Relentless Inc et al v. U.S. Department of Commerce et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
RELENTLESS INC., et al., )
)
Plaintiffs, )
)
v. ) C.A. No. 20-108 WES
)
U.S. DEPARTMENT OF COMMERCE, )
et al., )
)
Defendant. )
___________________________________)
OPINION AND ORDER
WILLIAM E. SMITH, District Judge.
A recently promulgated regulation requires commercial herring
fishing vessels in New England to pay the daily salaries of at-
sea monitors. Plaintiffs argue, inter alia, that the Magnuson-
Stevens Act does not permit industry-funded monitoring; the
regulation’s outsized impact on certain classes of fishing vessels
violates the National Standards set forth in the Magnuson-Stevens
Act; the process by which the agency adopted the regulation
violated the Regulatory Flexibility Act; and the regulation
violates the Commerce Clause by forcing fishing vessels to pay for
third-party monitors. For the reasons that follow, Plaintiffs’
Motion for Summary Judgment, ECF No. 37, is DENIED, and Defendants’
Cross-Motion for Summary Judgment, ECF No. 38, is GRANTED.1
1 The Court substitutes the Secretary of Commerce, Gina M.
Raimondo, for Wilbur L. Ross; Richard Spinrad, NOAA Administrator,
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I. BACKGROUND
A. Magnuson-Stevens Act
In “[r]espon[se] to depletion of the nation’s fish stocks due
to overfishing[,]” Congress passed the 1976 Magnuson–Stevens
Fishery Conservation and Management Act (“MSA” or “Act”), 16
U.S.C. §§ 1801–1884. Goethel v. U.S. Dept. of Com., 854 F.3d 106,
108–09 (1st Cir. 2017) (quoting Associated Fisheries of Me.,
Inc. v. Daley, 127 F.3d 104, 107 (1st Cir. 1997)). Through the
MSA, Congress sought to “take immediate action to conserve and
manage the fishery resources found off the coasts of the United
States” and “to promote domestic commercial and recreational
fishing under sound conservation and management principles.” 16
U.S.C. § 1801(b)(1), (3).
The MSA’s primary mechanism is the promulgation and
enforcement of “fishery management plans,” each of which regulates
a fishery (defined as “one or more stocks of fish which can be
treated as a unit for purposes of conservation and management”) in
a given region. Id. § 1802(13)(A); see also id. § 1853. A fishery
management plan, which is usually developed by the region’s fishery
management council, must specify the “conservation and management
measures” that are “necessary and appropriate” to “prevent
overfishing and rebuild overfished stocks, and to protect,
for Neil Jacobs; and Janet Coit, Assistant Administrator for NOAA
Fisheries, for Chris Oliver. See Fed. R. Civ. P. 25(d).
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restore, and promote the long-term health and stability of the
fishery.” Id. § 1853(a)(1)(A). Similarly, a plan may “prescribe
such other measures, requirements, or conditions and restrictions
as are determined to be necessary and appropriate for the
conservation and management of the fishery.” Id. § 1853(b)(14).
In addition to the plan itself, the council must develop
regulations that would be “necessary or appropriate” to implement
the plan. Id. § 1853(c).
The Secretary is tasked with reviewing the plan for
consistency with applicable law and publishing it for a sixty-day
period of notice and comment. Id. § 1854(a)(1). After considering
all comments, “[t]he Secretary shall approve, disapprove, or
partially approve [the] plan.” Id. § 1854(a)(3). The implementing
regulations must, too, be promulgated through notice and comment,
with a publication period of fifteen to sixty days. Id. § 1854(b).
The Secretary has delegated these responsibilities to the National
Oceanic and Atmospheric Administration, the parent agency of the
National Marine Fisheries Service (“NMFS”). See Goethel, 854 F.3d
at 109 n.1. The adoption of a plan and its implementing rules are
subject to judicial review. See id. § 1855(f).
B. Industry-Funded Monitoring Omnibus Amendment
The current herring fishery management plan was implemented
by the New England Fishery Management Council (“Council”) in 2000.
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AR17104.2 Among other provisions, the plan includes an annual
catch limit and various restrictions on when and where herring may
be caught. See 50 C.F.R. § 648.200. Since 2007, the fishery has
been subject to the Standardized Bycatch Reporting Methodology
(“SBRM”) program, through which bycatch is monitored by on-board,
government-funded observers. See AR17293. The frequency of SBRM
coverage varies based on available funding. See MSA Provisions;
Fisheries of the Northeastern U.S.; Industry-Funded Monitoring
Omnibus Amendment (“Final Rule”), 85 Fed. Reg. 7425 (Feb. 7, 2020)
(to be codified at 50 C.F.R. pt. 648) (AR17742).
In 2017, the Council adopted the Industry-Funded Monitoring
Omnibus Amendment (“Omnibus Amendment”), later approved by the
National Marine Fisheries Service (“NMFS”), which provided for on-
board human monitoring to be funded by the herring industry. See
Final Rule, 85 Fed. Reg. at 7414-19 (AR17731-36). NMFS pays for
administrative costs - such as training and certification of
monitors, data processing, and liaison activities with various
partners - while the herring industry is required to fund the
travel expenses and daily salaries of the monitors. Id. at 7415-
16 (AR17732-33). Through data collected by the monitors regarding
retained and discarded catch, the program is intended to increase
the accuracy of catch estimates for herring and incidental catch
2 The Court cites the Administrative Record, ECF Nos. 21-30,
34, using the Bates numbering system utilized by the parties.
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species. Id. at 7417-18 (AR17734-35). The program has a coverage
target – including both SBRM and industry-funded monitoring – of
fifty percent. Id. at 7417 (AR17734). The two types of monitoring
do not co-occur on any one trip. Id. Therefore, industry-funded
monitoring only applies to the delta between the percentage of
trips with SBRM monitoring (which varies based on available
funding) and the fifty-percent target.
For each trip in which a vessel declares that it will catch
herring, NMFS informs the vessel operator whether an at-sea monitor
is required. However, the monitoring requirement will be waived
if (1) an at-sea monitor is not available, (2) the vessel has
midwater trawl gear and intends to operate as a wing vessel
(meaning that it will not carry any fish), or (3) the vessel
intends to land less than fifty metric tons of herring during the
trip. Id. at 7418 (AR17735). Midwater trawl vessels - as opposed
to bottom trawlers like Plaintiffs, see Lapp Decl. ¶ 4, ECF No.
37-4 – can avoid the at-sea monitoring requirement by using
electronic monitoring devices in combination with portside
sampling protocols. Id. at 7419-420 (AR17736-37). NMFS estimates
that the cost of an at-sea monitor is $710 per day. Id. at 7420
(AR17735).
NMFS published the proposed amendment on September 19, 2018,
and the sixty-day comment period ended on November 19, 2018. Id.
at 7414 (AR17731) (citing 83 Fed. Reg. 47,326). NMFS received
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seven comment letters criticizing the proposal, but nevertheless
approved the Omnibus Amendment on December 18, 2018. Id. at 7424
(AR17741). In a process that partially overlapped the Omnibus
Amendment approval process, NMFS published the proposed rule
implementing the amendment on November 7, 2018, with a forty-
seven-day comment period ending on December 24, 2018. Id. at 7414
(AR17731) (citing 83 Fed. Reg. 55,665). Again, notwithstanding
twenty comment letters, NMFS adopted and promulgated the rule
(“Final Rule”). Id. at 7414, 7422 (AR17731, 17739).
C. Plaintiffs’ Regulatory Challenge
Plaintiffs are the operators of two fishing vessels that catch
herring and other species. See Letter from Seafreeze to
Herring/Observer Committee, June 30, 2015, AR17801. Unlike other
fishing vessels, Plaintiffs freeze their catch on-board. Id.
Therefore, Plaintiffs’ trips are longer, and they have greater
flexibility to choose what to harvest during each trip. Id.
Seafreeze Ltd., a sister company of Plaintiff Seafreeze Fleet LLC,
submitted comments during the regulatory approval process, raising
arguments similar to those advanced by Plaintiffs here. See Final
Rule, 85 Fed. Reg. at 7422-26 (AR17739-743).
II. LEGAL STANDARD
Challenges to fishery management plans are reviewed pursuant
to the Administrative Procedure Act (“APA”). See 16 U.S.C. §
1855(f)(1)(B). “[A] motion for summary judgment is simply a
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vehicle to tee up a case for judicial review . . . .” Bos.
Redevelopment Auth. v. Nat’l Park Serv., 838 F.3d 42, 47 (1st Cir.
2016) (citing Mass. Dep’t of Pub. Welfare v. Sec’y of Agric., 984
F.2d 514, 526 (1st Cir. 1993)). “Because the APA standard affords
great deference to agency decisionmaking and because the
Secretary’s action is presumed valid, judicial review, even at the
summary judgment stage, is narrow.” Associated Fisheries of Me.,
127 F.3d at 109 (citing Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 415–16 (1971)). The Court will set aside the
regulation only if it is “‘arbitrary, capricious, an abuse of
discretion,’ or ‘without observance of procedure required by law,’
or otherwise contrary to law.” Campanale & Sons, Inc. v. Evans,
311 F.3d 109, 116 (1st Cir. 2002) (quoting 5 U.S.C. § 706(2)(A)-
(D)). The Court defers to the agency’s factfinding “unless ‘the
record evidence would compel a reasonable factfinder to make a
contrary determination.’” Guzman v. INS, 327 F.3d 11, 15 (1st
Cir. 2003) (quoting Aguilar–Solis v. INS, 168 F.3d 565, 569 (1st
Cir. 1999)).
III. DISCUSSION
According to Plaintiffs, the Secretary3 has, “without
Congressional authorization, ‘erected’ a ‘new office[] and sent
hither swarms of officers to harass’ Plaintiffs ‘and eat out their
3 The Court refers to Defendants collectively as the
“Secretary.”
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substance.’” Mem. Supp. Pls.’ Mot. Summ. J. (“Pls.’ Mot.”) 1, ECF
No. 37-1 (quoting The Declaration of Independence para. 12 (U.S.
1776)). More specifically, Plaintiffs claim that the Omnibus
Amendment and the Final Rule violate the MSA, the APA, the
Regulatory Flexibility Act, and the Commerce Clause.
A. Statutory Interpretation of the MSA
Plaintiffs first argue that the MSA does not allow industry-
funded monitoring in these circumstances. The First Circuit has
framed judicial review of an agency’s statutory interpretation as
a three-step process:
First, we assess the statutory text to determine whether
Congress has directly spoken to the precise question at
issue. If so, courts, as well as the agency, must give
effect to the unambiguously expressed intent of
Congress. Second, if Congress's intent is uncertain, we
decide whether and to what extent the agency's
interpretation is entitled to deference. Finally, we
evaluate the agency’s interpretation under the governing
standard to determine whether it exceeds the bounds of
the permissible.
Lovgren v. Locke, 701 F.3d 5, 21 (1st Cir. 2012) (citations and
quotations omitted). As explained below, the Court concludes that
Congress has not spoken unambiguously on the subject, and that the
Secretary’s interpretation satisfies Chevron’s deferential review.
See Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc.,
467 U.S. 837, 842-43 (1984).
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i. Whether Congress Has Directly Spoken
The Secretary argues that the following statutory provisions
of the MSA, when construed in a harmonious fashion, demonstrate
that Congress has unambiguously provided for industry-funded
monitoring under these circumstances. See Mem. of Law in Supp. of
Defs.’ Cross-Motion for Summ. J. and in Opp’n to Pls.’ Mot. For
Summ. J. 11-12, ECF No. 38-1.
First, 16 U.S.C. § 1853(b)(8) states that a fishery management
plan may “require that one or more observers be carried on board
a vessel of the United States engaged in fishing for species that
are subject to the plan, for the purpose of collecting data
necessary for the conservation and management of the fishery.”
Therefore, the Secretary is indisputably allowed to require the
presence of monitors. (Plaintiffs’ challenge is directed only at
program’s funding mechanism. See Pls.’ Mot. 26; Pls.’ Mem. in
Resp. to Defs.’ Cross-Mot. for Summ. J. and Reply to Opp’n to Pls.’
Mot. For Summ. J. (“Pls.’ Resp.”) 4, ECF No. 40.)
The Secretary’s next interpretive hook is 16 U.S.C.
§ 1853(a), which requires each fishery management plan to include
the “conservation and management measures” that are “necessary and
appropriate” to “prevent overfishing and rebuild overfished
stocks, and to protect, restore, and promote the long-term health
and stability of the fishery.” Id. § 1853(a)(1)(A), (2); see also
id. § 1853(c) (requiring a fishery management plan to be
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accompanied by proposed regulations that are “necessary or
appropriate” to implement the plan). The Secretary contends that,
to ensure the accuracy of catch estimates and the integrity of
annual catch limits in the New England herring fishery, it is
necessary and appropriate to place the financial burden of
monitoring on industry.
Finally, 16 U.S.C. § 1858(g)(1)(D) allows the Secretary to
sanction any vessel owner who has not made “any payment required
for observer services provided to or contracted by an owner or
operator.” Plaintiffs theorize that this provision applies only
to those limited fisheries in which Congress has explicitly
provided for observer fees. See Pls.’ Resp. 4. However, this
argument elides the fact that sanctions may be issued for failure
to pay for services “contracted by an owner or operator.” 16
U.S.C. § 1858(g)(1)(D) (emphasis added). In the three provisions
that explicitly allow the Secretary to charge fees for monitoring,
there are no contracts between vessel owners and observers.
Rather, the vessel owners pay the fees to NMFS, which hires
observers and assigns them to fishing trips. Thus, as explained
in the only two cases to address this issue, the statute’s mention
of contracts “would be unnecessary if the MSA prohibited the very
type of industry funding at issue in this case.” Loper Bright
Enters. v. Raimondo, CV 20-466 (EGS), 2021 WL 2440511, at *11
(D.D.C. June 15, 2021) (quoting Goethel v. Pritzker, 15-CV-497-
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JL, 2016 WL 4076831, at *5 (D.N.H. July 29, 2016), aff’d on other
grounds sub nom. Goethel v. U.S. Dept. of Com., 854 F.3d 106 (1st
Cir. 2017)).4 However, the words “or contracted by” are fleeting
and unspecific, so it goes too far to say that Congress has
directly spoken in the Secretary’s favor.
Conversely, Plaintiffs contend that Congress has spoken
directly in their favor. As they point out, there are statutes
that expressly authorize the Secretary to collect fees to fund
observer programs, and none of them apply here. Plaintiffs
therefore contend that approbation of this regulation would render
the three statutes superfluous because, whether or not Congress
provided for the collection of observer costs, the Secretary could
charge such costs to fishing vessels. See Pls.’ Mot. 23-29.
Three such statutes exist. First, the agency must “collect
a fee to recover the actual costs directly related to the
management, data collection, and enforcement of any . . . limited
access privilege program.”5 16 U.S.C. § 1854(d)(2)(A). These
4 The district court in Goethel ruled that the claims were
both time-barred and lacked merit. Goethel v. Pritzker, 15-CV-
497-JL, 2016 WL 4076831, at *1 (D.N.H. July 29, 2016). The First
Circuit upheld that decision based on the statute of limitations,
without reaching the merits of the claims. Goethel v. U.S. Dept.
of Com., 854 F.3d 106, 108 (1st Cir. 2017).
5 These programs are complicated regulatory mechanisms through
which fishing vessels can receive exclusive rights to harvest
portions of a fishery’s annual catch limit. See 16 U.S.C. §
1802(23), (26), (27); see generally id. § 1853a.
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fees, which “shall not exceed 3 percent” of the value of the catch,
are deposited into a fund earmarked for the administration and
implementation of the program. Id. §§ 1854(d)(2)(B-C),
1855(h)(5)(B). Second, the North Pacific Council may establish
fishery research plans that require observers to “be stationed on
fishing vessels” and that “establish[] a system . . . of
fees . . . to pay for the cost of implementing the plan.” 16
U.S.C. § 1862. Third, the Secretary may station observers on
certain foreign fishing vessels and require the vessels to make
payments into the Foreign Fishing Observing Fund, which is used to
maintain the program. Id. § 1827(b), (d), (e).
But, because those statutes involve “fee-based program[s,]”
they are distinguishable “from the industry-funded observer
measures at issue here, in which the fishing vessels contract with
and make payments directly to third-party monitoring service
providers.” Loper, 2021 WL 2440511, at *12. This distinction
matters. Absent a statutory mandate to the contrary, the
Miscellaneous Receipts Statute requires that fees be deposited in
the Treasury without being earmarked for NMFS activities. See 31
U.S.C. § 3302(b). Therefore, were NMFS to collect the fees here,
it could not keep the money. The above-mentioned statutory
programs, on the other hand, allow NMFS to keep the money, using
it to pay for any or all aspects of the observer program, including
NMFS’s administrative costs. See 16 U.S.C. §§ 1827(e),
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1853a(d)(2), 1855(h)(5)(B), 1862(d). Instead of collecting fees,
the instant program requires fishing vessels to pay third-party
monitors directly. Because the payments never enter NMFS’s
pockets, the Miscellaneous Receipts Statute is not violated.
Importantly, though, this framework is less advantageous than the
statutory programs, as NMFS must bear all of its internal costs of
administering the program.
Accordingly, there is a meaningful difference between the
monitoring program created by the Omnibus Amendment and the
statutory observer programs. The Secretary’s interpretation of
the MSA does not render the other three statutory provisions
superfluous. See Loper, 2021 WL 2440511, at *12 (holding the
same). With statutory currents flowing in all directions, the
Court concludes that Congress’s intent regarding industry-funded
monitoring is ambiguous, and the inquiry cannot end at step one.6
6 Pointing to Anglers Conservation Network v. Pritzker, 139
F. Supp. 3d 102 (D.D.C. 2015), Plaintiffs argue that the Secretary
has already anchored herself to the position that industry-funded
monitoring is prohibited under the MSA. See Pls.’ Mot. 33-34. In
Anglers, the Mid–Atlantic Fisheries Management Council had
proposed a plan in which an observer would be stationed on every
small mesh bottom trawl mackerel trip. NMFS rejected the proposal,
and an environmental group sued, seeking to reverse NMFS’s
decision. The Secretary argued that the plan would have required
NMFS “to augment its budget by accepting fees from the fishing
industry[,]” thus violating the Miscellaneous Receipts Statute, 31
U.S.C. § 3302(b). Anglers, 139 F. Supp. 3d at 116. That argument
is entirely consistent with the Secretary’s position in the current
litigation: that the herring monitoring program cannot be funded
through fees paid to NMFS, but that it can operate by requiring
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ii. Level of Deference
The next question is “whether and to what extent the agency’s
interpretation is entitled to deference.” Lovgren, 701 F.3d at
21. An agency’s statutory interpretation warrants Chevron
deference “when it appears that Congress delegated authority to
the agency generally to make rules carrying the force of law, and
that the agency interpretation claiming deference was promulgated
in the exercise of that authority.” United States v. Mead Corp.,
533 U.S. 218, 226–27 (2001); see also Chevron, 467 U.S. at 842-
43. In other words, Chevron applies where Congress gave the agency
the “power to engage in adjudication or notice-and-comment
rulemaking.” Mead, 533 U.S. at 227. Conversely, where an agency’s
interpretation does not have the force of law – such as in an
opinion letter – the weaker Skidmore deference usually governs.
See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
Here, Congress delegated authority to make rules implementing
the MSA to the Secretary, who in turn assigned that power to the
National Oceanic and Atmospheric Administration and NMFS. See
Goethel, 854 F.3d at 109 n.1. These rules “have the full force
and effect of law.” Hadaja, Inc. v. Evans, 263 F. Supp. 2d 346,
industry to pay third-party monitors directly. Thus, Anglers does
not help Plaintiffs’ cause.
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349 (D.R.I. 2003) (citing 16 U.S.C. §§ 1854, 1855). Therefore,
Chevron deference applies.
iii. Reasonableness under Chevron
Under Chevron, the Court must “accept an agency’s reasonable
resolution of an ambiguity in a statute that the agency
administers.” Michigan v. EPA, 576 U.S. 743, 751 (2015) (citing
Chevron, 467 U.S. at 842-43). In other words, an interpretation
will be upheld if it “represents a reasonable accommodation of
conflicting policies that were committed to the agency’s care.”
Chevron, 467 U.S. at 845.7
Plaintiffs argue that the Secretary’s interpretation is
unreasonable because it confers on the agency a power not provided
by Congress. See Pls.’ Mot. 26-27. Specifically, Plaintiffs
7 Plaintiffs assert that “Chevron’s view of agency deference
has . . . been curtailed [since Goethel, 2016 WL 4076831], at least
through implication, by Kisor v. Willkie, 139 S. Ct. 2400 (2019).”
Pls.’ Mot. 25. But Kisor, which dealt solely with deference to
agency interpretations of regulations, has little to say about
agency interpretation of statutes. See 139 S. Ct. 2408. To the
extent Plaintiffs assert that Kisor altered Chevron by indicating
that Chevron deference is not merely a rubber stamp, that
proposition has long been clear. See, e.g., Util. Air Reg. Group
v. EPA, 573 U.S. 302, 321 (2014) (holding agency’s interpretation
to be unreasonable, despite Chevron deference); Michigan v. EPA,
576 U.S. 743, 751 (2015) (holding agency’s interpretation to be
unreasonable under Chevron deference, without step-one analysis);
AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 397 (1999) (same).
In a throwaway line, Plaintiffs also state that Chevron “is
inconsistent with the Due Process Clause of the Fifth Amendment
and judicial independence and should be abandoned.” Pls.’ Resp.
18. Of course, though, Chevron is binding precedent that cannot
be ignored by district courts, including this one.
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point to the casus omissus doctrine, which states that “nothing is
to be added to what the text states or reasonably implies.” Gorss
Motels, Inc. v. Safemark Systems, LP, 931 F.3d 1094, 1102 (11th
Cir. 2019) (quoting Antonin Scalia & Bryan Garner, Reading Law:
The Interpretation of Legal Texts § 8, at 93 (2012)). As
Plaintiffs emphasize, 16 U.S.C. § 1853(b)(8) - which states that
the Secretary can force fishing vessels to allow monitors on their
boats - does not mention an industry-funding model (or any funding
mechanism at all). Indeed, if § 1853(b)(8) were the sole statute
relied upon by the Secretary, the casus omissus doctrine might be
more helpful. But instead, the Secretary relies on provisions
that empower the Secretary to take a wide range of actions to
effectuate the goals of the MSA.
To start, Congress has tasked the Secretary with ensuring
that the maximum number of fish can be caught, while simultaneously
preventing overfishing. 16 U.S.C. § 1851(a)(1). The most valuable
tool for accomplishing these goals is the imposition of annual
catch limits. See 50 C.F.R. § 600.310(b)(1)(iii). Of course, the
Secretary’s ability to accurately track annual catches is crucial
to her efforts to enforce those limits. To this end, Congress
recognized that human observers could play an important role in
improving the accuracy and reliability of NMFS’s tracking, as shown
by the express authorization of observer requirements in fishery
management plans. See 16 U.S.C. § 1853(b)(8). As for the funding
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of these observers, the statutory clues provide some support for
the idea that the Secretary can impose costs on industry. See id.
§ 1858(g) (1) (D) (allowing imposition of sanctions for failure to
pay for “observer services provided to or contracted by an owner
or operator”). Moreover, Congress gave the Secretary the power to
take any measures that are “necessary and appropriate” to achieve
the MSA’s conservation goals. Id. §§ 1853(a)(1)(A). Given the
integral nature of catch estimates to the MSA’s goals, along with
the agency’s financial incapacity to fully fund a monitoring
program, it was reasonable for the Secretary to conclude that
industry-funded monitoring is permitted under the MSA. See Final
Rule, 85 Fed. Reg. at 7414 (AR17731) (“This amendment remedies
NMFS disapprovals of previous Council proposals for industry-
funded monitoring that either required NMFS to spend money that
was not yet appropriated or split monitoring costs between the
fishing industry and NMFS in ways that were inconsistent with
Federal law.”).
The legislative history reinforces this conclusion. Prior to
the passage of § 1853(b)(8), which statutorily authorized at-sea
monitoring, the Secretary had operated a North Pacific monitoring
program in which vessel operators directly paid third-party
monitors. See Loper, 2021 WL 2440511, at *13 (citing Groundfish
of the Gulf of Alaska, Groundfish Fishery of the Bering Sea &
Aleutian Islands Area, 55 Fed. Reg. 4839-02, 4840 (Feb. 12, 1990)).
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By enacting § 1853(b)(8), Congress arguably ratified NMFS’s usage
of industry-funded monitoring programs. Moreover, in the years
since, “[c]ongressional committees have continued to take note of
such industry-funded programs.” Loper, 2021 WL 2440511, at *13
(citations omitted).
Thus, in keeping with the statutory text, the only two on-
point decisions (Loper and Goethel), and the legislative history,
the Court concludes that the Secretary reasonably interpreted the
MSA to authorize the Omnibus Amendment.
B. National Standards
Fishery management plans must comply with ten “National
Standards.” 16 U.S.C. § 1851(a). Casting a wide net, Plaintiffs
contend that the industry-funded monitoring program violates five
of them.
i. National Standard One
The first standard provides that “[c]onservation and
management measures shall prevent overfishing while achieving, on
a continuing basis, the optimum yield from each fishery.” 16
U.S.C. § 1851(a)(1). “The determination of [optimum yield] is a
decisional mechanism for resolving the Magnuson-Stevens Act's
conservation and management objectives, achieving [a fishery
management plan]’s objectives, and balancing the various interests
that comprise the greatest overall benefits to the Nation.” 50
C.F.R. § 600.310(b)(2)(ii).
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Plaintiffs argue that the monitoring exemption for trips
landing less than fifty metric tons of herring does not serve these
goals. Pls’ Mot. 30. They contend that this rule unfairly burdens
boats with on-board freezing capacity, which tend to take longer
trips, thus leading to larger catches per trip. Id. Instead of
a per-trip cutoff, Plaintiffs say, a per-day cutoff should have
been used. See id. at 30-32.
However, National Standard One simply states that yield
should be as high as it can be while avoiding the risk of
overfishing. See 16 U.S.C. § 1851(a)(1). The incongruity between
Plaintiffs’ argument and this standard is illustrated by
Plaintiffs’ reliance on Western Sea Fishing Co. v. Locke, 722 F.
Supp. 2d 126 (D. Mass. 2010). There, the court held that NMFS’s
denial of the plaintiff’s application for a fishing license was
“not rationally related to achieving optimum yield” because there
was “simply no evidence or contention of a current danger of
overfishing.” Id. at 140. Importantly, relying on the fact that
the fishery industry had not been reaching the annual catch limit,
the court held that the license denial did not help to avoid
surpassing the yearly limit. Id. As Plaintiffs note here,
Atlantic herring were not overfished at the time the industry-
funded monitoring regulations were implemented.8 However,
8 Just because a fishery is not approaching overfished status
does not mean that NMFS cannot institute a fishery management plan.
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Plaintiffs make no argument that the industry-funded monitoring
rule will change the optimum yield or the industry’s ability to
reach that yearly level. Their argument simply concerns equity
among the various participants in the herring fishery. National
Standard One says nothing about those concerns.
ii. National Standard Two
Under the second standard, fishery management plans must “be
based upon the best scientific information available.” 16 U.S.C.
§ 1851(a)(2). Noting that herring was not overfished at the time
that the regulation was promulgated, Plaintiffs argue there is no
scientific data to indicate that more monitoring would help prevent
overfishing. Pls.’ Mot. 31. The Court disagrees.
First, common sense instructs that additional data collection
will lead to more accurate catch estimates. Moreover, National
Standard Two “‘does not mandate any affirmative obligation on
[NMFS’] part’ to collect new data.” Massachusetts v. Pritzker, 10
F. Supp. 3d 208, 220 (D. Mass. 2014) (quoting Commonwealth of Mass.
by Div. of Marine Fisheries v. Daley, 10 F. Supp. 2d 74, 77 (D.
Mass. 1998)). In order to successfully challenge a fishery
management plan under National Standard Two, a plaintiff must point
See Anglers Conservation Network v. Pritzker, 139 F. Supp. 3d 102,
113 (D.D.C. 2015). And once a fishery management plan is in the
works, the Secretary is explicitly tasked with preventing
overfishing, not just remediating extant problems. See, e.g., 16
U.S.C. § 1853(a)(1)(A).
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to specific scientific data that were ignored by the agency. See
Massachusetts ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d
23, 30 (1st Cir. 1999) (“If no one proposed anything better, then
what is available is the best.”). Because Plaintiffs do not point
to any information that was ignored, National Standard Two lends
no wind to their sails.9
iii. National Standard Six
The sixth standard provides that “[c]onservation and
management measures shall take into account and allow for
variations among, and contingencies in, fisheries, fishery
resources, and catches.” 16 U.S.C. § 1851(a)(6). “There is no
requirement in national standard 6 or anywhere else in the statute
that defendant finely attune its regulations to each and every
fishing vessel in the offshore fishery.” Ace Lobster Co. v. Evans,
9 Plaintiffs also make the curious argument that observers
have been assigned to a higher percentage of Plaintiffs’ fishing
trips than those of other boats, and that this disparity is
unsupported by scientific reasoning. See Pls.’ Mot. 9, 31.
However, the monitoring program at issue had not yet started when
these issues were briefed, so the higher observer rate cited by
Plaintiffs must be part of a different program, likely the
government-funded SBRM program. See Pls.’ Second Notice of Facts
Subsequent to Filing Summ. J. 1, ECF No. 45 (explaining that
monitoring requirement had not yet begun); AR17805. The Omnibus
Amendment seeks to augment the SBRM program such that fifty percent
of herring fishing trips are covered by one program or the other.
Final Rule, 85 Fed. Reg. 7417 (Feb. 7, 2020) (to be codified at 50
C.F.R. pt. 648) (AR17734). Thus, to the extent that Plaintiffs
are subject to greater rates of a SBRM monitoring, this disparity
will lead to Plaintiffs paying for fewer at-sea monitors than they
would have otherwise, not more.
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165 F. Supp. 2d 148, 182 (D.R.I. 2001). Rather, the standard
merely requires the regulation to “be flexible enough to allow
timely response to resource, industry and other national and
regional needs.” Id. at 181–82 (quoting J.H. Miles and Co. v.
Brown, 910 F. Supp. 1138, 1155 (E.D. Va. 1995)).
Plaintiffs do not contend that the rule lacks flexibility to
adapt to future developments. Instead, Plaintiffs complain that
“[t]he Final Rule takes no notice that Plaintiffs are multi-species
fishers.” Pls.’ Mot. 31. This harkens back to the argument first
made under National Standard One. See Pls.’ Mot. 30. Plaintiffs’
boats, due to their on-board freezing capabilities, are built to
remain at sea for much longer trips (7-14 days) than other boats
(2-3 days). See AR17710-15. Under the Final Rule, Plaintiffs
bear a greater regulatory burden than other boats. To illustrate,
assume that Plaintiffs and certain other boats all tended to catch
15 metric tons of herring per day. Plaintiffs, with average trip
lengths exceeding 7 days, would be subject to the monitoring
requirement because they would catch far more than 50 metric tons
per trip. The non-freezer boats, even at the same rate of 15
metric tons per day, would not hit the cutoff on their 2- or 3-
day trips. Thus, a per-day threshold would be better for
Plaintiffs.
The Final Rule discussed this exact complaint, stating that
“the Council explicitly considered measures to address
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[Plaintiffs’] concern about disproportional impacts on its
vessels, including considering alternatives for coverage waivers
for trips when landings would be less than 20-percent herring or
less than 50 mt of herring per day.” Final Rule, 85 Fed. Reg. at
7426 (AR17743). Nonetheless, the agency decided against those
measures because “the potential for a relatively high herring
catches per trip aboard [Plaintiffs’] vessels warranted additional
monitoring.” Id.10 However, this explanation arguably begs the
question: Why should the metric for “high herring catches” be
keyed to trips, not days? Especially since the primary goal of
monitoring – ensuring optimum yield – is based on a year-long
period, not a number of trips.
In Ace Lobster, the Secretary imposed a flat cap on the number
of lobster traps that any fishing vessel could utilize. 165 F.
Supp. 2d at 153. The plaintiffs pointed out that, prior to the
10 In the midst of their arguments under the National
Standards, Plaintiffs also assert that the per-trip waiver is
“[o]ne of the unexplained arbitrary and capricious aspects of the
Final Rule.” Pls.’ Mot. 30. Based on NMFS’s determination that
the increased burden on Plaintiffs was justified by their capacity
for high herring catches, the Court concludes that the waiver is
not arbitrary and capricious. See Hall v. Evans, 165 F. Supp. 2d
114, 128 (D.R.I. 2001) (noting that, because a decision between
alternative fishery conservation measures presents “a classic
example of a factual dispute the resolution of which implicates
substantial agency expertise[,]” an agency’s decision cannot be
set aside unless “the administrative record is so devoid of
justification . . . that the decision is necessarily arbitrary and
capricious” (internal quotation marks and citations omitted)).
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regulation’s implementation, certain boats used as many as 5,000
traps, while others used as few as 600. Id. at 182. They thus
argued that the flat cap unfairly burdened those vessels with
historically larger capacities. Id. However, the plaintiffs asked
too much of the standards; the agency’s failure to “finely attune
its regulations to each and every fishing vessel in the offshore
fishery” was insufficient to sink the rule. Id. Moreover, “NMFS
included adaptive management measures in the Final Rule that
w[ould] enable future consideration of state/federal collaboration
efforts, including trap reductions based on historical
participation[,]” thus indicating compliance with National
Standard Six. Id. (internal quotation marks and citation omitted).
Same here. Plaintiffs note that “the record reveals no other
vessels . . . in the Atlantic herring fleet” like theirs: boats
with freezing capacity that catch multiple species during lengthy
trips. Pls.’ Mot. 10. Although that fact may engender sympathy
for two disproportionately burdened businesses, it ultimately
weighs against Plaintiffs’ argument. The Secretary is not required
to alter regulatory metrics in order to accommodate two vessels.
As this Court has stated, the National Standards are not violated
where the agency reasonably believes that a regulation “would
benefit the overall fishery to the (unfortunate) detriment of
certain fishermen.” Hadaja, Inc. v. Evans, 263 F. Supp. 2d 346,
355 (D.R.I. 2003) (citing Alliance Against IFQs v. Brown, 84 F.3d
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343, 349 (9th Cir. 1996); Hall v. Evans, 165 F. Supp. 2d 114, 146-
47 (D.R.I. 2001)). Rather, “[t]he Secretary is allowed . . . to
sacrifice the interest of some groups of fishermen for the benefit
as the Secretary sees it of the fishery as a whole.” Fishermen’s
Finest, Inc. v. Locke, 593 F.3d 886, 899 (9th Cir. 2010) (citation
omitted). The record indicates that the Secretary did exactly
that, determining that the per-trip exemption was the best option
for the fishery as a whole and that any extra burden on Plaintiffs
would not be as large as they claimed. See Final Rule, 85 Fed.
Reg. at 7417 (AR17734). Lastly, after two years, NMFS will review
the rule and make “a framework adjustment or an amendment to the
Herring [fishery management plan], as appropriate[,]” id., thus
complying with the requirement for flexibility. National Standard
Six is satisfied.
iv. National Standards Seven and Eight
The seventh standard requires the Secretary, “where
practicable, [to] minimize costs and avoid unnecessary
duplication.” 16 U.S.C. § 1851(a)(7). Relatedly, the eighth
standard provides that “[c]onservation 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 by utilizing economic and social
data that [are based upon the best scientific information
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available], 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.” Id. § 1851(a)(8).
Despite the concern for the economic health of fishing communities,
Congress “inten[ded] that conservation efforts remain the
Secretary’s priority, and that a focus on the economic consequences
of regulations not subordinate this principal goal of the MSA.”
N. Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d
62, 91–92 (D.D.C. 2007) (citing 50 C.F.R. § 600.345(b)(1)).
This inquiry is deferential, and the Secretary’s decision to
impose costs on fishing communities is protected by a “rule of
reason.” Little Bay Lobster, 352 F.3d at 470 (citing Daley, 127
F.3d at 110–111). The Court must “ask whether the Secretary has
examined the impacts of, and alternatives to, the plan [she]
ultimately adopts and whether a challenged failure to carry the
analysis further is clearly unreasonable, taking account of
[considerations such as] whether information is available and
whether the further analysis is likely to be determinative.” Id.
Here, the agency estimated the financial impact on fishing
vessels and adjusted the monitoring requirements to reduce that
impact. For example, it chose a 50 percent total monitoring
requirement instead of a goal of 75 or 100 percent. Additionally,
government-funded SBRM monitoring was included in that target,
thus reducing the burden on industry. The regulation also exempts
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any trip that does not plan to catch more than 50 metric tons of
herring. Furthermore, though not applicable to the boats owned by
Plaintiffs, the Final Rule allowed certain types of boats to
utilize electronic monitoring instead of human monitors.
As discussed, Plaintiffs argue that a per-day metric, which
would have eased their burden, should have been used to calculate
the weight-based monitoring exemption. But the agency considered
such options and determined that they would provide insufficient
monitoring capabilities, which would jeopardize the achievement of
the optimum yield lodestar. See Final Rule, 85 Fed. Reg. at 7417
(AR17734). Under the standards, that decision was the Secretary’s
prerogative.
In sum, Plaintiffs have not established that the industry-
funded program violates the National Standards. See Loper, 2021
WL 2440511, at *16-19 (holding that Omnibus Amendment did not
violate standards seven and eight).
C. Timing of Notice and Comment
In a rather undeveloped argument, Plaintiffs contend that the
agency did not follow notice-and-comment requirements. Pls.’ Mot.
28. Specifically, Plaintiffs incorrectly state that “the
Secretary of Commerce approved the [Omnibus Amendment] before the
comment period was over, making a mockery of the comment
requirement.” Pls.’ Mot. 28. But, to be clear, the Secretary did
not approve the amendment before its comment period had concluded.
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Rather, the Secretary approved the amendment before the separate
comment period for the proposed rule had ended. Plaintiffs point
to no authority, and develop no argument, indicating that the
comment periods for an amendment and its implementing rule cannot
overlap. Moreover, Plaintiffs suffered no prejudice based on this
overlap, as the Final Rule responded to all submissions from both
comment periods. Thus, this timing argument is a belly flop. See
Loper, 2021 WL 2440511, at *30 (rejecting similar argument).
D. Regulatory Flexibility Act
Lastly, Plaintiffs argue that the promulgation of the
industry-funded monitoring program violated the Regulatory
Flexibility Act (“RFA”), 5 U.S.C. §§ 601–612. The RFA “does not
alter the substantive mission of the agencies under their own
statutes; rather, the Act creates procedural obligations to assure
that the special concerns of small entities are given attention in
the comment and analysis process when the agency undertakes rule-
makings that affect small entities.” Little Bay Lobster, 352 F.3d
at 470. Where, as here, a regulation would “have a significant
economic impact on a substantial number of small entities[,]” the
agency must analyze “the effect of the proposed rule on small
businesses and discuss[] alternatives that might minimize adverse
economic consequences.” N. Carolina Fisheries Ass'n, Inc. v.
Gutierrez, 518 F. Supp. 2d 62, 72–73 (D.D.C. 2007) (citation
omitted). If the agency decides to issue the regulation despite
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the impact on small businesses, the agency must issue a final
regulatory flexibility analysis, including “a description of the
steps the agency has taken to minimize the significant economic
impact on small entities” and “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 . . . was rejected.” 5 U.S.C.
§ 604(a)(5). The RFA does not “require that the agency give
explicit consideration to certain classes of small businesses that
are affected more gravely than other small businesses.” Hall v.
Evans, 165 F. Supp. 2d 114, 146-47 (D.R.I. 2001).
Here, the agency did issue a final regulatory flexibility
analysis, explaining the potential impacts on small businesses,
the concessions made to accommodate their economic interests, the
alternatives that could have further lessened that impact, and the
reasons why the agency did not adopt those alternatives. See
Final Rule, 85 Fed. Reg. at 7427-430 (AR17744-47). Nonetheless,
Plaintiffs contend that “[t]he Agency never considered or included
the recommendations to make exemptions available for at-sea
processors which can take advantage of none of the measures it did
consider.” Pls.’ Mot. 38. This assertion is belied by the plain
text of the Final Rule. As discussed, “the Council explicitly
considered measures to address Seafreeze’s concern about
disproportional impacts on its vessels [from the industry-funded
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monitoring requirement], including considering alternatives for
coverage waivers for trips when landings would be less than 20-
percent herring or less than 50 mt of herring per day.” Final
Rule, 85 Fed. Reg. at 7426 (AR17743). Despite these
considerations, the agency stuck with the 50-metric-ton cutoff
because “the potential for a relatively high herring catches per
trip aboard those vessels warranted additional monitoring.” Id.
Therefore, the agency satisfied the RFA’s (solely procedural)
requirements. See Loper, 2021 WL 2440511, at *28 (holding that
Omnibus Amendment did not violate RFA); see also Little Bay
Lobster, 352 F.3d at 471 (denying RFA challenge, even though “the
final statement did little more than acknowledge that ‘several
commentators’ had objected to the change in the boundary line and
responded by referring to the ‘current consensus’ in support of
the new regime as a whole”).
E. Commerce Clause
Finally, Plaintiffs contend that the monitoring program
exceeds Congress’s authority to regulate commerce. Pls.’ Mot. 34-
36. Under the Commerce Clause, Congress may regulate a wide
variety of public and private actions, including those activities
that “have a substantial effect on interstate commerce.” Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (quoting
United States v. Darby, 312 U.S. 100, 118–119 (1941)). In
Sibelius, the Supreme Court examined a provision of the Affordable
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Care Act that imposed a monetary penalty on any individual who
failed to maintain health insurance. Id. at 538-39. Chief Justice
Roberts, writing alone, noted that the provision “d[id] not
regulate existing commercial activity” but “instead compel[ed]
individuals to become active in commerce by purchasing a product.”
Id. at 552. The Chief Justice therefore reasoned that the law
could not be justified under the Commerce Clause. Id. at 558; see
also id. at 650-660 (joint op. of Scalia, Kennedy, Thomas, and
Alito, JJ., dissenting) (agreeing that the individual mandate
exceeded the scope of Congress’s authority under the Commerce
Clause). But see id. at 606-618 (Ginsburg, J., joined by
Sotomayor, Breyer, and Kagan, JJ., dissenting in part)
(disagreeing with the Chief Justice’s Commerce Clause analysis).
Based on this holding, Plaintiffs contend that the monitoring
program unconstitutionally compels them to become active in the
market for at-sea monitors. This analogy holds no water. The
relevant market is not the monitoring market, but rather the
commercial herring fishing market. If Plaintiffs do not want to
pay for monitoring, they can decline to fish for herring, limit
their herring catches to fifty metric tons per trip, leave the New
England region, or purchase fishing vessels that qualify for
electronic monitoring. Unlike the involuntary insurance
purchasers – who could not, short of leaving the country, avoid
the health insurance requirement – Plaintiffs are voluntary market
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participants	.	 	Th	erefore,	 	the	 	regulatory	 	scheme	 	does	 	not	 	violate
the	 	Commerce	 	Clause.	 	See	 	Goethel	,	 	2016	 	WL	 	4076831,	 	at	 	*7
(rejecting Commerce Clause argument and concluding that “	the costs
of	 	monitors	 	are	 	part	 	of	 	the	 	permissible	 	regulation	 	of	 	[the]
plaintiffs’ commercial fishing activities”).
IV.	 	CONCLUSION
The	 	Secretary	 	reasonably	 	concluded	 	that	 	industry	-	funded
monitoring	 	was	 	necessary	 	and	 	appropriate	 	to	 	effectuate	 	the	 	goals
of	 	the	 	Atlantic	 	herring	 	fishery	 	management	 	plan	 	and	 	the	 	MSA.
Moreover,	 	the	 	process	 	and	 	rules	 	through	 	which	 	the	 	agency
effectuated	 	the	 	monitoring	 	program	 	did	 	not	 	violate	 	the	 	National
Standards,	 	the	 	RFA	,	 	or	 	the	 	APA.	 	Lastly,	 	the	 	program	 	does	 	not
exceed	 	Congressional	 	authority	 	under	 	the	 	Commerce	 	Clause.
Plaintiffs’	 	Motion	 	for	 	Summary	 	Judgment,	 	ECF	 	No.	 	37,	 	is	 	DENIED,
and	 	De	fendants’ Cross	-	Motion for Summary Judgment, ECF No. 38,	 	is
GRANTED.
IT	 	IS	 	SO ORDERED.
William	 	E. Smith
District Judge
Date:	 	September 20, 2021
~ff)
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