(CN) – Organic growers cannot challenge a rule requiring almonds to be treated with heat or chemicals because they did not object during the notice period, the D.C. Circuit ruled.
After two salmonella outbreaks were linked to almonds grown in California, the Secretary of Agriculture proposed a pasteurization rule requiring domestic almond growers to treat the nuts with heat or chemicals to kill bacteria.
California grows 100 percent of the U.S. commercial almond supply and harvests more than 80 percent of the world’s crop, exporting 637,000 metric tons in 2011, according to industry publications.
But when the rule took effect in 2007, raw domestic almonds became unavailable in the U.S.
Several organic almond growers challenged the rule in Federal Court, claiming the Secretary exceeded his authority by requiring all almonds to be treated regardless of whether they are contaminated.
But the district court sided with the Secretary, finding that the producers waived their claims by not objecting during the rule’s notice period, and the D.C. Circuit affirmed on appeal.
“Although conceding that none of the producers who did comment made this argument during the rulemaking, the producers maintain that ‘the question of agency authority to issue a mandatory processing rule was expressly raised early in the rule development process,’ pointing to a meeting attended by a Department of Agriculture representative in which ‘it was asked if [the Secretary] has authority to mandate a kill step process.’ The representative replied that the Department was ‘investigating the issue’ and reported back a week later that ‘there is legal authority under the Marketing Order’ to ‘implement a mandatory treatment or ‘pasteurization’ program.’
“Under our case law, this was insufficient to preserve the issue,” the appellate court said in a per curiam decision.
The growers claimed the Secretary was obligated to ensure he had statutory authority to issue the rule before making it, and that the rule was the “only practical means of advancing the interests of the producers.”
“But as we have repeatedly made clear, agencies have no obligation to anticipate every conceivable argument about why they might lack such statutory authority. … Absent a comment arguing otherwise, [the Secretary] had no further obligation,” the court found.
Furthermore, “the Secretary never considered whether an ‘only practical means’ determination was necessary for one simple reason: no one suggested during the rulemaking that such a determination was required. If the producers believed that an ‘only practical means’ determination was necessary because the Almond Order has lacked handler support since 1996, they had ample opportunity to alert the Secretary before he issued the treatment rule.”
In a concurring opinion, Judge Stephen Williams noted that there may be an argument for judicial review if a plaintiff does not participate in any way in the rulemaking process.
The system of agency rule review “operates quite well for large industry associations and consumer or environmental groups (and the firms and individuals thus represented). But for some the impact is more severe. Firms filling niche markets, for example, as appellants appear to be, may be ill-represented by broad industry groups and unlikely to be adequately lawyered-up at the rulemaking stage. As the Fifth Circuit observed, we presumably do not want to ‘require everyone who wishes to protect himself from arbitrary agency action not only to become a faithful reader of the notices of proposed rulemaking published each day in the Federal Register, but a psychic able to predict the possible changes that could be made in the proposal when the rule is finally promulgated,'” Williams wrote.
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