Framework 42 to the Northeast Multispecies Fisheries Management Plan was enacted to remedy the overfishing of certain fish stocks by rebuilding them. Each regional fishery council (there are eight councils) is required to have a fisheries management plan or FMP, and these plans are updated through amendments and frameworks.  One such framework implemented to counter depleted fishing stocks is the controversial Framework 42.

Framework 42 is seen as stricter because it counts each fisher’s “day at sea as two days” when the fishers already “have a limited number of days they are allowed at sea to fish.”

In Massachusetts v. Gutierrez (2009), the Massachusetts Division of Fisheries and the New Hampshire Department of Fish & Game sued the Department of Commerce. The states claimed that the agency’s actions were arbitrary and capricious. Arbitrary and capricious is a standard of judicial review that means “an agency’s decision-making process was based on factors Congress did not want considered, or that the agency completely failed to consider important and relevant aspects to the issue in question.”  In this case, the agency is the Department of Commerce and the Magnuson-Stevens Fishery Conservation and Management Act governs the applicable law.

The court temporarily suspended Framework 42 “pending serious consideration and analysis of the Mixed-Stock Exception” by the Commerce Department. The court ordered the Commerce Department to complete the analysis of the mixed-stock exception within 60 days of the judgment.

The issues in the case included: (1) the “Mixed-Stock Exception,” which allows for “overfishing of one stock in a multispecies fishery in order to permit harvest of another species at its optimum level;” and whether (2) Framework 42 is based on the best available science.

Regarding the first issue, the states argued that the Commerce Department did not “‘seriously consider and analyze’ the Mixed-Stock Exception in promulgating Framework 42.” The Commerce Department admitted that “it did not seriously consider and analyze the Mixed-Stock Exception, but counter[ed] that the Guidelines are merely advisory and they do not have the force of law.” The court agreed with the Commerce Department that the “Guidelines are merely advisory and they do not have the force of law,” because Congress clearly made so in the statute: “The Secretary shall establish advisory guidelines (which shall not have the force and effect of law), based on the national standards, to assist in the development of fishery management plans.”

However, the court using its discretionary powers directed the Commerce Department to “seriously consider and analyze the Mixed-Stock Exception with respect to Framework 42,” since “prudent agency administration dictates that Commerce at least seriously consider and analyze the Mixed-Stock Exception, which Commerce admits that it did not do.”  The court did not accept the reasoning given by the Commerce Department for not considering the mixed-stock exception. The court noted that “administrative agencies are to be expected to approach their work carefully and thoroughly” by “taking their time before making decisions affecting society.” As a result, the court is saying that these advisory guidelines must be considered in good faith and applied as appropriate.

Regarding the second issue, the court must give great deference to the agency when best science is at issue, and the “deference is heightened in cases requiring special expertise such as science.” In determining best science, the court concluded that the Commerce Department “enjoys great independence in determining what qualifies as Best Science,” since “Best Science has been interpreted so broadly as to allow Commerce to use incomplete information as the basis for a regulation.” In order to counter this heightened deference, a party arguing that Framework 42 is not based on the best science, “must introduce ‘better’ science.” In this case, the states failed to introduce better or alternative science.  More about this controversy is found at the Marshfield Mariner:

Officials at the National Marine Fisheries Service are concerned that the suspension of the rules, known as Framework 42, could exacerbate efforts to end overfishing and force them to ratchet the rebuilding of certain fish stocks.

But representatives from the state’s Division of Marine Fisheries, who – alongside fishery officials from New Hampshire – brought the lawsuit against the Commerce Department in late 2006, were pleased with Harrington’s ruling.

David Pierce, deputy director of Massachusetts Division of Marine Fisheries, said federal regulators must consider other options beyond Framework 42.

“It doesn’t make sense in these economic times,” he said.

The fishing community was rocked by Harrington’s Jan. 26 decision to suspend Framework 42 for 60 days while NMFS, under the watch of the Commerce Department, analyzes mixed-stock exemptions.

A mixed-stock exemption allows overfishing of one stock in a multi-species fishery in order to permit the harvest of another species to its optimum level, Harrington’s statement explained.

On the positive side for the industry, Harrington’s ruling means fishermen could revert back to more lenient days-at-sea ratios and trip limits. Plus, they are not required to report days-at-sea via their vessel monitoring systems, but can call NMFS with the information.

On the downside, fishermen cannot obtain new leases for federal waters.

Harrington’s refusal on Wednesday to reconsider his decision forces NMFS to submit its analysis of the mixed-stock exemption to the judge within the 60-day limit or risk longer suspension of Framework 42.

“We want to try to get this resolved with the court as soon as possible,” said Teri Frady, a spokeswoman for NMFS.

On Tuesday, the Northeast Marine Fisheries Council rejected NMFS’s draft analysis of the mixed-stock exemption when it was presented at a regional meeting in Portsmouth, N.H., according to officials briefed on the meeting’s events.

More work needs to be done on the document before it reaches Harrington’s hands.

In her statement before the court, Patricia Kurkul, NMFS’s regional administrator for the northeast, warned against the “severe consequences and implications” of a temporary rule suspension.

Without Framework 42, Kurkul said, the region would see a setback in progress toward rebuilding groundfish resources, experience possibly irreparable economic harm to the fishing industry, and witness widespread confusion among fishermen about the rules in place.

Altering the days-at-sea ratio could also incite a “race to fish” the heretofore heavily regulated stocks.

But not allowing mixed-stock exemptions was catering to the “weak link in the chain,” according to Pierce. He did not believe Congress, in passing the Magnuson-Stevens Act that governs fisheries activities, would want to completely shut down the groundfish industry through Framework 42 until stocks are rebuilt.

While the states’ intention was not to prolong a Framework 42 suspension, Pierce said Harrington’s ruling was a “good” remedy to force NMFS to analyze the viability of mixed-stock exemptions in the northeast.

Images by Buck Denton.

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