OCEANA, INC. v. GUTIERREZ et al

Filing 51

MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on July 23, 2010. (lcesh1)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) OCEANA, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 08-318 (ESH) ) GARY F. LOCKE et al., ) ) Defendants. ) __________________________________________) MEMORANDUM OPINION Oceana, Inc. has sued Gary F. Locke, 1 in his official capacity as Secretary of the United States Department of Commerce; the National Oceanic and Atmospheric Administration ("NOAA"); and the National Marine Fisheries Service ("NMFS") 2 (collectively "the agency") for declaratory and injunctive relief related to the Secretary's approval of the methodology established to assess the amount and type of bycatch (i.e., fish that are harvested in a fishery but not sold or kept for personal use) for the thirteen federal fisheries in the Northeast region. Specifically, plaintiff contends that the standardized bycatch reporting methodology ("SBRM") developed by defendants violates the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801-1891d, because it: 1) grants Regional Administrators discretion to avoid implementing the SBRM upon a finding that there are operational constraints Pursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a party to an action in his official capacity ceases to hold office, the Court will automatically substitute that officer's successor. Accordingly, the Court substitutes Gary F. Locke for Carlos M. Gutierrez. Both NOAA and NMFS are agencies of the Department of Commerce. (Compl. ¶¶ 2324.) NOAA has supervisory responsibility for NMFS, which has been delegated the primary responsibility for managing United States marine fisheries through fishery management plans, plan amendments, and regulations implementing those plans. (Id.) 1
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that prevent its full execution; and 2) applies only to those species targeted by federal fisheries and excludes other species that are part of the bycatch. (Mot. of Pl. Oceana for Summ. J. ["Pl.'s Mot."] at 18.) Plaintiff further alleges that the agency's decision to approve the SBRM was arbitrary and capricious because the agency failed to adequately respond to scientific evidence and it ignored its own findings regarding issues of observer bias and precision. (Id. at 25.) Finally, plaintiff contends that the agency's decision to conduct an Environmental Assessment ("EA") as to the SBRM, which resulted in the issuance of a Finding of No Significant Impact ("FONSI"), rather than an Environmental Impact Statement ("EIS"), violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h. (Id. at 34.) Accordingly, plaintiff asks the Court to 1) declare the SBRM and the EA/FONSI in violation of the MSA, NEPA, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706; 2) remand the SBRM and the EA/FONSI to NMFS to develop a new SBRM and NEPA analysis that complies with the Court's order; and 3) award fees, expenses, and costs. Before the Court are the parties' cross-motions for summary judgment. Having considered the voluminous administrative record, the parties' briefs, and the applicable case law, the Court will deny plaintiff's motion for summary judgment and grant defendants' motion for summary judgment.

BACKGROUND I. STATUTORY FRAMEWORK A. The Magnuson-Stevens Fishery Conservation and Management Act

The MSA, passed in 1976, "provides the statutory framework for the protection and management of the nation's marine fishery resources." Conservation Law Found. v. Evans, 209

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F. Supp. 2d 1, 5 (D.D.C. 2001) ("CLF"); see also 16 U.S.C. § 1801(b). The Act created eight Regional Fishery Management Councils 3 with "the authority and responsibility to govern conservation and management of the fisheries under its geographical jurisdiction." 4 CLF, 209 F. Supp. 2d at 5. The Regional Councils are tasked with developing and implementing Fishery Management Plans ("FMPs") and amendments thereto. Id.; 16 U.S.C. § 1852(g)(3)(A). Each FMP and FMP amendment is then recommended to and reviewed and evaluated by NMFS and/or NOAA to determine whether it complies with the MSA 5 and other applicable law. 6 16 U.S.C. § 1854. FMPs, FMP amendments, and any necessary implementing regulations are subject to public review and comment. Id. § 1854(a)(1), (b)(1). If the Secretary finds that the plan complies with all applicable law, he or she may approve it or partially or completely disapprove it, id. § 1854(a), and, to the extent it is approved, the FMP or FMP amendment is then implemented and enforced by NMFS. Id. § 1854(c). Regional Councils are "quasi-legislative bodies" (Defs.' Mot. for Summ. J. & Mem. in Opp'n to Pl.'s Mot. for Summ. J. ["Defs.' Opp'n"] at 4) made up of "individuals who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned." 16 U.S.C. § 1852(b)(2)(A). The eight councils are: the New England Council; the Mid-Atlantic Council; the South Atlantic Council; the Caribbean Council; the Gulf Council; the Pacific Council; the North Pacific Council; and the Western Pacific Council. Id. § 1852(a)(1)(A)-(H). Two of the Regional Councils, the New England Council and the Mid-Atlantic Council, have jurisdiction over the thirteen federal fisheries in the Northeast United States. (Compl. ¶ 28); see also 16 U.S.C. § 1852(a)(1)(A)-(B).
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The MSA sets forth fifteen "National Standards," or requirements, for FMPs, 16 U.S.C. § 1853(a)(1)-(15), and the Secretary may not adopt an FMP recommended by a Regional Council if it violates any of these provisions. See CLF, 209 F. Supp. 2d at 5-6. At issue in this case is provision 11, which requires the establishment of an SBRM for each FMP. 16 U.S.C. § 1853(a)(11). The approval of an FMP requires: (1) an initial review of the FMP, to ensure its consistency with the MSA and other applicable law; (2) the publishing of the FMP in the Federal Register, followed by a 60-day public comment period; and (3) the approval, disapproval, or partial approval of the FMP within 30 days of the end of the comment period. 16 U.S.C. § 1854(a); see also CLF, 209 F. Supp. 2d at 5. 3
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In 1996, Congress passed the Sustainable Fisheries Act ("SFA"), which amended the MSA to require that all FMPs include a standardized reporting methodology "to assess the amount and type of bycatch occurring in the fisher[ies]," as well as conservation and management measures that minimize bycatch and the mortality of bycatch which cannot be avoided. 7 16 U.S.C. § 1853(a)(11); Pub. L. No. 104-297 § 108(b), 110 Stat. 3559, 3574-75 (Oct. 11, 1996). 8 Following passage of the SFA, NMFS prepared guidelines, ultimately adopted as a final rule, to assist Regional Councils in the development of FMPs. 63 Fed. Reg. 24,212 (May 1, 1998), codified in relevant part at 50 C.F.R. § 600.350. The guidelines state that "[a] review and, where necessary, improvement of data collection methods, data sources, and applications of data must be initiated for each fishery to determine . . . bycatch and bycatch mortality . . . ." 50 C.F.R. § 600.350(d)(1). B. National Environmental Policy Act NEPA, 42 U.S.C. §§ 4321-4370f, "has twin aims" of "`plac[ing] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action'" and "ensur[ing] that the agency will inform the public that it has indeed considered
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The MSA provision relevant to SBRMs states: [a]ny fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall . . . establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority[:] (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided.

16 U.S.C. § 1853(a)(11). Congress further amended the MSA when it passed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006. Pub. L. No. 109-479, 120 Stat. 3575 (2007). The 2006 act mandated the use of catch limits and other accountability measures targeting overfishing. See 16 U.S.C. § 1853(a)(14)-(15). 4
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environmental concerns in its decisionmaking process." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553 (1978)). The Act "d[oes] not require agencies to elevate environmental concerns over other appropriate considerations," but rather, it requires agencies to "take a `hard look' at the environmental consequences before taking a major action." Id.; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989) (holding NEPA does not impose "substantive environmental obligations" on agencies, but rather "prohibits uninformed--rather than unwise--agency action"). II. PRIOR LITIGATION This case arises from two earlier challenges by plaintiff to the agency's approval of FMPs in the Northeast. In 2005, plaintiff filed parallel lawsuits, challenging Amendment 13 to the Northeast Multispecies FMP, Oceana, Inc. v. Evans, No. 04-811, 2005 WL 555416 (D.D.C. Mar. 9, 2005) ("Oceana I"), 9 and Amendment 10 to the Atlantic Sea Scallop FMP, Oceana, Inc. v. Evans, 384 F. Supp. 2d 203 (D.D.C. 2005) ("Oceana II"). In both cases, this Court granted summary judgment to defendants on most of plaintiff's claims. However, in Oceana I, plaintiff argued, inter alia, that Amendment 13 did not establish an SBRM, despite endorsing an intended level of bycatch oversight, because it failed to establish a mandatory level of oversight. 2005 WL 555416, at *39. The Court agreed, noting that the Amendment "d[id] not contain a

In a precursor to plaintiff's 2005 challenges, Judge Kessler of this Court found in 2001 that an FMP amendment and "framework adjustment" setting forth certain bycatch reporting provisions were insufficient to satisfy the requirements of the MSA. CLF, 209 F. Supp. 2d at 1113. The Court entered a remedial order setting a minimum level of observer coverage. Id. at 13; see also Oceana I, 2005 WL 555416, at *37. NMFS subsequently promulgated Amendment 13, which was the subject of plaintiff's challenge in Oceana I. (Defs.' Opp'n at 9); see also Oceana I, 2005 WL 555416, at *38-39. 5

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mandatory level of observer coverage" 10 and "d[id] not contain any new bycatch reporting methodology." Id. The Court further held that although the SBRM set forth the agency's intention to achieve a five-percent level of observer coverage, "an FMP that merely suggests a hoped-for result, as opposed to `establish[ing]' a particular standardized methodology, does not measure up to [MSA's] requirements." Id. at *40 (quoting 16 U.S.C. § 1853(a)(11) (alteration in original)). Specifically, the Court found that the "desire" of the agency to maintain a minimum level of coverage was "ambiguous" and "optional" because the Amendment provided that the coverage level "may be subject to change if the Secretary deems it proper." Id. at *39. Further, the Court held that the agency's failure to respond to the Babcock Study commissioned by Oceana regarding the precision of discard estimates constituted disregard of the "best scientific information available" in violation of the MSA and the APA. Id. at *42; see also 16 U.S.C. § 1851(a)(2) ("[c]onservation and management measures shall be based upon the best scientific information available"). Similarly, in Oceana II, the Court held that Amendment 10 violated the MSA because it "d[id] not set forth the substance of a reporting methodology for the scallop fishery except in a vague and conclusory fashion" that gave the NMFS Regional Administrator "complete discretion" regarding the implementation of bycatch reporting methods and standards. 384 F. Supp. 2d at 232, 234; see also id. at 234 n.41 (criticizing amendment for leaving "all decisions" regarding "method for determining observer concentration" to Regional Administrator). The Court found that the Amendment did not establish any techniques or levels of accuracy and did At-sea fishery observers (i.e., scientists who board commercial fishing vessels to observe and record discards occurring on the trip) are an important source of information about fishery bycatch. See Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 42 (D.D.C. 2009). In developing an SBRM, one "key issue" is "how to allocate a limited number of observers on fishing vessels to obtain statistically reliable data that estimates, as accurately as possible, the amount of bycatch that occurs across the entire fleet." (Defs.' Opp'n at 1.)
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not "target[] a specific level of observer coverage by area that would produce statistically reliable estimates of bycatch." Id. at 233. The Court also found that the agency, by remaining silent on the issue, again failed to demonstrate that it had responded adequately to the "best scientific information available" regarding bias and accuracy. Id. at 232. In both cases, the Court remanded the bycatch portions of the two amendments to the agency for further action. Id. at 256; Oceana I, 2005 WL 555416, at *43. III. FACTUAL AND PROCEDURAL BACKGROUND After the issuance of Oceana I and II, NMFS set out to address the problems identified in those decisions by establishing a comprehensive Northeast SBRM that would set bycatch reporting and assessment standards for all thirteen federal fisheries in the Northeast region. See 73 Fed. Reg. 4,736, 4,737 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648) (noting that NMFS undertook to "address all Northeast Region FMPs" and that amendment "covers 13 FMPs, 39 managed species, and 14 types of fishing gear"). The Northeast Region Omnibus SBRM Amendment ("SBRM Amendment") established an SBRM comprised of seven elements, including: 1) bycatch reporting and monitoring mechanisms; 2) analytical techniques and allocation of at-sea fisheries observers; 3) a SBRM performance standard; 4) a SBRM review and reporting process; 5) framework adjustments and/or annual specification provisions; 6) a prioritization process to be used when mandated observer coverage levels cannot be implemented because of practical considerations such as budget constraints; and 7) provisions for industry-funded and observer set-aside programs. (Administrative Record ["AR] 3953-54.) The final SBRM Amendment is a 642-page document that extensively discusses each of the above elements. (See AR 3239-80.) The Amendment was developed and finalized over a two-year period using a process, provided for in the MSA, by which Regional Councils create

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and approve an amendment, and they then pass it on for review and approval by NMFS. See 16 U.S.C. § 1852(h)(5) (for fisheries under its authority, Regional Council shall prepare and submit FMPs and amendments to NMFS). Here, the SBRM Amendment was approved by the MidAtlantic Council (AR 3027-29) and the New England Council in June 2007. (AR 3058.) NMFS then made the SBRM Amendment available for public comment for a two-month period in July 2007. (AR 3076-77.) During that two-month period, NMFS also issued a proposed rule in August to implement the SBRM Amendment and opened it for public comment until September 24, 2007. (AR 3085, 3111.) Plaintiff submitted comments on both the draft Amendment and the proposed implementation rule. 11 (AR 3186-200.) The Lenfest Ocean Program also submitted comments on the Amendment and the proposed rule, which consisted primarily of a report from Dr. Murdoch K. McAllister entitled "Review of the Northeast Region Standardized Bycatch Reporting Methodology" ("McAllister Report"). 12 (AR 3120-61.) Plaintiff's comments also referenced the McAllister Report and highlighted certain issues raised therein. (AR 3188-91.) On October 18, 2007, the Science and Research Director of the New England Fisheries Science Center ("NEFSC"), a part of NMFS, prepared an analysis of and response to the McAllister Report for NMFS Regional Administrator Patricia Kurkul. (AR 3882-85.) The NEFSC response to the McAllister Report specifically addressed Dr. McAllister's concerns as to

Plaintiff also participated in public meetings and submitted a series of comment letters throughout the two-year development and approval process. (Pl.'s Mot. at 4; see also AR 235, 380, 641, 3019.) In particular, plaintiff raised its concerns about observer-effect bias and the need for a full EIS and studies to determine the level of precision and accuracy needed in data. (Pl.'s Mot. at 4; see also AR 236, 237-38.) The McAllister Report sought to provide an "independent scientific review of the SBRM." (AR 3122.) The Report addressed, inter alia, whether the SBRM would achieve bycatch estimates with the expected precision, account for rare bycatch events, and consider the change in fishing behavior caused by the presence of observers (i.e., the "observer effect"). (Id. 3122-23.) The Report specifically noted the problem of bias in discard estimates obtained from observed ships. (Id. 3126.) 8
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the agency's selection of a "combined ratio method" as the bycatch estimator and the problem of potential bias in data derived from at-sea observer coverage versus fishing vessel trip reports ("FTVR"). (Id. 3882, 3883-84.) NEFSC "disagree[d]" that bias precluded the use of observer data based on its "extensive experience" with those data sets, noting that vessels would avoid fishing in a non-representative fashion because it could result in significant economic hardships for them. (Id. 3884.) Although NEFSC acknowledged that the measures of accuracy of observational data are incomplete, because the "truth" remains unknown, it found that any potential bias in the data did not undermine the overall program. (Id.) In short, although "[t]he McAllister report provide[d] a number of instances where further research can be directed," NEFSC concluded that "it d[id] not alter [its] conclusion that the SBRM is a scientifically-sound process for implementing a continuously improving process of bycatch estimation." (Id. 3885.) NEFSC also indicated that it would "provide a more detailed response to the comments and issues raised by Dr. McAllister for inclusion in the response to public comments in the preamble to the final rule." (Id.) On October 22, 2007, Ms. Kukul sent a letter to the New England and Mid-Atlantic Councils, informing them that NMFS had approved the SBRM Amendment. (AR 3916.) On December 20, 2007, NEFSC provided a further response to the McAllister Report to Ms. Kukul for inclusion in the response to the public comments section of the final rule. (AR 3919-28; Defs.' Opp'n at 12.) NMFS promulgated the final rule implementing the SBRM Amendment on January 28, 2008. 73 Fed. Reg. 4,736 (Jan. 28, 2008). Plaintiff filed the instant action on February 25, 2008.

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ANALYSIS I. STANDARD OF REVIEW The appropriate standard of review of final agency decisions under the MSA is contained in the APA. NMFS final decision must be upheld unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 16 U.S.C. § 1855(f)(1)(B) (reviewing court may set aside challenged regulation or action based only on grounds specified in 16 U.S.C. § 706(2)(A)-(D)). "The scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Arent v. Shalala, 70 F.3d 610, 616 (D.C. Cir. 1995). "Administrative actions are presumed valid and are accorded greater deference; thus, the inquiry is only whether the Secretary's decisions were unreasonable, and `this court will not second guess an agency decision or question whether the decision made was the best one.'" Oceana II, 384 F. Supp. 2d at 211-12 (quoting C&W Fish Co. v. Fox, 931 F.2d 1556, 1565 (D.C. Cir. 1991)). The Court's only task is to "determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Balt. Gas & Elec. Co., 462 U.S. at 105. "Moreover, the Court will not lightly depart from regulations promulgated by an agency in order to achieve a statute's goals." Oceana II, 384 F. Supp. 2d at 212 (citing Continental Air Lines, Inc. v. Dep't of Transp., 843 F.2d 1444, 1451-52 (D.C. Cir. 1988) ("It therefore will not do, when interpreting a statute embodying conflicting demands, for courts grandly to resort to a single `broad purpose' of a statute and then employ a judicially idealized `goal' to drive the interpretive process.")). Because enforcement of the MSA involves the interpretation and evaluation of highly technical scientific findings, it is "especially appropriate for the Court to defer to the expertise and experience of those individuals and entities-the Secretary, the

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Councils, and their advisors-whom the [MSA] charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant quantitative and qualitative factors." Nat'l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990); see also Pittston Coal Group v. Sebben, 488 U.S. 105, 150 (1988) ("[A]s an interpretive question becomes more technical, the expertise of the agency charged with a statute's administration becomes greater and deferring to its construction rather than importing our own becomes more appropriate.") Similarly, under NEPA, "[t]he role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Balt. Gas & Elec. Co., 462 U.S. at 97-98; see also Nevada v. Dep't of Energy, 457 F.3d 78, 87-88 (D.C. Cir. 2006) (applying APA's arbitrary and capricious standard "to review both the agency's procedural compliance with NEPA and the adequacy of an EIS"). "[O]nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 22728 (1980) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) ("Neither [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.")).

II.

SUFFICIENCY OF THE SBRM AMENDMENT UNDER THE MSA The MSA requires NMFS to "establish a standardized reporting methodology to assess

the amount and type of bycatch occurring in the fishery." 16 U.S.C. § 1853(a)(11). Oceana

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argues that the SBRM Amendment fails to establish such a methodology because it creates a "loophole" that allows the NMFS Regional Administrator to avoid applying the minimum acceptable level of observer coverage under the SBRM in any year "in which external operational constraints would prevent NMFS from fully implementing the required at-sea observer coverage levels," but instead to consult with Regional Councils as to the appropriate allocation of resources. (AR 3274-75; Pl.'s Mot. at 19-22.) Oceana further contends that the SBRM Amendment violates the MSA because the performance standard established in the Amendment does not apply to species that are not federally managed, although these species constitute a part of the fishery bycatch. (Pl.'s Mot. at 22-25.) A. The SBRM Amendment's Prioritization Process

As noted, the MSA requires NMFS to "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that . . . minimize bycatch [and] minimize the mortality of bycatch which cannot be avoided." 16 U.S.C. § 1853(a)(11). In an effort to fulfill this requirement after Oceana I and II, the SBRM Amendment establishes a 30 percent CV performance standard. 13 (AR 3273; Defs.' Opp'n at 23.) The standard means that "[e]ach year, the Regional

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"CV" stands for "coefficient of variation." (AR 3884.) The SBRM defines "CV" as a standard measure of precision, calculated as the ratio of the square root of the variance of the bycatch estimate (i.e., the standard error) to the bycatch estimate itself. The higher the CV, the larger the standard error is relative to the estimate. A lower CV reflects a smaller standard error relative to the estimate. A 0percent CV means there is no variance in the sampling distribution. Alternatively, CVs of 100 percent or higher indicate that there is considerable variance in the estimate.

(Id.) 12

Administrator and the Science and Research Director shall allocate sufficient at-sea observer coverage to the applicable fisheries of the Northeast Region in order to achieve a level of precision (measured as the CV) no greater than 30 percent for each applicable species and/or species group." (AR 3273.) The SBRM Amendment sets forth a detailed methodology by which the Regional Administrator can estimate the number of observer days needed to achieve the 30 percent standard and allocate observers among vessels to reach that benchmark. (Pl.'s Mot. at 20; AR 3429-34, 3444-57, 3465-66, 3483.) The SBRM Amendment also provides that in a year in which "external operational constraints" prevent NMFS from "fully implementing the required at-sea observer coverage levels," the Regional Administrator will consult with the Regional Councils "to determine the most appropriate prioritization for how the available resources should be allocated." (AR 3954; see also AR 3465-66.) The SBRM Amendment calls for the Regional Administrator to provide the Regional Councils with data and a recommendation for prioritization that takes into account a variety of factors, including: [m]eeting the immediate and anticipated data needs for upcoming stock assessments; legal mandates of the agency under other applicable laws, such as the Endangered Species Act or Marine Mammal Protection Act; meeting the data needs of upcoming fishery management actions, taking into account the status of each fishery resource; improving the quality of discard data across all fishing modes; and/or any other criteria identified by NMFS and/or the Councils. (AR 3465-66.) Plaintiff characterizes this prioritization process as a "loophole" that NMFS has used to "ignore the established methodology." (Pl.'s Mot. at 20-21.) Specifically, plaintiff contends that in 2008 and 2009, NMFS cited funding shortfalls as "external operational constraints" to avoid allocating the number of observer coverage days needed to reach the 30 percent CV performance standard. (Id. at 21.) Plaintiff equates the prioritization "loophole" 13

with the 5 percent "observer goal" rejected by the Court in Oceana I and II, in that the SBRM Amendment's prioritization process means that the 30 percent CV performance standard is necessarily not mandatory. (Id.) See also Oceana I, 2005 WL 555416, at *39 (finding that Amendment 13 "d[id] not contain a mandatory level of observer coverage" or "contain any new bycatch reporting methodology"). Plaintiff also maintains that the prioritization process is an ad hoc approach to bycatch reporting that "starts afresh year after year guided by no generalized method established in the fishery management plan" and reduces the Regional Councils to "consultants" to the Regional Administrator. (Mem. of Pl. Oceana in Supp. of Its Mot. for Summ. J. & In Opp'n to Defs.' Mot. for Summ. J. ["Pl.'s Reply"] at 5-6.) The Court cannot accept plaintiff's depiction of the SBRM Amendment's prioritization process as "functionally the same" as that which the Court rejected in Oceana I and II. In those cases, the Court's fundamental problem with the amendments at issue was that they contained no mandatory bycatch reporting standards or procedural provisions. See, e.g., Oceana II, 384 F. Supp. 2d at 232 (Amendment 10 "fail[ed] to establish a bycatch reporting methodology, but instead gives complete discretion to the Regional Administrator"); id. at 233 (Amendment did not "set forth . . . techniques" or "target[] a specific level of observer coverage by area that would produce statistically reliable estimates of bycatch"); id. at 234 (Amendment did not indicate "how the Regional Administrator should determine the `distribution [of sea sampled trips] by gear and area'" (alteration in original)); Oceana I, 2005 WL 555416, at *39 (noting that Amendment 13 contained "among its `approved measures' no specific mention of bycatch reporting"); id. at *40 (Amendment "merely suggest[ed] a hoped-for result, as opposed to `establish[ing]' a particularized methodology" (alteration in original)); id. at *43 (Amendment "does not mandate a `standardized reporting methodology'"). By contrast, the SBRM

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Amendment states that it will "ensure" that the data collected is sufficient to produce a CV of no more than 30 percent. (AR 3273.) It then sets forth procedures by which at-sea observers are to be allocated to meet the 30 percent standard. (AR 3437, 3953-54.) These procedures "provide decisionmakers and the public with a program of what actually will be done to improve bycatch reporting," Oceana II, 384 F. Supp. 2d at 234, unlike the amendments rejected by the Court in Oceana I and II. The prioritization process established by the SBRM Amendment to address budget shortfalls and other "external operating constraints" does not give "complete discretion" to the Regional Administrator to determine what, if any, bycatch reporting methodology should be used. (See AR 3465-66.) Instead, the prioritization procedures govern the Regional Administrator's allocation of observers in the event that he or she cannot follow the SBRM Amendment mandate regarding the level of coverage. The Regional Administrator must start by identifying the allocation of observer days needed to meet the 30 percent CV standard and then note the "coverage levels that would be available if the resource shortfall were allocated proportionately across all applicable fisheries." (Id. 3465.) Thereafter the Regional Administrator is to recommend alterations to that proportional distribution based on a series of factors identified in the SBRM Amendment, such as the need to comply with the Marine Mammal Protection Act and the Endangered Species Act. (Id.) The Regional Councils "may choose to accept the proposed observer coverage allocation or to recommend revisions or additional considerations for the prioritized observer allocations ultimately adopted and implemented" by the Regional Administrator. (AR 3954.) Unlike Amendment 10 in Oceana II, this procedure does not link the number of observers to a "funding mechanism" without consideration of the adequacy of the coverage. See

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384 F. Supp. 2d at 232. Rather, it establishes an adequate level of coverage based on scientific evidence, independent of financial or other considerations, but it goes on to provide a contingency plan in the event that practical limitations, beyond NMFS' control, prevent the agency from meeting the CV standard. (AR 3465, 3953-54.) The MSA requirement that the FMP establish a standardized bycatch reporting methodology does not mean that the agency may not deviate from the standardized methodology regardless of the external factors that impact the agency. 14 Accordingly, the Court concludes that the SBRM Amendment sufficiently satisfies the MSA's bycatch reporting requirement. The prioritization procedures do not do away with the methodology established by the SBRM Amendment, which is not optional and may not be discarded because NMFS decides it does not want to use it. (See AR 2089 ("[t]he methodology contemplated under the preferred alternatives of the Amendment Document is nondiscretionary"); AR 3274 (prioritization process used only "[i]n any year in which external operational constraints would prevent NMFS from fully implementing the required at-sea observer coverage levels") (emphases added); AR 3756 ("The performance standard is not proposed to serve as a mere target, but is an objective measure of the level of observer coverage necessary to achieve the level of precision specified in the Oceana argues that the MSA does not include an "escape clause provision" that permits the agency to establish reporting on an ad hoc basis each year, but rather mandates that the agency "establish a standardized bycatch reporting methodology." (Pl.'s Reply at 6.) The Court agrees that the MSA does not allow the agency to develop an FMP that leaves the SBRM open to revision at the agency's whim or makes the use of the methodology optional, such that the agency could decide one year not to implement the observer program at all. See Oceana I, 2005 WL 555416, at *40. Indeed, this Court's critique of Amendment 13 in Oceana I focused largely on the language in the Amendment that indicated "only an `intent' to implement an adequate program," rather than an obligation. Id. However, the SBRM Amendment establishes a mandatory level of observer coverage, and the agency has no discretion to change that level. (AR 3274.) Only when outside factors prevent the agency from proceeding as it is obligated to do by the SBRM Amendment do the prioritization procedures take effect, and then, those procedures are only in effect until the next year, when the default 30 percent CV standard applies again. (Id.) 16
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amendment.").) Rather, the SBRM Amendment requires the agency to use the reporting methodology each year, unless something "external," or outside the agency's control, prevents it from doing so in a given year. (AR 3465.) Even then, changes to the number of observer days are keyed to the level needed to meet the established bycatch reporting standard of 30 percent, deviating only based on the external constraints and other specified factors. (AR 3954.) To the extent plaintiff takes issue with the type of prioritization procedures included in the amendment, as opposed to other approaches 15 that might have been adopted, the Court finds that NMFS' decision to prioritize coverage as described in the SBRM Amendment, allowing Regional Councils and the Secretary to make decisions based on current needs and priorities, does not violate the MSA. B. Application of Performance Standard to Select Bycatch Species

Plaintiff also attacks the SBRM Amendment because it "excludes all non-federally managed species from its methodology" and "restricts its 30 percent CV performance standard to federally managed species." (Pl.'s Mot. at 18, 22.) Specifically, plaintiff takes issue with NMFS' decision 16 not to consider non-federally managed species in designing and developing

In a September 24, 2007 letter to Regional Administrator Patricia Kurkul, plaintiff proposed alternative approaches for dealing with budget shortfalls, such as requiring fishing vessels to supplement federal funding so that the SBRM-required levels could still be maintained, cutting the budget allocations pro rata across all fishing modes, or ranking fishing modes by some standard of priority and requiring that the observer needs be fully met for each mode in descending priority rank until the money runs out. (AR 3193.) In the section discussing the 30 percent CV performance standard, the SBRM Amendment states: Because the explicit inclusion of additional, non-FMP managed species (other than those required under the law), is not necessary to ensure that data on the discards of these species is collected and available for review and/or use in stock assessments, and is beyond the scope required for the SBRM Amendment, the need to explicitly consider non-managed species in the design and 17
16

15

certain aspects of the SBRM Amendment, despite the MSA's mandate that the agency develop a methodology to assess the amount and type of all "bycatch." (See id.; AR 3470.) See also 16 U.S.C. § 1853(a)(11) (mandating the establishment of a "standardized [bycatch] reporting methodology" that includes conservation and management measures that" minimize bycatch and bycatch mortality "to the extent practicable"). An NMFS analysis of bycatch data from 2004 revealed that observers reported discards of 211 unique species, 59 of which are federally managed under an FMP for the Mid-Atlantic and/or New England regions or by federal statute (i.e., the Marine Mammal Protection Act and the Endangered Species Act). (Id. 3468-69.) These 59 species constituted the vast majority (84.4 percent by weight) of the discarded bycatch in 2004. (Id.) The remaining 152 species, comprising 15.4 percent of the 2004 bycatch, are either unregulated or are regulated only at the state level. (Id.) Importantly, as demonstrated by the data from 2004, fishery observers collect data regarding all discarded species, whether federally managed or not. (Id. 3470 ("Observers are trained and expected to record information regarding 611 species . . . and observers do so for both discards and landed catch.").) However, for purposes of developing the 30 percent CV performance standard in the SBRM Amendment and allocating observer days to ensure sufficient bycatch reporting, NMFS decided that it did not need to take into consideration non-federally managed species. (Id. 3469-70; see also Defs.' Opp'n at 27.) Put another way, NMFS collects data regarding all bycatch species, whether federally regulated or not, but the allocation of observers to comply with the 30 percent performance standard is "crafted around" only federally managed species, meaning the precision of the data collected on non-federally managed species development of the SBRM was eliminated from further consideration, other than to continue to ensure that all species (managed and nonmanaged) encountered by observed fishing vessels are reported either as landings or discards. (AR 3470.) 18

is not regulated in the same way as it is for managed species. (AR 3959; see also id. 3458 (CV standard "addresses the precision of the estimates, not the accuracy of the estimates").) Plaintiff argues that to comply with the MSA's requirement that FMPs assess "bycatch," NMFS must apply the 30 percent CV performance standard to all bycatch species in determining the number and allocation of observer days, because the statutory definition of bycatch does not distinguish between federally managed and unmanaged species. (Pl.'s Mot. at 23 (citing 16 C.F.R. § 1802(2).) The Court agrees that the MSA demands assessment of the bycatch of all species, not just those species that are federally managed--but this is satisfied by the requirement that at-sea observers compile data on all bycatch observed. However, the statute is silent as to the method(s) to be used for bycatch assessment, and it includes no requirement that all species of bycatch be estimated 17 with the same degree of precision and accuracy. It is therefore not improper to adopt, for example, a 30 percent CV performance standard--which itself permits a certain level of imprecision in reporting--but to limit its application to the bulk, in terms of weight, of bycatch. Both the CV standard chosen and its application are designed to estimate bycatch by capturing the vast majority of animals caught while allowing some level of estimation error. The assessment of some species more precisely than others does not, as plaintiff suggests, "exclude" certain types of bycatch from the SBRM; rather, it measures those species differently. 18

The MSA does not preclude NMFS from adopting various techniques designed to estimate the amount of bycatch. Indeed, the purpose of the SBRM is to estimate the bycatch in federal fisheries, because reporting all bycatch at every fishery is not possible. (See AR 3244 ("[A]n SBRM can be viewed as the combination of sampling design, data collection procedures, and analyses used to estimate bycatch in multiple fisheries."); 3959.)
17

Plaintiff argues that the agency's establishment of the 30 percent CV performance standard for bycatch data collection acknowledged "an inadequacy in its [earlier] bycatch collection program, which did not establish or comply with a performance standard." (Pl.'s Reply at 10.) Plaintiffs contend that the failure to apply that standard to all bycatch perpetuates 19

18

In short, the MSA requires NMFS to assess bycatch at federal fisheries, but it gives the agency discretion to adopt appropriate assessment methods. The Court therefore concludes that the decision to allocate observers to ensure that the 30 percent CV performance standard is met with respect to most, but not all, bycatch species, while still estimating all bycatch, does not violate the MSA. III. SUFFICIENCY OF THE SBRM AMENDMENT UNDER THE APA The APA obligates a reviewing court to set aside and hold unlawful any agency "action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Oceana contends that the agency violated the APA by failing to adequately address 1) the concerns raised by the McAllister Report and 2) the statistical findings and best available science on the issue of bias. (Pl.'s Mot. at 25.) A. NMFS Response to the McAllister Report

In response to the NMFS request for comments on the Final Draft of the SBRM Amendment (AR 3076), the Lenfest Ocean Program commissioned the McAllister Report, a 39page independent review of the SBRM draft by a fisheries science expert. The report was sent to the NMFS Regional Administrator on September 24, 2007, the last day of the comment period. (Pl.'s Mot. at 6; AR 3120.) On October 2, agency officials conducted a conference concerning the deficiency of the earlier program. (Id.) The Court disagrees. As discussed, the problem with the earlier FMPs was that they failed to establish any methodology, not that the methodology was inadequate. Oceana II, 384 F. Supp. 2d at 232 (Amendment 10 "does not set forth the substance of a reporting methodology"); Oceana I, 2005 WL 555416, at *43 (Amendment 13 "does not mandate a `standardized reporting methodology"). In contrast to these earlier FMPs, the SBRM Amendment establishes a mandatory reporting methodology that allocates at-sea observers based on a precision level as applied to federally managed species. Once the observers are allocated, they report on all bycatch, not just federally managed species, as required by the MSA. (AR 3459.) 20

the agency's response to the report. (AR 3212.) NEFSC agreed to prepare a decision memorandum, 19 "sufficient to allow the Regional Administrator to move forward with a recommended decision on the SBRM Amendment" by the October 22, 2007 deadline, and a more detailed response shortly after the decision date to include in the preamble to the final rule. (AR 3213.) NEFSC submitted its four-page summary response on October 18. 20 (AR 3882.) The response concluded that while the agency would incorporate some of Dr. McAllister's suggestions "into the evolution of the SBRM," his "critique d[id] not provide a sufficient basis to disapprove the SBRM Amendment." (Id. at 3882-83) The NMFS Assistant Administrator approved the SBRM Amendment on October 22. (Pl.'s Mot. at 6-7; AR 3882-85, 3887.) On December 20, 2007, NEFSC submitted a second, more detailed, 10-page response to the McAllister Report (AR 3919-28), which was then included in the Notice of Final Rule that was released by the agency on January 28, 2008. (Id. 3962-66.) The second NEFSC response "provided additional technical justification for the approaches that have been taken and summarized additional work that has been conducted since the September 2007 report by Dr. McAllister." (Id. 3919.) The response went on to reference the working papers regarding discard estimation prepared for a Groundfish Assessment Review Meeting ("GARM") 21 that The decision memorandum was to "clearly identify[] the major comments raised by members of the public on the amendment and include[] an assessment of the significance of those comments and whether any, including the technical comments identified in the McAllister Report, [we]re substantial enough to warrant disapproval of part or all of the SBRM Amendment." (AR 3212.) The agency's responses to comments other than Dr. McAllister's were submitted on October 15, 2007. (AR 3221-38.) On October 29, NEFSC began GARM III, the third in a series of periodic regional scientific peer reviews designed to provide benchmark assessments for the groundfish stocks managed by the NEFMP. (See AR 1079, 4770.) Working papers were drafted in anticipation of the October 29 GARM meeting, at least two of which concerned the topic of discard estimation, which was the subject of the McAllister Report. (See id. 4713, 4750.) The four sessions of GARM III took place between October 2007 and August 2008. (Id. 4770.) The first meeting 21
21 20 19

took place on October 29 and noted that "[s]everal of the validation issues highlighted by Dr. McAllister were examined" at that meeting. (See id. 3924-26.) The response also stated that as a result of recommendations in the McAllister Report, the agency conducted simulation tests of "alternative estimators," the results of which were also discussed at the GARM. (Id. 3925.) The response concluded, consistent with the NEFSC summary response submitted on October 18, that while the agency acknowledged the utility of Dr. McAllister's comments and suggestions, it continued to support the approach taken in the SBRM Amendment. (Id. 3919.) Oceana now argues that NMFS "relegated its substantive review of the McAllister [R]eport to the GARM [meeting], held one week after the agency approved the SBRM Amendment." (Pl.'s Mot. at 26.) As such, plaintiff maintains that the agency's December 20, 2007 response to the McAllister Report was an arbitrary and capricious "post hoc" justification of its approval of the SBRM. (Id.) In support of this argument, plaintiff cites Brookings Municipal Telephone Company v. FCC, 822 F.2d 1153 (D.C. Cir. 1987), where the D.C. Circuit required an agency to "demonstrate a `rational connection between the facts found and the choice made,'" id. at 1165 (quoting Farmers Union Cent. Exch., Inc. v. FERC, 734 F.2d 1486, 1499 (D.C. Cir. 1984)), but cautioned that "[p]ost hoc rationalizations advanced to remedy inadequacies in the agency's record or its explanation are bootless." Id. Plaintiff's citation to Brookings, is, however, inapposite. Brookings (and Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29 (1983), upon which Brookings relies) involved instances where the agency's attorneys attempted to justify the agency's actions with rationales that had not been formulated or articulated at the time the agency had decided to act. See State Farm, 463 U.S. at took place between October 29 and November 2, 2007, and reviewed seven types of data inputs (landings, discards, tagging, fishery independent and dependent surveys, ecosystem, and recreational). (Id.) 22

49-50 (dismissing arguments in support of agency's position in court briefs because "the[y] [we]re not the agency's reasons for" its decision); Brookings, 822 F.2d at 1170 (dismissing arguments "posed for the first time in the [agency's] briefs to this court" as "no[] excuse [for] fail[ing] to consider significant alternatives at the agency level"). As the Supreme Court noted, "[i]t is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." State Farm, 463 U.S. at 50; see also Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 469 (D.C. Cir 1998) ("[W]e may consider only the regulatory rationale actually offered by the agency during the development of the regulation, and not the post-hoc rationalizations of its lawyers."). Here, NMFS did not ignore the McAllister Report during the SBRM Amendment approval process, only to manufacture reasons for rejecting the report during the pendency of this litigation. Rather, the agency concluded that the McAllister Report did not provide a sufficient basis for disapproval of the SBRM Amendment. (AR 3882; 3890.) The agency submitted a four-page memorandum supporting that conclusion to the Regional Administrator, discussing Dr. McAllister's points and stating its disagreement with some of his positions. (See, e.g., id. 3884 (noting that NEFSC "disagree[s] with Dr. McAllister that the levels of bias inherent in the data preclude their use in the proposed SBRM" and explaining that "multiple lines of evidence used in the SBRM suggest that any potential bias that may exist in our observer data does not impugn the overall program").) 22 The memorandum demonstrates that NMFS Plaintiff argues that the October 18 NEFSC memorandum is little more than "sweeping generalizations" that "made no point of contact with Dr. McAllister's discussion, did not acknowledge the flaws he identified, and did not consider the solutions that he offered." (Pl.'s Reply at 17.) The October 18 memorandum belies these claims. For example, the agency clearly acknowledges the two major critiques of the McAllister Report--namely, the use of the combined ratio estimator (as opposed to alternative estimators) and the use of at-sea observer data (as opposed to fishing vessel trip reports). (AR 3882.) The memorandum also states that: 1) at Dr. McAllister's suggestion, the agency ran "simulation tests of alternative estimators" and 23
22

"considered the relevant factors and articulated a rational connection between the facts found" and its choice to approve the SBRM Amendment despite Dr. McAllister's critique. Balt. Gas & Elec. Co., 462 U.S. at 105. The NEFSC's supplementation of its October 18 memorandum after the agency approved the SBRM Amendment, but prior to the release of the final rule, does not constitute post hoc rationalization in violation of the APA. The December 20 memorandum simply supplements the agency's October 18 conclusion that the McAllister Report does not provide a basis for disapproving the SBRM Amendment and that the methods used in the SBRM are wellsupported. 23 (Compare AR 3882-84 (confirming SBRM Amendment use of combined ration estimator and at-sea observer data) with id. 3921-25 (discussing use of combined ratio estimator and potential bias in at-sea observer data); see also id. 3925-26 (discussing results of simulations and studies referenced in October 18 memorandum).) It underscores and explicates the agency's that the "initial findings support the use of the discard to total kept ratio and the simple expansion method;" 2) the agency "conducted studies to estimate total landings from the observed sample data, and found good agreement for the methods used in the SBRM;" 3) the agency rejects Dr. McAllister's proposed estimator because the estimator is but one component of the overall SBRM and switching out the combined ratio estimator "would not change the fundamental process proposed in the SBRM Amendment to allocate observer coverage;" and 4) the agency disagrees with Dr. McAllister's conclusion that the bias in the data sets preclude their use in the SBRM Amendments "[b]ased on [the agency's] extensive experience with these data sets." (AR 3882-84.) The agency clearly reviewed the McAllister Report and responded to its criticisms, which is what the APA demands. See Balt. Gas & Elec. Co., 462 U.S. at 105. Plaintiff seizes on the agency's reliance on the GARM working papers in the December 20 memorandum as evidence that NMFS only substantively considered the McAllister Report at the GARM meeting, which took place one week after the agency's October 22 approval of the SBRM. Yet, the record is clear that the agency took steps to review (AR 321213) and respond to (AR 3882-85) the McAllister Report within three weeks of receiving it--and four days before approving the SBRM Amendment. That the McAllister Report was discussed more fully at GARM III, and information prepared for the meeting used to supplement the agency's October 18 findings, does not suggest that NMFS relegated substantive review of the Report until after the approval of the SBRM Amendment. Rather, it lends credence to the agency's claims that it "took Dr. McAllister's comments seriously and fully considered them," even after it had issued preliminary findings and approved the SBRM Amendment. (Defs.' Mot. at 22.) 24
23

reasons for the decision; it does not create new reasons. 24 In sum, the Court finds that NMFS adequately considered the McAllister Report during the rulemaking process and sufficiently explained its decision to approve the SBRM Amendment despite the report's criticisms. 25 It therefore concludes that the agency did not act arbitrarily or capriciously in violation of the APA. B. NMFS Consideration of and Response to Comments Regarding Bias

Plaintiff also argues that NMFS violated the APA because it failed to adequately consider bias in developing the SBRM Amendment. (Pl.'s Mot. at 27.) The SBRM Amendment acknowledges the importance of "[e]liminating potential sources of bias" in order to "improve[] the accuracy of the results." (AR 3383, 3541.) However, plaintiff maintains that despite the effect of bias on the results of the SBRM, the agency "never explain[s] what level of bias it But even if the Court were to conclude that the agency failed to adequately consider the McAllister Report prior to its decision to approve the SBRM Amendment (which it does not), any such failure did not affect the outcome of the agency's decision, because the December 20 memorandum, like the October 18 memorandum, clearly supports SBRM approval. Therefore, any arguable error would be harmless and would not warrant remand of the SBRM Amendment to the agency. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) ("If the agency's mistake did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.") In its Reply, plaintiff also argues that NMFS "predetermined" the outcome of its response to the McAllister Report before fully reviewing it, citing the minutes from the October 2, 2007 conference call. (Pl.'s Reply at 13-14.) During the call, Ms. Kurkul asked whether "any [of the critiques in the McAllister Report] are sufficiently serious to indicate that a different approach to the design of the SBRM is necessary or warranted." (AR 3212.) An NEFSC staff member responded that "a different approach would not be necessary, and that, while many of the issues raised by McAllister are relevant to the analyses supporting the SBRM, none rise to the level of a fatal flaw that would require the SBRM Amendment to be disapproved." (Id.) This exchange does not suggest that the agency "approached its consideration of the McAllister Report having already decided that nothing in the report would influence its final decision on the SBRM Amendment." (Pl.'s Reply at 14.) Rather, the minutes clearly state that the NEFSC staff had already "had an opportunity to review and consider the issues raised in the McAllister Report" and that the purpose of the call was "to brief Regional Office staff on the significance and implications of the issues raised in the report." (AR 3212.) Therefore, contrary to plaintiff's contention, the record does not support the inference that the agency had decided to ignore the McAllister Report before reading or considering it. 25
25 24

would find unacceptable." 26 (Pl.'s Mot. at 28.) Further, although the McAllister Report highlighted the lack of a standard to evaluate bias (see AR 3132 (describing SBRM Amendment's evaluation of bias without objective quantitative basis to judge bias as "rather arbitrary")), the agency failed to adequately respond to this portion of the Report. Oceana also claims that NMFS "failed to rationally respond to Dr. McAllister's critique that bias seriously compromised the SBRM." (Pl.'s Mot. at 29.) Such disregard for Dr. McAllister's significant critique of the SBRM Amendment, plaintiff argues, demonstrates that NMFS' decision to approve the SBRM Amendment was arbitrary and capricious. (Id.) "[A]n agency rule [is] arbitrary and capricious if the agency has . . . entirely failed to consider an important aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before the agency." State Farm, 463 U.S. at 43. "The agency `need not address every comment, but it must respond in a reasoned manner to those that raise significant problems.'" City of Waukesha v. EPA, 320 F.3d 228, 257-58 (D.C. Cir. 2003) (quoting Reytblatt v. Nuclear Regulatory Comm'n, 105 F.3d 715, 722 (D.C. Cir. 1997). "Nevertheless, `[t]he failure to respond to comments is significant only insofar as it demonstrates that the agency's decision was not based on a consideration of the relevant factors.'" Id. (quoting Texas Mun. Power Agency v. EPA, 89 F.3d 858, 876 (D.C. Cir. 1996)); see also Am. Iron & Steel Inst. V. EPA, 115 F.3d 979, 1005 (D.C. Cir. 1997).

Defendant objects to plaintiff's argument regarding the agency's failure to respond to Dr. McAllister's comment regarding the lack of an objective bias standard, claiming that this argument is vague and was not included in the complaint. (Defs.' Opp'n at 14.) Plaintiff's amended complaint alleges that McAllister Report and Oceana's own letter to the agency "identified numerous technical flaws" in the SBRM Amendment, but does not cite the absence of an objective bias standard specifically. (Am. Compl. ¶ 65.) However, because the Court concludes that NMFS sufficiently considered the issue of bias and adequately responded to Dr. McAllister's critiques, it need not resolve this objection. 26

26

The record belies plaintiff's argument that NMFS failed to consider the issue of bias in developing and approving the SBRM Amendment. Indeed, the SBRM includes numerous discussions of bias and the steps taken to minimize it, including an entire chapter (Chapter 5) devoted to the topics of sampling design, precision, and accuracy. (See, e.g., AR 3245 ("Analyses were performed to evaluate potential sources of bias in the 2004 NEFOP data in order to characterize the accuracy of the data. In general, there was no evidence of a systematic bias in the amount of kept pounds, trip duration, or area fished between NEFOP and FVTR data, indicating that the data are sufficiently accurate."); 3272 ("The Northeast Region SBRM shall employ sampling designs developed to minimize bias to the maximum extent practicable."); 3364 ("As with shore-based intercept sampling, the method for assigning samplers to ride aboard head/party boats helps to ensure each vessel trip has an equal probability of being sampled and minimize sampling bias and increase precision."); 3383 ("Later sections of this chapter address the statistical properties of the estimators, and provide evidence that there is very little bias associated with the data collected by the at-sea observers."); 3400 ("In general, the ratio estimate has a bias of order 1/n (Cochran 1963). For moderate and large sample sizes, the bias is negligible."); 3411-13 ("An examination of the distribution of these differences (Appendix B, Figures B-8 and B-9), by species group, indicates no evidence of systematic bias and general symmetry in the pattern of positive and negative differences."); 3656 (discussing tests conducted to "to address the potential sources of bias by comparing measures of performance for vessels with and without observers present"); 3584-90 (rebutting arguments by Babcock et al. regarding bias and discussing tests conducted to address potential sources of bias in the Northeast Fisheries Observer (Sea Sampling) Program)).

27

In response to the McAllister Report's specific criticisms regarding bias in the SBRM, the October 18, 2007 NEFSC memorandum states that the agency "disagree[s] with Dr. McAllister that the levels of bias inherent in the data preclude their use in the proposed SBRM" based on its "extensive experience with these data sets." (AR 3884.) The agency cites "multiple lines of evidence used in the SBRM" that suggest that "any potential bias that may exist in [the] observer data does not impugn the overall program." (Id.) NEFSC also notes that the "proposed SBRM analyses were reviewed and accepted by a peer-review panel . . . comprising members of the Scientific and Statistical Committees of the New England and Mid-Atlantic Fishery Management Councils," 27 which "concluded that the SBRM represented a reasonable and scientifically sound approach." (Id. 3885.) The agency further discussed the issue of bias in response to questions raised in the McAllister Report in the December 20, 2007 memorandum. (Id. 3924-3925.) Finally, the agency devoted three-and-a-half pages of the Notice of Final Rule to a summary of the McAllister Report and a response to various issues raised therein. 28

Plaintiff argues that material in the record created before the McAllister Report was submitted (which includes portions of the SBRM Amendment and the review of the Amendment by the Regional Councils) cannot be counted as a "response" to the issues raised in the Report. (See Pl.'s Reply at 22.) However, the Court notes that "`[an agency's] failure to respond to comments is significant only insofar as it demonstrates that the agency's decision was not based on a consideration of the relevant factors." City of Waukesha, 320 F.3d at 258. The record is replete with discussions of the potential problem of bias, indicating that the agency considered a variety of factors related to this issue before and after it received the McAllister Report. The record thus suggests that any failure of the agency to address a particular critique in the Report is not significant, given its extensive attention to the issue of bias. Plaintiff argues that the agency's response to Dr. McAllister's comments contained in the Notice of Final Rule is a post hoc rationalization, because it was drafted and released after the agency's decision to approve the SBRM Amendment. (Pl.'s Reply at 23-24.) As discussed, the Court must look to the "regulatory rationale actually offered by the agency during the development of the regulation." Grand Canyon Air Tour Coal., 154 F.3d at 469. The fact that the agency's formal response to the McAllister Report was issued after the SBRM Amendment was approved is not dispositive of whether the response is post hoc. Indeed, the response cites to analyses contained in the SBRM Amendment, as well as studies also cited in the SBRM Amendment. (Compare, e.g., AR 3964 (responding to McAllister Report critique of estimators 28
28

27

It is clear that the agency devoted extensive time and resources, including expert review, to the potential problem of bias. Any failure on the part of the agency to respond specifically to a particular comment or criticism contained in the 39-page McAllister Report is, in light of the agency's overall consideration of the topic of bias, insignificant. City of Waukesha, 320 F.3d at 257-58. To the extent that Dr. McAllister disagrees with the agency's conclusions regarding bias, "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989); see also Oceana I, 2005 WL 55416, at *16 ("It is simply not the Court's role to interject itself into this extremely technical scientific debate; indeed, this is precisely the type of issue in which the Court should properly defer to Defendants' expertise.") Given the agency's extensive consideration of the issue of bias generally, as well as its many responses to the critiques contained in the McAllister Report, the Court concludes that NMFS did not act arbitrarily or capriciously in approving the SBRM. C. NMFS Consideration of and Response to Comments Regarding Adequacy of Precision Standard for Rarely Encountered Species Plaintiff also argues that NMFS acted arbitrarily and capriciously in adopting a 30 percent CV performance level and in failing to respond to Dr. McAllister's contention that such a standard is inadequate for rarely encountered species and will result in substantial cumulative error over time. (Pl.'s Mot. at 31-34.) In his report, Dr. McAllister argued that the "one-shoe used in SBRM Amendment by citing studies by Pikitch, Stratoudakis , and others, concluding that such estimators are adequate) with AR 3397 (SBRM Amendment discussion of bias, citing same studies).) These studies are also included in earlier drafts of the SBRM Amendment. (See, e.g., id. 456.) The record therefore supports the conclusion that the justifications offered by NMFS in its response to the McAllister Report in the Notice of Final Rule are the same rationales the agency actually relied on in developing and approving the Amendment, not post hoc rationalizations created after the fact. 29

size fits all approach" regarding the performance standard "is inadeq