ELR Citation: ELR 21372
No(s). 90-5309 (D.C. Cir. May 7, 1991)

The court upholds the National Oceanic and Atmospheric Administration's (NOAA's) rule banning drift gillnets in the Atlantic King Mackerel Fishery. The court holds that the Assistant Administrator of NOAA reserved power "to be advised" before final action is taken on a fishery management plan or amendment. The power to be advised includes the power to approve, disapprove, or partially approve fishery plans and amendments. The court holds that NOAA's explanation that gillnets capture excessive quantities of unwanted fish, called bycatch, provides an adequate basis for its decision to ban gillnets. NOAA's finding is supported in the record and by a new policy to reduce bycatch in the fishery. The court holds that the final rule complies with the Magnuson Fishery Conservation and Management Act. NOAA's explanation that the ban will not affect the Atlantic king mackerel catch is sufficient to comply with the Magnuson Act's requirement to obtain optimum sustained yield. NOAA's explanation that the ban benefits hook-and-line fishermen and imposes only a slight burden on drift gillnet fishermen is sufficient to sustain its finding that the ban is fair and equitable as required by the Magnuson Act. NOAA was not required to repeat that the gillnet ban promotes conservation by reducing bycatch to comply with one of the standards of the Magnuson Act. The court holds that Assistant Administrator Fox did not have an unalterably closed mind in reviewing the ruling and therefore did not deny fishermen due process.

Counsel for Appellants
Eldon V. C. Greenberg, Dina R. Lassow
Galloway & Greenberg
1835 K St. NW, Ste. 801, Washington DC 20006
(202) 833-9084

Counsel for Appellees
Elizabeth Ann Peterson, John A. Bryson
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before MIKVA, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.