are not justified under National Standard Eight's requirement
that defendants must, "to the extent practicable, minimize
adverse economic impacts on such communities."
16 U.S.C. § 1851(a)(8). Instead, plaintiffs argue, taking no action would
achieve conservation benefits similar to those the YFT retention
limits would achieve, while eliminating any economic impact on
the recreational fishing communities.
Defendants refute plaintiffs' allegations. First, NMFS did
analyze the YFT retention limit's potential social and economic
effects on various fishing communities, including recreational
fishers. See A.R. Vol. 8, Doc. 152a, ch. 2, at 36-37, ch. 3,
at 13436; A.R. Vol. 9, Doc. 152b, ch. 7, at 1-9, 13, ch. 9, at
1-6, 24-27, 33-38. Contrary to plaintiffs' allegations, NMFS did
not propose to fabricate data to address what were potential
gaps in fishing community profiles. Rather, consistent with
National Standard Eight, NMFS appears to have used the best
evidence available at the time it prepared the HMS FMP to
conduct its fishing community analyses. Moreover, plaintiffs'
claim that "NMFS admitted that it had not documented the
economic value of recreational fisheries" was a
mischaracterization of a preliminary HMS FMP draft. Again, NMFS
appears to have relied upon the best recreational fishery data
available at the time, as the Magnuson-Stevens Act requires.
See A.R. Vol. 7, Doc. 145, at 1.
Second, whether NMFS's prediction that the YFT retention limit
would not have a significant economic impact on recreational
fishers in the end is correct or not, it was not arbitrary or
unreasonable. NMFS commissioned and assessed the results of a
five-state impact study of twelve defined fishing communities.
A.R. Vol. 9, Doc. 152b, ch. 9, at 135. NMFS also considered
public comments in undertaking its analyses, including
comparisons to the decrease in recreational bluefin tuna boat
trips following earlier enacted bluefin tuna retention limits.
See A.R. Vol. 8, Doc. 152a, ch. 3, at 135. NMFS concluded,
however, that the YFT retention limit would not significantly
affect the revenues of recreational fishers conducting similar
trips for YFT, and that the bluefin tuna comparison was not
Finally, as to the choice between implementing the YFT
retention limit and taking no action, defendants argue that,
contrary to plaintiffs' claim, these two alternatives do not
achieve similar conservation outcomes. NMFS has determined,
based on its analyses, that the YFT retention limit has
conservation benefits which a "no action" alternative does not
have, such as to prevent YFT overfishing.
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. NMFS must minimize adverse impacts on fishing
communities only "to the extent practicable."
16 U.S.C. § 1851(a)(8). Plaintiffs have not provided sufficient evidence
from the record to support their claim that the YFT retention
limit will fail to minimize adverse economic impacts on the
recreational fishing community to the extent practicable. NMFS
has demonstrated that it implemented the YFT retention limit to
preserve the YFT fishery. The YFT retention limit does not
violate National Standard Eight.
e) International Parity
Plaintiffs argue that NMFS violated the Magnuson-Stevens Act's
international parity requirement, 16 U.S.C. § 1854(g)(1)(C),
because the YFT retention limit will disadvantage U.S. fishers,
and because NMFS
knew of this disadvantage before it enacted this regulation.
(Pls.' Mem. at 22.) The Magnuson-Stevens Act requires the
Secretary to "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." 16 U.S.C. § 1854(g)(1)(C). In a four-sentence
argument, plaintiffs' summary judgment motion claims that the
YFT retention limit "prejudices U.S. fishermen internationally"
and, therefore, the regulation "is arbitrary, capricious, not in
accordance with law, and must be set aside." (Pls.' Mem. at 22.)
No facts in the record support plaintiffs' conclusory
allegation. As defendants point out, NMFS has not even imposed a
domestic YFT quota, and there is no international ICCAT YFT
quota. (Defs.' Mem. at 34.) Plaintiffs have shown no evidence
that the Secretary failed to evaluate the likely effects, if
any, on participants in the affected fisheries, or failed to
minimize any disadvantage to plaintiffs in relation to foreign
competitors. "Merely because [certain species] are also
harvested beyond [United States waters] is no reason why the
Secretary should not regulate them within the bounds of his
authority under the [Magnuson-Stevens] Act. When Congress passed
the Magnuson Act it was well aware of the existence of
international fishery management agreements, especially . . .
the International Convention for the Conservation of Atlantic
Tunas [ICCAT]." National Fisheries Inst. v. Mosbacher,
732 F. Supp. at 221, cited in Southern Offshore Fishing Ass'n v.
Daley, 995 F. Supp. 1411, 1428 (M.D.Fla. 1998) (Congress did not
intend the Secretary "to suspend his conservation and management
obligations whenever fish stocks become lethally subject to both
foreign and domestic harvest"). The YFT retention limit does not
violate section 1854(g)(1)(C) of the Magnuson-Stevens Act.
f) The Regulatory Flexibility Act
In a two-sentence paragraph (see Pls.' Mem. at 17),
plaintiffs argue that the YFT retention limit violates the RFA,
as amended by the SBREFA, which directs agencies to evaluate the
effect that new regulations will have on small business
entities. See 5 U.S.C. § 601-12. Plaintiffs claim that the
Final Regulatory Flexibility Analysis ("FRFA") included in the
HMS FMP does not mention recreational fisheries or include the
YFT retention limit's economic impacts. In addition, plaintiffs
claim that NMFS could not have analyzed the economic impacts on
recreational fishers, because NMFS has failed to define an
appropriate universe of recreational fishers.
When an agency promulgates a final rule, it must perform an
FRFA, which must contain:
(1) a succinct statement of the need for, and
objectives of, the rule;
(2) a summary of the significant issues raised by the
public comments in response to the initial regulatory
flexibility analysis, a summary of the assessment of
the agency of such issues, and a statement of any
changes made in the proposed rule as a result of such
(3) a description of and an estimate of the number of
small entities to which the rule will apply or an
explanation of why no such estimate is available;
(4) a description of the projected reporting,
recordkeeping and other compliance requirements of
the rule, including an estimate of the classes of
small entities which will be subject to the
requirement and the type of professional skills
necessary for preparation of the report or record;
(5) a description of the steps the agency has taken
to minimize the significant economic impact on small
entities consistent with the stated objectives of
applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each
one of the other significant alternatives to the rule
considered by the agency which affect the impact on
small entities was rejected.
5 U.S.C. § 604.
The Regulatory Flexibility Act's requirements "do not alter in
any manner standards otherwise applicable by law to agency
action." 5 U.S.C. § 606. The standard of review is the same as
that under the APA — a court reviews the FRFA for arbitrary and
capricious action. 5 U.S.C. § 611(a)(2). A reviewing court may
remand a rule to the agency for failure to comply with the
Regulatory Flexibility Act. 5 U.S.C. § 611(a)(4)(A).*fn9
The record shows that NMFS prepared an FRFA for the YFT
retention limit. See A.R. Vol. 8, Doc. 152a, ch. 2, at 16,
36-37, ch. 3, at 134-36; A.R. Vol. 9, Doc. 152b, ch. 7, at 1-9,
13, ch. 9, at 1-6, 24-27, 33-38. In addition, contrary to
plaintiffs' argument, NMFS identified the relevant universe of
fishers who depend on revenue from YFT based on what NMFS said,
without contradiction, was the best evidence available. See
A.R. Vol. 8, Doc. 152a, ch. 2, at 16 (defining the relevant
universe as the fishers having permits to participate in the
Atlantic tuna fishery).
The Regulatory Flexibility Act states that "the term `small
business' has the same meaning as the term `small business
concern' under section 3 of the Small Business Act. . . ."
5 U.S.C. § 601(3). The relevant section of the Small Business Act
defines "small business concern" as "one which is independently
owned and operated and which is not dominant in its field of
operation. . . ." 15 U.S.C. § 632(a)(1). The agency "may specify
detailed definitions or standards by which a business concern
may be determined to be a small business concern for the
purposes of this chapter or any other Act."
15 U.S.C. § 632(a)(2)(A). NMFS thus has broad discretion in defining the
relevant "small business entities" for purposes of the
Magnuson-Stevens Act. Plaintiffs have not shown that, under this
standard and based on the best data NMFS had available at the
time, defendants improperly defined the relevant universe for
purposes of the Regulatory Flexibility Act. Thus, plaintiffs
have failed to demonstrate that the final HMS FMP violates the
Regulatory Flexibility Act.
B. Shark Retention Limits
NMFS also issued regulations that imposed retention limits on
recreationally-fished sharks (collectively, "shark retention
limits"). These regulations provide:
One shark from either the large coastal, small
coastal or pelagic group may be retained per vessel
per trip, subject to the size limits described in §
635.20(e), and, in addition, one Atlantic sharpnose
shark may be retained per person per trip. Regardless
of the length of a trip, no more than one Atlantic
sharpnose shark per person may be possessed on board
a vessel. No prohibited sharks listed in Table 1(d)
of Appendix A to this part may be retained.
50 C.F.R. § 635.22(c).