United States v. Nova Scotia Food Products Corp.

568 F.2d 240 (2nd Cir. 1977)

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Nature of the Case

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Facts

FDA conducted section 553 notice and comment rulemaking proceedings to promulgate safety regulations for the smoking of fish to safeguard against botulism poisoning. FDA then sued to enjoin Nova Scotia (D) from processing smoked fish in violation of those regulations. D contends that there was an inadequate administrative record upon which to predicate judicial review and that the agency failed to disclose the factual material upon which the agency was relying on and that vitiates the element of fairness and that the concise general statement of the basis and purpose was inadequate by section 553 standards. There was no record of the agency actions under the process, and in fact, the record that was created was made by searching FDA files and the memories of those that participated in the rulemaking. The district court granted the injunction against D and D appealed. Ds contend that there is an inadequate administrative record upon which to predicate judicial review and that the failure to disclose to interested persons the factual material upon which the agency was relying vitiates the element of fairness which is essential to any kind of administrative action.