FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SEA HAWK SEAFOODS, INC., an            
Alaska corporation; NON-AFA
PROCESSORS ASSOCIATION,
              Plaintiffs-Appellants,
                 v.
                                            No. 07-35754
GARY F. LOCKE, in his official
capacity as United States Secretary          D.C. No.
                                           CV-06-01616-JCC
of Commerce; UNITED STATES
DEPARTMENT OF COMMERCE;                       OPINION
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION;
NATIONAL MARINE FISHERIES
SERVICE,
             Defendants-Appellees.
                                       
        Appeal from the United States District Court
          for the Western District of Washington
       John C. Coughenour, District Judge, Presiding

                 Argued and Submitted
          December 9, 2008—Seattle, Washington

                    Filed June 17, 2009

     Before: Ronald M. Gould, Richard C. Tallman and
           Consuelo M. Callahan, Circuit Judges.

                 Opinion by Judge Callahan




                            7221
7224            SEA HAWK SEAFOODS v. LOCKE




                         COUNSEL

Leonard J. Feldman, Michael T. Shein, Kevin P. Sullivan,
Seattle, Washington, on behalf of appellants Sea Hawk Sea-
foods, Inc. and the Non-AFA Processors Association.

Anna T. Katselas, United States Department of Justice, Wash-
ington, D.C., on behalf of appellees Gary F. Locke, United
States Secretary of Commerce; United States Department of
Commerce; National Oceanic and Atmospheric Administra-
tion; and National Marine Fisheries Service.


                         OPINION

CALLAHAN, Circuit Judge:

  Sea Hawk Seafoods, Inc. (“Sea Hawk”) and the Non-AFA
Processors Association (collectively, “Plaintiffs”) appeal the
                    SEA HAWK SEAFOODS v. LOCKE                       7225
district court’s dismissal of their claims against the United
States Secretary of Commerce (“Secretary”), United States
Department of Commerce (“Commerce Department”),
National Oceanic and Atmospheric Administration
(“NOAA”), and National Marine Fisheries Service
(“NMFS”). We consider whether the Magnuson-Stevens Fish-
ery Conservation and Management Act’s (“MSA”) thirty-day
statute of limitations, 16 U.S.C. § 1855(f), or the Administra-
tive Procedures Act’s (“APA”) general six-year limitations
period applies to Plaintiffs’ challenge to regulations promul-
gated to implement amendments to fishery management
plans. These amendments were prompted by passage of the
American Fisheries Act (“AFA”).1 We also consider whether
Plaintiffs have adequately alleged a “failure to act” claim
under the APA against NMFS and the North Pacific Council,
which is not a party here, related to the promulgation of the
challenged regulations. We conclude that the MSA’s thirty-
day limitations period applies to bar Plaintiffs’ direct chal-
lenge to the regulations and that Plaintiffs’ failure to act claim
is an impermissible attempt to recast its direct challenge to the
regulations so as to avoid the MSA’s shortened limitations
period. Accordingly, we affirm the district court’s dismissal
of Plaintiffs’ claims.

                                    I.

                                    A.

  In 1976, Congress enacted the MSA, 16 U.S.C. §§ 1801-
1883, in an effort to, among other things, “conserve and man-
age the fishery resources found off the coasts of the United
States” and, in particular, within the United States’ exclusive
economic zone. 16 U.S.C. § 1801(b)(1); see generally Or.
Trollers Ass’n v. Gutierrez, 

, 1108 (9th Cir.
2006). The MSA provides for the establishment of eight
  1
   Pub. L. No. 105-277, div. C., tit. II, §§ 205-213, 112 Stat. 2681-621 to
2681-637 (Oct. 21, 1998) (codified at 16 U.S.C. § 1851 note).
7226                SEA HAWK SEAFOODS v. LOCKE
Regional Fishery Management Councils (“Regional Coun-
cils”) to oversee conservation and management efforts in vari-
ous fisheries.2 16 U.S.C. § 1852(a), (h). The overall authority
to implement those efforts, however, is delegated to the Sec-
retary, who acts through NMFS and NOAA. See 

-1854.

   The Regional Councils are required to prepare and submit
to the Secretary fishery management plans (“FMPs”) and any
amendments to such FMPs as “are necessary from time to
time.” 

FMPs establish general limitations on
fisheries, such as seasonal restrictions and gear limitations, in
order to “achieve and maintain, on a continuing basis, the
optimum yield from each fishery.” 

see also,
e.g., 50 C.F.R. pt. 679. FMPs and amendments thereto shall
contain, among other things, “conservation and management
measures . . . consistent with the [MSA] . . . and any other
applicable law.” 16 U.S.C. § 1853(a)(1)(C). Upon receipt of
a FMP or an amendment, the Secretary must “publish in the
Federal Registry a notice stating that the FMP or amendment
is available” for a public comment period of sixty days. 

After receiving comments, the Secretary
may approve, reject, or partially approve the submitted FMPs
or amendments. 

Moreover, if the appropriate
council does not make a recommendation, or if the Secretary
is not satisfied with the recommendation made, the Secretary
can himself prepare a plan or an amendment, likewise utiliz-
ing a sixty-day comment period. 

  The MSA also contains a provision limiting judicial
review, which is at the center of this appeal:
  2
   Each council is made up of “individuals who, by reason of their occu-
pational or other experience, scientific expertise, or training, are knowl-
edgeable regarding conservation and management, or the commercial or
recreational harvest, of the fishery resources of the geographical area con-
cerned.” 16 U.S.C. § 1852(b)(2)(A).
                    SEA HAWK SEAFOODS v. LOCKE                      7227
      Regulations promulgated by the Secretary under [the
      MSA] and actions described in paragraph (2) shall
      be subject to judicial review to the extent authorized
      by, and in accordance with, [the Administrative Pro-
      cedure Act (APA)], if a petition for such review is
      filed within 30 days after the date on which the regu-
      lations are promulgated or the action is published in
      the Federal Register . . . .

(emphasis added). The actions described in
“paragraph (2)” are those “taken by the Secretary under regu-
lations which implement a fishery management plan . . . .” 

                                   B.

   Additional legislation is implicated by this appeal. In 1998,
Congress enacted the American Fisheries Act, which, among
other things, attempted to rationalize3 the North Pacific Pol-
lock Fishery by providing exclusive rights to certain compa-
nies and vessels. See AFA §§ 208-209. In essence, the AFA
created bilateral monopolies for fishing cooperatives formed
under the AFA, as well as AFA-designated processors. See
AFA §§ 208(f)(1), 210(b)(1); see also Scott C. Matulich et al.,
Fishery Cooperatives as an Alternative to ITQs: Implications
of the American Fisheries Act, 16 MARINE RESOURCE ECONOM-
ICS 1, 4 (2001).

  Congress recognized that this cooperative scheme could
have adverse economic effects on other fisheries and non-
participating processors.4 Accordingly, the AFA calls for the
  3
     Rationalize means to “make [an industry] more efficient by reorganiz-
ing it in such a way as to dispense with unnecessary personnel or equip-
ment.” NEW OXFORD AMERICAN DICTIONARY 1413 (Elizabeth J. Jewell &
Frank Abate, eds., 2001).
   4
     In discussing the bill that enacted the AFA, Senator Patty Murray
stated:
7228                SEA HAWK SEAFOODS v. LOCKE
North Pacific Council (“Council”), one of the Regional Coun-
cils, to recommend protections, referred to as “sideboard pro-
tections” or “sideboards,” for those fisheries and processors.5
The Council

     shall recommend for approval by the Secretary such
     conservation and management measures as it deter-
     mines necessary to protect other fisheries under its
     jurisdiction and the participants in those fisheries,
     including processors, from adverse impacts caused
     by [the AFA] or fishery cooperatives in the directed
     pollock fishery.

AFA § 211(a); see 50 C.F.R. § 679.64 (referring to sideboard
protections). Moreover, the AFA provides that the Council
“shall” by July 1, 1999 recommend for approval by the Secre-
tary conservation and management measures to prevent over-
harvesting and to “protect processors not eligible to partici-
pate in the directed pollock fishery from adverse effects”
resulting from the AFA. AFA § 211(c)(1).6 It also authorizes

    While we have attempted to include at least a minimum level of
    protections for these other fisheries, it is clear to many of us that
    unintended consequences are likely. It is therefore imperative that
    the fishery management councils not perceive the protections
    provided in this bill as a statement by Congress that these are the
    only protections needed. In fact, the opposite is true . . . . Those
    of us involved intimately in the development of this legislation
    strongly urge the Councils to monitor the formation of fishery
    cooperatives closely and ensure that other fisheries are held
    harmless to the maximum extent possible.
144 CONG. REC. S12,696-03, S12,708 (Oct. 20, 1998) (remarks of Sen.
Murray).
   5
     The North Pacific Council is one of the eight Regional Councils estab-
lished by the MSA. 16 U.S.C. § 1852(a)(1)(G). It encompasses the states
of Alaska, Oregon, and Washington, and has authority over “the fisheries
in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska.”

211(c)(1) of the AFA states, in part:
    (1) Required council recommendations.—By not later than July
                    SEA HAWK SEAFOODS v. LOCKE                        7229
the Secretary to take action if the Council does not make rec-
ommendations or if the Secretary determines that the Coun-
cil’s recommendations are inadequate.7 

present action focuses on certain regulations promul-
gated by NMFS in December 2002 (“2002 Regulations”),
which concern four amendments to FMPs and their imple-
menting regulations.8 See 67 Fed. Reg. 79,692-79,739 (Dec.

    1, 1999, the North Pacific Council shall recommend for approval
    by the Secretary conservation and management measures to—
        (A) prevent the catcher vessels eligible under subsections (a),
        (b), and (c) of section 208 [of this note] from exceeding in
        the aggregate the traditional harvest levels of such vessels in
        other fisheries under the authority of the North Pacific Coun-
        cil as a result of fishery cooperatives in the directed pollock
        fishery; and
          (B) protect processors not eligible to participate in the
          directed pollock fishery from adverse effects as a result of
          this Act [American Fisheries Act, Pub.L. 105-277, Div. C,
          Title II, Oct. 21, 1998, 112 Stat. 2681-616] or fishery coop-
          eratives in the directed pollock fishery.
  7
    Section 211(c)(1) continues:
     If the North Pacific Council does not recommend such conserva-
     tion and management measures by such date, or if the Secretary
     determines that such conservation and management measures
     recommended by the North Pacific Council are not adequate to
     fulfill the purposes of this paragraph, the Secretary may by regu-
     lation restrict or change the authority in section 210(b) [of this
     note] to the extent the Secretary deems appropriate, including by
     preventing fishery cooperatives from being formed pursuant to
     such section and by providing greater flexibility with respect to
     the shoreside processor or shoreside processors to which catcher
     vessels in a fishery cooperative under section 210(b) [of this
     note] may deliver pollock.
  8
    The summary to the amendments notes:
    The management measures include: measures that allocate the
    Bering Sea and Aleutian Islands Management Area (BSAI) pol-
7230                SEA HAWK SEAFOODS v. LOCKE
30, 2002) (codified in various sections of 50 C.F.R. pt. 679).
Plaintiffs were concerned that although the 2002 Regulations
provided some protections for non-AFA “shoreside proces-
sors”9 against unfair competition related to pollock fishing,
the regulations did not provide adequate sideboard protections
for non-AFA shoreside processors with respect to other types
of fish, such as salmon. In particular, Plaintiffs complained
that these regulations did not restrict AFA-related “floating
shoreside processors”10 from leaving a single geographic loca-
tion in Alaskan waters after the pollock fishing season and
relocating to Prince William Sound, Alaska to process
salmon, which would impact Sea Hawk’s business. In 1999,
Sea Hawk had advised the Council of its concerns as an estab-
lished non-AFA shoreside salmon processor located in Prince
William Sound regarding “the anticipated encroachment of
AFA-owned or controlled processing vessels into [Prince
William Sound].” Sea Hawk alleged that “allowing AFA-

    lock among the sectors of the pollock processing industry and
    restrict who may fish for and process pollock within each indus-
    try sector; measures that govern the formation and operation of
    fishery cooperatives in the BSAI pollock fishery; harvesting and
    processing limits known as sideboards to protect the participants
    in other fisheries from spillover effects resulting from the ratio-
    nalization of the BSAI pollock fishery; measures that establish
    catch weighing and monitoring requirements for vessels and pro-
    cessors that participate in the BSAI pollock fishery; and exten-
    sion of the inshore/offshore regime for pollock and Pacific cod in
    the Gulf of Alaska (GOA) through December 31, 2004.
   67 Fed. Reg. at 79,692.
   9
     “Shoreside processor” is defined as “any person or vessel that receives,
purchases, or arranges to purchase, unprocessed groundfish, except catch-
er/processors, motherships, buying stations, restaurants, or persons receiv-
ing groundfish for personal consumption or bait.” 50 C.F.R. § 679.2; see
also AFA § 205(12).
   10
      A “floating shoreside processor” or “stationary floating processor” is
defined as “a vessel of the United States operating as a processor in
Alaska State waters that remains anchored or otherwise remains stationary
in a single geographic location while receiving or processing groundfish
harvested in the GOA or BSAI.” 50 C.F.R. § 679.2.
                   SEA HAWK SEAFOODS v. LOCKE                      7231
created surplus processor ships to enter any Alaska salmon
fishery jeopardizes and devalues the established shoreside
facilities’ investments and development.”

  The 2002 amendments were developed over a three-year
period and involved twelve Council meetings as well as “nu-
merous other public meetings.” 67 Fed. Reg. at 79,692.
Regarding the provision of notice and a public comment
period, the background section to the final rule explains that:

          [w]hile [these amendments] were under develop-
       ment, the deadlines and statutory requirements of the
       AFA were met on an interim basis through several
       emergency interim rules.[11] The final [Environmen-
       tal Impact Statement] for [the amendments] contains
       a summary of the extensive public process involved
       in the development of the amendments and describes
       the AFA-related rulemaking completed [up to
       December 2002]. The proposed rule for [the amend-
       ments] was published on December 17, 2001 (66 FR
       65028), with comments invited through January 31,
       2002. NMFS received 12 letters of comment by the
       end of the comment period on the proposed rule,
       many of which contained extensive comments on
       various sections of the proposed rule. A notice of
       availability of [the amendments] was published on
       November 27, 2001 (66 FR 59225), with comments
       on the Amendments invited through January 28,
       2002. NMFS received one comment letter on the
       amendments that supported approval and no com-
       ments that recommended disapproval.

included with the final rule states that these
  11
     See 16 U.S.C. § 1855(c) (giving the Secretary the authority to pro-
mulgate emergency regulations or interim measures, and providing that
such regulations or measures shall remain in effect for not more than 180
days).
7232             SEA HAWK SEAFOODS v. LOCKE
amendments and management measures were necessary “to
implement the AFA” and were intended to do so “in a manner
consistent with the environmental and socioeconomic objec-
tives of AFA, the [MSA], and other applicable laws.” 67 Fed.
Reg. at 79,692. The 2002 Regulations also note that they
“were developed by NMFS and the Council under the
Magnuson-Stevens Act and American Fisheries Act (AFA) to
govern commercial fishing for BSAI pollock according to the
requirements of the AFA.” 

(codified as amended
at 50 C.F.R. § 679.1).

   Although the AFA required the Council to recommend
sideboards for both non-AFA catcher vessels and processors,
AFA § 211(c)(1), the Council decided not to take any action
with regard to the non-AFA processors, explaining:

    With respect to non-pollock groundfish processing
    sideboards, the Council took no action. The Council
    believed that placing non-pollock groundfish pro-
    cessing limits on AFA processors could have nega-
    tive effects on markets for both AFA and non-AFA
    catcher vessels. In addition, the Council concluded
    that its suite of harvesting sideboard restrictions on
    AFA catcher vessels and catcher/processors also
    serve to protect non-AFA processors in the BSAI,
    which are primarily non-AFA catcher/processors.
    Instead of imposing non-pollock processing limits on
    AFA processors, the Council indicated its intent to
    explore revisions to its Improved Reten-
    tion/Improved Utilization program set out at 50 CFR
    679.27. Testimony from non-AFA processors indi-
    cated that such changes could be a more effective
    means of providing a more level playing field for
    non-AFA catcher/processors.

66 Fed. Reg. at 59,228.

  Plaintiffs challenged the Council’s decision not to act. In a
2006 letter to NMFS, they requested that NMFS rescind part
                 SEA HAWK SEAFOODS v. LOCKE                  7233
of its 2002 Regulations and take appropriate action to protect
the non-AFA processors as required by the AFA. In reply,
NMFS disputed the application of the AFA to Plaintiffs, not-
ing that the AFA only provides for protection of “other fish-
eries under [the Council’s] jurisdiction.” According to NMFS,
Plaintiffs, who are located in the territorial sea/internal waters
of Alaska, are not within the Council’s jurisdiction under
either the AFA or MSA.

                               D.

  On November 8, 2006, nearly four years after the 2002
Regulations were promulgated, Plaintiffs filed a complaint for
declaratory and injunctive relief against the Secretary, the
Commerce Department, NOAA, and NMFS (collectively, the
“Agency”). The complaint challenged the 2002 Regulations
and alleged that the Agency failed to act as required by the
AFA.

   The Agency filed a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(1), asserting that Plaintiffs’ action
was untimely filed under the MSA’s thirty-day limitations
period. The district court granted the Agency’s motion to dis-
miss and dismissed the lawsuit with prejudice. The court con-
cluded that the 2002 Regulations were issued pursuant to the
MSA because they “were developed, published for review,
and promulgated under the [MSA’s] statutory procedures and
by authority delegated to NMFS as part of the [MSA’s] over-
all regulation of the federal fisheries.” As a result, the dis-
missal was compelled by the thirty-day limitations period in
16 U.S.C. § 1855(f). The district court also rejected Plaintiffs’
claim that NMFS failed to implement measures mandated by
the AFA.

                               II.

   We review de novo a dismissal for lack of subject matter
jurisdiction. Ctr. for Biological Diversity v. Veneman, 394
7234                SEA HAWK SEAFOODS v. LOCKE
F.3d 1108, 1110 (9th Cir. 2005). We also review de novo a
dismissal based on the running of a statute of limitations. Ellis
v. City of San Diego, 

, 1188 (9th Cir. 1999). We
may affirm “on any proper ground supported by the record,”
Papa v. United States, 

, 1009 (9th Cir. 2002),
but we assume that the material facts alleged in the complaint
are true. Rhoades v. Avon Prods., 

, 1156 (9th
Cir. 2007).

                                  III.

   Plaintiffs first argue that the district court erred by applying
the MSA’s thirty-day statute of limitations instead of the gen-
eral, six-year statute of limitations that otherwise applies to
challenges under the APA. Compare 16 U.S.C. § 1855(f)(1),
with Turtle Island Restoration Network v. U.S. Dep’t of Com-
merce, 

, 942-43 (9th Cir. 2006) (“Although the
APA itself contains no specific statute of limitations, a gen-
eral six-year civil action statute of limitation applies to chal-
lenges under the APA.”). They contend that the MSA’s
expedited review period does not apply to the 2002 Regula-
tions because they were promulgated under the AFA, not the
MSA.

   [1] Challenges to “[r]egulations promulgated by the Secre-
tary” under the MSA must be brought “within 30 days after
the date on which the regulations are promulgated . . . .”12 16
U.S.C. § 1855(f)(1); see also Turtle 

(stating that “the thirty-day time limit applies whenever a
party challenges ‘[r]egulations promulgated by the Secretary
under the [Magnuson Act]’ ” (alterations in original, citation
omitted)). This is a “strict jurisdictional” requirement that
cannot be avoided “through careful pleading.” Turtle Island,
  12
    Regulations are “promulgated” within the meaning of section
1855(f)(1) when published in the Federal Register. Turtle 

(citing Nw. Envtl. Def. Ctr. v. Brennen, 

, 934 (9th
Cir. 1992)).
                    SEA HAWK SEAFOODS v. LOCKE                       

(citation and internal quotation marks omit-
ted). Because there is no dispute that Plaintiffs’ complaint
directly challenges the substance of the 2002 Regulations and
was filed more than thirty days after those regulations were
promulgated, the narrow question here is whether the 2002
Regulations were promulgated under the MSA. See 

(“Section 1855(f) applies only to . . . claims . . . that clearly
challenge regulations promulgated under the Magnuson
Act.”).

   [2] We conclude that the 2002 Regulations were promul-
gated, at least in part, under the MSA. Although the Agency’s
final rule indicates that the 2002 Regulations were intended to
“implement” certain AFA-related amendments, 67 Fed. Reg.
at 79,692, the “purpose and scope” section of the final rule
plainly states that the regulations “were developed by NMFS
and the Council under the Magnuson-Stevens Act and Ameri-
can Fisheries Act.” 67 Fed. Reg. at 79,721 (codified as
amended at 50 C.F.R. § 679.1(k)). Furthermore, as the district
court stated, the 2002 Regulations were “developed, pub-
lished for review, and promulgated” pursuant to the MSA’s
procedures. For example, in accordance with the MSA’s
requirements, see 16 U.S.C. § 1854(a), the 2002 Regulations
were published by the Secretary upon receipt, and a public
comment period of sixty days was provided.13 67 Fed. Reg. at
79,692. The November 2001 notice and request for public
comment regarding the proposed amendments also indicates
that NMFS would review the proposed rule implementing the
amendments to the FMPs under MSA procedures. 66 Fed.
Reg. at 59,228. Based on the foregoing, we conclude that
although the 2002 Regulations were intended to implement
AFA-related amendments, the regulations were promulgated
under the MSA, even if in part.14 Accordingly, the thirty-day
  13
      Plaintiffs’ opening brief acknowledges that NMFS followed the
MSA’s notice and comment procedures, but contends without supporting
authority that this fact is of “de minimus” value.
   14
      The nature of the relationship between the MSA and the AFA is such
that a challenge to the Secretary’s actions or inactions under the AFA with
7236              SEA HAWK SEAFOODS v. LOCKE
review period bars as untimely Plaintiffs’ challenge to the
regulations.

   We note, in passing, that application of the MSA’s thirty-
day statute of limitations to Plaintiffs’ complaint is not partic-
ularly unfair. Plaintiffs had notice of the proposed amend-
ments to the FMPs as early as 1999 and voiced concerns to
the Council regarding the impact of the regulations on salmon
processors in Prince William Sound. Thus, Plaintiffs cannot
legitimately claim surprise regarding the promulgation of the
2002 Regulations and the need to immediately file any suit
challenging these regulations.

                                IV.

   [3] We also reject Plaintiffs’ challenge to the district
court’s dismissal of their “failure to act” claim alleged pursu-
ant to the APA, 5 U.S.C. §§ 551, 702, 706(1). Their failure to
act claim is an improper attempt to plead around the MSA’s
thirty-day statute of limitations because the essence of their
complaint remains that the Secretary failed to conform to his
responsibilities under the AFA and/or the MSA with regard to
the specific regulations enacted.

   [4] Although Plaintiffs’ briefs on this issue lack clarity,
their reply brief asserts that the “failure to act was the Coun-
cil’s failure to recommend sideboards to ‘protect processors
not eligible to participate in the directed pollock fishery from
adverse effects as a result of this Act [the AFA] . . . , and

respect to FMP amendments is likely to invoke the MSA. The MSA is the
vehicle through which regulations implementing FMP amendments are
promulgated. See 16 U.S.C. §§ 1853-1854. The MSA also requires that
FMPs be consistent with other applicable law, which would include the
AFA. 16 U.S.C. § 1853(a)(1)(C). Accordingly, in order for the MSA’s
limited judicial review period to have any meaning, it must apply to
actions that—like the one here—necessarily challenge the Secretary’s
obligations under the MSA.
                     SEA HAWK SEAFOODS v. LOCKE                          7237
NMFS’s failure to recognize its power over salmon processor
sideboards.” In other words, their real complaint is that the
2002 Regulations do not adequately protect shoreside salmon
processors like Sea Hawk from floating shoreside processors
that might begin processing salmon after conclusion of the
pollock season. Specifically, Plaintiffs disagree with the
Council’s perspective that other sideboard protections would
adequately protect non-AFA processors. See 66 Fed. Reg. at
59,228. Regardless of the merits of the dispute, Plaintiffs’
challenge is to the substance of the 2002 Regulations. Accord-
ingly, the MSA’s thirty-day, jurisdictional statute of limita-
tions applies and bars Plaintiffs’ lawsuit despite Plaintiffs’
characterization of their claim as a failure to act claim. Cf.
Am. Bird Conservancy v. FCC, 

, 1193 (9th Cir.
2008) (rejecting plaintiffs’ attempt to plead a direct challenge
to an order of the FCC as a failure to act claim).

   [5] If Plaintiffs’ failure to act claim were construed as not
being a challenge to the promulgation of a specific regulation
but rather as a claim that the Secretary had failed to fulfill his
overall obligations under the AFA to protect salmon proces-
sors, it still would not state a judicially cognizable claim. The
APA provides that “[a] person suffering legal wrong because
of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is enti-
tled to judicial review thereof,” 5 U.S.C. § 702, and that a
reviewing court has the power to “compel agency action
unlawfully withheld.” 

However, the United
States Supreme Court has held that “a claim under § 706(1)
can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is required to
take.” Norton v. S. Utah Wilderness Alliance, 

, 64
(2004).
  15
     The term “agency action” refers to “the whole or a part of an agency
rule, order, license, sanction, relief, or the equivalent or denial thereof, or
failure to act.” 5 U.S.C. § 551(13).
7238                   SEA HAWK SEAFOODS v. LOCKE
   [6] Here, the Secretary was not required to enact at least
some level of protection for salmon processors. The text of
AFA § 211(c)(1) provides that if the Council does not make
protection recommendations or makes recommendations that
are not satisfactory, the Secretary “may by regulation restrict
or change the authority in section 210(b) . . . to the extent the
Secretary deems appropriate . . . .” AFA § 211(c)(1) (empha-
sis added). Because the word “may” implies discretion, there
is no legally required action imposed on the Agency. See

(noting that a court can only compel
an agency “to perform a ‘ministerial or non-discretionary
act’ ” (citation omitted)).

   [7] Also, the alleged requirement that the Secretary at least
“consider” imposing some sanctions is similarly not discrete
or legally required. We have previously rejected the argument
that a requirement “to consider” can give rise to an enforce-
able duty. See Ctr. for Biological 

(finding no enforceable duty where the agency had to con-
sider “57 potentially eligible rivers while planning for the use
and development of water and related land resources” (citing

-65)). Moreover, as the Supreme Court
noted in Norton, “[g]eneral deficiencies in compliance . . .
lack the specificity requisite for agency action.”16 Norton, 542
  16
    In Norton, the Court was concerned with courts infringing upon the
discretion delegated to the agencies:
       The principal purpose of the APA limitations we have dis-
       cussed—and of the traditional limitations upon mandamus from
       which they were derived—is to protect agencies from undue judi-
       cial interference with their lawful discretion, and to avoid judicial
       entanglement in abstract policy disagreements which courts lack
       both expertise and information to resolve. If courts were empow-
       ered to enter general orders compelling compliance with broad
       statutory mandates, they would necessarily be empowered, as
       well, to determine whether compliance was achieved—which
       would mean that it would ultimately become the task of the
       supervising court, rather than the agency, to work out compliance
       with the broad statutory mandate, injecting the judge into day-to-
       day agency 

.
                 SEA HAWK SEAFOODS v. 

(rejecting the claim based on the requirement that
the agency “ ‘manage . . . in a manner so as not to impair the
suitability of [certain] areas for preservation as wilderness’ ”
(citation omitted)). Thus, the Secretary’s alleged “failure to
consider” is not actionable under Section 706(1).

                              V.

   We conclude that Plaintiffs’ complaint challenging the
2002 Regulations is governed by the MSA’s thirty-day statute
of limitations and is thus time-barred. We also conclude that
Plaintiffs’ complaint cannot be rendered timely through Plain-
tiffs’ attempt to recast their substantive challenges to these
regulations as a failure to act claim. Accordingly, the district
court is AFFIRMED.