Argued: September 14, 2017
conservation groups and industry associations petition for
review of a final rule promulgated by the United States
Environmental Protection Agency ("EPA") pursuant to
section 316(b) of the Clean Water Act, establishing
requirements for cooling water intake structures at existing
facilities. The Petitioners also seek review of a May 19,
2014 biological opinion jointly issued by the United States
Fish and Wildlife Service and the National Marine Fisheries
Service at the close of formal Endangered Species Act
consultation on the final rule. Because we conclude that both
the final rule and the biological opinion are based on
reasonable interpretations of the applicable statutes and
sufficiently supported by the factual record, and because the
EPA gave adequate notice of its rulemaking, we
DENY the petitions.
Russell S. Frye, FryeLaw PLLC, Washington, DC, for Petitioner
Cooling Water Intake Structure Coalition.
Fredric P. Andes, Jill M. Fortney, Barnes & Thornburg
LLP, Chicago, IL; Jeffrey S. Longsworth, Barnes &
Thornburg LLP, Washington, DC, for Intervenor-Petitioner
American Petroleum Institute.
A.N. Bulleit (Andrew J. Turner, Todd S. Mikolop, Kerry L.
McGrath, on the brief), Hunton & Williams LLP,
Washington, DC, for Intervenors-Petitioners Utility Water Act
Group, Entergy Corporation.
W. Super, Edan Rotenberg, Super Law Group, LLC, New York, NY,
for Intervenors-Petitioners Riverkeeper Inc., American
Littoral Society, Casco Baykeeper, Delaware Riverkeeper
Network, Hackensack Riverkeeper, Natural Resources Defense
Council, Inc., Raritan Baykeeper, Inc. d/b/a NY/NJ Baykeeper,
Save the Bay -Narragansett Bay, Scenic Hudson, Inc., Sierra
Club, Soundkeeper, Inc., Surfrider Foundation, Waterkeeper
Alliance, Inc., and for Intervenors Center for Biological
Diversity, Louisiana Environmental Action Network, California
Coastkeeper Alliance, Humboldt Baykeeper, Suncoast
Waterkeeper, Inc., Puget Soundkeeper Alliance.
E. Huber, Sierra Club, Boulder, CO, for Intervenor-Petitioner
Sierra Club, and for Intervenors Center for Biological
Diversity, California Coastkeeper Alliance, Humboldt
Baykeeper, Louisiana Environmental Action Network, Suncoast
Charles C. Caldart, National Environmental Law Center,
Seattle, WA, for Intervenors-Petitioners Environment America,
M. Rosen, United States Department of Justice, Environment
& Natural Resources Division, Environmental Defense
Section, Washington, DC; Bridget Kennedy McNeil, United
States Department of Justice, Environment & Natural
Resources Division, Wildlife & Marine Resources Section,
Denver, CO (Simi Bhat, United States Department of Justice,
Environment & Natural Resources Division, Environmental
Defense Section, Washington, DC, Clifford E. Stevens, Jr.,
United States Department of Justice, Environment &
Natural Resources Division, Wildlife & Marine Resources
Section, Denver, CO, on the brief; Richard T. Witt, Alexis
Wade, United States Environmental Protection Agency, Office
of General Counsel, of counsel), for Respondents.
K. Jacoby, Varadi, Hair & Checki, LLC, New Orleans, LA
(Ann Brewster Weeks, Legal Director, Clean Air Task Force,
Boston, MA, of counsel), for Amicus Curiae Clean Air Task
Before: JACOBS, CABRANES, and LOHIER, Circuit Judges.
LOHIER, CIRCUIT JUDGE
these consolidated cases, several environmental conservation
groups and industry associations petition for review of a
final rule promulgated four years ago, in August 2014, by the
United States Environmental Protection Agency
("EPA") pursuant to section 316(b) of the Clean
Water Act ("CWA"), 33 U.S.C. § 1326(b),
establishing requirements for cooling water intake structures
("CWISs") at existing regulated facilities,
see National Pollutant Discharge Elimination
System-Final Regulations to Establish Requirements for
Cooling Water Intake Structures at Existing Facilities and
Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48,
300 (Aug. 15, 2014) (codified at 40 C.F.R. pts. 122, 125)
("Final Rule" or "Rule"). The Petitioners
also seek review of a May 19, 2014 biological opinion jointly
issued by the United States Fish and Wildlife Service
("FWS") and the National Marine Fisheries Service
("NMFS," and, together with the FWS, the
"Services") at the close of formal Endangered
Species Act ("ESA") consultation on the Final Rule.
The Government continues to defend the Rule today. Because we
conclude, among other things, that both the Rule and the
biological opinion are based on reasonable interpretations of
the applicable statutes and sufficiently supported by the
factual record, and because the EPA gave adequate notice of
its rulemaking, we DENY the petitions for
start, we describe CWISs; their general impact on the
environment; and the statutes, regulations, and rules
relevant to these petitions. We then provide an overview of
the relevant regulatory and procedural history and a summary
of the arguments advanced in the various petitions before us.
Cooling Water Intake Structures
dissipate waste heat, power plants and manufacturing
facilities use CWISs to extract large volumes of water-nearly
75 trillion gallons annually- from nearby water sources. The
force of inflowing water can trap, or "impinge,"
larger aquatic organisms against the structures and draw, or
"entrain," smaller aquatic organisms into a
facility's cooling system. Impingement and entrainment
kill hundreds of billions of aquatic organisms from waters of
the United States each year.
harm to aquatic organisms caused by a CWIS most directly
relates to the amount of water the structure withdraws, which
in turn depends on the type of cooling system the facility
uses. "Once-through" cooling systems draw cold
water from a waterbody and return heated water to the
waterbody in a continuous flow. See Riverkeeper, Inc. v.
EPA, 358 F.3d 174, 182 n.5 (2d Cir. 2004)
"Closed-cycle" cooling systems generally
recirculate the same cooling water within a CWIS by using
towers or reservoirs to dissipate heat from the water.
Id.; see also 79 Fed. Reg. at 48, 333.
Closed-cycle cooling withdraws approximately 95 percent less
water than once-through cooling.
The Clean Water Act
express purpose of the CWA is "to restore and maintain
the chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). Sections
301 and 306 of the CWA broadly authorize the EPA to establish
pollution discharge standards. Id. §§
1311, 1316. In 1972 Congress amended the CWA to specifically
address the operation of CWISs. See Federal Water
Pollution Control Act Amendments of 1972, Pub. L. No. 92-500,
86 Stat. 816; see also Riverkeeper I, 358 F.3d at
184 (describing the 1972 amendments as marking a "sea of
change" in Congress's approach to water pollution).
In section 316(b), it directed the EPA to establish standards
governing the operation of CWISs:
Any standard established pursuant to [CWA section 301] or
[CWA section 306] and applicable to a point source shall
require that the location, design, construction, and capacity
of cooling water intake structures reflect the best
technology available for minimizing adverse environmental
33 U.S.C. § 1326(b). Section 316(b) lists no specific
factors that the EPA should consider in establishing the
applicable "best technology available"
("BTA") standard. We have held that
"interpretation of section 316(b) is informed by the two
provisions it cross-references," Riverkeeper, Inc.
v. EPA, 475 F.3d 83, 91 (2d Cir. 2007)
("Riverkeeper II"), rev'd on other
grounds, Entergy Corp. v. Riverkeeper,
Inc., 556 U.S. 208 (2009), but that the EPA need not
comply with "every statutory directive contained"
in those two provisions when acting pursuant to section
316(b), id. (quoting Riverkeeper I, 358
F.3d at 187). Moreover, the EPA may consider "the
benefits derived from reductions [in adverse environmental
impact] and the costs of achieving them" when
establishing the BTA. Entergy, 556 U.S. at 219.
standards promulgated under CWA sections 301, 306, and 316(b)
are implemented by permits issued through the National
Pollutant Discharge Elimination System ("NPDES").
See 33 U.S.C. § 1342; 40 C.F.R. §§
122.44(b)(3), 125.90(a). "An NPDES permit serves to
transform generally applicable . . . standards . . . into the
obligations . . . of the individual discharger . . . ."
EPA v. California ex rel. State Water Res. Control
Bd., 426 U.S. 200, 205 (1976). NPDES permits are issued
by the EPA or, if the EPA has approved a State's
permitting program, by the Director of the NPDES program for
the State. See 33 U.S.C. § 1342. Under
the authorized State programs, Directors must submit draft
permits to the EPA for review. Id. §
1342(d)(1)-(2). If a Director fails to amend the permit in
response to any EPA objections, the EPA may federalize the
permit (i.e., reclaim permitting authority for that
permit). Id. § 1342(d)(4). And if a State fails
to administer the NPDES program in accordance with standards
promulgated pursuant to the CWA, the EPA may withdraw
approval of the State program. Id. § 1342(c).
The Endangered Species Act
enacting the ESA, Congress wanted to ensure "that all
Federal departments and agencies . . . seek to conserve
endangered species and threatened species." 16 U.S.C.
§ 1531(c)(1). To "reverse the trend toward species
extinction," Tenn. Valley Auth. v. Hill, 437
U.S. 153, 184 (1978), the ESA provides for the listing of
species as threatened or endangered and the designation of
their critical habitats, 16 U.S.C. § 1533. Once a
species is listed, certain statutory protections apply. For
example, section 9 of the ESA prohibits the
"take" of endangered species and those threatened
species to which the Services have extended protection, 16
U.S.C. § 1538(a)(1)(B), except that take
"incidental" to an otherwise lawful activity may be
exempted pursuant to the procedures set forth in ESA sections
7 or 10, id. § 1539(a)(1)(B). Section 7 of the
ESA directs federal agencies, in consultation with one or
both of the Services, to "insure that any action
authorized, funded, or carried out by such agency . . . is
not likely to jeopardize the continued existence of any
endangered species or threatened species," or to
adversely modify critical habitats designated for such
species. Id. § 1536(a)(2). A federal
agency must consult with the Services on a proposed action
whenever there is "reason to believe that an endangered
species or a threatened species may be present in the area
affected by [the proposed action] and that implementation of
such action will likely affect such species."
Id. § 1536(a)(3); see 50 C.F.R. §
402.14(a) (requiring consultation where the acting agency
determines that its action "may affect" listed
species or critical habitat).
with the Services may be informal or formal. Informal
consultation is an optional process to determine whether
formal consultation is necessary. 50 C.F.R. § 402.13(a).
As part of informal consultation, the acting agency may
prepare a "biological evaluation" that analyzes the
potential effects of a proposed action on listed species and
their critical habitat. See Memorandum of Agreement
Between the Environmental Protection Agency, Fish and
Wildlife Service and National Marine Fisheries Service
Regarding Enhanced Coordination Under the Clean Water Act and
Endangered Species Act, 66 Fed. Reg. 11, 202, 11, 210 (Feb.
22, 2001) ("MOA"). If the acting agency determines,
with the written concurrence of the consulting Service, that
the action "is not likely to adversely affect"
listed species or critical habitat, the consultation process
ends. 50 C.F.R. § 402.13(a); see id.
§§ 402.12(k)(1), 402.14(b)(1). But if either the
acting agency or the consulting Service determines that the
proposed action is "likely to adversely affect"
listed species or critical habitat, the agency and the
Service must engage in formal consultation. Id.
§ 402.13(a); see id. § 402.14(a)-(b). At
the end of formal consultation, the Service must, using
"the best scientific and commercial data
available," 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§ 402.14(g)(8), prepare a biological opinion with both a
"detailed discussion of the effects of the action on
listed species or critical habitat," 50 C.F.R. §
402.14(h)(2), and a position "as to whether the action,
taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species or
result in the destruction or adverse modification of critical
habitat," id. § 402.14(g)(4). If the
Service concludes that the action is likely to jeopardize
listed species, the biological opinion must suggest
"reasonable and prudent alternatives" to the
agency's proposed action. 16 U.S.C. § 1536(b)(3)(A);
50 C.F.R. § 402.14(g)(5). If the Service concludes that
the action is not likely to jeopardize listed species but
that incidental take is reasonably likely to occur, the
Service is required to provide an incidental take statement
("ITS") that meets the requirements set forth in 16
U.S.C. § 1536(b)(4). A taking that complies with
measures specified in an ITS "shall not be considered to
be a prohibited taking of the species concerned." 16
U.S.C. § 1536(o)(2).
The Administrative Procedure Act
Administrative Procedure Act ("APA") requires a
federal agency conducting notice-and-comment rulemaking to
include in its notice of proposed rulemaking "either the
terms or substance of the proposed rule or a description of
the subjects and issues involved." 5 U.S.C. §
553(b)(3). A final rule "need not be an exact replica of
the rule proposed in the [n]otice," only a "logical
outgrowth." Riverkeeper II, 475 F.3d at 113
(quotation marks omitted). A central question under the APA
is "whether the agency's notice would fairly apprise
interested persons of the subjects and issues of the
rulemaking." Nat'l Black Media Coal. v.
FCC, 791 F.2d 1016, 1022 (2d Cir. 1986) (quotation marks
decisions in Riverkeeper I, 358 F.3d 174, and
Riverkeeper II, 475 F.3d 83, discuss at length the
history of the EPA's rulemaking pursuant to section
316(b) of the CWA. We assume familiarity with those decisions
and therefore provide only a brief overview of the various
stages of the rulemaking relevant to these petitions.
first promulgated a regulation implementing section 316(b) in
1976. See 41 Fed. Reg. 17, 387 (Apr. 26, 1976). The
Fourth Circuit remanded certain aspects of that regulation
for procedural reasons, see Appalachian Power Co. v.
Train, 566 F.2d 451, 457 (4th Cir. 1977), and the EPA
subsequently withdrew the remanded regulation, see
44 Fed. Reg. 32, 854, 32, 956 (June 7, 1979).
environmental conservation groups sued the EPA to compel the
issuance of regulations under section 316(b), which had
already been significantly delayed. An amended 1995 consent
decree required the EPA to promulgate new regulations in
three phases, each addressing a different category of
facilities. See Riverkeeper, Inc. v. Whitman, No. 93
Civ. 0314(AGS), 2001 WL 1505497, at *1 (S.D.N.Y. Nov. 27,
2001); Cronin v. Browner, 898 F.Supp. 1052, 1055
(S.D.N.Y. 1995). We describe each phase in turn.
EPA's Phase I rule, published in 2001,  established
uniform national BTA standards for new facilities based on
closed-cycle cooling and offered two alternative compliance
options. See 40 C.F.R. § 125.84; 79 Fed. Reg.
at 48, 315-16. In Riverkeeper I, we upheld the Phase
I rule with the exception of the compliance option based on
"restoration measures," holding that restoration
was inconsistent with Congress's expressed intent in
section 316(b) that the EPA directly regulate the
"design" of CWISs. 358 F.3d at 189-91.
EPA's Phase II rule, published in 2004, provided that
large, existing power plants could comply with BTA
performance standards by choosing from a suite of designated
technologies that would reduce impingement mortality by 80 to
95 percent and entrainment by 60 to 90 percent. See
69 Fed. Reg. 41, 576, 41, 590 (July 9, 2004). The Phase II
rule identified five compliance options, including a
"cost-benefit comparison" option that allowed
site-specific variances from the rule's standards if a
facility demonstrated that its compliance costs would be
"significantly greater than" the benefits.
Id. at 41, 591, 41, 597. In Riverkeeper II,
we held that section 316(b) does not authorize the EPA to
determine the BTA or provide for site-specific determinations
of the BTA based on a cost-benefit analysis. 475 F.3d at 101,
114, 130-31. Because we could not determine whether the EPA
had relied on a cost-benefit analysis in selecting the
rule's suite of technologies as the BTA, we remanded the
Phase II rule for the EPA to clarify the basis for its
decision and possibly to reassess the BTA. Id. at
101, 105. In Entergy Corp. v. Riverkeeper, Inc., the
Supreme Court granted certiorari only as to the
question whether section 316(b) "authorizes the EPA to
compare costs with benefits in determining 'the best
technology available for minimizing adverse environmental
impact' at [CWISs]." 556 U.S. at 217. The Supreme
Court answered that question in the affirmative,
"express[ing] no view on the remaining bases for the
Second Circuit's remand." Id. at 226.
the EPA's Phase III rule, published in 2006, established
standards for new offshore facilities, smaller existing power
plants, and existing manufacturing facilities. See
71 Fed. Reg. 35, 006 (June 16, 2006). After petitioners
challenged the Phase III rule in the Fifth Circuit, the EPA
requested and received a partial remand of the rule so that
it could reconsider the provisions addressing existing
facilities in light of Entergy. See
ConocoPhillips Co. v. EPA, 612 F.3d 822, 832, 842 (5th
The Challenged Rule
response to the Phase II and III remands, the EPA proposed a
new round of rulemaking for all existing facilities and new
units at existing facilities. See National Pollutant
Discharge Elimination System-Cooling Water Intake Structures
at Existing Facilities and Phase I Facilities, 76 Fed. Reg.
22, 174 (Apr. 20, 2011). Several rounds of comment on the
proposed rule followed, and the EPA ultimately reviewed
comments from over 1, 100 organizations and individuals. 79
Fed. Reg. at 48, 352.
the EPA initiated ESA consultation with the Services on the
effects of the proposed rule on listed species and their
critical habitat. During informal consultation, the Services
disagreed with the EPA's determination, in a draft
biological evaluation, that the proposed rule was unlikely to
have adverse effects on listed species. On June 18, 2013,
after several meetings between the agencies, the EPA
requested formal section 7 consultation and submitted a final
biological evaluation. With that evaluation in hand, in late
2013 the Services preliminarily concluded that the proposed
rule would cause "jeopardy" as defined in the ESA.
The EPA and the Services continued to discuss the proposed
rule and revisions, culminating in a draft final rule in
March 2014. Soon thereafter, in May 2014, the Services
jointly issued a biological opinion, concluding that although
the operation of CWISs could have significant adverse effects
on listed species and their critical habitat, the proposed
rule's inclusion of certain process-based protections
ensured that it was not likely to "jeopardize" the
continued existence of listed species or "adversely
modify" critical habitat within the meaning of ESA
section 7. See U.S. Fish and Wildlife Service &
National Marine Fisheries Service, Endangered Species Act
Section 7 Consultation Programmatic Biological Opinion on the
U.S. Environmental Protection Agency's Issuance and
Implementation of the Final Regulations Section 316(b) of the
Clean Water Act 71 (2014) ("Bio. Op."). The
biological opinion also included an ITS, which found that the
"large scale and broad scope" of the proposed rule
precluded an accurate estimate of the precise amount of
incidental take. Id. at 76. The Services therefore
deferred quantification of incidental take to the
site-specific permitting process laid out in the proposed
Final Rule promulgated by the EPA and challenged by the
Petitioners applies to existing power plants and
manufacturing facilities that use CWISs to withdraw more than
2 million gallons of water per day ("mgd"), of
which 25 percent or more is used for cooling. See 79
Fed. Reg. at 48, 304-05. As we discuss in more detail and as
relevant below, the Rule establishes impingement and
entrainment standards for existing facilities and for new
units at existing facilities, id. at 48, 321-23, and
it implements several processes to ensure compliance with the
ESA, id. at 48, 380-83.
the Final Rule was published, petitions for review were filed
in six Circuits. The Fourth Circuit consolidated the
petitions, allowed the Petitioners to intervene in one
another's suits, and transferred the consolidated
petitions to this Circuit pursuant to 28 U.S.C. §
2112(a)(5). We then granted the Petitioners leave to amend
their petitions to include challenges to the Services'
biological opinion and to add the Services as respondents. We
also granted the motion filed by the Center for Biological
Diversity, Louisiana Environmental Action Network, California
Coastkeeper Alliance, Humboldt Baykeeper, Suncoast
Waterkeeper, Inc., and Puget Soundkeeper Alliance for leave
to intervene as petitioners.
petitions for review are before us.
first petition, filed by the self-described
"Environmental Petitioners" and "Environmental
Intervenors" (collectively, the "Environmental
Petitioners"),  argues that: (1) the Rule's
entrainment and impingement requirements violate section
316(b) of the CWA in several ways; (2) the Rule's
definition of "new unit" is arbitrary and
capricious under the APA insofar as it excludes rebuilt,
repowered, and replaced units; (3) the Services violated
section 7 of the ESA and its implementing regulations,
especially by finding that the Rule incorporates adequate
process-based protections to avoid jeopardizing listed
species; and (4) the Services' ITS fails to meet the
requirements set forth in section 7(b)(4) of the ESA. The
Environmental Petitioners seek vacatur and remand of the
Final Rule and request that we declare unlawful and set aside
the biological opinion and ITS issued by the Services. B.
Industry Association Petition The second petition,
filed by several industry associations we refer to
collectively as "UWAG, " challenges the Rule
primarily on the grounds that: (1) the EPA exceeded its
authority under the CWA; (2) the Services violated the ESA
by, among other things, issuing a biological opinion that
relied on an erroneous environmental baseline; and (3) the
EPA violated the APA by failing to provide notice of and an
opportunity to comment on certain provisions of the Rule
adopted at the Services' behest. UWAG requests that we
vacate these so- called "Service-driven" provisions
and set aside the Services' biological opinion.
American Petroleum Institute Petition
third petition, separately filed by the American Petroleum
Institute ("API"), argues that the EPA violated the
APA when it concluded that manufacturing facilities will
incur minimal compliance costs in meeting the Rule's
standards for "new units," and when in the proposed
rule it defined "new unit" so vaguely that
interested parties were deprived of notice and an opportunity
fourth petition, separately filed by the Cooling Water Intake
Structure Coalition ("CWIS Coalition" or
"Coalition"), argues that the EPA acted arbitrarily
and capriciously in violation of the APA with respect to
permit application requirements and with respect to
requirements for intake structures that withdraw little or no
water exclusively for cooling purposes.
jurisdiction to review the Final Rule pursuant to CWA section
509(b)(1), 33 U.S.C. § 1369(b)(1). See Riverkeeper
II, 475 F.3d at 95. Because evaluating the biological
opinion's "evidentiary and analytic basis is . . .
integral to reviewing the EPA's final decision," we
can "consider the adequacy of both the section 7
consultation and the [b]iological [o]pinion that resulted
from it while reviewing the EPA's final decision."
Defs. of Wildlife v. EPA, 420 F.3d 946, 956 (9th
Cir. 2005), rev'd on other grounds,
Nat'l Ass'n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644 (2007).
Standard of Review
substantive review of the Rule has two steps. "First, we
examine the regulation against the statute that contains the
[agency's] charge." Riverkeeper II, 475
F.3d at 95 (quotation marks omitted). If Congress "has
directly spoken to the precise question at issue" and
has unambiguously expressed its intent, we must give effect
to that intent. Chevron U.S.A., Inc. v. Nat'l Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If the
statute is silent or ambiguous, we ask only "whether the
agency's answer is based on a permissible construction of
the statute," id. at 843, that is, we ask
whether the agency's action is "arbitrary,
capricious, or manifestly contrary to the statute,"
Riverkeeper I, 358 F.3d at 184 (quotation marks
omitted). "Second, if the agency has followed
Congress's unambiguously expressed intent or permissibly
construed an ambiguous statute, we measure the regulation
against the record developed during the rulemaking,"
Riverkeeper II, 475 F.3d at 95 (quotation marks
omitted), holding it unlawful only if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law," id. (quoting 5 U.S.C.
§ 706(2)(A)). Our review is "narrow, limited to
examining the administrative record to determine whether the
agency decision was based on a consideration of the relevant
factors and whether there has been a clear error of
judgment." Riverkeeper I, 358 F.3d at 184
(quotation marks omitted). Because "we lack the
[agencies'] expertise when it comes to scientific or
technical matters," id., we look only to see
whether the agency "examined the relevant data and
articulated a satisfactory explanation for its action,"
and whether there is a "rational connection between the
facts found and the choice made," Nat. Res. Def.
Council v. FAA, 564 F.3d 549, 555 (2d Cir. 2009)
(quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). We apply the same analysis to the Services'
biological opinion. See Bennett v. Spear, 520 U.S.
154, 177-78 (1997); Defs. of Wildlife v. U.S. Dep't
of the Navy, 733 F.3d 1106, 1114-15 (11th Cir. 2013).
review the Rule for compliance with the procedural
requirements of the APA. See 5 U.S.C. § 553(b),
(c). In particular, we will remand for further proceedings if
an agency fails to comply with the APA's