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Document Type

Comment

Abstract

Through the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), Congress has delegated to the Secretary of Commerce the "broad authority to manage and conserve coastal fisheries." The Magnuson-Stevens Act creates eight independent regional fishery management councils to prepare fishery management plans for each region. However, the regional councils do not have authority over all species because the Magnuson-Stevens Act assigns responsibility to the Secretary of Commerce for non-Pacific Ocean highly migratory species. Highly migratory species are defined under the Magnuson-Stevens Act to include tuna species, marlin, ocean sharks, sailfishes, and swordfish. In preparing and implementing all fishery management plans under the Magnuson-Stevens Act, the Secretary must consider factors that are aimed at conserving and protecting the fishing industry, including minimizing the disadvantage to domestic fishermen. Further, the Secretary must comply with ten national standards, applicable to all fishery management plans under the Magnuson-Stevens Act, that require consideration of competing environmental and economic concerns. The Secretary must also comply with the Regulatory Flexibility Act (RFA), which was enacted to prevent the inequitable impact of agency rules on small businesses. Small businesses tend to incur regulatory compliance costs that are disproportionately higher than the costs associated with larger businesses for the same regulatory compliance. Under the RFA, agencies are required to analyze their proposed rules and attempt to reduce their impact on small businesses prior to passage of the rules. The RFA requires agencies to prepare and publish in the Federal Register an Initial Regulatory Flexibility Analysis (IRFA) describing the effect of a proposed rule on small businesses and discussing significant alternatives that might minimize adverse economic consequences. Publication of the IRFA provides small businesses with an opportunity to publicly comment on the analysis. If an agency decides that a significant impact on small businesses likely exists, then the agency must explore alternatives to the rule that would lessen the potential economic severity. However, if a significant impact is not foreseeable, then the agency may issue the rule, prepare a Final Regulatory Flexibility Analysis (FRFA), and publish it in the Federal Register. The agency may exempt itself from this process by certifying that the final rule will not "have a significant economic impact on a substantial number of small entities." Both the RFA and the Magnuson-Stevens Act provide for judicial review of the Secretary's regulatory actions pursuant to the Administrative Procedures Act (APA). Agency actions under both the RFA and the Magnuson-Stevens Act are to be reviewed for compliance in accordance with the "arbitrary and capricious" standard under the APA. The United States Court of Appeals for the First Circuit has held, under the RFA, that judicial review should be a determination of whether the S6cretary employed a "reasonable, good-faith effort" in his consideration of alternative regulation. Essentially, a court reviewing an agency action under the "arbitrary and capricious" standard must determine whether the agency has examined the pertinent evidence, considered the relevant factors, and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made by the agency.

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