Page 18: of Marine News Magazine (August 2024)

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Column

Washington Watch

Procedure Act (APA) is more ? exible than previously un- maritime stakeholder suffers an injury (monetary or other- derstood, opening the door for many challenges previously wise) from an existing regulation, that injury may provide thought to be time-barred. As a general matter, the APA a basis for challenging the agency’s regulation under the has a six-year statute of limitations, which previously was APA, regardless of when the regulation was promulgated.

understood to mean that a challenge to an agency regula- When the Supreme Court’s decisions in Jarkesy, Loper tion must be brought within six years of when such regula- Bright, and Corner Post are read together, it is clear that the tion becomes effective. However, in Corner Post, the Su- Supreme Court has fundamentally impacted the regula- preme Court clari? ed that a claim “? rst accrues” under the tion of the U.S. maritime industry. Stakeholders now have

APA when a party suffers an injury from an agency ? nal greater protections from the imposition of civil penalties, action, not simply when agency takes ? nal action. As such, a more balanced court review process when challenging if a party is injured by an agency’s regulatory action – even agency interpretations of ambiguous statutes, and a longer if the underlying regulation is decades old – the party may statute of limitations for challenging agency regulations still have the right to challenge the agency’s regulation. under the APA. Agencies are continuing to review their

From a maritime stakeholder perspective, Corner Post changed authorities and the full impacts of these decisions may open up a world of opportunity to challenge agency will continue to evolve with further court challenges. Ac- regulations that well past the six year mark of when such cordingly, regulated maritime entities should reevaluate regulations went into effect. The unfortunate reality is that regulatory approaches in consideration of this changed many regulations that govern maritime operators are woe- administrative law landscape and carefully consider the fully out of date and may be causing harm to the U.S. Supreme Court’s new framework in evaluating potential maritime industry on a regular basis. To the extent that a opportunities and legal risks.