
USCA1 Opinion

	




                              _________________________          No. 97-1327                        ASSOCIATED FISHERIES OF MAINE, INC.,                                Plaintiff, Appellant,                                         v.                             WILLIAM M. DALEY, SECRETARY                    OF THE UNITED STATES DEPARTMENT OF COMMERCE,                                Defendant, Appellee.                              _________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                            Hill,* Senior Circuit Judge,                             and Boudin, Circuit Judge.                              _________________________               Gene                     R.                        Libby, with whom Michael                                                 W.                                                    MacLeod-Ball, Robert                                                                          C.          Brooks, and Verrill & Dana were on brief, for appellant.               David E. Frulla                             ,                                Stanley M. Brand                                               , and                                                     Brand, Lowell & Ryan                                                                         on          brief for Seafarers International Union of North America, amicus          curiae.               Andrew                       C.                          Mergen, Attorney, Environment & Natural Resources          Division, United States Department of Justice, with whom Lois                                                                          J.          Schiffer, Assistant Attorney General,  David                                                        C.                                                            Shilton and  Lyn          Jacobs, Attorneys, and Gene                                        Martin, Office of Regional Counsel,          National Oceanic and Atmospheric Administration, were on brief, for          appellee.                              _________________________                                 September 16, 1997                              _________________________          _______________          *Of the Eleventh Circuit, sitting by designation.                    SELYA, Circuit                                    Judge. Associated Fisheries of Maine          (AFM) and its amicus, the Seafarers International Union, warn that          the final version of a fishery management plan promulgated by the          Secretary of Commerce (the Secretary) could have significant          adverse effects on the fishing industry in the Northeast and that          fishermen caught in the regulatory net will not be able to survive          financially. They unsuccessfully asked the district court to          invalidate the Secretary's final rulemaking and thereby avert this          potential calamity. They now ask us for the same relief, urging          that the Secretary failed to comply with both the Magnuson Act, 16          U.S.C. SS 1801-1882 (1994), and the Regulatory Flexibility Act          (RFA), 5 U.S.C.A. SS 601-612 (1994 & Supp. 1997). Although we have          considerable empathy for the fishermens' concerns, we conclude,          after wading through an administrative record which comprises          roughly 30,000 pages, that the Secretary acted within his lawful          purview.          I. THE STATUTORY SCHEME                    Responding to depletion of the nation's fish stocks due          to overfishing, Congress enacted the Magnuson Act in 1976 to          protect fishery resources.   See 16 U.S.C. S 1801(a).   The Act          created eight regional fishery management councils, each of which          has responsibility for fashioning a fishery management plan (FMP)                                             After this litigation had begun, Congress passed the          Sustainable Fisheries Act, which amended the Magnuson Act (referred          to now as the Magnuson-Stevens Act). See Pub. L. No. 104-297, 110          Stat. 3559 (Oct. 11, 1996). All references herein are to the          Magnuson Act, which was in effect when the challenged rules were          promulgated, not to the Magnuson-Stevens Act.                                          3          to regulate commercial fishing within a particular geographic          region.  See id. SS 1852(a)(1)-(8), 1852(h)(1). When a proposed          FMP (or a plan amendment) is developed, the council must submit it          to the Secretary for review.   See id. S 1853(c). The Secretary          then determines whether the proposed FMP is consistent not only          with the Magnuson Act's seven national standards for fishery          conservation and management, see  id. S 1851(a)(1)-(7), but also          with other applicable law, including the RFA,        see  id. SS          1854(a)(1)(B), 1855(e). In making this determination, the          Secretary must publish an appropriate notice,        see  id. S          1854(a)(1)(C), consider the comments engendered in response          thereto,                   see                       id. S 1854(a)(2)(A), and consult with the Coast Guard          anent enforcement, see  id. S 1854(a)(2)(C). If the Secretary          approves the amendment, he then promulgates final implementing          regulations, which are subject to judicial review.     See id. S          1855(b).          II. THE COURSE OF EVENTS                    The New England Fishery Management Council (the Council)          has authority over commercial fishing in the Atlantic Ocean off the          New England coast.  See id. S 1852(a)(1). Under its aegis, the          management and conservation of the New England Groundfish Fishery          has had a tangled history. See                                         generally Peter Shelley et al.,                                                                         The          New England Fisheries Crisis:                                                                                What Have We Learned?                                                            , 9 Tul. Envtl.          L.J. 221, 223-33 (1996).  When less intrusive efforts did not                                             Groundfish include cod, haddock, flounder, and other species          that dwell near the ocean floor.                                           See Shelley,                                                        supra, 9 Tul. Envtl.                                          4          prevent overfishing, the Council developed the Northeast          Multispecies Fishery Management Plan in 1985. The Secretary          approved it only as a stopgap. Four amendments to the interim rule          followed, none of which proved adequate.    See Conservation                                                                         Law          Found.                  of                     New                         Eng.,                               Inc. v.  Franklin, 989 F.2d 54, 58 (1st Cir.          1993). Litigation over the last of these amendments resulted in a          consent decree. The decree established a timetable for adopting an          FMP that would reverse the continuing depletion of cod, flounder,          and haddock stocks within specified periods.  See id.                    In 1994, the Council recommended, and the Secretary,          acting through the National Marine Fisheries Service (NMFS) and the          National Oceanic and Atmospheric Administration, approved Amendment          5. This amendment sought to eliminate overfishing of cod, haddock,          and yellowtail flounder stocks by sharply reducing permissible          fishing over a five to seven year period.  See 59 Fed. Reg. 9872          (1994) (final rule). To achieve this goal, the amendment proposed          a gradual reduction in the annual number of working days at sea          (DAS) for certain fishing vessels and created three classes of          permits. See 50 C.F.R. SS 651.22, 651.4 (1995). The class that is          relevant here comprises limited access multispecies permits (which,          in turn, are subdivided into fleet and individual permits).          Amendment 5 sets up a DAS notification program that requires          vessels covered by fleet permits to notify the NMFS of departure          and arrival times.  See id. S 651.29. In addition, the amendment                                        L.J. at 223 & n.4 (listing the 13 species included in the          groundfish management plan).                                          5          establishes a vessel tracking system (VTS) that is intended to          function by means of electronic devices installed on board vessels          with individual permits. See                                        id. S 651.28. Because the VTS is not          yet operational, both classes of permit holders must satisfy the          call-in requirements of the DAS notification program for the time          being.  See id. S 651.29(a)(2).                    Dismayed by the Secretary's handiwork, AFM challenged          Amendment 5 in Maine's federal district court. By that time,          however, haddock and yellowtail stocks had collapsed, and cod          stocks were near collapse. See NMFS,                                                Report of the 18th Northeast          Regional Stock Assessment Workshop (18th SAW):  The Plenary 53-54          (1994). In light of this troubling new information, Amendment 5          seemed inadequate either to protect or rebuild these stocks, and          NMFS's Stock Assessment Review Committee recommended that the          Council reduce ichthyic mortality to as low a level as possible.          See id. at 53. In response, the Council adopted Amendment 6 (an          emergency measure designed to protect haddock,  see 59 Fed. Reg.          32,134 (1994)) and thereafter developed Amendment 7.                    The Secretary promulgated Amendment 7 as a final rule          after notice and comment. See 61 Fed. Reg. 8540 (proposed rule) &          27,710 (1996) (final rule) (to be codified at 50 C.F.R. pt. 651).          Among other things, Amendment 7 seeks to reduce ichthyic mortality          rates and rebuild multispecies stocks by (1) setting annual          "allowable catch" targets for regulated species, (2) orchestrating          new area closures, and (3) implementing further DAS cutbacks          (including acceleration of the reduction schedule originally                                          6          established in Amendment 5). Although the Secretary acknowledged          the significant negative economic impacts (especially on trawl          vessels) which Amendment 7 would invite, he concluded that          conservation of the fishery would yield greater long-term benefits.          See 61 Fed. Reg. at 27,731.                    Unmollified, AFM amended its pending judicial complaint          to challenge Amendment 7 as well as Amendment 5. It alleged, inter          alia, that both amendments violated the Magnuson Act and the RFA.          The parties filed cross-motions for summary judgment. The district          court then held a one-day informational hearing, during which the          parties' experts explained their respective positions on          scientific, economic, and ecological principles.                    In the end, the court granted summary judgment in the          Secretary's favor. See                                  Associated Fisheries of Me., Inc.                                                                  v.                                                                      Daley,          954 F. Supp. 383 (D. Me. 1997). As to issues that are relevant in          this appeal, the court held that the newly enacted judicial review          provisions of the RFA did not apply retroactively, and that, in all          events, the Secretary had complied with the RFA.  See id. at 386-          87. The court also held that the Secretary's rulemaking did not          run afoul of the Magnuson Act.     See id. at 388-90. AFM now                                             Because the Secretary recognized his inability to foresee the          effect of various measures with certitude, he inserted in Amendment          7, as in Amendment 5, a process that allows him to adjust DAS          allocations and requirements as stocks recover or as other          circumstances change.  See 50 C.F.R. S 651.40.                                          7          appeals.          III. THE STANDARD OF REVIEW                    We review a district court's grant of summary judgment de          novo.  See Coyne v. Taber                                     Partners                                              I, 53 F.3d 454, 457 (1st Cir.          1995);                 Massachusetts Dept. of Pub. Welfare                                                    v.                                                        Secretary of Agric.                                                                          ,          984 F.2d 514, 520 (1st Cir. 1993). This rubric has a special twist          in the administrative law context. The Magnuson Act incorporates          the familiar standard of review associated with the Administrative          Procedure Act (APA).   See 16 U.S.C. S 1855(b). Where the APA          standard obtains, a court may set aside an administrative action          only if that action is arbitrary, capricious, or otherwise contrary          to law.  See 5 U.S.C. S 706(2)(A)-(D). Because the APA standard          affords great deference to agency decisionmaking and because the          Secretary's action is presumed valid, judicial review, even at the          summary judgment stage, is narrow.     See Citizens                                                                 to                                                                     Preserve          Overton                   Park,                         Inc. v. Volpe, 401 U.S. 402, 415-16 (1971);  Sierra          Club v. Marsh, 976 F.2d 763, 769 (1st Cir. 1992). Consequently,          our brief _ like that of the district court _ is only to determine          whether the Secretary's decision to promulgate the fishery          regulation was consonant with his statutory powers, reasoned, and                                             In the district court, AFM advanced claims under various other          statutory provisions, as well as claims implicating constitutional          standards and executive orders. None was successful.          See          Associated                      Fisheries, 954 F. Supp. at 385 & n.3. AFM does not          pursue any of these theories on appeal, and we express no opinion          on them.                    We note, moreover, that in this court, as below, AFM          challenges Amendment 5, as modified by Amendment 7. For          simplicity's sake, we refer mainly to the latter.                                          8          supported by substantial evidence in the record.    See  Alliance          Against                   IFQs v. Brown, 84 F.3d 343, 345 (9th Cir. 1996),    cert.          denied, 117 S. Ct. 1467 (1997); C                                              &                                                W                                                  Fish                                                       Co. v. Fox, 931 F.2d          1556, 1562 (D.C. Cir. 1991); Maine v. Kreps, 563 F.2d 1052, 1055          (1st Cir. 1977).                    An agency rule is arbitrary and capricious if the agency          lacks a rational basis for adopting it _ for example, if the agency          relied on improper factors, failed to consider pertinent aspects of          the problem, offered a rationale contradicting the evidence before          it, or reached a conclusion so implausible that it cannot be          attributed to a difference of opinion or the application of agency          expertise. See                          Motor Vehicles Mfrs. Ass'n                                                    v.                                                        State Farm Mut. Ins.          Co., 463 U.S. 29, 43 (1983); Rhode Island Higher Educ. Assistance          Auth. v. Secretary                              of                                 Educ., 929 F.2d 844, 855 (1st Cir. 1991).          Subject, of course, to statutory constraints, policy choices are          for the agency, not the court, to make. Even if a reviewing court          disagrees with the agency's conclusions, it cannot substitute its          judgment for that of the agency.   See Overton                                                          Park, 401 U.S. at          416; Kreps, 563 F.2d at 1055.                    Finally, when reviewing agency action, we apply the same          legal standards that pertain in the district court and afford no          special deference to that court's decision.    See  Massachusetts          Dept. of Pub. Welfare, 984 F.2d at 521 n.5. This approach is not          altered simply because the court held an informational hearing at          which experts testified. Although some degree of deference may be          appropriate if a district court's determination turns on factual                                          9          findings, evidence presented by witnesses, or "even upon lengthy          district court proceedings in which knowledgeable counsel explain          the agency's decisionmaking process in detail,"   Sierra                                                                    Club v.          Marsh, 769 F.2d 868, 872 (1st Cir. 1985), this case does not          implicate that principle. The district judge made it pellucid that          the dissertations which he entertained "were not evidence, but          rather were advocacy presentations by non-lawyers skilled in their          respective areas and therefore better able to present the material          to [the court]."  Associated                                        Fisheries, 954 F. Supp. at 388 n.9.          A presentation which serves only to educate the district court, not          to enlarge the administrative record, does not affect the standard          of judicial review. See                                   Fisherman's Dock Coop., Inc.                                                               v.                                                                   Brown, 75          F.3d 164, 168 (4th Cir. 1996).          IV. CLAIMS IMPLICATING THE MAGNUSON ACT                    AFM asseverates that Amendment 7 violates the Magnuson          Act because the regulation is unnecessary to achieve the          Secretary's stated goals and inconsistent with the national          standards embodied in the Act. Neither asseveration holds water.                            A.  The Need for Amendment 7.                    The record contradicts AFM's assertion that Amendment 7          is not necessary to achieve a rebuilding of groundfish stock          because the status quo suffices. The Secretary was presented with          reliable scientific data indicating that stocks had collapsed; he          was advised that the prophylactic measures specified in Amendment          5 were clearly inadequate to alleviate the steadily worsening          plight; and he also was told that certain ichthyic mortality rates                                         10          ought to be reduced significantly. Responding to this influx of          new information, the Council conducted extensive scientific          analyses and devised Amendment 7 as a means of ensuring the long-          term stability of the fishery. The Secretary studied the data,          weighed plethoric comments, and decided to promulgate the rule.                    Having carefully reviewed the record, we cannot say that          the Secretary exercised his discretion in an irrational, mindless,          or whimsical manner. When an agency is faced with conflicting          scientific views and chooses among them, its decision cannot be          termed arbitrary or capricious. Indeed, a reviewing court must          afford special deference to an agency's scientific expertise where,          as here, that expertise is applied in areas within the agency's          specialized field of competence. See                                                Baltimore Gas & Elec. Co.                                                                         v.          Natural Resources Defense Council, Inc., 462 U.S. 87, 103 (1983);          United                  States v. Members                                    of                                       Estate                                              of                                                 Boothby, 16 F.3d 19, 21-22          (1st Cir. 1994).                       B.  Compliance with National Standards.                    The Magnuson Act sets up a series of seven national          standards.  See 16 U.S.C. S 1851(a)(1)-(7). To ensure compliance          with these standards, the responsible agency must perform a          cost/benefit analysis ancillary to the promulgation of an FMP.          Here, the analysis for Amendment 7 showed a projected net benefit          of $18 million over the ten-year rebuilding period. AFM insists          that the Secretary put his thumb on the scale when conducting this          analysis, and that Amendment 7 therefore fails to satisfy the          national standards. Specifically, AFM charges that the Secretary                                         11          arbitrarily disregarded certain enforcement and compliance expenses          which, when properly included, would demonstrate that the likely          costs of Amendment 7 substantially exceed the likely benefits.                    The Magnuson Act defines "optimum yield" as the amount of          fish which will secure the greatest overall benefit to the nation          based on the maximum sustainable yield from a fishery, as modified          by relevant economic, social, or ecological factors.   See id. S          1802(21). The bedrock principle of National Standard 1 is that          conservation and resource management measures, such as Amendment 7,          "shall prevent overfishing while achieving, on a continuing basis,          the optimum yield from each fishery for the United States fishing          industry."  Id. S 1851(a)(1). Relatedly, National Standard 7          requires that "[c]onservation and management measures shall, where          practicable, minimize costs and avoid unnecessary duplication."          Id. S 1851(a)(7). In pursuance of his statutory duty,  see id. S          1851(b), the Secretary established regulatory guidelines to assure          that FMPs would be developed in accordance with these national          standards.   See 50 C.F.R. pt. 602 (1995). The regulatory          guidelines make it plain that the agency should weigh the costs          associated with an FMP (including industry compliance and          enforcement costs) against the forecasted benefits.    See id. S          602.17(b)(2)(vii), (d).                    In this case, the Secretary excluded Coast Guard          enforcement costs from the calculus. AFM terms this exclusion          arbitrary, but the administrative record belies that          characterization. The Secretary specifically addressed this issue                                         12          and the documentation supporting the final rules contains a          rational explanation for his decision. Although the Coast Guard          estimated that Amendment 7 would increase enforcement costs by          approximately $20,800,000 per year, its estimate assumed sea-based          enforcement whereas Amendment 7, as drafted, relied primarily on          land-based enforcement through the notification and tracking          systems.  See 61 Fed. Reg. at 27,719. Even if certain sea-based          costs occurred under Amendment 7, the Secretary explained, they          would not comprise increases in overall costs because they would          "actually represent programmatic improvements that could also be          expected to be made in the out years of [Amendment 5]."  Id. For          this reason, the Secretary's cost/benefit analysis explicitly          assumed that Amendment 7 would not yield enforcement costs greater          than those which would have been borne under Amendment 5.  See 61          Fed. Reg. at 27,719, & 27,722.                    In our view, this explanation is sufficiently logical,          and sufficiently rooted in the record, to dispose of AFM's argument          concerning Coast Guard enforcement costs. It also answers AFM's          additional argument that the Secretary improperly excluded the          costs of industry compliance with Amendment 7. The Secretary's          assumption _ that compliance costs will not vary materially as                                             Moreover, as alluded to in agency correspondence and further          explicated during the informational hearing held by the district          court, the Secretary considered the Coast Guard's estimate to be          budgetary in nature and not rooted in cost increases which were          likely to accompany the implementation of Amendment 7. The          Secretary must be accorded some latitude to make such judgment          calls.  Cf. Sierra Club, 976 F.2d at 771.                                         13          between Amendment 5 and Amendment 7 _ flows rationally from          Amendment 7's retention of the enforcement mechanism established          under Amendment 5.  See 50 C.F.R. S 651.29. Consequently, since          Amendment 7 does not alter the taxonomy that determines which          vessels will require VTS installations, AFM's claim that the new          regulation fails to account for added VTS-related costs lacks          force.                    To recapitulate, the record reveals that the Secretary          carefully considered the enforcement measures associated with          Amendment 7 and, consistent with the evidence before him, concluded          (1) that the Coast Guard estimate was largely a figment of          bureaucratic imagination which did not track the actual enforcement          mechanism needed for the FMP, and therefore did not warrant          inclusion in the calculus of likely costs and benefits, and (2)          that compliance costs for the fishing industry would remain roughly          the same under Amendment 7. Whether or not we, if writing on a          pristine page, would have reached the same set of conclusions is          not the issue. What matters is that the administrative judgment,          right or wrong, derives from the record, possesses a rational          basis, and evinces no mistake of law. Consequently, it merits our          approbation.  See State                                   Farm, 463 U.S. at 43; Kreps, 563 F.2d at          1056.                    The sockdolager, of course, is the enormous difficulty of          estimating enforcement costs in advance.       Administrative                                             The agency discussed this difficulty in the final          environmental impact statement and noted that it was compounded                                         14          decisionmaking is not an exact science, and judicial review must          recognize that some arbitrariness is inherent in the exercise of          discretion amid uncertainty. Accordingly, courts reviewing this          type of administrative decision must leave room for a certain          amount of play in the joints.   See Fisherman's                                                           Dock, 75 F.3d at          171-72; Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456,          1460 (9th Cir. 1987) (per curiam). Here, the reasons offered to          explain the Secretary's determination that Amendment 7 is          consistent with the national standards reflect an understanding of          analytical factors and constitute a rational exercise of          deliberative decisionmaking. Hence, we cannot say that this          determination offends the applicable standard of review.          V. CLAIMS IMPLICATING THE REGULATORY FLEXIBILITY ACT                    An FMP (or a plan amendment) promulgated pursuant to the          Magnuson Act must be consistent with the RFA.   See 16 U.S.C. SS          1854(a)(1)(B), 1855(e). AFM next charges that the Secretary failed          to meet this obligation when promulgating Amendment 7.                    Some background may prove helpful. Congress enacted the          RFA to encourage administrative agencies to consider the potential          impact of nascent federal regulations on small businesses.    See          Pub. L. No. 96-354, S 2(b), 94 Stat. 1164, 1165 (1980) (statement          of purpose);                       see                           generally Paul R. Verkuil,                                                     A Critical Guide to the          Regulatory                      Flexibility                                  Act, 1982 Duke L.J. 213, 215-26 (1982).          Under the RFA, an agency that publishes a notice of proposed                                        here because enforcement resources are shared among several          management plans.                                         15          rulemaking must prepare an initial regulatory flexibility analysis          (IRFA) describing the effect of the proposed rule on small          businesses and discussing alternatives that might minimize adverse          economic consequences.  See 5 U.S.C. S 603. When promulgating a          final rule, the agency not only must prepare a final regulatory          flexibility analysis (FRFA) but also must make copies available to          members of the public and publish directions for obtaining such          copies.  See id. S 604.                    The Secretary promulgated Amendment 7 on May 31, 1996.          At that time, the law expressly prohibited judicial review of          agency compliance with sections 603 and 604.  See id. S 611;  see          also Thompson v. Clark, 741 F.2d 401, 404-05 (D.C. Cir. 1984).          Approximately two months earlier, however, Congress had amended the          RFA by enacting the Small Business Regulatory Enforcement Fairness          Act (SBREFA), Pub. L. No. 104-121, tit. II, 110 Stat. 857, 864-68          (1996). The 1996 Amendments reshaped the contours of the mandated          flexibility analysis and provided for judicial review of the          agency's product.   See  id. SS 241, 242, 110 Stat. at 864-66          (codified as amended at 5 U.S.C. SS 604(a), 611(a)(1) (Supp.          1997)). Because Congress delayed the effective date of these          amendments until ninety days after passage,  see  id. S 245, 110          Stat. at 868, they were not in effect when the Secretary          promulgated Amendment 7.                                A.  Judicial Review.                    The threshold question is whether we have jurisdiction to          review AFM's claim under the RFA. This question depends on whether                                         16          the judicial review provision contained in the 1996 Amendments          applies retrospectively.                    AFM argues that the judicial review provision should be          accorded retroactive application under                                                 Landgraf v.                                                            USI Film Prods.                                                                          ,          511 U.S. 244 (1994). Judge Hornby concluded otherwise, remarking          the absence of any express legislative intent to apply the SBREFA          retroactively, and reasoning that, inasmuch as the 1996 Amendments          were "one legislative package," "[i]t would be anomalous to apply          the judicial review portion of the 1996 amendments to past agency          actions but at the same time not apply the substance of those          amendments."  Associated Fisheries, 954 F. Supp. at 387.                    The Supreme Court decision in      Landgraf and, more          recently, the decisions in                                     Lindh v.                                             Murphy, 117 S. Ct. 2059 (1997),          and Hughes Aircraft Co. v. United States, 117 S. Ct. 1871 (1997),          provide a roadmap for deciding questions of retroactivity. The          roadmap is not easy to use, and in this case the guideposts point          in more than one direction. On one hand, the delayed effective          date points toward prospective application,                                                     see                                                         Wright v.                                                                   FEMA, 913          F.2d 1566, 1572 & n.13 (11th Cir. 1990);                                                  Criger v.                                                            Becton, 902 F.2d          1348, 1351 (8th Cir. 1990), and the legislative history of the 1996          Amendments points the same way,   see 142 Cong. Rec. E571, E574          (daily ed. Apr. 19, 1996) (statement of Rep. Hyde) (twice          indicating that judicial review would be available for rules          promulgated after the effective date). On the other hand, the new          judicial review provision does not affect substantive rights but          merely confers jurisdiction, and courts often give retroactive                                         17          effect to such statutes.  See Landgraf, 511 U.S. at 274; but  see          Hughes Aircraft                        , 117 S. Ct. at 1878 (drawing a distinction between          an amendment which merely allocates jurisdiction among fora and one          which creates jurisdiction where none previously existed, and          stating that the latter is subject to the presumption against          retroactivity). Moreover, the Third Circuit, contradicting Judge          Hornby's "one legislative package" rationale, recently held that          the 1996 Amendments were severable and that the judicial review          provision could be applied to a legislative rule promulgated before          their effective date.   See Southwestern                                                     Pa.                                                         Growth                                                                Alliance v.          Browner, ___ F.3d ___, ___ (3d Cir. 1997) [No. 96-3364, 1997 WL          418420, at *15-16].                    In the last analysis, it is unnecessary to decide the          retroactivity question here. We have long adhered to the practice          that, when an appeal presents a jurisdictional riddle, yet the          merits of the underlying issue are readily resolved in favor of the          party challenging jurisdiction, a court may sidestep the quandary          and simply dispose of the appeal on the merits. See                                                               United States          v. Stoller, 78 F.3d 710, 715 (1st Cir.) (collecting cases), cert.          denied, 117 S. Ct. 378 (1996). We follow that praxis today.                           B.  The Renovated Section 604.                    By electing to reach the merits,  we do not avoid the                                             Our task is made much easier because the lower court, though          concluding that the judicial review provision did not apply,          nonetheless proceeded to reach the merits and, in an alternate          holding, laid out a blueprint that makes very good sense.     See          Associated                      Fisheries, 954 F. Supp. at 386-87. We commend Judge          Hornby for his prudent belt-and-suspenders approach.                                         18          question of retroactivity entirely. AFM contends that the          Secretary failed to comply with section 604 of the RFA both in its          original and renovated incarnations. As our next order of          business, we address whether the amended version applies          retroactively to this case.                    We hold that the Secretary's compliance with the RFA          should be measured against the original requirements of section          604, that is, against the law as it read when the Secretary          promulgated Amendment 7. The 1996 Amendments substantively altered          section 604 by reformulating and augmenting the required content of          an FRFA.  See 5 U.S.C.A. S 604(a) (Supp. 1997). The renovated          version now requires that an FRFA contain the following:                         (1) a succinct statement of the need for,                    and objectives of, the rule;                         (2) a summary of the significant issues                    raised by the public comments in response to                    the initial regulatory flexibility analysis, a                    summary of the assessment of the agency of                    such issues, and a statement of any changes                    made in the proposed rule as a result of such                    comments;                         (3) a description of and an estimate of                    the number of small entities to which the rule                    will apply or an explanation of why no such                    estimate is available;                         (4) a description of the projected                    reporting, recordkeeping and other compliance                    requirements of the rule, including an                    estimate of the classes of small entities                    which will be subject to the requirement and                    the type of professional skills necessary for                    preparation of the report or record; and                         (5) a description of the steps the agency                    has taken to minimize the significant economic                    impact on small entities consistent with the                    stated objectives of applicable statutes,                    including a statement of the factual, policy,                    and legal reasons for selecting the                    alternative adopted in the final rule and why                    each one of the other significant alternatives                                         19                    to the rule considered by the agency which                    affect the impact on small entities was                    rejected.          5 U.S.C.A. S 604(a) (Supp. 1997).                    A comparison of this iteration with the prior version, 5          U.S.C. S 604(a) (1994), reveals that subsections (3) and (4) are          brand new insofar as FRFAs are concerned, and that subsection (5),          modifying the former subsection (3), imposes more specific content          requirements. Since the Secretary completed the FRFA and          promulgated Amendment 7 before the effective date of the 1996          Amendments, applying the neoteric version of section 604 would          impose new strictures with respect to matters already completed,          and, thus, would contravene the rule against retroactivity.   See          Landgraf, 511 U.S. at 280.                    AFM offers only a weak rejoinder. It says that          retroactive application would not impose new duties because          Congress passed the 1996 Amendments before the agency prepared the          FRFA. That is so _ but it is beside the point. SBREFA's effective          date constitutes the cut-off point, and the Secretary had completed          and published both the FRFA and the final rule prior to that time.          Thus, imposing incremental requirements on these actions would have          an impermissible retroactive effect.  See id.                            C.  The Original Section 604.                    Having determined that the original version of section          604 governs our RFA-related review of Amendment 7, we turn to that          proviso. Under it, an FRFA must contain three elements:                         (1) a succinct statement of the need for,                    and the objectives of, the rule;                                         20                         (2) a summary of the issues raised by the                    public comments in response to the initial                    regulatory flexibility analysis, a summary of                    the assessment of the agency of such issues,                    and a statement of any changes made in the                    proposed rule as a result of such comments;                    and                         (3) a description of each of the                    significant alternatives to the rule                    consistent with the stated objectives of                    applicable statutes and designed to minimize                    any significant economic impact of the rule on                    small entities which was considered by the                    agency, and a statement of the reasons why                    each one of such alternatives was rejected.          5 U.S.C. S 604(a) (1994). Congress designed this provision "to          assure that agencies engage in principled decision-making." 126          Cong. Rec. S21,448 & 21,459 (daily ed. Aug. 6, 1980).                                                               Legislative          history confirms that Congress, in enacting section 604, intended          to compel administrative agencies to explain the bases for their          actions and to ensure that alternative proposals receive serious          consideration at the agency level. See                                                 id. at S21,460;                                                                 see                                                                     also S.          Rep. No. 96-878, at 13-14 (1980),                                           reprinted                                                     in 1980 U.S.C.C.A.N. at          2788, 2800-01.                    Notwithstanding this intention, Congress emphasized that          the RFA should not be construed to undermine other legislatively          mandated goals. See 126 Cong. Rec. at S21,459-60;                                                            see                                                                also S. Rep.                                             RFA traveled a somewhat unconventional route in its march          towards passage. The Senate rejected the Senate bill, S. 299, as          reported by the Judiciary Committee, and adopted Senator Culver's          substitute bill. See 126 Cong. Rec. S21,449-51 (daily ed. Aug. 6,          1980). The House passed the bill without either amendment or          separate hearings, and endorsed the Senate's section-by-section          analysis.  See  Thompson, 741 F.2d at 406 (tracing legislative          history); see generally Verkuil, supra, at 226-27. We therefore          examine the substitute bill and its accompanying analysis as the          relevant guide to legislative intent.                                         21          No. 96-878, supra, at 10, 14, 1980 U.S.C.C.A.N. at 2797, 2801.          Thus, section 604 does not command an agency to take specific          substantive measures, but, rather, only to give explicit          consideration to less onerous options:                    [T]his provision does not require that an                    agency adopt a rule establishing differing                    compliance standards, exemptions, or any other                    alternative to the proposed rule. It requires                    that an agency, having identified and analyzed                    significant alternative proposals, describe                    those it considered and explain its rejection                    of any which, if adopted, would have been                    substantially less burdensome on the specified                    entities. Evidence that such an alternative                    would not have accomplished the stated                    objectives of the applicable statutes would                    sufficiently justify the rejection of the                    alternative.          126 Cong. Rec. at S21,459-60; see also S. Rep. No. 96-878, supra,          at 14, 1980 U.S.C.C.A.N. at 2801.                    We think that a useful parallel can be drawn between RFA          S 604 and the National Environmental Protection Act, which furthers          a similar objective by requiring the preparation of an          environmental impact statement (EIS). See 42 U.S.C. S 4332 (1994).          The EIS requirement is meant to inform the agency and the public          about potential adverse ecological effects and about the          availability, if any, of less harmful alternatives prior to a final          decision on the fate of a particular project or rule.         See          Robertson v. Methow                                Valley                                       Citizens                                                Council, 490 U.S. 332, 349          (1989);                  Valley Citizens for a Safe Env't                                                 v.                                                     Aldridge, 886 F.2d 458,          459-60 (1st Cir. 1989). In light of this purpose, courts do not          review challenges to the adequacy of an EIS under a standard of          mathematical exactitude but under a standard of reasonableness.                                         22          See              Aldridge, 886 F.2d at 459;                                        Conservation Law Found. of New Eng.,          Inc. v.                  Andrus, 623 F.2d 712, 719 (1st Cir. 1979). Recognizing the          analogous objectives of the two acts, we believe that the same rule          of reason should apply to judicial review of challenges under RFA          S 604. Thus, we proceed to examine whether the Secretary made a          reasonable, good-faith effort to carry out the mandate of section          604.                    In this instance, NMFS prepared an FRFA consisting of its          initial workup (the IRFA) and its responses to submitted comments.          See 61 Fed. Reg. at 27,730-31;  see also 59 Fed. Reg. 9872, 9883          (1994) (final rule, Amendment 5). AFM contends that this proffer          misfires for two reasons. First, AFM maintains that dressing up an          IRFA by tacking on responses to comments does not comply with the          statutory directive that the agency prepare an FRFA. Second, AFM          asserts that the Secretary failed sufficiently to identify, and          adequately to explain his rejection of, alternatives designed to          minimize deleterious economic effects on small businesses. We          address these objections in turn.                                         1.                    We reject AFM's charge that the FRFA is inadequate on its          face. Section 604 prescribes the content of an FRFA, but it does          not demand a particular mode of presentation. To disregard          otherwise compliant analysis simply because it is not ensconced in                                             Since an EIS, unlike an FRFA, must contain a "detailed"          statement, 42 U.S.C. S 4332(2)(C), the analogy seems more than fair          to AFM.                                         23          a specific format would be inconsistent both with the RFA's          explicit authorization to avoid duplicative or unnecessary          analyses, see 5 U.S.C. S 605(a), and with the legislative          concession that an agency "may incorporate in a regulatory          flexibility analysis any data or analysis contained in any other          impact statement or analysis required by law," 126 Cong. Rec. at          S21,460. Accordingly, we hold that an agency can satisfy section          604 as long as it compiles a meaningful, easily understood analysis          that covers each requisite component dictated by the statute and          makes the end product _ whatever form it reasonably may take _          readily available to the public.                    We do not mean to suggest that the combination of an IRFA          and responses to comments always _ or even often _ will pass          muster. But in the absence of a statutory or regulatory directive          specifying the form of document to be produced, the preparing          agency must be accorded ample latitude in making the choice.  See          Town                of                   Orangetown v.  Gorsuch, 718 F.2d 29, 40 (2d Cir. 1983).          This precept is especially pertinent here, since the IRFA was          reasonably extensive, the wide range of comments anent the proposed          rule (many of which were submitted by small businesses or proxies                                              In pressing for a contrary result, the appellant relies          heavily on a letter written to NMFS by the Small Business          Administration (SBA) criticizing the agency's earlier efforts to          comply with the RFA in the development of Amendment 5. We give          little, if any, weight to the letter. For one thing, it is          directed only to compliance vis-a-vis Amendment 5. For another          thing, although the RFA authorizes the SBA to appear as an amicus          curiae, see 5 U.S.C.A. S 612(b) (1994 & Supp. 1997), the SBA has          chosen not to exercise that prerogative in respect to Amendment 7.                                         24          on their behalf) provided a natural forum for the Secretary in          striving to fulfill his section 604 obligation, and the agency          punctiliously complied with the notice requirements of RFA S          604(b). Under these circumstances, we conclude that the Secretary          acted within his proper province in designating the IRFA and the          responses to comments as the FRFA required by the statute.                                         2.                    We turn now from form to substance and inspect the          adequacy of the FRFA's contents. We preface this discussion by          remarking two important considerations. First, section 604 does          not require that an FRFA address every alternative, but only that          it address significant ones.  See 5 U.S.C. S 604(a)(3). Second,          the majority of commercial fishing vessels in the Northeast are          deemed small businesses for purposes of the RFA.  See 5 U.S.C. S          601(3); 13 C.F.R. S 121.601 (1995);                                              see                                                 also 61 Fed. Reg. at 27,731          (memorializing the Secretary's recognition of this reality). It          follows that any attempt to reduce the adverse economic impacts of          a regulation aimed at rebuilding stocks in this fishery is          necessarily an attempt to minimize the negative effects of the          regulation on small businesses. To that extent, Congress' desire          to have agencies write rules that distinguish (where desirable)          between big and small businesses has diminished relevance.                                              Citing 5 U.S.C. S 608(b), AFM argues that failure to prepare          a suitable FRFA caused Amendment 7 to lapse. This argument is          jejune. The lapse provision applies only to delayed compliance          following the promulgation of emergency rules.  See Thompson, 741          F.2d at 407-08. That is not the situation here.                                         25                    After poring over the FRFA, we conclude that the          Secretary fulfilled his substantive obligation under section 604.          The agency's reply to a comment which suggested that the final rule          violates the spirit of the RFA demonstrates a keen understanding of          the RFA's objectives and states the parameters of the Secretary's          obligation quite well:                    The intent of the RFA is not to limit                    regulations having adverse economic impacts on                    small entities, rather the intent is to have                    the agency focus special attention on the                    impacts its proposed actions would have on                    small entities, to disclose to the public                    which alternatives it considered to lessen                    adverse impacts, to require the agency to                    consider public comments on impacts and                    alternatives, and to require the agency to                    state its reasons for not adopting an                    alternative having less of an adverse impact                    on small entities.          61 Fed. Reg. at 27,721. The analysis that the agency undertook is          fully consonant with this aspirational language.                    To begin with, the IRFA (incorporated into the FRFA)          describes several possible alternatives and summarizes the          potential economic impact of each. The agency concluded that each          of these scenarios would have a greater negative impact on the          fishing industry than would the proposed rule. For example, the          agency rejected Alternative 1 (which included a ban on fishing with          certain gear until the spawning stock biomass reached a minimum          threshold level) because it would result in unacceptably high          levels of foregone income; it rejected Alternative 2 (which          proposed closing half of certain fishing areas and placing          restrictions in open areas) on the basis that it would be massively                                         26          inefficient and would dramatically increase vessel operating costs;          and it rejected Alternative 4 (which favored a quota system) for          much the same reasons.                    The responses to submitted comments (which also form a          part of the FRFA) discuss and dismiss additional alternatives. For          example, responding to a comment that characterized closures in the          Gulf of Maine as detrimental to the industry, NMFS explained that          this was a temporary default measure to reduce ichthyic mortality          in situations where DAS reductions were insufficient. In that          regard, the FRFA noted that the Council had considered reducing DAS          allotments but declined to pursue that alternative after receiving          industry comment indicating a preference for flexibility.  See 61          Fed. Reg. at 27,714-15. By like token, the agency explicated its          rejection of the status quo alternative, reiterating that Amendment          5 had been conceived as a means of arresting the decline in          spawning stock biomass, whereas Amendment 7 responded to a new,          emerging need and purposed to rebuild the biomass to levels which          would ensure stability.   See  id. at 27,721. The agency also          explained why some DAS exemptions under the status quo alternative,          which had the capacity partially to alleviate burdens on small          vessels, could not be retained under the more rigorous conservation          goals of Amendment 7.  See id. at 27,715.                    We think it is noteworthy, too, that the RFA identifies          steps taken for the express purpose of mitigating adverse economic          impacts on small fishing businesses. In this vein, the Secretary          eliminated a provision requiring layover days, thereby easing the                                         27          concerns of smaller vessels (which are more sensitive to inclement          weather).  See 61 Fed. Reg. at 27,717. Similarly, the Secretary          phased in the DAS reduction schedule over two years instead of one          because, though conservationists recommended an 80 percent          reduction in mortality rates, the Secretary feared that vessels          could not financially weather a DAS reduction greater than 50          percent. The Secretary also moved to establish a vessel buyout          program reducing the socioeconomic burden on small entities.  See          id. at 27,731.                    We think that these selected examples convey the flavor          of the FRFA as a whole. The point is not whether the Secretary's          judgments are beyond reproach, but whether he made a reasonable,          good-faith effort to canvass major options and weigh their probable          effects. Here, the record reveals that the Secretary explicitly          considered numerous alternatives, exhibited a fair degree of          sensitivity concerning the need to alleviate the regulatory burden          on small entities within the fishing industry, adopted some          salutary measures designed to ease that burden, and satisfactorily          explained his reasons for rejecting others. The fact that AFM has          pointed to no                        significant alternative that escaped the Secretary's          notice attests to the thoroughness of the Secretary's efforts.          Because the Secretary's specification and discussion of significant          alternatives was reasonable, it fulfilled the substantive          requirements of section 604.                    AFM makes one last-ditch argument in respect to section          604. It carps that the Secretary failed to develop an alternative                                         28          that substantially lessens the economic impact on small entities.          This puts the catch before the cast and, in the bargain, confuses          what the fishermen desire with what the statute obliges the          Secretary to do. An adequate discussion of alternatives in an FRFA          is context-specific. Of necessity, given the distressed condition          of groundfish stocks in this fishery, any alternative consistent          with the Secretary's conservation mandate under the Magnuson Act          will produce economic hardships for the industry. The FRFA reveals          that the Secretary assessed the potential impact of Amendment 7 on          small businesses, mulled other options in good faith, and sought to          strike the best available balance between conservation goals and          the legitimate concerns of the fishing community. No more is          exigible.                                  D.  Section 609.                    Section 609 of the RFA, 5 U.S.C. S 609, directs agencies          to assure that small entities are given an opportunity to          participate in the rulemaking process for any rule that is likely          to produce significant economic impacts.   AFM claims that the          Secretary improperly limited participation in the process and          failed to provide adequate assistance to small entities in                                              The 1996 Amendments provide that agency compliance with          section 609 is subject to judicial review in conjunction with          judicial review of challenges under amended section 604.   See 5          U.S.C.A. S 609 (Supp. 1997). Noting that the substantive          alterations to section 609 effected by the 1996 Amendments are of          little significance to this appeal, AFM does not pursue its          retroactivity argument with regard to section 609. Accordingly, we          test compliance against the language of the provision as it stood          on May 31, 1996 (the date the Secretary promulgated Amendment 7).                                         29          evaluating agency reports. We do not agree.                    While section 609 instructs the Secretary to assure          participation, the method and manner of doing so is left primarily          to the Secretary's sound discretion. In this situation, we are          satisfied that the Secretary provided adequate participatory          opportunities for small businesses.                    Council meetings were open to all interested parties and          were well-attended. Public hearings were held in six states.          Scientific data was broadly disseminated through open workshops and          otherwise.  See, e.g., 61 Fed. Reg. at 27,714 & 27,720 & 27,723.          Several representatives of small entities participated in a          regional stock assessment workshop, at which scientific data was          presented and peer-reviewed. The nature and volume of the          submitted comments is emblematic of a very high level of public          participation. Furthermore, the substance of the comments leaves          no doubt but that small fishing businesses were intimately familiar          with the crisis and were well aware of the potential significance          of the management efforts that were being studied.   See 61 Fed.          Reg. at 27,712-29.                    To be sure, the development of Amendment 7 involved          daunting scientific complexities. That stems from the intrinsic          nature of the problem, not from some fault on the Secretary's part.          Since the Secretary provided repeated and varied opportunities for          meaningful participation by small entities, he met the relatively          modest demands that section 609 imposes.                    The complaint that the Secretary did too little to assist                                         30          small entities wishing to participate in the process is equally          unavailing. Section 609 does not mandate specific types of          assistance. Rather, it offers a list of suggested techniques to          assure participation.  The legislative history confirms the          purport of the statutory language; agencies have the discretion to          select among various methods of outreach.  See 126 Cong. Rec. at          S21,460. Here, the record discloses that the Secretary handled the          matter in a perfectly reasonable way.          VI. CONCLUSION                    To sum up, it is evident that rapidly deteriorating          conditions required the Secretary to fish in troubled waters. The          immediacy of the need to rebuild groundfish stocks left him no easy          way out. In the absence of a perfect (or even near-perfect)          solution, he reasoned his way to a decision that balanced the          significant adverse impacts that Amendment 7 would have on the                                              In pertinent part, the statute directs that the promulgating          agency                    shall assure that small entities have been                    given an opportunity to participate in the                    rulemaking for the rule through techniques                    such as _                         (1) the inclusion in an advanced                         notice of proposed rulemaking, if                         issued, of a statement that the                         proposed rule may have a significant                         economic effect on a substantial                         number of small entities;                         . . .                         (4) the conduct of open conferences                         or public hearings concerning the                         rule for small entities; and                         . . . .          5 U.S.C. S 609 (1994).                                         31          industry against the severe depletion which plagued this fishery          and the legal obligation to develop an FMP that would eliminate          overfishing. Having carefully reviewed the administrative record,          we conclude that the product of his labors _ Amendment 7 _ is          rational and fairly supported by the record.                    We need go no further. Although we are not unsympathetic          to the plight of the individuals who will suffer adverse          consequences from the choices embodied in the final rule, we must          uphold the balance struck by the Secretary among competing          concerns.  See Strycker's Bay N'hood Council, Inc. v. Karlen, 444          U.S. 223, 227-28 (1980) (per curiam).          Affirmed.                                         32
