Water Quality Insurance Syndicate v. United States (225 F. Supp. 3d 41, 2016)

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff Water Quality Insurance Syndicate (‘WQIS”) brings this action against the defendant United States of America challenging a decision by the National Pollution Funds Center (“NPFC”) of the United States Coast Guard (“USCG”), under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq. The challenged NPFC decision, issued on June 30, 2014, pursuant to the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. § 2701, et seq., denied plaintiffs claim for reimbursement of the costs for cleaning up an oil spill in Cook Inlet, Aaska, that resulted from a supply vessel, the MONARCH, colliding with an offshore oil and gas production platform. See Administrative Record (“AR”) US003494 (Letter from NPFC Claims Manager to plaintiff (June 30, 2014) (“First Denial Decision”)). The NPFC’s denial decision turned on a finding that the oil discharge was proximately caused by the MONARCH Captain’s gross negligence, which is a statutory ground for denial of reimbursement. Id.

Pending before the Court are the parties’ cross-motions for summary judgment. See Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), EOF No. 19; Def.’s Cross-Mot. Summ. J. & Opp’n PL’s Mot. Summ. J. Cross-Mot. (“Def.’s Opp’n”), ECF No. 20. For the reasons set out below, the plaintiffs motion is granted in part and denied in part, and the defendant’s cross-motion is denied.

I. BACKGROUND

Following review of the applicable statutory framework under the OPA, the relevant factual and procedural background is summarized below.

A. STATUTORY FRAMEWORK

The policy of the United States, as expressly articulated by the Congress, is “that there should be no discharges of oil ... into or upon the navigable waters of the United States” or other waters under federal jurisdiction. 33 U.S.C. § 1321(b)(1). In the wake of the massive spill in 1989 of eleven million gallons of oil from supertanker EXXON VALDEZ into the Prince William Sound in Alaska, Congress determined that then-existing laws provided inadequate remedies for addressing the damage caused by oil spills and therefore enacted, in 1990, the OPA. See Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 511 (D.C. Cir. 2009); Water Quality Ins. Syndicate v. United States, 522 F.Supp.2d 220, 226 (D.D.C. 2007); United States v. Bodenger, 2003 WL 22228517, at *2 (E.D. La. Sept. 25, 2003); Apex Oil Co. v. United States, 208 F.Supp.2d 642, 651-652 (E.D. La. 2002). The “OPA was designed ‘to streamline federal law so as to provide quick and efficient cleanup of oil spills, compensate victims of such spills, and internalize the costs of spills within the petroleum industry.’ ” Hornbeck Offshore Transp., 569 F.3d at 511 (quoting Rice v. Harken Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001)).

To meet these goals, the OPA established a comprehensive system of strict liability for the removal of oil discharges, subject to liability caps and funding support paid for by the oil industry. Specifically, under the OPA, a “responsible party” for a vessel or a facility that discharges oil into the navigable waters of the United States is strictly “liable for the removal costs and damages ... that result from such incident.” 33 U.S.C. § 2702(a). The OPA defines a “responsible party” to include vessel owners, operators, and demise charterers. See 33 U.S.C. § 2701(32)(A).

At the same time, the OPA limits liability and removal costs based on vessel type and tonnage. See 33 U.S.C. § 2704(a). Responsible parties for vessels “from which oil is discharged” are authorized to submit a claim with supporting documentation to the NPFC to recover costs beyond the prescribed limits by demonstrating that the party “is entitled to a limitation of liability under section [33 U.S.C. § 2704].” 33 U.S.C. § 2708(a)(2); see United States v. Locke, 529 U.S. 89, 101-02, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) (noting that OPA “imposes liability (for both removal costs and damages) on parties responsible for an oil spill” and “[o]ther provisions provide defenses to, and limitations on, this liability”).

The OPA created the Oil Spill Liability Trust Fund (“the Fund”) to pay such claims “for uncompensated removal costs determined by the President to be consistent with the National Contingency Plan [(“NCP”)] or uncompensated damages.” 33 U.S.C. § 2712(a)(4). The Fund is financed through a tax on the oil industry, see 33 U.S.C. § 2701(11); 26 U.S.C. § 9509, thereby “internalizing] the cost of oil spills within the petroleum industry,” Great Am. Ins. Co. v. United States, 55 F.Supp.3d 1053, 1064 (N.D. Ill. 2014). The NPFC is responsible for adjudicating claims to the Fund and determining whether the uncompensated removal costs are consistent with the NCP. A claimant “seeking recovery [from the fund] bears the burden of providing all evidence, information, and documentation deemed necessary by the Director[ ] [of the] NPFC, to support the claim.’” Smith Prop. Holdings, 4411 Conn. L.L.C. v. United States, 311 F.Supp.2d 69, 71 (D.D.C. 2004) (quoting 33 C.F.R. § 136.105) (alterations in original).

The limitation on liability for removal costs is subject to statutory exceptions that remove the liability cap and the concomitant authority for the responsible party to obtain reimbursement from the Fund. The liability limitation does not apply, for example, when the responsible party fails to report the incident as required or to provide all reasonable cooperation and assistance with removal activities. See 33 U.S.C. § 2708(c)(2)(A) and (B). In addition, as relevant here, the liability limitation on removal costs does not apply when the incident was “proximately caused by (A) gross negligence or willful misconduct of or, (B) the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.” 33 U.S.C. § 2704(c)(1). Thus, “[responsible parties may face unlimited liability for, inter alia, acts of gross negligence or willful misconduct.” Puerto Rico v. M/V EMILY S. (In re MetLife Capital Corp.), 132 F.3d 818, 821 (1st Cir. 1997).

B. The MONARCH ALLISION AND OIL SPILL

The MONARCH is owned by Ocean Marine Services, Inc. (“OMSI”) and covered by an oil pollution insurance policy issued by plaintiff. AR US002603 (Letter from OMSI to USCG, Alaska Department of Natural Resources, and Alaska Department of Environmental Conservation (Feb. 26, 2010)); US000001-03 (Pl.’s Claim Letter to NPFC) (Jan. 10, 2012)). This vessel supplies oil and gasoline to offshore production platforms in Cook Inlet and provides backup oil spill response services. AR US002632 (Global Diving & Salvage Report & Recommendations (“GDS Report”)). At the time of the incident, the MONARCH was seaworthy and suitable for service in the Gulf of Alaska. AR US002800-02 ("Certificate of Inspection (May 16, 2005, amended Nov.. 8, 2010)).

In the winter, Cook Inlet has tidal fluctuations of 20 feet or more, with strong tidal currents that can reach estimated velocities of two to three knots at the entrance to the Inlet and increased velocities in particular areas, as well as ice packs that can reach .up to 6.5 feet thick. AR US003764, 4095 (USCG’s “Report of Investigation Into the Circumstances Surrounding the Incident Involving the Sinking of the OSV MONARCH” (“USCG Report”) (June 26, 2009)). Despite these treacherous conditions, oil platforms operate continuously through the winter months, and “there is great pressure from the platform owners to have these [resupply] vessels operate regardless of the conditions.” AR US003793 (USCG Report); see also AR US002627 (GDS Report).

On January 15, 2009, the MONARCH was under the command of Captain Jeremy Bucklin, “very experienced in Cook Inlet operations, having worked himself up from deckhand to mate to master.” AR US002627 (GDS Report); see also AR US002486 (USCG Interview of Captain Bucklin (Jan. 21, 2009) (“USCG Captain Interview”)). Captain Bucklin testified as part of the USCG’s investigation that he has been operating in the Cook Inlet for eleven years: five years as a mate and then six years as Captain of the MONARCH. AR US002486 (USCG Captain Interview).

At the time of the incident, the MONARCH had on board seven crew members, including the Captain and Chief Mate Walter Mitchell Hebb III. AR US002471 (USCG Interview of Chief Mate Walter Mitchell Hebb (Jan. 21, 2009) (“USCG Hebb Interview”)). After servicing five platforms, with three more to go, the ship set out from the Monopod platform towards its sixth stop, approximately eight nautical miles north, to the Granite Point platform. AR US002466 (USCG Interview of crewmember Russell Tomlinson (Jan. 21, 2009) (“USCG Tomlinson Interview”)). The Granite Point platform is a fixed production platform, currently owned by Chevron, and located on the west side of northern Cook Inlet. AR US003764 (USCG Report); AR US003827 (USCG Witness Statement); AR US002635 (GDS Report). While the platforms already serviced by the MONARCH were in open water, the Granite Point platform was located further north where there was a “bigger accumulation of ice.” AR US002452 (USCG Interview of crewmember William James Kelley (Jan. 2l, 2009) (“USCG Kelley Interview”). The platform is supported by four seventeen-foot diameter legs, which break up ice pans such that maneuvering around the platform is easier by approaching it against the current. AR US002635, 2638 (GDS Report). Given the ice, wind, and tidal current circumstances on January 15, 20Ó9, the crew planned to head north to Granite Point with the tidal current, pass the platform on the west side, then make a 180-degree turn toward the south and move against the current toward the platform. AR US002627 (GDS Report).

On the morning of the incident, Chief Mate Hebb held the 12:00 a.m. navigational watch, with each watch scheduled for six hours. AR US002471-72 (USCG Hebb Interview). At 5:00 a.m., Captain Bucklin awoke and went to the main cabin to replace Chief Mate Hebb early at approximately 5:20 a.m. AR US003764 (USCG Report finding that “[t]he Master of the MONARCH had awoken at 0500 due to the noise from the breaking ice and subsequently relieved the Mate at approximately 0515 instead of the scheduled 0600.”); AR US002466 (USCG Tomlinson Interview,, stating “[a]t about 5:20, the captain came up with his cup of coffee, you know, getting ready to go to work the three rigs up north”); AR US003831 (USCG Report, Supplemental Statement by Chief Mate Hebb (“Chief Mate Supp. Statement”) that “[ajround 5:20 ... [the Captain] came up top with coffee.”); AR US002486 (USCG Captain Interview, stating that he woke up at approximately 5:00 a.m. and “probably arrived at the wheel house at 20 after, 5:30, perhaps. Somewhere in there. I can’t give you more—this is my best guess on times. It was either 5:20 to 5:30.”).

During the hand-off, Chief Mate Hebb reported to Captain Bucklin “about how [his] evening had gone and how much work [he] had done, and ... told him that [he] had called Granite Point platform.” AR US002474 (USCG Hebb Interview); AR US003831 (Chief Mate Supp. Statement that “Captain and Mate discussed what we had "done and what we were going to do next.”)- Chief Mate Hebb told Captain Bucklin that the MONARCH was forty-five minutes away from the next destination at Granite Point platform. AR US002486-87 (USCG Captain Interview). Captain Bucklin soon assessed, however, that the MONARCH was only about ten minutes away from the platform. Id. Since Chief Mate Hebb had previously called Granite Platform at 5:13 a.m., and given the incorrect expected arrival time, Captain Bucklin called back at 5:20 a.m., to correct Chief Mate Hebb’s prior estimation. AR US002474 (USCG Hebb Interview); AR US002486-87 (USCG Captain Interview); AR US002524 (MONARCH Phone Log).

When Captain Bucklin relieved the Chief Mate, the MONARCH was moving in the dark through heavy ice, “with some ice pans as thick as 3 feet.” AR US003774 (USCG Report); AR US002254 (Chief Mate Supp. Statement); AR US002486 (USCG Captain Interview). Consequently, the MONARCH was not able to “follow[ ] a straight line” to the next platform. AR US002487 (USCG Captain Interview). Navigating through heavy ice requires the selection of “ice leads,” or cracks in the sea ice, to allow the vessel to move, but typically on an indirect trajectory toward the intended destination. See AR US002479 (USCG Hebb Interview, explaining that when operating in heavy ice, “[tjhere are places where two pans meet, where you can cut through” and thus “you can’t just go on like a nice straight course[,] ... you’re spending time going left, going right, going left, going right, ... so it’s not a standard course”). This is what Captain Bucklin did: he maneuvered the MONARCH into ice leads of open water or thinner ice, using “standard ice procedures” requiring the vessel to “follow the path of least resistance, which is not necessarily directly towards your destination.” AR US002487 (USCG Captain Interview). Captain Bucklin described this maneuvering as follows:

Sometimes you just got a lead that this goes this [w]ay, let’s take this, and then you have to make it up because you had to go around a big pan, or just, you know, you would see a way off the port, for example, to go around a pan. You go around the pan and then you make your way back to starboard.

Id.

During this maneuvering, if the vessel hit “a pan of [thick] ice, [the ice would] break[ ] and knock[ ]” the vessel in another unintended direction. Id. According to Captain Bucklin, due to the presence of ice, the vessel might have to be up to ninety degrees off course for an extended period of time before the course could be corrected, “partly on purpose, partly by circumstances.” Id.; see also AR US002450 (USCG Interview of Deck Hand Steven Shangin (Jan. 21, 2009) (“USCG’s Shangin Interview”), stating that because of the thick ice, the MONARCH had to “back up” at least “[a] couple of times”). Chief Mate Hebb explained that while “navigating ... on a straight course” a vessel operator might “look[ ] farther, maybe out in the distance or something,” but, by contrast, “[w]hen we’re operating [in] the ice, we’re operating under sodium lights, so we can light up the ice so we can see.” AR US002479 (USCG Hebb Interview). For this reason, a vessel operator has to “balance ... time by looking farther and looking right up in front of your boat because you’re constantly change course to find the, quote, ‘easier way’ through the ice.” Id.

The necessity of using these standard ice procedures resulted in the MONARCH being “gradually steered off the intended course” by Captain Bucklin into the direction of the flood tide, which was producing a 5.5 knot current in the northerly direction. AR US003764, 3775 (USCG Report). Nevertheless, the USCG found that Captain Bucklin was “correct in maneuvering the vessel through the ice as he did.” AR US003793 (USCG Report). Yet, by focusing his attention on maneuvering the vessel in this manner, the USCG also determined that Captain Bucklin “lost focus on the large situation he was placing the vessel in and assumed he was on the correct course when in fact, because of the variation in course directions to avoid ice, the vessel was on the wrong approach towards the platform.” Id. In other words, Captain Bucklin “lost situational awareness” due to the navigational necessities of moving the MONARCH in the extant conditions of heavy ice. AR US003792. The USCG Report stressed multiple times that “immediately prior to the casualty the Master was struggling to keep the vessel clear of heavy ice and lost situational awareness of the course the vessel was heading as he maneuvered around the ice.” Id.; see also, e.g., AR US003764 (“The Master was fatigued that morning and unable to properly maintain the level of situational awareness necessary to ensure the MONARCH’S correct navigational approach to the GRANITE POINT Platform.”); AR US003792 (“In effect, the Master lost situational awareness by having tunnel vision concerning the thick ice instead of assuring the correct course the vessel should have been transiting in order to approach the Platform from the correct direction.”); AR US003793 (“[T]he master lost focus on the large situation he was placing the vessel in and assumed he was on the correct course when in fact, because of the variation in course directions to avoid ice, the vessel was on the wrong approach towards the platform.”).

As the MONARCH approached the platform, Captain Bucklin explained that the vessel “[bjusted through heavy ice” and hit “bands of heavy ice interspersed with moderate ice and slush and slushy goo.” AR US002487 (USCG Captain Interview). After five to ten minutes “beating through the heavy ice,” the vessel emerged from the heavy ice and was “through into the moderate stuff’ but Captain Bucklin then “realized [the vessel was] close to the platform.” Id. Further complicating the situation, rather than passing the Granite Point platform on the west side as intended, the MONARCH was positioned so that the current, then at the height of the flood tide, along with the force of the ice, pushed the port stern of the MONARCH into the southwest corner leg of the Granite Point platform, breaching the MONARCH’S hull at 5:46 AM. AR US003775-76, US003792 (USCG Report). With the port stern forced against the southwest corner of the platform, the current and ice then also forced the port bow against the southeast leg of the platform, “pinning” the vessel to the platform perpendicular to the strong flood tide. Id. at AR US003764 (“[T]he current pinned the vessel against 2 legs of the GRANITE POINT Platform and subsequently pushed ice on deck.”).

Prior to impact, Captain Bucklin realized his mistake and tried to correct it. He explained that he “jammed the throttles forward and put the jog stick hard right,” but the response from the vessel was “minimal.” AR US002488 (USCG Captain Interview). He attributes the minimal response to the fact that the MONARCH was in “slushy gooey broken ice” that prevented the stern from moving. Id. The USCG Report noted that had Captain Bucklin “realized his situation sooner he would have called off the approach and tried again or ... waited until the ice coverage abated or tide changed.” AR US003793. Unfortunately, however, “by maneuvering through heavy ice by trying to find open or lighter ice,” in the view of the USCG, Captain Bucklin had lost “situational awareness” by focusing on his maneuvers through the thick ice. Id. at AR US003792.

Captain Bucklin confirmed that he “misread the orientation of the platform,” and added that “when [he] realized [his] mistake, the ice slowed the response of the vessel and [he] was unable to maneuver clear prior to hitting the granite [point] platform.” AR US003847 (USCG Report, Supplemental Statement by Captain Buck-lin). Other crew members familiar with the conditions in Cook Inlet corroborate the USCG’s finding regarding the loss of situational awareness. Chief Mate Hebb explained that when “navigating in ice ... it could be easy to get yourself’ in the incorrect position because the vessel is forced to follow available ice leads. AR US002479-80 (USCG Hebb Interview). He expressed the “utmost sympathy, as other drivers do, for our captain because we all feel it could happen to us.” Id. at US002480. Other crewmembers echoed Chief Mate Hebb’s assessment of Captain Bucklin’s handling of the incident. See, e.g., AR US002484 (USCG Hebb Interview, stating that “every one of the [crewmembers] said [they] would sail with [Captain Bucklin] again” and told him to tell Captain Bucklin that they didn’t “hold him responsible [and] ... it could have happened to anybody”); AR US002450 (USCG Shangin Interview, stating “I would sail with [Captain Bucklin] any time again. He knew what he was doing. He was a good boat operator, if you ask me. He was doing everything. I think he did everything right.”); AR US002464-65 (USCG Sisson Interview, characterizing Captain Bucklin as “a good captain. I wouldn’t hesitate to get back on a boat with him in a minute” and opining that Captain Bucklin “did everything he could to save” the MONARCH, that “[h]e never put us in harm’s way on purpose,” but that the allision was “beyond his control”).

At 5:44 a.m. and 5:45 a.m., shortly before the allision, Captain Bucklin placed two unanswered calls to the ANNA platform, which was the next stop after Granite Point, to advise that the MONARCH was approximately thirty minutes away. AR US003776 (USCG Report); AR US002524 (MONARCH Phone Log). Such calls between supply vessels and platforms are routine to keep the platform apprised of the vessels’ estimated time of arrival so that the platform is adequately and timely prepared. See AR US002524 (MONARCH Phone Log showing regular calls made from the MONARCH to the Anna, Granite Point, Monopod, Dolly Varden, and Steel-head platforms); AR US002473 (USCG Hebb Interview, explaining that “[w]e always call the platforms on the telephone before we get up there and start to work.”). For example, when Captain Buck-lin called the Granite Point platform at 5:20 a.m., the platform responded by noting that the crane operator was getting in “the crane right then.” AR US002486 (USCG Captain Interview).

The allision with the platform pierced the MONARCH’S hull, damaging the vessel’s fuel tanks and allowing water to pour into the vessel. AR US003761, 3779-83 (USCG Report). Given the frigid conditions, ice began piling up on the stem. Id. at AR US003782-83. All seven crew members evacuated to the platform before ice caused the MONARCH to capsize, and eventually sink. Id. at AR US003782. Approximately 38,000 gallons of fuel, lube, and generator oil were released into Cook Inlet. Id. at AR at US003761-62; AR US002644 (GDS Report). OMSI subsequently began an oil spill response, which included recovering 12,445 gallons of oil. AR US000169 (PL’s Pollution Response Incident Report). The plaintiff, as OMSI’s insurer, incurred $2,698,159.59 in expenses in removal costs and expenses, and issued a claim for $1,898,159.59 (the total expenses “less [the] $800,000 limit” on liability as set forth in 33 U.S.C. § 2704(a)(2)). AR US000002 (Pl.’s Claim Letter to NPFC).

C. Coast Guard Investigation

Regional USCG units are tasked with undertaking marine casualty investigations to determine measures to promote safety at sea. See 46 U.S.C. § 6305; 46 C.F.R. §§ 4.01-1, 4.07-10. Here, the USCG unit stationed at the Gulf of Alaska and familiar with the local conditions undertook an “informal” investigation. AR US003761 (USCG Report). Although the incident met “the criteria for a formal investigation, the Officer In Charge, Marine Inspection for Western Alaska[,] down-grade[d] the level of investigative effort to that of an informal investigation ....” Id.

The USCG’s investigation was initiated immediately following the incident in January 2009 and involved a thorough review of the circumstances leading up and occurring at the time of the allision. As part of its investigation, the USCG conducted interviews of and obtained statements from crewmembers within the month after the incident. AR US03795 (USCG Report). The USCG also reviewed crewmember drug tests and work/rest history for at least ninety-six hours prior to the incident, with the results of this review documented in the USCG Report. AR US003769-70, 3796-99, 3818-33, 4007-60, 3770-73, 3806-07. In addition, the USCG collected and examined relevant documentation, such as: (1) drawings and photographs of the MONARCH prior to the incident and as it sank, and photographs of the Granite Platform the day following the incident, AR US003803-05; (2) MONARCH log book entries for January 2009, AR US003806; (3) Tide and Current Data for the area where the MONARCH sank, AR US003803; (4) the MONARCH’S phone records for January 14 and 15, AR US003808; (6) review of extracts of 2009 Coast Pilot navigational information for the Cook Inlet, including the Ice Guidelines and information regarding significant tides and current, AR US003808, 4090-96; and (7) Charts of the MONARCH’S time, position, and course information recorded every five minutes on January 15, 2009, AR US003808.

Based on this investigation, the USCG identified two factors as “the primary contributors to the sinking of the OSV MONARCH”: “(1) the Cook Inlet environmental conditions,” which had strong current and ice conditions, and “(2) crew fatigue,” stemming from the crew’s difficulty getting sufficient rest during their 6 hours off-watch because “when the vessel operated in ice, sleep was often unobtainable or interrupted.” AR US003764 (USCG Report); see also AR US002464 (USCG Sis-son Interview, stating that he did not get much sleep the night before the incident “[bjecause of the ice” and that “normally], in the ice when you’re working, if you can get two to three hours of sleep a night, you’re doing good. You had a good night”); AR US002466 (USCG Tomlinson Interview, stating that on the way to the Granite Point platform, the MONARCH “hit some more heavy ice” which “woke the rest of the crew, except for the engineer”). While acknowledging that “[m]ost casualties cannot be attributed only to one causal factor,” the USCG commented on the inter-relationship of these two primary factors, stating that “in the OSV MONARCH case, the master’s fatigue played a role as significant as the environmental conditions.” AR US003764 (USCG Report).

The USCG noted that the “Master was using the vessel’s phone to contact the ANNA Platform at 0544 and 0545 to give the ANNA Platform 30 minute notice before delivery supplies” but “was not able to contact the Platform with the first call at 0544 nor with the second attempt at 0545.” AR US003776. The USCG, however, did not cite these brief calls as contributing in any way to the allision.

Following the investigation, the USCG filed administrative enforcement proceedings against Captain Bucklin, alleging “misconduct” because he “allowed one or more watertight doors to remain open” and “negligence” because, after he assumed navigational duties of the MONARCH, the vessel “struck a fixed object, the oil platform,” and then “overturned and eventually sank next to the oil platform” with diesel fuel and lube oil onboard. AR US003222 (USCG Suspension & Revocation (“S & R”) Complaint filed in August, 2009). Without admitting any liability, Captain Bucklin agreed, in September 2009, to settle this administrative matter with “a mitigated sanction of 4 months suspension on 24 months [sic] probation.” AR US003245 (Settlement Agreement between Captain Bucklin and USCG).

D. Agency Proceedings

In January, 2012, the plaintiff submitted to the NPFC a reimbursement claim totaling $1,898,159.59 for uncompensated oil removal costs. AR US000001-2 (Pl.’s Claim Letter to NPFC). In response to NPFC’s request, the plaintiff subsequently supplemented its claim with roughly 300 pages of additional information. AR US002230 (Pl.’s Letter to NPFC Claims Manager (Mar. 23, 2012)). In the plaintiffs view, the documentation “clearly demonstrates that the loss was not in any way caused by gross negligence, willful misconduct or violation of regulation.” Id. The NPFC disagreed with the plaintiffs assessment in two denial decisions summarized below.

1. The First Denial Decision

Over one year after submission of the plaintiffs claim, the NPFC requested, on March 27, 2013, that the plaintiff produce an engineering report and other documentation to determine whether the plaintiff met the prerequisites to limit its liability for removal costs. AR US002539-40 (Letter from NPFC Claims Manager to plaintiff (Mar. 27, 2013)). In response, the plaintiff provided the GDS engineering report; detailed answers to NPFC’s questions; a case study prepared by Aasgard Summit Management Services; and a CD-ROM containing a PowerPoint presentation, photographs, and computerized video of the MONARCH making its approach to the Granite Point Platform. AR US002543-2546 (PL’s Letter to NPFC Claims Manager (Aug. 5, 2013)). The plaintiff also submitted to the NPFC the USCG investigative file on the incident that the plaintiff had obtained through a Freedom of Information Act (“FOIA”) request. AR US003210-3488 (PL’s Letter to NPFC Claims Manager (Sept. 30, 2013)).

Over six months after the last submission by the plaintiff, the NPFC denied the plaintiffs claim on June 30, 2014, finding that the plaintiff was not entitled to the limitation on liability because Captain Bucklin had been grossly negligent. AR US003489-95 (First Denial Decision). In a six-page “Claim Summary/Determination,” the NPFC highlighted the treacherous or “extreme” conditions in which the MONARCH was traveling on the day of the allision: “the vessel was traveling on a flood tide from the south [with] a 5.5 knot current in heavy pack ice with thickness reported as between 16-24 inches covering most of the waterway, ... in the dark, [and] [w]ind was 20 knots .... ” AR US003491-2. The NPFC credited Captain Bucklin with having “the normal or intended approach under the prevailing conditions” to the Granite Point platform, AR US003493, but concluded this intended approach “did not happen because Captain Bucklin did not begin maneuvers until the vessel was only a couple of hundred yards from the platform and there was insufficient time and distance under the conditions to come about for a controlled approach,” AR US003492. The maneuvers attempted by Captain Bucklin were unsuccessful because he “got minimal response” from the vessel’s controls and “the vessel was pushed towards the platform abeam the current.” Id. The NPFC also remarked that “[i]explieably ... in the midst of the last minute attempts to maneuver the vessel and avoid the allision Captain Bucklin made or attempted to make phone calls to the Anna Platform which was next in line for deliveries after the Granite Point Platform.” Id.

The NPFC’s analysis of the facts is entirely silent about the USCG’s findings regarding the Captain’s lack of situational awareness due to navigating the MONARCH through heavy ice in the dark, despite the USCG’s repeated description of this critical context for both the otherwise “inexplicable” phone calls and belated maneuvers. In a brief one-paragraph section discussing the USCG’s report, the NPFC acknowledged the USCG’s contrary conclusion that the “causes of the allision were lack of situational awareness and fatigue.” AR US003494. Without any specific response or critique, however, the NPFC summarily noted that the USCG report is “[n]ot dispositive” and that “the NPFC is not bound by such reports of investigation, and can find additional or even different facts and reach different opinions or conclusions than those in the” USCG reports. AR US003494-95.

Based on this abbreviated rendition of the facts, the NPFC then evaluated whether the Captain’s conduct amounted to gross negligence. The NPFC’s analysis of this issue relied on definitions of “negligence”' and “gross negligence” employed in an earlier NPFC administrative decision. Specifically, the First Denial Decision defined “negligence” as “a failure to exercise the degree of care which a person of ordinary caution and prudence would exercise under the circumstances. A greater degree of care is required when the circumstances present a greater apparent risk[;]” and “gross negligence” as “when there is an extreme departure from the care required under the circumstances or a failure to exercise even slight care.” AR US003493 (citing Kuroshima Shipping S.A. Act of God Defense and Limit of Liability Analysis, Claim No. 178010-001, 2003 A.M.C. 1681, 1693, 2003 WL 22103332 (NPFC June 23, 2003) (“Kuroshima”)). In applying these definitions, the NPFC found that the extreme conditions requiring navigation of “the vessel using leads in the ice, or fracture in the thick pancake ice,” posed an “increased risk [and] a greater degree of care was required.” Id. Noting that-“[t]he intended or usual approach with a flood current and heavy ice conditions would be to slow the vessel and allow the current to push the vessel to the north of the platform and to ‘arrive at the Granite Point Platform on its east or west side and then place the bow into the north-flow flood tide,’ ” id. the NPFC pointed to Captain Bucklin’s “admission] during his deposition that he missed the point of slowing his vessel which would have allowed for a proper approach” and that he “realized he was 90 degrees off from his intended approach when he was only 200 yards from the platform,” US003493-94. The NPFC then concluded that “[c]learly Captain Bucklin’s negligent navigation of the vessel was the proximate cause of the incident.” Id.

. The First Denial Decision identifies two factors that catapult the finding of “negligent navigation” into the realm of “gross negligence.” The first factor cited by the NPFC is “Captain Bucklin’s failure to determine the actual position of his vessel with regard to distance and approach to the platform when he relieved the watch.” AR US003494, As support for this finding, the NPFC indicates, without citation to the investigative record compiled by the USCG, that “at the time of relief," Captain Bucklin “estimated the vessel was 35-45 minutes out from the Granite Point Platform.” AR US003492. The NPFC does not address contrary evidence in the USCG record that the incorrect vessel location information did not originate with the Captain but was relayed to him by Chief Mate Hebb shortly before the Captain assumed the watch. AR US002486-87 (USCG Captain Interview). The NPFC credits Captain Bucklin with “soon realizing] that he was closer to the platform than he originally thought when he assumed the watch,” AR US003492,' but still faults him for “failing] to determine the actual position of the vessel when he assumed the watch,” AR US003494, presumably because he failed to do this “soon” enough. The NPFC is vague on precisely when the Captain did figure out the MONARCH’S correct distance from the Granite Point Platform, even though this information is available in the USCG investigative record. Specifically, interviews and statements from both Mate Hebb and Captain Bucklin confirm that Captain Bucklin corrected Mate Hebb’s estimated distance at about the same time as he assumed the watch, only to lose situational awareness in transit through the ice to the platform. See, e.g., AR US002478-79 (USCG Hebb Interview).

The second factor cited by the NPFC to support the finding of gross negligence is Captain Bucklin’s “inattention to the circumstances of the vessel in the last minutes before the allision, as indicated by the phone calls to another platform.” AR US003494. This finding is made without addressing the contextual circumstances described in the USCG Report that Captain Bucklin placed the two phone calls at a time when he had lost situational awareness through his navigational maneuvers through thick ice. AR US003764 (USCG Report). Nonetheless, the NPFC concluded that these factors showed “an extreme departure from the degree of care required under the circumstances or a failure to exercise even slight care.” Id.

2. The Second Denial Decision

On December 1, 2014, after receiving an extension on the filing deadline, see AR USÓ03596-98 (E-mail from NPFC Claims Manager to plaintiff (Aug. 13, 2014), granting 90-day extension to file request for reconsideration), the plaintiff submitted a reconsideration request for its reimbursement claim, AR US003496-507 (PL’s Request for Reconsideration). The plaintiff waited over a year and half after requesting reconsideration without any response from the NPFC. Consequently, the plaintiff advised the NPFC that it intended to file the instant action if a favorable disposition was not issued before May 29, 2015. AR US003602 (Pl.’s Notice of Intent to File (May 18, 2014)).

In the face of continuing silence from the NPFC, the plaintiff filed this action on May 29, 2015. See Compl., ECF No. 1. Two months later, on July 21, 2015, with the benefit of having the plaintiffs critique of the First Denial Decision outlined in the Complaint, the NPFC again denied the plaintiffs reimbursement claim, “in accordance with 33 U.S.C. § 2704(c)(1)(a) on grounds Claimant was not entitled to a statutory limitation of liability because the incident was proximately caused by the gross negligence of the responsible party.” AR US003534 (Letter from NPFC to plaintiff (July 21, 2015) (“Second Denial Decision”)). Without addressing the timeliness of the Second Denial Decision, the NPFC deemed this decision to be “the final agency action on the Claimant’s claim.” AR US003537.

The 14-page Second Denial Decision is double the length of the First Denial Decision and includes the NPFC’s consideration of supplemental declarations by Captain Bucklin as well as Captain James Wright, an expert “Harbor Pilot ... with almost 30 years of experience operating as a pilot in the Cook Inlet,” submitted by the plaintiff with the request for reconsideration. AR US003535, 3539 (Second Denial Decision). The NPFC again rejected the plaintiff’s argument, which had been summarily rejected in the First Denial Decision, that denial of the liability limitation was not warranted since the investigations conducted by a USCG component and the Aaska Department of Environmental Conservation—government agency components arguably more familiar with the conditions in Cook Inlet than the NPFC—had not found evidence of, nor levied penalties for, gross negligence. AR US003535-37. Without any specific critique of those investigations or their conclusions, the NPFC merely noted that it was “not bound by such reports of investigation.” AR US003540.

Athough the ultimate conclusion is the same, the Second Denial Decision differs from the First Denial Decision, in both its rendition of the facts and its legal analysis, in at least four significant respects. First, the Second Denial Decision does an about-face from the First Denial Decision’s assessment of Captain Bucklin’s initial navigational decisions. The First Denial Decision expressly faulted Captain Bucklin for “fail[ing] to determine the actual position of the vessel when he assumed the watch.” AR US003494 (First Denial Decision) (emphasis added). By contrast, the Second Denial Decision hews more closely to the investigative record by noting that Captain Bucklin initially “receiv[ed] incorrect information from Mr. Hebb” and credits the Captain with “quickly realiz[ing]” the correct location of the MONARCH vis-a-vis the Granite Point Platform. AR US003536. Based on this fact, the Second Denial Decision concludes “that Captain Bucklin had situational awareness, knew the location and speed of MONARCH and his distance from Granite. Point when he took the watch from Mate Hebb at 0520.” AR US003543. In other words, the NPFC’s initial factual determination regarding the Captain’s failure to learn the MONARCH’S location when he relieved the watch, on which the First Denial Decision’s conclusion of gross negligence was based, see AR US003494 (First Denial Decision), is jettisoned in the Second Denial Decision’s analysis of the facts.

Second, the NPFC also reaches a different conclusion with regard to the timing of Captain Bucklin’s two brief unanswered phone calls to the ANNA platform shortly before the allision. The First Denial Decision described these calls as being made “[ijnexplicably” when Captain Bucklin was “in the midst of the last minute attempts to maneuver the vessel and avoid the allision,” AR US003492 (First Denial Decision) (emphasis added), and cited these calls as evidenc.e of his “inattention” underlying the initial finding of gross negligence, AR US003494 (“Regardless of the purpose of those calls we find that attempting or making calls to another platform in the midst of the last minute maneuvers are an extreme departure from the degree of care required under the circumstances or the absence of even slight care.”)- The Second Denial Decision corrects the timing of these phone calls as occurring “seconds” before Captain Buck-lin “realized the vessel was only 200 yards from the platform,” at which point “[i]t was impossible to slow the vessel and navigate against the current to the platform,” as he had originally intended. AR US003536 (Second Denial Decision). In other words, the two calls initially described as “inexplicably” placed while Gap-tain Bucklin was conducting his final maneuvers are instead described as taking place before Captain Bucklin’s realization of his uncontrolled approach to the platform. Despite the NPFC’s correction about the timing of the calls, the Second Denial Decision again does not acknowledge the USCG’s repeated contextual findings that the Captain had lost situational awareness at the time of the calls due to navigating the MONARCH in the dark through leads in thick ice.

Third, the legal analysis in the Second Denial Decision discusses at length the principle “under admiralty law that a vessel will presumptively be at fault when it allides with a stationary object,” AR US003538, which was not mentioned at all in the First Denial Decision. The Second Denial Decision does not explain, however, how this principle, which creates a 'prima facie case of negligence, necessarily implies that Captain Bucklin was grossly negligent. See Bessemer, 596 F.3d at 362; see also Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 210 (2d Cir. 2009) (“It is a well-established proposition of maritime collision law that when a moving vessel collides with a stationary object, an inference of negligence arises and the burden is then upon the owners of the vessel to rebut the inference of negligence.”). Certainly, the fact that an allision occurred is not, standing alone, sufficient to trigger a finding of gross negligence, and the NPFC does not so assert.

Finally, although the NPFC again applies the same definition of gross negligence used in the 2003 NPFC administrative decision in Kuroshima, the Second Denial Decision employs different reasoning not referenced in the First Denial Decision that the allision was caused by a “series of negligent acts of Captain Buck-lin and these instances of negligence taken together constitute gross negligence.” AR US003545. The following two “instances” are identified as support for this conclusion on reconsideration: (1) “Captain Bucklin was distracted because he made two telephone calls two and one minute prior to the allision”; and (2) “[Captain Bucklin] failed to safely slow the vessel in order to make a controlled and safe approach to Granite Point Platform.” Id. The second instance is also blamed on the Captain being distracted by placing the two telephone calls. See AR US003545 (“[T]he distraction caused by the telephone calls resulted in Captain Bucklin’s failure to maintain a safe speed as he approached the Granite Point platform.”).

The NPFC acknowledges in the Second Denial Decision a factor cited repeatedly in the USCG Report that “the Master’s loss of situational awareness may have been one of the factors leading up to the incident,” AR US003540, an acknowledgement that stands in contrast to the First Denial Decision, which was silent in its analysis about the Captain’s loss of situational awareness. The NPFC attributes this “lost awareness” to the two telephone calls placed by the Captain rather than the fact that the Captain was navigating the MONARCH in the dark through heavy ice and disorienting ice leads. AR US003545 (“He lost awareness two minutes prior to the allision because he was distracted by the two phone calls he made to Anna Platform.”); id. (“The NPFC finds that the telephone calls were a distraction and were an occurrence that proximately caused to [sic] incident.”). This finding blaming the calls for the loss of situational awareness is difficult to reconcile with the NPFC’s other finding that the calls were, in fact, made before Captain Bucklin realized the MONARCH was close to the platform. AR US003536. The latter finding indicates that when the calls were placed, the Captain had already lost situational awareness, rather than losing it due to the calls. In any event, the Second Denial Decision discounts as “not convincing” the Captain’s express denial that the calls were a distraction, despite apparently concurring with his explanation that the calls occurred before “he realized his miscalculation” about his distance from the platform. AR US003544.

The NPFC also discounts the expert statement of Captain Wright that “the attempted telephone calls were not a distraction” contributing to the allision. Id. The Second Denial Decision “accepts Captain Wright’s calculation that the vessel could have traveled a quarter of a mile during” 46-50 seconds, the span of time Captain Bucklin estimated between the conclusion of his second attempted call to the Anna platform and the beginning of his maneuvers to “shape up his approach to the platform.” AR US003544. Nonetheless, the NPFC speculates that “since the vessel at this time was 200 yards from the platform it is not clear that during those 45-50 seconds after making the second call Captain Bucklin had sufficient time to prevent an allision.” Id. In reaching this conclusion, the Second Denial Decision again acknowledges the USCG Report’s finding that Captain Bucklin had lost situational awareness due to the Captain’s maneuvering through heavy ice.” Id. The Second Denial Decision, however, reasons that because “Captain Bucklin was aware of his location at the time he took the watch from Mate Hebb at 0520” and “knew that he was only 15 minutes out from Granite Point,” which was correct information since the MONARCH “allided with Granite Point within five or ten minutes of his estimation,” Captain Bucklin “lost awareness two minutes prior to the allision because he was distracted by the two phone calls he made to Anna Platform.” AR US003545 (emphasis added). In other words, the NPFC pinpoints the time of the lost situational awareness and places it exactly when the telephone calls were made in order to identify those calls as the cause of Captain Buckiiris loss of situational awareness.

The NPFC does not explain why this telephone call theory is the more likely explanation for Captain Bucklin’s loss of situational awareness than the USCG Report’s conclusion—corroborated by Captain Wright, whom the NPFC recognizes is an “experienced pilot that often transits the waters of Cook Inlet,” AR US003544, and by crewmember interviews—that the loss of situational awareness was due to Captain Bucklin’s navigation, in the dark, through thick ice soon after he assumed the watch. Similarly to the First Denial Decision, the Second Denial Decision summarily notes, and dismisses, the findings in the USCG Report, AR US003540.

The arguments raised by the parties in their cross-motions for summary judgment are now considered.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 66, summary judgment may be granted when the court finds “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (e)(3); see Tolan v. Cotton, - U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The first part of the Rule 66 summary judgment standard regarding the absence of disputed material facts, however, is irrelevant in APA cases since “ ‘the district judge sits as an appellate tribunal’” and “[t]he entire case on review is a question of law.’” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083-84 (D.C. Cir. 2001). As such, “the complaint, properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action.” Id. (quoting Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)). Consequently, “[generally speaking, district courts reviewing agency action under the APA’s arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting, in APA case, that “determining the facts is generally the agency’s responsibility, not ours”).

Under the APA, a reviewing court must set aside a challenged agency action that is found to be, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The arbitrary or capricious standard, under subsection 706(2)(A), “is a catchall, picking up administrative misconduct not covered by the other more specific paragraphs” of the APA. Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. (ADPSO), 745 F.2d 677, 683 (D.C. Cir. 1984) (Scalia, J.).

The scope of review under the “arbitrary and capricious standard is ‘highly deferential,’ ” Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C. Cir. 2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008)), and “narrow,” such that “a court is not to substitute its judgment for that of the agency,” Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011) (quotations omitted); Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016); Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1135 (D.C. Cir. 2014); Agape Church, Inc. v. FCC, 738 F.3d 397, 408 (D.C. Cir. 2013). This “highly deferential” standard, which “presumes agency action to be valid,” Defs. of Wildlife v. Jewell, 815 F.3d 1, 9 (D.C. Cir. 2016) (quotations and citation omitted), “is especially applicable [to] ... ‘technical determinations on matters to which the agency lays claim to special expertise,’ ” Rose bud Mining Co. v. Mine Safety & Health Admin., 827 F.3d 1090, 1101 (D.C. Cir. 2016) (quoting Bldg. & Constr. Trades Dep’t, AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988)). Yet, “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Judulang, 132 S.Ct. at 483-84. Simply put, “the agency must explain why it decided to act as it did,” Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010), and the reason for the agency’s decision must be “both rational and consistent with the authority delegated to it by Congress,” Xcel Energy Servs. Inc. v. Fed. Energy Regulatory Comm’n, 815 F.3d 947, 952 (D.C. Cir. 2016).

In evaluating agency actions under the “arbitrary and capricious” standard, courts “must consider whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Ore. Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quotations omitted) (citing Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)); Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm’n, 716 F.3d 183, 195 (D.C. Cir. 2013). “An agency acts arbitrarily or capriciously if it has relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation either contrary to the evidence before the agency or so implausible as to not reflect either a difference in view or agency expertise.” Defs. of Wildlife, 815 F.3d at 9. When an agency “ ‘fail[s] to provide a reasoned explanation, or where the record belies the agency’s conclusion, [the court] must undo its action.’ ” Cty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999)); see Select Specialty Hosp.-Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (noting that when “‘an agency’s failure to state its reasoning or to adopt an intelligible deci-sional standard is ... glaring ... we can declare with confidence that the agency action was arbitrary and capricious’ ” (quoting Checkosky v. SEC, 23 F.3d 452, 463 (D.C. Cir. 1994))).

At the very least, the agency must have reviewed relevant data and articulated a satisfactory explanation establishing a “ ‘rational connection between the facts found and the choice made,’” Ark Initiative, 816 F.3d at 127 (quoting Motor Vehicle Mfrs. Ass’n of the 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)); Am. Trucking Ass’ns, Inc., 724 F.3d at 249 (same); see also EPA v. EME Homer City Generation, L.P., - U.S. -, 134 S.Ct. 1584, 1602, 188 L.Ed.2d 775 (2014) (holding that agency “retained discretion to alter its course [under a regulation] provided it gave a reasonable explanation for doing so”). “[C]onclusory statements will not do; an agency’s statement must be one of reasoning.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (quotations omitted).

Moreover, when review of an agency’s action is “bound up with a record-based factual conclusion,” the reviewing court must determine whether that conclusion “is supported by substantial evidence.” Dickinson v. Zurko, 527 U.S. 150, 164, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quotations omitted); see also Kappos v. Hyatt, 566 U.S. 431, 132 S.Ct. 1690, 1695, 182 L.Ed.2d 704 (2012) (affirming review of “factual findings under the APA’s deferential ‘substantial evidence’ standard”). “Substantial evidence” is “enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury.” Defs. of Wildlife, 815 F.3d at 9 (quotations and citation omitted). Assessment of whether substantial evidence supports the agency’s factual findings is based on consideration of the record “as a whole.” Id.; see also Kaufman v. Perez, 745 F.3d 521, 527 (D.C. Cir. 2014) (noting that agency factual findings may be “set aside ... ‘only if unsupported by substantial evidence on the record as a whole.’ ” (quoting Chippewa Dialysis Servs. v. Leavitt, 511 F.3d 172, 176 (D.C. Cir. 2007))).

Notably, “an agency’s refusal to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of § 706,” as does ignoring “evidence contradicting its position.” Butte Cty., 613 F.3d at 194. As the D.C. Circuit explained, an agency decision “would be arbitrary and capricious” if it is not “supported by substantial evidence” because “ ‘it is impossible to conceive of a ‘nonarbitrary’ factual judgment supported only by evidence that is not substantial in the APA sense.’ ” Safe Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007) (quoting ADPSO, 745 F.2d at 684)). Consequently, when assessing whether agency action is arbitrary or capricious, “in their application to the requirement of factual support[,] the substantial evidence test and the arbitrary or capricious test are one and the same.” ADPSO, 745 F.2d at 683; accord CTS Corp. v. EPA, 759 F.3d 52, 59 n.1 (D.C. Cir. 2014).

Judicial review is limited to the administrative record, since “[i]t is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.” CTS Corp., 759 F.3d at 64 (quotations and citations omitted; alteration in original); see 5 U.S.C. § 706 (“[T]he Court shall review the whole record or those parts of it cited by a party ....”); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting, when applying arbitrary and capricious standard under the APA, “ ‘[t]he focal point for judicial review should be the administrative record already in existence (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973))); Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (“review is to be based on the full administrative record that was before the [agency] at the time” of the challenged decision).

III. DISCUSSION

The plaintiff contends that the NPFC’s First Denial Decision must be “set aside” as “arbitrary and capricious.” Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 1-2, ECF No. 19-1. Specifically, the plaintiff challenges both (1) the factual support for the NPFC’s conclusion regarding gross negligence, complaining that this conclusion was “based solely on speculation” and “conjecture,” and was contrary to the “comprehensive contemporaneous casualty investigation” findings “by the Alaska Department of Environmental Conservation and United States Coast Guard (Sector Anchorage), who actually investigated the incident,” PL’s Mem at 1-2,19, 22; and (2) the NPFC’s legal reasoning, contending that the agency “used a far-reaching net of ‘gross negligence’ ” that resulted in misapplication “of its own definition of gross negligence” in a manner “inconsistent with its own reported precedent,” PL’s Mem. Pts. and Auth. Reply to Def.’s Opp’n to PL’s Mot. Supp. Summ. J. and Opp’n to Def.’s Cross-Mot. for Summ. J. (“PL’s Reply”) at 1, 3, 7. For its part, NPFC rests on the First and Second Denial Decisions, stating that “there is a rational connection between the facts in the record and the NPFC’s adjudication, and therefore, the NPFC’s decision is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Def.’s Opp’n at 1.

As a threshold matter, the plaintiff demands that the NPFC’s Second Denial Decision be stricken from the administrative record due to the NPFC’s failure to respond in a timely manner to plaintiffs reconsideration request within 90 days, as required by 33 C.F.R. § 136.115(d). PL’s Mem. at 14, 28-81. The issue of which NPFC denial decision constitutes the “final agency action” subject to judicial review, see 5 U.S.C. § 704, is considered first, before turning to the plaintiffs substantive challenges to the sufficiency of the factual support for the NPFC’s key findings and the adequacy of the agency’s rationale.

A. THE SECOND DENIAL DECISION IS STRICKEN AS UNTIMELY

The regulations implementing the OPA require the NPFC to notify the claimant in writing of a reconsideration decision “within 90 days after receipt of the request for reconsideration,” and makes “[t]his written decision [ ] final.” 33 C.F.R. § 136.115(d). When, however, the NPFC fails “to make final disposition of a reconsideration within 90 days after it is received,” the untimely decision “shall, at the option of the claimant any time thereafter, be deemed a final denial of the reconsideration.” Id. These regulations give the claimant the “option” not to consider an untimely reconsideration decision to be the final agency action, in which case the first, rather than the reconsideration, denial decision constitutes the final agency action. Thus, the untimely Second Denial Decision is the final agency action only if the plaintiff has “opt[ed]” to “deem[ ]” it as such. Id. The plaintiff has not done so here, as the procedural history of this case and the briefing on the pending cross-motions makes plain.

After receiving an extension on its filing deadline to request reconsideration, the plaintiff filed a reconsideration request on December 1, 2014. AR US003496-3528 (PL’s Request for Reconsideration). On May 29, 2015, more than ninety days after the reconsideration request was submitted, the plaintiff filed the instant complaint, which contains allegations expressly noting the NPFC’s failure to respond to the reconsideration request within the requisite ninet