United States District Court, D. Columbia.
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ANTHONY BLACK, AMERICAN TRIUMPH LLC, MATTHEW JAMES FREITAS,
SEA QUEST LLC, BENJAMIN MAUGHAN, JR., OCEAN CONQUEST LLC,
KEITH BASS, JR., OCEAN ENCOUNTER LLC, PAUL MAGELLAN, SEA
HONOR LLC, JOHN ZOLEZZI, PACIFIC RANGER LLC, Plaintiffs:
James Patrick Walsh, LEAD ATTORNEY, Lisa Beth Zycherman,
DAVIS WRIGHT TREMAINE, LLP, Washington, DC.
PENNY SUE PRITZKER, In her official capacity as Secretary of
the U.S. Department of Commerce, KATHRYN D. SULLIVAN, Dr.,
Administrator, National Oceanic and Atmospheric
Administration, Defendants: Kevin W. McArdle, LEAD ATTORNEY,
U.S. DEPARTMENT OF JUSTICE, Wildlife & Marine Rescue Section,
KOLLAR-KOTELLY, United States District Judge.
Anthony Black, American Triumph LLC, Matthew James Freitas,
Sea Quest LLC, Benjamin Maughan, Jr., Ocean Conquest LLC,
Keith Bass, Jr., Ocean Encounter LLC, Paul Magellan, Sea
Honor LLC, John Zolezzi, and Pacific Ranger LLC, bring this
action against Defendants, Penny Sue Pritzker, in her
official capacity as Secretary of the U.S. Department of
Commerce (" Secretary" ), and Kathryn D. Sullivan,
in her official capacity as Administrator of the National
Oceanic and Atmospheric Administration (" NOAA
Administrator" ), to review the final decisions of the
NOAA Administrator imposing civil penalties on Plaintiffs for
violations of the Western and Central Pacific Fisheries
Convention Implementation Act (" WCPFCIA" ), 16
U.S.C. § 6901, et seq., and/or the Marine
Mammal Protection Act (" MMPA" ), 16 U.S.C. §
1361, et seq. Specifically, Plaintiffs, owners and
operators of six U.S. flag tuna purse seine fishing vessels,
seek an order setting aside each of the civil penalty
determinations, totaling approximately $1,500,000. Presently
before the Court are the parties' cross-motions for
summary judgment. Upon consideration of the
pleadings, the relevant legal authorities, and
the record as a whole, the Court GRANTS Defendants' 
Motion for Summary Judgment and DENIES Plaintiffs' 
Summary Judgment. Accordingly, judgment shall be entered for
Statutory and Regulatory Framework
Western and Central Pacific Fisheries Convention
2007, the United States ratified the Convention on the
Conservation and Management of Highly Migratory Fish Stocks
in the Western and Central Pacific Ocean ("
Convention" ). III.G.58 at 003539. One function of the
Convention is to adopt Conservation and Management Measures
(" CMMs" ) for members and participants of the
Convention to implement through their national laws and
procedures. Id. at 003541. The Western and Central
Pacific Fisheries Convention Implementation Act ("
WCPFCIA" ), 16 U.S.C. § 6901, et seq.,
provides the authority for the Secretary of Commerce ("
Secretary" ), in consultation with the Secretary of
State and the Secretary of the Department in which the Coast
Guard is operating, to develop regulations to carry out the
obligations of the United States under the Convention,
including the implementation of CMMs. 16 U.S.C. §
6904(a). The Secretary has delegated this authority to the
National Marine Fisheries Services (" NMFS" ), a
component of the National Oceanic and Atmospheric
Administration (" NOAA" ) within the Department of
Commerce. III.G.58 at 003541. Further, the enforcement of
violations of the WCPFCIA are governed by the penalty
provisions of the Magnuson-Stevens Fishery Conservation and
Management Act (" Magnuson Act" ). 16 U.S.C. §
issue in the instant action is CMM 2008-01, the Conservation
and Management Measure for Bigeye and Yellowfin Tuna in the
Western and Central Pacific Ocean, which was adopted by the
Commission in December 2008. Pursuant to CMM 2008-01,
specific provisions target reducing fishing mortality on
bigeye tuna and controlling fishing mortality on yellowfin
tuna by reducing the risk of overfishing during certain
periods of time in 2009, 2010, and 2011. III.G.58 at 003541.
Specifically, CMM 2008-01 prohibited purse seine
fishing on Fish Aggregation Devices ("
FADs" ) between: August 1, 2009, and September 30, 2009;
July 1, 2010, and September 30, 2010; and July 1, 2011, and
September 30, 2011. III.I.1 at 003723-25. FADs were defined
in CM 2008-01 as " any man-made device, or natural
floating object, whether anchored or not, that is capable of
aggregating fish." Id. at 003721 n.1. In
addition to the prohibition on the use of FADs, CMM 2008-01
also required that during the specified periods of time, all
purse seine vessels engaged in fishing were to carry on board
an observer from the Regional Observer Program to monitor
that the vessel did not deploy or service any FAD or
associated electronic devices or fish on schools in
association with FADs. Id. at 003723.
NMFS proposed a regulation (" FAD Regulation" ) to
implement the requirements of CMM 2008-01. The proposed rule
and request for comments was published on June 1, 2009, and
regulation was published by the National Oceanic and
Atmospheric Administration (" NOAA" ) on August 4,
2009. III.H.1 at 003702. The final regulation indicated that
the FAD prohibition period for 2009 would run from August 3,
2009, to September 30, 2009, despite the fact the regulation
was not published in its final form until August 4, 2009.
Id. As part of the published final regulation, the
NMFS also addressed comments that it had received in response
to the publication of the proposed rule. The following
comment and response is relevant to the instant action:
Comment 5: During a FAD prohibition period, the
following activities should not be prohibited: (1) in
situations in which there are no FADs in the area of the
fishing vessel, capturing a school of tuna that has
aggregated under the fishing vessel; [and] (2) capturing fish
that are in the vicinity of a floating object but not
associated with the object . . . .
Response: Regarding activity (1), the
commenter's view is consistent with the intent of the
proposed rule; however, NMFS will revise the final rule to
clarify that the meaning of a FAD does not include the purse
seine vessel itself. Having said that, it is important to
note that under the proposed rule it would be prohibited
during a FAD prohibition period to set a purse seine in an
area into which fish were drawn by a vessel from the vicinity
of a FAD. Regarding activity (2), NMFS does not agree.
Although fish may indeed be found in the vicinity of a FAD
but not necessarily associated with it, NMFS finds that in
order to ensure that fishing on schools in association with
FADs does not occur, it is necessary to also prohibit fishing
on schools that are merely in the vicinity of FADs. Under the
proposed rule, this would be accomplished by prohibiting
setting a purse seine within one nautical mile of a FAD.
Id. at 003704.
relevant part, the final regulation provided that the owners,
operators, and crew of fishing vessels of the United States
during the specified period shall not:
(1) Set a purse seine around a FAD or within one nautical
mile of a FAD.
(2) Set a purse seine in a manner intended to capture fish
that have aggregated in association with a FAD, such as by
setting the purse seine in an area from which a FAD has been
moved or removed within the previous eight hours, or setting
the purse seine in an area in which a FAD has been inspected
or handled within the previous eight hours, or setting the
purse seine in an area into which fish were drawn by a vessel
from the vicinity of a FAD.
(3) Deploy a FAD into water.
(4) Repair, clean, maintain, or otherwise service a FAD,
including any electronic equipment used in association with a
FAD, in the water or on a vessel while at sea except that:
(i) A FAD may be inspected and handled as needed to identify
the owner of the FAD, identify and release incidentally
captured animals, un-foul fishing gear, or prevent damage to
property or risk to human safety; and
(ii) A FAD may be removed from the water and if removed may
be cleaned, provided that it is not returned to the water.
Id. at 003714. Based on the comments to the proposed
regulation, the NMFS revised the definition of a FAD "
to clarify that it does not include a fishing vessel,
provided that the fishing vessel is not used for the purpose
of aggregating fish." Id. at 003710.
As such, a FAD was defined in the final version of the
regulation as " any artificial or natural floating
object, whether anchored or not and whether situated at the
water surface or not, that is capable of aggregating fish, as
well as any objects used for that purpose that are situated
on board a vessel or otherwise out of the water. The
meaning of FAD does not include a fishing vessel, provided
that the fishing vessel is not used for the purpose of
aggregating fish." Id. at 003712-13
(emphasis added). The final FAD Regulation also implemented
the requirement that an observer be on board any vessel that
was engaging in fishing during the specified time periods.
Id. at 003713.
Marine Mammal Protection Act
Marine Mammal Protection Act (" MMPA" ), 16 U.S.C.
§ 1361, et seq., makes it unlawful " for
any person subject to the jurisdiction of the United States
or any vessel or other conveyance subject to the jurisdiction
of the United States to take any marine mammal on the high
sea." 16 U.S.C. § 1372(a)(1). " Take"
means " to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal."
Id. at § 1362(13). Further, the MMPA defines
" harassment" as " any act of pursuit,
torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild; or (ii) has
the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering."
Id. at § 1362(18)(A).
to the instant action is the exception under the MMPA for the
incidental taking of marine mammals during commercial fishing
operations. Pursuant to 16 U.S.C. § 1387(a)(2), marine
mammals may be taken incidentally in the course of commercial
fishing operations and the Secretary of Commerce may issue
annual permits to United States purse seine fishing vessels
for the incidental taking of marine mammals. See 16
U.S.C. § 1374(a) & (h). The Secretary is required to
issue regulations to address the use of the annual permits.
Id. at § 1374(h).
to 16 U.S.C. § 1387, the Secretary was required to
classify fisheries into one of three categories for the
purposes of the incidental take authorizations. The Secretary
found the western and central Pacific Ocean was a fishery
with " occasional incidental mortality and serious
injury of marine mammals." 16 U.S.C. §
1387(c)(1)(A)(ii). As such, the owner or authorized
representative of a fishing vessel was required to possess a
valid Certificate of Authorization in order to lawfully
incidentally take marine mammals in the course of commercial
fishing operation. 50 C.F.R. § 229.4(a)(1). The
Certificate of Authorization provides authorization for
" the incidental, but not intentional, taking
of marine mammals." 50 C.F.R. § 229.2 (emphasis
added). The regulations promulgated by the Secretary defined
" incidental" as " a non-intentional or
accidental act that results from, but is not the purpose of,
carrying out an otherwise lawful action." 50 C.F.R.
Factual and Procedural Background
are captains and owners of six vessels who were issued
Notices of Violation (" NOVAs" ) by NOAA in 2010,
based on alleged violations of the FAD Regulation and the
MMPA during fishing trips taken between August and September
of 2009. Specifically, the NOVAs were issued to: (1) Anthony
Black, American Triumph LLC, and Yen Ming Yuan of the F/V
American Triumph (" AT Plaintiffs" ); (2) Matthew
James Freitas, Sea Quest
LLC, and Ching Wen Wu of the F/V Sea Quest (" Sea Quest
Plaintiffs" ); (3) Benjamin Maughan, Jr., Ocean Conquest
LLC, and Wu Chia Pin of the F/V Ocean Conquest (" Ocean
Conquest Plaintiffs" ); (4) Keith Bass, Jr., Ocean
Encounter LLC, Ho-Ching Chang of the F/V Ocean Encounter
(" Ocean Encounter Plaintiffs" ); (5) Paul
Magellan, Sea Honor LLC, and Yen Hsing Tasai of the F/V Sea
Honor (" Sea Honor Plaintiffs" ); and (6) John
Zolezzi, Pacific Ranger LLC, and Su Tien Shih of the F/V
Pacific Ranger (" Pacific Ranger Plaintiffs" ).
September 29, 2010, NOAA issued NOVAs against each of the six
sets of Plaintiffs finding: (1) eight violations of the FAD
Regulation on the part of the AT Plaintiffs and assessing
total penalties for these violations at $872,500, I.A.1 at
0000004-10; (2) two violations of the FAD Regulation on the
part of the Sea Quest Plaintiffs and assessing total
penalties at $253,750, II.A.1 at 0003979-82; (3) one
violation of the MMPA and two violations of the FAD
Regulation on the part of the Ocean Conquest Plaintiffs and
assessing total penalties at $267,750, id. at
0003989-93; (4) four violations of the MMPA and five
violations of the FAD Regulation on the part of the Ocean
Encounter Plaintiffs and assessing total penalties at
$657,750, id. at 0004000-06; (5) two violations of
the FAD Regulation on the part of the Sea Honor Plaintiffs
and assessing total penalties at $160,000, id. at
0004013-16; and (6) one violation of the FAD Regulation on
the part of the Pacific Ranger Plaintiffs and assessing total
penalties at $117,500, id. at 0004023-26.
the Plaintiffs requested a hearing before an Administrative
Law Judge (" ALJ" ) for an independent
determination as to whether the violations occurred and, if
so, an independent assessment of the penalties. NOAA
proceeded with two cases against Plaintiffs. The AT
Plaintiffs comprised one case and the Sea Quest Plaintiffs,
Ocean Conquest Plaintiffs, Ocean Encounter Plaintiffs, Sea
Honor Plaintiffs, and Pacific Ranger Plaintiffs
(collectively, the " Consolidated Plaintiffs" )
comprised the other case.
filed Motions to Dismiss in both cases, arguing that the NMFS
improperly made the FAD Regulation effective immediately upon
publication in the Federal Register, and its reasons for
waiving the requirement that an agency observe a 30-day delay
between the publication of the final regulation and the
effective date of the regulation as proscribed under the
Administrative Procedure Act (" APA" ) were
arbitrary and capricious. As such, Plaintiffs argued that the
FAD Regulation was not enforceable until September 5, 2009,
30 days after August 4, 2009, the date of publication in the
Federal Register, and that all counts related to alleged FAD
Regulation violations prior to September 5, 2009, should be
dismissed. I.A.29 at 0000348-58; II.A.38 at 0004458-67.
denied the Motions to Dismiss on the basis that the issue was
within the authority of the NOAA Administrator ("
Administrator" ), and not the ALJ, to decide. II.A.46 at
0004576. The ALJ granted Plaintiffs' Application for
Interlocutory Review of the issue by the Administrator.
II.A.51 at 0004656. The Administrator found that the NMFS had
good cause to make the regulation effective immediately and,
accordingly, that the waiver of the 30-day delay was done in
compliance with the APA. As such, the Administrator held that
NOAA may prosecute alleged violations that occurred within 30
days of the publication of the final version of the FAD
Regulation. II.A.87 at 0005165-70. The two matters then
proceeded to hearings before the ALJ. The Court shall discuss
the proceedings for each set of Plaintiffs in turn.
The AT Plaintiffs
hearing related to the AT Plaintiffs took place before an ALJ
on January 31, 2012, July 9-11, 2012, and August 27-28, 2012.
The Agency presented seven witnesses and 20 exhibits, and the
AT Plaintiffs offered four witnesses and 26 exhibits. I.A.84
at 0001403. On August 22, 2013, the ALJ issued the Initial
Decision and Order, finding that seven of the eight
violations of the FAD Regulation were proven. Id. at
0001402. Specifically, the ALJ found that during the FAD
closure period, the AT Plaintiffs had violated the FAD
Regulation by servicing a FAD on one occasion, making a set
within one nautical mile of a FAD on three occasions, and
making a set on a FAD on three occasions. The ALJ found in
one instance that it was not proven that the AT Plaintiffs
made a set within one nautical mile of a FAD. Id. at
0001442. As a result, the ALJ found that a sanction of
$562,068.27 was appropriate for the seven violations that
were proven. Id. at 0001402, 0001477.
November 25, 2013, the ALJ entered an order denying the AT
Plaintiffs' Petition for Reconsideration of the Initial
Decision and Order. I.A.92 at 0001705-16. On April 14, 2014,
the NOAA Administrator denied the AT Plaintiffs' Petition
for Administrator Review of the Initial Decision and Order,
and modified the ALJ's Initial Decision to vacate a
portion of the order with respect to a fishing master that is
not at issue in the instant matter. I.B.101 at 0002231. The
Administrator adopted all other parts of the Initial
Decision, including the order awarding monetary civil
penalties without modification. Id. The
Administrator's decision became the final decision of the
Secretary. Id. at 0002232.
The Consolidated Plaintiffs
hearings related to the violations of the Consolidated
Plaintiffs took place before the ALJ on February 1-2, 2012,
July 11-12, 2012, August 23-24, 2012, and October 29, 2012.
The Agency presented 14 witnesses and 65 exhibits, and the
Consolidated Plaintiffs offered eight witnesses and 37
exhibits. II.A.100 at 0005465. On August 23, 2013, the ALJ
issued the Initial Decision and Order, finding that all
alleged violations against the Consolidated Plaintiffs were
proven. Id. at 0005463. Specifically, the ALJ found
that it was proven that: (1) the Sea Quest Plaintiffs
violated the FAD Regulation by making a set within one
nautical mile of a FAD on two occasions and, as a result,
assessed a penalty of $147,959.68; (2) the Pacific Ranger
Plaintiffs violated the FAD Regulation by making a set within
one nautical mile of a FAD on one occasion and, as a result,
assessed a penalty of $41,699.50; (3) the Ocean Conquest
Plaintiffs violated the MMPA by making a set on a whale on
one occasion and violated the FAD Regulation by making a set
within one nautical mile of a FAD on two occasions and, as a
result, assessed a penalty of $215,776.77; (4) the Ocean
Encounter Plaintiffs violated the MMPA by making a set on a
whale on four occasions and violated the FAD Regulation by
making a set within one nautical mile of a FAD on five
occasions and, as a result, assessed a penalty of
$497,617.98; and (5) the Sea Honor Plaintiffs violated the
FAD Regulation by servicing/deploying a FAD on two occasions
and, as a result, assessed a penalty of $50,000. Id.
December 6, 2013, the ALJ entered an order denying the
Consolidated Plaintiffs' Petition for Reconsideration of
the Initial Decision and Order. II.A.107 at
0005886. On April 14, 2014, the NOAA Administrator denied the
Consolidated Plaintiffs' Petition for Administrator
Review of the Initial Decision and Order, and modified the
ALJ's Initial Decision to vacate a portion of the order
with respect to a fishing master that is not at issue in the
instant matter. II.B.114 at 0006556-58. The Administrator
adopted all other parts of the Initial Decision, including
the order awarding monetary civil penalties without
modification. Id. at 0006558. The
Administrator's decision became the final decision of the
owners and operators of all six vessels, the F/V American
Triumph, the F/V Sea Quest, the F/V Ocean Quest, the F/V
Ocean Encounter, the F/V Sea Honor, and the F/V Pacific
Ranger, bring the instant action for judicial review of the
final decisions of the Secretary pursuant to 16 U.S.C. §
1858(b). The six fishing masters who were parties in the
administrative proceedings have not sought judicial review.
Federal Rule of Civil Procedure 56(a), " [t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." However,
" when a party seeks review of agency action under the
[Administrative Procedure Act before a district court], the
district judge sits as an appellate tribunal. The 'entire
case' on review is a question of law." Am.
Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083, 348
U.S. App.D.C. 77 (D.C. Cir. 2001). Accordingly, " the
standard set forth in Rule 56(c) does not apply because of
the limited role of a court in reviewing the administrative
record . . . Summary judgment is [ ] the mechanism for
deciding whether as a matter of law the agency action is
supported by the administrative record and is otherwise
consistent with the [Administrative Procedure Act] standard
of review." Se. Conference v. Vilsack, 684
F.Supp.2d 135, 142 (D.D.C. 2010).
case involves the review of agency decisions under both the
Magnuson-Stevens Act and the Administrative Procedures Act
(" APA" ). The standard of review for agency
decisions under the Magnuson-Stevens Act is borrowed from the
APA. See 16 U.S.C. § 1858(b) (" The
findings and order of the Secretary shall be aside by such
court if they are not found to be supported by substantial
evidence, as provided in section 706(2) of [the APA]."
). The APA provides in pertinent part that a reviewing court
shall " hold unlawful and set aside agency action,
findings, and conclusions found to be . . . unsupported by
substantial evidence." 5 U.S.C. § 706(2). The APA
also provides that courts should set aside decisions that are
" arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." Id. The
" substantial evidence" standard and the "
arbitrary and capricious" standard " require
equivalent levels of scrutiny." Memorial
Hospital/Adair County Health Center, Inc. v. Bowen, 829
F.2d 111, 117, 264 U.S. App.D.C. 326 (D.C. Cir. 1987). The
Supreme Court has explained that " substantial
evidence" means " more than a mere scintilla."
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co.
v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126
(1938)). " It means such relevant evidence as a
reasonable mind might accept as adequate
to support a conclusion." Id. The D.C. Circuit
has recognized that, in applying the substantial evidence
test, an agency decision " may be supported by
substantial evidence even though a plausible alternative
interpretation of the evidence would support a contrary
view." Morall v. Drug Enforcement Admin., 412
F.3d 165, 176, 366 U.S. App.D.C. 383 (D.C. Cir. 2005).
Normally, a decision will be reversed for lack of substantial
evidence " only when the record is so compelling that no
reasonable factfinder could fail to find to the
contrary." Orion Reserves Ltd. P'ship v.
Salazar, 553 F.3d 697, 704, 384 U.S. App.D.C. 268 (D.C.
Cir. 2009), cert. denied, 558 U.S. 822, 130 S.Ct.
110, 175 L.Ed.2d 32 (2009) (citation and quotation marks
omitted). " [J]udicial review under the substantial
evidence test is ultimately deferential." Indus.
Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448
U.S. 607, 705, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980). The
agency's decision is presumptively valid, and the court
is not authorized to substitute its own judgment for that of
the agency. Id. The Court's review is limited to
the administrative record. Bloch v. Powell, 227
F.Supp.2d 25, 30 (D.D.C. 2002).
reviewing court can also set aside agency action if it is
" arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" or " in
excess of statutory jurisdiction, authority, or limitations,
or short of statutory right," or " without
observance of procedure required by law." 5 U.S.C.
§ § 706(2)(A), (C), (D). An agency's decision
may be arbitrary or capricious if any of the following apply:
(i) its explanation runs counter to the evidence before the
agency or is so implausible that it could not be ascribed to
a difference of view or the product of agency expertise; (ii)
the agency entirely failed to consider an important aspect of
the problem or issue; (iii) the agency relied on factors
which Congress did not intend the agency to consider; or (iv)
the decision otherwise constitutes a clear error of judgment.
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856; 77
L.Ed.2d 443 (1983); accord Jicarilla Apache
Nation v. United States DOI, 613 F.3d 1112, 1118, 392
U.S. App.D.C. 145 (D.C. Cir. 2010).
reviewing agency decisions, the court " must give
substantial deference to an agency's interpretation of
its own regulations." Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d
405 (1994). The court's " task is not to decide
which among several competing interpretations best serves the
regulatory purpose." Id. Rather, the
agency's interpretation is controlling " unless it
is plainly erroneous or inconsistent with the
regulation." Id. (citations omitted).
raise several challenges to the Secretary's final
decisions in both the proceedings. Specifically, Plaintiffs
argue that: (1) the Administrator erred in finding that NOAA
properly waived the 30-day delay between the publication of
the FAD Regulation and its effective date; (2) the definition
of a FAD in the regulation was vague and ambiguous; (3)
NOAA's interpretation of the MMPA was contrary to the
plain meaning of the statute; (4) the ALJ's findings were
unsupported by substantial evidence because the ALJ made
improper credibility determinations and failed to properly
weigh the evidence before him, and, relatedly, the
Administrator's adoption of the findings as final was
arbitrary and capricious for the same reasons; and (5) the
penalties assessed against each of the Plaintiffs were
excessive under the circumstances. The Court shall address
the each of Plaintiffs' first three arguments and then
the Court shall address the ALJ's credibility
and analysis, and the Administrator's adoption of the
ALJ's findings for each of the six sets of Plaintiffs.
Finally, the Court shall address the penalties assessments
for each of the Plaintiffs and the Administrator's
adoption of the same as the final decision of the Secretary.
Waiver of the 30-Day Notice Period Pursuant to the
first allege that NOAA failed to demonstrate good cause to
waive the 30-day delay between the publication of the FAD
Regulation in the Federal Register and the effective date of
the Regulation. Plaintiffs argue that the FAD Regulation
should not have been effective until September 5, 2009, 30
days after the date of publication, and, as such, all counts
based on alleged violations that occurred prior to that time
should be dismissed. Pls.' Mem. at 17. Pursuant to 5
U.S.C. § 553(d), " [t]he required publication or
service of a substantive rule shall be made not less than 30
days before its effective date, except . . . as otherwise
provided by the agency for good cause found and published
with the rule." Id. at § 553(d)(3).
August 4, 2009, the final version of the FAD Regulation was
published in the Federal Register and made effective as of
August 3, 2009. The following notice of the waiver of the
30-day period was published with the Regulation:
There is good cause under 5 U.S.C. 553(d)(3) to waive the
30-day delay in effective date for all of this final rule
except § § 300.222(aa) and 300.223(f) (the sea
turtle migration requirements and associated prohibitions).
Compliance with the 30-day delay requirement would be
impracticable and contrary to the public interest the FAD
prohibition period and associated observer requirement would
be in effect for only about half of the specified period in
2009, meaning that NMFS would be frustrated in promulgating
the regulations needed to satisfy the international
obligations of the United States under the Convention. Also,
NMFS had limited notice of the need to implement CMM 2008-01,
which was adoption in the December 2008 regular annual
session of the WCPFC.
at 003710. Plaintiffs raise two objections to the notice.
First, Plaintiffs argue that the reasons set forth in the
notice do not meet the " good cause" requirement
under the APA for waiving the 30-day notice period. Pls.'
Mem. at 17-21. Second, Plaintiffs argue that during the
interlocutory review of this issue, the Administrator
erroneously relied on different reasons than those set forth
in the published notice to justify waiver of the 30-day
period. Id. at 21-22. The Court shall address each
argument in turn.
to Plaintiffs' first argument, Plaintiffs assert that
NOAA's contention that compliance with the 30-day delay
requirement was " impracticable" lacks merit, and
that in reality NOAA was unable to meet the 30-day delay
requirement because of its own " foot-dragging"
during the process. Pls.' Mem. at 19-20. Further,
Plaintiffs assert that recognizing the 30-day delay would not
have been " contrary to public interest" and,
instead, the failure to recognize the delay ignored the
public interest of the fishermen who were subject to the
Regulation by failing to give them an opportunity to take
reasonable measures to comply. Id. at 20. As such,
Plaintiffs argue that NOAA has failed to demonstrate
good cause to waive the 30-day notice requirement under ...