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SOUTHEAST TEXAS RECORD

Wednesday, May 1, 2024

NCLA successfully petitions NOAA to delay warrantless 24/7 surveillance of charter boats in the Gulf

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DC – A rule  requiring for-hire charter boat captains off the Gulf of Mexico to  install vessel monitoring systems (VMS), a kind of GPS tracking device,  on their boats to supply 24/7 location information to the U.S.  Government has been put on hold, a press release states. 

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, previously filed a petition with the National Oceanic and Atmospheric Administration (NOAA) to amend the effective date of the Final Rule by 90 days until March 14, 2022. However, NOAA has only approved a delay until March 1, 2022.

NCLA represents over 1,300 federally permitted charter boat owners  operating off the coasts of Alabama, Florida, Louisiana, Mississippi,  and Texas, who are seeking relief against the Final Rule in the  class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al. 

NCLA argued in the petition to NOAA that the agency should permit the  U.S. District Court for the Eastern District of Louisiana time to  determine the validity of the Rule before requiring petitioners and  their respective class members—Gulf charter boat captains and  companies—to purchase, install, and operate costly and  unconstitutionally invasive tracking devices. The constitutional  violations in the Rule are even more stark, given that many owners of  charter boats also use them for personal non-fishing activities but are  still monitored and tracked on such excursions.

On July 21, 2020, the National Marine Fisheries Service (NMFS) published the Final Rule, Electronic Reporting for Federally Permitted Charter Vessels and Headboats in Gulf of Mexico Fisheries.  The Rule requires that each charter boat must be “equipped with  NMFS-approved hardware and software with a minimum capability of  archiving GPS locations.” The VMS must be “permanently affixed” to the  vessel and “archive[] the vessel’s accurate position at least once per  hour, 24 hours a day, every day of the year.”

This 24-hour GPS surveillance is not only unnecessary and unduly  burdensome, but the Supreme Court struck down long-term location  tracking as an unconstitutional invasion of privacy months before the  issuance of the notice of proposed rulemaking. NMFS and NOAA plunged  ahead anyway.

The Petitioners and counsel for NOAA agreed to and filed a request to  shorten the briefing schedule and for expedited review. Petitioners  anticipate that briefing will conclude in November. While NOAA did not  credit NCLA, this successful petition means the Court will now have time  to consider the positions of the parties.

NCLA released the following statements:

“The agencies appeared determined to force our clients and the class  they represent to purchase monitoring devices that cost thousands of  dollars per charter vessel and be tracked twenty-four hours a day,  before a court could rule on our motion to set aside the regulation  because it violates constitutional and statutory rights. This wise  action of NOAA and the regulators gives the Court more time to consider  the law in this matter and grants the many hundreds of charter boat  captains in the Gulf of Mexico a reprieve until next year at least.”

— John Vecchione, Senior Litigation Counsel, NCLA

“While we appreciate the federal  regulators’ decision to delay this rule, they still have not explained  how 24-hour tracking of charter boats—which account for a minuscule  amount of Gulf fishing—promotes conservation, especially since boat  captains already report the number and types of fish caught in real  time.”

— Sheng Li, Litigation Counsel, NCLA

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