Oceana, Inc. v. Pritzker et al

Cross MOTION for Summary Judgment

D.D.C.March 3, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) OCEANA, INC., ) ) Plaintiff, ) ) v. ) No. 1:15-cv-01220-ESH ) WILBUR ROSS, JR., in his official capacity ) as Secretary of the United States Department ) of Commerce, et al., ) ) Defendants. ) ) DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Defendants Wilbur Ross, Jr., in his official capacity as Secretary of the United States Department of Commerce;1 the National Oceanic and Atmospheric Administration; and the National Marine Fisheries Service (“NMFS”) (collectively, “Defendants”) respectfully move this Court for an order granting summary judgment for Defendants in the above-captioned action. This Cross-Motion is brought on the grounds that Plaintiff Oceana, Inc. fails to demonstrate that the standardized bycatch reporting methodology approved by NMFS, see 80 Fed. Reg. 37,182 (June 30, 2015), violates the Magnuson-Stevens Fishery Conservation and Management Act, the National Environmental Policy Act, or the Administrative Procedure Act. Defendants further rely on the grounds in the Memorandum, filed herewith, in support of their Cross-Motion for Summary Judgment and in opposition to Plaintiff’s Motion for Summary Judgment. 1 Secretary Ross is substituted for Penny Pritzker, formerly the Secretary of the United States Department of Commerce, pursuant to Federal Rule of Civil Procedure 25(d). Case 1:15-cv-01220-ESH Document 28 Filed 03/03/17 Page 1 of 3 2 Dated: March 3, 2017 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General SETH M. BARSKY Section Chief S. JAY GOVINDAN Assistant Section Chief /s/ H. Hubert Yang H. HUBERT YANG Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0209 Fax: (202) 305-0275 E-mail: hubert.yang@usdoj.gov Of Counsel: GENE S. MARTIN, JR. Section Chief NOAA General Counsel – Northeast Section Gloucester, MA Attorneys for Defendants Case 1:15-cv-01220-ESH Document 28 Filed 03/03/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on March 3, 2017, I electronically filed the foregoing Defendants’ Cross-Motion for Summary Judgment and [Proposed] Order with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the attorneys of record. /s/ H. Hubert Yang H. HUBERT YANG United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0209 Fax: (202) 305-0275 E-mail: hubert.yang@usdoj.gov Attorney for Defendants Case 1:15-cv-01220-ESH Document 28 Filed 03/03/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) OCEANA, INC., ) ) Plaintiff, ) ) v. ) No. 1:15-cv-01220-ESH ) WILBUR ROSS, JR., in his official capacity ) as Secretary of the United States Department ) of Commerce, et al., ) ) Defendants. ) ) MEMORANDUM IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 1 of 54 i TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 LEGAL BACKGROUND .............................................................................................................. 2 I. Magnuson-Stevens Act ....................................................................................................... 2 II. National Environmental Policy Act .................................................................................... 4 FACTUAL BACKGROUND ......................................................................................................... 5 I. Prior SBRM-Related Amendments..................................................................................... 5 II. 2015 SBRM Amendment .................................................................................................... 9 STANDARD OF REVIEW .......................................................................................................... 11 ARGUMENT ................................................................................................................................ 12 I. The 2015 SBRM Amendment Complies In All Respects With The Remand Order And The MSA .......................................................................... 12 A. The Prioritization Process In The 2015 SBRM Amendment Complies With The Remand Order ............................................................................ 14 1. NMFS’s Discretion Is Limited By The Specific Funding Trigger And Formulaic Process For Reallocating Observer Coverage ............................. 14 2. Plaintiff’s Funding-Related Arguments Are Inapposite ....................................... 17 B. The 2015 SBRM Amendment Also Complies With The MSA In All Other Respects .................................................................................................. 20 1. NMFS’s Exercise Of Discretion In Defining The Scope On Remand Was Reasonable ................................................................................ 21 2. NMFS’s Methodological Choice Of A 30% CV Performance Standard Was Reasonable ..................................................................................... 24 3. NMFS’s Assessment Of Specific Issues Was Reasonable ................................... 27 a. NMFS Adequately Considered Electronic Monitoring .................................. 27 b. NMFS Adequately Considered Non-Managed Species .................................. 31 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 2 of 54 ii c. NMFS Adequately Considered Potential Observer Bias ................................ 32 II. The 2015 SBRM Amendment Complies In All Respects With NEPA ............................ 35 A. NMFS Complied With Its NEPA Requirements ........................................................ 36 B. NMFS Considered All Reasonably Foreseeable Cumulative Impacts ....................... 37 C. NMFS Considered A Reasonable Range Of Alternatives .......................................... 41 CONCLUSION ............................................................................................................................. 44 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 3 of 54 iii TABLE OF AUTHORITIES CASES PAGE Anglers Conservation Network v. Pritzker, 139 F.Supp.3d 102 (D.D.C. 2015) ............................................................................................ 19 Animal Legal Def. Fund, Inc. v. Glickman, 204 F.3d 229 (D.C. Cir. 2000) .................................................................................................. 17 Arent v. Shalala, 70 F.3d 610 (D.C. Cir. 1995) .................................................................................................... 11 Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) ............................................................................................................. passim C&W Fish Co. v. Fox, 931 F.2d 1556 (D.C. Cir. 1991) ............................................................................................ 3, 11 Carolina Envtl. Study Grp. v. United States, 510 F.2d 796 (D.C. Cir. 1975) .................................................................................................. 37 Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207 (D.C. Cir. 2007) ........................................................................................... passim City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir. 1999) .................................................................................................. 41 City of Olmsted Falls v. FAA, 292 F.3d 261 (D.C. Cir. 2002) .................................................................................................. 11 City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir. 2003) .................................................................................................. 34 Coal. on Sensible Transp. v. Dole, 826 F.2d 60 (D.C. Cir. 1987) .................................................................................................... 36 Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) .................................................................................................................. 13 Cty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) ................................................................................................ 21 Defs. of Wildlife v. Kempthorne, 535 F.Supp.2d 121 (D.D.C. 2008) ............................................................................................ 23 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 4 of 54 iv Defs. of Wildlife v. Kempthorne, 2006 WL 2844232 (D.D.C. Sept. 29, 2006) ....................................................................... 21, 22 Ecology Ctr. v. Castaneda, 574 F.3d 652 (9th Cir. 2009) ..................................................................................................... 31 Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) ................................................................................................... 38 Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998) .................................................................................................................... 22 Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326 (1976) ...................................................................................................... 21, 22, 23 Fishing Co. of Alaska, Inc. v. Gutierrez, 510 F.3d 328 (D.C. Cir. 2007) .................................................................................................. 11 Frizelle v. Slater, 111 F.3d 172 (D.C. Cir. 1997) .................................................................................................. 27 Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082 (9th Cir. 2004) ................................................................................................... 37 Heartland Reg’l Med. Ctr. v. Leavitt, 415 F.3d 24 (D.C. Cir. 2005) .............................................................................................. 22, 23 In re Operation of Missouri River Sys. Litig., 421 F.3d 618 (8th Cir. 2005) ..................................................................................................... 27 Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996) ....................................................................................................... 37 Int’l Union v. Donovan, 746 F.2d 855 (D.C. Cir. 1984) .................................................................................................. 18 Izaak Walton League of Am. v. Marsh, 655 F.2d 346 (D.C. Cir. 1981) .................................................................................................. 37 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ...................................................................................................... 36, 37, 40 Lincoln v. Vigil, 508 U.S. 182 (1993) ............................................................................................................ 18, 20 Lorion v. U.S. Nuclear Regulatory Comm’n, 785 F.2d 1038 (D.C. Cir. 1986) ................................................................................................ 27 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 5 of 54 v Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ............................................................................................................ 25, 26 Nat’l Fisheries Inst., Inc. v. Mosbacher, 732 F.Supp. 210 (D.D.C. 1990) ................................................................................................ 12 Nat’l Tank Truck Carriers v. EPA, 907 F.2d 177 (D.C. Cir. 1990) .................................................................................................. 22 New Mexico v. EPA, 114 F.3d 290 (D.C. Cir. 1997) ............................................................................................ 16, 19 Oceana, Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) .......................................................................................... 5, 6 Oceana, Inc. v. Evans, 2005 WL 555416 (D.D.C. Mar. 9, 2005) .......................................................................... 5, 6, 41 Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011) ......................................................................................... passim Oceana, Inc. v. Locke, 725 F.Supp.2d 46 (D.D.C. 2010) ....................................................................................... passim Oceana, Inc. v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011) ....................................................................................... passim Oceana, Inc. v. Locke, 2009 WL 1491516 (D.D.C. May 28, 2009) ................................................................................ 8 Oceana, Inc. v. Pritzker, 26 F.Supp.3d 33 (D.D.C. 2014) ......................................................................................... passim Or. Nat. Desert Ass’n v. Tidwell, 716 F.Supp.2d 982 (D.Or. 2010) ............................................................................................... 31 Pittston Coal Grp. v. Sebben, 488 U.S. 105 (1988) .................................................................................................................. 12 Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d 256 (D.C. Cir. 1988) .................................................................................................. 36 Pub. Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) .................................................................................................. 17 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .................................................................................................................. 36 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 6 of 54 vi SEC v. Chenery Corp., 332 U.S. 194 (1947) .................................................................................................................. 21 Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006) .................................................................................................. 20 Soda Mountain Wilderness Council v. U.S. Bureau of Land Mgmt., 607 F. App’x. 670 (9th Cir. 2015) ............................................................................................. 38 Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980) .................................................................................................................. 12 Tex. All. for Home Care Servs. v. Sebelius, 811 F.Supp.2d 76 (D.D.C. 2011) .............................................................................................. 19 Tex Tin Corp. v. EPA, 992 F.2d 353 (D.C. Cir. 1993) .................................................................................................. 22 Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) ............................................................................................ 37, 41 TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) ...................................................................................... 36, 38, 40 Town of Cave Creek v. FAA, 325 F.3d 320 (D.C. Cir. 2003) .................................................................................................. 40 Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009) ..................................................................................................... 24 United States v. Pierce Auto Freight Lines, 327 U.S. 515 (1946) .................................................................................................................. 27 STATUTES 5 U.S.C. §706(2)(A)...................................................................................................................... 11 16 U.S.C. § 1801(b)(1) ................................................................................................................... 3 16 U.S.C. § 1801(b)(3) ................................................................................................................... 3 16 U.S.C. § 1802(2) ........................................................................................................................ 4 16 U.S.C. § 1802(42) .................................................................................................................... 11 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 7 of 54 vii 16 U.S.C. § 1852(b)(2)(A) .............................................................................................................. 3 16 U.S.C. § 1853(a)(11) ......................................................................................................... passim 16 U.S.C. § 1853(a)(15) ................................................................................................................ 42 16 U.S.C. § 1855(f)(1)(B) ............................................................................................................. 11 42 U.S.C. § 4332(C) ................................................................................................................... 4, 5 FEDERAL REGULATIONS 40 C.F.R. § 1501.4 .......................................................................................................................... 5 40 C.F.R. § 1501.4(c)...................................................................................................................... 5 40 C.F.R. § 1501.4(e)...................................................................................................................... 5 40 C.F.R. § 1502.3 .......................................................................................................................... 5 40 C.F.R. § 1502.13 ...................................................................................................................... 41 40 C.F.R. § 1508.7 .............................................................................................................. 5, 37, 38 40 C.F.R. § 1508.9(b) ..................................................................................................................... 5 50 C.F.R. § 600.350(d)(2) ............................................................................................................. 19 73 Fed. Reg. 4,736 (Jan. 28, 2008) ................................................................................................. 6 76 Fed. Reg. 81,844 (Dec. 29, 2011) .............................................................................................. 9 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 8 of 54 1 Defendants Wilbur Ross, Jr., in his official capacity as Secretary of the United States Department of Commerce;1 the National Oceanic and Atmospheric Administration (“NOAA”); and the National Marine Fisheries Service (“NMFS” or “Service”) (collectively, “Defendants”) respectfully submit this Memorandum in support of Defendants’ Cross-Motion for Summary Judgment and in opposition to Plaintiff’s Motion for Summary Judgment. See Docket (“Dkt.”) 26 (“Pl.’s Mem.”). INTRODUCTION At issue is NMFS’s approval of a standardized reporting methodology established to assess bycatch (i.e., fish caught and subsequently discarded) for all thirteen federal fisheries in the Northeast region (“2015 SBRM Amendment”).2 This case represents the latest salvo in a recurring dispute between Plaintiff and NMFS over the requirement in the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act” or “MSA”) that fishery management plans “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” 16 U.S.C. § 1853(a)(11). In the previous round of litigation, this Court upheld an earlier iteration of the methodology in all respects. On appeal, however, the D.C. Circuit found that the agency had erred in one limited respect – by reserving too much discretion to determine when and how to deviate from the fully-funded methodology in the event of a funding shortfall. Based on these narrow grounds, the D.C. Circuit instructed that 1 Secretary Ross is substituted for Penny Pritzker, formerly the Secretary of the United States Department of Commerce, pursuant to Federal Rule of Civil Procedure 25(d). 2 As discussed further infra, the 2015 SBRM Amendment was developed by the New England Fishery Management Council (“NEFMC”) and the Mid-Atlantic Fishery Management Council (“MAFMC”) (collectively, the “Councils”) and submitted by the Councils for review by NMFS, which subsequently approved the amendment and also issued a final rule for its implementation. See, e.g., AR 0007531 (describing amendment background). For the sake of simplicity, the term “NMFS,” as used herein in discussing the development of the 2015 SBRM Amendment, refers to the collective efforts of the agency and the Councils, unless otherwise specified. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 9 of 54 2 the methodology be vacated and remanded to the agency for further proceedings. The D.C. Circuit’s limited holding, however, did not call into question the merits of the methodology itself. Now, in spite of NMFS’s concerted and diligent efforts to fully comply with the remand order, particularly the reservation of discretion issue that was the basis for the remand, Plaintiff yet again mounts a wide-ranging attack on the new methodology, as set forth in the 2015 SBRM Amendment. In this latest challenge, Plaintiff alleges not only that NMFS failed to address the reservation of discretion issue on remand, but that the agency also failed to adequately consider certain other issues or support its methodological choices. In addition, Plaintiff asserts that the agency failed to comply with its concurrent obligations under the National Environmental Policy Act (“NEPA”). None of these arguments is persuasive, as discussed infra. Indeed, several of the arguments are nearly identical to the arguments raised by Plaintiff – and flatly rejected by this Court – in the prior case and pertain specifically to aspects of the methodology that were upheld by this Court (and not addressed by the D.C. Circuit). Furthermore, the administrative record shows that NMFS conducted an extensive reconsideration of its methodology guided by the D.C. Circuit’s holding, weighed all the relevant information (including new data and comments), and then made reasonable methodological choices based on its own expert judgment and the entire administrative record. Nothing more is required, and therefore Plaintiff’s efforts to second-guess NMFS’s judgment should be rejected. For all these reasons, as discussed further infra, this Court should deny Plaintiff’s Motion for Summary Judgment and grant Defendants’ Cross-Motion for Summary Judgment. LEGAL BACKGROUND I. Magnuson-Stevens Act The MSA (originally, the Fishery Conservation and Management Act, Pub. L. 94-265, 90 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 10 of 54 3 Stat. 331 (Apr. 13, 1976)) was enacted to, inter alia, “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). NMFS, acting under authority delegated from the Secretary of Commerce, is responsible for managing fisheries pursuant to the MSA. To assist in fishery management, the MSA created eight regional Fishery Management Councils (“FMCs”), with each FMC “granted authority over a specific geographic region.” C&W Fish Co. v. Fox, 931 F.2d 1556, 1557-58 (D.C. Cir. 1991) (citation omitted). These FMCs are “composed of members who represent the interests of the states included in that region,” id., including federal, state, and territorial fishery management officials, participants in the commercial and recreational fisheries, and other “individuals who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area,” 16 U.S.C. § 1852(b)(2)(A). Two of the FMCs – the NEFMC and the MAFMC – have jurisdiction over the thirteen federal fisheries at issue here. See id. § 1852(a)(1)(A), (B). Regulation of fisheries is accomplished through fishery management plans, amendments to those plans (collectively, “FMPs”), and implementing regulations. Under the MSA, an FMC is required to prepare and submit to NMFS an FMP “for each fishery under its authority that requires conservation and management,” as well as proposed regulations that the FMC “deems necessary or appropriate” to implement the FMP. Id. §§ 1852(h)(1), 1853(c). All FMPs are subject to public review and comment. Id. § 1854(a)(1), (b)(1). NMFS may disapprove an FMP, in whole or in part, only to the extent that it is inconsistent with applicable law, and it may not substantively modify FMPs submitted by an FMC. Id. § 1854(a)(3). NMFS reviews proposed regulations for consistency with the FMP and applicable law and, pursuant to a process set forth Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 11 of 54 4 in the MSA, publishes proposed rules, solicits public comments, and promulgates final rules that implement the FMP. Id. § 1854(b).3 The MSA imposes various requirements for FMPs. Id. § 1853(a). One such requirement is at issue here. In 1996, the Sustainable Fisheries Act amended the MSA to add a requirement that FMPs must, inter alia, “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery . . . .” Id. § 1853(a)(11); see also Pub. L. 104-297, § 108(b), 110 Stat. 3559, 3575 (1996). The statute defines “bycatch” to mean those “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards.” 16 U.S.C. § 1802(2) (but excluding those “fish released alive under a recreational catch and release fishery management program”). II. National Environmental Policy Act In developing FMPs, NMFS must also satisfy its concurrent obligations under NEPA, which imposes upon agencies a procedural requirement to examine and disclose the potential environmental impacts of proposed federal actions. See Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97 (1983) (requiring federal agencies to “take a ‘hard look’ at the environmental consequences before taking a major action”). In pertinent part, NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting” the environment. 42 U.S.C. § 4332(C). Not every action or proposal requires the preparation of an EIS – only those actions “significantly” affecting the quality of the human environment require the preparation of an EIS. Id. To determine whether an EIS is necessary, an agency may first prepare an environmental 3 NMFS may prepare an FMP, if the appropriate FMC fails to develop and submit, after a reasonable period of time, an FMP for a fishery that requires conservation and management; or if NMFS disapproves or partially disapproves an FMP, or disapproves a revised FMP, and the FMC fails to submit a revised or further revised plan or amendment. Id. at § 1854(c). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 12 of 54 5 assessment (“EA”) to assess the significance, if any, of potential impacts from an action. See 40 C.F.R. §§ 1501.4, 1508.9. An EA is a “concise public document” that must address “the need for the proposal,” possible “alternatives,” and “the environmental impacts of the proposed action and alternatives.” 40 C.F.R. § 1508.9(b). In evaluating such potential environmental impacts, NEPA requires an agency to consider cumulative impact: “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. If an agency finds, through its EA, that a proposed action will not significantly affect the environment, then an EIS is not required, see 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.3, and the agency instead issues a Finding of No Significant Impact (“FONSI”), see 40 C.F.R. § 1501.4(c), (e). FACTUAL BACKGROUND I. Prior SBRM-Related Amendments This case is the latest in a series of challenges by Plaintiff to amendments undertaken by NMFS to establish a standardized bycatch reporting methodology in the Northeast region. In 2005, Plaintiff filed a pair of cases challenging NMFS’s approval of (1) Amendment 13 to the Northeast Multispecies FMP, which governs groundfish fishing, see Oceana, Inc. v. Evans, No. 04-cv-0811 (ESH), 2005 WL 555416 (D.D.C. Mar. 9, 2005) (“Oceana I”); and (2) Amendment 10 to the Atlantic Sea Scallop FMP, see Oceana, Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) (“Oceana II”). In Oceana I, this Court concluded that, although Amendment 13 was, “with limited exception, reasonable and in accordance with law,” 2005 WL 555416, at *43 (granting summary judgment to NMFS as to the majority of Plaintiff’s claims), the bycatch reporting provisions in Amendment 13 were lacking because they “indicate[d] only an ‘intent’ to implement an adequate program,” and such “intent could change at any time.” Id. at *40. Five Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 13 of 54 6 months later, this Court reached a similar conclusion with respect to the bycatch reporting provisions in Amendment 10, finding that the provisions were too “vague and conclusory” and also conferred “complete discretion to [NMFS’s] Regional Administrator.” Oceana II, 384 F.Supp.2d at 232. In both instances, the Court remanded these bycatch reporting provisions to NMFS for “further action.” Oceana I, 2005 WL 555416, at *43; Oceana II, 384 F.Supp.2d at 256. In response to these remand orders, NMFS, in conjunction with NEFMC and MAFMC, undertook a two-year effort to establish a standardized bycatch reporting methodology for not only the two FMPs at issue in Oceana I and Oceana II, but “a comprehensive Northeast SBRM that would set bycatch reporting and assessment standards for all thirteen federal fisheries in the Northeast region.” Oceana, Inc. v. Locke, 725 F.Supp.2d 46, 51 (D.D.C. 2010) (“Oceana III”). The product of their combined efforts was the Northeast Region Omnibus SBRM Amendment (“2008 SBRM Amendment”). See 73 Fed. Reg. 4,736 (Jan. 28, 2008). The scope of the 2008 SBRM Amendment was expansive, “address[ing] all Northeast Region FMPs,” including “39 managed species, and 14 types of fishing gear.” Id. at 4,737. As relevant here, the 2008 SBRM Amendment provided for the use of “at-sea fishery observers,” i.e., trained individuals who travel on commercial fishing vessels to observe and record discards occurring on the trip, as the primary method for gathering bycatch data. Id. The 2008 SBRM Amendment also addressed how to allocate these observers to obtain data that could be extrapolated to estimate the bycatch for each fishing mode, i.e., combination of fishing gear and vessel type. See id. at 4,738. In addition, the 2008 SBRM Amendment included a “prioritization process” for the allocation of observers, in the event that “external operational constraints,” such as the lack of funding, would prevent NMFS from fully implementing the observer program in a particular year. See id. The 2008 SBRM Amendment would become the subject of Oceana III – Plaintiff’s third Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 14 of 54 7 challenge to NMFS’s standardized bycatch reporting methodology. See 725 F.Supp.2d at 50-53. Plaintiff pressed several arguments in Oceana III (including many of the same arguments raised here). Compare 725 F.Supp.2d at 48 (describing arguments in Oceana III) with Pls.’ Mem. at 1- 2 (alleging similar flaws in the 2015 SBRM Amendment). In each instance, however, this Court rejected these arguments, concluding that “the agency’s actions in developing and approving the Amendment were reasonable and in accordance with the law.” Oceana III, 725 F.Supp.2d at 72. In particular, this Court found that the 2008 SBRM Amendment properly “sets forth procedures by which at-sea observers are to be allocated to meet” a specific standard of statistical precision, id. at 55,4 and that “[t]hese procedures ‘provide decisionmakers and the public with a program of what actually will be done to improve bycatch reporting’ . . . unlike the amendments rejected by the Court in Oceana I and II,” id. (citation omitted). Further, this Court held that the 2008 SBRM Amendment’s “prioritization process” did not “give ‘complete discretion’ to the Regional Administrator to determine what, if any, bycatch reporting methodology should be used,” but rather provided the agency with a useful “contingency plan in the event that practical limitations, beyond NMFS’ control, prevent the agency from meeting the [level of statistical precision] standard.” Id. at 55-56. This Court also rejected Plaintiff’s other claims with respect to (1) the assessment of bycatch of non-federally managed species, see id at 58; (2) the adequacy of NMFS’s response to and consideration of certain scientific information, see id. at 59-66; and (3) NMFS’s decision to conduct an EA, rather than an EIS, to address its NEPA obligations, see id. at 66-72. This Court therefore upheld the 2008 SBRM Amendment, describing it as “a 4 This standard of precision is known as a coefficient of variation (“CV”) – “a standard measure of precision, calculated as the ratio of the square root of the variance of the bycatch estimate (i.e., the standard error) to the bycatch estimate itself.” AR 0006622. “The higher the CV, the larger the standard error is relative to the estimate,” whereas “[a] lower CV reflects a smaller standard error relative to the estimate.” Id. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 15 of 54 8 comprehensive, detailed document reflecting NMFS’ best efforts to comply with this Court’s earlier orders.” Id. at 72.5 On appeal, the D.C. Circuit addressed neither Plaintiff’s NEPA challenge nor this Court’s order denying supplementation of the administrative record. See Oceana, Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011) (“Oceana III (Appeal)”).6 Instead, the D.C. Circuit focused on one particular aspect of the 2008 SBRM Amendment: whether the “prioritization process,” as it was formulated in the 2008 SBRM Amendment, complied with the MSA’s requirement to “establish a standardized [bycatch] reporting methodology.” 16 U.S.C. § 1853(a)(11). With respect to this specific issue, the D.C. Circuit held that NMFS “did not ‘establish’ a standardized methodology” because the 2008 SBRM Amendment “grant[ed] the Fisheries Service substantial discretion both to invoke and to make allocations according to a non-standardized procedure.” Oceana III (Appeal), 670 F.3d at 1243. Accordingly, on these narrow grounds, the D.C. Circuit reversed and remanded to this Court, with instructions to “vacat[e] the [2008 SBRM] Amendment and remand[]” the matter to the agency “for further proceedings consistent herewith.” Id. at 1243.7 Significantly, however, “[t]he D.C. Circuit did not otherwise reach the merits of the [2008] SBRM Amendment’s bycatch-reporting methodology.” Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 104 (D.D.C. 2011) (“Locke”). 5 Separately, this Court also rejected Plaintiff’s motion to supplement the administrative record with deliberative process-privileged documents related to decision-making process for the 2008 SBRM Amendment. See Oceana, Inc. v. Locke, No. 08-cv-00318-ESH/AK, 2009 WL 1491516 (D.D.C. May 28, 2009), aff’d, 634 F.Supp.2d 49 (D.D.C. 2009). 6 Plaintiff’s other arguments in Oceana III – regarding the assessment of non-federally managed species bycatch and NMFS’s consideration of certain scientific information – were not raised on appeal. 7 Following the issuance of the D.C. Circuit’s mandate on September 13, 2011, this Court issued an order on September 15, 2011, vacating the 2008 SBRM Amendment and also remanding the matter to NMFS “for further proceedings consistent with the opinion of the Court of Appeals.” Oceana III, No. 1:08-cv-00318-ESH (D.D.C.), Dkt. 55 at 1. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 16 of 54 9 II. 2015 SBRM Amendment In accordance with the D.C. Circuit’s decision, and this Court’s remand order, NMFS, with the Councils, conducted an extensive reconsideration of its standardized bycatch reporting methodology for the Northeast region. In October 2011, one month after the remand order, a fishery management action team (“SBRM FMAT”), comprised of technical experts and staff from NMFS, the Councils, and the Atlantic States Marine Fisheries Commission, was formed “to develop specific revisions to the existing SBRM amendment to address the deficiencies noted by the Court.” AR 0011534.8 By April 2012, four months after the regulations for the 2008 SBRM Amendment were removed, see 76 Fed. Reg. 81,844 (Dec. 29, 2011), the SBRM FMAT made presentations to the Councils regarding the scope and timing of its work. See, e.g., AR 0012215- 16. Within six months, both Councils voted to approve the list of alternatives under analysis, see, e.g., AR 0000568-583; AR 0009966-87, and, in April 2013, the Councils approved the draft amendment for public hearings, pending the completion of additional analyses, see, e.g., AR 0000636; AR 0000679; AR 0010707-22.9 The draft amendment was then submitted for public comment in September 2013, see, e.g., AR 0001896-2289; AR 0002305-673, and the initial public comment period was reopened and extended until December 2013, see AR 0002304.10 Following the close of this comment period, both Councils voted in April 2014 to approve the amendment and its preferred alternatives. See, e.g., AR 0009116; AR 0011508. The amendment was then submitted by the Councils to NMFS for its review and approval and also noticed for 8 The SBRM FMAT held public meetings several times during the development process. See, e.g., AR 0000207; AR 0000234; AR 0000298; AR 0000358; AR 0000529; AR 0000707. 9 For a list of all the public meetings held in connection with development of the 2008 and 2015 SBRM Amendments, see AR 0006811-12. 10 Many of the comments submitted by Plaintiff were “the same comments they made to the previous SBRM amendment.” AR 0008921. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 17 of 54 10 additional public comments (through February 2015). See AR 0004195-97. NMFS published its proposed rule to implement the amendment in January 2015, also seeking public comments through February 2015. See AR 0004862-74. NMFS approved the amendment in March 2015, see AR 0009137-84, and subsequently published its final rule implementing the amendment in June 2015, see AR 0007531-48. There are seven elements to the standardized bycatch reporting methodology in the 2015 SBRM Amendment. See AR 0007532-33 (describing each element). Of particular relevance in this case, the 2015 SBRM Amendment sets forth a detailed “process to identify the funds that will be made available annually for SBRM” and “to prioritize the available observer sea-days if the funding provided to NMFS for such purposes is insufficient to fully implement the SBRM across all fishing modes.” AR 0007533. As NMFS emphasized, and as addressed further infra, this prioritization process was specifically intended “to limit the discretion the agency has in determining when funds are insufficient and how to reallocate observers under insufficient funding scenarios.” Id. (emphasis added). In addition, as also discussed further infra, the 2015 SBRM Amendment incorporates a 30% CV performance standard that is “designed to ensure that the effectiveness of the SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days.” AR 0007532 (also noting that “the Regional Administrator and the Science and Research Director will, subject to available funding, allocate at-sea observer coverage to the applicable fisheries of the Greater Atlantic Region sufficient to achieve a level of precision (measured as the CV) no greater than 30 percent for each applicable species and/ or species group”). NMFS also highlighted what the 2015 SBRM Amendment was not meant to address: While the 2015 SBRM Amendment establishes a “general, over-arching” “methodology to assess the amount and type of bycatch in the fisheries” in the Northeast region, it is “not a management plan for how each fishery operates.” AR 0007537 (emphasis added); see Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 18 of 54 11 also AR 0006682 (drawing a distinction between the methodology’s “analytical techniques and procedures” and the “[d]ifferent analytical tools and models” “used to incorporate discard data into and conduct stock assessments”).11 STANDARD OF REVIEW Judicial review of MSA and NEPA claims is governed by the “arbitrary and capricious” standard set forth in the Administrative Procedure Act (“APA”). 5 U.S.C. § 706(2)(A); see also 16 U.S.C. § 1855(f)(1)(B) (limiting the grounds for setting aside challenged MSA actions to only the grounds in certain provisions of the APA, 5 U.S.C. § 706(2)(A)-(D)); Fishing Co. of Alaska v. Gutierrez, 510 F.3d 328, 330 (D.C. Cir. 2007) (applying APA standard to MSA action); City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002) (applying APA standard to review NEPA compliance). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Arent v. Shalala, 70 F.3d 610, 616 (D.C. Cir. 1995) (citation omitted). A court’s only role is to “determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas, 462 U.S. at 105 (citations omitted); see also C&W Fish Co., 931 F.2d at 1565 (cautioning that courts must “not second guess an agency decision or question whether the decision made was the best one”). A narrow standard of review is particularly applicable in the MSA context, where it is “especially appropriate for the Court to defer to the expertise and experience of those individuals and entities . . . whom the [MSA] charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant 11 A “stock of fish” is “a species, subspecies, geographical grouping, or other category of fish capable of management as a unit.” 16 U.S.C. § 1802(42). The Northeast Multispecies Fishery, for example, “consists of 13 species divided into 20 stocks that live in the waters off New England and the Mid–Atlantic states.” Locke, 831 F.Supp.2d at 102. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 19 of 54 12 quantitative and qualitative factors.” Nat’l Fisheries Inst. v. Mosbacher, 732 F.Supp. 210, 223 (D.D.C. 1990); cf. Pittston Coal Grp. v. Sebben, 488 U.S. 105, 150 (1988) (holding that, “as an interpretive question becomes more technical, the expertise of the agency charged with a statute’s administration becomes greater and deferring to its construction rather than importing our own becomes more appropriate”). Likewise, in the NEPA context, “the only role for a court is to insure that the agency has considered the environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’” Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 (1980) (citation omitted). ARGUMENT I. The 2015 SBRM Amendment Complies In All Respects With The Remand Order And The MSA At the outset, it bears repeating that the D.C. Circuit’s remand decision turned on a single “narrow” issue – the amount of discretion reserved by the agency as a result of the 2008 SBRM Amendment’s prioritization process, as discussed further supra – and “[t]he D.C. Circuit did not otherwise reach the merits of the SBRM Amendment’s bycatch-reporting methodology.” Locke, 831 F.Supp.2d at 104 (examining Oceana III (Appeal)). In response to this remand decision, the agency conducted a careful and extensive reconsideration of its standardized bycatch reporting methodology, mindful that “[t]his action is expected to be controversial.” AR 0008921. While all relevant issues were examined in developing the 2015 SBRM Amendment, NMFS devoted much of its efforts to remedying the one flaw identified by the D.C. Circuit – the amount of discretion that NMFS could reserve to address funding constraints outside its control. As discussed further infra, it was entirely reasonable for NMFS to exercise its discretion in this manner on remand – developing a new methodology that addresses the specific issue that prompted the remand while further amplifying those portions of the methodology that were Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 20 of 54 13 previously upheld by this Court. Plaintiff nevertheless objects, challenging the 2015 SBRM Amendment for several of the exact same reasons that it challenged the 2008 SBRM Amendment. Specifically, Plaintiff faults NMFS (1) for including “an ‘escape hatch’ from its obligation to provide the funding needed to ensure compliance with the SBRM’s minimum precision standard, in the form of the artificially restrictive set of appropriations streams available to fund observer monitoring,” Pl.’s Mem. at 17; (2) for failing to consider “new data and commenter concerns” regarding electronic monitoring, non-managed species, and potential observer bias, id. at 18; and (3) for “offer[ing] little scientific justification for choosing one CV level over any other available level,” id. at 27. None of these arguments is persuasive. At bottom, Plaintiff’s reading of the MSA infers standards or requirements where none exists. As discussed supra, the MSA only requires that a standardized bycatch reporting methodology be established as part of an FMP. See 16 U.S.C. § 1853(a)(11). There is no statutorily required minimum of statistical precision for collecting data under this methodology. Nor is there any statutorily required level of observer coverage under this provision. Indeed, while the MSA requires that a methodology be established, it imposes no specific standards or requirements for doing so. Congress could have included such standards or requirements in this provision, but it did not. Cf. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (noting that “courts must presume that a legislature says in a statute what it means and means in a statute what it says”). Accordingly, because there is no inconsistency between the MSA and the standardized bycatch reporting methodology – and Plaintiff points to none – the 2015 SBRM Amendment should be upheld. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 21 of 54 14 A. The Prioritization Process In The 2015 SBRM Amendment Complies With The Remand Order 1. NMFS’s Discretion Is Limited By The Specific Funding Trigger And Formulaic Process For Reallocating Observer Coverage The primary issue presented on remand was the extent to which NMFS could “reserve in advance some discretion to depart on a case-by-case basis from an otherwise applicable rule” to address potential “external operational constraints,” specifically the lack of full funding. Oceana III (Appeal), 670 F.3d at 1241. As this Court previously recognized, the “MSA requirement that the FMP establish a standardized bycatch reporting methodology does not mean that the agency may not deviate from the standardized methodology regardless of the external factors that impact the agency.” Oceana III, 725 F.Supp.2d at 56 (footnote omitted). But there are limits to such a reservation of discretion – an agency may not reserve “complete discretion” to address external constraints. Oceana III (Appeal), 670 F.3d at 1241 (emphasis added). In Oceana III (Appeal), the D.C. Circuit identified two factors relevant to this issue. First, in reserving its discretion, an agency “must adequately define the circumstances that ‘trigger’ the case-by-case analysis.” Id. (citing Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 217 (D.C. Cir. 2007)). Second, an agency “must set an ‘identifiable standard’ to guide its judgment when operating under that procedure.” Id. (citing Cement Kiln, 493 F.3d at 220-21). In applying these factors, the D.C. Circuit found that the 2008 SBRM Amendment set a “vague” trigger since it “prescribe[d] no criterion or formula” for determining “whether the funding available . . . in a particular year” would preclude full implementation of the reporting methodology. Id. at 1242. It also concluded that the 2008 SBRM Amendment contained no “identifiable standard” because its prioritization process “merely restate[d] the agency’s statutory obligations” and thus did “not meaningfully constrain the agency in setting and implementing its priorities.” Id. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 22 of 54 15 NMFS sought to squarely address both of these factors on remand. In defining a specific trigger for departing from the default reporting methodology, NMFS acknowledged that the D.C. Circuit “found that NMFS had too much discretion in determining whether there were sufficient resources available to fully implement the estimated number of sea days needed to achieve the CV performance standard.” AR 0006712. To address the issue, NMFS set a quantifiable trigger tethered to four specific “funding sources that have been allocated to the Greater Atlantic Region for observer coverage in recent years.” AR 0006713; see also AR 0007536 (explaining that, by pairing the trigger to these specific funding lines, the “funding trigger places real and significant restrictions on the [a]gency’s discretion to determine funding for the SBRM”). If, in any given year, the combined funding from the funding lines “is sufficient to fully implement the observer coverage levels estimated to achieve the target performance standard,” the prioritization process is not triggered. AR 0006713. Conversely, if the combined funding from the funding lines “is not sufficient to fully implement the estimated observer coverage levels,” then a prescribed prioritization would be triggered “to determine how the available observer sea days would be allocated across the fisheries.” Id. NMFS also provided illustrative examples of how this trigger might apply in practice, describing in detail its process for calculating the needed sea days and funded sea days for each funding category, as well as shortfall or surplus sea days. See, e.g., AR 0007461-68. Similarly, in developing an identifiable standard to guide the redistribution of observer days under the prioritization process, NMFS sought to establish “a non-discretionary formulaic” process for doing so. AR 0007533. The process selected for the 2015 SBRM Amendment, the penultimate cell approach, uses “a defined formula to reduce the total number of needed observer sea days to meet funding constraints,” but, unlike a proportional reduction approach, prioritizes observer “coverage across the various agency-funded fishing modes,” AR 0006483, through “an Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 23 of 54 16 iterative process of eliminating from consideration the cell [i.e., fishing mode by species/species group] that requires the highest number of projected sea days to achieve the SBRM performance standard,” AR 0006770. The anticipated result of this approach is that, “by maintaining the CV- based performance standard for as many fishing mode/species group combinations as possible,” this approach “could minimize the impact of a funding shortfall on overall discard estimations.” AR 0006738; see also AR 0006483 (noting that this approach “prioritize[s] coverage across the various agency-funded fishing modes such that the fewest number of fishing mode and species group combinations have a CV that is higher than the CV-based performance standard”). Again, NMFS provided illustrative examples of how this penultimate cell approach might prioritize cells and redistribute observer days for the greatest collective effect. See, e.g., AR 0001153-68; AR 0007470-73.12 Thus, whereas the prioritization process in the 2008 SBRM Amendment was found to confer “complete discretion” on the agency, see Oceana III (Appeal), 670 F.3d at 1241, the 2015 SBRM Amendment, by contrast, imposes meaningful limits on when the agency might invoke the prioritization process and how it might be applied. The D.C. Circuit has upheld similarly specific limits on an agency’s reservation of discretion. See, e.g., Cement Kiln, 493 F.3d at 223 (holding that trigger based on “nine relatively specific factors” was sufficient; also holding that agency sufficiently identified standard where the “first eight factors listed in the regulation are more than sufficient to guide the type of information that can be required,” even though a ninth factor was only “general”); cf. New Mexico v. EPA, 114 F.3d 290, 293 (D.C. Cir. 1997) (holding 12 For example, in a presentation made to the Councils, the SBRM FMAT explained that 5,551 observer days would otherwise be required to achieve a 30% CV standard for all species in the Mid-Atlantic large-mesh otter trawl fishery. AR 0000321. But the removal of just one species (red crab) would allow the agency to achieve a 30% CV standard for all the other species in the fishery with only 333 observer days – thereby saving 5,218 observer days or $6,300,000. Id. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 24 of 54 17 that requirement to set “criteria” for waste disposal “says nothing to suggest that the criteria must be detailed or quantitative”); Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 191-92 (D.C. Cir. 1993) (holding that requirement to set “minimum staffing levels” did not mandate specification of precise numbers of personnel).13 The prioritization process set forth in the 2015 SBRM Amendment also should be upheld.14 2. Plaintiff’s Funding-Related Arguments Are Inapposite Curiously, even though the D.C. Circuit’s decision in Oceana III (Appeal) turned on the specificity of the prioritization process “trigger” and “identifiable standard” in the 2008 SBRM Amendment, 670 F.3d at 1241-42, and in spite of the considerable attention that NMFS devoted to addressing both factors in the 2015 SBRM Amendment, see, e.g., AR 0006446; AR 0006712- 45; AR 0006770-71; AR 0007461-89; AR 0007533; AR 0007536-37, Plaintiff offers scant argument with respect to either factor in its Memorandum. Instead, Plaintiff focuses on NMFS’s purported “obligation to provide the funding needed to ensure compliance with the SBRM’s minimum precision standard.” Pl.’s Mem. at 17; see also id. at 12-17 (alleging that underfunding is “SBRM’s underlying flaw”). Plaintiff thus asserts that the 2015 SBRM Amendment does not “establish” a standardized bycatch reporting methodology, within the meaning of 16 U.S.C. § 1853(a)(11), because it “fail[s] to provide” for an “adequate 13 Moreover, where Congress “has ‘not specified the level of specificity expected of the agency, the agency is entitled to broad deference in picking the suitable level.’” Cement Kiln, 493 F.3d at 217 (citation omitted); see also Animal Legal Def. Fund v. Glickman, 204 F.3d 229, 235 (D.C. Cir. 2000) (noting that courts “accord agencies broad deference in choosing the level of generality at which to articulate rules”). 14 NMFS also addressed how the prioritization process would apply in “the unlikely event that Federal observer funding is so restricted in a given year that there are not enough observer sea days to achieve the minimum pilot coverage in each fleet.” AR 0006712; see also AR 0006717- 18. Minimum pilot coverage refers to the “minimum level of at-sea observer coverage to acquire initial bycatch information” in limited-data situations. AR 0006634. Plaintiff does not appear to challenge this portion of the prioritization process. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 25 of 54 18 SBRM budget [that] can ensure the minimum levels of precision for bycatch data collection and reporting.” Pl.’s Mem. at 14. By Plaintiff’s reckoning, “[s]uch knowingly inadequate funding plainly violates [NMFS’s] statutory mandate.” Id. This funding-related argument misses the mark for several reasons. As an initial matter, this argument is fundamentally disconnected from the holding in Oceana III (Appeal). The level of funding for the 2015 SBRM Amendment may be relevant, if at all, to the likelihood that the agency might be required to invoke the prioritization process, but it does not address the merits of the prioritization process itself. That is, the extent to which NMFS has funded or will fund the 2015 SBRM Amendment says nothing about the specificity of the “trigger” or the “identifiable standard” for the prioritization process – the key issue presented in Oceana III (Appeal). Moreover, the underlying premise of this argument is faulty.15 Plaintiff refers to NMFS’s “obligation” to allocate a certain level of funding to the 2015 SBRM Amendment, Pl.’s Mem. at 17, but there is no requirement in the MSA or anywhere else – and Plaintiff points to none – for the agency to reorder the competing demands on its appropriated funds to fund the standardized bycatch reporting methodology at any specified levels. See, e.g., Lincoln v. Vigil, 508 U.S. 182, 192-93 (1993) (holding an “agency’s allocation of funds from a lump-sum appropriation requires a ‘complicated balancing of a number of factors which are peculiarly within its expertise’ . . . [and] the agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities”) (citation omitted); Int’l Union v. Donovan, 746 F.2d 855, 861 (D.C. Cir. 1984) (noting that “[a] lump-sum appropriation leaves it to the recipient agency 15 Underscoring this point, “funded days exceed[ed] the needed days” in fiscal year 2016, so the prioritization process was not triggered for that year. See 2016 Standardized Bycatch Reporting Methodology Annual Discard Report with Observer Sea Day Allocation, at 7, http://www.nefsc. noaa.gov/femad/fsb/SBRM/2016/2016_SBRM_Annual_Discard_Report_and_Observer_Sea_Da y_Allocation_06132016_reviewed.pdf (last visited Mar. 3, 2017). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 26 of 54 19 (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit”). Nor is there any requirement in the MSA or anywhere else – notwithstanding Plaintiff’s repeated references to funding “minimum levels of precision,” Pl.’s Mem. at 14 – that compels NMFS to achieve any specified level of statistical precision in collecting or reporting bycatch data. Cf. Anglers Conservation Network v. Pritzker, 139 F.Supp.3d 102, 117 & n.11 (D.D.C. 2015) (rejecting a similar argument that National Standard 2 required a certain level of observer coverage; finding no support in the cited cases for the notion “that the MSA requires sufficient observers to generate statically reliable data”); see also New Mexico, 114 F.3d at 295 (noting that an agency need not incorporate particular tests if the statute “does not explicitly require” such tests); Tex. All. for Home Care Servs. v. Sebelius, 811 F.Supp.2d 76, 100 (D.D.C. 2011) (noting that, “if the underlying statutory language does not require a particular methodology, the [c]ourt cannot demand that the agency implement such a test”) (citation omitted), aff’d, 681 F.3d 402 (D.C. Cir. 2012).16 Plaintiff’s related argument – that the agency should tap “alternative funding sources” to make up any potential funding shortfall for the 2015 SBRM Amendment, Pl.’s Mem. at 15-16 – is also inapposite.17 Again, Plaintiff identifies no statutory or legislative command that requires 16 This is also consistent with NMFS’s interpretation of other MSA provisions. For example, the guidelines for National Standard 9 recognize that, “[d]ue to limitations on the information available, fishery managers may not be able to generate precise estimates of bycatch and bycatch mortality.” 50 C.F.R. § 600.350(d)(2) (noting that, in the absence of quantitative estimates, qualitative measures may be used). Similarly, the guidelines for National Standard 2 acknowledge that certain fisheries may have limited data and provide that these fisheries “may require use of simpler assessment methods and greater use of proxies for quantities that cannot be directly estimated, as compared to data-rich fisheries.” Id. § 600.315(a)(3). 17 To the extent Plaintiff suggests that the agency should reallocate its observer funding to the Northeast fisheries, see Pl.’s Mem. at 15, Plaintiff disregards the observer funding requirements Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 27 of 54 20 NMFS to do so. This omission is significant, because it is “a fundamental principle of appropriations law . . . that where ‘Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions.’” Lincoln, 508 U.S. at 192 (citation omitted). Consequently, because an agency’s “allocation of funds from a lump-sum appropriation is [an] administrative decision traditionally regarded as committed to agency discretion,” such funding decisions are unreviewable. Id. at 191-92; see also Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 & n.6 (D.C. Cir. 2006) (noting that an agency’s allocation of funds is among the “administrative decisions” that “[b]oth the Supreme Court and [the D.C. Circuit] have held . . . are unreviewable”) (citation omitted).18 So too here. B. The 2015 SBRM Amendment Also Complies With The MSA In All Other Respects In addition to challenging the adequacy of NMFS’s response to the specific issue that was the basis for the remand, Plaintiff argues that the 2015 SBRM Amendment also fails to comply with the MSA in other respects. Specifically, Plaintiff alleges that NMFS improperly limited the scope on remand to making “a few cosmetic changes.” Pl.’s Mem. at 1. In addition, Plaintiff objects to NMFS’s choice of a 30% CV performance standard in the 2015 SBRM Amendment. Id. at 27. Plaintiff also contends that the agency failed to adequately consider (1) “electronic monitoring as a supplemental tool” for bycatch data monitoring, id. at 19-22; (2) the application of other fisheries and regions. See, e.g., AR 00007520-23 (providing guidance on the allocation of observer funding “among all observer and SBRM needs”). 18 For example, the notion that the agency should simply “elect to use . . . industry funding mechanism,” Pl.’s Mem. at 15-16, is overly simplistic. As NMFS explained, “[i]ndustry-funded monitoring programs are complex and must be carefully tailored to each specific fishery as a management/policy decision in each specific FMP.” AR 0007537. Therefore, industry-funded programs are considered “on a case by case basis, depending on the needs and circumstances of each fishery.” Id. (emphasis added). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 28 of 54 21 of the 30% CV performance standard to non-managed species, id. at 22-25; and (3) the “potential for observer bias,” id. at 25-26. None of these arguments is persuasive, as discussed infra. 1. NMFS’s Exercise Of Discretion In Defining The Scope On Remand Was Reasonable To start, Plaintiff objects to the manner in which NMFS defined the scope on remand, alleging the agency erred by focusing on the specific issue that prompted the remand decision and by incorporating certain findings from the 2008 SBRM Amendment. See Pl.’s Mem. at 18. Pointing to particular alternatives rejected for the 2008 SBRM Amendment that were similarly “considered and rejected” for the 2015 SBRM Amendment, AR 0007535, Plaintiff casts the new methodology as a “basically repackage[d]” version of the prior methodology, Pl.’s Mem. at 1; see also id. at 6 (characterizing “the post-remand draft SBRM Amendment” as “a copy-and-paste duplication of the draft 2008 SBRM Omnibus Amendment”), and infers that NMFS must have given short shrift to “new data and commenter concerns,” id. at 18. Plaintiff infers too much. Although Plaintiff insists that NMFS was required to “begin anew” on remand, id., courts have long recognized that it is within an agency’s discretion to determine “how, in light of internal organizational considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops.” Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326, 333-34 (1976) (emphasis added); see also Cty. of Los Angeles v. Shalala, 192 F.3d 1005, 1011 (D.C. Cir. 1999) (holding that “when a court . . . determines that an agency made an error of law, the court’s inquiry is at an end: the case must be remanded to the agency for further action consistent with the corrected legal standards”) (citations omitted). Hence, “[a] court may not dictate to the agency the ‘methods, procedures, [or] time dimension,’ for its reconsideration.” Defs. of Wildlife v. Kempthorne, No. 04-cv-01230 (GK), 2006 WL 2844232, at *11 (D.D.C. Sept. 29, 2006) Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 29 of 54 22 (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). A court also “will not, indeed [it] cannot, dictate to the agency what course it must ultimately take.” Nat’l Tank Truck Carriers v. EPA, 907 F.2d 177, 185 (D.C. Cir. 1990) (citations omitted). Consequently, as the D.C. Circuit has explained, “the usual rule is that, with or without vacatur, an agency that cures a problem identified by a court is free to reinstate the original result on remand.” Heartland Reg’l Med. Ctr. v. Leavitt, 415 F.3d 24, 29-30 (D.C. Cir. 2005) (footnote omitted); see also Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998) (noting that an agency, after vacatur and remand, “might later, in the exercise of its lawful discretion, reach the same result for a different reason”) (citation omitted). In this case, because “the grounds for the D.C. Circuit’s remand were narrow,” Locke, 831 F.Supp.2d at 114, NMFS appropriately focused its efforts on addressing the specific issue flagged by the D.C. Circuit – the amount of discretion reserved by the agency through the 2008 SBRM Amendment’s prioritization process. See Oceana III (Appeal), 670 F.3d at 1241. It was reasonable for NMFS to do so, because “an agency faced with a remand order has an affirmative duty to respond to the specific issues remanded” and it risks error if it “addresses an issue that is both conceptually and semantically distinct from the one remanded.” Defs. of Wildlife, 2006 WL 2844232, at *12 (citations omitted); see also Tex Tin Corp. v. EPA, 992 F.2d 353, 355 (D.C. Cir. 1993) (noting that agency’s finding was “not responsive” to the specific issue remanded). With respect to the remaining aspects of the 2008 SBRM Amendment that were upheld by this Court, and not addressed by the D.C. Circuit, see Locke, 831 F.Supp.2d at 104, it was within the agency’s discretion to determine “how its prior decision should be modified.” Fed. Power Comm’n, 423 U.S. at 333 (emphasis added). It thus was reasonable for the agency to incorporate “the extensive work already completed” for the previous amendment on remand. AR 0006477. As NMFS explained, “[r]ecreating this work for this specific action would have taken Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 30 of 54 23 a significant amount of time and effort, but would not have provided any additional insight.” AR 0007534 (emphasis added). Indeed, “[m]uch of the amendment describes a system of statistical calculations that remain valid and appropriate even when newer data are not analyzed to provide context,” e.g., the validity of a statistical equation does not hinge on the data inputs used in that equation. Id. Hence, the agency decided against jettisoning its prior work on those parts of the standardized bycatch reporting methodology that were not the basis for the remand order, and it was appropriate for NMFS to do so. Cf. Defs. of Wildlife v. Kempthorne, 535 F.Supp.2d 121, 128 (D.D.C. 2008) (noting that remand for reexamination of prior decision did not require a “wholly new determination”). In any event, Plaintiff’s argument that the agency must have disregarded “new data and commenter concerns,” Pl.’s Mem. at 18, appears to conflate the results of NMFS’s analyses with the analyses themselves. The fact that certain alternatives considered and rejected for the 2008 SBRM Amendment were also “considered and rejected” for the 2015 SBRM Amendment does not permit the inference that the underlying analyses for each were the same. Cf. Heartland, 415 F.3d at 29-30 (noting that “a court is free to reinstate the original result on remand”) (footnote omitted). As NMFS explained, the significance of new data was assessed on an issue-by-issue basis: “Where new data would not provide additional insight or value in the amendment, the analysis from the 2007 SBRM amendment was maintained. When new data informed decision making in the amendment, NMFS used the most recent data available.” AR 0007534; see also AR 0007535 (noting that “several components . . . have been updated to account for changes since 2007”).19 In short, Plaintiff may prefer that the agency undertake an entirely new analysis in every instance, even with respect to those issues that were not the basis for the remand order, 19 For example, NMFS reviewed discard data from 2012 in considering whether the reporting methodology needed to “explicitly account for non-managed species.” AR 0006721-22. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 31 of 54 24 but there is no requirement for NMFS to exercise its discretion in such a manner, and Plaintiff fails to demonstrate otherwise. 2. NMFS’s Methodological Choice Of A 30% CV Performance Standard Was Reasonable Plaintiff also takes issue with NMFS’s selection of a 30% CV performance standard in the 2015 SBRM Amendment, alleging that the agency “offered little scientific justification for choosing one CV level over any other available level.” Pl.’s Mem. at 27. Not so. Plaintiff may prefer a different outcome for the agency’s assessment of this issue, but the administrative record provides no basis for challenging the adequacy of the agency’s assessment. Again, this Court’s holding in Oceana III is instructive. Addressing a similar argument, the Court found that there were “numerous examples in the record of the agency’s consideration of the 30 percent CV performance standard and the scientific support for that level.” Oceana III, 725 F.Supp.2d at 65 (citations omitted). The Court also held that the “scientific and economic policy judgments made by NMFS in adopting the SBRM Amendment and the 30 percent CV level are precisely the types of decisions to which the Court must defer.” Id. at 66 (emphasis added) (citation omitted); see also Baltimore Gas, 462 U.S. at 103 (noting that a court must be “at its most deferential” when examining conclusions made “at the frontiers of science”); Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir. 2009) (noting that “judgments are entitled to particularly deferential review”) (citation omitted). Thus, this Court upheld NMFS’s “decision to use a 30 percent CV level” as “reasonable in light of the relevant factors.” Oceana III, 725 F.Supp.2d at 65. Likewise here, Plaintiff’s arguments cannot be squared with the administrative record. As NMFS explained, the 30% CV standard “was selected . . . based upon the recommendation of the National Working Group on Bycatch [(“NWGB”)].” AR 0006444. In reaching this decision, Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 32 of 54 25 NMFS considered “whether an alternative percentage (15 percent, 20 percent, 40 percent, etc.) should be selected instead,” but it determined that “the lack of scientific justification” counseled against “CV values outside the range recommended by the [NWGB].” AR 0006726; see also AR 0006727 (noting that “this approach was not pursued further due to a lack of information necessary to make informed decisions regarding the cell-by-cell CVs”). Similarly, the agency found that, within the range recommended by the NWGB (20%-30%), there was “little scientific justification for choosing one CV level (e.g., 28 percent) over any other specific CV level (e.g., 27 percent),” so the agency narrowed its assessment to “the extremes of this range.” Id.20 As to the upper and lower bounds of the range, the agency selected the “higher value . . . predicated upon stratification of species and fisheries at a finer level than the NWGB recommended,” as discussed infra. AR 0006623 (also stating that NWGB “noted that under some circumstances, attaining the precision goal alone would not be an efficient use of public resources”).21 This Court upheld a similarly detailed analysis of the 30% CV standard in Oceana III, and it should do so again here. Cf. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (noting that “an agency must have discretion to rely on the reasonable opinions of its own qualified experts”). More fundamentally, Plaintiff’s argument fails because it appears to misapprehend how the 30% CV standard functions as part of the standardized bycatch reporting methodology. As 20 In addition, the agency considered “establishing separate and distinct CV levels for each particular combination of fishing mode and species,” but this alternative “was not pursued further.” AR 0006727. 21 Plaintiffs also object on the grounds that the 30% CV standard represents the “lowest point” within an “acceptable precision range” recommended by the NWGB. Pl.’s Mem. at 26-27. But the NWGB emphasized that this range reflected only its recommended “precision goals.” 2008 AR 000117. The NWGB also qualified its recommended range with several caveats, including, inter alia, “circumstances under which meetings these precision goals would not be an efficient use of public resources” as well as “[f]unding and logistical constraints . . . [that] may prevent the attainment of these goals.” Id. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 33 of 54 26 clarified by NMFS, the 30% CV standard was based on the range recommended by the NWGB, but its application in the 2015 SBRM Amendment “differs in several important ways” from the NWGB recommendation. AR 0006703. First, whereas the NWGB recommended applying the applicable CV standard to “total discards (aggregated over all species) for the fishery,” the 2015 SBRM Amendment applies the CV standard to “each applicable fishing mode.” Id.; see also AR 0007536 (noting that the amendment addresses “estimated discards of a species group in a single fishing mode”). Second, the 2015 SBRM Amendment also “disaggregate[s] all species to the level of individual species or groups of related species.” AR 0006704. This difference in scale (fishery- versus fishing mode by species/species group-level) is significant. Under the NWGB’s recommendation, the CV standard would apply to “total discards of . . . 30+ species across all applicable fishing gears.” Id. By contrast, the 30% CV standard in the 2015 SBRM Amendment applies to “each of up to 840 unique fishing gear mode and species combinations.” Id.22 Hence, NMFS determined that this “subdivision by different fishing modes would result in estimates of total discards with much lower total variability.” AR 0007536; see also AR 0006727 (noting that the “global CV of 30 percent functions, in this case, as a baseline level of precision expected for all relevant fishing modes and species in the SBRM”). Nowhere does Plaintiff even address this critical distinction. 22 One consequence of applying the 30% CV standard to so many different fishing modes is that, even if the standard is not met for a particular fishing mode, the less precise data for that fishing mode is separately useful in aggregating the data from all fishing modes to scale up to a fishery- level CV calculation. For example, the 2012-13 discard data for Atlantic cod, see AR 0008069- 70, reflected a wide range of CVs (5% to 94%) for the different fishing modes. In the aggregate, however, the CV for total discards for cod in that year was 29.8%. See id.; cf. Oceana, Inc. v. Pritzker, 26 F.Supp.3d 33, 48 (D.D.C. 2014) (noting that bycatch “is a relatively small portion of overall catch for most stocks,” such that “measuring it very precisely” for such stocks is not a concern) (“Pritzker”). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 34 of 54 27 3. NMFS’s Assessment Of Specific Issues Was Reasonable Plaintiff’s conclusory arguments regarding NMFS’s assessment of three specific issues, see Pl.’s Mem. at 19-26, are also flawed. To begin with, Plaintiff contends that the agency has failed to “provide a complete analytic defense,” id at 18, but its interpretation of “complete” is overbroad. As the Supreme Court has long recognized, an agency is “not compelled to annotate to each finding the evidence supporting it.” United States v. Pierce Auto Freight Lines, 327 U.S. 515, 529 (1946); see also Frizelle v. Slater, 111 F.3d 172, 176-77 (D.C. Cir. 1997) (noting that an agency “decision [need not] be a model of analytic precision to survive a challenge”) (citation omitted). Moreover, “[i]t does not necessarily follow . . . that the failure to mention certain evidence means that it was not considered, nor does it follow that an explanation is incomplete unless it dutifully lists all the evidence that the [agency] examined.” Lorion v. U.S. Nuclear Regulatory Comm’n, 785 F.2d 1038, 1042 (D.C. Cir. 1986); see also In re Operation of Missouri River Sys. Litig., 421 F.3d 618, 634 (8th Cir. 2005) (stating “there is no requirement that every detail of the agency’s decision be stated expressly”). Applying these principles, NMFS’s assessment of these specific issues was entirely reasonable and should be upheld. a. NMFS Adequately Considered Electronic Monitoring Plaintiff first faults NMFS for failing to adequately consider “electronic monitoring as a supplemental tool” for bycatch data monitoring. Pl.’s Mem. at 19.23 The administrative record, however, demonstrates that NMFS undertook a thorough assessment of the issue in developing the 2015 SBRM Amendment. See, e.g., AR 0006610-13; AR 0006685-88; AR 0006728-29; AR 23 Electronic monitoring refers to the “relatively recent development” of using “fixed placement, high resolution, and tamper resistant video cameras on-board fishing vessels that record digital video data to large capacity computer hard drives,” often paired with “custom image recognition software that process the picture through a series of algorithms to identify fish species, provide length data and . . . weight data.” AR 0006610-11. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 35 of 54 28 0006762-65; AR 0007075; AR 0007534; AR 0007539; AR 0007540. NMFS acknowledged that electronic monitoring may offer “one possible means of addressing observer funding shortages.” AR 0007534. However, the agency also identified two primary obstacles to relying on electronic monitoring – at least at its current stage of development – for purposes of a standardized bycatch reporting methodology. First, NMFS determined that the technology needed for electronic monitoring was not yet sufficiently developed for widespread application across different fisheries. Although electronic monitoring has been used in certain “fisheries with relatively homogeneous catches,” the agency found that the “overall degree of success for electronic monitoring programs has been variable.” AR 0006728; see also AR 0006729 (“To date, electronic monitoring has been demonstrated as most successful in providing presence/absence data or providing simple visual data”). Moreover, these technological limits were an important consideration for a standardized bycatch reporting methodology because, “[i]n general, the larger the vessel, complexity of the fishing gear and its operation, diversity of the catch, and the level of detail in the data collection, the higher the degree of complexity to the type of electronic monitoring system that must be designed and deployed.” AR 0006728; see also AR 0006729 (noting that the “presence/absence data” and the “simple visual data” generated from current technologies was “of limited utility in the Greater Atlantic Region as most stock assessments require detailed biological data”); cf. AR 0006728-29 (cautioning that electronic monitoring’s “utility as a tool to supplement existing data collection programs depends largely on designing a system within the constraints of the known electronic monitoring capabilities”). The upshot, as NMFS stated, is that, “[w]hile electronic monitoring is a promising tool for bycatch monitoring, it remains very much a work in progress” because the “technology and systems available cannot currently perform the same complex data collection supplied by onboard human observers.” AR 0006728 (emphasis added); see also AR 0007534 Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 36 of 54 29 (finding that “electronic monitoring is not currently sufficiently developed or suitable to be a viable replacement for at-sea observers for the purpose of the SBRM”); cf. AR 0006722 (noting that human “[o]bservers are trained and expected to record information regarding 670 species”). Second, NMFS identified the costs of electronic monitoring as another potential hurdle. Although the agency considered the potential cost savings of using electronic monitoring, see AR 0007540, it also considered the extent to which any such savings would be offset by the “costs to purchase, install, and maintain” electronic monitoring systems, AR 0006762. NMFS concluded that the “affordability of electronic monitoring has yet to be determined,” since such costs would “be determined largely by the purpose and scope of particular electronic monitoring coverage and the available technology to meet those needs.” AR 0007540. However, based on data from British Columbia groundfish longline fisheries, NMFS estimated that “total first year costs would be approximately $10,200 per vessel, with continuing costs of approximately $1,600 per vessel per year.” AR 0006762-63. NMFS also cautioned that the separate “costs associated with extracting the data from the video recording systems, or storing, maintaining, editing, and reviewing the data,” which would likely be borne by the agency, “could be substantial.” AR 0006763. Accordingly, while NMFS considered “the potential for a lower cost per sea-day with electronic monitoring,” it concluded that, “[e]ven at a potentially lower cost per day, the increase in coverage to 100 percent of trips would likely result in a program that is significantly more expensive than the SBRM is currently.” AR 0007540. In spite of this detailed analysis, Plaintiff asserts that NMFS failed to adequately consider the issue, alleging that the agency should have addressed the “electronic monitoring equipment requirements in some fisheries” and a 2009 study by Bonney, et al. (“Bonney study”). See Pl.’s Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 37 of 54 30 Mem. at 21.24 Both points, however, are distinguishable. In responding to comments regarding the “recent adoption of electronic monitoring requirements to monitor bluefin tuna bycatch in the pelagic longline fishery,” NMFS explained that: [A] technology that is suitable for identification of bycatch of a distinctive species by a specific gear type, such as bluefin tuna in the pelagic longline fishery, may not yet be as suitable or affordable for monitoring more complex bycatch situations covered by the SBRM, such as differentiating flounder species in a multispecies trawl fishery, or providing length and weight data (all of which would be essential for electronic monitoring to effectively replace observers under the SBRM). AR 0007539 (emphasis added). The Bonney study, which Plaintiff cites for the proposition that electronic monitoring “could be cheaper than observers” under certain circumstances, Pl.’s Mem. at 21 (emphasis added), is also distinguishable.25 The electronic monitoring in the Bonney study was used to identify single-species bycatch (halibut) that is significantly different in appearance and size than the targeted species (rockfish) in that fishery – a scenario unlike the “more complex bycatch situations covered by the SBRM.” AR 0007539.26 Hence, because the information that 24 Plaintiff also alleges that the agency “contravened [its] own policy . . . ‘to encourage the consideration of electronic technologies to complement and/or improve existing fishery- dependent data collection.’” Pl.’s Mem. at 19-20. By its terms, however, this policy only seeks to “encourage the consideration” of electronic monitoring, and thus it imposed no requirement on the agency to adopt electronic monitoring for the 2015 SBRM Amendment. In any event, NMFS expressly stated that it “supports the continued development of electronic monitoring and will continue to evaluate its applicability as a component of a comprehensive SBRM.” AR 0007539. 25 Even if the Court decides to consider this extra-record study (and Defendants contend that it need not), Plaintiff did not attach a copy of the study as an exhibit or provide a hypertext link to the study. A copy is therefore attached hereto. See Bonney, et al., Continued Assessment of an Electronic Monitoring System for Quantifying Atsea Halibut Discards in the Central Gulf of Alaska Rockfish Fishery, EFP 0801 Final Report, Alaska Groundfish Data Bank (Sept. 2009) (attached as Exh. 1). 26 In any event, Plaintiff’s reference to the Bonney study omits critical context. With respect to the costs of electronic monitoring, the Bonney study opined, “[b]ased on the cost data collected during this study and the rental‐based scenarios explored in the results, it appears that EM is currently only cheaper for vessels that would be fishing during more than 30% of the rental period and for vessels that would be using EM in lieu of an observer during more than seven Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 38 of 54 31 Plaintiff cites is distinguishable, its arguments are unavailing. Cf. Ecology Ctr. v. Castaneda, 574 F.3d 652, 668 (9th Cir. 2009) (noting “an agency need not respond to every single scientific study or comment”) (citation omitted); Or. Nat. Desert Ass’n v. Tidwell, 716 F.Supp.2d 982, 997 (D.Or. 2010) (noting an agency need not “cite every potentially relevant study, especially such studies that do not constitute the best available science in the estimation of the expert agency”). b. NMFS Adequately Considered Non-Managed Species Plaintiff next contends that NMFS erred (1) “[b]y excluding non-FMP managed species from the SBRM,” Pl.’s Mem. at 25; and (2) “restricting its 30 percent CV performance standard to federally managed species,” id. at 22. Neither argument withstands scrutiny. Indeed, Plaintiff pressed identical arguments in challenging the 2008 SBRM Amendment, and this Court rejected both arguments, finding that “that the decision to allocate observers to ensure that the 30 percent CV performance standard is met with respect to most, but not all, bycatch species, while still estimating all bycatch, does not violate the MSA.” Oceana III, 725 F.Supp.2d at 58-59. The same reasoning should apply here. Because a standardized bycatch reporting methodology is intended to “serve a variety of information and analytical needs, the most important factor is to ensure that as wide an array as possible of data are being collected.” Hence, “at-sea observers record information on all species encountered by the fishing vessel . . . for both discards and landed catch.” AR 0006722; see also AR 0006481 (stating that “data shall be collected on all species of biological organisms caught fishing days a year.” Exh. 1 at 31 (emphasis added). More to the point, the Bonney study also found that, “for [electronic monitoring] to be seen as a viable option for vessel owners, it must be less expensive.” Id. at 30-31. Further, the Bonney study acknowledged the current technological limitations of electronic monitoring, finding “it cannot replace a human observer for collecting catch data that must be spatially explicit at the haul level,” such as “sexed length frequencies, otoliths, maturity assessments, stomach samples and tagged fish information.” Id. at 31; see also id. at 10, 22 (also describing “several [electronic monitoring] system malfunctions over the season,” resulting in additional cost and delay). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 39 of 54 32 by the fishing vessel and brought on board”); cf. AR 0003570-84 (listing all species for which data is collected). This data collection applies to “species managed under the regional FMPs or afforded protection under the Endangered Species Act or Marine Mammal Protection Act, but also includes species of non-managed fish, invertebrates, and marine plants.” AR 0007532 (emphasis added). Based on this extensive data, NMFS noted that, in 2012, observers reported discards of 255 unique species, including 82 federally-managed species. AR 0006721. These 82 managed species represented 82.8%, by weight, of the discarded bycatch in 2012, whereas the remaining 173 non-federally managed species accounted for only 17.2% of the 2012 discarded bycatch. Id.27 Given this disparity, NMFS determined that the 2015 SBRM Amendment did not “need to explicitly consider non-managed species in the design and development of the SBRM,” AR 0006722, and therefore the 30% CV performance standard applicable to managed species did not apply to data collected for non-managed species. The agency’s assessment of this issue is consistent with the Court’s holding in Oceana III. Addressing the same arguments, this Court held that, while the “MSA demands assessment of the bycatch of all species, . . . this is satisfied by the requirement that at-sea observers compile data on all bycatch observed.” Oceana III, 725 F.Supp.2d at 58. Further, the Court held that the MSA “includes no requirement that all species of bycatch be estimated with the same degree of precision and accuracy,” and it therefore found that NMFS did not err in limiting the 30% CV performance standard to “the bulk, in terms of weight, of bycatch.” Id. (footnote omitted). This Court thus rejected Plaintiff’s arguments before, and it should do so again. c. NMFS Adequately Considered Potential Observer Bias In addition, Plaintiff argues that NMFS failed to “seriously address[] the comments of 27 Some of the 173 non-federally managed species are managed “at the level of the individual state.” AR 0006721. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 40 of 54 33 Oceana (and others)” regarding the issue of potential observer bias and also failed to address an analysis cited in Plaintiff’s comments that purportedly “showed ‘[a] relatively consistent pattern of different fishing behaviors’” when an observer is present. Pl.’s Mem at 25. The administrative record, however, shows that the opposite is true – NMFS conducted an extensive assessment of the issue of bias generally, and also responded to the cited analysis specifically.28 In developing the 2015 SBRM Amendment, NMFS emphasized that an “objective of the SBRM is to establish, maintain, and utilize biological sampling programs designed to minimize bias to the extent practicable.” AR 0006442. To this end, NMFS conducted an extensive review of information on sampling design, data sources, precision, and accuracy. See AR 0006619-81 (entire chapter addressing these issues). NMFS re-examined its initial analyses of bias, based on 2004 data, which were undertaken for the 2008 SBRM Amendment to “illustrate[] design-based methods.” AR 0006620. The agency then performed “[s]everal analytical tests . . . to evaluate the potential sources of bias in the 2004 observer data,” AR 0006652, finding “no evidence of bias in the observer data based on the measure of average catch rate” or “average trip length,” such that “there are no bias issues evident.” AR 0006653; see also AR 0006444 (finding “no evidence of a systematic bias in the amount of kept pounds, trip duration, or area fished . . . indicating that the [2004] data are sufficiently accurate”).29 This conclusion was also supported by “analyses of potential sources of bias in observer data . . . conducted since” the 2008 SBRM Amendment that “continue to find no evidence of a systematic bias.” Id.; see also AR 0006654 (describing post-2008 SBRM Amendment analyses). A recent analysis of groundfish stocks, for 28 “Bias is defined as a systematic difference between the expected value of a statistical estimate and the quantity it estimates.” AR 0006621. 29 Because the methodology is “not specific to any given year,” NMFS determined that “it was not necessary to redo the analysis” with post-2004 data. AR 0006620. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 41 of 54 34 example, found that “the bias in discard rates would have to be at least 5 to 10 times greater than presently observed in order to pose an appreciable risk of exceeding the [Acceptable Biological Catch] or [Overfishing Limit].” Id. (noting also that the “bias analyses conducted to date do not suggest behavioral differences of this magnitude”); cf. Pritzker, 26 F.Supp.3d at 48 (noting, in context of framework adjustment, that “the Council does not know exactly what level of bias the observer programs create – one estimate puts it between one and four percent – [but] it is very confident that bias will not cause the fishery to exceed [annual catch limits]”) (citation omitted). Far from showing inadequate consideration, the administrative record demonstrates that NMFS sought to address and minimize potential observer bias at every turn. For similar reasons, this Court rejected Plaintiff’s prior argument that the 2008 SBRM Amendment failed to consider the issue of potential observer bias, noting that – as here – the previous amendment included “an entire chapter . . . devoted to the topics of sampling design, precision, and accuracy.” Oceana III, 725 F.Supp.2d at 63. Thus, in light of the “numerous discussions of bias and the steps taken to minimize it” in the 2008 SBRM Amendment, id., the Court concluded that it was “clear that the agency devoted extensive time and resources, including expert review, to the potential problem of bias.” Id. at 64. So too here, where “[a]ny failure . . . to respond specifically to a particular comment . . . is, in light of the agency’s overall consideration of the topic of bias, insignificant.” Id. (citation omitted); see also City of Waukesha v. EPA, 320 F.3d 228, 257-58 (D.C. Cir. 2003) (holding that an “agency ‘need not address every comment, but it must respond in a reasoned manner to those that raise significant problems’”) (citation omitted). The 2012 analysis by Chad Demarest of at-sea monitoring requirements for the Northeast multispecies sector fishery (“Demarest analysis”) does not alter this result. See AR 0001654-68; see also AR 0001078; AR 0007141-42. In its comments, Plaintiff cited to the Demarest analysis as support for “a highly variable but relatively consistent pattern of different fishing behaviors Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 42 of 54 35 when an observer is on board and when one is not.” AR 0007143. However, as addressed at length by NMFS, Plaintiff’s reliance on this analysis is misplaced. While it found “evidence for some difference in fishing behavior between observed and unobserved groundfish trips,” the Demarest analysis did not examine “whether the apparent differences would necessarily result in discard rates on unobserved trips that are different (higher or lower) than on observed trips.” AR 0007536. This unexamined question is significant, because the “apparent differences would not affect total discard estimates” “[i]f the discard rate is unchanged.” Id. Likewise, the Demarest analysis also noted that the finding “that vessels behave differently with an observer” provides “no insight into the impact of this on discarding behavior or catch accounting.” AR 0001660. It thus was reasonable for NMFS to conclude that the Demarest analysis did not tip its assessment of potential observer bias. Cf. Oceana I, 2005 WL 55416, at *16 (noting that “[i]t is simply not the Court’s role to interject itself into this extremely technical scientific debate; indeed, this is precisely the type of issue in which the Court should properly defer to Defendants’ expertise.”) (citation omitted).30 II. The 2015 SBRM Amendment Complies In All Respects With NEPA Plaintiff also challenges the 2015 SBRM Amendment on NEPA grounds, alleging that NMFS erred in deciding not to undertake an EIS. Specifically, Plaintiff argues that the agency, in developing its EA and FONSI, (1) “fail[ed] to evaluate the cumulative impacts” of the 2015 SBRM Amendment” in connection with “future management measures,” Pl.’s Mem. at 35; and (2) “ignored the issue” of how bycatch data might be used to enforce or monitor annual catch limits (“ACLs”) and accountability measures (“AMs”), id. at 37. Plaintiff further alleges that, 30 In addition, the Demarest analysis was not final. See AR 0001654 (marked as a draft). It also examined only one fishery and thus was “not directly relevant for all fisheries covered by the SBRM.” AR 0007536. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 43 of 54 36 “[h]ad [NMFS] taken these factors into account . . . it would have prepared an EIS instead of a FONSI.” Id. at 29. None of these arguments withstands scrutiny, as discussed infra. Rather, for the same reasons that the Court rejected similar arguments made by Plaintiff in Oceana III, 725 F.Supp.2d at 66-72, it should also reject the arguments here. A. NMFS Complied With Its NEPA Requirements To start, Plaintiff overstates what is required under NEPA. As the D.C. Circuit has long recognized, “[t]he NEPA process involves an almost endless series of judgment calls,” and “[i]t is of course always possible to explore a subject more deeply and to discuss it more thoroughly.” Coal. on Sensible Transp. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987). Significantly, however, the “line-drawing decisions necessitated by this fact of life are vested in the agencies, not the courts.” Id. (emphasis added). For this reason, a “court’s role in reviewing an agency’s decision not to issue an EIS is a ‘limited’ one, designed primarily to ensure ‘that no arguably significant consequences have been ignored.’” Taxpayers of Mich. Against Casinos (TOMAC) v. Norton, 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)); see also Coal. on Sensible Transp., 826 F.2d at 66 (noting that the role of the courts “is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious”) (quoting Baltimore Gas, 462 U.S. at 97-98). Stated differently, NEPA requires “only that the agency take a ‘hard look’ at the environmental consequences before taking a major action.” Baltimore Gas & Elec. Co., 462 U.S. at 97; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989) (noting that NEPA imposes no “substantive environmental obligations,” but rather “prohibits uninformed” agency action). Because “[r]esolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies,” it is the plaintiff’s burden to make a Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 44 of 54 37 “showing of arbitrary action.” Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976) (citation omitted). Plaintiff fails to meet its burden in this case, as discussed infra. B. NMFS Considered All Reasonably Foreseeable Cumulative Impacts Plaintiff first faults NMFS for “failing to evaluate the cumulative impacts of the [2015] SBRM Amendment.” Pl.’s Mem. at 35. Specifically, Plaintiff alleges that the agency, as part of its assessment of cumulative impacts, failed to consider “future management measures” that may be based, in part, on the bycatch data generated by the 2015 SBRM Amendment, and that “these cumulative impacts are foreseeable and significant.” Id. Plaintiff overstates the case considerably. As the D.C. Circuit has held, “NEPA does not require federal agencies to examine every possible environmental consequence.” Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981). Hence, courts routinely hold that “NEPA does not require . . . the impractical.” Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 764 (9th Cir. 1996) (citing Kleppe, 427 U.S. at 414). Nor does NEPA require an agency to analyze “remote” or “speculative” impacts. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082, 1090 (9th Cir. 2004) (citation omitted). Rather, under NEPA, a “[d]etailed analysis is required only where impacts are likely.” Izaak Walton, 655 F.2d at 377 (citing Carolina Envtl. Study Grp. v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975) (emphasis added)) (noting also that an “agency has fulfilled its mission under NEPA” so long as it “identifies areas of uncertainty”). That is, NEPA requires an agency to examine only those cumulative impacts that are “reasonably foreseeable.” 40 C.F.R. § 1508.7 (defining a “cumulative impact” as the “impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions”). In assessing whether a future cumulative impact may be “reasonably foreseeable,” courts Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 45 of 54 38 have consistently held that an agency need not evaluate future actions that are “too preliminary to meaningfully estimate their cumulative impacts.” Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 513 (D.C. Cir. 2010) (upholding cumulative impacts analysis that omitted “other projects for which nothing had been completed except notices of intent”); TOMAC, 433 F.3d at 864 (upholding cumulative impacts analysis where “the [agency] notes that no projects are ‘known or anticipated’ to combine to produce a significant negative impact”); Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1014 (9th Cir. 2006) (upholding a cumulative impacts analysis that excluded a project “because [it] was ‘in the initial planning stage’ and ‘specifics of the units (size and treatment prescription)’ had not been identified at that time”).31 So too in Oceana III, where this Court rejected similarly conclusory arguments regarding the future cumulative impacts of the 2008 SBRM Amendment, see 725 F.Supp.2d at 69 (noting that “[P]laintiff maintains that because the [2008] SBRM Amendment results in bycatch data, it will have a direct effect on fishing levels and quotas set by the agency”) (citation omitted), and instead upheld NMFS’s finding that such “potential downstream impacts were not ‘reasonably foreseeable and directly linked’ to the [2008 SBRM] Amendment,” id. at 70 (citation omitted). For the same reasons that Plaintiff’s arguments were rejected in Oceana III, their nearly identical arguments here should also be rejected. As NMFS stated, the 2015 SBRM Amendment “is wholly procedural in nature – focused on the methodology and mechanisms by which data and information on the types and rates of bycatch occurring in Greater Atlantic Region fisheries are obtained and utilized by scientists and fishery managers.” AR 0006759. To the extent that 31 By contrast, a future action may be “reasonably foreseeable,” within the meaning of 40 C.F.R. § 1508.7, if it is “certain to occur” such that “many elements of the [] project [a]re already firmly established” before the agency’s issuance of an EA. Soda Mountain Wilderness Council v. U.S. Bureau of Land Mgmt., 607 F. App’x. 670, 672 (9th Cir. 2015). No such circumstances are presented here. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 46 of 54 39 the 2015 SBRM Amendment “formalizes the status quo mechanisms used in the Greater Atlantic Region,” the agency explained that the amendment “would not result in any changes to fishing operations in areas covered by the subject FMPs,” and therefore, “[f]or these components of the SBRM, there are no incremental impacts to any fishing areas.” AR 0006788. Similarly, none of the additional components of the 2015 SBRM Amendment, which are “intended to improve the effectiveness and the transparency of the SBRM,” is “associated with impacts to any fishing areas. . . that could be distinguished from the no action baseline.” Id. In its Memorandum, Plaintiff points to examples of “future management measures” that may utilize the bycatch data generated by the 2015 SBRM Amendment, see Pl.’s Mem. at 31-33, but none of these examples shows a reasonably foreseeable connection to the bycatch reporting methodology in the 2015 SBRM Amendment. The agency itself grappled with this exact issue on remand, noting that, “[d]uring the development of this amendment, there have been occasions when discussions began to diverge from how bycatch data may best be collected into discussions about the likely management implications of an ‘improved’ data collection program,” such as “the potential for improvements in stock assessments and on the types of management measures that may be necessary to address bycatch concerns where they may exist.” AR 0006759. But NMFS concluded that the “potential downstream effects (e.g., subsequent management measures to address bycatch issues) of this action” were “too remote and speculative to be appropriate for consideration in this amendment.” Id. Implementation of the 2015 SBRM Amendment “does not, by itself, guarantee that there would be an improvement in data quality over the status quo.” Id. Even if data quality does improve, “there is no way to predict the effect that an improvement in data quality would have for managing the affected fisheries” or “whether the resulting data would indicate that future estimates of discards would be higher or lower than current estimates.” AR 0006759-60. In addition, the “management measures that might be implemented . . . also Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 47 of 54 40 cannot be predicted” since any such measures would “[d]epend[] on the specific fishery, resource species, time, area, and manner of interaction leading to the bycatch concern.” AR 0006760; see also AR 0006740 (noting that “the information collection and monitoring program should be tailored to the specific types of information collection and monitoring that are required, and these requirements cannot be known until the program needs are identified”). Furthermore, “the actual environmental impacts of these potential management changes would vary with and depend upon the type of measure proposed . . . [so] there is no way to speculate as to what the most likely environmental impacts may be.” AR 0006760. Finally, as the agency repeatedly emphasized, “[a]ny future management actions that may result from the information collected under this SBRM would be subject to all the requirements of NEPA at the appropriate time.” Id. (emphasis added).32 NMFS’s explanation is thorough, reasonable, and entitled to deference. See Kleppe, 427 U.S. at 414 (noting that an agency’s “determination of the extent and effect of these factors” is entitled to deference because it “is a task assigned to the special competency of the appropriate agencies”). It therefore was entirely reasonable for NMFS to conclude that the potential impacts of the 2015 SBRM Amendment, which is focused on improving data, on any future management measures that might utilize such data (and would be subject to their own action-specific NEPA 32 Another example cited by Plaintiff – NMFS’s alleged “decision to ignore observer bias,” Pl.’s Mem. at 34 – is inapposite. As also discussed supra, NMFS conducted “[a]dditional analyses of potential sources of bias in observer data” on remand, and it “continue[d] to find no evidence of a systematic bias in these data.” AR 0006444. Accordingly, “[b]ecause the agency has found that bias is not a problem, it need not consider it as part of its NEPA analysis.” Oceana III, 725 F.Supp.2d at 70. In any event, a cumulative impacts analysis does not encompass “all the [action’s] expected impacts when added together.” TOMAC, 433 F.3d at 864 (holding that “[a]ppellant appears to misunderstand the function of a cumulative impacts analysis”). Rather, as the D.C. Circuit has clarified, “[t]he ‘cumulative’ impacts to which the regulation refers are those outside of the project in question.” Id.; see also Town of Cave Creek v. FAA, 325 F.3d 320, 330 (D.C. Cir. 2003) (rejecting cumulative impact argument that actually challenged a direct impact of project). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 48 of 54 41 review) were not reasonably foreseeable, and Plaintiff fails to demonstrate otherwise.33 C. NMFS Considered A Reasonable Range Of Alternatives Plaintiff’s related NEPA challenge – that the agency allegedly “ignored the issue” of how the bycatch data generated by the 2015 SBRM Amendment might be used to enforce or monitor ACLs and AMs, see Pl.’s Mem. at 36-38 – fares no better. As this Court noted in Oceana I (and again in Oceana III), “courts apply a ‘rule of reason’ in assessing whether an agency considered a sufficient range of alternatives.” Oceana I, 2005 WL 555416, at *7 (citation omitted); see also Oceana III, 725 F.Supp.2d at 71 (same).34 Courts therefore have routinely held that “[t]he goals of an action delimit the universe of the action’s reasonable alternatives.” Oceana I, 2005 WL 555416, at *7 (quoting City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999)); see also 40 C.F.R. § 1502.13 (noting the range of required alternatives is bounded by the “purpose and need” for the action). The corollary to this point, as this Court has previously explained, is that “an agency need not consider options inconsistent with the action’s purpose.” Oceana I, 2005 WL 555416, at *7 (emphasis added) (citation omitted); see also City of Alexandria, 198 F.3d at 867 (noting that an agency need not consider an alternative that “does not ‘bring about 33 Plaintiff also suggests that NMFS’s “bycatch collection methods have already influenced important choices setting fishing levels” for fluke, flounder, and “other important fish species.” Pl.’s Mem. at 34-35. To support these arguments, Plaintiff cites to extra-record materials that are not properly before this Court. See Theodore Roosevelt Conservation P’ship, 616 F.3d at 514 (noting that APA review is generally limited to administrative record). In any event, Plaintiff’s argument shows, at most, only that the improved bycatch data has been incorporated into certain management measures – not that there was a foreseeable cumulative impact from that data that the agency had to consider in preparing its EA. 34 Underscoring the point, NMFS determined that “there are actually 1,464 distinct outcomes possible for the SBRM to be adopted by the Councils,” and, “[a]ccounting for the sub-options, the number of different possible outcomes climbs to 2,160.” AR 0007061. Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 49 of 54 42 the ends of the federal action,’” or is not feasible in light of these goals) (citation omitted).35 This corollary is particularly important here, because Plaintiff appears to conflate two distinct statutory provisions and the different purposes served by each. 16 U.S.C. § 1853(a)(11), the provision at issue in this case, requires the establishment of a standardized bycatch reporting methodology for collecting and reporting data on a fishery-wide basis, and this methodology is intended to apply to “all fisheries managed through the FMPs of the Greater Atlantic Region,” AR 0006442; see also id. (noting that the amendment covers all “13 FMPs” in the Northeast and “address[es] fisheries for 40 species”). However, while “[t]he SBRM forms the basis for bycatch monitoring in the Region,” it was not intended to “address all monitoring requirements of all fishery management plans.” AR 0007535. Another MSA provision, 16 U.S.C. § 1853(a)(15), separately requires that FMPs establish “measures to ensure accountability” with ACLs, which apply at the smaller scale of stock-specific management. AR 0007535 (explaining that ACLs and AMs “are typically set for the whole stock”). The differences between these provisions are substantial, as emphasized by Judge Boasberg in a prior related case: The methodology prescribed by the SBRM Amendment . . . produces annual fishery-wide assessments of bycatch that benefit from high-quality data gathered over a long period of time. ACL monitoring, on the other hand, requires in- season bycatch reports that measure discards in near real time and therefore work with a larger amount of missing and unaudited data. ACL monitoring also requires more specific measurements that report bycatch for each stock by sector . . . rather than for the Fishery as a whole. Locke, 831 F.Supp.2d at 109 (citations omitted). Judge Boasberg therefore rejected the argument that these two provisions should be read as “one fused mandate,” id. at 108, and instead upheld NMFS’s interpretation that these provisions “impose ‘two distinct requirements’ on FMPs and serve ‘different purposes.’” id. at 109. 35 Further, the complexity of fishery management also “limits, as a practical matter, the universe of possible actions that must be considered.” Locke, 831 F.Supp.2d at 127 (citation omitted). Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 50 of 54 43 While bycatch counts against the ACLs for managed stocks, Plaintiff attempts to stretch the language of 16 U.S.C. § 1853(a)(11) far beyond its intended purpose. As Judge Boasberg explained in rejecting a similar argument, also raised by Plaintiff, “[w]hile, as a practical matter, the volume of a fishery’s total annual catch is inextricably linked to the amount of its bycatch, the statutory text does not require that FMPs include a bycatch-reporting methodology designed to do the work of monitoring and enforcing ACLs.” Locke, 831 F.Supp.2d at 108 (emphasis added) (also noting that the term “bycatch” does not appear in 16 U.S.C. § 1853(a)(15)). That is, nothing in the MSA requires the establishment of a standardized bycatch reporting methodology “for the purpose of ensuring accountability with ACLs.” Id.; see also id. at 109 (determining that “the [c]ourt cannot conclude, based on the statute’s text, that by requiring FMPs to ‘establish . . . measures to ensure accountability’ with annual catch limits, § (a)(15) implicitly requires that they also establish a bycatch-reporting methodology to help carry out this task”); cf. Pritzker, 26 F.Supp.3d at 48 (concurring, in context of framework adjustment, that “the CV requirement is not, in the grand scheme of things, all that determinative of whether the fishery meets its ACLs”) (citation omitted). The same reasoning should apply here. In developing the 2015 SBRM Amendment, the agency acknowledged the “monitoring needs of annual catch limits and accountability measures mandated by the [MSA].” AR 0007535. Specifically, in response to Plaintiff’s assertion that the standardized bycatch reporting methodology “must include” a “fishery-by-fishery discussion” of “the data needed to administer each fishery and its ACLs and AMs,” AR 0007140 (Plaintiff’s comments on draft amendment), NMFS drew a distinction between the MSA’s requirement for annual ACLs, “which are typically set for the whole stock at an annual level, and assessed after the conclusion of each fishing year,” and “the Councils’ prerogative to manage fisheries using smaller scale requirements such as sub ACLs for groundfish sector fisheries and other fisheries Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 51 of 54 44 that may trigger inseason management actions.” AR 0007535. With respect to the latter, the agency recognized that there may be “a need for more finely-tuned monitoring requirements in a particular fishery,” but also noted that any such “specific monitoring requirements . . . may be addressed outside of the SBRM with separate observer or monitoring requirements.” Id. For example, NMFS pointed out that the NEFMC created a sector at-sea monitoring program for its multispecies sector program to provide “additional monitoring coverage, beyond SBRM targets.” Id. Other FMPs provide for industry-funded observers to meet such additional monitoring goals. Id. “[U]nless a specific FMP has requirements for such additional monitoring,” however, NMFS concluded that the standardized bycatch reporting methodology in the 2015 SBRM Amendment is sufficient “to provide the estimated bycatch component of the total annual catch of a fishery that is used to monitor ACLs.” Id. The MSA requires nothing more of a standardized bycatch reporting methodology, and Plaintiff – tellingly – points to no legal authority to the contrary. In Locke, Judge Boasberg rejected Plaintiff’s efforts to compel NMFS “to develop one bycatch- reporting methodology capable of both satisfying § (a)(11) and monitoring compliance with the ACLs established in accordance with § (a)(15),” concluding that it was “not the [c]ourt’s role to impose such a policy approach on the [a]gency.” 831 F.Supp.2d at 109. This reasoning applies with equal force here. CONCLUSION For all these reasons, this Court should deny Plaintiff’s Motion for Summary Judgment and grant Defendants’ Cross-Motion for Summary Judgment. Dated: March 3, 2017 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General SETH M. BARSKY Section Chief S. JAY GOVINDAN Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 52 of 54 45 Assistant Section Chief /s/ H. Hubert Yang H. HUBERT YANG Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0209 Fax: (202) 305-0275 E-mail: hubert.yang@usdoj.gov Of Counsel: GENE S. MARTIN, JR. Section Chief NOAA General Counsel – Northeast Section Gloucester, MA Attorneys for Defendants Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 53 of 54 46 CERTIFICATE OF SERVICE I hereby certify that on March 3, 2017, I electronically filed the foregoing Memorandum in Support of Defendants’ Cross-Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the attorneys of record. /s/ H. Hubert Yang H. HUBERT YANG United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0209 Fax: (202) 305-0275 E-mail: hubert.yang@usdoj.gov Attorney for Defendants Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 54 of 54 EXHIBIT 1 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 1 of 46 Continued Assessment of an Electronic Monitoring System for Quantifying Atsea Halibut Discards in the Central Gulf of Alaska Rockfish Fishery EFP 0801 Final Report Prepared by Julie Bonney, Alan Kinsolving and Katy McGauley Alaska Groundfish Data Bank P.O. Box 788 Kodiak, A 99615 K September, 2009 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 2 of 46 EFP 08‐01 Final Report 2 Table of Contents In troduction ............................................................................................................................................................................................ 3 Background ........................................................................................................................................................................................ 3 Description of the Fishery ............................................................................................................................................................ 4 Catch Accounting in the Rockfish Fishery .............................................................................................................................. 4 Results of Phase I ............................................................................................................................................................................. 5 Goals of Phase II ................................................................................................................................................................................ 6 Me thods .................................................................................................................................................................................................... 7 Experimental fishing ....................................................................................................................................................................... 7 EM Equipment and Operations ............................................................................................................................................ 8 Re sults .................................................................................................................................................................................................... 10 EM System Performance ....................................................................................................................................................... 10 EM Data Review ............................................................................................................................................................................. 11 EM monitoring of discard events ........................................................................................................................................... 14 Data Summary and Review ....................................................................................................................................................... 14 At‐sea census vs. EM reviewer: halibut weight and count comparisons by haul ............................................... 16 Halibut self‐reporting .................................................................................................................................................................. 18 EM data transit and delivery timelines ................................................................................................................................ 19 Costs ................................................................................................................................................................................................... 22 Cost Projections ............................................................................................................................................................................. 25 Di scussion ............................................................................................................................................................................................. 29 System Performance and Quality of EM Data .................................................................................................................... 29 Halibut Self‐Reporting ................................................................................................................................................................ 30 Data Turn‐around and Integration with the NMFS Catch Accounting System .................................................... 30 EM Costs and Economies of Scale ........................................................................................................................................... 30 Future Research ............................................................................................................................................................................. 32 Works Cited .......................................................................................................................................................................................... 33 Acknowledgements ........................................................................................................................................................................... 34 r a possible framework for EM Implementatio APPENDIX I – A Proposal by Industry fo n in the RPP ........... 35 APPENDIX II – EM System Description (Courtesy of Archipelago Marine Research, Ltd.) .................................... 41 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 3 of 46 EFP 08‐01 Final Report 3 Introduction During 2007, a pilot study was conducted to determine whether electronic monitoring (EM) could be used to improve estimation of halibut discard in the Central Gulf of Alaska rockfish fishery (the Phase I study)( Bonney and McGauley, 2008). Based on results from a single vessel in an experimental setting, the study indicated that EM had the potential to produce more reliable and precise estimates of halibut discard when compared to current observer sampling methodologies. However, the study stressed that performance of an EM system in a commercial setting could be quite different and recommended further research into its broader utility. Specifically, the pilot study was unable to: • ; reasonably assess the costs associated with large scale EM under different regulatory scenarios • determine the extent to which different vessel configurations, sizes and fishing methods would impact the practicability of EM; • investigate the flow of data from an EM system at‐sea to data available for the management of actual quotas; • investigate the extent to which vessel crew would cooperate with the required halibut discard only policy necessary for accurate halibut accounting. In order to more fully answer these implementation questions, the Alaska Groundfish Data Bank (AGDB) in cooperation with staff from NMFS, developed a second phase project to qualitatively investigate these outstanding pre‐implementation questions. Background Amendment 68 to the Fishery Management Plan for the Groundfish of the Gulf of Alaska (FMP) established a rockfish pilot program (RPP) for quota‐based management of the rockfish fisheries in the Central Gulf. Under the shoreside component of this program, catcher vessels with historic participation in the rockfish fisheries may form cooperatives. Each cooperative is allocated a share of the total allowable catch (TAC) for various rockfish species, sablefish and Pacific cod. The cooperatives are also allocated a limit of halibut prohibited species catch (PSC) to allow the prosecution of the quota fisheries. Under the program, all quota species must be retained by the vessel and delivered to a shoreside processor where they are weighed and debited from the cooperative’s quota. Halibut PSC, however, must be discarded at‐sea. At this time, halibut can only be effectively accounted against the cooperative’s PSC limit if there is an observer onboard to estimate the amount of halibut catch in each haul. When Amendment 68 was implemented, observer coverage for the participating catcher vessel fleet was increased from 30% to 100%. This increase was necessary to ensure that all quota species were retained and to allow for trip‐specific estimation of halibut bycatch. RPP participants are concerned about the cost increase for observer coverage relative to the expected increase in revenues from the rockfish fishery. They are also concerned with the precision of halibut bycatch estimates based on present North Pacific Observer Program sampling methods which were not designed for estimating haul‐specific catches of rare species such as halibut on individual vessels. While this issue was identified in the Environmental Assessment developed prior to implementation of the RPP (NMFS 2006), no better method for estimating halibut bycatch was available and the program was developed with reliance upon standard observer sampling protocols. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 4 of 46 EFP 08‐01 Final Report 4 Description of the Fishery Traditionally, the rockfish catcher vessel fishery took place in early July when the trawl fisheries were opened. Though all trawl fisheries opened at the same time, effort was focused on the Pacific Ocean Perch (POP) fishery, which generally closed after approximately one week. Following this closure, most vessels shifted effort into the northern rockfish fishery which normally closed about two weeks later. The rapid pace of the fishery created economic inefficiencies that reduced the value of the delivered rockfish. In response to these inefficiencies, congress granted NMFS specific statutory authority to manage Central GOA rockfish fisheries in Section 802 of the Consolidated Appropriations Act of 2004. This section required the North Pacific Fishery Management Council to establish a pilot rationalization program that recognized the historical participation of rockfish participants (the RPP). NMFS published a Final Rule implementing this program in November of 2006 (71 FR 67210). In brief, the shoreside component of this program allows catcher vessels with historic participation in the rockfish fishery to form cooperatives around a processor that has a history of taking rockfish deliveries. Based on the amount of rockfish harvested by coop vessels during the qualifying years, the cooperative is then given a fraction of the allowable catch for primary rockfish species (POP, Northern rockfish and pelagic shelf rockfish) and secondary species (sablefish, Pacific cod, rougheye rockfish, shortraker rockfish, and thornyhead rockfish). Additionally, each cooperative is given an allocation of halibut mortality proportional to the rockfish quotas which may not be retained on board the vessel and must be discarded at sea. Vessels belonging to the cooperative are allowed to harvest species managed under the program between May 1 and November 15. Vessels fishing for primary and secondary species incidentally catch halibut. The amount of halibut caught varies depending on the gear used, the species targeted, and the location fished. In general, vessels targeting POP or using midwater gear will catch less halibut than vessels targeting northern rockfish or using bottom contact gear. Under the RPP, cooperatives and the vessels that fish for them have a strong incentive to reduce halibut bycatch to the extent that not doing so may limit their full harvest of primary and secondary species. Because of this incentive, vessels targeting POP have switched to almost exclusive use of midwater nets and bycatch rates for halibut have been very low. However, some level of halibut bycatch is unavoidable, especially when a vessel is targeting those species, such as northern rockfish, that live near the bottom in close association with halibut. Catch Accounting in the Rockfish Fishery Most catcher vessels participating in the rockfish fishery prior to rationalization were required to carry an observer 30% of the time, and NMFS accounted for catch in the fishery using two primary data sources: observer data when available from observed trips, and landings data submitted by processors receiving the catch. These data were sufficient for managing a “limited access” type fishery, but were inadequate for monitoring a quota fishery where catch of all quota species is allocated to an entity (one or more cooperatives). In order to manage a quota based rockfish fishery, NMFS implemented new catch accounting procedures. Quota species (primary as well as secondary) may not be discarded at sea and are accounted for on a delivery by delivery basis at the time of each offload. Halibut PSC however, may not be retained on board the vessel so it is not possible to account for halibut at the time of delivery and it must be accounted for at‐sea. Under the regulations implementing the RPP, NMFS increased observer coverage requirements for catcher vessels from 30% to 100%. There were two primary reasons for this increase. First, without at‐sea observer coverage, it is not possible to account for halibut PSC on Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 5 of 46 EFP 08‐01 Final Report 5 unobserved trips without using halibut rates from other vessels; which would make quota holders effectively responsible for the fishing behavior of other quota holders. Second, it is not be possible to ensure that less valuable or limiting quota species are not being discarded at‐sea. NMFS uses shoreside data to manage the quotas of all rockfish and secondary species, but uses at‐sea estimates made by observers to manage halibut PSC. In general, at‐sea estimation of species composition, and estimation of halibut bycatch specifically, is problematic. When a codend comes on board, the observer on a rockfish trawl catcher vessel estimates the volume of fish in the net. The observer then takes a density sample to estimate the weight of fish per unit volume and multiplies the two estimates to obtain an estimate of the total catch. If conditions do not allow an observer to obtain a volumetric estimate, then the captain’s hail weight is used to estimate official total catch. Using a random sampling methodology, the observer obtains a sample of approximately 300 kg of fish. Fish within the sample are identified to species and weighed. This sample is then expanded by the estimated weight of the haul to give an estimate of the weight of each species in the haul. Because the observer cannot work 24 hours a day, not all hauls are sampled. When it is not possible for an observer to sample a given haul, the species composition estimate from other hauls is applied to the unsampled haul and expanded based on the skipper’s hail weight for the unsampled haul. There are several potential sources of imprecision in this methodology. First, the estimation of the volume of fish in a net is imprecise. Second, the observer must estimate the weight of their sample as well as the weight of the individual species using fairly simple scales that are neither as precise nor as accurate as the electronic scales that are used to weigh catch shoreside. Third, the average tow in the rockfish fishery is approximately 13 mt, so less than 2% is actually sampled. Fourth, not all hauls can be sampled. Because halibut is a comparatively rare species, the estimate of species composition is especially imprecise at the haul level though it may be accurate when the estimates are aggregated across deliveries, vessels and the season. Results of Phase I Phase I of this EM study (Bonney and McGauley, 2007; McElderry et al, 2007; Haist, 2007) focused on the feasibility of using EM in the RPP and the accuracy and precision of video‐based estimates of halibut discards. The study took place on the F/V Sea Mac and had two primary goals: (1) determine whether EM could monitor for 100% retention of non‐halibut catch using two overview video cameras; (2) determine the accuracy and precision of EM estimates of halibut length and number when compared against an actual census of halibut discard. Secondarily, halibut bycatch was also estimated using and this estimate was compared against the EM and census data. standard observer methodology The results of Phase I indicated: • There was no statistically significant bias in the EM or observer estimate of halibut length or number when compared against a census. • f The precision of the observer estimate of halibut bycatch was low compared to the EM estimate o halibut discard. • EM was able to monitor for discard other than through the marked discard chute. However, the EM system could not monitor for discard behind the stern (net bleeding). Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 6 of 46 EFP 08‐01 Final Report 6 • the The exclusion of unclear images of halibut from the EM system did not significantly improve accuracy or precision of the estimate of halibut discard. • There was no apparent difference in the accuracy of EM measurement based on time of day (ambient light condition), number of halibut per haul, or reviewer‐perceived image quality. • The EM system was reliable and no significant data were lost as a result of equipment failure. It should be noted that this was an experimental study with 3 project staff on board to monitor adherence to the project design and sampling protocols. This included ensuring a thorough sorting of halibut from the catch, and discarding those halibut through the single point of discard (across the measurement grid) in a manner that facilitated subsequent shoreside video review (i.e. discarded singly at a reasonable pace and in a unidirectional, tidy manner). Crew and skipper cooperation were high and the vessel was an ideal platform for the study. At 90’ LOA with a 33’ beam, the vessel had ample space for the discard chute and obstruction of the camera views was not an issue. Phase I concluded that applying EM at the co‐op level would require the vessels electing to participate to cooperate fully and comply with the EM system requirements: (1) install a secure and well‐marked discard chute of suitable size (at least 3 feet long and 1.5 feet wide); (2) limit all at‐sea discards to this single point of discard; (3) discard halibut at a reasonable pace in a manner that would facilitate the subsequent video review; (4) if necessary, make structural adjustments for camera and sensor installation. Goals of Phase II Phase I demonstrated on a quantitative level that EM was a viable method for generating sufficiently accurate and precise haul‐level estimates of halibut discard under comparatively controlled conditions. However, prior to considering actual large‐scale implementation, we believed that it was important to further investigate the use of EM under real‐world conditions and to explore the regulatory, cost, fleet management, catch accounting, and infrastructural issues that need to be addressed prior to effective implementation. Phase II was envisioned as a primarily qualitative project designed to test larger scale implementation in a real world environment and to inform industry, Council and NMFS staff on how best to implement a cutting‐edge program with many regulatory unknowns. The use of an EFP for pre‐ regulatory implementation of an EM program is not new. Beginning with a pilot study in 2002 (McElderry et al, 2002) and expanding to the entire fleet in 2004, EM has been used to monitor discard in the West coast hake fishery under an EFP. This has allowed the development of a more effective monitoring program as knowledge of EM systems has accrued over the years. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 7 of 46 EFP 08‐01 Final Report 7 Sp ificec goals for the phase II study were to: 1. Determine the time lags between vessel arrival in Kodiak and data available to quota managers under different scenarios (analysis of the data in Kodiak vs. analysis of the data in an off‐site location). 2. Investigate the development of NMFS catch accounting data base infrastructure for handling EM data and linking EM data to the source delivery. 3. Determine whether EM systems can be effectively deployed on a wider variety of vessels fishing under real world conditions. 4. More fully assess the costs associated with various components of an EM program (equipment, support, and analysis). no 5. Assess the qualitative effectiveness of EM for quantifying halibut and ensuring compliance with discard rules. . Determine whether vessel self reporting could be used to acquire halibut discard numbers for preliminary management by the co‐op. 6 Methods Experimental fishing The project took place during the entire 2008 RPP fishing season and involved all of the vessels fishing for a single RPP co‐op. Based on funding constraints, we decided that the fishing co‐operative best suited to participate in the project would have 3 ‐5 member vessels, which limited the choice of RPP co‐ops to either the North Pacific (NP) Fisheries Rockfish Co‐op with 3 active member vessels or the Ocean Beauty Seafoods, Inc (OBSI) Rockfish Co‐op with 4 active RPP participants. NP declined to participate because their processing plant (Alaska Pacific Seafoods in Kodiak) was scheduled to undergo major renovations and would not be ready to accept harvests until well after the start of the season. The OBSI members consulted with each other and agreed to participate in the EFP and to comply with the permit’s requirements. The four participating Kodiak‐based catcher vessels are listed in . Table 1 Table 1. OBSI Co‐op vessels participating in the EM Phase II EFP project. Vessel Length (ft.) Beam (ft.) Excalibur II 92 30 Pacific Star 79 31.5 Laura 92 24.5 New Life 80 27 Vessels fishing under the EFP agreed to retain all catch with the exception of halibut which were to be sorted and discarded at sea. All halibut were to be discarded at a single location, and crew members were instructed to discard them one at a time across the discard chute. The discard chute was pre‐marked with a measurements grid 5 cm wide bars spaced 5 cm apart, and shunted the halibut into a scupper area where halibut could be discharged overboard. Figure 1 depicts the 4 styles constructed and utilized by the co‐op vessels. Under the conditions of the EFP, participants were exempted from the 100% observer coverage requirements and maximum retainable allowances (MRA’s). The four vessels were subject to 30% Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 8 of 46 observer coverage with the added precondition that an observer be onboard for all sablefish and Pacific cod target trips. Figure 1. Clockwise from upper left, halibut discard chutes on the F/V Laura, F/V Pacific Star, F/V Excalibur II and the F/V New Life. The vessel operators voluntarily agreed to complete halibut tally sheets. They were requested to tally iscarded halibut by size category (>24 inches, 24‐32 inches, >32 inches) and to submit the tally sheets to d AGDB after each trip. Project personnel conducted two calibration trips per vessel. During these trips, project staff observed the discard practices of the crew and measured the halibut in consecutive order of discard to allow for direct comparisons to the length estimates generated by the video reviewers. The trip totals (based on M estimates plus the weights of the halibut landed at the processing plant) were also compared to the E observer’s total trip estimates of halibut weight posted on the NMFS Co‐op ledger website. roject staff kept note of all trip departure dates, times and dates of vessel arrival, hard drive retrieval, ransmission of sensor and video files to Archipelago, and receipt of final EM data. P t EFP 08‐01 Final Report 8 EM Equipment and Operations Archipelago Marine Research, Ltd. (AMR) of Victoria, B.C., was contracted for the installation and maintenance of EM equipment and for video review. This company has extensive experience in electronic monitoring of fisheries in Canada and around the world (AFSC, 2008). For this project, Archipelago provided and installed the four EM systems, each of which consisted of three closed circuit television cameras, a GPS receiver, a hydraulic pressure sensor, a winch/drum sensor, a system control box, hard drives and a user interface (monitor and keyboard) (Appendix I, EM System Description). Archipelago technicians travelled to Kodiak prior to the start of the RPP season to install the systems on all four vessels and, when required, returned to Kodiak for equipment repair, system troubleshooting and gear re‐installation or removal. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 9 of 46 The data recording configuration recorded imagery 100% of the time, starting once the vessel left port. Image recording rates were set to eight frames per second (fps) for the close‐up of the discard chute (camera 1, Figure 2), three and two fps for the deck and stern view cameras (cameras 2 and 3, respectively, Figure 3). Winch and pressure (hydraulics) sensor data were recorded 100% of the time while the EM system was powered. F igure 2. Clockwise from upper left, video snapshots (from camera 1) of halibut discards on the Laura, Pacific Star Excalibur II and New Life. EFP 08‐01 Final Report 9 F igure 3. Example of overview (left) and stern view (right) camera angles. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 10 of 46 EFP 08‐01 Final Report 10 Upon arrival in Kodiak after each RPP trip, the vessel operator was instructed to inform project staff that the vessel had arrived in port. Staff then met the boat at the dock to: ascertain that the equipment had functioned properly during the trip; switch out the hard drive to ready the vessel for a subsequent fishing trip; and collect halibut tally sheets. The video files were then previewed for completeness; video and sensor data files were archived to a portable external hard drive; and staff emailed the sensor data (GPS, hydraulic and winch rotation) to Archipelago. Hard drives containing accumulated video files were shipped to Archipelago via the U.S. Postal Service or Federal Express for data review on an as‐needed basis. Archipelago’s staff in Victoria, B.C. analyzed the video data files upon receipt of the hard drives in Victoria or, on occasion, in Kodiak if a video analyst happened to be in port. Sensor data were analyzed to interpret the eographic position of fishing operations and to detect and describe key vessel activities including transit, g setting and retrieval of gear. The objectives of image interpretation were to first assess whether all the intended imagery was recorded properly, then to analyze the video files for 100% retention and to estimate the length of each halibut discarded across the measurement grid painted on the discard chute. All video files were analyzed by a single EM reviewer. Results EM System Performance The four EM systems collected video and sensor data over the course of the season, from the start of Excalibur’s first trip on May 8 to the end of the New Life’s last trip on September 26. All four systems were installed in May prior to the start of the season. The equipment was removed from the Excalibur II on June 3rd (the vessel went fishing in the Bering Sea) and re‐installed on August 18th. The final gear removal for the Excalibur II occurred on August 26th. The system remained on the other vessels until the nd of their respective seasons. The systems were removed from these vessels on July 13th (Pacific Star), e July 21st (Laura), and September 27th (New Life). There were several EM system malfunctions over the season (Table 2): • Excalibur II Trip 1. May 7th. Runtime error occurred before the vessel left the dock. The hard drive was replaced and the system appeared to working properly, but it failed again just before the vessel arrived on the fishing grounds on May 8th. The skipper called an EM technician from sea and together they attempted to troubleshoot the problem, but were ultimately unable to do so. All files from Trip 1 were corrupted and could not be recovered (3 hauls). A technician travelled to e Kodiak on May 13: he replaced the V4 computer system box and installed a port‐appropriat version of the operating software. No further problems were encountered. • Pacific Star Trip 3. May 29th. Runtime error. The hard drive from trip 3 was corrupted but Archipelago was able to recover data from hauls 1‐7; data from hauls 8‐15 were lost. An r th ck Archipelago technician ar ived in Kodiak on May 30 and replaced the hard drive. A system che confirmed that everything was working properly. • Pacific Star Trip 4. June 4th. The system shut down again during trip 4 on June 4th while at sea. Archipelago was able to recover hauls 1‐5 of the 6 hauls from the corrupted hard drive. An AMR Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 11 of 46 EFP 08‐01 Final Report 11 technician arrived in Kodiak on June 19 : she replaced the V4 system box and winch senso further problems. • th th r. No Laura Trip 2. June 12 . System shutdown before last haul. Hauls 1‐9 of the 10 hauls were recovered from the corrupted hard drive. System appeared OK after re‐initialization. • Laura Trip 3. June 15th. System shut down when the GPS feed stopped prior to vessel arriving on the fishing grounds. Problems from both trip 2 and 3 likely due to a short from the drum sensor because of a wire rubbing against the drum. No data for the 16 hauls. An AMR technician arrived thin Kodiak on June 19 and replaced the V4 system box, GPS unit, winch/drum sensor and power cord. No further problems. • New Life. Faulty drum sensor. This sensor never functioned and was not replaced because it was from not considered to be a priority for the project. Set and retrieval information was obtained the pressure/hydraulic sensor. • New Life Trip 6. Unexplained camera 3 failure during hauls 2 and 3. No further problems. Table 2. Total number of RPP trips and hauls by OBSI co‐op vessel. Vessel RPP start fishing date RPP end fishing date Total fishing and transit days Total no. 2008 RPP Trips Total no. RPP Hauls No. hauls lost due to EM equipment failure Failure Rate Excalibur II 5/8/2008 8/23/2008 17 5 20 3 15.00% Pacific Star 5/16/2008 7/10/2008 19 6 46 9 19.57% Laura 6/6/2008 6/28/2008 18 6 39 17 43.59% New Life 6/9/2008 9/26/2008 50 17 72 0 0.00% Total 104 34 177 29 16.38% The technical problems all occurred within the first 6 weeks of the season and, except for the New Life drum sensor and camera 3 failures, all were related to the system control box (“V4 box”). The problems ere all resolved when the older, well‐used rental boxes were replaced with the newer model boxes and he operating software was updated. w t EM Data Review All uncorrupted video files were successfully reviewed by Archipelago staff in Victoria, B.C. However, the EM reviewers did note that they had difficulty estimating the lengths of numerous halibut, particularly those on the Laura and New Life ( ), mostly due to camera view obstruction by crew members. The crew and discard chute on the Pacific Star clearly performed the best, although this manner of discard is a bit more labor‐intensive. The discard chute ( ) was well out of the way of the sorting area and the crew placed each halibut on the grid with the head positioned against a wooden barrier at the top of the grid (as one would do on a measuring board) for ease of measurement before rotating and sliding the fish into the scupper area and overboard ( ). The discard chute on the Excalibur II also did not impede traffic or cause camera view obstructions and halibut was discarded as on the Sea Mac during Phase I. On the Laura, one crew member was assigned the task of tallying the halibut: she frequently used the bottom portion of the grid on the discard chute to obtain a length before discarding the halibut over the side or Table 3 Figure 1 Figure 2 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 12 of 46 EFP 08‐01 Final Report 12 letting the halibut slide the very short distance to the scupper and so often inadvertently blocked the camera view ( ). Sliding the fish from the upper portion of the chute would have given the video reviewer more opportunities to obtain a quality length estimate. The New Life had the poorest performance: in haul 1, trip 13, 87 of the 99 estimates contained the reviewer remark “fisherman in the way”. Camera view obstruction was clearly an issue on this vessel – almost entirely due to the crew getting halibut measurements for the project ( ) (an unintended consequence of the study) and, possibly, in part, to the style of the New Life’s discard chute ( ). Unlike those on the other vessels, the New Life’s chute was not raised off the deck – it was a piece of removable laminated plywood positioned flat on the deck (or, at times, leaned up against a tote, ) leading from the trawl alley all to the scupper. It proved to be in an area of high traffic volume and was frequently moved aside so he crew could access the RSW hatch which was directly underneath. Figure 2 Figure 2 Figure 1 Figure 4 w t Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 13 of 46 Table 3. The number of "difficult" estimates and sample comments for each of the four OBSI Co‐op vessels. Pacific Star 1 out 176 length estimates classified as “difficult” (0.57%) difficulty getting length Excalibur II 15 out of 129 difficult (11.6%) Fish not flat on grid Fish head and tail not laying flat on grid ‐ very much a guess. Fish sideways on grid Laura 106 out of 585 difficult (18.1%) Observer blocking view. Very rough estimate hard to determine the size very hard to determine the size Fish is slid down grid. Difficult to get an accurate measurement Observer blocking view. Very rough estimate as viewer could not see fish at all. Fish bent on grid Fish head blocked by rail. Fish not flat on grid fish sideways on grid Fish partially out of camera view fish head blocked by rail New Life 140 out of 324 difficult (43.2%) 87 “fisherman in the way “ comments for haul 1, Trip 13 (99 total halibut). See figure 2. very rough estimate fish is perpendicular to the lines Estimate: observer blocking view of fish. Fish not put on grid or measured by observer before being kicked out scupper. This is a guess of the size. halibut was on an angle Fisherman foot in the way. fisherman in the way. VERY FOGGY lens. planks in the way bucket in the way. fisherman in the way and fish on an angle. Tot "difficult": 262 out of 1,214 estimates (21.6%) EFP 08‐01 Final Report 13 Figure 4. Halibut discard on F/V New Life. The chute has been moved from deck level and propped up against a tote. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 14 of 46 EFP 08‐01 Final Report 14 EM monitoring of discard events The participating vessels were required to retain all groundfish in accordance with the conditions of the EFP. During review, 7 discard events were detected on the video files collected over the course of the project ( ): all involved discards of lingcod, except for one flatfish from haul one on Laura trip 6 and one halibut that was discarded from the New Life on trip 11 (haul 3) without having passed across the discard chute. Note that the video reviewer did record a guesstimate for this halibut. The crew roperly discarded 103 halibut from this haul and no other improper discards were detected. There were Table 4 p no non‐halibut discards from the Pacific Star or Excalibur II. Lingcod became an issue when the New Life (trip 3), abiding by the 100% retention requirement, delivered lingcod to the processor in Kodiak on June 19th. Lingcod are managed by the State of Alaska and retention is prohibited prior to July1st with a 3% MRA after July 1. After consultation with ADF&G and NMFS, the vessels were instructed to discard any further lingcod bycatch in excess of State retention allowances. Table 4. Discard events detected by EM reviewer by vessel, trip and haul. Vessel Discard Event Vessel Discard Event New Life Laura NL4 haul 1 ~200 Lingcod LA5 haul 4 4 Lingcod NL6 haul 1 11 Lingcod LA6 haul 1 1 flatfish and 8 Lingcod NL7 haul 1 41 Lingcod NL7 haul 2 9 Lingcod NL11 haul 3 1 unmeasured halibut Data Summary and Review The halibut data collected over the course of the project from EM, vessel tally sheets, plant deliveries and observer data are summarized by trip in . Sixty percent of trips were observed. For observed trips, he observer estimate and the NMFS estimate are the same. For unobserved trips, NMFS uses the best Table 5 t available data from other observed vessels to estimate halibut bycatch. As noted above, NMFS continued to use observer data for debiting halibut PSC from quota accounts during this project. Because observer coverage was decreased for participating vessels, observer estimates of halibut bycatch were expanded to cover unobserved trips; which increased the extent to which observer samples were expanded to estimate halibut bycatch. Because observer coverage was not randomly distributed across project trips, and because this project was not designed to compare the accuracy and precision of current observer sampling methodologies (an issue addressed during the Phase I study (Bonney and McGauley, 2007; Haist, 2007)), no attempt was made to compare observer catch estimates with EM. While a qualitative comparison of the NMFS estimate and the EM estimate shows far lower apparent catch using standard NMFS methodologies, there is no indication that this difference is statistically significant. Nor is there any indication that these differences are reflective of NMFS estimates during the regular (i.e. 100% coverage) fishery. However, because observer data were collected and NMFS used those data to debit quota accounts, those data were reported for reference purposes. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 15 of 46 EFP 08‐01 Final Report 15 Table 5. Halibut data collected during Phase II by source, vessel and trip. EM At‐sea Tally Plant Observer estimate1 NMFS estimate2 Delivery Date Trip No. Kg. No. Kg. No. Kg. Kg. 19‐May PS1 7 27.7 7 25.2 0 0.0 ‐‐‐‐ 138. 22‐May PS23 15 80.1 15 79.4 11 17.9 ‐‐‐‐ 360.6 29‐May PS34 17 204.7 88 481.5 8 43.1 0.0 0.0 5‐Jun PS43,4 40 302.3 56 367.9 7 58.1 ‐‐‐‐ 41.2 6‐Jul PS5 48 499.1 53 336.9 0 0.0 494.2 494.2 10‐Jul PS6 49 557.8 46 327.5 0 0.0 167.4 167.4 Pac Star Total 176 1,671.7 265 1,618.4 26 119.0 1,101.5 10‐May EX14 no data: system failure 30 53.4 21 80.3 ‐‐‐‐ 71.4 18‐May EX23 0 0.0 0 0.0 1 3.6 0.0 0.0 20‐May EX3 0 0.0 0 0.0 0 0.0 0.0 0.0 30‐May EX4 55 547.3 42 203.1 82 545.2 ‐‐‐‐ 75.7 23‐Aug EX53 74 605.5 76 512.2 0 0.0 516.1 516.1 Ex II total 129 1,152.8 148 768.72 104 629.1 663.2 9‐Jun LA13 13 117.5 13 86.7 3 13.6 138.4 138.4 13‐Jun LA24 130 949.1 139 849.2 39 299.8 ‐‐‐‐ 264.6 18‐Jun LA34 no data: system failure 51 324.5 3 18.1 ‐‐‐‐ 74.2 22‐Jun LA43 397 565.9 398 565.0 1 1.4 0.0 0.0 27‐Jun LA5 26 44.7 35 52.2 0 0.0 ‐‐‐‐ 205.9 28‐Jun LA6 19 35.5 22 42.7 0 0.0 0.0 0.0 Laura total 585 1,712.7 658 1920.28 46 332.9 683.0 12‐Jun NL1 4 78.1 5 44.9 1 4.5 0.0 0.0 16‐Jun NL2 3 16.9 3 14.3 4 31.3 0.0 0.0 19‐Jun NL3 6 25.7 6 23.6 6 35.8 0.0 0.0 23‐Jun NL4 0 0.0 0 0.0 0 0.0 ‐‐‐‐ 42.6 26‐Jun NL5 1 10.0 1 9.0 0 0.0 ‐‐‐‐ 15.5 28‐Jun NL6 27 31.3 25 36.1 0 0.0 0.0 0.0 1‐Jul NL7 43 88.4 44 69.5 0 0.0 0.0 0.0 4‐Jul NL8 0 0.0 0 0.0 0 0.0 0.0 0.0 7‐Jul NL9 3 30.8 4 25.9 0 0.0 0.0 0.0 10‐Jul NL10 0 0.0 0 0.0 0 0.0 ‐‐‐‐ 20.9 14‐Jul NL11 103 1,193.2 102 735.1 2 5.4 100.2 100.2 17‐Jul NL123 35 399.7 36 288.3 0 0.0 ‐‐‐‐ 71.6 21‐Jul NL13 99 972.3 100 708.0 0 0.0 400.2 400.2 23‐Jul NL143 0 0.0 0 0.0 0 0.0 0.0 0.0 22‐Sep NL15 0 0.0 0 0.0 2 15.0 0.0 0.0 24‐Sep NL16 0 0.0 0 0.0 0 0.0 0.0 0.0 27‐Sep NL17 0 0.0 0 0.0 0 0.0 0.0 0.0 New Life Total 324 2846.4 326 8 16 107.1 651.9 Grand Total 1,214 7,383.5 1,397 6,262 192 1,188 3,099 1. Observer estimate is only provided for observed trips. 2. NMFS accounting system estimate based on expanded observer data. This was the amount of halibut PSC that was debited from the co‐ g this project, when an observer was not on board, the PSC estimate was derived from PSC catch observed on hery. op’s PSC limit. Durin other vessels participating in the RPP fis . Denote census trips. . Trips with EM equipment malfunctions. 3 4 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 16 of 46 At‐sea census vs. EM reviewer: halibut weight and count comparisons by haul summarizes the halibut data collected on the at‐sea “census” trips by project personnel and the associated EM values generated for those hauls. Haul 6 from Pacific Star trip 6 was dropped for lack of M data (corrupted hard drive). Excalibur II trip 2 and New Life trip 14 were census trips with zero Table 6 E halibut bycatch and are not shown in Table 6. EM errors were calculated as proportional differences ((EMcensus)/census)). The error in the EM weight estimates on the haul level ranged from ‐31% to 37% and the error in count estimate ranged from ‐7% to 25%, with means of 5% and <1% respectively. Using the same methodology as Phase I (two tailed t‐test, ( )0.05α = ), the null hypothesis that the mean errors are equal to zero is not rejected for either weight or count across hauls. The standard deviations of the errors in the EM halibut biomass and count estimates provide an indication of the expected precision of EM estimation. On a haul basis, the standard deviation of the error in biomass estimation was 15%, which was comparable to that obtained during phase I (11.9% and 5.6% or the two reviewers). The standard deviation of the error in count estimation was 5.3%, which was also omparable to Phase I (5.3% and 1.3% for the two reviewers). f c EFP 08‐01 Final Report 16 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 17 of 46 EFP 08‐01 Final Report 17 Table 6. Halibut numbers and weights from at‐sea census and EM by haul. EM errors are calculated as proportional differences ((EM‐census)/census). At‐sea Census EM Error Trip Haul No. Kg. No. Kg. No. Kg. EX5 1 22 105.3 22 118.8 0.00 0.13 EX5 2 1 13.1 1 13.9 0.00 0.07 EX5 3 17 161.7 17 169.2 0.00 0.05 EX5 4 36 310.1 34 303.5 ‐0.06 ‐0.02 LA1 1 3 30.5 3 32.8 0.00 0.08 LA1 2 0 0.0 0 0.0 LA1 3 7 50.3 7 57.2 0.00 0.14 LA1 4 0 0.0 0 0.0 LA1 5 0 0.0 0 0.0 LA1 6 3 24.0 3 27.6 0.00 0.15 LA1 7 0 0.0 0 0.0 LA4 1 6 14.5 6 20.0 0.00 0.38 LA4 2 392 444.4 391 545.9 0.00 0.23 LA4 3 0 0.0 0 0.0 LA4 4 0 0.0 0 0.0 NL12 1 1 9.0 1 10.7 0.00 0.19 NL12 3 4 42.3 4 49.6 0.00 0.17 NL12 4 1 18.2 1 22.8 0.00 0.25 NL12 6 13 138.3 12 156.4 ‐0.08 0.13 NL12 7 17 145.7 17 160.1 0.00 0.10 PS2 1 4 22.4 4 22.6 0.00 0.01 PS2 2 1 6.6 1 6.6 0.00 0.00 PS2 3 7 35.1 7 35.4 0.00 0.01 PS2 4 0 0.0 0 0.0 PS2 5 1 5.7 1 6.1 0.00 0.08 PS2 6 1 4.8 1 4.8 0.00 0.00 PS2 7 1 4.6 1 4.6 0.00 0.00 PS4 1 4 39.0 5 43.7 0.25 0.12 PS4 2 5 68.4 5 47.1 0.00 ‐0.31 PS4 3 7 92.7 7 70.8 0.00 ‐0.24 PS4 4 10 80.5 10 61.9 0.00 ‐0.23 PS4 5 13 91.0 13 78.8 0.00 ‐0.13 Total All hauls 577 1957.75 574 2070.92 Mean over hauls 0.005 0.054 Standard Deviation 0.053 0.154 p‐value 0.68 0.10 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 18 of 46 EFP 08‐01 Final Report 18 Halibut self‐reporting All four vessel operators submitted a completed halibut tally sheet at the end of each RPP trip. Three of the vessels tallied the halibut by size category (<24 inches, 24 to 32 inches, >32 inches); one vessel (New Life) actually had the crew measure (in inches) each halibut before discard. We then assigned all of the EM generated halibut lengths to the same size categories and eliminated those trips where EM technical problems were encountered or no halibut were reported by EM or skipper’s tally. These data are ummarized in Table 7. Skipper tally errors were calculated as proportional differences ((skipper tallys EM)/EM)) for the total counts. In this case, the question was not whether tally sheets are an accurate reflection of actual halibut discard, but whether they can be used for as a proxy for EM for interim management by a co‐op manager. Thus, we did not seek to determine whether the skipper’s estimates were correct per se, but simply how they compared to the EM estimates. Because vessel tally sheets are not contemplated for management use at the haul level, these data were examined only at the trip level. The error in the tally sheet count estimate when compared to the EM estimate ranged from ‐24% to 25%, with a mean of 5%. Using the same ethodology as Phase I, the null hypothesis that the mean errors in count are equal to zero, cannot be m rejected. Examining the extent of agreement in classification between skipper tallies and EM was problematic on a trip by trip level because of disagreements in count. For the entire project, skipper tallies underestimated he number of large halibut by approximately 10%, underestimated the number of medium halibut by %, and overestimated the number of small halibut by 11%. t 8 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 19 of 46 EFP 08‐01 Final Report 19 Table 7. Comparison between vessel‐reported halibut catch and EM. Count errors for skipper tallies are calculated as proportional ifferences ((skipper tally‐EM)/EM). Vessel crew reported halibut discard by category, small = <24 inches, medium=24‐32 inches, rge=>32 inches. EM lengths were converted to the same categories based on reviewer recorded lengths in cm. d la EM Skipper Tally Count trip L m s Total L m s Total Error L1 10 3 0 13 7 6 0 13 0.00 L4 1 23 373 397 0 12 386 398 0.00 L5 0 4 22 26 0 2 33 35 0.35 L6 0 4 15 19 0 5 17 22 0.16 N01 4 0 0 4 5 0 0 5 0.25 n02 1 2 0 3 1 1 1 3 0.00 n03 1 4 1 6 1 3 2 6 0.00 N05 1 0 0 1 1 0 0 1 0.00 N06 0 0 27 27 0 1 24 25 ‐0.07 N07 1 10 32 43 0 4 40 44 0.02 N09 2 1 0 3 2 2 0 4 0.33 N11 69 32 2 103 69 27 6 102 ‐0.01 N12 31 4 0 35 29 7 0 36 0.03 N13 71 27 1 99 62 38 0 100 0.01 PS1 0 6 1 7 0 6 1 7 0.00 PS2 3 10 2 15 5 8 2 15 0.00 PS5 29 14 5 48 31 11 11 53 0.10 PS6 36 10 3 49 31 11 4 46 ‐0.06 X4 28 25 2 55 13 18 11 42 ‐0.24 X5 43 30 1 74 43 31 2 76 0.03 Total 331 209 487 1027 300 193 540 1033 Mean over trips 0.05 Standard deviation 0.137 p‐value 0.16 EM data transit and delivery timelines Transit times for shipping the full hard drives to AMR in Victoria, B.C. from Kodiak ranged from 1‐3 days using Federal Express international priory or economy (~$80) and 4‐8 days using U.S. Postal Service international express mail (~$35). Rather than shipping a hard drive after every trip, the accumulated data from 5‐6 trips were transferred to one hard drive which was then shipped to Victoria. For trips where data review took place in Victoria Canada, at AMR headquarters, the number of days from date of vessel arrival to receipt of final EM data ranged from 15‐37 days with an average of 26.4 days. For those trips reviewed when an AMR reviewer/technician was in port (May 30 – June 12), the average was 9.7 days. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 20 of 46 EFP 08‐01 Final Report 20 The final EM data received from AMR was in the form of an electronic spreadsheet and contained fishing information derived from sensor data (haul set and retrieval times and locations), NMFS landing report number and halibut count and length estimates by haul for each trip. These lengths were converted to weights using the IPHC length/weight conversion table and sent to NMFS Alaska Region which also had access to the second data stream of halibut delivered to the processing plant (ADF&G fish tickets). Currently, NMFS estimates halibut bycatch, and debits co‐op accounts, based on observer data. Because almost all trips are observed in the normal RPP fishery these data are, with limited exceptions, only expanded to cover unsampled hauls. When an observer arrives in Kodiak, they transmit their data to NMFS Seattle where data are integrated into the NORPAC database, a set of data integrity checks are performed, and the data are transmitted to the AKFISH database in Juneau. This process is generally completed within 1‐2 days. Once each night, the catch accounting system calculates the amount of halibut to be debited from each co‐op account and those numbers are made available the following day. While longer delays between delivery and quota debiting do occur, 2‐3 days is the normal time lag under the current system. Clearly even the minimal lag time of 9.7 days experienced when a technician was in port are longer than currently experienced. However, these lags may not be representative of what would be experienced if a dedicated reviewer were located in Kodiak. In order to examine how long the lags might be under such a scenario, we examined landing patterns in the RPP fishery for 2007 and 2008 and modeled what the potentia ptions: l lag time might be using the following assum • A single reviewer would be based in Kodiak • ours spent Reviewing a trip requires an average of 3.14 hours, which is the average number of h • ks five days per week on review for all trips reviewed during phase II. The reviewer can review EM data for four hours/day and wor • ram All catcher vessels in the RPP participated in the EM prog Sick days, vacation etc were not included in the model. • • EM data would be reviewed in a first in‐first out manner. Using those assumptions, and the actual landing dates for RPP deliveries during 2007 and 2008, we looked at how large of a data review backlog would potentially develop at any given point during the season. For example, following the first delivery, which occurred on a Tuesday, there were four hours worth of data to review. Because the first delivery occurred on a weekday and the reviewer could complete 3.14 hours worth of review that day, there would be 0.86 hours worth of review remaining to complete on Wednesday. If a second delivery was made on Wednesday, the reviewer would be able to complete the review of the first delivery (a lag of < 1day) and begin the review of the data from the second delivery, which would be completed on Thursday. We continued through all of the deliveries in this manner. The results of this exercise are shown in Figure 7. As can be seen, a single reviewer quickly gets behind. For 2007, the modeled estimate of lag time reached a maximum of 95 hours (or almost five weeks turnaround time) on July 24th and dropped fairly steadily thereafter. For 2008, different fishing patterns resulted in a smaller (77 hour, almost four week) turnaround, but a more protracted period of long (>two weeks) delay. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 21 of 46 As a second exercise, we changed the assumption by adding a second reviewer. The second reviewer would be called in when the lag time reached 20 hours ( a one week lag time for a single reviewer) and would analyze EM data until the lag reached zero (Figure 8). Under these assumptions during 2007, the model estimated the maximum lag time at 40 hours, or one week for two reviewers. During 2008, the lag time reached a maximum of 36 hours, or slightly less than one week for two reviewers. Figure 7. Estimated EM data review lag time using 2007 and 2008 RPP landings. Assumes a single reviewer analyzing data 4 hours per day five days per week. 0 10 20 30 40 50 60 70 80 90 100 0 50 100 150 200 Days since first delivery w or ki ng h ou r l ag ti m e 2007 2008 Figure 8. Estimated EM data review lag time using 2007 and 2008 RPP landings. Assumes a single reviewer analyzing data 4 hours per day five days per week and a “part time” reviewer that is brought in when lag time reaches 20 hours. EFP 08‐01 Final Report 21 0 5 10 15 20 25 30 35 40 45 0 20 40 60 80 100 120 140 160 180 200 Days since first delivery w or ki ng h ou r l ag ti m e 2007 2008 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 22 of 46 EFP 08‐01 Final Report 22 NMFS staff investigated how video data could be integrated into the current catch accounting system and determined that it would require staff time for system design, application development, and database programming, but that it would not be inherently difficult. A mechanism for submitting data to NMFS would need to be developed. However, because only the results of the EM review would need to be transmitted and received there are several potential electronic reporting mechanisms that could be developed. Current regulations, for example, specify that any shoreside processor with a Federal Processor Permit (FPP) must use elandings to submit a landingreport. An similar online system could be developed by NMFS to enable the submission of halibut PSC data from the EM reviewer to the catch accounting system. An online application could be password protected and only available to authorized users and perform basic data validation and error checking on the data being submitted. Once submitted to NMFS, database programming would need to be completed to incorporate the data into the catch accounting system to get a total estimate of halibut PSC. An issue identified during this study was the need for an accurate and robust way to link the data from EM review, landing report (ADFG fish ticket) data, and observer data to ensure that halibut delivered shoreside becomes part of the estimate of total halibut bycatch. Costs Cost breakdowns for the project are shown in Tables 10 and 11. For equipment installation and service, travel time and cost to and from Kodiak are not included. Because of EM equipment malfunctions, an EM field technician had to travel to Kodiak three times to repair and service the systems. This was in addition to the first trip for the initial gear installations (two technicians) performed prior to May 1 and three additional trips to Kodiak for two EM system removals and one system re‐installation on the Excalibur II. AGDB, based in Kodiak, performed most of the hard drive retrievals and replacements, spot checked the video and sensor files, performed periodic system checks; and completed two system removals. Review time to enumerate halibut, and hence cost, varied considerably between trips and hauls (Table 11) and were generally a function of time required to stow all hauls on a trip and the number of halibut that had to be measured. The least amount of time for video review was half an hour for New Life trip 17, a single haul trip on which no halibut were discarded. The maximum amount of time (8.25 hours) was for Laura trip four when 397 halibut were discarded. Time to monitor for discard was not broken out separately by trip or haul. A total of 60 hours was spent on quality checking, most of which was spent on review for discard. An additional 8 hours was spent on analyzing sensor data for all hauls. Collection of hard drives when boats arrived in port, installing new drives, a fast data check to ensure the system was working, and transmitting sensor data files to Archipelago required approximately one hour per trip. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 23 of 46 EFP 08‐01 Final Report 23 Table 10. Equipment costs for participating vessels. Labor costs are estimated at $50.00/hr. Material costs were not separated during this study and are estimates. Laura New Life Pac Star Excalibur II Equipment lease 3,600 6,000 3,600 3,600 Materials 500 500 500 500 Installation Labor 350 275 375 363 Maintenance Labor 150 200 150 150 Total $4,600 $6,975 $4,625 $4,613 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 24 of 46 EFP 08‐01 Final Report 24 Table 11. Review hours for all hauls and review times based on number of hauls and number of halibut (as estimated by EM). Hours to review for discard are not included. Trip EM halibut count hauls review hrs hrs/haul hrs/halibut PS1 7 9 6.75 0.75 0.96 PS2 15 7 5 0.71 0.33 PS3 17 8 1.5 0.19 0.09 PS4 40 6 3.25 0.54 0.08 PS5 48 4 3.76 0.94 0.08 PS6 49 4 2 0.50 0.04 Total PS 176 38 22.26 0.59 0.13 EX1 no data EX2 0 9 6.6 0.73 -- EX3 0 2 5 2.50 -- EX4 55 5 3.5 0.70 0.06 EX5 74 4 3 0.75 0.04 Total EX 129 20 18.1 0.91 0.14 LA1 13 7 3 0.43 0.23 LA2 130 9 4.5 0.50 0.03 LA3 no data -- LA4 397 4 8.25 2.06 0.02 LA5 26 1 2 2.00 0.08 LA6 19 1 1 1.00 0.05 Total LA 585 22 18.75 0.85 0.03 NL1 4 11 4.25 0.39 1.06 NL2 3 5 2.25 0.45 0.75 NL3 6 5 2.75 0.55 0.46 NL4 0 5 2 0.40 -- NL5 1 5 2 0.40 2.00 NL6 27 3 1.5 0.50 0.06 NL7 43 2 4 2.00 0.09 NL8 0 8 2 0.25 -- NL9 3 5 2.5 0.50 0.83 NL10 0 3 0.5 0.17 -- NL11 103 6 6 1.00 0.06 NL12 35 7 4 0.57 0.11 NL13 99 1 2.75 2.75 0.03 NL14 0 4 1 0.25 -- NL15 0 4 2.25 0.56 -- NL16 0 2 1.25 0.63 -- NL17 0 1 0.5 0.50 -- Total NL 324 77 41.5 0.54 0.13 Grand Total 1214 157 100.61 0.64 0.08 average 3.14 0.82 0.33 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 25 of 46 EFP 08‐01 Final Report 25 Cost Projections Prior EM investigations out of Kodiak have been small scale and experimental and trying to accurately assess costs for large scale implementation has been problematic. This study, however, focused on a larger scale implementation across a range of boats and cost estimation for a full scale implementation is more valid. Costs can be classified in several ways. In brief: • One time startup costs for vessel equipment. These costs include equipment installation, crew training, and materials. These costs are dependent on the number of program participants to the extent that skilled labor for system installation is unavailable in Kodiak. Based on this and prior projects, these costs can be estimated fairly accurately and would probably be b ry. orne by indust • Ongoing equipment costs (either lease, or replacement and maintenance). Maintenance costs are dependent on the number of program participants to the extent that skilled labor for system installation is unavailable in Kodiak; since such skilled labor would need to be brought in from off‐island and travel costs would be spread among all program participants. Lease costs or equipment replacement costs are independent of the number of program participants. These costs can be estimated fairly accurately if based on leasing rather than owning the equipment and would likely be borne by industry. • Data collection, routine vessel support, and transmittal costs. This must be done by someone local and involves a small amount of time over an extended period. These costs are problematic to estimate without knowing the program structure (who collects the data) and the number of participants. However, these costs are fairly low. Depending on program structure these costs may be borne by industry, NMFS, or indirectly by industry via fee collection. • Data review costs. These costs can be estimated fairly reliably for any given level of review. To a great extent they are independent of the number of program participants. Local review would increase the speed of review turnaround and may not be feasible without sufficient program participation. Also, technology to automate data review is rapidly improving so these costs may be expected to decrease with time. Depending on program structure these costs may be borne by industry eral tasks: , NMFS, or indirectly by industry via fee collection. Review encompasses sev o intensive review of chute mounted camera foot r o ) age to obtain halibut lengths o as to ensure compliance with discard rules extensive review of deck and stern view came review of ancillary data (GPS and sensor data o preliminary review to ensure data adequacy • Cost to NMFS for developing infrastructure. Several months of full‐time effort by staff would be required to design and develop the infrastructure and complete the database programming to receive the results of the EM review and incorporate the data into the catch accounting system. Additional data that may be needed for program monitoring (lengths and counts of individual halibut, non‐text data, and vessel location data) would need to be effectively accessible to NMFS Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 26 of 46 EFP 08‐01 Final Report 26 cost of EM for each vessel by year and estimate the cost of observer coverage. The graphic result of that projection is shown in Figure 9 where the projected savings or cost of EM relative to 100% observer coverage is plotted against the percent of rental days where the vessel was fishing. Under this model, EM savings would range from $6,870 per year to an additional cost of $5,400 per year. On average, EM under this scenario would cost an additional $237 per boat per year. However, as Figure 9 shows, cost declines quickly as the vessel fishes during more of the rental period. For vessels that would have been fishing more than 30% of the rental days, the model shows net savings for 27 of 32 observations. In most cases, observations where fishing took place during less than 30% of the rental staff and would potentially require the development of new infrastructure and storage capacity and might require outside contractors. These costs would be borne by NMFS. • Data maintenance and storage costs. These costs are highly dependent on the program structure and cannot be determined in advance. However, it is reasonable to assume that all EM data would be retained for some period of time and that specific EM data would be retained for a longer period of time. These costs would likely be borne by NMFS. In order to better assess whether the cost of EM is competitive with 100% observer coverage, we used landings data from 2007 and 2008 to model costs on an individual vessel level. We made a number of assumptions. • Labor cost for all activities is $50/hr. • Review and enumeration of halibut discard requires 3.14 hours/trip. • Review for discard outside of the discard chute requires ½ hour per fishing day. Hard drive collection and preliminary QC review requires one hour per trip. • nd equipment is installed two days before leaving for the first • Equipment lease costs $40/day a • trip and removed two days after returning from the last trip. Installation costs $700 per year. • Travel and per diem costs for a technician are not included. We assumed that full fleet y of scale to make it economically feasible to train a participation would create sufficient econom • local technician. Observer costs are $355/day (NMFS 2007). • Costs for equipment leasing, maintenance and installation and data review would be borne by industry. This assumption was made simply for comparative purposes. As stated above, depending on program structure, these costs could be borne in several different ways Assuming e that data review is an industry cost versus agency cost is a large policy decision and drives up th cost substantially. This decision needs to be highlighted for the reader. • Costs for data maintenance, storage and additional infrastructure would be borne by NMFS and are not included. However, these costs could be potentially born by industry in the form of a cost recovery program. For the 28 vessels that had at least one RPP landing in 2007 or 2008, we estimated the number of RPP observer days assuming 100% coverage. We then subtracted the final delivery date from the first fishing day and added four days to estimate the number of rental days. Using the actual number of fishing days and deliveries for each vessel, we estimated the number of review hours. This allowed us to project the Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 27 of 46 EFP 08‐01 Final Report 27 period had a single large gap between fishing periods. To the extent that removing and reinstalling leased equipment is cost effective, one would expect to see these vessels remove the EM equipment during non fishing portions of the year. For those vessels that would have fished more than 30% of the days in the rental period, we also looked at the relationship between the number of RPP fishing days and the net cost or savings from using EM (Figure 10). Because of the fixed cost of installation and before/after fishing rental, it is clear that savings are greatest under the model assumptions for vessels that fish more days each RPP season. Vessels requiring observer coverage pay a daily rate for an observer. The vessel also pays a prorated share of the cost of the observer’s travel and debriefing expenses. When an observer is efficiently deployed over a long period of time, these costs are lower. When an observer must be sent for only a brief period, these costs represent a significant portion of the total cost of observer coverage. As stated above, we assumed that daily observer costs do not vary across time or between vessels. While this assumption simplifies the model, it represents an over‐simplification of the true cost of observer coverage. In the case of a fishery such as the RPP, that is spread out in short pulses over a long period of time and takes place in a comparatively remote port, observer costs may be considerably higher (i.e. in the range of $355 to $500 or more per day). To the extent that the true cost of observer coverage is greater than $355/day, EM becomes more cost effective. For example, if the average cost of observer coverage is $500/day ( a higher end estimate of potential daily observer cost in the RPP), EM would save the average vessel $1,165/season, with savings ranging from $7,764 per year to an additional cost of $4,948. However, irrespective of the daily rate used to estimate observer cost, the result remains the same—at current lease rates, EM would reduce costs for some vessels and increase costs for others. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 28 of 46 Figure 9. Estimates of per vessel cost savings or additional cost for using EM based on the number of rental days compared to 100% observer coverage. Each point represents a catcher vessel that participated in the RPP fishery. The number of rental days was estimated using landings data nd the number of fishing days in the RPP for 2007 and 2008. Positive y axis value represent the projected additional annual cost (compared to 100% bserver coverage) had EM been used in that year. Negative values represent projected savings. a o EFP 08‐01 Final Report 28 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 29 of 46 Figure 10. Estimating per vessel cost/savings for using EM vs RPP fishing days/year based on landings data in the RPP for 2007 and 2008 for vessels that would have fished during >30% of the rental days under the model assumptions. Positive y axis value represent the projected additional annual cost had EM been used in that year. Negative values represent projected savings. Discussion System Performance and Quality of EM Data The results, similar to those of Phase I in 2007, indicate that EM can monitor for 100% retention and provide consistent and acceptable estimates of halibut discarded at sea in the RPP over one co‐op and one RPP season. The system failure rate experienced during this study was higher than that seen during previous studies and would clearly be unacceptable in a full scale implementation. However, we do not believe that this is a serious long‐term issue. The at‐sea components of EM monitoring use reasonably mature technology that, in other applications, has proven to be quite reliable. Perhaps the best analog in current regulations is the use of at‐sea scales in the catcher/processor fleet where, with limited exceptions, all catch must be weighed on NMFS approved scales. NMFS currently approves flow scales on 40 vessels and the failure rate is very low, yet the technology involved in accurate at‐sea weighing of large volumes of catch (up to 100 mt/hr) is far more complex than the technology used for this EM application. Because vessels required to use scales may not continue to fish if the scales are not working, the program vessel owners and operators have a strong incentive to ensure that the catch weighing equipment operates reliably. While such a rigid approach may not be suitable for this application, some, incentives EFP 08‐01 Final Report 29 must be built into any large scale implementation program to ensure equipment reliability. Because a primary goal of Phase II was to determine how well EM systems could account for halibut bycatch under a variety of conditions, we did not attempt to constrain the design of discard chutes unduly Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 30 of 46 EFP 08‐01 Final Report 30 and the four vessels had different approaches to chute design. The consistency of the EM results over all at‐sea census trips on the four vessels indicates that EM performs well despite the diverse styles of discard chutes , crew members and their manners of discard, weather and lighting conditions, amount of halibut per trip and other unknown variables. Nevertheless, some crew training may be necessary to encourage discard methods that facilitate video review (including not blocking the camera view). The results do highlight that it will not be possible to fully anticipate how well an installation will perform until it can be tested at‐sea. Halibut Self‐Reporting The vessel halibut tally sheet trip totals collected in this study agreed fairly well with the EM system in terms of the number of halibut discarded and there was no evidence that these numbers were biased. Because of differences in count, we were not able to fully examine how well EM and skipper categorization by size agreed. Clearly, to the extent that vessel‐reported halibut discard numbers are used for interim or actual quota accounting, more research into appropriate categories and the extent to which skipper self reporting is reflective of an EM based census is warranted. Acquiring an estimate of halibut bycatch from a vessel after each trip gives the co‐op manager the essential tool needed to monitor and manage a PSC cap that has the potential to shut down the co‐op. With immediate feedback, the co‐op can implement bycatch reduction incentives and/or penalties for non‐compliance in the membership agreement. Data Turn‐around and Integration with the NMFS Catch Accounting System There appear to be no inherent obstacles to the integration of EM data into the catch accounting system. However, the data turn‐around times experienced during this project would clearly hamper the management of halibut PSQ by quota managers. There are three potential solutions to this problem. The turn‐around time could be decreased by using local reviewers. However, unless the current average review time of slightly more than three hours per trip can be decreased, time lags of more than a week could still be an issue unless several part‐time reviewers could be trained locally. The review could be either fully or partially automated. Video analytic software is currently used for more difficult tasks than determining the length of an object laying on a surface of known size and the current methodology used by Archipelago reviewers is robust but labor intensive. In the future analytic software may be used to speed up the review process by flagging only those frames where a halibut might be present, or by automatically determining the length of halibut in frames chosen by the reviewer. It may also be possible to automate the process entirely and human review would only be required for auditing. This is an area worthy of further investigation but it is unavailable now. Finally, managers could rely on an alternate data source (industry self reported halibut numbers) either for interim management or, if a formal and robust auditing structure could be developed, for actual quota debiting. A similar program using audited vessel logbooks is in place for the Canadian multispecies longline groundfish fishery (Koolman et al 2007). EM Costs and Economies of Scale Industry envisions EM as a voluntary, high quality and less expensive alternative to 100% human observer coverage for the RPP. Phase I and II indicate that EM can provide accurate estimates of halibut bycatch, and can also provide for halibut catch accounting that is more in‐line with NMFS goals for using census‐level data for catch accounting in quota fisheries. But for EM to be seen as a viable option for Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 31 of 46 EFP 08‐01 Final Report 31 vessel owners, it must be less expensive. Based on the cost data collected during this study and the rental‐based scenarios explored in the results, it appears that EM is currently only cheaper for vessels that would be fishing during more than 30% of the rental period and for vessels that would be using EM in lieu of an observer during more than seven fishing days a year. While EM appears to be an appropriate mechanism for accounting for halibut bycatch, it cannot replace a human observer for collecting catch data that must be spatially explicit at the haul level. Presently, vessel observers collect haul‐specific species composition and biological data such as sexed length frequencies, otoliths, maturity assessments, stomach samples and tagged fish information. Marine mammal and seabird sightings and fishery interactions are also noted. If EM replaces all or part of the at‐sea observer coverage, some of this at‐sea and haul‐specific data from catcher vessels will be lost because the shoreside observer would sample the catch at the trip level. Thus replacement of human observers with EM is a trade off: potentially improved accounting for halibut bycatch, but a loss of other observer‐ collected data. Fishing days where an observer is required in addition to EM would, under our model assumptions, be the equivalent of “unused” rental days and it would appear that at current costs, even 30% coverage would result in a very small subset of vessels that would find it cost effective to participate in the EM program. Those are vessels that fish a large number of days/year, so requiring EM participation could, under some scenarios, result in undesirable fleet consolidation. The level of at‐sea observer coverage for this fleet necessary to provide these data has not been carefully examined by biologists and other alternatives for collecting haul‐explicit data may exist (relying on the catcher/processor fleet, sampling deliveries where all fishing took place in a small area, etc). Clearly as part of the development of a future larger‐scale EM program, the level of required observer coverage for other purposes must be addressed. One of the outcomes of this project was the realization that an effective EM program for this application will require locally available support. At a minimum, such support is necessary for data collection, routine troubleshooting, and monitoring the status of EM systems. Costs for installation and repair would be markedly reduced if technical staff is available locally, and review times can be reduced significantly if data do not need to be shipped off‐island. However, this requires a certain economy of scale. While the exact number of vessels that would have to participate in an EM program to make it cost effective to have local support staff is unknown, the protracted nature of the season and the patchy distribution of fishing effort would indicate that a fairly large number of vessels would have to participate. Industry envisions participation in an EM program as a potential option rather than a requirement and a number of researchers have indicated that EM programs tend to be most effective when they are either voluntary or have received broad industry buy in (Alaska Fisheries Science Center, 2008). Thus, neither NMFS nor the industry is contemplating a required‐participation program. In addition to the need for vessel owners to realize cost savings, the use of EM in other fisheries will increase the economy of scale. Already some vessels participating in the RPP also participate in the hake catcher vessel fishery and would realize savings by using the same equipment in both fisheries. Increasing demands on monitoring for salmon discard by the catcher vessel fleet in the Bering Sea may be another, similar, application for EM that would have significant vessel overlap with the RPP fishery. Finally only once the regulatory structure of an EM program can be developed will it be possible to determine the exact distribution of costs for the program. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 32 of 46 EFP 08‐01 Final Report 32 Future Research Improved reliability of atsea equipment. Based on the results of this and earlier studies, it appears that EM technology can provide better data for the management of RPP halibut prohibited species quota and that it can do so at a comparable price. Similar technology is used to remotely monitor hundreds of oil wells scattered across vast areas of the Saudi Arabian desert; the damage caused by hurricanes in the Caribbean, and conditions inside Hawaiian volcanoes. Given these applications as well as other successful high technology programs currently in use by the fishing industry off Alaska, we assume that reliability issues experienced during this project can be resolved. One avenue of investigation would be to use an operating system (such as Linux) that is less prone to failure from unexpected shut‐down and start‐up cycles caused by unreliable vessel power sources. A second would be to investigate what technology is in use in other non‐fishery but still analogous programs (harsh environmental conditions, minimal technical support, need to store and integrate multiple data sources, changing light conditions, etc). Increased speed and accuracy of data review process. The field of video analytics is complex and the technology is evolving far more quickly than the technology for actually capturing EM data. Quite probably the ability to reduce the cost of the EM data collection equipment is minimal, but it may be possible to reduce the cost of data review significantly. While programs designed to automatically identify fish by species using EM have not been developed sufficiently for actual use in an ongoing fishery, the measurement of halibut passing across a marked grid is a comparatively simple application. Continued trials in a flexible environment. The inflexibility of the federal regulatory process tends to fossilize technology at the point in time where the regulations were developed. The flexibility of operating an entire fishery under an EFP, as is used for the west coast hake fishery, may not be available to Alaska. However, it may be possible to continue large‐scale but still pre implementation investigations of the use of EM prior to full regulatory implementation. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 33 of 46 EFP 08‐01 Final Report 33 Works Cited Alaska Fisheries Science Center, 2008. Electronic Fisheries Monitoring Workshop Proceedings, Seattle WA . July 29‐30, 2008. 55 pp. http://www.fakr.noaa.gov/npfmc/misc_pub/EMproceedings.pdf Bonney, J. and K. McGauley. 2007. Testing the Use of Electronic Monitoring to Quantify At‐sea Halibut Discards in the Central Gulf of Alaska Rockfish Fishery. Unpublished report prepared for the North Pacific Fishery Management Council by Alaska Groundfish Data Bank, Kodiak AK. 50 pp. Haist, V. 2008. Alaska Groundfish Data Bank study to evaluate an electronic monitoring program for estimating halibut discards: Statistical analysis of study data. Unpublished report prepared for Marine Conservation Alliance Foundation, Juneau, AK. 28 pp. Kinsolving, A. 2006. Discussion Paper on Issues Associated with Large Scale Implementation of Video Monitoring. Discussion paper presented at the June, 2006 NPFMC meeting. Available at: http://www.fakr.noaa.gov/npfmc/misc_pub/VMS606.pdf. 15pp. Koolman, J., B. Mose, R. D. Stanley, and D. Trager. 2007. Developing an Integrated Commercial Groundfish Strategy for British Columbia: Insights Gained About Participatory Management. Proceedings of the Lowell Wakefield Symposium on Biology, Assessment, and Management of Pacific Rockfishes. . p 353‐Alaska Sea Grant. University of Alaska, Fairbanks, AK, USA 364 McElderry, H., J. Schraeder, T. Wallin, S. Oh. 2008. Trials on F/V Sea Mac To Evaluate the Use of Electronic Monitoring for the Kodiak, AK Rockfish Pilot Program. Unpublished report prepared for Marine Conservation Alliance Foundation, Juneau, AK. 17 pp. McElderry, H., D. McCullough, J. Illingworth, and J. Schrader. 2002. Electronic Monitoring for the Shoreside Hake Fishing – A Pilot Study. Northwest Fisheries Science Center, NMFS, Seattle, WA, USA by Archipelago Marine Research Ltd., Victoria, BC, Canada. 23 p. NMFS. 2006. RIR/EA/IRFA for Proposed Amendment 68 to the Gulf of Alaska Fishery Management Plan. Central Gulf of Alaska Rockfish Demonstration Program. NMFS Alaska Region, P.O. Box 21668, Juneau, Alaska 99802‐1668. NMFS. 2007. RIR/EA/IRFA for a Regulatory Amendment to Extend the Program for Observer Procurement and Deployment in the North Pacific. May 1, 2007 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 34 of 46 EFP 08‐01 Final Report 34 Acknowledgements Alaska Fisheries Science Center Archipelago Marine Research, Ltd. S Research Management Specialist Jennifer Watson, NMF NMFS Alaska Region NMFS Enforcement NMFS Observer Program f the F/V Excalibur II, F/V Laura, F/V New Life, and F/V Pacific Star Owners, skippers and crew o Ocean Beauty Seafoods, Inc. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 35 of 46 EFP 08‐01 Final Report 35 APPENDIX I – A Proposal by Industry for a possible framework for EM Implementation in the RPP By Julie Bonney and Katy McGauley Building an EM program requires the following modules for full implementation: • EM system equipment provider: An EM provider, whose responsibilities include providing the EM system, installing the EM system and maintaining the equipment. • EM system verification: Testing and monitoring to ensure that the EM system, as installed on each vessel, collects sufficiently accurate data and continues to do so when use is required. • EM data management provider: including retrieval, analysis and reporting of the EM data. • EM infrastructure support including managing, archiving and storage of data plus incorporating those data into the NMFS catch accounting system. An EM program could entail a completely in‐house NMFS initiative or NMFS could allow many of the EM program functions to be contracted to a third party service provider (s). In either case, NMFS would manage the program function including authorizing equipment and monitoring the service delivery provider(s). Industry prefers a third party service delivery because we believe that costs will be reduced, flexibility will be greater, and response time will be faster. When examining the different modules for program implementation virtually all aspects can be provided by a third party service provider with the exception of EM infrastructure support. If the third party service provider option is authorized, NMFS would need to develop the appropriate oversight function to oversee and monitor the service provider(s) performance. This appendix explores the details of how to develop a framework using a third party service provider and also explores some of the details of EM usage rules for vessel operators and providers. A workgroup of representatives from the NMFS and industry, who were involved in the phase II EFP, explored many of these topics and suggested solutions. The proposed solutions are not exhaustive nor approved by the agency. Industry believes that implementation of an EM program for the Rockfish Pilot Program would be best implemented under an experimental fishing permit (EFP) instead of amending the current regulations covering the RPP. The information gathered under an EFP environment could be used to inform the FMP amendment process thus building a robust EM system approach. An EFP can easily be changed year to year as needed versus the much longer and less flexible regulatory process. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 36 of 46 EFP 08‐01 Final Report 36 The EM Vessel Association Approach Under this approach, vessels participating in the RPP and using EM would be required to be members of a legal entity, the EM Vessel Association (the EMVA). This entity would be treated under regulation in a manner similar to a cooperative where the entity as well as its members could be held legally accountable under the regulations that control it. Under regulations, the EMVA would be responsible for, the collection of EM data at the time of offload, the analysis of EM data, and the reporting of halibut bycatch amounts to NMFS. The EMVA would conduct inspections of EM installations. The vessels would be responsible for the purchase or lease of EM equipment, installing the equipment according to specifications, and equipment maintenance which would be provided by an EMS provider. Opt in/out. No less than thirty days before the beginning of the RPP season, vessel owners wishing to participate in the EM system would be required to opt in and become members of the EMVA. Equipment Specifications. NMFS in consultation with industry would develop performance based standards for EM systems. Vendors could submit a package (cameras, cpu, additional sensors) to NMFS for approval. NMFS would not approve individual components but would approve entire systems that met type standards and the installation of approved systems would have to be overseen by the system vendor. Equipment and installation approval. Once installed, each system would be required to pass performance tests both dockside and at‐sea. The dockside component would ensure that the system was capable of producing imagery which could be analyzed to reliably determine the length and nature of a series of objects passed at various speeds and angles across the discard chute; and that the overview camera could provide sufficiently detailed views of the deck, trawl alley and stern ramp to ensure the detection of unauthorized discard. The at‐sea component would require that staff from the EMVA accompany the vessel on its first trip. During that trip, the EMVA representative would be required to measure all discarded halibut from no fewer than three hauls. The EMVA representative would train crew with regards to protocols for proper use of EM and EM system performance checks. In order for a system to remain approved, the dockside inspection would be required annually. The at‐sea inspection would only uired if performance was inadequate based on predetermined performance metrics. be re‐req At‐sea. The skipper would be responsible for ensuring that equipment functioned properly and that there was an unobscured view of the marked discard chute. Skippers would be required to discard all halibut and lingcod above the maximum retainable allowances (MRA). Additionally, large marine organisms (>6 ft.) could be discarded at sea. Lingcod must be discarded down the halibut discard chute in a manner that makes it possible to determine that only lingcod were being discarded. Large marine organisms could be discarded down the stern ramp of the vessel or over the side of the vessel. All other species must be retained and delivered to the shoreside processing facility (including cooperative quota (CQ) species, species that are on MRA limits, non‐ Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 37 of 46 EFP 08‐01 Final Report 37 allocated species and PSC species such as salmon, herring and crab). All discarded large marine organisms must be reported in the vessel logbook, if maintained, and reported to the receiving processor. The skipper would also be responsible for maintaining a log of the number of the halibut discarded during each haul. (Whether length (by category) would be required as well would depend on how halibut weighs are generated – computer generated or human audit review.) “Operational discard” (net picking and minor amounts discarded while setting gear) would be allowed. Maximum Retainable Allowances. NMFS enforcement allows two MRA overages per vessel, in a calendar year in the limited access fisheries. For the first two overages, a vessel operator surrenders the value of the fish, but, provided the overage is less than 100% of the applicable MRA, is not subject to any additional penalties. After the first two overages, the vessel operator is fined $1,000 per occurrence plus surrenders the value of the fish to NMFS. To build parity between vessels that continue with 100% observer coverage and vessels that opts into the EMVA, some leniency needs to be incorporated. Currently, vessels may discard species subject to MRA requirements which allows them to avoid MRA overages and penalties. For EM vessels, no discards would be allowed and thus there is no way to avoid MRA overages by discarding at sea. To create equity between the two monitoring applications similar MRA overages policies could be developed for EM vessels within the RPP program. Industry believes the best approach would be to allocate the abandonment only overages to the EMVA. This way the EMVA could distribute the overages across the EM vessels which would allow considerations for different CQ allocations and fishing activity across the EMVA vessels. Presently, the basis species allowed for retention of MRA species include primary rockfish species only (Pacific Ocean Perch, Pelagic Shelf Rockfish and Northern Rockfish). There is a proposed amendment to the RPP program that would allow secondary species (i.e. Sablefish and Pacific cod) to be used as a basis species for MRA species retention as well. Functionally the only way that vessels can be held to MRA standards, yet be required to operate with full retention for MRA species with EM monitoring, is to allow secondary species to be basis species for full retention standards as well as primary rockfish species. This proposal assumes that secondary species will be a basis species for full retention standards. It is also assumed that secondary species trips would continue to be managed with a hard cap and dedicated secondary species trips would continue to be allowed. So in summary, MRA standards, per Table 30, would continue to apply to all EM vessels. Two abandonment only MRA overages would be allocated to the EMVA for each vessel that joins the association. The vessel would surrender the value of the fish to NMFS for all MRA overages. Either one of the EMVA’s allotted abandonment only overages or a $1,000 fine would be assessed for each MRA overage. Equipment failure. NMFS has found that equipment failure rates are low when a vessel is unable to fish with equipment that is not working. However, unlike the at‐sea scales program or the VMS program, it may not be possible for vessel operators to carry spare equipment sufficient to replace failed CPU’s or some other components. Also, under certain circumstances, it may appear that the equipment is operating properly when it is not. Finally, determining the time of failure for equipment could be Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 38 of 46 EFP 08‐01 Final Report 38 problematic if data prior to the moment of failure is lost. However, it should be possible for vessels to carry spare cameras, cabling and sensors. The equipment failure standard could be: 1. Daily testing. The skipper would be required to maintain a log showing that the system was checked at least once in every 24 hour period after leaving the dock. More rigorous alternatives, depending on technology, could include either a system check routine software that would print out a date stamped file each 24 hours showing system status and a screen view of each camera or alternatively the ability of the V ct a daily or periodic system check remotely. EM A provider to condu 2. Equ pmi ent failure. a. The vessel would immediately cease fishing operations and contact the EMVA, NMFS enforcement, and the EMS provider after detection of system failure or malfunction; b. The EMS provider would immediately contact the vessel and the EMVA if a remote system check fails or reveals suspect or anomalous sensor data; l; c. The vessel would be prohibited from deploying fishing gear until the EMS is 100% operationa d. If a service call to the EMS provider fails to achieve functionality of the EMS within 6 hours of successful communications with the EMS provider staff, the vessel, if a first time occurrence, could, with the permission of the EMVA and NMFS enforcement, complete that fishing trip. A default halibut rate would be applied to the trip in a method to be determined. e. Any subsequent occurrences of an at‐sea EMS failure or malfunction would require that the vessel immediately cease fishing operations and contact the EMS provider, NMFS enforcement, and EMVA. If the problem cannot be resolved in a timely manner via remote support by the EMS provider, the vessel must return to port for an evaluation of the system and data (if any) by a trained EMS technician. f. Any vessel experiencing multiple failures that resulted in lost data in a given fishing year would be required to revert to 100% observer coverage for the remainder of the fishing year. Data collection. At the time of each offload, staff from the EMVA would collect and replace hard drives and would quickly review the data to ensure that there were no obvious problems or data gaps. If problems were noted, NMFS staff would be immediately informed and the vessel would not be allowed to begin another trip until the equipment was repaired. The EMVA staff would also collect a copy of the skipper’s estimate of halibut discard for each haul. Chain of custody. A tamper evident original hard drive would be delivered to NMFS (either locally or sent to a specified desired NMFS location) and a copy of the hard drive would be used by the EMVA. Either encrypted hard drives could be created where the EMVA representative copies the video or dual hard drive copies could be created by the EM system itself – one for the EMVA and one for NMFS. Halibut bycatch accounting. The most expensive part of an EM program of this nature is the cost associated with full data review. Further, full data review increases the amount of time required to make halibut bycatch data available to NMFS and quota managers. Cost saving would occur using skipper self Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 39 of 46 EFP 08‐01 Final Report 39 reported data (with EM as an auditing tool) or if software can be developed that automate the measure of halibut then full review maybe cost effective. 1. Full review of EM data. NMFS is exploring whether measurement of halibut passing across a marked grid could be accomplished with a computer program that automatically measures and inserts the data within an accounting spreadsheet. If this is possible, then it would be simple and cost effective for the EMVA to review the entire halibut discard chute video to determine the length measurements (and derived weights) of the discarded halibut. If automation of the halibut review can be accomplished it short circuits much of the concern about faster data turn around and the use of skipper tallies. NMFS has issued a request for proposals to investigate whether automation of halibut review is feasible so the feasibility of this approach should be resolved relatively quickly. 2. Skipper tallies. The results of Phase II indicate that additional work must be done to develop an appropriate methodology for skippers to estimate halibut discard weight. During Phase II, skippers were asked to record halibut length based on small, medium and large size categories, but because of differences in halibut counts it was not possible to determine how reflective the skippers estimates of halibut counts by categories were of the lengths (and derived weights) determined by the EM system. For this approach, we assumed that the skipper tallies would record the number and estimated length of each discarded halibut. Additional research would be necessary in order to develop the appropriate categories to the extent which skipper self reporting is reflective of an EM based census. The EMVA would audit some portion of the video to verify the skipper self reported halibut count and estimated length. If the audit did not accurately reflect the skipper self reported data a full review by the EMVA would occur. This approach is similar to what is used in the Canadian groundfish EM program. There is no consensus between NMFS and industry as to whether skipper tallies could be used to determine the weight of halibut for debits against a cooperative’s halibut CQ account. A vessel making an RPP landing would be allowed to begin another RPP trip if released by the EMVA. NMFS auditing. NMFS would independently review a fraction of the hauls reviewed by the EMVA. If independent review showed a discrepancy of (develop standard) for halibut count and weight the EMVA would be required to have all analyzed hauls for that season reanalyzed by a contractor chosen by NMFS and paid for by the EMVA. Initial Data Logging and Curation. Following collection of EM data and preliminary review the EMVA staff would l : og into a secure web server and enter the following information • er link to the shoreside delivery data Fish ticket nu • mber or oth • Date and time of landing • Vessel name Date and time data were re Halibut weight discarded a trieved • t sea (by haul or trip) • Other data to be specified The data must be entered into the secure web server within three days of data retrieval. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 40 of 46 EFP 08‐01 Final Report 40 Deck view camera review. Deck view camera review would be done by NMFS staff, or NMFS‐contracted staff. Costs. One possible cost sharing formula: 1) Vessels pay the costs for EM equipment (either rental or purchase), the annual EM installation / removal costs, and EMS maintenance. 2) Vessels would also pay the EMVA for membership including associated costs for the legal agreements and costs associated with the EMVA EM functions – system verification, data collection, review and data reporting to NMFS. 3) NMFS would pay the remaining costs – EM infrastructure support and the review of the deck view camera video. Both industry and agency agree that some type of federal start up funding would be desirable to develop needed infrastructure and cushion start up costs for full implement of EM within the RPP program. At‐sea observer coverage requirements. Guidance from stock assessment personnel and others is needed to indentify the levels of observer coverage needed for spatial or haul specific data. Other alternatives may exist for collecting spatial or haul specific data and should be explored. Stock assessment personnel may need to consider data quality and data type tradeoffs between EM data and observer data. Whether some level of at‐sea observer would be necessary along with EM must be resolved to fully assess costs for a future large‐scale EM program. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 41 of 46 APPENDIX II – EM System Description (Courtesy of Archipelago Marine Research, Ltd.) Overview of the EM System The EM system supplied by Archipelago for this project was operated on the ship’s power to record imagery and sensor data during each fishing trip. The software was set to automatically activate image recording upon departure from Kodiak. The EM system was configured to automatically restart and resume program functions following power interruption. EM system components are described in the following sections. Archipelago’s EM system is shown schematically below and consists of the following components: EFP 08‐01 Final Report 41 Control Box The heart of the electronic monitoring system is a metal tamper‐resistant control box (approx. 15x10x8” = 0.7 cubic feet) that houses computer circuitry and data storage devices (Fig. A1). The control box receives inputs from several sensors and up to four CCTV cameras. The control box is generally mounted in the vessel cabin and powered with either DC or AC electrical power. In the case of AC power, the control box may be also fitted with a UPS, to ensure continuous power supply. The user interface provides live images of camera views as well as other information such as sensor data and EM system operational status (Fig. A1). The interface has been designed to enable vessel personnel to monitor system performance. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 42 of 46 EM systems use high capacity video hard drives for storage of video imagery and sensor data. The locked drive tray is removable for ease in replacement. Depending upon the number of cameras, data recording rates, image compression, etc., data storage can range from a few weeks to several months. The three camera set up in this study (combined total of 13fps) and a 500‐gigabyte hard drive would provide ontinuous recording for about 63 days. c Figure A1. EM control box (V4) and user interface installation Figure A2. The four CCTV camera installations aboard the F/V Sea Mac. Each camera has a mounting bracket and stainless steel mounting straps. EFP 08‐01 Final Report 42 CCTV Cameras Waterproof armored dome cameras were used as they have been proven reliable in extreme environmental conditions on long‐term deployments on fishing vessels. The camera is lightweight, compact and quickly Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 43 of 46 EFP 08‐01 Final Report 43 attaches to the vessel’s standing structure with a universal stainless steel mount and band straps. In general, three or four cameras were used to cover general fish and net handling activity and areas around the vessel. Three color cameras with 480 TV lines of resolution and low light capability (1.0 lux @ F2.0) were used in this application (Fig. A2). A choice of lenses is available to achieve the desired field of view and image resolution. The cameras have an electronic iris that adjusts automatically to reduce the effects of glare or low light levels on image quality. The output signal is composite video (NTSC) delivered by coaxial cable to the control box and converted to a digital image (480 x 640 pixel resolution). Electrical power (12 volt DC) is carried to the camera on conductors packaged in a single sheath with the coaxial cable. GPS Receiver An independent Garmin 17N GPS receiver is installed with the EM system. The GPS receiver and antenna are integrated into a single plastic dome that is wired directly to the control box, there is no attached display interface. The GPS receiver is fixed to mount on top of the wheelhouse away from other antennae and radars (Figure A3). The Garmin GPS receiver is a 12 channel parallel receiver, meaning it can track up to 12 GPS satellites at once while using 4 satellites that have the best spatial geometry to develop the highest quality positional fix. The factory stated error for this GPS is less than 15 meters (Root Mean Square). This means that if the receiver is placed on a point with precisely known coordinates, a geodetic survey monument for example, 95% of its positional fixes will fall inside a circle of 15 meters radius centered on that point. The GPS time code delivered with the Garmin positional data is accurate to within 2 seconds of the Universal Time Code (UTC = GMT). The EM control box software uses the GPS time to chronologically stamp data records and to update and correct the real time clock on the data‐logging computer. When 12 volts DC is applied the GPS delivers a digital data stream to the data‐logging computer that provides an accurate time base as well as vessel position, speed, heading and positional error. Speed is recorded in nautical miles per hour (knots) to one decimal place and heading to the nearest degree. Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 44 of 46 Figure A3. GPS receiver installed in the rigging of a vessel and a close up photograph of the mounted GPS. Hydraulic Pressure Transducer An electronic pressure transducer was attached to the hydraulic system (Figure A4) of each vessel to provide a record of fishing activity. The sensor has a 0 to 2500 psi range, high enough for most vessel hydraulic systems, and a 15,000 psi burst rating. The sensor is fitted into a ¼ inch pipe thread gauge port or tee fitting on the pressure side of the hauler circuit. An increase in system pressure signals the start of fishing operations such as longline retrieval. When pressure readings exceed a threshold that is established during system tests at dockside, the control box software turns the digital video recorder on to initiate video data collection. Figure A4 Hydraulic pressure transducer installed at trawl warp winch. EFP 08‐01 Final Report 44 Drum Rotation Sensor Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 45 of 46 A photoelectric drum rotation sensor is usually mounted on either the warp winch or net drum of each vessel (Figure A5). The small waterproof sensor is aimed at a prismatic reflector mounted to the winch drum to record winch activity and act as a secondary video trigger. Figure A5. Drum rotation sensor mounted on trawl warp winch, showing optical sensor and reflective surface. EFP 08‐01 Final Report 45 Case 1:15-cv-01220-ESH Document 28-2 Filed 03/03/17 Page 46 of 46 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) OCEANA, INC., ) ) Plaintiff, ) ) v. ) No. 1:15-cv-01220-ESH ) WILBUR ROSS, JR., in his official capacity ) as Secretary of the United States Department ) of Commerce, et al., ) ) Defendants. ) ) [PROPOSED] ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This Court, having reviewed the parties’ cross-motions for summary judgment, and for good cause shown, hereby: GRANTS Defendants’ Cross-Motion for Summary Judgment; DENIES Plaintiff’s Motion for Summary Judgment; and ORDERS that Plaintiff’s Complaint is dismissed with prejudice. IT IS SO ORDERED. Dated: _________________, 2017 By: THE HON. ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE Case 1:15-cv-01220-ESH Document 28-3 Filed 03/03/17 Page 1 of 1