Petition for Writ of Certiorari — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the District of Columbia Circuit, Loper

Bright Enters., Inc. v. Raimondo,

No. 21-5166 (Aug. 12, 2022) ........................ App-1

Appendix B

Memorandum Opinion, United States

District Court for the District of

Columbia, Loper Bright Enters., Inc. v.

Raimondo, No. 20-466 (June 15, 2021)..... App-38

Appendix C

Relevant Statutory Provisions ................ App-115

16 U.S.C. § 1821(h) ........................... App-115

16 U.S.C. § 1853(a)-(b) ..................... App-118

16 U.S.C. § 1853a(c)(1), (e) ............... App-128

16 U.S.C. § 1862(a)-(b), (d)-(e).......... App-131

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________

No. 21-5166

________________

LOPER BRIGHT ENTERPRISES, INC., et al.,

Appellants,

CAPE TRAWLERS, INC., et al.,

v.

Appellees,

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS

SECRETARY OF COMMERCE, et al.,

Appellees.

________________

Argued: Feb. 8, 2022

Decided: Aug. 12, 2022

________________

Before: Srinivasan *, Chief Judge, Rogers and Walker,

Circuit Judges.

________________

ROGERS, Circuit Judge: In implementing an

Omnibus Amendment that establishes industryfunded monitoring programs in New England fishery

management plans, the National Marine Fisheries

Service promulgated a rule that required industry to

* Chief Judge Srinivasan was drawn to replace Judge Jackson,

now Justice Jackson, who heard argument and did not

participate in this opinion.

App-2

fund at-sea monitoring programs. A group of

commercial herring fishing companies contend that

the statute does not specify that industry may be

required to bear such costs and that the process by

which the Service approved the Omnibus Amendment

and promulgated the Final Rule was improper. We

affirm the district court’s grant of summary judgment

to the Service based on its reasonable interpretation

of its authority and its adoption of the Amendment

and the Rule through a process that afforded the

requisite notice and opportunity to comment.

I.

The Magnuson-Stevens Fishery Conservation and

Management Act of 1976 (the “Act”), 16 U.S.C.

§§ 1801-1884, in furtherance of its goal “to conserve

and manage the fishery resources . . . of the United

States,” 16 U.S.C. § 1801 (b)(1), authorizes the

Secretary of Commerce, and the National Marine

Fisheries Service (“the Service”) as the Secretary’s

delegee, to implement a comprehensive fishery

management program, id. § 1801(a)(6); see id. §§ 1854,

1855(d). Key to the statutory scheme is the

promulgation

and

enforcement

of

“fishery

management plans.” Plans and periodic amendments

are developed by regional fishery management

councils, id. § 1852(h)(1), and include measures

“necessary and appropriate for the conservation and

management of the fishery,” id. § 1853(a)(1)(A). The

proposing council may include specific conservation

and management measures enumerated in 16 U.S.C.

§ 1853(b), as well as any other measures “determined

to be necessary and appropriate,” id. § 1853(b)(14). In

App-3

addition, the council may propose implementing

regulations. Id. § 1853(c).

Nine fisheries, including the Atlantic herring

fishery, are managed by the New England Fishery

Management

Council

(the

“Council”).

Id.

§ 1852(a)(1)(A), (h)(1). The Council submitted the

Omnibus Amendment to the Service, which published

a notice of availability and subsequently opened a

comment period. Notice of Availability, 83 Fed. Reg.

47,326 (Sept. 19, 2018); Notice of Proposed

Rulemaking (“NPRM”), 83 Fed. Reg. 55,665 (Nov. 7,

2018). The Service approved the Omnibus

Amendment on December 18, 2018, and published the

Final Rule on February 7, 2020. 1 The Amendment and

the Rule set out a standardized process to implement

and revise industry-funded monitoring programs in

the New England fisheries. Omnibus Amendment at

v; Final Rule, 85 Fed. Reg. at 7,414-17. Plan coverage

requirements may be waived if monitoring is

unavailable or certain exemptions based on use of

monitoring equipment or catch size apply. See Final

Rule, 85 Fed. Reg. at 7,417, 7,419-20.

The monitoring program for the Atlantic herring

fishery covers 50 percent of herring trips. The 50percent coverage target is met through a combination

of limited Service-funded monitoring pursuant to the

1 Industry-Funded Monitoring: An Omnibus Amendment to the

Fishery Management Plans of the New England Fishery

Management Council (2018) (“Omnibus Amendment”);

Magnuson-Stevens Fishery Conservation and Management Act

Provisions; Fisheries of the Northeastern United States;

Industry-Funded Monitoring Final Rule, 85 Fed. Reg. 7,414 (Feb.

7, 2020) (“Final Rule”).

App-4

fishery management plan, see 16 U.S.C. § 1853(a)(11),

and, for the difference between the target and Servicefunded monitoring, industry-funded monitoring, with

owners of vessels selected by the Service to carry an

industry-funded monitor and pay the associated costs

(other than administrative costs). Final Rule, 85 Fed.

Reg. at 7,417. The Service estimated industry costs to

the herring fishery “at $710 per day,” which in the

aggregate could reduce annual returns by

“approximately 20 percent.” Id. at 7,418.

Appellants are commercial fishermen who

regularly participate in the Atlantic herring fishery.

They filed a lawsuit alleging, as relevant, that the Act

did not authorize the Service to create industryfunded monitoring requirements and that the

rulemaking process was procedurally irregular. The

district court ruled on the parties’ cross-motions for

summary judgment in the government’s favor. Loper

Bright Enters., Inc. v. Raimondo, 544 F. Supp. 3d 82,

127 (D.D.C. 2021).

II.

On appeal, appellants’ challenge to the Final Rule

presents the question how clearly Congress must state

an agency’s authority to adopt a course of action. This

court is aware of the Supreme Court precedent that

Congress must clearly indicate its intention to

delegate authority to take action that will have major

and far-reaching economic consequences. Util. Air

Regul. Grp. v. EPA, 573 U.S. 302, 323-24 (2014). But

that “major questions doctrine” applies only in those

“‘extraordinary cases’ in which the ‘history and

breadth of the authority that [the agency] has

asserted,’ and the ‘economic and political significance’

App-5

of that assertion, provide a ‘reason to hesitate before

concluding that Congress’ meant to confer such

authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2595

(2022) (alteration in original) (quoting FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 159-60

(2000)). Here, the Service’s challenged actions are

distinct. Congress has delegated broad authority to an

agency with expertise and experience within a specific

industry, and the agency action is so confined,

claiming no broader power to regulate the national

economy. The court’s review thus is limited to the

familiar questions of whether Congress has spoken

clearly, and if not, whether the implementing agency’s

interpretation is reasonable. See Chevron U.S.A., Inc.

v. Nat. Res. Def. Council, 467 U.S. 837, 842-43 (1984).

Although the Act may not unambiguously resolve

whether the Service can require industry-funded

monitoring, the Service’s interpretation of the Act as

allowing it to do so is reasonable.

A.

Appellants contend the Act permits the Service to

require at-sea monitors but prohibits any industryfunded

monitoring

programs

beyond

three

circumstances. The Service responds that the Act

unambiguously authorizes it to implement industryfunded monitoring requirements. The court applies

the familiar two-step Chevron framework. See, e.g.,

Cigar Ass’n of Am. v. FDA, 5 F.4th 68, 77 (D.C. Cir.

2021) (citing Chevron, 467 U.S. at 842-43). At Chevron

Step One, the court, “employing traditional tools of

statutory

interpretation,”

evaluates

“whether

Congress has directly spoken to the precise question

at issue.” Chevron, 467 U.S. at 842-43 & n.9. “If the

App-6

intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of

Congress.” Id. at 842-43. If the statute considered as a

whole is ambiguous, then at Chevron Step Two the

court defers to any “permissible construction of the

statute” adopted by the agency. Cigar Ass’n of Am., 5

F.4th at 77 (quoting Chevron, 467 U.S. at 843).

At Chevron Step One, the court “begin[s] with the

language employed by Congress and the assumption

that the ordinary meaning of that language accurately

expresses the legislative purpose.” Engine Mfrs. Ass’n

v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252

(2004) (internal quotation marks omitted). Section

1853(b)(8) provides fishery management plans may

“require that one or more observers be carried on

board a vessel . . . for the purpose of collecting data

necessary for the conservation and management of the

fishery.” That text makes clear the Service may direct

vessels to carry at-sea monitors but leaves

unanswered whether the Service must pay for those

monitors or may require industry to bear the costs of

at-sea monitoring mandated by a fishery management

plan. When Congress has not “directly spoken to the

precise question at issue,” the agency may fill this gap

with a reasonable interpretation of the statutory text.

Chevron, 467 U.S. at 842.

The Service maintains that two additional

features of the Act, when paired with Section

1853(b)(8), unambiguously establish authority to

require industry-funded monitoring. First, Section

1853 contains two “necessary and appropriate”

clauses that permit plans approved by the Service to

App-7

“prescribe such other measures, requirements, or

conditions and restrictions as are determined to be

necessary and appropriate for the conservation and

management of the fishery.” Id. § 1853(b)(14); see also

id.

§ 1853(a)(1)(A)

(mandating

“measures . . . necessary and appropriate for the

conservation and management of the fishery”).

Second, the penalty provisions allow the Service to

impose permit sanctions for failure to make “any

payment required for observer services provided to or

contracted by an owner or operator,” id.

§ 1858(g)(l)(D), and make unlawful various acts

committed against “any data collector employed by the

[Service] or under contract to any person to carry out

responsibilities under [the Act],” id. § 1857(1)(L).

Taken together, these provisions of the Act signal

the Service may approve fishery management plans

that mandate at-sea monitoring for a statutory

purpose. Section 1853(b)(8) grants authority to

require that vessels carry at-sea monitors. Sections

1853(a)(l)(A) and (b)(14) grant authority to implement

measures

“necessary

and

appropriate”—a

“capacious[]” grant of power that “leaves agencies with

flexibility,” Michigan v. EPA, 135 S. Ct. 2699, 2707

(2015)—to achieve the Act’s conservation and

management goals. The penalties in Sections 1857

and 1858 further indicate that Congress anticipated

industry’s use of private contractors. Still unresolved,

however, is the question of whether the Service may

require industry to bear the costs of at-sea monitoring

mandated by a fishery management plan.

When an agency establishes regulatory

requirements, regulated parties generally bear the

App-8

costs of complying with them. In Michigan v. EPA, 135

S. Ct. 2699, 2711 (2015), the Supreme Court held that

an agency implementing a policy under wide-ranging

“necessary and appropriate” authority must consider

the costs of compliance. That principle presupposes

that a “necessary and appropriate” clause vests an

agency with some authority to impose compliance

costs. Here, the Act’s national standards for fishery

management plans direct the Service to “minimize

costs” of conservation and management measures, 16

U.S.C. § 1851(a)(7), and to “minimize adverse

economic impacts” of such measures “on [fishing]

communities,” id. § 1851(a)(8). Those statutory

admonitions to reduce costs seem to presume that the

Service may impose some costs, as “minimize” does not

mean eliminate entirely. In addition, neither Section

1853(b)(8) nor any other provision of the Act imposes

a funding-related restriction on the Service’s authority

to require monitoring in a plan. That also suggests the

Act permits the Service to require industry-funded

monitoring.

The inference that the Service may require fishing

vessels to incur costs associated with meeting the 50percent monitoring coverage target is not, however,

wholly unambiguous. Nothing in the record

definitively establishes whether at-sea monitors are

the type of regulatory compliance cost that might fall

on fishing vessels by default or whether Congress

would have legislated with that assumption. Absent

such an indication, the court cannot presume that

Section 1853(b)(8), even paired with the Act’s

“necessary and appropriate” and penalty provisions,

unambiguously affords the Service power to mandate

App-9

that vessels pay for monitors. See NY. Stock Exch.

LLC v. SEC, 962 F.3d 541,554 (D.C. Cir. 2020).

Appellants maintain that Sections 1821, 1853a(e),

and 1862, which create monitoring programs with

some similarities to the Omnibus Amendment’s

monitoring program, give rise by negative implication

to the inference that the Act unambiguously deprives

the Service of authority to create additional industryfunded monitoring requirements. This expressio unius

reasoning, “when countervailed by a broad grant of

authority contained within the same statutory

scheme, . . . is a poor indicator of Congress’ intent.”

Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697

(D.C. Cir. 2014). Examination of each of the three

monitoring programs further illustrates why

appellants’ view is unfounded.

First, the limited access privilege program created

in Section 1853a(e) authorizes a council to establish “a

program of fees . . . that will cover the costs of

management, data collection and analysis, and

enforcement activities.” It does not list monitoring as

a covered activity. See id. Although monitoring might

qualify as “data collection and analysis,” this provision

does not speak directly to this point, nor does it say

anything about who may fund observers. The canon

that “the specific governs the general,” RadLAX

Gateway Hotel, LLC v. Amalg. Bank, 566 U.S. 639, 645

(2012); see Genus Med. Techs. LLC v. FDA, 994 F.3d

631, 638 (D.C. Cir. 2021), is unhelpful to appellants in

this context because there is no relevant “conflict”

between statutory terms that do not address the same

subject, Genus Med. Techs., 994 F.3d at 638-39.

Section 1853a(e) therefore does not suggest any

App-10

limitation on the Service’s discretion to impose

monitoring costs on industry under Section 1853(b)(8).

Second, the North Pacific Council monitoring

program created by Section 1862, which “requires that

observers be stationed on fishing vessels” and

“establishes a system . . . of fees . . . to pay for the cost

of implementing the plan,” 16 U.S.C. § 1862(a)(1)-(2),

is similarly distinguishable. These fees are to be

“collected” by the Service, id. § 1862(b)(2), and

deposited into a North Pacific Fishery Observer Fund

established by the Act and “in the Treasury,” id.

§ 1862(d), for disbursement to cover the costs of the

monitoring program, see id. § 1862(a), (e). This special

fee program also does not suggest that the Service

lacks authority to require industry-funded observers

in all other fisheries. The fee program in Section 1862

institutes a different funding mechanism from that of

the Omnibus Amendment and Final Rule: under

Section 1862, money collected from regulated parties

passes through government coffers, while under the

Omnibus Amendment and Final Rule, regulated

vessel owners pay third-party monitors directly to

supply services required for regulatory compliance.

Congress’s specific authorization of a single fishery

program funded by fees paid to the government does

not unambiguously demonstrate that the Act

prohibits the Service from implementing a separate

program in which industry pays the costs of

compliance to service providers without any

government pass-through.

Section 1821 creates a foreign fishing vessel

monitoring program, which authorizes the Secretary

to impose a “surcharge” to “cover all the costs of

App-11

providing a United States observer” aboard foreign

vessels. Id. § 1821(h)(4). Generally, observers on

foreign vessels are funded through “surcharges [to

owners] collected by the Secretary” and deposited in

an earmarked U.S. government fund, id., a fee

program roughly analogous to the North Pacific

Council monitoring program. In the event of

insufficient appropriations, however, Section 1821

establishes a “supplementary observer program” by

which “certified observers or their agents” are “paid by

the owners and operators of foreign fishing vessels for

observer services.” Id. § 1821(h)(6). This provision for

industry-funded observers in the foreign-fishing

section of the Act, does not show that Congress

implicitly intended to preclude the Service from

requiring any other industry-funded monitoring. See

Util. Air Regul. Grp., 573 U.S. at 323-24. Its

contingency plan for monitoring in the foreign-fishing

context has no unambiguous consequences for the

Service’s authority to implement industry-funded

monitoring in other contexts. By providing for

industry-funded observers as part of a contingency in

the foreign-fishing provisions of the Act, it appears

doubtful that Congress intended implicitly to preclude

the

Service

from requiring industry-funded

monitoring in all other circumstances. Further, the

Act’s penalty provisions offset negative inferences that

might be drawn from Section 1821. See 16 U.S.C.

§§ 1857(1)(L), 1858(g)(1)(D). Rather, these broad

provisions indicate that Congress anticipated the use

of privately retained contractors to comply with the

Act’s requirements. And the penalties in a broadly

applicable section of the Act appear to recognize the

possibility of industry-contracted and funded

App-12

observers beyond the foreign-vessel context. If

Congress had intended for penalties associated with

industry-funded monitoring to apply only in the

foreign fishing context, the court would expect that

Congress in the penalty provisions would have

specifically referenced foreign vessels or included a

cross-reference to the foreign fishing provision.

Finally, appellants claim that, given the

substantial costs of industry-funded monitoring to

herring fishing companies, “Congress would not have

delegated ‘a decision of such economic and political

significance to an agency in so cryptic a fashion’” as

reliance on “necessary and appropriate” authority.

Appellants’ Br. 41 (quoting Brown & Williamson

Tobacco Corp., 529 U.S. at 160). Indeed, an agency

may not rely on a “necessary and appropriate” clause

to claim implicitly delegated authority beyond its

regulatory lane or inconsistent with statutory

limitations or directives. See, e.g., Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485, 2487-88 (2021);

Michigan, 135 S. Ct. at 2707-08; NY. Stock Exch., 962

F.3d at 554-55. The Service does not do so here

because its interpretation falls within the boundaries

set by the Act. Section 1853(b)(8) expressly envisions

that monitoring programs will be created and, through

its silence, leaves room for agency discretion as to the

design of such programs. In addition, at-sea

monitoring relates to the Service’s interest in fishery

management and the Act contains no bar on industryfunded monitoring programs, instead permitting

plans

to

“prescribe

such

other

measures,

requirements, or conditions and restrictions” as are

“necessary and appropriate for the conservation and

management of the fishery,” id. § 1853(b)(14); see id.

App-13

§ 1853(a)(1)(A). The Service’s understanding of

Section 1853(b)(8) and the “necessary and

appropriate” clauses as encompassing industryfunded monitoring thus does not exceed statutory

limits.

Nonetheless, the text does not compel the

Service’s interpretation of the Act as granting

authority by omission to require industry-funded

monitoring. Courts “construe [a statute’s] silence as

exactly that: silence.” EEOC v. Abercrombie & Fitch

Stores, Inc., 135 S. Ct. 2028, 2033 (2015). Neither

Section 1853(b)(8) nor any other provision of the Act

explicitly allows the Service to pass on to industry the

costs of monitoring requirements included in fishery

management plans. Nor do the traditional tools of

statutory interpretation provide another basis on

which to conclude that the Act unambiguously

supports the Service’s interpretation. Congress has

thus provided no wholly unambiguous answer at

Chevron Step One as to whether the Service may

require industry-funded monitoring in the Omnibus

Amendment and Final Rule. Although an agency’s

interpretation need not be compelled by the text for it

to prevail at Step One, here, where there may be some

question as to Congress’s intent, particularly in view

of appellants’ cost objection, it behooves the court to

proceed to Step Two of the Chevron analysis.

Pursuant to Step Two, an agency’s interpretation

can prevail if it is a “reasonable resolution of an

ambiguity in a statute that the agency administers,”

Michigan, 135 S. Ct. at 2707, and “the agency has

offered a reasoned explanation for why it chose that

interpretation,” Cigar Ass’n of Am., 5 F.4th at 77

App-14

(internal quotation marks omitted). Under this

deferential standard, the Service’s interpretation of

the Act as authorizing additional industry-funded

monitoring programs is reasonable. Section

1853(b)(8), paired with the Act’s “necessary and

appropriate” clauses, demonstrates that the Act

considers monitoring “necessary and appropriate” to

further the Act’s conservation and management goals.

That conclusion provides a reasonable basis for the

Service to infer that the practical steps to implement

a monitoring program, including the choice of funding

mechanism and cost-shifting determinations, are

likewise

“necessary

and

appropriate”

to

implementation of the Act. See Final Rule, 85 Fed.

Reg. at 7,422-23.

In addition, the Final Rule provides a reasoned

explanation for the Service’s interpretation. The Rule

noted that Section 1853(b)(8) authorizes the Service to

require at-sea monitors “for the purpose of collecting

data necessary for the conservation and management

of the fishery. Id. at 7,422 (quoting 16 U.S.C.

§ 1853(b)(8)). It further explained that industryfunded monitoring to reach the new 50-percent

coverage target would best serve the Act’s

conservation and management goals. In particular,

increased monitoring would permit the Service “to

assess the amount and type of catch, to more

accurately monitor annual catch limits, and/or provide

other information for management.” Id. at 7,423. The

Rule also stated that industry-funded monitoring was

consistent with other provisions of the Act that impose

compliance costs on industry. Id. at 7,422. This

explanation reasonably tied the industry-funded

monitoring requirement to the Act’s purposes. The

App-15

Service’s interpretation of the Act is therefore owed

deference at Chevron Step Two.

Our dissenting colleague agrees that the Chevron

framework governs this case but disagrees about how

it applies, asserting that the court should reach

Chevron Step Two only if “the statute is ambiguous”

and “Congress either explicitly or implicitly delegated

authority to cure that ambiguity.” Dis. Op. at 5

(internal quotation marks omitted); see id. at 5 n.16.

The dissent suggests that “Congress’s silence on a

given issue . . . [generally] indicates a lack of

authority,” id. at 6, but Chevron instructs that judicial

deference is appropriate “if the statute is silent or

ambiguous with respect to the specific issue,” 467 U.S.

at 843 (emphasis added). The Supreme Court has

affirmed its Chevron analysis, see, e.g., City of

Arlington v. FCC, 569 U.S. 290, 296 (2013), and this

court has reacknowledged its binding force, see, e.g.,

Sierra Club v. EPA, 21 F.4th 815, 818-19 (D.C. Cir.

2021). The dissent’s reference to recent cases in which

the Supreme Court has not applied the framework, see

Dis. Op. at 5 & n.6, does not affect the obligation of

this court to “leav[e] to [the Supreme] Court the

prerogative of overruling its own decisions,” Agri

Processor Co. v. NLRB, 514 F.3d 1, 8 (D.C. Cir. 2008)

(second alteration in original) (quoting Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477,484 (1989)).

Not every statutory silence functions as an

implicit delegation. See U.S. Telecom Ass’n v. FCC,

359 F.3d 554, 566 (D.C. Cir. 2004). But Section

1853(b)(8)’s silence on the issue of cost of at-sea

monitoring provides no basis for applying different

App-16

standards of review here. Dis. Op. at 8-9. Under

Chevron, such silence in the context of a

comprehensive statutory fishery management

program for the Service to implement, 16 U.S.C.

§§ 1801(a)(6), 1854, 1855(d), is a lawful delegation,

Chevron, 467 U.S. at 842-44. Furthermore, the

Supreme Court has instructed that a broad “necessary

and appropriate” provision, as appears in the Act,

“leaves agencies with flexibility” to act in furtherance

of statutory goals, Michigan, 135 S. Ct. at 2707, and

here the Service pointed to the Act’s conservation and

management goals. Speculation that the Service’s

interpretation of its authority may lead to exorbitant

regulatory costs to industry, see Dis. Op. at 11,

overlooks Chevron Step Two’s reasonableness

limitation. Nor, in these circumstances, is Congress’s

provision for industry-funded monitoring in three

unique situations properly understood to eliminate

the Service’s authority to create industry-funded

monitoring programs in any other situation, see id. at

12-14. Under the well-established Chevron Step Two

framework, the Service’s interpretation of the Act to

allow industry-funded monitoring was reasonable.

B.

Appellants’ alternative challenge emphasizes that

this court reviews the grant of summary judgment de

novo and the Omnibus Amendment and Final Rule

were enacted and adopted pursuant to the

Administrative Procedure Act (“APA”). Under the

APA’s deferential standard, the court upholds agency

action unless it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A); see Cigar Ass’n of Am, 5 F.4th at

App-17

74. “An agency is owed no deference,” however, “if it

has no delegated authority from Congress to act.” NY.

Stock Exch., 962 F.3d at 553. The court “determines

whether the resulting regulation exceeds the agency’s

statutory authority” before it determines whether the

regulation “is arbitrary or capricious,” id. at 546

(citing Sullivan v. Zebley, 493 U.S. 521, 528 (1990)), as

is addressed in subsection A.

Appellants urge that the Omnibus Amendment

and Final Rule are arbitrary and capricious, even if

statutorily authorized, “because they do not

adequately account for the economic cost” of industryfunded monitoring for participants in the Atlantic

herring fishery. Appellants’ Br. 55. To survive

arbitrary and capricious review, an agency “may not

‘entirely fai[l] to consider an important aspect of the

problem’ when deciding whether regulation is

appropriate.” Michigan, 135 S. Ct. at 2707 (alteration

in original) (quoting Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)). Cost is such a factor in view of the Act’s

directive that fishery management plans minimize

adverse effects and costs to the fishing community

wherever possible. See 16 U.S.C. § 1851(a)(7), (8).

The record shows the Service took note of evidence

that the Atlantic herring industry-funded monitoring

program costs impacted vessels $710 per day and

could reduce annual returns by approximately 20

percent. Final Rule, 85 Fed. Reg. at 7,418. It evaluated

the economic impacts of the program in detail, see id.

at 7,417-22, 7,428-29, responded to comments raising

cost-related concerns, see id. at 7,424-26, and

described its efforts to minimize economic impacts on

App-18

herring fishery participants, see id. at 7,429-30. For

example, vessel owners may request waivers of

industry-funded monitoring coverage on trips

intending to land less than 50 metric tons of herring,

and midwater trawl vessels may comply with the

requirement through electronic monitoring instead of

retaining a private monitor. Id. at 7,430. Further, in

the Rule, the Service explained its choice of a 50percent coverage target as “balanc[ing] the benefit of

additional monitoring with the costs associated with

additional monitoring,” id. at 7,425, and adopted

exemptions designed to address adverse effects on

smaller vessels, see id. at 7,419-20, 7,425, 7,430. So,

the Service’s decision to proceed with an industryfunded monitoring requirement after extensive

deliberations on the question of cost was not arbitrary

or capricious.

C.

Finally, appellants contend that promulgation of

the Omnibus Amendment and the Final Rule was

procedurally improper. Specifically, appellants

challenge the Service’s failure to comply with the Act’s

timeline for review of the Amendment, see 16 U.S.C.

§§ 1853, 1854, and its use of overlapping comment

periods for the Amendment and the Rule. Neither

contention is persuasive.

That the Service did not follow the Act’s timeline

provides no basis for relief here. The Service published

the notice of availability for the Omnibus Amendment

three days after the statutory deadline, see 16 U.S.C.

§ 1854(a)(1)(A)-(B), (5), and adopted the Final Rule

more than a year after its comment period ended, see

Final Rule, 85 Fed. Reg. at 7,414, contrary to the

App-19

requirement that implementing regulations be

promulgated within thirty days of the close of their

comment period, see 16 U.S.C. § 1854(b)(3).

Procedural errors that are “technical” in nature and

“therefore harmless” are “not grounds for vacating or

remanding.” Int’l Bhd. of Teamsters v. U.S. Dep’t of

Transp., 724 F.3d 206, 217 (D.C. Cir. 2013); see

Nevada v. Dep’t of Energy, 457 F .3d 78, 90 (D.C. Cir.

2006). Appellants do not identify any harm or

prejudice resulting from the alleged delay. In addition,

“if a statute does not specify a consequence for

noncompliance with statutory timing provisions, the

federal courts will not in the ordinary course impose

their own coercive sanction.” Barnhart v. Peabody

Coal Co., 537 U.S. 149, 159 (2003) (internal quotation

marks omitted); see Transp. Div. of Int’l Ass’n of Sheet

Metal, Air, Rail & Transp. Workers v. Fed. R.R.

Admin., 10 F.4th 869, 873-74 (D.C. Cir. 2021). The Act

does not penalize missed deadlines, and appellants do

not point to any basis for this court sua sponte to

vacate the Final Rule.

Appellants’ suggestion that the Service

“prejudged the legality” of the Omnibus Amendment

through its use of overlapping comment periods with

the Final Rule fares no better. The Act requires that

notice and comment on a plan amendment and its

accompanying regulations occur in tandem. See 16

U.S.C. §§ 1853(c)(1), 1854(a)(1), (5), 1854(b)(1)(A).

Even if the statutory text did not control, the Service

may initiate implementing regulations of its own

accord, subject to APA notice-and-comment

requirements that it “publish [a] notice of proposed

rulemaking in the Federal Register and . . . accept and

consider public comments on its proposal.” Mendoza v.

App-20

Perez, 754 F.3d 1002, 1020 (D.C. Cir. 2014) (citing 5

U.S.C. § 553). Here, the Service set comment periods

of sixty and forty-five days, respectively, for the

Omnibus Amendment and the Final Rule and stated

that it would consider comments received on either

document in its decision to approve the Amendment.

NPRM, 83 Fed. Reg. at 55,667. The Act does not

require publication of approval of plan amendments.

See 16 U.S.C. § 1854(a)(3). So, the Service could

address public comments on the Omnibus

Amendment upon promulgation of the Final Rule, see

85 Fed. Reg. at 7,422-27. In view of Congress’s

expectation that the Service would consider comments

on plan amendments and implementing regulations at

the same time, see 16 U.S.C. §§ 1853(c)(1), 1854(a)(1),

(5), 1854(b)(1)(A), appellants fail to show a lack of fair

notice and a meaningful opportunity to comment as

the AP A requires. See, e.g., Conn. Light & Power Co.

v. Nuclear Regul. Comm’n, 673 F.2d 525, 528 (D.C.

Cir. 1982).

Accordingly, the court affirms the district court’s

grant of summary judgment to the Service and denial

of summary judgment to appellants.

App-21

WALKER, Circuit Judge, dissenting:

Did Congress authorize the National Marine

Fisheries Service to make herring fishermen in the

Atlantic pay the wages of federal monitors who inspect

them at sea?

Congress unambiguously did not.

I.

A fishery is both a group of fish and the fishing for

that group. 1 The Magnuson-Stevens Act governs all

fisheries in federal waters. 2 Its goal is to keep the

fisheries healthy so that Americans can enjoy the

economic, recreational, and nutritional benefits of a

marine ecosystem. 3

In pursuit of that goal, the Act allows the National

Marine Fisheries Service to approve fishery

management plans, which set rules for the fisheries

they govern. 4 Those plans are developed by regional

councils and include provisions specifying things like

the number of fish that will be harvested in the

fishery, the type of fishing gear to be used, and the

1 16 U.S.C. § 1802(13).

2 Id. § 1801 et seq.

3 Id. § 1801(b).

Id. §§ 1853, 1854(a). The Fisheries Service’s authority is

delegated from the Secretary of Commerce. Although the

Appellees also include the Secretary of Commerce, the

Department of Commerce, and officials in the National Oceanic

and Atmospheric Administration, I refer to the appellees as the

“Fisheries Service” because they are the most direct regulators in

this matter.

4

App-22

reporting methods required. 5 When a plan needs

updating, the relevant council submits a proposed

amendment to the Fisheries Service for review. 6 The

council may also propose corresponding implementing

regulations. 7 Then the Fisheries Service must publish

those proposals, take comments, and approve or

disapprove of the proposals. 8 If it approves, it will

promulgate them as final regulations. 9

That’s what happened here. The New England

Council amended the Atlantic herring fishery

management plan to require that fishermen allow atsea monitors on many of their fishing trips, and the

Fisheries Service approved its amendment. 10 The atsea monitors are third-party inspectors who go aboard

fishing vessels to keep an eye on operations. They

track things like how many of which fish are being

caught with what gear. No one disputes that the

Magnuson-Stevens Act allows the Fisheries Service to

impose this monitoring requirement.

But providing a monitor for a days-long fishing

voyage can get expensive, and the Fisheries Service

has had trouble affording its preferred monitoring

5 Id. § 1853(a)(4)-(5), (a)(11), (b)(4). The regional councils were

established by the Magnuson-Stevens Act and are made up of

representatives from various interested sectors (commercial,

recreational, governmental, and academic). Id. § 1852.

6 Id. § 1852(h)(1).

7 Id. § 1853(c).

8 Id. § 1854(a).

9 Id. § 1854(b)(3).

10 Magnuson-Stevens Fishery Conservation and Management

Act Provisions; Fisheries of the Northeastern United States;

Industry Funded Monitoring, 85 Fed. Reg. 7417 (Feb. 7, 2020).

App-23

programs with just its congressionally appropriated

funds. 11 Add to that a further problem for the

Fisheries Service: Congress generally prohibits an

agency from collecting fees and keeping the money

from those fees for the agency’s own purposes. 12

Instead, absent express statutory authority to keep

and spend that money, agencies can only spend as

much money as Congress appropriates. 13

Here, the Fisheries Service attempted a

workaround. It decided to make fishing companies,

like Loper Bright Enterprises, hire and pay for their

own at-sea monitors. The Fisheries Service estimates

that for the Atlantic Herring fishery, those monitors

Fisheries of the Northeastern United States; Atlantic

Herring Fishery; Amendment 5, 79 Fed. Reg. 8,786, 8,792-93

(Feb. 13, 2014) (The Fisheries Service has been working since at

least 2013 to find a legal way to use industry funding to increase

observer coverage as “[b]udget uncertainties prevent [the

Fisheries Service] from being able to commit to paying for

increased observer coverage in the herring fishery.”); see also

Fisheries of the Northeastern United States; Atlantic Mackerel,

Squid, and Butterfish Fisheries; Amendment 14, 79 Fed. Reg.

10,029, 10,038 (Feb. 24, 2014) (Without industry funding,

“increased observer coverage levels would amount to an

unfunded mandate, meaning regulations would obligate [the

Fisheries Service] to implement something it cannot pay for.”).

11

31 U.S.C. § 3302(b) (With one unrelated exception, “an

official or agent of the Government receiving money for the

Government from any source shall deposit the money in the

Treasury as soon as practicable without deduction for any charge

or claim.”).

12

13 Id. § 1341(a)(1) (“An officer or employee of the United States

Government or of the District of Columbia government may not—

(A) make or authorize an expenditure or obligation exceeding an

amount available in an appropriation or fund for the expenditure

or obligation”).

App-24

will cost more than $700 per day and could reduce

financial returns to the fishermen by twenty percent.

The fishermen challenged the amendment and

the implementing regulations in district court and

now appeal the court’s decision granting summary

judgment for the Fisheries Service. 14

I would reverse the judgment of the district court

because the Magnuson-Stevens Act unambiguously

does not authorize the Fisheries Service to force the

fishermen to pay the wages of federally mandated

monitors.

II.

Agencies are creatures of Congress, so they have

no authority apart from what Congress bestows. 15

The Fisheries Service points to the MagnusonStevens Act as its source of authority for requiring

fishermen to pay for at-sea monitors. We review the

Fisheries Service’s interpretation of that statute

14 Loper Bright Enterprises, LLC v. Raimondo, 544 F. Supp. 3d

82, 127 (D.D.C. 2021).

Louisiana Public Service Commission v. FCC, 476 U.S.

355,374 (1986) (“an agency literally has no power to

act . . . unless and until Congress confers power upon it”); Motion

Picture Association of America, Inc. v. FCC, 309 F.3d 796, 801

(D.C. Cir. 2002) (“An agency may not promulgate even reasonable

regulations that claim a force of law without delegated authority

from Congress.”); Railway Labor Executives’ Association v.

National Mediation Board, 29 F.3d 655, 670 (D.C. Cir.),

amended, 38 F.3d 1224 (D.C. Cir. 1994) (“Agencies owe their

capacity to act to the delegation of authority, either express or

implied, from the legislature.”); Bowen v. Georgetown University

Hospital, 488 U.S. 204, 208 (1988) (“It is axiomatic that an

administrative agency’s power to promulgate legislative

regulations is limited to the authority delegated by Congress.”).

15

App-25

under the two-step Chevron framework. 16 First, we

ask “whether Congress has directly spoken to the

precise question at issue” or “left a gap for the agency

to fill.” 17 At that stage, in searching for direction from

Congress, we empty our interpretive toolkit. 18 And if

it’s clear that the text does not authorize the agency’s

action, the analysis ends, and the agency loses. 19 Only

if the statute is ambiguous, and only if “Congress

either explicitly or implicitly delegated authority to

cure that ambiguity,” do we proceed to Chevron’s

second step and defer to the agency’s reasonable

interpretation of the ambiguity. 20

16 Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-44

(1984). But see Becerra v. Empire Health Foundation, 142 S. Ct.

2354 (2022) (not mentioning Chevron); National Federation of

Independent Business v. OSHA, 142 S. Ct. 661 (2022) (same);

BNSF Railway Co. v. Loos, 139 S. Ct. 893 (2019) (same); Pereira

v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring)

(“Given the concerns raised by some Members of this Court, it

seems necessary and appropriate to reconsider, in an appropriate

case, the premises that underlie Chevron and how courts have

implemented that decision.” (citations omitted)).

17 Chevron, 467 U.S. at 842-43.

18 Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1287 (D.C.

Cir. 2000).

19 Chevron, 467 U.S. at 842-43; see also Virginia Uranium, Inc.

v. Warren, 139 S. Ct. 1894, 1900 (2019) (plurality opinion) (“in

any field of statutory interpretation, it is our duty to respect not

only what Congress wrote but, as importantly, what it didn’t

write”).

20 Hearth, Patio & Barbecue Association v. United States

Department of Energy, 706 F.3d 499, 504 (D.C. Cir. 2013) (“The

ambiguity must be such as to make it appear that Congress

either explicitly or implicitly delegated authority to cure that

ambiguity. Mere ambiguity in a statute is not evidence of

congressional delegation of authority.” (quoting American Bar

App-26

Congress’s silence on a given issue does not

automatically create such ambiguity or give an agency

carte blanche to speak in Congress’s place. 21 In fact,

all else equal, silence indicates a lack of authority. 22

That means that when agency action is

challenged, it is not the challenger’s job to show that

Congress has specifically prohibited the challenged

action. 23 Holding challengers to that burden would be

“entirely untenable.” 24 Instead, an agency must

Association v. Federal Trade Commission, 430 F.3d 457, 469

(D.C. Cir. 2005))).

21 United States Telecom Association v. FCC, 359 F.3d 554, 566

(D.C. Cir. 2004) (“the failure of Congress to use ‘Thou Shalt Not’

language doesn’t create a statutory ambiguity of the sort that

triggers Chevron deference”); American Petroleum Institute v.

EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (“we will not presume a

delegation of power based solely on the fact that there is not an

express withholding of such power”).

22 United States Telecom Association, 359 F.3d at 566 (“The

statutory ‘silence’ simply leaves that lack of authority

untouched.”).

23 Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082

(D.C. Cir. 2017) (“The [agency] and the dissent seem to suggest

that the agency may take an action . . . so long as Congress has

not prohibited the agency action in question. That theory has it

backwards as a matter of basic separation of powers and

administrative law. The [agency] may only take action that

Congress has authorized.”); Railway Labor Executives’

Association, 29 F.3d at 671 (“Were courts to presume a delegation

of power absent an express withholding of such power, agencies

would enjoy virtually limitless hegemony, a result plainly out of

keeping with Chevron and quite likely with the Constitution as

well.”).

24 Motion Picture Association, 309 F.3d at 805-06; see also Gulf

Fishermens Association v. National Marine Fisheries Service, 968

App-27

positively demonstrate where Congress explicitly or

implicitly empowered it to act.

III.

Both sides agree that nowhere in the MagnusonStevens Act does Congress explicitly empower the

Fisheries Service to require the Atlantic herring

fishermen to fund an at-sea monitoring program. So to

prevail, the Fisheries Service must point to some

implicit delegation of that authority.

It has failed to do so. The Act unambiguously does

not authorize the Fisheries Service to require these

fishermen to pay the wages of at-sea monitors. 25

A.

The Fisheries Service first relies on 16 U.S.C.

§ 1853(b)(8), which provides that fishery management

plans may:

F.3d 454, 456 (5th Cir. 2020), as revised (Aug. 4, 2020) (“Congress

does not delegate authority merely by not withholding it”).

But see Relentless Inc. v. United States Department of

Commerce, 561 F. Supp. 3d 226, 238 (D.R.I. 2021) (Another group

of herring fishermen challenged the same industry-funding

provision, and citing our district court, the District of Rhode

Island found that the Fisheries Service “reasonably interpreted”

the Magnuson-Stevens Act “to authorize” industry-funded

monitors in the Atlantic herring fishery.); Goethel v. Pritzker,

No. 15-CV-497-JL, 2016 WL 4076831, at *6 (D.N.H. July 29,

2016), aff’d sub nom. Goethe! v. United States Department of

Commerce., 854 F.3d 106, 108 (1st Cir. 2017) (The district court

found that the Magnuson-Stevens Act authorized a similar

industry-funding scheme in a different fishery, but the First

Circuit affirmed on timeliness grounds, expressly declining to

decide whether industry funding violated the Act.).

25

App-28

require that one or more observers be

carried on board a vessel of the United

States engaged in fishing for species that are

subject to the plan, for the purpose of

collecting data necessary for the conservation

and management of the fishery. 26

That provision allows the agency to require that

fishermen give at-sea monitors a place on their

vessels—the fishermen must let the monitor “be

carried.”

The Fisheries Service argues that such authority

implicitly includes the authority to make the

fishermen pay the monitors’ wages because the wages

are simply an incidental cost of complying with the

duty to allow monitors onboard. In the agency’s eyes,

it’s no different than, say, the cost of buying

statutorily-required fishing gear.

But that analogy doesn’t hold up.

First, the Act’s language meaningfully differs in

its treatment of gear and observers. Section 1853(b)(4)

allows plans to “require the use” of certain fishing

gear. If the Act similarly allowed plans to require the

use of an at-sea monitor, perhaps the Fisheries Service

could argue that the cost of procuring the monitor was

incidental to that command. But § 1853(b)(8) doesn’t

allow plans to require that fishermen use observers. It

only allows them to require that fishermen let

observers “be carried on board.”

A cost incidental to carrying an observer might

include the additional fuel costs of a marginally

26 16 U.S.C. § 1583(b)(8) (emphasis added).

App-29

heavier boat or the opportunity cost of giving to the

monitor a bunk that would otherwise be occupied by a

working fisherman. Those are costs that necessarily

follow when a fisherman lets a monitor on his boat. By

contrast, there is no inherent, or even intuitive,

connection between paying a monitor’s wage and

providing him passage.

Second, inspection requirements and gear

requirements are different classes of impositions on

regulated parties, and they carry different

expectations. 27 Regulatory mandates, such as gear

requirements, often carry compliance costs. But the

Fisheries Service has identified no other context in

which an agency, without express direction from

Congress, requires an industry to fund its inspection

regime.

Even if the Fisheries Service had found a few

outliers, it is not usual to require a regulated party to

pay the wages of its monitor when the statute is silent.

Nor is it expected. In short, it is not the type of thing

that goes without saying. And here, Congress didn’t

say it. 28

B.

The Fisheries Service next asks us to find its

authority in § 1853’s “necessary and appropriate”

27 Those expectations, of course, inform our interpretation of

how “ordinary people understand the rules that govern them.”

NizChavez v. Garland, 141 S. Ct. 1474, 1485 (2021).

28 See Mozilla Corp. v. FCC, 940 F.3d 1, 83 (D.C. Cir. 2019) (“No

matter how desirous of protecting their policy judgments, agency

officials cannot invest themselves with power that Congress has

not conferred.” (citations omitted)).

App-30

clauses. 29 The first such clause, § 1853(a)(1)(A), says

that fishery management plans:

shall contain the conservation and

management measures, applicable to

foreign fishing and fishing by vessels of the

United States, which are necessary and

appropriate for the conservation and

management of the fishery, to prevent

overfishing and rebuild overfished stocks,

and to protect, restore, and promote the longterm health and stability of the fishery. 30

And the second such clause, § 1853(b)(14), similarly

says that fishery management plans:

may prescribe such other measures,

requirements, or conditions and restrictions

as are determined to be necessary and

appropriate for the conservation and

management of the fishery. 31

The Fisheries Service argues that because the

monitors’ data collection is important and because the

Fisheries Service can’t afford it, it is necessary and

appropriate to make the fishermen fund it.

For three reasons, I disagree.

First, context tells us that the Fisheries Service’s

capacious reading is wrong. Section 1853(a) says that

fishery management plans must, for example,

describe the fishery, specify a reporting methodology,

29 16 U.S.C. § 1853(a)(1)(A), (b)(14).

30 Id. § 1853(a)(1)(A) (emphases added).

31 Id. § 1853(b)(14) (emphases added).

App-31

and identify essential fish habitats. 32 And § 1853(b)

says that fishery management plans may, for

example, designate protected coral zones, limit the

type and amount of fish to be caught, and assess the

effect of plan measures on certain fish stocks. 33 Those

and the other measures surrounding the “necessary

and appropriate” provisions “inform[] the grant of

authority by illustrating the kinds of measures that

could be necessary” or appropriate. 34 And none of the

measures in those sections look anything like the

funding scheme that the Fisheries Service

contemplates here.

Second, the logic of the Fisheries Service’s

argument could lead to strange results. 35 Could the

agency require the fishermen to drive regulators to

their government offices if gas gets too expensive?

32 Id. § 1853(a)(2), (a)(11), (a)(7).

33 Id. § 1853(b)(2)(B), (b)(3)(A), (b)(9).

34 Alabama Association of Realtors v. Department of Health &

Human Services, 141 S. Ct. 2485, 2488 (2021); see also

Washington State Department of Social & Health Services v.

Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (“under

the established interpretative canons of noscitur a sociis and

ejusdem generis, where general words follow specific words in a

statutory enumeration, the general words are construed to

embrace only objects similar in nature to those objects

enumerated by the preceding specific words” (cleaned up)); see

also NASDAQ Stock Market, LLC v. SEC, 961 F.3d 421, 428 (D.C.

Cir. 2020) (applying the canon to reject an agency interpretation

within the Chevron framework).

35 Merck & Co., Inc., v. United States Department of Health &

Human Services, 962 F.3d 531, 541 (D.C. Cir. 2020) (“the breadth

of the Secretary’s asserted authority is measured not only by the

specific application at issue, but also by the implications of the

authority claimed”).

App-32

Having the agency officials at work may be

“appropriate” for “management of the fishery.” Yet I

doubt that Congress meant to allow for free fisherman

chauffeurs.

Or what if Congress were to entirely defund the

compliance components of the Fisheries Service—

could the agency continue to operate by requiring the

industry to fund a legion of independent contractors to

replace the federal employees? That generous

interpretation of “necessary and appropriate” could

undermine Congress’s power of the purse. 36 So

although the words “necessary and appropriate” may

be broad, they cannot be as limitless as the Fisheries

Service suggests. 37

Third, if Congress had wanted to allow industry

funding of at-sea monitors in the Atlantic herring

fishery, it could have said so. But it instead chose to

36 See, e.g., John Holland & Laura Allen, An Analysis of Factors

Responsible for the Decline of the U.S. Horse Industry: Why Horse

Slaughter Is Not the Solution, 5 Kentucky Journal of Equine,

Agriculture, and Natural Resources Law 225, 225-27 (2013)

(Congress used its funding power in its effort to end commercial

horse slaughter by defunding the requisite ante-mortem

inspections.).

37 See Alabama Association of Realtors, 141 S. Ct. at 2489 (“It

is hard to see what measures this interpretation would place

outside the CDC’s reach, and the Government has identified no

limit . . . beyond the requirement that the CDC deem a measure

necessary.” (cleaned up)); Mozilla Corp., 940 F.3d at 75 (“even the

allowance of wide latitude in the exercise of delegated powers is

not the equivalent of untrammeled freedom to regulate activities

over which the statute fails to confer, or explicitly denies,

Commission authority” (cleaned up)).

App-33

expressly provide for it in only certain other contexts. 38

The existence of specific provisions for industry

funding elsewhere—for only certain North Pacific

fisheries, foreign fishing, and limited access privilege

programs—suggests that the Fisheries Service can’t

turn to a catchall “necessary and appropriate”

prerogative to implicitly authorize industry funding in

the Atlantic herring fishery. 39

Take for example the provision governing the

North Pacific fisheries. The statute says that the

relevant council may, in certain North Pacific

fisheries, “require[] that observers be stationed on

fishing vessels” and “establish[] a system . . . of

fees . . . to pay for the cost of implementing the plan.” 40

That provision and the “necessary and

appropriate” provisions were enacted at the same

16 U.S.C. § 1862(a) (North Pacific fishery), § 1821(h)(4)

(foreign fishing), § 1853a(e)(2) (limited access privilege

programs). A limited access privilege program is one in which an

entity is permitted to catch a specified portion of the total

allowable catch for all the fishermen per fishing season. Although

the fee provision for limited access privilege programs does not

itself mention observers, it nevertheless covers them. Section

1853a(c)(1)(H) instructs that a limited access privilege program

shall “include an effective system for enforcement, monitoring,

and management of the program, including the use of observers,”

and subsection (e) instructs that “fees paid by limited access

privilege holders … will cover the costs of management, data

collection and analysis, and enforcement activities.”

38

39 Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (“We have long

held that where Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (cleaned up)).

40 16 U.S.C. § 1862(a).

App-34

time. 41 It is hard to believe that, when Congress

decided to explicitly allow industry-funding for

observers in one way (fees) in one place (the North

Pacific), it also decided to silently allow all fisheries to

fund observers in any other way they choose. 42 The

plainer reading of the text is that Congress’s

authorization for industry funding was limited to

what it expressly authorized. 43

In its briefing, the Fisheries Service tried to

explain away the existence of this specific industryfunding provision by arguing that Congress merely

wanted to “mandate” a certain solution in the North

Pacific. 44 But that’s not what Congress did. The

41 Fishery Conservation Amendments of 1990, Pub. L. No. 101-

627, § 109(b)(2), 104 Stat. 4436, 4448 (codified at 16 U.S.C.

§ 1853(b)(8)); id. § 118(a), 104 Stat. 4457 (codified at 16 U.S.C.

§ 1862).

Gross v. FBL Financial Services, Inc, 557 U.S. 167, 175

(2009) (“negative implications raised by disparate provisions are

strongest where the provisions were considered simultaneously”

( cleaned up)).

42

See NASDAQ Stock Market LLC v. SEC, No. 21-1167, 2022

WL 2431638, at *6 (D.C. Cir July 5, 2022) (Although our Circuit

has, at times, been skeptical of the expressio unius canon, when

“a grant of authority . . . reasonably impl[ies] the preclusion of

alternatives, the canon is a useful aide.” (cleaned up)).

43

Government Brief 44 (“In this situation, ‘the contrast

between Congress’s mandate in one context with its silence in

another suggests not a prohibition but simply a decision not to

mandate any solution in the second context, i.e., to leave the

question to agency discretion.”’ (quoting Cheney Railroad Co. v

Interstate Commerce Commission, 902 F.2d 66, 69 (D.C. Cir.

1990))).

44

App-35

language of the fee provision in the North Pacific is

discretionary, not mandatory. 45

The Fisheries Service also tries to draw a

distinction between (1) making fishermen pay for

monitors through a “fee” program like the program

used in the North Pacific—where the money goes to

the government, and the government then uses that

money to pay the monitors’ wages—and (2) making

the fishermen pay the monitors directly, as here,

without the government as a middleman. 46

But if the Fisheries Service is correct that the two

schemes aren’t analogous, that shows the novelty of

the Fisheries Service’s scheme for the Atlantic herring

fishery- a novelty that cuts even more against the

Fisheries Service’s reliance on an authority either

implied or provided by the catch-all “necessary and

appropriate” clauses. And on the other hand, if the two

schemes are analogous, that suggests that Congress

made a deliberate choice when it expressly approved

fishermen-funded monitoring only for the North

16 U.S.C. § 1862(a)(2) (“The North Pacific council

may. . . require[] that observers be stationed on fishing vessels”

and “establish[] a system . . . of fees . . . to pay for the cost of

implementing the plan.” (emphasis added)).

45

46 The Fisheries Service is not eager to highlight that the North

Pacific and limited-access schemes are not at all analogous to the

scheme at issue here in at least one respect: their cost. In the

North Pacific, if fees are set as a fixed percentage, they may not

exceed two percent of the value of what the ship brings in on a

trip. 16 U.S.C. § 1862(b)(2)(E). And in the context of limited

access privilege programs, the cap is three percent. Id.

§ 1854(d)(2)(B). But here, the required payments to at-sea

monitors could reduce the fishermen’s financial returns by

twenty percent.

App-36

Pacific, foreign fishing, and limited access privilege

programs - and not here. 47

To the extent there is a meaningful difference between

paying fees to the government and paying observers directly, the

Magnuson-Stevens Act already, explicitly, contemplates both.

The Act creates more traditional fee programs in the North

Pacific, limited access privilege programs, and foreign fishing

generally. But when the Fisheries Service has “insufficient

appropriations” to provide full observer coverage for foreign

fishing, the Act calls for the implementation of a supplementary

observer program under which “certified observers” are “paid by

the owners and operators of foreign fishing vessels for observer

services.” 16 U.S.C. § 1821(h)(6)(C). So we know that Congress is

(1) aware of the possibility that appropriations are sometimes

insufficient to cover observer programs and (2) capable of

creating industry-funding schemes to resolve that dilemma. And

the Fisheries Service itself acknowledges both of those points in

a document currently posted on its website regarding limited

access privilege programs. United States Department of

Commerce, National Oceanic and Atmospheric Administration &

National Marine Fisheries Service, The Design and Use of

Limited Access Privilege Programs 3 (Lee G. Anderson & Mark

C. Holliday eds., 2007), https://www.fisheries.noaa.gov/

resource/document/design-and-uselimited-access-privilege-programs

(last updated June 13, 2019) (“In times of constant or shrinking

federal budgets, obtaining the funds to pay for new management

plans is a real concern. Congress implicitly took this into

consideration by mandating a cost recovery program for LAP

programs . . . . Funds to cover the additional costs of the

LAP program will have to come from the current

appropriations. This means that there will have to be cuts

elsewhere . . . . The [councils’] decisions should ensure that the

costs of implementation and operation do not exceed the

appropriated and cost-recovered funds available. Regardless of

whether it is a LAP program, the alternative is the potential

disapproval of a [ fishery management plan] ( or part of it) where

funds are insufficient to carry out a management choice.”

(emphasis added)).

47

App-37

*

*

*

Fishing is a hard way to earn a living. 48 And

Congress can make profitable fishing even harder by

forcing fishermen to spend a fifth of their revenue on

the wages of federal monitors embedded by regulation

onto their ships.

But until Congress does that, the Fisheries

Service cannot.

I respectfully dissent.

48 Cf Ernest Hemingway, The Old Man and the Sea (1952);

Herman Melville, Moby Dick (1851); The Perfect Storm (Warner

Bros. Pictures 2000); Billy Joel, The Downeaster “Alexa” (1990);

The Deadliest Catch (Discovery Channel 2005-present); Letter

from Vincent Van Gogh to Theo Van Gogh (on or about May 16,

1882),

https://vangoghletters.org/vg/letters/let228/letter.html

(“The fishermen know that the sea is dangerous and the storm

fearsome, but could never see that the dangers were a reason to

continue strolling on the beach.” (emphasis omitted)).

App-38

Appendix B

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

________________

No. 20-466

________________

LOPER BRIGHT ENTERPRISES, INC., et al.,

Plaintiffs,

v.

GINA RAIMONDO, in her official capacity as

Secretary of Commerce, et al.,

Defendants.

________________

Filed: June 15, 2021

________________

MEMORANDUM OPINION

________________

Plaintiffs, “a collection of commercial fishing firms

headquartered in southern New Jersey that

participate regularly in the Atlantic herring fishery,”

challenge the U.S. Department of Commerce

Secretary’s final rule promulgating the New England

Industry-Funded Monitoring Omnibus Amendment

(“Omnibus Amendment”) and its implementing

regulations, which establish a process for

administering future industry-funded monitoring in

Fishery Management Plans governing certain New

England fisheries and implement a required industryfunded monitoring program in the Atlantic herring

fishery. Pls.’ Mem. P. & A. Supp. Mot. Summ. J. (“Pls.’

App-39

Mot.”), ECF No. 18-1 at 22-23. 1 Plaintiffs allege that

the Omnibus Amendment suffers from procedural

flaws and violates the directives of the MagnusonStevens Fishery Conservation and Management Act

(“MSA”), 16 U.S.C. § 1801 et seq.; the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321

et seq.; the Regulatory Flexibility Act, 5 U.S.C. § 601

et seq.; and the Administrative Procedure Act, 5 U.S.C.

§ 701 et seq. See Compl., ECF No. 1. Plaintiffs further

contend that the industry-funded monitoring

requirement constitutes an unconstitutional tax and

violates the Anti-Deficiency Act, 31 U.S.C. § 1341; the

Independent Offices Appropriations Act, 31 U.S.C.

§ 9701; and the Miscellaneous Receipts Act, 31 U.S.C.

§ 3302. See Pls.’ Mot., ECF No. 18-1 at 38-40.

Defendants—Gina Raimondo, 2 Secretary of the U.S.

Department of Commerce; the U.S. Department of

Commerce; Benjamin Friedman, 3 Deputy Under

Secretary for Operations, performing the duties of

Under Secretary of Commerce for Oceans and

Atmosphere and National Oceanic and Atmospheric

Administration (“NOAA”) Administrator; the NOAA;

Chris Oliver, Assistant Administrator for NOAA

1 When citing electronic filings throughout this Opinion, the

Court cites to the ECF page number, not the page number of the

filed document.

2 Pursuant to Federal Rule of Civil Procedure 25(d), the Court

substitutes as defendant the United States Secretary of

Commerce, Gina Raimondo, for the former United States

Secretary of Commerce, Wilbur L. Ross.

3 Pursuant to Federal Rule of Civil Procedure 25(d), the Court

substitutes as defendant the current Official Performing the

Duties of NOAA Administrator, Benjamin Friedman, for the

former Acting NOAA Administrator, Neil Jacobs.

App-40

Fisheries; and the National Marine Fisheries Service

(“NMFS”)—dispute Plaintiffs’ claims.

Pending before the Court are Plaintiffs’ Motion for

Summary Judgment, ECF No. 18; Defendants’ CrossMotion for Summary Judgment, ECF No. 20; and

Defendants’ Motion to Exclude Plaintiffs’ ExtraRecord Declaration, ECF No. 24. Upon consideration

of the parties’ submissions, the applicable law, and the

entire record herein, the Court DENIES Plaintiffs’

Motion

for

Summary

Judgment,

GRANTS

Defendants’ Cross-Motion for Summary Judgment,

and GRANTS Defendants’ Motion to Exclude.

I.

Background

A. Statutory and Regulatory Background

1.

The

Magnuson-Stevens

Fishery

Conservation and Management Act

of 1976

The MSA “balances the twin goals of conserving

our nation’s aquatic resources and allowing U.S.

fisheries to thrive.” Oceana, Inc. v. Pritzker, 26 F.

Supp. 3d 33, 36 (D.D.C. 2014). Congress enacted the

MSA to, among other things, “conserve and manage

the fishery resources found off the coasts of the United

States,” and “promote domestic commercial and

recreational fishing under sound conservation and

management principles.” 16 U.S.C. § 1801(b)(1), (3).

The MSA tasks the Secretary of Commerce with the

pursuit of these goals, and the Secretary has in turn

delegated her responsibility to the National Marine

Fisheries Service (“NMFS” or the “Service”). 4 See 16

4 The Service is a federal agency within the Department of

Commerce’s NOAA.

App-41

U.S.C. § 1855(d). In addition, the MSA divides the

country into eight regions, and establishes a Fishery

Management Council in each region to manage the

region’s marine fisheries. 5 See id. § 1852. “Together,

the Service and the Councils act to address imbalances

in aquatic ecosystems.” Oceana, Inc., 26 F. Supp. 3d at

37.

Each Fishery Management Council must prepare

and submit to the Secretary of the U.S. Department of

Commerce a Fishery Management Plan (“FMP”),

which is approved by the Service. 16 U.S.C.§§ 1852(h),

1854(a). As is most relevant here, the New England

Fishery Management Council (“NEFMC” or the

“Council”) is responsible for developing and

recommending FMPs for fisheries in the Atlantic

Ocean seaward of Maine, New Hampshire,

Massachusetts, Rhode Island, and Connecticut,

including the Atlantic herring fishery. See id.

§§ 1852(a)(1)(A), 1852(h)(1).

FMPs contain “conservation and management

measures” that are “necessary and appropriate for the

conservation and management of the fishery, to

prevent overfishing and rebuild overfished stocks, and

to protect, restore, and promote the long-term health

and stability of the fishery.” Id. § 1853(a)(1)(A). FMPs

must also be consistent with the ten “national

standards” provided for in the MSA, as well as all

5 The MSA defines a “fishery” as “one or more stocks of fish

which can be treated as a unit for purposes of conservation and

management and which are identified on the basis of

geographical, scientific, technical, recreational, and economic

characteristics” and “any fishing for such stocks.” 16 U.S.C.

§ 1802(13).

App-42

other provisions of the MSA, and “any other applicable

law.” Id. § 1853(a)(1)(C); see also id. § 1851 (setting

forth National Standards). In this case, Plaintiffs

claim that the Omnibus Amendment violates two of

those national standards:

[“National Standard Seven”:] Conservation

and management measures shall, where

practicable, minimize costs and avoid

unnecessary duplication.

[“National Standard Eight”:] Conservation

and management measures shall, consistent

with the conservation requirements of this

chapter (including the prevention of

overfishing and rebuilding of overfished

stocks), take into account the importance of

fishery resources to fishing communities by

utilizing economic and social data that meet

the requirements of paragraph (2), in order to

(A) provide for the sustained participation of

such communities, and (B) to the extent

practicable, minimize adverse economic

impacts on such communities.

Id. § 1851(a)(7)-(8).

FMPs may also include additional discretionary

provisions to conserve and manage fisheries. Id.

§ 1853(b). Among other things, FMPs may “require

that one or more observers be carried on board a vessel

of the United States engaged in fishing for species that

are subject to the plan, for the purpose of collecting

data necessary for the conservation and management

of the fishery.” Id. § 1853(b)(8). FMPs may also

“prescribe such other measures, requirements, or

conditions and restrictions as are determined to be

App-43

necessary and appropriate for the conservation and

management of the fishery.” Id. § 1853(b)(14).

After a council prepares an FMP or amendment

and any proposed implementing regulations, it

submits them to the Service, which acts on behalf of

the Commerce Secretary, for review. See generally id.

§ 1854. The Service reviews the submission for

consistency with applicable law and solicits public

comments for sixty days. Id. § 1854(a)(1)(A)-(B).

Within thirty days of the end of the comment period,

the Service shall approve, disapprove, or partially

approve the submission. Id. § 1854(a)(3). If the Service

approves, a final rule is published in the Federal

Register. See id. § 1854(b)(3). Approved FMPs or

amendments are subject to judicial review under the

APA within thirty days. See id. § 1855(f)(1).

2.

The National Environmental Policy

Act

Congress enacted NEPA “to use all practicable

means, consistent with other essential considerations

of national policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end

that the Nation may . . . fulfill the responsibilities of

each generation as trustee of the environment for

succeeding generations.” 42 U.S.C. § 4331(b). To

comply with these obligations, agencies must prepare

an Environmental Impact Statement (“EIS”) in which

the agency takes a “hard look” at the environmental

consequences before taking major action. Id. § 4332(c).

An EIS must “inform decision makers and the public

of reasonable alternatives that would avoid or

minimize adverse impacts . . . of the human

environment.” 40 C.F.R. § 1502.1.

App-44

To determine whether an EIS must be prepared,

the agency must first prepare an environmental

assessment (“EA”), which must (1) “[b]riefly provide

sufficient evidence and analysis for determining

whether to prepare an environmental impact

statement or a finding of no significant impact.” Id.

§ 1501.5(c). Even if the agency performs only an EA, it

must still briefly discuss the need for the proposal, the

alternatives, and the environmental impacts of the

proposed action and the alternatives. Id. If the agency

determines, after preparing an EA, that a full EIS is

not necessary, it must prepare a Finding of No

Significant Impact (“FONSI”) setting forth the reasons

why the action will not have a significant impact on

the environment. Id. § 1501.6. An EA and FONSI

alone will not be sufficient, however, in certain

circumstances. Agencies must prepare a supplement

to a draft or final EIS when: (1) “[t]he agency makes

substantial changes to the proposed action that are

relevant to environmental concerns”; or (2) “[t]here are

significant new circumstances or information relevant

to environmental concerns and bearing on the

proposed action or its impacts.” 40 C.F.R.

§ 1502.9(d)(1).

B.

Factual Background

Plaintiffs—a “collection of commercial fishing

firms headquartered in southern New Jersey that

participate regularly in the Atlantic herring fishery,”

Pls.’ Mot., ECF No. 18-1 at 23—challenge the

Omnibus Amendment, which the NEFMC finalized in

2018 to establish a standardized process for the

development of industry-funded monitoring in FMPs

across New England fisheries and to establish

App-45

industry-funded monitoring in the Atlantic herring

fishery. See Administrative R. (“AR”) at 17769-71. The

approved Omnibus Amendment measures include the

following “core elements”:

First, the omnibus measures establish a

process for FMP-specific industry monitoring

to be implemented through an FMP

amendment

and

revised

through

a

framework adjustment. . . .

Second, the omnibus measures identify

standard cost responsibilities for industryfunded monitoring for NMFS and the fishing

industry, dividing those responsibilities by

cost category. . . .

Third, the omnibus measures establish

standard administrative requirements for

monitoring service providers and industryfunded observers/monitors as set forth in 50

C.F.R. § 648.11(h) and (i), respectively. . . .

Fourth, the omnibus measures establish a

Council-led process for prioritizing [industryfunded monitoring] programs for available

federal funding across New England

FMPs. . . .

Fifth, the omnibus measures standardize the

process to develop future monitoring setaside programs, and allow monitoring setaside programs to be developed in a

framework adjustment to the relevant FMP.

Defs.’ Opp’n, ECF No. 20-1 at 18-19; see also Pls.’ Mot.,

ECF No. 18-1 at 22-23.

App-46

In addition, there are approved measures

establishing industry-funded monitoring in the

Atlantic herring fishery, 6 which is managed through

the Atlantic Herring FMP. See Defs.’ Opp’n, ECF

No. 20-1 at 20-21; Pls.’ Mot., ECF No. 18-1 at 22-23. In

other words, this mandate “requires herring

fishermen along the eastern seaboard of the United

States to carry [NOAA] contractors—called ‘at-sea

monitors’—on their vessels during fishing trips and,

moreover, to pay out-of-pocket for” associated costs.

Compl., ECF No. 1 ¶ 1. Among other things, the

measures establish a 50 percent monitoring coverage

target for all declared herring trips undertaken by a

vessel possessing a Category A or B limited access

herring permit. 7 See Defs.’ Opp’n, ECF No. 20-1 at 20;

6 Atlantic herring inhabit the Atlantic Ocean off of the East

coast of the United States and Canada, ranging from North

Carolina to the Canadian Maritime Provinces. AR 17103.

Atlantic herring play an important role in the Northwest Atlantic

ecosystem, serving as a “forage species” for a number of other

fish, marine mammals, and seabirds. Id. at 17070, 17161, 17511.

There is also a directed fishery for Atlantic herring, composed

primarily of vessels using midwater trawl gear, small-mesh

bottom trawl vessels, and purse seines. Id. at 17104.

“The Atlantic Herring FMP achieves the NEFMC’s

management goals through a stock-wide annual catch limit

(‘ACL’) that is allocated between four distinct geographic

management areas . . . .” Compl., ECF No. 1 ¶ 63 (citing 50

C.F.R. § 648.200(f)). The four areas include: “Area 1A - Inshore

Gulf of Maine”; “Area 1B - Offshore Gulf of Maine”; “Area 2 South Coastal Area”; and “Area 3 - Georges Bank.” Id. A Category

A permit is an All Areas Limited Access permit that allows

vessels with such permits to fish in all areas. See AR 17135, AR

17152. A Category B permit is an Areas 2/3 Limited Access

permit that allows vessels to fish in areas 2 and 3. Id. Category

A and B permit holders are not restricted in the amount of

7

App-47

Pls.’ Mot., ECF No. 18-1 at 22-23. The monitoring

coverage target includes a combination of both

industry-funded monitoring, as well as NMFS-funded

Standardized Bycatch Reporting Methodology

(“SBRM”) coverage. Defs.’ Opp’n, ECF No. 20-1 at 20;

Pls.’ Mot., ECF No. 18-1 at 23. “Vessel owners would

pay for any additional monitoring coverage above

SBRM coverage requirements to achieve the 50%

coverage target, which is calculated by combining

SBRM and [industry-funded monitoring] coverage,

thus a vessel will not have SBRM and [industryfunded monitoring] coverage on the same trip.” Defs.’

Opp’n, ECF No. 20-1 at 20-21. “On any given trip, if a

vessel is notified that it will ‘need at-sea monitoring

coverage’ and it has not already been assigned an

observer, ‘[it] will be required to obtain and pay for an

at-sea monitor on that trip.’” Pls.’ Mot., ECF No. 18-1

at 23 (quoting AR 17735). “Any additional coverage

above SBRM is contingent on NMFS having

appropriated funds to pay for its administrative costs

for [industry-funded monitoring] coverage.” Defs.’

Opp’n, ECF No. 20-1 at 21 (quoting AR 17737).

There are some exceptions to the coverage

requirements. On a trip-by-trip basis, coverage

requirements may be waived if: (1) “monitoring

coverage is unavailable”; (2) “vessels intend to land

less than 50 metric tons (mt) of herring”; or (3) “wing

vessels carry no fish on pair trawling trips.” Id. (citing

AR 17735). Furthermore, the Service may “issue an

exempted fishing permit (EFP) to midwater trawl

vessels that choose to use electronic monitoring

herring they can catch per trip or land per calendar day. Compl.,

ECF No. 1 ¶ 68.

App-48

together with portside sampling. . . . The EFP

exempts midwater trawl vessels from at-sea

monitoring coverage, and allows use of electronic

monitoring and portside sampling to comply with the

50% [industry-funded monitoring] coverage target.”

Id. (citing AR 17736-37).

NMFS has acknowledged that “[i]ndustry-funded

monitoring w[ill] have direct economic impacts on

vessels issued Category A and B permits participating

in the herring fishery,” including an estimated cost

responsibility of up to $710 per day and an

approximately 20% reduction in annual returns-toowner in some situations. AR 17735.

C. Procedural History

The NEFMC adopted the Omnibus Amendment

on April 20, 2017, and finalized the recommendations

for industry-funded monitoring in the Atlantic herring

fishery on April 19, 2018. AR 17731. On September 19,

2018, Defendants published a “notice of availability”

in the Federal Register, opening a sixty-day comment

period for the Secretary of Commerce’s decision on the

Omnibus Amendment. Id. On December 18, 2018,

NEFMC was informed by letter that NMFS had

approved the Omnibus Amendment on behalf of the

Secretary of Commerce. Id.

On November 7, 2018, Defendants also published

in the Federal Register a proposed rule to implement

the Omnibus Amendment and opened a public

comment period ending on December 24, 2019. Id.

Defendants published the final rule implementing the

Omnibus Amendment on February 7, 2020. Id. at

17731-59.

The

regulations

associated

with

establishing the standard for developing industry-

App-49

funded monitoring programs (“omnibus measures”)

became effective on March 9, 2020, and the

regulations

associated

with

industry-funded

monitoring in the Atlantic herring fishery became

effective on April 1, 2020. See Defs.’ Opp’n, ECF No.

20-1 at 23.

Plaintiffs filed suit against Defendants on

February 19, 2020. See Compl., ECF No. 1. Defendants

filed their Answer on April 9, 2020, along with a

certified list of the contents of the administrative

record. See Answer, ECF No. 12; Notice, ECF No. 13.

On May 4, 2020, the Court granted Plaintiffs’

unopposed motion to expedite the case “in every

possible way,” pursuant to the MSA, 16 U.S.C.

§ 1855(f)(4). See Min. Order (May 4, 2020).

Plaintiffs filed their motion for summary

judgment on June 8, 2020, seeking a Court order

“declar[ing] industry-funding monitoring unlawful,

enjoin[ing] Defendants from pursuing it, and

vacat[ing] the Omnibus Amendment.” Pls.’ Mot., ECF

No. 18-1 at 14. Defendants filed their opposition and

cross-motion for summary judgment on July 24, 2020.

See Defs.’ Opp’n, ECF No. 20. Plaintiffs filed their

reply brief and opposition to Defendants’ cross-motion

on August 14, 2020, see Pls.’ Reply, ECF No. 22; and

Defendants filed their reply brief on September 4,

2020, see Defs.’ Reply, ECF No. 26. In addition, on

August 25, 2020, Defendants filed a motion to exclude

Plaintiffs’ extra-record declaration (ECF No. 22-1).

Defs.’ Mot. Exclude, ECF No. 24. Plaintiffs opposed

Defendants’ motion on September 3, 2020, see Pls.’

Opp’n Exclude, ECF No. 25; and Defendants replied

on September 10, 2020, see Defs.’ Reply Exclude, ECF

App-50

No. 27. The cross-motions for summary judgment and

the motion to exclude extra-record evidence are ripe

for adjudication.

On May 17, 2021, Plaintiffs filed a notice of

factual development, informing the Court that

Defendants had “pushed back implementation” of the

industry-funded monitoring requirement to July 1,

2021. See Notice Factual Development, ECF No. 35.

II. Legal Standard

Summary judgment is appropriate where “there

is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Courts review agency decisions

under the MSA and NEPA pursuant to Section 706(2)

of the APA. See Oceana, Inc. v. Locke, 670 F.3d 1238,

1240-41 (D.C. Cir. 2011); C & W Fish Co. v. Fox, Jr.,

931 F.2d 1556, 1562 (D.C. Cir. 1991). Accordingly, the

Court’s review on summary judgment is limited to the

administrative record. See 5 U.S.C. § 706; Richards v.

INS, 554 F.2d 1173, 1177 (D.C. Cir. 1977) (“Summary

judgment is an appropriate procedure for resolving a

challenge to a federal agency’s administrative decision

when review is based upon the administrative

record.”); Nat’l Min. Ass’n v. Jackson, 856 F. Supp. 2d.

150, 155 (D.D.C. 2012) (“When reviewing agency

actions under the APA, the Court’s review is limited

to the administrative record, either ‘the whole record

or those parts of it cited by a party.’” (citation

omitted)).

Under the APA, courts must set aside agency

action that is “(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege,

App-51

or immunity; (C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right;

[or] (D) without observance of procedure required by

law.” 5 U.S.C. § 706(2)(A)-(D); see also 16 U.S.C.

§ 1855(f)(1) (stating that a court “shall only set aside

any such regulation or action on a ground specified in

section 706(2)(A), (B), (C), or (D) of [the APA]”). Under

the APA’s “narrow” standard of review, “a court is not

to substitute its judgment for that of the agency,”

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); and “will

defer to the [agency’s] interpretation of what [a

statute] requires so long as it is ‘rational and

supported by the record.’” Oceana, Inc., 670 F.3d at

1240 (quoting C & W Fish Co., 931 F.2d at 1562).

Although “[j]udicial review of agency action under

the MSA is especially deferential,” N.C. Fisheries

Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 79 (D.D.C.

2007); to meet the APA standard an agency must

“examine the relevant data and articulate a

satisfactory explanation for its action including a

rational connection between the facts found and the

choice made,” PPL Wallingford Energy LLC v. Fed.

Energy Regulatory Comm’n, 419 F.3d 1194, 1198

(D.C.Cir.2005) (quoting State Farm, 463 U.S. at 43)

(internal quotation marks omitted). An agency acts

arbitrarily and capriciously when the agency (1) “has

relied on factors which Congress has not intended it to

consider,” (2) “entirely failed to consider an important

aspect of the problem,” (3) “offered an explanation for

its decision that runs counter to the evidence before

the agency,” or (4) “is so implausible that it could not

be ascribed to difference in view or the product of

agency expertise.” Advocates for Highway & Auto

App-52

Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d

1136, 1144-45 (D.C. Cir. 2005) (quoting State Farm,

463 U.S. at 43). In addition, when a party challenges

an FMP, plan amendment, or regulation as

inconsistent with one or more of the ten National

Standards set forth in 16 U.S.C. § 1851(a), a court’s

“task is not to review de novo whether the amendment

complies with these standards but to determine

whether the Secretary’s conclusion that the standards

have been satisfied is rational and supported by the

record.” C & W Fish Co., 931 F.2d at 1562 (citing 16

U.S.C. § 1855(d)). “Fisheries regulation requires

highly technical and scientific determinations that are

within the agency’s expertise, but are beyond the ken

of most judges.” N.C. Fisheries Ass’n, 518 F. Supp. 2d

at 80; see also Ocean Conservancy v. Gutierrez, 394 F.

Supp. 2d 147, 157 (D.D.C. 2005) (“Courts defer to

NMFS decisions that are supported in the record and

reflect reasoned decision making, especially where, as

here, the dispute involves technical legal issues that

implicate substantial agency expertise.”), aff’d, 488

F.3d 1020 (D.C. Cir. 2007).

However, the “deferential standard cannot permit

courts merely to rubber stamp agency actions, nor be

used to shield the agency’s decision from undergoing a

thorough, probing, in-depth review.” Flaherty v.

Bryson, 850 F. Supp. 2d 38, 47 (D.D.C. 2012) (internal

citations and quotation marks omitted). The court

should evaluate “whether the decision was based on a

consideration of the relevant factors and whether

there has been a clear error of judgment.” Id. (quoting

Bloch v. Powell, 348 F.3d 1060, 1070 (D.C.Cir.2003)).

App-53

III. Analysis

A. The Court Will Not Consider Plaintiffs’

Extra-Record Declaration

As an initial matter, Defendants seek to exclude a

declaration signed by Jeffrey Howard Kaelin—the

Director of Sustainability and Government Relations

at Lund’s Fisheries 8—and any portion of Plaintiffs’

reply brief that relies on it. Defs.’ Mot. Exclude, ECF

No. 24-1 at 1-2; Kaelin Decl., ECF No. 22-1 ¶ 1. Mr.

Kaelin’s declaration, which Plaintiffs attached to their

reply brief, discusses the costs associated with Lund’s

Fisheries’ efforts to install video monitoring system

(“VMS”) units on several vessels during the months of

January, February, and March 2020. See Kaelin Decl.,

ECF No. 22-1 ¶¶ 7-12. The declaration also discusses

the economic feasibility of Lund’s Fisheries converting

three vessels so that they qualify for the Omnibus

Amendment’s waiver for vessels that catch less than

50 metric tons. Id. ¶¶ 13-18. According to Plaintiffs,

“Mr. Kaelin’s declaration is offered principally for

illustrative purposes and to give the Court the full

context behind costs associated with vessel monitoring

and the nature of several of the boats owned and

operated by Plaintiffs.” Pls.’ Reply, ECF No. 22 at 23

n.8. Thus, because Plaintiffs “do not rely on Mr.

Lund’s Fisheries is not a plaintiff in this case. However,

according to Plaintiffs, several Plaintiffs have the same owners

and managers as Lund’s Fisheries, and, as such, they are

operated together as a “single family of businesses.” See Compl.,

ECF No. 1 ¶ 19; Pls.’ Opp’n Exclude, ECF No. 25 at 6. For

example, Plaintiff Loper Bright Enterprises, Inc., co-owns and

operates a vessel with the owners of Lund’s Fisheries. See

Compl., ECF No. 1 ¶ 11; Pls.’ Opp’n Exclude, ECF No. 25 at 6.

8

App-54

Kaelin’s declaration in their discussion of Defendants’

failure to properly consider the costs of industryfunded monitoring,” Plaintiffs argue that the Court

may consider the information contained in the

declaration. Pls.’ Opp’n Exclude, ECF No. 25 at 7, 1011.

However, there is no “illustrative purposes”

exception to the general rule that review of an agency’s

action under the APA “is to be based on the full

administrative record that was before [the agency] at

the time [it] made [its] decision.” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).

While a court may consider extra-record evidence in

reviewing agency action in limited circumstances, the

party seeking admittance of the extra-record evidence

must “demonstrate unusual circumstances justifying

a departure from [the] general rule.” City of Dania

Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010)

(quoting Tex. Rural Legal Aid v. Legal Servs. Corp.,

940 F.2d 685, 698 (D.C. Cir. 1991)). The Court of

Appeals for the District of Columbia Circuit (“D.C.

Circuit”) has identified only three such unusual

circumstances: “(1) if the agency ‘deliberately or

negligently excluded documents that may have been

adverse to its decision,’ (2) if background information

[is] needed ‘to determine whether the agency

considered all the relevant factors,’ or (3) if the ‘agency

failed to explain administrative action so as to

frustrate judicial review.’” Id. (quoting Am. Wildlands

v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)).

Accordingly, given that “[t]hese narrow exceptions

must be applied sparingly to maintain incentives for

interested parties to present their evidence and views

fully before an agency renders a final decision and to

App-55

ensure that courts limit their role to the review of

what occurred before the agency,” Ctr. for Biological

Diversity v. U.S. Army Corps of Eng’rs, No. 20-cv-103,

2020 WL 5642287, at *9 (D.D.C. Sept. 22, 2020)

(citations omitted); the Court declines to review the

declaration, even for “illustrative purposes.”

Plaintiffs next argue, however, that even if the

Court declines to consider the declaration for

“illustrative purposes,” the Court may consider the

declaration under an exception to the general rule

precluding extra-record evidence.

First, Plaintiffs argue that “Mr. Kaelin’s

declaration provides information that is absent from

the administrative record and would otherwise ‘enable

the court to understand the issues [at hand more]

clearly.’” Pls.’ Opp’n Exclude, ECF No. 25 at 12 (citing

Esch, 876 F.2d at 991). In making this argument,

Plaintiffs rely on the D.C. Circuit case Esch v. Yeutter,

876 F.2d 976 (D.C. Cir. 1989), which recognized eight

exceptions to the general rule, including an exception

“when a case is so complex that a court needs more

evidence to enable it to understand the issues clearly.”

Id. at 991. However, since the D.C. Circuit decided

Esch in 1989, the case has been “given a limited

interpretation.” Hill Dermaceuticals, Inc. v. FDA, 709

F.3d 44, 47 (D.C. Cir. 2013) (citing Theodore Roosevelt

Conservation P’ship v. Salazar, 616 F.3d 497, 514

(D.C. Cir. 2010)). According to the D.C. Circuit, “at

most [Esch] may be invoked to challenge gross

procedural

deficiencies—such

as

where

the

administrative record itself is so deficient as to

preclude effective review.” Id.; see also Butte Cnty.,

Calif. v. Chaudhuri, 887 F.3d 501, 507 (D.C. Cir. 2018)

App-56

(“[T]hose narrow and rarely invoked exceptions apply

when evidence is excluded from the record because of

some ‘gross procedural deficiency.’” (quotation marks

and alteration omitted)). Indeed, “the Circuit has

gradually winnowed the number of circumstances in

which courts may consider extra-record evidence” to

only the three exceptions recited above. Oceana, Inc.

v. Ross, 454 F. Supp. 3d 62, 68 n.5 (D.D.C. 2020) (citing

Dania Beach, 628 F.3d at 590). Thus, in view of the

D.C. Circuit’s restricted view of Esch, courts in this

Circuit may no longer consider extra-record

information solely “to understand the issues [at hand

more] clearly.” And even if the Court did consider it to

be a valid exception, the facts in this case are not so

complex that it would require extra-record evidence to

clearly understand them.

Second, Plaintiffs contend that the declaration

should be admitted as extra-record evidence because

they

“have

highlighted

serious

procedural

irregularities in Defendants’ approval of the Omnibus

Amendment, which suggest prejudgment of the

legality of industry-funded monitoring.” Pls.’ Opp’n

Exclude, ECF No. 25 at 12. Specifically, Plaintiffs note

that

Defendants

published

the

Omnibus

Amendment’s implementing regulations in November

2018, prior to the Commerce Secretary’s approval of

the Omnibus Amendment in mid-December 2018. Pls.’

Mot., ECF No. 18-1 at 54. In addition, following the

Secretary’s approval of the Omnibus Amendment,

“NOAA informed the NEFMC of that approval in a

non-public letter that it never officially disseminated.”

Id. Plaintiffs’ contend that these alleged procedural

irregularities, coupled with the fact that Plaintiffs

raise claims under NEPA and the Regulatory

App-57

Flexibility Act, are sufficient reasons to justify

admitting extra-record evidence. Pls.’ Opp’n Exclude,

ECF No. 25 at 12. But this argument also fails. To the

extent that evidence of procedural irregularities

remains an exception following the D.C. Circuit’s

narrowing of Esch, a review of the MSA’s provisions

governing the Secretary’s review of FMPs and

proposed regulations shows that Defendants followed

proper procedures, as this Court more fully discusses

in Section III.I below. And in any event, Plaintiffs fail

to explain how a declaration discussing various costs

related to fishing vessels would assist the Court’s

analysis of any alleged procedural irregularities in

promulgating the final rule and regulations.

Third, Plaintiffs appear to seek to include the

declaration as “background information,” which is an

exception to the general rule when the information is

needed “to determine whether the agency considered

all the relevant factors.” Pls.’ Opp’n Exclude, ECF

No. 25 at 12. The Court remains unpersuaded. “To

satisfy the relevant factors exception, the document in

question must do more than raise nuanced points

about a particular issue; it must point out an entirely

new general subject matter that the defendant agency

failed to consider.” Ross, 454 F. Supp. 3d at 70 (quoting

Pinnacle Armor, Inc. v. United States, 923 F. Supp. 2d

1226, 1234 (E.D. Cal. 2013)) (quotation marks

omitted).

“In

a

complicated,

scientific

analysis, . . . consideration of the intermediary

evidentiary factors which lead to the ultimate

conclusion are the very means by which the agency

renders its decision and, generally speaking, any of

them can be a ‘relevant factor’ justifying

supplementation of the administrative record if

App-58

ignored.” Id. (quoting Sw. Ctr. for Biological Diversity

v. Babbitt, 131 F. Supp. 2d 1, 8 (D.D.C. 2001)).

Here, the administrative record is clear that

Defendants considered VMS installation costs and

how the 50-metric-ton exemption would affect

midwater trawl vessels. See, e.g., AR 17742 (“Waiving

industry-funded monitoring requirements on certain

trips, including trips that land less than 50 mt of

herring and pair trawl trips carrying no fish, would

minimize the cost of additional monitoring [for certain

smaller vessels]. . . . Electronic monitoring and

portside sampling may be a more cost effective way for

midwater trawl vessels to meet the 50-percent

coverage target requirement than at-sea monitoring

coverage.”); id. at 10821 (noting the “highly variable”

costs of installing electronic video monitoring

systems); see also id. at 17250; id. at 17264. Plaintiffs

also appear to concede as much. See, e.g., Pls.’ Opp’n

Exclude, ECF No. 25 at 13 (“Here, Defendants and the

NEFMC considered VMS and other operating

costs. . . . Industry stakeholders presented them with

concerns about the limited impact of the proposed 50metric-ton exemption and the viability of fish[er]men

simply moving to a different fishery. Mr. Kaelin’s

testimony merely provides more concrete detail that

shows Defendants failed to adequately consider these

issues.”). Thus, the Court finds that Mr. Kaelin’s

declaration “does not add factors that [the agency]

failed to consider as much as it questions the manner

in which [the agency] went about considering the

factors it did.” Corel Corp. v. United States, 165 F.

Supp. 2d 12, 31-32 (D.D.C. 2001).

App-59

Finally, Plaintiffs argue that “[i]f the Court

excludes Mr. Kaelin’s declaration, it may still consider

the cost survey and order Defendants to complete the

record with the data compiled by” the Mid-Atlantic

Fishery Management Council regarding compliance

cost information. Pls.’ Opp’n Exclude, ECF No. 25 at

15-16. As Plaintiffs did not object to Defendants’

compilation of the administrative record and have not

filed a motion requesting that the Court supplement

the administrative record with such information, the

Court declines to order Defendants to produce the

information now.

Accordingly, the Court finds that Plaintiffs have

not

demonstrated

exceptional

circumstances

justifying departure from the general rule against

extra-record evidence.

B. The MSA Authorizes Industry-Funded

Monitoring

Plaintiffs first contend that Defendants exceeded

their statutory authority under the MSA in

promulgating the industry-funded monitoring

measures within the Omnibus Amendment. See Pls.’

Mot., ECF No. 18-1 at 27. Plaintiffs argue that the

MSA does not authorize industry-funded monitoring

in the Atlantic herring fishery or in the other New

England fisheries contemplated in the amendment.

Id. at 28. And because the expected economic impact

of such monitoring programs is “possibly disastrous

for the herring fleet,” Plaintiffs contend that Congress

would not grant authority for such significant

measures through an implicit delegation. Id.

Defendants, in opposition, argue that “Congress has

spoken directly to the precise question at issue by

App-60

including multiple provisions in the MSA that

presuppose” industry-funded monitoring. Defs.’

Opp’n, ECF No. 20-1 at 26. Even if the Court finds that

Congress has not directly spoken on the issue,

Defendants argue that NMFS’s interpretation of the

MSA was reasonable. Id.

In reviewing an agency’s interpretation of a

statute Congress has entrusted it to administer,

courts’ analyses are governed by Chevron U.S.A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). Under step one of the Chevron analysis,

“[i]f the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.” 467 U.S. at 842-43. Courts utilize

“traditional tools of statutory construction” to

determine whether Congress has unambiguously

expressed its intent. Serono Lab’ys, Inc. v. Shalala,

158 F.3d 1313, 1319 (D.C. Cir. 1998) (quoting Chevron,

467 U.S. at 843 n.9). “When the statute is clear, the

text controls and no deference is extended to an

agency’s interpretation in conflict with the text.”

Adirondack Med. Ctr. v. Sebelius, 29 F. Supp. 3d 25,

36 (D.D.C. 2014) (citing Chase Bank USA, N.A. v.

McCoy, 562 U.S. 195 (2011)). Under step two of the

Chevron analysis, if Congress “has not directly

addressed the precise question” at issue, the agency’s

interpretation of the statute is entitled to deference so

long as it is “reasonable” and not otherwise “arbitrary,

capricious, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 843-44.

“An agency is owed no deference if it has no

delegated authority from Congress to act.” N.Y. Stock

App-61

Exch. LLC v. Secs. & Exch. Comm’n, 962 F.3d 541, 553

(D.C. Cir. 2020); see also La. Pub. Serv. Comm’n v.

F.C.C., 476 U.S. 355, 374 (1986) (“[A]n agency literally

has no power to act . . . unless and until Congress

confers power upon it.”). Furthermore, “[a]gency

authority may not be lightly presumed,” and “[m]ere

ambiguity in a statute is not evidence of congressional

delegation of authority.” Michigan v. EPA, 268 F.3d

1075, 1082 (D.C. Cir. 2001) (citing Sea-Land Serv.,

Inc. v. Dep’t of Transp., 137 F.3d 640, 645 (D.C. Cir.

1998)). “Not only must an agency’s decreed result be

within the scope of its lawful authority, but the

process by which it reaches that result must be logical

and rational.” Michigan v. EPA, 576 U.S. 743, 750

(2015) (quoting State Farm, 463 U.S. at 43).

The Court’s analysis begins with the statutory

text. See S. Cal. Edison Co. v. FERC, 195 F.3d 17, 2223 (D.C. Cir. 1999). Here, Section 1853 of the MSA

explicitly provides that FMPs may require that at-sea

monitors “be carried on board a vessel of the United

States engaged in fishing for species that are subject

to the plan, for the purpose of collecting data necessary

for the conservation and management of the fishery.”

16 U.S.C. § 1853(a)(8). In the same section, the MSA

provides that FMPs may also “prescribe such other

measures,

requirements,

or

conditions

and

restrictions as are determined to be necessary and

appropriate for the conservation and management of

the fishery.” Id. § 1853(a)(14). Significantly, the MSA

also states that each FMP “shall contain the

conservation and management measures” it finds are

“necessary and appropriate for the conservation and

management of the fishery, to prevent overfishing and

rebuild overfished stocks, and to protect, restore, and

App-62

promote the long-term health and stability of the

fishery.” Id. § 1853(a)(1)(A).

Taken together, these statutory provisions “vest[]

broad authority in the Secretary to promulgate such

regulations as are necessary to carry out the

conservation and management measures of an

approved FMP.” Nat’l Fisheries Inst., Inc. v.

Mosbacher, 732 F. Supp. 210, 216 (D.D.C. 1990).

Indeed, the Supreme Court has recognized that the

phrase “necessary and appropriate” is “capacious[]”

and “leaves agencies with flexibility.” Michigan, 576

U.S. at 752 (2015); see also Coastal Conservation Ass’n

v. U.S. Dep’t of Commerce, No. 15-1300, 2016 WL

54911, at *4 (E.D. La. Jan. 5, 2016) (describing

“necessary and appropriate” phrase in Section

1853(a)(1)(A) as “empowering language represent[ing]

a delegation of authority to the agency”). Moreover,

“the MSA defines ‘conservation and management’

measures in relevant part as ‘all of the rules,

regulations, conditions, methods, and other

measures . . . required to rebuild, restore, or maintain,

and which are useful in rebuilding, restoring, or

maintaining, any fishery resource and the marine

environment.’” Groundfish Forum v. Ross, 375 F.

Supp. 3d 72, 84 (D.D.C. 2019) (quoting 16 U.S.C.

§ 1802(5)). Given that the MSA expressly authorizes

FMPs to contain provisions requiring that vessels

carry at-sea monitors, as well any “necessary and

appropriate”

conservation

and

management

requirements, the Court declines to read the MSA as

narrowly as Plaintiffs urge. See 16 U.S.C.

§ 1853(a)(1)(A), (b)(8), (b)(14); see also Groundfish

Forum, 375 F. Supp. 3d at 84 (D.D.C. 2019) (finding

that, given the “broad” definition of “conservation and

App-63

management” measures, “the Court has no basis to

recognize a strict yet unspoken limitation on the

Service’s authority”).

Plaintiffs, however, contend that, though the

MSA authorizes placement of at-sea monitors on

vessels, the MSA is silent on whether Defendants may

further require that vessel operators pay for the

monitoring services. See Pls.’ Reply, ECF No. 22 at 13.

According to Plaintiffs, courts have rejected the

“nothing-equals-something argument,” based entirely

on the existence of the phrase “necessary and

appropriate” in a statute, “that presumed

congressional silence left the agency a ‘mere

gap’ . . . to fill.’” Pls.’ Reply, ECF No. 22 at 13 (quoting

Gulf Fishermen’s Ass’n v. Nat’l Marine Fisheries Serv.,

968 F.3d 454, 460 (5th Cir. 2020)). Plaintiffs primarily

rely on the D.C. Circuit’s decision in New York Stock

Exchange, LLC v. SEC, 962 F.3d 541 (D.C. Cir. 2020),

and the Supreme Court’s decision in Michigan v. EPA,

576 U.S. 743 (2015), in support of their argument. See

Pls.’ Reply, ECF No. 22 at 19.

However, both cases are distinguishable. In New

York Stock Exchange, LLC, the D.C. Circuit concluded

that the Securities and Exchange Commission

inappropriately relied on the phrase “necessary and

appropriate” under section 23(a) of the Securities and

Exchange Act in implementing a rule without any

regulatory agenda and without any other statutory

authority. 962 F.3d at 557. The D.C. Circuit explained

that the Commission had adopted the program

“without explaining what problems with the existing

regulatory requirements it meant to address.” Id.

Moreover, the costly program was adopted despite the

App-64

Exchange

Act’s

command

“forbid[ding]

the

Commission from adopting a rule that will

unnecessarily burden competition.” Id. at 555. Here,

in contrast, Defendants have tethered the Omnibus

Amendment measures to the congressionally

authorized purpose of “conservation and management

of the fishery.” 16 U.S.C. § 1853(b)(8). For example,

the record reflects that Defendants considered the

economic impacts to the fishing community as well as

the environmental impacts, concluding that the

preferred alternatives “may lead to direct positive

impacts on the herring resource and non-target

species if herring fishing effort is limited, by increased

information on catch tracked against catch limits, and

that increases the reproductive potential of the

herring resource and non-target species.” AR 17318.

Similarly, in Michigan, the Supreme Court

concluded that, among other things, the “established

administrative practice” to “treat cost as a centrally

relevant factor” and the “[s]tatutory context” requiring

consideration of costs in reference to various actions,

made it unreasonable for the EPA to read the phrase

“appropriate and necessary” to mean that it could

ignore cost when deciding whether to regulate power

plants. 576 U.S. at 752-57. Here, however, the

established administrative practice and statutory

context both favor Defendants. First, as Plaintiffs

concede, since 1990, the North Pacific Council has

managed an observer program that is “funded through

a combination of fees and third-party contracts

between observer providers and fishing industry

members.” Pls.’ Mot., ECF No. 18-1 at 35. Second,

regarding the statutory context, in addition to the

provision explicitly authorizing mandatory at-sea

App-65

monitors, the MSA recognizes the existence of an atsea monitoring program in which a vessel may hire

and directly provide payment for monitoring services.

In Section 1858(g), the MSA authorizes the Commerce

Secretary to issue sanctions “[i]n any case in

which . . . any payment required for observer services

provided to or contracted by an owner or

operator . . . has not been paid and is overdue.” 16

U.S.C. § 1858(g)(1) (emphasis added). “This provision

would be unnecessary if the MSA prohibited the very

type of industry funding at issue in this case.” See

Goethel v. Pritzker, No. 15-cv-497, 2016 WL 4076831,

at *5 (D.N.H. July 29, 2016) (finding that Section

1858(g) “demonstrates beyond peradventure that the

MSA contemplates—and most certainly does not

prohibit—the use of industry funded monitors”). And

while Plaintiffs argue that Section 1858(g) must only

refer to other provisions of the MSA establishing feebased monitoring programs, see Pls.’ Mot., ECF No.

18-1 at 36-37 (citing 16 U.S.C. §§ 1862, 1821(h)(4),

1853a(e)(2)); Plaintiffs’ argument lacks a textual

basis. Moreover, by mandating that conservation and

management measures, where practicable, “minimize

costs” and “minimize adverse economic impacts” on

fishing communities, the MSA acknowledges that

such measures may result in costs to the fishing

industry. See 16 U.S.C. § 1851(a)(7), (8).

The Court is mindful that “the mere reference to

‘necessary’ or ‘appropriate’ in a statutory provision

authorizing an agency to engage in rulemaking does

not afford the agency authority to adopt regulations as

it sees fit with respect to all matters covered by the

agency’s authorizing statute.” N.Y. Stock Exch. LLC,

962 F.3d at 554 (citing Michigan, 576 U.S. at 749-51).

App-66

But, as demonstrated above, the MSA contains more

than only the phrase “necessary and appropriate.”

Plaintiffs further argue that certain canons of

statutory interpretation demonstrate that Defendants

have exceeded their authority. First, Plaintiffs invoke

the anti-surplusage canon, “which encourages courts

to give effect to ‘all of [a statute’s] provisions, so that

no part will be inoperative or superfluous, void or

insignificant.’” Gulf Fishermen’s Ass’n, 968 F.3d at

464-65 (quoting Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286, 294 (5th Cir. 2020) (en banc)). Plaintiffs

contend that if Congress had intended to grant

Defendants “implied authority” to require industryfunded monitoring, it would not have specifically

authorized the collection of fees or surcharges to cover

the cost of three monitoring programs elsewhere in the

statute. See Pls.’ Mot., ECF No. 18-1 at 29-30.

Plaintiffs specifically refer to: (1) the “limited access

privilege program,” which authorizes the Council to

collect “fees” to “cover the costs of management, data

collection and analysis, and enforcement activities,”

16 U.S.C. § 1853a(e)(2); (2) the monitoring program

for foreign fishing vessels, which authorizes the

Secretary to impose a “surcharge” to “cover all the

costs of providing a United States observer aboard

that vessel,” id. § 1821(h)(4); and (3) the North Pacific

Council program, which “establishes a system . . . of

fees, which may vary by fishery, management area, or

observer coverage level, to pay for the cost of

implementing the plan,” id. § 1862(a). Second,

Plaintiffs argue that the expressio unius est exclusio

alterius canon applies for the same reasons: that the

inclusion of provisions governing fee-based monitoring

programs impliedly excludes other types of industry-

App-67

funded monitoring programs. Pls.’ Mot., ECF No. 18-1

at 30; see also Pls.’ Reply, ECF No. 22 at 14.

The Court is unpersuaded. A fee-based program—

“where the industry is assessed a payment by the

agency, authorized by statute, to be deposited in the

U.S. Treasury and disbursed for administrative costs

otherwise borne by the agency,” AR 17739—is

different from the industry-funded observer measures

at issue here, in which the fishing vessels contract

with and make payments directly to third-party

monitoring service providers. Because the Omnibus

Amendment does not involve fees or surcharges, the

Court cannot not find that the MSA’s provisions

governing cost recovery are made “superfluous, void or

insignificant,” Citizens for Responsibility & Ethics in

Wash. v. FEC, 316 F. Supp. 3d 349, 391 (D.D.C. 2018)

(quoting Rubin v. Islamic Republic of Iran, 138 S. Ct.

816, 824 (2018)); nor do the circumstances “support a

sensible inference that the term left out must have

been meant to be excluded.” Del. Riverkeeper Network

v. FERC, 857 F.3d 388, 398 (D.C. Cir. 2017) (citing

N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017));

see also Goethel, 2016 WL 4076831, at *5 (finding that

“the Pacific Northwest fee mechanism is a

substantively different animal than A16’s industry

funding requirement for at-sea monitoring”).

Plaintiffs also assert that “[t]here is no evidence

of congressional recognition of any sort of pre-existing,

implied authority to impose monitoring costs on the

regulated industry.” Pls.’ Mot., ECF No. 18-1 at 31.

The Court disagrees. Rather, the legislative history

further supports the conclusion that Defendants have

acted within the scope of the MSA.

App-68

As Defendants point out, prior to Congress adding

to the MSA the provisions authorizing the mandatory

placement of at-sea monitors on fishing vessels (16

U.S.C. § 1853(b)(8)) and the fee-based observer

program in the North Pacific region (16 U.S.C. § 1862),

the Secretary had issued regulations implementing an

observer program in the North Pacific’s FMP in which

the vessel operator directly paid a third-party

monitoring services provider. See Groundfish of the

Gulf of Alaska, Groundfish Fishery of the Bering Sea

& Aleutian Islands Area, 55 Fed. Reg. 4839-02, 4840

(Feb. 12, 1990) (providing that “[a]ny vessel operator

or manager of a shoreside processing facility who is

required to accommodate an observer is responsible

for obtaining a NMFS-certified observer . . . . [and]

will pay the cost of the observer directly to the

contractor” (emphasis added)). As Plaintiffs

acknowledge, to this day, “the North Pacific observer

program is still funded through a combination of fees

and third-party contracts between observer providers

and fishing industry members.” Pls.’ Mot., ECF No.

18-1 at 35. Congress was thus aware of the industryfunded monitoring program in the North Pacific when

it authorized the at-sea monitoring requirement

located in Section 1853(b)(8), and, indeed, the

Committee on Merchant Marine and Fisheries noted

that “the Councils already have—and have used—

such authority; the amendment makes the authority

explicit.” See Defs.’ Opp’n, ECF No. 20-1 at 31-32

(quoting Comm. on Merchant Marine & Fisheries,

H.R. Rep. No. 101-393 at 38 (1990)). Congressional

committees have continued to take note of such

industry-funded programs. See, e.g., S. Rep. No. 11466 at 31-32 (June 16, 2015); S. Rep. No. 114-239 at 31-

App-69

32 (Apr. 21, 2016); H. Rpt. No. 114-605 at 17 (June 7,

2016); S. Rep. No. 115-139 at 34 (July 27, 2017); S.

Rep. No. 115-275 at 36 (June 14, 2018); S. Rpt. No.

116-127 at 42 (Sept. 26, 2019).

Accordingly, the Court concludes that Defendants

acted within the bounds of their statutory authority in

promulgating the Omnibus Amendment. Even if

Plaintiffs’ arguments were enough to raise an

ambiguity in the statutory text, the Court, for the

same reasons identified above, would conclude that

Defendants’ interpretation is a reasonable reading of

the MSA. See Groundfish Forum, 375 F. Supp. 3d at

85.

C. Industry-Funded Monitoring Does Not

Violate

Agency

Financing

and

Expenditure Statutes

Plaintiffs next argue that the Omnibus

Amendment “impliedly repeals” the Anti-Deficiency

Act, 31 U.S.C. § 1341; the Miscellaneous Receipts

Statute, 31 U.S.C. § 3302; and the Independent

Offices Appropriations Act, 31 U.S.C. § 9701. Pls.’

Mot., ECF No. 18-1 at 38-40. According to Plaintiffs,

the amendment inappropriately “offload[s] costs” of

Defendants’ observer programs onto the industry

when Defendants exceed appropriated funds. Id. at 39.

For the reasons stated below, the Court disagrees and

concludes that the industry-funded monitoring

requirement does not violate the statutes governing

agency expenditures and obligations.

Plaintiffs first argue that the industry-funded

monitoring requirement violates the Anti-Deficiency

Act, 31 U.S.C. § 1341. Pls.’ Mot., ECF No. 18-1 at 38.

The Anti-Deficiency Act provides that a federal officer

App-70

may not “(A) make or authorize an expenditure or

obligation exceeding an amount available in an

appropriation or fund for the expenditure or

obligation”; or “(B) involve [the] government in a

contract or obligation for the payment of money before

an appropriation is made unless authorized by law.”

31 U.S.C. § 1341(a)(1)(A)-(B). Here, however,

Defendants are not expending government funds

without authorization from Congress. Nor do the

monitoring requirements contemplate that NFMS will

enter into any contracts or obligations for the payment

of money. Rather, it is the vessels that directly make

payments to the monitoring service providers, subject

to any terms provided for in contracts between the two

private parties. Accordingly, based upon the statute’s

plain language, Defendants have not violated the

Anti-Deficiency Act. See Goethel, 2016 WL 4076831, at

*6 (holding that an industry funding requirement did

not violate the Anti-Deficiency Act because “the effect

of industry funding is a cessation of government

spending”).

Plaintiffs also contend that the monitoring

requirement violates the Miscellaneous Receipts Act,

31 U.S.C. § 3302, which provides that “an official or

agent of the Government receiving money for the

Government from any source shall deposit the money

in the Treasury as soon as practicable without

deduction for any charge or claim.” 31 U.S.C.

§ 3302(b). The D.C. Circuit has explained that this

provision “derives from and safeguards a principle

fundamental to our constitutional structure, the

separation-of-powers precept embedded in the

Appropriations Clause, that ‘[n]o Money shall be

drawn from the Treasury, but in Consequence of

App-71

Appropriations made by Law.’” Scheduled Airlines

Traffic Offs., Inc. v. U.S. Dep’t of Def., 87 F.3d 1356,

1361-62 (D.C. Cir. 1996) (quoting U.S. Const. art. I,

§ 9, cl. 7). “By requiring government officials to deposit

government monies in the Treasury, Congress has

precluded the executive branch from using such

monies for unappropriated purposes.” Id. at 1362.

Here, the service providers are not government

officials and do not otherwise receive money for the

government, and thus industry-funded monitoring

does not involve an “official or agent of the

Government” receiving money. See Carver v. United

States, 16 Ct. Cl. 361, 381 (1880) (“The Treasurer is

the official custodian [of public money] for Congress,

and unless money is in his custody, or in the hands of

the persons authorized by law to receive it on behalf of

the United States, it is not in the possession of the

United States.”), aff’d, 111 U.S. 609 (1884). Under the

Omnibus Amendment, the vessels pay the monitoring

service providers for services rendered under

contracts between the vessels and the service

providers. “Mindful of both the plain language of the

Miscellaneous Receipts statute and its underlying

purpose to preserve congressional control of the

appropriations power,” Scheduled Airlines Traffic

Offs., Inc., 87 F.3d at 1362; the Court concludes that

the statute is not implicated.

Plaintiffs next argue that the industry funding

requirements of the Omnibus Amendment violate the

Independent Offices Appropriations Act (“IOAA”), 31

U.S.C. § 9701, which “generally governs user fees

collected by the federal government.” Seafarers Int’l

Union of N. Am. v. U.S. Coast Guard, 81 F.3d 179, 181

n.1 (D.C. Cir. 1996). “Under the Act, the ‘head of each

App-72

agency . . . may prescribe regulations establishing the

charge for a service or thing of value provided by the

agency.’” Montrois v. United States, 916 F.3d 1056,

1062 (D.C. Cir. 2019) (quoting 31 U.S.C. § 9701(b)).

Here, Defendants are not collecting a fee from any

party related to industry-funded monitoring, and

Defendants are not providing a “service or thing of

value.” 31 U.S.C. § 9701(b). As Defendants point out,

instead, “a private entity (a monitoring provider)

collects a vessel’s payment for the service provider’s

at-sea monitoring, an arrangement under which no

government agent or official ever has custody or

possession of any public money.” Defs.’ Opp’n, ECF

No. 20-1 at 47. Accordingly, the Court concludes that

industry-funded monitoring does not violate the

IOAA.

Despite the above, Plaintiffs assert that it is “a

distinction without a difference” that “Defendants and

the Council seek to require the industry to contract

directly with monitoring service providers, in lieu of

the government paying those companies.” Pls.’ Reply,

ECF No. 22 at 29. According to Plaintiffs, “the law

looks past superficial structures to the heart of what

an agency is trying to accomplish.” Id. The Court is

unpersuaded. First, Plaintiffs fail to specify to which

“law” they are referring, and they fail to cite any case

law in support of their argument. Second, the plain

language of the three statutes unambiguously

demonstrates that they are not applicable to this case.

See Nat’l Cable Television Ass’n, Inc. v. United States,

415 U.S. 336, 342 (1974) (cautioning that the IOAA

should be read “narrowly to avoid constitutional

problems”); Davis & Assocs., Inc. v. District of

Columbia, 501 F. Supp. 2d 77, 80 (D.D.C. 2007) (“The

App-73

relevant language of the Anti-Deficiency Act is

unambiguous.”); AINS, Inc. v. United States, 56 Fed.

Cl. 522, 539 (2003) (“All the [Miscellaneous Receipts]

Act literally requires is that miscellaneous money

received by government officials be deposited in the

general Treasury.”); see also Estate of Cowart v.

Nicklos Drilling Co., 505 U.S. 469, 475 (1992) (“[W]hen

a statute speaks with clarity to an issue[,] judicial

inquiry into the statute’s meaning, in all but the most

extraordinary circumstance, is finished.”).

Plaintiffs also argue that “it is incorrect for

Defendants to assert that NMFS does not closely

‘control’ monitoring service providers or the

contractual relationships they enter with vessel

owners” because: (1) “the market for monitoring

service providers is highly regulated and controlled by

NMFS”; (2) “NMFS must certify the companies

permitted to provide monitors,” of which there are

only four such companies; and (3) of the certified

companies, “[n]ot all these companies operate in the

same geographic regions.” Pls.’ Reply, ECF No. 22 at

29. However, none of these details regarding

Defendants’ regulation and oversight of the required

standards set by the Council change the fact that

Defendants do not receive any payments related to

industry-funded monitoring and do not “maintain

control over the contractual relationship between the

vessel and the service provider that the vessel itself

selects.” Defs.’ Reply, ECF No. 26 at 23.

Accordingly, industry-funded monitoring does not

violate the Anti-Deficiency Act, the Miscellaneous

Receipts Act, or the IOAA.

App-74

D. The Omnibus Amendment Is Not an

Unconstitutional Tax

Plaintiffs argue that the industry-funded

monitoring measures—which they characterize as “a

government program created by the NEFMC and

Defendants, regulated by them in detail, and which

they will continue to fund in-part themselves”—are an

unconstitutional tax. See Pls.’ Mot., ECF No. 18-1 at

40.

Defendants

disagree

with

Plaintiffs’

characterization of the industry-funded monitoring

requirement and contend that there is “no

resemblance”

between

the

industry-funded

monitoring requirement and a tax levied and collected

by Congress. See Defs.’ Opp’n, ECF No. 20-1 at 49. The

Court agrees with Defendants.

“A payment made to a third party vendor (in this

case, an at-sea monitor) is not a tax simply because

the law requires it.” Goethel, 2016 WL 4076831, at *6.

As the Supreme Court has explained, the “essential

feature” of a tax is that it “produces at least some

revenue for the Government.” Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 564 (2012); see also

Black’s Law Dictionary (11th ed. 2019) (defining “tax”

as “a charge, [usually] monetary, imposed by the

government on persons, entities, transactions or

property to yield public revenue”). Here, it is

undisputed that the payment for industry-funded

monitoring flows from the vessels directly to the

monitoring service providers. See Pls.’ Mot., ECF No.

18-1 at 40; Defs.’ Opp’n, ECF No. 20-1 at 46-47. The

government receives no funds related to the

requirement, nor are the funds available to the

government to be expended for any public purpose.

App-75

And the government’s role is limited to approving atsea monitors employed by private companies to serve

as the monitoring service providers.

Accordingly, because industry-funded monitoring

generates no public revenue, it does not constitute an

unlawful tax.

E.

The Omnibus Amendment Does Not

Violate National Standard 7 and

National Standard 8

Plaintiffs contend that the Omnibus Amendment

violates National Standards 7 and 8 because any

demonstrated scientific or conservation benefits

resulting from increased monitoring services do not

outweigh the economic consequences to the fishing

community. Pls.’ Mot., ECF No. 18-1 at 41.

In reviewing the Omnibus Amendment, the

Court’s “task is not to review de novo whether the

amendment complies with [the National Standards]

but to determine whether the Secretary’s conclusion

that the standards have been satisfied is rational and

supported by the record.” C&W Fish Co., 931 F.2d at

1562.

For the reasons explained below, the Court

concludes that the Omnibus Amendment does not

violate National Standards 7 and 8.

1.

National Standard 7

National Standard 7 provides that “[c]onservation

and management measures shall, where practicable,

minimize costs and avoid unnecessary duplication.” 16

U.S.C. § 1851(a)(7). The regulations concerning

National Standard 7 instruct that management

measures should not impose “unnecessary burdens on

App-76

the economy, on individuals, on private or public

organizations, or on Federal, state, or local

governments. Factors such as fuel costs, enforcement

costs, or the burdens of collecting data may well

suggest a preferred alternative.” 50 C.F.R.

§ 600.340(b). “Any analysis for fishery management

plans ‘should demonstrate that the benefits of fishery

regulation are real and substantial relative to the

added research, administrative, and enforcement

costs, as well as costs to the industry of compliance.’”

Burke v. Coggins, No. 20-667, 2021 WL 638796, at *5

(D.D.C. Feb. 18, 2021) (quoting 50 C.F.R.

§ 600.340(c)). The regulations also provide that “an

evaluation of effects and costs, especially of differences

among workable alternatives, including the status

quo, is adequate.” 50 C.F.R. § 600.340(c).

Plaintiffs first argue that “[a]t a cost upwards of

$710 per day, many small business herring fishermen

will suffer severe economic consequence.” Pls.’ Mot.,

ECF No. 18-1 at 41. Plaintiffs contend that “[a]t no

point did Defendants justify the Omnibus Amendment

by describing less costly alternatives that the NEFMC

seriously considered.” Id. at 42.

The administrative record reflects, however, that

Defendants did consider less costly alternatives and

included exemptions to the amendment to minimize

costs. NMFS recognized that while industry-funded

monitoring coverage would cause “direct economic

impacts” on vessels participating in the herring

fishery, the requirement also would have positive

impacts, including ensuring “(1) [a]ccurate estimates

of catch (retained and discarded); (2) accurate catch

estimates for incidental species for which catch caps

App-77

apply; and (3) affordable monitoring for the herring

fishery.” AR 17740, 17744. The record also

demonstrates

that

Defendants

considered

alternatives to determine which monitoring target

goal would best achieve the agency’s goals while

minimizing the economic impact on fishing

communities. The analysis within the EA indicates

Defendants considered a “no coverage target,” a 25%

coverage target, a 50% coverage target, and a 75%

coverage target. AR 17075, 17082-83; see also id. at

17097 (“Different coverage targets (25%, 50%, 75%, or

100%) were analyzed for each gear type (midwater

trawl, purse seine, bottom trawl), but the Council

selected a 50% coverage target for all gear types.”).

After weighing the benefits against the costs,

Defendants concluded that “[t]he 50% coverage target

selected by the Council for vessels with a Category A

or B herring permit provides for the benefits of

collecting additional information on biological

resources

while

minimizing

industry

cost

responsibilities, especially when compared to nonpreferred coverage targets of 100% and 75%.” Id. at

17315.

The Omnibus Amendment also provides for

exemptions from the coverage requirements to

minimize costs where practicable. For example,

waivers are available if: (1) “monitoring coverage is

unavailable”; (2) “vessels intend to land less than 50

metric tons (mt) of herring”; or (3) “wing vessels carry

no fish on pair trawling trips.” Id. at 17735.

Furthermore, the EFP “exempt[s] midwater vessels

from the requirement for industry-funded at-sea

monitoring coverage and allow[s] midwater trawl

vessels to use electronic monitoring and portside

App-78

sampling coverage to comply with the” 50%

monitoring coverage target. Id. at 17736-37. Finally,

Defendants found that “[a]llowing SBRM coverage to

contribute toward the 50-percent coverage target for

at-sea monitoring is expected to reduce costs for the

industry.” Id. at 17742. Accordingly, Plaintiffs’

contention that Defendants “at no point” discussed

less costly alternatives is belied by the record. See

Nat’l Coal. for Marine Cons. v. Evans, 231 F. Supp. 2d

119, 133 (D.D.C. 2002) (dismissing plaintiffs’

arguments that NMFS failed to analyze alternative

conservation measures, explaining that they “ha[d]

not specified any record evidence showing that NMFS

ignored a less costly, practicable approach . . . , as

National Standard Seven prohibits”).

Plaintiffs, however, argue that Defendants’

discussion of alternatives is conclusory and that

“[m]ore detailed analysis is required, particularly

when the proposed regulation will harm most of the

herring fleet.” Pls.’ Reply, ECF No. 22 at 32. Plaintiffs

assert that the Council failed to note that midwater

trawlers will bear the brunt of the industry-funded

monitoring costs because: (1) they have low observer

coverage rates due to differences in SBRM coverage

among gear types; and (2) the majority of them would

not qualify under the 50-metric-ton exemption. Id.

However, it is settled law that “in making a decision

on the practicability of a fishery management

amendment, the Secretary does not have to conduct a

formal cost/benefit analysis of the measure.” Alaska

Factory Trawler Ass’n v. Baldridge, 831 F.2d 1456,

1460 (9th Cir. 1987); see also Nat’l Fisheries, 732 F.

Supp. at 222. As stated above, there is ample evidence

in the record that Defendants considered the costs and

App-79

benefits of choosing a 50% coverage target, which was

neither the most nor the least severe plan considered,

and took action to minimize the economic impacts of

the industry-funded monitoring measures. E.g., AR at

17005-06, 17030, 17070-71, 17075, 17082-83, 17315,

17346. In addition, the record reflects that Defendants

made efforts to minimize the economic impacts by

tailoring the industry-funded monitoring requirement

to that portion of the industry most in need of

regulatory controls. Thus, though Plaintiffs assert

that midwater trawls will end up bearing a greater

share of the costs, as Defendants assert, the

monitoring coverage target is intended to encompass

those vessels with the largest herring catch. See e.g.,

id. at 17742 (“Coverage waivers would only be issued

under specific circumstances, when monitors are

unavailable or trips have minimal to no catch, and are

not expected to reduce the benefits of additional

monitoring.” (emphasis added)); id. at 17743

(“Ultimately, the Council determined that the

potential for a relatively high herring catches per trip

aboard

those

vessels

warranted

additional

monitoring.”). Furthermore, in view of the fact that

these midwater trawl vessels would be less likely to

fall under the 50-metric-ton exception, Defendants

found that, via the EFP exemption, “[e]lectronic

monitoring and portside sampling may be a more cost

effective way for midwater trawl vessels to meet the

50-percent coverage target requirement than at-sea

monitoring coverage.” Id. at 17742.

Plaintiffs also contend that the omnibus

measures, which establish a standardized process for

developing industry-funded monitoring programs

across other New England FMPs, “may lead to the sort

App-80

of ‘duplication’ that National Standard Seven aims to

avoid” because “vessels in non-herring fisheries could

become

subject

to

concurrent

monitoring

requirements.” Pls.’ Reply, ECF No. 22 at 30.

Plaintiffs assert that the Omnibus Amendment fails

to address this potential future duplication with other

NEFMC-administered fisheries. Id. at 30-31. But

Plaintiffs’ argument fails. Defendants explained that

“[b]ecause herring and mackerel are often harvested

together on the same trip,” the Omnibus Amendment

“specifies that the higher coverage target applies on

trips declared into both fisheries. If the Council

considers industry-funded monitoring in other

fisheries in the future, the impacts of those programs

relative to existing industry-funded monitoring

programs will be considered at that time.” AR 17742.

Further, because the 50% monitoring coverage target

is calculated by combining both SBRM and industryfunded monitoring, a vessel will not have SBRM and

industry-funded monitoring coverage on the same

trip. See id. at 17315, 17734. Thus, the industryfunded monitoring requirement in the Atlantic

herring fishery “avoid[s] unnecessary duplication.” 16

U.S.C. § 1851(a)(7).

Accordingly, the Omnibus Amendment does not

violate National Standard 7.

2.

National Standard 8

National Standard 8 requires that FMPs and plan

amendments “take into account the importance of

fishery resources to fishing communities . . . in order

to (A) provide for the sustained participation of such

communities, and (B) to the extent practicable,

minimize adverse economic impacts on such

App-81

communities.” 16 U.S.C. § 1851(a)(8). The agency

“must give priority to conservation measures.” Nat.

Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 753

(D.C. Cir. 2000). “It is only when two different plans

achieve similar conservation measures that the

[Department] takes into consideration adverse

economic consequences.” Id. But where two

alternatives in fact achieve similar conservation goals,

the preferred option will be the alternative that

provides the greater potential for sustained

participation of fishing communities and that

minimizes adverse economic impacts. See 50 C.F.R.

§ 600.345(b)(1). “These sometimes conflicting goals of

conservation on the one hand and minimizing harm to

fishing communities on the other mean that the

Secretary has substantial discretion to strike what he

deems an appropriate balance.” N.C. Fisheries Ass’n,

518 F. Supp. 2d at 92 (citing Alliance Against IFQs v.

Brown, 84 F.3d 343, 350 (9th Cir. 1996)). “In striking

that balance, moreover, the Secretary need not

conduct an official or numerical cost/benefit analysis.”

Id. (citing Nat'l Fisheries Inst., 732 F. Supp. at 222).

Plaintiffs argue that the Omnibus Amendment

violates National Standard 8 because Defendants

have failed to establish its scientific and conservation

need. Pls.’ Reply, ECF No. 22 at 34; see also Pls.’ Mot.,

ECF No. 18-1 at 41. The Court disagrees. It is clear

from the administrative record that Defendants

explained the scientific and conservation benefits of

the Omnibus Amendment. Defendants explained that

the

amendment

establishes

industry-funded

monitoring “to help increase the accuracy of catch

estimates,” which in turn will “improv[e] catch

estimation for stock assessments and management.”

App-82

AR 17742 (“Analysis in the EA suggests a 50-percent

coverage target would reduce the uncertainty around

estimates of catch tracked against catch caps, likely

resulting in a CV of less than 30 percent for the

majority of catch caps.”); see also id. at 17316. “If

increased monitoring reduces the uncertainty in the

catch of haddock and river herring and shad tracked

against catch caps, herring vessels may be more

constrained by catch caps, thereby increasing

accountability, or they may be less constrained by

catch caps and better able to fully harvest herring subACLs.” Id. at 17742; see also id. at 17789.

Furthermore, Defendants explained that “[i]mproving

[the] ability to track catch against catch limits is

expected to support the herring fishery achieve

optimum yield, minimize bycatch and incidental catch

to the extent practicable, and support the sustained

participation of fishing communities.” Id. at 17742; see

also id. at 17789-90. As explained above, those

conservation needs were weighed against the

associated costs to the industry, and the Council

considered significant alternatives and selected

measures to minimize adverse economic impacts on

the fishing industry and communities. See id. at

17316.

Plaintiffs also argue that the cost-minimization

efforts “impermissibly benefit a select number of

fishing communities where that sliver of the fleet

berths and does business.” Pls.’ Reply, ECF No. 22 at

34. Plaintiffs further contend that “differences in

SBRM coverage among different gear types will lead

to the midwater trawl fleet carrying more of the

financial burden in meeting the herring monitoring

coverage target.” Id. But, as stated above, the

App-83

administrative record demonstrates that Defendants

took into account the negative economic impacts upon

participants in the herring fishery “to the extent

practicable.” 16 U.S.C. § 1851(a)(8). In taking into

account the economic impacts, Defendants weighed

the alternatives and reasonably concluded that the

50% monitoring coverage target best met the balance

of the costs and benefits of additional monitoring. AR

17257, 17734.

“[C]ourts have consistently rejected challenges

under this standard where the administrative record

reveals that the Secretary was aware of potentially

devastating economic consequences, considered

significant alternatives, and ultimately concluded

that the benefits of the challenged regulation

outweighed the identified harms.” N.C. Fisheries

Ass’n, 518 F. Supp. 2d at 92 (citing cases). Accordingly,

the Court concludes that there is no violation of

National Standard Eight.

F.

The February 7, 2020 Final Rule Is Not

Substantively Deficient

Plaintiffs argue that Defendants’ responses to

comments submitted in connection with the final rule

were “substantively deficient.” Pls.’ Mot., ECF No. 181 at 43.

“The APA’s arbitrary-and-capricious standard

requires that agency rules be reasonable and

reasonably explained.” Nat’l Tel. Coop. Ass’n v. FCC,

563 F.3d 536, 540 (D.C. Cir. 2009). “An agency violates

this standard if it ‘entirely fail[s] to consider an

important aspect of the problem.’” Carlson v. Postal

Reg. Comm’n, 938 F.3d 337, 344 (D.C. Cir. 2019)

(quoting State Farm, 463 U.S. at 43). “An agency also

App-84

violates this standard if it fails to respond to

‘significant points’ and consider ‘all relevant factors’

raised by the public comments.” Id. (quoting Home Box

Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977)).

“The fundamental purpose of the response

requirement is, of course, to show that the agency has

indeed considered all significant points articulated by

the public.” Nat. Res. Def. Council, Inc. v. EPA, 859

F.2d 156, 188 (D.C. Cir. 1988). However, “[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.”

Thompson v. Clark, 741 F.2d 401, 409 (D.C. Cir. 1984)

(internal quotations and citations omitted).

First, Plaintiffs argue that Defendants’ failed to

cite statutory authority supporting its statement that

Section

1853(b)(8)’s

requirement

“to

carry

observers . . . includes compliance costs on industry

participants” because “there is no statutory

authorization for industry-funded monitoring.” Pls.’

Mot., ECF No. 18-1 at 43 (emphasis omitted) (quoting

AR 17739). Plaintiffs contend that Defendants never

addressed the argument that if authorization for

industry-funded monitoring were “implied, then

Congress’s efforts to allow it elsewhere would be

rendered surplusage.” Id.

However, the Service explained in its response

that its authority derives from Section 1853(b)(8) of

the MSA, which authorizes at-sea monitors to be

placed on fishing vessels, and explained its view that

“[t]he requirement to carry observers, along with

many other requirements under the [MSA], includes

compliance costs on industry participants.” AR 17739

App-85

(explaining that “NMFS regulations require fishing

vessels to install vessel monitoring systems for

monitoring vessel positions and fishing, report catch

electronically, fish with certain gear types or mesh

sizes, or ensure a vessel is safe before an observer may

be carried on a vessel. Vessels pay costs to thirdparties for services or goods in order to comply with

these regulatory requirements that are authorized by

the Magnuson-Stevens Act. There are also

opportunity costs imposed by restrictions on vessel

sizes, fish sizes, fishing areas, or fishing seasons.”).

Defendants’ response is not “substantively deficient”

for failing to expressly mention the surplusage canon,

as Defendants had already noted their disagreement

with the premise that industry-funded monitoring

was unauthorized. Cf. Del. Dep’t of Nat. Res. & Env’t

Control v. EPA, 785 F.3d 1, 15 (D.C. Cir. 2015) (stating

that an agency need not “discuss every item of fact or

opinion included in the submissions made to it”

(citation omitted)).

Plaintiffs also assert that “there is a key

distinction

between

regulatory

costs—often

enumerated by statute—and effectively paying the

salary of your direct, government minder.” Pls.’ Mot.,

ECF No. 18-1 at 43-44. Plaintiffs contend that the

measures within the Omnibus Amendment are more

comparable to inspection costs than compliance costs.

Id. at 44. Finally, Plaintiffs argue that Defendants

“tried to dismiss arguments that industry funding is

an unlawful tax.” Id. at 45.

However, Defendants also sufficiently responded

to these concerns raised in submitted comments.

Defendants explained that the purpose of monitoring

App-86

programs was to “collect[] data necessary for the

conversation and management of the fishery” and that

“[a]t-sea monitors are not authorized officers

conducting vessel searches for purposes of ensuring

compliance with fisheries requirements.” AR 17740.

Defendants further explained that industry funding is

not a tax because the government receives no revenue.

Id.

Accordingly, the Court concludes that the record

indicates that Defendants sufficiently considered the

relevant factors raised by the submitted comments

and provided reasonable explanations in response. See

Nat’l Tel. Coop. Ass’n, 563 F.3d at 540.

G. Defendants Did Not Violate NEPA

Plaintiffs further argue that Defendants’ EA

violates NEPA. See Pls.’ Mot., ECF No. 18-1 at 46.

While NEPA establishes a “national policy [to]

encourage productive and enjoyable harmony between

man and his environment,” 42 U.S.C. § 4321; “NEPA

itself does not mandate particular results,” Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989). “Rather, NEPA imposes only procedural

requirements on federal agencies with a particular

focus on requiring agencies to undertake analyses of

the environmental impact of their proposals and

actions.” Dep’t of Transp. v. Public Citizen, 541 U.S.

752, 756-57 (2004). In reviewing an agency’s decision

not to issue an EIS, the court’s role is a “‘limited’ one,

designed primarily to ensure ‘that no arguably

significant consequences have been ignored.’”

Taxpayers of Mich. Against Casinos v. Norton

[“TOMAC”], 433 F.3d 852, 860 (D.C. Cir. 2006)

(quoting Pub. Citizen v. Nat’l Highway Traffic Safety

App-87

Admin., 848 F.2d 256, 267 (D.C. Cir. 1988)). Thus,

courts apply “a ‘rule of reason’ to an agency’s NEPA

analysis” and decline to “‘flyspeck’ the agency’s

findings in search of ‘any deficiency no matter how

minor.’” Myersville Citizens for a Rural Cmty., Inc. v.

FERC, 783 F.3d 1301, 1322-23 (D.C. Cir. 2015)

(quoting Nevada v. U.S. Dep’t of Energy, 457 F.3d 78,

93 (D.C. Cir. 2006)).

Plaintiffs argue that Defendants violated NEPA

because: (1) Defendants failed to take a “hard look” at

the Omnibus Amendment’s impacts; (2) Defendants

did not adequately consider regulatory alternatives or

potential mitigation measures; (3) Defendants did not

seriously consider alternatives to industry-funded

monitoring; and (4) Defendants did not submit a

supplement to their environmental impact analysis

despite reductions in herring catch. See Pls.’ Mot.,

ECF No. 18-1 at 46-51. For the reasons explained

below, the Court rejects Plaintiffs’ arguments.

1.

Plaintiffs Do Not Have a Cause of

Action Under NEPA

As a threshold matter, the Court first addresses

whether Plaintiffs’ interests fall within NEPA’s “zone

of interests.” Gunpowder Riverkeeper v. FERC, 807

F.3d 267, 273 (D.C. Cir. 2015).

“In addition to constitutional standing, a plaintiff

must have a valid cause of action for the court to

proceed to the merits of its claim.” Id. (citing Natural

Res. Def. Council v. EPA, 755 F.3d 1010, 1018 (D.C.

Cir. 2014)). As the Supreme Court has explained,

courts “presume that a statutory cause of action

extends only to plaintiffs whose interests ‘fall within

the zone of interests protected by the law invoked.’”

App-88

Lexmark Int'l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 129 (2014) (quoting Allen v. Wright, 468

U.S. 737, 751 (1984)).

“The zone of interests protected by the NEPA is,

as its name implies, environmental; economic

interests simply do not fall within that zone.”

Gunpowder Riverkeeper, 807 F.3d at 274. “To be sure,

a [party] is not disqualified from asserting a claim

under the NEPA simply because it has an economic

interest in defeating a challenged regulatory action.”

Id. (citing Realty Income Trust v. Eckerd, 564 F.2d

447, 452 (D.C. Cir. 1977). But a party “must assert an

environmental harm in order to come within the

relevant zone of interests,” and that zone of interests

“does not encompass monetary interests alone,” id.

(quoting Eckerd, 564 F.2d at 452 & n.10, n.11).

Here, while Plaintiffs refer generally to

unspecified “environmental impacts,” Plaintiffs have

not alleged that they will suffer any environmental

injury as a result of the Omnibus Amendment. Rather,

Plaintiffs’ sole concern is with the financial burden on

fishing vessels and companies as a result of industryfunded monitoring. In their motion briefing and in

their Complaint, Plaintiffs have detailed their fears

regarding the economic impact of the Omnibus

Amendment. See, e.g., Pls.’ Mot., ECF No. 18-1 at 4851; Pls.’ Reply, ECF No. 22 at 36-42; Compl., ECF

No. 1 ¶¶ 3-5, 45, 78-80, 86, 91, 98. However, Plaintiffs

have failed to name any specific harms to the

environment and have not “linked [their] pecuniary

interest to the physical environment or to the

environmental impacts.” Ashley Creek Phosphate Co.

v. Norton, 420 F.3d 934, 940 (9th Cir. 2005) (holding

App-89

that plaintiff failed to establish prudential standing

under NEPA because plaintiff’s “sole interest is in

selling phosphate to Agrium”).

Accordingly, because Plaintiffs’ interest in

challenging the Omnibus Amendment is a purely

economic interest, and economic concerns are “not

within the zone of interests protected by NEPA,” ANR

Pipeline Co v. FERC, 205 F.3d 403, 408 (D.C. Cir.

2000); Plaintiffs cannot sustain a claim under NEPA,

see Goethel, 2016 WL 4076831, at *8 (dismissing

plaintiffs’ NEPA claim because their “argument

appears limited to the claim that NMFS failed to

adequately assess the economic impact of industry

funding”).

2.

Plaintiffs’ NEPA Claims Fail on the

Merits

Even if the Court found that NEPA was applicable

to Plaintiffs’ claims, Plaintiffs’ arguments would still

fail on the merits for the reasons stated below.

a.

Defendants Took a “Hard Look”

at Environmental Impacts

Plaintiffs argue that Defendants failed to take a

“hard look” at the “complete environmental impact” of

the omnibus measures, which created a process to

implement future industry-funded monitoring

programs in other New England FMPs. Pls.’ Mot.,

ECF No. 18-1 at 47. Plaintiffs contend that despite

recognizing that future industry-funded monitoring

programs will have an “economic impact” if

implemented, Defendants undertook no analysis of

these future costs. Id. at 47-48. In Plaintiffs’ view,

Defendants’ inclusion of these measures into the

Omnibus Amendment “suggests an improper attempt

App-90

to ‘artificially divid[e] a major federal action into

smaller components, each without significant

impact.’” Id. at 48 (quoting Jackson City v. FERC, 589

F.3d 1284, 1290 (D.C. Cir. 2009)).

Under NEPA, the EA must “take[] a hard look at

the problem.” Sierra Club v. Van Antwerp, 661 F.3d

1147, 1154 (D.C. Cir. 2011). “Although the contours of

the ‘hard look’ doctrine may be imprecise,” a court

must at a minimum “‘ensure that the agency has

adequately

considered

and

disclosed

the

environmental impact of its actions and that its

decision is not arbitrary or capricious.’” Nevada v.

Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)

(quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def.

Council, Inc., 462 U.S. 87, 97-98 (1983)). A “hard look”

includes “considering all foreseeable direct and

indirect impacts . . . . [It] should involve a discussion

of adverse impacts that does not improperly minimize

negative side effects.” N. Alaska Env’t Ctr. v.

Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006)

(internal quotation marks and citation omitted).

Here, the Court notes at the outset that while

Plaintiffs broadly claim that Defendants failed to take

a “hard look” at the environmental impacts of the

future

industry-funded

monitoring

programs,

Plaintiffs only identify alleged economic impacts. See

Pls.’ Mot., ECF No. 18-1 at 48 (stating that NEFMC

recognized the “economic impact” of future monitoring

programs); id. (noting that NEFMC had suggested a

potential rise in “monitoring costs” due to overlapping

requirements); id. at 49 (arguing a NEPA violation

because the “final EA provides no detail about the

potential economic impact”); id. (citing to “meager

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evidence” in the administrative record regarding the

economic impact on the non-herring fleet); Pls.’ Reply,

ECF No. 22 at 36 (arguing the Council refused to

“recognize[] the uniformly negative expected economic

pact of future” monitoring programs). As explained

above, a party “must assert an environmental harm in

order to come within [NEPA’s] zone of interests.”

Gunpowder Riverkeeper, 807 F.3d at 274 (citing

Eckerd, 564 F.2d 447, 452 & n.10 (D.C. Cir. 1977); see

Cachil Dehe Band of Wintun Indians of Colusa Indian

Cmty. v. Zinke, 889 F.3d 584, 606 (9th Cir. 2018) (“We

have ‘consistently held that purely economic interests

do not fall within NEPA’s zone of interests.’” (quoting

Ashley Creek Phosphate, 420 F.3d at 940)).

However, even if NEPA was applicable here, the

Court’s conclusion would remain the same. Plaintiffs

dispute Defendants’ determination that the omnibus

measures “do not have any direct economic impacts on

fishery-related business or human communities

because they do not require the development of

[industry-funded monitoring] programs nor do they

directly impose any costs.” AR 17179. Plaintiffs

contend that because Defendants are aware of which

New England FMPs are in the position to implement

industry-funded programs and “have access to

extensive information about the demographics and

operation of New England fisheries,” Defendants

could conduct an analysis of economic impact of future

monitoring programs. Pls.’ Reply, ECF No. 22 at 37.

Defendants, on the other hand, argue that such future

costs are too speculative to include in the EA

“[w]ithout knowing the goals or the details of the

measures to achieve [future industry-funded

monitoring] goals.” Defs.’ Opp’n, ECF No. 20-1 at 50

App-92

(quoting AR 17741). Defendants state that “[t]he

economic impacts to fishing vessels and benefits

resulting from a future . . . program would be

evaluated in the amendment to establish

that . . . program.” Id. (quoting AR 17741).

The Court agrees with Defendants. “The ‘rule of

reason’ requires that consideration be given to

practical limitations on the agency’s analysis, such as

the information available at the time.” Wilderness

Soc’y v. Salazar, 603 F. Supp. 2d 52, 61 (D.D.C. 2009)

(citing Transmission Access Policy Study Group v.

FERC, 225 F.3d 667, 736 (D.C. Cir. 2000)). Because

the omnibus measures do not require the development

of industry-funded monitoring programs in all FMPs

but rather set up a process to be used if such programs

are developed in the future, Defendants did not know

the location of any future monitoring program or the

future program’s specific goals at the time of the EA’s

preparation. Furthermore, “[t]hat [D]efendants may

continue to assess impacts as more information

becomes available does not indicate that defendants

failed to take a ‘hard look’ at the environmental

consequences of its proposed action.” Id. at 62.

Requiring Defendants to analyze future industryfunded monitoring programs without knowing where

the programs will be implemented would be

unreasonable and beyond NEPA’s mandate. See id.;

see also WildEarth Guardians v. Zinke, 368 F. Supp.

3d 41, 66-67 (D.D.C. 2019) (finding that defendant

agency did not violate NEPA when the agency “could

not reasonably foresee the projects to be undertaken

on specific leased parcels, nor could it evaluate the

impacts of those projects on a parcel-by-parcel basis”).

For the same reasons the Court finds that Defendants

App-93

did not improperly segment the Omnibus

Amendment. See Jackson Cnty., 589 F.3d at 1291

(finding it reasonable that FERC treated two projects

separately when, among other thing, the projects were

geographically distinct and triggered separate agency

approval decisions).

b.

Defendants

Adequately

Considered Alternatives and

Potential Mitigation Measures

Plaintiffs next argue that Defendants violated

NEPA because they did not adequately address

potential mitigation measures or alternatives to the

Omnibus Amendment. Pls.’ Mot., ECF No. 18-1 at 49.

The Court disagrees.

An EA “must include a ‘brief discussion[]’ of

reasonable alternatives to the proposed action.”

Myersville, 783 F.3d at 1323 (citation omitted). “An

alternative is reasonable if it is objectively feasible as

well as reasonable in light of the agency’s objectives.”

Id. (alterations and quotation marks omitted) (quoting

Theodore Roosevelt Conservation P’ship, 661 F.3d at

72). An agency’s specification of the range of

reasonable alternatives is entitled to deference.

Citizens Against Burlington, Inc. v. Busey, 938 F.2d

190, 196 (D.C. Cir. 1991). Furthermore, an agency’s

consideration of alternatives in an EA “need not be as

rigorous as the consideration of alternatives in an

EIS.” Myersville, 783 F.3d at 1323. “In assessing

whether an agency has shown that a project’s

environmental impacts are adequately addressed by

mitigation measures, a court must ask . . . whether

the agency discussed the mitigation measures ‘in

sufficient detail to ensure that environmental

App-94

consequences have been fairly evaluated.’” Food &

Water Watch v. U.S. Dep’t of Agric., 451 F. Supp. 3d

11, 37 (D.D.C. 2020) (quoting Indian River Cnty., Fla.

V. U.S. Dep’t of Transp., 945 F.3d 515, 522 (D.C. Cir.

2019)). “NEPA does not, however, ‘require agencies to

discuss any particular mitigation plans that they

might put in place.’” Id. (quoting Theodore Roosevelt

Conservation P’ship, 616 F.3d at 503).

First, regarding consideration of alternatives, the

Court finds that Defendants have complied with

NEPA’s requirements. The EA included a brief

discussion of seven alternatives to the omnibus

measures, including an option preserving the status

quo, “that would modify all the FMPs managed by the

Council to allow standardized development of future

FMP-specific industry-funded monitoring programs.”

AR 17046-47. The EA also included a discussion of

multiple alternatives regarding increasing monitoring

in the Atlantic herring fishery specifically, including a

“no additional coverage” alternative, electric

monitoring options, and portside sampling options.

See AR 17069-101. Plaintiffs do not explain how the

EA’s discussion of these alternatives is inadequate,

nor do they argue that there were any alternatives

that

Defendants

improperly

excluded

from

consideration. To the extent that Plaintiffs suggest

that “at-sea monitoring under the Omnibus

Amendment in the herring fishery is discretionary,”

“unnecessary to advance conservation goals,” and “less

efficient than shoreside alternatives,” Pls.’ Opp’n, ECF

No. 22 at 34-35; “NEPA does not compel a particular

result,” Myersville, 783 F.3d at 1324. “Even if an

agency has conceded that an alternative is

environmentally superior, it nevertheless may be

App-95

entitled under the circumstances not to choose that

alternative.” Id.; see also Robertson, 490 U.S. at 350

(“If the adverse environmental effects of the proposed

action are adequately identified and evaluated, the

agency is not constrained by NEPA from deciding that

other values outweigh the environmental costs.”).

Thus, in view of the cursory nature of Plaintiffs’

argument, the Court finds that Defendants’ discussion

of alternatives is sufficient to meet the NEPA

obligations. Cf. Airport Impact Relief, Inc. v. Wykle,

192 F.3d 197, 205 (1st Cir. 1999) (noting arguments

raised “in a perfunctory manner, unaccompanied by

some effort at developed argumentation” are waived

when they “do not attempt to explain the manner in

which the environment will be significantly affected”).

Second, regarding mitigation measures, the Court

finds that Defendants’ EA satisfies the relevant

standard. Plaintiffs contend that although the EA

contains information regarding the negative effects

that industry-funded monitoring will have on

businesses and communities, the EA “downplays”

such impacts “by referring to the waiver of coverage

for vessels that land less than 50 metric tons of

herring per trip—a mitigation measure that applies to

an especially small portion of the herring fleet . . . —

and by vaguely referring to potential adjustments by

the NEFMC in the next two years.” Pls.’ Mot., ECF No.

18-1 at 49 (citing AR 17250, 17327); see also Pls.’

Reply, ECF No. 22 at 38 (arguing that “the exemption

for vessels landing under 50 metric tons of herring will

favor a sliver of the fleet and therefore impermissibly

benefit a select number of fishing communities”).

App-96

Again, Plaintiffs’ argument regards economic

interests, not environmental ones. See Gunpowder

Riverkeeper, 807 F.3d at 274. Furthermore, Plaintiffs’

challenge to the 50-metric-ton exemption is ultimately

based on a disagreement with the substance of the

exemption rather than on Defendants’ compliance

with NEPA’s procedural requirements. It is well

established that “[w]here NEPA analysis is required,

its role is ‘primarily information-forcing.’” Mayo v.

Reynolds, 875 F.3d 11, 15-16 (D.C. Cir. 2017) (quoting

Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir.

2017)). “As the Supreme Court has explained, ‘[t]here

is

a

fundamental

distinction . . . between

a

requirement that mitigation be discussed in sufficient

detail to ensure that environmental consequences

have been fairly evaluated, on the one hand, and a

substantive requirement that a complete mitigation

plan be actually formulated and adopted, on the

other.’” Id. (quoting Robertson, 490 U.S. at 352). In

other words, “NEPA is ‘not a suitable vehicle’ for

airing grievances about the substantive policies

adopted by an agency, as ‘NEPA was not intended to

resolve fundamental policy disputes.’” Id. (quoting

Grunewald v. Jarvis, 776 F.3d 893, 903 (D.C. Cir.

2015)).

To the extent that Plaintiffs refer to

environmental impacts in arguing that the Council’s

plan to re-evaluate the Atlantic herring monitoring

program in two years is “vague,” Pls.’ Mot., ECF No.

18-1 at 49; the EA reflects that Defendants were

aware of the environmental impacts of the Omnibus

Amendment and its alternatives and the need to

incorporate mitigation efforts to reduce any negative

impacts. See, e.g., AR 17177-241.

App-97

The omnibus measures were determined to have

“no direct impacts” on biological resources or the

physical environment. Id. at 17179. The industryfunded monitoring program in the Atlantic herring

fishery was determined to have a “negligible” impact

on the physical environment and an “indirect” impact

on biological resources because “they affect levels of

monitoring rather than harvest specifications or gear

requirements.” Id. at 17179, 17316; see also id. at

17326 (“The proposed action is not expected to cause

significant environmental impacts because it

establishes a monitoring program, rather than

specifying harvest specifications, gear requirements,

or changes in fishing behavior.”). The EA then took

into account “variations and contingencies in [the

Atlantic herring] fishery by adapting coverage levels

to available funding or logistics and allowing vessels

to choose electronic monitoring and portside sampling

coverage, if it is suitable for the fishery and depending

on a vessel owner’s preference.” Id. at 17315. The EA

explained that one of the “preferred” alternatives

“would require the Council to revisit the preferred

Herring Alternatives two years after implementation

and evaluate whether changes to management

measures are necessary.” Id. “This requirement to

evaluate the impacts of increased monitoring in the

herring fishery takes into account and allows for

variations and contingencies in the fishery, fishery

resources, and catches.” Id. Given that the Omnibus

Amendment’s measures may “increase monitoring

and that may improve management of the fishery and

provide a better opportunity for achieving optimum

yield,” resulting in indirect benefits for the

environment, id. at 17312; Plaintiffs have failed to

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show that the two-year

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