b'Participation by Processor-Owned Catcher Vessels in Inshore\nCooperatives Under the American Fisheries Act of 1998\nSection 21 0 (b ) o f the A m erican Fisheries A ct o f 1998 perm its catcher vessels ow ned by shoreside\npro cesso rs to participate in A FA -authorized fishery cooperatives.\n\nDecember 10, 1999\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nDepa rtm en t o f C om m erce\n\nYou have requested our advice as to the appropriate construction of section\n210(b) of the American Fisheries Act, Pub. L. No. 105-277, 112 Stat. 2681-616,\n2681-629 (1998) (\xe2\x80\x9c AFA\xe2\x80\x9d ). Specifically, you have asked whether catcher vessels\nowned by shoreside processors may participate in fishery cooperatives in the\ninshore sector of the Alaska pollock fishery, which are authorized under section\n210(b) o f the AFA, or whether participation in such cooperatives is limited to\nindependently owned catcher vessels. See Letter for Randolph Moss, Acting\nAssistant Attorney General, Office of Legal Counsel, from Andrew J. Pincus, Gen\xc2\xad\neral Counsel, Department of Commerce (Aug. 10, 1999) (\xe2\x80\x9c Commerce Letter\xe2\x80\x9d ).\nAs explained more fully below, we conclude that section 210(b) does permit processor-owned catcher vessels to join AFA-authorized fishery cooperatives.\nI. BACKGROUND\nA. The BSAI Fishery\nThe Bering Sea and Aleutian Islands (\xe2\x80\x9c BSAI\xe2\x80\x9d ) fishery, located in the Bering\nSea off the coast of Alaska, is the largest single-species groundfish fishery in\nthe world. In recent years, growing market demand for the Alaskan pollock \xe2\x80\x94\na fish used in the United States primarily as an ingredient in breaded fish products\nand used worldwide for processing into the protein paste surimi \xe2\x80\x94 has spurred\ntremendous growth in the BSAI fishery, with increasing numbers of vessels\nentering the fishery each year to compete for a share of the annual catch.\nThe pollock harvested in the BSAI fishery are processed by two competing\nsectors, inshore (including shoreside) and offshore processors. Inshore processors\noperate traditional land-based processing plants and floating processors that are\nmoored in a single location for the entire year. They obtain fish either from catcher\nvessels that are independently owned (\xe2\x80\x9c independent catcher vessels\xe2\x80\x9d ) or from\nvessels in which they or other processors have an ownership interest (\xe2\x80\x9c processorowned catcher vessels\xe2\x80\x9d ). Offshore processing takes place on factory trawlers (also\nknown as \xe2\x80\x9c catcher-processors\xe2\x80\x9d ) or motherships. Catcher-processors are large ves\xc2\xad\nsels that harvest pollock and process their own catch. They also purchase fish\n250\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\nharvested by catcher vessels and process that catch. Mothership processors are\nvessels engaged solely in processing; they operate at sea by taking deliveries of\nfish harvested by catcher vessels and processing them.\nThe BSAI fishery is managed by the Secretary of Commerce (\xe2\x80\x9c Secretary\xe2\x80\x9d )\nthrough the National Marine Fisheries Service ( \xe2\x80\x9c NMFS\xe2\x80\x9d ) and the North Pacific\nFishery Management Council (\xe2\x80\x9c Council\xe2\x80\x9d ). The Council acts as an advisory board\nand recommends fishery management actions to the Secretary. See generally 16\nU.S.C. \xc2\xa7 1852 (1994). Among the Council\xe2\x80\x99s responsibilities is to recommend to\nthe NMFS a \xe2\x80\x9c total allowable catch\xe2\x80\x9d (\xe2\x80\x9c TAC\xe2\x80\x9d ) for each species of fish in the\nBSAI fishery. See 50 C.F.R. \xc2\xa7679.20 (1998). The TAC represents the maximum\namount of fish that can be harvested in any given fishing season.\nBefore 1998, the Council was responsible for recommending to the Secretary\nhow the annual TAC for Alaskan pollock should be allocated between the offshore\nand inshore components of the BSAI fishing industry. In 1992, the Council rec\xc2\xad\nommended an allocation that permitted the offshore sector to harvest sixty-five\npercent of the pollock TAC, and the inshore sector to harvest thirty-five percent.\nSee General Accounting Office, Fishery Management: Market Impacts o f the\nAmerican Fisheries A ct on the Production o f Pollock Fillets 3 (June 1999). Not\nsurprisingly, that percentage allocation was the subject of bitter dispute each year\nbetween the offshore and inshore sectors. Moreover, although the Council\xe2\x80\x99s alloca\xc2\xad\ntion formula limited the amount of pollock each sector could harvest, it did not\nregulate the amount of pollock that individual catcher vessels or catcher-processors\ncould catch. As a result, a \xe2\x80\x9c race for fish\xe2\x80\x9d ensued within this open access system:\neach fishing season, vessels within each sector raced to catch as much pollock\nas possible until their allocation was reached and the season closed. Those vessels\nthat caught the most fish made the most money. Over the years, as more and\nmore vessels joined the race in response to increased market demand for pollock,\nthe fishery suffered increasingly from overcapitalization and inefficiency.\nB. The American Fisheries Act o f 1998\nIn 1998, Congress enacted the AFA to address some of these problems. Senator\nBreaux, one of the AFA sponsors, described the legislation as \xe2\x80\x9c another major\nmilestone in our long efforts to reserve U.S. fishery resources for bona fide U.S.\ncitizens as well as take steps to substantially improve the conservation and\nmanagement of our Nation\xe2\x80\x99s fishery resources through a reduction in the overcapi\xc2\xad\ntalization of our fishing fleets.\xe2\x80\x9d 143 Cong. Rec. S10,299 (daily ed. Oct. 1, 1997)\n(statement of Sen. Breaux). The sponsors of the AFA thus sought to accomplish\nthree goals \xe2\x80\x94 \xe2\x80\x9c Americanization, decapitalization, and rationalization\xe2\x80\x9d of the\nBSAI fishery. See 144 Cong. Rec. S 12,801 (daily ed. Oct. 21, 1998) (statement\nof Sen. Gorton); see also id. at S 12,777 (statement of Sen. Stevens).\n251\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nSubtitle I of the AFA attempts to achieve \xe2\x80\x9c Americanization\xe2\x80\x9d by imposing new\nownership requirements on U.S. flag vessels. See AFA \xc2\xa7202, 112 Stat. at 2681617 to 2681-618. Subtitle I also partly addresses the problem of overcapitalization\nof the fishery by placing limits on the size of new vessels in U.S. waters. See\nid.\n\nSubtitle II of the AFA advances the goals of \xe2\x80\x9c decapitalization\xe2\x80\x9d and \xe2\x80\x9c rational\xc2\xad\nization\xe2\x80\x9d through various provisions that reduce excess capacity in the fishery and\nsubstitute a comprehensive management scheme for the pre-existing open access\nsystem. Section 206 deals with the question of the appropriate allocation of the\npollock TAC by establishing statutory allocations for the offshore and inshore\nsectors. After setting aside ten percent of the TAC as a directed fishing allowance\nfor the western Alaska community development quota program, section 206\ndivides the remainder of the TAC equally between the inshore and offshore proc\xc2\xad\nessing sectors. See \xc2\xa7 206(a)-(b)(l). The offshore sector allocation is split further,\nwith catcher-processors and the catcher vessels supplying them receiving forty\npercent of the TAC and the catcher vessels harvesting pollock for motherships\nreceiving ten percent. See \xc2\xa7 206(b)(2)-(b)(3).\nSections 207 through 209 aim to streamline and restructure the BSAI industry.\nSections 207 and 209 provide for a buyout of nine predominantly foreign-owned\ncatcher-processors that will henceforth be ineligible to participate in the BSAI\nfishery. Section 208 limits participation in the fishery by establishing strict eligi\xc2\xad\nbility requirements for vessels and processors in both the offshore and inshore\nsectors. See \xc2\xa7 208(a) (eligibility requirements for catcher vessels delivering to\nshoreside processors); \xc2\xa7 208(b) (listing eligible catcher vessels delivering to\ncatcher-processors and eligibility criteria for other catcher vessels delivering to\ncatcher-processors); \xc2\xa7 208(c) (listing eligible catcher vessels delivering to\nmotherships and eligibility criteria for other catcher vessels delivering to\nmotherships); \xc2\xa7 208(d) (listing eligible motherships); \xc2\xa7 208(e) (listing eligible\ncatcher-processors); \xc2\xa7 208(f) (eligibility criteria for shoreside processors).\nSection 210 of the AFA, the provision at issue here, seeks to eliminate the\nrace for fish by providing a framework for the formation of fishery cooperatives\nin each of the BSAI processing sectors. See \xc2\xa7 210(b) (cooperatives of catcher ves\xc2\xad\nsels delivering fish to shoreside processors), \xc2\xa7 210(c) (cooperatives of catcher ves\xc2\xad\nsels delivering fish to catcher-processors), \xc2\xa7 210(d) (cooperatives of catcher vessels\ndelivering fish to motherships). Although certain types of fishery cooperatives\nwere already authorized under the Fisherman\xe2\x80\x99s Collective Marketing Act of 1934,\n15 U.S.C. \xc2\xa7521 (1994) (\xe2\x80\x9c FCMA\xe2\x80\x9d ), section 210 provides a powerful incentive\nfor the creation of fishery cooperatives: It reserves a certain percentage of the\nTAC for the members of each cooperative, thereby guaranteeing them a share\nof the fish that they can harvest at their own pace.\nThe precise criteria for the establishment of AFA fishery cooperatives in the\ninshore processing sector are set out in subsection 210(b). Under those criteria,\n252\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\nif eighty percent or more of the \xe2\x80\x9c qualified catcher vessels\xe2\x80\x9d that delivered pollock\nto a particular shoreside processor the previous year sign \xe2\x80\x9c a contract imple\xc2\xad\nmenting a fishery cooperative under subsection (a)\xe2\x80\x9d \xe2\x80\x94 i.e., a contract under sec\xc2\xad\ntion 1 of the FCMA \xe2\x80\x94 and if these vessels further agree to deliver pollock only\nto that particular shoreside processor (and the processor agrees to process the pol\xc2\xad\nlock), then the Secretary of Commerce may establish a separate allocation for\nthe cooperative. \xc2\xa7 210(b)(1). That allocation would be equal to the average\npercentage of the TAC that the vessels in the cooperative caught during 1995,\n1996 and 1997. See id. If a fishery cooperative is formed, section 210(b)(2)\nrequires the cooperative to permit other catcher vessels that delivered most of\ntheir catch to that shoreside processor to join the cooperative under the same terms\nand conditions as member vessels. See \xc2\xa7 210(b)(2).\nCatcher vessels that participate in a fishery cooperative under section 210(b)\nmay harvest only the pollock that is allocated to them by the Secretary; they are\nnot allowed to harvest any of the pollock that remains in the \xe2\x80\x9c open access\xe2\x80\x9d por\xc2\xad\ntion of the inshore allocation under section 206(b)(1). See \xc2\xa7 210(b)(5). The open\naccess allocation is equivalent to that portion of the inshore allocation that has\nnot been reserved by the Secretary for fishery cooperatives. See id.\n\nn . DISCUSSION\nThe question before us is whether catcher vessels that are owned by shoreside\nprocessors may participate in fishery cooperatives under section 210(b) of the\nAFA. Section 210(b)(1), which creates the entitlement of fishery cooperatives to\na portion of the TAC, provides:\n(b) C atcher Vessels O nshore \xe2\x80\x94\n(1)\nC atcher vessel cooperatives. \xe2\x80\x94 Effective January 1, 2000,\nupon the filing of a contract implementing a fishery cooperative\nunder subsection (a) which \xe2\x80\x94\n(A) is signed by the owners of 80 percent or more of the quali\xc2\xad\nfied catcher vessels that delivered pollock for processing by a\nshoreside processor in the directed pollock fishery in the year prior\nto the year in which the fishery cooperative will be in effect; and\n(B) specifies, except as provided in paragraph (6), that such\ncatcher vessels will deliver pollock in the directed pollock fishery\nonly to such shoreside processor during the year in which the\nfishery cooperative will be in effect and that such shoreside proc\xc2\xad\nessor has agreed to process such pollock,\n253\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe Secretary shall [set aside a fishing allowance from the inshore\nallocation of the TAC for that fishery cooperative].\nSection 210(b)(1) points to two possible statutory bases for limiting eligibility\nto independently owned vessels. First, the AFA by its own terms might impose\nthe limitation. Second, the reference in section 210(b)(1) to \xe2\x80\x9c a contract imple\xc2\xad\nmenting a fishery cooperative under subsection (a)\xe2\x80\x9d might effectively incorporate\nlimits from the FCMA, since subsection (a) refers to \xe2\x80\x9c a contract implementing\na fishery cooperative\xe2\x80\x9d under the FCMA.\nA. Language and Legislative History o f AFA\nTaken by itself, the AFA does not restrict eligibility to independently owned\ncatcher vessels. Section 210(b)(3) defines \xe2\x80\x9c qualified catcher vessel\xe2\x80\x9d as follows:\n\nQualified catcher vessel. \xe2\x80\x94 For the purposes of this subsection, a\ncatcher vessel shall be considered a \xe2\x80\x9c qualified catcher vessel\xe2\x80\x9d if,\nduring the year prior to the year in which the fishery cooperative\nwill be in effect, it delivered more pollock to the shoreside proc\xc2\xad\nessor to which it will deliver pollock under the fishery cooperative\nin paragraph (1) than to any other shoreside processor.\nNothing in this definition suggests an ownership limitation. Pursuant to section\n210(b)(3), whether or not a catcher vessel is \xe2\x80\x9c qualified\xe2\x80\x9d under the AFA to partici\xc2\xad\npate in a fishery cooperative linked to a particular shoreside processor depends\nupon whether the vessel delivered the majority of its catch to that processor, not\nupon its ownership structure.\nNor does the definition of the underlying term \xe2\x80\x9c catcher vessel\xe2\x80\x9d contain any\nownership-based restriction. \xe2\x80\x9c Catcher vessel\xe2\x80\x9d is defined in section 205(3) of the\nAFA as \xe2\x80\x98 \xe2\x80\x98a vessel that is used for harvesting fish and that does not process pollock\nonboard.\xe2\x80\x9d What this definition excludes are boats that process fish onboard \xe2\x80\x94\ncatcher/processors (see \xc2\xa7 205(2)) and motherships (see \xc2\xa7 205(8)) \xe2\x80\x94 but it does not,\nby its own terms, exclude vessels on the basis of ownership.\nFurther clarification of the scope of the term \xe2\x80\x9c catcher vessel\xe2\x80\x9d appears in sub\xc2\xad\nsections 208(a) and (c). Section 208 generally sets forth eligibility criteria for\ncatcher vessels participating in the inshore and offshore sectors of the BSAI\nfishery. Under section 208(a), eligibility to harvest pollock for the inshore sector\nis limited to those catcher vessels that: (1) either have delivered at least 250 metric\ntons o f pollock to a shoreside processor in 1996, 1997 or 1998, or are less than\nsixty feet long and have delivered at least forty metric tons of pollock to a shore\xc2\xad\nside processor in any of those years; (2) have an approved license to harvest pol\xc2\xad\nlock; and (3) are not listed in subsection 208(b) (which lists catcher vessels\n254\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\neligible to deliver pollock to catcher/processors). See \xc2\xa7 208(a)(1). None of these\neligibility criteria relates in any way to ownership of the catcher vessel.\nSubsection 208(c), which defines the eligibility of catcher vessels delivering\npollock to motherships, also offers textual support for an interpretation of \xe2\x80\x9c catcher\nvessel\xe2\x80\x99 \xe2\x80\x99 that makes no distinction based on ownership. Section 208(c) lists specifi\xc2\xad\ncally named \xe2\x80\x9c catcher vessels\xe2\x80\x9d that remain eligible to harvest the portion of the\nTAC allocated to motherships. While some of the catcher vessels identified in\nsection 208(c) are independently owned, many of those listed are owned wholly\nor in part by a mothership. See Robert Halvorsen et al., \xe2\x80\x9c Discussion Paper on\nInshore Sector Catcher Vessel Cooperatives in the Bering Sea/Aleutian Islands\nPollock Fisheries\xe2\x80\x9d at Appendix C (Sept. 13, 1999) (\xe2\x80\x9c University of Washington\nDiscussion Paper\xe2\x80\x9d ) (listing vessels participating in BSAI fishery and their owner\xc2\xad\nship structure). By including both independently owned vessels and mothershipowned vessels within the list of eligible \xe2\x80\x9c catcher vessels,\xe2\x80\x9d section 208(c) extends\nthe scope of that term to vessels owned by an entity within one of the processing\nsectors. Although none of the vessels listed in section 208(c) is owned by a shore\xc2\xad\nside processor,1 section 208(c) makes clear that the term \xe2\x80\x9c catcher vessel\xe2\x80\x9d is not\nlimited to non-processor-owned boats. Since there is nothing in the definition of\n\xe2\x80\x9c catcher vessel\xe2\x80\x9d to distinguish between different types of processor owners, it\nfollows that the term \xe2\x80\x9c catcher vessel\xe2\x80\x9d includes boats owned by shoreside proc\xc2\xad\nessors as well.\nThe overall purpose animating section 210(b), as revealed in the language and\nhistory of the provision, supports this inclusive definition. Rather than placing\nany ownership limitation on vessel participation in cooperatives, section 210(b)\nexpressly encourages broad participation in inshore cooperatives by all vessels.\nSection 210(b)(2) provides that \xe2\x80\x9c [a]ny contract implementing a fishery coopera\xc2\xad\ntive under paragraph (1) must allow the owners of other qualified catcher vessels\nto enter into such contract after it is filed . . . under the same terms and conditions\nas the owners of the qualified catcher vessels who entered into such contract upon\nfiling.\xe2\x80\x9d The conference report to the AFA explains that this provision extends\nthe authority to join cooperatives to all qualified catcher vessels \xe2\x80\x9c on a class-wide\nbasis\xe2\x80\x9d :\nIf a fishery cooperative is formed, other catcher vessels that deliv\xc2\xad\nered most of their catch to that shoreside processor would be\nrequired to be allowed to join the fishery cooperative under the\nsame terms and conditions as other participants at any time before\nthe calendar year in which fishing under the cooperative will\nbegin. . . . The vessels eligible to harvest pollock allocated for\nprocessing by shoreside processors would continue to have the\n1 This comes as no surprise, since a catcher vessel owned by a shoreside processor would likely be delivering\nthe majority o f its catch to that shoreside processor, not to a mothership\n\n255\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nauthority to form a fishery cooperative on a class-wide basis as\nwell.\n144 Cong. Rec. S12.780 (daily ed. Oct. 21, 1998).\nMoreover, the manner in which Congress chose to structure fishery cooperatives\nfor the inshore sector requires the participation of shoreside processor-owned\ncatcher vessels in order to achieve the goal for which AFA cooperatives were\nbeing established: to end the race for fish. In order for a fishery cooperative to\nbe formed under section 210(b), the owners of eighty percent or more of the\nqualified catcher vessels that delivered pollock to a particular shoreside processor\nin the previous year must agree to join the cooperative. See \xc2\xa7 210(b)(1). In 1998,\nhowever, processor-owned vessels apparently made up over twenty percent of the\ntotal number of vessels delivering pollock to six out of seven shoreside processors.\nSee University of Washington Discussion Paper at 46. Thus, if processor-owned\nvessels were excluded from participating in AFA cooperatives, six out of seven\no f the potential cooperatives that might be formed under the AFA could not reach\nthe eighty percent threshold for vessel participation. In other words, if participation\nin AFA cooperatives was limited to independently owned vessels, only one\ncooperative could be formed pursuant to the requirements of section 210(b). See\nCommerce Letter at 1-2.\nSimilarly, if processor-owned vessels were excluded from AFA cooperatives,\nnone o f the fishery cooperatives that Congress intended to create within the\nmothership sector pursuant to section 210(d) could be formed. Like section 210(b),\nsection 210(d) permits \xe2\x80\x9c the filing of a contract implementing a fishery cooperative\nunder [section 1 of the FCMA].\xe2\x80\x9d \xc2\xa7 210(d)(1). These contracts must be entered\ninto \xe2\x80\x9c by the owners of 80 percent or more of the catcher vessels eligible under\n208(c).\xe2\x80\x9d Id. The latter provision lists 19 named vessels, 13 of which are processorowned. Section 208(c) includes a provision allowing additional vessels to be added\nto this list, but only if the Secretary of Commerce makes certain factual findings\nand the new vessel is eligible to harvest pollock under a license limitation program\nrecommended by the North Pacific Council. See \xc2\xa7 208(c)(20)(A), (B). Unless an\nadditional 46 independently owned boats were added to this list by January 1,\n2000, there would be no possibility that 80 percent of the catcher vessels eligible\nunder section 208(c) could b e independently owned. Because one of the central\naims of the AFA was to reduce excess capacity in the fishery, it is obvious that\nCongress did not intend to authorize the creation of FCMA cooperatives within\nthe mothership sector only if the number of catcher vessels within that sector\nmore than tripled, from 19 to 65. Section 210(d), therefore, confirms that Congress\nexpected processor-owned vessels to enter into contracts \xe2\x80\x9c implementing a fishery\ncooperative under\xe2\x80\x99\xe2\x80\x99 the FCMA.\nThus, interpreting the AFA to exclude processor-owned vessels would essen\xc2\xad\ntially defeat the primary purpose of the Act, which was to encourage the formation\n256\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\nof fishery cooperatives in order to end the annual race for fish. As noted above,\nsee supra p. 253, under section 210(b)(5), catcher vessels that do not participate\nin a fishery cooperative may harvest pollock from that portion of the inshore\nallocation that is reserved for open access. If only a small number of catcher\nvessels join cooperatives, the percentage of the TAC set aside for cooperatives\nwill also be small, leaving a correspondingly greater percentage of the TAC avail\xc2\xad\nable for open access, with a large number of non-cooperative vessels competing\nfor a portion of that catch. The race for fish would continue.\nThe legislative history of the AFA likewise confirms that Congress intended\nfishery cooperatives to play a critical role in ending the race for fish. As Senator\nMurray explained during the Senate debate on the AFA,\nThis bill relies in great measure on the ability and willingness of\nthe North Pacific pollock fishery sectors to form fishery coopera\xc2\xad\ntives. Fishery cooperatives, authorized under current law, are a pri\xc2\xad\nvately negotiated allocation on a company-by-company or vesselby-vessel basis of a portion of the total allowable catch. Similar\nto an individual fishing quota program, cooperatives provide fishery\nparticipants with the certainty they need to stop the race for fish,\nand harvest and process the fish on a more flexible schedule with\ngreater attention to bycatch, efficiency, and safety. The existing\nfishery cooperative in the offshore sector of the Pacific Whiting\nfishery has shown tremendous benefits in these regards and has\nhelped rationalize the fishery. It is hoped that cooperatives can do\nthe same in the pollock fishery.\n144 Cong. Rec. S12.708 (daily ed. Oct. 20, 1998) (statement of Sen. Murray).\nIt can reasonably be assumed that, in crafting cooperatives as a solution to the\nopen access problem, Congress was familiar with the BSAI fishing industry and\nits various components. Cf. Rodriguez v. P eters , 63 F.3d 546, 567 (7th Cir. 1995).\nMore particularly, it is clear that Congress was aware of the extent to which the\nshoreside processing sector was vertically integrated and that Congress did not\nintend to omit processor-owned boats from the fishery cooperatives whose forma\xc2\xad\ntion was essential to the purposes of section 210. The clear language of the AFA\nand its legislative history and purpose thus demonstrate a congressional intent\nto include processor-owned vessels in fishery cooperatives under section 210(b).2\n2 To be sure, the purpose o f section 210(b) could also be achieved if processors sold their catcher vessels to\nindependent operators The legislative history, however, makes no reference to such divestiture, and it seems unlikely\nthat Congress, without even referring to divestiture, would make the entire success of section 210(b) rest on this\ncontingency.\n\n257\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nB. Section 210(b) Reference to FCMA Cooperatives\nWe now turn to the question whether the reference in subsection 210(b) to\n\xe2\x80\x9c fishery cooperatively] under subsection (a),\xe2\x80\x9d which refers to the fishery coopera\xc2\xad\ntive provision o f the FCMA, 15 U.S.C. \xc2\xa7 521, places any limitations on the forma\xc2\xad\ntion of cooperatives under the AFA. The National Oceanographic and Atmospheric\nAdministration ( \xe2\x80\x9c NOAA\xe2\x80\x9d ) does not dispute the conclusion that the text and legis\xc2\xad\nlative history of the AFA indicate a congressional intent to include processorowned vessels in cooperatives under section 210(b). However, NOAA argues that,\nby referring to FCMA fishery cooperatives under section 210(b), Congress nec\xc2\xad\nessarily incorporated into the AFA cooperatives those eligibility restrictions that\napply to FCMA cooperatives. See Letter for Randolph Moss, Acting Assistant\nAttorney General, Office of Legal Counsel, from Monica P. Medina, General\nCounsel, National Oceanographic and Atmospheric Administration (June 7, 1999)\n(\xe2\x80\x9c NOAA Letter\xe2\x80\x9d ). And because NOAA interprets the FCMA to preclude the\nparticipation of processor-owned vessels, it concludes that, likewise, processorowned vessels are ineligible to participate in cooperatives under \xc2\xa7 210(b) of the\nAFA. See id. at 5.\nBecause the question of the interplay between the FCMA and the AFA is rel\xc2\xad\nevant to a proper interpretation o f section 210(b), we will briefly discuss the anti\xc2\xad\ntrust exemption under the FCMA and the statute upon which it is modeled, the\nCapper-Volstead Act, 7 U.S.C. \xc2\xa7 291 (1994), before returning to the AFA.\n1. Integrated Processors under the FCMA and the Capper-Volstead Act\nThe FCMA grants an exemption from antitrust liability for certain collective\nactivities in the fishing industry. Specifically, it provides:\nPersons engaged in the fishery industry, as fishermen, catching, col\xc2\xad\nlecting, or cultivating aquatic products, . . . may act together in\nassociations, corporate or otherwise, with or without capital stock,\nin collectively catching, producing, preparing for market, proc\xc2\xad\nessing, handling, and marketing in interstate and foreign commerce,\nsuch products of said persons so engaged. . . . Such associations\nmay have marketing agencies in common, and such associations\nand their members may make the necessary contracts and agree\xc2\xad\nments to effect such purposes.\n15 U.S.C. \xc2\xa7521. The FCMA exemption was patterned after a similar antitrust\nexemption for agricultural activities, set forth in section 1 of the Capper-Volstead\nAct, 7 U.S.C. \xc2\xa7291. In fact, the only court that has considered the scope of the\nFCMA exemption concluded that \xe2\x80\x9c though there are some differences between\n258\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\nCapper-Volstead and the Fisherman\xe2\x80\x99s Act, the two Acts provide exemptions from\nantitrust liability for essentially the same activities.\xe2\x80\x9d United States v. Hinote, 823\nF. Supp. 1350, 1354 n.7 (S.D. Miss. 1993).\nThe Supreme Court considered the scope of the Capper-Volstead exemption\nin National Broiler Mktg. A ss\xe2\x80\x99n v. United States , 436 U.S. 816 (1978) (\xe2\x80\x9c NBMA \xe2\x80\x9d ).\nIn NBMA, the United States brought a civil action against a nonprofit cooperative\nassociation of producers of broiler chickens \xe2\x80\x94 the NBMA \xe2\x80\x94 alleging a conspiracy\nin violation of section 1 of the Sherman Act. The question before the Court was\nwhether a producer of broiler chickens, which did not own a breeder flock or\nhatchery, could nevertheless qualify as a \xe2\x80\x9c farmer\xe2\x80\x9d within the meaning of the\nCapper-Volstead Act. See id. at 817. After reviewing the legislative history of\nthe Capper-Volstead Act, the Court concluded that it could not:\nWe, therefore, conclude that any member of NBMA that owns nei\xc2\xad\nther a breeder flock nor a hatchery, and that maintains no growout facility at which the flocks to which it holds title are raised,\nis not among those Congress intended to protect by the CapperVolstead Act. The economic role of such a member in the produc\xc2\xad\ntion of broiler chickens is indistinguishable from that of the proc\xc2\xad\nessor that enters into a preplanting contract with its supplier, or\nfrom that of a packer that assists its supplier in the financing of\nhis crops. . . . We hold that such members are not \xe2\x80\x9c farmers,\xe2\x80\x9d as\nthat term is used in the Act, and that a cooperative organization\nthat includes them \xe2\x80\x94 or even one of them \xe2\x80\x94 as members is not enti\xc2\xad\ntled to the limited protection of the Capper-Volstead Act.\nId. at 827-29 (footnotes omitted).\n\nIn coming to this conclusion, the Court specifically reserved the question of\nthe status of the integrated producer:\n[W]e need not consider here the status under the Act of the fully\nintegrated producer that not only maintains its own breeder flock,\nhatchery, and grow-out facility, but also runs its own processing\nplant. Neither do we consider the status of the less fully integrated\nproducer that, although maintaining a grow-out facility, also con\xc2\xad\ntracts with independent growers for a large portion of the broilers\nprocessed at its facility.\nId. at 829 n.21. In a concurring opinion, Justice Brennan did address these ques\xc2\xad\n\ntions reserved by the Court. He reviewed the legislative history of the CapperVolstead Act, and asserted that \xe2\x80\x9c Congress\xe2\x80\x99 manifest purpose to protect the small,\nindividual economic units engaged in fanning,\xe2\x80\x9d id. at 835 (Brennan, J., concur\xc2\xad\nring), precluded automatic extension of the exemption to the integrated producer:\n259\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nI seriously question the validity of any definition of \xe2\x80\x9c farmer\xe2\x80\x9d in\n\xc2\xa7 1 which does not limit that term to exempt only persons engaged\nin agricultural production who are in a position to use cooperative\nassociations for collective handling and processing \xe2\x80\x94 the very\nactivities for which the exemption was created. At some point along\nthe path of downstream integration, the function of the exemption\nfor its intended purpose is lost, and I seriously doubt that a person\nengaged in agricultural production beyond that point can be consid\xc2\xad\nered to be a farmer . . . . Thus, in my view, the nature of the\nassociation\xe2\x80\x99s activities, the degree of integration of its members,\nand the functions historically performed by farmers in the industry\nare relevant considerations in deciding whether an association is\nexempt.\nId. at 835-36.\n\nOnly one court has actually ruled on the question whether an integrated producer\nis entitled to Capper-Volstead or FCMA exemption. In United States v. Hinote,\n823 F. Supp. 1350, 1359 (S.D. Miss. 1993), the district court, relying largely upon\nJustice Brennan\xe2\x80\x99s concurrence, concluded that catfish processors could not take\nadvantage of the antitrust exemption under the FCMA solely by purchasing or\nleasing some interest in a catfish farming operation. The court reasoned that if\nit were to come to the opposite conclusion,\nlarge integrated agribusinesses organized to market and sell agricul\xc2\xad\ntural products could exempt themselves from the antitrust laws by\nthe simple expedient of purchasing and/or leasing some interest in\na farming operation, no matter how de minimis the interest. Such\na result, however, would undermine Congress\xe2\x80\x99 express purpose in\nenacting both the Sherman and Capper-Volstead Acts.\nId. There is certainly support in the legislative history of the Capper-Volstead\n\nAct for this conclusion, much o f which is catalogued by Justice Brennan in his\nNBMA concurrence. However, as Justice White recognized in his dissent in\nNBMA, there is also conflicting evidence in the history and language of the statute\n\nthat might lead to the opposite conclusion. 436 U.S. at 844\xe2\x80\x9449.\nWhile we understand that it is generally assumed that integrated producers and\nprocessors may not participate in exempted cooperatives, the sparse case law inter\xc2\xad\npreting the scope of the FCMA and Capper-Volstead exemptions cannot be said\nto have dispositively resolved the question. However, as we discuss in the next\nsection, we need not decide that question in order to determine whether processorowned vessels may participate in the cooperatives authorized under section 210(b).\n260\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\n2. Reconciling the FCMA with the AFA\n\nIt is a well-established principle of statutory interpretation that the law favors\nrational and sensible construction. See, e.g., 2 A Norman J. Singer, Sutherland\nStatutory Construction \xc2\xa745.12 (5th ed. 1992). Thus, if there exists some reason\xc2\xad\nable interpretation that reconciles two otherwise allegedly inconsistent statutes in\na manner that does not destroy or hinder the intent or meaning of either one,\nthat interpretation is favored. See id. Moreover, if a statute is capable of more\nthan one interpretation, it should be construed to effectuate its underlying purpose.\nSee Norwest Bank o f North Dakota, N.A. v. Doth, 159 F.3d 328, 333 (8th Cir.\n1998); cf. United States N a t\xe2\x80\x99l Bank o f Oregon v. Independent Ins. Agents o f Am.,\nInc., 508 U.S. 439, 455 (1993) (stressing that, \xe2\x80\x9c [i]n expounding a statute, we\nmust not be guided by a single sentence or member of a sentence, but look to\nthe provisions of the whole law, and to its object and policy\xe2\x80\x9d ) (quoting United\nStates v. Heirs o f Boisdore, 49 U.S. (How.) 113, 122 (1849)). Applying these\nprinciples to the case before us, we must, if possible, construe the cross-reference\nto FCMA cooperatives in section 210(b) in. a reasonable manner that is both con\xc2\xad\nsistent with the purposes of the AFA and compatible with section 1 of the FCMA.\nCongress\xe2\x80\x99s primary purpose in enacting section 210 was to encourage the forma\xc2\xad\ntion of as many fishery cooperatives as possible in order to rationalize the BSAI\nfishery and end the race for fish. See supra pp. 256-57. Congress chose to effec\xc2\xad\ntuate this purpose for the inshore sector of the BSAI fishery by creating \xe2\x80\x9c catcher\nvessel cooperatives\xe2\x80\x9d under section 210(b). Congress chose also to define section\n210(b) cooperatives by cross-referencing the FCMA. Because the participation of\nprocessor-owned vessels in section 210(b) cooperatives was critical to achieving\nCongress\xe2\x80\x99s purpose, Congress must have intended that such vessels would be\nincluded in cooperatives under the FCMA.3 In interpreting section 2 10(b)\xe2\x80\x99s crossreference to the FCMA, therefore, we are presented with three possibilities: (1)\nCongress was mistaken about the scope of the FCMA, which excludes such\nintegrated processors, and processor-owned vessels may not participate in coopera\xc2\xad\ntives under section 210(b); (2) Congress correctly understood the FCMA to\ninclude integrated processors, and processor-owned vessels may participate in\ncooperatives under section 210(b); or (3) Congress has in the AFA effectively\ndeclared that, regardless of the actual scope of the FCMA in other contexts, proc\xc2\xad\nessor-owned vessels may participate in FCMA fishery cooperatives in the BSAI\nfishery. Of these three possible interpretations, we must reject the first because\nit so plainly frustrates the purpose of the AFA. We need not decide between the\nsecond and third possible interpretations, however, because, under either, it is clear\n3 O f course, it might be argued that Congress deliberately referred to the FCMA cooperatives in section 210(b)\nin order to exclude processor-owned boats from AFA cooperatives However, there is nothing in the legislative\nhistory of the statute to support such an assertion, and there is significant evidence to the contrary. See supra pp\n253-57 Thus, we do not think this interpretation o f the reference to the FCMA merits consideration\n\n261\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthat catcher vessels owned by shoreside processors may participate in the fishery\ncooperatives authorized by section 210(b) of the AFA.\nThe first of these interpretations assumes the conclusion reached by NOAA,\nnamely that the FCMA does not perm it integrated processors to participate in\ncooperatives under 15 U.S.C. \xc2\xa7521. To argue further, as NOAA does, that this\ncross-reference necessarily incorporates the limitations of FCMA cooperatives into\nthe AFA scheme requires us to conclude that Congress mistakenly assumed that\nFCMA cooperatives could include integrated processors and, as a result, enacted\na provision that cannot operate as Congress intended. Moreover, as we have\nalready observed, if processor-owned vessels are excluded from participating in\ncooperatives under section 210(b), only one fishery cooperative could be formed\nunder section 210(b), thereby thwarting the primary purpose of section 210.\nThus if we accept this first interpretation, we render section 210(b) practically\nineffective.4\nW e are reluctant to adopt a construction of a statute that presumes congressional\nerror and that renders its provisions either ineffective or contrary to stated legisla\xc2\xad\ntive objectives. The \xe2\x80\x98 \xe2\x80\x98unreasonableness of the result produced by one among alter\xc2\xad\nnative possible interpretations of a statute is reason for rejecting that interpretation\nin favor of another which would produce a reasonable result.\xe2\x80\x9d 2A Singer, Suther\xc2\xad\nland Statutory Construction \xc2\xa745.12; see also American Tobacco Co. v. Patterson,\n456 U.S. 63, 71 (1982) ( \xe2\x80\x9c Statutes should be interpreted to avoid . . . unreason\xc2\xad\nable results whenever possible.\xe2\x80\x9d ).\nW e therefore look to the two other proposed interpretations to see if they offer\na more reasonable result that achieves the AFA\xe2\x80\x99s underlying purposes. The second\ninterpretation accomplishes these goals because it would allow processor-owned\ncatcher vessels to join cooperatives under both the FCMA and the AFA. Of\ncourse, this interpretation would require us to determine that integrated processors\nmay participate in fishery cooperatives under the FCMA, a conclusion that cannot\nbe said to be settled under the case law and that we understand may have profound\nimplications for both the fishing and other industries. We are therefore reluctant\nto rely upon this conclusion, and need not do so because, even if the FCMA\nexemption does not cover integrated processors, we believe Congress\xe2\x80\x99s intent to\npermit the formation of cooperatives under section 210(b) that include processorowned vessels can still be given effect under the third interpretation.\nThe third interpretation posits that Congress declined to express or assume a\nview concerning the scope o f the FCMA generally and instead decided that,\nregardless of whether processor-owned vessels are permitted to participate in all\ncooperatives under the FCMA, they should participate in the FCMA cooperatives\n4 It might be argued that the fact lhat o n e cooperative o f independently owned catcher vessels could be formed\nunder the provisions o f section 210(b) is sufficient to render this interpretation viable. However, in light of Congress\xe2\x80\x99s\nclear intent in section 210(b) to encourage the formation o f cooperatives on a \xe2\x80\x9c class-wide basis,\xe2\x80\x9d we think such\nan interpretation would in fact \xe2\x80\x9c thwart th e obvious purpose o f the statute.\xe2\x80\x9d In Re Trans Alaska Pipeline Rate Cases,\n436 U S 631, 643 (1978). Moreover, as noted above, see supra pp 256-57, this interpretation would completely\nnullify section 210(d)\n\n262\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\nauthorized by the AFA. By referring to the FCMA in a statute that intended to\ninclude integrated processors in its fishery cooperatives, Congress effectively\ndetermined that, at least for the purpose of BSAI directed pollock fisheries, proc\xc2\xad\nessor-owned vessels are entitled to participate in cooperatives that enjoy FCMA\nantitrust immunity.\n\xe2\x80\x9c [WJhere . . . Congress adopts a new law incorporating sections of a prior\nlaw, Congress normally can be presumed to have had knowledge of the interpreta\xc2\xad\ntion given to the incorporated law, at least insofar as it affects the new statute.\xe2\x80\x9d\nLorillard v. Pons, 434 U.S. 575, 581 (1978). Here, however, as noted above, there\nwas no dispositive judicial interpretation of the scope of either the FCMA or the\nCapper-Volstead Act to guide Congress when it enacted the AFA in 1998. More\xc2\xad\nover, because it was not actually amending the FCMA, Congress had no reason\nin the AFA to settle this far-reaching issue. Cf. Pierce v. Underwood, 487 U.S.\n552, 567 (1988) (stating that \xe2\x80\x9c it is the function of the courts and not the Legisla\xc2\xad\nture, much less a Committee of one House of the Legislature, to say what an\nenacted statute means\xe2\x80\x9d ); Patsy v. Board o f Regents o f the State o f Florida, 457\nU.S. 496, 508-09 (1982) (according interpretive weight to views of a subsequent\nCongress where that Congress acted in light of settled rule that exhaustion is not\nrequired in section 1983 actions and imposed an exhaustion requirement for a\ndiscrete class of 1983 claims). Rather, all that was required was for Congress\nto determine that processor-owned vessels should be allowed to participate in AFA\ncooperatives that enjoy FCMA immunity.\nThe language of section 210 offers textual support for the view that Congress\nlegislated in this limited manner. Notably, while it authorized the execution of\ncontracts \xe2\x80\x9c implementing a fishery cooperative under\xe2\x80\x9d the FCMA, Congress did\nnot describe the signatories to such contracts by cross-reference to the FCMA.\nThus, it did not authorize \xe2\x80\x9c fishermen, within the meaning of the FCMA, who\nown qualified catcher vessels\xe2\x80\x9d to enter into contracts under section 210. Nor did\nit authorize \xe2\x80\x98 \xe2\x80\x98owners of qualified catcher vessels otherwise eligible to form FCMA\ncooperatives\xe2\x80\x9d to do so. Indeed, Congress did not use any of the FCMA\xe2\x80\x99s operative\nterms \xe2\x80\x94 \xe2\x80\x9c persons,\xe2\x80\x9d \xe2\x80\x9c fishermen,\xe2\x80\x9d \xe2\x80\x9c planters\xe2\x80\x9d \xe2\x80\x94 in specifying who could partici\xc2\xad\npate in section 210(b) cooperatives entitled to antitrust immunity. Instead, Con\xc2\xad\ngress provided that FCMA contracts under section 210(b)(1) be signed by\n\xe2\x80\x9c owners\xe2\x80\x9d of \xe2\x80\x9c qualified catcher vessels,\xe2\x80\x9d and nothing in the statutory definition\nof \xe2\x80\x9c qualified catcher vessels\xe2\x80\x9d suggests any limitation based on ownership or\nvertical integration. The text of the statute is thus entirely consistent with a\ncongressional intent to permit integrated processors to participate in FCMA\ncooperatives for purposes of the AFA, whether or not such entities could partici\xc2\xad\npate in FCMA cooperatives generally. C f Lorillard, 434 U.S. at 582 (construing\none statute in light of congressional \xe2\x80\x9c selectivity . . . in incorporating provisions\nand modifying certain . . . practices\xe2\x80\x9d under an earlier statute that Congress incor\xc2\xad\nporated by reference in the subsequent statute).\n263\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nUnlike the first interpretation we outlined above, the third interpretation effec\xc2\xad\ntuates Congress\xe2\x80\x99s underlying purpose in the AFA while simultaneously reconciling\nthe AFA with the FCMA. It best gives effect to Congress\xe2\x80\x99s express intent: that\nall catcher vessels, both independently-owned and processor-owned, participate\nin FCMA fishery cooperatives under the AFA so that the race for fish in the\nBSAI fishery can be ended. Particularly in light of the fact that there is no clearly\nsettled law on the question whether, and if so, under what circumstances,\nintegrated processors can participate in FCMA cooperatives, that congressional\nintent should control here.5\nThis interpretation does not require us to accept or reject Justice Brennan\xe2\x80\x99s\ninterpretation of the Capper-Volstead Act or the Hinote court\xe2\x80\x99s view concerning\nthe scope of the FCMA. As we read section 210, Congress did not take any posi\xc2\xad\ntion on the scope of the FCMA \xe2\x80\x94 a statute it left entirely undisturbed \xe2\x80\x94 and\ninstead effectively declared that, whatever the scope of that statute generally, processor-owned vessels could participate in pollock fishery cooperatives entitled to\nFCMA immunity.\nIn any event, Justice Brennan\xe2\x80\x99s analysis in NBMA is simply inapplicable here.\nIn his concurring opinion, Justice Brennan concluded that the Capper-Volstead\nexemption should not extend to those who are not \xe2\x80\x9c in a position to use coopera\xc2\xad\ntive associations for collective handling and processing,\xe2\x80\x9d 436 U.S. at 835-36,\npresumably those who already have their own processing capacity. The purpose\nof cooperatives under the AFA, however, is not to facilitate collective proc\xc2\xad\nessing\xe2\x80\x94 in fact, each cooperative that might be formed under section 210(b) is\nexpressly tied to an existing shoreside processor that is responsible for processing\nthe catch of the cooperative. Rather, cooperatives under the AFA are formed for\nthe purpose of receiving a guaranteed allocation of the pollock TAC, thereby\npermitting members of the cooperative to fish more efficiently and safely. It thus\nmakes no sense to evaluate the eligibility of participants in AFA cooperatives\non the basis of their ability to use the cooperative only for purposes of collective\nprocessing.\nWe do not share NOAA\xe2\x80\x99s concern that this third interpretation is inconsistent\nwith section 210(d), which expressly extends the antitrust exemption under the\nFCMA to processing activities by motherships. NOAA argues that, because, Con\xc2\xad\ngress expressly extended the reach of the FCMA to include one type of processor\nin section 210(d), we should not read such an extension into \xc2\xa7 210(b) on an\nimplied basis. See NOAA Letter at 4 n.4. However, the principle expressio unius\n5 In fact, as noted above, under this interpretation, the scope of the FCMA in other contexts is irrelevant to the\nresult. If the FCMA permits integrated processors to participate in cooperatives in other contexts, then the AFA\nsimply makes clear that this authority applies to all catcher vessels in the BSAI fishery, including those owned\nby processors, and encourages them to tak e advantage o f the existing authority by offering catcher vessel cooperatives\na guaranteed allocation o f the TAC If th e FCMA does not permit integrated processors to participate in cooperatives\nin other contexts. Congress\xe2\x80\x99s intent that they be permitted to participate in FCM A cooperatives for the purpose\nof harvesting pollock in the BSAI fishery is a decision to extend FCMA immunity to a limited group of processorow ned vessels operating in a single fishery.\n\n264\n\n\x0cParticipation by Processor-Owned Catcher Vessels in Inshore Cooperatives\n\nest exclusio alterius is a canon of statutory construction, not a rule of law, and\ncan be overcome by a showing of contrary legislative intent or policy: \xe2\x80\x9c [W]hether\nthe specification of one matter means the exclusion of another is a matter of legis\xc2\xad\nlative intent for which one must look to the statute as a whole.\xe2\x80\x9d 2A Singer,\nSutherland Statutory Construction \xc2\xa747.25 n .l (citing Massachusetts Trustees o f\nE. Gas & Fuel Assocs. v. United States, 312 F.2d 214 (9th Cir. 1963)); see also\nUnited States v. Barnes, 222 U.S. 513, 519 (1912) (\xe2\x80\x9c The maxim invoked\n[expressio unius] expresses a rule of construction, not of substantive law, and\nserves only as an aid in discovering the legislative intent when that is not other\xc2\xad\nwise manifest. In such instances it is of deciding importance; in others, not.\xe2\x80\x9d ).\nGiven the strong evidence in the AFA that Congress intended integrated proc\xc2\xad\nessors to participate in all fishery cooperatives in the BSAI fishery, we do not\nfind the maxim persuasive here.\nA narrower reading of section 210(b) might also be urged based upon the rule\nthat \xe2\x80\x9c [r]epeals of the antitrust laws by implication from a regulatory statute are\nstrongly disfavored,\xe2\x80\x9d United States v. Philadelphia N a t\xe2\x80\x99l Bank, 374 U.S. 321,\n350 (1963). This rule comes into play, however, only if the FCMA does not extend\nto processor-owned vessels, a question we need not decide. Morever, even if we\nassume that the FCMA does not include such vessels, we believe that this is one\nof those unusual situations that presents a case of \xe2\x80\x9c plain repugnancy between\nthe antitrust and regulatory provisions,\xe2\x80\x9d id. at 351, a rare exception to the general\nrule. Where, as here, \xe2\x80\x9c Congress has made a judgment that [certain] restrictions\non competition might be necessitated by the unique problems o f \xe2\x80\x99 a particular\nindustry, \xe2\x80\x9c the antitrust laws must give way if the regulatory scheme established\xe2\x80\x9d\nby that statute is to work. United States v. National Ass \xe2\x80\x99n o f Securities Dealers,\nInc., 422 U.S. 694, 729-30 (1975). Congress\xe2\x80\x99s purpose in enacting the AFA was\nto increase efficiency by decreasing excess capitalization and ending the race for\nfish, and its mechanism for achieving that purpose was the creation of fishery\ncooperatives that are necessarily exempt from antitrust liability.\nIndeed, in the context of the BSAI fishery, where there is a fixed quota of\nfish in a highly regulated industry, the creation of fishery cooperatives does not\nundermine the goals of the antitrust laws. In the related context of the Pacific\nWhiting fishery, the Antitrust Division recognized that \xe2\x80\x9c reliance on an Olympic\nrace system to gather a fixed quota of fish \xe2\x80\x98is both inefficient and wasteful,\xe2\x80\x99 \xe2\x80\x9d\nand concluded that \xe2\x80\x9c eliminating the race will increase processing efficiency and\nconcomitantly the output of [fish].\xe2\x80\x9d Letter for Joseph M. Sullivan, Esq., Mundt,\nMacGregor, Happel, Falconer, Zulauf & Hall, from Joel L. Klein, Acting Assistant\nAttorney General, Antitrust Division at 3 (May 20, 1997). The Antitrust Division\nfurther determined that, in such a fixed quota setting, elimination of the race for\nfish was unlikely to have an anticompetitive effect: \xe2\x80\x9c [Elim ination of the race\nto gather an input whose output is fixed by regulation seems unlikely to reduce\noutput or increase price under any likely scenario.\xe2\x80\x9d Id. Thus, from the perspective\n265\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\no f antitrust principles, there is no reason to read section 210(b) narrowly; on the\ncontrary, reading section 210(b) broadly to facilitate the formation of as many\nfishery cooperatives as possible would ultimately allow for greater efficiency in\nprocessing and might have procompetitive effects.6 Cf. id. at 3-4 (\xe2\x80\x9c To the extent\nthat the proposed agreement allows for more efficient processing that increases\nthe usable yield (output) of the processed Pacific Whiting and/or reduces the inad\xc2\xad\nvertent catching of other fish species whose preservation is also a matter of regu\xc2\xad\nlatory concern, it could have procompetitive effects.\xe2\x80\x9d ).\nIn short, there exists at least one interpretation of section 210(b) that is con\xc2\xad\nsistent with its text and effectuates the purposes of the AFA. Because a statute\nshould be interpreted whenever possible to effectuate Congress\xe2\x80\x99s purposes, and\nbecause it is possible to do so here, we conclude that processor-owned vessels\nmay participate in section 210(b) cooperatives. In light of this conclusion, we\nneed not resolve the further question whether the FCMA generally permits such\nvessels to participate in cooperatives that enjoy antitrust immunity.\n\nCONCLUSION\nThe language and the legislative history of the AFA indicate that Congress\nintended processor-owned catcher vessels to participate in inshore cooperatives\nunder the AFA. Because section 210(b) can be read in a manner consistent with\nthat intention, we conclude that processor-owned catcher vessels may join fishery\ncooperatives under the AFA.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n6 O ur conclusion that processor-owned vessels may participate in FCMA cooperatives under the AFA is therefore\nunlikely to lead to anticompetitive results Nevertheless, to minimize the possibility of negative effects on the fishing\nindustry. Congress included within the A FA several provisions designed to eliminate potentially adverse economic\nconsequences. See, e.g., \xc2\xa7 213(c)(1) (granting the North Pacific Council the authority to recommend conservation\nand management measures \xe2\x80\x9c that supersede the provisions o f this title . . to mitigate adverse effects in fisheries\nor on owners o f fewer than three vessels in the directed pollock fishery caused by . . fishery cooperatives in\nthe directed pollock fishery\xe2\x80\x9d ); see also 144 Cong Rec. S12.708 (daily ed. Oct. 20, 1998) (statement of Sen. Murray)\n( \xe2\x80\x9c In the interest o f ensuring that small, independent fishermen are the true beneficiaries of fishery cooperatives,\nthe bill includes a number o f requirements for fishery cooperatives in all three sectors which are designed to provide\nthese small, independent fishermen with sufficient leverage in the negotiations to protect their interests.\xe2\x80\x9d ) Thus,\nshould shoreside processors in the BSAI fishery affiliate with catcher vessels for no purpose other than to engage\nin anticompetitive conduct under the um brella o f antitrust exemption, the AFA would appear to give the Council\nthe authority to check such abuses\n\n266\n\n\x0c'