A flurry of activity in late June and early July in Washington, D.C., made clear that the recreational marine industry is far from done trying stop an impending federal vessel-speed restriction rule along the East Coast.
On June 27, the congressional Subcommittee on Water, Wildlife and Fisheries held a hearing about a bill sponsored by U.S. Rep. Buddy Carter, R-Ga., that would stop the National Oceanic and Atmospheric Administration from finalizing its proposed speed limits for boats from 35 to 65 feet, in what NOAA says is an effort to protect North Atlantic right whales from vessel strikes.
Carter’s bill also would create a grant program to develop technology for boaters to avoid whales, in keeping with industry efforts to show NOAA that such technology is further along than government regulators believe.
“There are technological innovations available — and I want to stress that,” Carter said. “I’m not just offering something to stop something. I’m offering solutions to it.”
Evan Howell, director of the National Marine Fisheries Service Office of Science and Technology at NOAA, reiterated the government’s stance that today’s technology is not a viable solution. “As it stands, there is no proven technology that can be adopted rapidly enough to reduce lethal vessel strikes of North Atlantic right whales and ward off extinction,” Howell testified.
That testimony rankled the team at Viking Yachts, the New Gretna, N.J.-based sportfish builder that has helped to lead industry efforts against the proposed rule. John DePersenaire, Viking’s director of government affairs and sustainability, sent a follow-up letter to the committee stating that the NOAA official’s testimony was inaccurate.
“Not only is this statement incorrect but stokes a sense of concern noting that the director of the science and technology in the federal agency charged with managing the [North Atlantic right whale] as not abreast of all ways of reducing risk,” DePersenaire wrote.
Also at the hearing, Jeff Strong, president of Strong’s Marine and chairman of the Marine Retailers Association of the Americas board of directors, testified that that the proposed rule would severely impact his and other businesses. Instead of slowing down, boaters will sell their boats and create significant job losses, he testified: “This would result in an average loss of $4.1 million in business per dealer over 500 dealers, resulting in $2 billion in loss along the East Coast.”
Frank Hugelmeyer, president and CEO of the National Marine Manufacturers Association, sent a letter to the committee strongly supporting Carter’s bill. That letter states that regulators are failing to consider information about existing technology, and makes clear that the association believes NOAA is “obligated under the Administrative Procedures Act to reopen the rulemaking process to consider new information that significantly affects the rulemaking.”
Violations of the Administrative Procedure Act can be challenged and blocked in federal court—a fact that became all the more notable just one day after the congressional hearing, when the U.S. Supreme Court issued a landmark ruling in Loper Bright Enterprises v. Raimondo.
The court’s Loper Bright decision overturned a 40-year-old ruling that had created what became known as the Chevron Doctrine. This doctrine had required judges to defer to federal regulators about how to interpret the will of Congress when lawmakers were ambiguous in writing laws.
Plaintiffs in the Loper Bright case were herring fishermen from Cape May, N.J., who challenged NOAA’s interpretation of its authority to require monitors on commercial fishing boats. A law that Congress passed required the owners of certain classes of fishing boats to pay for those monitors, but did not specify who had to pay monitors on the herring boats that the New Jersey fishermen used. The fishermen argued that when NOAA started charging them more than $700 per day per vessel, the agency exceeded its authority in interpreting the law.
This same basic argument is part of the recreational-boating industry’s protests about NOAA’s current vessel-speed rulemaking.
“It is not lost on us that at the center of the Supreme Court case is commercial fishing families who challenged NOAA on regulatory overreach,” Robyn Boerstling, senior vice president of government relations for the NMMA, told Soundings Trade Only. “While the full scope of impacts have yet to be determined, one thing is very clear: The decision increases the chances of legal challenges in cases where the administrative action is rooted in statutory ambiguity or strays beyond the agency’s clear delegation of duties.”
DePersenaire also noted a ruling the Supreme Court handed down July 1 in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. That ruling expanded the timeframe for people to sue federal agencies — potentially opening up NOAA to challenges on its 2008 vessel-speed restriction rule that affects larger yachts.
The Corner Post ruling “changes the statute of limitation to challenge a regulation from six years from when it was enacted to six years from when it causes injury,” DePersenaire told Soundings Trade Only. “Meaning, if someone bought a 65-foot boat this year and can prove injury in response to the 2008 rule, they would have six years from 2024 to put forward a legal challenge. Thus, this could bring the 2008 rule into some of these legal discussions.”
