Oceana, Inc. v. Wilbur Ross ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2018 Decided April 12, 2019
No. 17-5247
OCEANA, INC.,
APPELLANT
v.
WILBUR ROSS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
THE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01220)
Lide E. Paterno argued the cause for appellant. With him
on the briefs were Pratik A. Shah, James E. Tysse, Stanley E.
Woodward Jr., and Alexandra Harrison.
Avi Kupfer, Attorney, U.S. Department of Justice, argued
the cause for appellees. With him on the brief were Jeffrey H.
Wood, Acting Assistant Attorney General, Eric Grant, Deputy
Assistant Attorney General, and Andrew C. Mergen, Attorney.
Before: TATEL, WILKINS, and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
2
WILKINS, Circuit Judge: When fishermen catch fish but
do not sell or keep them for personal use, they harvest what is
referred to as “bycatch.” Discarded fish might constitute fish
of an “undesirable size, sex, or quality,” or fish that “fishermen
are required by regulation to discard whenever caught.” 16
U.S.C. § 1802(2), (9), (38). Because a significant portion of
bycatch do not survive (although some may be returned to the
water), the phenomenon of bycatch can have detrimental
effects on the marine ecosystem. 50 C.F.R. § 600.350(b).
Accordingly, the Magnuson–Stevens Fishery Conservation
and Management Act (“Magnuson–Stevens Act”), as amended
by the Sustainable Fisheries Act (“Fisheries Act”), 16 U.S.C. §
1801 et seq., directs the National Marine Fisheries Service
(“the Fisheries Service”) and regional councils to establish
methodologies for collecting and reporting bycatch data.
Plaintiff Oceana, Inc. challenges the Standardized Bycatch
Reporting Methodology (“Reporting Methodology”) adopted
in 2015 by the Fisheries Service to track bycatch in fisheries in
the Northeast region of the United States. Oceana claims that
the reporting methodology violates the Magnuson–Stevens Act
and the Administrative Procedure Act (“APA”). Defendant
Fisheries Service 1 and Oceana filed cross-motions for
summary judgment. The District Court entered summary
judgment for the Fisheries Service, finding that the Reporting
Methodology satisfies applicable law. Oceana now appeals.
We affirm the District Court because the Fisheries Service has
met its obligation under the Fisheries Act to establish a
standardized methodology. We further conclude that the
District Court did not abuse its discretion in not requiring that
1
Defendants and Appellees in this suit include the Fisheries Service,
a branch of the National Oceanic and Atmospheric Administration
(“NOAA”) in the Department of Commerce, the Secretary of
Commerce, and NOAA itself, but we refer only to the Fisheries
Service for simplicity.
3
the agency produce or include on a privilege log documents
covered by the deliberative-process privilege.
I.
A.
In 1976, Congress adopted the Magnuson–Stevens Act to,
among other things, “conserve and manage the fishery
resources found off the coasts of the United States.” 16 U.S.C.
§ 1801(b)(1) (2000). Under this act, the Fisheries Service and
eight regional councils are tasked with developing Fishery
Management Plans, which the Secretary of Commerce may
approve after public notice and comment. 16 U.S.C. §§
1853(c), 1854(a). The Secretary then promulgates final
regulations to implement the Fishery Management Plan. 16
U.S.C. § 1854(b).
The Magnuson–Stevens Act, as amended by the Fisheries
Act, provides that, “to the extent practicable,” Fishery
Management Plans must minimize bycatch. 16 U.S.C. §
1851(a)(9). The Magnuson–Stevens Act defines bycatch as
“fish which are harvested in a fishery, but which are not sold
or kept for personal use, and includes economic discards and
regulatory discards.” 16 U.S.C. § 1802(2). Minimizing
bycatch is important because “[b]ycatch can . . . impede efforts
to protect marine ecosystems and achieve sustainable fisheries
and the full benefits they can provide to the Nation.” 50 C.F.R.
§ 600.350(b). Bycatch may not only “preclude other more
productive uses of fishery resources,” but also “increase
substantially the uncertainty concerning total fishing-related
mortality.” Id.
Under the Fisheries Act, Fishery Management Plans must
“establish a standardized reporting methodology to assess the
4
amount and type of bycatch.” 16 U.S.C. § 1853(a)(11).
Pursuant to § 1851(a)(2), “[c]onservation and management
measures shall be based upon the best scientific information
available.”
B.
In 2008, the Fisheries Service promulgated an omnibus
amendment to the Fishery Management Plans covering the
Northeast region. See 73 Fed. Reg. 4736 (Jan. 28, 2008) (the
“2008 Amendment”). The 2008 Amendment outlined a
methodology that would allocate bycatch observers to more
than fifty “fishing modes.” With enough observers, the
Fisheries Service reasoned, the bycatch rates would be
statistically reliable. Oceana, Inc. v. Locke, 670 F.3d 1238,
1239 (D.C. Cir. 2011). The 2008 Amendment also authorized
the Fisheries Service to invoke a “prioritization process” to
depart from its allocation rule whenever “external operational
constraints would prevent [the Fisheries Service] from fully
implementing the required [] observer coverage levels.” Id. at
1240.
Oceana filed a lawsuit alleging that the 2008 Amendment
did not establish a standardized methodology “because it
create[d] a ‘loophole’ that allow[ed] the [Fisheries Service]
Regional Administrator to avoid applying the minimum
acceptable level of observer coverage under the [Reporting
Methodology] in any year ‘in which external operational
constraints would prevent [Fisheries Service] from fully
implementing the required at-sea observer coverage levels.’”
Oceana, Inc. v. Locke, 725 F. Supp. 2d 46, 54 (D.D.C. 2010).
Such an external constraint could be due to “funding
shortfalls,” id. at 55; but notably, the Fisheries Service
determined both the amount of funding required for bycatch
observation and the funding it would allocate for that purpose,
5
Locke, 670 F.3d at 1242. In Oceana, Inc. v. Locke, the District
Court upheld the 2008 Amendment, see 725 F. Supp. 2d at 72,
but we reversed, Locke, 670 F.3d at 1243. We held that
“[b]ecause the [2008] Amendment grants the Fisheries Service
substantial discretion both to invoke and to make allocations
according to a non-standardized procedure . . . the Service did
not ‘establish’ a standardized methodology under the Fisheries
Act.” Locke, 670 F.3d at 1243. This Court directed the District
Court to vacate the 2008 Amendment and remand it to the
agency. Id.
C.
In response to this Court’s remand of the 2008
Amendment, the Fisheries Service promulgated the Reporting
Methodology at issue in this appeal. 80 Fed. Reg. 37182 (June
30, 2015). To obtain data on the number of discarded fish
(bycatch) in a fishery, the Fisheries Service uses the Northeast
Fisheries Observer Program, which places an at-sea observer
in vessels that are permitted to participate in federal fisheries.
80 Fed. Reg. 37183. According to the Reporting Methodology,
these observers “are generally biologists trained to collect
information onboard fishing vessels.” J.A. 596. They are
instructed to record all catch and bycatch caught in the net and
identify them to “the lowest taxonomic level possible.” J.A.
596-97. Because it would be too expensive and infeasible to
place a human observer on all the vessels in the Northeast
fisheries at all times, the Fisheries Service places observers on
only a sample of fishing trip vessels. This sampling process
employs a statistical design that allocates observers to vessels
so as to reduce bias and obtain a sufficiently precise bycatch
estimate. In turn, the Fisheries Service can extrapolate the
sample data to the entire fleet.
6
Oceana filed a complaint in District Court for a declaration
that the Reporting Methodology violates federal law, including
the Fisheries Act and the APA. The complaint alleged that the
Reporting Methodology did not establish a standardized
reporting methodology for bycatch, in that the 2015
Amendment permitted adaptation to available funding. Oceana
further argued that the formula for calculating the target
number of observer trips should have been based on species
that are not only federally but also non-federally managed.
In the District Court, the Fisheries Service filed an
administrative record. The filing included an index of withheld
privileged documents, classifying the documents as withheld
because of Attorney-Client Privilege, Attorney Work Product,
Deliberative Process Privilege, or Non-Responsive. The
Fisheries Service later supplemented its administrative record
with eight additional documents and supplemented its filing
with a revised index of privileged documents. Oceana moved
to compel the Fisheries Service to “conduct a complete review
of its agency files, including email correspondence” and “to
includ[e] all such responsive documents from that search.”
Oceana, Inc. v. Pritzker, 217 F. Supp. 3d 310, 315 (D.D.C.
2016) (citations omitted). The District Court denied Oceana’s
motion and subsequently granted the Fisheries Service’s
motion for summary judgment. Oceana appeals both rulings.
II.
We review “not the judgment of the district court but the
agency’s action directly, giving ‘no particular deference’ to the
district court’s view of the law.” Locke, 670 F.3d at 1240
(quoting Nat. Res. Defense Council v. Daley, 209 F.3d 747, 752
(D.C. Cir. 2000)). However, we will defer to the Fisheries
Service’s interpretation of what the Fisheries Act requires,
provided it is “rational and supported by the record.” C & W
7
Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991). The
Fisheries Service’s methodology must be “based upon the best
scientific information available,” 16 U.S.C. § 1851(a)(2), and
cannot be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, 5 U.S.C. § 706(2)(A).
A.
Oceana contends the Fisheries Service has not “established
a standardized reporting methodology to assess the amount and
type of bycatch occurring in fisher[ies]” as required by the
Fisheries Act. 16 U.S.C. § 1853(a)(11). Specifically, Oceana
argues that the Reporting Methodology permits the Fisheries
Service to depart from its observer allocation methodology
whenever it decides to dedicate insufficient funds. Appellant’s
Br. 15. We disagree.
In Locke, this Court found problematic that the 2008
Amendment afforded the Fisheries Service “complete
discretion to determine when an ‘external operational
constraint prevents it from fully implementing the required
coverage levels.’” Locke, 670 F.3d at 1241 (quoting 73 Fed.
Reg. at 4738). Following the 2015 revisions, the Fisheries
Service no longer enjoys such discretion. Rather than establish
required at-sea coverage levels, the Reporting Methodology
calculates coverage levels according to a prioritization process.
As a baseline, the Reporting Methodology first calculates the
number of observation days in each fishing mode needed to
achieve a bycatch estimate within a coefficient of variation
(“CV”) 2 of 30 percent for each of fifteen, federally-managed
2
The Reporting Methodology uses a precision measure called the
CV, “calculated as the ratio of the square root of the variance of the
bycatch estimate . . . to the bycatch estimate itself.” J.A. 624 n. 27.
The lower the CV is, the less variance in the sample, and thus the
more precise the estimate. The Reporting Methodology provides
8
species groups. J.A. 625. The Reporting Methodology then
adjusts its observation-day estimate. The methodology uses a
so-called “importance filter,” when it compels a “high [number
of] observer sea day coverage levels, in spite of the fact that the
actual magnitude in frequency of discards may be low and of
small consequence to the discarded species.” J.A. 694.
Another adjustment, which Oceana challenges, modifies the
initial observer coverage level based on the availability of
funding. Importantly, the funding adjustment is a “non-
discretionary formulaic process[].” 80 Fed. Reg. at 37,184.
That the Reporting Methodology accounts for available
funding does not prevent it from being “established” for the
purposes of the Fisheries Act. See 16 U.S.C. § 1853(a)(11).
Congress did not instruct that a “standardized reporting
methodology” must be constant across all possible funding
scenarios. Rather, the Fisheries Service adopts a rational
interpretation of the Act by establishing a dynamic but non-
discretionary methodology. We are not positioned to assuage
Oceana’s concern that the Fisheries Service could
insufficiently allocate funds to execute the Reporting
Methodology because “the allocation of funds from a lump-
sum appropriation is [an] administrative decision traditionally
regarded as committed to agency discretion.” Lincoln v. Vigil,
508 U.S. 182, 192 (1993); see also Int’l Union v. Donovan, 746
F.2d 855, 862-63 (D.C. Cir. 1984). Congress has not instructed
the Fisheries Service to fund its program for implementing 16
U.S.C. § 1853(a)(11) at a specific or minimum level. Instead,
the Fisheries Service must establish a standardized reporting
methodology that fulfills its obligations to track bycatch in
fisheries in the Northeast United States regardless of its
guidance on calculating the number of fishing days that should be
observed in order to ensure that the CV of the bycatch estimate will
not exceed a certain threshold.
9
funding allocation decisions. It has done so; regardless of how
much funding the Fisheries Service apportions to the Reporting
Methodology program, it will apply a standardized reporting
methodology as prescribed by the statute.
Because the Fisheries Service does not have discretion to
depart from the Reporting Methodology based on funding, it is
under no obligation to “adequately define the circumstances
that trigger [any] case-by-case analysis.” Locke, 670 F.3d at
1241 (citing Cement Kiln Recycling Coalition v. EPA, 493 F.3d
207, 220-23 (D.C. Cir. 2007)).
B.
In its initial calculations, the Reporting Methodology
allocates at-sea observers based on the number of days needed
to achieve a 30 percent CV for federally managed species,
which accounted for 82.8 percent, by weight, of observed
discards in 2012. This initial calculation is not based on non-
federally managed species. However, the Reporting
Methodology collects data on non-federally managed species,
because “all species (managed and non-managed) encountered
by observed fishing vessels are reported either as landings or
discards.” J.A. 724 (emphasis added).
Oceana argues that the Fisheries Service’s exclusion of
non-federally managed species from the prescribed process for
determining observer coverage level prevent the Reporting
Methodology from being “standardized,” in violation of 16
U.S.C. § 1853(a)(11). Oceana argues that Congress intended
for the term “bycatch” to include non-federally managed
species; bycatch is defined as “fish which are harvested in a
fishery, but which are not sold or kept for personal use,” id. §
1802(2), and fish is defined as “finfish, mollusks, crustaceans,
and all other forms of marine animal and plant life other than
10
marine mammals and birds,” id. § 1802(12). The Fisheries
Service does not dispute that the definition of ‘bycatch’
encompasses non-federally managed species but notes that §
1853(a)(11) contains no requirements governing the contents
of the standardized reporting methodology. We agree.
Congress directs the Fisheries Service to “establish a
standardized reporting methodology to assess the amount and
type of bycatch occurring in the fishery.” Id. § 1853(a)(11).
We need not, as Oceana would like, interpret the statute’s use
of the word “standardized” to require that the Fisheries Service
consider all bycatch species, rather than a subset thereof, in
determining observer assignments. “[S]tandardized” modifies
“reporting methodology” not “amount and type of bycatch.”
See Appellee’s Br. 27-28 (citing ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 152-53 (2012) (describing the syntactic canon of
construction that a prepositive modifier applies to the nearest
referent)). The Reporting Methodology’s mathematical
formula for assigning observers and uniform recording
protocols fulfills the statute’s standardization requirement. In
any event, the Fisheries Service’s methodology is consistent
with the understanding that “bycatch” includes non-federally
managed species. That the Reporting Methodology requires at-
sea observers to collect data on all bycatch observed means the
methodology assesses bycatch of all species. Accordingly, the
agency’s decision to consider only federally managed species
when allocating at-sea observers reflects a permissible reading
of the governing statutory text.
C.
Oceana believes the Fisheries Service, in developing its
Reporting Methodology, had an obligation to reconsider
alternatives it “considered and rejected” in developing the 2008
11
Amendment. Because the Fisheries Service limited the scope
of its development to the Court’s remand instructions, Oceana
argues that “the Service based its decision to forgo the use of
electronic monitoring technology on an outdated and
inaccurate understanding of the capabilities and costs of the
technology.” Appellant’s Br. 16. To do so, Oceana argues,
violates the APA and the Fisheries Act. Neither argument has
merit.
Oceana contends that it was arbitrary and capricious for
the Fisheries Service to exclude the use of electronic
monitoring (video cameras) from its Reporting Methodology.
Under the proper standard of review, this Court is “highly
deferential” to the agency’s decision and presumes that the
agency action is valid. See Ethyl Corp. v. EPA, 541 F.2d 1, 34
(D.C. Cir. 1976) (en banc) (citing Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 415 (1971)). Nonetheless, we are
not a “rubber stamp,” and we must ensure that the agency
considered all of the relevant factors. Id.
In implementing a Reporting Methodology consistent with
the statutory demands of the FSA, the Fisheries Service
decided to make use of at-sea observers rather than electronic
monitoring. In response to comments received during the
notice-and-comment period, the Fisheries Service explained
why it made this decision. The Fisheries Service described
issues with the affordability of electronic monitoring. 80 Fed.
Reg. 37,182, 37,191. The agency also noted that, in some
scenarios, “electronic monitoring is not yet considered robust
enough to replace observers for bycatch monitoring.” 3 Id. The
3
The Fisheries Service explains:
a technology [electronic monitoring] that is suitable for
identification of bycatch of a distinctive species by a specific
gear type, such as bluefin tuna in the pelagic longline fishery,
12
Reporting Methodology elaborated on these shortcomings.
Unlike at-sea observers, “electronic monitoring is currently
capable of acquiring only simple presence and absence data
rather than [] highly detailed data.” J.A. 613-14.
The Fisheries Service’s explanation for why it chose not
to include electronic monitoring in its Reporting Methodology
is sufficient to pass “arbitrary and capricious” review. Oceana
insists that these explanations are improperly grounded in pre-
2008 information. While the Fisheries Service could not ignore
important evidence that was developed between 2008 and
2015, it is not prohibited from relying on information it used in
2008 when it promulgated an earlier version of this rule.
Instead, Oceana must prove that the Fisheries Service “offered
an explanation for its decision that runs counter to the evidence
before the agency.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.
State Farm Mutual Auto. Insurance. Co., 463 U.S. 29, 43
(1983). Oceana has not proven such.
Oceana’s briefing points only to one 2009 study that the
Fisheries Service “never cited,” which allegedly shows “that
incorporating electronic monitoring technology under certain
conditions could be cheaper than exclusively using observers.”
Appellant’s Br. 45. It does not appear that Oceana cited this
study in its 2013 comments to the proposed rule. J.A. 874-87.
In fact, the Fisheries Service contends that “none of Oceana’s
may not yet be as suitable or affordable for monitoring more
complex bycatch situations covered by the [Reporting
Methodology], such as differentiating flounder species in a
multispecies trawl fishery, or providing length and weight data
(all of which would be essential for electronic monitoring to
effectively replace observers under the [Reporting
Methodology]).
80 Fed. Reg. 37,182, 37,190.
13
comments on the 2015 Amendment or its implementing
regulations mentioned the 2009 study.” Appellee’s Br. 35. We
have long recognized that “a party must initially present its
comments to the agency during the rulemaking in order for the
court to consider the issue.” Appalachian Power Co. v. E.P.A.,
251 F.3d 1026, 1036 (D.C. Cir. 2001). Accordingly, the
Fisheries Service had no obligation to address the study.
Additionally, the Fisheries Service did not fail to utilize
the “best scientific information available” when it excluded the
use of video cameras from its Reporting Methodology. The
Fisheries Service explains that the 2009 findings neither are
relevant nor provide the agency with superior scientific
information. Appellee’s Br. 35-36. The study does not
alleviate the agency’s fundamental critique of electronic
monitoring – the methodology is not “capable of executing the
vastly ‘more complex’ task of ‘assess[ing] the amount and
type’ of bycatch by identifying, differentiating and collecting
biological information on hundreds of discarded species.” Id.
at 36. In this case, the Court has a “particularly strong”
rationale for deferring to the agency: “In an area characterized
by scientific and technological uncertainty, [we] must proceed
with particular caution, avoiding all temptation to direct the
agency in a choice between rational alternatives.” American
Wildlands v. Kempthorne, 530 F.3d 991, 1000 (D.C. Cir.
2008).
III.
Oceana contends that the District Court abused its
discretion in denying Oceana’s motion to compel. A district
court abuses its discretion when it “makes an error of law.” In
re Sealed Case (Med. Records), 381 F.3d 1205, 1211 (D.C. Cir.
2004). Accordingly, the “abuse-of-discretion standard
includes review to determine that the discretion was not guided
14
by erroneous legal conclusions.” Id. (quoting Koon v. United
States, 518 U.S. 81, 100 (1996)). Oceana argues that it was an
error of law for the District Court to hold that the agency’s
documents were protected by the deliberative-process privilege
and to allow the Fisheries Service to exclude the deliberative
documents from the privilege log. We find that there was no
such error of law.
Oceana’s argument relies on the proposition that this is not
a “routine APA case” involving the familiar arbitrary and
capricious standard of review. Appellant Br. 56 (quoting
District Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 56 (D.C.
Cir. 2015)). Rather, Oceana argues, we ought apply a more
stringent standard that considers whether the Fisheries Service
used the “best scientific information available.” Id. Given this
standard, Oceana believes they are entitled to any “internal
documents that bear on the agency’s consideration of scientific
information.” Id.
Both the Fisheries Act and our prior decision in this case
confirm that we must employ the routine APA standard of
review. The judicial review provision of the Fisheries Act
provides that Chapter 7 of Title 5 of the United States Code —
the APA — governs our review. See 16 U.S.C. § 1855(f). The
Fisheries Act specifically commands that we “only set aside
any such regulation or action on a ground specified in section
706(2)(A), (B), (C), or (D) of [Title 5].” Id. Unsurprisingly,
we applied the customary arbitrary and capricious standard
when reviewing the 2008 Amendment in Locke, 670 F.3d at
1240 (citing 5 U.S.C. § 706(2)(A) and 16 U.S.C.§ 1855(f)), just
as we did in an unrelated matter involving the Endangered
Species Act, a statute that similarly mandates use of the “best .
. . data available,” Friends of Blackwater v. Salazar, 691 F.3d
428, 434 (D.C. Cir. 2012) (quoting 16 U.S.C. § 1533(b)(1)(A),
and (2)). What that means is that rather than reviewing whether
15
the agency “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action,” State Farm, 463 U.S. at
43 (emphasis added), we review whether the agency examined
the best available data and articulated a satisfactory
explanation for its action. Yet, this is still arbitrary and
capricious review and we conduct that review based upon the
record before the agency. See Dist. Hosp. Partners, L.P. v.
Burwell, 786 F.3d 46, 57 (D.C. Cir. 2015) (“Whether an agency
has arbitrarily used deficient data depends on the specific facts
of a particular case, as ‘the parameters of the arbitrary and
capricious standard of review will vary with the context of the
case.’”) (quoting WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.
Cir. 1981)); see also id. at 54.
We also find that the District Court did not abuse its
discretion by declining to require that the Fisheries Service
include on a privilege log those documents that the agency
excluded from the administrative record because they were
deemed predecisional and deliberative. The District Court
correctly observed that “predecisional and deliberative
documents ‘are not part of the administrative record to begin
with,’ so they ‘do not need to be logged as withheld from the
administrative record.’” J.A. 18 (citing Oceana, Inc. v. Locke,
634 F. Supp. 2d 49, 52 (D.D.C. 2009), rev’d on other grounds,
670 F.3d 1238 (D.C. Cir. 2011)). As we have held, on arbitrary
and capricious review, absent a showing of bad faith or
improper behavior, “[a]gency deliberations not part of the
record are deemed immaterial.” In re Subpoena Duces Tecum,
156 F.3d 1279, 1279, 1280 (D.C. Cir. 1998). Because
predecisional documents are “immaterial,” they are not
“discoverable.” Fed. R. Civ. P. 26(b)(1) (“Parties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party’s claims or defense . . . .” (emphasis added)). A
privilege log is required only when “a party withholds
information otherwise discoverable by claiming that the
16
information is privileged,” Fed. R. Civ. P. 26(b)(5), and since
predecisional documents are irrelevant and therefore not
“otherwise discoverable,” they are not required to be placed on
a privilege log.
The fact that the agency could also assert the deliberative
process privilege over such predecisional documents does not
change the analysis. Rather than submitting a privilege log, on
APA review, the agency must submit “[p]roper certification”
that the record is complete, which serves as “formal
representation by the [agency]” that it duly evaluated all
predecisional documents before excluding them from the
record. Norris & Hirshberg v. Securities and Exchange
Commission, 163 F.2d 689, 694 (D.C. Cir. 1947). The federal
rules do not require parties to provide logs of all documents
that were not produced because they were deemed immaterial
or irrelevant. It would be quite odd to require a different
procedure in agency review cases, particularly since “the
designation of the Administrative Record, like any established
administrative procedure, is entitled to a presumption of
administrative regularity.” Bar MK Ranches v. Yuetter, 994
F.2d 735, 740 (10th Cir. 1993) (citing Wilson v. Hodel, 758
F.2d 1369, 1374 (10th Cir. 1985)). This is not an instance
where a redacted document was placed in the administrative
record and there was a credible showing that the redactions
may have obscured “factual information not otherwise in the
record,” National Courier Ass’n v. Board of Governors, 516
F.2d 1229, 1242 (D.C. Cir. 1975), or where the agency
improperly supplemented the record with “post hoc
rationalizations” supporting its actions, Walter O. Boswell
Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984),
or where a “substantial showing” was made that the record was
incomplete, Nat. Res. Def. Council, Inc. v. Train, 519 F.2d 287,
291 (D.C. Cir. 1975). These situations would justify further
action or inquiry by the District Court. Here, Oceana made no
17
substantial claim of such special circumstances, and its abuse
of discretion challenge accordingly fails.
***
For the foregoing reasons, we affirm the judgment of the
District Court.
So ordered.