this Court, because in fact there has been no ban on nitrites. What is before the Court is the issue of the legality of the Department's October 18 notice in which the Department converted its statutory burden of proving nitrites unsafe into a burden on the meat industry to prove them safe." At 9.
Insofar as plaintiff characterizes its complaint as including an allegation of a shift in the burden of proof in violation of the Federal Meat Inspection Act,
the plaintiff states a claim which is ripe for adjudication. However, it does not have merit.
21 U.S.C. § 677 authorizes the Secretary of Agriculture and his designees to "prosecute any inquiry necessary to his duties under this chapter." When, as an element in such an inquiry, the Department affords private industry an opportunity to rebut information in the Department's possession, no allocation of a "burden of proof" is involved. In fact, the chance to learn of adverse evidence upon which an agency might rely, and to be heard in response, are key elements of due process. The Court concludes that the request for information by the Department was not arbitrary and capricious.
Plaintiff alleges in subparagraph 15(e) of its complaint that "(t)he Department knew or should have known that any announcement by it of an impending ban . . . would be received among consumers as an official warning for them to curtail their purchases of cured meat products containing nitrates and/or nitrites, to the resulting irreparable harm of processors engaged in manufacturing these products." It follows, plaintiff argues, that publication of the notice was arbitrary and capricious.
Once again plaintiff attempts to portray aspects of due process as being the opposite of what they are. The government asserts in substance that the October 18 notice is a preliminary information-gathering step in a notice-and-comment proceeding being undertaken in accord with 5 U.S.C. § 553. The Chief Judge of the Court of Appeals for this circuit has written that when agency rulemaking under § 553 works properly, "the agency must make continuous disclosure of the facts and assumptions on which it intends to rely in promulgating its rule." Wright, "The Courts and the Rulemaking Process: The Limits of Judicial Review," 59 Cornell L.Rev. 375, 381 (1974).
Another prominent commentator has concurred. "Every party cannot have the last word and some cutoff is necessary, but a main objective of § 553 procedure should be, as far as practicable, to let anyone comment on all the facts and all ideas that the agency considers." Davis, Administrative Law of the Seventies § 6.01-3 at 179 (1976). It is a "rather fundamental proposition" that "parties must have an effective chance to respond to crucial facts." Id. at § 6.01-1-1 (July 1977 Cumulative Supplement).
When a government agency complies with directives such as these and permits private parties a look at its decision-making in process, those parties cannot complain that such disclosures are arbitrary and capricious.
Plaintiff alleges in subparagraph 15(g) of its complaint that the "imposition" of testing and information-reporting functions on meat processors is so burdensome as to be arbitrary and capricious. The Court rejected this argument in its November 11, 1977 Order denying plaintiff's motion for a temporary restraining order and a preliminary injunction, and rejects it now. The October 18 agency notice indicated that the Department of Agriculture had already gathered data on its own, but that the knowledge which had been gained thus far was "limited" and that the request for private testing was based at least in part on "limited national laboratory capability to simultaneously analyze all . . . categories of products." There might well be a point at which a government agency's attempt to direct private parties to conduct experimentation might be an impermissible default of its information-gathering duties under a regulatory statute, but the point has not been reached here.
The Court notes, moreover, that the October 18 notice states the "data requested may be submitted by industry associations" as well as by individual processors, which provides a means of reducing individual expense and effort. Since the Department has undertaken testing of its own, called for rebuttal information in accord with sound principles of due process, and suggested a practical means of providing additional data at reduced expense, its actions are not arbitrary and capricious.
This conclusion would not change even if, as subparagraph 15(i) of the complaint alleges and as affidavits submitted by plaintiff contend, each individual processor has to conduct its own tests due to the unique character of its product. According to the affidavits, the cost of testing each unique product type would come to a maximum of $ 750.-1000. Whether this cost is borne by an individual processor or distributed among several of them, it is not so great as to be arbitrary and capricious.
This is particularly true when considered in light of two related points. First, the Department is, after all, trying to gather data to verify preliminary findings that the products in question might cause cancer. The public's interest in establishing the healthfulness or lack of such for each unique species of product is easily great enough to justify the imposition of the cost involved, no matter how it is allocated.
Second, the suggestion that methods of processing meat are not at all standardized, and that potentially carcinogenic curing substances are being used in ways that defy any effective testing on a large scale, is a point in favor of placing the burden on individual processors rather than on a single regulatory agency.
The last allegation to be considered is stated in subparagraph 15(h), to the effect that the deadlines set by the Department for the submission of test results are so stringent as to be arbitrary and capricious. Other than for bacon, which has been the focus of research between the Department and private industry, the deadlines imposed in October ranged from six to twenty-four months, depending on the product. These dates suggest the Department is sensitive to the possibility that different products might raise different testing problems. The Court concludes that these deadlines are not arbitrary and capricious with regard to either the specific time frames established or the variation among them.