Understanding Regulatory Environment and Administrative Procedures

Welcome CHAPTER 2a: OALs and Admin Record The Regulatory Environment Regulatory Training Program

The Regulatory Environment Agency Authority Statutory Interpretation Administrative Procedure Act (Act) Overview of Other Applicable Laws (OALs) The Administrative Record

Agency Authority U.S. Constitution Statutes (agency-specific and general) Executive orders, memoranda, etc. Agency procedures and practices, e.g., delegations of authority Court decisions interpreting authorities

Statutory Interpretation Chevron two-step analysis: Step 1: Has Congress spoken directly to precise question at issue? YES Give effect to Congressional Intent! NO Go to Step 2 Step 2: Is agency s answer based on permissible construction of statute? Chevron, Inc. v. Natural Resources Defense Council (Supreme Court 1984) Statutory construction principles

Which law was born in 1946 ?

Administrative Procedure Act (APA) Overarching statute for federal agency action Legislative Judicial Executive Fed agencies - Legislative rules

APA: Rulemaking Rule (aka regulation) is defined broadly Substantive & procedural requirements for rules: (a) record must support decision (b) opportunity for public comment (c) 30-day delay in effectiveness of final rules. Federal Register publication: proposed & final rules

APA: Court Review Reasonableness Judicial (court) review of final agency action [R]eviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be: arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory jurisdiction; or without observance of procedure required by law

APA: Arbitrary & Capricious An agency decision is arbitrary and capricious if the agency . . . Relied on factors not intended by Congress; Entirely failed to consider important aspect of problem; Offers explanation that runs counter to the evidence; or Makes decision so implausible that could not be ascribed to difference in view or product of agency expertise. Motor Vehicle Manufacturers Association, Inc., et al., v. State Farm Mutual Automobile Insurance Company, et al.103 S.Ct. 2856 (1983), a.k.a., State Farm Case.

Administrative Record The APA requires the court to review the whole record or those parts of it cited by a party . 5 USC Sec. 706.

Is It Arbitrary and Capricious? Q: What if we lack information and must balance competing priorities? A: Whatever you decide will be OK under the APA as long as you can explain your decision based on what s in the record. *Note that other laws may constrain this discretion

Discretion is OK What is apparent from the record is that there may not be a perfect conservation management system for summer flounder that satisfies all the groups... When the Secretary is faced with conflicting views and chooses among them, his decision cannot be termed arbitrary and capricious by that fact alone.

Stretching Common Sense Is Not OK Only in Superman Comics Bizarro World, where reality is turned upside down, could [NMFS] reasonably conclude that a measure that is at least four times as likely to fail as it is to succeed offers a fairly high level of confidence.

Not in Accordance with Law the rule was a product of pure political compromise, not reasoned scientific endeavor. Although the NMFS allocation may well be eminently fair, the Act requires that it be founded on science and law, not pure diplomacy.

The O.A.L.s MSA NEPA ESA MMPA APA EFH FA, CRA, and EO 12866 & 13272 CZMA EO 13132 PRA DQA FOIA

Types of Requirements: P.S.T. Procedural Substantive Timing

Types of Requirements: P.S.T. Procedural e.g., a consultation process or analysis that does not require a specific outcome (EFH, RFA) Substantive A factual finding that must be supported by the record (e.g., consistency with National Standards, or "no jeopardy" Timing e.g., APA 30-day delay; MSA 90 day clock.

Administrative Record (AR) What are federal agency records v. an AR? What guidance? DOC - records NOAA GC - AR (2012) FEDERAL RECORDS Administrative Record FOIA

AR: General Principles Logical connection to action Directly/indirectly considered by decision maker Facts reflect full range of concerns in support of or contrary to agency position Consideration of opposing facts, data, or alternative courses of action

AR: What Documents? Final Decision Documents Fishery management plans, proposed & final rules, other Federal Register notices Technical and scientific information Public comments and agency responses Public meetings (e.g. Council meeting transcripts, ppts, meeting summaries) Required analyses (e.g., Biological Opinion, NEPA documents, etc) Policies, guidelines, directives manuals Technical and scientific information Any Other Materials that Contain Relevant Facts (e.g. reference materials)

Judicial Review: MSA section 305(f) Complaint filed within 30 days of final regulation No relief pending review No TRO or preliminary injunction Expedited review File response and administrative record within 45 days Petitioner may request expedited decision

Practical Tips: General 1. Record: document agency decision making 2. Emails: not way to document decisions 3. Agency records: manage appropriately 4. File name and subject lines: clearly indicate agency matter 5. Personal info: don t include or use separate documents/emails with generic subject line

Practical Tips: Email & Other Docs 1. Content and tone 2. Chain emails/mass group emails: a. Respond with new email with clear subject line and targeted addressees, and/or b. Consider whether email or call would be best 3. Author, subject, date, privileges (if any) 4. Filing set up way to find emails/docs in Gmail (e.g., labels), Google drive, hard/shared drive 5. Coordinate!