YAKUTAT, INC., Plaintiff-Appellant, v. Carlos M. GUTIERREZ,* in his official capacity as Secretary of Commerce; Department of Commerce; National Oceanic and Atmospheric Administration; National Marine Fisheries Service, Defendants-Appellees.
No. 03-35400.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 17, 2004. Filed May 18, 2005.
409 F.3d 1054
* Carlos M. Gutierrez is substituted for his predecessor, Donald L. Evans, as Secretary of Commerce of the United States, pursuant to Fed. R.App. P. 43(c)(2).
Sylvia Quast, U.S. Department of Justice, Washington, D.C., Brian C. Kipnis, U.S. Attorney‘s Office, Seattle, WA, and Bridget McNeil, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.
Before: BROWNING, TASHIMA, and BYBEE, Circuit Judges.
BYBEE, Circuit Judge.
The National Marine Fisheries Service (“NMFS“) is charged with implementing a licensing program to prevent overfishing of Pacific cod in the Bering Sea and Aleutian Islands (“BSAI“) groundfish fishery. The NMFS decided to limit the number of boats fishing in the BSAI fishery by granting licenses only to boats that caught a prescribed amount of fish during any two years between 1995-1998. The F/V Blue North caught the requisite amount of fish in 1997 and 1999, but not in the other qualifying years of 1995-96 or 1998. Had the NMFS included 1999 as a qualifying year, the F/V Blue North would have qualified to secure a license to fish for Pacific cod in the BSAI fishery.
Yakutat, Inc. is the owner of the F/V Blue North. It brought this action to challenge the NMFS‘s failure to include 1999 as a qualifying year. Yakutat argues that the NMFS‘s decision is unfair and inequitable under the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson Act“),
I. FACTS AND PROCEEDINGS
The BSAI fishery, located off the coast of Alaska, is the largest fishery in the
A. The Regulatory Framework
In the Magnuson Act, Congress found that “[c]ertain stocks of such fish have declined to the point where their survival is threatened,”
The Secretary carries out his management and conservation duties through the NMFS and eight Regional Fishery Management Councils established by the Magnuson Act.
The Council is required to prepare Fishery Management Plans and amendments to those plans as necessary for the fisheries in its area.
The Magnuson Act directs the Council to establish fishing industry advisory panels “which shall provide information and recommendations on, and assist in the development of,” Fishery Management Plans and amendments.
The Council prepares a Fishery Management Plan or an amendment with the input of the advisory panel, and then submits it to the Secretary for review.
Although the Council may also propose and submit implementing regulations with the Fishery Management Plan or amendment, the Secretary must determine whether the proposed regulations are consistent with both the Fishery Management Plan or amendment and the Magnuson Act prior to the public notice and comment period.
The Secretary also evaluates the consistency of the Fishery Management Plan with six factors that must be taken into account prior to implementing a Fishery Management Plan:
Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, may ... establish a limited access system for the fishery in order to achieve optimum yield if, in developing such system, the Council and the Secretary take into account—
(A) present participation in the fishery,
(B) historical fishing practices in, and dependence on, the fishery,
(C) the economics of the fishery,
(D) the capability of fishing vessels used in the fishery to engage in other fisheries,
(E) the cultural and social framework relevant to the fishery and any affected fishing communities, and
(F) any other relevant considerations.
B. The Establishment of the BSAI License Limitation Program
In 1995, the Council approved a License Limitation Program (“LLP“) for vessels operating in federal waters within the BSAI area, slated to begin on January 1, 2000.
The LLP established eligibility criteria for fishing boats to receive licenses to fish for groundfish or crab. See
The Alaskan fishing industry expressed concerns about participants jumping from overfished/limited fisheries into other already fully utilized fisheries, despite the introduction of the LLP proposal.5 See Fisheries of the Exclusive Economic Zone Off Alaska; Fishing Participation in 1999, 64 Fed.Reg. 2,870-71 (Jan. 19, 1999) (to be codified at
C. The Original LLP and Amendment 67
The original LLP had not classified BSAI groundfish licensees by their use of specific gear or their proposed harvest. Eventually, however, the Council refined its proposed LLP to address the issue of gear and species endorsements for Pacific cod. See Fisheries of the Exclusive Economic Zone off Alaska; Allocations of Pacific Cod in the Bering Sea and Aleutian Islands Area, 61 Fed.Reg. 59,029 (Nov. 20, 1996) (to be codified at
Due to concerns “about new participants entering the Pacific cod fisheries and movement of Pacific cod fisherman among the various sectors that use non-trawl gear,” the Council also discussed whether it should add Pacific cod endorsements to LLP ground fish licenses, to limit the number of new entrants.7 Fisheries of the Exclusive Economic Zone Off Alaska; License Limitation Program for Groundfish of the Bering Sea and Aleutian Islands Area, 66 Fed.Reg. 49,908-09 (Oct. 1, 2001) (proposed rule and request for comments) (“Proposed Rule“). The Council noted concern that under its preliminary estimates, “about 340 fixed gear catcher vessels and 100 fixed gear catcher/processors would be allowed to target [Pacific] cod in the BSAI under the LLP.” The Council considered requiring potential licensees to have minimum catches in 1996-1998 for freezer longline vessels and catcher longline vessels, and a host of qualifying year alternatives (such as any three years between 1995-98, any two years between 1995-98, any one year between 1995-98, etc.) with a minimum number of landing requirements for pot gear vessels. The Council also worried that a recent dearth of crab resources in the BSAI created incentives for fishermen using fixed gear8 to enter the BSAI Pacific cod fisheries, thereby increasing the overfishing of fisheries and an increased Pacific cod catch.9 Proposed Rule, 66 Fed.Reg. at 49,908. The Council stated that it needed “to promote stability in the BSAI fixed gear [non-trawl] cod fishery until comprehensive rationalization is completed.” Id. The Council urged prompt action and proposed that “a person who holds [a] LLP groundfish license, but who has not participated in the Pacific cod fisheries in the BSAI with non-trawl gear in the past, or who has not participated at a level that could constitute significant dependence on those fisheries,” should be prevented from participating in the fisheries. Id.
The desire for prompt action resulted in the Council introducing Amendment 67 for the LLP program to establish a license endorsement for Pacific cod. To evaluate proposed Amendment 67, the Council analyzed a number of alternatives for licensing fixed-gear vessels10 in the Pacific cod
Council staff furnished the EA/RIR/IRFA to the Council in September 1999. The report included analysis of fixed gear vessels in each of the three categories. The report evaluated the number of qualifying freezer longline and catcher longline vessels resulting from three different minimum catch quantities during the years 1996, 1997, and 1998. It also analyzed pot gear vessels under different qualification standards, considering the number of qualifying vessels resulting from requiring either one, two, or three years participation between 1995 and 1998. It further evaluated the number of qualifying vessels resulting from minimum landing requirements between 25,000 and 300,000 pounds.11 Upon receiving this report, the Council expanded its prior data set and decided to factor 1999 participation into the report it would present at its October 1999 meeting. In addition, the Council also separated categories for pot gear catcher/processor vessels and pot gear catcher vessels so that Council staff could further analyze these categories separately.
The final EA/RIR/IRFA report to the Council contained 106 proposed alternatives (up from its original list of 23 alternatives), and less than half (42) of these proposed alternatives included 1999 participation. The Council adopted the final EA/RIR/IRFA for proposed Amendment 67 in March 2000. In the pot gear vessel category, the report contained 10 qualifying year options and 12 qualifying landing catch options.12 According to analysis provided by Council staff, the factor that would most greatly affect the number of qualifying pot catcher/processor vessels would be the participation years requirement. The EA/RIR/IRFA report noted that the most restrictive alternative for pot catcher/processors would reduce the number of potential pot catcher/processor vessels from 67 to 4, and the most widely considered combination of alternatives generally resulted in between 4 to 20 qualifying vessels.
In addition, during the public comment period, concerned members of the public submitted numerous public statements to the Council urging adoption of stringent catch requirements and standards. Several owners leveled accusations that a number of pot catcher/processor vessels made speculative landings in 1999 in order to qualify for the Pacific cod endorsement. The Council noted these concerns and included them in its decision process regarding the adoption of Amendment 67.
The Council submitted the revised EA/RIR/IRFA to the Secretary of Commerce for review on July 31, 2000, and detailed the Council‘s preferred alternative for qualifying pot catcher/processor vessels. It also noted the considerable testimony and public concern that “any serious participant in the P[acific] cod fishery could easily land 300,000 lb in one season, and that allowing a catcher/processor to qualify with any less than that annual harvest level would essentially qualify a number of vessels that participate in the P[acific] cod fishery to supplement the income they receive from their primary fisheries.” The Council observed that requiring two out of four years for landing qualification would allow “for legitimate, unanticipated absences from the fishery without penalizing serious participants.” It noted that fourteen LLP qualified pot catch/processor vessels in the BSAI groundfish fisheries resulted if the Secretary adopted the qualifying years of 1995-1999, but that nine of those vessels would drop out under the criteria adopted by the Council. The Council remarked that these nine vessels “reported relatively few P[acific] cod landings by comparison over the qualifying 1995-98 time period, seven of which land[ed] P[acific] cod in only one of the qualifying years if at all.... This indicates that these vessels were not historically dependent on the P[acific] cod fishery and that the majority of their income likely comes from other fisheries.”
D. The Final Rule
After submission of the Council‘s Amendment 67 recommendation to the Secretary, the NMFS published the notice of availability of proposed Amendment 67. Fisheries of the Exclusive Economic Zone Off Alaska; License Limitation Program for Groundfish of the Bering Sea and Aleutian Islands Area, 66 Fed.Reg. 42,833 (Aug. 15, 2001) (notice of availability). It subsequently proposed Amendment 67 as a final rule, and requested public comment. Proposed Rule, 66 Fed.Reg. 49,908. Following public comment period, the Secretary published the Final Rule in the Federal Register, and explained the rule while addressing public concerns raised during the comment period. Fisheries of the Exclusive Economic Zone Off Alaska; Li-
The Secretary explicitly addressed the concern in the Final Rule that “[t]he standards used to determine eligibility for a Pacific cod permit were not fair and equitable, in violation of national standard 4, because different requirements were used for different methods of catching Pacific cod.” Id. at 18,134. The Secretary explained that “the Council, through Amendment 67, was trying to achieve a level of participation that reflected historical participation patterns for each of the sectors.” Id. With respect to the pot catcher/processor sector, the Secretary noted that this sector did not have a long and consistent history and that significant variance in the composition of qualifying vessels occurred depending on which years and qualifying catches the Council considered. Id. “[T]he Council chose eligibility criteria that would decrease the number of participants ... intend[ing] to ensure that vessels in the sector that had historical and consistent participation based on the Council‘s analysis of the available data would be allowed to continue to participate at a level that reflected what the Council determined to be economic dependence.” Id.
E. Yakutat, Inc.
Yakutat, Inc. currently operates the F/V Blue North in the BSAI groundfish fishery, and has operated in the area since 1994. The F/V Blue North originally operated as a freezer longliner, but converted to a combination pot catcher/processor and freezer longliner in December of 1996. The F/V Blue North fished using its longliner capabilities until reaching its allotted limit in May 1997, and it then utilized pot gear for the rest of the year, landing more than 300,000 pounds of Pacific cod in 1997. In 1998, the F/V Blue North did not fish using pot gear, solely utilizing its longliner equipment the entire season.14 In 1999, the F/V Blue North landed more than 300,000 pounds of Pacific cod using pot gear after reaching its seasonal apportionment using longliner gear. Upon publication of the Final Rule, the NMFS deemed the F/V Blue North ineligible for a pot catcher/processor Pacific cod endorsement because its 300,000 pounds catch landing occurred in only one of the qualifying years between 1995-1998. Yakutat currently holds a BSAI pot catcher/processor endorsement pending its “unavoidable circumstances” exception claim under
F. Proceedings Below
On May 12, 2002, Yakutat sought district court review of the Secretary‘s Final
Yakutat appeals the district court‘s judgment, claiming that the district court erred in granting the Secretary‘s summary judgment motion, and reiterates its original claims.16 First, Yakutat argues that the Secretary‘s failure to include 1999 as a qualifying year for pot catcher/processors violated the Magnuson Act and the APA because the Secretary and Council failed to articulate a justification for the exclusion. Second, Yakutat claims that the exclusion of 1999 as a qualifying year is unfair and inequitable, and lacks a rational basis, thereby violating the Magnuson Act and the APA. Yakutat requests that this Court overturn the district court‘s grant of summary judgment in favor of the Secretary.
II. STANDARD OF REVIEW
This Court reviews a district court‘s decision to grant summary judgment de novo with all facts read in the light most favorable to the non-moving party. Covington v. Jefferson County, 358 F.3d 626, 641 n. 22 (9th Cir.2004). In reviewing regulations promulgated under the Magnuson Act, we have held that “our only function is to determine whether the Secretary [of Commerce] ‘has considered the relevant factors and articulated a rational connection between the facts found and the choice made.‘” Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir.1996) (quoting Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1440-41 (9th Cir.1990)). “We determine only if the Secretary acted in an arbitrary and capricious manner in promulgating such regulations.” Alliance Against IFQs, 84 F.3d at 345. Similarly, when reviewing administrative actions taken under the APA, the panel may reverse the agency action only if the action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See
III. DISCUSSION
Yakutat makes two claims on appeal: First, Yakutat argues that the Secretary‘s failure to include 1999 as a qualifying year for pot catcher/processors is arbitrary and capricious, in violation of both the Magnuson Act and the APA, because the Secretary and Council failed to articulate a justification for the exclusion.
A. The Final Rule Was Not Arbitrary and Capricious
Yakutat claims that the Council and the Secretary (through NMFS) must articulate a rational connection between the facts found and the Final Rule. Yakutat alleges that this obligation is expressed in National Standard 4 of the Magnuson Act. National Standard 4 reads:
(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes
necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.
Yakutat argues that failure to comply with National Standard 4 or to articulate a motive for a particular allocation violates the Magnuson Act. Yakutat also argues that the Secretary‘s actions are arbitrary and capricious because he has not supplied a rational connection between the facts and the Final Rule.
The record demonstrates the Secretary‘s concern “to conserve and manage the Pacific cod resources” and “stabilize fully utilized Pacific cod resources” being harvested in the BSAI. Final Rule, 67 Fed.Reg. at 18,129. The Secretary also noted concern to protect fishermen with significant long-term investments and long catch histories in the pot catcher/processor sector. Id. at 18,130. The Secretary and Council fully evaluated all of the alternatives available to them, which included numerous alternatives that included 1999 as a qualifying year. The Council produced the final EA/RIR/IFRA, which specifically included analysis of 42 out of 106 alternatives with 1999 as a qualifying year for pot catcher/processors. Based on the data before the Council, it chose to not include 1999 as a qualifying year because those boats that dropped out when 1999 was not included “were not historically dependent on the Pacific cod fishery and [] the majority of their income likely [came] from other fisheries.” In accordance with public testimony, industry experience, and data analysis, the Council decision established a standard for measuring historical dependence, and drew a rational line. The Secretary, utilizing the same data and reports provided by the Council, adopted the Council‘s recommendation. The record clearly provides a rational basis on which the Secretary based his decision.
Agency actions may also be found to be arbitrary and capricious “if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of the agency‘s expertise.” Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). See also
Second,
Third, the Secretary did not fail to consider an important aspect of the agency action because he analyzed the Council recommendation and independently considered including 1999 as a qualifying year. See Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43. The inclusion of 1999 was one of many factors considered by the Secretary, as well as by the Council, and both considered including 1999 as a qualifying year before choosing to emphasize issues implicating other factors more relevant to the problem statement and overall goal of the FMP.
Finally, the Secretary neither offered an explanation for his decision that runs counter to the evidence, nor acted in a manner that could not be ascribed to agency expertise. The Secretary specifically responded to public comments about the decision in the Federal Register, and explained the rationale behind treating pot catcher/processor vessels differently than other vessels. Final Rule, 67 Fed.Reg. at 18,134. In addition, the Council, with its expertise and industry experience, deliberated over the Amendment for over 45 hours, heard public testimony, received public comments, and read staff reports and analysis prior to making its recommendation to the Secretary. The Secretary analyzed these same reports, received public comments, and responded publically to those comments in making his decision. There is nothing in the evidence that suggests that the Secretary, or the Council, acted in manner that could not be ascribed to agency expertise.
B. The Final Rule Is Neither Unfair or Inequitable
Yakutat argues that the exclusion of 1999 from the pot catcher/processor vessel criteria is unfair and inequitable because it
1. The Secretary Took Present Participation Into Account
Yakutat argues that by not including 1999 as one of the qualifying years in the Final Rule, the NMFS and the Secretary violated
We previously dealt with similar claims in Alliance Against IFQs v. Brown, 84 F.3d 343 (9th Cir.1996). In Alliance Against IFQs, the NMFS implemented regulations for a Fishery Management Plan regarding sablefish and Pacific halibut, assigning quota shares based on participation in landings in 1984-90. NMFS implemented the Final Rule in 1993, and the plaintiffs, a number of concerned fishermen, argued that the Final Rule violated the “present participation” requirement of the Magnuson Act by not taking into account participation in fishing during 1991-93. Id. at 346. We concluded that the Secretary had good reason for not including 1991-93 in the qualifying years for a rule issued in 1993: the industry knew that a rule was under consideration and recent fishing history might have skewed the data. Id. at 346-47. As we explained: “[I]f participation in the fishery while the rule was under consideration had been considered, then people would have fished and invested in boats in order to obtain quota shares, even though that would have exacerbated overcapacity and made no economic sense independently of the regulatory benefit.” Id. at 346. We held that we could not “characterize use of a 1988 through 1990 period as so far from ‘present participation’ when the regulation was promulgated in 1993 as to be arbitrary and capricious.” Id. at 348 (citing Wash. Crab Producers, Inc., 924 F.2d at 1441).
In the instant case, the Council noted a similar concern regarding “present participation” while it debated the specifics of the Final Rule to present to the Secretary. The Council gave notice that 1999 might not qualify in order “to discourage new entrants into those fisheries based on economic speculation while the Council considers further controls on access to those fisheries.” Alaska Fishing Participation, 64 Fed.Reg. at 2,870. These concerns were not imagined. The data showed a jump in participation by pot catcher/processor vessels during 1999 from crabbing to Pacific cod fishing. Nevertheless, the
Present participation is only one of six factors that must be taken into account when promulgating a new rule for Fishery Management Plans. Alliance Against IFQs, 84 F.3d at 347 (“Congress left the Secretary some room for the exercise of discretion, by not defining ‘present participation,’ and by listing it as only one of many factors which the Council and the Secretary must ‘take into account.’ ” (emphasis added)). The Secretary exercised the discretion granted him in the Act by concluding that a cut-off date was essential for the Final Rule‘s treatment of pot catcher/processor vessels. The Secretary‘s decision to reject the most recent year in favor of a cumulation of the other five factors that also must be considered, is reasonable and consistent with our precedent. Alliance Against IFQs, 84 F.3d at 348. We conclude that the Secretary had a rational basis for not allowing “present participation” in the form of including 1999 to take precedence over other relevant factors under consideration in crafting the FMP amendment.
2. The Final Rule Does Not Violate National Standard 4
Yakutat argues that not including 1999 in the FMP as a qualifying year is unfair and inequitable in contravention of National Standard 4. National Standard 4 provides: “Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such a manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.”
The Secretary and the Council addressed directly the issues raised by Yakutat, and examined the use of 1999 as a qualifying year for pot catcher/processors. The Council explained that it did not include 1999 in its final recommendation “to ensure that vessels in the sector that had historical and consistent participation based on the Council‘s analysis of available data would be allowed to continue to participate at a level that reflected what the Council determined to be economic dependence.” Final Rule, 67 Fed.Reg. at 18,134.
Congress requires the Secretary to exercise discretion and judgment in weighing the national standards in
“Longline and pot fishermen who have made significant long-term investments, have long catch histories and are significantly dependent on the BSAI cod fisheries need protection from others who have little or limited history and wish to increase their participation in the fishery.”
Fisheries of the Exclusive Economic Zone Off Alaska; Allocation of Pacific Cod Among Vessels Using Hook-and-line or Pot Gear in the Bering Sea and Aleutian Islands, 65 Fed.Reg. 51,554 (Aug. 24, 2000). The Council analyzed the individual catch histories and reliance upon the Pacific cod fisheries utilizing specific gear assignments and landing quantities, ultimately agreeing on a “break even” point for economic dependence and sending its recommendation to the Secretary with the EA/RIR/IFRA.
The Council thoroughly investigated the inclusion of 1999 as a qualifying year for pot catcher/processor vessels, but concluded that inclusion would not benefit those with significant historical dependence on the Pacific cod industry. The Council found that “under the Council‘s preferred alternative, approximately 9 vessels that landed P[acific] cod in the BSAI in 1995-99 would no longer be allowed in the fishery.... The 9 vessels that drop out reported relatively few P[acific] cod landings by comparison over the qualifying 1995-98 time period, seven of which landed P[acif-ic] cod in only one of the qualifying years if at all.... This indicates that these vessels were not historically dependent on the P[acific] cod fishery and that the majority of their income likely comes from other fisheries.”
Yakutat argues that the Council‘s lack of serious deliberation to include 1999 as a qualifying year tainted the decision, but Yakutat must demonstrate something more than the fact that the Secretary allegedly did not give the decision the consideration Yakutat would have liked. See Alaska Factory Trawler, 831 F.2d at 1460 (“In order for a court to overturn a Secretary‘s decision, it must be shown that alleged irregularities ... affected such decision.” (emphasis added)). Therefore, in
The Secretary‘s decision directly correlates with the Council-issued statement in 1999 announcing the development of the FMP amendment.20 Since both the Council and the Secretary considered both historical dependence and consistent participation in the industry while constructing the FMP amendment, we cannot find the result unfair and inequitable. The Council and Secretary analyzed the 106 alternatives for pot catcher/processors, and ultimately decided that including 1999 as a qualifying year would not reflect historical and consistent participation or economic dependence. Consistent with his responsibility to preserve the BSAI fishery, the Secretary properly took into account “[o]vercapitalization, excess harvest capacity, and economic waste in a fishery” in order to conserve and maintain fishing levels without hurting long-time participants. Final Rule, 67 Fed.Reg. at 18,135.
Ultimately, the Secretary had to draw a line because of the overall number of pot catcher/processors and the number of vessels that would qualify based on the various criteria considered. Unlike the long and consistent history of fishing by the hook-and-line and pot gear vessels, pot catcher/processors had only a relatively recent history, with a number of boats jumping in and out of the fishery. Therefore, the Secretary and Council drew a line based on all the relevant information and alternatives available at the time, and they offered a rational reason for this line in their response to public comments. See Final Rule, 67 Fed.Reg. at 18,135. Basing his conclusions on the EA/RIR/IFRA which laid out all of the viable alternatives for pot catcher/processors, the Secretary made a rational decision to limit the number of newer participants and draw a line for qualifying years.
When the administrative agency has provided relevant data supporting its decision, we owe deference to the agency‘s line-drawing. See Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1306 (9th Cir.1992) (“Without data supporting the [agency action], we owe no deference to EPA‘s line-drawing. We thus hold that EPA‘s [action] is arbitrary and capricious ....“). As such, not including 1999 as a qualifying year based on all of the relevant analysis and record available is neither unfair or inequitable, nor is it arbitrary and capricious. See Leather Indus. of Am., Inc. v. EPA, 40 F.3d 392, 409 (D.C.Cir.1994) (“Where the agency‘s line-drawing does not appear irrational and the [plaintiff] has not shown that the consequences of the line-drawing are in any
The Secretary placed a higher premium on historical participation and significant dependence, instead of focusing solely on present participation. The Secretary determined that by limiting entry of newer fishing vessels while assuring continued participation of historically dependent fishermen, the FMP amendment would conserve the fishery by reducing overcapitalization. Final Rule, 67 Fed.Reg. at 18,129, 18,134. 5332 The record provides a rational basis for the Secretary‘s decision, and the Final Rule did not violate National Standard 4.
IV. CONCLUSION
The Secretary‘s Final Rule for the BSAI FMP does not violate the Magnuson Act or the Administrative Procedure Act. The Final Rule is neither arbitrary and capricious, nor unfair and inequitable. We therefore affirm the ruling of the district court.
AFFIRMED.
BYBEE
CIRCUIT JUDGE