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Associated Fisheries of Me. v. Daley

ELR Citation: 28 ELR 20042
Nos. 97-1327, 127 F.3d 104/(1st Cir., 09/16/1997) Aff'd

The court holds that the Secretary of Commerce's adoption of a fishery conservation amendment to the Northeast Multispecies Fishery Management Plan does not violate the Magnuson Act or the Regulatory Flexibility Act (RFA). The amendment sets annual allowable catch targets for regulated species, orchestrates new area closures, and implements further cutbacks in working days at sea. The court first rejects plaintiff-appellant fishing groups' argument that the regulation is unnecessary to achieve the Secretary's stated goals and is inconsistent with the Magnuson Act. The Secretary was presented with reliable scientific data indicating that stocks had collapsed; he was advised that the prophylactic measures specified in Amendment 5 were clearly inadequate to alleviate the steadily worsening plight; and he also was told that certain ichthyic mortality rates should be reduced significantly. The court also finds that the Secretary complied with the Magnuson Act's National Standards. The Secretary carefully considered the enforcement measures associated with the amendment and deduced that they did not warrant inclusion in the cost/benefit analysis. And the Secretary rationally determined that compliance costs for the fishing industry would remain roughly the same under adopted amendment, as under the initially proposed conservation amendment. The court next holds that the Secretary complied with the requirements of RFA §604. The final regulatory flexibility analysis, which consists of the initial regulatory flexibility analysis with comments, is a satisfactory format for the analysis absent a specific statutory or regulatory directive. Furthermore, the record reveals that the Secretary explicitly considered numerous alternatives, exhibited a fair degree of sensitivity concerning the need to alleviate the regulatory burden on small entities within the fishing industry, adopted salutary measures designed to ease that burden, and satisfactorily explained his reasons for rejecting others. Finally, the court holds that the Secretary provided small entities adequate opportunity to participate in the rulemaking process as required by RFA §609.

[The district court decision in this litigation is published at 27 ELR 21023.]

Counsel for Plaintiff
Gene R. Libby
Verrill & Dana
One Portland Sq.
P.O. Box 586, Portland ME 04112
(207) 774-4000

Counsel for Defendant
Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Hill* and Boudin, JJ.