2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-16-2011

Gen Category Scallop Fishermen v. Secretary US

Dept Commerce

Precedential or Non-Precedential: Precedential

Docket No. 10-2341

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2341

_____________

GENERAL CATEGORY SCALLOP FISHERMEN, 

 Appellant 

v.

SECRETARY, UNITED STATES DEPARTMENT OF 

COMMERCE; THE NATIONAL OCEANIC AND 

ATMOSPHERIC ADMINISTRATION; 

THE NATIONAL MARINE FISHERIES SERVICE

_______________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 3-08-cv-02264

District Judge: The Honorable Mary L. Cooper

Argued: January 27, 2011

Before: McKEE, Chief Judge, SMITH, Circuit Judge,

and STEARNS, District Judge*

(Filed: March 16, 2011)

 

*

The Honorable Richard G. Stearns, United States 

District Judge for the United States District Court of 

Massachusetts, sitting by designation.
2

Patrick F. Flanigan, Esq. (Argued)

P.O. Box 42

Swarthmore, PA 19081

Attorney for Plaintiff-Appellant

Thekla Hansen-Young, Esq. (Argued)

United States Department of Justice

Environment & Natural Resources Division

P.O. Box 23795

L=Enfant Plaza Station

Washington, D.C. 20026-000

Attorney for Defendant-Appellee

OPINION

STEARNS, District Judge.

This appeal arises from a dispute over the right of 

fishermen to access the Atlantic Sea Scallop Fishery. At 

issue is an order of the United States District Court for the 

District of New Jersey denying summary judgment on all 

claims by Appellants, who are former general category 

scallop permit holders, while granting summary judgment 

on all claims to Appellees Gary Locke, in his capacity as 

Secretary of the United States Department of Commerce, 

National Oceanic and Atmospheric Administration 
3

(NOAA), and National Marine Fisheries Service (NMFS). 

We are asked to resolve: (1) whether NMFS complied with 

the Administrative Procedures Act (APA), 5 U.S.C. '' 701-

706, and the Magnuson-Stevens Fishery Conservation and 

Management Act of 1976 (Magnuson-Stevens Act), 16 

U.S.C. '' 1801-1883, when it promulgated regulations 

implementing Amendment 11 to the Atlantic Sea Scallop 

Fishery Management Plan, including a Acontrol date@ that 

effectively terminated the access rights of general scallop 

fishermen who were not established in the fishery prior to 

November 1, 2004; (2) whether the process by which 

Amendment 11 was adopted complied with the MagnusonStevens Act requirement that public hearings be held in 

Aappropriate locations in the geographical area@ that will be 

affected by changes to a Fishery Management Plan (FMP); 

(3) whether NMFS reasonably concluded that Amendment 

11=s reliance on NMFS internal dataset to determine permit 

eligibility complied with the Magnuson-Stevens Act=s 

National Standard 2, which requires the use of the Abest 

scientific information available@; and (4) whether NMFS 
4

reasonably concluded that Amendment 11=s limitations on 

the general category scallop fishery were consistent with the 

Magnuson-Stevens Act=s National Standard 5, which 

prohibits the implementation of any fishery management 

measure that has Aeconomic allocation as its sole purpose.@ 

We will affirm the judgment of the District Court.2 

I.

The Magnuson-Stevens Act

 

2 Before the District Court, the fishermen raised 

several additional contentions: (1) that the loss of the use of 

the Aunique fishing gear@ that they had purchased for the 

scallop harvest constituted an unconstitutional taking; (2) 

that Amendment 11 violated National Standard 3 by placing 

the Northern Gulf of Maine (NGOM) fishery under a 

separate management scheme; and (3) that Amendment 11 

violated National Standard 4 by allocating a higher catch 

limit to NGOM permit holders than to incidental catch 

permit holders. Judge Cooper ably addressed these issues in 

her opinion, and they are not being pressed by the scallop 

fishermen on appeal. See Gen. Category Scallop Fishermen 

v. Sec=y of U.S. Dep=t of Commerce, 720 F. Supp. 2d 564 

(D.N.J. 2010).
5

The Magnuson-Stevens Act, as amended by Congress 

in 1990 and 1996, delegates to NMFS, by and through the 

Secretary of Commerce, the authority to implement a 

comprehensive national fisheries management program in 

order Ato prevent overfishing, to rebuild overfished stocks, 

to insure conservation, to facilitate long-term protection of 

essential fish habitats, and to realize the full potential of the 

Nation=s fishery resources.@ See 16 U.S.C. ' 1801(a)(6).3 

The Secretary=s authority is exercised through eight 

Regional Fishery Management Councils composed of state 

fishery managers, the regional NMFS fisheries 

administrator, and representatives of the fishing, 

environmental, and academic communities. The Councils 

are responsible for preparing FMPs and recommending 

implementing regulations for the Exclusive Economic Zone 

that stretches 200 nautical miles seaward from the coastal 

 

3 Under the Magnuson-Stevens Act, a Afishery@ is 

either Aone or more stocks of fish that can be treated as a 

unit for purposes of conservation and management that are 

identified on the basis of geographic, scientific, technical, 

recreational, or economic characteristics, or method of 

catch,@ or Aany fishing for such stocks.@ 50 C.F.R. ' 600.10. 
6

boundaries of the States within each region.4 The task of 

approving an FMP falls to the Secretary of Commerce, who 

is mandated to review the FMP to ensure that it complies 

with the ten ANational Standards@ established by the 

Magnuson-Stevens Act.5 See 16 U.S.C. ' 1851(a)(1) - (10). 

The Secretary must also publish the proposed FMP and 

accept public comment for a 60-day period before giving his 

or her final approval. 16 U.S.C. ' 1854(a)(1)(B). An 

implementing regulation goes through the same process of 

review, although the Secretary may limit the period for 

public comment to a minimum of 15 days. 16 U.S.C. '

1854(b)(1)(A). NMFS is the executive agency responsible 

for overseeing the enforcement of an approved FMP and 

any of its attendant regulations.

 

4

The Exclusive Economic Zone of the United States 

extends the full 200 nautical miles permitted under 

international law and treaty. 16 U.S.C. ' 1802(11); see Am. 

Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 

1366 (Fed. Cir. 2004). A national state has sovereign rights 

over natural resources, living and nonliving, within its 

Exclusive Economic Zone.

5

The Secretary has delegated his authority under the 

Magnuson-Stevens Act to promulgate regulations 

implementing FMPs and their Amendments to NMFS.
7

The New England Fishery Management Council 

and the Scallop Fishery

The development of the Atlantic Sea Scallop FMP is

the responsibility of the New England Fishery Management 

Council (NEFMC). All parties agree that the NEFMC is 

not an Aagency@ within the meaning of the APA. In 1994, 

the Alimited access@scallop FMP then in place was amended 

(Amendment 4) to provide for an Aopen access@ fishery to 

Aallow a flexible program for seasonal or opportunistic 

fisheries targeting inshore scallops.@ Both Alimited access@

and Aopen access general category@ scalloping permits 

authorized the harvest of up to 400 pounds of Atlantic sea 

scallops daily. Only large-scale scallop boats, however, 

were eligible for the Alimited access@ permits. Small-scale 

scallop fishing vessels and vessels that harvested scallops as 

an incidental bycatch were issued Ageneral category@

permits. The Appellants are small-scale general category 

scallop fishermen. 

After the passage of Amendment 4, the number of 

general category permit holders exploded, fueling concerns 
8

about overfishing.6 These concerns prompted the NEFMC 

to consider regulatory responses to limit the number of 

participants in the general category scallop fishery. On 

August 31, 2004, the NEFMC published a ANotice of a 

Public Meeting@ in the Federal Register announcing a threeday meeting to be held from September 14-16, 2004, in 

Fairhaven, Massachusetts, Ato consider actions affecting 

New England fisheries in the exclusive economic zone.@ 

According to the meeting agenda, among the issues that 

A[might] be discussed@ were Aactions to address overfishing@

and Aactions to cap or reduce general category scallop 

landings and/or improve reporting measures.@

 

6

From 1994 to 2005, the number of general category 

permits increased from 1,992 to 2,950, and the number of 

general category vessels landing scallops more than tripled.
9

During the meeting, NEFMC Vice-Chairman Thomas 

Hill announced his intention Ato propose a motion to 

establish a control date effective [upon] publication of the 

Federal Register . . . that would freeze the number of 

permits in the fishery.@

7

 One of the participants (Maggie 

Raymond of the Associated Fisheries of Maine) objected 

that the subject of a control date Awas not posted on the 

agenda [and so] this would be the only opportunity for the 

public to speak to that.@ Hill replied that the NEFMC 

Anever notifie[s] the public in advance,@ because it Adefeats 

the purpose of the control date if you notify in advance.@ 

Hill=s motion to publish notice of a control date for the 

general category permit scallop fishery was adopted by a 

13-1 vote, with two abstentions. 

NMFS published the notice in the Federal Register on 

November 1, 2004. In relevant part, the Advance Notice of 

Proposed Rulemaking (ANPR) sought public comment on:

 

7 A control date Aprovides notice to anyone 

subsequently entering a fishery that he is not assured of 

continued participation in the fishery should a limited entry 

scheme be implemented.@ Am. Pelagic Fishing Co., 379 
10

 

F.3d at 1366 n.3. 
11

proposed rulemaking to control future access 

to the open access vessel permit category 

(general category) Atlantic sea scallop fishery 

if a management regime is developed and 

implemented under [the Magnuson-Stevens 

Act] to limit the number of participants in this 

sector of the scallop fishery. . . . This 

announcement is intended, in part, to promote 

awareness of potential eligibility criteria for 

future access so as to discourage speculative 

entry into the fishery while the [NEFMC] 

considers whether and how access to the 

general category sea scallop fishery could be 

controlled. The date of publication of this 

notice, November 1, 2004, shall be known as 

the Acontrol date@ and may be used for 

establishing eligibility criteria for determining 

levels of future access to the sea scallop 

fishery subject to Federal authority.

69 Fed. Reg. 63341. 

Amendment 11

In January of 2006, the NEFMC initiated a Ascoping@

process inviting the fishing public to participate in the 

crafting of Amendment 11 to the Atlantic Sea Scallop 

FMP.8 As announced, the purpose of Amendment 11 was 

to establish Acriteria and authority for determining the 

 

8

AScoping@ is a term of administrative art that 

describes the process used by federal agencies to identify 

public concerns over the management of land and natural 

resources. 
12

percentage of scallop catch allocated to the general category 

fleet@ and to implement an Individual Fishing Quota (IFQ) 

permit system. Between February of 2006 and June of 

2007, the NEFMC held 35 public meetings in seven states 

to discuss the adoption of Amendment 11. On April 11, 

2007, the NEFMC submitted a Draft Supplemental 

Environmental Impact Statement to NMFS, the final version 

of which was submitted to NMFS on September 24, 2007. 

The NEFMC formally adopted Amendment 11 on June 20, 

2007. On December 17, 2007, NMFS published 

Amendment 11 in the Federal Register with its proposed 

implementing regulations and invited public comment 

through January 31, 2008. On February 27, 2008, NMFS 

adopted Amendment 11 on behalf of the Secretary of 

Commerce. The final rule was published on April 14, 2008, 

and took effect on July 1, 2008.

Amendment 11 significantly reduced the number of 

vessels eligible to participate in the scallop harvest by

replacing the open access general category fishery with a 

 
13

Alimited access general category@ (LAGC). Amendment 11 

provides for three classes of LAGC scalloping permits: (1) 

an IFQ permit; (2) a Northern Gulf of Maine permit; and (3) 

an incidental catch permit. At issue in this appeal is the IFQ 

permit, which allows a permittee to land up to 400 pounds 

of shucked scallop meat per trip.9

 

9 A Atrip@ is defined as Athe time period that begins 

when a fishing vessel departs from a dock . . . and that 

terminates with a return to a dock . . . .@ 50 C.F.R. ' 600.10.
14

To be eligible for an IFQ permit, NMFS records must 

confirm that the applicant vessel landed at least 1,000 

pounds of scallop meat in any fishing year between March 

1, 2001, and November 1, 2004. The vessel must also have 

been issued a general category scallop permit during the 

fishing year in which the qualifying landing was made. The 

individual quota is determined by a formula that weights the 

vessel=s best year of scalloping and the number of years it 

has been actively engaged in scallop fishing. These 

numbers are derived from NMFS landings data compiled 

from dealer reports. A vessel owner may appeal the denial 

of a permit to NMFS, but only on the ground that the data 

NMFS relied on to determine eligibility was incorrect.10

 

10 Once issued, an IFQ permit may be transferred 

from one scallop vessel to another with the approval of the 

NMFS Regional Administrator. No single vessel issued an 

IFQ permit may be allocated more than two percent of the 

total allowable IFQ catch, nor may any individual have an 

ownership interest in more than five percent of the catch 

allocated to the scallop fleet.
15

Amendment 11 also allocates the scallop harvest 

between the limited access fleet and the LAGC permit 

holders.11 The estimated landings of scallops by boats with 

incidental catch permits are first subtracted from the 

projected annual scallop harvest. IFQ permit holders are 

then allocated five percent of the remaining catch, while 

almost all of the rest is apportioned to the limited access 

scallop fishery.12 Most of the Appellant fishermen received 

their first general scallop permit after the control date of 

November 1, 2004; thus, they are not eligible to receive 

LAGC scallop permits. For all practical purposes, their 

scallop fishing days are over.

II.

Standard of Review

 

11 The NGOM Scallop Management Area is not 

included in the total allowable catch as it is only an 

occasional scallop fishery with Aunique characteristics.@ 

Appellants have dropped their challenge to the exclusion of 

the NGOM from the calculation of the total allowable catch.

12 Half of one percent of the catch is given over to 

limited access vessels that also hold IFQ permits. 
16

This Court has jurisdiction to review the District 

Court=s order pursuant to 28 U.S.C. ' 1291. We review the 

District Court=s grant of summary judgment de novo and 

apply a deferential standard in reviewing actions taken by 

NMFS on behalf of the Secretary, particularly those that fall 

within NMFS=s special expertise.13 See Marsh v. Oregon 

Natural Res. Council, 490 U.S. 360, 377-378 (1989); 

Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 

195-196 (3d Cir. 2010). We may set aside the Secretary=s 

action only if it is Aarbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law,@ or 

taken Awithout observance of procedure required by law.@ 5 

U.S.C. '' 706(2)(A)-(D). 

 

13 The Magnuson-Stevens Act specifically directs 

courts to look to the APA when reviewing an FMP 

implementation action taken by the Secretary. See 16 

U.S.C. '' 1855(f)(1) and (2). An implementing regulation 

of an FMP may only be set aside on the grounds specified 

in 5 U.S.C. '' 706(2)(A)-(D).

Although this Court may not substitute its judgment 

for that of the Secretary, we may Aconsider whether the 

[Secretary=s] decision was based on a consideration of the 
17

relevant factors and whether there has been a clear error of 

judgment.@ Citizens to Preserve Overton Park, Inc. v. 

Volpe, 401 U.S. 402, 416 (1971). The scope of review, 

however, is narrow B we must presume the validity of the 

Secretary=s decision. Id. at 415. AThe Secretary=s 

assessment of which fishery conservation and management 

measures would be in the nation=s best interest is >a classic 

example of a factual dispute the resolution of which 

implicates substantial agency expertise.=@ Ace Lobster Co., 

Inc. v. Evans, 165 F. Supp. 2d 148, 165 (D.R.I. 2001) 

(quoting Nat=l Fisheries Inst., Inc. v. Mosbacher, 732 F. 

Supp. 210, 223 (D.D.C. 1990)).

III.

Issue 1: The November 1, 2004 Control Date 

The principal argument made by the Appellant 

fishermen is that the District Court erred in determining that 

the NEFMC=s Acontrol date@ recommendation was not 

subject to the rulemaking provisions of the APA.14 They 

 

14 The scallop fishermen contend that the passage of a 

control date constitutes a rule under the APA because it is a 
18

reason that because NOAA and NMFS are agencies that 

must answer to the notice and comment requirements of the 

APA and the Magnuson-Stevens Act, the NEFMC by 

extension is governed by the same constraints.15 Operating 

from this premise, the fishermen find fault with almost 

every step taken by the NEFMC in developing the control 

date proposal. First, they object to the fact that notice of the 

September 14-16, 2004 meeting was published in the 

Federal Register Aonly@ 14 days in advance. Second, they 

claim that the published agenda failed to make specific 

mention of the possible adoption of a control date. Third, 

the fishermen argue that Vice-Chairman Hill ambushed 

them by bringing the motion to establish a control date to a 

 

Awhole or a part of an agency statement of general or 

particular applicability and future effect designed to 

implement, interpret, or prescribe law or policy.@ 5 U.S.C. '

551(4).

15 The fishermen concede B as they must B that the 

NEFMC is not itself an Aagency@ falling directly under the 

rulemaking requirements of the APA. See J.H. Miles & 

Co., Inc. v. Brown, 910 F. Supp. 1138, 1159 (E.D. Va. 

1995) (determining that the Mid-Atlantic Fishery 

Management Council is not an Aagency@ within the meaning 

of the APA). 
19

snap vote, depriving them of a meaningful opportunity to 

mobilize in opposition.16 

 

16 The scallop fishermen allege that the NEFMC 

acted in violation of the notice and comment provisions of 5 

U.S.C. '' 553(b)(1) and (3); 16 U.S.C. '' 1852(h)(3), 

1852(i)(2)(c); Exec. Order No. 12866, ' 6(a)(1), 50 C.F.R. 

' 600.135(a). 

The fishermen also object to the selection of 

November 1, 2004, as the control date. They contend that 

the NEFMC Aarbitrarily and capriciously let the specific 

control date be determined by publication in the Federal 

Register . . . by some unknown individual@ rather than by 

the NEFMC members themselves. They further argue that 

the publication of the control date in the Federal Register 

did not amount to Awide publicity in the major fishing ports 

of the region@ as 16 U.S.C. ' 1852(i)(2)(c) requires. 

Finally, the fishermen contend that the NEFMC foreclosed 

all meaningful opportunity for public comment by requiring 

that all written comments on the Aproposed rule@ be 

submitted by December 1, 2004, only one month after its 

publication in the Federal Register. 

The flaw in the fishermen=s argument is found in its 
20

fundamental premise B that the publication by NMFS of the 

NEFMC=s proposed November 1, 2004 control date 

promulgated a rule. In fact, the control date did not become 

a rule until NMFS adopted Amendment 11 on February 27, 

2008. The November 1, 2004 ANPR=s title and content 

made clear that the control date was a proposed rule and 

nothing more.

This notification established November 1, 

2004, as the control date for potential use in 

determining historical or traditional 

participation in the general category scallop 

fishery. Consideration of a control date does 

not commit the Council or NMFS to develop 

any particular management system or criteria 

for participation in this fishery. The Council 

may choose a different control date, or may 

choose a management program that does not 

make use of such a date.

69 Fed. Reg. at 63342. Indeed, if the November 1, 2004 

publication of the control date by NMFS were a rule, the 

fishermen=s action would be time-barred by the MagnusonStevens Act=s statute of limitations, which requires that a 

petition for review of a final rule be filed within 30 days of 
21

its publication.17 See 16 U.S.C. ' 1855 (f)(1).

 

17 We are not without sympathy for the fishermen=s 

response to the double bind in which they find themselves: 

AAppellees want flexible rulemaking by passing substantive 

rules and setting them aside for years only later 

incorporating them into another rule. In the alternative, they 

want that the control date is a rule, but then argue the 

Fishermen are time-barred.@ However, the relief they seek B

the retroactive application of the rulemaking requirements 

of the APA to the actions of the NEFMC in developing 

Amendment 11 B is beyond the competence of this Court to 

grant. See Vermont Yankee Nuclear Power Corp. v. Natural 

Res. Def. Council, 435 U.S. 519, 524 (1978) (A[T]he [APA] 

established the maximum procedural requirements which 

Congress was willing to have the courts impose upon 

agencies in conducting rulemaking procedures. Agencies 

are free to grant additional procedural rights in the exercise 

of their discretion, but reviewing courts are generally not 

free to impose them if the agencies have not chosen to grant 

them.@) (footnote omitted).

We also agree with the District Court that NMFS 

reasonably concluded that the steps taken by the NEFMC in 

developing Amendment 11 complied with the procedural 

requirements of the Magnuson-Stevens Act. See 16 U.S.C. 

' 1854(a)(1). The NEFMC gave timely public notice of the 

September 2004 meeting by publishing the date 14 days in 

advance as the Magnuson-Stevens Act required. Id. '

1852(i)(2)(c). The meeting was announced in the Federal 

Register and in various fishing publications distributed in 
22

the New England and Mid-Atlantic regions, including two 

with combined circulations in the tens of thousands B

Commercial Fisheries News and National Fisherman. The 

notice of the meeting was also posted on the NMFS website.

 The success of the notice effort is demonstrated by the fact 

that over 70 stakeholders attended the meeting. 

We are also of the view that the November 1, 2004 

publication of the proposed control date by NMFS came 

reasonably close on the heels of the NEFMC vote. As 

Appellees note, this publication was followed by a series of 

notices and public hearings tracking the shaping of 

Amendment 11 over the next three years. These hearings 

culminated in the November and December of 2007 

publication by NMFS of the final rule and the implementing 

regulations and yet another round of public comment.18 

 

18 According to Appellees, at least four of the 

Appellant fishermen submitted written comments 

expressing opposition to the November 1, 2004 control date. 

The fishermen object more substantively to the fact 

that the NEFMC meeting discussed a control date at all, 

contending that the discussion and vote deviated from '
23

1852(i)(2)(c) of the Magnuson-Stevens Act, which provides 

that A[t]he published agenda of the [regular] meeting may 

not be modified to include additional matters for Council 

action without public notice or within 14 days prior to the 

meeting date.@ Although the use of the specific term 

Acontrol date@ in the proposed agenda might have been 

preferable, the agenda referred to Aactions to address 

overfishing@ as well as Aactions to cap or reduce general 

category scallop landings.@ We think this sufficient to have 

put the fishermen on notice that a control date might well be 

one of the mechanisms put forward at the meeting for 

reducing access to the scallop fishery.

Issue 2: Mandate to Hold Public Meetings in All 

Geographic Areas

The fishermen next argue that the District Court erred 

in concluding that the NEFMC complied Aat least 

minimally@ with the mandate that public meetings to discuss 

new management measures like Amendment 11 be held in 

Aappropriate locations in the geographical area concerned.@ 

The locations also include areas under the authority of 
24

another Council if the measures could Aaffect fishermen of 

that area.@ 16 U.S.C. ' 1852(h)(3). Following the 

publication of the November 1, 2004 ANPR, 35 public 

meetings were held over a span of 18 months in Maine, 

New Hampshire, Massachusetts, Rhode Island, Connecticut, 

New Jersey, and Virginia. While it is true, as the fishermen 

complain, that most of the meetings were held in the New 

England region, that fact by itself is unsurprising, given that 

Georges Bank is the most sensitive of the environs of 

fishable Atlantic sea scallops.19 Three public meetings were

held outside of the jurisdiction of the NEFMC. Two of 

these were held in New Jersey. The first meeting in 

February of 2006 in Cape May attracted 150 participants. A 

second New Jersey meeting held in May of 2007 in 

Manahawkin drew another 30 fishermen. Later that month, 

a third meeting in Newport News, Virginia, attracted some 

25 participants.

 

19 See Dvora Hart, Status of Fishery Resources off the 

Northeastern U.S., NOAA (Dec. 2006), 

http://www.nefsc.noaa.gov/sos/spsyn/iv/scallop/.

We can find no authority that supports the 
25

fishermen=s assertion that NMFS was required to hold at 

least one public meeting in every State comprising the New 

England and the Mid-Atlantic regions, including Delaware, 

Pennsylvania, Maryland and North Carolina. The 

Magnuson-Stevens Act requires that public meetings Ashall@

occur Aat appropriate times and in appropriate locations in 

the geographical area concerned, so as to allow all interested

persons an opportunity to be heard in the development of 

fishery management plans and amendments to such plans, . . 

. .@ 16 U.S.C. ' 1852(h)(3). Other than providing 

extraneous dictionary definitions explaining that Ashall@is a 

word of affirmative command, the fishermen point to no 

statute or regulation that required the NEFMC to convene a 

meeting in every port of call on the Atlantic seaboard. 

More meetings might have been held, but that is not to say 

that the 35 that were held failed to satisfy ' 1852(h)(3).

Issue 3: National Standard 2 

The fishermen next complain that the District Court 

erred in finding that NMFS=s decision to rely on dealer 

reports contained in its own database to calculate historical 
26

scallop landings complied with National Standard 2.20 The 

fishermen contend that the NMFS database is Aflawed@ and 

that NMFS acted unreasonably in refusing to correct errors 

in the compiled dealer reports by cross-checking the NMFS 

data against the fishermen=s self-reported Vessel Trip 

Reports (VTR) and the dealers= own datasets. 

Under the Magnuson-Stevens Act, FMPs must 

Acontain the conservation and management measures . . . 

which are . . . consistent with the national standards, the 

other provisions of this chapter, . . . and any other applicable

law.@ 16 U.S.C. ' 1853(a)(1)( C). National Standard 2 

stipulates that A[c]onservation and management measures 

shall be based upon the best scientific information 

available.@ 16 U.S.C. ' 1851(a)(2). In deciding whether 

scientific information is the Abest available,@ substantial 

deference is accorded to the Secretary=s assessment of the 

 

20 As will be recalled, to be eligible for a LAGC 

permit, Amendment 11 requires an applicant to have landed 

at least 1,000 pounds of shucked scallop meat during at least 

one fishing year between March 1, 2000, and November 2, 

2004. The fishermen do not challenge the eligibility 

criteria, but rather the data used to calculate a fisherman=s 
27

quality of what is available. See Washington Crab 

Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1448-1449 

(9th Cir. 1990). See also C & W Fish Co., Inc. v. Fox, 931 

F.2d 1556, 1652 (D.C. Cir. 1991) (a court=s task on review 

is simply Ato determine whether the Secretary=s conclusion 

that the standards have been satisfied is rational and 

supported by the record.@). 

 

yearly scallop catch. 

We discern no error in the District Court=s 

determination that the decision Ato utilize NMFS landings 

data from dealer reports to determine whether a vessel met 

the 1,000-pound landings criterion@ did not contravene 

National Standard 2. AIt is well settled . . . that the Secretary 

can act when the available science is incomplete or 

imperfect, even where concerns have been raised about the 

accuracy of the methods or models employed.@ North 

Carolina Fisheries Ass=n, Inc. v. Gutierrez, 518 F. Supp. 2d 

62, 85 (D.D.C. 2007). During the development of 

Amendment 11, NMFS and the NEFMC recognized that 

flaws existed in all of the available data groups, but 
28

concluded that there were no practical or cost-effective 

means of correcting the Amany errors in both VTR and 

dealer datasets.@

To address errors or omissions in the NMFS data, the 

framers of Amendment 11 adopted a suggestion made by a 

public meeting participant that Aa full appeals process@ be 

provided through which fishermen who were denied LAGC 

permits could challenge the denial Aon the grounds that the 

information used by the Regional Administrator was 

incorrect.@ 73 Fed. Reg. at 20092. The appeals process 

allows a rejected applicant to continue fishing pending the 

outcome of the appeal to prevent any prejudicial delay. As 

the District Court aptly observed, Amendment 11 does not 

preclude the use of data the fishermen consider superior B

rather, it allows for its full consideration at an adversarial 

hearing.

Issue 4: National Standard 5

The fishermen=s final objection is to the District 

Court=s finding that the Secretary took sufficient account of 

non-economic objectives in implementing Amendment 11. 
29

National Standard 5 requires that A[c]onservation and 

management measures shall, where practicable, consider 

efficiency in the utilization of fishery resources; except that 

no such measure shall have economic allocation as its sole 

purpose.@ 16 U.S.C. ' 1851(a)(5). The fishermen argue 

that AAmendment 11 is only an economic re-allocation of 

the scallop resource among competing stakeholders.@ To 

prevail on this claim, the fishermen are required to show 

that the Secretary failed to consider any non-economic 

objectives in promulgating Amendment 11. See Alaska 

Factory Trawler Ass=n v. Baldridge, 831 F.2d 1456, 1460 

(9th Cir. 1987). 

That Amendment 11 had economic consequences is 

undeniable. That it took into account Abiological, 

ecological, and social objectives@ as well is readily apparent 

from the record. See 50 C.F.R. ' 600.330(e). As NMFS 

explained, the motivating force in the development of 

Amendment 11 was the control of mortality in the general 

category fishery and that economic considerations were 

secondary. AAmendment 11 recognizes that, without 
30

controls on the number of participants, the general category 

fleet can expand, especially when the resource conditions 

are very good[,] . . . [which] could contribute to overfishing 

if combined with the full utilization of limited access 

effort.@ 73 Fed. Reg. at 20098.21 There is ample evidence 

in the record to support the District Court=s determination 

that National Standard 5 was met.

 

21 Amendment 11=s Final Supplemental 

Environmental Impact Statement spells out that A[e]conomic 

allocation is not the sole purpose of this action: the 

measures are primarily intended to control mortality in the 

general category fishing and do so in the most equitable and 

efficient way possible while maintaining the historical 

character of the fishery.@

IV. 

For the reasons stated, we will affirm the judgment of 

the District Court.