General Category Scallop Fishermen v. Secretary, United States Department of Commerce

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.
1
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
2
(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 Magnuson-

Stevens 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
3
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).
4
 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.
5
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.
6
 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
7
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 three-

day 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.
8
 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
9
F.3d at 1366 n.3.
10
 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.
11
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

12
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.
13
 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.
14
 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.
15
 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).

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

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).
16
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
17
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).
18
snap vote, depriving them of a meaningful opportunity to

mobilize in opposition.16

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
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).
19
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 Magnuson-

Stevens Act=s statute of limitations, which requires that a

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

20
its publication.17 See 16 U.S.C. ' 1855 (f)(1).

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
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).
21
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

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 '
18
According to Appellees, at least four of the
Appellant fishermen submitted written comments
expressing opposition to the November 1, 2004 control date.
22
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
23
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.

We can find no authority that supports the
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/.
24
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
25
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
26
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.@).

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

yearly scallop catch.
27
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.
28
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
29
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.

IV.

For the reasons stated, we will affirm the judgment of

the District Court.

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.@
30