631 F.2d 922 | D.C. Cir. | 1980
Opinion for the Court filed by Circuit Judge WILKEY.
Petitioners Environmental Defense Fund, Inc. (EDF) and Florida Citrus Mutual (Florida Citrus) challenge the Environmental Protection Agency’s (EPA) refusal to hold an administrative hearing regarding an order restricting the use of chlorobenzilate in four citrus growing states and banning its use elsewhere. The EPA concluded that EDF was not a party “adversely affected” by the order, and that Florida Citrus’s request for a hearing was untimely. While we do not adopt entirely the reasoning of the EPA, we affirm its decision denying the requests for an administrative hearing.
OUTLINE OF OPINION
I. BACKGROUND
II. JURISDICTION
A. Order
B. Public Hearing
1. Statutory Language
2. Case Law
3. Other Statutes
4. Legislative History
5. Judicial Policy
III.EDF’S RIGHT TO ADMINISTRATIVE HEARING
A. Cancellation
B. Noncancellation
1. Agency Rationales and Appellate Arguments
2. Discussion
(a) Structure and Language of Section 6(b)
(b) Legislative Intent
(c) Relationship with Other Parts of FIFRA
(d) Other Considerations
3. Conclusion as to EDF’s Hearing Right
IV. TIMELINESS OF FLORIDA CITRUS’S HEARING REQUEST
V. CONCLUSION
I. BACKGROUND
On 26 May 1976 the Administrator of the EPA initiated a Rebuttable Presumption Against Registration (RPAR) proceeding to determine whether unrestricted use of chlorobenzilate, a carcinogenic miticide, should continue.
On 13 February 1979 pursuant to section 6(b) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
On 11 April 1979 the ALJ assigned to the case issued a show cause order why an accelerated decision should not be issued against EDF and Florida Citrus.
On 18 December 1979 intervenor Ciba-Geigy Corp. filed a motion to dismiss on the basis that jurisdiction to review the challenged order lay in the district court and not in the court of appeals.
II. JURISDICTION
Intervenor Ciba-Geigy argues that the petitions for review should be dismissed on the ground that this court lacks jurisdiction to review the action of the Administrator under the judicial review provisions of section 16 of FIFRA. That section provides:
(a) District court review — Except as is otherwise provided in this subchapter, Agency refusals to cancel or suspend registrations or change classifications not following a hearing and other final Agency actions not committed to Agency discretion by law are judicially reviewable in the district courts.
(b) Review by court of appeals — In the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in the United States court of appeals for the circuit, wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part.14
Because an “actual controversy” surrounds the Administrator’s action and both petitioners claim to be “adversely affected” by the action, this court has jurisdiction if the EPA action is an “order issued by the Administrator following a public hearing.”
In asserting that this court lacks jurisdiction, Ciba-Geigy argues that the proceedings before the Chief Administrative Law Judge and before the Administrator did not constitute a “public hearing” within the meaning of section 16(b) of FIFRA. Instead, those proceedings denied the parties the right to a formal section 6(d) hearing later. In other words, it is asserted that what we have had is not a “hearing” or “public hearing,” but a “proceeding” to de
In response, EDF, Florida Citrus, and the EPA argue that review in this Court is proper. They assert that the final decision is an “order,” and that the record compiled through the proceedings before both the ALJ and the Administrator is sufficient to fit within the requirements of a “public hearing.” In sum, while Ciba-Geigy argues that the only agency action was summary denial of the public hearing prescribed by section 6(d) of FIFRA, the other parties insist that the decision to deny the 6(d) hearing was itself based on a “public hearing” before the agency.
Thus, the jurisdiction of this Court to review the agency action at issue here turns, both on whether the final decision was an “order” and on whether that action followed a “public hearing” within the meaning of section 16 of FIFRA. The meaning of those terms within the context of the judicial review provisions of FIFRA is a question of first impression for this Court.
A. Order
Ciba-Geigy asserts that EPA’s decision is not an “order” within the meaning of section 16(b). While it concedes the decision is an order within the meaning of the Administrative Procedure Act,
No authority other than the structure of section 16(b) is cited by Ciba-Geigy to show that “order” in FIFRA means anything more than an order within the meaning of the APA. Ciba-Geigy’s argument seems to boil down to this: The EPA decision is not an “order” within the meaning of section 16(b) because it is not the kind of order Congress wanted appellate courts to review.
We think that, if the order followed a “public hearing,” it is the type of order Congress intended appellate courts to review. We find no authority that Congress intended further to refine the meaning of “order” in section 16(b). Therefore, we turn now to the question whether the order followed a “public hearing.”
B. Public Hearing
In considering whether the challenged order issued after a “public hearing,” it is helpful to review the nature of the proceedings and submissions before the EPA. In the proceedings before the ALJ, legal memoranda were submitted by EDF, the EPA, Ciba-Geigy, and the Department of Agriculture. Although a pre-hearing conference was scheduled, none was held. Oral argument on the issues before the ALJ was requested and denied. At the conclusion of the proceedings, the ALJ issued his Accelerated Decision, and the parties filed exceptions. On appeal to the Administrator, the same parties again submitted briefs, and EDF filed a reply brief to the EPA’s memorandum. The Administrator’s Final Decision followed. In all, the EPA took 186 pages of argument and supporting exhibits.
Neither FIFRA nor federal law articulates a definition of the term “public hearing.”
1. Statutory Language
Although FIFRA does not define “public hearing,” it does use that term in several of its sections. Section 16(b) invokes appellate court review only of an “order issued . following a public hearing.” Review is to be based on all evidence of record, and the decision of the Administrator is to be sustained if supported by substantial evidence, considered on the record as a whole.
Ciba-Geigy urges that the combination of these provisions, especially the description of the procedures required in a section 6(d) hearing, shows that the “public hearing” needed prior to appellate review under section 16(b) of FIFRA is a formal affair with at least some opportunity for oral presentation.
While this argument has some appeal, we are not persuaded. That FIFRA establishes certain types of hearing proceedings and procedures does not definitively prove that these are the only “public hearings” able to serve as predicates of appellate court review. Furthermore, it is possible for a term to have different meanings, even in the same statute.
In the absence of an explicit or conclusive contextual definition of “public hearing” in FIFRA itself, in resolving the jurisdictional question we think it wise to consult sources that might shed light on its meaning.
2. Case Law
Section 16(b) has been litigated rarely, and no decision has defined precisely the term “public hearing” as it is used in that section. In Louisiana v. Train
While helping illuminate the meaning of “public hearings,” Louisiana v. Train is distinguishable from the present case. The informal hearings in Train occurred after notice of proposed public hearings appeared in the Federal Register, presumably as required by section 21(c) of FIFRA.
Although Train does not resolve the question confronting the court, it does indicate that the term “public hearing” encompasses more than just section 6(b) hearings.
3. Other Statutes
Absent a definition or conclusive indications of the meaning of “public hearing” in FIFRA and interpretive case law, it is instructive to examine the meaning of similar terms in other statutes. It appears that the term “hearing” does not always require formal proceedings, or even oral presentations.
In Florida East Coast Railway
[Confronted with a grant of substantive authority made after the Administrative Procedure Act was enacted, we think that reference to that Act, in which Congress devoted itself exclusively to questions such as the nature and scope of hearings, is a satisfactory basis for determining what is meant by the term “hearing” used in another statute. Turning to that Act, we are convinced that the term “hearing” as used therein does not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency’s decision-maker.30
Applying this reasoning to section l(14)(a) of the Interstate Commerce Act,
The absence of oral presentations in the challenged proceedings would not disqualify them from being labeled “hearings.” But here we consider the meaning not just of “hearing,” but of “public hearing.” Ciba-Geigy asserts that “public hearing” means something more. It cites circuit court decisions that construe “public hearing” in other statutes to require oral presentation or public participation.
For example Seacoast Anti-Pollution League v. Cos tie
the FWPCA requires the EPA to afford an opportunity for a public hearing. We do not believe that an opportunity to submit documents constitutes a public hearing. Nor do we believe that the Administrator can comply with the statute merely by taking some evidence- at a public hearing and then taking the rest in written form.35
Despite the provision of section 556(d) of the Administrative Procedure Act that allowed agency “procedures for the submission of all or part of the evidence in written form,” the court found that the requirement of a public hearing meant something more than only written submissions. Other decisions have also stressed the importance of oral as well as written participation, when a public hearing is required by statute.
While these opinions do indicate that “public hearing” in some statutes requires oral public participation, they do not control the interpretation of section 16(b). These decisions construe the meaning of the term “public hearing” in a context entirely different from that of section 16(b) of FIFRA; they consider what procedures should be followed in the process of agency decision-making,
4. Legislative History
The present judicial review system in FI-FRA dates from 1972. Prior to 1972, FI-FRA had provided for appellate review in a case of actual controversy as to the validity of an EPA order.
The 1972 amendments to FIFRA established judicial review for different types of agency action in both the district and the appellate courts. In its report the Senate Committee on Agriculture and Forestry indicated that the question of judicial review was one of major concern and study. The Committee believed that it had simplified the procedures for review by providing that Agency actions taken after a hearing were to be reviewed by courts of appeals and those taken without a hearing in the district courts.
The Senate report explained the appropriate division of judicial review as follows:
After a hearing judicial review on petition by any person adversely affected is properly lodged in the courts of appeals, since an adequate record exists for such review. Where, however, the Administrator has determined no substantial question of safety exists which warrants formal review, and thus has refused to hold a hearing, review should be by a district court since there is no record for the court of appeals.41
In Part II of the same Senate report, the Committee quoted this language and added:
In short, the Committee on Agriculture and Forestry believes that matters which have not been heard before should go to courts of original jurisdiction and appeals from cases which have already been administratively heard and decided should go to appellate courts. The question is really that simple.42
Ciba-Geigy argues that because the Administrator “has refused to hold a hearing,” no “public hearing” has occurred to give this court jurisdiction. It is true that no hearing concerning cancellation per se has taken place, and we are presently without jurisdiction to review the merits of EPA’s decision conditionally to cancel registration of chlorobenzilate. But that is not the issue presented us. The question raised in this case is the legality of denying a section 6(d) hearing, and that issue has “already been administratively heard and decided.”
Furthermore, the Committee’s considerable emphasis on the existence of a reviewable record must be considered in reaching a conclusion as to our jurisdiction. The Committee reasoned that appellate review was appropriate after a hearing because “an adequate record exists for such review.”
It is the intent of the Conferees, however, that an adequate reviewable record be developed by the Environmental Protection Agency in each of its public hearings although such hearings need not necessarily be adjudicatory in nature.47
In 1977 the National Agricultural Chemicals Association proposed that any order to be given appellate review be based on the record of a formal or due process hearing. The Association was responding to the Administrator’s position that an order following any type of public hearing was to receive appellate review. The Senate rejected the proposal, and the report notes:
The Subcommittee then took up the proposal of the National Agricultural Chemicals Association that would require that all Environmental Protection Agency public hearings directly reviewable in the courts of appeal be adjudicatory in nature. It was decided that there was no compelling reason for changing existing law and the proposal was not adopted.48
The legislative history of the 1972 amendment, then, demonstrates that underlying the restriction of appellate review to orders following public hearings was congressional concern that review be based on an administrative decision with an adequate record. The history of subsequent attempts to amend FIFRA shows no lessening of these concerns.
Here, no facts are at issue. The petition presents a pure question of law. The submissions before the Agency and its decisions constitute a completely adequate record for us to review. This being the case, we conclude that the proceedings before the agency sufficiently meet the concerns of Congress animating section 16(b) to qualify as a public hearing.
5. Judicial Policy
It should be noted that our conclusion that these proceedings constituted the kind of public hearing Congress intended to trigger appellate review is in accord with sound judicial policy. In determining when agency regulations are a “final order” allowing appellate court jurisdiction, this court has stated, “[i]t is the availability of a record for review and not the holding of a quasi judicial hearing which is now the jurisdictional touchstone.”
In this case, not only does a record exist, but it is “an adequate record . . . for such review.”
We recognize that Congress may allocate judicial review responsibilities as it pleases, with or without regard to consideration of judicial economy or policy.
Because the record before us is wholly adequate for judicial review, we conclude the proceedings antecedent to the Administrator’s order were a “public hearing” granting this court jurisdiction to review the challenged order.
III. EDF’S RIGHT TO ADMINISTRATIVE HEARING
EDF maintains that it was entitled to an administrative hearing pursuant to section 6(b) because it was a person adversely affected by the notice. Section 6(b) provides in pertinent part:
The proposed action shall become final and effective at the end of 30 days from receipt by the registrant, or publication, of a notice issued under paragraph (1) whichever occurs later, unless within the time . . (ii) a request for a hearing is made by a person adversely affected by the notice.53
The EPA contends that EDF is not adversely affected within the meaning of section 6(b), and that its remedy is district court review of the decision to retain pursuant to section 16(a). In relevant part that section states: “Agency refusals to cancel . registrations . not following a hearing are judicially reviewable in the district courts.”
We hold that to the extent the notice cancels uses of chlorobenzilate, EDF is not adversely affected. To the extent EDF challenges the retention of registration as restricted, it is not entitled to an administrative hearing.
A. Cancellation
EDF filed objections to the Administrator’s notice in order to challenge “continued use of chlorobenzilate in citrus groves.”
B. Noncancellation
1. Agency Rationales and Appellate Arguments
The rationales used by the EPA throughout these proceedings to deny EDF an administrative hearing have not been entirely consistent.
Then, while affirming the decision of the ALJ “in its entirety,”
In its appellate brief the EPA has further refined its argument. Although not eschewing the Administrator’s rationale, the EPA now suggests that under the 1972 Amendments no person could ever be adversely affected by an insufficient notice of cancellation
Thus, only those injured by the PROHIBITORY aspect of a notice’s cancellation or restriction provisions may request a hearing. EDF, on the other hand, claims injury only from the PERMISSIVE aspect of the notice. The permissive aspect is really only a preservation of the status quo, or a part of the status quo. The Agency maintains that a failure to take more restrictive action in a notice (i. e., retaining the status quo in part by permitting certain qualified uses) does not injure a party in the way Congress intended when it granted “adversely affected” parties the right to request administrative hearings.
2. Discussion
We have some difficulty with the argument that EDF is not adversely affected by the retention portion of the notice. The EPA’s argument is intricate and dependent on congressional knowledge of implied interrelationships of stated and intended notice standards, conditional and unconditional notices, and parties affected thereby. However, we do not reach the issue of whether EDF is adversely affected by the notice, because we conclude that no hearing right is available to challenge only the retention or permissive portion of a cancellation notice.
It is true that in “dealing with a determination or judgment which an administrative agency alone is authorized to make, [the court] must judge the propriety of such action solely by the grounds invoked by the agency.”
EDF concedes that, had the Administrator concluded that no cancellation proceedings were warranted, its only remedy would be section 16(a) district court review under the arbitrary and capricious standard.
Because we conclude that EDF is not entitled to a hearing as to the retention question only, we do not find it necessary to reach the question whether a party in a validly initiated hearing could expand the scope of the proceedings to consider restrictions more stringent than those proposed by the EPA.
(a) Structure and Language of Section 6(b)
The language of section 6(b) speaks only in terms of cancellation decisions. The Administrator issues a “notice of his intent . to cancel [the pesticide’s] registration.”
Thus, the language and structure of section 6(b) indicate that an adversely affected person may request a hearing to consider reasons why registration should not be can-celled. There is no indication that a party has a right to a hearing to consider solely objections to the retention part of the notice.
(b) Legislative Intent
Prior to 1972 only registrants could request hearings respecting cancellation notices. The 1972 amendments expanded the class which could request hearings, but there is no evidence that Congress intended to change the basic subject matter and purpose of section 6(b) hearings. Legislative history indicates that the class was broadened out of concern that users be allowed to challenge cancellation decisions when registrants declined to do so. As the Fifth Circuit explained in McGill v. EPA:
The legislative history suggests that the rights of non-registrants were recognized in the statute because certain Congressmen were concerned that a pesticide' producer would choose not to defend a particular registration that was of small importance to the manufacturer, but of great importance to a particular agricultural group. All parties to this litigation agree that the testimony of Dr. Edwin A. Crosby, a representative of the National Canners Association, was instrumental in securing rights for non-registrants in the revised statute. His proposed amendment was designed to protect the rights of users of established pesticides if the producer-registrant decided not to defend against the cancellation or change of a particular registration.73
The proposed Crosby amendment would allow any person “adversely affected by cancellation of a registration” to file objections and request an administrative hearing.
(c) Relationship with Other Parts of FI-FRA
We note that our interpretation of section 6(b) is consistent with other aspects of FIFRA. Decisions by the Administrator to deny registration of pesticides may be challenged in an administrative hearing, but not decisions to grant registration.
The pattern seems to be that decisions regulating more strictly may be challenged in administrative hearings, those regulating less strictly may not.
(d) Other Considerations
We also note that this interpretation leaves EDF no worse off than it was before the notice of cancellation. As a matter of fact, EDF is better off. The cancellation of the uses of chlorobenzilate has gone into effect and to that extent EDF is better off than it was before the notice of cancellation issued. Prior to the issuance of the notice any decision not to cancel would have been subject to a district court review under section 16(a), and even now that many of the uses have been cancelled the decision to retain registration for other uses is still subject to district court review. Thus EDF has available to it the same remedies that it did prior to the notice of cancellation, and it is better off for the automatic cancellations of certain uses having gone into effect.
3. Conclusion as to EDF’s Hearing Right
Because EDF was not adversely affected by the portion of the notice cancelling and restricting chlorobenzilate uses, and because it is not entitled to a hearing respecting only the retention portion, we conclude that the Administrator correctly denied EDF’s hearing request.
IV. TIMELINESS OF FLORIDA CITRUS’S HEARING REQUEST
With respect to the time period in which a hearing request must be made, section 6(b) states:
*356 The proposed action shall become final and effective at the end of 30 days from receipt by the registrant, or publication, of a notice issued under paragraph (1), whichever occurs later, unless within that time . . (ii) a request for a hearing is made by a person adversely affected by the notice.80
In the notice of cancellation, the EPA outlined the following time limits:
Registrants affected by the actions initiating cancellation of the registered uses of chlorobenzilate may request a hearing on specific registered uses within 30 days of receipt of this notice, or on or before March 15, 1979, whichever occurs later. Any person adversely affected by the cancellation actions initiated by this notice may request a hearing on specific registered uses affected by this notice on or before March 15, 1979.81
Florida Citrus filed a request for a hearing on 20 March 1979. It did not respond directly to the ALJ’s order to show cause why its request should not be dismissed as untimely; rather, it filed a motion pursuant to 40 C.F.R. § 164.6(b) to enlarge the time within which to file objections. Believing that section 6(b) required the deadline set in the cancellation notice, the ALJ held he was without power to extend the deadline and consequently the objections of Florida Citrus were dismissed.
On appeal to the Administrator, Florida Citrus argued that section 6(b) allows requests to be filed within thirty days from receipt by any registrant or publication of the notice, “whichever occurs later.” Because Tower Chemical Co., a registrant, did not receive a copy of the cancellation notice until 1 March 1979, Florida Citrus claims the deadline for hearing requests should have been 31 March instead of 15 March. The Administrator rejected the argument. He reasoned it was unlikely that Congress intended that parties be required to discover the dates that others received the notice to find out their own deadline. He ruled instead that the deadline for a registrant was thirty days after it received a copy of the notice or thirty days after publication in the Federal Register; the relevant time period for a nonregistrant was thirty days after publication.
We agree with the EPA’s sensible interpretation of the time limitation. The language of the statute is not without ambiguity, but we do not read it to allow adversely affected parties to request a hearing thirty days after either receipt of the notice by any registrant or publication. Indeed, section 6(b) speaks of a time period beginning to run from the date of “receipt by the registrant” of the notice. Logically, the relevant time period begin to run for a registrant when notice is published and when it receives the notice, not when any other registrant receives notice.
Permitting all adversely affected parties, registrants or nonregistrants, to request a section 6(b)(1) hearing anytime until thirty days after receipt of the notice by the very last registrants would lead to great uncertainty as to time limits. For all we know there may still be a notice in the Postal System that hasn’t been delivered to a registrant. Interpreting the statutory time limit to be thirty days after the party receives the type of notice required by statute leads to certainty of rights and deadlines. A registrant knows it has thirty days to request a hearing after receipt of actual or constructive notice, to which it is entitled; the nonregistrant knows it has thirty days from constructive notice, to which it is entitled.
V. CONCLUSION
We conclude that we have jurisdiction to consider this petition and that the Administrator correctly denied EDF’s and Florida Citrus’s requests for administrative hearing. The decision of the Administrator is
Affirmed.
. 41 Fed.Reg. 21,517 (1976).
. See 40 C.F.R. § 162.11 (1978).
. 43 Fed.Reg. 29,824 (1978).
. 7 U.S.C. § 136(b) (1976).
. 7 U.S.C. § 136d(d) (1976).
. See 43 Fed.Reg. 32,185 (1978).
. 7 U.S.C. § 136d(b) (1976).
. 44 Fed.Reg. 9548 (1979).
. In re Environmental Defense Fund, FIFRA Docket No. 411 et al. (11 Apr. 1979), reprinted in Joint Appendix (J.A.) at 113-15.
. In re Environmental Defense Fund, FIFRA Docket No. 411 et al., slip op. at 7-11 (22 May 1979), reprinted in J.A. at 72, 78-82.
. Id. at 1-7, reprinted in J.A. at 72-78.
. Motions to Dismiss and for Separate Argument.
. Environmental Defense Fund, Inc. v. Costle, Nos. 79-1971, 79-2133 (19 Feb. 1980). The panel consisted of Chief Judge Wright, Senior Judge Bazelon, and Judge Wilkey. Judge Wilkey did not participate in the order.
. 7 U.S.C. § 136n(a)-(b) (1976) (emphasis added).
. 5 U.S.C. § 551(6) (1976).
. Motions to Dismiss and for Separate Argument 35.
.See Response of Petitioner Environmental Defense Fund to Intervenor’s Motion to Dismiss 10.
. Motion to Dismiss and for Separate Argument 18.
. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 879 n.14 (1st Cir. 1978).
. 7 U.S.C. § 136n(b) (1976).
. Id. § 136d(d).
. Id § 1361(a).
. Id § 136s(b).
. Id § 136s(c).
. Thus the implicit partial definition of public hearing in § 21(c) does not necessarily govern its meaning in § 16(b). Section 21(c) provides: “In connection with all public hearings under this subchapter the Administrator shall publish timely notice of such hearings in the Federal Register.” This implies that any proceeding in
. Investment Co. Inst. v. Board of Governors, 551 F.2d 1270, 1278 (D.C.Cir.1977).
. 392 F.Supp. 564 (W.D.La.) aff’d mem., 514 F.2d 1070 (5th Cir. 1975).
. But see note 25 supra.
. 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973).
. Id. at 240, 93 S.Ct. at 818 (footnote omitted).
. 24 Stat. 379 (1887) (current version at 49 U.S.C. § 11122 (Supp. II. 1978)).
. 410 U.S. at 241, 93 S.Ct. at 819.
. E. g., United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972); Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936).
. 572 F.2d 872 (1st Cir. 1978).
. Id. at 879 (emphasis in original) (footnote omitted).
. E. g., South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974); Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973); Virgin Islands Hotel Ass'n v. Virgin Islands Water & Power Auth., 465 F.2d 1272 (3d Cir. 1972).
. Compare Mobil Oil Corp. v. Federal Power Commission, 483 F.2d 1238 (D.C.Cir.1973), with Independent Cosmetic Mfrs. v. HEW, 574 F.2d 553, 560 (D.C.Cir.1978) (Wilkey, J„ dissenting). See also Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267 (1975).
. See Nor-Am Agricultural Prods., Inc. v. Hardin, 435 F.2d 1151, 1156 (7th Cir. 1970).
. EDF v. Ruckelshaus, 439 F.2d 584, 591 (D.C.Cir.1971) (footnote omitted).
. S.Rep.No. 92-838, 92d Cong., 2d Sess. 28, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3993, 4019.
.Id. at 13, reprinted in [1972] U.S.Code Cong. & Admin.News, p. 4004 (emphasis added).
. Id., pt. II, at 50-51, reprinted in [1972] U.S. Code Cong. & Admin.News, p. 4070 (emphasis added).
. Id.
. Id., pt. I, at 13, reprinted in [1972] U.S.Code Cong. & Admin.News, p. 4004.
. Although the subsequent history is not as persuasive as statements contemporaneous with the statute’s enactment, it is entitled to “some weight ‘as a secondarily authoritative express of expert opinion.’ ” Copeland v. Martinez, 603 F.2d 981, 988 (D.C.Cir.1979), cert. den., 444 U.S. 1044, 100 S.Ct. 730, 62 L.Ed.2d 729 (1980) (quoting Parker v. Califano, 561 F.2d 320, 339 (D.C.Cir.1977) (quoting Bobsee Corp. v. United States, 411 F.2d 231, 237 n.18 (5th Cir. 1969)).
. 121 Cong.Rec. 36,116 (1975).
. H.R.Rep.No. 94-668, 94th Cong., 1st Sess. 6 (1975), [1975], U.S.Code Cong. & Admin.News pp. 1359, 1381.
. S.Rep.No. 95-334, 95th Cong., 1st Sess. 12 (1977).
. Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912, 916 (D.C.Cir.1973).
. Investment Co. Inst. v. Board of Governors, 551 F.2d 1270, 1276 (D.C.Cir.1977) (citations omitted).
. S.Rep.No. 92-838, 92d Cong., 2d Sess. 13, reprinted in [1972] U.S.Code Cong. & Admin. News, p. 4004; see Independent Cosmetic Mfrs. v. HEW, 574 F.2d 553, 576 (D.C.Cir.1978) (Wilkey, J., dissenting).
. Harrison v. PPG Indus., Inc., 446 U.S. 578, 593, 100 S.Ct. 1889, 1898, 64 L.Ed.2d 525 (1980); see Independent Cosmetic Mfrs. v. HEW, 574 F.2d 553, 568 (D.C.Cir.1978) (Wilkey, J., dissenting).
. 7 U.S.C. § 136d(b) (1976).
. Id. § 136n(a).
. Brief for Petitioner EDF at 6. Specifically EDF objected to:
a) the Agency’s assessment of both the risks and benefits of the use of chlorobenzilate on citrus;
b) the Agency’s determination that modifications in the terms or conditions of registration of products containing chlorobenzilate for use on citrus will reduce risks sufficiently to eliminate any unreasonable adverse effects on man or the environment;
*351 c) the Agency’s failure to cancel citrus uses of chlorobenzilate products after a limited phase-out period during which alternatives can be registered; and
d) the Agency’s failure to require the examination of sperm counts in a selected population of chlorobenzilate applicators and citrus pickers exposed to chlorobenzilate to gather data on the potential adverse effects of chlorobenzilate on human reproduction.
Request for Hearing and Objections of the Environmental Defense Fund to the Notice of Intent to Cancel Registrations of Chlorobenzilate at 2-3, reprinted in J.A. at 147-48.
.Interestingly EPA counsel originally argued rather strenuously to the ALJ that EDF could be adversely affected by a retention decision within the meaning of § 6(b). Respondent’s Reply to Memorandum of Petitioner Environmental Defense Fund in Response to Notice to Show Cause of 11 April 1979, at 6-10, reprinted in J.A. at 88-92. Agency counsel changed its position in argument before the Administrator, contending that only those desiring to stop cancellation can be “adversely affected” within the meaning of § 6(b). Respondent’s Reply to Exceptions and Appeal by Environmental Defense Fund from Accelerated Decision at 4, reprinted in J.A. at 45.
. FIFRA Docket No. 401 et al. (9 Apr. 1979), reprinted in J.A. at 116-35.
. In re Environmental Defense Fund, FIFRA Docket No. 411 et al, slip op. at 4 n.4 (22 May 1979), reprinted in J.A. at 75 n.4.
. Id. at 4-5, reprinted in J.A. at 75-76.
. In re Environmental Defense Fund, FIFRA Docket No. 411 ei al, slip op. at 39 (23 Aug. 1979), reprinted in J.A. at 39.
. He cited legislative history indicating that users of pesticides were the prime movers behind 1972 amendments allowing “persons adversely affected by the notice” to request an administrative hearing instead of just “registrants” of the pesticide. The Administrator cited language in the legislative history and a Fifth Circuit opinion demonstrating that the amendment was to allow users to request hearings.
. In re Environmental Defense Fund, FIFRA Docket No. 411 et a/., slip op. at 10 (23 Aug. 1979), reprinted in J.A. at 17.
. The Administrator did deal briefly with EDF’s argument that any EPA authority to enlarge the scope of relief in a section 6(b)(1) hearing beyond that proposed in the notice would not pose due process problems. Id. at 27, reprinted in J.A. at 33.
. On appeal EPA maintains that we need not reach the Shell issue respecting the proper scope of § 6(b)(1) proceedings. Brief for Respondent at 45-48. Because we conclude the request for a hearing was properly denied, we do not decide what issues are appropriate at a properly initiated hearing.
. It notes that prior to 1972 the Administrator had virtually no option conditionally to cancel registrations; if he found that there was a substantial question as to the safety of the pesticide, he was obligated to issue a notice of unconditional cancellation. No person could be adversely affected by the retention part of a notice because all cancellation notices were unconditional. After a section 6(b) hearing, the Administrator could issue an order that partially or conditionally cancelled pesticide registrations, but not before. The EPA argues that in enacting the 1972 amendments Congress intended that the “substantial question” standard for issuing cancellation notices continue, and therefore all cancellation notices were to be unconditional. Brief for Respondent at 29-30 note * (quoting S.Rep.No. 92-838, 92d Cong., 2d Sess. 12-13 (1972) and 40 Fed.Reg. 28255 (1975). See also H.Rep.No. 92-1540, 92d Cong., 2d Sess. 32 (1972) (“[the amended FI-FRA] preserves cancellation criteria in existing law”). Its still being the case that no person could be adversely affected by the failure of a notice to go far enough, Congress could not have intended that such entities be among those adversely affected parties that may request administrative hearings.
.EDF on the other hand argues that “adversely affected” means the same thing in section 6(b) as it does in section 16(a). It maintains that in the absence of contrary evidence the words should be interpreted the same way. It notes that the 1972 amendments instructed the Administrator to issue cancellation notices whenever it found that continued use of pesticide would result in “unreasonable adverse effects on the environment,” Federal Environmental Pesticide Control Act of 1972, § 6(b), Pub.L.No. 92-516, 86 Stat. 973 (codified at 7 U.S.C. § 136d(b) (1976)), that phrase defined as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” Id. § 2(bb) (current version at 7 U.S.C. § 136(bb)).
EDF argues that whatever the standard for when cancellation notices should issue under the 1972 amendments, nothing prevented the EPA from issuing conditional cancellation notices. The Judicial Officer in Shell Oil appeared to acknowledge the power of the EPA
.SEC v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947).
. See K. Davis, Administrative Law Text § 16.07, at 329 (3d Ed. 1972) (Chenery principle “does not apply to functions which courts properly perform, such as . . interpreting statutes”).
. Reply of Environmental Defense Fund to Brief of Intervenor Ciba-Geigy Corp. at 5.
. 7 U.S.C. § 136d(b)(l) (1976) (emphasis added).
. See In re Environmental Defense Fund, FI-FRA Docket No. 411 et al., slip op. at 23 (23 Aug. 1979), reprinted in J.A. at 30; 7 U.S.C. § 136n(a) (1976).
. Furthermore, we believe that interpreting section 6(b) to allow a hearing request of itself negatively to affect continued registration of a pesticide would contravene section 6(c). Section 6(c) grants the Administrator exclusive authority to suspend registrations when he believes it necessary to “prevent an imminent hazard during the time required for cancellation . . . proceedings.” We decline to interpret section 6(b) to permit parties effectively to suspend a registration pending the hearing simply by filing objections and requesting a hearing.
EDF argues that the EPA could issue regulations allowing the cancellation portion of a notice to go into effect when only the retention portion is challenged. Brief for Petitioner EDF at 18. This may be true. But this does not change the fact that a hearing request is capable only of halting the cancellation process, and of itself not capable of preventing continued registration.
. 593 F.2d 631, 635-36 (5th Cir. 1979) (citing Hearings on H.R. 10729, Before the SubComm. on Agricultural Research and General Legislation of the Senate Comm, on Agriculture and Forestry, 92d Cong., 2d Sess. 294 (1972)) (footnote omitted).
. In full the proposed amendment provided:
Any person who will be adversely affected by cancellation of a registration or change of classification also may file objections and request a public hearing within 30 days of public notice of the Administrator’s intention to cancel the registration or to change the classification of a pesticide.
Hearings on H.R. 10729 Before the SubComm. on Agricultural Research and General Legislation of the Senate Comm, on Agriculture and Forestry, 92d Cong., 2d Sess. 298 (1972).
. For instance Senator Hart maintained that the bill took “important strides in . the promotion of citizen participation in the regulatory process through comment before administrative agencies.” 118 Cong.Rec. 32,259 (1972).
. See notes 77-79 and accompanying text infra.
. 7 U.S.C. § 136a(c)(5)-(6) (1976).
. Id. § 136d(c) (1976).
. The Food, Drug and Cosmetics Act, 21 U.S.C. § 301 et seq. (1976), appears to exhibit a similar pattern. 21 U.S.C. § 355(c)(l)-(2) (1976) (hearing when drug application rejected, no hearing when approved).
. 7 U.S.C. § 136d(b) (1976).
. 44 Fed.Reg. 9548, 9551 (1979).
. Nonregistrants are not statutorily entitled to actual notice of cancellation, so of the two dates on which the thirty days begin to run, only the date of publication has application. To allow nonregistrants to file requests thirty days after any registrant received notice would give nonregistrants an advantage that registrants do not have. It is true that as we interpret section 6(b), registrants have a slight advantage over nonregistrants because they may request a hearing thirty days after either actual notice or constructive notice via publication. But these different time limits flow more than anything else from the different kinds of notice
