Act”, or APA.

The department seemingly also cut corners by failing to address in the preamble to the rule public comments that raised APA concerns about the agency’s refusal to reveal the data on which it relied to select the species to be governed, it is alleged. This would also be in violation of the APA, the lawsuit has claimed.

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