HARVEY v. JOHANNS Civil No. 02-216-P-H.
462 F.Supp.2d 69 (2006)
Arthur HARVEY, Plaintiff v. Mike JOHANNS, Secretary of Agriculture, Defendant.
United States District Court, D. Maine.
November 2, 2006.
Martica S. Douglas, Christine Kennedy-Jensen, Douglas, Denham, Buccina & Ernst, Portland, ME, Paula Dinerstein, Public Employees For Environmental Responsibility, Washington, DC, for Plaintiff.
Halsey B. Frank, Assistant United States Attorney, Portland, ME, for Defendant.
HORNBY, District Judge.
The latest installment of this dispute under the Organic Foods Production Act ("OFPA") of 1990, 7 U.S.C. § 6501 et seq., presents two questions: (1) Has an intervening Act of Congress relieved the Secretary of Agriculture from complying with a consent decree to which the Secretary previously acceded? (2) Is the plaintiff requesting relief beyond the scope of the
Magistrate Judge Kravchuk and I ruled initially on the plaintiff Harvey's challenge to Department of Agriculture ("UDSA") regulations. Harvey v. Veneman, No. 02cv-216-P-H, 2003 WL 22327171 (D.Me. Oct. 10, 2003); Harvey v. Veneman, 297 F.Supp.2d. 334 (D.Me.2004) (order granting summary judgment). In 2005, the First Circuit reversed us as to Count 3 of Harvey's Complaint. It declared that two USDA regulations, 7 C.F.R. §§ 205.600(b) and 605(b), were "contrary to the plain language of OFPA and therefore exceed the Secretary's statutory authority." Harvey v. Veneman,
In the meantime, in November 2005, Congress amended the OFPA in the 2006 Agricultural Appropriations bill through language added in conference committee without recorded discussion or debate. Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2006, Pub.L. No. 109-97, 119 Stat. 2120 (2005). The Secretary maintains that the amendment corrected the statutory language upon which the First Circuit relied to invalidate the regulations in Harvey. The Secretary, therefore, has declined to revise the original regulations. In the agency statement accompanying the final rule implementing other portions of the judgment in Harvey, the Secretary explained:
71 Fed.Reg. 32803, 32803-04 (June 7, 2006) (to be codified at 7 C.F.R. pt. 205).
As a result, Harvey has moved to enforce and the Secretary has moved to vacate a portion of the Consent Decree. Harvey has also asked that I order the USDA to revoke or revise its 2002 Policy Statement on food contact substances. He complains that the Policy Statement permits the use of food contact substances in organic foods without proper review. The Secretary responds that this request is for new relief not encompassed by either the Consent Decree or the original lawsuit.
A court has power to enforce its judgment. U.S.I. Properties Corp. v. M.D. Const. Co.,
The challenged regulations that the First Circuit struck down have permitted the use of synthetic substances in the handling of organic foods. Regulation section 205.600(b) provides that synthetic substances may be used "as a processing aid or adjuvant" if they meet six criteria. 7 C.F.R. § 205.600(b). Regulation section 205.605(b) is the so-called National List of synthetics permitted in organic products, including ingredients, processing aids, and other types of substances. 7 C.F.R. § 205.605(b).
The First Circuit invalidated the regulations because of statutory language appearing in 7 U.S.C. §§ 6510 and 6517. Before the 2005 amendments, section 6510(a)(1) provided that certified handling operations for organic food "shall not, with respect to any agricultural product covered by this chapter . . . add any synthetic ingredient during the processing or any postharvest handling of this product." (Emphasis added). The relevant part of section 6517(c)(1) provided:
(Emphasis added). The First Circuit held that these two sections prohibited the use of synthetic substances in the handling of organically labeled products. 396 F.3d at 39. Upon remand to this court, the parties agreed upon the text of a consent decree and final judgment and I entered it accordingly: "7 C.F.R. §§ 205.600(b) and 605(b) are contrary to the OFPA and exceed the Secretary's rulemaking authority to the extent that they permit the addition of synthetic ingredients and processing aids in handling . . ." Consent Decree at 3 (emphasis added).
The OFPA amendments in 2005 made three relevant changes to the statute. Congress added language to section 6510 to limit the scope of its prohibition on synthetic ingredients. Now section 6510 prohibits only the addition of "any synthetic ingredient not appearing on the National List during processing or any post harvest handling of the product" (emphasis on language added by amendment). Congress also demonstrated its intent to allow the National List to exempt substances used in handling by changing the title to section 6517(c)(1). Now it reads: "Exemption for prohibited substances in organic production and handling operations" (emphasis on language added by amendment). Congress also eliminated the language of subsection 6517(c)(1)(B)(iii) altogether. This is the language I quoted above that the First Circuit relied upon in striking down the regulations, language that previously provided that a substance had to be non-synthetic in order to be listed for use in handling operations.
Congress's objective in making these amendments is clear: synthetic substances can be permitted in handling.
But Harvey argues that the amendments only address synthetic ingredients, whereas the consent decree clearly prohibited
I am not persuaded. First, Harvey relies on a distinction between "processing aid" and "ingredient" that appears nowhere in the statute either before or after the 2005 amendments. See 7 U.S.C. § 6502 (no definition of "ingredient" or "processing aid"); see also 7 U.S.C. § 6501 et. seq. (no mention of "processing aid" in the statute)
Third, Harvey's focus on the distinction between "ingredients" and "processing aids" made in the consent decree is misplaced. He argues that Congress "must be presumed to have been aware of the terms of the Judgment it was purportedly responding to, which directed USDA to revise its regulations to prohibit synthetic ingredients and processing aids." Pl.'s Reply at 9. (emphasis original). Much as it might be flattering to think that Congress concerned itself with what appeared over my signature, it is the decision of the regional court of appeals, the First Circuit, that concerned Congress. Congress actually named the First Circuit decision. It directed the Secretary to "conduct an evaluation of any impacts of the court decision in Harvey v. Veneman,
In the end, Harvey's statutory argument comes down to the assertion that Congress should have inserted the word "processing aid" in section 6510 if it meant to allow the use of synthetic processing aids in handling. I disagree. The amendment to section 6510 simply clarifies that the old prohibition on the use of synthetic ingredients in handling no longer applies to the use of synthetic ingredients appearing on the National List. To use Harvey's words, "Section 6510 is by its terms applicable only to the addition of ingredients," Motion to Clarify at 10-11, and says nothing one way or another about processing aids. Congress authorized the use of synthetic processing aids in handling with its amendments to section 6517. As noted above, Congress amended the title of the subsection so that it now reads "[e]xemption for prohibited substances in organic production and handling operations." 7 U.S.C. § 6517(c)(1) (Emphasis added). The text then provides: "The National List may provide for the use of substances in an organic . . . handling operation that are otherwise prohibited under this chapter" and lists the conditions for such use. Id. Congress struck from the text the provision that the First Circuit relied on in Harvey to invalidate the use of synthetics in handling under this section.
I therefore conclude that the 2005 amendments eliminated the First Circuit's statutory basis for holding the regulations in question invalid. As a result, the Final Judgment with regard to Count 3 is
According to Harvey, a 2002 USDA Policy Statement currently posted on the National Organic Program website "permits the use in organic foods of `food contact substances' . . . without review for inclusion on the National List." Mot. to Enforce at 3.
In part, Harvey's attack on the FCS policy statement is an extension of the argument that I have just rejected. He says: "the  OFPA amendment did not reach synthetic processing aids, and thus the Court's Judgment remains in effect as to them." Pl.'s Reply at 17. Because I have rejected Harvey's underlying premise, this portion of the attack fails.
To the extent Harvey's attack is broader, I do not see how this USDA policy, whether consistent with the OFPA or not, is subject to a motion to enforce a final judgment and order that did not mention it, ordering compliance with a First Circuit decision that did not consider it.
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