561 F.Supp.3d 226
D.R.I.2021Background
- The New England Fishery Management Council adopted an Industry-Funded Monitoring Omnibus Amendment requiring commercial Atlantic herring vessels to fund at-sea human monitors’ travel and daily salaries; NMFS retains administrative costs (training, certification, data processing).
- The program’s monitoring coverage target is 50% (combined SBRM government-funded observers and industry-funded monitors); industry-funded monitoring fills the gap between available SBRM coverage and the 50% target.
- Exemptions/alternatives: trips planning to land <50 metric tons of herring are waived; certain midwater trawl vessels may use electronic monitoring or qualify as wing vessels; NMFS estimated an at-sea monitor cost of about $710/day.
- Plaintiffs (operators of freezer-equipped, long-trip vessels) challenged the rule, claiming the Magnuson‑Stevens Act (MSA) does not authorize industry-funded monitoring; the rule violates National Standards, the Regulatory Flexibility Act (RFA), APA notice-and-comment requirements, and the Commerce Clause.
- The court applied narrow APA review, found the MSA ambiguous on industry-funded monitoring, afforded Chevron deference, and concluded the Secretary’s interpretation and the Final Rule were lawful; Plaintiffs’ summary judgment motion was denied and Defendants’ cross-motion granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory authority under the MSA | MSA does not authorize requiring industry to pay third‑party monitors; statutes authorizing fees show Congress would have expressly authorized such funding | MSA provisions (observer authorization, "necessary and appropriate" measures, sanctions for nonpayment) and history permit industry-funded monitoring; program distinct from fee-based statutes because payments go to third parties, not NMFS | MSA ambiguous on this point; Chevron deference applies; Secretary’s interpretation permitting industry-funded monitoring is reasonable and upheld |
| Compliance with National Standards (1,2,6,7,8) | Exemption threshold (50 mt per trip) unfairly burdens freezer long‑trip vessels; no scientific need shown; failed to minimize costs or account for affected communities | Agency considered alternatives (per‑day metric, percentage thresholds), balanced conservation/monitoring needs against economic impacts, included SBRM in coverage target, allowed EM for some vessels, will review after two years | Agency reasonably balanced conservation and economic concerns; National Standards not violated |
| Regulatory Flexibility Act (RFA) | Agency failed to adequately analyze/consider alternatives that would minimize impacts on small entities, especially at‑sea processors | NMFS performed final regulatory flexibility analysis, considered alternatives (including per‑day and percent-herring waivers) and explained reasons for rejecting them | RFA’s procedural requirements satisfied; challenge denied |
| Notice-and-comment timing | Secretary approved the Amendment before the implementing rule’s comment period ended, violating notice-and-comment | Amendment and rule comment periods overlapped; approval did not occur before Amendment comment deadline; no prejudice; Final Rule responded to comments from both periods | No procedural defect shown; timing overlap permissible and harmless |
| Commerce Clause | Rule compels vessels to enter the market for monitoring services, akin to individual mandate coercion | Monitoring regulates commercial fishing activity; vessels can avoid the requirement by not fishing herring, limiting trips to <50 mt, using EM-eligible gear, or leaving the fishery region | Not a Commerce Clause violation; requirement regulates existing commercial activity and leaves meaningful choices to participants |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency statutory interpretations)
- United States v. Mead Corp., 533 U.S. 218 (2001) (limits on when Chevron deference applies based on delegation and rulemaking/adjudication)
- Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012) (First Circuit’s three-step approach to agency statutory interpretation)
- Goethel v. U.S. Dep’t of Commerce, 854 F.3d 106 (1st Cir. 2017) (related review of MSA challenges; context for agency authority under MSA)
- Ace Lobster Co. v. Evans, 165 F. Supp. 2d 148 (D.R.I. 2001) (National Standards do not require finely attuning rules to every vessel; flexibility requirement)
- Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886 (9th Cir. 2010) (agency may sacrifice some fishermen’s interests for the benefit of the fishery as a whole)
- Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (Commerce Clause limits discussion cited in Commerce Clause analysis)
- Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014) (example of courts rejecting agency interpretations despite Chevron deference)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (administrative review standards under APA)