                       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comments from the separate record for the rule that was withdrawn.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
                                                 1
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,



                                                2
                  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.

                                                3
(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



                                                  4
“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


                                                 5
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
                                                  6
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



                                                  7
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,



                                                8
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.




                                                  9
                                    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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