dissenting:
The American Fisheries Act of 1998 (“AFA”) granted a lucrative monopoly in pollock fishing rights to 20 vessels operating in the BSAIMA (described as “AFA trawl CP vessels”). The AFA compensated fishing vessels not favored by the pollock monopoly (“non-AFA vessels”) by charging the North Pacific Council with protecting them from the monopoly’s adverse effects. Specifically, the Council’s Fishery Management Plans (“FMPs”) must “protect other fisheries under its jurisdiction and the participants in those fisheries, including processors, from adverse impacts caused by this Act or fishery cooperatives in the directed pollock fishery.” 16 U.S.C. § 1851, note, AFA § 211(a). I conclude that Amendment 85 (“A85”) violates this protective mandate by directly allocating Pacific cod to the AFA sector to the detriment of the non-AFA trawl CP sector. Additionally, the Council’s use of pre-AFA data to calculate “catch history” violates National Standard 2 of the Magnuson-Stevens Act (“MSA”), a requirement that FMPs employ “the best scientific information available.” 16 U.S.C. § 1851(a)(2). As a result, I respectfully dissent.
I. AFA § 211(a)
In A85, the Secretary and the Council abdicated their responsibility to protect non-AFA vessels by granting the already privileged AFA trawl CP sector, for the first time, a direct allocation of the total authorized catch (“TAC”) of Pacific cod. That allocation was made at the expense of, among others, the non-AFA trawl CP sector, which of necessity relies more heavily on Pacific cod after being pushed out of the pollock fishery by the AFA.
Specifically, A85 grants the AFA trawl CP sector a direct allocation of 2.3% of the Pacific cod TAC-a portion well above that sector’s historic Pacific cod harvest. At the same time, A85 reduces the non-AFA trawl CP sector’s allocation to 13.4% of the Pacific cod TAC-a portion well below that sector’s recent harvests and below even its historic average as calculated by the Council. (As discussed below, there is reason to question the Council’s calculation.) The historic character of the new allocations calls into question the Council’s professed goal for A85 of “better reflecting] historic use by sector.” More importantly, by any reasonable measure the new allocations adversely impact the non-AFA trawl CP sector at the same time that they benefit the sector already favored with the pollock monopoly granted under the AFA.
The majority opinion seeks to rebut this assessment of A85’s adverse impact on the non-AFA trawl CP sector by -comparing the 6.1% “sideboard” limit formerly imposed on the AFA trawl CP sector’s Pacific cod harvest to the smaller allocation made by A85 to the AFA sector. Supra at 899. That misinterprets the function of the sideboard limit, which imposed a hard cap on the AFA trawl CP sector’s harvest rather than granting it a direct allocation like the one the sector now enjoys under A85. The majority opinion’s statement that “[t]he AFA-imposed sideboard permitted the AFA sector to fish for 26% of the total Pacific cod [allocated to the combined] trawl CP sector” is imprecise and misleading. Id. Instead, the 6.1% sideboard allowed the AFA sector to harvest no more than 26% of the combined trawl CP sector’s allocation; it did not actually guaran*901tee the AFA sector any fraction of the total trawl CP harvest. Prior to A85, the AFA sector and the non-AFA trawl CP sector were treated as one group, subject to a single allocation. As the Secretary acknowledges, “[p]rior to A85, the non-AFA trawl CP sector could theoretically [have] harvested] the entire 23.5% allocation of the Pacific cod TAC that it shared with the AFA trawl CP sector (because the AFA trawl CP sector’s 6.1% sideboard was a limit rather than an exclusive allocation).”
In fact, the AFA sector never came close to harvesting 6.1% of the Pacific cod TAC. Between 1995 and 2003, the years on which the Council based its reallocation, the AFA sector’s average harvest was just 1.7% of the TAC. By contrast, the non-AFA CP trawl sector’s average harvest during the 1995-2003 period was 13.6% of the TAC. The allocations assigned to those sectors by A85 are 2.3% and 13.4%, respectively. Thus, even using the range of years the Council relied on to calculate “catch history” as the basis for comparison, A85 assigned the AFA sector a share of the Pacific cod fishery above historic levels while curtailing the non-AFA sector’s Pacific cod fishing rights below its historic share.
If attention is focused on the years since adoption of the AFA, A85’s adverse impact on the non-AFA trawl CP sector is even worse. In post-AFA years, between 1998 and 2003, the AFA sector’s average harvest of Pacific cod was just 1.5%, substantially lower than A85’s allocation of 2.3%. During those years the non-AFA trawl CP sector harvested 15.7% of TAC, yet A85 allocates only 13.4% to that group.
These numbers contradict the majority opinion’s conclusion that “A85 had an adverse impact on the AFA trawl CP sector” or that the non-AFA sector is complaining of a “non-existent harm.” Supra at 899 n. I. Instead, A85 grants the favored AFA sector the additional boon of independence from the formerly combined trawl CP sector’s Pacific cod allocation with a margin for expansion beyond its historic Pacific cod harvest, and it inflicts on the non-AFA trawl CP sector an unmitigated loss of the Pacific cod market share (both allocated and actual) that sector cultivated in the years following its exclusion by the AFA from the pollock fishery. In sum, A85’s redistribution of the Pacific cod TAC imposes on the non-AFA trawl CP sector an adverse impact that § 211(a) requires the Council to guard against.
II. The Relevant History
The Council adopted the purpose of “better reflecting] historic use by sector” and declared “catch history” as one of three bases for determining sector allocations. Having done so, the Council was required by National Standard 2 to use “the best scientific information available” in furtherance of its stated goals. 16 U.S.C. § 1851(a)(2). Determining what time period to consider as relevant history was obviously important in evaluating historic use. The Council calculated catch history based on the years 1995 to 2003. That selection brings to mind Mark Twain’s observation:
Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: “There are three kinds of lies: lies, damned lies and statistics.” 1
*902The AFA was adopted in 1998. Prior to that time, pollock was not reserved to the chosen few fishing vessels. After the AFA changed the rules of the game by granting the AFA sector its pollock monopoly, other fishermen were required to focus on other species, notably including Pacific cod. To no one’s surprise, in later years, when they couldn’t catch pollock, they caught more cod. Yet the Council defined “catch history” to include several years before the AFA changed the rules.
The Council’s problem statement explained its reliance on pre-AFA data by stating that
Consideration of just three or four recent years does not show dependency of the sectors over time and may be unduly biased because of increased market demand for Pacific cod in recent years for some products, potential decreased participation due to BSAI crab rationalization, and the likelihood of competition for Pacific cod among sectors in anticipation of this action.
But these post-AFA market stimuli should make pre-AFA data less, not more, useful in reallocating Pacific cod going forward. Most importantly, the passage of the AFA in 1998 forced the non-AFA trawl CP sector to expand its Pacific cod operations to compensate for its exclusion from the pollock fishery, as the TAC shares discussed above confirm. That sector is still excluded from the pollock fishery by the AFA. The fishermen cannot go back to 1995-1998 circumstances. The Council should not pretend that they can, but that is exactly what A85 does. Relying on preAFA data to calculate the catch history of post-AFA players, without making any effort to adjust for the impact of the AFA, is manifestly unreasonable.
The decisions of the Secretary and the Council are entitled to great deference, but that deference is not unchecked. I would hold that in curtailing the non-AFA vessels’ rights to harvest Pacific cod while expanding those rights in AFA vessels, the adoption of A85 violated § 211(a) of the AFA, and in using pre-AFA data to calculate “historic” catch it violated National Standard 2 of the MSA.
. Mark Twain, Chapters from My Autobiography, 185 North American Review, No. DCXVIII., July 5, 1907, at 465, 471. There is doubt as to whether the attribution of the saying to Disraeli is correct.