The opinion of the court was delivered by: Roberts, District Judge.
Plaintiffs, individuals and associations involved in the
recreational fishing industry, brought this challenge to the
Commerce Secretary's*fn1 regulations implementing the final
1999 Highly Migratory Species Fishery Management Plan. Both
parties have moved for summary judgment. Because the Secretary
acted within his authority as to all of the challenged actions,
defendants' cross-motion for summary judgment will be granted
and plaintiffs' motion for summary judgment will be denied.
Plaintiffs are recreational fishers who depend economically on
yellowfin tuna and shark fisheries. (Pls.' Compl. ¶¶ 1-16.) These
tuna and shark species are known as Highly Migratory Species
("HMS"). (Id. ¶ 17.)*fn2
Recreational fishing for HMS is subject to statutory and
regulatory regimes, as well as international agreements,
designed to protect HMS. (Pls.' Statement of Material Facts
("Pls.' Statement") ¶¶ 1-5, 9-11,) 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 two of the HMS FMP's regulations are
arbitrary and capricious, including (1) recreational retention
limits on yellowfin tuna ("YFT"), see 50 C.F.R. § 635.22(d);
and (2) recreational retention limits on large coastal, small
coastal and pelagic sharks, see 50 C.F.R. § 635.20(e)(2),
635.22(c). Specifically, 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).
In addition, plaintiffs claim that the YFT retention limit
disadvantages United States fishers relative to fishers from
other nations, in violation of 16 U.S.C. § 1854(g)(1)(C).
Finally, plaintiffs assert that in promulgating the YFT
retention limit, defendants violated the Regulatory Flexibility
Act, 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 its effects on small
A. The Magnuson-Stevens Act
The Magnuson-Stevens Act directs the Secretary to prepare
"fishery management plans which will achieve and maintain, on a
continuing basis, the optimum yield*fn5 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 four of these standards in their
claims, arguing that each of the 1999 HMS FMP regulations at
issue violated the following standards:
(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.
(4) Conservation and management measures shall not
discriminate between residents of different States.
If it becomes necessary to allocate or assign fishing
privileges among various United States fishermen,
such allocation shall be (A) fair and equitable to
all such fishermen; (B) reasonably calculated to
promote conservation; and (C) carried out in such
manner that no particular individual, corporation, or
other entity acquires an excessive share of such
(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.
16 U.S.C. § 1851(a)(1), (2), (4), (8).
B. Atlantic Tunas Convention Act
In addition to the Magnuson-Stevens Act, the Atlantic Tunas
Convention Act ("ATCA"), 16 U.S.C. § 971 (1994), provides
further authority for the Secretary to promulgate tuna
conservation programs. In enacting ATCA, Congress gave the State
Department authority to participate in the International
Convention for the Conservation of Atlantic Tunas
("Convention"). See 16 U.S.C. § 971c, d(a). ATCA directs the
Secretary to issue and enforce fishery management plans that
comport with the Convention's objectives. See
16 U.S.C. § 971d.
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 of maintaining the
tuna population and makes recommendations for achieving the
Convention's tuna conservation goals. (Defs.' Combined Mem. in
Opp'n to Pls.' Mot. for Summ. J. and Supp. Cross-Mot. for Summ.
J. ("Defs.' Mem.") at 2-3.) Therefore, while the State
Department cannot alter the United States YFT quota, pursuant to
the Magnuson-Stevens Act and ATCA, it may develop conservation
programs (such as retention limits) in conjunction with the
fixed YFT quota.
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, 74344, 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
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 is 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, Inc. 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
[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
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. 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' 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
Regulatory Flexibility Act.
III. Substantive Disputes