The opinion of the court was delivered by: GREEN
On January 31, 1978, defendants in this case moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff filed a memorandum in opposition to the motion on February 13.
On March 31, the Court issued an Order giving the parties notice that it wished to consider materials presented by the parties but outside plaintiff's original pleading. Accordingly, the Court set a date for the submission of summary judgment motions.
These summary judgment motions have now come before the Court. In addition, the Court has considered a statement of points and authorities submitted by plaintiff in opposition to defendants' motion. The Court concludes that certain issues raised in plaintiff's complaint are not ripe for judicial review. Others are fit for adjudication but the Court finds the administrative actions involved were not arbitrary and capricious, abuses of agency discretion, or otherwise contrary to any federal statute. Defendants' motion for summary judgment is therefore granted and the case is dismissed.
The material issues in this case are not in dispute. On October 18, 1977, the Department of Agriculture published a notice in the Federal Register entitled "NITRATES AND NITRITES IN MEAT PRODUCTS Statement of Policy, Request for Data." 42 Fed.Reg. 55626 (1977). The document reads in part,
SUMMARY. The Administrator has determined that nitrates and nitrites as currently used in manufacturing cured meat products Have the potential of interacting with components of the meat to form carcinogenic nitrosamines. As a result, he has established a program For obtaining from the industry information required to resolve definitive questions about the safety of the continued use of nitrites and nitrates in such products. (Emphasis supplied.)
The document goes on to establish a deadline for submission of data bearing on the question of "whether" use of nitrites and nitrates in the production of bacon results in the formation of carcinogens. A series of deadlines are set for submission of data "to demonstrate if carcinogenic nitrosamines are formed in cured products other than bacon . . . ."
The notice then prescribes the cooking conditions upon which "data to demonstrate that the use of nitrates and/or nitrites in the production of bacon does not result in the formation" of carcinogens shall be based. The notice also solicits suggestions as to the cooking conditions and testing procedures to be required in the preparation of any data "to demonstrate whether carcinogenic nitrosamines are formed in cured products other than bacon."
The phrases just quoted indicate the Department of Agriculture is gathering data on the issue of whether the use of nitrates and nitrites to cure certain meat products has carcinogenic effects. The clear implication is that the Department has yet to reach a firm conclusion on the carcinogenic potential of nitrates and nitrites and on any regulatory steps that future findings might justify. However, the picture is then confused by additional provisions in the notice. It states there is "limited, but existing knowledge that carcinogenic nitrosamines have been found in several samples of these products" and, in particular, that "(data) made available to the Department . . . indicate that carcinogenic nitrosamines are being found in samples of bacon as prepared for eating." These statements are significant in light of the document's crucial paragraph:
After review of all data now available to the Department and submitted pursuant to this notice the Administrator (of Food Safety and Quality Service) will determine The action to be taken to ban the use of nitrates and/or nitrites in the production of bacon and other cured products unless it is shown that the use of nitrates and/or nitrites will not result in the formation of carcinogenic nitrosamines in Any samples of that product . . . " (Emphasis added.)
Plaintiff contends that since the Department has "existing knowledge" that carcinogenic nitrosamines have been found in samples of the pertinent meat products, it already has concluded that the "any samples" requirement cannot be met. Therefore, plaintiff reasons, in effect the decision to "ban" nitrates and nitrites has been reached already; the request for further data is perfunctory; and a "final" agency action has been taken without the necessary recourse to the rulemaking procedures contained in the Administrative Procedure Act, 5 U.S.C. § 553. Plaintiff asks this Court to set aside the "Statement of Policy, Request for Data" until the rulemaking procedures of the APA have been complied with and certain findings alleged to be required by the Federal Meat Inspection Act, 21 U.S.C. § 601 Et seq., have been made.
The Court rejects plaintiff's contention that the October 18 notice indicates, by its terms, that it is the final step the Department plans to take regarding a possible ban on the use of nitrates and nitrites in curing certain meat products. The wording of the notice is not as clear as it should be, but its overall tenor suggests the agency is reserving judgment on the action to be taken until interested parties have a chance to submit additional data in rebuttal to the evidence already before the Department. In its "summary" of the notice, the Department characterizes the carcinogenic effects of nitrates and nitrites as a "potential," not a certainty. Furthermore, the document is described as establishing "a program for obtaining from the industry ...