Mexican Gulf v. U.S. Dept. of Comm ( 2023 )

Case: 22-30105 Document: 00516654535 Page: 1 Date Filed: 02/23/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 23, 2023
No. 22-30105 Lyle W. Cayce
Clerk
Mexican Gulf Fishing Company, partially owned by Billy Wells;
Billy Wells, Captain, partially owns Mexican Gulf Fishing Company;
A&B Charters Incorporated, owned by Allen Walburn; Allen
Walburn, Captain, owns A&B Charters, Incorporated; Kraig Dafcik,
Captain, part owner of the Alabama with A&B Charters; Ventimiglia,
L.L.C., owned by Frank Ventimiglia, doing business as Sanibel
Offshore Fishing Charters; Frank Ventimiglia, Captain,
owns Ventimiglia, L.L.C.; Fishing Charters of Naples, owned by
Jim Rinckey; Jim Rinckey, Captain, owns Fishing Charters of Naples;
Capt. Joey D. Charter, Incorporated, owned by Joey Dobin;
Joey Dobin, Captain, owns Capt. Joey D. Charter, Incorporated,
Plaintiffs—Appellants,
versus
United States Department of Commerce; Gina
Raimondo, in her official capacity as Secretary of Commerce; National
Oceanic and Atmospheric Administration, NOAA, a
scientific agency within the Department of Commerce; Richard W.
Spinrad, in his official capacity as Administrator of National Oceanic and
Atmospheric Administration; National Marine Fisheries
Service, a line office within the National Oceanic and Atmospheric
Administration, also known as NOAA Fisheries; Nicole R. LeBouef, in
her official capacity as Assistant Administrator for National Oceanic and
Atmospheric Administration,
Defendants—Appellees.
Case: 22-30105 Document: 00516654535 Page: 2 Date Filed: 02/23/2023
No. 22-30105
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2312
Before Richman, Chief Judge, and Elrod and Oldham, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge: *
The shores of the Gulf of Mexico are home to many charter boats.
These modest vessels range in size from thirty to forty feet, and usually serve
small businesses. When a charter-boat captain is not using the ship for per-
sonal recreation, he or she charters a trip for six to eight passengers, for sight-
seeing or some similar purpose. This is the type of boat a few friends might
reserve for a fishing trip off the Galveston coast. And although recreational
fishing is one of a charter boat’s primary uses, the number of fish caught by
anglers aboard a charter boat is relatively small; charter-boat fishing accounts
for an estimated 0.20% of annual fishing in the Gulf of Mexico. This appeal
concerns a regulation issued by the United States Department of Commerce
that requires charter-boat owners to, at their own expense, install onboard a
vessel monitoring system that continuously transmits the boat’s GPS loca-
tion to the Government, regardless of whether the vessel is being used for
commercial or personal purposes.
We conclude that, in promulgating this regulation, the Government
committed multiple independent Administrative Procedure Act violations,
and very likely violated the Fourth Amendment. We are therefore compelled
*
Chief Judge Richman concurs in the judgment and joins Parts II.A.1.a,
II.B.1, and III of the majority opinion. Judge Oldham concurs in the judgment and joins
the majority opinion except as to its reliance on Chevron USA Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984).
2
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to hold unlawful and set aside the regulation, reverse the judgment of the dis-
trict court, and render judgment for the Appellants.
I
A
The Government issued the subject regulation pursuant to the Mag-
nuson-Stevens Fishery Conservation and Management Act of 1976. That law
and subsequent amendments are codified at 16 U.S.C. ch. 38. Together, the
laws apply within the United States’ exclusive economic zone, which extends
two hundred nautical miles from each coastal state’s seaward boundary. Id.§ 1802(11). Chapter 38’s stated purpose is, among other things, “to con-
serve and manage the fishery resources found off the coasts of the United
States.” Id. § 1801(b)(1). In pursuit of this goal, the Magnuson-Stevens Act
creates supervisory bodies called fishery management councils that have ju-
risdiction in defined regions. Id. § 1852(a)(1). The body with jurisdiction in
the Gulf of Mexico is called the Gulf Council. Id. § 1852(a)(1)(E).
The Act directs the regional councils to create and administer fishery
management plans, 16 U.S.C. § 1852(h)(1), whose purpose is to “achieve and
maintain, on a continuing basis, the optimum yield from each fishery.” Id.§ 1801(b)(4). It further requires that all management plans contain certain
provisions, id. § 1853(a), and gives the regional councils discretion to include
others, id. § 1853(b). Among other things, a management plan may require
fishing vessels to obtain a for-hire permit. Id. § 1853(b)(1). 1 Also, all plans
must accord with codified national standards. See id. § 1851. With respect to
1
And in fact, the Gulf region management plans include such a requirement. See,
e.g., 50 C.F.R. § 622.20 (requiring a permit for Gulf reef fish); see generally 50 C.F.R. ch.
VI, Pt. 622 (Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic) (requiring
permits for other fisheries).
3
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the Magnuson-Stevens Act, the Department of Commerce has delegated reg-
ulatory authority to the National Oceanic and Atmospheric Administration,
and NOAA regulates fisheries through the National Marine Fisheries Service
(one of its subagencies).
B
NMFS and NOAA proposed the regulation at issue on October 26,
2018. See Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Electronic Reporting for Federally Permitted Charter Vessels and Head-
boats[2] in Gulf of Mexico Fisheries, 83 Fed. Reg. 54069. The proposed rule
contained three substantive components.
First, as mentioned above, the proposed rule would require charter-
boat owners to install NMFS-approved Vessel Monitoring System hardware
and software that transmit the vessel’s GPS location “at least once per hour,
24 hours a day, every day of the year.” 83 Fed. Reg. at 54076 (the GPS-
tracking requirement). Further, “[a]s a condition of authorized fishing . . . a
vessel owner . . . must allow NMFS [and] the U.S. Coast Guard . . . access to
the vessel’s position data obtained from the VMS or GPS.” Id. at 54077.
There are limited exceptions for when the vessel is in port or out of the water.
Second, the rule would require charter-boat owners to submit a report
to NMFS before offloading any fish, detailing “all fish harvested and dis-
carded, and any other information requested by the [Science and Research
Director of NMFS].” 83 Fed. Reg. at 54076 (the business-information re-
quirement). The rule does not define “other information,” but it does note
2
Fees for a headboat are assessed per-person, whereas fees for a charter boat are
assessed per-trip. Unlike charter boats, headboats can carry as many as 70–80 passengers.
Larger and more heavily-regulated that charter boats, headboats are not at issue here.
4
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that reports should include “information about the permit holder, vessel, lo-
cation fished, fishing effort, discards, and socio-economic data.” Id. at 54071.
Third, the rule would require that, before a charter-boat owner may
take a boat out to sea, he or she must submit a trip declaration to NMFS,
indicating the purpose of the trip, such as for-hire, fishing recreational, or
non-fishing. 83 Fed. Reg. at 54071 (the trip-declaration requirement). In the
event of a for-hire trip, the owner must “report the expected trip completion
date, time, and landing location.” Id.
After notice and comment, NOAA and NFMS published the Final
Rule on July 21, 2020. See Fisheries of the Caribbean, Gulf of Mexico, and
South Atlantic; Electronic Reporting for Federally Permitted Charter Ves-
sels and Headboats in Gulf of Mexico Fisheries, 85 Fed. Reg. 44005. The
Final Rule adopted the GPS-tracking and trip-declaration requirements as in-
itially proposed, but modified the description of the business-information re-
quirement. As before, the latter rule did not define “other information,” and
the preamble explained that reports should include “information about the
permit holder, vessel, location fished, fishing effort, discards, and socio-eco-
nomic data.” Id. at 44005. But in response to a comment concerning these
data, the Final Rule gave the following additional information: “NMFS will
require the reporting of five economic values per trip: The charter fee, the
fuel price and estimated amount of fuel used, number of paying passengers,
and the number of crew for each trip.” Id. at 44011.
As promulgated by the Final Rule, the three requirements are codified
in NOAA regulations as follows: 50 C.F.R. § 622.26(b)(5) (GPS-tracking re-
quirement); id. § 622.26(b)(1) (business-information requirement); and id.
§ 622.26(b)(6) (trip-declaration requirement).
5
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C
Appellants (Plaintiffs below) are captains of charter boats operating in
the Gulf of Mexico with federal for-hire permits, and their companies. They
filed a class-action complaint in the Eastern District of Louisiana in August
of 2020, naming as defendants the Department of Commerce, NOAA,
NMFS, and related federal officials. The district court certified the class on
June 2, 2021. The parties then filed cross summary judgment motions. The
district court granted the Government’s motion and denied Plaintiffs’ mo-
tion, leading to this appeal. See Mexican Gulf Fishing Co. v. U.S. Dept. of Com-
merce, 587 F. Supp. 3d 428 (E.D. La. 2022).
The business-information and trip-declaration requirements went
into effect on January 5, 2021, but NMFS delayed implementation of the
GPS-tracking requirement. The effective date was set for March 1, 2022,
and Appellants sought a stay of that requirement in the district court, but the
motion was denied. Appellants then moved for an injunction pending appeal.
A motions panel of this court denied that motion in an unpublished, per cu-
riam order. All three requirements are therefore in effect.
II
The focus of Appellants’ challenge is the GPS-tracking requirement.
Appellants maintain that this requirement violates the Fourth Amendment,
exceeds the authority granted by the Magnuson-Stevens Act, and is arbitrary
and capricious in violation of the Administrative Procedure Act. We begin
with statutory authorization, consider the merits of the constitutional ques-
tion (but do not reach them), and proceed to arbitrary-and-capricious review.
A
The logically antecedent question is whether the Magnuson-Stevens
Act authorizes NOAA and NMFS to issue the GPS-tracking requirement.
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See 5 U.S.C. § 706(2)(C) (court must set aside agency action if it is “in excess
of statutory . . . authority”). This question invokes the analytical framework
set forth in Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). The familiar framework proceeds in two steps. “At step
one, we ask whether Congress has directly spoken to the precise question at
issue, in which case we must give effect to the unambiguously expressed in-
tent of Congress and reverse an agency’s interpretation that fails to conform
to the statutory text.” Huawei Technologies USA, Inc. v. FCC, 2 F.4th 421,
433 (5th Cir. 2021) (internal quotation marks and citation omitted). This in-
quiry uses “authoritative Supreme Court decisions” and “conventional
standards of statutory interpretation.” Chamber of Commerce v. U.S. Dept. of
Labor, 885 F.3d 360, 369 (5th Cir. 2018). “If the statute is silent or ambigu-
ous as to the specific issue, we proceed to step two and ask whether ‘the
agency’s answer is based on a permissible construction of the statute.’”
Huawei Technologies, 2 F.4th at 433 (quoting Alenco Comms., Inc. v. FCC, 201
F.3d 608, 619 (5th Cir. 2000)). But if “the statute’s text is unambiguous, we
need not proceed to Step Two of Chevron.” Western Refining Southwest, Inc.
v. FERC, 636 F.3d 719, 727 (5th Cir. 2011). 3
3
The concurring opinion would jettison the Chevron framework and simply apply
the traditional tools of statutory construction to analyze the issues presented. Indeed, the
opinion conjures up Chevron as “the Lord Voldemort of administrative law.” Post at 30
(quoting Aposhian v. Wilkinson, 989 F.3d 890, 896 (10th Cir. 2021) (Tymkovich, C.J.,
dissenting)). To be sure, Chevron has become something of the-precedent-who-must-not-
be-named—left unmentioned by the Supreme Court in two recent decisions addressing the
reasonableness of agency action. See generally American Hospital Assn. v. Becerra, 142 S. Ct.
1896 (2022); Becerra v. Empire Health Foundation, for Valley Hospital Medical Center, 142 S.
Ct. 2354 (2022). And we recognize that the concurring judge and many other distinguished
jurists—as well as some who are less distinguished, see Cargill v. Garland, 57 F.4th 447,
464–69 (5th Cir. 2023) (en banc)—have questioned Chevron’s consistency with our duty to
say what the law is. But lest we not forget, “fear of a name increases fear of the thing itself.”
J.K. Rowling, Harry Potter and the Sorcerer’s Stone 298 (1998). We therefore name Chevron,
and apply its precedent—until and unless it is overruled by our highest Court.
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1
a
In keeping with the above, the first inquiry is whether, based on tradi-
tional principles of statutory construction, the Magnuson-Stevens Act au-
thorizes the GPS-tracking requirement. It is undisputed that no provision
explicitly allows the Government to demand reporting of GPS information.
Rather, the Government defends the requirement primarily by reference to
16.U.S.C. § 1853(b)(4). That paragraph authorizes NMFS to include a pro-
vision within a fishery management plan that mandates the use of particular
equipment: “[A fishery management plan may] prohibit, limit, condition, or
require the use of specified types and quantities of fishing gear, fishing ves-
sels, or equipment for such vessels, including devices which may be required
to facilitate enforcement of the provisions of this chapter.” A VMS device is
“equipment,” the Government says, and so NMFS may require it.
Assuming arguendo that a VMS device is equipment, this argument
fails because the Government does not demonstrate that such a device facil-
itates the enforcement of the Magnuson-Stevens Act. As the Appellants ob-
serve, “no provision of the MSA requires 24-hour GPS tracking of charter-
boat operators.” To be sure, it could be possible that the GPS-tracking re-
quirement facilitates the enforcement of other provisions. In this regard, the
Government says that the GPS-tracking requirement is necessary to enforce
the Act’s data-collection provisions. See 16 U.S.C. § 1853(a)(5) (requiring
that fishery management plans “specify the pertinent data which shall be
submitted to the Secretary with respect to commercial, recreational, [and]
charter fishing”); 4 id. § 1851(a)(2) (mandating that “conservation and
4
The data to be submitted includes, but is not limited to, “information regarding
the type and quantity of fishing gear used, catch by species in numbers of fish or weight
thereof, areas in which fishing was engaged in, time of fishing, number of hauls, economic
8
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management measures shall be based upon the best scientific information
available”); id. § 1801(a)(8) (finding as a matter of fact that “[t]he collection
of reliable data is essential to the effective conservation, management, and
scientific understanding of the fishery resources of the United States”). Ac-
cording to the Government, the GPS data “will help validate [fishing] effort
and aid with enforcement of the reporting requirements.” 85 Fed. Reg. at
44012. It also contends that the data “improves the accuracy and reliability
of fishery data by providing trip validation—in other words, corroborating
whether a vessel has left the dock.”
Cutting against this argument is the fact that charter-boat owners are
already required to report all of the information that the Government says the
GPA-tracking requirement is designed to collect. That is, before going on a
trip, charter-boat owners must tell the Government the type of trip (fishing
or otherwise), and if it is a fishing trip, they must also tell the Government
where they are going, how long they expect the trip will take, and when and
where they expect to return. 50 C.F.R. § 622.26(b)(6). And they must report
“all fish harvested and discarded,” as well as other commercial information.
Id. § 622.26(b)(1). What is more, the record lacks any evidence that charter-
boat owners fail to accurately report their trips. Indeed, when asked at oral
argument to identify one instance in which NOAA or NMFS documented
inaccurate trip reporting, counsel for the Government failed to do so.
However, an agency is not necessarily required to show evidence of an
actual violation before it takes steps to detect or enforce a violation. And in
a self-reporting regulatory scheme, the Government surely has some interest
in verifying the accuracy of self-reported data. The problem for NOAA and
information necessary to meet the requirements of this chapter, and the estimated
processing capacity of, and the actual processing capacity utilized by, United States fish
processors.” 16 U.S.C. § 1853(a)(5).
9
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NFMS, though, is that the GPS-tracking requirement does not conceivably
enforce any statutory data-collection requirements. The data the Govern-
ment demands does not communicate the location or duration of fishing, nor
does it communicate the number and type of fish caught, or the equipment
used to catch those fish. See 16 U.S.C. § 1853(a)(5). It only communicates a
particular charter boat’s exact location. Because that information does not
further the enforcement of any provision of the Magnuson-Stevens Act, and
based on the record before us, a VMS device is not “equipment” whose use
the Government may mandate. 16 U.S.C. § 1853(b)(4).
b
The Government also argues that the GPS-tracking requirement is au-
thorized under two catchall provisions. The first provision requires fishery
management plans to “contain the conservation and management measures
. . . which are necessary and appropriate for the conservation and manage-
ment of the fishery.” 16 U.S.C. § 1853(a)(1)(A). And the second provision
authorizes plans to “prescribe such other measures, requirements, or condi-
tions and restrictions as are determined to be necessary and appropriate for
the conservation and management of the fishery.” Id. § 1853(b)(14).
As an initial matter, we stress that the adjectives necessary and appro-
priate limit the authorization contained in this provision. See Gulf Fishermens
Assn. v. NMFS, 968 F.3d 454, 465 (5th Cir. 2020) (“The grant of authority
to promulgate necessary regulations cannot expand the scope of the provi-
sions the agency is tasked with carry[ing] out.”) (internal citations omitted).
For this reason, the rule is authorized by the Magnuson-Stevens Act only if
it is necessary and appropriate, which at a minimum requires that its benefits
reasonably outweigh its costs. National Grain & Feed Assn. v. OSHA, 866
F.2d 717, 733 (5th Cir. 1988); see also Texas Independent Ginners v. Marshall,
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630 F.2d 398, 411 n.44 (5th Cir. 1980) (explaining that the “expected costs”
must be “reasonably related to the expected benefits”).
These principles in mind, we must reject the Government’s position
because the asserted benefits from the GPS-tracking requirement do not bear
any reasonable relationship to the undisputed costs. Start with the costs.
The Final Rule found that installation of a VMS device would cost $3,000,
with an additional $40 to $75 per month in service fees. See 85 Fed. Reg. at
44013. These are significant fees for charter-boat owners, for they primarily
operate small businesses, with roughly $26,000 per year in net income. See
86 Fed. Reg. at 12165. And in addition to the financial cost, of course, the
regulation imposes a massive privacy cost; demanding that charter-boat own-
ers transmit their exact location to the Government, every hour of every day
forever, regardless of why they are using the vessel.
What benefits does the Government point to in response? Next to
nothing. It observes that “NMFS is charged with the conservation and man-
agement of the Nation’s fisheries.” That is certainly true, but the Govern-
ment fails to connect the GPS-tracking requirement with any legitimate con-
servation purpose. By the Government’s own telling, the only other purpose
served by the requirement is to “verify whether a vessel is at the dock” and
to “determine when a fishing trip was taken, and the length of that trip.” 83
Fed. Reg. at 54071; 85 Fed. Reg. at 44009. 5 Perhaps such information might
5
The full explanation to the cost concern is as follows: “[R]equiring each Gulf for-
hire vessel be equipped, at a minimum, with archivable vessel location tracking (cellular
VMS) best balances the need to collect and report timely information with the need to min-
imize the cost and time burden to the industry. The vessel location tracking system is an
additional mechanism that verifies vessel activity without a report having to be completed
by the vessel operators. The vessel location tracking system will allow NMFS to inde-
pendently determine whether the vessel leaves the dock. This will help validate effort and
aid with enforcement of the reporting requirements.” 85 Fed. Reg. at 44009, 44012.
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justify the inordinate costs imposed, if the Government truly needed it. But
the Government already has this information. Indeed, at oral argument,
counsel for the Government denied any awareness of inaccuracies in charter-
boat owners’ reporting of this same information in accordance with preexist-
ing reporting requirements. In light of this fact, the benefit the Government
obtains from receiving duplicative information is minimal, if not zero.
As a result, the Government has failed to show that the GPS-tracking
requirement is necessary and appropriate for the conservation and manage-
ment of the fishery. To be sure, a “strict cost-benefit analysis” is not re-
quired. National Grain & Feed Assn., 866 F.2d at 733. Likewise, “we cannot
say that the cost of compliance is unreasonable if the [regulation] in fact alle-
viates a grave danger.” Asbestos Information Assn. North America v. OSHA,
727 F.2d 415, 424 (5th Cir. 1984). But here, the uncontroverted record shows
that the regulation gives no meaningful benefit, let alone alleviates some great
danger. Also, a necessary-and-appropriate condition requires more than just
consideration of financial costs. It requires an analysis of the costs to consti-
tutionally protected privacy interests too. See Michigan v. EPA, 576 U.S. 743,
752 (2015) (“[C]ost includes more than the expense of complying with regu-
lations; any disadvantage could be termed a cost.”) (emphasis added). Here,
the Government failed to account for this crucial “cost of compliance . . . be-
fore deciding whether [the] regulation [was] appropriate and necessary.” Id.
at 751. As such, it did not “operate within the bounds of reasonable interpre-
tation.” Id. For these reasons, we must conclude that the expected costs
associated with the GPS-tracking requirement are not “reasonably related”
to its expected benefits. Texas Independent Ginners, 630 F.2d at 411.
* * *
The record before us does not demonstrate that a VMS device, when
used as required by the regulation, is “equipment . . . which . . . facilitate[s]
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enforcement” of the Magnuson-Stevens Act, 16.U.S.C. § 1853(b)(4), or that
such a device is “necessary and appropriate for the conservation and man-
agement of the fishery.” Id. § 1853(a)(1)(A), (b)(14). Accordingly, on these
facts, we hold that the Act does not authorize NOAA and NMFS to promul-
gate the GPS-tracking requirement.
2
We reach the holding above according to the statute’s plain and un-
ambiguous language. But, as explained above, the Government urges a broad
reading of the Magnuson-Stevens Act—one that authorizes the GPS-track-
ing requirement even on the record before us. We therefore assume arguendo
that it is ambiguous whether the relevant provisions mean what the Govern-
ment says they mean. Even so, we are required to construe them against au-
thorizing the Final Rule because to do otherwise would raise grave constitu-
tional concerns. See, e.g., Hersh v. United States, 553 F.3d 743, 754–55 (5th
Cir. 2008) (“Where an otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to the intent
of Congress.”) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Building
& Constr. Trades Council, 485 U.S. 568, 575 (1988)); see also Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 250 (2012).
a
To begin, the requirement that charter boats transmit their GPS loca-
tion to the Government appears to be a search, and no warrant authorizes
that search. In most circumstances, “a warrantless search is presumed to be
unreasonable.” United States v. Riley, 968 F.2d 422, 424 (5th Cir. 1992). But
the Government invokes the closely-regulated-industry doctrine as an excep-
tion to that general rule. Beginning in the 1970s, the Supreme Court held
that some industries “have such a history of government oversight that no
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reasonable expectation of privacy exists.” Marshall v. Barlow’s, Inc., 436 U.S.
307, 313 (1978). For such an industry, the threshold for whether a search is
reasonable for purposes of the Fourth Amendment is much lower. New York
v. Burger, 482 U.S. 691, 702–03 (1987). Here, the district court held that “the
fishing industry” is closely regulated and concluded under Burger that the
GPS-tracking requirement does not violate the Fourth Amendment.
Appellants and several amici vigorously dispute that the exception ap-
plies here. First, they contend that the Supreme Court’s decision in City of
Los Angeles v. Patel, 576 U.S. 409 (2015), which held that the hotel industry
is not closely regulated, changed the standard. Patel explained that the Court
has recognized only four industries as being closely regulated: liquor sales,
firearms dealing, mining, and the operation of an automobile junkyard. 576
U.S. at 424. 6 The Court explained its holding as follows: “Simply listing
these industries refutes petitioners’ argument that hotels should be counted
among them. Unlike [each of the four], nothing inherent in the operation of
hotels poses a clear and significant risk to the public welfare.” Id. (emphasis
added). Appellants and the amici argue that Patel requires that an industry be
“intrinsically dangerous,” in order to be pervasively regulated.
Since Patel, this argument has been raised several times. Among
courts of appeals, it seems only the Sixth, Seventh, and Eighth Circuits have
considered the issue. The Sixth and Seventh Circuits rejected the argument,
instead holding that the extent to which an industry is dangerous is just a fac-
tor to be considered in the closeness analysis. Liberty Coins, LLC v. Goodman,
880 F.3d 274, 284–85 (6th Cir. 2018); Owner-Operator Independent Drivers
Ass’n v. U.S. Dept. of Treasury, 840 F.3d 879, 894 (7th Cir. 2016). The Eighth
6
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor sales);
United States v. Biswell, 406 U.S. 311 (1972) (firearms dealing); Donovan v. Dewey, 452 U.S.
594 (1981) (mining); New York v. Burger, 482 U.S. 691 (1987) (operation of a junkyard).
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Circuit did not address the question at length, but seemed to say dangerous-
ness is now a requirement. Calzone v. Olson, 931 F.3d 722, 724 (8th Cir. 2019)
(“But in the case of commercial property that is involved in a closely regu-
lated industry whose operation ‘poses a clear and significant risk to the public
welfare,’ the property owner has a reduced expectation of privacy.”). This
court has said that the closeness analysis turns in part on “whether the in-
dustry would pose a threat to the public welfare if left unregulated,” Zadeh v.
Robinson, 928 F.3d 457, 465 (5th Cir. 2019), but was not directly confronted
with the argument Appellants present here.
We now hold the Government has the better reading of Patel. Appel-
lants fail to identify any textual or historical reason why the Fourth Amend-
ment distinguishes between industries that pose a clear and significant risk to
the public welfare, and those that do not. For this reason, we now join our
sister Sixth and Seventh Circuits, and conclude that Patel “simply recog-
nized that the industries the Court had deemed closely regulated in the
past . . . were intrinsically dangerous.” Liberty Coins, 880 F.3d at 284. Patel
did not establish a new requirement for the closely-regulated-industry test.
b
Appellants next argue that the district court conducted its analysis too
broadly. Specifically, they say the relevant industry is charter-boat fishing or
recreational fishing, not commercial fishing. The district court disagreed, as-
sessing whether the general fishing industry is closely regulated, and conclud-
ing that it is. This was error.
Dissenting in Burger, Justice Brennan warned that if the question of
whether an industry is closely regulated is asked too broadly, “few businesses
will escape such a finding.” 482 U.S. at 721. The Supreme Court carried
that warning forward in Patel, reiterating that “[t]he clear import of our cases
it that the closely regulated industry . . . is the exception.” 576 U.S. at 524
15
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No. 22-30105
(quoting Barlow’s, 436 U.S. at 313). Loose application of this doctrine will
“permit what has always been a narrow exception to swallow the rule.” Id.Because this exception is narrow, federal courts must not define the
industry at issue at too high a level of generality. Indeed, in Zadeh, this court
was careful to explain that pervasive regulation within a subset of an industry
does not necessarily extend to the whole industry. 928 F.3d at 466 (“We
conclude, then, that the medical industry as a whole is not a closely regulated
industry for purposes of Burger. Still, even if the medical profession at large
cannot be said to fall within these Burger factors, it is possible that a subset,
such as those who prescribe controlled substances, would do so.”). Other
circuit courts regularly make the same distinction. See, e.g., United States v.
Herrera, 444 F.3d 1238, 1243–45 (10th Cir. 2006) (although the motor carrier
industry may be a closely regulated industry, the exception does not apply to
a man in a pickup truck); McLaughlin v. Kings Island, 849 F.2d 990, 994 (6th
Cir. 1988) (although some industries covered by OSHA may be closely regu-
lated, the exception does not apply to all such industries).
Here, the district court erred by failing to consider whether the charter
boat fishing industry is closely regulated. Indeed, all of the cases the district
court cited for the proposition that fishing is a closely regulated industry spe-
cifically deal with commercial fishing. 7 As an initial matter, the Government
appears to take as granted that the commercial fishing industry is closely reg-
ulated. We are not so sure. True, the Government cites several decisions
from two of our sister circuits that answered the question in the affirmative.
Lovgren v. Byrne, 787 F.2d 857, 865 & n.8 (3d Cir. 1986); Balelo v. Baldridge,
7
Lovgren v. Byrne, 787 F.3d 857, 860 (3d Cir. 1986); Balelo v. Baldrige, 724 F.2d
753, 765 (9th Cir. 1984); United States v. Kaiyo Maru No. 53, 699 F.2d 989, 997 (9th Cir.
1983); United States v. Raub, 637 F.2d 1205, 1209 (9th Cir. 1980) (“Commercial fishing has
a long history of being a closely regulated industry.”).
16
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No. 22-30105
724 F.2d 753, 764–67 (9th Cir. 1984) (en banc); United States v. Kaiyo Maru
No. 53, 699 F.2d 989, 994–97 (9th Cir. 1983). But all of these decisions pre-
date Burger, which was the zenith of this doctrine, after which the Supreme
Court has never again recognized an industry as closely regulated. Moreover,
we have never directly considered the question, and do not address it here.
We do not address the general fishing industry because the relevant
subject here is the charter boat fishing industry. As the amici States explain,
federal statutes and regulations distinguish between fishing and charter-boat
fishing, as well as between commercial and recreational fishing. On the latter
point, the record shows that charter-boat fishing is more recreational than it
is commercial in many respects.
The Government offers two unavailing responses. First, it contends
that “courts have never approached Burger with Plaintiffs’ self-serving level
of granularity,” but it neither cites authorities for this proposition nor tries
to distinguish Appellants’ arguments. Its only other claim is that “charter
fishing is distinct from recreational fishing.” That may well be true, but it
does not follow that the subject of this analysis should be the general fishing
industry. If anything, the legal distinctions the Government cites emphasize
the need to precisely identify the scope of the industry at issue.
c
Turning to the merits, we have understood the closely related industry
inquiry to turn on several factors: “The history of warrantless searches in the
industry, how extensive the regulatory scheme is, whether other states have
similar schemes, and whether the industry would pose a threat to the public
welfare if left unregulated.” Zadeh, 928 F.3d at 465 (citing Burger, 482 U.S.
at 704 and Patel, 576 U.S. at 424). Applying the factors to the proper subject,
we conclude that the charter boat fishing industry is not closely regulated.
17
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No. 22-30105
As an initial matter, the record shows there are significant differences
between the charter-boat fishing industry and the general commercial fishing
industry. As previously stated, charter-boat fishing accounts for only .20% of
annual fishing in the Gulf of Mexico. In addition, charter boats are typically
owned by small businesses, and are commonly used both for non-fishing com-
mercial purposes, like sightseeing or personal recreation. In short, the char-
ter boat fishing industry is different in kind and degree from the commercial-
fishing industry.
Those general differences in mind, we now directly address the factors
listed above. First, the record is devoid of any evidence of history of warrant-
less searches within the charter boat fishing industry. Zadeh, 928 F.3d at 465.
To be sure, the Government points to some evidence of a tradition of war-
rantless searches with respect to the commercial fishing industry. But it fails
to connect that history to the particular industry at issue here. After all, it is
“the effect of such regulation upon an owner’s expectation of privacy,” that
really matters, not history for its own sake. Burger, 482 U.S. at 701. Here,
there is simply no evidence that a pattern of warrantless searches within the
commercial fishing industry ever extended down to charter boats, such that
it would alter the expectation of privacy in this context. Likewise, the Gov-
ernment offers no evidence that States employ regulatory schemes respect-
ing the charter boat fishing industry. Zadeh, 928 F.3d at 465.
Finally, there is no evidence in the record that the charter boat fishing
industry “would pose a threat to the public welfare if left unregulated.” Id.
at 465. The Government responds that, if left unregulated, the fishing indus-
try would pose a serious risk of overfishing and depleting a critical food sup-
ply. 16 U.S.C. § 1801 (“A national program for the conservation and man-
agement of the fishery resources of the United States is necessary to prevent
overfishing.”). But this makes the same mistake as before: it considers the
risk of the general fishing industry, instead of considering the risk of the
18
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No. 22-30105
particular charter-boat fishing industry. And the only evidence presented
here shows that charter-boat fishing does not pose an overfishing risk because
it accounts for a small percentage of total fishing within the Gulf of Mexico.
We reiterate the Supreme Court’s instruction that “the closely regu-
lated industry . . . is the exception,” not the rule. Patel, 576 U.S. at 524. Our
highest Court has recognized only four industries as closely regulated, and
none since 1987. And in the dozens of cases we have considered in this area
of the law, our court has extended the doctrine only twice: to the coal mining
industry, Marshall v. Texoline Co., 612 F.2d 935, 938 (5th Cir. 1980), and to
the commercial trucking industry, United States v. Fort, 248 F.3d 475, 480
(5th Cir. 2001). We must be tremendously cautious in extending this doc-
trine, lest we “permit what has always been a narrow exception to swallow
the rule.” Patel, 576 U.S. at 524. That caution is needed to ensure that future
recognition of a closely regulated industry, if any, will be consistent with the
original public meaning of the Fourth Amendment. (Or perhaps, for state
penal laws, consistent with the original public meaning of the Fourteenth
Amendment. See New York State Rifle & Pistol Assn. v. Bruen, 142 S. Ct. 2111,
2162–63 (2022) (Barrett, J., concurring)). The legitimacy of any categorical
exception to that Amendment rests, of course, on the exception’s accordance
with constitutional text, history, and tradition—as interpreted and explained
by our highest Court. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318,
326 (2001) (“In reading the [Fourth] Amendment, we are guided by ‘the tra-
ditional protections against unreasonable searches and seizures afforded by
the common law at the time of the framing’ . . . .”) (quoting Wilson v. Arkan-
sas, 514 U.S. 927, 931 (1995)).
Here, the Government presents no evidence whatsoever tending to
show that the charter boat fishing industry is closely regulated. On the con-
trary, all the pertinent evidence suggests the opposite. We therefore decline
19
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No. 22-30105
to expand the narrow exception, and conclude that the charter-boat fishing
industry is not closely regulated.
* * *
In light of our holding immediately above, the constitutionality of the
GPS-tracking requirement turns on whether charter-boat owners have a le-
gitimate expectation of privacy to the whole of their movements while at sea,
and, if so, whether the regulation violates that expectation. Byrd v. United
States, 138 S. Ct. 1518, 1526 (2018); Katz v. United States, 389 U.S. 347, 351–
52 (1967). We have serious concerns that the GPS requirement violates the
Fourth Amendment in this circumstance, given the Supreme Court’s in-
struction that members of the public have a “reasonable expectation of pri-
vacy in the whole of their movements.” Carpenter v. United States, 138 S. Ct.
2206, 2217 (2018); see United States v. Jones, 565 U.S. 400, 413 (2012) (So-
tomayor, J., concurring); id. at 430 (Alito, J., concurring in the judgment).
Ultimately, we need not address the merits of this question because, as ex-
plained above, the requirement violates the APA for other, non-constitu-
tional reasons. But to the extent that it is ambiguous whether the provisions
at issue should be accorded the broad reading advanced by the Government,
our interpretation is further supported by the obligation to construe texts to
avoid “serious constitutional problems.” Hersh, 553 F.3d at 754 (quoting
Edward J. DeBartolo Corp., 485 U.S. at 575). 8
8
We reiterate that our opinion does not answer the Fourth Amendment question
on the merits. In addition, nothing in our discussion of the pervasively regulated industry
doctrine is intended to call into question reasonable and historical regulatory practices on
government land. See, e.g., United States v. Williams, 617 F.2d 1063, 1077–79 (5th Cir. 1980)
(en banc) (warrantless searches of vessels at sea).
20
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No. 22-30105
B
Next, Appellants present two arguments for why the GPS-tracking re-
quirement is arbitrary and capricious. First, that NOAA and NMFS failed to
address privacy concerns expressed in public comments. And second, that
the agencies did not adequately justify the GPS-monitoring requirement’s
costs and benefits. We agree on both counts. 9
The APA instructs courts to set aside agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). “Arbitrary and capricious review focuses on whether
an agency articulated a rational connection between the facts found and the
decision made.” ExxonMobil Pipeline Co. v. U.S. Dept. of Transportation, 867
F.3d 564, 571 (5th Cir. 2017) (internal quotation marks and citation omitted).
“In reviewing that explanation, we must consider whether the decision was
based on a consideration of the relevant factors and whether there has been a
clear error of judgment.” Texas v. EPA, 983 F.3d 826, 835 (5th Cir. 2020)
(quoting Motor Vehicle Mfrs. Assn. of U.S. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)).
In turn, to determine whether the agency considered the relevant fac-
tors, the court must decide whether the agency addressed any “significant
points . . . raised by the public comments.” Huawei Technologies, 2 F.4th at
449 (quoting Carlson v. Postal Regulatory Commn., 938 F.3d 337, 344 (D.C.
Cir. 2019)). “Comments are ‘significant,’ and thus require response, only if
they raise points ‘which, if true . . . and which, if adopted, would require a
9
Our holding in Part II.A is sufficient to demand that we render judgment for the
Appellants. As such, our conclusions in Parts II.B.1, II.B.2, and III should be understood
as independently sufficient alternative holdings. In the Fifth Circuit, “alternative holdings
are binding precedent and not obiter dictum.” Jarkesy v. SEC, 34 F.4th 446, 459 n.9 (5th
Cir. 2022) (quoting Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015)).
21
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No. 22-30105
change in an agency’s proposed rule.’” Id. (quoting City of Portland v. EPA,
507 F.3d 706, 714–15 (D.C. Cir. 2007) (alteration in original)).
1
Appellants contend that the Final Rule failed to address Fourth
Amendment concerns expressed in several public comments. At least three
individuals submitted an identical comment expressing this concern. The
relevant text of these comments is as follows:
There are versions of the eVTRs [electric vessel trip reporting]
that provide all transiting details from the time the vessel leaves
the dock, fishes and returns back to the dock. Start and end
time are already recorded on the eVTR. Providing all confiden-
tial transiting details is a violation of our 4th Amendment right to
privacy and not necessary to manage the fishery. Such details are
considered confidential by NOAA and utilized by other agen-
cies not associated with management of the fishery. This is a
dangerous precedent. Fish have tails, they move and with the
climatic shift and movement of our fish into new areas over the
last several years utilizing such historical data for fishery man-
agement purposes is flawed and can be misused to deny us ac-
cess to the fishery. Therefore to require detailed GPS data for
vessels utilized by the for hire community is not necessary for
fishery management purposes, flawed if used for fishery man-
agement purposes due to the climatic shift of our stocks and is
also a violation of our 4th Amendment rights. Therefore, I
can’t recommend mandatory use of GPS other than what is
presently required by NOAA.
(emphasis added). NOAA and NMFS interpreted these comments to be ex-
pressing a concern relating to the handling of proprietary data. The Final
Rule responded to this point, assuring the public that “data submitted to
NMFS under the Gulf For-hire Reporting Amendment shall be confidential
and shall not be disclosed.” 85 Fed. Reg. at 44010.
22
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No. 22-30105
The district court dismissed this claim, reasoning that the comments
cited above did not clearly state their privacy concerns. An agency “need not
sift pleadings and documents to identify arguments that are not stated with
clarity by a petitioner.” Mexican Gulf Fishing Co., 587 F. Supp. 3d at 466
(quoting Huawei Technologies, 2 F.4th at 449). Having addressed the data-
confidentiality issue, the district court concluded, NMFS “was not required
to dig for another basis of generalized Fourth Amendment concerns.” Id.
However, we must agree with the Appellants because the personal-
privacy concern is clear from the face of these comments. Indeed, the com-
ments explicitly asserted that the proposed rule violated their “4th Amend-
ment right to privacy.” To be sure, an agency need not respond to issues
stated unclearly. Huawei Technologies, 2 F.4th at 449. But neither must a
comment be written by a legal or technical expert in order to put an agency
on notice of a particular concern. In short, the requirement for an agency to
respond to significant issues raised by public comments would be utterly
toothless if it could ignore comments like those presented here. See Texas v.
Biden, 10 F.4th 538, 554 n.4 (“[T]he opportunity to comment is meaningless
unless the agency responds to significant points raised by the public.”) (quot-
ing Sherley v. Sebelius, 689 F.3d 776, 784 (D.C. Cir. 2012)).
Moreover, the personal-privacy concern is obvious from the invoca-
tion of the Fourth Amendment. The Supreme Court’s corpus of Fourth
Amendment case law on warrantless government surveillance is legion. Car-
penter v. United States, 138 S. Ct. 2206 (2018); United States v. Jones, 565 U.S.
400 (2012); Kyllo v. United States, 533 U.S. 27 (2001); United States v. Knotts,
460 U.S. 276 (1983); Smith v. Maryland, 442 U.S. 735 (1979); Alderman v.
United States, 394 U.S. 165 (1969); Katz v. United States, 389 U.S. 347 (1967);
McDonald v. United States, 335 U.S. 451 (1948); Goldstein v. United States,
316 U.S. 114 (1942). The assertion that the Government failed to identify
this particular concern from the public comments borders on incredible.
23
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No. 22-30105
The Government responds that its interpretation of the public com-
ments need only be “reasonable.” That is true, but the standard of review
does not grant the Government free license to interpret comments in a man-
ner that ducks the hard questions. Indeed, too much deference would essen-
tially allow the Government to bury its head in the sand. The Administrative
Procedure Act demands more than this.
Having determined that the public comments raised a significant is-
sue, we must now determine whether the Government sufficiently addressed
that issue. We are compelled to conclude in the negative because, as all agree,
the Government did not address the issue at all. See, e.g., Carlson, 938 F.3d
at 345–48; Hewitt v. Commr. of IRS, 21 F.4th 1336, 1353 (11th Cir. 2021). Nor
is there any doubt that the personal-privacy issue is significant for purposes
of the APA. If the GPS-tracking requirement violates the Fourth Amend-
ment—and we have grave concerns that it might—that constitutional issue
surely “would require a change” in the proposed rule. Huawei Technologies,
2 F.4th at 449 (quoting City of Portland, 507 F.3d at 715). The Final Rule
violates the APA for this additional reason.
2
Last, Appellants argue that the GPS-tracking requirement is arbitrary
and capricious because NOAA and NMFS failed to justify the costs the rule
would impose on the charter-boat fishing industry. In this regard, a regula-
tion is arbitrary and capricious if the agency “failed to consider an important
aspect of the problem.” State Farm, 463 U.S. at 43. This includes, of course,
considering the costs and benefits associated with the regulation. See, e.g.,
Michigan, 576 U.S. at 751. In other words, the agency’s “reasons and policy
choices” must “satisfy minimum standards of rationality.” Pub. Citizen v.
EPA, 343 F.3d 449, 455 (5th Cir. 2003).
24
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No. 22-30105
This argument succeeds for the same reason that the necessary-and-
appropriate provisions do not authorize the GPS-tracking requirement: the
Government has failed to demonstrate that it would obtain meaningful bene-
fits from the GPS data. Supra Part II.A.1.b. The data only tells the Govern-
ment what it already knows: when a charter boat embarks on a trip, how long
it is gone, and when it returns. Although the Government stresses the value
of verifying this information, verification is entirely duplicative where, as
here, the Government offers no evidence that the preexisting reporting is in-
accurate. And, as explained above, it is unclear from this record what, if an-
ything, GPS data would tell the Government about where fishing occurs, how
long fishing occurs, and what equipment is used for fishing. Those insignifi-
cant benefits do not bear a rational relationship to the serious financial and
privacy costs imposed. As a result, the GPS-tracking requirement is arbitrary
and capricious. Pub. Citizen, 343 F.3d at 455.
* * *
In summary, the GPS-tracking requirement is unlawful for several in-
dependently sufficient reasons. First, because the unambiguous language of
the Magnuson-Stevens Act does not authorize the regulation. And the need
to interpret regulations against creating constitution problems lends further
support to our construction of that language. Second, because the Govern-
ment failed to respond to public comments expressing concerns of personal-
privacy violations stemming from GPS surveillance. And third, because the
Government failed to rationally consider the associated costs and benefits. 10
10
Appellants offer two final arguments respecting the GPS-tracking requirements:
(i) that the requirement constitutes “forced commerce” because it instructs charter-boat
owners to install a VMS device at their own expense, and (ii) that the district court’s
interpretation of the necessary-and-appropriate provisions within the Magnuson-Stevens
Act constitute a delegation of regulatory power without an “intelligible principle.” See
25
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No. 22-30105
III
Appellants’ final argument concerns a different component of the Fi-
nal Rule: the business-information requirement. Appellants contend that this
requirement violates the APA because the final version is not a “logical out-
growth” of the proposed rule. Huawei Technologies, 2 F.4th at 447 (quoting
National Lifeline Assn. v. FCC, 921 F.3d 1102, 1115 (D.C. Cir. 2019)). In this
regard, the Government must “adequately frame the subjects for discus-
sion,” such that “the affected party ‘should have anticipated’ the agency’s
final course in light of the initial notice.” Id. at 447 (quoting National Lifeline
Assn., 921 F.3d at 1115); see also CSX Transp., Inc. v. Surface Transp. Bd., 584
F.3d 1076, 1080 (D.C. Cir. 2009) (explaining that members of the public need
not “divine [the agency’s] unspoken thoughts”) (internal quotation marks
and citation omitted).
The Proposed and Final Rule describe the business-information re-
quirement in the same manner: reports must include “all fish harvested and
discarded, and any other information requested by the [Science and Research
Director of NMFS].” 83 Fed. Reg. at 54076; 85 Fed. Reg. at 44017. Neither
version defines other information. Both versions explain that the report must
include “information about the permit holder, vessel, location fished, fishing
effort, discards, and socio-economic data.” 83 Fed. Reg. at 54071; 85 Fed.
Reg. at 44005. The only difference is that the Final Rule also specifies five
entries that will be required: “NMFS will require the reporting of five eco-
nomic values per trip: The charter fee, the fuel price and estimated amount
of fuel used, number of paying passengers, and the number of crew for each
trip.” 85 Fed. Reg. at 44011.
Gundy v. United States, 139 S. Ct. 2116, 2123 (2019). Because we conclude that the GPS-
tracking requirement is unlawful on other grounds, we do not reach these arguments.
26
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No. 22-30105
The Final Rule did not provide “fair notice” because it required the
reporting of an entirely different category of data than the data described in
the Proposed Rule. Texas Assn. of Manufacturers v. U.S. Consumer Product
Safety Commn., 989 F.3d 368, 381 (5th Cir. 2021). The Proposed Rule gave
notice of the potential obligation to report socio-economic data. The adjec-
tive socio-economic means “that derives from both social and economic fac-
tors; that combines both factors to provide an indication of a person’s or a
group’s effective social situation, especially as a socio-economic class.” 15 The
Oxford English Dictionary 915 (2d ed. reprint 1991); see also Webster’s Third
New International Dictionary at 2163 (“[O]f, relating to, or involving a com-
bination of social and economic factors. Specif; of or relating to income and
social position considered as a single factor.”). As such, this word limits the
noun data to items that are both social and economic in nature.
None of the data listed in the Final Rule—charter fee, the fuel price
and estimated amount of fuel used, number of paying passengers, and the
number of crew for each trip—are socio-economic in essence. Rather, they
are all purely economic. Indeed, that is how the regulation describes them,
using the label “economic values.” 85 Fed. Reg. at 44011. The Government
argues that socio-economic data necessarily include economic factors, and
thus that Appellants were on notice the Final Rule may demand reporting of
such factors. But that argument would rewrite the rule to say “social or eco-
nomic data” instead of “socio-economic data.”
As understood by Appellants, socio-economic is “a broad term that
encompasses age, marital status, income, race, religion, sexual preference,
health status, and political affiliation to name a few.” This argument better
comports with the language’s plain meaning. If an ordinary person were
asked about her socio-economic status, she would instinctively report her ed-
ucation, annual income, occupation, and the like. To be sure, some socio-
economic data—like annual income—is more focused on the economic
27
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No. 22-30105
component than on the social component. But the reason annual income is
properly classified as socio-economic is that it furthers that word’s meaning.
That is, a person’s annual income informs that person’s “effective social sit-
uation.” 15 The Oxford English Dictionary 915. The data the Government
seeks to collect go only to charter-boat owners’ business operations. They
do not relate to “income and social position considered as a single factor,”
Webster’s Third New International Dictionary 2163, and so cannot be properly
characterized as socio-economic in nature.
When the Government said it may require reporting of socio-eco-
nomic data, the public was entitled to take that statement at face value. To
be sure, an agency need not “spell out with particularity the proposed mean-
ing” of every term in a proposed rule. United Steelworkers of America, AFL-
CIO-CLC v. Schuylkill Metals Corp., 828 F.2d 314, 318 (5th Cir. 1987). But
here, the Government expressly contradicted itself by including a require-
ment that was not within the scope of the obligations set forth in the Proposed
Rule. As such, we must reject the contention that the public “should have
anticipated the agency’s final course in light of the initial notice.” Huawei
Technologies, 2 F.4th at 447 (quoting Natl. Lifeline Assn., 921 F.3d at 1115).
The Government also points to several comments submitted by mem-
bers of the public that expressed concern that economic data might be re-
quired, arguing that these comments support its assertion that the public was
on notice that the Final Rule might require the reporting of purely economic
values. Several commenters did indeed address economic reporting, but the
Government draws the wrong inference from this fact. These comments
show only that a few members of the public happened to “divine” the Gov-
ernment’s “unspoken thoughts.” CSX Transp., 584 F.3d at 1080. Com-
ments such as these do not satisfy the Government’s obligation to afford the
general public an opportunity to respond to clearly stated proposals. Indeed,
we have expressly rejected that reasoning. See Tex. Assn. of Manufacturers,
28
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No. 22-30105
989 F.3d at 383 (“The fact that one commenter suggested that data above
the 95th percentile is too unstable for rulemaking does not relieve the Com-
mission of its burden to provide notice and an opportunity to comment on
the clearly articulated justification for its use of such data.”).
The Government gave notice that it would require reporting of socio-
economic data, but ultimately required the reporting of five purely economic
data points. We are therefore compelled to hold that, in promulgating a re-
quirement that is different in kind than the proposed requirement, the Gov-
ernment did not adequately frame the subjects for discussion. Huawei Tech-
nologies, 921 F.3d at 1115. It therefore did not provide an opportunity for in-
terested persons to participate in rulemaking, and in so doing violated the
APA. 5 U.S.C. § 553(b)(2), (b)(3).
IV
In conclusion, two components of the Final Rule are unlawful. First,
the Magnuson-Stevens Act does not authorize the Government to issue the
GPS-tracking requirement. In addition, that rule violates the Administrative
Procedure Act because it is arbitrary and capricious, in turn because the Gov-
ernment failed to address Fourth Amendment issues when considering it and
failed to rationally consider the associated costs and benefits. Second, the
business-information requirement violates the APA because the Government
did not give fair notice that it would require the type of data specified in the
Final Rule.
We therefore HOLD UNLAWFUL and SET ASIDE the Final
Rule, REVERSE the judgment of the district court, and RENDER judg-
ment for the Appellants.
29
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Andrew S. Oldham, Circuit Judge, concurring in part:
I join the court, except as to its invocation of Chevron. That’s for two
reasons. First, the Supreme Court has directed us to use “the traditional
tools of statutory interpretation” in lieu of Chevron. Am. Hosp. Ass’n v.
Becerra, 142 S. Ct. 1896, 1906 (2022). In two cases just last Term, both of
which directly implicated Chevron and the “reasonableness” vel non of an
agency’s statutory interpretation, the Court did not even cite the case. See
ibid.; Becerra v. Empire Health Found., for Valley Hosp. Med. Ctr., 142 S. Ct.
2354 (2022). Second, it’s unclear how “the Lord Voldemort of
administrative law” comports with our legal history and tradition. Aposhian
v. Wilkinson, 989 F.3d 890, 896 (10th Cir. 2021) (Tymkovich, C.J.,
dissenting); see also Buffington v. McDonough, 143 S. Ct. 14, 16–19 (2022)
(Gorsuch, J., dissenting from the denial of certiorari); Baldwin v. United
States, 140 S. Ct. 690, 691–94 (2020) (Thomas, J., dissenting from the denial
of certiorari); Aditya Bamzai, The Origins of Judicial Deference to Executive
Interpretation, 126 Yale L.J. 908 (2017). Accordingly, I’d use the Supreme
Court’s instructions and the traditional tools of statutory interpretation to
hold the GPS-tracking requirement violates the unambiguous text of the
Magnuson-Stevens Act.
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