UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Loper Bright Enterprises, Inc., 

et al., 

Plaintiffs,

v.

GINA RAIMONDO, in her official 

capacity, Secretary, U.S. 

Department of Commerce, et 

al., 

Defendants.

Civ. Action No. 20-466 (EGS)

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 industry-funded monitoring program in 

the Atlantic herring fishery. Pls.’ Mem. P. & A. Supp. Mot. 

Summ. J. (“Pls.’ Mot.”), ECF No. 18-1 at 22-23.1 Plaintiffs 

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

allege that the Omnibus Amendment suffers from procedural flaws 

and violates the directives of the Magnuson-Stevens 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 

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.
3

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’ Cross-Motion for Summary 

Judgment, ECF No. 20; and Defendants’ Motion to Exclude 

Plaintiffs’ Extra-Record 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 
4

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

4 The Service is a federal agency within the Department of 

Commerce’s NOAA. 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).
5

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 

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 
6

the fishery.” Id. § 1853(b)(8). 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(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 
7

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.

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 
8

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 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 industry-funded 

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 industry-funded 

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 

[industry-funded monitoring] programs for 

available federal funding across New England 

FMPs. . . .
9

Fifth, the omnibus measures standardize the 

process to develop future monitoring set-aside 

programs, and allow monitoring set-aside 

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.

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, 

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.

7 “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 . . 
10

ECF No. 20-1 at 20; 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 

[industry-funded 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 

. .” 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 herring they can catch per trip

or land per calendar day. Compl., ECF No. 1 ¶ 68.
11

[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 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-to-owner 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 
12

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-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).
13

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 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.
14

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, or immunity; (C) in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory 

right; [or] (D) without observance of procedure required by 
15

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 
16

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 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 
17

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)).

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 Fisheries8—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, 

8 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.
18

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. 

Kaelin’s declaration in their discussion of Defendants’ failure 

to properly consider the costs of industry-funded monitoring,” 

Plaintiffs argue that the Court may consider the information 

contained in the declaration. Pls.’ Opp’n Exclude, ECF No. 25 at 

7, 10-11.

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 
19

[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 

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.
20

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) (“[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 
21

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 nonpublic 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 Flexibility Act, are 

sufficient reasons to justify admitting extra-record evidence. 
22

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 
23

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 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 50-metric-ton exemption 

and the viability of fish[er]men simply moving to a different 
24

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).

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 industryfunded monitoring measures within the Omnibus Amendment. See 
25

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 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. 
26

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 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 
27

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, 22-23 (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 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 
28

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 management” measures, “the Court has no basis 
29

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 
30

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 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 
31

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 monitors, 

the MSA recognizes the existence of an at-sea 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 fee-based 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 
32

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). 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 industry-funded monitoring, it would not have 
33

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-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 
34

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. 

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 
35

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 industry-funded 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 
36

programs. See, e.g., S. Rep. No. 114-66 at 31-32 (June 16, 

2015); S. Rep. No. 114-239 at 31-32 (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 
37

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 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”).
38

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 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 
39

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 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 industryfunded 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, 
40

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 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 
41

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.
42

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 industryfunded 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.’ 
43

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. And the 

government’s role is limited to approving at-sea 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.
44

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 

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 
45

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 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 
46

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 non-preferred 

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 industryfunded at-sea monitoring coverage and allow[s] midwater trawl 

vessels to use electronic monitoring and portside 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 
47

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 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 industryfunded 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 
48

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 of ‘duplication’ that National Standard Seven aims to 

avoid” because “vessels in non-herring fisheries could become 
49

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 NEFMCadministered 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 industry-funded 

monitoring, a vessel will not have SBRM and industry-funded 

monitoring coverage on the same trip. See id. at 17315, 17734. 

Thus, the industry-funded 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 
50

sustained participation of such communities, and (B) to the

extent practicable, minimize adverse economic impacts on such 

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 
51

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.” 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 sub-ACLs.” 

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 
52

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 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 
53

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. 18-1 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 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 
54

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 (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 third-parties for 
55

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 programs was to “collect[] data 

necessary for the conversation and management of the fishery” 
56

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 
57

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 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 industryfunded 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.”
58

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.’” 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 
59

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 

industry-funded 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 48-51; 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 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”).
60

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 industryfunded 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 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 
61

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 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 
62

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 (quoting AR 17741). Defendants state that “[t]he 
63

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 industry-funded

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 
64

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 

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 
65

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 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-
66

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 “atsea 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 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”).
67

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”).

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, 
68

‘[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. 

The omnibus measures were determined to have “no direct 

impacts” on biological resources or the physical environment. 

Id. at 17179. The industry-funded 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 
69

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 show that the two-year re-examination provision is an 

inadequate mitigant under NEPA. 
70

Finally, Plaintiffs contend that Defendants have used the 

“uncertainty of future management efforts,” particularly the 

two-year re-examination provision, “as a shield to avoid fuller 

environmental impact analysis.” Pls.’ Reply, ECF No. 22 at 38 

(quotation marks omitted). This argument is without merit. As 

explained above, the EA includes a thorough description of 

potential environmental impacts, and Plaintiffs fail to point to 

any specific deficiencies in Defendants’ discussion of 

environmental impacts or mitigation measures. 

Accordingly, the Court finds that, even if the Court found 

that NEPA was applicable to Plaintiffs’ claims, the EA’s 

discussion of environmental impacts and mitigation measures 

complies with NEPA’s mandate.

c. Defendants Did Not Predetermine the Outcome

Plaintiffs next argue that “Defendants pre-judged the 

outcome of the EA in favor of the NEFMC’s preferred 

alternatives.” Pls.’ Mot., ECF No. 18-1 at 49. According to 

Plaintiffs, “[n]othing in the administrative record suggests 

that NEFMC and Defendants seriously considered preserving the 

status quo.” Id. at 50. As evidence, Plaintiffs point to 

sections of the administrative record in which Defendants state 

that a cost-benefit analysis could not be “completed” before the 

Council selected its preferred alternatives, and that the 

Omnibus Amendment’s purpose was to “establish[] a clear 
71

delineation of costs for monitoring between the industry and 

NMFS for all FMPs.” Id.; Pls.’ Reply, ECF No. 22 at 39. 

Plaintiffs also assert that Defendants received “overwhelmingly 

negative feedback from stakeholders and regulated parties,”

which they argue would cause a “reasonable regulator” to “think 

twice.” Pls.’ Mot., ECF No. 18-1 at 50; see also Pls.’ Reply, 

ECF No. 22 at 39.

The standard for demonstrating predetermination is high. 

See Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 

692, 714 (10th Cir. 2010); Stand Up for Calif.! v. U.S. Dep’t of 

the Interior, 204 F. Supp. 3d 212, 304 (D.D.C. 2016). 

“[P]redetermination occurs only when an agency irreversibly and 

irretrievably commits itself to a plan of action that is 

dependent upon the NEPA environmental analysis producing a 

certain outcome, before the agency has completed that 

environmental analysis.” Forest Guardians, 611 F.3d at 714. 

Indeed, “NEPA does not require agency officials to be 

‘subjectively impartial,’” id. at 712 (quoting Env’t Def. Fund, 

Inc. v. Corps of Eng’rs of the U.S. Army, 470 F.2d 289, 295 (8th 

Cir. 1972)); and “[b]ias towards a preferred outcome does not 

violate NEPA so long as it does not prevent full and frank 

consideration of environmental concerns,” Comm. of 100 on the

Fed. City v. Foxx, 87 F. Supp. 3d 191, 205–06 (D.D.C. 2015).

Thus, in determining what is an “irreversible and irretrievable” 
72

commitment, courts in this Circuit have looked “to the practical 

effects of [an] agency’s conduct rather than whether the conduct 

suggests subjective agency bias in favor of the project.” Id. at 

207.

Defendants’ actions do not rise to the level of 

predetermination. Regardless of whether Defendants had a bias 

toward implementing some type of increased monitoring program in 

the region, the extensive administrative record demonstrates 

that any preferred outcome did not “prevent full and frank 

consideration of environmental concerns.” Id. at 205-06. 

Furthermore, while Plaintiffs note that Defendants received 

negative feedback during the comment periods for the Omnibus 

Amendment and its implementing regulations, Plaintiffs do not 

contend that Defendants ignored these comments or provided 

insufficient responses. See Pls.’ Mot., ECF No. 18-1 at 49-50. 

And as Defendants point out, Defendants likewise received 

positive feedback advocating for greater monitoring coverage 

than the alternative that was selected. Defs.’ Opp’n, ECF No. 

20-1 at 54 (citing AR 17668-71, 17742). Put simply, an agency 

“may work toward a solution, even its preferred one,” Stand Up 

for Calif.!, 410 F. Supp. 3d at 61; and here, Defendants did not 

“irreversibly and irretrievably” commit itself to the measures 

within the amendment prior to conducting its environmental 

analysis, see Wyo. Outdoor Council v. U.S. Forest Serv., 165 
73

F.3d 43, 49 (D.C. Cir. 1999) (explaining that issuing leases 

such that agency no longer retains “the authority to preclude 

all surface disturbing activities” constitutes an irretrievable 

commitment of resources (quoting Sierra Club v. Peterson, 717 

F.2d 1409, 1415 (D.C. Cir. 1983)); Flaherty v. Bryson, 850 F. 

Supp. 2d 38, 71 (D.D.C. 2012) (“An administrator’s statement of 

an opinion, based upon review of the action’s subject matter and 

relevant regulatory guidance, suggests conscious thought rather 

than prejudgment, and does not lead to the conclusion that the 

administrator would not change his or her mind upon review of 

the full EA.”).

Accordingly, the Court concludes that Defendants did not 

predetermine the outcome of the EA.

d. Defendants Were Not Required to Supplement the EA

Plaintiffs also argue that Defendants violated NEPA because 

they did not supplement the EA following herring catch 

reductions in 2019 and 2020, which Plaintiffs contend “will 

significantly impact the economics of the fishery and the 

viability of the fleet under an industry-funded monitoring 

regime.” Pls.’ Reply, ECF No. 22 at 39. Plaintiffs argue that 

the EA “contains no data” supporting Defendants’ finding that 

“increases in total revenue from other fisheries” would 

“mitigate the negative impacts of reductions to the herring ACL 
74

and associated revenue.” Pls.’ Mot., ECF No. 18-1 at 51; see 

also Pls.’ Reply, ECF No. 22 at 42.

Under NEPA, an agency must prepare a supplement to an EA 

when “[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)(ii). However, 

as the Supreme Court has explained, under the “rule of reason,” 

an agency need not supplement an EA “every time new information 

comes to light” after the EA is finalized. Marsh v. Or. Nat. 

Res. Council, 490 U.S. 360, 373 (1989). Rather, “if the new 

information shows that the remaining action will affect the 

quality of the environment ‘in a significant manner or to a 

significant extent not already considered,’” a supplemental must 

be prepared. Nat’l Comm. for the New River v. FERC, 373 F.3d 

1323, 1330 (D.C. Cir. 2004) (quoting Marsh, 490 U.S. at 374). In 

addition, the D.C. Circuit has instructed that a supplement “is 

only required where new information ‘provides a seriously

different picture of the environmental landscape.’” City of 

Olmsted Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002); see 

also Pub. Emps. for Env’t Responsibility v. U.S. Dep’t of the 

Interior, 832 F. Supp. 2d 5, 29–30 (D.D.C. 2011) (“[W]hether a 

change is ‘substantial’ so as to warrant [a supplement] is 

determined not by the modification in the abstract, but rather 
75

by the significance of the environmental effects of the 

changes.”).

Here, Defendants reasonably concluded that the herring 

catch reductions did not “significantly transform the nature of 

the environmental issues raised in the [EA].” Nat’l Comm. for 

the New River, 373 F.3d at 1330-31 (finding that new information 

did not “seriously change[] the environmental landscape” where 

the agency’s process for evaluating the environmental impact was 

“comprehensive”). First, Plaintiffs do not point to any evidence 

that herring catch reductions will have significant 

environmental impacts on industry-funded monitoring programs. 

See Pls.’ Mot., ECF No. 18-1 at 51; Pls.’ Reply, ECF No. 22 at 

39-42. Plaintiffs refer solely to the “economics of the fishery 

and the viability of the fleet” and do not attempt to show how 

the fleet’s revenue stream is “interrelated” with “natural or 

physical environmental effects.” 40 C.F.R. § 1508.1(m) (defining 

“human environment”); cf. Blue Ridge, 716 F.3d at 198 (rejecting 

argument that new environmental reports were required because 

the argument “relie[d] on Petitioners’ elision of ‘safety 

significance’ with ‘environmental significance’”). Because “NEPA 

does not require the agency to assess every impact or effect of 

its proposed action, but only the impact or effect on the 

environment,” Metro. Edison Co. v. People Against Nuclear 

Energy, 460 U.S. 766, 772 (1983); Defendants did not run afoul 
76

of NEPA’s requirements in deciding a supplemental EA was not 

needed, see Stand Up for Calif.!, 410 F. Supp. 3d at 55-56 

(finding that alleged impacts to the public safety did not fall 

within the Court’s NEPA review because it was not an 

“environmental concern”).

Second, the record indicates that Defendants undertook a 

careful evaluation of the significance of the herring catch 

reductions prior to determining whether a supplement was needed. 

See Marsh, 490 U.S. at 378 (instructing that when reviewing an 

agency’s decision not to supplement an environmental impact 

statement, courts must be satisfied that “the agency has made a 

reasoned decision based on its evaluation of the significance—or 

lack of significance—of the new information”). Defendants 

explained that “[t]he EA describes the economic impacts of 

herring measures on fishery-related businesses and human 

communities as negative,” but that “[t]he economic impact of 

industry-funded monitoring coverage on the herring fishery is 

difficult to estimate because it varies with sampling costs, 

fishing effort, SBRM coverage, price of herring, and 

participation in other fisheries.” AR 17737. Defendants 

estimated that “at-sea monitoring coverage associated with the 

50-percent coverage target has the potential to reduce annual 

[returns-to-owner] for vessels with Category A or B herring 

permits up to 20 percent and up to an additional 5 percent for 
77

midwater trawl access to Groundfish Closed Areas,” and noted 

that “[e]lectronic monitoring and portside sampling may be a 

more cost effective way for herring vessels to satisfy industryfunded monitoring requirements.” Id.

Defendants then compared herring revenue generated by 

Category A and B herring vessels from 2014 to 2018 to assess the 

economic impact of a reduction in herring catch. Id. Based on 

this assessment, Defendants determined that “[e]ven though the 

2018 [annual catch limit (“ACL”)] was reduced by 52 percent 

(54,188 mt) from the 2014 ACL, the impact on 2018 revenue was 

not proportional to the reduction in ACL and differed by gear 

type.” Id. Defendants explained that the change in revenue 

between 2014 and 2018 was affected by several factors, “such as 

the availability of herring relative to the demand and vessel 

participation in other fisheries.” Id. at 17738. Defendants also 

considered how the level of fishing effort, SBRM coverage, and 

certain mitigation measures would affect the economic impact of 

industry-funded monitoring. Id. at 17738-39. After analyzing

these factors, Defendants determined that reduced herring catch 

and its impacts fell within the initial EA’s scope and that a 

supplement was unnecessary because: “(1) the action is identical 

to the proposed action analyzed in the EA and (2) no new 

information or circumstances relevant to environmental concerns 

or impacts of the action are significantly different from when 
78

the EA’s finding of no significant impact was signed on December 

17, 2018.” Id. at 17739.

As the D.C. Circuit has explained, “[t]he determination as 

to whether information is either new or significant ‘requires a 

high level of technical expertise’; thus, [courts] ‘defer to the 

informed discretion of the [agency].’” Blue Ridge, 716 F.3d at 

196-97 (quoting Marsh, 490 U.S. at 377); Advocates for Hwy. & 

Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 

1150 (D.C. Cir. 2005) (“[C]ourts are not authorized to secondguess agency rulemaking decisions . . . .”). In view of 

Defendants’ considered analysis, Plaintiffs simply have not 

demonstrated how Defendants’ conclusion was arbitrary or 

capricious. Accordingly, the Court does not find that the 

Defendants’ conclusion was so deficient as to suffer from “want 

of reasoned decisionmaking.” Advocates for Hwy. & Auto Safety, 

429 F.3d at 1150.

H. The Omnibus Amendment Does Not Violate the Regulatory 

Flexibility Act

Plaintiffs next argue that Defendants failed to meet their 

obligations under the Regulatory Flexibility Act (“RFA”) when 

promulgating the Omnibus Amendment.

Under the RFA, agencies must “consider the effect that 

their regulation will have on small entities, analyze effective 

alternatives that may minimize a regulation’s impact on such 
79

entities, and make their analyses available for public comment.” 

Nat’l Women, Infants, & Children Grocers Ass’n v. Food & 

Nutrition Serv., 416 F. Supp. 2d 92, 99 (D.D.C. 2006). The RFA 

requires agencies issuing regulations likely to have an “impact” 

on “small entities” to prepare an initial regulatory flexibility 

analysis (“IRFA”) describing the effect of the proposed rule on 

small businesses and discussing alternatives that might minimize 

adverse economic consequences upon publishing a notice of 

proposed rulemaking. See 5 U.S.C. § 603. Then, when promulgating 

the final rule, the agency must prepare a final regulatory 

flexibility analysis (“FRFA”), to be made available to the 

public and published in the Federal Register. See id. § 604.

“Although the RFA compels an agency to make substantive 

determinations, a court cannot find an agency violated the RFA 

merely because it disagrees with those determinations.” Alfa 

Int’l Seafood v. Ross, 264 F. Supp. 3d 23, 67 (D.D.C. 2017). The 

D.C. Circuit has explained that the RFA is “[p]urely 

procedural.” U.S. Cellular Corp. v. FCC, 254 F.3d 78, 88 (D.C.

Cir. 2001) (stating that “RFA section 604 requires nothing more 

than that the agency file a FRFA demonstrating a ‘reasonable, 

good-faith effort to carry out [RFA’s] mandate.’” (quoting 

Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608, 625 (5th Cir.

2000)). A court does not “evaluate whether the agency got the 

required analysis right, but instead examines whether the agency 
80

has followed the procedural steps laid out in the statute. What 

is required of the agency is not perfection, but rather a 

reasonable, good-faith effort to take those steps and therefore 

satisfy the statute’s mandate.” N.C. Fisheries Ass’n, 518 F. 

Supp. 2d at 95. “Thus, in assessing the adequacy of an FRFA, 

courts look to see whether the agency made a reasonable attempt 

to address all five required elements in its FRFA, and do not 

measure the FRFA under a standard of ‘mathematical exactitude.’” 

Alfa Int’l Seafood, 264 F. Supp. 3d at 67 (quoting Associated 

Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 114 (1st Cir. 

1997)).

Here, Plaintiffs argue that the NEFMC and Defendants failed 

to comply with the RFA because the IRFA and the FRFA contained 

“conclusory findings” regarding the economic effects of the 

Omnibus Amendment that are “facially unreasonable.” Pls. Mot., 

ECF No. 18-1 at 52. Specifically, Plaintiffs contend that 

Defendants failed to consider: (1) “economic impacts associated 

with the omnibus alternatives,” id. (citing AR 17339); (2) “the 

full set of costs” that the industry-funded monitoring 

alternatives would “impose on regulated entities,” including 

“the danger of overlapping monitoring requirements, the effect 

of significant quota cuts . . . , and the actual feasibility of 

alternatives,” id. (citing AR 17341-46); and (3) an “explanation 

for their conclusion that certain businesses ‘were more likely 
81

to exit the fishery if the cost of monitoring [were] perceived 

as too expensive,’” id. at 52-53 (citing AR 17342).

As an initial matter, the Court notes that Plaintiffs’ 

arguments appear to be a “non-starter” because Plaintiffs’ 

motion only cites to alleged compliance failures within the IRFA 

and do not point to any alleged deficiencies within the FRFA. 

Alfa Int’l Seafood, 264 F. Supp. 3d at 67. Pursuant to section 

611(a) of the RFA, the adequacy of an agency’s IRFA is not 

reviewable. See 5 U.S.C. § 611(a) (“[A] small entity that is 

adversely affected or aggrieved by final agency action is 

entitled to judicial review of agency compliance with the 

requirements of sections 601, 604, 605(b), 608(b), and 610 in 

accordance with chapter 7.”). Thus, the Court lacks jurisdiction 

to consider Plaintiffs’ challenge to Defendants’ IRFA. See 

Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 79 (D.C. 

Cir. 2000).

Even if the Court construed Plaintiffs’ three arguments as 

“attack[ing] the overall adequacy of Defendants’ economic impact 

analysis,” Pls.’ Reply, ECF No. 22 at 42; the arguments would 

still fail. First, while Plaintiffs contend that Defendants did 

not consider the economic impacts of the omnibus measures, the 

IRFA and the FRFA explain that those measures are 

“administrative and have no direct economic impacts.” AR 17339, 

17744. Indeed, the measures explicitly set out the 
82

administrative process to develop and maintain future industryfunded monitoring programs in other New England FMPs.

Plaintiffs’ contention that “Defendants and the NEFMC conceded 

its omnibus measures will have ‘direct negative economic impacts 

to fishing vessels,” Pls.’ Reply, ECF No. 22 at 43, is 

misleading. In making that statement, Defendants were referring 

to potential future programs and explained that “any direct 

negative economic impacts to fishing vessels resulting from a 

future [industry-funded monitoring] program would be evaluated 

in the amendment to establish that [industry-funded monitoring] 

program.” AR 17179; cf. Associated Fishers of Me., 127 F.3d 104 

at 110 n.5 (finding that, because “the Secretary considered the 

Coast Guard’s estimate to be budgetary in nature and not rooted 

in cost increases which were likely to accompany the 

implementation of Amendment 7,” “[t]he Secretary must be 

accorded some latitude to make such judgment calls”).

Defendants’ conclusion is reasonable. 

Second, regarding Plaintiffs’ argument that Defendants did 

not consider the “full set of costs” that would be imposed on 

regulated entities, Pls.’ Mot., ECF No. 18-1 at 52; the record 

demonstrates that Defendants underwent a reasoned analysis of 

the economic impacts that vessels would face upon the 

implementation of the Omnibus Amendment and that Defendants had 

taken steps to minimize economic impacts on affected entities. 
83

See AR 17341-46. While it is possible that the agency could have 

included further detail or more study, the record nonetheless 

demonstrates that Defendants engaged in a “reasonable, good 

faith effort” to carry out the RFA’s mandate. U.S. Cellular 

Corp., 254 F.3d at 89; see also Little Bay Lobster Co. v. Evans, 

352 F.3d 462, 471 (1st Cir. 2003) (noting that the RFA does not 

include a requirement as to the amount of detail with which an 

agency must address specific comments).

Third, Plaintiffs argue that Defendants failed to explain 

their conclusion that certain businesses “were more likely to 

exit the fishery if the cost of monitoring [were] perceived as 

too expensive.” Pls.’ Mot., ECF No. 18-1 at 52-53 (citing AR 

17342). “[W]here the agency has addressed a range of comments 

and considered a set of alternatives to the proposal adopted, 

the burden is upon the critic to show why a brief response on 

one set of comments or the failure to analyze one element as a 

separate alternative condemns the effort.” Little Bay Lobster 

Co., 352 F.3d at 471. Plaintiffs have failed to make such a 

showing here.

Additionally, Southern Offshore Fishing Association v. 

Daley, 995 F. Supp. 1411 (M.D. Fla. 1998), upon which Plaintiffs 

rely, is distinguishable. In that case, the United States 

District Court for the Middle District of Florida found that an 

FRFA prepared by NMFS did not comply with the requirements of 
84

the RFA. Unlike in Southern Offshore Fishing, however, 

Defendants here prepared both an IRFA and a FRFA. See id. at 

1436 (“NMFS could not possibly have complied with § 604 by 

summarizing and considering comments on an IRFA that NMFS never 

prepared.”); AR 17744 (“NMFS prepared a final regulatory 

flexibility analysis (FRFA) in support of this action. The FRFA 

incorporates the initial RFA, a summary of the significant 

issues raised by the public comments in response to the initial 

RFA, NMFS responses to those comments, and a summary of the 

analyses completed in support of this action.”). And unlike in 

Southern Offshore Fishing, Plaintiffs here have not “point[ed] 

to plentiful record evidence undermining NMFS’s certifications.” 

Id. Instead, Plaintiffs’ motion merely points to three pages in 

the IRFA. “Such a meager citation to the record simply cannot 

upend the deference due to the Department under the RFA.” Alfa 

Int’l Seafood, 264 F. Supp. 3d at 68.

Accordingly, the Court finds that Defendants fulfilled the 

requirements of the RFA in promulgating the Omnibus Amendment.

I. The Approval and Finalization of the Omnibus Amendment Was 

Procedurally Proper

Finally, Plaintiffs argue that the process of approving and 

finalizing the Omnibus Amendment was procedurally irregular and 

raises “procedural due process concerns.” Pls.’ Mot., ECF No. 

18-1 at 54. However, a review of the MSA’s provisions governing 
85

the Secretary’s review of FMPs, amendments, and proposed 

regulations demonstrates that Defendants followed the proper 

procedure.

Under the MSA’s regulatory framework, once the Council 

transmits an FMP or amendment to the Secretary, the Secretary 

must do two things: (1) “immediately commence a review of the 

plan or amendment to determine whether it is consistent with the 

national standards, the other provisions of this chapter, and 

any other applicable law”; and (2) “immediately publish in the 

Federal Register a notice stating that the plan or amendment is 

available and that written information, views, or comments of 

interested persons on the plan or amendment may be submitted to 

the Secretary during the 60-day period beginning on the date the 

notice is published.” 16 U.S.C. § 1854(a)(1). Once the comment 

period has closed, the Secretary then has 30 days to approve, 

disapprove, or partially approve an FMP or amendment. Id. § 

1854(a)(3). “If the Secretary does not notify a Council within 

30 days of the end of the comment period of the approval, 

disapproval, or partial approval of a plan or amendment, then 

such plan or amendment shall take effect as if approved.” Id.

Proposed regulations implementing an FMP or amendment that 

the Council deems “necessary or appropriate” must be submitted 

to the Secretary “simultaneously” with the FMP or amendment. Id.

§ 1853(c). Once the Secretary receives the proposed regulations, 
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“the Secretary shall immediately initiate an evaluation of the 

proposed regulations to determine whether they are consistent 

with the [FMP], plan amendment, [the MSA] and other applicable 

law.” Id. § 1854(b)(1). The Secretary must make a determination 

within 15 days of initiating such evaluation, and, if the 

Secretary approves the proposed regulations, she must publish 

the regulations for comment in the Federal Register, “with such 

technical changes as may be necessary for clarity and an 

explanation of those changes.” Id. § 1854(b)(1)(A). There must 

be a public comment period of between 15 to 60 days, and, after 

the public comment period has expired, the Secretary must then 

promulgate the final regulations within 30 days, consulting with 

the Council on any revisions and explaining the changes in the 

Federal Register. Id. § 1854(b)(3).

Here, it is “undisputed” that Defendants “followed the 

statutorily prescribed timelines for approval of an FMP 

amendment and implementing regulations.” See Pls.’ Reply, ECF 

No. 22 at 44. Instead, Plaintiffs argue that “[t]he 

irregularities and due process concerns arise from Defendants 

presuming the legality of the Omnibus Amendment and proposing 

implementing regulations before any final approval decision for 

the underlying FMP amendment.” Id. at 44-45. However, 

Plaintiffs’ argument is belied by the text of the statute. The 

MSA clearly contemplates such a situation given its mandate that 
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proposed regulations be submitted “simultaneously with the plan 

or amendment under section 1854 of this title,” 16 U.S.C. § 

1853(c); and the agency also confirms that this is its usual 

practice, see AR 17741 (“It is our practice to publish an NOA 

and proposed rule concurrently.”). Furthermore, Defendants 

appropriately set a 60-day comment period for the FMP amendment 

and a 45-day comment period for the proposed regulations, with

the public comments for both overlapping for 13 days. See id.

Both the notice of the amendment and the proposed regulations 

included a statement explaining that any public comments 

received on the amendment or the proposed rule during the 

amendment’s comment period would be considered in the decision 

on the amendment. Id. The public thus had fair notice and a 

meaningful opportunity to participate in the process. See, e.g., 

Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 

525, 528 (D.C. Cir. 1982). 

Finally, Plaintiffs’ description of an inappropriate 

“secret approval” of the Omnibus Amendment “in a non-public 

letter [to the Council] that [NOAA] never officially 

disseminated,” Pls.’ Mot., ECF No. 18-1 at 54; lacks any basis. 

Rather, NOAA acted as the MSA requires: upon approval of an FMP 

or amendment, there must be “written notice to the Council” of 

the Secretary’s decision. 16 U.S.C. § 1854(a)(3). No further 

publication is statutorily required.
88

IV. Conclusion

For the aforementioned reasons, the Court DENIES

Plaintiffs’ Motion for Summary Judgment, GRANTS Defendants’ 

Cross-Motion for Summary Judgment, and GRANTS Defendants’ Motion 

to Exclude. An appropriate Order accompanies this Memorandum 

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

June 15, 2021