The opinion of the court was delivered by: ROBERTSON
This FOIA action by two public interest organizations challenges EPA's response to their requests for information about the ingredients of six commercial pesticides. The American Crop Protection Association (ACPA) intervened on the side of EPA. The parties have all filed motions for summary judgment and presented extensive oral argument. At the center of this case is plaintiffs' claim that EPA has improperly interposed the manufacturers' claims of "trade secret" protection for the common names and Chemical Abstract System (CAS) numbers of the inert ingredients used in these pesticides. For the reasons stated in this opinion, the motions for summary judgment of plaintiffs and of defendant Browner will each be granted in part and denied in part. The motion for summary judgment of intervenor ACPA, to the extent it seeks relief or propounds a theory different from that of defendant Browner, will be denied.
Before a pesticide may be registered for sale in the United States, its manufacturer is required by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), 18 U.S.C. § 136, to provide to the Environmental Protection Agency a complete statement of its formula, including the identities of all ingredients.
Pesticide ingredients that are specifically intended to harm or kill the target plant or animal are called "active" ingredients. Active ingredients must be identified on pesticide product labels.
Pesticide ingredients that are not "active" are called "inert." FIFRA § 2(m), 7 U.S.C. § 136(m). Only those inert ingredients that EPA has determined to be of "toxicological concern" are required to be identified on product labels. 40 C.F.R. §§ 156.10(g)(1) & (7); 52 Fed. Reg. 13305, 13307 (1987). EPA found approximately forty inert ingredients to be "of toxicological concern" after testing them and has determined that approximately sixty-five others are potentially toxic. Those sixty-five inert ingredients have been assigned a high priority for further testing. 52 Fed. Reg. 13305, 13306 (1987); 54 Fed. Reg. 48314 (1989). More than two thousand inert ingredients are used in pesticides, however, and most of them have not been tested by EPA or evaluated for toxicity.
On April 8, 1991, plaintiffs sent a FOIA request to EPA seeking copies of the Confidential Statements of Formula for six pesticides. The request noted plaintiffs' "particular interest in the identity of inert ingredients, as opposed to percentages of the ingredients . . . ." On May 28, 1991, EPA issued an "initial denial" of the request, reciting its finding that the records "may contain trade secrets, or commercial or financial information which is exempt from disclosure under 5 U.S.C. § 552(b)(4)." Plaintiffs appealed from that initial denial on July 3, 1991. On December 17, 1991, EPA released partial copies of the Confidential Statements of Formula for three of the six pesticides but blocked out the identity of all inert ingredients except, in the case of one pesticide, the identity of the ingredient water. For the other three pesticides, EPA's December 17, 1991 action withheld the Confidential Statements of Formula in their entirety. On February 18, 1992, EPA notified plaintiffs that it had made a final determination denying further disclosure, again invoking 5 U.S.C. § 552(b)(4).
Plaintiffs wrote to EPA nearly two years later, on March 4, 1994, requesting reconsideration. Plaintiffs recited their reliance on EPA's own regulation, 40 C.F.R. § 2.205(h), which provides for another round of comments where "an earlier determination no longer describes correctly the information's entitlement to confidential treatment because of change in the applicable law, newly discovered or changes facts, or because the earlier determination was clearly erroneous." In their 1994 request, plaintiffs asserted that "more information about the toxicity of inert ingredients continues to come to light since EPA's denial of the FOIA request." They also invoked memoranda issued by president Clinton and Attorney General Reno which, plaintiffs asserted, "broadened federal agencies' obligations to disclose information" pursuant to FOIA. Plaintiffs received no response to their request for reconsideration, and they initiated this action.
Plaintiffs have framed their complaint in two counts. The first count alleges that EPA made its decision to withhold the requested information without properly applying the criteria established by its own regulations, 40 C.F.R. § 2.208. This first count invokes the Administrative Procedure Act § 706(2)(A) and 706(2)(D), asserting that EPA's action was not in accordance with the law and not in accordance with procedures required by law. The second count, brought directly under the Freedom of Information Act, asserts that information identifying the inert ingredients of the six pesticides is not trade secret information or confidential information within the meaning of 5 U.S.C. § 552(b)(4).
EPA's response to the first count, set forth in its motion for summary judgment, is that EPA did follow the proper procedures in reaching its determination, but that EPA is not required to incorporate a discussion of each of its decision criteria in its determinations and that, in any event, the Administrative Procedure Act does not provide an available vehicle for relief. As for the second count, EPA argues on the merits that the information it withheld from plaintiffs is in fact covered by the fourth exemption to FOIA as a trade secret, or confidential commercial information, or both. So framed, the issues required further explanation of the statutory and regulatory scheme and particularly of the interplay between FIFRA and FOIA.
EPA's Confidential Statement of Formula form requires that each component in a formulation be listed. For each component, the form must set forth the commonly accepted chemical name, trade name, and CAS number; the name and address of the suppliers; the EPA registration number; the amount and percentage by weight; and the purpose of the component in the formula. The Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") requires that the complete formula of a pesticide be filed with EPA, and it also provides that an applicant for registration may mark any portions of data it submits "which in the applicant's opinion are trade secrets or commercial or financial information." FIFRA also states that EPA is not to make public information which in the Administrator's judgment contains or relates to trade secrets or commercial or financial information obtained from a person and privileged and confidential, FIFRA § 10(b), 7 U.S.C. § 136h(b).
1. Plaintiff's FOIA Claims
Intervenor ACPA argues that all information pertaining to pesticide inert ingredients is per se exempt from disclosure under FOIA Exemption 3, 5 U.S.C. § 552(b)(3), and FIFRA § 10(d), 7 U.S.C. § 136h(d). FOIA Exemption 3 provides for the withholding of information that another federal statute prohibits from disclosure, if the other statute "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). ACPA argues that FIFRA § 10(d)(1)(C) is such a withholding statute. EPA does not support this argument and has not invoked Exemption 3 in withholding the information in dispute.
The plain language of FIFRA § 10 does not satisfy the narrow requirements of Exemption 3. FIFRA§ 10(b) provides that, "subject to the limitations in subsections (d) . . . the Administrator shall not make public information which in the Administrator's judgment contains . . . trade secrets or confidential commercial information." 7 U.S.C. § 136h(b). One of these limitations is found in subsection 10(d)(1), which provides that test results and information regarding the safety of a pesticide "shall be available for disclosure to the public." 7 U.S.C. § 136h(d)(1). That limitation is itself limited by § 10(d)(1)(C), which provides that § 10(d) does not authorize disclosure of any information that "discloses the identity or percentage quantity of any deliberately added inert ingredient of a pesticide." 7 U.S.C. § 136h(d)(1)(C). FIFRA § 10 does not prohibit the disclosure of inert ingredients in the absence of the Administrator's judgment. The stringent test established in Reporters Comm. for Freedom of the Press v. United States Dept. of Justice, 259 U.S. App. D.C. 426, 816 F.2d 730, 735 (D.C. Cir.), modified on other grounds, 265 U.S. App. D.C. 365, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on other grounds, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1992), is not satisfied.
Exemption 4 of FOIA protects "trade secrets and commercial or financial information obtained from a person [that are] privileged or confidential." 5 U.S.C. § 552(b)(4).
Exemption 4 covers two categories of information in agency records: (1) trade secrets; and (2) confidential commercial information.
Determining whether the EPA has properly invoked Exemption 4 in withholding information requires that each item of the information in question be examined separately. FOIA requires that agencies segregate non-exempt information from exempt information when responding to FOIA requests. See 5 U.S.C. § 552(b).
The information that plaintiff is requesting and the EPA has withheld is the common names and Chemical Abstract System (CAS) numbers of the inert ingredients in six pesticides: Aatrex 80W, Weedone-LV4, Roundup, Velpar, Garlon 3A and Tordon 101.
A "trade secret" is "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." Public Citizen Health Research Group v. FDA, 227 U.S. App. D.C. 151, 704 F.2d 1280, 1288 (D.C. Cir. 1983). This definition is said to "incorporate a direct relationship between the information at issue and the productive process." Id.
EPA's Vaughn declaration recites that the "identities, percentages, purposes of inert ingredients and identities of suppliers" can be used by competitors to formulate a successful pesticide. See EPA Memorandum at 12. ACPA's argument, supported by member company affidavits, is that each pesticide's "formula" is a trade secret. Neither defendant has demonstrated, however, that the common name and CAS numbers of inert ingredients are trade secrets. In fact, ACPA's submission effectively acknowledges that the release of general identifying information about inert ingredients does not reveal formulas. See Troth Decl. at 9. Both defendants have also conceded that disclosing the common name of an inert ingredient may not reveal ...