Full opinion text
MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, United States District Judge Plaintiffs, Anthony Black, American Triumph LLC, Matthew James Freitas, Sea Quest LLC, Benjamin Maughan, Jr., Ocean Conquest LLC, Keith Bass, Jr., Ocean Encounter LLC, Paul Magellan, Sea Honor LLC, John Zolezzi, and Pacific Ranger LLC, bring this action against Defendants, Penny Sue Pritzker, in her official capacity as Secretary of the U.S. Department of Commerce (“Secretary”), and Kathryn D. Sullivan, in her official capacity as Administrator of the National Oceanic and Atmospheric Administration (“NOAA Administrator”), to review the final decisions of the NOAA Administrator imposing civil penalties on Plaintiffs for violations of the Western and Central Pacific Fisheries Convention Implementation Act (“WCPFCIA”), 16 U.S.C. § 6901, et seq., and/or the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361, et seq. Specifically, Plaintiffs, owners and operators of six U.S. flag tuna purse seine fishing vessels, seek an order setting aside each of the civil penalty determinations, totaling approximately $1,500,000. Presently before the Court are the parties’ cross-motions for summary judgment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants’ [18] Motion for Summary Judgment and DENIES Plaintiffs’ [16] Motion for Summary Judgment. - Accordingly;- judgment shall be entered for Defendants. I. BACKGROUND A. Statutory and Regulatory Framework 1. Western and Central Pacific Fisheries Convention Implementation Act In 2007, the United States ratified the Convention on the Conservation and Management of Highly Migratory Fish.Stocks in the Western and Central Pacific Ocean (“Convention”). III.G.58 at 008539. One function of the Convention is to adopt Conservation and Management Méasures (“CMMs”) for members and participants of the Convention to implement through their national laws and procedures. ' Id. at 003541. The Western and Central Pacific Fisheries Convention Implementation Act (“WCPFCIA”), 16 U.S.C. § 6901, et seq., provides the authority for the Secretary of Commerce (“Secretary”), in consultation with the Secretary of State and the' Secretary of the Department in which the Coast Guard is operating, to develop regulations to carry out the obligations of the .United States under the Convention, including the implementation of CMMs. 16 U.S.C. § 6904(a). The Secretary has delegated this authority to the National Marine Fisheries Services (“NMFS”), a component of the National Oceanic and Atmospheric Administration (“NOAA”) within the Department of Commerce. III.G.58 at 003541. Further, the enforcement of violations of the WCPFCIA are governed by the penalty provisions of the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson Act”). 16 U.S.C. § 6905(c). At issue in the instant action is CMM 2008-01, the Conservation and Management Measure for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean, which was adopted by the Commission in December 2008. Pursuant to CMM 2008-01, specific provisions target reducing.fishing mortality on bigeye tuna and controlling fishing mortality on yellow-fin-tuna by reducing the risk of overfishing during certain periods of time in 2009, 2010, and 2011. III.G.58 at 003541. Specifically, CMM 2008-01 prohibited purse seine fishing on Fish Aggregation Devices (“FADs”) between: August 1, 2009, and September 30, 2009; July 1, 2010, and September 30, 2010; and July 1, 2011, and September 30, 2011. III.I.l at 003723-25. FADs were defined in CM 2008-01 as “any man-made device, or natural floating object, whether anchored or not, that is capable of aggregating fish.” Id. at 003721 n.l. In addition to the prohibition on the use of FADs, CMM 2008-01 also required that during the specified periods of time, all purse seine vessels engaged in fishing were to carry on board an observer from the Regional Observer Program to monitor that the vessel did not deploy or service any FAD or associated electronic devices or fish on schools in association with FADs. Id. at 003723. The NMFS proposed a regulation (“FAD Regulation”) to implement the requirements of CMM 2008-01. The proposed rule and request for comments was published on June 1, 2009, and the final regulation was published by the National Oceanic and Atmospheric Administration (“NOAA”) ■ on August 4, 2009. III.H.1 at 003702. The final regulation, indicated that ,the FAD prohibition period for 2009 would run from August 3, 2009, to September 30, 2009, despite the fact the regulation was not published in its final form until August 4, 2009. Id. As part of the published final regulation, the NMFS also addressed comments that it had received in response to the publication of the proposed rule. The following comment and response is relevant to the instant action: Comment 5: During a FAD prohibition period, the following activities should not be prohibited: (1) in situations in which there are no FADs in the area of the fishing vessel, capturing a school of tuna that has aggregated under the fishing vessel; [and] (2) capturing fish that are in the vicinity of a floating object but not associated with the object.... Response: Regarding áctivity (1), the commenter’s view is consistent with the intent of the proposed rule; however, NMFS will revise the final rule to clarify that the meaning of a FAD does not include the purse seine vessel itself. Having said that, it is important to note that under the proposed rule it would be prohibited during a FAD prohibition period to set a purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD. Regarding activity (2), NMFS does not agree. Although fish may indeed be found in the vicinity of a FAD but not necessarily associated with it, NMFS finds that in order to ensure that fishing on schools in association with FADs does not occur, it is necessary to also prohibit fishing on schools that are merely in the vicinity of FADs. Under the proposed rule, this would be accomplished by prohibiting setting a.purse seine within one nautical mile of a FAD. Id. at 003704. In relevant part, the final regulation provided that the owners, operators, and crew of fishing vessels of the United States during the specified period shall not: (1) Set a purse seine around a FAD or within one nautical mile of a FAD. (2) Set a purse seine in a manner intended to capture fish that have ag- , gregated in association with a FAD, such as by setting the purse seine in an area from which a FAD has been moved .or removed within the previous eight hours, or setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD. (3) Deploy a FAD into water. (4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea except that: (i) A FAD may be inspected and handled as needed to identify the owner of the FAD, identify and release incidentally captured animals, unfoul fishing gear, or prevent damage to property' or risk to human safety; and (ii) A FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water. Id. at 003714. Based on the comments to the proposed regulation, the NMFS revised the definition of a FAD “to clarify that it does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of aggregating fish.” Id. at .003710. As such, a FAD was defined in the final version of, the regulation as “any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any objects, used for that purpose that are situated on board a vessel or otherwise out of the water. The meaning of FAD does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of aggregating fish.” Id. at 003712-13 (emphasis added). The final FAD Regulation also implemented the requirement that an observer be on board any vessel that, was engaging in fishing during the specified time periods. Id. at 003713. 2. Marine . Mammal Protection Act The Marine Mammal Protection Act (“MMPA”), • 16 U.S.C. § 1361, et seq., makes it unlawful “for any person subject to the jurisdiction of the United States dr any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high sea.” 16 U.S.'C'. § 1372(a)(1). “Take”-means “to harass, hunt, capture, or kill, or attempt to harass, ■ hunt, capture, .or kill any marine mammal.” Id. at § 1362(13). Further, the MMPA defines “harassment” as “any act of pursuit, torment, or .annoyance which (i) has the potential to injure a marine mammal or marine mammal- stock in the wild; or (ii) has the potential to disturb a marine mammal , or marine, mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” Id. at § 1362(18)(A). Relevant to the instant action is the exception under the MMPA for the incidental taking of marine mammals during commercial fishing operations. Pursuant to 16 U.S.C. § 1387(a)(2), marine mammals may be taken incidentally in the course of commercial fishing operations and the Secretary of. Commerce may issue annual permits. to United States purse seine-fishing vessels for the incidental taking of marine mammals.. See 16 U.S.C. § 1374(a) & (h). The Secretary is required to issue regulations to address the use of the annual permits. Id. at § 1374(h). ,. Pursuant to 16 U.S.C. § 1387, the Secretary was required to classify fisheries into one of three categories for the purposes of the incidental take authorizations. The Secretary found the western and central Pacific Ocean was a fishery with “occasional incidental mortality. and serious injury of marine mammals.” 16 U.S.C. §• 1387(c)(l)(A)(ii). As such, the owner or authorized representative of a fishing vessel was required to possess a valid Certificate of Authorization in order to lawfully incidentally take marine mammals in the course of commercial fishing operation. 50 C.F.R. § -229.4(a)(1). The Certificate of Authorization provides authorization for “the incidental, but not intentional, taking of marine mammals.” 50 C.F.R. § 229.2 (emphasis added). The regulations promulgated by the Secretary defined “incidental” .as “a non-intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise -lawful action.” 50 C.F.R. § 229.2. B. Factual and Procedural Background Plaintiffs are captains and owners of six vessels who were issued Notices of Violation (“NOVAs”) by NOAA in 2010, based on alleged violations of the FAD Regulation and the MMPA during fishing trips taken between August and September of 2009. Specifically, the NOVAs were issued to:. (1) Anthony Black, American Triumph LLC, and Yen Ming Yuan of the F/V American Triumph ■ (“AT Plaintiffs”); (2) Matthew James Freitas, Sea Quest LLC, and Ching Wen Wu of the F/V Sea Quest (“Sea Quest Plaintiffs”); (3) Benjamin Maughan, Jr., Ocean Conquest LLC, and Wu Chia Pin of the F/V Ocean Conquest (“Ocean Conquest Plaintiffs”); (4) Keith Bass, Jr., Ocean Encounter LLC, Ho-Ching Chang of the F/V Ocean Encounter (“Ocean Encounter Plaintiffs”); (5) Paul Magellan, Sea Honor ,LLC, and Yen Hsing Tasai of the F/V Sea Honor (“Sea Honor Plaintiffs”); and (6) John Zolezzi, Pacific Ranger LLC, and Su Tien Shih of the F/V Pacific Ranger (“Pacific Ranger Plaintiffs”). On September 29, 2010, NOAA issued NOVAs against each of the six sets of Plaintiffs finding: (1) eight violations of the FAD Regulation on the part of the AT Plaintiffs and assessing total penalties for these violations at $872,500, I.A.1 at 0000004-10; (2) two violations of the FAD Regulation on the part of the Sea Quest Plaintiffs and assessing total penalties at $253,750, II.A.1 at 0003979-82; (3) one violation of the MMPA and two violations of the FAD Regulation on the part of the Ocean Conquest Plaintiffs and assessing total penalties at $267,750, id. at 0003989-93; (4) four violations of the MMPA. and five violations of the FAD Regulation on the part of the Ocean Encounter Plaintiffs and assessing total penalties at $657,750, id. at 0004000-06; (5) two violations of the FAD Regulation on the part of the Sea Honor Plaintiffs and assessing total penalties at $160,000, id. at 0004013-16; and (6) one violation of the FAD Regulation on the part of the Pacific Ranger Plaintiffs and assessing total penalties at $117,500, id. at 0004023-26. Each of the Plaintiffs requested a hearing before an Administrative Law Judge (“ALJ”) for an independent determination as to whether the violations occurred and, if so, an independent assessment of the penalties. NOAA proceeded with two cases against Plaintiffs. The AT Plaintiffs comprised one case and the Sea Quest Plaintiffs, Ocean Conquest ■ Plaintiffs, Ocean Encounter Plaintiffs, Sea Honor Plaintiffs, and Pacific Ranger Plaintiffs (collectively, the “Consolidated Plaintiffs”) comprised the other case. Plaintiffs filed Motions' to Dismiss in both cases, arguing that the NMFS improperly made the FAD Regulation effective immediately upon publication in the Federal Register, and its reasons for waiving the requirement that an agency observe a 30-day delay between the publication of the final regulation and the effective date of the regulation as proscribed under the Administrative Procedure Act (“APA”) were arbitrary and capricious. As such, Plaintiffs argued that the FAD Regulation was not enforceable until September 5, 2009, 30 days after August 4, 2009, the date of publication in the Federal Register, and that all counts related to alleged FAD Regulation violations prior to September 5, 2009, should be dismissed. I.A.29 at 0000348-58; II.A.38 at 0004458-67. The ALJ denied the Motions to Dismiss on the basis that the issue was within the authority of the NOAA Administrator (“Administrator”), and not the ALJ, to decide. II.A.46 at 0004576. The ALJ granted Plaintiffs’ Application for Interlocutory Review of the issue by the Administrator. II.A.51 at 0004656. The Administrator found that the- NMFS had good cause to make the regulation effective immediately and, accordingly, that the waiver of the 30-day delay was done in compliance with the APA. As such, the Administrator held that NOAA may prosecute alleged violations that occurred within 30 days of the publication of the final version of the FAD Regulation. II.A.87 at 0005165-70. The two matters then proceeded to hearings before the ALJ. The Court shall discuss the proceedings for each set of Plaintiffs in turn. 1. The AT Plaintiffs The hearing related to the AT Plaintiffs took place before an ALJ on January 31, 2012, July 9-11, 2012, and August .27-28, 2012. The Agency presented seven witnesses and 20 exhibits, and the AT Plaintiffs offered four witnesses and 26 exhibits. I.A.84 at 0001408. On August 22, 2013, the ALJ issued the Initial Decision and Order, finding that seven of the eight violations of the FAD Regulation were proven. Id. at 0001402. Specifically, the ALJ found that during the FAD closure period, the AT Plaintiffs had violated the FAD Regulation by servicing a FAD on one occasion, making a set within one nautical mile of a FAD on three occasions, and making a set on a FAD on three occasions. The ALJ found in one instance that it was not proven that the AT Plaintiffs madé a set within one nautical mile of a FAD. Id. at 0001442. As a result, the ALJ‘ found that a sanction of $562,068.27 was appropriate for the seven violations that were proven. Id at 0001402, 0001477. On November 25, 2013, the ALJ entered an order denying the AT Plaintiffs’ Petition for Reconsideration of the Initial Decision and Order. LA.92 at 0001705-16. On April 14, 2014, the NOAA Administrator denied the AT Plaintiffs’ Petition for Administrator Review of the Initial' Decision and Order, and modified the'.'ALJ’s Initial Decision to vacate a portion of the order with respect to a fishing master that is not at issue in the instant matter: I.B. 101 at 0002231. The Administrator adopted all other parts of the Initial Decision, including the order awarding monetary civil penalties without modification. Id. The Administrator’s decision became the final decision of the Secretary. Id. at 0002232. 2. The Consolidated Plaintiffs The hearings related to the violations of the Consolidated Plaintiffs took place before the ALJ on February 1-2, 2012, July 11-12, 2012, August 23-24, 2012, and' October 29, 2012. The Agency pfesented 14 witnesses and 65 exhibits, and the Consolidated Plaintiffs offered eight witnesses and 37 exhibits. II.A.100 at 0005465. On August 23, 2013, the ALJ issued the Initial Decision and Order, finding that all alleged violations against the Consolidated Plaintiffs were proven. Id. at 0005463. Specifically, the ALJ found that it was proven that: (1) the Sea Quest Plaintiffs violated the FAD Regulation by making a set within one nautical mile of a FAD on two occasions and, as a result, assessed a penalty of $147,959.68; (2). the Pacific Ranger Plaintiffs violated the FAD Regulation by making a set within one nautical mile of a FAD on one occasion and, as a result, assessed a penalty of $41,699.50; (3) the Ocean Conquest Plaintiffs violated the MMPA by making a set on a whale on one occasion and violated the FAD Regulation by making a set within one nautical mile of a FAD on two occasions and, as a result, assessed a penalty of $215,776.77; (4) the Ocean Encounter Plaintiffs violated the MMPA by making a set on a whale on four occasions and violated the FAD Regulation by making a set within one nautical mile of a FAD on five occasions and, as a result, assessed a penalty of $497,617.98; and (5) the Sea Honor Plaintiffs violated the FAD Regulation by servicing/deploying a FAD on two occasions and, as a result, assessed a penalty of $50,000. Id. at 0005462-63. On December 6, 2013, the ALJ entered an order denying the Consolidated Plaintiffs’ Petition for Reconsideration of the Initial Decision and Order. II.A.107 at 0005886. On April 14, 2014, the NOAA Administrator denied the Consolidated Plaintiffs’ Petition for Administrator Review of the Initial Decision and Order, and modified , the ALJ’s Initial Decision to vacate a portion of the order with respect to a fishing master that is not at issue in the instant matter. II.B.114 at 0006556-58. The Administrator adopted all other parts of the Initial Decision, including the order awarding monetary civil penalties without modification. Id. at 0006558. The Administrator’s decision became the final decision of the Secretary. • Id. :The owners and operators of all six vessels, the F/V American Triumph, the F/V Sea- Quest',' the F/V Ocean Quest, the F/V Ocean Encounter, the F/V Sea Honor, and the F/V Pacific Ranger, bring the instant action for judicial review of the final decisions of the Secretary' pursuant to 16 U.S.C. § 1858(b). The six fishing masters who were parties in the administrative proceedings have not sought judicial review. II. LEGAL STANDARD Under Federal Rule of Civil Procedure 56(a), ‘‘[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” However, “when a party seeks review of agency action under the [Administrative Procedure Act before a district court], the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001). Accordingly, “the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrafive record... Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the [Administrative Procedure Act] standard of review.” Se. Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C.2010). This case involves the review of agency decisions under both the Magnu-son-Stevens Act and the Administrative Procedures Act (“APA”). The standard of review for agency- decisions under the Magnuson-Stevens Act is borrowed from the APA. See 16 U.S.C. § 1858(b) (“The findings and order of the Secretary shall be aside by such court if they are not found to be supported by substantial evidence, as provided in section 706(2) of [the APA].”). The APA provides in pertinent part that a reviewing court shall “hold unlawful and set aside agency action, findings,- and conclusions found to be .,. unsupported by substantial evidence.” 5 U.S.C. § 706(2). The APA also provides that courts should set aside decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. The “substantial evidence” standard and the “arbitrary and capricious” standard “require equivalent levels of scrutiny.” Mem’l Hosp./Adair Cnty. Health Ctr., Inc. v. Bowen, 829 F.2d 111, 117 (D.C.Cir.1987). The Supreme Court has explained that “substantial evidence” means “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “It means such relevant evidence as a reasonable mind might accept as adéquate to support a conclusion.” Id. The D.C. Circuit has recognized that, in-applying the substantial evidence test, an agency decision “may be supported by* substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.” Morall v. Drug Enforcement Admin., 412 F.3d 165, 176 (D.C.Cir.2005). Normally, a decision will be reversed for lack of substantial evidence “only when the record is so compelling that no reasonable factfinder could fail to find to the contrary.” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 704 (D.C.Cir.2009), cert. denied, 558 U.S. 822, 130 S.Ct. 110, 175 L.Ed.2d 32 (2009) (citation and quotation marks omitted). “[judicial review under the substantial evidence test is ultimately" deferential.” Indus. Union Dep’t. AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 705, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980). The agency’s decision is presumptively valid, and the court is not authorized to substitute its own judgment for that of the agency. Id. The Court’s review is limited to the administrative record. Bloch v. Powell, 227 F.Supp.2d 25, 30 (D.D.C.2002). A reviewing court can also set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or . otherwise not in accordance with law” .or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without observance of procedure required by law.” 5 U.S.C. §§ 706[2)(A), (C), (D). An agency’s decision may be arbitrary or capricious if any of the following apply: (i) its explanation runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference of view or the product of agency expertise; (ii) the agency entirely failed to consider an important aspect of the problem or issue; (iii) the agency relied on factors which Congress did -not intend the agency to consider; of (iv) the decision otherwise constitutes a clear error of judgment. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); accord Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1118 (D.C.Cir.2010). In reviewing agency decisions, the c,ourt “must give substantial deference to an agency’s interpretation of its own regulations.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). The court’s “task is not to decide which among several competing interpretations best serves the regulatory purpose.” Id. Rather, the agency’s interpretation is controlling “unless it is plainly erroneous or inconsistent with The regulation.” Id. (citations omitted). III. DISCUSSION Plaintiffs raise several challenges to the Secretary’s final decisions in both the proceedings. Specifically, Plaintiffs argue that: (1) the Administrator erred in finding that NOAA properly waived the 30-day delay between the publication of the FAD Regulation and its effective date; (2) the definition of a FAD in the regulation was vague and ambiguous; (3) NOAA’s interpretation of the MMPA was contrary to the plain meaning of the statute; (4) the ALJ’s findings were unsupported by substantial evidence because the ALJ made improper credibility determinations and failed to properly weigh the evidence before him, and, relatedly, the Administrator’s adoption of the findings as final was arbitrary and capricious for the same reasons; and (5) the penalties assessed against each of the Plaintiffs were excessive under the circumstances. The Court shall address the each of Plaintiffs’ first three arguments and then the Court shall address the ALJ’s credibility determinations and analysis, and the Administrator’s adoption of the ALJ’s findings for each of the six sets of Plaintiffs. Finally, the Court shall address the penalties assessments for each of the Plaintiffs and the Administrator’s adoption of the same as the final decision of the Secretary. A. Waiver of the 30-Day Notice Period Pursuant to the APA Plaintiffs first allege that NOAA failed to demonstrate good cause to waive the 30-day delay between the publication of the FAD Regulation in the Federal Register and the effective date of the Regulation, Plaintiffs argue that the FAD Regulation should not have been effective until September 5, 2009, 30 days after the date of publication, and, as such, all counts based on alleged violations that occurred prior to that time should be dismissed. Pis.’ Mem. at 17. Pursuant to 5 U.S.C. § 553(d), “[t]he required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except ... as otherwise provided by the agency for good cause found and published with the rule.” Id. at § 553(d)(3). On August 4, 2009, the final version of the FAD Regulation was published in the Federal Register and made effective as of August 3, 2009. The following notice of the waiver of the 30-day period was published with the Regulation: There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for all of this final rule except §§ 300.222(aa) and 300.223(f) (the sea turtle migration requirements and associated prohibitions). Compliance with the 30-day delay requirement would be impracticable and contrary to the public interest the FAD prohibition period and associated observer requirement would be in effect for only about half of the specified period in 2009, meaning that NMFS would be frustrated in promulgating the regulations needed to satisfy the international obligations of the United States under the Convention. Also, NMFS had limited notice of the need to implement CMM 2008-01, which was adoption in the December 2008 regular annual session of the WCPFC. III.H.1 at 003710. Plaintiffs raise two objections to the notice. First, Plaintiffs argue that the reasons set forth in the notice do not meet the “good cause” requirement under the APA for waiving the 30-day notice period. Pis.’ Mem. at 17-21. Second, Plaintiffs argue that during the interlocutory review of this issue, the Administrator erroneously relied on different reasons than those set forth in the published notice to justify waiver of the 30-day period. Id. at 21-22. The Court shall address each argument in turn. Turning to Plaintiffs’ first argument, Plaintiffs assert that NOAA’s contention that compliance with the 30-day delay requirement was “impracticable” lacks merit, and that in reality NOAA was unable to meet the 30-day delay requirement because of its own “foot-dragging” during the process. Pis.’ Mem. at 19-20. Further, Plaintiffs assert that recognizing the 30-day delay would not have been “contrary to public interest” and, instead, the failure to recognize the delay ignored the public interest of the fishermen who were subject to the Regulation by failing to give them an opportunity to take reasonable measures to comply. Id. at 20. As such, Plaintiffs argue that NOAA has failed to demonstrate good cause to waive the 30-day notice requirement under the APA. In contrast; Defendants argue that the lengthy administrative record in this matter demonstrates that NOAA did not drag its feet in enacting the Regulation and that Plaintiffs had notice of the effective .date of the Regulation when NOAA published the proposed version of the Regulation on June 1, 2009. Defs.’ Opp’n & Cross-Mot. at 23-25. Accordingly, Defendants assert that NOAA properly demonstrated good cause to waive the 30-day notice period and otherwise complied with its obligations under the APA in order to do so. For the reasons described herein, the Court finds that the reasons, for waiving the 30--day period as published with the FAD Regulation satisfy the requirements of 5 U.S.C. § 553(d)(3). As an initial matter, Plaintiffs, relying on the United States Court of Appeals for the District of Columbia Circuit’s opinion in American Federation of Government Employees v. Block, argue that the. proscribed period can be waived under the APA only if observing the delay would, be “impracticable, unnecessary, or contrary to the public interest.” See Pls.’ Mem. at 17 (quoting Am. Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1158 (D.C.Cir.1981)). However, as Defendants properly point out, that standard is applicable to an agency’s waiver of the notice requirement for proposed rulemaking pursuant to 5 U.S.C. § 553(b) and not to the provision of the statute at issue in the instant action. Here, the Agency waived the requirement that the final rule be published not less than 30 days prior to its effective date pursuant to 5 U.S.C. § 555(d). Indeed, the D.C. Circuit in American Federation of Government Employees, indicated that while both provisions of the statute require the agency to show “-good cause” to waive the prescribed timé periods, “different standards govern the applicability of the good cause exceptions to these requirements.” 655 F.2d at 1156. Specifically, the D.C. Circuit contrasted the purposes of the rules: Both the requirement of 553(b) that notice of proposed rulemaking be published in the Federal Register and the requirement of 553(d) that publication of a rule be made at least thirty days prior to its effective date serve the laudable purpose of informing affected parties and affording them a reasonable time to adjust to the new regulation. Section 553(b) serves; however, the even more significant purpose of allowing interested parties the opportunity of responding to proposed rules and thus allowing them to participate in the formulation of the rules by which they are to be regulated. Id. As such, the D.C. Circuit concluded that “the more detailed language of section 553(b)(B) which provides that an agency may forego notice-and-comment procedures in this context only upon a finding that such procedures are ‘impracticable, unnecessary, or contrary to the public interest,’ ” and noted that it did not “break new ground [by holding], based upon the language of the APA and the underlying purposes of the subsections at issue, that what may constitute good cause to forego one notice requirement may not satisfy the other.” Id. (citation omitted). While Plaintiffs argue that the cited portions of the opinion discussing the requirement for waiving ' the notice-and-comments period are instructive because NOAA cited “impracticality” and “public interest” as its justification for waiving the 30-day delay between publication and the effective date of the Regulation, such a reading is not supported by the plain language of the opinion. Instead, the D.C. Circuit has made clear that the requirements for showing good cause under § 553(b), not at issue in this case, and under § 553(d), which is at issue in this case, are different. As such, the Court will analyze Plaintiffs’ claim by applying the standard set forth for determining whether good cause has been shown pursuant to § 553(d). “[T]he exceptions to the provisions of section 553 'will be narrowly construed and only reluctantly countenanced.’ ” Am. Fed’n of Gov’t Emps., 655 F.2d at 1156. “[T]he purpose of the thirty-day waiting period [pursuant to § 553(d) ] is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C.Cir.1996). Accordingly, “[i]n determining whether good cause exists, an agency should ‘balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.’ ” Id. (quoting United States v. Gavrilovic, 551 F.2d 1099, 1105 (8th Cir.1977)). In the Federal Register, NOAA provided that observing the 30-day delay period would be both impracticable and contrary to public interest because it would put the agency in a position to fail to meet its international obligations under the Convention, namely its obligation to impose the FAD Regulation effective as of August 1, 2009. As previously discussed, CMM 2008-01 required member countries to implement regulations prohibiting purse seine fishing on FADs from August 1, 2009, to September 30, 2009. As described in the published explanation, if the 30-day notice period was not waived, the Regulation would have been effective as of September 5,2009, more than halfway through the period prescribed by the Convention. Here, the Agency’s need to immediately implement the regulations in order for the United States to comply with its international treaty obligations outweighs the need to provide the affected persons with a reasonable amount of time to prepare to comply with the regulation. While the Court finds that compliance with the United States’ treaty obligations is sufficient to support a “good cause” showing, the Court shall address two other issues raised by the parties in their briefing that support this conclusion. As Defendants note, Plaintiffs did have notice prior to the publication of the final version of the regulation that NOAA planned to enact the FAD Regulation effective August 1, 2009. See Defs.’ Opp’n & Cross-Mot. at 24-25. Indeed, when NOAA published the proposed rule on June 1,2009, it sent a copy to U.S. purse seine vessel owners, including Plaintiffs. The proposed rule as published in the Federal Register was accompanied by a cover lettér dated June 1, 2009, that provided: In order for the United States to'/satisfy its obligations under the Convention, the proposed FAD prohibition period and associated observer requirement must be made effective by August 1, 2009. Depending upon when the final rule is issued, NMFS may need to consider shortening or waiving the 30-day delayed effectiveness provision of the Administrative Procedures Act (APA) so that the FAD prohibition period and associated observer requirement are implemented on schedule. APA Section 553(d) provides that “The required publication or service of a substantive rule shall be made not less than 30 days before its effective date,” with certain exceptions. One exception to the normal 30-day waiting period is “for good cause found and published with the rule.” If NMFS finds good cause to shorten or waive the 30-day delayed effectiveness period for the 2009 prohibition period and associated observer requirement in order to comply with the international obligations pf the United States under the Convention, those elements of the proposed rule could become effective as early as the date of publication of the final rule, which would follow NMFS’ consideration of public com: ments on the proposed rule. We. anticipate all other elements of the proposed rule would be subject to the normal 30-day waiting period before coming into effect. In this regard, please be prepared to implement the proposed 2009 FAD prohibition period and associated observer coverage requirements by August .1, 2009. . , III.F.l at 002502-03 (emphasis added); see also III.F.2-F.8 at 002504-17. Plaintiffs do not contest that these letters were sent along with a copy of the proposed rule and an invitation to provide comments. See Pis.’ Reply & Opp’n to Cross-Mot. at 4. Plaintiffs argue that the letter simply advised them that if good cause was found, then the rule could become effective upon publication. Id. This argument is contradicted by the clear directive set forth in the letter, advising Plaintiffs to “please be prepared to implement the proposed 2009 FAD prohibition period and associated observer coverage requirements by August 1, 2009.” III.F.1-F.8 at 002502-17. Further, while Plaintiffs are correct that the fact that they were on notice of the forthcoming regulation “does not absolve NOAA of its statutory obligations under the APA,” Pis.’ Reply & Opp’n to Cross-Mot; at 4, it is relevant in determining whether Plaintiffs were provided a reasonable amount of time to prepare for the implementation of the regulation when the 30-day notice period was waived pursuant to § 553(d). See Omnipoint Corp., 78 F.3d at 630. Here, the letter sent to Plaintiffs two months prior to the effective date of the final regulation gave them notice that a final version of the rule might be effective on August 1, 2009. Further, as the Administrator noted in her Order, “[i]n all respects relevant to the violations at issue, the requirements in the final rule were the same as those contained in the proposed rule.” II.A.87 at 0005169. Plaintiffs argue that the administrative record demonstrates that NOAA dragged its feet in enacting the regulation, while Defendants contend that the administrative record shows that this claim is without merit. Compare Pls.’ Mem. at 18-20 with Defs.’ Opp’n & Cross-Mot. at 23. For the reasons described herein,, the Court finds that ÑOAA’s need to waive the 30-day notice period was not based on its own dilatory efforts. As NOAA noted in its description of its reasons for waiving the 30-day notice requirement, it only became aware of the requirement to enact the regulation in December 2008, when CMM 2008-01 was adopted by the' Convention. The administrative record reflects that in January 2009, NOAA was in the rulemak-ing process. TII.A.3 at 000917-23. At that time, NOAA identified May 1, 2009, as the target date for the proposed rulé, and set forth a plan to publish the proposed rule in May 2009 and the final rule in June 2009. III.A.7 at 000934; III.A.11 at 000942. Indeed, a preliminary outline of the NOAA’s National Environmental-Policy Act compliance documents, purpose and need statement, and alternatives for its environmental assessment were circulated in February 2009, III.B.13- at 001052-54, and a first draft of the proposed rule was circulated internally in March 2009, III. C.21 at 001171-89. Prior to the publication of the proposed' regulation NOAA also: issued its federal consistency determinations required under the Coastal Zone Management Act, IIIv C.31-34 at 001206-28; provided notice to the Western Pacific Fisheries Management Council of its planned FAD Regulation, IIID.20 at 001515-16; documented compliance with the MMPA and the Endangered Species Act, III.D.61-62 at 001882-86; prepared a Regulatory Impact Review under the Regulatory Flexibility Act, III.E.1-E.2 at 001970-96; and completed the Essential Fish Habitat consultation required under the Magnuson Act, III.E.4-5 at 002037-40. The NOAA General Counsel provided clearance of the proposed rule on May 12, 2009, and the Department of- Commerce General Counsel cleared the proposed rule on May 26, 2009. III.E.26 at 002303; III. E.27 at 002305. On June 1, 2009, the proposed regulation and request for comments was published in the Federal Register, III.F.10 at 002684-94, and the Draft Environmental Assessment were made, publicly available, III.F.9 at 002518-683. The proposed rule was open to comment from June 1, 2009, to June 22, 2009. III. F.10 at 002684. At the conclusion of the comment period, NOAA drafted responses to 28 public comments that it received and revised the proposed regulation based on the comments. The final FAD Regulation was published in the Federal Register on August 4, 2009. III.H.1 at 003702-16. As Defendants contend, a review of the extensive administrative record demon-states that NOAA was not dilatory in its actions with respect to the FAD Regulation. Instead, as described above, the record reflects that NOAA started working on the FAD Regulation shortly after CMM 2008-01 was adopted by the Convention in December 2008. However, NOAA was still not able to meet its timetable for publishing the proposed rule in time to receive public comment and publish the final regulation 30 days prior to the August 1, 2009, enactment date. After reviewing the record, NOAA then made the determination that there was good cause to waive the 30-day notice period in light of the United States’ treaty obligations. Accordingly, the Court finds that for the reasons published in the Federal Register, there was good cause to waive the 30-day delay pursuant to § 553(d). Further, the Court finds that contrary to Plaintiffs’ assertion, NOAA’s need to waive the 30-day period was not the result of the Agency’s dilatory efforts to implement the regulation. Next, the Court turns to Plaintiffs’ argument that the Administrator improperly relied on reasons outside of the notice published with the FAD Regulation to find that there was good cause to waive the 30-day delay. When the issue of NOAA’s waiver of the 30-day notice requirement was submitted to the Administrator for interlocutory review, the Administrator found that NOAA waived the period for good cause consistent with the requirements of the APA. Specifically, the Administrator explained: I conclude the NMFS acted appropriately by invoking the good cause exemption and making the final rule effective immediately. NMFS was required to have regulations in force by August 1, 2009, in order to give effect to CMM 2008-01. Failure to meet this firm deadline would have resulted in serious harm. It would have compromised necessary conservation efforts intended to reduce fishing pressure on Bigeye and Yellowfín tuna. Moreover, the United States would have failed in its obligation under the Treaty to timely implement a conservation and management measure of the Commission. II.A.87 at 0005168 (emphasis added). The Administrator reiterated: “I find that NMFS had good cause to make the final rule effective immediately. NMFS was confronted with a firm deadline for having regulations in place. Failure to meet this deadline would have caused real harm by failing to timely impose an important conservation measure and meet international treaty obligations.” Id. at 0005169 (emphasis added). Plaintiffs contend that Administrator improperly relied on conservation concerns to support a finding of good cause' when such concerns were not in the explanation published with.the FAD Regulation pursuant to 5 U.S.C. § 553(d). Pis.’ Mem. at 21-22; Pis.’ Reply & Opp’n to Cross-Mot. at 6. The Court finds this argument is without merit as NOAA in its published explanation of the waiver, the Administrator in her Order, and, as discussed above, this Court all found that NOAA had á good cause basis pursuant to §. 553(d) to waive the 30-day notice period in order to meet the United States’ treaty obligations. To the extent that the Administrator may have also relied on the overall purpose of the FAD Regulation, i.e., the conservation efforts, to support NOAA’s waiver of the 30-day period, the Court finds that this is not a basis to set aside the Administrator’s decision, particularly in light of this Court’s own analysis of the issue. Accordingly, the Court finds that NOAA complied with the notice requirement of the APA pursuant to 5 U.S.C. § 553(d) when it waived the 30-day n'otice period for good cause. B. Definition of FAD Next, Plaintiffs bring a due process claim, arguing that the FAD Regulation is unconstitutionally vague because it failed to give fair notice to Plaintiffs of the prohibited conduct. Specifically, Plaintiffs argue that “NOAA’s .definition [of a FAD] created ambiguity as to what activities NOAA prohibited with respect to ‘fish-under-the-boat’ or other sets involving the use of lights as part of the vessel’s routine safety and fishing operations.” Pis.’ Mem. at 23. As such, Plaintiffs argue that the 13 counts brought against the Consolidated Plaintiffs for “fish-under-the-boat” sets should be dismissed. Id. at 24. For the reasons described herein,, the Court finds that the definition of a FAD is not unconstitutionally vague and that the conduct found by the ALJ, namely, the purposeful use of lights under the vessel or workboat to aggregate fish, falls within the definition of a FAD. Parties dispute whether the ALJ properly found that the fishing vessel or an auxiliary workboat was a FAD within the meaning of the definition when the ALJ found that lights were used to aggregate fish under the boats. Plaintiffs argue that the Agency improperly. found that they violated the FAD Regulation on 13 occasions based on sets made on fish that had aggregated under the fishing vessel itself and/or under auxiliary workboats. Specifically, Plaintiffs contend that the definition of a FAD does not include the fishing vessel or a workboat even if lights were used. Further, Plaintiffs assert that the lights were used for safety purposes, not for the purpose of aggregating fish. However, Defendants argue that while the FAD Regulation did not prohibit setting on tuna that “accumulated naturally” under the vessel, the Plaintiffs’ violations were based on sets where the main vessel used onboard lights for the purpose of drawing fish toward the vessel and/or the main vessel deployed auxiliary workboats with submerged lights to draw fish away from the main vessel and hold them in place while the main vessel made a set. Defs,’ Opp’n & Cross-Mot. at 37. Defendants contend that the use of lights to attract fish transformed the vessel or workboats into a FAD under the definition set forth in the regulation. Id. Indeed, in addressing Plaintiffs’' argument, the ALJ'found that while the regulations at the time did not'specifically discuss the use of lights, “under the definition of a FAD, the regulations included ‘any objects’ used for the purpose of aggregating fish that are situated on board a vessel or otherwise out of the water. Objects like lights used by the main vessel to aggregate fish overnight and/or lights used by the vessel’s áuxiliary workboats to hold the fish in place fall into this broad definition.” II.A.87 at 0005512 (internal citation omitted). As such, the ALJ concluded under the regulations that “[u]sing objects, like lights,, to aggregate the. fish or hold them in place while a set was made transforms the .vessel .into a-FAD under the 2009 regulations.” Id. at 0005513. After finding that using lights to aggregate fish under the fishing vessel or a workboat and then making a set on those fish was prohibited by the FAD Regulation, the ALJ found all counts related to “fish-under-the-boat” were proven. In addressing Plaintiffs’ motion for reconsideration, the ALJ explained that he “rejected the contention that these sets involved fish naturally aggregating under the vessels with no efforts made by Respondents to draw fish under the boat.” II.A.107 at 0005880. The Administrator did not further discuss this issue in denying Plaintiffs’ Petition for. Administrative Review. See II.B.114 at 0006556-59. In the proposed version of the FAD Regulation, published in the Federal Register on June 1, 2009, NOAA explained: “FADs would be defined to include both artificial and natural floating objects that are capable of aggregating fish.” III.F.10 at 002686. However, the definition was altered in the final version of the rule in response to a public comment that was received during the notes-and-comments period under the APA. Specifically, the comment that was published with the final rule read in relevant part: “During a FAD prohibition period, the followiiig activity] should not be prohibited: ... in situations in which there are no FADs in the area of the fishing vessel, capturing a school of tuna that has aggregated under the fishing vessel.” II.H.1 at 003704. In response to the comment, NOAA explained: “[T]he commenter’s view is consistent with the intent of the proposed rule; however, NMFS will revise the final rule to clarify that the meaning of a FAD does not include the purse seine itself. Having said that, it is important to note that it would be prohibited during a FAD prohibition period to set a purse seine in an area into which fish were drawn by-.a vessel from the vicinity of a FAD.” Id. (emphasis added). Accordingly, the definition was revised and the final version follows: Fish aggregating device, or FAD, means any artificial or natural floating object, whether anchored or not-and whether situated at the water surface or not, that is capable of aggregating fish, as well as any objects used for that purpose that are situated on board a vessel or otherwise out of the water. The meaning of FAD does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of aggregating fish. III.H.1 at 003712-13. The issue before this Court is whether the definition of a FAD is unconstitutionally vague such that it violates the requirements of due process. “A vague rule ‘denies due process by imposing standards of conduct so indeterminate that it is impossible to ascertain just what will result in sanctions.’ ” Timpinaro v. S.E.C., 2 F.3d 453, 460 (D.C.Cir.1993) (quoting Hastings v. Judicial Conference of the U.S., 829 F.2d 91, 105 (D.C.Cir.1987)). “In reviewing regulations for vagueness, [the court] must decide only ‘whether the regulation ‘delineated its reach in words of common understanding.’” Throckmorton v. Nat’l Transp. Safety Bd., 963 F.2d 441, 444 (D.C.Cir.1992) (citation omitted). “Further, when considering a vagueness challenge to a ‘regulation promulgated pursuant to remedial civil legislation ,,. we must do so ‘in the light of the conduct to which it is applied,’ allowing ‘greater leeway’ for regulations and statutes governing business activities than those: implicating the first amendment.” Id. at 444-45 (citation omitted). Indeed, “[i]n- order to satisfy constitutional due process requirements, regulations must be sufficiently specific to give regulated parties adequate notice of the conduct they require or prohibit.” Freeman United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 362 (D.C.Cir.1997). “Accordingly, regulations will be found to satisfy due process so long as- they are sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, would have fair warning of what the regulations require.” Id. Here, in the notes-and-comments section published .with the final" rule, NOAA indicated, that the definition of a FAD was revised to clarify that the meaning of a FAD does not include the purse seine itself. However, the actual definition of a FAD set forth that “[t]he meaning of FAD does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of aggregating fish.” III. H,1 at 0037131 From the plain language of the regulation, it is clear that a fishing vessel Could fall within the definition' of á FAD if it is used for the purpose of aggregating fish. As such, Plaintiffs cannot reasonably argue that they were not on notice that some conduct on their part may render tire fishing vessel itself to be a FAD within the meaning of the regulation. While the regulation does not provide any specific examples of conduct that would constitute a use for the purpose of aggregating fish, the agency is not required to do so. as long as the regulation provides fair warning of its requirements. See Freeman, 108 F.3d at'362 (“Thé courts have recognized, however, that ‘specific regulations cannot begin to cover all of the infinite variety of ...' conditions which employees riiust face,’ and that ‘by requiring regulations to be too specific [courts] would be. opening up large loopholes allowing conduct which should be regulated to escape regulation. ”) (citation omitted); DiCola v. FDA 77 F.3d 504, 509 (D.C.Cir.1996) (“[I]t is often sufficient, so far as due process is concerned, ‘that the proscription mark out the rough area of prohibited conduct, allowing law-abiding individuals to conform their conduct by steering clear of the prohibition.’ ”) (citation omitted). As explained in the proposed version of the regulation, “the objectives of CMM 2008-01 include achieving, over the 2009-2011 period, a reduction in the fishing mortality on bigeye tima in the WCPO of at least 30 percent and no increase in fishing mortality on yellowfin tuna in the WCPO, relative to a specified historical baseline.” III.F.l at 002685. Further, it is clear that in order to achieve this goal, the FAD Regulation prohibited all scenarios where a purse seine is set in a manner that intends to capture fish that have aggregated in association with a FAD. See III.H.l at 003702. Here, the Court must decide whether Plaintiffs had fair warning that using lights to attract fish to the fishing vessel itself and/or to an auxiliary workboat would render the vessel or boat a FAD under the regulation. In light of the purpose of the regulation and the regulation’s clear complete ban on the use of FADs, the Court finds that a reasonably prudent person would have been on fair notice that use of lights for the purpose of aggregating fish was conduct prohibited under the regulation. As Plaintiffs concede, “ ‘[f]ish-under-theboat’ sometimes (but not always) occurs when a vessel has been floating overnight and the crew wakes up in the early morning to discover that fish have naturally accumulated under the vessel.” Pis.’ Mem. at 23. Neither party argues that under the 2009 version of the regulation it was prohibited to make a set on a tuna that had naturally accumulated under the boat. See id. at 22; Defs.’ Opp’n & Cross-Mot. at 37. However, at least some testimony in the record reflects that it was practice in the industry to use lights on the workboat to attract fish from the vessel in order to make a set on the fish. See II.C.121 at 0007305 (testimony of Robert Virissimo, Vice President of Vessel Operations of the South Pacific Tuna) (describing the practice and noting that everyone in the industry has a “little different system” with respect to the use of lights to make a set on fish that are found under the vessel). Indeed, while not determinative, the record reflects that the Agency on at least one occasion prior to the enactment of the regulation advised another party that it understood that the use of lights by a workboat would meet the definition of a FAD. See, e.g., II.E.128-70 at 0009526K (email from NOAA employee to Mr. Virissimo dated July 27, 2009, indicating “Also, you say no FAD involved however I think if they used a light boat to draw the fish away from the boat, it is still considered a FAD set as you are aggregating fish away from the vessel, to the light boat, and using it as a FAD”). While this evidence is not determinative, it is illustrative of the fact that a reasonably prudent person would have fair warning that using lights for the purpose of aggregating fish either around the fishing vessel .or a'work-boat would be prohibited under the regulation based on the definition of a FAD. As such, the .Court shall deny Plaintiffs’ request for summary judgment because the Court does not find, the regulation’s definition of a FAD unconstitutionally vague. The Court bears in mind that there is a dispute among the parties with respect to whether the lights were actually used to aggregate fish or whether they were used for safety or some other purpose. In this section, the Court has only addressed whether the purposeful use of lights to aggregate fish would render a fishing vessel or auxiliary workboat as a FAD under the definition. The Court shall address whether or not Plaintiffs actually purposefully used the lights to aggregate fish in its discussion infra of the ALJ’s findings with respect to each of the counts. C. Interpretation of the MMPA Plaintiffs contend that the NOAA regulation defining the term “incidental” in the commercial fishing provisions of the MMPA is inconsistent with other regulations and with the text of the statute. Specifically, Plaintiffs argue.that the term “incidental take” in the MMPA “-clearly contemplates that, where the sole purpose of commercial fishing is to harvest fish and not marine mammals, NOAA may authorize the incidental taking of marine' mammals even where the taking is a 'virtual certainty, and even intentional.” Pis.’ Mem. at 55. In support of this argument, Plaintiffs assert that when Congress intended to prohibit a taking that is “incidental, but not intentional,” it included that language in the statute. Id. Plaintiffs argue that because the language regarding “intentional” takes was not included in this portion of the statute addressing commercial fishing, Congress intended the term “incidental” to include “intentional” takes in this context. Id. As such, Plaintiffs argue that the regulation defining “incidental” to mean “a non-intentional or accidental act,” 50 C.F.R. § 229.2, is inconsistent with other regulations and the text of the statute. Pis.’ Mem. at 56. Further, Plaintiffs argue that the Agency’s definition is inconsistent with its definition of an “incidental catch” which includes “the taking of a marine 'mammal ... as a consequence of the steps used to secure the fish in connection with commercial fishing operations.” Id. (quoting 50 C.F.R. § 216.3). Accordingly, Plaintiffs argue that even if the ALJ’s findings with respect to the MMPA violations are upheld, the counts should be dismissed nonetheless because at most, the takings were “incidental” and, thus, not prohibited. The Court agrees with Defendants that NOAA’s interpretation of the MMPA to exempt only the unintentional, incidental take of marine mammals by commercial fishers in the course of commercial fishing is reasonable. See Defs.’ Opp’n & Cross-Mot. at 49. The Court notes that “[a]s a general matter, an agency’s interpretation' of the statute which that agency administers is entitled to Chevron deference.” Fox v. Clinton, 684 F.3d 67, 75 (D.C.Cir.2012) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). In the first step-of the Chevron analysis, the Court reviews the statute de novo to determine whether or not the statute is ambiguous. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is ambiguous, the. Court then must defer to the agency’s interpretation of the statute unless it is “manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. Thus, the inquiry for the Court under the second step of Chevron is whether the agency’s interpretation of Congress’ instructions is reasonable. The Court’s inquiry under the second step of Chevron “overlaps with [the Court’s] inquir