and adopted an alternative to their initial proposed closure, reducing
the closure's size based in part on plaintiffs' comments. See A.R. Vol.
7, Doc. 125; A.R. Vol. 8, Doc. 152a, ch. 3, at 227-243; A.R. Doc. Vol.
40, Doc. G141, at 3.
Second, as to the pelagic shark quotas, plaintiffs claim that "NMFS
failed to rationally consider the status quo as an alternative to the
new pelagic shark measures the HMS FMP implemented." (Pls.' Mem. at 81.)
Plaintiffs are incorrect. NMFS did consider the status quo as an
alternative, but rejected it "because of concerns regarding the
sustainability of current fishing mortality rates and the potential for
fishing effort on those species known to have limited capacity to
withstand fishing pressure (e.g., porbeagle sharks)." A.R. Vol. 8, 152a,
ch. 3, at 93-94, 107-08.
Third, as to the VMS requirements, plaintiffs claim that NMFS "did not
consider conforming its VMS program to the ICCAT recommendation,
implementing a VMS program similar to the one it employed for the
Hawaiian pelagic longline fleet in which the Agency defrayed certain VMS
related costs, or tailoring the VMS requirement to the stated need for
the requirement in the first place (enforcement of closed areas)." (Pls.'
Mem. at 79.) While NMFS clearly did not give in-depth consideration to
every alternative, the RFA requires only that agencies consider
alternatives that would "accomplish the stated objectives" of the
Magnuson-Stevens Act. 5 U.S.C. § 604 (a)(5); see also Grand Canyon
Air Tour Coalition v. FAA, 154 F.3d 455, 470-71 (D.C.Cir. 1998) (FAA
satisfied RFA requirements "to demonstrate a rational decisionmaking
process [by] respond[ing] to relevant comments and consider[ing]
reasonable alternatives"). NMFS fulfilled the RFA's requirements by
responding to relevant comments, adopting alternative regulations that
allowed fishers to install less expensive types of VMS equipment and
considering (though not necessarily adopting) other reasonable
alternatives. See A.R. Vol. 9, Doc. 152b, ch. 7, at 34 & App. VIII, at
Based on the evidence in the administrative record, the ABT trip limit,
June Closure and pelagic shark quota regulations are consistent with the
Magnuson-Stevens Act, 16 U.S.C. § 1851 (a)(1), (2), (7)-(9), 1853
(a)(12), (14), 1854(g)(1)(C). The Secretary duly considered plaintiffs'
arguments and comments, but acted within his discretion when he
promulgated these final rules. Further, the ABT trip limit, June Closure,
pelagic shark quota and VMS requirements are consistent with the
Regulatory Flexibility Act, 5 U.S.C. § 604 (a)(2)-(5).
There is inadequate evidence in the record, however, to support the
VMS regulation under National Standards Seven and Eight of the
Magnuson-Stevens Act, 16 U.S.C. § 1851 (a)(7), (8). The Secretary
failed to set forth a rational connection between the factual record and
the choice to impose a blanket VMS requirement on all pelagic longline
fishers, regardless of whether they are geographically located near a
time/area closure where the VMS unit would provide a conservation
benefit. See Motor Vehicle Mfrs. Ass'n, Inc., 463 U.S. at 43,
103 S.Ct. 2856.
Accordingly, I will: (1) grant defendant's motion for summary judgment
on Counts One, Two, Five, Six, Seven and Nine*fn25 of the Amended
Complaint and deny plaintiffs' motion for summary judgment as to those
counts; (2) grant plaintiffs' motion for summary judgment on
Count Three and deny defendant's motion for summary judgment on Count
Three; (3) grant defendant's motion for summary judgment on Count Four
regarding the ABT per-trip landing limit, 50 C.F.R. § 635.23 (f),
the closure of certain fishing areas during the month of June,
50, C.F.R. § 635.21(c)(2), quotas for blue sharks and subquotas for
porbeagle sharks, 50 C.F.R. § 635.27 (b), and failure to collect
data, and deny plaintiffs' motion for summary judgment on those issues;
(4) grant plaintiffs' motion for summary judgment on Count Four
regarding the mandatory VMS requirements, 50 C.F.R. § 635.69, and
deny defendant's motion for summary judgment on Count Four regarding the
mandatory VMS requirements. I will remand the agency's VMS determinations
to the Secretary with instructions to undertake further consideration of
the scope of the VMS requirements in light of any attendant relevant
conservation benefits. An Order consistent with this Opinion is being