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Black v. Pritzker

United States District Court, D. Columbia.

August 10, 2015

ANTHONY BLACK, et al, Plaintiffs,
v.
PENNY SUE PRITZKER, Secretary, U.S. Department of Commerce, et al, Defendants

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          For 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.

         For 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, Washington, DC.

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         MEMORANDUM OPINION

         COLLEEN KOLLAR-KOTELLY, United States District Judge.

         Plaintiffs, 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,[1] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' [18] Motion for Summary Judgment and DENIES Plaintiffs' [16] Motion for

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Summary Judgment. Accordingly, judgment shall be entered for Defendants.

         I. BACKGROUND

         A. Statutory and Regulatory Framework

         1. Western and Central Pacific Fisheries Convention Implementation Act

         In 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.[2] 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. § 6905(c).

         At 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[3] 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.

         The 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 the final

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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.

         In 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.

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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.

         2. Marine Mammal Protection Act

         The 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).

         Relevant 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).

         Pursuant 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. § 229.2.

         B. Factual and Procedural Background

         Plaintiffs 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

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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" ).

         On 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.

         Each of 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.

         Plaintiffs 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.

         The ALJ 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

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the proceedings for each set of Plaintiffs in turn.

         1. The AT Plaintiffs

         The 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.

         On 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.

         2. The Consolidated Plaintiffs

         The 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. at 0005462-63.

         On December 6, 2013, the ALJ entered an order denying the Consolidated Plaintiffs' Petition for Reconsideration of the Initial Decision and Order.[4] II.A.107 at

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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 Secretary. Id.

         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.

         II. LEGAL STANDARD

         Under 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).

         This 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

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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).

         A 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).

         In 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).

         III. DISCUSSION

         Plaintiffs 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 determinations

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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.

         A. Waiver of the 30-Day Notice Period Pursuant to the APA

         Plaintiffs 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.[5] 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).

         On 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.

         III.H.1 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.

         Turning 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

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good cause to waive the 30-day notice requirement under ...


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