Judge's Opinion on Snapper Grouper Amendment 13C ... - SAFMC.net

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Case 1:06-cv-01815-JDB Document 34 Filed 08/17/2007 Page 6 of 65judicial review under the MSA. 16 U.S.C. § 1855(f). The statute requires that courts reviewconservation and management measures under the familiar standards set forth in theAdministrative Procedure Act ("APA"). Thus, a court considering challenges to the Secretary'sactions shall "set aside" such actions "only . . . on a ground specified in section 706(2)(A), (B),(C), or (D) of [Title 5]." Id. § 1855(f)(1)(B). Section 706(2), in turn, obliges courts reviewingagency action to "hold unlawful and set aside" that action if it is "arbitrary, capricious, an abuseof discretion, or otherwise not in accordance with law," or if the agency has exceeded itsauthority, violated a party's constitutional rights, or failed to comply with proceduralrequirements. If the party challenging the Secretary's action so requests, the court is obliged tohold a hearing and to "expedite the matter in every possible way." 16 U.S.C. § 1855(f)(4).2. Regulatory Flexibility Act ("RFA")FMPs and plan amendments must also conform to "other applicable law," 16 U.S.C.§ 1853(a)(1), a category that includes the Regulatory Flexibility Act. The RFA, 5 U.S.C. §§ 601-612, is a "[p]urely procedural" statute that "obliges federal agencies to assess the impact of theirregulations on small businesses." U.S. Cellular Corp. v. FCC, 254 F.3d 78, 88 (D.C. Cir. 2001).As the First Circuit has explained, the RFA "does not alter the substantive mission of theagencies under their own statutes; rather, the Act creates procedural obligations to assure that thespecial concerns of small entities are given attention in the comment and analysis process whenthe agency undertakes rule-makings that affect small entities." Little Bay Lobster Co., Inc. v.Evans, 352 F.3d 462, 470 (1st Cir. 2003); see also 5 U.S.C. § 606 ("The requirements of [5U.S.C. §§ 603-04] do not alter in any manner standards otherwise applicable by law to agencyactions."). Agencies must first determine whether the regulation under consideration would6
Case 1:06-cv-01815-JDB Document 34 Filed 08/17/2007 Page 7 of 65"have a significant economic impact on a substantial number of small entities." Id. § 605(b).The term "small entities" includes small businesses and small organizations. Id. § 601(6). Onlyif the proposed regulation would have such an impact do the statute's two primary proceduralobligations attach. Those obligations are the preparation first of an initial and then of a finalregulatory flexibility analysis, commonly referred to as an IRFA and a FRFA. Id. §§ 603-604.Sections 603 and 604 of the statute establish the explanations and considerations that IRFAs andFRFAs, respectively, "shall contain." Id. §§ 603(b), 604(a). Both forms of analysis generally"describe[] the effect of the proposed rule on small businesses and discuss[] alternatives thatmight minimize adverse economic consequences." Nat'l Women, Infants, and Children GrocersAss'n v. Food and Nutrition Serv., 416 F. Supp. 2d 92, 108 (D.D.C. 2006). But once the decisionhas been made to promulgate the regulation, the FRFA must provide, among other components,"a description of the steps the agency has taken to minimize the significant economic impact onsmall entities," including "a statement of the factual, policy, and legal reasons for selecting thealternative adopted in the final rule and why each one of the other significant alternatives to therule considered by the agency . . . was rejected." 5 U.S.C. § 604(a)(5).The RFA authorizes judicial review of an agency's compliance with many but not all ofthe statutory requirements. 5 U.S.C. § 611(a). Courts can, for instance, determine an agency'scompliance with the FRFA requirements set forth in § 604 of the RFA, but cannot adjudicatewhether an agency violated the statute by failing to prepare an IRFA. See Allied Local & Reg'lMfrs. Caucus v. Envtl. Protection Agency, 215 F.3d 61, 79 (D.C. Cir. 2000). Even when anagency's action is subject to judicial review, all that is required of the agency is "a 'reasonable,good-faith effort to carry out [RFA's] mandate.'" U.S. Cellular Corp., 254 F.3d at 88 (quoting7
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Judge's Opinion on Snapper Grouper Amendment 13C ... - SAFMC.net

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