Full opinion text
MEMORANDUM AND ORDER LAGUEUX, District Judge. This Court agrees with most of the conclusions and opinions contained in Magistrate Judge Robert W. Lovegreen’s Report and Recommendation dated April 13, 2001. The Court agrees with the Magistrate Judge’s conclusion that the gear differential violates National Standards Two and Five. Under the regulations adopted, vessels that use trawl gear can land up to 1500 lbs. tail-weight per day at sea, while vessels that do not use trawl gear (including gillnetters) may only land and possess up to 300 lbs. tail-weight of monkfish per day at sea. The Court agrees with the Magistrate Judge that National Standard Two has been violated because the Secretary has not utilized the best scientific information available in establishing the 300 lb. limit for non-trawlers. The Court also agrees that National Standard Five has been violated because there is no documentation that the gear differential results in an equitable proportional reduction for each category. In addition, this Court concludes (as opposed to the Magistrate Judge) that National Standard Four has also been violated because there is no evidence in this record that this allocation is fair and equitable as to all monk fishermen. While some form of gear differential may be supportable, there is no scientific evidence in this record and, in fact, no evidence at all that supports this grossly disparate gear differential. Therefore, the imposition of the 300 lb. limit on non-trawlers is arbitrary and capricious. It is hereby vacated and all monk fishermen will be governed by the 1500 lb. limit until such time as the Secretary establishes a fair and equitable gear differential or otherwise revises the catch limit for all monk fishermen. Judgment shall be entered for all the plaintiffs in these four consolidated cases to that effect forthwith. It is so ordered. LOVEGREEN, United States Magistrate Judge. REPORT AND RECOMMENDATION Dim moon-eyed fishes near Gaze at the gilded gear And query: What does this vainglori-ousness down hereV Thomas Hardy, The Convergence of the Twain On November 5, 1999, plaintiffs F/V Reaper, Inc. and Duckworth (“Reaper plaintiffs”) filed a three-count complaint and plaintiffs Hall, Block Island Lobster Company, Inc., and Canyon Industries, Inc. (“Hall plaintiffs”) filed a six-count complaint in this court seeking judicial review of rules promulgated by defendants regarding the “Monkfish Fishery Management Plan” (“MFMP”). On November 8, plaintiffs Lund’s Fisheries, Inc., Export, Inc., Frances Ann, Inc. and F/V Monica, Inc. (“Lund’s Fisheries plaintiffs”) filed a six-count action in the United States District Court for the District of New Jersey, which was subsequently transferred to this court on July 10, 2000. Plaintiffs McCann and Captain W.P. McCann, Inc. (“McCann plaintiffs”) filed their original six-count complaint on November 5, 1999, and an amended six-count complaint on November 18,1999, both in the United States District Court for the District of Massachusetts. Venue in that case was transferred to the District of Rhode Island on August 29, 2000, and on October 13, 2000, all four cases were consolidated by Consent Order. The consolidated plaintiffs moved for summary judgment on October 20, 2000 (“Plaintiffs’ Motion”) (the Reaper plaintiffs joined in the Memorandum submitted by the other plaintiffs on November 9, 2000), and filed a motion to further supplement (sic) the record contemporaneously. Defendants cross-moved for summary judgment on December 1, 2000 (“Defendants’ Motion”). Plaintiffs then filed a reply brief on December 21, 2000 (“Plaintiffs’ Reply”), and at the request of the court, the parties filed a document entitled “Stipulated to Excerpts from Administrative Record” (“Record”) on January 3, 2000. After prompting by this court, defendants filed a summary judgment memorandum errata on February 7, 2000. In essence, plaintiffs in all four cases contend that certain MFMP regulations regarding landing limits violate various provisions of the United States Code. This matter has been referred to me for preliminary review, findings, and recommended disposition. 28 U.S.C. § 636(b)(1)(B); Local Rule of Court 32(c). A hearing was held on February 21, 2001. After examining the memoranda submitted, listening to the arguments of counsel and conducting my own independent research, I recommend that plaintiffs’ motion for summary judgment be granted as to Counts One, Three and Four of the Hall Complaint; Counts One, Three and Four of the Lund’s Fisheries Complaint; and Counts One, Three and Four of the McCann Complaint. I conversely recommend that the court deny plaintiffs’ motion for summary judgment as to all other Counts in all four Complaints. I also recommend that defendants’ motion for summary judgment be granted as to all Counts of the Reaper complaint; Counts Two, Five and Six of the Hall Complaint; Counts Two, Five and Six of the Lund’s Fisheries Complaint; and Counts Two, Five and Six of the McCann Complaint. Finally, I recommend that the regulations 50 C.F.R. § 648.94(b)(2)(iii) and 50 C.F.R. § 648.94(b)(2)(v) be set aside pending further proceedings based on the regulations’ failure to comport with National Standard Two of the Magnuson Stevens Act. Alternatively, I recommend that the court remand the regulations to the Secretary of Commerce and require that the Secretary or his designees provide evidence that the regulations comport with National Standard Five of the Magnuson-Stevens Act. Factual Background, The monkfish, or Lophius americanus (also called goosefish or anglerfish, and sometimes culinarily derided as “the poor man’s lobster”), is the essential subject of this action. See Record, 2365. The monk-fish is ubiquitous in the Northwest Atlantic Ocean and is also found from the Gulf of St. Lawrence south to Cape Hatteras, North Carolina. It is known to inhabit waters ranging from the tide-line to depths of 840 meters and is comfortable in a wide range of water temperatures. The adult animal tends to reside on the ocean floor, hovering over a range of substrate types including hard sand, gravel, broken shell and soft mud. See Record, 7316. In years past, monkfish were landed as incidental “bycatch by trawlers in the groundfish and scallop industry.” Defendants’ Motion, P. 3. More recently, however, as the market for monkfish has increased, monkfish have been targeted directly by fishing vessels, and the stocks as well as the average size and weight of the monkfish have diminished substantially. Record, 7318. On September 30, 1997, the monkfish fishery was determined to be overfished on the basis of inadequate stock level, prompting a number of remedial measures, including the ones at issue in this case, undertaken pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976. Record, 7251; see 16 U.S.C. §§ 1801 et seq. a. The Reaper Complaint The Reaper plaintiffs are fishers who use sink gillnets, fixed gear nets that lie on the ocean bottom for a time before they are hauled aboard a ship. They possess limited access permits to engage in multis-pecies and monkfish fishing in the Atlantic Ocean. The MFMP governs the distribution of these permits and any vessel applying to engage in monkfish fishing must meet the criteria set forth in the MFMP. Plaintiffs contend that they qualify for a Category A permit as defined by 50 C.F.R. § 648.4 (1999). The MFMP, as set forth in 50 C.F.R. § 648.94(b)(2)(iii) (1999), authorizes Category A vessels that use trawl gear to land up to 1,500 pounds tail weight per day at sea. Category A vessels that do not use trawl gear, however, may only land and possess up to 300 pounds of tail weight of monkfish per day at sea. See 50 C.F.R. § 648.94(b)(2)(v) (1999). Because plaintiffs do not use trawl gear, the MFMP restricts them from landing or possessing more than 300 pounds of tail weight of monkfish per day at sea. In Count One of their complaint, the Reaper plaintiffs allege that 50 C.F.R. § 648.94 violates 16 U.S.C. § 1851(a)(4), which provides: Conservation and management measures shall not discriminate between residents of different states. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fisherman; (B) reasonably calculated to promote conservation; and (C) carried out in such a manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. Plaintiffs assert that defendants have violated this section by distinguishing between Category A permit holders who employ trawling gear and those that use other types of gear. In addition, plaintiffs opine that 50 C.F.R. § 648.94 violates 5 U.S.C. § 706(2)(A) and (C). In Count Two, plaintiffs state that 50 C.F.R. § 648.94 (1999) also violates 16 U.S.C. § 1851(a)(6), which provides: “Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources and catches.” Again, plaintiffs maintain that defendants have violated this section by distinguishing between Category A permit holders who trawl fish and those that fish with gillnet gear. In Count Three, plaintiffs allege that the defendants did not comply with 5 U.S.C. § 604(a)(5), which requires the following: (a) When an agency promulgates a final rule under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue law of the United States as described in section 608(a), the agency shall prepare a final regulatory flexibility analysis. Each final regulatory flexibility analysis shall contain— (5) a description of steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. Plaintiffs ask this court to declare 50 C.F.R. § 648.94 invalid and grant any additional relief that this court considers just and appropriate. b. The Hall Complaint The Hall plaintiffs are owners of fishing vessels: plaintiff Hall, a Block Island, Rhode Island resident, owns and operates the F/V Nora’s Haul; plaintiff Block Island Lobster Company, Inc., a Rhode Island corporation, is the owner and operator of the F/V Mad Monk; plaintiff Canyon Industries, Inc., a Massachusetts corporation, is the owner and operator of the F/V Canyon Explorer. All three plaintiffs fish for monkfish off the coast of New England and the Mid Atlantic States and hold limited access permits for their piscatory activities. Like the Reaper plaintiffs, the Hall plaintiffs use sink gillnets to fish for monkfish. In Count One, the Hall plaintiffs allege that the MFMP regulations violate 16 U.S.C. § 1851(a)(2), which states: “Conservation and management measures shall be based upon the best scientific information available.” According to plaintiffs, the defendants’ “designees ignored their own conclusions and fishermen’s logbook information that demonstrated that the challenged gillnet gear restrictions will not have the stated monkfish conservation effect.” Amended Complaint, ¶ 51. Count Two is precisely the same as the Reaper plaintiffs’ Count One above. In Count Three, the Hall plaintiffs claim that the regulations implementing the MFMP violate 16 U.S.C. § 1851(a)(5), which states: “Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.” According to plaintiffs, the regulations implementing the MFMP “operate solely to allocate the ability to fish for monkfish based on gear type, and the economic benefits to be accrued therefrom, to fishermen not affected by the challenged gear restrictions.” Amended Complaint, ¶ 57. In Count Four, the Hall plaintiffs assert that the defendants abused their discretion and abdicated their statutory obligations under 5 U.S.C. § 706(2)(A) and (C). In Count Five, the Hall plaintiffs maintain that the defendants, through their designees, deprived plaintiffs of property without due process of law by failing to review the gear restriction challenged in this lawsuit. According to the plaintiffs, this same omission violated the Administrative Procedures Act. In Count Six, the Hall plaintiffs allege that the defendants violated 5 U.S.C. § 603(c), which requires the defendants and his designees to complete an initial regulatory flexibility analysis describing any significant alternatives to the proposed rule which “accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.” Plaintiffs contend that the defendants failed both to conduct the initial regulatory flexibility analysis and to solicit public comments regarding the challenged gear restriction. The Hall plaintiffs ask this court to: (1) declare that the defendants acted arbitrarily and capriciously when they and their designees implemented regulations concerning the gillnet monkfish trip limit, days at sea limit, gear restriction, and trip limits; (2) set the gillnet monkfish trip limit aside and make the trip limit the same for all gear types; (3) declare the regulations implementing the MFMP in violation of the Regulatory Flexibility Act and suspend these restrictions as they relate to small entities; (4) order the defendants to conduct a full Regulatory Flexibility Analysis; (5) award plaintiffs their costs and attorneys’ fees; (6) enter a preliminary injunction preventing the defendants from enforcing a separate gillnet trip limit pending hearing on the merits; (7) schedule a hearing on the merits; and (8) award such other relief as is just and proper. c. The Lund’s Fisheries Complaint The Lund’s Fisheries plaintiffs, all New Jersey residents, are “owners of fishing vessels who participate in the monkfish fishery ... and processors who purchase and sell fish from those vessels.” Complaint, ¶ 1. They, too, are sink gillnet fishers and hold or have applied for limited access permits to fish for monkfish and other species off of the New Jersey and Mid-Atlantic coasts. Count I of this complaint alleges that the MFMP regulations violate 16 U.S.C. § 1851(a)(2) in that they “fail to use the best scientific information available because, among other things, the Secretary’s designees ignored their own conclusions and fishermen’s logbook information that demonstrated that the challenged gillnet gear restrictions will not have the stated monkfish conservation effect, and ignore historical (sic) development of the fishery.” Complaint, ¶¶ 48-54. Count II asserts a violation of 16 U.S.C. § 1851(a)(4) because the “MFMP unfairly singles out Plaintiffs, and others who harvest monkfish using gillnets, for a virtual ban on monkfish fishing by gillnets and such measure lacks any rational or demonstrable conservation basis. Further, because the southern fisheries for monkfish developed later, local fishermen do not qualify, and fishermen from other regions, who have not previously fished in these areas, are allocated greater rights.” Complaint, ¶¶ 55-57. In Count III, the Lund’s Fisheries plaintiffs decry a violation of 16 U.S.C. § 1851(a)(5) because the MFMP regulations “operate solely to allocate the ability to fish for monkfish based on gear type or geographic region, and the economic benefits to be accrued therefrom, to fishermen not affected by the challenged gear restriction.” Complaint, ¶¶ 58-60. Count IV is a blanket allegation that the defendants “abdicated [their] statutory obligation to review in substance the NEFMC’s [New England Fishery Management Council’s] and MAFMC’s [Mid Atlantic Fishery Management Council’s] recommendation for the MFMP” thereby violating 5 U.S.C. § 706(2). Complaint, ¶¶ 61-63. Count V is a due process claim pursuant to the 14th Amendment to the United States Constitution, alleging a deprivation of property. Complaint, ¶¶ 64-66. In Count VI, the Lund’s Fisheries plaintiffs state that they are “small entities” as defined by the Regulatory Flexibility Act (“RFA”), codified at 5 U.S.C. § 611(a)(1), and that the RFA “require[s] the Secretary and his designees to complete an initial regulatory flexibility analysis (IRFA) which describes any significant alternatives to the proposed rule which ‘accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.’ ” Complaint, ¶¶ 68, 70 (citing 5 U.S.C. § 603(c)). Because defendants did not complete this IRFA sufficiently or solicit sufficient public comment about it, plaintiffs allege that defendants failed to conduct an adequate final regulatory flexibility analysis “including an analysis of potential alternatives developed through the IRFA process.” Complaint, ¶ 71 (citing 5 U.S.C. § 604). The Lund’s Fisheries plaintiffs request an order from this court declaring “that the control dates, qualification periods, qualification criteria, gillnet monkfish trip limit, days at sea limit, gear restrictions and trip limits ... [are] arbitrary, capricious, [and] an abuse of discretion.” Complaint, Prayers for Relief, ¶ 1. They further ask this court to do the following: set the gillnet monkfish trip limit aside and make the trip limit the same for all gear types; suspend the limited access provisions of the MFMP until the control/qualification dates have been extended to take into account regional distinctions; declare that the MFMP regulations violate the RFA; order the defendants to undertake an IRFA; award plaintiffs their costs and attorneys’ fees; enter a preliminary injunction preventing the defendants from enforcing the limited access and separate gillnet trip limit pending a hearing on the merits; schedule a hearing on the merits; and award such other relief as the court deems just and proper. Id. d. The McCann Complaint Plaintiff William P. McCann is a resident of Wareham, MA, and the owner and operator of the F/V Melissa Sue. Complaint, ¶ 25. McCann holds a limited access monkfish permit and engages in sink gillnet fishing for monkfish. Id. Plaintiff Captain W.P. McCann, Inc. is a Massachusetts corporation and owns and operates the F/V Pilgrim, a fishing vessel engaged in monkfish fishing. Id. The six counts of the McCann complaint are identical to the six counts of the Lund’s Fisheries complaint. e. Background and Statutory Framework of the Magnuson-Stevens Act Congress enacted the Magnuson Act (later renamed the Magnuson Stevens Act) in 1976 “intendfing] to respond to overfishing and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species.” Parravano v. Babbitt, 837 F.Supp. 1034, 1040 (N.D.Cal.1993), aff'd, 70 F.3d 539 (9th Cir.1995), cert. denied, 518 U.S. 1016, 116 S.Ct. 2546, 135 L.Ed.2d 1066 (1996) (citing 16 U.S.C. § 1801(a)); Lovgren v. Byrne, 787 F.2d 857, 861 (3d Cir.1986) (Magnuson Stevens Act “was enacted at a time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish.”). In order to render more efficient the management process provided for in the Magnuson Stevens Act, Congress also “created eight regional fishery management councils composed of state fishery managers, the regional NMFS [National Marine Fisheries Service] fisheries administrator, and qualified fishing industry, academic, and environmental representatives.” A.M.L. International, Inc. v. Daley, 107 F.Supp.2d 90, 93 (D.Mass.2000) (citing 16 U.S.C. § 1852(a)(1)). Each council controls the fisheries seaward of the states comprising it, and the primary responsibility of the councils is the development of fishery management plans that establish the rules for each fishery and meet national conservation and management standards established in the Mag-nuson Stevens Act. Id. (citing 16 U.S.C. § 1852(h)). The rationale for the changes to the Magnuson Stevens Act that occurred in 1996 are best summarized by the following language from the A.M.L. case: In 1996, Congress ushered in a new era in fisheries management by making significant revision to the Magnuson Stevens Act through the Sustainable Fisheries Act. See Pub.L. No. 104-297, 110 Stat. 3559 (1996). The Magnuson Stevens Act was revised because, “it was very clear that major changes were needed. Despite numerous efforts to improve the law over the past two decades, the sad reality [was] that the act did not prevent the current crisis in ... groundfish stocks, a crisis for the conservation of both fish stocks and fishing families.” See 142 Cong. Rec. H11418, 11439 (September 27, 1996) (statement of Rep. Studds). Indeed, Congress recognized that revisions to the Magnuson Stevens act were critical in order to “put our fisheries back onto a sustainable path and literally avert an environmental catastrophe on a national level.... We are precariously close to fisheries failures in many of our most commercially important fish stocks, and it is imperative that we take immediate action if we are to avert disasters.” See 142 Cong. Rec. S10794, 10811-12 (September 18,1996) (statement of Sen. Kerry). Id. at 93-94. Under the modified Mag-nuson Stevens Act, if the Secretary of Commerce determines that a fishery is overfished, the Secretary must notify the appropriate fishery council, and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish. See 16 U.S.C. § 1854(e)(2); 50 C.F.R. § 600.310(e)(2). Once the council has been notified, it has one year to prepare a fishery management plan that ends overfishing and rebuilds the stocks. See 16 U.S.C. § 1854(e)(3); 50 C.F.R. § 600.310(e)(3). When a council submits its fishery management plan to the Secretary of Commerce, the Secretary (often acting through NMFS) must review the plan immediately to ensure its compliance with the ten “National Standards” and any other relevant provisions of the Magnuson Stevens Act, as well as any other pertinent laws. See 16 U.S.C. §§ 1851(a)(l-10), 1854(a)(1); 50 C.F.R. §§ 600.310-600.355. Furthermore, the Secretary must also accept public comment on the plan for sixty days. See 16 U.S.C. § 1854(a)(1)(B). Lastly, the Secretary must approve, disapprove or partially approve the plan within thirty days of the end of the public comment period. See 16 U.S.C. § 1854(a)(3). “The Magnuson Stevens Act’s main thrust is to conserve the fisheries as a continuing resource through a mixed federal-state regime; the FMPs are proposed by state Councils but the final regulations are promulgated by the Secretary through the Fisheries Service.” Massachusetts v. Daley, 170 F.3d 23, 27-28 (1st Cir.1999). f. Administrative Background of the MFMP After having determined that the monk-fish had been overfished and after NMFS concluded that the monkfish “resource is at least heavily exploited and that the possibility of over-exploitation should not be ruled out,” Record, 7314, the Secretary of Commerce delegated authority to the New England Fishery Management Council and the Mid Atlantic Fishery Council (“the Councils”) to develop a plan to ameliorate the plight of the dwindling monkfish stocks. Defendants’ Motion, P. 4. Because of the monkfish’s wide geographic range and in order to account for the variation in the monkfish’s biological characteristics from region to region, the Councils created two management areas, the Northern Fishery Management Area (“NMFA”) and the Southern Fishery Management Area (“SMFA”). Id. In creating and adopting the MFMP, the Councils decided upon four management goals: (1) to end and prevent overfishing, by rebuilding and maintaining a healthy spawning stock; (2) to optimize yield and maximize economic benefits to the various fishing sectors; (3) to prevent increased fishing on immature fish; and (4) to allow the traditional incidental catch of monkfish to occur. Record, 7244. Ostensibly in furtherance of one or more of these objectives, the final rule prescribed landing limits for vessels holding limited access monkfish permits, which went into effect on May 1, 2000. These limitations, as stated earlier, provide that Category A and C vessels using trawl gear may land up to 1,500 lbs. of monkfish tail-weight per day at sea, while vessels using any gear other than trawl or “mobile” gear may land up to 300 lbs. of monkfish tail-weight per day at sea. See 50 C.F.R. § 648.94(b)(2)(iii), (v). The legality of these limitations is the crux of the dispute. Issues 1. What is the standard of review that applies to a motion for summary judgment? 2. What is the standard of review that applies to the MFMP regulations, as prescribed by 16 U.S.C. § 1855(f)(1)(B) and 5 U.S.C. § 706(2)(A), (B), (C), and (D)? 3. Do the regulations comply with National Standard Two of the Magnuson Stevens Act, pursuant to 16 U.S.C. § 1851(a)(2), which requires that the regulations be based upon the best scientific information available? 4. Do the regulations comply with National Standard Four of the Magnuson Stevens Act, pursuant to 16 U.S.C. § 1851(a)(4), which requires that any allocation or assignment of fishing privileges among various United States fishermen be fair and equitable, reasonably calculated to promote conservation, and carried out in such a manner that no particular individual corporation or other entity acquires an excessive share of such privileges? 5. Do the regulations comply with National Standard Five of the Magnuson Stevens Act, pursuant to 16 U.S.C. § 1851(a)(5), which requires that the regulations shall, where practicable, consider efficiency in the utilization of fishery resources, except that no regulation shall have economic allocation as its sole purpose? 6. Has the Secretary of Commerce conducted a substantive review of the Councils’ recommendation, as required by 16 U.S.C. § 1854(a)(1)(A)? 7. Do the regulations violate the RFA, pursuant to 5 U.S.C. §§ 603-604, which requires the defendants to complete an initial regulatory flexibility analysis describing any significant alternatives to the proposed rule and why those alternatives were discarded? 8. If the regulations violate any applicable law, what should be the remedy? Analysis a. Summary Judgment Standard The parties have cross-moved for summary judgment. Federal Rule of Civil Procedure 56(c) states that a party shall be entitled to a summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When determining a motion for summary judgment, I must review the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party’s favor. Mesnick v. General Electric Co., 950 F.2d 816, 820 (1st Cir.1991) cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993); Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir.1992). Summary judgment is a procedure that involves shifting burdens between the moving and the nonmoving parties. Initially, the burden requires the moving party to aver “an absence of evidence to support the nonmoving party’s ease.” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party meets this burden, the onus falls upon the nonmoving party, who must oppose the motion by presenting facts that show that there is a “genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(e)); see Goldman, 985 F.2d at 1116; Lawrence, 980 F.2d at 68; Garside, 895 F.2d at 48 (“[A] ‘genuine issue’ exists if there is ‘sufficient evidence supporting this claimed factual dispute’ to require a choice between ‘the parties’ differing versions of the truth at trial.’ ” (citing Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976))). To oppose the motion successfully, the nonmoving party “may not rest upon mere allegation or denials of his pleading.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Moreover, the evidence presented by the nonmoving party “ ‘cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.’” Mesnick, 950 F.2d at 822 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)). Indeed, “[e]ven in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). In order to defeat a properly supported motion for summary judgment, the nonmoving party must establish a trial-worthy issue by presenting “enough competent evidence to enable a finding favorable to the nonmoving party.” Goldman, 985 F.2d at 1116 (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). b. Standard of Review Applicable to the MFMP Regulation as Prescribed by the Magnuson-Stevens Act and the APA 16 U.S.C. § 1855(f)(1) states the following: Regulations promulgated by the Secretary under this chapter ... shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of Title 5, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable; except that ... (B) the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of such Title. As stated earlier, 5 U.S.C. § 706(2)(A)-(D) provides that a court may hold unlawful and set aside agency action, findings, and conclusions if they are: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or (D) without observance of procedure required by law. The court must defer to the interpretation of a statute by the agency charged with administering it, and the standard under 5 U.S.C. § 706(2) presumes the agency action to be valid. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Southern Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 782 (9th Cir.1985). Although the court’s inquiry is to be searching and careful, the ultimate standard of review is a narrow one. See Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The role of the reviewing court is to “ ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.’ ” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (citing Overton Park, 401 U.S. at 416, 91 S.Ct. 814). “A reviewing court may decide only whether [the Secretary’s] discretion was exercised rationally and consistently with the standards set by Congress ... and may not substitute its own judgment as to values and priorities for that of the Secretary.” Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir.1977). “With respect to a court’s review of a specific regulation adopted by an agency pursuant to its delegated authority, [the] regulation will be found to be arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Connecticut v. Daley, 53 F.Supp.2d 147, 157 (D.Conn.1999) (citing Southeastern Fisheries Ass’n, Inc. v. Mosbacher, 773 F.Supp. 435, 439 (D.D.C.1991) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443)). Where an agency action is taken upon an administrative record, it must be reviewed based only on that record, subject to limited exceptions. Massachusetts v. Daley, 170 F.3d at 27 n. 4 (citing Sierra Club v. Marsh, 976 F.2d 763, 772-73 (1st Cir.1992)). Courts reviewing the Secretary of Commerce’s actions in the context of the Magnuson Stevens Act have acknowledged that “the Secretary has broad discretion in promulgating regulations to implement the [FMP].” See Southeastern Fisheries, 773 F.Supp. at 439. The Secretary’s assessment of which fishery conservation and management measures would be in the nation’s best interest is “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” National Fisheries Institute, Inc. v. Mosbacher, 732 F.Supp. 210, 223 (D.D.C.1990). Therefore, “[f]or a court to set aside the Secretary’s action, it ‘must find that the administrative record is so devoid of justification for the Secretary’s decision that the decision is necessarily arbitrary and capricious.’ ” Connecticut v. Daley, 53 F.Supp.2d at 158 (citing J.H. Miles and Co., Inc. v. Brown, 910 F.Supp. 1138, 1146 (E.D.Va.1995)). “When a regulation is not adequately supported, the normal practice is to set it aside pending further proceedings,” though the court may alternatively order a remand to the agency for further explanation while leaving the regulation in force. Massachusetts v. Daley, 170 F.3d at 32 (citing Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). c. National Standard Two 16 U.S.C. § 1851(a)(2) provides the following: Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this subchapter shall be consistent with the following national standards for fishery conservation and management: (2) Conservation and management measures shall be based upon the best scientific information available. 50 C.F.R. § 600.315(b)(1) illustrates various types of data that might constitute the “best scientific information available:” Scientific information includes, but is not limited to, information of a biological, ecological, economic, or social nature. Successful fishery management depends, in part, on the timely availability, quality, and quantity of scientific information, as well as on the thorough analysis of this information, and the extent to which the information is applied. If there are conflicting facts or opinions relevant to a particular point, a Council may choose among them, but should justify the choice. Plaintiffs contend that defendants or their designees “did not scientifically analyze the potential conservation effect of the 300 lb trip landing allocation,” and that the “Secretary in this instance has failed to present any scientific analysis to support the gear landing allocation.... [T]here is no evidence to support a trip allocation between mobile gear and fixed gear types.” Plaintiffs’ Motion, PP. 8-9. Furthermore, plaintiffs state that the rationale for the different allocations in the MFMP was “nothing more than a compromise. The Monkfish Committee has stated that prior to the implementation of the rule, there was no reasonable rationale for one gear type to be allocated a different amount than another gear type.” Id. at P. 9. Defendants argue that plaintiffs “do not accurately describe the effect of that regulation [50 C.F.R. § 600.315(b)(1)], incorrectly portraying it as a requirement that NMFS conduct a new scientific study to support the conclusions in the FMP.” Defendants’ Motion, P. 15. Instead, defendants insist that: Even a cursory review of the MFMP flatly contradicts any claim that the Councils evaluated (sic) the best scientific information available. Among much other information, the Plan analyzed: — monkfish landings and revenues from 1964 to 1997. — landings of monkfish fivers from 1982 to 1997. — average annual landings of monk-fish, 1992-1996. — monkfish landings by vessels using different types of gear. — permit, revenue and fishing effort information of various kinds. — monkfish mortality and maturity data. Id. at P. 16 (citations omitted). Defendants also cite extensively from the Plan’s language relying upon a recent Stock Assessment Workshop (“SAW”) analysis, which aims to “evaluate] the status of a fishery [here, monkfish]” by examining “a combination of data generated by the fishery and survey data from trawl surveys conducted at sea by NMFS.” Id. at PP. 16-17. Based on “the above-described sort of scientific information,” and their understanding that “nothing in the Magnu-son Act requires NMFS to scientifically analyze (sic) the effect of conservation measures,” defendants argue that the rationale for different allocations for fixed and mobile gear is founded upon the best scientific information available. Id. Despite the purported ocean of scientific information supporting the different gear allocations, there is no evidence offered by the defendants (or otherwise present in the stipulated to administrative record or in the errata submitted by defendants) that provides any scientific basis for the regulation. I take each of the defendants’ assertions in turn. First, defendants point to the data at PP. 7228 and 7229 of the Record. Record, 7228 is a table of monk-fish landings and revenues from 1964 to 1997, fisting among other things the total five weight (in millions of pounds) caught and price per pound, by five weight and tail weight, of the monkfish throughout the years. The data shows a steady increase both in monkfish landings (from 0.1 million pounds in 1964 to 57.5 million pounds in 1997) and in the price of monkfish per pound (from $0.03 per pound tail weight in 1964 to $1.83 per pound tail weight in 1996) Record, 7229 presents a chart documenting the landings of monkfish livers and the revenues (in toto and per pound) therefrom derived from 1982 through 1995. It, too, indicates a steady increase in the market for monkfish liver and the concurrent increase in price during this period. While this information might edify the reader’s curiosity regarding the landing of monkfish (and their livers) over an extended period and the corresponding revenues, it does little if anything to explain the reasons for a regulation that limits gillnet fishers to a monk-fish catch of 300 lbs. per day while permitting trawler gear fishers to catch 1,500 lbs. of monkfish per day. This court cannot discern or infer, nor have defendants argued, any reason that the gillnet fishers, because monkfish as a species and monk-fish liver has increased in popularity and cost, should now be prevented from catching anymore than 300 lbs. of monkfish per day, while their trawling brethren are not so limited. It is certainly beyond dispute that a landing limitation for all types of fishing gear, where previously there existed none, would ameliorate stock levels and depletion statistics. Plaintiffs readily concede this point. Plaintiffs’ Motion, P. 3 (“To be clear, the plaintiffs do not dispute the need for fishing conservation measures to ensure the viability of monkfish, but they do want uniformity and fairness implemented in any such regulation, including trip limits.”). As plaintiffs themselves state, the crux of this claim rests in the absence of a scientific basis for the trip limit differential by gear type, and no information contained at Record, 7228 or 7229 fills this void. Second, defendants state that the data contained at Record, 7290, indicating average landings of monkfish from 1992-1996 supports the gear allocation differential. Defendants’ Motion, P. 16. The information at Record, 7290 presents the following chart: Table 9. Average annual landings of monkfish, 1992-1996. Source: NMFS State Pounds, thousands Revenue ($1,000) Connecticut 1,083 501 Delaware 24 11 Maine 4,081 2,179 Maryland 64 56 Massachusetts 12,358 6,832 New Hampshire 295 224 New Jersey 1,798 1,038 New York 603 299 North Carolina 152 114 Rhode Island 3,571 2,114 Virginia 979 383 Grand Total 24,946 13,752 This document illustrates the breakdown of the monkfish fishing business by state, averaged between the years 1992-1996. There is no question, nor do the parties dispute, that the monkfish market is a burgeoning one, and it is interesting that plaintiffs in this case reside and do their commercial fishing in states with a considerable monkfish fishery. But these statistics do nothing to justify the day trip differential at issue here: there is no reason provided, nor is there reason to assume, that a 300 lb. per day cap for gillnets and a 1,500 lb. per day cap for trawlers derives its scientific basis from an itemized breakdown, state by state, of the monkfish fishery between the years 1992-1996. There is no correlation at all between the data and the differential: why not, for example, a 300 lb. limit for all types of gear, or an across-the-board 1,500 lb. limit? Both of these alternatives would also assist in restocking dwindling or threatened monkfish supplies. No rational, scientifically based explanation for the differential is offered by Record, 7290. Third, defendants cite to Record, 7320 and 7321 for the proposition that data describing “monkfish landings by vessels using different gear types” adequately explains the day at sea gear trip differential. Defendants’ Motion, P. 16. Three charts found at these pages offer the following information: Table 13. Monkfish landings by vessels using otter trawl gear, 1991-1996. Source: NMFS Landings (mt) State 1991 1992 1993 1994 1995 1996 3,009 Maine Mo h rf*-to to 05 l — l Cl to JO o to CO J-» CO Cl CO 69 N. Hampshire to o ^ O -3 o Cl 3 Cl O 2,265 Massachusetts Cl ^ en ¿*3 Ci 05 to ^ JO H to ÜI M 00 Cl CO 1,696 Rhode Island tO Oí to J-* O -3 l — l to to JO CO Cl O to Ci OO CO 1,592 Connecticut OO co co O O 1^. S to CO OO H CO 00 O 239 New York Ci Oí *3 Cl to l£X 00 o to 00 to H to to 337 New Jersey h-1 cn Ci M U_l to CO Cl M to to to to Delaware Maryland H 4^-H to Virginia to Cl Cl ^ CO to I — i *3 00 North Carolina CO Cl OO j-i 00 Cl Cl O Table 14. Monkfish landings by vessels using scallop dredge gear, 1991-1996. Source: NMFS Landings (mt) State 1991 1992 1993 1994 1995 1996 Mame 4^ 00 o 03 oo £i N. Hampshire Massachusetts Oí LO 03 CO to O OO CO 00 ^ rf*. oo to -3 ^ t-CO Rhode Island CO CO 03 C-to H 03 to Cl Cl to CO 03 Connecticut lO Oí tH to 03 to New York CO New Jersey Cl OO to 4^ to Cl o t-03 00 “3 to -3 lO lO Delaware Maryland t-h Virginia Ci CO to 4^ Oí 00 CO Oí -3 to C3 to 00 to 00 ^ North Carolina to ^ oo Table 15. Monkfish landings by vessels using gillnet gear, 1991-1996. Source: NMFS Landings (mt) State 1991 1992 1993 1994 1995 1996 Mame 5D H H 05 -q 00 LO cn M CO Cr-M N. Hampshire (O (N ^ CO -q cd CM 00 4^ Ül CCO 05 Massachusetts CO CO O) h-1 co CD H 00 CO CR ho CO CO O Rhode Island ÍO «O tr* —q 4^*-05 05 *q CO Ül CD O to Connecticut 04 ÍD H New York CO N CO H O t — 1 H-1 CO —q M 4^ ! — 1 to CO New Jersey O CO ^ CO 05 05 4^ to CD M CD J — 1 4^ -q —q 4^ Delaware Maryland CO io rH 05 ~q Virginia co h* North Carolina -q or cn 4^ CO The figures reported in these charts indicate consistently that otter trawling gear accounts for a greater percentage, over the years reported, of the total monkfish catch than scallop dredge gear and sink gillnet gear respectively. The conclusion that this data supports the disputed regulations from a scientific perspective does not follow logically, however. The simple fact that fishers using otter trawling gear catch more monkfish than fishers using other gear provides no scientific reason to limit gillnetters to 300 lbs. per day while allowing trawlers 1,500 lbs. per day (though perhaps it does provide an economic reason). Fourth, defendants claim that the “permit revenue and fishing information of various kinds” contained at Record, 7371, 7372, and 7382 offers strong scientific support for the regulation. Two of the charts (at 7371 and 7372) tabulate the number of fishing vessels that held various kinds of fishing permits (including multispecies, sea scallop, summer flounder, lobster, squid-mackerel butterfish, scup, black sea bass, tuna, and combinations thereof) in the Northeast region in 1997. The connection to be drawn with the gear allocation regulations is less than pellucid. Nothing in these charts supports scientifically the regulations at issue here. As for the chart at Record, 7382, this tabulates the total revenue and percent of monkfish landings by gear type from 1994-1997. Over the four years surveyed, fish bottom trawlers accounted for 52.66% (1994), 54.79% (1995), 54.81% (1996), and 53.09% (1997) of monk-fish landings. Scallop dredges accounted for 25.84% (1994), 19.89% (1995), 18.15% (1996), and 20.52% (1997) of monkfish landings. Gillnets accounted for 20.39% (1994), 23.48% (1995), 23.11% (1996), and 21.39% (1997) of monkfish landings. All other gear types (including surf clam dredges, fish pots, other types of bottom trawlers, midwater trawlers, coastal gillnets, other handlines, longlines, line trawlers, floating traps, inshore lobster pots, offshore lobster pots, pair trawlers, shrimp trawlers, other beam trawlers, shrimp beam trawlers, Scottish seine, Danish seine, and all other types) comprise, on the whole, less than 5% of the monkfish landings. This chart comports roughly with the information conveyed by the other tables listed above: we see that trawling gear accounts for roughly two to three times as much monk-fish catch as scallop dredge gear and gill-net gear respectively. Again, however, it is not at all apparent how this data offers a scientific basis for the landing differential in the regulations at issue. If conservation and repletion of the monkfish stock is the aim here, then how does the gear trip differential promote that goal? Next, defendants point to “monkfish mortality and maturity data” contained in Record, 273, 275, 277, as evidence that the best scientific information available supports the gear differential. Record, 273 states four “Recommendations,” none of which make any mention of the differences between gear types or the necessity for different gear trip limits. Also cited are various research texts or articles studying the habits of the monkfish. Record, 275 is a table detailing the number of trips landing monkfish from 1987 to 1991, and the percent of weight landed that comprised monkfish. Record, 277 is an arcane chart that appears to tabulate information from 1964-1991. The substance of this information is not disclosed, nor do defendants explain it anywhere in their papers, including the errata. Plaintiffs emphasize the similarity of the case at bar to Parravano v. Babbitt, 837 F.Supp. 1034 (N.D.Cal.1993) and Massachusetts v. Daley, 170 F.3d 23 (1st Cir.1999), both of which dealt with various regulations issued by the Secretary of Commerce that were ultimately held to violate National Standard Two. In Parra-vano, the plaintiffs (commercial fishermen and fishing associations) contended that the Secretary of Commerce “improperly reduced, by way of an emergency regulation, the Klamath chinook ocean harvest rate for the fall fishing season,” contravening the recommendation of the Pacific Fishery Management Council (“PFMC”). Parravano, 837 F.Supp. at 1039. As here, actions taken by the Secretary of Commerce pursuant to the Magnuson Stevens Act were subject to limited judicial review, in that a court could only invalidate a challenged regulation pursuant to the four criteria of 5 U.S.C. § 706(2). Id. at 1042. Plaintiffs asserted that the Secretary’s deviations from the PFMC’s recommendations “find no support in the Administrative Record.... [T]he Secretary lacks any rational basis for finding that his emergency regulation comports with National Standard Two.” Id. at 1046. The court agreed with the plaintiffs, stating: [T]he particular manner by which the Secretary chooses to address the problem must have some support in the Administrative Record, such that the Secretary may reasonably conclude that his chosen method is consistent with Mag-nuson Act National Standards, including National Standard Two. We conclude that while there may well be adequate support for the specific approach taken by the Secretary, it is not apparent in the current record which provides only conclusory assertions.... For example, the Secretary, through his representatives, has stated that the higher 38,000 escapement floor represented his “best estimate” of the way to achieve his objectives while minimizing social and economic impacts. The Secretary, however, has not pointed to anything in the record which specifically explains why this is his “best estimate” or how it is based on the “best scientific information available.” Id. (citations omitted). Furthermore, the Parravano court noted the following with respect to the role of political compromise in the crafting of regulations: There is nothing improper with compromise per se. Indeed, much of the Magnuson Act process is designed to facilitate compromise between various competing interests. However, the purpose of the Magnuson Act is to ensure that such compromise decisions are adequately explained and based on the best scientific evidence available- and not simply a matter of compromise. Id. at 1047 (citations omitted). Defendants argue that Parravano is inapposite because (1) the Record prepared by the Councils in this case was based upon the best scientific evidence available and supported the gear differential; (2) the Secretary in this case did not deviate from the proposal of the Councils; and (3) defendants do “not concede that the gill net trip limit was the result of a political compromise” as was conceded in Parmvano. Defendants’ Motion, P. 18. I find plaintiffs’ arguments more compelling, principally because there is no discernible, substantive scientific evidence in the Record that supports the gear differential regulations. Defendants have not evinced even one scintilla of scientific information that supports the regulations. The “rationale” defendants cite, at Record, 7274, which states that “[t]he trip limits are expected to contribute to mortality reduction and achieve the biological objectives in year two” is nothing more than a conclusory prediction. Such an assertion in no way informs its audience of the scientific foundation supporting it. There is copious evidence, despite defendants’ protestations to the contrary, that the underlying rationale for the gear limitation differential was motivated by the spirit of compromise. Defendants themselves concede that the idea of an across-the-board 300 lb. trip limit for all gear types was initially contemplated by the Councils. Defendants’ Motion, P. 13 (citing Record, 4563, 4662). Ultimately, it appears that the uniform trip limit for all gears was rejected in large part because trawling gear is responsible for catching significantly greater numbers of monkfish than is gillnet gear, and a 300 lb. uniform trip limit would, thus, affect the trawling industry much more severely than the gill-net industry. Defendants state that representatives of the gillnet industry agreed to the 300 lb. trip limit restriction as a “rational approach to [avoid] more restrictive measures later,” but a close reading of the comments discloses that while there may have been agreement about the trip limit itself, there was not necessarily agreement about the differential between gear types: See, we want 300 pounds a day, tails, 40 days-at-sea, and we’re willing to start that next year or whenever so we can stay in business. We don’t want to slaughter ‘em, catch all we can catch, set tons of net for three years and then get thrown out. It does us no good to fish. We don’t want to fish like that. It’s dangerous, it’s just not right. And the near-shore directed boats ... or more in the Mid Atlantic, we would like to see 300 pounds a day right off the bat. Kevin Wark, Record, 4839. Further complicating the issue are comments made by Chairman Barbara Stevenson at an August 30, 2000 Monkfish Committee Meeting, indicating that the only initial rationale for the gear differential lay in a geographic separation between “deep water fishery” or “offshore fishery” and “inshore fishery.” See Plaintiff’s Statement of Material Facts, ¶ 98, Exh. A, October 20, 2000. This offshore/inshore distinction was eventually discarded by the Councils, and was not made part of the final MFMP, but the gear differential remained a part of the final plan: The Chairman: Do you want me to explain it again? Mr. (Philip) Herring: Yes, please The Chairman: The construction of the current plan was set up so that the deep water fishery could occur, and part of that was this differential allocation; part of it was the running clock. And when the running clock was disapproved, the deep water fishery could no longer occur. We still had the [gear] differential, which had disadvantages which had become more obvious. So the question now is, how do we get to a situation where both the inshore and offshore fisheries can occur at approximately the same level of opportunity reduction. Mr. Herring: I understand that, but you constructed it around the disadvantage of the offshore trawl fleet in light of the disapproval of the running clock? The Chairman: Correct. Mr. Herring: But I heard comments from other people who feel that their (sic) disadvantaged for different reasons because they have a lower trip limit anyway. The Chairman: Because when the Council made the tradeoff of the differential, all the gill netters said at that point, fine. You know, 300 pounds is fine. And just, that was the information that the Council went on, and that (sic) the reason that it was more for trawlers and not for normal trawler operation. It was to accommodate the deep water fishery. So when the deep water fishery could no longer occur, the rationale for the differential disappeared. There is no longer a reasonable rationale for why one group should have a different amount than the other because the whole rationale was based on the deep water fishery. Whether the Council did a good job of addressing that question, that was the question it was trying to address when it came up with the differential and the running clock. Since the running clock was disapproved, we need to both address the issue of equitable reductions in all fisheries, and to address the obvious inequities that are more obvious now.... Id. at Exh. A, P. 155-56 (emphasis supplied). The substance of these comments indicates that any justification for the gear limit differential is now without basis, even from the standpoint of compromise. These statements demonstrate that the gear differential is the result of a defunct compromise, not rooted in any analytical or scientific base. Just as in Parravano, the Secretary of Commerce has failed in “his duty to demonstrate, through concrete analysis, that he could rationally conclude that his approach would accomplish his legitimate objectives based upon the best scientific information available.” Parrava-no, 837 F.Supp. at 1047. Though “the Magnuson Act permits the Secretary’s designees to act on information that is incomplete or if there are differences in available information,” it does not condone regulations promulgated entirely for the sake of compromise not braced by any scientific evidence. J.H. Miles, 910 F.Supp. at 1152; see Southern Offshore Fishing Ass’n v. Daley, 995 F.Supp. 1411, 1433 (M.D.Fla.1998) (“Judicial review at this juncture is limited to determining whether the Secretary intelligently and knowingly decided on a rational policy, given the scientific and judgmental tools available to him.”). In Massachusetts v. Daley, the Commonwealth brought an action to review a decision of the Secretary of Commerce adopting a revised quota for catching scup off the east coast of the United States. Massachusetts v. Daley, 170 F.3d at 25. As in this case, the Commonwealth conceded that scup stocks were “severely depleted,” but contested a state-by-state summer fishing quota system implemented by the Secretary. Id. at 28. The evidence indicated that the data used to fashion the quota system undercounted scup that were caught closer to shore, and Massachusetts fishermen were clearly and unjustifiably disfavored by the regulation. In affirming the district court’s ruling that the quota was unlawful, the First Circuit stated: If the state-by-state quotas were shown to be necessary to achieve the main conservation goal, we would decide the case in favor of the Secretary.... The most troublesome fact for the Secretary is that very little appears, whether in the Council minutes or in the public comments or in the Secretary’s notices, to explain why the state-by-state quota is necessary at all. The state-by-state quota seems to have been adopted by the Secretary, as part of the overall summer quota, with almost no explicit explanation for its purpose by the Secretary .... Where a regulation is not adequately supported, the normal practice is to set it aside pending further proceedings. Id. at 30-32 (citing Camp v. Pitts, 411 U.S. at 143, 93 S.Ct. 1241). Defendants argue that the circumstances of Massachusetts v. Daley “contrast sharply with the case at bar, where the administrative record contains many discussions about the necessity of trip limits, and moreover ... for different limits based upon gear types.” Defendants’ Motion, P. 19. I do not agree. No information cited by the defendants demonstrates any scientific justification for the gear trip differential. Indeed, some information contained in the MFMP (admittedly without the support of accompanying migration studies) indicates that gillnet fishermen often target more mature monkfish in shallower waters “when [the monkfish] are making short, seasonal migrations, often to spawn. Larger fish are more likely to be spawning, and they may as a result be moving further than their smaller counterparts .... Gillnets generally catch larger monkfish.” Record, 3552-3553, 6862-6863. By contrast, trawlers appear to catch smaller, less mature monkfish: “Most of the trawl catches would be smaller than the proposed 14 inch size limit.... [F]ish-ermen have reported that gillnets catch larger monkfish than trawls or scallop dredges operating in the same area.” Id. Though there are no studies cited that confirm these statements, this sort of analysis would indicate that a more stringent limitation on trawling gear would assist in restocking supplies by affording immature fish a chance to reach their sexual maturity. There is a scientific study at Record, 2365,