Petition for Writ of Certiorari — Relentless, Inc., et al., Petitioners v. Department of Commerce, et al.

Supreme Court briefJun 14, 2023

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No. 22-___

IN THE

Supreme Court of the United States

_________________________

RELENTLESS, INC., et al.,

Petitioners,

U.S. DEPARTMENT OF COMMERCE, et al.,

Respondents.

_________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

APPENDIX

JOHN J. VECCHIONE

Counsel of Record

MARK S. CHENOWETH

KARA M. ROLLINS

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

John.Vecchione@ncla.legal

June 14, 2023

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals for the

First Circuit, Relentless, Inc. v. United States Dep’t

of Commerce, No. 21-1886 (March 16, 2023) .....1a

Appendix B

Opinion and Order, United States District Court

for the District of Rhode Island, Relentless Inc. v.

U.S. Dep’t of Commerce, No. 20-108 WES (Sept. 20,

2021) ..................................................................35a

Appendix C

Relevant Statutory Provisions ..........................66a

16 U.S.C. § 1821(h) ......................................66a

16 U.S.C. § 1827 ...........................................69a

16 U.S.C. § 1853(a)(1)(A)-(C), (a)(6) ............72a

16 U.S.C. § 1853(b)(7)-(8) ............................73a

16 U.S.C. § 1853(c) ......................................74a

16 U.S.C. § 1853a(c)(1), (e) ..........................74a

16 U.S.C. § 1857(1)(L) .................................77a

16 U.S.C. § 1862(a)-(b) ................................77a

Appendix A

United States Court of Appeals

For the First Circuit

No. 21-1886

RELENTLESS, INC.; HUNTRESS, INC.;

SEAFREEZE FLEET LLC,

Plaintiffs, Appellants,

UNITED STATES DEPARTMENT OF

COMMERCE; GINA M. RAIMONDO, in her

official capacity as Secretary of Commerce;

NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION; RICHARD SPINRAD, in his

official capacity as Administrator of NOAA;

NATIONAL MARINE FISHERIES SERVICE, a/k/a

NOAA Fisheries; JANET COIT, in her official

capacity as Assistant Administrator for NOAA

Fisheries,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF RHODE ISLAND

Hon. William E. Smith, U.S. District Judge

Before

Kayatta, Lipez, and Thompson, Circuit Judges.

John J. Vecchione, with whom New Civil

Liberties Alliance was on brief, for appellants.

Dina B. Mishra, with whom Todd Kim,

Assistant Attorney General, Alison C. Finnegan,

Daniel Halanien, Environment & Natural

Resources Division, U.S. Department of Justice, and

Mitch MacDonald, Office of General Counsel,

National Oceanic & Atmospheric Administration,

were on brief, for appellees.

March 16, 2023

KAYATTA, Circuit Judge. Charged with

promoting the sustainability of the nation’s fisheries,

the National Marine Fisheries Service requires

vessels fishing for herring on certain fishing trips to

carry monitors on board. Although the government

trains and certifies these monitors, it does not always

pay them for their work. Instead, the vessel owners

must procure and pay for certain monitors by

contracting with private entities. Owners of two

fishing vessels that harvest herring -- plaintiffs

Relentless Inc., Huntress Inc., and Seafreeze Fleet

LLC -- challenge the agency’s authority to promulgate

this requirement. The district court granted summary

judgment for the government, reasoning that the rule

is a permissible exercise of agency authority under

the statute governing fishery stocks and conservation,

that its promulgation followed proper procedures, and

that it does not violate the Constitution. On appeal,

plaintiffs renew their attacks. Because we agree with

the district court that the rule is a permissible

exercise of the agency’s authority and is otherwise

lawful, we affirm. Our reasoning follows.

Atlantic herring fishing is regulated under the

Magnuson-Stevens Fishery Conservation and

Management Act (the “MSA”), which was enacted to

respond to the threat of overfishing and to promote

conservation. 16 U.S.C. §§ 1801 et seq. The MSA

established eight regional councils that manage the

various “fisheries” (defined as “one or more stocks of

fish which can be treated as a unit”) in their

respective regions. Id. §§ 1802(13)(A), 1852(a). The

councils accomplish this task primarily by

promulgating fishery management plans, which

specify the conservation measures “necessary and

appropriate” to prevent overfishing, to protect fish

stocks, and to promote the sustainability of each

fishery. Id. §§ 1852–1853. The MSA sets out elements

that fishery management plans shall include, such as

a description of the fishery and the optimal yield for

the fishery, id. § 1853(a), as well as several elements

that plans may include, such as requirements that

vessels subject to the plan obtain permits, id. §

1853(b). Fishery management plans must also comply

with ten “National Standards” set out in the MSA

that identify broad goals and priorities such as

minimizing cost, taking communities into account,

prioritizing efficiency, and using the best scientific

information available. Id. § 1851(a).

The Secretary of Commerce is tasked with

reviewing each fishery management plan or

amendment and publishing it along with

implementing regulations for notice and comment. Id.

§ 1854(a)–(b). The Secretary has delegated these

responsibilities to the National Marine Fisheries

Service (NMFS or the “Agency”), a division of the

National Oceanic and Atmospheric Administration

(NOAA). Regional councils submit plans and

amendments to NMFS, which publishes them for

notice and comment while undertaking its own review

to ensure that the plans are consistent with the MSA,

its National Standards, and “any other applicable

law.” Id. § 1854(a)(1). The Agency must then approve,

disapprove, or partially approve the plan or

amendment. Id. § 1854(a)(3). Once a plan or

amendment is approved, the Agency works with the

regional council and completes a notice and comment

procedure to issue implementing regulations. Id. §

1854(b).

The New England Fishery Management Council

(“New England Council”) regulates fisheries in the

Atlantic Ocean seaward of Maine, New Hampshire,

Massachusetts, Rhode Island, and Connecticut. Id. §

1852(a)(1)(A). This includes the Atlantic herring

fishery. The New England Council implemented the

current fishery management plan for Atlantic herring

in 2000. The plan includes an annual catch limit and

restrictions on the location and timing of herring

fishing. 50 C.F.R. § 648.200. The Atlantic herring

fishery is subject to monitoring, including by

government-funded observers using Standardized

Bycatch Reporting Methodology (SBRM) to measure

bycatch (fish unintentionally caught) on fishing

trips. 1 Id. § 648.11(m).

In 2013, the New England Council began a process

to provide for the use of industry-funded monitoring

to reduce uncertainty around catch estimates. In

2017, the Council approved an Omnibus Amendment,

which both provided general guidelines for industryfunded monitoring in all of its fishery management

plans and specifically provided for the owners of

herring vessels to bear the expense of contracting for

1 The MSA requires that all fishery management

plans

“establish

standardized

reporting

methodology to assess the amount and type of bycatch

occurring in the fishery.” 16 U.S.C. § 1853(a)(11). The

New England Council, along with the Mid-Atlantic

Council, developed an SBRM omnibus amendment in

2015 that implements this requirement. MagnusonStevens Fishery Conservation and Management Act

Provisions; Fisheries of the Northeastern United

States; Standardized Bycatch Reporting Methodology

Omnibus Amendment, 80 Fed. Reg. 37,182 (June 30,

2015); 50 C.F.R. § 648.18. The methodology in that

omnibus

amendment,

which

primarily

implemented through the Northeast Fisheries

Observer Program placement of observers on vessels,

applies to several fisheries, including the herring

fishery. 50 C.F.R. § 648.18. Although the SBRM has

been heavily litigated, see Oceana, Inc. v. Ross, 920

F.3d 855, 859–60 (D.C. Cir. 2019), it is not at issue in

this appeal.

some of the monitors engaged on their vessels.

Magnuson-Stevens Fishery Conservation and

Management Act Provisions; Fisheries of the

Northeastern United States; Industry-Funded

Monitoring, 85 Fed. Reg. 7414, 7414 (Feb. 7, 2020).

The Agency approved the amendment in 2018. It

published the final rule implementing the

amendment and the industry-funded monitoring

program for the herring fishery in 2020. 85 Fed. Reg.

at 7414.

The

rule

implementing

industry-funded

monitoring for the herring fishery (the “Final Rule” or

“Rule”) does not require monitors on all vessels.

Rather, it sets a target percentage (50%) of herring

trips to be monitored. Id. at 7417. Observer coverage

required under the SBRM program, which is fully

paid for by the government, counts toward this target.

Additional monitoring, up to a target of 50%, is

covered by industry-funded monitoring (so if SBRM

observers are placed on 10% of trips, industry would

be asked to pay for monitoring on an additional 40%

of trips). Id. The Rule requires the Council to

reexamine the monitoring coverage targets after two

years to consider the results of increased monitoring,

if any, and determine whether to make adjustments.

50 C.F.R. § 648.11(m)(1)(ii)(F). The government bears

the administrative expenses associated with the

program, including the training and certification of

monitors. 85 Fed. Reg. at 7415.

The Rule specifies how industry-funded

monitoring will work in practice. Vessels must

“declare into” a fishery before beginning a fishing trip,

meaning they contact NMFS and announce the

species of fish they intend to harvest. 50 C.F.R. §

648.11(m)(2). When a vessel declares into the herring

fishery, the Agency then informs it whether a monitor

will be required for that trip. Id. § 648.11(m)(3). Trips

may receive a waiver of the monitor requirement

under several circumstances: if a monitor is not

available, if the vessel is carrying certain fishing gear

only and does not intend to carry fish, or if the vessel

intends to catch less than 50 metric tons of herring on

the trip. Id. § 648.11(m)(1)(ii)(D)–(E), (4)(ii). Vessels

using certain types of gear are exempt from the

requirement to carry a monitor altogether if they use

electronic monitoring and portside sampling instead.

Id. § 648.11(m)(1)(iii).

When a nonexempt vessel that does not meet the

criteria for a waiver declares into the herring fishery,

the Agency will inform the vessel whether it needs to

carry a monitor for that trip. If so, the vessel must

contact one of the private entities that provide

certified monitors, and pay that entity its resulting

fees and expenses. Id. § 648.11(m)(4). If the vessel

cannot find a monitor after contacting all available

providers, it may ask for a waiver. Id.

The precise cost of the industry-funded monitoring

program to vessels participating in the herring

fishery is unclear. In its notice publishing the Final

Rule, the Agency cautioned that “the economic impact

of industry-funded monitoring coverage on the

herring fishery is difficult to estimate,” because it

would vary with “sampling costs, fishing effort, SBRM

coverage, price of herring, and participation in other

fisheries.” 85 Fed. Reg. at 7420. The agency also noted

that the Environmental Assessment estimated

“industry’s cost for at-sea monitoring coverage at

$710 per day,” although this figure would “largely

depend on negotiated costs between vessels and

monitoring service providers.” Id. The Agency further

acknowledged that the Rule could reduce vessel

returns-to-owner (gross profits minus fixed and

operational costs) by around 20%. In total, the New

England Council recognized in its amendment

adopting the herring plan that “the impacts of [the

Rule] on fishery-related businesses and human

communities are negative and result from reductions

in returns-to-owner.”

Plaintiffs participate in the herring fishery using

small-mesh bottom trawl gear. They also participate

in the mackerel, butterfish, and squid fisheries. Able

to freeze fish at sea, their vessels make longer trips,

but also have less processing capacity per day

(125,000 pounds of fish per day, they state, which

equals approximately 57 metric tons) and higher

overhead costs than other herring vessels. Plaintiffs’

style of fishing also means that they can choose what

to catch at sea, so they often declare into multiple

fisheries before leaving the dock in order to catch

whatever they encounter on the trip.

Plaintiffs assert that due to their unique fishing

style, they are disproportionately burdened by

carrying monitors, because they make longer trips

(during which they may not even catch herring) and

therefore need to pay a monitor for more days at sea.

They also claim that they cannot avail themselves of

any of the exceptions to having to carry monitors

under the Rule because of their style of fishing. In

particular, they focus on the exemption for trips

taking less than 50 metric tons of herring. While most

herring trips only last 2–4 days, the vessels claim,

their trips last 10–14 days. So although they may

catch less than 50 metric tons of herring every 2–4

days, they might catch far more herring in a single

trip, and thus cannot use the exemption that is

available for shorter trips despite having a similar

catch per day.

Plaintiffs therefore have a strong incentive to

challenge the Rule. They argue that it is not

authorized by the MSA, is arbitrary and capricious in

violation of the Administrative Procedure Act (APA),

violates the National Standards set forth in the MSA,

violates the Regulatory Flexibility Act (“RFA”), and

violates the Commerce Clause. Defendants (the

Agency, along with the Secretary of Commerce,

NOAA, and the Administrators of the Agency)

disagree on all counts.

The district court granted summary judgment for

the Agency. The court found that the MSA is

ambiguous regarding authorization for industry-paid

monitors, and that under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S.

837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the

Agency’s interpretation is entitled to deference. It

further found that the Rule does not violate any of the

National Standards found in the MSA, and also does

not violate the RFA because the Agency issued a

regulatory flexibility analysis that indicates it

considered plaintiffs’ concerns, satisfying the

statute’s procedural requirements. 2 Finally, the court

found that the Rule does not violate the Commerce

Clause, because it does not force plaintiffs to enter the

market for monitors.

II.

2 The district court also found that the Rule did not

violate the APA because the comment periods for an

amendment and its implementing rule overlapped.

Plaintiffs do not challenge this finding on appeal.

10a

We review the district court’s grant of summary

judgment de novo. Lovgren v. Locke, 701 F.3d 5, 20

(1st Cir. 2012). Judicial review of agency actions

under the MSA is governed by the APA. Id.; 16 U.S.C.

§ 1855(f). We may set aside an agency action only if it

is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” Lovgren, 701

F.3d at 20 (quoting 5 U.S.C. § 706(2)(A)). Our review

is limited to the administrative record. Id.

At issue here, principally, is the interpretation of

the MSA. Plaintiffs challenge the Agency’s

authoritative interpretation of the statute as granting

it the power to enact the Rule. In considering such a

challenge, we employ “the familiar Chevron two-step

analysis.” Bais Yaakov of Spring Valley v. ACT, Inc.,

12 F.4th 81, 86 (1st Cir. 2021). “First, always, is the

question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is

clear, that is the end of the matter ....” Id. (quoting

Chevron, 467 U.S. at 842, 104 S.Ct. 2778). Second,

“[i]f the statute is silent or ambiguous with respect to

the specific issue, the question for the court is

whether the agency’s answer is based on a

permissible construction of the statute.” Bais Yaakov,

12 F.4th at 86 (quoting Chevron, 467 U.S. at 843, 104

S.Ct. 2778).

In determining whether a statute has clearly

spoken to the question at issue, we “apply the

‘ordinary tools of statutory construction.’ ” Flock v.

U.S. Dep’t of Transp., 840 F.3d 49, 55 (1st Cir. 2016)

(quoting City of Arlington v. FCC, 569 U.S. 290, 296,

133 S.Ct. 1863, 185 L.Ed.2d 941 (2013)). Further, “a

reviewing court should not confine itself to examining

a particular statutory provision in isolation.” Nat’l

Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.

11a

644, 666, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)

(quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121

(2000)). Rather, “the words of a statute must be read

in their context and with a view to their place in the

overall statutory scheme.” Id. (quoting Brown &

Williamson, 529 U.S. at 132–33, 120 S.Ct. 1291). If,

after using these tools, we find that there is still

relevant ambiguity, “we typically interpret it as

granting the agency leeway to enact rules that are

reasonable in light of the text, nature, and purpose of

the statute.” Cuozzo Speed Techs. v. Lee, 579 U.S.

261, 277, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016).

With these principles in mind, we turn to

plaintiffs’ challenges to the Agency’s authority under

the MSA to promulgate the Rule. Plaintiffs argue

generally that the MSA does not authorize the Rule,

and specifically that other provisions of the MSA

establishing fee programs make clear that the Agency

has no authority to require industry-funded

monitoring in this instance. They further argue that

the legislative history and definitions in the MSA

support their position.

Plaintiffs’ primary contention is that the MSA

does not authorize industry-funded monitoring and

that the Agency therefore exceeded its statutory

authority in promulgating the Rule. This argument

faces an uphill textual climb. Congress expressly

provided that fishery management plans 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.” 16 U.S.C. § 1853(b)(8).

12a

But, say plaintiffs, “at-sea monitors” -- as the term

is used in the industry-funded monitoring program -are something entirely different than the “observers”

authorized by section 1853(b)(8). We disagree. The

statutory definition of “observers” in the MSA is quite

broad and includes “any person required or

authorized to be carried on a vessel for conservation

and management purposes by regulations or permits

under this [Act].” 16 U.S.C. § 1802(31). This certainly

includes at-sea monitors, who are authorized by

regulation to be carried on a vessel to collect data for

conservation purposes. 50 C.F.R. § 648.11(m)(1)(i)

(requiring at-sea monitors to be carried on Atlantic

herring vessels); id. § 648.2 (defining “observer or

monitor” as “any person authorized by NMFS to

collect ... operational fishing data [or] biological data

... for conservation and management purposes”). The

narrow differentiation in the notice promulgating the

Final Rule, which at one point notes that at-sea

monitors, “in contrast to observers,” would not collect

whole specimens, 85 Fed. Reg. at 7418, does not mean

that at-sea monitors do not form a subset of

“observers.” Rather, it simply acknowledges that the

set of observers is broader than that subset. In short,

the MSA explicitly provides for the placement of atsea monitors on fishing vessels.

Plaintiffs are thus left to argue that Congress

somehow conditioned the Agency’s right to require

monitors on the Agency paying for the cost of the

monitors. And this is indeed plaintiffs’ most

prominently presented argument: Because the

statute, they contend, contains no language allowing

the Agency to force plaintiffs to pay for those

monitors, the Agency lacks the authority to require

any such payments (meaning there will be no

13a

monitors on board unless the government pays for the

monitors). There are two defects with this argument.

First, the “default norm” as “manifest without

express statement in literally hundreds of

regulations, is that the government does not

reimburse regulated entities for the cost of complying

with properly enacted regulations, at least short of a

taking. If this statute needs clarification on this point,

then so too do hundreds of others.” Goethel v. U.S.

Dep’t of Com., 854 F.3d 106, 117–18 (1st Cir. 2017)

(Kayatta, J., concurring). When Congress says that an

agency may require a business to do “X,” and is silent

as to who pays for “X,” one expects that the regulated

parties will cover the cost of “X.”

Plaintiffs insist that the requirement to pay for a

monitor does not fall into this default norm because it

is not a “traditional regulatory cost” and differs from

an ordinary instance of requiring a regulated party to

bear its own costs. The daily salary of a monitor, they

assert, differs from the cost inflicted by other

regulatory requirements, such as those mandating

permits or particular fishing equipment, in both type

(because it pays for a credentialed individual, rather

than a thing or a piece of gear) and degree (because it

is larger). Moreover, they argue, the compliance cost

the MSA inflicts (and that the Agency should try to

reduce per the statute) is represented by the room

fishers make available on their vessels to physically

host observers -- something far short of paying an atsea monitor’s salary.

To a regulated party, paying the expenses of a

credentialed at-sea monitor may well seem different

than paying, for example, a vendor who provides

14a

fishing gear mandated by a regulation, 3 or for an

EPA-required scrubber or monitoring device on a

smoke stack. 4 But plaintiffs offer no authority

indicating that these differences are material to the

question of who pays. To the extent they also argue

that the monitors present a different type of costs

because they are “federal officers,” we disagree. See

infra, Section II.B. We therefore see no reason why

the default rule does not apply: When Congress

expressly authorized plans promulgated under the

MSA to require vessels to carry an observer, it

presumed that the vessels’ owners would bear the cost

of compliance, much like an SEC requirement to

submit independently audited financials imposes on

the regulated entity the cost of paying an independent

accountant. See 15 U.S.C. § 77aa(25)–(27).

See 16 U.S.C. § 1853(b)(4) (allowing fishery

management plans to “prohibit, limit, condition, or

require the use of specified types and quantities of

fishing gear”); 50 C.F.R. § 622.188 (requiring certain

types of gear in order to possess South Atlantic

snapper-grouper).

4 See 42 U.S.C. § 7412(d)(2) (requiring EPA to

promulgate standards “requir[ing] the maximum

degree of reduction in emissions of the hazardous air

pollutants subject to this section”); 40 C.F.R. § 61.122

(defining emission standard from kilns at elemental

phosphorous plants, and noting that compliance will

be shown if certain scrubbers are installed and

operated); id. § 61.126 (requiring owner or operator of

source “using a wet-scrubbing emission control

device” to “install, calibrate, maintain, and operate a

monitoring device”).

15a

Nor are we persuaded that the cost of an at-sea

monitor is different than other compliance costs

because it may be greater than fees imposed

elsewhere in the statute. The vessels decry that they

may be subject to costs of up to 20% of returns-toowner, while in other fishery programs, fees for

observers are capped at 2% or 3%. But the fact that

costs of complying with one regulatory requirement

are greater than the costs of complying with another

regulatory requirement does not mean that the

former is unlawful. 5 Nor do we have here any costs

that are so great as to cause us to think that Congress

without so stating did not presume that they would be

borne by the regulated entities.

Adding belt to suspenders, the government points

out that the statutory support for its position need not

rely only on the implication raised by the default

norm. Section 1858(g)(1)(D) in the MSA allows the

Agency to suspend or revoke the license of any vessel

if any “payment required for observer services

5 It is not clear that the plaintiffs will face a 20%

reduction in their returns-to-owner. The Final Rule

states that the monitoring program “has the potential

to reduce annual [returns-to-owner] ... up to 20

percent.” But that figure represents an estimate

across all types of fishing equipment; the New

England Council’s Omnibus Amendment shows that

for small-mesh bottom trawl vessels, the type of gear

Relentless uses, median returns to owner were

expected to be reduced only by 5.4%. Applied only to

vessels that take more than 50 metric tons of herring

per trip, returns to owner could be reduced even less,

by a median of 2.5%.

16a

provided to or contracted by the owner or operator [of

the vessel] ... has not been paid and is overdue.” 16

U.S.C. § 1858(g)(1)(D). This penalty would make no

sense if Congress did not anticipate that owners

and/or operators of the vessels would be paying the

observers.

Plaintiffs concede that Congress expected that

some vessels would have to pay for monitors, but they

argue that that expectation was limited to payments

required in a few specific instances elsewhere in the

MSA in which Congress expressly authorized the

imposition of monitor costs on vessels (more on these

instances later). But the provision penalizing the

nonpayment of observers appears in a general part of

the MSA applicable to all fisheries and fishery

management plans, rather than in the specific

provisions creating particular fee programs. If

Congress had meant to apply this provision only to

certain fee programs, it likely would have included it

in the sections creating those programs. Or it would

have cross-referenced the specific statutes creating

fee programs in the penalty provision. See Silva v.

Garland, 27 F.4th 95, 103–04 (1st Cir. 2022)

(interpreting statutory language broadly, rather than

as limited by other statutes, when potentially limiting

statutes were not cross-referenced in the broader

statute).

The D.C. Circuit, which recently considered a

similar challenge to the very same Rule, relied on just

such reasoning in rejecting plaintiffs’ position that

the penalty provisions apply only to a few statutorily

specified fee programs. Loper Bright Enters. v.

Raimondo, 45 F.4th 359, 368 (D.C. Cir. 2022)

(reasoning that “the penalties in a broadly applicable

section of the [MSA] appear to recognize the

17a

possibility of industry-contracted and funded

observers beyond [a single] context”). That court

sensibly observed that “[i]f Congress had intended for

penalties associated with industry-funded monitoring

to apply only in in the foreign fishing context, the

court would expect that Congress in the penalty

provisions would have specifically referenced foreign

vessels or included a cross-reference to the foreign

fishing provision.” Id.

In an effort to rebut the clear textual support for

the Agency’s lawful authority to require the vessel

owners to pay for at-sea monitors, plaintiffs point to

other sections of the MSA that expressly authorize

the imposition of fees to be paid to the government to

cover certain observer costs. Plaintiffs ask us to

reason that because Congress expressly authorized

the imposition of fees in three instances, its failure to

do so in the instance of observer costs under section

1853(b)(8) must mean that no such costs can be

imposed on plaintiffs. They also suggest that to read

the MSA as authorizing industry-funded monitoring

would render those other fee provisions superfluous,

a result we usually try to avoid.

The instances to which plaintiffs point in which

the MSA expressly provides for payments of a cost by

the vessels are as follows: First, section 1853a

authorizes and sets requirements for Limited Access

Privilege Programs (LAPPs) to be created in certain

fisheries. To support a LAPP, a Council may “provide

... for a program of fees paid by limited access

privilege holders that will cover the costs of

management, data collection and analysis, and

enforcement activities.” 16 U.S.C. § 1853a(e)(2).

Second, section 1862(a) allows the North Pacific

18a

Council to prepare a “fisheries research plan” for any

fishery within its jurisdiction except a salmon fishery.

Such plans may require that observers be stationed

on vessels, and “establish[ ] a system ... of fees.” Id. §

1862(a)(1)–(2). Third, section 1827(d) imposes fees “in

an amount sufficient to cover all of the costs of

providing an observer aboard that vessel” on foreign

fishing vessels in certain circumstances which may

result in the incidental taking of billfish. Id. § 1827(d).

Plaintiffs contend that these are the only instances in

which industry vessels may be required to pay for

observers.

This argument falters at the threshold because

this is not a case in which the agency need rely only

on the default presumption that a regulated party

presumably bears its own costs. To the contrary, as

we have described in Part II.A.2 of this opinion, the

statutory text provides affirmative confirmation that

Congress presumed that vessel owners would bear

the cost of complying with monitoring requirements.

So plaintiffs’ effort to use these examples to negate

reliance on statutory silence is inapt, or at least

insufficient. In any event, the three instances to

which plaintiffs point do not present apples-to-apples

comparators from which one can infer that anything

mentioned in those instances but not in the general

observer provision was intentionally omitted from the

latter.

First and foremost, no money is paid into

government coffers under the industry-funded

monitoring program. Instead, vessels are required to

obtain and pay for a service from a non-governmental

source, just as they would have to pay for a certain

type of fishing gear. As the Loper Bright court

explained, the fact that Congress instituted a

19a

“different funding mechanism” in the North Pacific

fishery and for LAPPs, where funds are collected by

the Agency and deposited into the Treasury, does not

indicate that Congress intended to preclude the

entirely different mechanism of industry-funded

monitoring. 45 F.4th at 367–68.

Moreover, the North Pacific and LAPP programs

are further distinguishable because the fees fund

agency programs that include more than direct

observer costs. See, e.g., 16 U.S.C. § 1854(d)(2)(A)

(allowing fee “to recover the actual costs directly

related to the management, data collection, and

enforcement of any limited access privilege program,”

without limiting fee to payment for observers);

Fisheries of the Northeastern United States;

Amendment 17 to the Atlantic Surfclam and Ocean

Quahog Fishery Management Plan, 81 Fed. Reg.

38,969, 38971 (June 15, 2016) (in responding to

comment regarding cost recovery program for LAPP,

noting that recoverable costs through fee “would

include the costs of issuing and renewing ITQ

permits, processing cage tag transfers, and tracking

cage tag usage”); 16 U.S.C. § 1862(b)(2)(A) (providing

that fees not exceed “the combined cost” of stationing

observers, “inputting collected data,” and assessing

the necessity of a risk-sharing pool); Groundfish

Fisheries of the Exclusive Economic Zone off Alaska

and Pacific Halibut Fisheries; Observer Program, 77

Fed. Reg. 23,326, 23,339 (April 18, 2012) (explaining

that in North Pacific fee program which was

eventually adopted, “[o]bserver fees would not be

linked to the actual level of observer coverage for

individual vessels and plants,” but rather “each

participant” would pay the same percentage

regardless of when it carried observers). In the

20a

industry-funded monitoring program at issue here, by

contrast, the Agency must pay its own administrative

costs and vessels only pay for observers they actually

carry. As for the third instance -- fees imposed on

foreign vessels for observer costs -- the placement of

observers is authorized under a different provision

than the one relied on by the Agency, because section

1853(b)(8) authorizes observers only on board

“vessel[s] of the United States.” But even putting that

aside, one can easily see why Congress might opt for

a direct fee rather than relying on foreign owners to

arrange for observers themselves. With treaties,

international agreements, and foreign relations at

stake, it makes sense that Congress would have opted

for extra specificity. 6

6 In their reply brief, plaintiffs also point to section

1821(h)(6), which provides that if there are

insufficient appropriations to station an observer on

each foreign vessel, the Secretary shall “establish a

reasonable schedule of fees that certified observers or

their agents shall be paid” by foreign fishing vessel

operators. 16 U.S.C. § 1821(h)(6). As an initial matter,

this argument was raised for the first time on reply,

and absent exceptional circumstances we consider it

waived. See Gottlieb v. Amica Mut. Ins., 57 F.4th 1,

11 (1st Cir. 2022). Even if we were to consider this

argument, we would not find that this provision

renders the Agency’s interpretation unreasonable. It

makes sense that Congress would provide more detail

in a sensitive area (foreign relations) where it wanted

to ensure observer coverage, rather than leaving such

coverage to the discretion of the Agency or a regional

Council. Such a provision does not suggest that

Congress did not delegate authority to the Agency to

21a

Plaintiffs also contend that the costs under the

Final Rule are actually fees paid to the Agency. To

build this argument, they claim that privately

contracted monitors are government employees or

agents. To that end, plaintiffs describe the monitors

engaged by private companies as “federal officers.” To

justify this relabeling, the plaintiffs point to a penalty

provision which provides that interfering with an

“observer” or “data collector” is prohibited by federal

law, 16 U.S.C. § 1857(1)(L), as well as a decision

upholding a conviction for sexually harassing an atsea monitor in violation of this law. See United States

v. Cusick, No. 11-cr-10066, 2012 WL 442005, at *6 (D.

Mass. Feb. 9, 2012). But, establishing that Congress

intended to deter the harassment of monitors falls

well short of establishing that Congress intended to

turn those monitors into “federal officers.” And the

MSA expressly distinguishes the provision that

prohibits assaulting “any observer” or “data collector,”

16 U.S.C. § 1857(1)(L), from a provision prohibiting

similar actions against “officer[s],” id. § 1857(1)(D)(F).

Finally, plaintiffs argue that the legislative

history confirms their preferred interpretation of the

statute. They note that amendments to the MSA

enacted in 1990, which added the fee provisions for

observers in the North Pacific, indicated that “nothing

in [that] section should be construed as affecting the

rights and responsibilities of other Regional Fishery

Management Councils.” H.R. Rep. No. 101-393, at 31

(1989). We have already explained why the industryrequire industry-funded monitoring in other

instances. See Loper Bright, 45 F.4th at 367–68.

22a

funded monitoring program at issue here does not

impose a fee. And in rejecting plaintiffs’ challenge to

the observer rule, we do not (nor did the Agency) rely

on any contention that anything in that section

altered another Council’s rights and responsibilities

by granting new authority to require plaintiffs to

carry observers on board. To the contrary, the

Councils already had that authority, as acknowledged

in the very legislative history on which plaintiffs rely.

See H.R. Rep. No. 101-393, at 28 (1989) (stating that

“the Councils already have -- and have used -- such

authority” to require that observers be carried on

board). 7

***

In sum, we have no trouble finding that the

Agency’s interpretation of its authority to require atsea monitors who are paid for by owners of regulated

vessels does not “exceed[ ] the bounds of the

permissible.” Barnhart v. Walton, 535 U.S. 212, 218,

122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). We need not

decide whether we classify this conclusion as a

product of Chevron step one or step two. Congress

expressly authorized NMFS to require vessels to

carry monitors. And at the very least, it is certainly

reasonable for the Agency to conclude that its exercise

of that authority is not contingent on its payment of

the costs of compliance.

The Agency also points to regulations that

implement industry-funded monitoring in other

fisheries. See, e.g., 50 C.F.R. § 648.11(k)(4)-(5) (sea

scallop vessels required to carry observers must

arrange and pay for those observers).

23a

III.

Having found that the MSA authorizes the

adoption of a rule requiring vessels to procure at their

expense the services of an at-sea monitor, we now

consider plaintiffs’ other challenges to the Agency’s

decision process and procedure in adopting the Rule.

Plaintiffs argue that the Rule is arbitrary and

capricious because it allows for waivers for trips on

which a vessel plans to catch less than 50 metric tons

of herring. This exemption benefits mostly small

mesh bottom trawlers and single midwater trawlers

that make short trips and plan on catches of less than

50 metric tons of herring. Plaintiffs point out that

their larger scale operation, having the capacity to

freeze and hold more fish, catches around 50 metric

tons per day but may harvest many more tons than

that on a per-trip basis. Hence, the waiver is

practically unavailable to them. The result, they

argue, is that plaintiffs would have to pay for an atsea monitor on a single 14-day trip in which they

catch 343 metric tons of herring, but a hypothetical

smaller boat catching 49 metric tons on each of seven

back-to-back 2-day trips (for a total of the same 343

metric tons) would not have to pay for a monitor at

all. Additionally, the flexibility to stay at sea for

longer means that plaintiffs declare into multiple

fisheries before leaving the dock, which means they

may declare that they will catch herring but not

actually take any herring. Thus, not only can they not

use the exemption, but they may be forced to pay for

a herring monitor on a trip where no herring is

caught. Plaintiffs argue that these features render

the Rule and the exemptions arbitrary and capricious.

24a

“The scope of review under the ‘arbitrary and

capricious’ standard is narrow and a court is not to

substitute its judgment for that of the agency.”

Sorreda Transp., LLC v. DOT, 980 F.3d 1, 3 (1st Cir.

2020) (quoting Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct.

2856, 77 L.Ed.2d 443 (1983)). Under this deferential

standard, “[a]n agency rule is arbitrary and

capricious if the agency lacks a rational basis for

adopting it -- for example, if the agency relied on

improper factors, failed to consider pertinent aspects

of the problem, offered a rationale contradicting the

evidence before it, or reached a conclusion so

implausible that it cannot be attributed to a

difference of opinion or the application of agency

expertise.” Associated Fisheries of Me., Inc. v. Daley,

127 F.3d 104, 109 (1st Cir. 1997).

Here, the Agency expressly considered plaintiffs’

objections and rejected them. It stated:

In an effort to minimize the economic impact

of industry-funded monitoring, the Council

explicitly considered measures to address

Seafreeze’s 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.

Ultimately, the Council determined that the

potential for a relatively high herring catches

per trip aboard those vessels warranted

additional monitoring and chose the 50 mt

per trip threshold.

25a

85 Fed. Reg. at 7426. The Agency also found it highly

unlikely that plaintiffs would be paying as much as

they claimed for trips that did not take herring, based

on cost estimates contained in the Environmental

Assessment. Id. So plaintiffs cannot argue that the

Agency failed to consider their objections. 8 Nor do

they develop any contention that the explanation

given by the agency relied on any factors prohibited

by Congress or ran counter to the available evidence.

And the rationale given by the Agency -- “that the

potential for a relatively high herring catches per trip

aboard

those

vessels

warranted

additional

monitoring” -- does not strike us as “so implausible

that it cannot be attributed to a difference in view or

the applicable agency expertise.” Associated Fisheries

of Me., 127 F.3d at 109. To the contrary,

determinations as to whether monitoring will be more

effective on a per-trip basis or per-day basis seem

squarely within the expertise of the Agency. Although

we agree that the Agency could have provided a more

thorough explanation than it did, we do not find the

per-trip waiver to be arbitrary and capricious on its

face. Certainly, one can see why monitoring per trip

rather than per day may be easier to administer, and

why plaintiffs’ uncertainty about how much herring

they will decide to catch might counsel for including a

monitor rather than not. See id. at 111 (“Whether or

not we, if writing on a pristine page, would have

reached the same set of conclusions is not the issue.

What matters is that the administrative judgment,

right or wrong, derives from the record, possesses a

rational basis, and evinces no mistake of law.”)

Plaintiffs presented no evidence that their

hypothetical scenarios actually occur.

26a

Plaintiffs further contend that the Rule violates

several National Standards contained in the MSA. All

fishery management plans must be consistent with

ten National Standards, which “are broadly worded

statements of the MSA’s objectives for all fishery

conservation and management measures.” Lovgren,

701 F.3d at 32. “The purposes of the national

standards are many, and can be in tension with one

another.” Id. As such, “we will uphold a regulation

against a claim of inconsistency with a ‘national

standard’ under § 1851 if the [Agency] had a ‘rational

basis’ for it.” Id. (quoting Or. Trollers Ass’n v.

Gutierrez, 452 F.3d 1104, 1119 (9th Cir. 2006)).

First, plaintiffs allege that the Rule violates

National Standard One (which requires plans to

“prevent overfishing while achieving, on a continuing

basis, the optimum yield from each fishery,” 16 U.S.C.

§ 1851(a)(1)) because it disproportionately burdens

them although they take less bycatch and herring

than other types of trawlers, and because it allows

boats taking more herring to harvest without

monitors. The government counters that the purpose

of the industry-funded monitoring requirement -more accurately tracking catch -- will allow better

calibration of regulation, and thus furthers the goals

of National Standard One. We agree that the rule

implementing

industry-funded

monitoring

consistent with the Standard for this reason. The

district court also pointed out that plaintiffs’

argument here relates to the distribution of herring

catch between vessels, not the optimum yield for the

fishery as a whole. This mismatch between plaintiffs’

complaint and the actual subject of the Standard

27a

further renders their challenge under National

Standard One unavailing.

Second, plaintiffs allege that the Rule violates

National Standard Two, which requires that plans “be

based upon the best scientific information available,”

16 U.S.C. § 1851(a)(2), because it burdens them

without “scientific evidence of clear increase in

Atlantic herring stocks” as a result of the Rule. But

they do not actually allege that the Agency ignored

specific scientific data or point to better data

available. “If no one proposed anything better, then

what is available is the best.” Massachusetts ex rel.

Div. of Marine Fisheries v. Daley, 170 F.3d 23, 30 (1st

Cir. 1999). National Standard Two does not require

the Agency to wait to regulate because it does not

have certain data. See 50 C.F.R. § 600.315(e)(2) (“The

fact that scientific information concerning a fishery is

incomplete does not prevent the preparation or

implementation of an FMP.”). Nor does it prohibit an

agency from regulating in the face of some

uncertainty about the effects of its chosen rule. See

Coastal Conservation Ass’n v. U.S. Dep’t of Com., 846

F.3d 99, 109 (5th Cir. 2017) (explaining that where

economic impacts of rule were uncertain because they

depended on the choices of several parties, “[t]he

National Standards [did] not require analysis of

unpredictable, and thus unavailable, data”). Where,

as here, plaintiffs point to no data they say should

have been considered or relied upon -- and where the

very purpose of the Rule is to gather better data to be

used in future fishery management -- we find that the

regulation complies with National Standard Two. See

Massachusetts ex rel. Div. of Marine Fisheries, 170

F.3d at 30; see also Coastal Conservation Ass’n, 846

F.3d at 109 (finding that National Standard Two was

28a

not violated where no one pointed to data that

Secretary had ignored, and citing cases doing the

same).

The Rule also does not violate National Standard

Six (which requires the Agency to account for

“variations among, and contingencies in, fisheries,

fishery resources, and catches,” 16 U.S.C. §

1851(a)(6)). The regulations implementing this

National Standard focus on maintaining flexibility to

adjust to uncertainty or changed circumstances. 50

C.F.R. § 600.335; see J.H. Miles & Co. v. Brown, 910

F. Supp. 1138, 1155 (E.D. Va. 1995) (“National

Standard Six, on its face, dictates flexibility on the

part of fishery managers. It suggests that the

Secretary and his designees must be prepared to

address uncertainties or changes that might arise.”).

Plaintiffs’ challenge has nothing to do with flexibility

to adjust to changing circumstances, but rather

protests that the Rule does not adequately take their

unique style of fishing or community into account. As

with their challenge based on National Standard One,

this mismatch between what the Standard requires

and the nature of Plaintiffs’ challenge renders their

complaints unavailing. We do not see anything in the

National Standard that requires the Agency to

change its regulations to eliminate all differential

impacts on all of the varied types of vessels. See Ace

Lobster Co. v. Evans, 165 F. Supp. 2d 148, 182 (D.R.I.

2001) (“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.”).

Finally, the Rule does not violate National

Standards Seven and Eight, which require the

Agency to consider fishery resources and cost

29a

burdens. See 16 U.S.C. § 1851(a)(7) (plans “shall,

where practicable, minimize costs and avoid

unnecessary duplication”); id. § 1851(a)(8) (plans

shall “utiliz[e] economic and social data ... to (A)

provide for the sustained participation of such

communities, and (B) to the extent practicable,

minimize adverse economic impacts on such

communities”). Plaintiffs argue that the Rule violates

these standards because their boats bear heavier

regulatory burdens than other boats. As a result, they

claim, National Standard Seven “has been completely

ignored,” and National Standard Eight “has been

violated in the same way” because “Appellants are not

more damaging” to the fishery, but their community

bears the brunt of severe impacts.

Our precedent suggests that “the required

analysis of alternatives and impacts [under National

Standard 8] is subject to a rule of reason, for study

could go on forever.” Little Bay Lobster Co. v. Evans,

352 F.3d 462, 470 (1st Cir. 2003). “About the best a

court can do is ask whether the [Agency] has

examined the impacts of, and alternatives to, the plan

[it] ultimately adopts and whether a challenged

failure to carry the analysis further is clearly

unreasonable, taking account of the usual

considerations ....” Id. Moreover, we are mindful that

“the plain language of [National Standard] 8 and its

advisory guidelines make clear that these obligations

are subordinate to the MSA’s overarching

conservation goals.” Lovgren, 701 F.3d at 35.

Here, the Agency has done what is required under

National Standards Seven and Eight. The National

Standards require consideration, not adoption, of

alternatives; they also require the Agency to

minimize costs “where practicable,” not to eliminate

30a

cost burdens entirely. The Agency considered various

coverage targets to meet its goal of gathering

additional data, balanced those targets with costs,

and selected a 50% monitoring target. Similarly, it

adopted a waiver for boats taking less than 50 metric

tons of herring per trip, after considering and

rejecting Relentless’ proposed alternative waiver. 85

Fed. Reg. at 7425–26. The New England Council’s

Omnibus Amendment also considered in detail the

economic impacts to industry participants using

various gear types. The Agency explained how

exemptions for vessels catching below a certain

weight threshold per trip would minimize cost

impacts. 85 Fed. Reg. at 7430. Nothing in our prior

opinions suggests that the National Standards

require that cost and community impacts, even those

disproportionately borne by some regulated parties,

must be eliminated or distributed exactly evenly

under National Standards Seven and Eight among

those who employ different methods of fishing.

Plaintiffs’ challenges under each of the National

Standards boil down to arguments that the Rule

burdens them more heavily than it burdens others

without a clear enough justification, or without

adopting an alternative they suggested. But they

have not proffered the types of evidence or argument

under which courts have found that agency actions

violate the National Standards. For example, they do

not argue that the differential treatment of different

fishers under the Rule was based not on scientific

data, but on political compromise. See Hadaja, Inc. v.

Evans, 263 F. Supp. 2d 346, 354 (D.R.I. 2003); Hall v.

Evans, 165 F. Supp. 2d 114, 136 (D.R.I. 2001). They

also cannot show that no reason was given either for

the Rule itself or for the scope of the exceptions. See

31a

Massachusetts ex rel. Div. of Marine Fisheries, 170

F.3d at 31–32; Hall, 165 F. Supp. 2d at 137–38. The

Agency gave reasons for adopting the Rule and the

waivers; the fact that those reasons were

unsatisfactory to these plaintiffs does not mean that

the Rule violates the National Standards.

This is not to say that the Rule, or the Agency’s

explanation for it, is a model of clarity. Plaintiffs point

out several features of the Rule (for example, the

hypothetical ability of a boat to take more overall

herring with no monitoring under the structure of the

exemptions) that might cause one to wonder if the

Agency could have tailored the rule more precisely or

chosen a different alternative. But adoption of the

Rule, and consideration of alternatives, was the

Agency’s prerogative; it met its obligations to respond

to comments and explain the reason for the Rule’s

adoption and structure. Plaintiffs’ criticisms that the

Rule does not account for peculiarities of their specific

businesses under all hypothetical scenarios do not

convince us that the Rule violates the National

Standards.

Plaintiffs also contend that the Rule violates the

RFA, which requires agencies to consider the effects

of their actions on small businesses. Associated

Fisheries of Me., 127 F.3d at 110, 116. Agencies must

publish interim and final regulatory flexibility

analyses in the Federal Register along with Notices of

Proposed Rulemaking, and make them available for

comment in the same way. 5 U.S.C. §§ 603–04. These

analyses are reviewable under the APA in a similar

manner to final agency actions. Id. § 611.

Here, the Final Rule states that the Agency

considered the impact of the Rule on small

32a

businesses, and, to address that impact, set the

monitoring target at 50% of trips (rather than 75% or

100%) and allowed waivers on certain types of trips.

85 Fed. Reg. at 7429–30. Plaintiffs argue that the

Agency nonetheless violated the RFA because it did

not consider the effect of its actions on, or include

recommendations to assist, businesses that freeze

catch at sea like themselves. They also argue that the

Agency did not adequately respond to comments in

response to the RFA, did not consider data regarding

a drop in fishermen, and did not make a plan to

ensure monitors are allocated fairly across the fleet.

The RFA “does not alter the substantive mission

of the agencies” but creates “procedural obligations.”

Little Bay Lobster, 352 F.3d at 470–71. The Agency

met those here. The Agency explained potential

impacts on small businesses and accordingly

described how it mitigated those impacts, largely by

setting the monitoring coverage target at 50% and by

setting a weight threshold for monitored trips that

would exempt many small businesses from the

requirement to carry a monitor. 85 Fed. Reg. at 7429–

30. The Agency also explained why it disagreed that

small businesses would be forced out of fishing.

Finally, as discussed above, it explained why it did

not adopt alternative measures that Relentless

suggested. 75 Fed. Reg. at 7426. Plaintiffs’ suggestion

that the Agency could have done more to respond to

their specific concerns is not without some appeal.

But the RFA only required the Agency to consider and

respond to comments and to evaluate the impact of its

action on small businesses. It did so here. See Little

Bay Lobster, 352 F.3d at 471 (noting that “there is no

requirement as to the amount of detail with which

specific comments need to be discussed,” and that

33a

“[t]he agency’s obligation is simply to make a

reasonable good faith effort to address comments and

alternatives.”)

Finally, plaintiffs claim that, by forcing them “to

participate in the market” for at-sea monitors, the

Rule is an unconstitutional exercise of Congress’s

commerce power under the Supreme Court’s decision

in NFIB v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 183

L.Ed.2d 450 (2012). That case, plaintiffs argue, held

that Congress cannot force individuals to become

active in a market in which they do not already

participate. They argue that because Congress has

forced them to become unwilling participants in the

market for at-sea monitors, the Rule is

unconstitutional since it is beyond the power of the

Commerce Clause.

We reject this contention. Plaintiffs harvest a

national resource for economic gain. But no one is

forcing plaintiffs to participate in any market. Rather,

they choose to engage in an activity that has long been

subject to regulation. In so doing, they can hardly

complain about complying with the otherwise lawful

regulations that govern the manner in which they

engage in that activity merely because compliance

requires some payment to another person, whether a

seller of nets or life preservers, or a seller of

monitoring services. 9

9 To

the extent plaintiffs challenge the Rule as

violating

constitutional

controls

taxing,

appropriations, and spending, U.S. Const. art. I, §§ 1,

7, 8, those challenges are referenced only in passing,

are undeveloped, and are therefore waived. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

34a

IV.

For the foregoing reasons, we hold that the rule

requiring plaintiffs to bear the costs of complying with

on-board monitor regulation is authorized by

Congress and is otherwise immune to plaintiffs’

assorted procedural and substantive challenges. We

therefore affirm the judgment of the district court.

1990). Similarly, any potential Fourth Amendment

argument was not raised in the briefing on appeal,

and is therefore waived.

35a

Appendix B

United States District Court

for the District of Rhode Island

RELENTLESS INC., et al., Plaintiffs,

U.S. DEPARTMENT OF COMMERCE, et al.,

Defendant.

C.A. No. 20-108 WES

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.

36a

37, is DENIED, and Defendants’ Cross-Motion for

Summary Judgment, ECF No. 38, is GRANTED. 10

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

“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

The Court substitutes the Secretary of

Commerce, Gina M. Raimondo, for Wilbur L. Ross;

Richard Spinrad, NOAA Administrator, for Neil

Jacobs; and Janet Coit, Assistant Administrator for

NOAA Fisheries, for Chris Oliver. See Fed. R. Civ. P.

25(d).

37a

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, 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

38a

Management Council (“Council”) in 2000. AR17104. 11

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

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 IndustryFunded Monitoring Omnibus Amendment (“Omnibus

Amendment”), later approved by the National Marine

Fisheries Service (“NMFS”), which provided for

onboard 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 species. Id.

11 The Court cites the Administrative Record, ECF

Nos. 21-30, 34, using the Bates numbering system

utilized by the parties.

39a

at 7417-18 (AR17734-35). The program has a

coverage target – including both SBRM and industryfunded monitoring – of fifty percent. Id. at 7417

(AR17734). The two types of monitoring do not cooccur 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 fiftypercent 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 atsea 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 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

40a

amendment on November 7, 2018, with a forty-sevenday 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 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

41a

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, 91

S.Ct. 814, 28 L.Ed.2d 136 (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 Secretary 12 has,

“without Congressional authorization, ‘erected’ a ‘new

office[ ] and sent hither swarms of officers to harass’

Plaintiffs ‘and eat out their 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

12 The Court refers to Defendants collectively as

the “Secretary.”

42a

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,

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

i. Whether

Spoken

Congress

Has

Directly

The Secretary argues that the following statutory

provisions of the MSA, when construed in a

harmonious fashion, demonstrate that Congress has

43a

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 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.

44a

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-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)). 13 However, the words “or contracted

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

45a

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.” 14 16 U.S.C. § 1854(d)(2)(A). These 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.”

claims. Goethel v. U.S. Dept. of Com., 854 F.3d 106,

108 (1st Cir. 2017).

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.

46a

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 abovementioned 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), 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

47a

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. 15

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

15 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 industry to pay third-party monitors

directly. Thus, Anglers does not help Plaintiffs’ cause.

48a

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, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001);

see also Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.

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, 121 S.Ct. 2164. 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, 120 S.Ct. 1655, 146 L.Ed.2d 621

(2000) (citing Skidmore v. Swift & Co., 323 U.S. 134,

140, 65 S.Ct. 161, 89 L.Ed. 124 (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, 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, 135 S.Ct. 2699, 192 L.Ed.2d

674 (2015) (citing Chevron, 467 U.S. at 842-43, 104

S.Ct. 2778). In other words, an interpretation will be

upheld if it “represents a reasonable accommodation

49a

of conflicting policies that were committed to the

agency's care.” Chevron, 467 U.S. at 845, 104 S.Ct.

2778. 16

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 point to the casus

omissus doctrine, which states that “nothing is to be

16 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, ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d

841 (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. at 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, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014)

(holding agency’s interpretation to be unreasonable,

despite Chevron deference); Michigan v. EPA, 576

U.S. 743, 751, 135 S.Ct. 2699, 192 L.Ed.2d 674 (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,

119 S.Ct. 721, 142 L.Ed.2d 835 (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.

50a

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 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

51a

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)). 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.

52a

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).

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

53a

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. 17

However, 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

Just because a fishery is not approaching

overfished status does not mean that NMFS cannot

institute a fishery management plan. 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).

54a

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 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. 18

18 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

55a

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, 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

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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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 [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. 19 However, this explanation

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

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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 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

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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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 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

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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

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

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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 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-andcomment 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.

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But, to be clear, the Secretary did not approve the

amendment before its comment period had concluded.

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 rulemakings 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 the

impact on small businesses, the agency must issue a

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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, 14647 (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 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-

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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, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012)

(quoting United States v. Darby, 312 U.S. 100, 118–

119, 312 U.S. 657, 118–119, 61 S.Ct. 451, 85 L.Ed. 609

(1941)). In Sibelius, the Supreme Court examined a

provision of the Affordable Care Act that imposed a

monetary penalty on any individual who failed to

maintain health insurance. Id. at 538-39, 132 S.Ct.

2566. 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, 132 S.Ct. 2566. The Chief Justice therefore

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reasoned that the law could not be justified under the

Commerce Clause. Id. at 558, 132 S.Ct. 2566; see also

id. at 650-660, 132 S.Ct. 2566 (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, 132 S.Ct. 2566

(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 participants. Therefore, 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 industryfunded monitoring was necessary and appropriate to

65a

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

Defendants’ Cross-Motion for Summary Judgment,

ECF No. 38, is GRANTED.

IT IS SO ORDERED.

William E. Smith

District Judge

Date: September 20, 2021

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Appendix C

RELEVANT STATUTORY PROVISIONS

16 U.S.C. § 1821(h). Foreign fishing

(h) Full observer coverage program

(1) (A) Except as provided in paragraph (2), the

Secretary shall establish a program under

which a United States observer will be

stationed aboard each foreign fishing vessel

while that vessel is engaged in fishing within

the exclusive economic zone.

(B) The Secretary shall by regulation prescribe

minimum health and safety standards that

shall be maintained aboard each foreign

fishing vessel with regard to the facilities

provided for the quartering of, and the carrying

out of observer functions by, United States

observers.

(2) The requirement in paragraph (1) that a

United States observer be placed aboard each

foreign fishing vessel may be waived by the

Secretary if he finds that(A) in a situation where a fleet of harvesting

vessels transfers its catch taken within the

exclusive economic zone to another vessel,

aboard which is a United States observer, the

stationing of United States observers on only a

portion of the harvesting vessel fleet will

provide a representative sampling of the bycatch of the fleet that is sufficient for purposes

67a

of determining whether the requirements of

the applicable management plans for the bycatch species are being complied with;

(B) in a situation where the foreign fishing

vessel is operating under a Pacific Insular Area

fishing agreement, the Governor of the

applicable Pacific Insular Area, in consultation

with the Western Pacific Council, has

established an observer coverage program or

other monitoring program that the Secretary,

in consultation with the Western Pacific

Management Council, determines is adequate

to monitor harvest, bycatch, and compliance

with the laws of the United States by vessels

fishing under the agreement;

vessel will engage in fishing within the

exclusive economic zone will be of such short

duration that the placing of a United States

observer aboard the vessel would be

impractical; or

(D) for reasons beyond the control of the

Secretary, an observer is not available.

(3) Observers, while stationed aboard foreign fishing

vessels, shall carry out such scientific, compliance

monitoring, and other functions as the Secretary

deems necessary or appropriate to carry out the

purposes of this chapter; and shall cooperate in

carrying out such other scientific programs relating to

the conservation and management of living resources

as the Secretary deems appropriate.

(4) In addition to any fee imposed under section

1824(b)(10) of this title and section 1980(e) of Title 22

with respect to foreign fishing for any year after 1980,

68a

the Secretary shall impose, with respect to each

foreign fishing vessel for which a permit is issued

under such section 1824 of this title, a surcharge in

an amount sufficient to cover all the costs of providing

a United States observer aboard that vessel. The

failure to pay any surcharge imposed under this

paragraph shall be treated by the Secretary as a

failure to pay the permit fee for such vessel under

section 1824(b)(10) of this title. All surcharges

collected by the Secretary under this paragraph shall

be deposited in the Foreign Fishing Observer Fund

established by paragraph (5).

(5) There is established in the Treasury of the United

States the Foreign Fishing Observer Fund. The Fund

shall be available to the Secretary as a revolving fund

for the purpose of carrying out this subsection. The

Fund shall consist of the surcharges deposited into it

as required under paragraph (4). All payments made

by the Secretary to carry out this subsection shall be

paid from the Fund, only to the extent and in the

amounts provided for in advance in appropriation

Acts. Sums in the Fund which are not currently

needed for the purposes of this subsection shall be

kept on deposit or invested in obligations of, or

guaranteed by, the United States.

(6) If at any time the requirement set forth in

paragraph (1) cannot be met because of insufficient

appropriations, the Secretary shall, in implementing

a supplementary observer program:

(A) certify as observers, for the purposes of this

subsection, individuals who are citizens or

nationals of the United States and who have the

requisite education or experience to carry out the

functions referred to in paragraph (3);

69a

(B) establish standards of conduct for certified

observers equivalent to those applicable to

Federal personnel;

certified observers or their agents shall be paid

by the owners and operators of foreign fishing

vessels for observer services; and

(D) monitor the performance of observers to

ensure that it meets the purposes of this

chapter.

16 U.S.C. § 1827. Observer program regarding

certain foreign fishing

(a) Definitions

As used in this section-(1) The term “Act of 1976” means the MagnusonStevens Fishery Conservation and Management

Act (16 U.S.C. 1801 et seq.).

(2) The term “billfish” means any species of

marlin, spearfish, sailfish or swordfish.

(3) The term “Secretary” means the Secretary of

Commerce.

(b) Observer program

The Secretary shall establish a program under which

a United States observer will be stationed aboard

each foreign fishing vessel while that vessel-(1) is in waters that are within-(A) the fishery conservation zone established

under section 101 of the Act of 1976, and

70a

(B) the Convention area as defined in Article I

of the International Convention for the

Conservation of Atlantic Tunas; and

(2) is taking or attempting to take any species of

fish if such taking or attempting to take may result

in the incidental taking of billfish.

The Secretary may acquire observers for such

program through contract with qualified private

persons.

United States observers, while aboard foreign fishing

vessels as required under subsection (b), shall carry

out such scientific and other functions as the

Secretary deems necessary or appropriate to carry out

this section.

(d) Fees

There is imposed for each year after 1980 on the

owner or operator of each foreign fishing vessel that,

in the judgment of the Secretary, will engage in

fishing in waters described in subsection (b)(1) during

that year which may result in the incidental taking of

billfish a fee in an amount sufficient to cover all of the

costs of providing an observer aboard that vessel

under the program established under subsection (a).

The fees imposed under this subsection for any year

shall be paid to the Secretary before that year begins.

All fees collected by the Secretary under this

subsection shall be deposited in the Fund established

by subsection (e).

(e) Fund

There is established in the Treasury of the United

States the Foreign Fishing Observer Fund. The Fund

shall be available to the Secretary as a revolving fund

for the purpose of carrying out this section. The Fund

71a

shall consist of the fees deposited into it as required

under subsection (d). All payments made by the

Secretary to carry out this section shall be paid from

the Fund, only to the extent and in the amounts

provided for in advance in appropriation Acts. Sums

in the Fund which are not currently needed for the

purposes of this section shall be kept on deposit or

invested in obligations of, or guaranteed by, the

United States.

(f) Prohibited acts

(1) It is unlawful for any person who is the owner

or operator of a foreign fishing vessel to which this

section applies-(A) to violate any regulation issued under

subsection (g);

(B) to refuse to pay the fee imposed under

subsection (d) after being requested to do so by

the Secretary; or

authorized to act as an observer under this

section with respect to that vessel to board the

vessel for purposes of carrying out observer

functions.

(2) Section 308 of the Act of 1976 (relating to civil

penalties) applies to any act that is unlawful under

paragraph (1), and for purposes of such application

the commission of any such act shall be treated as

an act the commission of which is unlawful under

section 307 of the Act of 1976.

(g) Regulations

The Secretary shall issue such regulations as are

necessary or appropriate to carry out this section.

72a

16 U.S.C. § 1853(a)(1)(A)-(C), (a)(6).

Contents of fishery management plans

(a) Required provisions

Any fishery management plan which is prepared by

any Council, or by the Secretary, with respect to any

fishery, shall-(1) contain the conservation and management

measures, applicable to foreign fishing and fishing

by vessels of the United States, which are-(A) necessary and appropriate for the

conservation and management of the fishery,

to prevent overfishing and rebuild overfished

stocks, and to protect, restore, and promote the

long-term health and stability of the fishery;

(B) described in this subsection or subsection

(b), or both; and

other provisions of this chapter, regulations

implementing

recommendations

international organizations in which the

United States participates (including but not

limited to closed areas, quotas, and size limits),

and any other applicable law;

(6) consider and provide for temporary

adjustments, after consultation with the Coast

Guard and persons utilizing the fishery,

regarding access to the fishery for vessels

otherwise prevented from harvesting because of

weather or other ocean conditions affecting the

73a

safe conduct of the fishery; except that the

adjustment

shall

not

adversely

affect

conservation efforts in other fisheries or

discriminate among participants in the affected

fishery;

16 U.S.C. § 1853(b)(7)-(8). Contents of

fishery management plans

(b) Discretionary provisions

Any fishery management plan which is prepared by

any Council, or by the Secretary, with respect to any

fishery, may-*

(7) require fish processors who first receive fish

that are subject to the plan to submit data which

are necessary for the conservation and

management of the fishery;

(8) 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;

except that such a vessel shall not be required to

carry an observer on board if the facilities of the

vessel for the quartering of an observer, or for

carrying out observer functions, are so inadequate

or unsafe that the health or safety of the observer

or the safe operation of the vessel would be

jeopardized;

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16 U.S.C. § 1853(c). Contents of fishery

management plans

Proposed regulations which the Council deems

necessary or appropriate for the purposes of-(1) implementing a fishery management plan or

plan amendment shall be submitted to the

Secretary simultaneously with the plan or

amendment under section 1854 of this title; and

(2) making

modifications

regulations

implementing a fishery management plan or plan

amendment may be submitted to the Secretary at

any time after the plan or amendment is approved

under section 1854 of this title.

16 U.S.C. § 1853a(c)(1), (e). Limited access

privilege programs

(1) In general

Any limited access privilege program to harvest

fish submitted by a Council or approved by the

Secretary under this section shall-(A) if established in a fishery that is overfished

or subject to a rebuilding plan, assist in its

rebuilding;

(B) if established in a fishery that is

determined by the Secretary or the Council to

have over-capacity, contribute to reducing

capacity;

75a

(ii) fishery conservation and management;

and

(iii) social and economic benefits;

(D) prohibit any person other than a United

States citizen, a corporation, partnership, or

other entity established under the laws of the

United States or any State, or a permanent

resident alien, that meets the eligibility and

participation requirements established in the

program from acquiring a privilege to harvest

fish, including any person that acquires a

limited access privilege solely for the purpose

of perfecting or realizing on a security interest

in such privilege;

(E) require that all fish harvested under a

limited access privilege program be processed

on vessels of the United States or on United

States soil (including any territory of the

United States);

(F) specify the goals of the program;

(G) include provisions for the regular

monitoring and review by the Council and the

Secretary of the operations of the program,

including determining progress in meeting the

goals of the program and this chapter, and any

necessary modification of the program to meet

those goals, with a formal and detailed review

5 years after the implementation of the

program and thereafter to coincide with

scheduled Council review of the relevant

fishery management plan (but no less

frequently than once every 7 years);

(H) include an effective system for

enforcement, monitoring, and management of

76a

the program, including the use of observers or

electronic monitoring systems;

(I)

include

appeals

process

for

administrative review of the Secretary's

decisions regarding initial allocation of limited

access privileges;

(J) provide for the establishment by the

Secretary, in consultation with appropriate

Federal agencies, for an information collection

and review process to provide any additional

information needed to determine whether any

illegal acts of anti-competition, anti-trust, price

collusion, or price fixing have occurred among

regional fishery associations or persons

receiving limited access privileges under the

program; and

(K) provide for the revocation by the Secretary

of limited access privileges held by any person

found to have violated the antitrust laws of the

United States.

(e) Cost recovery

In establishing a limited access privilege program, a

Council shall-(1) develop a methodology and the means to

identify and assess the management, data

collection and analysis, and enforcement programs

that are directly related to and in support of the

program; and

(2) provide, under section 1854(d)(2) of this title,

for a program of fees paid by limited access

privilege holders that will cover the costs of

77a

management, data collection and analysis, and

enforcement activities.

16 U.S.C. § 1857(1)(L). Prohibited acts

It is unlawful-(1) for any person-*

(L) to forcibly assault, resist, oppose, impede,

intimidate, sexually harass, bribe, or interfere with

any observer on a vessel under this chapter, or any

data collector employed by the National Marine

Fisheries Service or under contract to any person to

carry out responsibilities under this chapter;

16 U.S.C. § 1862(a)-(b). North Pacific fisheries

conservation

(a) In general

The North Pacific Council may prepare, in

consultation with the Secretary, a fisheries research

plan for any fishery under the Council's jurisdiction

except a salmon fishery which-(1) requires that observers be stationed on fishing

vessels engaged in the catching, taking, or

harvesting of fish and on United States fish

processors fishing for or processing species under

the jurisdiction of the Council, including the

Northern Pacific halibut fishery, for the purpose of

collecting data necessary for the conservation,

management, and scientific understanding of any

fisheries under the Council's jurisdiction; and

78a

(2) establishes a system, or system,1 of fees, which

may vary by fishery, management area, or

observer coverage level, to pay for the cost of

implementing the plan.

(b) Standards

(1) Any plan or plan amendment prepared under

this section shall be reasonably calculated to-(A) gather reliable data, by stationing

observers on all or a statistically reliable

sample of the fishing vessels and United States

fish processors included in the plan, necessary

for the conservation, management, and

scientific understanding of the fisheries

covered by the plan;

(B) be fair and equitable to all vessels and

processors;

law; and

(D) take into consideration the operating

requirements of the fisheries and the safety of

observers and fishermen.

(2) Any system of fees established under this

section shall-(A) provide that the total amount of fees

collected under this section not exceed the

combined cost of (i) stationing observers, or

electronic monitoring systems, on board fishing

vessels and United States fish processors, (ii)

the actual cost of inputting collected data, and

(iii) assessments necessary for a risk-sharing

pool implemented under subsection (e) of this

section, less any amount received for such

purpose from another source or from an

existing surplus in the North Pacific Fishery

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Observer Fund established in subsection (d) of

this section;

(B) be fair and equitable to all participants in

the fisheries under the jurisdiction of the

Council, including the Northern Pacific halibut

fishery;

pay any costs of administrative overhead or

other costs not directly incurred in carrying out

the plan;

(D) not be used to offset amounts authorized

under other provisions of law;

(E) be expressed as a fixed amount reflecting

actual observer costs as described in

subparagraph (A) or a percentage, not to

exceed 2 percent, of the unprocessed ex-vessel

value of fish and shellfish harvested under the

jurisdiction of the Council, including the

Northern Pacific halibut fishery;

(F) be assessed against some or all fishing

vessels and United States fish processors,

including those not required to carry an

observer or an electronic monitoring system

under the plan, participating in fisheries under

the jurisdiction of the Council, including the

Northern Pacific halibut fishery;

(G) provide that fees collected will be deposited

in the North Pacific Fishery Observer Fund

established under subsection (d) of this section;

(H) provide that fees collected will only be used

for implementing the plan established under

this section;

(I) provide that fees collected will be credited

against any fee for stationing observers or

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electronic monitoring systems on board fishing

vessels and United States fish processors and

the actual cost of inputting collected data to

which a fishing vessel or fish processor is

subject under section 1854(d) of this title; and

(J) meet the requirements of section 9701(b) of

Title 31.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.