 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 13, 2011                    Decided July 19, 2011

                        No. 10-5299

                       OCEANA, INC.,
                        APPELLANT

                              v.

GARY F. LOCKE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
 THE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,
                       APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-00318)



     Hyland Hunt argued the cause for appellant. On the
briefs was Sara E. Robinson. Eric A. Bilsky and Avrum M.
Goldberg entered appearances.

     Robert J. Lundman, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
was John L. Smeltzer, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.

   Before: SENTELLE, Chief          Judge,   GINSBURG     and
GARLAND, Circuit Judges.
                               2
    Opinion for the Court filed by Circuit Judge GINSBURG.
     GINSBURG, Circuit Judge: Oceana, Inc. brought this suit
against the National Marine Fisheries Service challenging as
unlawful the methodology it uses to track bycatch in the
fisheries off the Northeastern coast of the United States. The
district court concluded the methodology satisfies applicable
law, see 16 U.S.C. § 1853(a)(11), and entered a summary
judgment for the Fisheries Service, which Oceana now
appeals. Because the Fisheries Service has merely described
but has not, as the Fisheries Act requires, “established” a
“standardized reporting methodology” to assess bycatch in the
Northeastern fisheries, we reverse the judgment and instruct
the district court to vacate the rule adopting the methodology
and to remand the matter to the agency for further
proceedings.

                        I. Background

     The Magnuson-Stevens Fishery Conservation and
Management Act, as amended by the Sustainable Fisheries
Act, 16 U.S.C. §§ 1801-1884 (Fisheries Act), requires the
Secretary of Commerce, through the Fisheries Service, * to
adopt policies that “to the extent practicable,” reduce the
volume of bycatch, § 1851(a), that is, fish that are
inadvertently or unavoidably captured by nets or other gear
and then discarded, see § 1802(2) (defining bycatch as the
“fish which are harvested in a fishery, but which are not sold
or kept for personal use”). See also § 1801(c)(3) (stating
*
  The Fisheries Service is a branch of the National Oceanic and
Atmospheric Administration (NOAA), in the Department of
Commerce. The Secretary of Commerce and the NOAA are also
defendants and appellees in this lawsuit. For simplicity we refer
only to the Service.
                                3
congressional intent to “encourage[] development of practical
measures that minimize bycatch and avoid unnecessary waste
of fish”). The Fisheries Act further instructs the agency, in
conjunction with eight regional councils, to “establish a
standardized reporting methodology to assess the amount and
type of bycatch” in each fishery in each region.            §
1853(a)(11); see § 1852 (regarding role and authority of
regional councils). The councils then use the reports to
develop policies to minimize bycatch and bycatch mortality.
See 50 C.F.R. § 600.350(d) (requiring regional council to
create a database on bycatch and bycatch mortality that will
help it “evaluate conservation and management measures”).

     In order to comply with the directive in § 1853(a)(11) to
“establish a ... methodology,” the Fisheries Service, working
with the councils for the New England and Mid-Atlantic
regions, proposed an “omnibus amendment” to the fishery
management plans for each of the 13 fisheries in those
regions, see 73 Fed. Reg. 4736 (Jan. 28, 2008). The
Amendment requires the Service’s regional officials to fund
and allocate independent observers to gather data on bycatch
from each “fishing mode,” or combination of vessel type and
fishing gear. See id. at 4738. The Service must fund enough
observer voyages to generate statistically reliable data. Id. at
4738 (“The amendment is intended to ensure that the data
collected ... are sufficient to produce a coefficient of variation
(CV) of the discard estimate of no more than 30 percent, in
order to ensure that the effectiveness of the [Amendment] can
be measured, tracked, and utilized to effectively allocate the
appropriate number of observer sea days”).

    The Amendment separately authorizes the Service to
invoke a “Prioritization Process,” however, “[i]n any year in
which external operational constraints would prevent the
[agency] from fully implementing the required at-sea observer
                                   4
coverage levels.” In those years the Service may, instead of
complying with the levels set out in the Amendment,
determine the “most appropriate” number and allocation of
observers according to the “data needs” of the Service, its
obligations under other statutes, and “any other criteria” it
may identify. Id. The Amendment also commits the agency
to consulting the regional councils about its proposed
“prioritized allocations” before implementing them. * Id.

     Oceana filed suit in the district court claiming the
Amendment violates the Fisheries Act, the Administrative
Procedure Act (APA), 5 U.S.C. § 706(2)(A), and the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4332. The
district court rejected all of Oceana’s statutory claims, 725 F.
Supp. 2d 46 (2010), as well as its “Motion to Compel
Completion of the Record” with documents the Service
contends are privileged, 634 F. Supp. 2d 49 (2009). Oceana
appeals both rulings.


*
    The Amendment provides in relevant part:

          In any year in which external operational
          constraints would prevent NMFS from fully
          implementing the required at-sea observer
          coverage levels, the Regional Administrator and
          Science and Research Director will consult with
          the Councils to determine the most appropriate
          prioritization for how the available resources
          should be allocated. In order to facilitate this
          consultation, in these years [they] will provide the
          councils, at the earliest practicable opportunity
          [with four types of information] ... . The Councils
          may choose to accept the proposed observer
          coverage allocation or to recommend revisions or
          additional considerations ... .” 73 Fed. Reg. at
          4738.
                                5
                          II. Analysis

     In its primary argument on appeal, Oceana contends the
Fisheries Service has not “established” a standardized bycatch
reporting methodology, as the term is used in the Fisheries
Act, § 1853(a)(11).        We will defer to the Service’s
interpretation of what that provision requires so long as it is
“rational and supported by the record,” C & W Fishing Co. v.
Fox, 931 F.2d 1556, 1562, (D.C. Cir. 1994), and we will not
set aside the agency’s choice of a methodology unless it is
“arbitrary, capricious, an abuse of discretion or otherwise not
in accordance with law,” 5 U.S.C. § 706(2)(A); see § 1855(f)
(providing for judicial review of regulations pursuant to the
APA). * Although the district court heard this dispute in the
first instance, see § 1861(d), on appeal we review not the
judgment of the district court but the agency’s action directly,
giving “no particular deference” to the district court’s view of
the law. Natural Res. Def. Council v. Daley, 209 F.3d 747,
752 (D.C. Cir. 2000) (quoting Associated Builders &
Contractors, Inc. v. Herman, 166 F.3d 1248, 1254 (D.C. Cir.
1999)); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d
1077, 1083 (D.C. Cir. 2000) (“[W]hen a party seeks review of
agency action under the APA, the district judge sits as an
appellate tribunal. The entire case on review is a question of
law.”) (internal quotation marks omitted).

    Oceana argues the Amendment is not consistent with §
1853(a)(11) because, instead of establishing a methodology

*
  Because we apply the same standard of review to the Amendment
issued by the Service and to the Secretary’s approval thereof, see
Fishing Co. of Alaska v. Gutierrez, 510 F.3d 328, 330 (D.C. Cir.
2007) (rejecting as unreasonable Secretary’s determination that a
procedurally defective rule proposed by the Fisheries Service was
“consistent with applicable law”), we do not distinguish further
between them.
                               6
by which the agency will proceed, the Amendment describes
“an optional methodology” that applies “in some years and
not in others.” In response, the Service says it has established
a methodology pegged to a benchmark of statistical precision
that is binding upon it “unless external operational
constraints, such as funding shortfalls” make compliance
impossible; in other words, it is enough to satisfy §
1853(a)(11) that the Amendment “establishes” the
methodology the agency will use when it can. Oceana, the
Service adds, remains free to challenge the allocation of
observers for any particular year.

     The Fisheries Service rests its defense of the Amendment
upon the scope of the phrase “external operational constraint,”
which it says is a meaningful limitation upon the agency’s
discretion to depart from the standardized methodology it has
prescribed. To address this argument we consult our
decisions addressing similar statutory mandates, in regulatory
regimes other than the Fisheries Act, to “establish” (or
“prescribe” or “set,” or the like) a procedure or standard.
Compare, e.g., Cement Kiln Recycling Coalition v. EPA, 493
F.3d 207 (2007) (concluding EPA reasonably prescribed
process by which it would impose “terms and conditions [in
permits] ... necessary to protect human health and the
environment,” as required by Resource Conservation and
Recovery Act, 49 U.S.C. § 6925, despite alleged vagueness of
that standard); with Ethyl Corp. v. EPA, 306 F.3d 1144 (2002)
(holding EPA did not sufficiently “establish methods and
procedures for making tests” for new automobile models, as
required by Clean Air Act, because regulation did not
prescribe standard by which agency would approve an
emissions test proposed by a manufacturer); and MST Express
v. Dep’t of Transp., 108 F.3d 401 (1997) (holding Secretary
of Transportation did not satisfy mandate of Motor Carrier
Safety Act to “prescribe regulations establishing a procedure
                              7
to decide on the safety fitness of owners” because agency
issued specific standards in informal document and left formal
regulation vague).

     Summarizing these cases most recently in Cement Kiln,
493 F.3d at 217, we considered the limits upon an agency’s
authority to reserve in advance some discretion to depart on a
case-by-case basis from an otherwise applicable rule: The
agency must adequately define the circumstances that
“trigger” the case-by-case analysis, 493 F.3d at 222-23, and it
must set an “identifiable standard” to guide its judgment when
operating under that procedure, id. at 220-21 (quoting Ethyl
Corp., 306 F.3d at 1149-50). The agency has broad discretion
to use general terms for the “trigger” and the “identifiable
standard,” however, unless the statute requires the agency to
be more specific or the rule reflects an unreasonable
interpretation of the statute. See id. at 217-18 (quoting Ethyl
Corp., 306 F.3d at 1149). As we said in Cement Kiln,
showing a rule is “impermissibly vague” when the statute is
silent is “always a difficult burden for a petitioner to
overcome.” Id. at 222-23.

     The Amendment at issue here fails to survive this
indulgent standard of review because it creates an exception
so vague as to make the rule meaningless: The Fisheries
Service apparently has given itself complete discretion to
determine when an “external operational constraint prevents
[it] from fully implementing the required coverage levels.”
73 Fed. Reg. at 4738. As Oceana observes, nothing in the
Amendment prevents the Service from announcing a
“constraint” applies in any or indeed every year.

    In its brief the Service tells us a “funding constraint” is
the “quintessential example” of an “external operational
constraint scenario.” Neither that nor any other example is
                              8
instanced in the Amendment itself but let us assume for the
sake of the agency’s argument the term “external operational
constraint” does not comprise every ill wind that blows the
agency’s way but instead refers exclusively to a funding
constraint. We would still have to conclude the Service failed
to “establish” a standardized reporting methodology. The
Amendment prescribes no criterion or formula by which the
Service determines whether the funding available to it in a
particular year will prevent it from “fully implementing” the
standardized methodology. Consequently, the agency can
declare a budgetary “constraint” in any year it finds doing so
convenient, with no detectable consistency from one year to
another. Perhaps the only constant is that no agency ever has
enough money to do everything it might want to do. Be that
as it may, no reasonable interpretation of the statutory
instruction to “establish a standardized methodology” would
allow the agency to reserve to itself effectively complete
discretion to trigger an exemption.

    Nor is it clear even a “funding constraint” is necessarily
“outside the agency’s control,” as the Service implies: The
Service nowhere claims the Congress appropriates a specific
amount for the observation program or prohibits the Service
from using other appropriated or, for that matter,
nonappropriated funds for that purpose. See Comments of
Oceana Concerning the Northeast Region Standardized
Bycatch Reporting Methodology Omnibus Amendment, Sept.
24, 2007, at 8 (“While the ... Amendment established a
mechanism which would allow regional councils to establish
industry-funding for observers through future rulemakings,”
see 73 Fed. Reg. at 4740, the Fisheries Service “never
considered using industry funding to ensure that the
[precision] standard was always achieved”). Because the
agency determines both the amount of funding required for
bycatch observation and the funding it will allocate for that
                                9
purpose, it can determine the stringency of this supposedly
“external” constraint and thus free itself at will from the
methodology it purportedly “established.” This will not do.

     In addition to setting an impermissibly vague “trigger,”
Cement Kiln, 493 F.3d at 223, the Amendment does little to
channel the agency’s exercise of discretion when it
determines the “most appropriate” allocation of observers.
The Amendment identifies a handful of factors upon which
the agency “should” set its priorities, including the “data
needs of upcoming stock assessments ... [and of] fishery
management actions,” and the applicable “legal mandates” of
the Endangered Species Act and the Marine Mammal
Protection Act. These factors, which merely restate the
agency’s statutory obligations, do not meaningfully constrain
the agency in setting and implementing its priorities.
Compare 73 Fed. Reg. at 4738/3, with Cement Kiln, 493 F.3d
at 223 (holding EPA sufficiently identified standard by
referencing “nine relatively specific factors”).

     In sum, the Service’s defense of the Amendment is as
unpersuasive as it is conclusory. To Oceana’s argument that
“key elements” of the methodology, including the standard of
precision, are in fact “optional” because the agency may
disregard them at will, the agency has responded, in effect,
that the key elements and the methodology as a whole are
binding upon it — except of course in the years when they are
not. See, e.g., Govt. Br. at 26 (“The methodology does not
change if funding is insufficient”). The agency appears to
mean the methodology is “established” in some Platonic
sense, serving as the model to which the agency will aspire,
though it is never itself fully realized. (Ah, but a man’s reach
should exceed his grasp, or what’s a heaven for?) Here we
must agree with Oceana: The “prioritization process” is the
exception that proves this rule and shows it is not a rule at all.
                                 10
     Although the Service congratulates itself for having
adopted an approach “particularly wise in this fiscal climate,”
the self-proclaimed wisdom of the approach cannot save it
because the Congress, in its more commanding wisdom, has
not authorized it. Here, we take note of the second clause of
subsection (a)(11), which directs the agency to adopt
“conservation and management measures that [minimize
bycatch and bycatch mortality] to the extent practicable.” The
qualifier “to the extent practicable” does not appear in or
modify the first clause of the same sentence, where the
Service is directed to “establish” a standardized methodology.
When a statute commands an agency without qualification to
carry out a particular program in a particular way, the
agency’s duty is clear; if it believes the statute untoward in
some respect, then “it should take its concerns to Congress,”
for “[i]n the meantime it must obey [the statute] as written.”
Natural Res. Def. Council v. EPA, No. 10-1086, slip op. at 21
(D.C. Cir. Jul. 1, 2011); cf. Pennsylvania v. Lynn, 501 F.2d
848, 852 (D.C. Cir. 1974) (upholding Secretary’s “limited
discretion” to terminate statutorily mandated housing
programs he found were frustrating rather than advancing
congressional intent).

                          III. Conclusion

    Because the Amendment grants the Fisheries Service
substantial discretion both to invoke and to make allocations
according to a non-standardized procedure, we hold the
Service did not “establish” a standardized methodology under
the Fisheries Act. At best the rule sets a benchmark from
which the agency freely can and apparently does significantly
depart in its annual allocation of observers. * We therefore
*
  Experience thus far tends to support this conclusion: The agency
is yet to apply the “standardized” methodology it purportedly
“established” because it has found itself subject to a “constraint” in
                              11
reverse the judgment of the district court without reaching
either Oceana’s separate challenge under the NEPA, see
NRDC v. Daley, 209 F.3d at 753, or its appeal of the order
denying its motion for completion of the record, see Ctr. for
Auto Safety v. Ruckelshaus, 747 F.2d 1, 6 (D.C. Cir. 1984);
Metcalf v. Daley, 214 F.3d 1135, 1146 n.4 (9th Cir. 2000)
(ruling that agency’s Environmental Assessment violated
NEPA “renders moot” challenge to denial of motion to
compel production of administrative record material because
“[w]ith the preparation of a new EA, a new administrative
record will also be generated”). We remand this matter to that
court for the purpose of vacating the Amendment and
remanding it to the agency for further proceedings consistent
herewith.
                                                   So ordered.




each of the four years the final rule has been in effect. See
Appellant Br. at 27-28 (of the observer voyages required under
standardized methodology, agency funded less than 30 percent in
2008 and roughly 40 percent in 2009). The plasticity of the
Amendment being apparent on its face, however, and the 30-day
deadline in § 1855(f) for seeking judicial review implying a
congressional preference for immediate resolution, we see no
reason to withhold judgment pending a challenge to the rule as
applied. See Cement Kiln, 493 F.3d at 215; accord NRDC v. EPA,
slip op. at 16.
