UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
ORGANIC TRADE ASSOCIATION, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-1875 (RMC)
)
UNITED STATES DEPARTMENT, )
OF AGRICULTURE, et al., )
)
Defendants. )
__________________________________ )
MEMORANDUM OPINION
This case involves an Administrative Procedure Act challenge to one agency final
rule withdrawing another. Plaintiff Organic Trade Association has moved, inter alia, to
supplement the administrative record for the current challenge to the withdrawing rule with
comments from the separate record for the rule that was withdrawn. For the reasons stated
below, that motion will be denied.
I. BACKGROUND
The Court has laid out in detail the background for this case in its last opinion,
Organic Trade Ass’n v. U.S. Dep’t of Agric., 370 F. Supp. 3d 98 (D.D.C. 2019), and so recounts
relevant specifics only briefly.
On January 19, 2017, the last day of the administration of former President
Barack Obama, the United States Department of Agriculture (USDA) issued the final Organic
Livestock and Poultry Practices Rule (Final OLPP Rule), which made more stringent the
regulations that govern the certification of livestock as “organic” by USDA. See 82 Fed. Reg.
7042 (Jan. 19, 2017). On January 20, 2017, the first day of the administration of President
Donald Trump, the White House directed executive agencies to delay implementation of all
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pending regulations that had not yet become effective, which included the Final OLPP Rule. See
Mem. for the Heads of Exec. Dep’ts and Agencies, 2017 WL 280678 (Jan. 20, 2017). USDA
thereafter issued “Delay Rules” in February, May, and November 2017, each further delaying the
effective date of the Final OLPP Rule. See 82 Fed. Reg. 9967, 21,677, 52,643. The May 2017
Delay Rule was also accompanied by a separate notice seeking public comment on possible fates
of the Final OLPP Rule, which included implementation, indefinite suspension, further delay,
and withdrawal. See 82 Fed. Reg. 21,742 (May 10, 2017) (Options Rule). USDA ultimately
concluded both that there was a mathematical error underlying the Final OLPP Rule, and that it
did not have the statutory authority to issue the regulations in the Final OLPP Rule. In
December 2017 USDA proposed to withdraw the Final OLPP Rule on these bases, see 82 Fed.
Reg. 59,988 (Dec. 18, 2017) (Proposed Withdrawal Rule), and formally did so on March 13,
2018. See 83 Fed. Reg. 10,755 (Mar. 13, 2018) (Withdrawal Rule).
The Organic Trade Association (OTA) challenged the delays to the effective date
of the Final OLPP Rule in September 2017, and eventually challenged the Withdrawal Rule
itself. See Second Am. Compl. (SAC) [Dkt. 34-3]. After denial of the government’s motion to
dismiss, the parties have been working together to determine the scope of the Administrative
Record (Record) in preparation for summary judgment briefing. See Joint Mot. for Scheduling
Order Extending Defs.’ Deadline to File Answer & Setting Dates for Produc. of Admin. R. [Dkt.
78]. Although the parties have resolved several issues, OTA now asks for a court order to
include three additional sets of documents in the Record:
1. The “Office of Inspector General Report” cited in the Final
OLPP Rule. See 82 Fed. Reg. at 7044.
2. The “nine separate recommendations” of the National Organic
Standards Board (NOSB or Board) cited in the Final OLPP Rule,
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see id., as well as any written responses by USDA to those
recommendations. 1
3. The 6,675 comments to the Proposed OLPP Rule.
OTA also asks the Court to rename an NOSB document already included in the
Record, currently titled “Formal Recommendation,” because OTA believes the title gives a false
impression of the document’s development. Finally, OTA requests time to confer with the
government regarding a privilege log generated during parallel litigation in California. See Ctr.
for Envtl. Health v. Perdue, No. 18-CV-1763 (N.D. Cal. Mar. 21, 2018). This matter is ripe for
review. 2, 3
II. LEGAL STANDARD
In keeping with the principle that a court sitting to review agency action under the
APA does not engage in de novo review of the matter, judicial review is generally limited to the
administrative record. Camp v. Pitts, 41 U.S. 138 (1973). To facilitate such review, the law
requires that the agency identify and produce the complete administrative record. NRDC v.
Train, 519 F.2d 287, 291 (D.C. Cir. 1975). That record “properly consists of the materials
before the agency and no more nor less,” see Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 78
1
OTA asks separately for the same documents cited in the rule proposing the Final OLPP Rule,
see 81 Fed. Reg. 21,956, 21,958-59 (Apr. 13, 2016) (Proposed OLPP Rule), but both parties now
agree that the NOSB recommendations cited in the Proposed OLPP Rule are the same as those
cited in the Final OLPP Rule.
2
See Mot. to Complete the Admin. R. & Correct an Error in the Existing R. and Suggestion of
Further Conferral Between the Parties [Dkt. 85]; Mem. of Law in Supp. of Mot. to Complete &
Correct the Admin. R. (Mem.) [Dkt. 85-1]; Defs.’ Opp’n to Pl.’s Mot. to Complete the Admin. R
& for Other Relief (Opp’n) [Dkt. 87]; Reply to Defs.’ Opp’n to Pl.’s Mot. to Complete & Correct
the Admin. R. (Reply) [Dkt. 88-1].
3
OTA moved to file its Reply brief because the parties’ joint proposed, and accepted, briefing
schedule did not provide for a reply. See Request for Leave to File a Reply Mem. [Dkt. 88]. The
Court will grant OTA’s motion.
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(D.D.C. 2018), which “includes all materials [the agency] directly or indirectly relied on to make
all decisions, not just final decisions.” Nat’l Wilderness Inst. v. U.S. Army Corps of Eng’rs, No.
01-0273, 2002 WL 34724414, at *3 (citing Amfac Resorts, LLC v. U.S. Dep’t of the Interior, 143
F. Supp. 2d 7, 10 (D.D.C. 2001)); see also CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014)
(“It is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing
court should have before it neither more nor less information than did the agency when it made
its decision.” (citations omitted)). “As part of the record, the Court may consider any document
that might have influenced the agency’s decision and not merely those documents the agency
expressly relied on in reaching its final determination.” Charleston Area Med. Ctr. v. Burwell,
216 F. Supp. 3d 18, 23 (D.D.C. 2016) (citing Nat’l Courier Ass’n v. Bd. of Governors of Fed.
Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975) (quotation omitted)). Indeed, to be
complete, the record must include “all materials that ‘might have influenced the agency’s
decision,’ and not merely those on which the agency relied in its final decision.” Amfac Resorts,
143 F. Supp. 2d at 12 (citations omitted).
An agency enjoys a presumption of regularity with respect to the administrative
record it prepares; as the decisionmaker, it is generally in the best position to identify and
compile the record. Pac. Shores Subdiv., Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F.
Supp. 2d 1, 5 (D.D.C. 2006) (“[A]bsent clear evidence to the contrary, an agency is entitled to a
strong presumption of regularity, that it properly designated the administrative record.” (citations
omitted)). Therefore, to prevail on a motion to supplement or complete the record, a plaintiff
must “put forth concrete evidence and identify reasonable, non-speculative grounds for [its]
belief that the documents were considered by the agency and not included in the record.”
Oceana, 290 F. Supp. 3d at 78-79 (citations omitted). If a court finds that the record produced
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“clearly do[es] not constitute the ‘whole record’ compiled by the agency,” it will order the
agency to complete the record. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 419
(1971) (quoting 5 U.S.C. § 706), abrogated on other grounds by Califano v. Sanders, 430 U.S.
99 (1977); see also Charleston Area Med. Ctr., 216 F. Supp. 3d at 23.
III. ANALYSIS
A. The Office of Inspector General Report
OTA first asks to complete the Record with the 2010 “Office of Inspector General
Report” cited in the Final OLPP Rule. See 82 Fed. Reg. at 7044. The government’s opposition
notes that this document is already included in the Administrative Record, and OTA does not
renew its request in its Reply. This request will be denied as moot.
B. National Organic Standards Board Recommendations and USDA Written
Responses
OTA next asks to complete the Record with the “nine separate recommendations
from the NOSB” cited in the Final OLPP Rule and USDA’s written responses thereto. 82 Fed.
Reg. at 7082. Specifically, NOSB issued recommendations dated June 1994, April 1995,
October 1995, March 1998, May 2002, March 2005, November 2009, October 2010, and
December 2011. See 81 Fed. Reg. at 21,958-59. Both parties acknowledge that three of those
recommendations—from May 2002, November 2009, and December 2011—as well as USDA’s
responses are already included in the Record because they were attached to comments to the
Withdrawal Rule.
OTA asserts that the remaining six recommendations should also be included
because (a) USDA considered them when developing the Final OLPP Rule, and (b) USDA
reviewed the Final OLPP Rule when developing the Withdrawal Rule. The government
responds that its review of the Final OLPP Rule was narrow and focused on mathematical errors
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in the Regulatory Impact Analysis (RIA) and USDA’s statutory authority to promulgate the Final
OLPP Rule, neither of which was affected by the NOSB recommendations or USDA’s written
responses thereto. That is to say, the government affirms that USDA “did not consider [the
omitted NOSB recommendations] at the time it made its decision to withdraw the [Final] OLPP
Rule.” Opp’n at 7.
The Court agrees with the government. USDA is entitled to a presumption of
regularity when developing the Administrative Record, and OTA provides no reason why the
bases for the Withdrawal Rule—mathematical error and review of statutory authority—were
affected by the missing NOSB recommendations or why the Court should find that USDA had
again considered those recommendations. In any event, OTA already has the benefit of the
conclusion USDA drew from the NOSB recommendations: the Final OLPP Rule itself. This
request will be denied.
C. Comments Filed in Response to the Proposed OLPP Rule
Similarly, OTA asks to complete the Record with 6,675 comments filed in
response to the Proposed OLPP Rule. As explanation for this request, OTA submits that these
comments were part of the “whole record” before USDA when it issued the Withdrawal Rule,
and that USDA relied on these comments in its decision to limit the duration of the comment
period to 30 days. OTA cites as an example USDA’s prior consideration of comments arguing
against its authority to promulgate the Final OLPP Rule and argues that USDA must have
revisited such comments when issuing the Withdrawal Rule. At bottom, OTA’s argument is that
USDA must explain the inconsistency between the Final OLPP Rule and the Withdrawal Rule.
See Reply at 8.
Agency action which changes prior policy is not subject to a “heightened
standard” of review under the APA, which “makes no distinction . . . between initial agency
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action and subsequent agency action undoing or revising that action.” FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009). An agency must acknowledge that it is changing its
policy and must provide good reasons for that change, “[b]ut it need not demonstrate to a court’s
satisfaction that the reasons for the new policy are better than the reasons for the old one; it
suffices that the new policy is permissible under the statute, that there are good reasons for it,
and that the agency believes it to be better which the conscious change of course adequately
indicates.” Id. (emphasis in original). That said, a more detailed justification may be necessary
where the “new policy rests upon factual findings that contradict those which underlay its prior
policy.” Id.
OTA argues that Fox Television Stations stands for the following syllogism:
comments to a proposed rule would be part of the record for a final rule; the APA “makes no
distinction between initial agency action and subsequent agency action undoing or revising that
action,” id.; therefore, comments to a first final rule should be part of the record for a subsequent
final rule that undoes the first final rule. See Reply at 7 (“The same symmetry should apply
here.”). OTA misreads Fox Television Stations and incorrectly collapses separate agency actions
into a single proceeding. Rather, the “symmetry” OTA asks for is to be found by requiring the
Withdrawal Rule to stand on its own record. While an agency must acknowledge a first final
rule and reconsider earlier factual findings if such findings are contradicted by a subsequent final
rule, OTA identifies no such facts here—only legal arguments and conclusions related to
statutory interpretation—and USDA has affirmed that it did not rely on the comments to the
Proposed OLPP Rule when crafting the Withdrawal Rule.
OTA also argues that the government provided only 30 days to comment on the
Proposed Withdrawal Rule “because interested parties had the opportunity to comment on the
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underlying OLPP final rule as well as the [Options Rule],” Withdrawal Rule at 10,781, which
must mean that the government reconsidered the comments to the underlying Final OLPP Rule.
This argument is unconvincing. The government argues that its point was merely that OTA and
other commenters were not faced with a novel issue necessitating research in the first instance,
such that 30 days was enough time to develop comments. See Opp’n at 11-12. The Court finds
that the government’s interpretation is the most sensible reading of the quoted language,
particularly since the Withdrawal Rule further elaborated that “commenters were on notice of the
proposal since November 14, 2017,” and the “proposed rule presented discrete issues that
interested parties should have been able to address within the 30-day comment period.”
Withdrawal Rule at 10,781. Indeed, the government notes that several commenters understood
this and resubmitted their comments to the underlying Final OLPP Rule in response to the
Proposed Withdrawal Rule. See, e.g., Ex. C, Withdrawal Rule Comment Resubmitting Final
OLPP Rule Comment [Dkt. 87-3].
In the same vein, OTA argues that USDA only discovered its mathematical error
“during the course of reviewing the rulemaking record for the OLPP final rule,” and so again
must have considered the comments to the Final OLPP Rule in developing the Withdrawal Rule.
But the Withdrawal Rule focuses only on specific, discrete issues, and OTA has not explained
why it follows that all of the comments to the Final OLPP Rule should be included in this
Record. Cf. Dania Beach v. FAA, 628 F.3d 581, 590-91 (D.C. Cir. 2010) (“Petitioners’ claim
that the supplementary documents would manifest FAA exaggeration of the problems . . . is too
generalized to support such a massive inflation of the record.”). Further, the Final OLPP Rule is
already part of the Record which means that USDA’s summaries of the comments it previously
received are included. More to the point, this means that USDA’s response to those comments,
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i.e., its explanation of why it previously believed it had statutory authority to issue the Final
OLPP Rule, is already part of the Record. This request will be denied.
D. Renaming the 2017 NOSB “Formal Recommendation”
OTA argues that the 2017 “Formal Recommendation” from NOSB to USDA is
improperly named because NOSB and USDA did not follow the process typically adhered to
when NOSB issues such recommendations, and the current title implies more in-depth
consultation than otherwise occurred. The government notes that NOSB itself gave the
document its title and argues that OTA cites no precedent that authorizes a court to rename
documents in an administrative record. OTA does not reply.
This request too will be denied. If OTA believes that the NOSB’s “Formal
Recommendation” was the product of less consultation than is required by statute, policy,
practice, or rule, it may argue the substance of that position on summary judgment.
E. Further Conferral
Finally, the parties disagree as to whether a privilege log pertaining to deliberative
materials generated as part of the parallel litigation in California should be included in the
Record for this case. OTA recognizes that under D.C. Circuit precedent, the government would
not have been required to generate the privilege log for deliberative materials in the first
instance. See Oceana v. Ross, 902 F.3d 855, 865 (D.C. Cir. 2019) (rejecting inclusion of
deliberative documents in the administrative record). OTA believes that a privilege log which
already exists may be treated differently, but both parties have declined to litigate the issue at
this time. OTA says that it still needs to confer with the government and the government says it
is willing to confer. Without a motion on this issue, the Court will not decide.
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IV. CONCLUSION
For the reasons stated above, Organic Trade Association’s Motion to Complete
the Administrative Record and Correct an Error in the Existing Record and Suggestion of Further
Conferral Between the Parties, Dkt. 85, will be denied, except for the request to further confer,
which requires no decision from the Court. A memorializing Order accompanies this
Memorandum Opinion.
Date: August 13, 2019
ROSEMARY M. COLLYER
United States District Judge
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