MEMORANDUM OPINION
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
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separate record for the rule that was withdrawn.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 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, 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
(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 “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.
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