United States District Court, District of Columbia
P. Mehta United States District Judge.
fish two fish red fish blue fish. Black fish blue fish old
fish new fish. . . . Say! what a lot of fish there
Seuss, One Fish Two Fish Red Fish Blue Fish (1960)
turns out that there a lot more fish in the sea than even Dr.
Seuss imagined. So many, in fact, that countries, including
the United States, historically have had difficulty keeping
track of the seafood that crosses their borders. This is
increasingly problematic, as the United States consumes
billions of pounds of seafood every year and, as many U.S.
consumers may be surprised to learn, more than 90% of that
seafood is imported. Thus, 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, to be combined with other ingredients into a
crab cake, eaten by someone with little appreciation for the
peripatetic journey that produced her meal. 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.
complexity of this catch-to-table distribution chain,
however, is rife with vulnerabilities. It is well documented
that, at each stage, opportunists seek to game the system,
largely by circumventing laws or norms that regulate the
manner in which the world seafood market operates. Such
activities-known as “illegal, unreported, and
unregulated” (“IUU”) fishing and
“seafood fraud”-have had profound global and
domestic economic and noneconomic consequences.
case is about a U.S. federal government regulation, known as
the “Seafood Import Monitoring Program” (the
“Rule”), which aims to address the problem of IUU
fishing and seafood fraud. Promulgated by the Department of
Commerce (the “Department”) through its
sub-agency, the National Marine Fisheries Service, the
Rule's purpose is to protect U.S.-based fisheries and
fishermen from unfair competition, as well as increase global
food security and promote the sustainability of marine
resources. Starting on January 1, 2018, the Rule will require
U.S.-based importers of seafood to collect information about
each stage of the supply chain for certain types of seafood
imported into the United States, starting from the
catch's point of origin until its arrival to our shores.
Importers also will have to identify the seafood species
entering the United States, as well as obtain a permit from
the Department to continue importing seafood into the United
States. The agency anticipates that these requirements will
increase the expense of importing seafood and, ultimately,
may increase the cost of seafood to the consumer.
case presents a challenge to the Rule. Plaintiffs include
several U.S.-based seafood importers, processors, and
harvesters who claim that the Department violated federal law
in promulgating the Rule and that businesses will be harmed
as a result. In broad strokes, Plaintiffs posit that the
Department acted without proper authority, under both the
relevant statutes and the Constitution, by issuing an overly
expansive and highly burdensome regulatory regime and relying
on insufficient evidence to do so. Specifically, Plaintiffs
maintain that (1) the Rule was not issued by someone with
either the statutory or constitutional authority to do so;
(2) the Department acted outside its authority under the
Magnuson-Stevens Fishery Conservation and Management Act
(“MSA”), Pub. L. No. 94-265 (codified as amended
at 16 U.S.C. §§ 1801-1891),  in issuing
regulations aimed at seafood fraud; (3) the Rule was
promulgated in violation of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 551 et seq., because it
is based on undisclosed or insufficient supporting
information; and (4) the Department failed to properly
complete a Regulatory Flexibility Analysis concerning the
Rule's effect on small businesses, as required under the
Regulatory Flexibility Act, 5 U.S.C. §§ 601-611.
Plaintiffs urge the court to invalidate the Rule.
the court are the parties' cross-motions for summary
judgment. Having given careful consideration to the
parties' arguments and closely reviewed the extensive
administrative record, the court finds that (1) the
Rule's issuance did not run afoul of the MSA, and the
current Secretary of Commerce validly ratified the Rule,
thereby curing any alleged constitutional defect in the
Rule's promulgation; (2) Congress granted the Department
authority to issue regulations to combat seafood fraud, and
the Department did not encroach upon another agency's
exclusive jurisdiction by so doing; (3) the Rule does not
violate either the procedural or substantive requirements of
the APA; and (4) the Department did not transgress the
requirements of the Regulatory Flexibility Act. Accordingly,
the court denies Plaintiffs' Motion for Summary Judgment
and grants Defendants' Cross-Motions for Summary
Illegal, Unreported, and Unregulated Fishing and Seafood
unreported and unregulated” (“IUU”) fishing
encompasses a broad range of illicit conduct. It includes (1)
fishing in violation of national, regional, or international
laws and regulations (“illegal”); (2) failing to
report or misreporting fishing activities to proper
authorities when required (“unreported”); and (3)
fishing in areas or for fish stocks for which management
measures are lacking (“unregulated”).
See Admin. Rec., ECF Nos. 71-74, 77, 79 [hereinafter
A.R.], at 013102.
fishing has had tremendous economic, environmental, and
health impacts. IUU-caught fish have flooded markets
worldwide and eroded the profits of legitimate fishermen by
undercutting their prices. Id. at 000001. One study,
for instance, estimates that IUU fishing causes annual
worldwide economic losses between $10 billion and $23.5
billion. Id. at 000357. Another study found that
between 20% and 32% of wild-caught seafood imported into the
United States originates from IUU fishing, with an estimated
value between $1.3 billion and $2.1 billion. Id. at
000360. IUU fishing also has environmental impacts. Illegal
fishing often violates internationally established
conservation and management measures, which in turn has
adverse impacts on fisheries, marine ecosystems, and coastal
communities worldwide. Id. at 013102-03. Finally,
IUU fishing operations are unlikely to observe seafood health
regulations, thereby passing health risks along to consumers.
Id. at 013103. The scourge of IUU fishing is thus a
problem of global concern.
related problem to IUU fishing is “seafood
fraud.” Generally speaking, seafood fraud is the
practice of misleading consumers about the type or origin of
seafood. Id. The most prominent seafood fraud
practices are “species substitution”-i.e.,
falsely representing the type of fish being sold-and
mislabeling-i.e., misrepresenting the seafood's country
of origin. Id. As a result of such behavior, for
instance, consumers who purchase “wild-caught”
salmon may actually be getting farm-raised salmon. Worse yet,
a consumer who bites into a tuna sandwich may not be eating
tuna at all, but instead, escolar, which is a less expensive
species of fish potentially harmful to human health.
Id. at 002459. Thus, seafood fraud not only denies
the consumer the right to know what she is eating, but also
can present latent health risks.
The IUU Task Force
address these concerns, on June 17, 2014, President Obama
established by Executive Order a “Presidential Task
Force on Combating Illegal, Unreported, and Unregulated
Fishing and Seafood Fraud” (the “IUU Task
Force” or “the Task Force”). See
Id. at 000001-04. The President established the IUU Task
Force as a subcommittee reporting to the National Ocean
Council and designated as its co-chairs the Secretaries of
Commerce and State, or their designees. Representatives from
12 other federal agencies served as Task Force members. The
President charged the Task Force with developing a
comprehensive scheme to “combat IUU fishing and seafood
fraud” by “implement[ing] existing programs, and,
if appropriate, develop[ing] . . . new, voluntary or other,
programs for seafood tracking and traceability.”
Id. at 000002. The President directed the Task Force
to make, within 180 days, “recommendations for the
implementation of a comprehensive framework of integrated
programs to combat IUU fishing and seafood fraud that
emphasizes areas of greatest need.” Id.
Task Force commenced its work immediately. It initiated a
public process to solicit information and advice on
recommendations to combat IUU fishing and seafood fraud.
Id. at 013107. That process included inviting public
comment through a notice in the Federal Register, holding
public meetings, and hosting webinars. Id. The Task
Force also analyzed the federal government's existing
enforcement authority with respect to IUU fishing and seafood
fraud, including gaps in such authority, and examined areas
for improved coordination among federal agencies.
months later, in December 2014, the Task Force made 15
recommendations to the President for “the
implementation of a comprehensive framework of integrated
programs to combat IUU fishing and seafood fraud that
emphasizes areas of greatest need.” Id. at
002665-69. Among the Task Force's key recommendations was
the creation of a seafood “traceability” program,
under which seafood importers would be required to submit
information documenting each link in the supply chain of the
seafood they import, the first phase of which would apply to
species with either a well-documented history of seafood
fraud or a significant risk profile for IUU fishing.
Id. at 002668-69. The Task Force determined that
increasing transparency in the supply chain would enable
authorities to more effectively prevent illegally caught or
misrepresented seafood from entering the supply chain and the
U.S. market. This increased scrutiny, in turn, would reduce
the incentives to engage in IUU fishing over time.
Additionally, by reducing the amount of illegally caught
seafood in the U.S. market, domestic fishermen would be able
to compete on a level playing field and reap the attendant
financial benefits. And, of course, reducing IUU fishing also
would have positive environmental benefits, such as
protecting overfished species and safeguarding sensitive
marine ecosystems. Id. at 002670-73, 014046.
seeking public comment, the IUU Task Force published an
Action Plan to implement its 15 recommendations. Id.
at 002666, 004465, 013102-40. The Action Plan identified the
types of data that would need to be collected and set forth
an implementation timeline, including for the traceability
program, whereby certain “at risk, ” or
“priority, ” species would be subject to the
Rule's information collection requirements before other
species. Id. at 006908, 013135-37. The Action Plan
anticipated that, following a period of notice and comment,
the final Rule would issue by August 2016 and become
effective by September 2016. Id. at 013136.
The Department's Notice-and-Comment Rulemaking
publication of the Action Plan, the Task Force's efforts
continued under the direction of the National Ocean Council
Committee on IUU Fishing and Seafood Fraud. Id. at
004465. That Committee, in turn, commissioned a Working
Group, led by the National Oceanic and Atmospheric
Administration and comprised of representatives from the
Departments of State and Homeland Security, the Food and Drug
Administration, Customs and Border Protection, and the Office
of the U.S. Trade Representative (collectively, the
“Working Group”), to design and implement
regulations to effectuate the Task Force's Action Plan.
Id. The Working Group acted under the auspices of
the National Marine Fisheries Service, a sub-agency within
the Department of Commerce. For ease of reference, the court
will refer to the various agencies, sub-agencies, and
committees that worked on the Rule simply as the
“Department, ” except where greater specificity
is needed for the court's analysis.
issuing the Final Rule, the Department published multiple
notices in the Federal Register. Id. First, in April
2015, the Department published a Notice calling for public
comment on the principles it ought to use in developing the
list of “priority” species to which the Rule
would first apply. Id. at 002674-75. In July 2015,
the Department published a second Notice soliciting public
comment on the type of information and documentation the
traceability program should collect. Id. at 003129.
In August 2015, after receiving a substantial number of
public comments in response to its earlier notices, the
Department published a third Notice that contained seven
principles for identifying “priority” species,
provided an initial draft of the priority species list, and
described the agency's methodology for developing both
lists. Id. at 003971-78. The August Notice also
stated that the final traceability program and priority
species list would be developed pursuant to the agency's
rulemaking authority under the Magnuson-Stevens Fishery
Conservation and Management Act. Id. at 003971.
October 2015, the Department published a final Notice of
Determination. That Notice identified the final list of
principles that the agency used to identify priority species,
as well as the priority species that would be subject to the
Rule. Id. at 004464-68. As to each
selected species, the Notice included a “[b]rief
summar[y]” of the Working Group's
“findings” that explained the rationale for the
species' designation. Those summaries did not, however,
disclose the data that the Department had collected
concerning incidents of IUU fishing and seafood fraud, or any
related enforcement activities. The final Notice of
Determination explained that a “[d]etailed presentation
of the data considered by the [Department] and its
deliberations is protected from disclosure because of data
confidentiality and enforcement implications.”
Id. at 004467; see also Id. at 004469
(explaining that the “details of the results have not
been included because much of the data reviewed are sensitive
and/or confidential, and could compromise the integrity of
individual businesses, systems or enforcement capability if
released”). Id. The Department did not further
elaborate on the agency's justification for
The Proposed Rule
February 2016, the Department published the Proposed Rule in
the Federal Register, pursuant to its authority under the
Magnuson-Stevens Fishery Conservation and Management Act
(“MSA”). Id. at 004477-88. The agency
explained that the Proposed Rule “implements MSA
section 307(1)(Q), which makes it unlawful to import, export,
transport, sell, receive, acquire, or purchase in interstate
or foreign commerce any fish taken, possessed, transported,
or sold in violation of any foreign law or regulation or any
treaty or binding conservation measure to which the United
States is a party.” Id. at 004478 (referencing
16 U.S.C. § 1857(1)(Q)). The Department thus identified
16 U.S.C. § 1857(1)(Q) as the source of its authority to
regulate IUU fishing and seafood fraud.
Proposed Rule set forth the data-collection requirements of
the traceability program and the species that initially would
be subject to those requirements. As a condition of importing
both wild-caught and farm-raised seafood into the United
States, the Proposed Rule required domestic importers of
seafood to obtain a permit from the Department, collect and
electronically report supply-chain data to the federal
government, and maintain certain types of records for five
years. Id. at 004477-79, 004484. The Proposed Rule
made clear that importing any priority species without a
valid permit or submitting inaccurate or incomplete
traceability data would constitute a violation of the MSA.
Id. at 004479, 004484-86, 004489. It also subjected
importers to periodic, at-will audits. Id. at
004484, 004489. The Proposed Rule also identified the
priority species to which the traceability requirements would
apply. See id. at 004480.
conjunction with publishing the Proposed Rule, the Department
prepared both a draft Regulatory Impact Review, in compliance
with Executive Order 12866, and an initial Regulatory
Flexibility Analysis, as required under the Regulatory
Flexibility Act, 5 U.S.C. § 604. Id. at
004486-87, 004498-520. The purpose of those analyses was to
determine the economic impact of the Proposed Rule on U.S.
consumers and businesses, including small entities. The
Department estimated that the “industry-wide increase
in annual costs to importers” would be $60, 000 in
permit fees, plus “incremental costs” of systems
development. Id. at 004487. That conclusion was
premised on the key assumption that, “to some extent,
” seafood suppliers already were collecting the data
required by the Proposed Rule in order to comply with
existing traceability programs, such as the European
Union's Catch Documentation Program, whose
data-collection requirements are similar to those of the
Proposed Rule, or voluntary third-party verification schemes.
Id. For instance, the agency reasoned that, because
most foreign seafood suppliers that export to the United
States had already incurred costs associated with the E.U.
traceability program's data-collection requirements, the
Proposed Rule's similar requirements would impose only
“incremental” costs on those suppliers. Those
incremental costs, the agency posited, might be passed onto
U.S.-based importers, but would not materially increase their
operational costs. Id. at 004487, 004502, 004504-05.
The Department ultimately concluded that U.S. entities
“would not be significantly affected by this
action” and that there would be no “significant
adverse or long-term economic impacts” on U.S. small
businesses. Id. at 004486-87.
as required by the Regulatory Flexibility Act, the Department
evaluated “several alternatives” to the
traceability program, including a “no-action
alternative” and “various combinations of data
reporting and recordkeeping.” Id. at 004487.
The agency concluded, however, that the Proposed Rule better
carried out IUU Task Force's seafood traceability
recommendations and thus rejected the considered
The Final Rule
public comment period on the Proposed Rule, the Department
published the Final Rule on December 9, 2016. Id. at
006907-28. The Final Rule became effective as of January 9,
2017, but does not require importers to begin to collect and
report traceability data for priority species until January
1, 2018. Id. at 006907. The agency explained that it
set the Rule's compliance date one year after its
effective date in order to afford importers sufficient time
to work with their suppliers to facilitate the requisite data
collection and transfer. Id. at 006914-15.
response to public comments, the Final Rule altered the
Proposed Rule in several key respects. The Final Rule: (1)
exempts importers from providing vessel information for
small-scale fishing vessels, in an effort to ease the
regulatory burden associated with tracking such information;
(2) reduces from five years to two years the amount of time
importers will be required to maintain supply-chain records;
(3) eliminates several categories of required records to
reduce redundancy; and (4) stays indefinitely the Rule's
application to shrimp and abalone. Id. at 006920-
in response to public comments, the Department dramatically
revised upward the cost estimates of its Regulatory Impact
Review and Regulatory Flexibility Analysis. The agency's
new estimate of industry-wide compliance costs increased from
$60, 000 to $7, 850, 000 in the first year and $6, 075, 000
annually thereafter, 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 006926. The agency attributed this
significant cost increase to the fact that it had modified
the “assumptions” and “methodology”
used to calculate its cost estimates to reflect suggestions
provided by Plaintiff National Fisheries Institute during the
notice-and-comment period. Id. at 006925-26.
Notwithstanding the significant increase in anticipated
compliance costs, the agency did not deem those costs to be
excessive. It reasoned that the industry-wide cost of
compliance, even as revised, remained only a fraction (less
than one half of one percent) of the $9 billion value of U.S.
seafood imports. Id. Consistent with that rationale,
the agency also found that the Rule's recordkeeping
requirements would not “pose significant adverse or
long-term economic impacts on small entities.”
in this action are U.S.-based harvesters, importers,
processors, and purchasers of seafood, as well as a trade
group representing such entities, whose businesses will be
affected by the Rule. They filed suit on January 6, 2017,
challenging the legality of the Rule under the Administrative
Procedure Act and the Regulatory Flexibility Act and seeking
an order vacating and permanently enjoining the Rule's
implementation. See Compl., ECF No. 1 [hereinafter
Compl.]. In light of the Rule's impending compliance
date, and as required under the MSA, the court granted
Plaintiffs' Motion for Expedited Treatment of the case.
See Pls.' Mot. for Expedited Treatment, ECF No.
6; January 23, 2017, Minute Order.
the start of summary judgment briefing, the court received
two motions to intervene, filed by entities seeking to defend
the Rule. See Oceana, Inc., Nat. Res. Def. Council,
Inc., Ctr. for Biological Diversity's Mot. to Intervene,
ECF No. 24; Alaska Bering Sea Crabbers' Mot. to
Intervene, ECF No. 43. The court granted one of those
motions, permitting Intervenor-Defendant Alaska Bering Sea
Crabbers to participate as a defendant in the litigation.
See Mem. Op. & Order, ECF No. 50; see
also Mem. Op. & Order, ECF No. 44.
matter before the court is now fully briefed by the original
parties and the Intervenor-Defendant. Plaintiffs filed their
Motion for Summary Judgment on April 25, 2017. Pls.' Mot.
for Summ. J., ECF No. 48. Federal Defendants and the
Intervenor-Defendant followed with their separate Oppositions
and Cross-Motions for Summary Judgment on May 9, 2017.
See Fed. Defs.' Cross-Mot. for Summ. J., ECF No.
56; Intervenor-Def. Alaska Bering Sea Crabbers'
Cross-Mot. for Summ. J., ECF No. 57 [hereinafter ABSC Mot.].
The court heard argument on the parties' motions on June
7, 2017, and now turns to resolving their competing
cross-motions for summary judgment are reviewed under the
standard set forth in Rule 56 of the Federal Rules of Civil
Procedure. Under Rule 56, a court may grant summary judgment
when a party demonstrates that there is no genuine issue of
material fact and shows it is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56. However, in cases such as
this one that involve review of agency action under the
Administrative Procedure Act, the Rule 56 standard does not
apply. See Stuttering Found. of Am. v. Springer, 498
F.Supp.2d 203, 207 (D.D.C. 2007). Instead, “the
district judge sits as an appellate tribunal” and
“[t]he entire case on review is a question of
law.” Am. Biosci., Inc. v. Thompson, 269 F.3d
1077, 1083 (D.C. Cir. 2001) (internal quotation marks
omitted). 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.” See
Se. Conference v. Vilsack, 684 F.Supp.2d 135, 142
seek to invalidate the Seafood Import Monitoring Program (the
“Rule”) on several grounds. First, Plaintiffs
contend that the Rule was promulgated in violation of the
Secretary of Commerce's (the “Secretary”)
rulemaking authority under the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”) and the
Appointments Clause of the United States Constitution.
See Pls.' Mot. for Summ. J., ECF No. 48, Mem. in
Supp., ECF No. 48-1 [hereinafter Pls.' Mot.], at 17-22.
Second, Plaintiffs argue that Congress did not authorize the
Department of Commerce (the “Department”) to
regulate seafood fraud and, thus, the Department lacks the
necessary statutory authority to issue the Rule. Id.
at 13-17. Third, Plaintiffs assert that, even if the
Department had the requisite rulemaking authority, the Rule
is arbitrary and capricious, in violation of the
Administrative Procedure Act (“APA”), because it
was (1) formulated through the use of undisclosed data, and
(2) based on insufficient, or contradictory, evidence.
Id. at 22- 33. Finally, Plaintiffs challenge the
adequacy of the Department's Regulatory Flexibility
Analysis, which they charge fails to address both the
increased costs associated with the Rule and the availability
of less burdensome regulatory alternatives to combat IUU
fishing. Id. at 34-37. The court addresses each
claim in turn.
Was the Rule Properly Promulgated?
court begins with Plaintiffs' contention that the
Department promulgated, or issued, the Rule in violation of
both the MSA and the Appointments Clause of the Constitution.
Id. at 17- 22. That argument has three sub-parts.
First, Plaintiffs contend that, although Congress properly
delegated rulemaking authority to the Secretary of Commerce
under the MSA, Congress did not grant the Secretary the power
to sub-delegate that rulemaking authority to another agency
official and, even if it did, the sub-delegation here was
improper under the agency's organizational policy.
Second, Plaintiffs assert that any delegation of rulemaking
authority was improper because the administrative record
contains no notice of that delegation. Third, Plaintiffs
maintain that the Rule was promulgated by a Department
employee who did not have power under the Appointments Clause
of the Constitution to engage in rulemaking. Under any of
these theories, Plaintiffs contend, the Rule must be vacated.
Relevant Background Facts
addressing the merits of Plaintiffs' arguments, the court
sets forth the relevant background facts, some of which are
in dispute. At the time the Rule was developed and
promulgated, the Secretary of Commerce was Penny Pritzker.
See Fed. Defs.' Answer, ECF No. 21 [hereinafter
Fed. Defs.' Answer], ¶ 15. Per a Department of
Commerce “Organizational Order, ” dated December
12, 2012, Secretary Pritzker delegated all rulemaking
authority vested in her under the MSA to the Under Secretary
of Commerce for Oceans and Atmosphere/Administrator of the
National Oceanic and Atmospheric Administration (the
“Administrator of NOAA”), who at the time was
Kathryn Sullivan. Id. ¶ 16. During the period
Sullivan served as the Administrator of NOAA-NOAA is a
sub-agency of the Department- Eileen Sobeck served as the
Assistant Administrator for Fisheries, which is the top
official at the National Marine Fisheries Service
(“NMFS”), a “line office” within
NOAA. Samuel D. Rauch III served as the Deputy Assistant
Administrator for Regulatory Programs of NMFS. Id.
and Federal Defendants agree that neither Pritzker nor
Sullivan promulgated the Final Rule. They disagree, however,
as to who did. Federal Defendants assert that Sobeck
“exercised lawfully delegated power to issue the Final
Rule as the Secretary's designee.” Fed. Defs.'
Cross-Mot. for Summ. J., ECF No. 56, Mem. in Supp., ECF No.
56-1 [hereinafter Fed. Defs.' Mot.], at 43. In support,
Federal Defendants point to an internal policy document, the
“NOAA Organizational Handbook Transmittal No. 61,
” dated February 24, 2015, wherein the Administrator of
NOAA (Sullivan) further sub-delegated the rulemaking
authority under the MSA that she received from Pritzker to
the Assistant Administrator for Fisheries
(Sobeck). Plaintiffs, on the other hand, contend
that Sobeck did not issue the Final Rule. They insist that
her subordinate, Rauch, promulgated the Rule based largely on
the undisputed fact that Rauch, not Sobeck, signed the Final
Rule, as published in the Federal Register on December 9,
2016. Pls.' Mot. at 8; Pls.' Combined Br. in Resp. to
Cross-Mots. for Summ. J., ECF No. 62 [hereinafter Pls.'
Reply], at 5-6; Fed. Defs.' Mot. at 41. Federal
Defendants respond that Rauch's signature does not mean
he in fact “issued” the Rule; rather, they assert
that the same Handbook Transmittal that granted Sobeck power
to issue the Rule delegated authority to Rauch to complete
the ministerial task of signing the Final Rule. In other
words, Federal Defendants argue that Rauch's signing of
the Final Rule does not “constitute an exercise of
rulemaking” and, thus, does not undermine their
position that Sobeck issued the Rule. Fed. Defs.' Reply in
Supp. of Cross-Mot. for Summ. J., ECF No. 65 [hereinafter
Fed. Defs.' Reply], at 21, 24.
dispute over who promulgated, or issued, the Rule lies at the
heart of Plaintiffs' contention that the Department's
rulemaking violated both the MSA and the Appointments Clause.
With this background in mind, the court now turns to those
Does the MSA Authorize the Sub-Delegation of Rulemaking
first challenge the Secretary's authority to sub-delegate
her rulemaking authority to subordinate agency officials.
Under the MSA, Congress vested in “[t]he
Secretary” the “general responsibility to carry
out any fishery management plan or amendment approved or
prepared by him, in accordance with the provisions of this
chapter.” 16 U.S.C. § 1855(d). It also authorized
“[t]he Secretary” to “promulgate such
regulations, in accordance with section 553 of Title 5, as
may be necessary to discharge such responsibility or to carry
out any other provision of this chapter.”
Id. Notably, the MSA defines the term
“Secretary” for purposes of the Act to mean
“the Secretary of Commerce or his
designee.” Id. § 1802(39) (emphasis
added). Plaintiffs read these two statutory provisions in
combination to permit the Secretary of Commerce to delegate
her rulemaking authority under the MSA to a “designee,
” but to prohibit that designee from, in turn,
delegating rulemaking authority further down the chain of
command. Pls.' Mot. at 18-19. The statute does not,
Plaintiffs maintain, “authorize successive delegations
of the sort that would have had to have occurred here.”
Id. at 18.
argument is easily cast aside. The D.C. Circuit has held that
where, as here, “a statute delegates authority to a
federal officer or agency, sub-delegation to a subordinate
federal officer or agency is presumptively permissible absent
affirmative evidence of a contrary congressional
intent.” U.S. Telecom Ass'n v. FCC, 359
F.3d 554, 565 (D.C. Cir. 2004). Here, the MSA plainly
delegates rulemaking authority to the Secretary of Commerce
“or his designee, ” 16 U.S.C. §
1855(d) (emphasis added). Consequently, at the time in
question, the statute granted rulemaking authority to
either Pritzker or Pritzker's
designee-Sullivan, the Assistant Administrator of NOAA-which
means that, under U.S. Telecom Association, absent
evidence of contrary congressional intent, either
Pritzker or Sullivan presumptively could
sub-delegate her rulemaking power to a subordinate.
Plaintiffs point to no evidence of “contrary
congressional intent” to rebut that presumption.
Therefore, contrary to Plaintiffs' contention,
Sullivan's decision to delegate her rulemaking power to
Sobeck, a subordinate official within the agency, did not run
afoul of the MSA.
also advance a fallback position. They maintain that, even if
the MSA itself permits the Secretary's designee-the
Assistant Administrator of NOAA-to sub-delegate rulemaking
authority to a subordinate official, her sub-delegation to
Sobeck was invalid because it violated NOAA's internal
policies. Plaintiffs base that contention on their
interpretation of Section 26 of the NOAA Organizational
Handbook Transmittal No. 61 (the “NOAA Organizational
Handbook” or “the Handbook”), which
provides, in relevant part:
The Under Secretary/Administrator redelegates to the
Assistant Administrator for Fisheries, with noted conditions
and reservations, the authority to ...