of Columbia, 261 U.S. App. D.C. 163, 821 F.2d 651, 670-71 (D.C. Cir. 1987). The Defendants feebly contend that such a delay is reasonable given cost considerations for regulated entities to comply with the new cage requirements. See A.R. at 575 (54 FR 10904 (1989)). However, the Defendants can point to no authority in the statute to support its contention that cost was a major concern of Congress in the Act. In fact, the agency recognized that cost considerations might not be compatible with the Act's goal of a socially acceptable level of animal welfare. A.R. at 1962 (Final regulatory Impact and Regulatory Flexibility Analysis of APHIS Animal Welfare Regulation, Part 3, Standards, Subparts A and D, USDA, at 1 (January 1991)). In addition, this three year delay is contrary to the agency's own preliminary finding in 1990 that, "in light of availability of primary enclosures meeting our proposed minimum space standards, we do not believe that it is necessary or appropriate to provide for variances from the proposed provisions." A.R. at 1405 (55 FR 33467 (1990)). Finally, the delay is contrary to the Defendants' own original finding that existing minimum space requirements were inadequate. See A.R. at 1401 (55 FR 33463 (1990)); A.R. at 590 (54 FR 10919 (1989)).
For these reasons, the Court believes that the delay provided for in the regulations constitutes agency action unlawfully withheld and is arbitrary and capricious.
D. THE REGULATIONS VIOLATE THE APA BECAUSE IT PERMITS THE USE OF SPECIAL CAGES TO AVOID COMPLIANCE WITH THE ACT.
The Plaintiffs complain that regulations permit regulated entities to avoid complying with the Act's requirements for minimum cage size by allowing special so called "innovative" cages. C.F.R. §§ 3.6(d), 3.80(c). More specifically, the Plaintiffs contend that the regulations permit regulated entities to use any cage that provides an animal with a sufficient volume of space and the ability to express species typical behavior. 9 C.F.R. §§ 3.6(d), 3.80(c). However, the Defendants note that such innovations may only be used after approval by the USDA (in the case of animal dealers and exhibitors) or by the Committee at individual research facilities. Id. The Defendants defend these provisions, saying that establishing a mechanism for approval of innovative enclosures will likely foster continuing research in engineering and animal behavior. A.R. at 1923 (56 FR 6471 (1991)).
However, the Court can find no support in the regulations for permitting the cage sizes for animals to be decreased, particularly where these reductions can be made by regulated research entities without any oversight by the agency. The Defendants have not provided any authority under the Act for permitting the use of these innovative cage designs. In fact, this provision allows the regulated entities tremendous discretion to use whatever size cage they feel appropriate and would render the Secretary's regulations for minimum cage sizes ineffective, contrary to the Defendants' own finding that greater space is needed for animal cages. See Section III.(C) supra.
Therefore, the Defendants' provision for special innovative cages is contrary to Congress' desire to provide humane standards for the care and treatment of animals and is arbitrary and capricious.
E. THE REGULATIONS PROMULGATED BY THE DEFENDANT SECRETARY DO NOT VIOLATE THE FOIA BECAUSE THE DEFENDANTS HAVE ACTED IN A MANNER THAT AVOIDS THE RIGHT OF ACCESS BY THE PUBLIC TO INFORMATION REGARDING THE CONDUCT OF THE REGULATED ENTITIES PERTAINING TO THE TREATMENT OF ANIMALS UNDER THE ACT.
The Defendants' regulations permit regulated entities to keep their plans under the Act "on-site" and permit the USDA, but not the public, access to them there. See 9 C.F.R. § 3.80. As a result, the public may not have access to this information under the FOIA. The Plaintiffs contend that this method of enforcing the Act violates the Freedom of Information Act ("FOIA").
The Court notes that the FOIA is a disclosure statute that deals with "agency records," which are documents either created or obtained by an agency and under agency control at the time of the request. See Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989). Our Circuit Court of Appeals has held in Critical Mass Energy Project v. NRC, 975 F.2d 871, (D.C. Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3456 (Dec. 17, 1992) (No. 92-1043), that the FOIA does not obligate agencies to "exercise their regulatory authority in a manner that will maximize the amount of information available to the public." Id. at 880. Therefore, in this respect there is nothing this Court can do about this, however much it might be inclined to do so.
Moreover, the Plaintiffs admit that the regulated entities' plan under the Act when stored "on-site" does not constitute an "agency record" under the meaning of the FOIA. See Plaintiffs' Memorandum in Support of its Motion for Summary Judgment, at 33. In addition, the Defendants are not withdrawing from public access any documents that were once public.
Therefore, these materials are not technically subject to the FOIA and the Defendants' regulations circumvent another Congressional enactment here which, as indicated above, is beyond the control of this Court.
The Court is hopeful that Congress and the new and distinguished Secretary of Agriculture will take another hard look at this issue in light of the legislative history of the Animal Welfare Act and its finding that it is essential to enact regulations to "insure that animals intended for use in research facilities or for exhibition purposes . . . are provided humane care and treatment." See 7 U.S.C. § 2131.
For all the reasons previously stated, the Plaintiffs' Motion for Summary Judgment shall be granted and the Defendants' Motion for Summary Judgment shall be denied. The Court further holds that the agency's regulations promulgated under the Improved Standards for Laboratory Animals Act ("Act"), 7 U.S.C. §§ 2143 et seq., are arbitrary and capricious and contrary to law in violation of the Administrative Procedures Act. Therefore, the Court shall remand this case to the agency with the direction that it promulgate new regulations subject to Notice and Comment, without unnecessary delay, in accordance with the law articulated in this Opinion and in compliance with the Court's Order of even date herewith.
February 25, 1993
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - February 25, 1993, Filed
Upon consideration of all the papers filed in this case, the applicable law, the oral arguments of counsel, and pursuant to and for the reasons set forth in the Opinion of the Court, issued of even date herewith, it is, by the Court, this 25th day of February, 1993,
ORDERED that, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court shall substitute the Secretary of Agriculture as a Defendant in this action in place of Edward R. Madigan, the former Secretary who has left office; and it is
FURTHER ORDERED the Plaintiffs' Motion for Summary Judgment is granted; and it is
FURTHER ORDERED that the Plaintiffs shall have a Declaratory Judgment that the guidelines issued by the Defendant United States Department of Agriculture are inadequate and not reasonable and are arbitrary and capricious and contrary to law for the reasons set forth in the Opinion of even date herewith; and it is
FURTHER ORDERED that this action is remanded to the Defendant United States Department of Agriculture for promulgation of new regulations subject to Notice and Comment, without unnecessary delay, under the Improved Standards for Laboratory Animals Act, 7 U.S.C. §§ 2143 et seq.,, and in accordance with the Opinion of the Court on this date; and it is
FURTHER ORDERED that the above captioned case shall be, and hereby is, dismissed from the dockets of this Court with the understanding that the Plaintiffs may make further application to this Court in the event that the Defendants do not act with all deliberate speed in accordance with this Court's order and opinion of even date herewith.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE