has already decided to in two thousand and eleven when considering a challenge to a prior version of the same rule this court make clear that as a matter of law and agency violates the statutory command to establish a methodology when the rule permits the agency to quote free itself at will from the methodology it purportedly established that was the problem with the prior rule which allowed the agency to depart from its prescribed methodology for allocating  second problem yes you are right osho just so they have one set of rules that applies in the world where they have full funding and then they have essentially as i understand it an algorithm for pairing down the inspection program to the extent they're strapped for resources and operating under the any deficiency act which would make it a departure is triggered whenever funding is insufficient they say the problem is that as this court noted in two thousand and eleven other provisions of the same fisheries act specifically directed agency to carry out the provision to program in a particular way the agency's duty is clear but doesn't the rule also command the agency to expend resources basically at the same level that historically done  that it knows that funding levels are likely to vary it's important to note bed that these four internal funding lines that the agency has identified are totally internal these are buckets for lack of other words buckets and the agencies own elected to put this funny trigger in place there could be a funny trigger your honor if the agency did not have discretion over the funding itself but that this court and that prior decision made clear that when the agency controls both the amount of funds required for the methodology and that the level of funding that's available agency simply reserves to itself to much discretion how specific are the realm of the appropriations is there one targeted to all inspections under this statute on the agency discretion is just to allocate among regions or is it broader than that narrower than i my understanding your honor is that it's fairly broad i think there's  my colleague can correct me if i'm wrong but that the agency then decides how much fines allocate to bycatch and then within that how much of these for finding mines to allocate to this is so when they talk about for funding lines your understanding is that's purely distributing the congressional appropriations among all of their funding lines but the methodology they put in place of the sponsor or earlier decision controls which of the funding lines get money for by catch a valuation and what happens if there's short but not accurate i don't think that's accurate all right i think the agency reserves complete discretion for how much money goes into these four funding lines and how much comes out as a methodology simply says we identify these four internal finding my hands and we never finds in these four internal funny lines are insufficient then we trigger this process and i stretch katsa says then where in the cement kiln second prong which says if the the thirty percent if the cd goes higher than thirty percent then the data is simply unreliable it's not usable and the whole purpose of the fisheries act of this provision of the fisheries act is to yield reliable information so as to s catch limits and prevent over catching in subsequent years so this really it matters and it is a departure from the methodology when the agency decides that this thirty percent c they've they've established as the methodology no longer applies to species at the agencies will put the bets for what you're talking about non federally protected species right the federally protected species are you saying that the methodology also wells seed to exceed three percent yes your honor to be clear second issue certainly oceana challenges the fact that the agency does not even apply the methodology to non federally manage species and that is a concern that oceania has but that's a separate issue the first issue is really about whether the agency has established  methodology and even for the federally managed species that the agency purportedly applies this methodology to agency departs from that thirty percent see the whenever they to see decides to allocate insufficient funds to these internal these for internal funding lines there's nothing in this statute tells the agency how to allocate priorities as between this program and all the other programs they have to administer right and indeed there's a background rule that unless there's a specific instruction from congress so you can see so not only have discretion to make those judgments but perhaps unreviewable discretion so why shouldn't we just take that as a given and the agency has eliminated all other questions and and the only element of discretion left in this system is their choice among competing priorities and you know it sounds bad in this case if you imagine the hypothetical where they're directing money elsewhere but they're directing money towards a program that your client is interested in somebody else will be here complaining that funds aren't being spent on their program well practicable or some sort of prioritize ation provision or something like that when that's lacking from a specific statutory command then the agency is required to follow that command and to be clear the agency has has tried to make this about funding but there are many other ways the agency could establish a methodology for example oceana and other commenters urge the agency to consider other sources of funding such as industry funding there are certain fisheries like the alps fishery where industry funding is that here and that is a difference from the earlier two thousand and eleven they solve that problem they solved that problem the but they have not solved the problem the antecedent problem of the fact that they still have complete discretion your honor over when to trigger the departure they decide how much funds go into these four funding lines they decide of the those fines how mr allocates in this region they decide how much to pull out for administrative or overhead costs whether to disregard other sources of funny such as industry funding and a o to be clear ocean on and others urge the agency to take steps that we thought were more and more cost effective such as i think supplementing onboard observers with electronic electronic monitoring and the agency completely disregarded that they didn't three year study so so these commenters did urge the agency to consider this that it i mean agency as he said kind of put the cart before the horse and said well because we've already concluded that electronic monitoring is both technologically and not cost effective we're not even going to consider these studies that you're urging us to consider well i thought the record was updated right the commenters did in fact submit updated evidence right yes you are and the agency explanation which is that the technology didn't they say in two thousand and fifteen we we continue to work here to work view that the perfectly good explanation for a p a purposes and then the question is simply whether there's substantial evidence in the record to support that judgment well you're right here and i think it would be a sufficient explanation if the agency had in fact consulted the the correct data and had looked at timely data under the district hospital partners case and under the city of new orleans case the agency has a requirement under the a p a it's a consider timely data to consider to continue to analyze the studies that it has relied on and we submit it hasn't done so moreover there's an additional stronger standard here that the district court called it a stronger standard than the fisheries act which requires the inconsistent with the requirement to consider the best scientific information available when here the agency said both of the very beginning of the process and in the final rule we deem all policy alternatives to be considered and rejected the agency was was blatant about the fact that it did not even consider any data post two thousand and eight it did cite those two studies that judge hale and i were discussing but it in no way analyzed them and no way discussed the data it simply cited them as studies that comment board observers and secondly you're right that that is that's one nation agency gave but that's the same explanation verbatim copy and paste that back agency dated two thousand and eight and the agency didn't consider any of these new studies to see that there was a lot of advancement both think of the capacity for electronic monitoring to record this out and in the cost between two thousand and two thousand two thousand and fifteen the technology has improved greatly and the agency simply never considered that because agency chooses whether to take the lump sum allocation and put it into those four funding lines or somewhere else the agency has  and indeed unreviewable discretion right that's the lesson from lincoln versus visual the allocation of the one some appropriation isn't revealed one of the a p a but that doesn't impact the question of whether the reporting not establish well it suggests that you have not solved one of the two problems that we identified the last time around which is that the trigger be defined the trigger for creating the exceptions respectfully your honor i disagree with that the problem and identified by this court in two thousand and eleven was that there was discretion to depart from the methodology on a case by case basis if funding was insufficient the agency could assign observers to tripp's ad hoc at will this methodology completely removed any discretion is and you've solved  thousand and eight amendment was that in cases where there was a funding shortfall the agency had discretion to depart from the rule and assign observers at will to hear just to sit establish a methodology if the agency  intensive while a lot lots and lots of inspections and then they sabotage a second set of rules which is the pared back version of the inspections and then they say what we're reserv single formula it's used to decide which trips observers are going to go on and it accounts for all sorts of funding scenarios the optimal funding scenario which has occurred in recent years and a sudden optimal findings and an area when there insufficient funding to send observers and when when when you choose not to spend money on this particular program and regardless of the amount of money spent on this particular program it wouldn't affect whether the reporting methodology is ok now but the amount the agency puts into those fuel lines is still completely discretionary correct that's correct and your position is that discretion comes from the case law which says that agencies have discretion to allocate block appropriations correct yes but didn't our earlier decisions say that that the citizens about how much to allocate to those workouts had to be subject to a standardized methodology so the way that the way that i read this court's two thousand and eleven opinion is that if there is discretion to depart from the rule if there is discretion to assign observers ad hoc you have to have adequate you have to adequately defined the trigger for that ad hoc discretion in this methodology there is no discretion to assign when that discretion will be used the problem with the prior amendment is the regulated community didn't know that one that trigger would occur here if they had the level of target decision the agency may be forced to make which is what happens when there's a shortfall it applies if there is discretion to depart from the rule which there wasn't a two thousand and eight and that meant in a funding shortfall the agency said we reserved the right to assign observer to assign observers ad hoc among the station modes they solve that problem in the two thousand and fifteen amended by taking away any discretion for how observers are assigned no matter the level of funding there is a formula written into the rule for how observers have to be assigned their automatically assign his formula and if they can't depart from that formula in any funding circumstance so the problem  get to the explanation that the i think the best argument on the other side is that the agency prejudge this when it's on the front end of the rule making  which we're not even going to look at this if this was addressed in two thousand and eight and on other issues other than the remained issue we're not going to consider so that an unfair characterization that is an unfair characterization your honor the in the federal register preamble that started could you just give me the j a page yes action does not contain this is sufficient range of reasonable alternatives including anat no action alternative underneath the and the agency did say that they hadn't really analyzed any of the need alternatives but that was a completely separate question from one of the agency looked at developments and electronic technology and video cameras separate question but if they said in that context across the board that any ground not within the scope of the remained order esteemed off the table that would seem to apply to this video camera issue well what call it so two responses first they the agency was saying that they didn't conduct middleton is analysis which significant discussion of development in electronic monitoring and video camera technology responded to oceana's and others comments about advances in that technology each of the studies cited by oceana was was discussed in the in the case of quality management for one by one you're looking at today as they come up but this is a completely different scenario you know a lot of the types of monitoring here involves a  suppose you agency could have taken the position which is the world position where we find a defect in regulation and remanded that the only thing open on remand is to fix that defect right that's what we normally do well it doesn't remain and because of the single defect in the regulation doesn't really open the whole regulation but i think their argument is that the agency of the tone took another look at these issues well you're on the this wasn't just a implementation of its two thousand and thirteen electronic technologies policy and continues to monitor an ongoing developments and has modeled various scenarios of how it can incorporate video cameras into this reporting and the funding it will allocate for that purpose it can determine the stringency of the supposedly external constraint and that's three itself out well from the methodology they purportedly established this will not do but that's because you could control government said it has total discretion over how much money goes into these four funding lines that that establish the suppose it constrain in response to your questions your honour's the government conceded that the agency could allocate zero dollars to the for funding and in which case it would be a absolute departure from the methodology but how is to this new methodology helpless and i mean it cabin's of discretion of the agency to determine the amount of funding  needed because the methodology isn't dependent completely upon the amount of funds the methodology sets forth these are how many observers are needed and then if you think forecloses the rule that the agency is promulgated here thank you thank you