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Alfa International Seafood v. Ross

United States District Court, District of Columbia

August 28, 2017

WILBUR L. ROSS, JR., et al., Defendants.


          Amit P. Mehta United States District Judge.

         “One fish two fish red fish blue fish. Black fish blue fish old fish new fish. . . . Say! what a lot of fish there are.”

         - Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)


         It turns out that there a lot more fish in the sea than even Dr. Seuss imagined. So many, in fact, that countries, including the United States, historically have had difficulty keeping track of the seafood that crosses their borders. This is increasingly problematic, as the United States consumes billions of pounds of seafood every year and, as many U.S. consumers may be surprised to learn, more than 90% of that seafood is imported. Thus, the vast majority of seafood consumed each year in the United States either originates from waters far from home or is caught locally but passes through a foreign processing and distribution chain. Take, for example, a catch of king crab harvested off the coast of Alaska. That crab may be sent from Alaska to South Korea or China for processing and packaging. The packaged crab meat, in turn, is exported from Asia across the Pacific to the United States, to be combined with other ingredients into a crab cake, eaten by someone with little appreciation for the peripatetic journey that produced her meal. This multistage, multinational process means that the worldwide marketplace for seafood is big business. The United States alone imports more than $10 billion in seafood every year.

         The complexity of this catch-to-table distribution chain, however, is rife with vulnerabilities. It is well documented that, at each stage, opportunists seek to game the system, largely by circumventing laws or norms that regulate the manner in which the world seafood market operates. Such activities-known as “illegal, unreported, and unregulated” (“IUU”) fishing and “seafood fraud”-have had profound global and domestic economic and noneconomic consequences.

         This case is about a U.S. federal government regulation, known as the “Seafood Import Monitoring Program” (the “Rule”), which aims to address the problem of IUU fishing and seafood fraud. Promulgated by the Department of Commerce (the “Department”) through its sub-agency, the National Marine Fisheries Service, the Rule's purpose is to protect U.S.-based fisheries and fishermen from unfair competition, as well as increase global food security and promote the sustainability of marine resources. Starting on January 1, 2018, the Rule will require U.S.-based importers of seafood to collect information about each stage of the supply chain for certain types of seafood imported into the United States, starting from the catch's point of origin until its arrival to our shores. Importers also will have to identify the seafood species entering the United States, as well as obtain a permit from the Department to continue importing seafood into the United States. The agency anticipates that these requirements will increase the expense of importing seafood and, ultimately, may increase the cost of seafood to the consumer.

         This case presents a challenge to the Rule. Plaintiffs include several U.S.-based seafood importers, processors, and harvesters who claim that the Department violated federal law in promulgating the Rule and that businesses will be harmed as a result. In broad strokes, Plaintiffs posit that the Department acted without proper authority, under both the relevant statutes and the Constitution, by issuing an overly expansive and highly burdensome regulatory regime and relying on insufficient evidence to do so. Specifically, Plaintiffs maintain that (1) the Rule was not issued by someone with either the statutory or constitutional authority to do so; (2) the Department acted outside its authority under the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), Pub. L. No. 94-265 (codified as amended at 16 U.S.C. §§ 1801-1891), [1] in issuing regulations aimed at seafood fraud; (3) the Rule was promulgated in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., because it is based on undisclosed or insufficient supporting information; and (4) the Department failed to properly complete a Regulatory Flexibility Analysis concerning the Rule's effect on small businesses, as required under the Regulatory Flexibility Act, 5 U.S.C. §§ 601-611. Plaintiffs urge the court to invalidate the Rule.

         Before the court are the parties' cross-motions for summary judgment. Having given careful consideration to the parties' arguments and closely reviewed the extensive administrative record, the court finds that (1) the Rule's issuance did not run afoul of the MSA, and the current Secretary of Commerce validly ratified the Rule, thereby curing any alleged constitutional defect in the Rule's promulgation; (2) Congress granted the Department authority to issue regulations to combat seafood fraud, and the Department did not encroach upon another agency's exclusive jurisdiction by so doing; (3) the Rule does not violate either the procedural or substantive requirements of the APA; and (4) the Department did not transgress the requirements of the Regulatory Flexibility Act. Accordingly, the court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motions for Summary Judgment.


         A. Factual Background

         1. Illegal, Unreported, and Unregulated Fishing and Seafood Fraud

         “Illegal, unreported and unregulated” (“IUU”) fishing encompasses a broad range of illicit conduct. It includes (1) fishing in violation of national, regional, or international laws and regulations (“illegal”); (2) failing to report or misreporting fishing activities to proper authorities when required (“unreported”); and (3) fishing in areas or for fish stocks for which management measures are lacking (“unregulated”). See Admin. Rec., ECF Nos. 71-74, 77, 79 [hereinafter A.R.], at 013102.[2]

         IUU fishing has had tremendous economic, environmental, and health impacts. IUU-caught fish have flooded markets worldwide and eroded the profits of legitimate fishermen by undercutting their prices. Id. at 000001. One study, for instance, estimates that IUU fishing causes annual worldwide economic losses between $10 billion and $23.5 billion. Id. at 000357. Another study found that between 20% and 32% of wild-caught seafood imported into the United States originates from IUU fishing, with an estimated value between $1.3 billion and $2.1 billion. Id. at 000360. IUU fishing also has environmental impacts. Illegal fishing often violates internationally established conservation and management measures, which in turn has adverse impacts on fisheries, marine ecosystems, and coastal communities worldwide. Id. at 013102-03. Finally, IUU fishing operations are unlikely to observe seafood health regulations, thereby passing health risks along to consumers. Id. at 013103. The scourge of IUU fishing is thus a problem of global concern.

         A related problem to IUU fishing is “seafood fraud.” Generally speaking, seafood fraud is the practice of misleading consumers about the type or origin of seafood. Id. The most prominent seafood fraud practices are “species substitution”-i.e., falsely representing the type of fish being sold-and mislabeling-i.e., misrepresenting the seafood's country of origin. Id. As a result of such behavior, for instance, consumers who purchase “wild-caught” salmon may actually be getting farm-raised salmon. Worse yet, a consumer who bites into a tuna sandwich may not be eating tuna at all, but instead, escolar, which is a less expensive species of fish potentially harmful to human health. Id. at 002459. Thus, seafood fraud not only denies the consumer the right to know what she is eating, but also can present latent health risks.

         2. The IUU Task Force

         To address these concerns, on June 17, 2014, President Obama established by Executive Order a “Presidential Task Force on Combating Illegal, Unreported, and Unregulated Fishing and Seafood Fraud” (the “IUU Task Force” or “the Task Force”). See Id. at 000001-04. The President established the IUU Task Force as a subcommittee reporting to the National Ocean Council and designated as its co-chairs the Secretaries of Commerce and State, or their designees. Representatives from 12 other federal agencies served as Task Force members. The President charged the Task Force with developing a comprehensive scheme to “combat IUU fishing and seafood fraud” by “implement[ing] existing programs, and, if appropriate, develop[ing] . . . new, voluntary or other, programs for seafood tracking and traceability.” Id. at 000002. The President directed the Task Force to make, within 180 days, “recommendations for the implementation of a comprehensive framework of integrated programs to combat IUU fishing and seafood fraud that emphasizes areas of greatest need.” Id.

         The Task Force commenced its work immediately. It initiated a public process to solicit information and advice on recommendations to combat IUU fishing and seafood fraud. Id. at 013107. That process included inviting public comment through a notice in the Federal Register, holding public meetings, and hosting webinars. Id. The Task Force also analyzed the federal government's existing enforcement authority with respect to IUU fishing and seafood fraud, including gaps in such authority, and examined areas for improved coordination among federal agencies. Id.

         Six months later, in December 2014, the Task Force made 15 recommendations to the President for “the implementation of a comprehensive framework of integrated programs to combat IUU fishing and seafood fraud that emphasizes areas of greatest need.” Id. at 002665-69. Among the Task Force's key recommendations was the creation of a seafood “traceability” program, under which seafood importers would be required to submit information documenting each link in the supply chain of the seafood they import, the first phase of which would apply to species with either a well-documented history of seafood fraud or a significant risk profile for IUU fishing. Id. at 002668-69. The Task Force determined that increasing transparency in the supply chain would enable authorities to more effectively prevent illegally caught or misrepresented seafood from entering the supply chain and the U.S. market. This increased scrutiny, in turn, would reduce the incentives to engage in IUU fishing over time. Additionally, by reducing the amount of illegally caught seafood in the U.S. market, domestic fishermen would be able to compete on a level playing field and reap the attendant financial benefits. And, of course, reducing IUU fishing also would have positive environmental benefits, such as protecting overfished species and safeguarding sensitive marine ecosystems. Id. at 002670-73, 014046.

         After seeking public comment, the IUU Task Force published an Action Plan to implement its 15 recommendations. Id. at 002666, 004465, 013102-40. The Action Plan identified the types of data that would need to be collected and set forth an implementation timeline, including for the traceability program, whereby certain “at risk, ” or “priority, ” species would be subject to the Rule's information collection requirements before other species. Id. at 006908, 013135-37. The Action Plan anticipated that, following a period of notice and comment, the final Rule would issue by August 2016 and become effective by September 2016. Id. at 013136.

         3. The Department's Notice-and-Comment Rulemaking

         Following publication of the Action Plan, the Task Force's efforts continued under the direction of the National Ocean Council Committee on IUU Fishing and Seafood Fraud. Id. at 004465. That Committee, in turn, commissioned a Working Group, led by the National Oceanic and Atmospheric Administration and comprised of representatives from the Departments of State and Homeland Security, the Food and Drug Administration, Customs and Border Protection, and the Office of the U.S. Trade Representative (collectively, the “Working Group”), to design and implement regulations to effectuate the Task Force's Action Plan. Id. The Working Group acted under the auspices of the National Marine Fisheries Service, a sub-agency within the Department of Commerce. For ease of reference, the court will refer to the various agencies, sub-agencies, and committees that worked on the Rule simply as the “Department, ” except where greater specificity is needed for the court's analysis.

         Before issuing the Final Rule, the Department published multiple notices in the Federal Register. Id. First, in April 2015, the Department published a Notice calling for public comment on the principles it ought to use in developing the list of “priority” species to which the Rule would first apply. Id. at 002674-75. In July 2015, the Department published a second Notice soliciting public comment on the type of information and documentation the traceability program should collect. Id. at 003129. In August 2015, after receiving a substantial number of public comments in response to its earlier notices, the Department published a third Notice that contained seven principles for identifying “priority” species, [3] provided an initial draft of the priority species list, and described the agency's methodology for developing both lists. Id. at 003971-78. The August Notice also stated that the final traceability program and priority species list would be developed pursuant to the agency's rulemaking authority under the Magnuson-Stevens Fishery Conservation and Management Act. Id. at 003971.

         In October 2015, the Department published a final Notice of Determination. That Notice identified the final list of principles that the agency used to identify priority species, as well as the priority species that would be subject to the Rule.[4] Id. at 004464-68. As to each selected species, the Notice included a “[b]rief summar[y]” of the Working Group's “findings” that explained the rationale for the species' designation. Those summaries did not, however, disclose the data that the Department had collected concerning incidents of IUU fishing and seafood fraud, or any related enforcement activities. The final Notice of Determination explained that a “[d]etailed presentation of the data considered by the [Department] and its deliberations is protected from disclosure because of data confidentiality and enforcement implications.” Id. at 004467; see also Id. at 004469 (explaining that the “details of the results have not been included because much of the data reviewed are sensitive and/or confidential, and could compromise the integrity of individual businesses, systems or enforcement capability if released”). Id. The Department did not further elaborate on the agency's justification for non-disclosure.

         4. The Proposed Rule

         In February 2016, the Department published the Proposed Rule in the Federal Register, pursuant to its authority under the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”). Id. at 004477-88. The agency explained that the Proposed Rule “implements MSA section 307(1)(Q), which makes it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish taken, possessed, transported, or sold in violation of any foreign law or regulation or any treaty or binding conservation measure to which the United States is a party.” Id. at 004478 (referencing 16 U.S.C. § 1857(1)(Q)). The Department thus identified 16 U.S.C. § 1857(1)(Q) as the source of its authority to regulate IUU fishing and seafood fraud.

         The Proposed Rule set forth the data-collection requirements of the traceability program and the species that initially would be subject to those requirements. As a condition of importing both wild-caught and farm-raised seafood into the United States, the Proposed Rule required domestic importers of seafood to obtain a permit from the Department, collect and electronically report supply-chain data to the federal government, and maintain certain types of records for five years. Id. at 004477-79, 004484. The Proposed Rule made clear that importing any priority species without a valid permit or submitting inaccurate or incomplete traceability data would constitute a violation of the MSA. Id. at 004479, 004484-86, 004489. It also subjected importers to periodic, at-will audits. Id. at 004484, 004489. The Proposed Rule also identified the priority species to which the traceability requirements would apply. See id. at 004480.

         In conjunction with publishing the Proposed Rule, the Department prepared both a draft Regulatory Impact Review, in compliance with Executive Order 12866, and an initial Regulatory Flexibility Analysis, as required under the Regulatory Flexibility Act, 5 U.S.C. § 604. Id. at 004486-87, 004498-520. The purpose of those analyses was to determine the economic impact of the Proposed Rule on U.S. consumers and businesses, including small entities. The Department estimated that the “industry-wide increase in annual costs to importers” would be $60, 000 in permit fees, plus “incremental costs” of systems development. Id. at 004487. That conclusion was premised on the key assumption that, “to some extent, ” seafood suppliers already were collecting the data required by the Proposed Rule in order to comply with existing traceability programs, such as the European Union's Catch Documentation Program, whose data-collection requirements are similar to those of the Proposed Rule, or voluntary third-party verification schemes. Id. For instance, the agency reasoned that, because most foreign seafood suppliers that export to the United States had already incurred costs associated with the E.U. traceability program's data-collection requirements, the Proposed Rule's similar requirements would impose only “incremental” costs on those suppliers. Those incremental costs, the agency posited, might be passed onto U.S.-based importers, but would not materially increase their operational costs. Id. at 004487, 004502, 004504-05. The Department ultimately concluded that U.S. entities “would not be significantly affected by this action” and that there would be no “significant adverse or long-term economic impacts” on U.S. small businesses. Id. at 004486-87.

         Also, as required by the Regulatory Flexibility Act, the Department evaluated “several alternatives” to the traceability program, including a “no-action alternative” and “various combinations of data reporting and recordkeeping.” Id. at 004487. The agency concluded, however, that the Proposed Rule better carried out IUU Task Force's seafood traceability recommendations and thus rejected the considered alternatives. Id.

         5. The Final Rule

         After a public comment period on the Proposed Rule, the Department published the Final Rule on December 9, 2016. Id. at 006907-28. The Final Rule became effective as of January 9, 2017, but does not require importers to begin to collect and report traceability data for priority species until January 1, 2018. Id. at 006907. The agency explained that it set the Rule's compliance date one year after its effective date in order to afford importers sufficient time to work with their suppliers to facilitate the requisite data collection and transfer. Id. at 006914-15.

         In response to public comments, the Final Rule altered the Proposed Rule in several key respects. The Final Rule: (1) exempts importers from providing vessel information for small-scale fishing vessels, in an effort to ease the regulatory burden associated with tracking such information; (2) reduces from five years to two years the amount of time importers will be required to maintain supply-chain records; (3) eliminates several categories of required records to reduce redundancy; and (4) stays indefinitely the Rule's application to shrimp and abalone. Id. at 006920- 21.

         Also, in response to public comments, the Department dramatically revised upward the cost estimates of its Regulatory Impact Review and Regulatory Flexibility Analysis. The agency's new estimate of industry-wide compliance costs increased from $60, 000 to $7, 850, 000 in the first year and $6, 075, 000 annually thereafter, with a possible “upper-bound” cost estimate of $20, 315, 225 in the first year and $18, 515, 225 for each year following. Id. at 006926. The agency attributed this significant cost increase to the fact that it had modified the “assumptions” and “methodology” used to calculate its cost estimates to reflect suggestions provided by Plaintiff National Fisheries Institute during the notice-and-comment period. Id. at 006925-26. Notwithstanding the significant increase in anticipated compliance costs, the agency did not deem those costs to be excessive. It reasoned that the industry-wide cost of compliance, even as revised, remained only a fraction (less than one half of one percent) of the $9 billion value of U.S. seafood imports. Id. Consistent with that rationale, the agency also found that the Rule's recordkeeping requirements would not “pose significant adverse or long-term economic impacts on small entities.” Id.

         B. Procedural Background

         Plaintiffs in this action are U.S.-based harvesters, importers, processors, and purchasers of seafood, as well as a trade group representing such entities, whose businesses will be affected by the Rule. They filed suit on January 6, 2017, challenging the legality of the Rule under the Administrative Procedure Act and the Regulatory Flexibility Act and seeking an order vacating and permanently enjoining the Rule's implementation. See Compl., ECF No. 1 [hereinafter Compl.]. In light of the Rule's impending compliance date, and as required under the MSA, the court granted Plaintiffs' Motion for Expedited Treatment of the case. See Pls.' Mot. for Expedited Treatment, ECF No. 6; January 23, 2017, Minute Order.

         Before the start of summary judgment briefing, the court received two motions to intervene, filed by entities seeking to defend the Rule. See Oceana, Inc., Nat. Res. Def. Council, Inc., Ctr. for Biological Diversity's Mot. to Intervene, ECF No. 24; Alaska Bering Sea Crabbers' Mot. to Intervene, ECF No. 43. The court granted one of those motions, permitting Intervenor-Defendant Alaska Bering Sea Crabbers to participate as a defendant in the litigation. See Mem. Op. & Order, ECF No. 50; see also Mem. Op. & Order, ECF No. 44.

         The matter before the court is now fully briefed by the original parties and the Intervenor-Defendant. Plaintiffs filed their Motion for Summary Judgment on April 25, 2017. Pls.' Mot. for Summ. J., ECF No. 48. Federal Defendants and the Intervenor-Defendant followed with their separate Oppositions and Cross-Motions for Summary Judgment on May 9, 2017. See Fed. Defs.' Cross-Mot. for Summ. J., ECF No. 56; Intervenor-Def. Alaska Bering Sea Crabbers' Cross-Mot. for Summ. J., ECF No. 57 [hereinafter ABSC Mot.]. The court heard argument on the parties' motions on June 7, 2017, and now turns to resolving their competing contentions.


         Ordinarily, cross-motions for summary judgment are reviewed under the standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56, a court may grant summary judgment when a party demonstrates that there is no genuine issue of material fact and shows it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. However, in cases such as this one that involve review of agency action under the Administrative Procedure Act, the Rule 56 standard does not apply. See Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C. 2007). Instead, “the district judge sits as an appellate tribunal” and “[t]he entire case on review is a question of law.” Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks omitted). In this posture, the court must decide “whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.” See Se. Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010).


         Plaintiffs seek to invalidate the Seafood Import Monitoring Program (the “Rule”) on several grounds. First, Plaintiffs contend that the Rule was promulgated in violation of the Secretary of Commerce's (the “Secretary”) rulemaking authority under the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) and the Appointments Clause of the United States Constitution. See Pls.' Mot. for Summ. J., ECF No. 48, Mem. in Supp., ECF No. 48-1 [hereinafter Pls.' Mot.], at 17-22. Second, Plaintiffs argue that Congress did not authorize the Department of Commerce (the “Department”) to regulate seafood fraud and, thus, the Department lacks the necessary statutory authority to issue the Rule. Id. at 13-17. Third, Plaintiffs assert that, even if the Department had the requisite rulemaking authority, the Rule is arbitrary and capricious, in violation of the Administrative Procedure Act (“APA”), because it was (1) formulated through the use of undisclosed data, and (2) based on insufficient, or contradictory, evidence. Id. at 22- 33. Finally, Plaintiffs challenge the adequacy of the Department's Regulatory Flexibility Analysis, which they charge fails to address both the increased costs associated with the Rule and the availability of less burdensome regulatory alternatives to combat IUU fishing. Id. at 34-37. The court addresses each claim in turn.

         A. Was the Rule Properly Promulgated?

         The court begins with Plaintiffs' contention that the Department promulgated, or issued, the Rule in violation of both the MSA and the Appointments Clause of the Constitution. Id. at 17- 22. That argument has three sub-parts. First, Plaintiffs contend that, although Congress properly delegated rulemaking authority to the Secretary of Commerce under the MSA, Congress did not grant the Secretary the power to sub-delegate that rulemaking authority to another agency official and, even if it did, the sub-delegation here was improper under the agency's organizational policy. Second, Plaintiffs assert that any delegation of rulemaking authority was improper because the administrative record contains no notice of that delegation. Third, Plaintiffs maintain that the Rule was promulgated by a Department employee who did not have power under the Appointments Clause of the Constitution to engage in rulemaking. Under any of these theories, Plaintiffs contend, the Rule must be vacated.

         1. Relevant Background Facts

         Before addressing the merits of Plaintiffs' arguments, the court sets forth the relevant background facts, some of which are in dispute. At the time the Rule was developed and promulgated, the Secretary of Commerce was Penny Pritzker. See Fed. Defs.' Answer, ECF No. 21 [hereinafter Fed. Defs.' Answer], ¶ 15. Per a Department of Commerce “Organizational Order, ” dated December 12, 2012, Secretary Pritzker delegated all rulemaking authority vested in her under the MSA to the Under Secretary of Commerce for Oceans and Atmosphere/Administrator of the National Oceanic and Atmospheric Administration (the “Administrator of NOAA”), who at the time was Kathryn Sullivan.[5] Id. ¶ 16. During the period Sullivan served as the Administrator of NOAA-NOAA is a sub-agency of the Department- Eileen Sobeck served as the Assistant Administrator for Fisheries, which is the top official at the National Marine Fisheries Service (“NMFS”), a “line office” within NOAA. Samuel D. Rauch III served as the Deputy Assistant Administrator for Regulatory Programs of NMFS. Id. ¶¶ 17-18.

         Plaintiffs and Federal Defendants agree that neither Pritzker nor Sullivan promulgated the Final Rule. They disagree, however, as to who did. Federal Defendants assert that Sobeck “exercised lawfully delegated power to issue the Final Rule as the Secretary's designee.” Fed. Defs.' Cross-Mot. for Summ. J., ECF No. 56, Mem. in Supp., ECF No. 56-1 [hereinafter Fed. Defs.' Mot.], at 43. In support, Federal Defendants point to an internal policy document, the “NOAA Organizational Handbook Transmittal No. 61, ” dated February 24, 2015, wherein the Administrator of NOAA (Sullivan) further sub-delegated the rulemaking authority under the MSA that she received from Pritzker to the Assistant Administrator for Fisheries (Sobeck).[6] Plaintiffs, on the other hand, contend that Sobeck did not issue the Final Rule. They insist that her subordinate, Rauch, promulgated the Rule based largely on the undisputed fact that Rauch, not Sobeck, signed the Final Rule, as published in the Federal Register on December 9, 2016. Pls.' Mot. at 8; Pls.' Combined Br. in Resp. to Cross-Mots. for Summ. J., ECF No. 62 [hereinafter Pls.' Reply], at 5-6; Fed. Defs.' Mot. at 41. Federal Defendants respond that Rauch's signature does not mean he in fact “issued” the Rule; rather, they assert that the same Handbook Transmittal that granted Sobeck power to issue the Rule delegated authority to Rauch to complete the ministerial task of signing the Final Rule. In other words, Federal Defendants argue that Rauch's signing of the Final Rule does not “constitute an exercise of rulemaking” and, thus, does not undermine their position that Sobeck issued the Rule.[7] Fed. Defs.' Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 65 [hereinafter Fed. Defs.' Reply], at 21, 24.

         This dispute over who promulgated, or issued, the Rule lies at the heart of Plaintiffs' contention that the Department's rulemaking violated both the MSA and the Appointments Clause. With this background in mind, the court now turns to those arguments.

         2. Does the MSA Authorize the Sub-Delegation of Rulemaking Authority?

         Plaintiffs first challenge the Secretary's authority to sub-delegate her rulemaking authority to subordinate agency officials. Under the MSA, Congress vested in “[t]he Secretary” the “general responsibility to carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this chapter.” 16 U.S.C. § 1855(d). It also authorized “[t]he Secretary” to “promulgate such regulations, in accordance with section 553 of Title 5, as may be necessary to discharge such responsibility or to carry out any other provision of this chapter.” Id.[8] Notably, the MSA defines the term “Secretary” for purposes of the Act to mean “the Secretary of Commerce or his designee.” Id. § 1802(39) (emphasis added). Plaintiffs read these two statutory provisions in combination to permit the Secretary of Commerce to delegate her rulemaking authority under the MSA to a “designee, ” but to prohibit that designee from, in turn, delegating rulemaking authority further down the chain of command. Pls.' Mot. at 18-19. The statute does not, Plaintiffs maintain, “authorize successive delegations of the sort that would have had to have occurred here.” Id. at 18.

         That argument is easily cast aside. The D.C. Circuit has held that where, as here, “a statute delegates authority to a federal officer or agency, sub-delegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent.” U.S. Telecom Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). Here, the MSA plainly delegates rulemaking authority to the Secretary of Commerce “or his designee, ” 16 U.S.C. § 1855(d) (emphasis added). Consequently, at the time in question, the statute granted rulemaking authority to either Pritzker or Pritzker's designee-Sullivan, the Assistant Administrator of NOAA-which means that, under U.S. Telecom Association, absent evidence of contrary congressional intent, either Pritzker or Sullivan presumptively could sub-delegate her rulemaking power to a subordinate. Plaintiffs point to no evidence of “contrary congressional intent” to rebut that presumption. Therefore, contrary to Plaintiffs' contention, Sullivan's decision to delegate her rulemaking power to Sobeck, a subordinate official within the agency, did not run afoul of the MSA.

         Plaintiffs also advance a fallback position. They maintain that, even if the MSA itself permits the Secretary's designee-the Assistant Administrator of NOAA-to sub-delegate rulemaking authority to a subordinate official, her sub-delegation to Sobeck was invalid because it violated NOAA's internal policies. Plaintiffs base that contention on their interpretation of Section 26 of the NOAA Organizational Handbook Transmittal No. 61 (the “NOAA Organizational Handbook” or “the Handbook”), which provides, in relevant part:

The Under Secretary/Administrator redelegates to the Assistant Administrator for Fisheries, with noted conditions and reservations, the authority to ...

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