62 F.4th 621
1st Cir.2023Background
- NMFS (NOAA Fisheries) implemented a 2020 rule requiring monitors on a target 50% of Atlantic herring trips, with government-funded SBRM observers counting toward the target and industry-funded monitors filling the remainder.
- Under the Rule, vessels "declare into" the fishery; if a monitor is required the vessel must contract with certified private providers and pay monitor fees; NMFS pays administrative costs and trains/certifies monitors.
- Plaintiffs (Relentless, Huntress, Seafreeze) operate long, at-sea freezing trawlers and contend the per-trip monitoring requirement disproportionately burdens them (longer trips, higher monitor-days, inability to use the <50 mt per-trip waiver).
- Plaintiffs sued claiming lack of statutory authority (MSA), APA arbitrary-and-capricious rulemaking, violations of MSA National Standards and the RFA, and an unconstitutional commerce-power compulsion.
- The district court granted summary judgment to the government; the First Circuit affirmed, holding the Rule authorized and otherwise lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority under MSA to require industry-paid at-sea monitors | MSA does not authorize industry-funded monitoring; agency cannot force vessels to pay observers | MSA expressly authorizes observers; default rule is regulated parties bear compliance costs; statutory penalty for nonpayment implies expectation of owner-paid observers; agency interpretation reasonable | Agency interpretation upheld; Congress authorized observers and agency reasonably concluded payment need not be by government |
| APA/arbitrary & capricious — waiver threshold (50 mt per trip) | Per-trip 50 mt waiver arbitrary and capricious because it disproportionately burdens long-trip freezer vessels and can force payment when no herring caught | Agency considered alternatives, explained rationale (potential for large per-trip catches), and balanced data-collection needs and admin practicability | Not arbitrary or capricious; agency gave a rational basis and considered comments |
| Consistency with MSA National Standards (1,2,6,7,8) | Rule disproportionately burdens certain vessels, lacks best scientific support, and inadequately accounts for economic/community impacts | Rule advances conservation by improving catch data, used best available info to justify measures, considered alternatives and economic impacts, and preserved flexibility | Rule consistent with National Standards; agency had rational basis and made required analyses |
| Regulatory Flexibility Act (RFA) compliance | Agency failed to adequately analyze and mitigate impacts on small businesses like long-trip freezers | Agency prepared regulatory flexibility analyses, set 50% coverage target and waivers to reduce burdens, and responded to comments | RFA procedural obligations satisfied; analyses and responses sufficient |
| Commerce Clause / NFIB argument (forced market participation) | Forcing vessels to buy monitoring is an unconstitutional compulsion to enter a market (analogous to NFIB) | Vessels choose to engage in a regulated commercial activity (fishing); regulation of that activity may impose compliance costs, including market purchases | No Commerce Clause violation; regulation of a chosen, regulated activity that imposes compliance costs is permissible |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (agency interpretation reviewed under two-step framework)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (standard for arbitrary and capricious review)
- Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012) (APA review of MSA agency action)
- Loper Bright Enters. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022) (similar challenge to same Rule; supports industry-funded monitoring interpretation)
- Barnhardt v. Walton, 535 U.S. 212 (2002) (agency interpretation must fall within permissible bounds)
- Nat'l Fisheries Ass'n v. Daley / Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997) (agency technical/scientific determinations and deference)
- National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (limits on compelled market participation discussed; court distinguishes here)
- Cuozzo Speed Techs. v. Lee, 579 U.S. 261 (2016) (ambiguities may permit reasonable agency construction)