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September 25, 2000


The opinion of the court was delivered by: Roberts, District Judge.


Plaintiffs, individuals and associations involved in the pelagic longline fishing industry, brought this challenge to the Commerce Secretary's*fn1 ("Secretary's") regulations implementing the final 1999 Highly Migratory Species Fishery Management Plan. The parties have filed cross-motions for summary judgment and presented oral arguments. Because I find that the Secretary acted within his authority as to all of his challenged actions save one, defendant's motion for summary judgment will be granted except as to the mandatory vessel monitoring system ("VMS") requirements. Plaintiffs' motion for summary judgment as to the VMS requirements will be granted since the record does not support a blanket requirement that all pelagic longline fishers, regardless of their proximity to targeted conservation areas, install a VMS unit. Accordingly, I will remand defendant's determinations under Counts Three and Four of the Amended Complaint regarding the mandatory VMS requirements, 50 C.F.R. § 635.69, to the Secretary.

I. Introduction

Pelagic longline fishers catch species such as tuna, shark and swordfish. (Pls.' Stmt. Material Facts ("Pls.' Stmt.") ¶ 12.) These species are known as Highly Migratory Species ("HMS"). (Id.)*fn2 Pelagic longline fishers catch HMS with long fishing lines attached to "a series of leaders that connect to individual hooks in the ocean at specific depths." (Id. at ¶ 13.) There are less than 300 pelagic longline fishing boats currently in operation "over wide areas of the Atlantic Ocean, the Caribbean Sea, and the Gulf of Mexico," (id. at ¶ 37), and the number of longline boats has remained constant since 1987. (Def.'s Resp. to Pls.' Stmt. ¶ 37.) Pelagic longline fishers earn an average yearly income of $53,064, before paying fixed operating and maintenance costs. (Pl.s.' Stmt. ¶ 42.)

Pelagic longline fishing and pelagic fish are subject to statutory and regulatory regimes, as well as international agreements, designed to protect HMS. (Pls.' Stmt. ¶ 43.) The focus of this litigation is the final 1999 Highly Migratory Species Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks ("HMS FMP"), promulgated by the National Marine Fisheries Service ("NMFS"), pursuant to its authority delegated by the Secretary of Commerce ("Secretary") under the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. § 1801-83 (1994 & West Supp. 2000).

Plaintiffs claim that four of the HMS FMP's regulations are arbitrary and capricious, including (1) limits on Atlantic bluefin tuna ("ABT") that can be caught and kept per fishing trip, see 50 C.F.R. § 635.23 (f); (2) an area ban on fishing during the month of June, see 50 C.F.R. § 635.21 (c)(2); (3) annual quotas for blue sharks and subquotas for porbeagle sharks, see 50 C.F.R. § 635.27 (b); and (4) a requirement that all pelagic longline fishers install a VMS unit on their vessels, see 50 C.F.R. § 635.69. Specifically, the plaintiffs claim that each regulation violates certain National Standards set forth in the Magnuson-Stevens Act. See 16 U.S.C. § 1851 (a)(1)-(10), 1853 (a)(1)(C).

In addition, plaintiffs claim that each regulation impermissibly imposes more regulatory restrictions on the commercial fishing sector than on the recreational fishing sector. Finally, plaintiffs assert that in promulgating the challenged regulations, the defendant violated the Regulatory Flexibility Act ("RFA"), 5 U.S.C. § 601-612 (1994 & West Supp. 2000), as amended by the Small Business Regulatory Enforcement and Fairness Act ("SBREFA"), Pub.L. No. 104-121, §§ 241-42, 101 Stat. 857, 864-68 (1996), by failing adequately to evaluate their effects on small business entities.

II. Legal Framework

A. The Magnuson-Stevens Act

The purpose of the Magnuson-Stevens Act is to protect HMS in waters extending two hundred (200) miles from the United States coast through conservation and management measures. See 16 U.S.C. § 1801 (a), (b). Congress found that many HMS were "overfished"*fn3 and that as a result of "increased fishing pressure" and "the inadequacy of fishery resource conservation and management practices," the survival of HMS "is threatened." 16 U.S.C. § 1801 (a)(2). Congress also found that other species, while not technically overfished, were "so substantially reduced in number that they could become similarly threatened." Id.

The Magnuson-Stevens Act directs the Secretary to prepare "fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield*fn4 from each fishery," 16 U.S.C. § 1801 (b)(4), including HMS. See 16 U.S.C. § 1854 (g)(1). That responsibility is delegated to NMFS. Id.

A plan issued pursuant to the Magnuson-Stevens Act must be consistent with ten National Standards. See 16 U.S.C. § 1851 (a). Plaintiffs raise five of these standards in their claims, arguing that each of the 1999 HMS FMP regulations at issue violated one or all of them. The standards at issue are:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.
(2) Conservation and management measures shall be based upon the best scientific information available.
(7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.
(8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.
(9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

16 U.S.C. § 1851 (a)(1), (2), (7)-(9).

Bycatch is defined as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program." 16 U.S.C. § 1802 (2). In other words, bycatch is those fish that fishers catch but throw back into the ocean, either because they are not the kind of fish that people will buy (being too small, of the wrong gender or of bad quality), or because a regulation dictates that the fish cannot be kept. See 50 C.F.R. § 600.350 (c). This second kind of bycatch is referred to as a regulatory discard. Regulatory discards may occur where certain fish species are so overfished that they cannot be kept or sold. See 50 C.F.R. § 622.32 (describing those species of fish which may not be harvested or possessed). For example, the 1999 HMS FMP allows pelagic longline fishers fishing south of a certain latitude to retain only one large or medium bluefin tuna per fishing trip. See 50 C.F.R. § 635.23 (f)(1). All fish caught in excess of that limit must be discarded.

In addition to the National Standards, two other provisions of the Magnuson-Stevens Act are at issue. First, the Act requires fishery management plans to allocate fishing benefits equitably between recreational and commercial fishers to the extent practicable. See 16 U.S.C. § 1853 (a)(12), (14). Second, the Act requires that when the Secretary prepares the HMS FMP, the plan should, to the extent practicable, minimize any disadvantage the regulations might place on United States fishers as compared to foreign fishers. See 16 U.S.C. § 1854 (g)(1)(C) (Secretary shall "evaluate the likely effects, if any, of conservation and management measures on participants in the affected fisheries and minimize, to the extent practicable, any disadvantage to United States fishermen in relation to foreign competitors").

B. Atlantic Tunas Convention Act

Under ATCA, the State Department has broad discretion to implement tuna conservation programs, "except that no regulation . . . may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level to the United States agreed to pursuant to a recommendation of the Commission." 16 U.S.C. § 971d (c)(1)(A), 971d (c)(3)(K). The "Commission" is the International Commission for the Conservation of Atlantic Tunas ("ICCAT"). 16 U.S.C. § 971a. ICCAT carries out the Convention's objectives and makes recommendations for achieving the Convention's ABT conservation goals. (Def.'s Mem. at 4.) Therefore, while the State Department cannot alter the United States ABT quota, pursuant to the Magnuson-Stevens Act and ATCA, it may develop conservation programs in conjunction with the fixed ABT quota.

C. Standard of Review

The Magnuson-Stevens Act provides for judicial review of an HMS FMP under the same standards as those set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (2)(A)-(D) (1994). See 16 U.S.C. § 1855 (f). The APA directs that "the reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A).

In reviewing an agency's action to determine whether it was arbitrary and capricious, courts are constrained to review only those facts before the agency at the time of the action. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). "If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Id. at 744, 105 S.Ct. 1598; accord Southwest Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 61 (D.C.Cir. 2000) (reversing the district court's order directing that the agency collect more evidence to support its position because the district court was empowered to decide the issue presented based solely on the information available to the agency).

A court should engage in a searching and careful review of agency action but should not attempt to substitute its own judgment for the judgment of the agency. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Because the agency is expected to have expertise in its area, a certain degree of deference is due, particularly on issues about which experts disagree. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

Despite this deferential standard, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). To determine whether the agency has articulated a satisfactory explanation,

[A court] must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: `We may not supply a reasoned basis for the agency's action that the agency itself has not given.' . . . We will, however, `uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'

Id. (internal citations omitted). For an agency's decisionmaking to be rational under Motor Vehicle Mfrs. Ass'n, the agency "must respond to significant points raised during the public comment period" and "consider significant alternatives to the course it ultimately chooses." Allied Local & Regional Mfrs. Caucus v. U.S. EPA, 215 F.3d 61, 80 (D.C.Cir. 2000).

Summary judgment is appropriate where "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This case involves parties' cross-motions for summary judgment as to certain administrative decisions in the 1999 HMS FMP. Specifically, I must determine whether the record supports the contention that 1999 HMS FMP satisfies the substantive requirements set out by the Magnuson-Stevens Act, as well as the RFA.

III. Substantive Disputes

A. Atlantic Bluefin Tuna Trip Limits

Plaintiffs challenge the limits on ABT that a longline fisher may catch and keep on any given fishing trip (referred to as the "ABT Trip Limit"). See 50 C.F.R. § 635.23 (f). Plaintiffs argue that this provision is arbitrary and capricious because it violates the Magnuson-Stevens Act's National Standards One, Eight and Nine. I find that the defendant has described a sufficiently rational basis to support the need for ABT trip limits.

1. Background

ABT is an overfished species. See A.R. Vol. 1, Doc. 23, Table A3, at 53. To aid conservation, ICCAT recommended pernation ABT quotas under a twenty-year ABT fishery rebuilding program, beginning in 1999. See A.R. Vol. 8, Doc. 152a, ch. 3, at 17-18, 26.*fn5 NMFS in turn sets annual ABT quotas for each category of fishing vessel. See 50 C.F.R. § 635.27 (a). Pelagic longliners currently are allocated 8.1% of the total United States quota. Id.

As a further conservation measure, NMFS does not allow pelagic longline fishers to target ABT. Longliners are allowed to catch and keep ABT only "incidentally." 50 C.F.R. § 635.23 (f). This means that longliners may keep an ABT only if it is caught by accident when a longliner is fishing for other species. (Pls.' Stmt. ¶ 71.) NMFS first imposed this "incidental-only" restriction on the longliners in 1981. See 46 Fed.Reg. 8012 (1981). The parties agree that current ABT catches are purely incidental and not a result of targeted fishing. (Pls.' Mem.Supp. Summ.J. ("Pls.' Mem.") at 26; Def.'s Mem. at 20.) At oral argument, plaintiffs stated that longline boats do not encounter ABT at all on ninety percent of their fishing trips.

In addition to the incidental-only restriction, pelagic longline fishers are not allowed to catch and keep more than a certain number of ABT during the course of each fishing trip.*fn6 See 50 C.F.R. § 635.23 (f). Pelagic longliners must discard any ABT caught above the limit. NMFS also has imposed a regulation that subtracts longliners' dead discards from their yearly quota. See 50 C.F.R. § 635.27 (a). This means that whenever a longliner catches an ABT that is killed, the weight of that ABT is subtracted from the total yearly quota, whether that fish is kept or thrown back. Any ABT caught in excess of the yearly quota are subtracted from the following year's quota. See 50 C.F.R. § 635.27 (a)(9)(i). Consistently, if the annual quota has not been reached for a particular year, NMFS increases the following year's quota. Id. Plaintiffs assert that the trip limits in combination with the discard penalties is arbitrary and capricious.

Plaintiffs argue that the trip limits do not achieve any conservation benefits because longliners catch ABT only incidentally and, therefore, imposing trip limits will not change the amount of ABT actually caught. The trip limits merely guarantee that ABT will be have to be discarded. In combination with the requirement to subtract discards from the longliners' total quota, the trip limits all but ensure that longliners will never be able to harvest their allotted quota. Plaintiffs refer to this as a "death-spiral" effect: that is, the trip limits will cause discards, and the discards make it more likely that longliners will exceed their ABT quota, which in turn will cause the following year's quota to be reduced, only to start the cycle again.

Plaintiffs also point out that in past years, when they have been unable to harvest their allotted quota, NMFS has reallocated the unused portion of the longliners' quota to the "General Category,"*fn7 thus allowing fishers in the General Category to catch ABT in place of those that the longliners were unable to catch and keep. Plaintiffs do not argue that trip limits should be abolished; they merely argue that the current trip limits are so restrictive as to be arbitrary and capricious. Given that there is no evidence that longliners are targeting ABT, plaintiffs argue that the trip limits have no positive effect on conservation and may have a negative effect insofar as the limits encourage discards. In addition, plaintiffs state that the trip limits have a substantial negative economic effect on the pelagic longline fishing industry.

Defendant argues that NMFS's main objective in maintaining the trip limits is to ensure that longliners do not begin targeting ABT. Defendant points out that a single ABT may "be worth thousands of dollars." (Def.'s Mem. at 21.) In an industry where the average income is $53,064, the financial incentive to catch these fish is quite strong. (Id.); see also A.R. Vol. 9, Doc. 152b, ch. 7, at 32. Defendants maintain that the lack of a statistical relationship between target fish landed and ABT caught merely demonstrates that the current trip limits are having the desired effect of assuring that longliners catch ABT only incidentally.

Defendant states that NMFS was aware that the regulations might produce bycatch and might also produce a burden on the longline industry. NMFS decided, however, that it did not want to risk creating an incentive to target ABT by increasing the trip limits. Plaintiffs counter by stating that an overall yearly ABT quota achieves that result without having the trip limits' adverse economic effects. Defendant asserts that it has minimized adverse economic impacts to the extent practicable in light of its primary conservation purposes.

2. Discussion

a) National Standard One

Plaintiffs contend that the trip limits violate National Standard One by interfering with fishers' ability to catch their allotted quota, and preventing fishers from "achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851 (a)(1). They appear to reason that because optimum yield involves, in part, "maintaining an economically viable fishery together with its attendant contributions to the national, regional and local economies, and utilizing the capacity of the Nation's fishing resources," 50 C.F.R. § 600.310 (f)(2)(i), there is a "requirement that the fishery provide an economic return to fishermen and fishing communities . . . ." (Pls.' Mem. at 28.) Plaintiffs conclude that any regulation that detracts from their ability to catch and sell their portion of the ABT quota violates National Standard One, because the fishery as a whole would not be able to achieve optimum yield each year.

This argument is unavailing. NMFS is statutorily required to set out a plan that stops overfishing and rebuilds the stock of fish as quickly as possible. See 16 U.S.C. § 1854 (e)(4)(A)(i). The statutory "optimum yield" definition recognizes that optimum yield is a standard that should be achieved over the long-run, not necessarily a standard that must be achieved with precision each year. See 50 C.F.R. § 600.310 (f)(1)(ii) ("[i]n national standard 1, . . . `achieving, on a continuing basis, the [optimum yield] from each fishery' means producing, from each fishery, a long-term series of catches such that the average catch is equal to the average [optimum yield]").

Plaintiffs' argument on this point does not adequately address the fact that National Standard One is meant to achieve optimum yield while preventing overfishing. Nor do the plaintiffs adequately address the requirement that NMFS take action to rebuild overfished stock. Nothing in the regulations presumes that longliners are entitled to catch their allotted quota. As defendant points out, even if applicable statutes and regulations required the HMS FMP to allow fishers to catch the optimum yield of ABT every year, such a requirement would not necessarily translate to a right vested in the pelagic longline industry to catch its annual allotted quota; rather, it would run to the rights of United States fishers as a whole.

b) National Standard Eight

Plaintiffs argue that the trip limits do not achieve significant conservation benefits, and the economic costs are not justified under National Standard Eight's requirement that defendant must, "to the extent practicable, minimize adverse economic impacts on such communities." 16 U.S.C. § 1851 (a)(8). Defendant argues that, while economic effects must be taken into account, such effects were not meant to trump the real purpose of the Magnuson-Stevens Act, which is to preserve and protect United States fisheries. He emphasizes that minimizing adverse impacts on fishing communities need be achieved only "to the extent practicable." 16 U.S.C. § 1851 (a)(8). NMFS is and has been concerned that the ABT fishery cannot withstand any additional fishing pressure. See A.R. Vol. 36, Doc. G1, at 8013. Apparently, a surge of ABT catches by pelagic longliners occurred in 1980, and the high prices received for the ABT encouraged fishers to consider targeting ABT. Id. As a result, in 1981, NMFS imposed the first trip limits. See A.R. Vol. 8, Doc 152a, ch. 3, at 227.

Because NMFS is still concerned that the financial rewards of selling ABT will encourage fishers to target ABT, NMFS decided that the current trip limits should be maintained. Further, the HMS FMP points out that the problem with excessive discards would not be addressed by changing the trip limits. See A.R. Vol. 8, Doc. 152a, ch. 3, at 238-39. Increasing the trip limit would ensure only that longliners meet their quota earlier in the season, because the overall ABT quota would remain the same. After the overall quota has been met, all subsequent ...

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