the plaintiffs challenge a department of agriculture decision not to adopt its nine hundred ninety nine draft policy regarding the treatment of primates in captivity the agency had previously determined that policy was point we actually agreeing with the industry interveners that had the strap policy can promulgated as a final policy it would have constituted a proposed regulation and and the industry certainly couldn't challenged it under section seven then your honor you have to go to section five fifty one thirteen of the administrative procedure five u s c if i think you won some part thirteen which defines what an agency action sir agency action includes the whole or part of an agency rule order license sanction relief or the equivalent or denial there of or failure to act and then your honor you have to go to five fifty one section four to find out what a rule is within the meaning of that section and under five fifty one subsection four a rule is defined to mean quote the whole or a part of an agency statement of general or particular applicability and future effect designed to implement interpret  prescribe law or policy that's exactly what the draft policy was intended to do has made absolutely clear your honor by the language of that draft policy as you what workers do you have  fair well that's what what's what there's no base obviously on of that has the precise facts of this case but there are cases that construe what constitutes a final agency action and the best case for that i guess would be the bennett versus spear case in which the court of appeal of the supreme court excuse me held that a biological opinion that was issued by the fish and wildlife service an opinion that went to the action agency as to whether or not that action agencies honor is the relief that is that is allowed under seven six two which is to declare the agency's decision to withdraw the pro's policy as are trying to piece this preacher center piece of discretion ultimately soon you take jurisdiction over this case right now we're just asking you to tell that to the district court judge  the relief would be to satisfy the decision to not to adopt the proposed policy and for the agency to reconsider what it is going to do in light of its findings that the current will force anybody in the real world to do anything whatsoever absolutely your honor in fact that's how the industry interviewers interpret just proposed policy they don't like it because it takes six blocks away from me how would you force anybody to do anything it time figuring out how this had an effect on the i won't i understand your honor and again i really do urge you to to read the language of the the applicable statutory provisions of the administrative procedure rac which make it very clear when you particularly when you combine it with what the agency itself has said this policy is intended to accomplish it makes it very clear that what we have here is a propos is a withdrawal of a proposed rule under the misrata procedure act that's exactly how the industry interveners construe this is well you're right or you understand the difference between withdrawing this proposal and was the all of a listing of a species is in danger everybody in the world now has a strong log of an incentive not to do this thing which is now been made i'm off by the regulation this policy you can keep doing what you're doing there's nothing that attaches this row became final if this policy became final then if that's the construction you give to this set of circumstances then the industry would have no ability to challenge the  because there are there we had a biological opinion and the but the agency taking the action ultimately decides what it's going to do it could ignore that biological opinion it may do so and it's  court held that when is what is significant for finding a final agency action is whether or not that biological opinion has some determinant of the effect on the action agency and here particularly when you have neighbor the interven coming in and saying this certainly would have a determinative of fact this policy is finalized would take away all of our just question that we hear just for have enjoyed under the current standard if this policy were enacted we would no longer have agriculture and other officials to their official capacity and i will be sharing my time with with mr long national association biomedical research and  this situation if the agency had not adopted the regulation that was compelled by statute under statutory obligation to act to promulgated the regulation that's what it did in section three point eight one that was challenged unsuccessfully by plane to fail the f and others in the d c circuit at the time you put it at the time your agency proposed this interpretive rule it was not clear to that agency that its existing regulation would be upheld as sufficient under the statute so right i mean i think that's why you proposed well your honor if the case was pending in the d c circuit at that time that point was uncertain as to whether existing regulation was sufficient it had not been finally decided yes and that's what was being litigated you get sort of the argument in the last rule that you now have is insufficient fully and partly to implement the statute while that litigation is going on in virtually interminably you propose this rule when you finally when you get the loser standing argument that you finally went on your argument to the existing will a sufficient lo and behold you say well you know i guess we don't need this proposal i mean that's th motivation for it but but in any event even if the even if the original rule if the regulations had been struck down that would not have necessarily that would not have transformed this into an the new regulation there would have to have been a new regulatory process it to promulgated regulations this might have been folded into that but this was this was a separate and independent matter that was argued arguably supplementing the or potentially supplementing the existing regulation by the attention you paid in your brief to the standing argument fifteen pages or so by comparison the five pages on all this minister just standing argument i gather you didn't even make in the district court no your honor we did make stuff well that's your honor that is because in our view first first the a p a issues are relatively clear and secondly the it's much harder to to present the full fledged standing issues which of course were the subject of the non bank decision in the d c circuit well but again as judge kozinski has pointed out it's not even clear that the that the that the intervenor would would really be in a position to challenge that either because it's a safe harbor and it doesn't really require them to do anything and saying you're brief but you really really you really mean that well yes your honor we for the reasons stated in the in the dissent to nail the f in the d c circuit we believe that this is simply too subjective to constitute it's not like the environmental cases where there is clear environmental degradation of some sort or even cases where there were animals are being are being physically decimated killed or wounded there you have a tangible and concrete injury but here because of the nature of environment we're talking about injury to the person who's motional reaction is a mistake right but it is but in those in those contacts that is invariably if it's flows from an injury that is more concrete and tangible then then the when they have please the court i am robert long representing the intervenor national association of biomedical research on standing i would simply say if you're going to make this fanning argument it does take a number of pages to make the argument the a p a argument which we think is very strong can be made in just a few pages so i don't think in this case length reflects the of the one argument is stronger than the other i would also say i i understand the supreme court's decision in steel company whether there is final agency action under the a p a is surely a jurisdictional issue so the court can decide either one of these issues just as the district court did it doesn't have to it doesn't have to decide both on no final agency action i think the only point i would add other were a number of references to the supreme court's decision in bennett the spear and talk about the definitions of final agency action and so forth well invent it against spear it says is the definition of final agency action two conditions must be satisfied first the action must mark the consummation of the agency's decision making process and second the action must be one by which rights or obligations have been determined or from which legal consequences will flow well you know they thought about doing this draft policy and then they decided not to do it they are going to put together some best practices guidelines with the national institutes of health so i mean whether they've really consummated their process i don't know they've got a disagreement with the government at that point our view would be that it was some kind of an interpretive real rule they were saying what they thought this they had they adopted it right it would have been in your view that adoption would been in your view a final action that you could have challenged that yes that would have been our view i think their view as well you know we were saying that this was one if that's all there is if the adoption would have had sufficient legal consequences that it would have been finally dreich agency action such that you could have challenged it why is it not also true that the refusal to adopt it has sufficient legal consequences that it's not final action well because it's it doesn't change the status quo if the mean the agencies think about doing things all the time not following that is to say i think you've just gone this far with me and that is to say had the undoctored it it would have had legal consequences such that it could have been challenged that's our view now not adopting a petition for rule making i mean that's actually something that's open to the plaintiffs here and under the a p i if you actually asked for a rule then the agency if it doesn't want to do it has to give some sort of explanation it gets extremely deferential review biggs's actually because of heckler against cheney because not having a rule i mean there are really potentially infinite number of rules an agency might think about i'm not here discussing what the standard of review would be or how deferential would if the agency comes in and explains i mean that's a different question the question really is whether or not they should be asked to explain but i would like to briefly come back i want to answer your question but i actually think if you ever got to that issue because it would be such deferential review they have given an adequate exploit you go actually we're giving it yourself it has to do with the context in which this occurred the lawsuit what they were arguing to the d c circuit but i want her i didn't hear midst of the lawsuit when the district court it actually held that the regulations were insufficient and while it was pending the agency argued to the court the regulations are sufficient and the d c circuit in its opinion if you i mean if you just read it they said you know there are many different kinds of primates they have many different needs we have situations whether you know they may be exposed to disease there are you know lots of situations where we would not necessarily want to have them in social groups even when they're having the so called species typical behavior like and let me ask you the following question is it your position and i'm not asking you to concede characterizations as applied to the facts of this case so this is a relatively abstract question that the that that withdrawal without explaining it's not traditionally yes matt my contention is that's not final agency action and i think that's correct but if you haven't and it's not an election because because the gauges it hasn't done anything it's  not it's it has not changed any legal rights or obligations i mean that's if the agency merely thinks about doing something but the sides not to act that nothing has happened if that so how do you respond in the cases whe answer is they have done nothing and they are not required to do anything but congress told them to do regulations but still that's not a sufficient answer because while the doctrine of a listing of an endangered species will require others then subject to the rule to do something there's nothing in the premises of the question that the agency is required to adopt this particular listing they might or might not yet nonetheless the refusal to withdraw under this generally doctrine you can't put words in the agency's mouth and usually you have to read them and but if we are sure that the agency if we remained of the case would reinstate its decision and if in other words the error is harmless a reversal would be futile and china really does not discretion by adopting they came up with in one thousand nine hundred ninety one are no longer adequate to fill that statutory obligation and something more is needed and what they came up with were the requirements that they embodied in the strath policy and the way you want to also because our inspectors have no idea what is required allowed under these regulations we have to give them more specific requirements that must and that's fair word be included in these environmental enhancement plans and because the agency is under an obligation to promulgated adequate standards it's still year to withdraw all of this this draft policy under these circumstances with no explanation whatsoever is reviewable by this court and we would ask the court because of the d c case