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ADMINISTRATIVE LAW - The Seafood Import Monitoring Program Upheld to Combat Nefarious Seafood Importers - Alfa Int'l Seafood v. Ross.

ADMINISTRATIVE LAW--The Seafood Import Monitoring Program Upheld to Combat Nefarious Seafood Importers--Alfa Int'l Seafood v. Ross, 264 F. Supp. 3d 23 (D.D.C. 2017).

The Administrative Procedure Act (APA) controls the manner in which administrative agencies may recommend and initiate federal regulations, while also providing the judiciary supervision over all agency actions. (1) The Seafood Import Monitoring Program (SIM Program) regulates certain seafood products entering the United States from a foreign country with the goal of preventing seafood products derived from "illegal, unreported and unregulated (IUU) fishing" and seafood fraud from piercing into the U.S. commerce stream. (2) In Alfa Int'l Seafood v. Ross, (3) the United States District Court for the District of Columbia reviewed a challenge to the SIM Program to address, among other contentions, whether the Department of Commerce (DOC) violated the APA's "notice-and-comment" requirements and acted "arbitrarily and capriciously" in promulgating the SIM Program. (4) The Court rejected these as sertions, finding that the DOC withholding data did not violate the "notice-and-comment" requirement and were not "arbitrary and capricious" in the decisions they made because the DOC relied on sufficient data. (5)

The United States consumes "billions of pounds of seafood every year" with approximately 90% of it being imported, and historically, the United States has struggled to sufficiently regulate all this seafood breaching its borders. (6) On June 17, 2014, the "Presidential Task Force on Combating Illegal, Unreported, and Unregulated Fishing and Seafood Fraud" (Task Force) was initiated to design a plan to obstruct IUU fishing and seafood fraud through "implementing existing programs, and, if appropriate, developing new ... programs for seafood tracking and traceability." (7) Seafood obtained through IUU fishing has an international effect on public health, the economy, and the environment, and the SIM Program aims to prevent this conduct. (8) The other illicit act the SIM Program targets is seafood fraud, which involves substitution of species and mislabeling, each of which are methods used to deceive consumers of the seafood's type or origin in order to increase profits. (9)

The Task Force made fifteen recommendations, relevant to this case was the formation of a traceability program, an aspect of the SIM Program that requires seafood importers to document each step of the supply chain for the products they import into the United States. (10) The Task Force announced their strategy (Action Plan) by identifying the general requirements of their recommendations to execute their goal, which was published in the Federal Register prior to issuing the final version of the SIM Program. (11) The initial publication of the Action Plan requested the public to submit comments on what principles should be used to identify the "priority species" the SIM Program would apply to. (12) In the next publication, the DOC requested the public's input on what information the traceability program should target for documentation. (13) After receiving comments from the public, the final notice was publicized and included the compliance cost, implementation timeline, and principles used to classify the species the SIM Program would apply to, while also delivering a first draft of the "priority species" list those principles were used to pinpoint. (14) The final version of the SIM Program was published on December 9, 2016 and provided the final "priority species" list, along with a large increase in the cost estimates for compliance with the SIM Program. (15)

Three days prior to the SIM Program going into effect, numerous seafood harvesters, importers, processors, and purchasers based in the United States (Alfa) filed suit against the DOC, seeking to invalidate the SIM Program. (16) Alfa argued that the DOC violated the APA because the SIM Program was created through undisclosed data and founded on insufficient evidence, and therefore should be invalidated. (17) A motion for summary judgment was filed on behalf of Alfa on April 25, 2017, which was soon met with a cross-motion for summary judgment filed by their counterparts, the DOC. (18) The Court rejected each of Alfa's arguments, specifically finding that the DOC did not violate the "notice-and-comment" requirements of the APA and did not act in an "arbitrary and capricious" manner in formulating the SIM Program. (19)

Congress created the APA in response to federal agencies' rise in numbers under the New Deal, and their concern that these agencies can act with immense, unchecked authority affecting the publie. (20) An agency's rulemaking authority is subject to procedural and substantive requirements under the APA, which also allocates review of final agency actions to the courts. (21) Under the APA, the reviewing court must determine whether the administrative record corroborates the challenged agency action, "and due account shall be taken of the rule of prejudicial error." (22) The rule of prejudicial error (RPE) under the APA applies to both "the process as well as the result" of an agency's action, and requires the challenging party to demonstrate prejudice from the error. (23) Agency errors can be procedural, substantive, or a mixture of both, and courts have applied different standards to different types of agency errors, and no concrete guidelines exist, which leaves challenging parties unsure of how to establish their burden. (24) Procedural errors require courts to inspect the administrative record, substantive errors compel courts to analyze the final decision, and the combination of the two drive courts to evaluate whether the error had any influence on the process used or conclusion reached. (25)

A court may hold an agency rule unlawful after concluding it is "arbitrary and capricious," and the Supreme Court most clearly pronounced this standard in Motor Vehicle Mfrs.' Ass'n v. State Farm, (26) which requires courts to discover whether the challenged action was founded on "reasoned analysis." (27) Furthermore, the Supreme Court continued to explain that an "agency must examine the relevant data" and supply a "satisfactory explanation" for the rule; this explanation must illustrate a "rational connection between the facts found and the choice made." (28) This "reasoned analysis" and "satisfactory explanation" must come from the agency itself, and not supplied or replaced by the court reviewing the action; however, this requirement is not especially demanding. (29) The Supreme Court stated that an agency action will be unlawful under the "arbitrary and capricious" standard when the agency: (1) relied on factors that Congress had never anticipated it to contemplate; (2) failed to review a key feature of the problem; (3) produced a justification for the action that is contrary to the evidence they studied; or (4) offered an explanation that "is so implausible" that it could not be founded on their own expertise. (30)

In Alfa Int'l Seafood v. Ross, (31) Alfa pushed a "multifaceted attack," first arguing that the DOC deprived the public of "meaningful" comment on their rationale for creating the "priority species" list because they failed to disclose important data collected on each of the species the list incorporated. (32) Several D.C. Circuit cases state that unless exempt, an agency must disclose data to the public for comment if they rely on that data during the process of making a rule. (33) The DOC asserted that the "brief summaries" published in the Federal Register included the undisclosed data and also that the law enforcement privilege exempted it from being divulged, but the Court refused to adhere to either justification for withholding it from the public. (34) Although the Court found the DOC was obligated to disclose the data, the Court did not overturn the SIM Program because the APA incorporates the "rule of prejudicial error," and Alfa were unable to demonstrate prejudice resulting from the DOC's act. (35)

Next, the Court turned to Alfa's second argument to determine whether the DOC acted "arbitrarily and capriciously" in issuing the SIM Program because they relied on insufficient data and assumptions. (36) First, the Court concluded that the DOC provided plenty of evidence, including many academic and industry studies, to show that the SIM Program would facilitate in preventing IUU fishing and seafood fraud. (37) Then, the Court looked to the data the DOC reviewed to identify each species placed on the "priority species'" list, ultimately finding that the data was sufficient. (38) Next, contrary to Alfa's allegations, the Court found the DOC's compliance cost conclusions and assumptions were consistent with the study (Blomquist Study) they significantly rested their findings on. (39) Finally, the Court dismissed Alfa's last claim that the compliance date was "overly burdensome" because the DOC addressed this concern and provided a "rational explanation" for setting the date. (40) The DOC weathered Alfa's objections to the promulgation of the SIM Program, and the SIM Program was ultimately upheld after surviving all of the procedural and substantive challenges under the APA. (41)

In Alfa Int'l Seafood v. Ross, (42) the Court correctly upheld the SIM Program over Alfa's APA challenges to invalidate the SIM Program. (43) Additionally, during their analysis the Court briefly mentioned a troubling aspect of reviewing agency actions under the APA: the rule of prejudicial error (RPE). (44) Before the Court began its analysis of the case, they properly pointed out the different summary judgment standard under the APA when reviewing agency actions. (45) Determining the DOC had not acted "arbitrarily and capriciously," the Court accurately followed the clearest articulation of that standard provided in Motor Vehicle Mfrs.' Ass'n v. State Farm, (46) by only considering whether the SIM Program was founded on "reasoned analysis." (47) This analysis, requires courts to inspect the administrative record and ascertain whether the agency assessed "the relevant data" and provided "a satisfactory explanation" for the rule. (48) There must have been a "clear error of judgement" for the Court to have invalidated the SIM Program, and here, the Court was justified in concluding that the DOC considered appropriate information related to their decision. (49)

The SIM Program was nearly invalidated because the DOC did not submit the data used in developing the "priority species list" to the public for comment, and the Court was justified to dismiss both of the DOC's reasons for nondisclosure. (50) First, looking at the summaries published in the Federal Register under each priority species, the Court was reasonable in concluding no "hint of" how the data influenced their designations was included because only general information was provided. (51) Second, the Court correctly found that the DOC was barred from using the law enforcement privilege because they failed to invoke the privilege when they first published to the Federal Register and did not provide: "(1) a formal claim of the privilege by the head of the department ... ; (2) an assertion of the privilege based on actual personal consideration by that official; and (3) a detailed specification of the information ... with an explanation why it properly falls within the scope of the privilege." (52) Despite the DOC failing to provide an exemption and being required to disclose the data, the Court was right to not sink the SIM Program after finding Alfa failed to meet their burden under the RPE by showing prejudice resulted from the DOC's omission. (53)

The APA's requirement that courts "take due account" of the RPE is concerning because the RPE places the burden on the challenger to show prejudice resulting from the nondisclosure without knowing what the data contains. (54) The Court was correct in stating that Alfa must both "indicate with reasonable specificity" the parts of the undisclosed data they disagreed with and how their objections would have "impacted the [DOC's] decisions-making." (55) Placing this burden on the challenger has almost always resulted in courts finding for the agency. (56) Despite the RPE being fairly unclear, the Court did provide some insight as to how Alfa may have met their burden had they provided "any data or information" that showed the DOC's identification of the "priority species" was misguided. (57) Ultimately, the Court's conclusion that the RPE saved the SIM Program was correct, meeting previous standards set forth by the Supreme Court and D.C. Circuit. (58)

In Alfa Int'l Seafood v. Ross, (59) the Court was tasked with determining whether the DOC successfully followed the standards set forth in the APA, which were designed to safeguard against agencies abusing their power. By concluding the DOC did not act "arbitrarily and capriciously" in issuing the SIM Program, the Court further enhanced the substantial case law reviewing this common APA standard of review. The Court was correct in finding that the DOC sufficiently followed the procedures of the APA in promulgating the SIM Program. Further more, the Court properly utilized available RPE standards courts have used, concluding the DOC did not violate the APA's "notice-and-comment" rulemaking requirement. The Court's discussion of this case balanced the importance of the administrative agency's power to issue rules and the public's interest in challenging those actions.

(1.) See 5 U.S.C. [section] 553 (1976) (applying guidelines to agency's rule making authority). The Administrative Procedure Act (APA) requires agencies to give notice of the proposed rule and provide an opportunity for input from the public. Id. An agency is required to deliver "[g]eneral notice" by publishing "a statement of the time, place, and nature of public rule making proceedings; reference to the legal authority under which the rule is proposed; and either the terms or substance of the proposed rule or a description of the subjects and issues involved." Id. at [section] 553(b)(l)-(3). Once notice has been provided, inquiring individua', outside the agency must be given the chance to contribute to the rule making by proposing "written data, views or arguments ...." Id. S 553(c). The agency will give consideration to the information presented by the public and then add a "concise general statement of their basis and purpose" into the rule. Id. See also 5 U.S.C. [section] 704 (1966) (providing judicial review to agency actions). "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." Id. See also Maeve P. Carey, The Federal Rulemaking Process: An Overview, Congressional Research Service 5 (June 17, 2013), https://fas.org/sgp/crs/misc/RL32240.pdf (describing purpose of APA in federal rulemaking). The APA sets forth requirements that federal agencies must follow. Id. Congress created the APA "to bring regularity and predictability to agency decision making," and it requires agencies to publish notice in the Federal Register regarding rules being proposed. Id. at 5-6. See also Jared P. Cole, An Introduction to Judicial Review of Federal Agency Action, Congressional Research Service 9 (December 7, 2016), https://fas.org/sgp/crs/misc/ R44699.pdf (examining judicial review of challenges brought under APA). Judicial review under the APA is allowed over final agency actions. Id. A court may reverse an agency's action and hold it unlawful, if the court finds the action is contrary to the authority the agency possesses. Id. The APA's procedural requirements, like the "notice-and-comment" element for rulemaking, is reviewable by the court. Id. Courts are constricted when reviewing agency actions under the APA, being "limited to examining final agency action that is not committed to agency discretion or precluded from review by a different statute." Id. at 10.

(2.) See Seafood Traceability Program, 50 C.F.R. [section] 300.324 (2018) (displaying Seafood Import Monitoring Program). The Seafood Import Monitoring Program (SIM Program) includes:
   [D]ata reporting requirements at the time of entry for imported
   fish or fish products and recordkeeping requirements for fish or
   fish products entered into U.S. commerce. The data reported and
   retained will facilitate enforcement of section 307(1)(Q) of the
   Magnuson--Stevens Act and the exclusion of products from entry into
   U.S. commerce that are misrepresented or the product of illegal or
   unreported fishing. The data reporting and recordkeeping
   requirements under the [SIM Program] enable verification of the
   supply chain of the product offered for entry back to the
   harvesting event(s). In addition, the permitting requirements of
   [section] 300.322 pertain to importers of products within the scope
   of the [SIM Program].


Id. Every step of the supply chain, from origin of catch to its arrival on shore, must be documented according to the requirements. Id. Importers must accurately identify the species and obtain a permit when fishing for the specified species the SIM Program governs. Id. Pacific and Atlantic Cod, multiple species of tuna, red snapper and seven other seafood species are guarded by the SIM Program. Id. at [section] 300.324(a)(2). The requirements of the SIM Program became effective, and compliance by fisherman began, on January 1, 2018. Id. Importers of the specified seafood species are mandated to preserve documents supplying "information on the chain of custody of the fish or fish products sufficient to trace the fish or fish product from point of entry into U.S. commerce back to the point of harvest...." Id. at S 300.324(e). See also NOAA Fisheries, Compliance Guide for the: U.S. Seafood Import Monitor ing Program 1, http://www.iuufishing.noaa.gov/Portals/33/SIMPCompIianceGuide 2017.pdf [hereinafter Compliance Guide] (conveying general information to help understand new SIM Program). The National Oceanic and Atmospheric Administration (NOAA), along with other U.S. Government agencies, initiated the SIM Program to thwart "illegal, unreported and unregulated (IUU) fishing" and seafood fraud to protect "our national economy, global food security and the sustainability of our shared ocean resources." Id. Furthermore, the SIM Program is an attempt to level the playing field for U.S. based fisherman from struggling to compete with importers who use these notorious tactics in practice. Id. The SIM Program is projected to develop, but in its initial stage, thirteen classes of fish, crustacean, and mollusk, which have been identified as particularly susceptible to seafood fraud or IUU fishing, will be affected. Id. See also International Fisheries Trade Permit, 50 C.F.R. [section] 300.322(a) (requiring seafood importers to possess valid International Fisheries Trade Permit (IFTP)). Fisherman may not import seafood products subject to this regulation into the United States without an authorized IFTP. Id.

(3.) 264 F. Supp. 3d 23 (D.D.C. 2017).

(4.) See id. at 31 (presenting objections to SIM Program). "[V]arious agencies, sub-agencies, and committees" worked to implement the SIM Program, including the defendants, the Department of Commerce (DOC), and the "National Ocean Council Committee on IUU Fishing and Seafood Fraud," and representatives from Departments of State and Homeland Security (Task Force). Id. at 33. The Court considered both parties' cross-motions for summary judgment over the challenges to the SIM Program. Id. Importers, processors, purchasers, and harvesters of seafood were joined by a trade group, acting on behalf of those whose businesses are affected by the SIM Program (Alfa) brought the action against the DOC. Id. at 36. "Specifically, [Alfa] maintains] that ... the [SIM Program] was promulgated in violation of the [APA] because it is based on undisclosed or insufficient supporting information ...." Id. at 33. Focusing on this contention, the Court reviewed multiple arguments revolving around the procedural and substantive constraints the APA sets forth. Id. First, Alfa contended that the DOC failed to meet the "notice-and-comment" element of the APA because they withheld data used to create the list of "priority species." Id. at 53. Next, Alfa challenged the SIM Program, viewing it to be "arbitrary and capricious" for three reasons. Id. First, they stated that the DOC "relied on insufficient data in developing the [SIM Program]." Id. Second, they believed the DOC "relied on flawed assumptions in estimating the [SIM Program's] compliance cost." Id. Third, Alfa argued that the SIM Program's compliance date is "illogical and overly burdensome." Id. Alfa made three other overall challenges to the SIM Program, which will not be further discussed, including: the DOC lacked proper statutory or constitutional authority, acted outside its authority under the Magnuson-Stevens Fisher Conservation and Management Act (MSA), and failed to meet the standards of the Regulatory Flexibility Act. Id. at 31. See also 5 U.S.C. S 553(b)-(c) (displaying "notice-and-comment" requirement of APA); 5 U.S.C. S 706(2)(A)(1966) (requiring courts to find agency actions unlawful when they are "arbitrary and capricious"); Todd Garvey, A Brief Overview of Rulemaking and Judicial Review, Congressional Research Service, Mar. 27, 2017, available at https://fas.org/sgp/crs/misc/R41546.pdf (providing general overview of APA procedural requirements for informal rulemaking). Under the APA, agencies must give the public reasonable notice of the rule they are planning to implement. Garvey, supra, at 2. After satisfying the notice requirement, the public must further be afforded "meaningful opportunity to comment," in the Federal Register, on the rule that is being proposed. Id. Finally, after the comment requirement is satisfied, the agency is required by the APA to review the relevant comments and add a statement about the rule's "basis and purpose." Id. at 3 (citing 5 U.S.C. [section] 553(c)). "The final rule, along with the general statement must be published in the Federal Register not less than 30 days before the rule's effective date." Id. See also Maeve P. Carey, supra note 1, at 6 (providing notice requirements). First, the agency's notice must provide "a statement of the time, place, and nature of public rulemaking proceedings." Id. Second, it must give "reference to the legal authority under which the rule is proposed." Id. Lastly, "either the terms or substance of the proposed rule or a description of the subjects and issues involved" are to be included. Id.

(5.) See Alfa Intl' Seafood, 264 F. Supp. at 66 (summarizing reasons for rejecting arguments). The Court found that the DOC did not violate the APA's "notice-and-comment" requirement by withholding data. Id. Specifically, after rejecting the DOC's reasoning for not disclosing the data, they found that Alfa was unable to meet their burden to overcome the "rule of prejudicial error." Id. Furthermore, the Court found the DOC did not violate the APA by acting "arbitrarily and capriciously in issuing the [SIM Program]," and that the compliance date was not overly burdensome. Id. at 58-67. The Court could "reasonably discern" the DOC's process to making each of their decisions, rejecting the contention that they relied on inadequate information. Id. at 57. Also, the Court found the DOC's rationale for the compliance date to not be "arbitrary and capricious." Id. at 66. See generally 5 U.S.C. [section] 706 (declaring rule of prejudicial error applies to judicial review of agency actions).

(6.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 30 (providing background information on seafood market and its prevalence in United States). The Court recounted the seafood industry in the United States stating:
   The vast majority of seafood consumed each year in the United
   States either originates from waters far from home or is caught
   locally but passes through a foreign processing and distribution
   chain. Take, for example, a catch of king crab harvested off the
   coast of Alaska. That crab may be sent from Alaska to South Korea
   or China for processing and packaging. The packaged crab meat, in
   turn, is exported from Asia across the Pacific to the United States
   .... This multistage, multinational process means that the
   worldwide marketplace for seafood is big business. The United
   States alone imports more than $10 billion in seafood every year.


Id. With the convoluted distribution chain of seafood, a multitude of opportunities for IUU fishing and seafood fraud arises at every link of that chain. Id.

(7.) See id. at 32 (acknowledging Executive Order given to address IUU fishing and seafood fraud). Former president Barack Obama, while in office, issued the Executive Order creating the "Presidential Task Force on Combating Illegal, Unreported, and Unregulated Fishing and Seafood Fraud" (Task Force). Id. The Task Force was established "as a subcommittee reporting to the National Ocean Council" with the Secretary of Commerce and Secretary of State, or their proxy's, as the co-chairs of the Task Force. Id. Other members of the Task Force were comprised of representatives from twelve different federal agencies. Id. The Task Force was to provide recommendations of programs to fulfill their mission of fending off IUU fishing and seafood fraud within 180 days. Id. These recommendations were to target the "areas of greatest need" in regard to susceptible areas of the distribution chain, which IUU fishing and seafood fraud participants take advantage of. Id.

(8.) See id. at 31 (defining IUU fishing and its effects). IUU fishing covers a broad range of illicit fishing activities, which the Court breaks down to include three acts. Id. First, violating laws or regulations while fishing, whether they are national or international laws. Id. Second, misreporting or failing completely to report fishing events to the required authorities. Id. Third, fishing for fish stocks or in areas where there is a lack of regulation. Id. With the importation of seafood industry being lucrative, it is no surprise that IUU fishing operations take advantage of the voids left unattended. Id. In most instances, these operations will not adhere to seafood health regulations, which increases major health risks consumers may face. Id. at 32. Furthermore, IUU fishing impacts economies worldwide, between $10 billion and $23 billion in losses worldwide have been attributed to IUU fishing. Id. at 31. In the United States, 20-30% of imported wild-caught seafood, valued at approximately $1-2 billion, came from IUU fishing. Id. Not only does IUU fishing have adverse economic and health effects, but it also creates environmental concerns. Id. at 32. IUU fishing operations frequently violate international conservation and managemenl measures, causing harm to marine ecosystems around the world. Id. See also International MCS Network, What is IUU Fishing?, available at http://imcsnet.org/resources/ iuu/ (recognizing IUU fishing threat to world's oceans). IUU fishing has both short-term and long-term consequences. Id. At first, it can destroy marine habitats and cause other fishermen 'to lose income or employment. Id. The long-term effects can push some species to the point of extinction and cause developing coastal countries to become economically unstable. Id.

(9.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 32 (breaking down issue of seafood fraud). Seafood fraud includes two major illegal acts: species substitution and mislabeling of seafood. Id. Species substitution is the act of "falsely representing the type of fish being sold." Id. 'The results of species substitution are that customers unknowingly eat cheaper, potentially dangerous, substitutes for the fish they believed to have purchased. Id. Mislabeling is where the origin of the country the fish came from is falsely proclaimed. Id. These two acts deny the consumer their right to know what they are eating and may also present serious health risks they could face. Id. See also What is Seafood Fraud?, Oceana, available at http://oceana.org/what-seafood-fraud (explaining practice of seafood fraud). It has been determined that Atlantic Cod and other popular fish are mislabeled "25 to 70 percent of the time" to hide cheaper, less revered species of fish. Id.

(10.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 32 (introducing first sign of SIM Program). In December 2014, the Task Force began the initial phase of their mission by making fifteen recommendations to the President. Id. The Task Force believed to combat seafood products garnered from IUU fishing and seafood fraud from entering into the U.S. economy, the best method would be to improve transparency in the supply chain. Id. at 33. Doing this would facilitate authorities with regulating the supply chain and "would reduce the incentives to engage in IUU fishing over time." Id. Another benefit to discouraging and eliminating illegally caught seafood from entering into the U.S. economy stream, the playing field would be more even allowing domestic fisherman to compete fairly and gain the financial benefits. Id. Positive environmental benefits would also result from combating IUU fishing, such benefits include "protecting overfished species and safeguarding sensitive marine ecosystems." Id. at 32. The traceability program, the first stage of the SIM Program, was included in the Task Force's strategy (Action Plan). Id. The Action Plan included the seafood importers to be required to provide information covering each point of the supply chain and what species the SIM Program aimed to address. Id.

(11.) See Presidential Task Force on Combating Illegal Unreported and Unregulated (IUU) Fishing and Seafood Fraud Action Plan, 80 Fed. Reg. 66867 (notice Oct. 30, 2015), available at https://www.gpo.gov/fdsys/pkg/FR-2015-10-30/pdf/2015-27780 .pdf [hereinafter Action Plan] (providing basic requirements Task Force intends to implement). The Action Plan, submitted by the Task Force, provided the data sought to be collected and the timeline for the SIM Program going into effect. Id. at 66868. The Action Plan included the traceability program the DOC recommended, and the importing of specific "priority species" will be subject to the SIM Program's information gathering requirements. Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 33 (discussing Action Plan). After adhering to the APA's "notice-and-comment" requirements, the DOC believed the SIM Program would be presented by August 2016 and would go into effect the following month. Id.

(12.) See Action Plan, supra note 11, at 66868 (requesting public comment on principles used to identify species SIM Program targets). To determine what species would be subjected to the SIM Program, the DOC first reached out to the public for comment regarding "what principles should be used to determine the seafood species at risk of IUU fishing and seafood fraud." Id. After receiving "101 unique written comments" submitted by international and domestic fishing groups, foreign nations, non-governmental organizations and interested citizens, the DOC considered all of them and provided answers to "all relevant issues raised." Id. at 66872. One comment requested for the DOC to use a principle that is "tied to the biological vulnerability and/or status of a species." Id. at 66873. In response, the DOC replied with:
   The [DOC] acknowledges that the sustainability of fisheries
   resources is a priority.... Some vulnerable species identified in
   public comments such as sharks, sturgeon caviar, and abalone were
   added to the base list and analyzed by the [DOC], The [DOC] agrees
   that as legal catch limits on a species are tightened, the
   incentive for IUU fishing often increases. However, the main focus
   of this process is to identify species at risk of IUU fishing or
   seafood fraud and enforcement capability and history of violations
   are better indicators of IUU fishing risk than species
   sustainability.


Id. This is one example of the DOC replying to the comments of interested parties, a required procedure under the APA. Id. See also Alfa Int'l Seafood, 264 F. Supp. 3d at 33 (reviewing DOC's method of implementing SIM Program). The DOC published three notices in the Federal Register, the first publication called "for public comment on the principles it ought to use in developing the list of 'priority' species to which the SIM Program would first apply." Id.

(13.) See Joint Appendix of Administrative Record Citations in Summary Judgment Briefs Volume 1 at 214, Alfa Int'l Seafood v. Ross, 264 F. Supp. 3d 23 (D.D.C. 2017) (No. 17 Civ. 00031), 2017 WL 3726984 [hereinafter Administrative Record] (showing second notice requesting comment on types of information SIM Program targets). "With this notice, the [DOC] is soliciting comments on the minimum types of information that should be collected...." Id. The DOC was looking for comments on the information needed to effectively answer four questions provided in the notice. Id. The questions poised were targeted at gathering information on the importer, the fish, and the chain of custody. Id. See also Alfa Int'l Seafood, 264 F. Supp. 3d at 33 (describing second notice DOC published). "In July 2015, the [DOC] published a second Notice soliciting public comment on the type of information and documentation the traceability program should collect." Id.

(14.) See Administrative Record, supra note 13, at 227 (providing information in third notice DOC published to Federal Register). The DOC announced seven principles used to draft the initial "priority species" list. Id. These principles included the history of species substitution and mislabeling, history of violations, United States' enforcement capability, "existence of a catch documentation scheme," chain of custody transparency, and public health risks. Id. The DOC narrowed a draft list of species the SIM Program would target to species currently at risk for IUU fishing or seafood fraud. Id. at 228. The thirteen species on the draft list included: tunas, shrimp, swordfish, Atlantic Cod, king crab, sharks, sea cucumber, abalone, grouper, dolphinfish, red snapper, blue crab, and Pacific Cod. Id. at 228-29. See also Alfa Int'l Seafood, 264 F. Supp. 3d at 33 (discussing third notice DOC published). The third notice was published after receiving input from the public and included "seven principles" used to classify the species to which the SIM Program applied. Id. Further, it included a first draft of the list of species those principles identified as "priority" and provided a summary of how the agency created both the principles and species lists. Id. The DOC failed to provide the data they had collected relating to "incidents of IUU fishing and seafood fraud, or any related enforcement activities." Id. The only justification the DOC revealed as to why they failed to disclose this data was because they viewed the data used as "sensitive and/or confidential." Id. See also Magnuson-Stevens Fishery Conservation and Management Act; Seafood Import Monitoring Program, 81 Fed. Reg. 6210 (proposed Feb. 5, 2016) (to be codified at 50 C.F.R. pts. 300 and 600), available at https://www.federalregister.gov/documents/2016/02/05/201602216/magnuson-stevens-fishery- conservation-and-management-act-seafood-import- monitoring-program (submitting proposed rule for public comment). The DOC estimated those effected by the SIM Program would need between three and twelve months to "adapt their practices to comply with the requirements of this rule...." Id. at 6218. Furthermore, the DOC estimated compliance costs with this SIM Program would amount to $60,000. Id. at 6221.

(15.) See Administrative Record, supra note 13, at 685 (providing final SIM Program published in Federal Register). The SIM Program's final version was published in the Federal Register December 9, 2016 and would become effective January 9, 2017. Id. The published version of the SIM Program states:
   [T]his final rule establishes permitting, reporting and
   recordkeeping procedures relating to the importation of certain
   fish and fish products, identified as being at particular risk of
   illegal, unreported, and unregulated (IUU) fishing or seafood fraud
   .... This rule requires data required to be reported on the harvest
   of fish and fish products. In addition, this rule requires
   retention of additional supply chain data by the importer of
   record.... This rule will also decrease the incidence of seafood
   fraud by requiring reporting of this information to the U.S.
   Government at import and requiring retention of documentation so
   that the information reported (e.g., regarding species and harvest
   location) can be verified.


Id. Multiple changes to the SIM Program were announced in the final version including: exempting small-scale fisherman from submitting information, reducing the timeperiod requiring importers to document the supply chain, and "staying the effective date" for shrimp and abalone. Id. at 698-99. See Alfa Int'l Seafood, 264 F. Supp. 3d at 35 (describing change in compliance cost). The other major modification the DOC revised was the cost estimates for compliance with the SIM Program. Id. The initial estimate for the first year dramatically rose from $60,000 to $7.85 million "with a possible upper-bound cost estimate of $20,315,225 in the first year and $18,515,225 for each year following." Id. at 35-36. The compliance cost increase was based on suggestions obtained through the "notice-and-comment" phase of publication. Id. at 36. The DOC explained that the compliance cost was not an issue looking at the big picture when it is "only a fraction of the $9 billion value of U.S. seafood imports," and also viewed "the [SIM Program's] recordkeeping requirements would not pose significant adverse or long-term economic impacts on small entities." Id. See also Administrative Record, supra, at 707 (listing species regulated under SIM Program). No longer including shrimp or abalone, the species subject to the SIM Program include: "Atlantic Cod; Pacific Cod; Blue Crab; Red King Crab; Dolphinfish (Mahi Mahi); Grouper; Red Snapper; Sea Cucumber; Sharks; Swordfish; [and] Tunas...." Id.

(16.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 36 (recalling procedural history of case). Alfa is bringing action against the DOC in this case, challenging the validity of the SIM Program. Id. Alfa filed suit just three days before the SIM Program's compliance date came about. Id. The Court granted Alfa's Motion for Expedited Treatment with the compliance date near. Id. The DOC was joined by the National Marine Fisheries Service (NMFS) as defendants, along with Intervenor-Defendant Alaska Bering Sea Crabbers, who the Court granted their motion to intervene and defend the SIM Program. Id.

(17.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 53 (summarizing Alfa's arguments). This comment will focus on Alfa's assertion that the DOC violated the APA's "notice-and-comment" requirements and that the SIM Program is "arbitrary and capricious." Id. The other arguments Alfa contended are that the DOC lacked the rulemaking authority to create the SIM Program, the DOC lacked authority to regulate seafood fraud, and the DOC's Regulatory Flexibility Analysis failed to address important aspects of the SIM Program. Id. at 37. See also 5 U.S.C. [section] 553(b)-(c) (displaying "notice-and-comment" requirement of APA); 5 U.S.C. [section] 706(2)(A) (requiring courts to find "arbitrary and capricious" agency actions unlawful).

(18.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 36 (reviewing standard for cross-motions for summary judgment). Generally, Rule 56 of the Federal Rules of Civil Procedure provides the rules for which cross-motions for summary judgment are to be reviewed. Id. But see Stuttering Found, of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.C. Cir. 2007) (holding Rule 56 does not apply to agency actions under APA). When an agency action under the APA is reviewed by the court, the ordinary standard does not apply. See Am. Bioscience v. Thomson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (defining specific summary judgment standard courts use). "When a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal ..." and the whole case is reviewed as a question of law. Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 37 (providing question court must answer under APA summary judgment standard). "In this posture, the court must decide 'whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.'" Id. (quoting Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.C. Cir. 2010)).

(19.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 66 (summing up court's response to Alfa's arguments). "In summary, the court rejects [Alfa's] various contentions as to why the [SIM Program's] promulgation violates the APA and finds that the [DOC] did not act arbitrarily and capriciously in issuing the [SIM Program]." Id. Alfa failed to show the DOC's withholding of data caused them harm, therefore violating the APA's "notice-and-comment" requirement. Id. at 57. The Court further found that the DOC did not rely on insufficient data in developing the SIM Program. Id. at 58. Also, the Court concluded the DOC did not improperly assess the cost of compliance the SIM Program set forth. Id. at 62. Finally, the Court found the compliance date of the SIM Program was not unduly burdensome. Id. at 66.

(20.) See Roni A. Elias, The Legislative History of the Administrative Procedure Act, 27 Fordham Envtl. L. Rev. 207 (2016), available at http://commons.law.famu .edu/cgi/viewcontent.cgi?article=1012&context=studentworks (discussing history of APA). "The APA was the culmination of long-term efforts to regulate the decision-making of administrative agencies...." Id. at 208. Agencies' immense power grew during the New Deal and the creation of the APA in 1946 provided measures to regulate that power. Id. at 207. See also Cynthia Sheopner, Administrative Procedure Act, Britannica, available at https://www.britannica.com/topic/Administrative-Procedures-Act (last visited Mar. 2, 2018) (describing history and purposes of APA). Enacted by Congress, "[t]he APA was the product of concern" regarding President Roosevelt establishing numerous agencies to carry out his New Deal programs. Id. The APA's purpose was to create standards for rulemaking, keep the public informed of agency actions, allow the public to participate in rulemaking proceedings and to provide judicial review of agency actions. Id. Agencies are unelected and "have the ability to make, interpret, and enforce rules and regulations," because of this it is important for the public to have some say in their decisions. Id. See also Cole, supra note 1, at 1 (defining terms important to comprehending APA). "Agencies administer their delegated authority in a variety of ways, including by promulgating rules and regulations that bind the public." Id. at 1. An "authority of the United States" is the definition of a federal agency under the APA, including independent regulatory agencies and executive branch agencies, but not the judiciary or Congress. Id. at 10 (quoting 5 U.S.C. [section] 551(1)). The APA proscribes review to agency action, which is "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof...." Id. (quoting 5 U.S.C. 8 551(13)). Courts may only review "final agency action," but upon review, courts may address procedural arguments not permitted prior to final action. Id. at 11 (citing 5 U.S.C. S 704). This final action has been described as the culmination of the agency's process in making the decision, and having "final, legally binding consequencefs]." Id. The APA requires agencies to comply "with substantive legal requirements," as well as "various procedural requirements." Id. at 2.

(21.) See Cole, supra note 1, at 10-11 (defining judicial review of agency actions under APA); Garvey, supra note 4, at 1 (describing general application of APA to rulemaking by agencies). Rulemaking, defined by the APA is the "agency process for formulating, amending, or repealing a rule." Garvey, supra, at 1 (citing 5 U.S.C. [section] 551(5)). The definition of a rule under the APA encompasses all agency actions with "future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency." Id. (citing 5 U.S.C. [section] 551(5)). Informal rules, such as the rule at issue in this comment, are subject to the "notice-and-comment" procedural requirements of the APA. Id. See Cole, supra, at 9 (describing courts authority under APA). "The APA permits judicial review of final agency actions," allowing individuals to challenge final agency rules under the courts authority. Id. at 9. Courts have the authority under the APA to invalidate agency actions and review the agency's fulfillment of the procedural requirements. Id. See generally 5 U.S.C. [section] 702 (granting judiciary authority to review claims of agency's failing to comply with APA).

(22.) See 5 U.S.C. [section] 706 (prescribing APA's scope of review). The APA states:
   To the extent necessary to decision and when presented, the
   reviewing court shall decide all relevant questions of law,
   interpret constitutional and statutory provisions, and determine
   the meaning or applicability of the terms of an agency action ....
   In making the foregoing determinations, the court shall review the
   whole record or those parts of it cited by a party, and due account
   shall be taken of the rule of prejudicial error.


Id. (emphasis added). See also Am. Bioscience, 269 F.3d at 1083 (discussing standard for challenges to agency actions under APA). The judge will preside over the case "as an appellate tribunal," reviewing the case as "a question of law." Id. See also University Medical Society v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999) (explaining standard for summary judgment under APA). The court found that University Medical Center (UMC) lacked standing to challenge the action, and therefore did not reach a decision on the merits of the case. Id. at 441. Although, the court clarifies UMC's confusion regarding challenging agency actions and the role of the court. Id. at 440 n. 3. The question the court addresses "is a legal one which the district court can resolve on the agency record--regardless of whether it is presented ... in a motion for summary judgment...." Id. The court further expanded this standard to be used in all "Rule 12 motionjs] under the Federal Rules of Civil Procedure." Id. See also Southeast Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010) (confirming standard for reviewing challenges under APA). The usual standard for summary judgment under the Fed. R. Civ. P. 56(c) does not apply to challenges of agency actions brought under the APA. Id. The court is confined to "reviewing the administrative record" under APA challenges; therefore, motions for summary judgment require the court to determine "whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review." Id. See generally Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.C. Cir. 2006) (holding similar standard of review for summary judgment).

(23.) See Riverbend Farms v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992) (discussing rule of prejudicial error in APA cases). The plaintiffs in this case challenged the regulatory system the Secretary of Agriculture (Secretary) used to govern the market for navel oranges. Id. at 1482-83. One of the arguments the plaintiffs asserted was that the Secretary violated the APA's "notice-and-comment" procedural requirement. Id. The court concluded the Secretary had violated the procedural requirement, but before invalidating the regulatory system, the court looked to the rule of prejudicial error (RPE) required by the APA. Id. at 1487. Determining that if the RPE only applied to the result of an agency action, the agency could "claim that it would have" made the same decision regardless of the procedural error, thus "gutting the APA's procedural requirements." Id. To avoid such a result, the court found that the RPE applies to both the result and the agency's process for reaching that conclusion. Id. See also Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (determining burden of showing harm falls to attacking party). The Court views the RPE under the APA to be of "the same kind of harmless-error" ordinarily used by courts in civil proceedings. Id. at 406. Further, the Court has maintained that the party seeking reversal because of an error "carries the burden of showing that prejudice resulted." Id. at 409 (quoting Palmer v. Hoffman, 318 U.S. 109,116 (1943)). Also, looking to lower courts burden placements on administrative challenges, the Court found "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Id. The Court rejected the plaintiffs' request for the burden to be placed on the agency because they only switch the burden when it is a criminal case under review. Id. See also American Airlines v. Dep't of Transportation, 202 F.3d 778, 797 (5th Cir. 2000) (placing burden of RPE on challenging party); Air Canada v. Dep't of Transportation, 148 F.3d 1142,1156 (D.C. Cir. 1998) (requiring party attacking action to show prejudice); Craig Smith, Taking "Due Account" of the APA 's Prejudicial Error Rule, 96 Va. L. Rev. 1727, 1728 (2010) (discussing Supreme Court's "uncontroversial" holding in Sanders). In reviewing the announcement in Sanders, Craig Smith states, "Justice Breyer's majority opinion declared something already widely understood: the burden of demonstrating harm is borne by the parties challenging agencies' decisions." Id. Compare Air Canada v. Dep't of Transportation, 148 F.3d 1142, 1156 (D.C. Cir. 1998), with Ala. Power Co. v. F.E.R.C., 160 F.3d 7 (D.C. Cir. 1998), and McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1998).

(24.) See Smith, supra note 23, at 1739 (discussing different applications used by courts to determine prejudice under RPE). "Courts do not yet agree on how to apply the APA's rule of prejudicial error for every case ... they decide whether an error caused prejudice by using one of three tests...." Id. Procedural errors require courts to use a "record-based" test, which "asks whether the record compiled while the agency considered its options was affected by the mistake at issue." Id. at 1739-40. When a substantive error occurs, courts generally apply an "outcome-based" test, requiring proof that the agency's decision was would be different had the error not occurred. Id. at 1739. The third test combines the first two, determining that an error is innocent if it "clearly had no bearing on the procedure used or the substance of the decision reached." Id. at 1740 (quoting Braniff Airways v. Civil Aeronautics Board, 379 F.2d 453, 446 (D.C. Cir. 1967)). See Devon Hudson MacWilliam, More Guidance Please: Proving Prejudicial Error Under the APA, 39 B.C. Envtl. Aff. L. Rev. 55, 64 (discussing different standards used to analyze procedural and substantive errors). "Record-based" tests usually involve the court focusing on the process itself that lead to the agency action, whereas "outcome-based" tests require courts to analyze the result of that process. Id. at 63-64. See Smith, supra, at 1747 (summarizing inconsistent review standards used to determine prejudice under APA). The courts have inconsistently applied different standards to different errors:
   Courts have undermined the record-based test by instead applying
   the outcome-based standard to some procedural errors without
   explaining why either test is employed in particular cases. It is
   not due to history--both tests have been used in some form since
   the APA's enactment. Nor is it product of circuit splits. Panels of
   the D.C., Ninth, and Eleventh Circuits have applied both tests to
   procedural errors within the past decade, with none explaining
   whether or why they made a choice between the two. Compounding this
   confusion, both tests are sometimes applied to procedural errors in
   the same opinion.... Whatever the explanation for this
   inconsistency, courts must resolve it if they hope to do more than
   enforce their preferences under the guise of prejudice analysis.


Id. To avoid all the confusion the RPE has caused, courts should "impose the same burden" on the "same types of errors" for challenging parties to understand how to succeed on their claims. Id. at 1765. See MacWilliam, supra, at 67 (finding APA's RPE unpredictable). The different application of the multiple tests used to determine the burden challengers must meet under the RPE has resulted in "unpredictability in this area of law." Id. This "unpredictability" causes uncertainty amongst challengers as to how they may reach success in suits against agency actions. Id. See also Allina Health v. Sebellius, 746 F.3d 1102,1109-10 (D.C. Cir. 2014) (requiring complainant to prove opportunity to comment would create "enough uncertainty" to affect agency's decision); Chamber of Commerce v. SEC, 443 F.3d 890, 905 (D.C. Cir. 2006) (stating challenger must show they "had something useful to say" to impact decision made); Gerber v. Norton, 294 F.3d 173, 182 (D.C. Cir. 2002) (concluding burden met when challenger identified specific arguments could make if error had not occurred). In Gerber, the Service had failed to expose the map to Appellants and the court looked to discover whether that failure was prejudicial under the APA's rule of prejudicial error. Gerber, 294 F.3d. at 182. The court held that the Appellants must show their specific objections to the map that they would have made had the Service disclosed it to them. Id. The Appellants pointed out three issues with the map and the Service was unable to defend against any of the assertions. Id. at 182-84. Compare Am. Radio Relay League v. FCC, 524 F.3d 277, 237-38 (D.C. Cir. 2008) (applying "record-based" test to errors of procedural nature), with Am. Coke & Coal Chemicals v. EPA, 452 F.3d 930, 940 (evaluating substantive errors under "outcome-based" test).

(25.) See Smith, supra note 23, at 1739-40 (discussing different types of errors). Courts reviewing challenges that involve procedural errors look to the administrative record, containing everything gathered during the process of formulating a rule, and question whether this record was impacted or changed by the agency's mistake. Id. The focus of courts during challenges that include substantive errors entails a finding of whether the agency's mistake altered the decision made. Id. at 1739. Courts will look to find whether the error had any effect of the process or result of the action, combining the two different methods used. Id. at 1740. See Braniff Airways, 379 F.2d at 466 (discussing RPE method). The court held that for an error to not be prejudicial, it must have "clearly had no bearing on the procedure used or the substance of decision reached." Id. See also United States Telecom Ass'n v. FCC, 400 F.3d 29, 41 (D.C. Cir. 2005) (finding no prejudicial error); Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1151 (9th Cir. 2002) (finding party's prejudicial argument insufficient); Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 769 (9th Cir. 1986) (determining error harmless). See generally Judulang v. Holder, 565 U.S. 42 (2011) (reviewing errors under APA).

(26.) 463 U.S. 29, 57 (1983) (announcing clearest standard for "arbitrary and capricious" challenges under APA).

(27.) See id. (concluding agency failed to establish decision based on "reasoned analysis"). The National Highway Traffic Safety Administration (NHTSA) revoked a "passive restraint requirement" (Standard) in the National Traffic and Motor Vehicle Safety Act of 1966 (Act). Id. at 29. NHTSA explained the basis for removing the requirement stating that "the automatic restraint requirement was no longer reasonable or practicable" given its expense and predicting the public would remove the restraint. Id. at 30. The Court was tasked to review "whether NHTSA acted arbitrarily and capriciously in revoking the requirement," holding that NHTSA "failed to present an adequate basis and explanation" for revoking the Standard in the Act. Id. at 34. The Court found NHTSA's explanation for rescinding the Standard to be insufficient and they could not "conclude that the rescission was the produce of reasoned decision making." Id. at 52. The Court was unable to find any direct evidence to support the rescission or any "support of the agency's finding that detachable automatic belts cannot be predicted to yield a substantial increase in usage." Id. at 53.

(28.) See id. at 43 (describing scope of "arbitrary and capricious" standard). An agency is required to review the "relevant data" while promulgating a rule. Id. Further, the agency is required to provide a "satisfactory explanation" for the purpose of the rule. Id. The explanation the agency supplies must show "a rational connection between the facts found and the choice made." Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The Court refused to produce their own reasoning for an agency's action, but stated they will "uphold a decision of less than ideal clarity if the agency's path may reasonable be discerned." Id. (quoting Bowman Transp. v. Best Freight System, 419 U.S. 281, 286 (1974)). See generally Owner-Operator Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir. 2007); Shorehman Cooperative Apple Producers Asso. v. Donovan, 764 F.2d 135 (2nd Cir. 1985); Tackitt v. Prudential Ins. Co., 758 F.2d 1572 (11th Cir. 1985); Diamond Ring Ranch, Inc. v. Morton, 531 F.2d 1397 (10th Cir. 1976); Community Nutrition Institute v. Bergland, 493 F. Supp. 488 (D.D.C. 1980).

(29.) See State Farm, 463 U.S. at 43. (discussing agency's explanation for rulemaking conclusions). The Court stated that the "arbitrary and capricious" review standard is "narrow and a court is not to substitute its judgment for that of the agency." Id. The Court refused to produce their own reasoning for an agency's action, but stated they will "uphold a decision of less than ideal clarity if the agency's path may reasonable be discerned." Id. (quoting Bowman Transp. v. Best Freight System, 419 U.S. 281, 286 (1974)). See also Public Citizen v. FAA, 300 F.2d 186, 197 (D.C. Cir. 1993) (discussing agency reasoning for their actions). An agency is not required to respond to every public inquiry, just respond to them so that it "enablefs] us to see what major issues of policy were ventilated ... and why the agency reacted to them as it did." Id. (quoting Automotive Parts & Accessories v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)). The court found that the FA A provided an explanation for its action that "was adequately explained and rational." Id. While the FAA's explanation was vague in some areas, the court viewed that "providing greater specificity in the final rules would jeopardize passenger safety," and found this to be sufficient. Id. See generally SEC v. Chenery Corp., 332 U.S. 194 (1947) (holding courts may not insert own reasoning for agency actions).

(30.) See State Farm, 463 U.S. at 43 (determining normal circumstances agency actions fail to pass "arbitrary and capricious" standard). The Court concluded that Nation Highway's explanation for its rescission was unsatisfactory and the Court was unable to determine it "was the product of reasoned decision making." Id. at 52. See also Petroleum Comm., Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994) (finding agency did not provide adequate explanation). The Federal Communications Commission (FCC) promulgated two rules that were challenged under the arbitrary and capricious review standard. Id. See also Bowman Transp., 419 U.S. at 286 (1974) (presenting scope of review for "arbitrary and capricious" standard). Even when the agency's basis is foggy, a court will uphold an action so long as the "path" leading them to the decision is ascertainable. Id. See also Cole, supra note 1, at 20 (discussing examples of "arbitrary and capricious" agency actions). Different agency actions ruled as "arbitrary and capricious" include:
   failing to consider circumstances that warrant different treatment
   for different parties, reaching a conclusion that contradicts the
   underlying record, justifying its decision on a premise the agency
   itself has already planned to disrupt, taking rulemaking action
   that undercuts another simultaneous rulemaking by the same agency,
   failing to provide any coherent explanation for its decision,
   contradicting the expert record evidence without explanation ...
   failing to exercise sufficiently independent judgment by deferring
   to private parties, and utilizing a model for studying risk that
   was inconsistent with the underlying data.


Id. at 20-21 (internal quotation marks removed). See also Garvey, supra note 23, at 14 (discussing "arbitrary and capricious" review standard). The "arbitrary and capricious" standard is the most used form of review that courts will apply concerning contested agency actions. Id. at 14. It will apply to "factual determinations made during" the rulemaking process. Id. Determining whether the action of the agency is arbitrary and capricious is chiefly a "fact-based and situation-specific question" because this type of review is expansive and covers many challenges to agency actions. Id.

(31.) 264 F. Supp. 3d 23, 53 (D.D.C. 2017) (reviewing challenge to SIM Program under APA).

(32.) See id. (discussing allegations of DOC violating APA). Alfa asserted a "multifaceted attack" to invalidate the SIM Program by first arguing that the DOC violated the "notice-and-comment" period required by the APA. Id. Alfa argued this first point by claiming the DOC "failed to publicly disclose certain data" used in cultivating the priority species list. Id. The second part of Alfa's challenge, was that the SIM Program met the "arbitrary and capricious" standard because DOC trusted data and assumptions that were flawed and set an overly difficult compliance date. Id. Alfa's first argument comes into play when the DOC collected data regarding each of the species on the initial list that included unreported data gathered from the "Customs and Border Protection (CBP), Food and Drug Administration (FDA), and [National Oceanic and Atmospheric Administration (NOAA)] databases, published reports...." Id. at 54. See also Connecticut Light & Power v. Nuclear Regulatory Com., 673 F.2d 525, 530 (D.C. Cir. 1982) (reviewing "notice-and-comment" period of APA). The "notice-and-comment" period is irrelevant if the agency does not allow the public to "meaningfully" comment on the proposed rule. Id. Not submitting relevant material information would remove the public's ability to comment on all the information that lead to the proposed rules existence. Id.

(33.) See 5 U.S.C. [section] 553(b)(3) (providing information requirements for rulemaking notice element). When an agency creates a rule, they are required to provide notice of the proposed rule in the Federal Register and must include: "either the terms or substance of the proposed rule or a description of the subjects and issues involved." Id. See Connecticut Light & Power, 673 F.2d at 530 (discussing implication of failed notice of proposed rules). "[Interested parties will not be able to comment meaningfully upon the agency's proposals" if an agency does not provide all data they base their proposed rule on. Id. The problem with failing to disclose material information to the public is that an agency may issue a rule with a skewed understanding of the issues at hand. Id. The court believed "it is especially important" that studies and data an agency relies on in making a decision, be made available to the public for criticism. Id. "To allow an agency to play hunt the peanut with technical information, hiding or disguising the information that it employs, is to condone a practice in which the agency treats what should be a genuine interchange as mere bureaucratic sport." Id. Failing to reveal such information results in a major procedural error on the part of the agency. Id. at 531. See Chamber of Commerce, 443 F.3d at 900 (revealing what to look for in "notice-and-comment" allegations). "In essence, the question is whether 'at least the most critical factual material that is used to support the agency's position on review ... [has] been made public in the proceeding and exposed to refutation." Id. (quoting Ass'n of Data Processing Service Org., Inc. v. Board of Governors, 745 F.2d 677, 684 (D.C. Cir. 1984)). To demand "the most critical" data an agency depends upon in the rule-making process be exposed to public comment, the spirit of the APA will be met. Id. See Am. Radio, 524 F.3d at 236 (reviewing precedent regarding "notice-and-comment" requirement of APA). The court found that for notice to be adequate, it must offer the public the opportunity to contribute to the rule and the public must not be divested of relevant information to provide comment on. Id. Courts will enforce the APA's "notice-and-comment" procedure to certify that an agency does not conceal critical information that would affect the public's concerns for the rule. Id. "It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment." Id. at 237. The failure to inform the public of all the critical information used in formulating the rule, however, is not detrimental because the prejudicial error rule will apply. Id.

(34.) See Administrative Record, supra note 13, at 331 (providing reason why DOC retained data and did not disclose it). In the Administrative Record, the DOC purposefully decided to withdraw the data because of issues pertaining to confidentiality and enforcement of the SIM Program. Id. The DOC published brief summaries containing their findings for each of the species they designated to the "priority species" list. Id. Furthermore, the DOC withheld certain information because it "is protected from disclosure because of data confidentiality and enforcement implications." Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 56 (reviewing DOC's justifications for non-disclosure of important data). The DOC raised two defenses, the first being that they followed the "notice-and-comment" requirement and that the information provided in the summaries published to the Federal Register was sufficient. Id. The Court found this reasoning to be "simply wrong" and found no clear indication how the data helped the DOC in designating any of the species on the priority list. Id. The Court didn't find the law enforcement privilege to be persuading either because they failed to raise it "at the time of non-disclosure" and are prohibited from doing so afterwards. Id. at 57. Despite failing to invoke the privilege at the proper time, the DOC did not meet any of the three requirements. Id. Alfa viewed the DOC's disclosure shortcomings to hurt the "notice-and-comment" requirement of the APA. Id. Alfa believed that the DOC, by not providing the data, restrained the court from fully understanding the DOC's choices in connection with the facts they relied upon. Id. See also Landry v. FDIC, 204 F.3d 1125, 1135 (D.C. Cir. 2000) (providing qualifications for raising law enforcement privilege). Explaining the law enforcement privilege, the court stated that it requires:
   (1) a formal chain of privilege by the "head of the department"
   having control over the requested information; (2) assertion of the
   privilege based on actual personal consideration by that official;
   and (3) a detailed specification of the information for which the
   privilege is claimed, with an explanation why it properly falls
   within the scope of the privilege.


Id. (citing In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988)). See generally 5 U.S.C. [section] 552 (2017) (listing different situations privilege acceptable to invoke); Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007) (holding FBI's assertion of privilege allowed).

(35.) See 5 U.S.C. 8 706 (requiring courts to apply prejudicial error rule to agency actions). When reviewing an agency's action under the APA, the court must take "due account ... of the rule of prejudicial error." Id. See Allina Health Services, 746 F.3d at 1109-10 (stating plaintiff's burden under RPE). If the court finds that an agency withheld important material information from the public, "it is sufficient for a petitioner to show that an opportunity to comment regarding an agency's important information created enough uncertainty as to its possible affect on the agency's disposition." Id. (citing Chamber of Commerce, 443 F.3d at 906). See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 556 (1978) (discussing agency's non-disclosure of information). The Court held that agencies are not required to submit a "full technical exposition of every facet" and need only provide general information relating to their position and reasoning. Id. "[A] single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made...." Id. at 558. See Chamber of Commerce, 443 F.3d at 905 (deconstructing burden under RPE). The party challenging the rule essentially must establish that they "had something useful to say" regarding the undisclosed information, which could have influenced the agency's decision. Id. See also Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (finding Alfa fell short of burden). The Court found Alfa's claims of prejudice to be "vague" and "not enough ... to establish prejudice." Id. The Court found that Alfa asserted general claims of injury, stating "they might have data or other information that may have" effected the DOC's decision. Id. The Court provides that the Alfa may have succeeded had they "put forward any data or information that would cast doubt on any particular priority species designation." Id. Recognizing the difficulty of doing this "without knowing the actual data they seek to rebut," the Court nonetheless found Alfa failed to show that the nondisclosure of the data to not violate the APA. Id. See also Air Transportation Ass'n v. FAA, 169 F.3d at 8 (D.C. Cir. 1999) (reciting how to establish injury under RPE). The party challenging the action must "indicate with reasonable specificity what portions of the [data] it objects to and how it might have responded if given the opportunity" to meet the burden under the prejudicial error rule. Id.

(36.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (summarizing Alfa's "arbitrary and capricious" argument). Alfa's "arbitrary and capricious" argument is based on four points. Id. at 57-58. First, they contend that no data the DOC provided shows a connection between combatting IUU fishing and seafood fraud with the SIM Program's traceability program. Id. at 58. Second, Alfa believed insufficient data was used to strengthen the DOC's reasoning for designating the thirteen species on the priority species list. Id. Lastly, Alfa contended that the DOC inaccurately evaluated the compliance costs for the SIM Program. Id. at 62. See State Farm, 463 U.S. at 57 (describing analysis procedure under "arbitrary and capricious" standard). The question courts need to decide is whether the agency's action was made based on "reasoned analysis." Id. The agency must "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. at 43. Furthermore, a court may not "supply a reasoned basis for the agency's action that the agency itself has not given." Id.

(37.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 58 (determining administrative record provides sufficient support showing SIM Program combats illegal fishing activities). In the Action Plan, the Task Force explicitly says the SIM Program is built on the idea of combatting these illegal fishing activities and will be a drastic "step forward in addressing UJU fishing and seafood fraud." Id. The Court found that the administrative record, the DOC reviewed studies that "emphasize[d] the importance" for the SIM Program. Id. These studies were from the Global Food Traceability Center, the Marine Policy journal, and Oceana, as well as other reports indicating similar conclusions. Id. See Brian Sterling and Mareia Chiasson, Enhancing Seafood Traceability Issues Brief, Global Food Traceability Center 11 (Aug. 22, 2014), http://www.ift.org/~/media/GFTC/Enhancing% 20Seafood%20Traceability%20 Issues%20Brief.pdf (recommending traceability program to combat seafood fraud and IUU fishing). "Challenges for the seafood industry such as IUU fishing and seafood fraud will continue unless innovative, digital data solutions such as electronic traceability are pioneered and implemented." Id. The report further suggests that there is an "urgent need" for a global seafood traceability program. Id. at 12. Key to combatting IUU fishing and seafood fraud is a traceability program, which this SIM Program includes. Id. at 2. See Ganapathiraju Pramod, et. al., Estimates of Illegal and Unreported Fish in Seafood Imports to the USA, Marine Policy, (Mar. 14, 2014), https:// ac.els-cdn.com/S0308597Xl 4000918/1-s2.0-S0308597X14000918-main.pdf?_tid=36d5 774e-aea6-4a02-9ed4-31454512fla7&acdnL.=1521768530_72146c97f2399359c8cbc407 d9f0ec4f (explaining need for traceability program in United States). To address the issue of illegally caught seafood from entering the United States, the "use of catch documentation, improved chain of custody procedures and certified product sources [would] ensure that seafood imports" are derived from legal sources. Id. See Kimberly Warner, et. al., Oceana Study Reveals Seafood Fraud Nationwide, Oceana (Feb. 2013), http://oceana.org/sites/default/files/reports/National_Seafood_Fraud_Test ing_Results_FINAL.pdf (claiming seafood traceability necessary to defeat seafood fraud). A traceability program for seafood "would significantly reduce seafood fraud, while providing consumers with more information about what they are eating .... Traceability allows officials and those in the supply chain to know more about where the fish came from...." Id. at 27. See also Alfa Int'l Seafood, 264 F. Supp. 3d at 59 (noting international impact on DOC's decision). The Court commented that the DOC viewed the fast success of "the European Union's Catch Documentation Program" designed to reduce IUU fishing and seafood fraud, and saw the benefits of the program. Id. The DOC's rationale for promoting the SIM Program was clearly displayed in the eyes of the Court, and ultimately was not "arbitrary and capricious on this ground." Id.

(38.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 59 (explaining Alfa's contentions). This claim regarding the "priority species" list is a substantive challenge, differing from the first procedural argument relating to the non-disclosure of material data. Id. Alfa considered seafood fraud to be a "relevant risk factor" for determining the "priority species" list and contend that there was no data connecting specific species to seafood fraud used during the lists developmental stage. Id. Additionally, Alfa asserted that Red Snapper, Pacific and Atlantic Cod, and Blue Crab should not have been selected because there was "no basis ... to support the selection" because the DOC lacked any data for the designation. Id. To support their argument, Alfa pointed to the DOC's e-mails indicating a lack of data. Id. The Court viewed these emails as "snapshots] in time" and only illuminating the continuing process of obtaining, reviewing, and questioning information by the DOC. Id. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658-59 (instructing courts to focus on final agency action). The Court found that when reviewing agency's rulemaking under the "arbitrary and capricious" standard, the analysis should center on the final agency action and not independent, employee statements throughout the process. Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 60 (focusing on Alfa's argument). Alfa further contended the data used by the DOC was not statistical data, and therefore was insufficient. Id. The Court dismissed this point because at no point does the APA dictate that statistical data must be used by an agency. Id. See State Farm, 463 U.S. at 43 (providing agency guidelines for rulemaking). Statistical evidence is not necessary, the agency just needs to "examine the relevant data" to support their decisions. Id. See Ctr. for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 316 (1992). See Nat'l Tour Brokers Asso. v. Interstate Commerce Com., 671 F.2d 528, 533 (1982) (explaining "relevant data" inquiry). Agency expertise, outside expertise, and policy considerations all qualify as "relevant data." Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 61 (finding DOC properly designated specific species on list). Alfa's argument about the four species, named above, having no data to support their designation failed because they rely upon their statistical data argument again. Id. The DOC met the "relevant data" requirement, relying on the expertise of the NOAA, FDA, and the study performed by Oceana. Id. at 60-61 (quoting State Farm, 463 U.S. at 43). Summarizing this portion of Alfa's argument, the Court was comfortable with the evidence the DOC relied on while finalizing the "priority species" list and found that the DOC did not act "arbitrarily and capriciously" on this count. Id. at 61.

(39.) See Johan Blomquist, et. al., Price Premiums for Providing Eco-Labelled Seafood: Evidence from MSC-Certified Cod in Sweden, 66 J. Agric. Econ. 690 (2015) (examining price effects of seafood labelling program in Sweden). The purpose of this study (Blomquist Study) was to investigate the "price premium achieved by fishermen for providing eco-labelled seafood." Id. at 691. The main goal of this labelling program is to encourage legal fishing practices, showing that the seafood was "sustainably harvested" through the eco-label given to qualified seafood fisheries who's supply chain is appropriately documented. Id. at 690-91. See Alfa Int'l Seafood, 264 F. Supp. 3d at 62 (summarizing claims supporting Alfa's argument regarding inconsistency with DOC findings). Alfa found the Blomquist Study to provide a "10% price premium," which they view as inconsistent with documentation programs in the European Union and the DOC's estimated "one percent increase." Id. The Court found no weight to Alfa's claim when they distinguished the Blomquist Study from the E.U. programs because it had "its own distinct goals and requirements," finding this reason singlehandedly disposes of this contention. Id. Lastly, Alfa contested the agency's "assumption" that supply-side costs will be minimally effected by the SIM Program "is not the result of independent assessment" that is "inconsistent with the results of the [Blomquist Study] relied upon by the agency." Id. at 64. The Court disagreed with Alfa, finding the DOC's perspective on supply-side costs to be a product of "reasoned analysis" and not an assumption at all. Id. In the Federal Register, the Court found this "reasoned analysis" where the DOC elucidated "that 70 [percent] or more of the seafood products imported into the United States come from exporters subject to the E.U. traceability program." Id. This analysis does emerge from the DOC assuming that because their program and the E.U. program "collect substantially similar" information, the cost to seafood suppliers in both markets will be marginally increased. Id. No evidence in the Blomquist Study points to inconsistencies with the assumption the DOC makes. Id. The Court found that the DOC was not "arbitrary and capricious" in setting the supply-side cost estimates and they had "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (quoting State Farm, 463 U.S. at 43). See also Nat'l Tour Brokers, 671 F.2d at 533 (allowing agency to base analysis on assumptions when formulating rules). "[A]n agency may rely on its experience to provide necessary factual support for [rulemaking decisions] so long as that experience is made part of the record and susceptible to judicial review." Id.

(40.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 65-66 (addressing Alfa's final "arbitrary and capricious" argument). Alfa viewed the January 1, 2018 compliance date to be "overly burdensome," arguing that the one-year period between the effective date and compliance date created many issues that the DOC refused to address. Id. at 65. These issues that Alfa suggested would arise included seafood caught prior to the SIM Program being issued would return to the United states after the compliance date has passed. Id. As a result, it was suggested that the SIM Program should not apply to harvested seafood caught prior to sixty days after the SIM Program became effective. Id. at 65-66. The Court dismissed the suggested sixty days' date that Alfa asserted because it "does not give rise to a violation of the APA." Id. at 66. The Court found no information to back up their argument that it takes a year, or more, for seafood to return to the United States. Id. Alfa failing to provide such information means the DOC did not fail to review any evidence and the compliance date of the SIM Program did not violate the APA. Id. Finally, the Court found that the DOC had reviewed the public's concern for the compliance date during the "notice-and-comment" period, "and made the reasonable determination that a one-year period provide[d] sufficient time" for Alfa's assertion. Id. See Administrative Record, supra note 13, at 693 (showing DOC replying to public concern over compliance date of SIM Program). The administrative record provided the DOC's direct response to this very issue regarding re-importation of seafood after the compliance date stating:
   U.S. importers must work with exporters to obtain harvest and
   supply chain records for products harvested earlier than January 1,
   2018 if these products will be entered into the United States on or
   after that date. [The DOC] evaluated the time interval from harvest
   date to entry date for several fish products currently subject to
   import monitoring programs ... and determined that in most cases
   U.S. imports occur within a few months of the harvest event. Some
   products may be in the supply chain for longer periods due to
   processing, cold storage and shipping time. U.S. importers should
   work with their suppliers in advance of the compliance date of
   January 1, 2018 to ensure that the required information is
   available.


Id. The DOC clearly reviewed this concern, and concluded that one year would be sufficient after finding it usually takes "a few months" after harvesting for the seafood to import into the United States. Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 66 (determining compliance date reasonable). The Court determined that the agency addressed Alfa's argument and "gave a rational explanation" for setting the date, thus finding the SIM Program's compliance date the agency set did not violate the APA's "arbitrary and capricious" standard. Id.

(41.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 57, 66 (conveying succinct holding of Alfa's arguments). After reviewing the claims of procedural and substantive violations of the APA, the Court rejected each contention after Alfa failed to meet the burden of prejudicial error rule to show the nondisclosure of the data defied the "notice-and-comment" requirement, and "[found] that the [DOC] did not act arbitrarily and capriciously in issuing the [SIM Program]." Id. The Court notes that Alfa may have succeeded on the procedural argument if they could have "indicate[d] with reasonable specificity" their objections to the undisclosed data, however, it is no easy task when the data is unknown to them. Id. at 57. The Court was less sympathetic to the substantive allegations Plaintiff issued, stating that they could "easily discern the [DOC's] rationale for adopting a traceability rule to combat IUU fishing and seafood fraud." Id. at 59. Further, "the court [was] satisfied that there is a 'rational connection' between the evidence contained in the administrative record and the selection of the priority species." Id. at 61 (quoting State Farm, 463 U.S. at 43). Also, the Court found Alfa failed to show the DOC's "supply-side cost estimates" were inconsistent with the Blomquist Study because they "examine[d] the relevant data and articulate^] a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. at 65 (quoting State Farm, 463 U.S. at 43). Finally, the Court dismissed the "unduly burdensome" compliance date claim after the DOC addressed the unsubstantiated argument Alfa made. Id. at 66. See also Am. Radio, 524 F.3d at 236-37 (declaring agency must disclose data material to its decision allowing meaningful comment from interested parties). For the comment period prescribed by the APA, agencies must provide the data they reviewed, so the public can efficiently understand their reasoning and provide feedback or questions. Id. See also Air Transp. Ass'n, 169 F.3d at 8 (requiring "reasonable specificity" when showing prejudice). The challengers of an agency action must specify the prejudice they faced to meet their burden. Id. See also 5 U.S.C. [section] 706(2)(A) (deeming "arbitrary and capricious" agency actions unlawful); State Farm, 463 U.S. at 57 (instructing courts to determine whether challenged action based on "reasoned analysis). Agencies will be found to have completed this "reasoned analysis" when it "examinefd] the relevant data and articulate[d] a satisfactory explanation for its action," as well as connecting the facts discovered with the decision made. State Farm, 464 U.S. at 43. A court will not afford this "reasoned analysis" to an agency, the agency must display it themselves. Id. See also Compliance Guide, supra note 2, 1-5 (providing overview of requirements of SIM Program). The SIM Program demands to documentation to include information about the location, time, vessel, and fishing gear used, as well as the importer's name, IFTP identifier, and records of the product's importation journey. Id. at 2.

(42.) 264 F. Supp. 3d 23, 31 (D.D.C. 2017) (holding SIM Program properly promulgated).

(43.) See id. (stating Court's findings for each of Alfa's arguments). Regarding Alfa's challenges to the DOC violating the "notice-and-comment" requirement of the APA and acting "arbitrarily and capriciously" in promulgating the SIM Program, the Court accurately concluded that "the [SIM Program] does not violate either the procedural or substantive requirements of the APA...." Id.

(44.) See id. at 57 (pointing out rule of prejudicial error applies to APA claims). After finding that the DOC was not exempt from retaining the data used in creating the "priority species" list, the Court acknowledged that the RPE applies to agency actions reviewed under the APA. Id. Determining that Alfa failed to meet their burden, the Court recognized the challenging situation they faced in succeeding because "[Alfa] find[s] themselves in the difficult position of having to demonstrate prejudice without knowing the actual data they seek to rebut." Id. (emphasis added). See Smith, supra note 23, at 1744 (explaining difficulty of analyzing RPE in procedural challenges). This procedural test has been claimed to be simple, however, it has not always been applied consistently. Id. "A challenger must show that a procedural error prevented specific facts or arguments from being presented to an agency and entered into the administrative record." Id. Reviewing the opinion in Gerber, it is pointed out that the challengers identified "three specific critiques" they would have made had they been given the opportunity. Id. at 1745 (quoting Gerber, 294 F.3d at 182). In Gerber, the D.C. Circuit had focused on what the challenger would state had the data been provided, other jurisdictions inquire about "how an error affected an administrative record." Id. at 1746 (emphasis added). In either approach, while inconsistent, essentially the same question is being asked, "[d]id the record change because of the mistake?" Id. at 1747. See generally Gerber, 294 F.3d 173 (concluding burden met when challenger identified specific arguments could make if error had not occurred).

(45.) See Springer, 498 F. Supp. 2d at 207 (holding summary judgment standard in civil cases does not apply to APA challenges). When an agency action under the APA is reviewed by the court, the ordinary standard does not apply. Id. See Am. Bioscience, 269 F.3d at 1083 (defining specific summary judgment standard courts use to review agency actions under APA). Reviewing a party's challenge to an agency action under the APA, "the district judge sits as an appellate tribunal" and the whole case is reviewed as a question of law. Id. See Vilsack, 684 F. Supp. 2d at 142 (providing question court must answer under APA summary judgment standard). The court is required to answer, "whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review." Id. See also Sierra Club, 459 F. Supp. 2d at 89 (holding same standard of review for summary judgment); Home Builders Asss'n., 268 F. Supp. 2d at 1207 (revealing summary judgment standard different for agency actions reviewed under APA).

(46.) 463 U.S. 29, 57 (1983) (announcing "arbitrary and capricious" standard of review).

(47.) See id. (determining agency must provide "reasoned analysis" for its decision). Failing to give a "reasoned analysis," the Court determined that the agency action was "arbitrary and capricious." Id. The Court found that the agency was incapable of giving an explanation for how their decision was necessary. Id. at 56-57. See Alfa Int'l Seafood, 264 F. Supp. 3d at 53 (announcing standard used to determine whether agency action unlawful). The APA allows a court to determine an agency action violates the statute if it concludes it to be "arbitrary and capricious." Id. (citing 5 U.S.C. [section] 706(2)(A)). See also Owner-Operator Indep. Drivers Ass'n, 494 F.3d at 199 (finding action "arbitrary and capricious" because agency failed to offer "reasoned explanation" for its decision); Tackitt, 758 F.2d at 1575 (requiring finding of "no rational basis" for agency decision to meet "arbitrary and capricious" standard); Diamond Ring Ranch, Inc., 531 F.2d at 1407 (determining court must find whether "rational basis" exists for agency action).

(48.) See State Farm, 463 U.S. at 43 (affirming standard of review under APA's "arbitrary and capricious" element). The Supreme Court "[has] frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner...." Id. at 48. To discern whether an agency action was founded on "reasoned analysis," courts must inspect the administrative record because "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (emphasis added) (internal quotation marks removed). To do this, the court must decide if the agency considered the pertinent facts in making the decision, while determining if the agency made any obvious mistakes in their conclusion. Id. Successful challenges to rules under the "arbitrary and capricious" standard generally come down to four situations. Id. First, when an agency "reliefs] on factors which Congress has not intended it to consider," it will be found to be "arbitrary and capricious." Id. Second, if the agency has completely ignored an essential "aspect of the problem," it will be overturned. Id. Third, when the agency's explanation for its rule "runs counter to the evidence" they reviewed, it will not survive the challenge. Id. Fourth, if the rule and explanation "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise," it will not be upheld. Id. See Chenery Corp., 332 U.S. at 196 (discussing court's role in reviewing agency actions). When dealing with an action that the administrative agent solely holds the power to make, the court "must judge the propriety of such action solely by the grounds invoked by the agency." Id. A court is "powerless to affirm" the rule if it finds the "grounds" to be inadequate and may not implement a more sufficient basis. Id. The Court stated, "[w]e may not supply a reasoned basis for the agency's action that the agency itself has not given." Id. See Bowman Transp., 419 U.S. at 286 (furthering court's role in determining validity of agency actions). While the agency must make a connection between the process of rulemaking and the final decision, the court will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. See also Shoreham Apple Producers, 764 F.2d at 140 (finding agency not required to show "specific and detailed" connection to decision); Community Nutrition, 493 F. Supp. at 492 (requiring courts to find "reasoned basis and support" in administrative record). "[l]n assuring itself that full consideration has been given to all significant factors, the Court need not find the administrator's choice was optimal," the court solely needs to find support for the decision in the administrative record. Community Nutrition, 493 F. Supp. at 492.

(49.) See State Farm, 463 U.S. at 43 (explaining how to review agency's explanation). After considering whether the agency reviewed the "relevant factors," the court must also determine if the record contains a "clear error of judgment" on the agency's part. Id. See Judulang, 565 U.S. at 53 (discussing how court finds "clear error of judgment" under APA). Determining whether an agency made an obvious error of judgment, "examining the reasons for agency decisions--or, as the case may be, the absence of such reasons" will provide the court with an answer. Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 58 (determining DOC adequately provided basis for decisions they made). The Court was able to "reasonably discern the agency's path" for each of the decisions the DOC made that Alfa was challenging. Id. First, the Court found "ample evidence" in the administrative record showing the IUU fishing and seafood fraud could be deterred by the institution of the SIM Program. Id. In the Task Force's Action Plan, they clearly state the effect of the SIM Program would address the issue of IUU fishing and seafood fraud. Id. From this, the Court accurately found that the SIM Program was built upon this idea. Id. The Court references the "multiple academic and industry studies" compiled in the administrative record, proving this conception. Id. See Sterling and Chiasson, supra note 37 (describing need for traceability system). This study concluded that "[t]here is an urgent need for ... a global seafood traceability system" in order to combat the illegal activities the DOC seeks to refute. Id. "Challenges for the seafood industry such as IUU fishing and seafood fraud will continue unless" programs such as the ones provided for through the SIM Program are implemented. Id. See also Pramod, supra note 37, at 105 (finding current practices in United States designed to deter illegal fishing failing). This study found that "current regulations and border inspection practices in the USA are not effectively oriented towards the prevention or interdiction of trade in illegal fish products." Id. at 112. These practices already in place "allow illegal fish to be concealed [and] mixed indistinguishably into legal product flows," which will continue in the "absence of adequate catch documentation and reliable traceability...." Id. at 107. See also Warner, supra note 37, at 2 (determining rule like SIM Program required). The DOC further cited to a study by Oceana with results pointing to a need for a "comprehensive and transparent traceability system," one which the SIM Program is designed to replicate. Id. See also Alfa Int'l Seafood, 264 F. Supp. 3d, at 58-59 (concluding DOC supplied significant information indicating SIM Program linked to solve its goals). "In sum, there is no shortage of literature in the administrative record demonstrating the important role [the SIM Program) can play in addressing the problems of IUU fishing and seafood fraud." Id. See also State Farm, 463 U. S. at 43 (concluding agency only needs to consider "relevant data" to explain "rational connection" to final decision); Federal Highway Admin., 956 F.2d at 316 (explaining "relevant data" includes agency or outside expertise); Alfa Int'l Seafood, 264 F. Supp. 3d at 23 (finding DOC relied on proper data). In Alfa Int'l Seafood, the DOC considered the "relevant data" by relying on information and expert advice, as well as explaining their reasons through their own assumptions and findings. Alfa Int'l Seafood, 264 F. Supp. 3d at 23.

(50.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 56 (dismissing DOC's arguments for refusing to disclose data related to "priority species" list). After admitting to not disclosing the data, the DOC reasoned that the summaries in the Federal Register "conveyed general information" on that data. Id. The DOC further claimed the undisclosed data was exempt from publication because it was exempt through the law enforcement privilege. Id. Neither proposition was accepted by the Court. Id. at 56. See also Conn. Light & Power, 673 F.2d at 530 (supplying reason for disclosure requirement). "If the notice of proposed rule-making fails to provide an accurate picture of the reasoning that has led the agency to the proposed rule," then the public will be deprived of meaningful comment and the purpose of this APA requirement is irrelevant. Id. The agency is required to submit all data or studies they used in making their decision to propose the rule. Id. "An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary." Id. at 530-31. I

(51.) See Alfa Int'l Seafood, 264 F. Supp. 3d at 56 (reviewing DOC's first defense for withholding critical data). The DOC claimed that their summaries of why each species was selected for the "priority species" list contained information regarding the data. Id. See Action Plan, supra note 11, at 66870 (showing publicized summaries by DOC). The following is one of those summaries (all containing similar information):
   Atlantic [C]od has been the subject of species substitution with
   other white fish, and mislabeling due to over-glazing (ice
   coating), and short-weighting. Despite enforcement capability,
   Atlantic Cod have been targets of IUU fishing in parts of the
   geographic range of the species. Additional IUU fishing risk is
   tied to a lack of an effective catch documentation scheme
   throughout the geographic range of fishing activity, despite
   rigorous reporting requirements in some areas including the United
   States.


Id. There is clearly no reasonable basis for finding any connection these summaries have with the unidentified data because there is no mention of the data or anything that would suggest any relation to it. Id. See also Administrative Record, supra note 13, at 227 (acknowledging use of undisclosed data). In the administrative record, the DOC stated that they used "verifiable data," the data at issue, gathered from multiple government agencies. Id. At various times, this data is mentioned throughout the administrative record, but never specifically identified. Id. at 227, 233, 261, 330, 333.

(52.) See In re Sealed Case, 856 F.2d at 271 (describing law enforcement privilege). The three conditions required by the privilege are to "ensure that the privilege is presented in a deliberate, considered, and reasonably specific manner." Id. See Administrative Record, supra note 13, at 331 (providing reasoning for nondisclosure of critical data). The DOC reasoned that the data could not be disclosed "because of data confidentiality and enforcement implications." Id. See 5 U.S.C. [section] 552(b)(7) (listing different situations privilege acceptable to invoke). The privilege only applies to information gathered for law enforcement purposes, and is only protected in limited circumstances, including times where they: "could reasonably be expected to interfere with enforcement proceedings ... could reasonably be expected to disclose the identity of a confidential source ... would disclose techniques and procedures for law enforcement investigations...." Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (concluding DOC may not invoke privilege). The Court was correct to find that the DOC was barred from invoking the privilege because of not invoking it at the required time, and failing to meet any of the three required elements set forth. Id. See also Puerto Rico, 490 F.3d at 71 (finding law enforcement privilege exempts disclosure of certain material). The court found the privilege applied and exempted disclosure because "sensitive law enforcement protocols and techniques" used by government agencies needs to be protected. Id. Withholding such material, while meeting the three conditions, will result in a successful assertion of the privilege. Id. "We emphasize that this qualified privilege is subject to balancing the federal government's interest in preserving the confidentiality of sensitive law enforcement techniques against the requesting party's interest in disclosure." Id. at 64.

(53.) See 5 U.S.C. [section] 706 (requiring courts to take "due account" of RPE); Allina Health, 746 F.3d 1109-10 (analyzing case under APA's required RPE); Chamber of Commerce, 443 F.3d at 904 (applying RPE to challenged agency action under APA); Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (concluding Alfa failed to meet burden under RPE). In Alfa Int'l Seafood, the Court was correct in determining the SIM Program was not invalid following their finding no exemption the DOC could rely on by recognizing the RPE applies to challenges brought under the APA. Alfa Int'l Seafood, 264 F. Supp. 3d at 57. When applying the RPE to the facts set forth, Alfa was unable to succeed after making "vague claims," which did not amount to the particularity required to show they suffered prejudice. Id. See also Sanders, 556 U.S. at 409 (determining burden of showing harm falls to attacking party). The Court views the RPE under the APA to be of "the same kind of harmless-error" ordinarily used by courts in civil proceedings. Id. at 406. Further, the Court has maintained that the party seeking reversal because of an error "carries the burden of showing that prejudice resulted." Id. at 409 (quoting Palmer, 318 U.S. at 116). Also, looking to lower courts burden placements on administrative challenges, the Court found "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Id. The Court rejected the plaintiffs' request for the burden to be placed on the agency because they only switch the burden when it is a criminal case under review. Id. See also Am. Airlines, 202 F.3d at 797 (placing burden of RPE on challenging party); Air Canada, 148 F.3d at 1156 (requiring party attacking action to show prejudice); Smith, supra note 23, at 1728 (discussing Supreme Court's "uncontroversial" holding regarding RPE in Sanders). Remarking on the Supreme Court's decision relating to the RPE, Craig Smith stated: "Justice Breyer's majority opinion declared something already widely understood: the burden of demonstrating harm is borne by the parties challenging agencies' decisions." Smith, supra, at 1728.

(54.) See Sanders, 556 U.S. at 410 (concluding burden falls to party challenging agency's action). The burden of proving prejudice resulting from an agency's action is harmful "falls upon the party attacking" that action. Id. See also Am. Airlines, 202 F.3d at 797 (finding burden to show prejudice best demonstrated by complainant); Chamber of Commerce, 443 F.3d at 904 (requiring protestor of action to show prejudice they suffered); Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (remarking on difficulty challenger faces). In Alfa Int'l Seafood, the Court stated: "[Alfa] find[s] themselves in the difficult position of having to demonstrate prejudice without knowing the actual data they seek to rebut." Alfa Int'l Seafood, 264 F. Supp. 3d at 57. See also 5 U.S.C. [section] 706 (laying out APA provision). For the agency action to be set aside or to be found unlawful, the court must "review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." Id. (emphasis added). But see Smith, supra note 23, at 1735 (noting occasion courts have shifted burden to agency). Some courts have held that the challenger must show "how they were harmed" by the agency committing an error, although others occasionally have "shiftfed] the burden to an agency to show that no harm resulted." Id. Shifting the burden in these occasional cases has been rare and happening "only when an agency has run roughshod over important statutory rules." Id. The rare cases requiring agencies to bear the burden of the RPE usually have come from an utter failure to provide notice of the proposed rule or did not provide any opportunity for public parties to comment on them. Id. at 1736. See also Ala. Power Co., 160 F.3d at 10-11 (shifting burden to agency after finding agency ignored notice requirement); McLouth Steel, 838 F.2d at 1324 (refusing to place burden on challenger when agency "completely failed to comply" with APA).

(55.) See Allina Health, 746 F.3d at 1109-11 (explaining RPE requirements for prejudice). In cases where an agency has based its rule on data that was not printed in the Federal Register, thus "depriving] commenters of a right" under the APA to be included in the rulemaking process, the relevant inquiry of the court is to focus on "whether [that] failure to disclose such material actually harmed a petitioner." Id. A court will find the nondisclosure harmful if the challenger is able "to show that an opportunity to comment" on the critical information "created enough uncertainty as to its possible affect on the agency's disposition." Id. (citing Chamber of Commerce, 443 F.3d at 906). See Air Transp. Ass'n, 169 F.3d at 8 (finding challenger met standard to show prejudice). The court requires the challenger to "indicate with reasonable specificity" what exactly in the data they are protesting and how they would have responded had they been given the opportunity. Id. The challenger in this case supplied a brief that "include[d] the nature of its objection to the . . . information, and it seems rather specific." Id. See Chamber of Commerce, 443 F.3d at 905 (describing what complainant's objections must amount to). The court noted that the Chamber is not required to prove their comments would drive the agency to change their decision to be successful in showing prejudice. Id. "The Chamber's demonstration that it had something useful to say about this critical data is sufficient to establish prejudice." Id. See Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (holding Alfa failed to meet RPE burden). Alfa's claims of prejudice included ambiguous statements of holding "relevant information" to challenge the designation of certain species on the "priority species" list and that the DOC deprived them of the opportunity to review the "strengths and weaknesses" of their findings. Id. The Court was correct to find these statements did not show "reasonable specificity," and concluded Alfa's assertion that the data being withheld did not violate the "notice-and-comment" requirement of the APA. Id. See also Gerber, 294 F.3d at 184 (discussing how RPE applies in APA cases). Looking to one of the Service's defenses for their procedural error, the court dismissed their notion that the Appellants concerns would not have changed their decisions, had they been notified during the permit issuing. Id. at 183. The court refused to consider "post hoc rationalizations" and only review the agency's explanation provided during the progression of the regulation. Id. at 184. The court reasoned that this rationalization provided by the Service would create a lose-lose situation for plaintiffs attempting to show prejudice. Id. First, if a challenger fails to meet the "reasonable specificity" element of the RPE, they lose their case. Id. Moreover, should the challenger meet that requirement, the agency could easily just acknowledge their specific contentions and state that they are going to reach their original conclusion regardless. Id. Notice requirements would be destroyed if courts allowed agencies to do this. Id. Compare Gerber, 294 F.3d at 182 (concluding challenger demonstrated prejudice resulting from error), with United States Telecom Ass'n, 400 F.3d at 41 (holding challenger unable to identify original arguments not previously made), and Garvey, 300 F.3d at 1151-51 (finding agency not required to consider party's arguments substantively similar to another comment already considered).

(56.) See Nat'l Ass'n of Home Builders, 551 U.S. at 659 (noting error not enough to vacate permit application); Landry, 204 F.3d at 1137 (holding violation harmless); Sagebrush, 790 F.2d at 769 (finding error harmless because plaintiffs failed to meet burden); Riverbend Farms, 958 F.2d at 1487-88 (concluding agency error harmless); A If a Int'l Seafood, 264 F. Supp. 3d at 57 (determining Alfa failed to meet burden of RPE to show prejudice). In Alfa Int'l Seafood, Alfa only mounted "vague claims" that the nondisclosure subjected them to prejudice, which was not enough to meet their RPE burden under the APA. Alfa Int'l Seafood, 264 F. Supp. 3d at 57. The Court stated that Alfa may have met their burden had they produced a more specific argument. Id. But see Gerber, 294 F.3d at 182 (finding Appellants met RPE burden of showing prejudice). The Appellants demonstrated, "to an extent we have rarely seen in APA cases," the prejudice they suffered from the Service's nondisclosure of the map. Id. The court noted that the Service could have avoided this had they exposed the map to public comment, if they had done so, they would not have had to follow the Appellants concerns, only considered them. Id. at 184.

(57.) See Smith, supra note 23, at 1727 (discussing difficulty for challengers meeting RPE burden). Acknowledging how often courts must review agency actions under the APA, and how that often includes applying the RPE, the rule "remains ill-defined." Id. Reviewing the Sanders case, the "opinion indicates that after sixty years of review under the APA, courts have yet to decide just when a complaining party has been injured ... by an agency's error." Id. In delivering the majority's opinion, Justice Breyer, "declared something already widely understood" by reiterating the burden of RPE falls to the challenging party. Id. at 1728 (citing Sanders, 556 U.S. at 410). In Sanders, the Court "left unexplored the interesting and important question of how parties can persuade a court that an error was prejudicial." Id. (citing Sanders, 556 U.S. at 410). This question is important because a multitude of cases each year deal with it, however courts have not settled on "an accepted answer" to it. Id. Scholars, reviewing the RPE and administrative cases, have not found "a general account of how the burden of showing harm can be met in administrative cases." Id. See also 5 U.S.C. [section] 706 (requiring courts acknowledge RPE). Nowhere in the statute has Congress provided a clear standard for a challenger to understand what they must show to succeed in their claims of prejudice. Id. See also Alfa Int'l Seafood, 264 F. Supp. 3d at 57 (illuminating possible successful showing of prejudice). Alfa may have been successful in demonstrating harm they suffered had they "put forward any data or information that would cast doubt on any particular priority species designation." Id.

(58.) See Alfa Int'l Seafood, 264 F. Supp. 3 d at 57 (concluding Alfa failed to show prejudice leaving SIM Program intact). Alfa failed to supply evidence with "reasonable specificity" as to why they suffered prejudice, and as a result the SIM Program was not invalidated on this claim. Id. (quoting Air Transp. Ass'n, 169 F.3d at 8). By solely making unsubstantiated claims, Alfa failed to show they had "something useful to say" regarding the undisclosed information used by the DOC. Id. (quoting Chamber of Commerce, 443 F.3d at 906). See also Sanders, 556 U.S. at 409; Conn. Light & Power, 673 F.2d at 530; Chamber of Commerce, 443 F.3d at 899; Am. Radio, 524 F.3d at 236-37; Allina Health, 746 F.3d at 1109-10; Air Transp., 169 F.3d at 8 (providing standards for reviewing whether RPE will invalidate agency action).

(59.) 264 F. Supp. 3d 23 (D.D.C. 2017).
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Author:Marzbanian, Trevor
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2018
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