author: TATEL, Circuit Judge:

text:
    NATIONAL BIODIESEL BOARD, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent
    No. 15-1072
    Consolidated with 15-1073
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 27, 2016
    Decided December 20, 2016

      Bryan M. Killian argued the cause for petitioner. With him on the briefs were David B. Salmons and Sandra P. Franco.
    Perry M. Rosen, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was John C. Cruden, Assistant Attorney General, and Susan Stahle, Of Counsel, U.S. Environmental Protection Agency.
    Before: TATEL, BROWN, and KAVANAUGH, Circuit Judges.
   TATEL, Circuit Judge:

Petitioner, a trade association representing the domestic biofuel industry, challenges the Environmental Protection Agency’s decision to allow a group of Argentine biofuel producers and other companies to use certain recordkeeping practices in connection with sales of their product in the United States. Petitioner separately challenges the regulation, promulgated in 2010, pursuant to which EPA granted the Argentine application. Although this case implicates a pressing international issue — whether EPA is meeting its responsibility to protect against harmful global land-use changes resulting from our country’s demand for renewable fuels — we can resolve it on familiar terrain, Petitioner’s challenge to the 2010 regulation is untimely, and EPA’s decision to grant the Argentine application was neither arbitrary nor capricious, as it comports with agency regulations and rests upon the kind of highly technical judgments to which we owe agencies great deference.

I.

Established by Congress in 2005, the Renewable Fuel Standard (RFS) program requires transportation fuel — the kind used in cars and sold at gas stations — to include specific amounts of “renewable fuel” made from planted crops, trees, animal waste, algae, or other alternatives to traditional fossil fuels. Energy Policy Act of 2005, Pub. L. No. 109-58, § 1501, 119 Stat. 594 (codified as amended at 42 U.S.C. § 7545(g)). In 2007, Congress amended the program both to significantly increase use of renewable fuel and to ensure this increase would reduce greenhouse-gas emissions and thereby “lower the risk of climate change.” 75 Fed. Reg. 14,670, 14,799; see id. at 14,673, 14,843; Energy Independence and Security Act of 2007, Pub. L. No. 110-140, §§ 201-204, 121 Stat. 1492 (codified as amended at 42 U.S.C. § 7545(o)). Specifically, recognizing that demand for renewable fuels might spur land-use changes like deforestation, which exacerbate greenhouse-gas emissions and wreak ecological harm, Congress mandated that renewable fuel from planted crops come from agricultural land already cleared or cultivated prior to the 2007 statute’s enactment. 42 U.S.C. § 7545(o)(I)(i), See e.g., 75 Fed. Reg. at 14,692.

In order to accomplish this objective, Congress defined “renewable fuel” as “fuel that is produced from renewable biomass” and. -specified that “renewable biomass” means, as relevant here, “[planted crops and crop residue harvested from, agricultural land cleared or cultivated at any time prior to December 19, 2007, that is either actively managed or fallow, and nonforest-ed.” 42 U.S.C. §§ 7545(o)(l)(J), (o)(l)(I)(i).

To implement the RFS program, the statute directs EPA to “promulgate regulations to ensure that gasoline sold or introduced ' into commerce in the United States ... contains the applicable volume of renewable’fuel,” id. § 7545 (o)(2)(A)(i), including “compliance provisions applicable to refineries, blenders, distributors, and importers” of renewable fuels, id. § 7545(o)(2)(A)(iii)(I). Pursuant to that authority, EPA took the actions challenged herd.

Renewable fuel is made from plant material, known as feedstock, typically sent from farms to grain elevators, then to crushers, and eventually to fuel producers, who transform it into renewable fuel. Bio-fuel produced abroad and intended for use by domestic refiners — the subject of this litigation — is often sent from producers to importers, who then sell the renewable fuel for incorporation into domestic transportation fuel.

Under the RFS program, producers and importers of renewable fuel generate “Renewable Identification Numbers” (RINs)— codes that correspond to batches of fuel. See 40 C.F.R. §§ 80.1452, 80.1426. In turn, refiners. and importers acquire RINs to demonstrate that they have introduced into .the transportation-fuel supply the requisite amount of renewable fuel. 42 U.S.C. § 7545(o)(3)(B)(ii)(I); see 40 C.F.R. § 80.1405(c); Hermes Consolidated, LLC v. EPA, 787 F.3d 568, 572 (D.C. Cir. 2015) (describing the RFS program).

In 2010, EPA promulgated a final rule that imposes recordkeeping requirements on RIN-generating producers and importers in order to verify that crops used in renewable fuel production come from qualified land, ie., land in cultivation prior to December 19, 2007. 75 Fed. Reg. at 14,699-701; 40 C.F.R. § 80.1454. The Rule gives producers and importers three options. 40 C.F.R. §§ 80.1454(c)(1), (g), (h).

The first, individual tracking, requires producers or importers to keep, but not provide to EPA unless requested, (1) “[m]aps or electronic data identifying the boundaries of the land” where each type of feedstock was harvested, (2) “commercial documents showing the quantity of feedstock purchased from each area ... and showing each transfer of custody from the location where it was produced to the renewable fuel production facility,” and (3) records sufficient to verify that the feedstock came from land cleared or cultivated prior to December 19, 2007, such as sales records. Id. § 80.1454(c)(1).

The second option, aggregate compliance, excuses from recordkeeping requirements “any producer or RIN-generating importer” in a country subject to an approved aggregate compliance plan. Id. § 80.1454(g). A country is eligible for the aggregate compliance approach if EPA determines that its total amount of agricultural land is no higher than it was in 2007. See id. § 80.1457 (establishing the petition process for the aggregate compliance approach for foreign counties). United States domestic renewable-fuel producers are currently exempt from recordkeeping requirements based on EPA’s finding that total U.S. agricultural land has not exceeded its 2007 baseline. Id. § 80.1454(g). Only one foreign country — Canada—has sought and obtained an approved aggregate compliance regime. 76 Fed. Reg. 14,007.

A third option — the one at issue here — is the alternative tracking requirement. 40 C.F.R. § 80.1454(h). Under this provision, a “foreign or domestic renewable fuel producer or RIN-generating importer” can participate in an industry-funded program in which an “independent third party conduces] a comprehensive program of annual compliance surveys ... to be carried out in accordance with a survey plan which has been approved by EPA.” Id. §§ (h), (h)(1). The independent surveyor must perform “feedstock audits of renewable fuel production and import facilities” and “[o]btain the records and product transfer documents associated with the feedstocks being audited.” Id. §§ (h)(3)(i)-(ii). The surveyor must “[c]onfirm that feedstocks used to produce RIN-generating renewable fuels” come from qualifying land, and “[i]mmedi-ately notify EPA” of noncompliance. Id. §§ (h)(3)(iv) — (vi). Overall, annual surveys must be “representative” of the entities in the survey area and “[designed to achieve the same level of quality assurance” — that is, the same level of confidence that renewable fuels come from qualified land — as the individual tracking and aggregate compliance options. Id. §§ (h)(2)(iii)-(iv).

In 2012, the Argentine Chamber of Bio-fuels (CARBIO), a nonprofit association of biodiesel producers, soybean growers, warehouses, and oil-crushing mills, submitted a comprehensive survey program for EPA’s approval as an alternative tracking program. In considering the application, EPA required CARBIO to answer many questions about its proposal and submit additional materials in the form of seven addenda. Some two-and-a-half years later, EPA approved the application, finding that CARBIO’s. proposal satisfied section 80.1454(h)’s requirements.

The plan works like this. Using historical satellite images, CARBIO begins by identifying land cleared or cultivated prior to 2007. CARBIO then classifies these lands as either “go areas,” from which feedstock may be used, or “no go areas.” When feedstock arrives at a crushing plant, each shipment is inspected — using a document known as a carta de porte, or waybill — to ensure that the zip code of origination matches an identified go area. If ineligible land falls within a zip code, no feedstock from that zip code may qualify. The plan calls for the independent survey- or to visit each producer and crushing plant at least once a year, as well as some five percent of grain elevators and farms. Any feedstock supplier, such as a farm or grain elevator, not visited in a given year will submit to a desk audit of its product-transfer documents to verify compliance with the Rule’s qualified-land restriction.

On November 13, 2013, while EPA was considering CARBIO’s proposal, Petitioner National Biodiesel Board (NBB) sent a letter to EPA expressing concern about the viability of enforcing an alternative tracking program abroad and requesting that EPA “provide the public with notice and comment on any proposed survey plan for foreign feedstocks and production before EPA takes any action.” On January 27, 2015, EPA approved the CARBIO proposal and responded to NBB, explaining that “[g]iven the significant notice and comment process used to develop [the recordkeeping] regulations,” the agency “d[id] not find it appropriate to create additional notice and comment processes for each plan approval as you suggested in your letter.”

NBB then filed these petitions for review. In case number 15-1073, Petitioner seeks review of the 2010 Rule that established the alternative tracking program. 75 Fed. Reg. 14,670. In case number 15-1072, Petitioner challenges EPA’s approval of CARBIO’s alternative tracking proposal. We consolidated the cases and heard them together at oral argument.

II.

EPA offers a threshold objection to the petitions for review — that NBB lacks Article III standing. In response, NBB asserts that it has standing on behalf of its members: domestic producers who will suffer injury as a result of increased competition from Argentine biodiesel.

Article III standing requires “injury in fact” that is “actual or imminent” and “fairly ... traee[able] to the challenged action of the defendant” as well as “likely ... redressfable] by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). Under the doctrine of competitor standing, economic actors “suffer constitutional injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition.” Louisiana Energy and Power Authority v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998). An association, such as NBB, may represent the interests of its members if — the issue here — “at least one of [its] members has standing to sue in [its] .... own right.” See American Library Association v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005).

This case differs little from Delta Construction v. EPA, 783 F.3d 1291 (D.C. Cir. 2015) (per curiam), in which we held that an importer and seller of a vegetable-based fuel suffered constitutional injury as a result of “EPA regulations that incentivize[d] other renewable fuels like electricity sold by its competitors.” Id. at 1299. Here it is “self-evident” that NBB members meet the constitutional prerequisites of injury, causation, and redressability, as approval of- the CARBIO plan incentivizes importation of renewable fuels that will compete with domestic production, and an order vacating that approval would eliminate the resultant competitive harm. Id. at 1299-1300 (quoting White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222, 1256 (D.C. Cir. 2014), cert. granted on other grounds sub nom. Michigan v. EPA, — U.S. -, 135 S.Ct. 702, 190 L.Ed.2d 434 (2014)). Declarations submitted by NBB confirm that its members “compete with imports” in the U.S. biodiesel market.

With standing established, we turn to Petitioner’s challenges.

III.

We begin with NBB’s attack on section 80.1454(h), which EPA promulgated in 2010. 75 Fed. Reg. 14,670. EPA argues that the challenge is untimely.

Section 307(b)(1) of the Clean Air Act provides that a petition for review of any nationally applicable regulations:

shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.

42 U.S.C. § 7607(b)(1). NBB failed to challenge the Rule until it initiated this action some five years after notice was promulgated — despite exhaustively commenting during the rulemaking process and then even intervening on behalf of EPA in support of the Rule in a lawsuit before this circuit. National Petrochemical and Refiners Association v. EPA, 630 F.3d 145 (D.C. Cir. 2010). NBB nonetheless maintains that, for several reasons, its challenge to the Rule is timely.

First, NBB notes that section 307(b)(l)’s provision for judicial review after the initial sixty days “if such petition is based solely on grounds arising after,” 42 U.S.C. § 7607(b)(1), includes “the occurrence of an event that ripens a claim,” American Road & Transportation Builders Association v. EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009). It follows, says NBB, that approval of the CARBIO proposal conferred on it a newly ripened claim because until that point it had no idea that EPA would “interpret its regulation in an arbitrary way” that would injure its members. Petitioner’s Br. 52.

On this point, NBB relies on our decision in Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 129-32 (D.C. Cir. 2012), aff'd in part, rev’d in part sub nom. Utility Air Regulatory Group v. EPA, — U.S. -, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014), in which we held that section 307(b)(1) did not bar industry petitioners’ challenge to a longstanding EPA program when a new. rule expanded the program “to never-regulated sources” operated by those industries. Id. at 130. The new rule gave petitioners “newly ripened” claims against the program because, as we explained, prior to its expansion the prospect that the program would injure petitioners was too speculative to confer jurisdiction on the court. Id. at 131. Here, in stark contrast, NBB members were subject to the Rule on day one, which is why NBB both participated in the rulemaking process and intervened in litigation challenging the Rule. Instead of defending the Rule, NBB members could have argued then that the Rule’s recordkeeping requirements were insufficient to protect against the importation of nonqualified renewable fuel. Because NBB was well positioned to challenge the Rule on these grounds when it was first promulgated, the CARBIO plan conferred on NBB no “newly ripened” claim. See Sierra Club de Puerto Rico v. EPA, 815 F.3d 22, 26-28 (D.C. Cir. 2016) (explaining that Coalition left unchanged the principle that mere application of a regulation, “without anything more,” falls short of “after-arising grounds.”).

Coalition aside, NBB’s argument that the CAEBIO plan , gives rise to a newly ripened claim because, prior to it, the recordkeeping regulations “could potentially have been applied by EPA in a manner that would not have injured Petitioner or its members,” reveals the true “grounds” upon which NBB seeks to challenge EPA: the agency’s decision to grant the CAE-BIO proposal as an application of the Eule not the Eule itself. Petitioner’s Br. 52. We consider that issue in Part IV, infra.

NBB next argues that its challenge is timely because EPA “reopened” the Eule when it approved the CAEBIO proposal. The reopener doctrine allows an otherwise untimely challenge to proceed “where an agency has — either explicitly or implicitly — undertaken to ‘reexamine its former choice.’ ” National Mining Association v. Department of the Interior, 70 F.3d 1345, 1351 (D.C. Cir. 1995) (quoting Public Citizen v. Nuclear Regulatory Commission, 901 F.2d 147, 151 (D.C. Cir. 1990)). The CAEBIO proposal is, the argument goes, a “constructive” reopening of the Eule, which “occurs if the revision of accompanying regulations ‘significantly alters the stakes of judicial review” as the result of a change that ‘could have not been reasonably anticipated.’ ” National Resources Defense Council v. EPA, 571 F.3d 1245, 1266 (D.C. Cir. 2009) (per curiam) (quoting Sierra Club v. EPA, 551 F.3d 1019, 1025 (D.C. Cir. 2008)). We have described the magnitude of alteration required to invoke this doctrine as a “sea change,” and have declined to apply it when “the basic regulatory scheme remains unchanged.” Id. As the Eule expressly establishes that foreign producers may seek approval of an alternative tracking program, the CAEBIO plan neither alters that regulatory framework nor works a change that NBB members could not have reasonably anticipated. To the extent NBB argues that the CAE-BIO proposal is out of line with the Eule, this is — yet again — a challenge to EPA’s application of the Eule rather than to the Eule itself;

For these reasons, NBB’s petition for review of the Eule is untimely under section 307(b)(1) and is, accordingly, dismissed.

IV.

We now turn to the.heart of this case— whether EPA erred when it approved the CAEBIO plan. NBB challenges EPA’s action on both procedural and substantive grounds.

With respect to procedure, NBB contends that EPA erred when it approved the CAEBIO plan via informal adjudication without public notice and comment. As a general matter, “agencies have ‘very broad discretion whether to proceed by way of adjudication or rulemaking.’ ” Qwest Services Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir. 2007) (quoting Time Warner Entertainment Co. v. FCC, 240 F.3d 1126, 1141 (D.C. Cir. 2001)). Not only does the Eule do nothing to fetter this discretion, but it expressly requires public notice and comment for country-wide aggregative compliance applications, see 40 C.F.E. §§ 80.1454(g)(1), 80.1457, while imposing no notice and comment requirement for the approval of alternative tracking plans like the one submitted by CAEBIO, id. § 80.1454(h).

NBB insists that EPA’s approval of the CAEBIO proposal was, in effect, a rale that required notice and comment, not an adjudication, because the plan “provides a new set of substantive standards for future conduct, indefinitely applying to a large number of entities,” involves “several policy determinations,” and leaves “key facts ... unresolved.” Eeply 11-12. But we need not meditate on the sometimes-fuzzy line between ralemaking and informal adjudication because EPA’s approval of the CARBIO plan was a straightforward instance of adjudication. Only after a two- and-a-half-year process, during which EPA frequently asked for new information and modifications to the proposal and CARBIO submitted several addenda, did the agency approve the CARBIO plan. The nature of that proceeding “reflect[s] a highly fact-specific, case-by-casé style” characteristic of adjudication. Conference Group, LLC v. FCC, 720 F.3d 957, 965 (D.C. Cir. 2013) (quoting AT & T v. FCC, 454 F.3d 329, 333 (D.C. Cir. 2006)). The approval, by its own terms, applies only to the CARBIO program; indeed, NBB never even suggests that an entity other than CARBIO or its producer-members could avail itself of the program without making a separate application to EPA. That the CARBIO plan will survey some yet-unidentified feedstock suppliers hardly transforms the approval into a rulemaking, lest every element of a license application need be set in stone to escape notice and comment. Under NBB’s theory, an agency could not by adjudication issue a permit to transport cargo without first knowing who would drive the truck. And as we have explained, the fact that an agency action applies to a “large number of licensees” “carries] [little] weight” in our analysis. Goodman v. FCC, 182 F.3d 987, 994 (D.C. Cir. 1999).

On to NBB’s substantive objection: that approval of the CARBIO plan was arbitrary and capricious. Our standard of review under the Clean Air Act is the same as under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and we will affirm EPA’s action “if the record shows EPA considered all relevant factors and articulated a ‘rational connection between the facts found and the choice made.’” Catawba County v. EPA, 571 F.3d 20, 41 (D.C. Cir. 2009) (per curiam) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). That said, we will not hesitate to overturn agency action as arbitrary and capricious if the agency fails to “comply with its own regulations.” Environmentel, LLC v. FCC, 661 F.3d 80, 85 (D.C. Cir. 2011). Critical to our resolution of this challenge, we give an “extreme degree of deference to EPA when it is evaluating scientific data within its technical expertise.” Catawba, 571 F.3d at 41 (quoting City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003) (alteration omitted)). This deference is especially appropriate when EPA “acts under ‘unwieldy and science-driven’ statutory schemes like the Clean Air Act.” Bluewater Network, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting Husqvama AB v. EPA, 254 F.3d 195, 199 (D.C. Cir. 2001)).

NBB contends that EPA’s approval of the CARBIO proposal was arbitrary and capricious because the plan fails to comply with the alternative tracking requirements set out in 40 C.F.R. § 80.1454(h) in three ways: (1) its omission of importers; (2) its reliance on satellite technology, as well as waybills for verifying the origin of feedstock; and (3) its failure to identify, in advance, participating feedstock producers and other entities in the supply chain. We consider each in turn.

A.

NBB first argues that the CARBIO plan is out of sync with the Rule because it fails to include importers. As designed, the CARBIO proposal tracks the fuel supply chain from farm through biodiesel production, but not thereafter. As NBB points out, however, section 80.1454(h) appears to suggest, in three places, that a survey plan must include producers and importers. 40 C.F.R. §§ 80.1454(h)(2)(ii) (specifying that surveys must be “[conducted at renewable fuel production and import facilities and their feedstock suppliers”) (emphasis added); (h)(2)(iii) (requiring surveys to be “[representative of all renewable fuel producers and importers in the survey area”) (emphasis added); (h)(3)(i) (requiring “feedstock audits of renewable fuel production and import facilities in accordance with the survey plan”) (emphasis added).

EPA responds that the best reading of section 80.1454(h) is that only an alternative tracking plan sponsored by RIN-generating importers needs to include importers, whereas the CARBIO proposal is sponsored by RIN-generating producers. “[W]e review an agency’s interpretation of its own regulations with ‘substantial deference.’ ” In re Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001) (quoting Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)). Even without that deference, however, we can readily adopt EPA’s interpretation given our obligation to “read ... words ‘in their context and with a view to their place in the overall ... scheme.’ ” King v. Burwell, — U.S. -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)).

Section 80.1454(h) specifies that “[a]ny foreign or domestic renewable fuel producer or RIN-generating importer” may adopt an alternative tracking requirement, (emphasis added). Elaborating, section 80.1454(h)(1) states that “a renewable fuel producer or importer” must sponsor an independent survey plan in order to comply. (emphasis added). The Rule thus provides that either RIN-generating producers or RIN-generating importers may sponsor an alternative tracking plan, and, by implication, without participation from the other. Given that the purpose behind these recordkeeping provisions is to ensure that entities generating RINs can produce the records needed to verify that renewable fuel comes from qualified land, we agree with EPA that little additional value would flow from requiring a producer, once it has generated the RIN and possesses those records, to continue monitoring its product downstream. By contrast, if an importer is the RIN-generating entity, then biofuel producers are upstream, and an importer can only possess the necessary documentation if it has tracked the product from the farm to its doors. This second scenario is, EPA explains, why the three provisions cited by NBB inelegantly refer to producers and importers. Respondent’s Br. 50-51.

Additional textual clues favor EPA’s view. For one thing, as EPA points out, the alternative tracking program is open to any “foreign or domestic renewable fuel produ'cer.” 40 C.F.R. § 80.1454(h) (emphasis added). At the moment, domestic producers are subject to the aggregate compliance regime, based on EPA’s determination that the total amount of agricultural land in the United States is no higher than it was in 2007. Id. § 80.1454(g). Were the United States to exceed that 2007 baseline and become ineligible for the aggregate compliance regime, then domestic producers could avail themselves of alternative tracking. Under that scenario, it would make no sense to interpret the regulations as requiring a program, sponsored by domestic producers to include “importers” — domestic fuel, unlike ,domestic beer, is never imported.

Second, the alternative tracking approach must “achieve at least the same level of quality assurance” as individual tracking. Id. § 80.1454(h)(2)(iv). Because individual tracking regulations do not require producers to track what importers do with renewable fuel, EPA notes, it would be logical to interpret alternative tracking in the same way. See id. § 80.1454(c)(1).

Third, as EPA observes, the regulation’s preamble includes not a single reference to importers. According to EPA, this demonstrates that it “envisioned [alternative tracking] survey plans from renewable biomass producers need not reach the actions of importers in the context of the alternative tracking program.” Respondent’s Br. 51; see 75 Fed. Reg. at 14,700.

Fourth, reading the regulation in -EPA’s preferred manner creates no gap in the regulatory scheme. Approval of an alternative tracking plan only allows participating entities to avail themselves of section 80.1454(h)’s recordkeeping provisions. Non-participating entities, like RIN-generating importers, remain subject to section 80.1454(c)(l)’s individual tracking requirements, as well as to other regulatory provisions that stand independent of the record-keeping measures in section 80,1454. See, e.g., 40 C.F.R. § 80.1451(d) (directing producers and RIN-generating importers to submit quarterly reports that include “electronic data identifying the land ... from which each type of feedstock ... was harvested.”).

Taken together, these features of the regulation demonstrate that the CARBIO plan’s omission of importers is consistent with the best reading of the Rule.

B.

NBB’s second argument rests on. the Rule’s requirement that an alternative tracking plan must be “[designed, to achieve the same level of quality assurance” as the individual tracking and aggregate compliance options. Id. § 80.1454(h)(2)(iv), According to NBB, several features of the CARBIO plan make it less likely than these other recordkeeping regimes to ensure that feedstock comes from qualified land.

One such feature is the plan’s use of satellite technology to identify land cleared or cultivated prior to 2007, a methodology NBB calls too “untested” and ill-defined to provide the requisite level of quality assurance. For several reasons, this claim fails on the launch pad.

For one thing, under the regulation, the CARBIO plan must provide “the same level of quality assurance” as the individual and aggregate compliance approaches. Id. § 80.1454(h)(2)(iv). Because the regulation establishing the petition process for aggregate compliance plans expressly contemplates the use of “[s]atellite imagery or data” to evaluate when land was cleared or cultivated, how could the CARBIO plan possibly fall short for doing precisely the same thing? See id. §§ 80.1457(b)(3)(i), (b)(4)®.

In any event, we can hardly imagine 'a more appropriate occasion to defer to EPA’s expert judgment than its assessment of whether a particular satellite methodology can accurately measure environmental change. Indeed, Petitioner has identified no basis in the record to upset the agency’s conclusion as to CARBIO’s use of satellite technology.

The CARBIO proposal includes 23 pages explaining its methodology. Relying predominantly on images collected by NASA’s Landsat program, the plan takes electromagnetic data gathered by sensors on Landsat satellites and then employs algorithms to transform that data into categories of land use. EPA is well-positioned to evaluate the proposal’s technical feasibility, as the agency itself uses satellite data to measure international land-use changes as part of its analysis of lifecycle greenhouse-gas emissions in the Renewable Fuel Standard program. See EPA, Renewable Fuel Standard Program Regulatory Impact Analysis, 317 (2010). Moreover, the Landsat program is, since the launch of its first satellite in 1972, “the longest continuous space-based record of Earth’s land in existence.” NASA, About Landsat, http://landsat.gsfc.nasa. gov/?page_id=2. Today, the program produces images capable of spotting “[w]hen a new road appears in the dense forests of Peru[] or a baseball diamond-sized patch of forest is felled in the Republic of Congo.” NASA, Staying Alert: Hoto a New Landsat-Based Tool Spots Deforestation, http://Iandsat.gsfe.nasa.gov/?p= 12335. Researchers have used Landsat data to view and characterize subtle vegetation changes in the Alaskan tundra. Junchang Ju and Jeffrey G. Masek, The Vegetation Greenness Trend in Canada and US Alaska from 198^.-2012 Landsat Data, 176 Remote Sensing of Environment 1 (2016). These do not strike us as markers of an unproven or untrustworthy technology.

NBB believes that the land categories adopted in the plan will result in the mis-classification of native forests as qualified land. But the proposal classifies native forests as “other vegetation” and' specifies that “go areas” will exclude that category. Without context, NBB’s passing reference to the plan’s treatment of wetlands provides an insufficient basis to set the agency’s action aside. Petitioner’s Br. 42-43. The plan requires CARBIO — not the independent surveyor — to identify go areas. Yet nothing in the Rule precludes such an arrangement and, for good measure, the proposal specifies that a third party will verify its maps on an annual basis.

NBB separately contends that the plan’s reliance on satellite imagery to verify historical land use runs afoul of the Rule’s requirement that the independent survey- or “[o]btain the records and product transfer documents associated with the feed-stocks being audited.” 40 C.F.R. § 80.1454(h)(3)(ii) (emphasis added). This is so, it maintains, because these images cannot constitute “records” within the meaning of that provision. NBB gives us no basis — nor can we divine one — for concluding that the expansive term “record” excludes historical satellite images.

NBB also takes issue with the plan’s use of waybills. Under the plan, waybills are inspected to ensure feedstock was sent from a zip code that matches an identified go area. If ineligible land falls within a zip code, no feedstock from that zip code may qualify.

NBB thinks this system is inadequate because waybills display only whether feedstock was shipped from a qualifying zip code, so shipments made tram 'qualifying land could contain unqualified feedstock. In other words, NBB fears that qualified land might launder unqualified feedstock. But any concern about feedstock laundering is equally present under the individual tracking regime and, as noted above, CARBIO’s proposal need achieve only the “same level of quality assurance” as individual tracking. Id. § 80.1454(h)(2)(iv) (emphasis added); see also id. §'80.1454(c)(l)(i)(B) (relying on transfer documents from qualified land to show the quantity of feedstock purchased from each area and to verify the chain of custody for said feedstock). Moreover, the CARBIO proposal, like other alternative tracking programs, includes independent audits to verify compliance by feedstock suppliers, as opposed to the passive recordkeeping' requirements of individual tracking.

In a related argument, NBB contends that the CARBIO plan fails to explain how it will prevent mixing of qualified and unqualified feedstock. Again, however, NBB never explains how the CARBIO plan is any more deficient in this respect than the individual tracking regime — the relevant question. Moreover, the CARBIO plan provides, with no. direct analogue- under the individual tracking provision, for use of a “mass balance” approach, which ensures that RINs are only generated in proportion to the quantity of qualified biomass. Additional regulatory requirements — independent of the recordkeeping provisions at issue — impose a responsibility to segregate qualified renewable fuel from nonqualified renewable fuel. See, e.g., 40 C.F.R. §§ 80.1466(d)(vi)(B), (j)(l).

Having been given no basis to disturb EPA’s conclusion that the CARBIO plan is “[designed to achieve the same level of quality assurance” as the individual tracking and aggregate compliance regimes, we move on to NBB’s final challenge.

C.

Under section 80.1454(h)(2)(iii), “annual compliance surveys ... must be ... [representative of all renewable fuel producers and importers in the survey area and representative of their feedstock suppliers.” Elaborating, the Rule states that the “survey program must include a statistically supportable methodology.” 75 Fed. Reg. at 14,670. Because the CARBIO proposal does not identify the survey area and all of the feedstock suppliers in advance, NBB argues, EPA failed to “rationally” assess whether the CARBIO program will use a sampling methodology that is “representative” of the feedstock suppliers. Petitioner’s Br. 35-38.

This challenge misses the regulation’s distinction between survey plans and surveys. See, e.g., 40 C.F.R. § 80.1454(h)(1) (stating that “an independent third party conduces] a comprehensive program of annual compliance surveys, to be carried out in accordance with a survey plan which has been approved by EPA”). The regulation mandates representative surveys. Only in the report issued to EPA after a survey is complete must the independent surveyor identify “the covered area surveyed.” Id. § 80.1454(h)(3)(vii)(D). A survey plan, by contrast, must include “the parties for whom the survey is to be conducted,” as well as a “methodology” for conducting audits. Id. § 80.1454(h)(4). But the regulation nowhere mandates that survey plans identify feedstock suppliers or survey areas.

NBB’s theory — that EPA may not approve an alternative tracking program without knowing the full population of feedstock suppliers in advance — scrambles the sequence envisioned in the regulation. Moreover, it is unclear why EPA must know the precise universe of feedstock suppliers in the survey in order to determine, in advance, whether a methodology for conducting those surveys is acceptable.

NBB separately questions whether CARBIO’s plan to use a “random sampling methodology with probability proportional to size (PPS) of feedstock amounts supplied for biodiesel production” is a proper statistical methodology. Given our highly deferential standard of review, however, we are more likely to brew renewable fuel ourselves than second-guess the EPA’s determination on this highly technical point based on a fleeting attack by the challenger.

V.

For the foregoing reasons, we dismiss the petition in case number 15-1073 and deny the petition in case number 15-1072.

So ordered.


source: Caselaw Access Project

author: KAREN LeCRAFT HENDERSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee v. Devon Cleveland HUNT, also known as Man, Appellant
    No. 15-3084
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 10, 2016
    Decided December 20, 2016

      Edward C. Sussman, Washington, DC, appointed by the court, argued the cause and filed the briefs for the appellant.
    Jason B. Feldman, Assistant United States Attorney, argued the cause for the appellee. Elizabeth Trosman and George P. Eliopoulos, Assistant United States Attorneys, were with him on the brief.
    Before: HENDERSON and PILLARD, Circuit Judges, and GINSBURG, Senior Circuit Judge.
   KAREN LeCRAFT HENDERSON, Circuit Judge:

Devon Hunt has a long history of drug dealing. Over the years he has done much of his business at Potomac Gardens, a housing project in southeast Washington, D.C. In this case, he conspired to distribute heroin from there. He pleaded guilty pursuant to a plea agreement in which he anticipatorily waived his right to appeal certain aspects of his sentence. The district court sentenced him to 62 months of imprisonment, to be followed by five years of supervised release. Without saying why, the court conditioned Hunt’s supervised release on his staying away from Potomac Gardens. Hunt objected to the condition but not to the lack of explanation.

Hunt now appeals, challenging both the stay-away condition and the district court’s failure to explain it. The government argues that Hunt’s appeal waiver bars his claims. We disagree. The waiver contains ambiguities that the court compounded during the plea colloquy. We construe the ambiguities against the government, which drafted the plea agreement and provided no clarification .during the colloquy. We nevertheless uphold the stay-away condition because Hunt’s claims fail on the merits. First, because he did not object to the court’s 'failure to explain the condition, we review his procedural claim for plain error only. To the extent there was a procedural error, it was not plain and did not affect his substantial rights. Second, as a substantive matter, the condition is well within the court’s wide discretion. It will sensibly keep Hunt away-from a neighborhood in which he has conducted numerous drug deals. And because he neither lives in the neighborhood nor alleges that he has family there, the condition does not unduly restrict his liberty.

I. BACKGROUND

A. Hunt’s Offenses, Past and Present

Hunt has ties with Potomac Gardens but they are not to his credit. In 1987, he conducted at least three heroin deals there. In 1990, he assaulted police officers there. In 1994, he again participated in a series of heroin sales there. In the process, he threatened security guards and told a young child to keep an eye out for police. After he pleaded guilty to conspiracy based on the 1994 conduct, a long jail term kept him away from Potomac Gardens until at least 2006. In June 2009, the D.C. Housing Authority barred him from the complex. He was not deterred: narcotics officers found him at Potomac Gardens just a few months later.

From late 2012 to early 2013, while residing elsewhere, Hunt once again used Potomac Gardens as a base of operations for drug dealing. He repeatedly sold heroin from there through a middleman to a confidential source. The deals involved a total of more than 100 grams of heroin. Based on those deals, the government charged him here with conspiring to distribute and to possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C, § 846. It also charged him with six related drug offenses.

B. The Guilty Plea

Hunt was arrested and agreed to plead guilty to the conspiracy count in exchange for the government’s dismissal of the other counts. The parties stipulated to an imprisonment range' of 60 to 65 months and a five-year term of supervised release. Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the parties further agreed that the sentencing range and five-year term of supervised release would bind the district court if it accepted the plea agreement. Finally, Hunt agreed to waive some of his appellate rights with respect to his sentence. In pertinent part, the appeal waiver stated:

[Hunt] understands that federal law, specifically 18 U.S.C. §' 3742, affords defendants the right to appeal their sentences in certain circumstances. [Hunt] agrees to waive the right to appeal the sentence in this case, including any term of imprisonment, fine, forfeiture, award of restitution, term of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined, except to the extent the Court sentences [Hunt] above the statutory maximum or guidelines range determinéd by the Court or [Hunt] claims that [he] received ineffective assistance of counsel, in which case [he] would have the right to appeal the illegal sentence or above-guidelines sentence or raise on appeal a claim of ineffective assistance of counsel, but not to raise on appeal other issues regarding the sentencing.

Plea Agreement, Dkt. No. 121 at 8.

The district court held a plea hearing on the same day that Hunt signed the plea agreement. Midway through the hearing, the court told him that “you [are] generally giving up your rights to appeal,” with certain “exceptions.” Plea Tr. 31 (Aug. 13, 2016). As relevant here, the court said Hunt could appeal if he “think[s] the sentence is illegal or it exceeds the applicable Sentencing Guidelines range or resulted from ineffective assistance, of counsel....” Id. Later in the hearing, the court again 'discussed the appeal waiver but did not suggest, as before, that the waiver permits appeal from an “illegal” sentence. Id. at 51. The government did not object to the court’s inconsistent characterizations of the waiver or otherwise offer clarification. The court accepted Hunt’s guilty plea.

C. Sentencing

In a presentencing memorandum, the government emphasized Hunt’s “long term connection” to criminal activity at Potomac Gardens and asked the district court to “order as a condition of [his] supervised release that [he] stay away from” the complex. Government’s Mem. in Aid of Sentencing, Dkt. No. 136 at 7, 9.

At the sentencing hearing, the government renewed its request for a stay-away condition. In support, it listed the crimes that Hunt committed at Potomac Gardens. The government added that “[h]e hasn’t lived there.” Sent. Tr. 16 (Nov. 20, 2015). Without disputing the government’s recitation — except to say that Hunt lived at Potomac Gardens “at one point” — defense counsel responded that a “stay[-]away order from a particular large area of town is inappropriate,” especially because Hunt “knows many people there ... who have nothing to do with drugs or illegal activity.” Id. at 24. Defense counsel also suggested that a stay-away condition was unnecessary because Hunt was forbidden “to engage in illegal activities” in any event. Id.

Consistent with the plea agreement, the district court sentenced Hunt to 62 months of imprisonment and five years of supervised release. As a condition of that release, the court ordered Hunt to stay away from Potomac Gardens. Specifically, the court stated:

[W]ithout the prior approval of the U.S. Probation Office, you shall not enter the grounds of the Potomac Gardens housing complex area in Southeast Washington, D.C., or any structure in it, as bounded by the areas of Pennsylvania Avenue, Southeast, to the north; 14th Street, Southeast, to the east; K Street, Southeast, to the south; and 11th Street, Southeast, to the west.

Sent. Tr. 31. The court did not further explain the condition. After imposing sentence, it asked: “Are there any other matters we heed to take up, Counsel?” Id. at 32-33. Defense counsel responded: “I don’t believe so, sir.” Id. at 33.

II. ANALYSIS

As noted, Hunt challenges the stay-away condition and the district court’s failure to explain it. Before addressing the merits, we consider whether the appeal waiver bars his claims ab initio.

A. Hunt’s Appeal Waiver Does Not Unambiguously Bar His Challenges To The Stay-Away Condition.

Like a guilty plea more generally, see United States v. Ruiz, 536 U.S. 622, 631-32, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), an appeal waiver serves the important function of resolving a criminal case swiftly and finally, see United States v. Hahn, 359 F.3d 1315, 1318, 1325 (10th Cir. 2004) (en banc) (per curiam). It also gives the defendant “an additional bargaining chip” during plea negotiations and thereby “increases the probability he will reach a satisfactory plea agreement with the Government” in the first place. United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009). We have held that a “knowing, intelligent, and voluntary” appeal waiver, even though “anticipatory,” “generally may be enforced.” Id. at 529. And ‘we ordinarily dismiss an appeal falling within the scope of such a waiver. See, e.g., United States v. Adams, 780 F.3d 1182, 1184 (D.C. Cir. 2015); Guillen, 561 F.3d at 532; see also, e.g., United States v. Ortega-Hernandez, 804 F.3d 447, 452 (D.C. Cir. 2015) (partially dismissing appeal based on waiver); In re Sealed Case, 283 F.3d 349, 355 (D.C. Cir. 2002) (same). But cf. United States v. West, 392 F.3d 450, 460-61 (D.C. Cir. 2004) (enforcing waiver but affirming district court’s judgment rather than dismissing appeal).

But we will not bar the door to a criminal defendant’s appeal if his waiver only arguably or ambiguously forecloses his claims. A plea agreement is a contract and so we advert to principles of contract law in interpreting it. United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014); United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). Ambiguity in a plea agreement, as in any other type of contract, is construed against the drafter. Henry, 758 F.3d at 431; In re Sealed Case, 702 F.3d 59, 63 n.2, 65 (D.C. Cir. 2012); see Restatement (Second) of Contracts § 206 (1981) (“In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.”). The government drafted Hunt’s plea agreement. If the agreement does not unambiguously preclude Hunt from appealing the issues he presents to us, he has not knowingly, intelligently and voluntarily waived them. In re Sealed Case, 702 F.3d at 65 (where appeal waiver was “at the very least ... ambiguous,” defendant “did not knowingly waive his right to appeal”); accord United States v. Binkholder, 832 F.3d 923, 926 (8th Cir. 2016) (court enforces appeal waiver only if, inter alia, “a given appeal is clearly and unambiguously within [its] scope”) (internal quotation omitted); Hahn, 359 F.3d at 1325 (holding similarly).

Reviewing Hunt’s appeal waiver de novo, see Henry, 758 F.3d at 431; Guillen, 561 F.3d at 531, we conclude that it does not unambiguously foreclose his challenges to the stay-away condition. Like statutory construction, see, e.g., Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009), interpretation of a plea agreement begins with plain language, see, e.g., Ramsey v. U.S. Parole Comm’n, 840 F.3d 853, 860 (D.C. Cir. 2016). The key language' of the appeal waiver provides that Hunt “agrees to waive the right to appeal the sentence in this case, including any term of imprisonment, fine, forfeiture, award of restitution, term of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined — ” Plea Agreement, Dkt. No. 121 at 8.

One reasonable interpretation of the provision is that Hunt waived the right to appeal any aspect of his sentence, including the conditions of supervised release and the manner in which they were imposed. After all, the word “including” is ordinarily illustrative rather than limiting. See, e.g., Bloate v. United States, 559 U.S. 196, 206-07, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010). Also, supervised release and the Conditions thereof are part of “the sentence” by statutory default. 18 U.S.C. §§ 3583(a), 3742(a)(3); see United States v. Higgins, 739 F.3d 733, 738 & nn.11-12 (5th Cir. 2014).

We are not convinced, however, that the only permissible interpretation of the provision is the one set out above or that Hunt read it that way when he signed the plea agreement. He might reasonably have believed that the clauses about his “term of supervised release” and the “authority of the Court to set conditions of release” occupy the field as to supervised release, displacing the more general waiver in that context. See Gozlon-Peretz v. United States, 498 U.S. 395, 407, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) (ordinarily, “[a] specific provision controls over one of more general application”). And. neither clause about supervised release unambiguously bars the claims Hunt advances in this Court.

By waiving his right to appeal any “term of supervised release,” Hunt did not necessarily give up the right to appeal a condition of such release. True, “term” can mean “condition.” Black’s Law Dictionary 1698 (10th ed. 2014). But in the context of Hunt’s appeal waiver, it more likely connotes “duration.” Webster’s Third New INTERNATIONAL DICTIONARY, UNABRIDGED 2358 (1993). The provision covers “any term of imprisonment ... [and] term of supervised release,” Plea Agreement, Dkt. No. 121 at 8. As the government does not dispute, “term of imprisonment” refers to the duration of Hunt’s imprisonment. It likely follows that “term of supervised release,” appearing in the same sentence as “term of imprisonment,” refers to the duration of Hunt’s supervised release. See Mills Music, Inc. v. Snyder, 469 U.S. 153, 164-65, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985) (“It is logical to assume that the same word has the same meaning when it is ... used earlier in the same sentence.”); see also Restatement (Seoond) op Contracts § 202(2) (contract “is interpreted as a whole”).

Likewise, by waiving his right to challenge the “authority of the Court to set conditions of release,” Plea Agreement, Dkt. No. 121 at 8 (emphasis added), Hunt did not unambiguously give up the right to appeal the stay-away condition itself. He does not claim that the condition is ultra vires. Cf. United States v. Malenya, 736 F.3d 554, 557 (D.C. Cir. 2013). Instead, the gravamen of his appeal is that the condition “was imposed in violation of law,” 18 U.S.C. § 3742(a)(1), because the court did not adequately explain it under 18 U.S.C, § 3553(c) and because it is substantively unreasonable under 18 U.S.C. §§ 3553(a) and 3583(d).

Finally, instead of clarifying the plea agreement’s ambiguities, the plea colloquy exacerbated them. The district court indicated — without correction or qualification from the government — that one of the “exceptions” to Hunt’s “general[ ]” waiver permits him to appeal if he “think[s] the sentence is illegal_” Plea Tr. 31. Consistent with our analysis above, Hunt might reasonably have understood the court to mean he could appeal a supervised release condition that, in his view, “was imposed in violation of law” because proce-dui'ally or substantively erroneous. 18 U.S.C. § 3742(a)(1); see United States v. Godoy, 706 F.3d 493, 495 (D.C. Cir. 2013) (in everyday usage, “illegal sentence” means one that is erroneous for legal reasons). A criminal defendant may take a district court’s “oral pronouncement” about a written waiver at face value even if it “mischaracterizes” the waiver, Godoy, 706 F.3d at 495-96, and even if the waiver is otherwise .unambiguous, see United States v. Kaufman, 791 F.3d 86, 88 (D.C. Cir. 2015); United States v. Wilken, 498 F.3d 1160, 1167-69 (10th Cir. 2007). A fortiori, and especially because the government made no objection and offered no clarification, see Kaufman, 791 F.3d at 88; Godoy, 706 F.3d at 495, Hunt was entitled to rely on the court’s characterization of the ambiguous waiver as permitting him to appeal a supervised release condition resting on (in his view) procedural and substantive legal error.

B. Hunt’s Challenges To The Stáy-Away Condition Are Meritless.

Although Hunt has not waived his claims about the stay-away condition, they lack merit.

1. The district court did not commit plain procedural error.

Hunt did not object at the sentencing hearing to the district court’s failure to substantiate the stay-away condition. Sent. Tr. 32-33 (Q: “Are there any other matters we need to take up, Counsel?” A: “I don’t believe so, sir.”). Accordingly, we review his procedural challenge for plain error only. United States v. Sullivan, 451 F.3d 884, 896 (D.C. Cir. 2006) (reviewing for plain error where defendant and his lawyer “sat in court while the judge pronounced the sentence, but they never voiced an objection on the ground that the District Court had failed to substantiate the conditions of release”); see United States v. Bigley, 786 F.3d 11, 13 (D.C. Cir. 2015) (per curiam) (“When a defendant fails to timely raise a procedural reasonableness objection at sentencing, this Court reviews for plain error.”). Under the plain-error standard, Hunt must demonstrate that the district court (1) “committed error”; (2)' “that'is plain” or obvious; (3) “that affects [his] substantial rights”; and (4) that “‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Locke, 664 F.3d 353, 357 (D.C. Cir. 2011) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (second alteration in Johnson). Assuming without deciding that Hunt meets the first requirement, we conclude that -he cannot satisfy the other three.

Neither the United States Supreme Court nor our Court has squarely decided whether a district court must make express findings to substantiate a special condition of supervised release. That alone dooms Hunt’s claim of plain procedural error. United States v. Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012) (error ordinarily cannot be “plain” unless “a clear precedent in the Supreme Court or this circuit established] its erroneous character”). To cinch matters, we have held in an analogous case that a lack of findings, even if error, was not plain error. Sullivan, 451 F.3d at 896 (affirming sentence where defendant did not contemporaneously object to district court’s “fail[ure] to substantiate the conditions of release” and did not advance any “viable basis for ascribing plain error to” sentencing judge). We see no basis for a different conclusion here.

Nor does the lack of explanation or findings affect Hunt’s substantial rights or call into question the fairness, integrity or public reputation of judicial proceedings. The district court imposed the stay-away condition moments after the parties argued about its merits. The sequence and timing strongly suggest the court endorsed the government’s arguments that (1) Hunt’s many crimes at Potomac Gardens warranted the condition; and (2) the condition did not unduly restrict his liberty because “[h]e hasn’t lived” at the complex. Sent. Tr. 15-16. We discern no prejudice from the court’s failure to say out loud that it agreed with the government. See United States v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004) (defendant suffered no prejudice from any error in court’s failure “expressly [to] articulate on the record why it was imposing [certain] conditions of supervised release” because reason was “self-evident in the record”); cf. Rita v. United States, 551 U.S. 338, 359, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“Where a matter is ... conceptually simple ... and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”).

2. The district court did not abuse its discretion under section 3583(d).

The government concedes, and we agree, that Hunt preserved his substantive challenge to the stay-away condition by objecting to it at the sentencing hearing. Nonetheless, as with most sentencing matters, the standard of review is deferential. Under 18 U.S.C. § 3583(d), a district court may impose “any condition ... it considers to be appropriate” — including “a discretionary condition” typically associated with probation under section 3563(b) — so long as the condition:

(1) is reasonably related to the [sentencing] factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)....

The district judge has “wide discretion when imposing terms and conditions of supervised release” under section 3583(d) because he is in the best position to “measure[ ] the conditions imposed against the statutorily enumerated sentencing goals.” Sullivan, 451 F.3d at 895 (internal quotation omitted); see Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (“The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.”) (internal quotation omitted). We therefore review the substantive validity of the stay-away condition under an abuse-of-discretion standard. United States v. Burroughs, 613 F.3d 233, 240 (D.C. Cir. 2010); Sullivan, 451 F.3d at 895.

The district court did not abuse its discretion in concluding, albeit implicitly, that the stay-away condition is tailored to Hunt’s criminal history, 18 U.S.C. § 3553(a)(1), will deter him from criminal conduct, id. § 3553(a)(2)(B), and will protect the public from further crimes at his hands, id. § 3553(a)(2)(C). Hunt’s primary

contention to the contrary is that the condition does not prevent him from dealing drugs anywhere outside Potomac Gardens. Appellant’s Br. 20-21 (“[D]rug dealing is hardly a crime that knows geographical boundaries.... If a defendant is inclined to continue his criminal behavior while on supervised release, he certainly will find a suitable locale for his activities.”). We do not agree that Hunt’s potential recidivism renders the condition unreasonable. As defense counsel noted at sentencing, another condition of Hunt’s supervised release prohibits him from “commit[ting] another federal, state, or local crime.” Sent. Tr. 30. And it is a federal offense to deal or conspire to deal illegal drugs. See, e.g., 21 U.S.C. §§ 841(a), 846. The stay-away condition dovetails with the general prohibition: the point is to make drug dealing more difficult for or less tempting to Hunt in case he decides to break the law again. The fact that he participated in so many deals at Potomac Gardens suggests he has established drug contacts there. If the stay-away condition does anything to dry up his sources of supply or his customer base, it can only help keep him out of trouble and thereby serve the purposes of sentencing. See United States v. Watson, 582 F.3d 974, 983 (9th Cir. 2009) (“Separating a convicted felon from negative influences in his prior life is reasonably related to the permissible goals of deterrence and rehabilitation and is a common purpose of supervised release.”).

Nor does the stay-away condition unduly restrict Hunt’s liberty. 18 U.S.C. § 3583(d)(2). The Congress contemplated that a district court may require a defendant — as “a discretionary condition” of supervised release, id. § 3583(d) — to “refrain from frequenting specified kinds of places” and “from residing in a specified place or area,” id. § 3563(b)(6), (13). We reject Hunt’s contention that the district court went too far by “precluding him] from entering a rather large section of the District of Columbia.” Appellant’s Reply Br. 6. For starters, “rather large” is a rather large overstatement. The condition keeps Hunt away from a single housing project, plus about an extra city block in each direction. Using a Google map to measure the metes and bounds the district court plotted, we take judicial notice that the restricted area covers about 50 acres. See United States v. Burroughs, 810 F.3d 833, 835 n.1 (D.C. Cir. 2016) (taking judicial notice of Google map whose “‘accuracy [could not] reasonably be questioned’ ” for relevant purpose) (quoting Fed. R. Evid. 201(b)(2)). There are 640 acres in a square mile, see Leo Sheep Co. v. United States, 440 U.S. 668, 686 n.23, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979), which means the restricted area covers about 0.078 square miles. The District of Columbia encompasses about 68 square miles. See Jones v. D.C. Armory Bd., 438 F.2d 138, 141 (D.C. Cir. 1970) (per curiam). In other words, the restricted area comprises just over one one-thousandth of the District. That is a minimal imposition, especially when compared to the city- and county-wide restrictions that our sister circuits have upheld in analogous cases. See, e.g., Watson, 582 F.3d at 977-78, 983-85 (gang member prohibited from entering San Francisco); United States v. Garrasteguy, 559 F.3d 34, 40-44 (1st Cir. 2009) (drug dealers prohibited from entering Suffolk County, Massachusetts) (plain-error review); United States v. Sicher, 239 F.3d 289, 289-93 (3d Cir. 2000) (drug dealer prohibited from entering two Pennsylvania counties) (plain-error review); United States v. Cothran, 855 F.2d 749, 750-53 (11th Cir. 1988) (drug dealer prohibited from entering Fulton County, Georgia).

Furthermore, like the conditions in some of the cases cited above, the stay-away condition here is not absolute. It forbids Hunt to enter Potomac Gardens and the immediate vicinity “without the prior approval of the U.S. Probation Office.” Sent. Tr. 31, - If he has'any legitimate cause to enter-the complex — e.g., to visit family— he can prevail upon his probation officer, who we presume will act reasonably under the circumstances. See United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010). Hunt do'es not even allege that he resides or has family at Potomac Gardens; The closest he comes is his assertion that he lived there “at one point,” Sent, Tr. 24, and “has been a member of the Potomac Gardens community for much of his adult life,” Appellant’s Br. 20, He claims no specific hardship, however, and it is hard to see how he could. His counsel acknowledged at oral argument that he did not live there at the time of the offense. Oral Arg. Recording 8:18-10:00. And to the extent he has friends there who are not involved in the drug trade, Sent. Tr. 24, he can meet them anywhere he chooses outside the restricted boundaries, which are unmistakably defined.

The district court did not plainly err in failing to explain the stay-away condition and did not abuse its discretion in imposing it. Accordingly, we affirm the court’s judgment.

So ordered.

      . Waiver of appellate rights is a threshold issue but not a jurisdictional one. United States v. Shemirani, 802 F.3d 1, 3 & n.1 (D.C. Cir. 2015). We usually address it as an essential gateway to the merits, see, e.g., United States v. Adams, 780 F.3d 1182, 1183-84 (D.C. Cir. 2015) (enforcing waiver without considering merits); United States v. Guillen, 561 F.3d 527, 529, 532 (D.C. Cir. 2009) (same), hut not always, see, eg., Shemirani, 802 F.3d at 3 (rejecting sentencing claims on merits where alleged waiver implicated "difficult” and "unsettled” issues better left for another day); United States v. Ransom, 756 F.3d 770, 773 (D.C. Cir. 2014) (taking similar approach). We decide the waiver issue here in the interest of sound judicial administration; the provision in Hunt’s plea agreement is one the government uses as a matter of standard practice in this Circuit, Oral Arg. Recording 18:54-19:18, but it is ambiguous for reasons we explain below. We strongly recommend that the government revise the provision. Although we do not purport to dictate particulars, one appropriate, revision would be to change the phrase “term of supervised release” to “term or condition of supervised release."

      . Hunt notes that he objected to the condition itself. Appellant’s Br. 15. That objection did not preserve his claim about the lack of explanation. United States v. Deatherage, 682 F.3d 755, 763 (8th Cir. 2012) (“A general objection at sentencing to the substantive restriction imposed by a special condition is not enough to preserve an allegation that the court did not adequately explain its specific reasons for imposing the special condition.”); United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009) (similar holding).

      . Our sister circuits are divided on the issue. Compare United States v. Falor, 800 F.3d 407, 411 (7th Cir. 2015) (express findings required); United States v. Martinez-Torres, 795 F.3d 1233, 1238 (10th Cir. 2015) (same); United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (same); United States v. Poitra, 648 F.3d 884, 889 (8th Cir. 2011) (same); United States v. Miller, 594 F.3d 172, 184 (3d Cir. 2010) (same); United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009) (same); United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007) (same); and United States v. Brown, 653 Fed.Appx. 50, 51 (2d Cir. 2016) (unpublished summary order) (same), with United States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir. 2009) (express findings not required where reasons can be inferred from record); United States v. Betts, 511 F.3d 872, 876 & n.8 (9th Cir. 2007) (same); United States v. Ridgeway, 319 F.3d 1313, 1317 (11th Cir. 2003) (similar).


author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, EX REL. Jeffrey M. SIMONEAUX, Relator-Appellee, v. E.I. DUPONT DE NEMOURS & COMPANY, Defendant-Appellant.
    No. 16-30141
    United States Court of Appeals, Fifth Circuit.
    FILED December 13, 2016

      Joseph Arthur Smith, III, Esq., Justin Murphy DeLaune, Esq., Smith Law Firm, Jane H. Barney, Esq.,- Baton Rouge, LA, for Plaintiff-Appellee.
    Monique M. Weiner, Leigh Ann Schell, Sara C. Valentine, Esq., Lori Allen Waters, Kuchler, Polk, Schell, Weiner & Richeson, L.L.C., New Orleans, LA, for Defendant-Appellant.
    Henry Charles Whitaker, U.S. Department of Justice, Washington, DC, for Ami-cus Curiae.
    Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Jeffrey Simoneaux brought a qui tam action against his former employer, E.I. duPont de Nemours & Company (“du-Pont”),- under the False Claims Act (“FCA”). He contended that duPont had violated the reverse-false-claims provision, 31 U.S.C. § 3729(a)(1)(G), by concealing an obligation to pay the United States a penalty arising from alleged violations of the Toxic Substances Control Act (“TSCA”). He also averred, that duPont had retaliated against him in violation of the FCA, 31 U.S.C. § 3730(h). DuPont unsuccessfully moved for summary judgment on both claims, and we permitted this interlocutory appeal. Because duPont had no “obligation” to pay the United States, we reverse and remand the denial of summary judgment on the reverse false claim. With l-espect to the retaliation claim, we dismiss the appeal for want of appellate jurisdiction.

I.

In his qui tam suit, Simoneaux alleged that duPont violated the FCA’s reverse-false-claims provision by failing to report leaks of sulfur dioxide and sulfur trioxide to the Environmental Protection Agency (“EPA”) as required by Section 8(e) of the TSCA. The reverse-false-claims provision imposes liability on, inter alia, any person who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property' to the Government.” 31 U.S.C. § 3729(a)(1)(G). Simoneaux claimed that by failing to repox-t under Section 8(e), duPont' owed the United States a penalty and had avoided that obligation by failing to report the leaks. Simoneaux additionally proffered that duPont had wrongfully retaliated against him in violation of Section 3730(h).

DuPont moved for summary judgment, asserting that even if it had violated Section 8(e), it-had no “obligation” to pay the United States because the EPA had not assessed a penalty. DuPont principally relied on United States ex rel. Bain v. Georgia Gulf Corp., 386 F.3d 648 (5th Cir. 2004), and United States ex rel. Many v. Rowan Cos., 520 F.3d 384 (5th Cir. 2008), which held that “the reverse false claims act does not extend to the potential or contingent obligations to pay the government fines or penalties which have not been levied or assessed (and as to which no formal proceedings to do so have been instituted).... ” Marcy, 520 F.3d at 391 (quoting Bain, 386 F.3d at 657). With respect to the retaliation claim, duPont contended that Simoneaux had failed to establish that he had engaged in any protected activity.

The district court denied summary judgment, concluding that the Fraud Enforcement and Recovery Act of 2009 (“FERA”), which amended the FCA, had abrogated the relevant holdings of Bain and Many. The . court held that under the FCA, as amended, a person can be liable for. a reverse false claim based on a violation of a statute that imposes monetary penalties. The district court denied duPont’s request that it certify the order for interlocutory appeal.

The jury returned a verdict in favor of duPont on the reverse false claim and retaliation claim. Simoneaux moved for a new trial, based on allegations that duPont had failed to provide certain leak-calculation documents in discovery. The court ordered a new trial-under Federal Rule of Civil Procedure 60(b)(3). DuPont again asked the court to certify its denial of summary judgment for interlocutory appeal, noting that since the court’s refusal to certify, a different district court in Louisiana had relied on Many, and we had affirmed. The district court certified an interlocutory appeal under 28 U.S.C. § 1292(b), and we granted duPont leave to appeal.

II.

This court reviews certified orders de novo. Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010) (en banc). Under Section § 1292(b), “a grant or denial of summary judgment is reviewed de novo, applying the same standard as the district court but review only extends to controlling questions of law.” Id. (citation omitted). Our inquiry “is limited to the summary judgment record before the trial court.” Id. (quoting Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009)).

III.

The reverse-false-claim issue involves the interplay between the FCA and the TSCA. On the one hand, a person is liable under the reverse-FCA provision if he knowingly and improperly avoids an obligation to pay the United States. 31 U.S.C. § 3729(a)(1)(G). On the other hand, Section 8(e) of the TSCA requires chemical manufacturers to notify the EPA when they have “information which reasonably supports the conclusion that [a] substance or mixture presents a substantial risk of injury to health or the environment.” 15 U.S.C. § 2607(e). The EPA can assess civil penalties for violations of Section 8(e). Id. §§ 2614-15. Simoneaux’s theory is that a violation gives rise to reverse-FCA liability because the unpaid civil penalty is an “obligation” to pay the United States.

In Bain and Marcy, we held that potential or contingent penalties are not obligations under the FCA. Bain, 386 F.3d at 657; Marcy, 520 F.3d at 391, Simoneaux offers two arguments for why Bain and Marcy do not control. First, he asserts that FERA’s definition of “obligation” covers contingent penalties and thus abrogates Bain and Marcy’s holding. Second, he theorizes that Section 8(e) imposes liability “at the statutory level” such that assessment of-a penalty is mandatory.

Both of these notions fail. Although FERA’s new definition resolved uncertainty regarding whether the amount of an obligation needs to be fixed, it did not upset the widely accepted holding that contingent penalties are not obligations. And a plain reading of the TSCA shows that penalties are not mandatory. Thus, we reverse the denial of summary judgment on the reverse-FCA claim because, even if duPont violated Section 8(e), it had no obligation under the reverse-FCA provision.

A.

It was in Bain that we first addressed the interaction between the FCA and regulatory penalties. The qui tarn relator urged that a potential penalty under the Clean Air Act constituted an “obligation” under the reverse-FCA provision. At the time, the FCA did not define “obligation.” We held that

the reverse false claims act does not extend to the potential or contingent obligations to pay the government fines or penalties which have not been levied or assessed (and as to which no formal proceedings to do so have been instituted) and which do not arise out of an economic relationship between the government and the defendant (such as a lease or a contract or the like) under which the government provides some benefit to the defendant wholly or partially in exchange for an agreed or expected payment or transfer of property by (or on behalf of) the defendant to (or for the economic benefit of) the government.

Bain, 386 F.3d at 657. Because the EPA had not assessed a penalty, and the defendant had only a “purely regulatory” relationship with the government, the relator failed to state a reverse-FCA claim. Id. at 657-58.

In Marcy, a relator advanced a similar theory based on alleged violations of the Clean Water Act (“CWA”). We declared that “Bain controlled] [the] result.” Marcy, 520 F.3d at 391. We acknowledged that under the CWA, a polluter is required immediately to report certain polluting discharges. Id. “However,”' we explained, “even when a statute requires immediate action from a violator, the government still must choose whether to impose a penalty,” Id. Although the defendant had a contractual relationship with the government, “the relevant payment obligations did not- arise out of the [contract],” so the relator had failed to state a reverse FCA claim. Id. at 391-92.

B.

FERA amended the FCA to define “obligation” as “an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or li-censor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.” Simoneaux maintains that the definition is unambiguous and that unassessed regulatory penalties are included within its plain meaning. The district court agreed,, emphasizing the phrase “whether or not fixed.” On the other hand, duPont asserts that “established” is the key word.

The United States, as amicus curiae, agrees with duPont. It also notes that Congress did not change the overarching requirement that an obligation must be one “to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). “A statute enforceable through an unassessed monetary penalty,” the United States explains, “creates an obligation to obey the law, not an obligation to pay money.”

We agree with duPont and the United States. The most reasonable interpretation is that “established” refers to whether there is any duty to pay, while “fixed” refers to the amount of the duty.

Section 3729(b)(3) identifies three characteristics of “obligation[s]”: (1) they must be “established dut[ies]”; (2) they need not be “fixed”; and (3) they can arise from a list of sources, including statutes and regulations. Both sides and the United States concur that Congress, by providing a definition of “obligation,” was responding to the judge-made definitions that various courts had devised. We agree. The section of FERA that provides the new definition is titled “Clarifications to the False Claims Act to Reflect the. Original Intent of the Law.” Moreover, a Senate Judiciary Committee Report, which both parties cite extensively, states that “this legislation addresses current confusion among courts that have developed conflicting definitions of the term ‘obligation.’ ” Thus, given the ambiguity of the terms, it is useful to look to the state of the law before enactment of FERA;

The key difference between the competing definitions of “obligation” was whether a duty to pay had to be fixed. The Eighth Circuit, in United States v. Q Int’l Courier, Inc., 131 F.3d 770, 773 (8th Cir. 1997), provided the first interpretation of “obligation” and held that “[t]he duty ... must [be] an obligation in the nature of those that gave rise to actions of debt at common law for money or things owed.” Therefore, an obligation “must be for a fixed sum that is immediately due.” Id. at 774. The Sixth Circuit adopted the same definition. Am. Textile Mfrs. Inst., Inc. v. Ltd., Inc., 190 F.3d 729, 736 (6th Cir. 1999).

Other circuits, however, held that an obligation need not be for a fixed sum. As the Tenth Circuit explained, “we think that it is significant that [the revers'e-FCA provision] refers to ‘an obligation’ and not ‘a fixed obligation.’ We agree that there are instances in which a party is required to pay money to the government, but, at the time the obligation arises, the sum has not been precisely determined.” Bahrani, 465 F.3d at 1201. This is the issue — whether an obligation must be for a fixed sum— that caused the “confusion among courts” to which the Senate Report refers.

In contrast, the overwhelming weight of authority, before FERA, held that contingent penalties are not obligations under the FCA. Given that we presume that Congress is “aware of judicial interpretations of the. law, and ... act[s] with awareness of judicial interpretations of prior law,” it necessarily follows that “whether or not fixed” resolved the active dispute over whether an obligation could be for an uncertain sum, while “established” confirmed the accepted holding that contingent penalties are not obligations under the FCA.

This view comports with the legislative history of FERA. An early version of the bill defined “obligation” as “a fixed duty, or a contingent duty arising from an express or implied contractual, quasi-contractual, grantor-grantee, licensor-li-censee, statutory, fee-based, or similar relationship, and the retention of any overpayment.” By a vote of ninety-four to one, the Senate adopted Senator Kyi’s amendment to change the language to the current, enacted version. The fact that Congress deleted the word “contingent,” added the “whether or not” modifier to “fixed,” and inserted the word “established” suggests that it did not intend to cover contingent penalties.

Although the statements of individual legislators are not controlling, our interpretation is consistent with Senator Kyi’s explanation of the amendment. As he stated, the original language was problematic because it spoke of “contingent” obligations and “[s]uch contingent or potential duties could include duties to pay penalties or fines, which could arise — and at least become ‘contingent’ obligations — as soon as the conduct that is the basis for the fine has occurred.” “Obviously,” he continued, “we don’t want the Government or anyone else suing under the False Claims Act to treble and enforce a fine before the duty to pay that fine has been formally established.” Id.

Caselaw since FERA supports this interpretation. Simoneaux correctly notes that few courts have seriously engaged with FERA’s definition of “obligation.” But those that have considered the issue concluded that potential, contingent penalties are not “obligations.” As one district court recently stated,

Plaintiff has failed to identify an “established duty” that would bring this matter within the scope of the FCA. The addition of the phrase “whether or not fixed” to the reverse false claims provision was not meant to cover the type of contingent obligations Plaintiff contemplates — i.e., unadjudicated and unas-sessed statutory fines. “[The] phrase refers to “whether or not the amount owed was fixed at the time of the violation’ rather than whether an obligation to pay was fixed.”

Nissman, 182 F.Supp.3d at 316 (quoting Boise, 2015 WL 4461793, at *1 n.1) (citation omitted). Simoneaux’s only response to those cases is that they are distinguishable because they do not involve “mandatory” penalties. But that notion— addressed below — is distinct from his contention that FERA abrogated the key holding of Bain and Marcy. He does not explain how the cases incorrectly interpreted the new definition of “obligation.”

Moreover, Simoneaux’s position yields an extraordinarily broad construction of the FCA. If his reading of FERA were correct, reverse-FCA liability could attach from the violation of any federal statute or regulation that imposes penalties. Functionally that means the FCA permits blanket trebling of all federal penalties, so long as the violator knowingly conceals his violation of the regulation. See 31 U.S.C. § 3729(a)(1)(G). It also means any such violation leads to a civil FCA penalty “of not less than $5,000 and not more thán $10,000, as adjusted [for inflation].” Id. That result would apply even to the most minor infractions.

For exarriple, 45 C.F.R. § 3.42(e) prohibits roller-skating at the National Institutes of Health, and a person violating that regulation “shall be fined under title 18, United States Code, imprisoned for not more than 30 days, or both.” 40 U.S.C. § 1315(c)(2). Under Simoneaux’s reasoning, roller-skating at the NIH results in a penalty “of not less than $5,000” and three times the fine assessed under Title 18. And any private person who saw the roller-skater could bring a qui tarn action against him. The statutory definition of “obligation” cannot bear the weight of that interpretation.

In sum, FERA did . not upset Bain and Marcy’s holding that unassessed regulatory penalties are not obligations under the FCA. For FCA liability to attach, there must be an “established” duty “to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). Where, as in this case, a regulatory penalty has no't been assessed and the government has initiated no proceeding to assess it, there is no established duty to pay.

To be clear, the fact that further governmental action is required to collect a fine or penalty does not, standing alone, mean that a duty is not established. For example, failure to pay customs duties on mismarked goods can give rise to an FCA claim. United States ex rel. Customs Fraud Investigations, LLC v. Victaulie Co., 839 F.3d 242, 254-55 (3d Cir. 2016). The distinction is that the customs law imposes a duty to pay. In contrast, most regulatory statutes, such as the TSCA, impose only a duty to obey the law, and the duty to pay regulatory penalties is not “established” until the penalties are assessed.

C.

Under 15 U.S.C. § 2615(a)(1), any person who violates certain provisions of the TSCA, including Section 8(e), “shall be liable to the United States for a civil penalty in an amount not to exceed $37,500 for each such violation. Each day such a violation continues shall, for purposes of this subsection, constitute a separate violation .... ” Simoneaux asserts that violation of Section 8(e) leads to “mandatory” penalties because the duty to pay “is established at the statutory level.” He emphasizes the phrase “shall be liable” in Section 2615(a)(1). In contrast, duPont maintains that Section 2615(a) grants the EPA discretion to determine whether a penalty should be assessed. Accordingly, it urges, TSCA penalties are contingent and fall within the holding of Bain and Marcy. We agree with duPont.

By its plain terms, the statute gives the EPA discretion to decide to assess no penalty:

In determining the amount of a civil penalty, the Administrator shall take into account the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, ability to pay, effect on ability to continue to do business, any history of prior such violations, the degree of culpability, and such other matters as justice may require.

15 U.S.C. § 2615(a)(2)(B). Additionally, “[t]he Administrator may compromise, modify, or remit, with or without conditions, any civil penalty which may be imposed under this subsection.” Id. § 2615(a)(2)(C) (emphases added). Finally, violation of the TSCA can also lead to criminal penalties, which may be imposed “in addition to or in lieu of any civil-penalty,” thus demonstrating that civil penalties are not required. Id. § 2615(b)(1) (emphasis added). Only one court has addressed whether penalties are mandatory, concluding that the EPA has discretion in deciding whether to impose penalties.

Simoneaux's reliance on In re Deepwater Horizon, 753 F.3d 570 (5th Cir. 2014), is misplaced. There, wé described a penalty provision of the CWA as “mandatory.” Id. at 571. That provision states that owners of facilities “from which oil or a hazardous substance is discharged ... shall be subject to a civil penalty...” 33 U.S.C. § 1321(b)(7)(A). Simoneaux contends that that language is .similar to the “shall be liable to the United States” language of TSCA Section 8(e) and thus supports his mandatory-penalty theory. But his argument is flawed in two ways.

First, the statutes are not comparable. Though the TSCA expressly allows for remittitur of any penalty, the relevant provision of the CWA makes no such allowance. See 33 U.S.C. § 1321(b). Second, we did not hold (and have never held) that regulatory penalties are “mandatory” in the sense that Simoneaux is arguing. His theory is that a duty to pay arises at the moment Section 8(e) is violated. But penalties under the CWA are mandatory only in the sense that “once a violation has been ■established, some .form of penalty is required.”

TV.

DuPont contends that because Si-moneaux has failed to state a viable claim under the FCA, his FCA retaliation claim fails as a matter of law. Simoneaux asserts that the issue is outside this court’s appellate jurisdiction, since duPont did not raise it in the district court. Because we agree with Simoneaux, we dismiss the appeal of the retaliation claim for lack of jurisdiction.

“Under § 1292(b), it is the order, not the question, that is appealable.” “The court of appeals may not reach beyond the certified order to address other orders made in the case. But the appellate court may address any issue fairly included within the certified order.... ” Moreover, even if we have power to address an issue on interlocutory review, we can exercise our discretion to decline that jurisdiction.

The jurisdictional question turns on whether duPont’s retaliation argument is “fairly included” in the certified order. We have found an issue to be fairly included when it was raised in the district court and the parties presented it in their appellate briefs. On the other hand, an issue was not fairly included when it was not raised in the district court.

On appeal, duPont advances a new argument with respect to Simoneaux’s retaliation claim. In the district court, it posited that Simoneaux had failed to show that he engaged in protected activity because there was no evidence that his complaints related to a concern that duPont was defrauding the government. On appeal, however, duPont contends that Simoneaux could not have engaged in protected activity because he has not established a viable FCA claim. Those are distinct legal theories that rely on different authorities. Indeed, duPont acknowledges, perhaps inadvertently, that they are distinct.

DuPont maintains, however, that its argument in the district court was not limited to whether Simoneaux complained of fraud, but instead was that Simoneaux could not prove the elements of retaliation. DuPont seems to suggest.that by advancing one theory of why Simoneaux did not engage in protected activity, it has “fairly included” all other such theories. Such a conception of “fairly included”- is too broad, and this court has rejected a similar contention.

Moreover, duPont’s position runs counter to our waiver jurisprudence, which requires more than a cursory mention of an issue to deem it “raised.” Thus, the issue of whether Simoneaux’s retaliation claim fails as a matter of law because he cannot establish a viable FCA claim was not fairly included in the district court’s order, and so we have no appellate jurisdiction over it.

The denial of summary judgment for duPont on the reverse-FCA claim is REVERSED and REMANDED. With respect to the retaliation claim, the appeal is DISMISSED for lack of appellate jurisdiction.

      . The FCA may be enforced by either (1) a suit brought directly by the United States or (2) a qui tam action brought by a private person (called a "relator”) in the name of the United States. 31 U.S.C. § 3730(a)-(b); see also Rockwell Int’l Corp. v. United States, 549 U.S. 457, 463 n.2, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007) {"Qui tam is short for ‘qui tam pro domino rege quam pro se ipso in hac parte sequitur,’ which means 'who pursues this action on our Lord the Ring's behalf as well as his own.' ”).

      . The complaint was filed under seal to give the United States an opportunity to decide whether to intervene as állowed by 31 U.S.C. § 3730(b). It declined to do so but participates on appeal as amicus curiae in support of duPont’s position.

      . It is undisputed that the EPA has not assessed a penally on duPont or initiated any proceeding to do so.

      . See United States ex rel. Guth v. Roedel Parsons Koch Blache Balhoff & McCollister, No. 13-6000, 2014 WL 7274913, at *7 (E.D. La. Dec. 18, 2014), aff'd, 626 Fed.Appx. 528 (5th Cir. 2015) (per curiam).

      . Fraud Enforcement and Recovery Act of 2009, Pub. L. 111-21 § 4(a)(2), 123 Stat. 1617, 1623 (2009) (codified at 31 U.S.C. § 3729(b)(3)).

      . Id. § 4, 123 Stat. at 1617.

      . S, Rep, No. 111-10, at 14 (2009), as reprinted in 2009 U.S.C.C.A.N, 430, 441.

      . United States v. Bourseau, 531 F.3d 1159, 1169-70 (9th Cir. 2008); United States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189, 1201-02 (10th Cir. 2006); United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1237-38 (11th Cir. 1999) (en banc).

      . S. Rep..No. 111-10, at 14.

      . E.g., Bourseau, 531 F.3d at 1169-70; Bahrani, 465 F.3d at 1195; Hoyte v. Am. Nat’l Red Cross, 518 F.3d 61, 67 (D.C. Cir. 2008); Bain, 386 F.3d at 657; Am. Textile Mfrs., 190 F.3d at 738; Q Int’l Courier, 131 F.3d at 773; United States ex rel. Conner v. Salina Reg’l Health Cir., Inc., 459 F.Supp.2d 1081, 1091 (D. Kan. 2006); Zelenka v. NFI Indus., 436 F.Supp.2d 701, 705-06 (D.N.J. 2006); United States ex rel. Huangyan Imp. & Exp. Corp. v. Nature’s Farm Prods., Inc., 370 F.Supp.2d 993, 1000 (N.D. Cal. 2005). But see Pickens v. Kanawha River Towing, 916 F.Supp. 702, 708-09 (S.D. Ohio 1996); United States ex rel. Sequoia Orange Co. v. Oxnard Lemon Co., No. CV-F-91-194, 1992 WL 795477, at *9 (E.D. Cal. May 4, 1992). We note that American Textile disapproves of Pickens, a decision from a district court within the Sixth Circuit. See Am. Textile Mfrs., 190 F.3d at 735.

      . Howell v. Town of Ball, 827 F.3d 515, 530 (5th Cir. 2016) (quoting Dresser Indus. v. United States, 238 F.3d 603, 614 n.9 (5th Cir. 2001)).

      . This court repeatedly cautions against use of legislative history unless the text of a statute is ambiguous, which this text is not. E.g., Carrieri v. Jobs.com Inc., 393 F.3d 508, 518-19 (5th Cir. 2004). Nonetheless, we may cite the legislative history to give additional confirmation to the conclusion we have already reached by consulting the plain text.

      . Fraud Enforcement and Recovery Act of 2009, S. 386, 155th Cong. § 4(a) (as reported by S. Comm, on the Judiciary, Apr. 22, 2009).

      . 155 Cong. Rec. S4531, S4543 (daily ed. Apr. 22, 2009).

      . United States v. Ceballos-Torres, 218 F.3d 409, 414 n.6 (5th Cir. 2000), amended by 226 F.3d 651 (5th Cir. 2000).

      . 155 Cong. Rec. at S4539.

      . As Simoneaux observes, in several of the cases that duPont relies on, the courts cited pre-FERA cases without discussing the new definition of "obligation.” For example, in Guth — the Eastern District of Louisiana case that persuaded the district court here to certify its order — the court cited to Marcy without addressing FERA. Guth, 2014 WL 7274913, at *7. It does not appear that any of the parties raised the issue. On appeal, this court similarly cited Marcy without discussing FERA. Guth, 626 Fed.Appx. at 534. Simoneaux is right that this weakens the persuasive value of those cases. But he does not offer cases that support his position.

      . United States ex rel. Nissman v. Southland Gaming of the Virgin Islands, Inc., 182 F.Supp.3d 297, 314-16 (D.V.I. 2016); United States ex rel. Booker v. Pfizer, Inc., 9 F.Supp.3d 34, 49-50 (D. Mass. 2014); United States ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, No. 12-1562-SLR, 196 F.Supp.3d 436, 446, 2016 WL 4051266, at *8 (D. Del. July 26, 2016); United States ex rel. Scharber v. Golden Gate Nat'l Senior Care LLC, 135 F.Supp.3d 944, 966 (D. Minn. 2015); United States ex rel. Boise v. Cephalon, Inc., No. CIV. A. 08-287, 2015 WL 4461793, at *1 n.l (E.D. Pa. July 21, 2015); United States ex rel. Kane v. Healthfirst, Inc., 120 F.Supp.3d 370, 388 (S.D.N.Y. 2015).

      . The fact that the FCA penalty likely will vastly outweigh the Tide 18 fine is further evidence that Congress did not intend , the FCA to operate as Simoneaux describes.

      . Title 19 U.S.C. § 1304(i), at issue in Customs Fraud, states,
      If at the time of importation any article [is not properly marked] there shall be levied, collected, and paid upon such article a duty of 10 per centum ad valorem, which shall be deemed to have accrued at the time of importation, shall not be construed to be penal, and shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause.

      . In a section on the intent of Congress, the statute also states, "It is the intent of Congress that the Administrator shall carry out this chapter in a reasonable and prudent manner, and that the Administrator shall consider the environmental, economic, and social impact , of any action the Administrator takes or proposes as provided under this chapter.” 15 U.S.C. § 2601(c):

      .Simoneaux asserts that the word "remit” implies that there is a "preexisting duty to pay” because there müst be something to forgive'. Thattheory does not withstand scrutiny. Under Simoneaux’s. view, even if the EPA had decided to impose a penalty of zero, thereby exercising its power to remit, duPont would still be liable under the FCA for the period in between violation and remittitur. But liable for what? Simoneaux has to say that in that interim period, duPont had some amorphous duty to pay a penalty somewhere between $0 and $37,500 per day, notwithstanding the fact that the EPA ultimately adjudicated the value at zero. The text of the TSCA does not support the existence of such a Schrodinger’s Penalty,

      . N’Jai v. U.S. EPA, No. 13-1212, 2014 WL 2508289, at *17 (W.D. Pa. June 4, 2014) ("Despite the statute’s use of the word ‘shall,’ the foregoing provisions do not demonstrate a Congressional intent to circumscribe the EPA Administrator's enforcement discretion.-”).

      . Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1142 (11th Cir. 1990) (emphasis added); see also Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 1001 (9th Cir. 2000) ("If a district court finds a violation, then civil penalties ... are mandatory.") (emphasis added). These decisions, all outside of the FCA context, merely clarify that a district court or agency cannot simultaneously find a person liable under 33 U.S.C. § 1319(d) 'and impose a penalty of zero. See Deepwater Horizon, 753 F.3d at 575 n. 11. They do not create an exception to Bain and Morey's rule that regulatory penalties are not "established” in advance of assessment.

      . Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996)).

      . Yamaha, 516 U.S. at 205, 116 S.Ct. 619 (citation omitted); Accord Koch Foods of Miss., L.L.C. v. EEOC, 838 F.3d 540, 548 n.16 (5th Cir. 2016) (citing cases).

      . Castellanos-Contreras, 622 F.3d at 399; see also Yamaha, 516 U.S. at 205, 116 S.Ct. 619 ("[T]he appellate court may address any issue fairly included within the certified order....”) (emphasis added); United States v. Caremark, Inc., 634 F.3d 808, 811 n.l (5th Cir. 2011) ("[W]here an issue is not fully developed in the district court, we may decline to reach it [on interlocutory appeal].”).

      . Melder v. Allstate Corp., 404 F.3d 328, 330-31 (5th Cir. 2005); see also Caremark, 634 F.3d at 815 n.8.

      . Dehoyos v. Allstate Corp., 345 F.3d 290, 297 n.5 (5th Cir. 2003).

      . In the district court, duPont did not even cite the case it now relies on for its non-viability theory.

      . DuPont states, "Further, the court in George does not actually discuss whether there was a viable FCA claim, but rather whether the plaintiffs internal complaints were focused on fraud on the government.”

      . See Dehoyos, 345 F.3d at 297 n.5 (citations and quotation marks omitted). There, we stated,
      Appellants also urge us to entertain two additional theories of preemption. The first argument, dubbed the "filed rate” argument, is presented to us for the first time in this interlocutory appeal.... [W]e consider issues raised for the first time on appeal only in extraordinary instances ... to avoid a miscarriage of justice. Moreover, although we have discretion to review on interlocutory appeal those issues which are "fairly included” in the appeal, we do not deem this argument to be fairly included, as it is, at best, ancillary to Appellants’ primary arguments in support of preemption.

        . E.g., FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) ("[I]f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court. If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal.”); McIntosh v. Partridge, 540 F.3d 315, 325 n.12 (5th Cir. 2008) ("In his brief, McIntosh occasionally mentions an ‘equal protection’ claim in conjunction with his due process claim, but this claim is inadequately briefed and is hence waived.”); Raj v. La. State Univ., 714 F.3d 322, 330 (5th Cir. 2013); Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313, 324 (5th Cir. 2013).