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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1917 <br> <br>                  COMMONWEALTH OF MASSACHUSETTS <br>               BY ITS DIVISION OF MARINE FISHERIES, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>            WILLIAM M. DALEY, IN HIS OFFICIAL CAPACITY <br>          AS SECRETARY OF COMMERCE OF THE UNITED STATES; <br>             JAMES BAKER, IN HIS OFFICIAL CAPACITY AS <br>            UNDER SECRETARY AND ADMINISTRATOR FOR THE <br>         NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; <br>       THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; <br>         ROLAND A. SCHMITTEN, IN HIS OFFICIAL CAPACITY AS <br>        DIRECTOR OF THE NATIONAL MARINE FISHERIES SERVICE; <br>                AND THE UNITED STATES OF AMERICA, <br> <br>                     Defendants, Appellants. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Joseph L. Tauro, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Boudin, Circuit Judge, <br>                                 <br>Campbell, Senior Circuit Judge , <br>                                 <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br> <br> <br> <br> <br>

     Robert L. Klarquist, Attorney, Department of Justice, <br>Environment & Natural Resources Division, with whom Lois J. <br>Schiffer, United States Assistant Attorney General, Donald K. <br>Stern, United States Attorney, John A. Capin, Assistant United <br>States Attorney, Andrew C. Mergen, Attorney, Department of Justice, <br>Environment & Natural Resources Division, and Joel G. MacDonaldwere on brief for appellants. <br> <br>     Daniel J. Hammond, Assistant Attorney General, Commonwealth of <br>Massachusetts, with whom Scott Harshbarger, Attorney General, <br>Commonwealth of Massachusetts, was on brief for appellees. <br> <br> <br> <br> <br>February 24, 1999 <br> <br> <br> <br>                                

  BOUDIN, Circuit Judge.  The Commonwealth of Massachusetts <br>("the Commonwealth") brought this action in the district court to <br>review a decision of the Secretary of Commerce ("the Secretary") <br>adopting a revised  quota for catching scup off the East Coast of <br>the United States.  The district court held the quota unlawful <br>insofar as it allocated  the summer catch of scup on a state-by- <br>state basis.  The Secretary now appeals. <br>  Scup, also known as porgy, are small migrating fish that <br>school off the Atlantic coast from North Carolina to Massachusetts.  <br>In the winter, they swim off-shore from New Jersey southward and <br>are fished primarily with big trawlers in the ocean; in the summer, <br>they migrate northward and swim closer inshore to spawn; at the <br>northern end of the range (Massachusetts, Rhode Island, New York), <br>much of the commercial catching of scup is done inshore with <br>smaller vessels, weirs, and pots. <br>  It is common ground that scup stocks are seriously <br>depleted.  For this reason, in March 1996, the National Marine <br>Fisheries Service ("the Fisheries Service"), an agency within the <br>Commerce Department, issued emergency regulations to govern scup <br>fishing within the exclusive  economic zone or "EEZ."  The EEZ, <br>created by the Magnuson-Stevens Act, 16 U.S.C.  1801, et seq., <br>extends 200 nautical miles offshore of the United States; within <br>its borders, the federal government claims exclusive  management of <br>resources, see id.  1811.  Landward, the zone ends at state <br>boundaries, see id., which, on the East Coast, are three nautical <br>miles offshore. <br>     Emergency regulations bypass the  ordinary scheme of the <br>Magnuson-Stevens Act, a scheme that depends upon management of EEZ <br>fisheries through Regional Fishery Management Councils comprising <br>state representatives.  See 16 U.S.C.  1852-54, 1855.  Such <br>Councils  propose conservation measures--called fishery management <br>plans or "FMPs"--for fisheries under their jurisdiction and submit <br>the FMPs to the Fisheries Service, which may then adopt them <br>through notice and comment rulemaking.  Id.  1853-54.  The <br>measures must comply with certain national standards set forth in <br>the statute and are subject to judicial review in the district <br>courts. <br>     Although the Magnuson-Stevens Act does not govern fishing <br>in state waters, save for statutory exceptions not invoked in this <br>case, 16 U.S.C.  1856(b), (c), state-waters fishing is subject to <br>the Atlantic Coastal Fisheries Cooperative Management Act adopted <br>in 1993, 16 U.S.C.  5101 et seq.  The East Coast states <br>participate through the Atlantic States Marine Fisheries Commission <br>("the Atlantic Commission"), which prepares coastal fishery <br>management plans or "CFMPs"; the plans do not require separate <br>federal approval but the states themselves are required to enforce <br>them, see id.  5104(b), in default of which the Secretary of <br>Commerce can regulate directly, see id. 16 U.S.C.  5106. <br>     The March 1996 emergency regulations were designed to <br>fill the gap while a full-fledged FMP was developed by the <br>Commission and the Council responsible for scup, which is the Mid- <br>Atlantic Fishery Management Council ("Mid-Atlantic Council").  The <br>latter, in cooperation with the Commission, had proposed a scup FMP <br>in November 1995, but the Fisheries Service did not propose the <br>resulting regulation until June 1996.  After notice and comment, <br>regulations to implement the scup FMP were adopted by the Fisheries <br>Service in August 1996 and made effective on September 23, 1996, <br>when the emergency regulations expired.  See 61 Fed. Reg. 43420; 50 <br>C.F.R.  648.1 et seq. <br>     The new permanent regulations imposed various scup <br>conservation measures including a moratorium on new entry into scup <br>fishing in the EEZ, permitting  and reporting requirements, gear <br>limitations, and exploitation schedules.  See 50 C.F.R.  648.4- <br>648.6, 648.14, 648.120-648.125.  The schedule for 1997 through 1999 <br>permitted recovery of only 47 percent of the scup; this limit is <br>enforced by an annual coastwide commercial quota, to be expressed <br>by the Fisheries Service as a poundage limit for scup.  See 61 Fed. <br>Reg. 43420, 43426-27.  The regulations provided that the Atlantic <br>Commission and the Mid-Atlantic Council might refine the overall <br>quota--through further federal rulemaking--by use of vessel trip <br>limits, regional and "state-by-state" quotas, and subdivision of <br>the fishing year into segments.  See id. <br>     Federal action taken under this option to refine the <br>coastwide quota provoked the present litigation.  During early <br>1997, while the Fisheries Service was adopting a coastwide <br>commercial quota of 6 million pounds for 1997, the Atlantic <br>Commission and the Mid-Atlantic Council proposed an amendment to <br>subdivide the scup fishing year into segments, each with its own <br>quota, and for state-by-state quotas for the summer segment.  This <br>proposal, developed after extensive Council proceedings, was <br>published as a proposed regulation by the Fisheries Service in <br>February 1997 and offered for public comment.  See 62 Fed. Reg. <br>5375. <br>     The proposal--later adopted and challenged in part in the <br>district court--divided the scup quota into three seasons: a winter <br>I period, from January through April; a summer period, from May <br>through October, and a winter II period, for November and December.  <br>The percentages, based on historical shares as computed  from <br>existing data, were roughly 45 percent, 39 percent, and 16 percent <br>for winter I, summer, and winter II, respectively.  See 62 Fed. <br>Reg. 5375, 5378.  The winter quotas, largely captured offshore in <br>the EEZ by vessels from any of the states, were not further <br>subdivided.  See id. <br>     However, the summer quota, with which we are primarily <br>concerned, was further allocated among the states based on alleged <br>historical shares.  The great preponderance of this summer quota <br>was allocated for 1997 as follows:  Massachusetts (15.49% or <br>362,029 pounds), Rhode Island (60.57% or 1,415,425 pounds), and New <br>York (17.05% or 398,527 pounds).  See 62 Fed. Reg. 5375, 5378; 62 <br>Fed. Reg. 27978, 27980.  The quota included fish caught within <br>state waters where much of the scup is harvested during the summer <br>months; and the proposal provided that any excess over quota landed <br>by a state's fishermen in one summer would be deducted from its <br>allocation in the following summer.  See 62 Fed. Reg. 5375, 5376. <br>     The Commonwealth and its fishery interests expressed <br>concern or opposition while the refined quota proposal was being <br>formulated by the Mid-Atlantic Council in the summer and fall of <br>1996 and during the federal-rulemaking comment period in February <br>and March 1997.  The Commonwealth did not oppose a seasonal quota.  <br>That measure tends to protect Massachusetts inshore fishermen from <br>the threat that, without the seasonal division, the scup quota <br>would be largely (or completely) recovered earlier in the year by <br>offshore vessels fishing further south before the scup reached <br>Massachusetts to spawn in the summer. <br>     However, for the state-by-state quota, the Commonwealth <br>said, among other things, that the historical data from which <br>shares were to be computed were inaccurate.  The proposal derived <br>the state-by-state allocation from a readily available federal <br>database of landings of scup and an array of other species in the <br>period 1983-92.  The Commonwealth said that these data tended to be <br>inclusive as to scup landings from large trawlers fishing offshore <br>and sold to big dealers but to undercount landings from fishing <br>inshore, especially in state waters in summer months, from smaller <br>vessels, weirs, and pots, often sold directly to retailers. <br>      The Commonwealth argued, based on some rough <br>approximations, that 80 percent or more of its summer scup harvest <br>came from inshore fishing, much of which was not included in the <br>database.  It made a brief effort to expand the database to include <br>the 1993-95 period, whose data could be more readily supplemented <br>by further inquiries, but it abandoned the effort when other states <br>protested that this would delay the program and cause other <br>problems.  Ultimately, the Commonwealth opposed the use of any <br>state-by-state quota for the summer until better data could be <br>acquired. <br>     Nevertheless, after receiving public comment, the <br>Fisheries Service adopted the proposed regulation including the <br>three-season quota and the state-by-state quota for the summer <br>season.  The final regulation was adopted with an effective date of <br>May 20, 1997.  See 62 Fed. Reg. 27978.  On June 19, 1997, the <br>Commonwealth brought the present action in the district court to <br>overturn the state-by-state quota.  Such a review action is <br>specifically provided for by the Magnuson-Stevens Act.  See 16 <br>U.S.C.  1855(f).  For the 1997 summer season, the Commonwealth <br>simply did not enforce its quota against its fishermen. <br>     In the district court, the Secretary filed an <br>administrative record comprising primarily the minutes of the <br>meetings of the Mid-Atlantic Council, Federal Register notices of <br>the proposed and final regulations, and comments received from <br>public authorities and private interests.  The Commonwealth then <br>moved for judgment on the pleadings and also asked leave to offer <br>extra-record evidence to show that the historical data used <br>undercounted scup taken in Massachusetts.  The Secretary opposed <br>the new evidence and entered a cross motion for summary judgment. <br>     On April 27, 1998, just before the beginning of the 1998 <br>summer catch period, the district court announced that it was <br>overturning the state-by-state quota, and on June 24, 1998, the <br>court released its written opinion.  Commonwealth v. Daley, 10 F. <br>Supp. 2d 74 (D. Mass. 1998).  Although the accompanying order <br>denied the Commonwealth's motion to add new evidence to the record, <br>the opinion granted  its motion for judgment on the pleadings.  The <br>decision forbad the Secretary to enforce the state-by-state quota <br>or to reduce the Massachusetts quota because of any overage and <br>directed the Secretary to promulgate a new regulation to replace <br>the flawed one.  See id. at 79. <br>     In a nutshell, the district court found that the <br>Fisheries Service had erred in basing the state-by-state quota on <br>historical data that it knew seriously undercounted Massachusetts' <br>past scup recoveries.  This undercounting, said the district court, <br>was established by the Fisheries Service's own data.  See Daley,  <br>F. Supp. 2d at 77-78.  Its use had produced a state-by-state <br>allocation of the summer quota that discriminated against <br>Massachusetts in violation of the statutory standard forbidding <br>FMPs from "discriminat[ing] between residents of different States."  <br>16 U.S.C.  1851(a)(4). <br>     The Secretary now appeals, saying that the district court <br>misunderstood the data and that the Fisheries Service used the best <br>data available to set the state-by-state quota.  The Commonwealth <br>says  that the Fisheries Service did not consider all pertinent <br>data and that the state-by-state quota is discriminatory.  The <br>problem, as we shall see, is that both sides may be right. <br>     We start with the legal framework that governs FMPs and <br>the implementing regulations.  The Magnuson-Stevens Act's main <br>thrust is to conserve the fisheries as a continuing resource <br>through a mixed federal-state regime; the FMPs are proposed by <br>state Councils but the final regulations are promulgated by the <br>Secretary through the Fisheries Service.  And both the FMPs and the <br>regulations have multiple goals: the provision that describes their <br>content, 16 U.S.C.  1853, sets out  specific requirements and says <br>that they must be "consistent with the national standards" set <br>forth in an earlier section, id.  1853(a)(1)(C).   <br>     The first of the specific requirements, 16 U.S.C.  <br>1853(a)(1)(A), is that the FMPs and regulations "contain the <br>conservation and management measures"  that are <br>     necessary and appropriate for the conservation <br>     and management of the fishery, to prevent <br>     overfishing and rebuild overfished stocks, and <br>     to protect, restore, and promote the long-term <br>     health and stability of the fishery. <br>The third of the specific requirements is a cross-reference to the  <br>national standards, id.  1853(a)(1)(C), of which two are <br>immediately pertinent here: number two provides that the measures <br>must be based "upon the best scientific information available," id. 1851(a)(2), and number 4 says that the measures "shall not <br>discriminate between residents of different states."  It continues: <br>     If it becomes necessary to allocate or assign <br>     fishing privileges among various United States <br>     fishermen, such allocation shall be (A) fair <br>     and equitable to all such fishermen; (B) <br>     reasonably calculated to promote conservation; <br>     and (C) carried out in such manner that no <br>     particular individual, corporation, or other <br>     entity acquires an excessive share of such <br>     privileges. <br> <br>Id.  1851(a)(4). <br> <br>     On review, the district court was directed by 16 U.S.C. <br> 1855(f)(1)(B) to test the Secretary's regulations under the <br>familiar standards of the Administrative Procedure Act, 5 U.S.C.  <br>701 et seq., which  allow agency actions to be overturned, inter <br>alia, for errors of law or where arbitrary and capricious, id.  <br>706(2)(A), (C).  The district court properly reviewed the <br>Secretary's decision on the administrative record.  We are in the <br>same position as the district court, nominally reviewing the <br>decision de novo but effectively reviewing the Secretary's action <br>under the APA. <br>     The Commonwealth concedes that scup stocks are "severely <br>depleted."  Letter from Coates to Rosenberg of Jan. 3, 1997, supra, <br>note 3.  For present purposes, it follows that the fishing  of scup <br>has to be reduced below existing levels and this means that <br>fishermen are going to get less scup.  (The Commonwealth earlier <br>urged a different solution but does not pursue this issue on <br>appeal.)  The division into seasonal quotas, and the use of a <br>state-by-state quota for the summer, are devices for sharing the <br>pain.  The broad issue before us is whether the latter quota--the <br>former helps Massachusetts and is not challenged--is based on the <br>"best scientific information available," avoids "discriminat[ion]," <br>and is "fair and equitable."  16 U.S.C.  1851(a)(2), (4). <br>     Both sides have assumed that discrimination between <br>states could be avoided, and equity satisfied, if the new quotas <br>roughly reflected actual historical shares, despite the fact that <br>the raw quantities of fish allowed for each state's fishermen would <br>necessarily be reduced.  For purposes of this case we accept this <br>undisputed premise.  This is not to say that anything more than an <br>overall coastwide quota was necessarily required.  But, to the <br>extent that the subsidiary quotas subdivided the catch further, <br>those quotas had to be consistent--so far as possible--with the <br>non-discrimination and equity concepts and to rely upon the best <br>scientific evidence available. <br>     The difficulty from the outset has been that the <br>available data do not permit a fully accurate historical allocation <br>between states.  The information used to create the quotas concerns <br>scup landed in the individual East Coast states for the period <br>1983-92.  As the Commonwealth argues, these figures well reflect <br>scup landings from larger vessels and sold to dealers but <br>undercount landings often sold to retailers from smaller vessels <br>closer inshore and from inshore methods such as weirs and pots.  <br>This view is sufficiently clear from the record, and so little <br>disputed by the Secretary, cf. 62 Fed. Reg. 27978, 27983, that we <br>take it as settled.  But the impact on Massachusetts is a quite <br>different question. <br>     Massachusetts says that it is the main victim of such <br>undercounting because it has traditionally relied on such inshore <br>scup fishing for most of its catch while other states have not.  On <br>this appeal, the Secretary says that the district court erred in so <br>finding because of its misunderstanding of the figures.  It turns <br>out--as the Commonwealth admits--that the district court wrongly <br>assumed that the Secretary's 1983-92 data used to establish the <br>quota included fish caught in the EEZ but excluded automatically <br>fish caught in state waters. <br>     But even though the 1983-92 data used for the quota did <br>not automatically exclude all fish caught in state waters, the <br>evidence is solid that the data tended to undercount fish not <br>caught by the larger trawlers and so disfavored states that caught <br>scup closer inshore by other means.  Massachusetts, compared to <br>other states whose fishermen rely primarily on large trawlers for <br>scup, is clearly disfavored but by what amount is unclear; much <br>more important, it is unclear by how much it is disfavored vis-- <br>vis New York and Rhode Island, and this is all that matters so far <br>as the state-by-state quota is concerned. <br>     These three states represent practically all of the <br>summer quota (about 93 percent), and their respective shares would <br>not be much affected if the underreporting affected them all <br>equally.  The record data set forth immediately below suggests that <br>Massachusetts is somewhat more seriously affected than are the <br>other two states; and there is no supported finding to the contrary <br>by the Secretary.  But the extent of the bias is very hard to <br>assess (and therefore especially hard to correct); and the <br>impression of bias against Massachusetts might even be dispelled by <br>a more careful analysis by the Secretary. <br>     Two sets of 1983-92 data in the record bear directly on <br>this question: one (table 17 of the scup FMP) shows that even on <br>the faulty data, Massachusetts landed on average 80 percent or more <br>of its catch from state waters, admittedly an imperfect proxy for <br>the distortion embodied in the database but still suggestive; the <br>Rhode Island and New York figures are lower (in the 20-65 percent <br>range) while other states have minimal catches in state waters.  <br>The other set of data (table 13 of the scup FMP) shows that <br>Massachusetts, vis--vis the other two states, takes more of its <br>catch from smaller vessels, weirs, and pots.  <br>     Going further, Massachusetts asserts that the state-by- <br>state quota is greatly biased against it, pointing to the results <br>of the 1997 summer season.  There, ignoring its summer quota of <br>362,029 pounds, Massachusetts fishermen landed 1,428,183 pounds of <br>scup (its reporting of inshore catches is said to be more accurate <br>now because of the reporting requirements of the 1997 regulation).  <br>Rhode Island, with a quota of 1,415,425 pounds, caught only 398,880 <br>pounds; and New York, where the quota was 398,527 pounds, caught <br>only 221,320 pounds.  See 63 Fed. Reg. 3498, 3479.  But--even if <br>this were part of the administrative record, which it is not--data <br>from this one season tells us very little. <br>     Scup apparently school to different locations in <br>different years, and perhaps favored Massachusetts in the last <br>summer or so.  Further, Massachusetts was ignoring the quota; it is <br>not clear that the other two states were ignoring it and they may <br>have constrained their own fishermen in various ways.  Nor do we <br>know to what extent the original underreporting problem has been <br>remedied in Massachusetts (by its own collection of data) but less <br>so in the other two states.  Such doubts are precisely why agency <br>decisions are normally based on evidence that the agency has <br>considered and not new untested information first offered on <br>judicial review. <br>     There is a further problem for Massachusetts even though <br>we accept from the 1983-92 tables discussed above that the state- <br>by-state quota is somewhat biased against it.  Admittedly, during <br>the Council proceedings and in the federal rulemaking, the <br>Commonwealth  complained about the distortion, and it pointed to <br>some evidence of its existence.  But apart from its abortive <br>suggestion that 1993-95 figures be added to the data, it never <br>pressed on the Mid-Atlantic Council or the Secretary an alternative <br>set of figures for a state-by-state quota or claimed that any <br>method currently available could correct the existing distortion. <br>     To this extent the Commonwealth has forfeited any claim <br>that the Secretary failed to use the best scientific information <br>available.  If no one proposed anything better, then what is <br>available is the best.  Indeed, the Secretary specifically built <br>into the final regulation an opportunity for Massachusetts to <br>update the data for the quota by collecting data--some sources are <br>apparently still available--to show that its summer catches in the <br>1983-92 period were greater than reported; and the Commonwealth is <br>apparently engaged in that effort. <br>     Thus, when the Commonwealth says that the Secretary <br>"ignored" data in the record, it is referring not to a better <br>database that it proffered but merely to information showing that <br>the existing database is flawed.  Its real argument is that no <br>state-by-state quota is better than a flawed one, at least until <br>better data are developed.  Thus, the now narrowed question before <br>us is whether the Secretary's present state-by-state quota can be <br>justified under the statute--as reflecting the best data currently <br>available--even though distortions in the database seemingly create <br>some discrimination (impossible to quantify accurately) against <br>Massachusetts fishermen. <br>     If the state-by-state quotas were shown to be necessary <br>to achieve the main conservation goal, we would decide the case in <br>favor of the Secretary.  The Commonwealth could still urge that the <br>statute flatly forbids discrimination and inequity, regardless of <br>what happens to the fish; the statute says that each FMP and <br>regulation "shall" conform to the national standards and could be <br>taken to mean that each national standard must be fully and <br>absolutely met in every case, even though some are potentially in <br>tension with others. <br>     However, if there were an actual conflict in statutory <br>mandates, respect for Congress' overriding purpose would require <br>that the fishery be preserved despite some discrimination or <br>inequity.  After all, destruction of the fishery would make <br>meaningless any notions of fair allocation, while preserving the <br>fishery permits the quotas to be improved over time and perhaps <br>eliminated eventually.  Given an internal conflict in the statute's <br>mandates, the job of the courts and the administrator is to <br>implement the central aim of the statute.  It is hard to find much <br>case law directly in point, but what exists supports our approach.  <br>     But it is far less clear that there is yet a proven <br>conflict in mandates in this case.  The most troublesome fact for <br>the Secretary is that very little appears, whether in the Council <br>minutes or in the public comments or in the Secretary's notices, to <br>explain why the state-by-state quota is necessary at all.  The <br>state-by-state quota seems to have been adopted by the Secretary, <br>as part of the overall summer quota, with almost no explicitexplanation for its purpose by the Secretary.  Even the Secretary's <br>brief in this court, which is not a substitute for  analysis by the <br>Secretary, is almost silent on this issue, although the Secretary's <br>counsel did address it in oral argument. <br>     The most "obvious" reason for a state-by-state quota-- <br>which becomes far less obvious on closer examination--is to prevent <br>discrimination between the states during the summer.  This <br>rationale is scarcely hinted at in the administrative record.  In <br>a statement outside this record, Rhode Island argued this rationale <br>to the district court, saying that the quota would protect <br>Massachusetts (since the fish swim from south to north in the <br>beginning of the summer), but the Commonwealth disclaims this <br>protection, probably calculating that the theoretical benefit is <br>outweighed by the very small quota allowed to Massachusetts.  In <br>any event, on this record, the state-by-state quota, based as it is <br>on incomplete data, appears to threaten more discrimination than it <br>avoids. <br>     At oral argument, the Secretary's counsel suggested <br>another reason for the state-by-state quota.  The states continue <br>to regulate fishing in in-state waters and counsel said that the <br>state-by-state quota permits each state to structure its local <br>regulation to allocate the diminished scup catch among various <br>groups of fishermen (e.g., weirs versus pots versus small boats).  <br>Perhaps a fixed quota for the individual state would help this <br>effort (or perhaps not), but only a thin scrap of information in <br>the record, and no findings by the Secretary, supports this <br>explanation for the quota. <br>     The last possibility, also argued by the Secretary's <br>counsel, is that the state-by-state quota is integral to the <br>enforcement of the overall summer quota.  Because so much of the <br>summer catch comes from state waters, there is no built-in federal <br>enforcement regime.  Instead,  the states are expected to enforce <br>their own summer quotas, apparently supplementing federal figures <br>as to the catch with state ones that more fully reflect the inshore <br>catch.  See 50 C.F.R. 648.121(b) (summer closures based in part on <br>state data).  The bite is in the provision of the regulation, 50 <br>C.F.R.  648.120(d)(6), that subtracts the overage in one summer <br>from the state's quota in the following year (Massachusetts' 1997 <br>overage exceeded its 1998 and 1999 quota combined). <br>     There are two problems with this rationale, plausible <br>though it may be.  The first is that nothing we can find in the <br>record directly supports it, nor has the Secretary explicitly <br>adopted it, so we cannot uphold the state-by-state quota on this <br>basis.  See SEC v. Chenery Corp., 318 U.S. 80, 89-90 (1943).  The <br>second is that even if the state-by-state quota was conducive to <br>enforcement, the present state-by-state quota still appears to <br>discriminate; to sustain it might well require that there be no <br>adequate alternative means of enforcement.  If adequate <br>conservation and non-discrimination could be achieved, it might be <br>hard to explain why the latter standard had to be sacrificed. <br>     We appreciate that the balancing of conflicting <br>objectives is primarily  for the Secretary;  his decision on this <br>issue, and even more so on the exigencies of enforcement, are <br>matters on which he enjoys great latitude.  See Heckler v. Chaney, <br>470 U.S. 821, 831-32 (1985); Commonwealth v. Secretary of <br>Agriculture, 984 F.2d 514, 521-22 (1st Cir.) cert. denied, 510 U.S. <br>822 (1993).  Further, the extent of existing discrimination against <br>Massachusetts is very uncertain and possibly findings by the <br>Secretary could diminish the major concerns that currently exist on <br>this score.  But those concerns do now exist, and the Secretary has <br>said nothing in his decision, and pointed to nothing in the record, <br>sufficient to overcome them. <br>     Where a regulation is not adequately supported, the <br>normal practice is to set it aside pending further proceedings.  <br>See Camp v. Pitts, 411 U.S. 138, 143 (1973).  That is our present <br>disposition, subject to anything we may learn on petition for <br>rehearing.  The alternative, a remand for further explanation while <br>leaving the regulation in force, see, e.g., Celcom Communications <br>Corp. v. FCC, 789 F.2d 67, 71 (D.C. Cir. 1986); Maine v. Kreps, 563 <br>F.2d 1052 (1st Cir. 1977), is less attractive not only because of <br>the extreme impact on Massachusetts--a zero quota for summer 1999-- <br>but also because the Secretary probably will need to reopen the <br>record in order to fill the gap by a permanent quota, if it can be <br>filled at all. <br>     Nevertheless, the Secretary retains power to issue <br>emergency regulations with a minimum of formalities.  See 16 U.S.C. <br> 1855(c).  If a state-by-state quota is the only reasonable way to <br>make the overall summer quota effectively enforceable, nothing in <br>this opinion forecloses the Secretary from making such findings and <br>reinstituting some state-by-state quota on an emergency basis, <br>effective for this summer season starting in April.  Whether this <br>new regulation would survive on judicial review would depend very <br>much on just what the Secretary said and did, but a thorough <br>explanation in the record would go a long way to support such <br>action. <br>     Needless to say, any solution, interim or long term, <br>would be more secure if it reflected a common position arrived at <br>by the Secretary and the three states most concerned.  Assuming <br>that state-by-state quotas serve an important purpose, any  set of <br>numbers is going to be imperfect: the currently available data do <br>not provide anything like an exact mirror of the actual historical <br>shares.  Further, the whole structure of the statute, with its <br>unusual reliance on the state-dominated Councils, suggests <br>Congress' interest in negotiated solutions. <br>     While it has prevailed on this appeal, the Commonwealth <br>too has ample reason to seek a compromise on the quota issue.  The <br>Secretary retains his emergency power, considerable deference is <br>due to the Secretary's reasoned judgment, and we have rejected the <br>Commonwealth's best available information argument and ruled that <br>some measure of discrimination can be tolerated if essential to <br>achieve the statute's overall goal of preserving the fishery.  The <br>Commonwealth took a serious risk and prevailed; but it may not be <br>so fortunate next time. <br>     Accordingly, we affirm the judgment of the district court <br>with the explicit qualification that nothing in this opinion <br>precludes the adoption--subject always to swift judicial review--of <br>state-by-state quotas on an emergency basis, or through further <br>proceedings in the ordinary course, or both.  Each side will bear <br>its own costs on this appeal. <br>     It is so ordered.</pre>

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