Petition — Hicks v. United States

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~~ Supreme Court, 0. &

FILED

FEB 14 1979

A r

IN THE iuetiicieemeees tes

Supreme Court of the United States

Ocroser Term, 1978

no. BS- 1267

BILLY WD. HICKS,

> Petitioner,

—against—

UNITED STATES OF AMERICA, JESSIE P. BAR-

NETT, JR. and BARNETT & SONS SALVAGE,

LTD.,

Respondents.

PETITION OF BILLY D. HICKS FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

Evoense G. Lams

Attorney for Petitioner

226 Seventh Street

Garden City, New York 11530

(516) 248-1455

TABLE OF CONTENTS

PAGE

J URISDICTION 2

Questions PREsENTED ror REVIEW 2

ConstiruTionaL Provisions anp Statutes Invotveo 3

STATEMENT OF THE CaSE 3

Reasons For GRANTING THE WRIT 5

Conclusion 10

APPENDIX:

Opinion of the United States Court of Appeals

for the Fifth Circuit la

Judgment of the United States Court of Ap-

peals for the Fifth Circuit 17a

Order Granting Stay of the Issuance of the

Mandate Pending Petition for Writ of Cer-

tiorari on 19a

Constitutional Provisions Involved 2la

Statutes Involved 22a

ii TABLE OF CONTENTS

Cases Cited

United States v. Forty-One Cases, 420 F. 2d 1126

(CA 5 1970)

United States v. Four Hundred Eighty Four Bags,

More or Less, 423 F. 2d 839 (CA_5 1970) ...... mn

United States v. Halls, 529 F. 2d 472 (CA 5 1976)

United States v. Insco, 496 F. 2d 204 (CA 5 1974)

Wiliams vy. United States, 179 F. 2d 644

PAGE

Coan a

IN THE

Supreme Court of the United States

Ocroser Term, 1978

No.

BILLY D. HICKS,

Petitioner,

—against—

UNITED STATES OF AMERICA, JESSIE P. BAR-

NETT, JR. and BARNETT & SONS SALVAGE,

LTD.,

Respondents.

—_

PETITION OF BILLY D. HICKS FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

To the Honorable the Chief Justice aud Associate Justices

of the Supreme Court of the United States:

Petitioner, Billy D. Hicks, prays that a writ of certio-

rari be issued to review the decision and judgment of the

United States Court of Appeals for the Fifth Circuit

affirming a judgment and sentence of the United States

District Court for the Northern District of Mississippi

after a jury trial entered on the 30th day of November,

1977 wherein the Petitioner was found guilty of six felony

counts as contained in the presented indictment which

detailed violations of Sees. 2 and 371, Title 18, and

Sees. 321 (f), 331 (a), 331 (k), 333 (b), 342 (a)(1),

342 (a)(2)(c), 343 (a) and 348, Title 21 United States

Code by aiding and abetting; conspiracy; interstate ship-

ment of adulterated food; fraudulent sale of misbranded

food in interstate commerce.

The opinion of the Court of Appeals is reported at

587 F 2d 252 and a copy thereof is appended hereto

(infra, pp. la to 16a).

Jurisdiction

On January 8, 1979 judgment was initially entered in

the United States Court of Appeals, Fifth Circuit, unani-

mously affirming the judgment of conviction of the United

States District Court for the Northern District of Missi-

ssippi.

The issuance of the mandate of the Court was stayed

until, to and including February 15, 1979 pending the

filing of this petition for a writ of certiorari by order

entered in the Office of the Clerk of the Court of Appeals

on February 5, 1979.

The jurisdiction of this Court is invoked under 28

U.S.C. See. 1254 (1) and Rule 19.1 (b) of the rules of

this Court.

Questions Presented

(1) Is the Statute 21 U.S.C. 342 (a) (1) defining adult-

eration of food so vague and indefinite to be inadequate

to satisfy the due process clause of the Fifth Amendment

to the United States Constitution in that it fails to inform

the Defendant or any other person of ordinary intelli-

gence of the conduct prohibited by its terms?

(2) Whether application of Section 342 (a) (1) as ap-

plied in the trial was ex post facto in that it was left

to the jury, based on the testimony of the government

experts, to determine the standard of law which was al-

legedly violated, i.e. that the substances found came within

the definition of 342 (a) (1).

Constitutional Provisions and Statutes Involved

Fifth Amendment to the Constitution of the United

States; Article 1, Section 9 of the Constitution of the

United States.

Title 19 U.S.C. Sec. 2 and 371; Title 21 U.S.C. Secs.

321 (f), 331 (a), 331 (k), 3383 (b), 342 (a) (1), 342 (a)

(2) (c), 343 (a), 346 (a) and 348.

The text of the above are set forth in the Appendix

hereto (infra pp. 21a et seq.).

Statement of the Case

Billy D. Hicks, a citizen and resident of McGehee,

Arkansas, entered into an agreement with Jessie P. Bar-

nett, Jr., of Opelousas, Louisiana, and Richard Flowers

of Tunica, Mississippi, wherein it was agreed that Hicks

would supply salvage cotton seed which had been treated

for planting, to Flowers for processing at Planters Oil

Mill in Tunica, into cottonseed meal, hulls and oil. Bar-

nett was to handle the marketing and sale of the meal

and did make a contract with Southern Feed Ingredients

to Memphis, Tennessee, for the sale of twelve carloads

of cottonseed meal.

Pad

Approximately 2,000 tons of seed was processed into

meal by the Planters Oil Mill, the bulk having been

delivered and supplied by third parties, although Hicks

did direct the delivery of a substantial portion of the

treated seed to the oil mill.

Samples of the meal were taken and forwarded to Bar-

row-Agee Laboratories in Memphis for chemical analysis.

According to the reports, there were only trace elements

of poisonous substances.

Southern Feed Ingredients brokered the cottonseed meal

to various purchasers, principally animal feed companies,

for use as an animal feed ingredient. A railcar load

of the meal was tested in Starkville, Mississippi, by the

Mississippi authorities and the tests revealed that the

meal contained the substance Disyston. The Food and

Drug Administration took control of the investigation

and the shipments of the meal were stopped.

During the course of a six day trial which commenced

on October 25, 1977, pursuant to the Grand Jury’s in-

dictment handed down on May 25, 1977, the Government

introduced evidence through FDA investigators to show

involvement and control by Petitioner Hicks and his co-

defendants, Jessie P. Barnett and the Barnett Corpora-

tion, and that the cottonseed meal was adulterated. The

principal witnesses for the Government, Drs. Buck and

Piper, testified as to the harmful effects of the sub-

stances, mercury, disyston and PCNB, and to the effect

that because of their experience in observing poisoned

animals in laboratory tests, that they considered the sub-

stances as unsafe.

The Jury received instructions, one of which required

the Jury to consider whether or not mercury, disyston

and PCNB were unsafe and thus, adulterating food ad-

ditives.

The Jury found all defendants guilty on the six felony

counts. Judgment was entered on November 30, 197 7.

The United States Court of Appeals for the Fifth Cir-

cuit affirmed said judgment on January 8th, 1979.

REASONS FOR GRANTING THE WRIT

Hicks is charged with conspiracy to introduce into inter-

state commerce an adulterated food in violation of 21

U.S.C. 331(a). In describing adulterated food, See. 331(a)

refers to Sees. 342(a)(1), 346(a) and 342(a)(2)(c) and

by reference to Sec. 348.

Generally, the application of these Statutes has been in

civil or seizure actions instituted by the Government to

halt shipment of, or to condemn certain food items. United

States v. Forty-One Cases (1970, Fifth Cireuit) 420 F. 2d,

1126, and United States v. Four Hundred Eighty Four

Bags, More or Less, (1970, Fifth Cireuit, 423 F. 2d 839).

In attempting to define “adulterated”, Sec. 342(a) (1)

states that a food shall be deemed to be adulterated “if

it bears or contains any poisonous or deleterious sub-

stance which may render it injurious to health; * * *”.

Section 342 (a)(2)(c) states that a food shall be deemed

to be adulterated “if it is, or it bears or contains, any

food additive which is unsafe within the meaning of Sec-

tion 409 (21 U.S.C. 348).”

The foregoing sub-sections each describe a different test

as to what is deemed to be adulterated food. However,

342 (a)(1) fails to place one on notice of what may be

injurious to health or what does ordinarily cause a food

to be adulterated.

It is undisputed that Planters’ Oil Mill, Inc., the pro-

cessor of the cottonseed meal, sent samples of the meal

to a laboratory in Memphsis for analysis, which reported

that the samples contained “less than .01 parts per mil-

lion” of Disyston, while the report does not indicate

whether or not tests were conducted for mereury or

PCNB.

It is significant to note that one of the customers of

the cottonseed meal also sent samples to the laboratory

of the Mississippi State University, which notified that

the samples contained Disyston, although the record does

not state the quantity. Additionally, the test of the labora-

tory of Mississippi State University does not report any

test for mereury or for PCNB. Later tests of the Food

and Drug Administration reveal the presence of mercury,

PCNB and Disyston, but does not establish quantities so

found. It is common knowledge that the presence of some

trace elements or materials does not necessarily fall within

the definition of “adulterated” as commonly used. The

Government, realizing this proposition put experts in the

field of Toxicology on the stand as witnesses to establish

that the trace elements or materials were deleterious and

injurious to health of animals.

This testimony of the expert witnesses was the subject

of objection by the defendant, Hicks, and the testimony

was allowed in over his specific objection.

342(a)(1) is silent as to what substances are to be eon-

sidered deleterious and injurious to health and nowhere

does the statute proscribe by quantity the amounts of sub-

stances which are to be considered deleterious and injuri-

ous to health.

Conversely, it is within the realm of common knowl-

edge that many materials, trace elements or additives,

which are considered by themselves to be “harmless” to

health, when added to products in sufficient quantities,

neque ey ow

become deleterious and injurious to health. The ordinary

person in the handling of such products would not be in a

position to make this determination and would not be,

therefore, aware that he was violating the law.

In the process of establishing as a fact that mercury,

disyston and PCNB were unsafe, the Government demon-

strated that this knowledge was not unknown, but rather

may have been eesaeset only by a select few (it was es-

tablished that the field of Veterinary Toxicology is a high-

ly specialized area where in the United States only 27

Veterinary Toxicologists have been, certified) and it is

claimed that the adduction of this kde inveigh against

establishing a specific intent necessary to violate the stat-

ute which was an essential element of the Government’s

case.

This fundamental dilemma in the formulation of a

criminal statute is reeognized in U.S. v. Insco (1974 Fifth

Circuit) 496 Fed. 2d 204, there the Court stated at Page

208 :

“It is a fundamental tenet of our jurisprudence

that statutes which proscribe conduct may not be

so inartfully worded that persons of common in-

telligence must speculate as to their meaning. Lan-

zetta v. New Jersey, 1939, 306 U. S. 451, 453, 59 S.

Ct. 618, 83 L. Ed. 888. Vaguely phrased measures

run afoul of substantive due process requirements

by failing to convey with reasonable certainty the

statute’s intended sweep. ‘The ‘underlying principle

is that no man shall be held criminally responsible

for the conduct which he could not reasonably un-

derstand to be proscribed.’ United States v. Har-

riss, 1954, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98

L.Ed. 989.”

and in U. S. v. Halls (1976) Fifth Cireuit, 529 Fed. 2d,

472, the Court stated at Page 479:

“. .. In its classic formulation of the standard for

establishing unconstitutional vagueness, the Su-

preme Court held that a penal statute ‘must be suf-

ficiently explicit to inform those who are subject to

it what conduct on their part will render them liable

to its penalties’, If ‘men of common intelligence’

must guess at the meaning of a statute, the statute

violates due process of law.” (Cases cited)

Applying these well settled principles to the case at

Bar, it is apparent that 342(a)(1) does not sufficiently

proscribe the conduct ‘to be prohibited. If'a law embodies

a principle which is to guide the actions of people it is

fundamental that notice of the prohibited conduct be im-

parted.

The assertion of vagueness is not predicated upon the

notion that the Statute defines an illegal act by reference

to the manifest effects of conduct (for example, the com-

mission of acts, which has a bad or a specifically identi-

fied criminal result), but rather the complaint is that the

Statute condemns conduct, that in the opinion of a limited

class, veterinary toxicologists in this case, may be injuri-

ous to the health of animals. Conceivably then, one must

take judicial notice to such factual opinion and thereby

be guided. This would include taking notice of a change

in scientific thought the instant it occurred, even if the

thought or opinion may be subsequently proved in error.

It is obvious that 342(a)(1) contains no definitive stand-

ard of criminal conduct—if it did it would not have been

necessary for the Government to make this proof in the

Court below. As it was, the Jury was asked to pass on

a question that ought to have been predetermined by the

Congress.

Clearly related to the case of vagueness is the consti-

tutional restraint upon Congress from legislating crim-

inal laws ex post facto. Equally, this same restraint ap-

plies to the Federal Courts. Contrary to this restraint,

we find that the Trial Court left it to the jury to deter-

mine the standard of law and to find as a fact whether

or not the substances complained of were deleterious and

injurious to health. In essence, the jury was left to de-

fine a criminal statute where Congress had not, at a point

in time subsequently removed from the enactment of the

statute.

The Court in Williams v. United States, 179 F. 2d 644,

at Pg. 647 of the report, stated:

“The Congress and the Federal Court are them-

selves faced here with the provision of the Fifth

Amendment that no person * * * be deprived of

life, liberty or property without due process of law,

and it is found right in the midst of provisions in

the Fifth and Sixth Amendments about Federal

prosecutions for crime. It is well anderstood that

due process applies not only to Court procedure,

but also to legisiation, especially in criminal mat-

ters. There are no common law Federal crimes,

vut all are created by Statute, though common law

words in the Statute may take their intended mean-

ing from the common law. Not only must the ac-

eusation inform the accused for what he is to be

tried, but due process requires that the Statute must

inform the citizen in advance by a reasonably as-

certainable standard what the crime shall be. A

Judge may not establish the standard, say by rea-

sonable interpretation, after the deed is done, for

that is in substance to give the Statute life ex post

facto, which the Constitution forbids also.”

It is clear that the Trial Court did in fact instruct the

jury to give the Statute “life ex post facto” should the

Jury make a positive finding that mercury, disyston and

PCNB were potentially harmful and deleterious to health.

Petitioner urges that the Circuit Court erroneously

relied on the decision of this Court in United States of

America v. Lexington Mul and Elevator Company, 232

U.S. 399; 34 Sup. Ct. Rep. 337 as decisive of the constitu-

tional question. In that case the government proceeded

by civil libel to seize and condemn okienee adul-

terated product and did not proceed by” pads prosecution

as it did in the instant case. This Court did not con-

sider nor pass upon the constitutional questions raised

herein by the petitioner which are of a vastly greater

dimension than this Court had to consider in the prior

case.

CONCLUSION

For the reasons above stated, a Writ of Certiorari

should issue to the United States Court of Appeals

for the Fifth Circuit, review the Judgment and

Decision of that Court affirming the Judgment of

Conviction entered herein in the United States District

Court for the Northern District of Mississippi.

Respectfully submitted,

Evucene G. Lams

Attorney for Petitioner

Dated: Garden City, New York

February 14, 1979

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APPENDIX

Opinion of the United States Court of Appeals

for the Fifth Circuit

Unrrep States or AMERICA,

Plaintiff-A ppellee,

Vv.

Jesse P. Barnett, Jr., Barnetr & Sons Satvace, Lp. and

Buy D. Hicks,

Defendants-Appellants.

No. 77-5811

Unrrep States Court or APPEALs,

Firra Crmcvuir

Jan. 8, 1979

Appeals from the United States District Court for the

Northern District of Mississippi.

Before Coteman, Crank and Rustin, Circuit Judges.

Coteman, Circuit Judge.

When Theodore Roosevelt was President of the United

States, the misbranding and harmul adulteration of foods

had become of such nationwide moment that Congress

enacted the first Food and Drug Act, 1906.

[1a]

Opinion of the United States Court of Appeals

for the Fifth Circuit

Eight years later, in an appraisal of the Act, the Su-

preme Court said:

The statute upon its face shows, that the pri-

mary purpose of Congress was to prevent injury

to the public health by the sale and transportation

in interstate commerce of misbranded and adul-

terated foods. The legislation, as against misbrand-

ing, intended to make it possible that the con-

sumer should know that an article purchased was

what it purported to be; that it might be bought

for what it really was, and not upon misrepresen-

tations as to character and quality. As against

adulteration, the statute was intended to protect

‘ne public health from possible injury by adding

to articles of food consumption poisonous and dele-

terious substances which might render such articles

injurious to the health of consumers. If this pur-

pose has been effected by plain and unambiguous

language, and the act is within the power of Con-

gress, the only duty of the courts is to give it effect

according to its terms. This principle has been

frequently recognized in this court.

United States v. Lexington Mill Compan

y, 232 US.

399, 409, 34 S.Ct. 337, 340, 58 L.Ed. 658 (1914).

At a later point in that opinion the Court said:

Congress has here, in this statute, with its penal-

ties and forfeitures, definitely outlined its inhibi-

tion against a particular class of adulteration.

232 U.S. at 411, 34 S.Ct. at 340.

_ From time to time the Act has been amended in the

light of new developments and with a view to more ef-

Opinion of the United States Court of Appeals

for the Fifth Circwt

fectively protecting the general public from foods which

may be harmful or which have been misbranded. We

have no doubt that the various provisions of the Act are

plain, that they suffer from no ambiguity amounting to

impermissible vagueness, and that they do not violate the

Constitution.

The grand jury for the Northern District of Mississippi

indicted Jessie P. Barnett, Jr., Billy D. Hicks, and Bar-

nett & Sons Salvage, Ltd., for criminal violations of

these statutes, as well as for a conspiracy to commit those

violations.'

A jury convicted all three defendants on all six counts.

1 Count 2 charged that on or about September 12, 1975, all three

defendants did knowingly, with intent to defraud and mislead, cause

to be introduced into Interstate Commerce at Tunica, Mississippi,

adulterated bulk cottonseed meal, a food, “which was adulterated in

that it contained an added poisonous and deleterious substance, to-

wit, mercury, which may have rendered it injurious to health, and

contained unsafe food additives, to-wit, the fungicide PCNB (penta-

chloronitrobenzene) and the insecticide Disyston (O, O-diethyl S-(2-

Enthylthio) ethyl) phosphorodiathioate, in violation of Section 331

(a), 333(b), 342(a) (1), 342(a)(C), and 348 of Title 21, and of

Section 2 of Title 18 of the United States Code”.

Counts 3, 4, and 5 charged the defendants with committing the

same offenses on September 19, 1975, and September 22, 1975.

Count 6 charged all defendants with knowingly, and with intent

to defraud and mislead, offering for sale and causing to be offered

for sale 1,000 tons of misbranded cottonseed meal processed from

poison-treated cottonseed, theretofore shipped in Interstate Com-

merce to Tunica, Mississippi. f

Count 1 charged a conspiracy to commit the offenses charged in

the remaining counts.

Opinion of the United States Court of Appeals

for the Fifth Circuit

Hicks was sentenced to three years imprisonment on

one count, with eligibility for parole after nine months;

also to a fine of $1,000 and three years probation on each

of the remaining counts, the periods of probation to run

concurrently with each other.

On Count 1, Barnett was sentenced to imprisonment for

six months and to pay one-half of the cost of prosecution;

also to pay a fine of $1,000 and three years probation on

each of the remaining counts, the periods of probation to

run concurrently with each other.

Barnett & Sons Salvage Company, Ltd., was fined $250

on each of the six counts.

All defendants have appealed. We affirm as to all.

The action began on September 1, 1975, when Hicks

made an arrangement with the Planters Oil Mill, Ine., of

Tunica, Mississippi, in which it was agreed that the Mill

would receive cottonseed which had been poison-treated

for planting purposes, process it into cottonseed meal,

and deliver the meal to the railroad agent at Tunica for

transportation to various customers in Interstate Com-

merce. It was further agreed that from this operation

the cost of processing and shipping would first be de-

ducted, after which the parties would split the profits,

if any. Shipment of the treated seed to Planters began

on September 2, contained in bags, marked “Poison-

treated—Do not use for food, feed, or oil”.

In the meantime, Hicks had made a separate arrange-

ment with Jessie P. Barnett, Jr., of Barnett & Sons Sal-

vage Company, Ltd., in which Barnett agreed that his

Company would find buyers for the meal processed from

the treated planting cottonseed.

Opinion of the United States Court of Appeals

for the Fifth Circwt

On September 9, Barnett made a contract with Southern

Feed Ingredients Company, a company which deals solely

in components for animal feed, by which Barnett was to

sell Southern 1,000 tons of cottonseed meal. The record

is not clear as to whether Barnett knew initially that the

meal was to be manufactured from treated seed, but there

is no doubt that he soon learned of it. The serious aspect

of this case is that Barnett never informed Southern at

any time that the meal was to be processed from cotton-

seed which had been poison-treated for planting pur-

poses.

At various times and on various dates, within the time

period alleged in the indictment, Planters processed the

treated cottonseed, loaded the resulting meal onto rail-

road cars, and consigned the cars to the railroad agent

at Tunica. The bills of lading contained the warning,

Fertilizer use only. Copies of those bills of lading were

sent to Barnett & Sons and to Southern.

It was during this period that Mr. Barnett really stuck

his hand in the fire by representing to Southern that the

warnings appearing on the bills of lading were erroneous,

that the meal was fit for animal feed. The invoices from

Planters, sent to Hicks and to Barnett & Sons Salvage

Company, Ltd., bore the warning “Fertilizer, chemical or

industrial use only’. Not stopping at this, Planters noti-

fied both Hicks and Barnett & Sons, by certified letter,

return receipt requested, that the Mill had begun con-

signing meal to the railroad agent and that “we want it

fully understood that the products from these seed are

only good for fertilizer, chemical or industrial use.”

On the dates alleged in the indictments Southern di-

rected the railroad agent to ship the meal to various cus-

tomers, as therein charged.

Opinion of the United States Court of Appeals

for the Fifth Circuit

Matters lost no time in coming to a head. One of

Southern’s customers complained “that the meal had a

burned or dark color, and a burned smell”. Southern

then told Planters to send a sample-of the meal to a labora-

tory in Memphis for analysis. On September 19 the sam-

ples were sent. On September 25, the laboratory reported

that the samples contained “less than .01 parts per million”

of Disyston. The report, however, did not indicate that

any test had been conducted for mercury or for PCNB.

The customer also submitted samples of the meal to the

state laboratory at Mississippi State University. On Sep-

tember 22, this laboratory notified the customer that the

meal samples contained Disyston. The customer then re-

called all of the meal that could be traced and shipped it

back to Southern. It informed Southern of the situation

and also informed Mississippi feed inspectors, as well as

investigators for the Food and Drug Administration, that

the meal was tainted.

The Food and Drug Administration investigators took

samples of the meal at Planters, in Tunica, and from all

places to which the meal had been shipped or at which

could be found in transit. Tested by Food and Drug Ad-

ministration laboratories, these samples revealed the pres-

ence of mercury, PCNB, and Disyston.

Hicks

Mr. Hicks complains first that the statutes in question

are unconstitutional. We have already pointed out the

holding of the Supreme Court in United States v. Lexing-

oan Company, 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658

Opinion of the United States Court of Appeals

for the Fifth Circuit

[1] We agree that, most assuredly, criminal statutes

must fairly apprise those who are subject to them as to

the conduct which is proscribed.2 Even so, “no more than

a reasonable degree of certainty can be demanded”, Boyce

Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72

S.Ct. 329, 331, 96 L.Ed. 367 (1952).

[2] We can attribute no merit whatever to the conten-

tion that the statutes left the defendants without fair warn-

ing that their acts were illegal. 21 U.S.C. § 331(a) pro-

hibits the “introduction or delivery for introduction into

interstate commerce of any food... that is adulterated.

..” 21 U.S.C. § 342(a)(1) defines an adulterated food as

one bearing or containing “any poisonous or deleterious

substance which may render it injurious to health”. 21

U.S.C. § 321(f) specifies that the term “ ‘food’ means...

articles used for food or drink for man or other ani-

mals... .”

- Hicks testified that only by analysis could it be deter-

mined whether it would be safe to feed the meal. This

does not help him. The cottonseed meal in this case was

sold for feed prior to analysis and this was done with

Hicks’ knowledge. The facts, as previously stated herein,

reflects the warnings received by Hicks that the product

was unfit for animal feed.

[3] Mr. Hicks complains that he was prejudiced by over-

ly extensive expert testimony adduced on behalf of the

government with reference to the harmful effects of mer-

cury, PCNB, and Disyston. Our evaluation of the trial

record, however, leaves us with the firm conviction that

2 United States v. Hawes, 5 Cir. 1976, 529 F.2d 472, 479; United

States v. Insco, 5 Cir., 1974, 496 F.2d .204, 208.

Opinion of the United States Court of Appeals

for the Fifth Circuit

the rulings of the trial court on the materiality and rele-

vancy of this testimony were well within its discretion,

United States v. Grimm, 5 Cir. 1978, 568 F.2d 1136, 1138;

United States v. Brown, 5 Cir. 1977, 547 F.2d 1264, 1266.

Indeed, if Hicks thought that the extensiveness of the proof

as to these rather indisputable facts would put the case

out of focus, to his prejudice, he could easily have elimi-

nated the hazard by merely stipulating the harmfulness,

putting an end of the matter. On the other hand, if there

was any doubt about it, the government was entitled to

nail it down.

BARNETT

Jessie P. Barnett, on his own behalf and that of Barnett

& Sons Salvage, Ltd., urges reversal of their convictions

on the grounds of improperly admitted evidence, an al-

legedly improper notice of an evidentiary fact, insufficient

evidence, and improper consideration of a pre-sentence

report.

A. Admissibility of Evidence

[4] Twelve railears of meal were shipped from Planters.

By the time the FDA could obtain samples for its tests,

meal from three of these cars had been commingled with

meal from other sources. Over objection, the District

Court admitted samples from all twelve ears, including the

three cars containing commingled meal. Barnett contends

that the samples taken from the three commingled cars

were irrelevant and the admission of the samples consti-

tutes reversible error. We disagree.

This argument tries to slough off the fact that there

were nine carloads of meal in which there had been no

Opinion of the United States Court of Appeals

for the Fifth Circuit

commingling and even as to the three in which there had

been commingling, some of the meal had been processed

from the Hicks-Barnett treated cottonseed. The samples

from all twelve cars revealed the presence of the deleteri-

ous substances. in question. Even if it was error to admit

the samples from the three commingled cars, it was obvi-

ously harmless beyond a reasonable doubt and we need not

pause for a prolonged discussion of this point.

B. Insufficient Evidence

[5] Barnett maintains that due to his good faith reliance

on the Barrow-Agee test that there was insufficient evi-

dence of intent to commit a felony and therefore that his

motion for judgment of acquittal should have been granted.

Viewed in the light most favorable to the government,

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.

680 (1942), the facts simply do not support this argument.

Barnett had received copies of bills of lading, invoices, and

a letter from Planters, warning in unequivocal terms that

the meal was not to be used for animal feed. Barnett as-

sured Southern that the copies of bills of lading bearing

the warning “Fertilizer use only” were in error and that

the meal was good for feed use.

Moreover, the record shows that samples were not sent

to Barrow-Agee for analysis until ‘September 17, 1975,

where they were received on September 19. The Barrow-

Agee report was not issued until September 25, 1975.

Barnett’s assurance to Southern that the meal was safe

for feed use took place prior to September 19. All twelve

railears had been shipped from Planters by the time the

Barrow-Agee report was issued. Barnett could not have

been relying on the Barrow-Agee report when he misled

Southern because the report was not yet in existence.

10a

Opinion of the United States Court of Appeals

for the Fifth Circuit

The argument that Barnett acted in good faith cannot,

on this record, be sustained.

C. Judicial Notice of the Absence of Tolerance Standards

[6] At the close of the government’s proof in rebuttal,

and at the continued behest of the prosecution, the District

Court told the jury:

Now, members of the jury, the court takes judicial

notice that no regulations prescribed by any govern-

mental agency provide for standards or tolerances

relating to the presence of mercury, PCNB, and

disyston as components, as allowable components, to

be contained in cottonseed meal manufactured and

intended to be used for animal feed, that there are

no regulations on the subject that have been pre-

scribed allowing the presence of these elements in

te meal intended for consumption in animal

eed.

On cross-examnation of government witnesses, the de-

fendants attempted to create the impression that there is

a government-authorized tolerance level for mercury,

PCNB, and disyston. They never proffered evdence of

any such tolerances but they repeatedly cross-examined

government witnesses as to whether there were such stand-

ards. At one point, pursuant to the government’s request

the Court directed defense counsel to present the tolerance

standards if they were available. Barnett’s counsel re-

sponded that he only had “some notes” but wanted to ask

some questions concerning tolerances “for the later tes-

timony”. The Court permitted him to continue.

lla

Opinion of the United States Court of Appeals

for the Fifth Circut

At the conclusion of the expert testimony, the govern-

ment moved the Court to take judicial notice of the ab-

sence of tolerances because “it has been made an issue of

fact on some of the cross-examination.” Barnett’s counsel

protested on the ground that “it was clear the [Knviron-

mental Protection Agency] does in fact have guidelines.”

The Court deferred ruling until it could examine the regu-

lations. At the conclusion of the government’s case-in-chief

the government again moved the Court to take the desired

judicial notice. An extended discussion ensued in cham-

bers. The Court again deferred ruling. During a week-

end recess the Court studied the statutes and regulations

and, after the close of rebuttal proof for the government,

gave the instruction as above quoted.

In the calmness of judicial review we do not understand

exactly how the trial court allowed the government to pre-

vail in this request that it take judicial notice. The defend-

ants had offered no proof that the tolerance standards

existed. There was nothing to rebut. The defense had a

right to cross-examine the government witnesses in a search

for evidence that such standards might exist, but this was

far from establishing that they did exist. The defendants

having wholly failed to establish the existence of any stand-

ards, it would seem hardly necessary that the Court should

have entered the lists on the side of the government by in-

forming the jury at the close of the evidence that, as a mat-

ter of fact, the standards did not exist. If the government

thought that the failure of proof carried with it significantly

adverse consequences, it should have had no real trouble

producing a qualified witness, in chief, who could have tes-

tified that an examination of the Federal Register failed

to reveal the existence of any such standards. All of this

is especially true when it is remembered that it is not neces-

12a

Opinion of the United States Court of Appeals

for the Fifth Circutt

sary for the government to prove a negative, see, e. g.,

Rogers v. United States, 8 Cir. 1966, 367 F.2d 998, cert. de-

nied, 386 U.S. 943, 87 S.Ct. 976, 17 L.Ed.2d 874 (1967).3

We do not approve the procedure followed here, but,

for several reasons, we decline to reverse these convetions

on this point.

In the first place, there is not the slightest contention that

what the District Court told the jury was incorrect. In

the second place, the defendants provoked the situation by

pursuing the point on cross-examination when they knew,

or by investigation of the Federal Register should have

known, there were no such tolerance standards. Lastly,

it may be said that since the statement was true and the

government was under no obligation to prove it in the first

place, the error was harmless beyond a reasonable doubt.

D. Sentencing Procedure

The pre-sentence report contained information relative

to a prior sale by Barnett of soybean meal which had been

processed from beans that had been treated with mercury.

A copy of the report was furnished to Barnett and counsel

prior to sentence. The trial court thoroughly explored the

: “The general principle, and we think the correct one, * * * is that

it 1s not incumbent on the prosecution to adduce positive evidence

to support a negative averment the truth of which is fairly indicated

by established circumstances and which, if untrue, could be readily

Gisproved by the production of documents or other evidence probably

within the defendant’s possession or control. (Cases cited. )”

Rossi v. United States, 1933, 289 U.S. 89, 91-92, 53 S.Ct.

532, 533, 77 L.Ed. 1051, 1052.

13a

Opinion of the United States Court of Appeals

for the Fifth Circuit

subject matter of the report with Jessie P. Barnett, Jr.

and his counsel. Barnett pointed out that there had been

no conviction as a result of this incident, but he did not dis-

pute the basic facts as reported. He claimed that the poi-

soned soybean meal had been mixed with untreated meal

and thereafter shipped to a customer by a third party with-

out Barnett’s consent. Barnett said that he had fully co-

operated with FDA investigators concerning the matter.

Thereupon, the District Court announced that it would re-

quest the probation service to make a further investigation

into the matter and would give further consideration to the

sentence imposed on Count 1 should the Court learn any-

thing “substantially different” within the next thirty days.

Barnett’s counsel subsequently filed a motion for reduc-

tion of sentence. This motion was supported by affidavits

to the effect that the earlier incident occurred through the

nnintentional and unauthorized intermingling of meal proc-

essed from treated beans, with meal processed from un-

contaminated beans.

On December 27, 1977, the District Court denied the mo-

tion on the ground that there was “no basis in fact for the

alteration” requested.

It is undisputed that the sentencing procedure followed

by the District Court was in accordance with the require-

ments of Rule 32(c)(3)(A) of the Federal Rules of Crim-

inal Procedure. Barnett contends, however, that F.R.Crim.

P. 32(c)(3)(A) failed to accord Barnett those safeguards

required as a matter of due process. Specifically, he says

that “consideration of the unsworn accusations of a gov-

ernmental investigative agent over Defendant’s total denial

of such accusations” contravenes the requirements of the

Fifth Amendment to the United States Constitution; that

anything less than a full evidentiary hearing constitutes a

denial of due process.

l4a

Opinion of the United States Court of Appeals

for the Fifth Cireuit

These arguments must be rejected.

{7 A senteneng judge “may appropriately conduct an

inquiry broad in scope, largely unlimited either as to the

kind of information he may consider, or the source from

which it may come.” United States v. Tucker, 404 U.S.

443, 446-47, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). For

example, in the landmark case of Williams v. New York,

337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), a state

sentencing procedure whereby the judge considered in-

formation obtained “outside the courtroom from persons

whom the defendant has not been permitted to confront

or cross-examine” was found not to be constitutionally

infirm. Jd, at 245. Writing for the Williams Court, Mr.

Justice Black observed that the information necessary for

intelligent imposition of sentences would be unavail-

able if information were restricted to that given in

open court by witnesses subject to cross-examina-

tion .. . [such considerations] admonish us against

treating the due process clause as a uniform com-

mand that courts throughout the Nation abandon

their age-old practice of seeking information from

gag sources.... Jd. at 250, 251, 69 S.Ct. at

[8] The Williams Court, of course did not hold that the

sentencing judge’s discretion is unlimited. A defendant

has a right to “at least minimal safeguards to insure that

the sentencing court does not rely on erroneous factual

information”, United States v. Espinoza, 5 Cir. 1973, 481

F.2d 553, 555; see United States v. Tucker, swpra at 447,

92 S.Ct. 589; Townsend v. Burke, 334 U.S. 736, 740, 68

S.Ct. 1252, 92 L.Ed. 1690 (1948). Thus we have held that

15a

Opinion of the United States Court of Appeals

for the Fifth Circuit

where a defendant disputes information considered in im-

posing a sentence, the defendant must be given “at least

some opportunity to rebut that information”, United

States v. Espinoza, swpra at 556; see United States v.

Ashley, 5 Cir., 555 F.2d 462, 466, cert. denied, 484 U.S.

869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977) ; Shelton v. United

States, 5 Cir. 1974, 497 F.2d 156, 160. See also United

States v. Rollerson, 5 Cir. 1974, 491 F.2d 1209, 1213;

United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854.

[9] The right of rebuttal does not require that the sen-

tencing hearing be transformed into a second trial. See

United States v. Espinoza, supra, at 558. See also United

States v. Weston, 9 Cir. 1971, 448 F.2d 626, 633, cert.

denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972).

At a minimum it is sufficient if the sentencing judge

affords the defendant an opportunity to “comment on any

alleged factual inaccuracy.” United States v. Brice, 5 Cir.

1977, 565 F.2d 336, 337; United States v. Hodges, 5 Cir.

1977, 547 F.2d 951, 952; United States v. Ashley, supra.

Barnett does not contend that he was not afforded an

opportunity to rebut the information contained in the pre-

sentence report. What he claims is that he “did rebut”

it. He therefore argues that the right of rebuttal was in-

sufficient; “anything less than a full evidentiary hearing

constitutes a denial of due process”. This argument, of

course, is knocked from its feet by Williams v. New York,

supra.

Reliance on Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968); Mempa v. Rhay, 389

U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); and Specht

y. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326

(1967), is misplaced. These cases held that due process

applied to the sentencing stage of a criminal proceeding,

t+ <3. ey i

l6a

Opinion of the United States Court of Appeals

for the Fifth Circuit

but this only begins the due process inquiry, for “[O]nce

it is determined that due process applies, the question

remains what process is due”, Morrissey v. Brewer, 408

U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), cited

in Gardner vy. Florida, 430 U.S. 349, 358 n. 9, 97 S.Ct.

1197, 51 L.Ed.2d 393 (1977).

[10] As a matter of due process, a defendant about to

be sentenced is not entitled to the same evidentiary pro-

tections, such as the right ‘to cross-examine adverse wit-

nesses in a sentencing proceeding, as are available in a

trial on guilt or innocence.

[11] In this case, Barnett was fully informed of the

contents of the pre-sentence report. He was given every

opportunity to state his version of the matter, and he

did so. That is the end of it.

ConcLusiIon

The judgments of the District Court, as to all appel-

lants, are

AFFIRMED.

17a

Judgment of the United States Court of Appeals

for the Fifth Circuit

UNITED STATES COURT OF APPEALS

For tue Firrx Circuir

No. 77-5811

D. C. Docker No. CRD77-29-K

Untrep States oF AMERICA,

Plaintiff-A ppellee,

Versus

Jesse P. Barnett, Jr., Barnett & Sons Satvace, Lrp.,

and Bruty D. Hicks,

Defendants-A ppellants.

Appeals from the United States District Court

for the Northern District of Mississippi

Before Coreman, Ciark and Rusry, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Northern District of Mississippi, and was argued by coun-

sel;

18a

Judgment of the United States Court of Appeals

for the Fifth Circuit

On Consmeration Wuereor, It is now here ordered

and adjudged by this Court that the judgments of the

said District Court in this cause be, and the same are

hereby, affirmed.

January 8, 1979

Issued As Mandate:

19a

Order Granting Stay of the Issuance of the Mandate

Pending Petition for Writ of Certiorari

IN THE

UNITED STATES COURT OF APPEALS

For tae Firra Circuir

No. 77-5811

Court of Appeals

Filed

Feb 5 1979

Ward W. Wadsworth

Clerk

Unirep States oF AMERICA,

Plaintiff-Appellee,

versus

Jesse P. Barnett, Jr., BAnnetr & Sons Sarvace, Lro.

and Butty D. Hicks,

Defendants-A ppellants.

—

Appeals from the United States District Court

for the Northern District of Mississippi

ORDER

The motion of Appellant, Billy D. Hicks for stay of

the issuance of the mandate pending petition for writ of

20a

Order Granting Stay of the Issuance of the Mandate

Pending Petition for Writ of Certiorari

certiorari is Grantep to and including February 15, 1979,

the stay to continue in foree until the final disposition of

the case by the Supreme Court, provided that within the

period above mentioned there shall be filed with the Clerk

of this Court the certificate of the Clerk of the Supreme

Court that the certiorari petition has been filed. The Clerk

shall issue the mandate upon the filing of a copy of an

order of the Supreme Court denying the writ, or upon the

expiration of the stay granted herein, unless the above

mentioned certificate shall be filed with the Clerk of this

Court_within that time.

/s/ James P. CoLteman

United States Circuit Judge

2la

Constitutional Provisions Involved

CoNnSTITUTION

OF THE

Unitep States or AMERICA

AMENDMENT 5

CRIMINAL ACTIONS—PROVISIONS CONCERNING—DUE PROCESS

OF LAW AND JUST COMPENSATION CLAUSES.

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

ease to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.

Sec. 9, Cu. 3. Brut oF arrarnDER—EXx POsT FACTO LAWS.

No Bill of Attainder or ex post facto Law shall be passed.

22a

Statutes Involved

Tit. 18, § 2

2. Prrncrpats.—(a) Whoever commits an offense against

the United States or aids, abets, counsels, commands, in-

duces or procures its commission, is punishable as a prin-

cipal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an of-

fense against the United States, is punishable as a prin-

cipal. (June 25, 1948, c. 645, § 1, 62 Stat. 684; Oct. 31,

1951, c. 655, § 17b, 65 Stat. 717.)

Tit. 18 § 371

Section 371. CoNspPmRAcy TO’ COMMIT OFFENSE OR TO DE-

rkauD Unitep Srares.—If two or more persons conspire

either to commit any offense against the United States,

or to defraud the United States or any agency thereof in

any manner or for any purpose, and one or more of such

persons do any act to effect the object to the conspiracy,

each shall be fined not more than $10,000 or imprisoned

not more than five years, or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the pun-

ishment for such conspiracy shall not exceed the maxi-

mum punishment provided for such misdemeanor. (June

25, 1948, c. 645, 4 1, 62 Stat. 701.)

23a

Statutes Involved

Tit. 21, § 321

§ 321. Derrnitions—GENERALLY

For the purposes of this Act—

(f{) The term “food” means (1) articles used for food

or drink for man or other animals, (2) chewing gum, and

(3) articles used for components of any such article.

Prouisirep Acts AND PENALTIES

Tit. 21 § 331

§ 331. ProHrpireD acts

The following acts and the causing thereof are hereby

prohibited :

(a) The introduction or delivery for introduction into

interstate commerce of any food, drug, device, or cos-

metic that is adulterated or misbranded.

(b) The adulteration or misbranding of any food, drug,

device, or cosmetic in interstate commerce.

drug, device, or cosmetic that is adulterated or mis-

branded, and the delivery or proffered delivery thereof

for pay or otherwise.

(d) The introduction or delivery for introduction into

interstate commerce of any article in violation of sec-

tion 404 or 505 [21 USCS § 344, or 355].

(e) The refusal to permit access to or copying of any

record as required by section 703 [21 USCS § 373];

or the failure to establish or maintain any record, or

make any report, required under section 505(i) or (j),

24a

Statutes Involv:d

507(d) or (g), or 512(j), (2), or (m) [21 USCS $§ 355

(i), (j), 357(d), (g), 360b(j), (1) (b)] or the refusal

to permit access to or verification or copying of any

such required record.

(f) The refusal to permit entry or inspection as au-

thorized by section 704 [21 USCS § 374].

Tit. 21 § 333

§ 333. Prnauties

(a) Any person who violates a provision of section 301

[21 USCS § 331] shall be imprisoned for not more than

one year or fined not more than $1,000 or both.

(b) Notwithstanding the provisions of subsection (a) of

this section, if any person commits such a violation after

a conviction of him under this section has become final,

or commits such a violation with the intent to defraud

or mislead, such person shall be imprisoned for not more

than three years or fined not more than $10,000 or both.

Tit. 21 ¢ 342

§ 342. ApULTERATED FOOD

A food shall be deemed to be adulterated—

(a) Poisonous, insanitary, or deleterious ingredients. (1)

If it bears or contains any poisonous or deleterious

substance which may render it injurious to health; but

in case the substance is not an added substance such

food shall not be considered adulterated under this

clause if the quantity of such substance in such food

does not ordinarily render it injurious to health; or (2)

(A) if it bears or contains any added poisonous or

25a

Siatutes Involved

added deleterious substance (other than one which is

(i) a pesticide chemical in or on a raw agricultural

commodity; (ii) a food additive; (iii) a color additive

or (iv) a new animal drug) which is unsafe within the

meaning of section 406 [21 USCS § 346], or (B) if it

is a raw agricultural commodity and it bears or con-

tains a pesticide chemical which is unsafe within the

meaning of section 408(a) [21 USCS § 346a(a)], or

which is unsafe within the meaning of section 409 [21

USCS § 348]: Provided, That where a pesticide chemi-

cal has been used in or on a raw agricultural commodity

in conformity with an exemption granted or a tolerance

prescribed under section 408 [21 USCS § 346a] and

such raw agricultural commodity has been subjected to

processing such as canning, cooking, freezing, dehy-

drating, or milling, the residue of such pesticide chemi-

cal remaining in or on such processed food shall, not-

withstanding the provisions of sections 406 and 409 [21

USCS §§ 346, 348], not be deemed unsafe if such resi-

due in or on the raw agricultural commodity has been

removed to the extent possible in good manufacturing

practice and the concentration of such residue in the

processed food when ready to eat is not greater than the

tolerance prescribed for the raw agriculture commod-

. ae

Tit. 21 § 343

§ 343. MisBraNDED FOOD

A food shall be deemed to be misbranded—

(a) False or misleading label. If its labeling is false or

misleading in any particular,

26a

Statutes Involved

Tit. 21 § 346a

§ 346a. ToLERANCES FOR PESTICIDE CHEMICALS IN OR ON

RAW AGRICULTURAL COMMODITIES

(a) Any poisonous or deleterious pesticide chemical, or

any pesticide chemical which is not generally recognized,

among experts qualified by scientific training and experi-

ence to evaluate the safety of pesticide chemicals, as safe

for use, added to a raw agricultural commodity, shall be

deemed unsafe for the purposes of the application of

clause (2) of section 402(a) [21 USCS § 342(a)(2)] un-

less—

(1) a tolerance for such pesticide chemical in or on the

raw agricultural commodity has been prescribed by the

Secretary of Health, Education, and Welfare under this

section and the quantity of such pesticide chemical in

or on the raw agricultural commodity is within the

limits of the tolerance so prescribed; or

(2) with respect to use in or on such raw agricultural

commodity, the pesticide chemical has been exempted

from the requirement of a tolerance by the Secretary

under this section.

While a tolerance or exemption from tolerance is in effect

for a pesticide chemical with respect to any raw agricul-

tural commodity, such raw agricultural commodity shall

not, by reason of bearing or containing any added amount

of such pesticide chemical, be considered to be adulter-

ated within the meaning of clause (1) of section 402(a)

[21 USCS § 342(a)(1)].

(b) The Secretary shall promulgate regulations establish-

ing tolerances with respect to the use in or on raw agri-

cultural commodities of poisonous or deleterious pesticide

27a

Statutes Involved

chemicals and of pesticide chemicals which are not gen-

erally recognized, among experts qualified by scientific

training and experience to evaluate the safety of pesticide

chemicals, as safe for use, to the extent necessary to pro-

tect the public health. In establishing any such regulation,

the Secretary shall give appropriate consideration, among

other relevant factors, (1) to the necessity for the pro-

duction of an adequate, wholesome, and economical food

supply; (2) to the other ways in which the consumer

may be affected by the same pesticide chemical or by other

related substances that are poisonous or deleterious; and

(3) to the epinion of the Secretary of Agriculture as

submitted with a certification of usefulness under subsec-

tion (l) of this section. Such regulations shall be promul-

gated in the manner prescribed in subsection (d) or (e)

of this section. In carrying out the provisions of this sec-

tion relating to the establishment of tolerances, the Secre-

tary may establish the tolerance applicable with respect

to ihe use of any pesticide chemical in or on any raw

agricultural commodity at zero level if the scientific data

before the Secretary does not justify the establishment

of a greater tolerance.

(ec) The Secretary shall promulgate regulations exempting

any pesticide chemical from the necessity of a tolerance

with respect to use in or on any or all raw agricultural com-

modities when such a tolerance is not necessary to protect

the public health. Such regulations shall be promulgated

in the manner prescribed in subsection (d) or (e) of this

section.

(d) (1) Any person who has registered, or who has sub-

mitted an application for the registration of, an economic

poison under the Federal Insecticide, Fungicide, and

Rodenticide Act [7 USCS 4$§ 121-134 note, 135 and notes

28a

Statutes Involved

—135k] may file with the Secretary of Health, Educa-

tion, and Welfare, a petition proposing the issuance of

a regulation establishing a tolerance for a pesticide chem-

ical which constitutes, or is an ingredient of, such eco-

nomic poison, or exempting the -pesticide chemical from

the requirement of a tolerance. The petition shall con-

tain data showing—

(A) the name, chemical identity, and composition of

the pesticide chemical ;

(B) the amount, frequency, and time of application of

the pesticide chemical ;

to the safety of the pesticide chemical ;

(D) the results of tests on the amount of residue re-

maining, including a description of the analytical meth-

ods used;

(E) practicable methods for removing residue which

exceeds any proposed tolerance;

(F) proposed tolerances for the pesticide chemical if

tolerances are proposed; and

(G) reasonable grounds in support of the petition.

Samples of the pesticide chemical shall be furnished to

the Secretary upon request. Notice of the filing of such

petition shall be published in general terms by the Sec-

retary within thirty days after filing. Such notice shall

include the analytical methods available for the deter-

mination of the residue of the pesticide chemical! for

which a tolerance or exemption is proposed.

(2) Within ninety days after a certification of useful-

ness by the Secretary of Agriculture under subsection

(1) with respect to the pesticide chemical shall after

29a

Statutes Involved

giving due consideration to the data submitted in the

petition or otherwise before him, by order make public

a regulation—

(A) establishing a tolerance for the pesticide chem-

ical named in the petition for the purposes for which

it is so certified as useful, or

(B) exempting the pesticide chemical from the neces-

sity of a tolerance for such purposes,

unless within such ninety-day period the person filing

the petition requests that the petition be referred to an

advisory committee or the Secretary within such period

otherwise deems such referral necessary, in either of

which events the provisions of paragraph (3) of this

subsection shall apply in lieu hereof.

(3) In the event that the person filing the petition re-

quests, within ninety days after a certification of useful-

ness by the Secretary of Agriculture under subsection

(1) with respect to the pesticide chemical named in the

petition, that the petition be referred to an advisory com-

mittee, or in the event the Secretary of Health, Educa-

tion, and Welfare within such period otherwise deems

such referral necessary, the Secretary of Health, Edu-

cation, and Welfare shall forthwith submit the petition

and other data before him to an advisory committee to

be appointed in accordance with subsection (g) of this

section. As soon as practicable after such referral, but

not later than sixty days thereafter, unless extended as

hereinafter provided, the committee shall, after inde-

pendent study of the data submitted to it by the Secre-

tary and other data before it, certify to the Secretary a

report and recommendations on the proposal in the pe-

tition to the Secretary, together with all underlying data

and a statement of the reasons or basis for the recom-

30a

Statutes Involved

mendations. The sixty-day period provided for herein

may be extended by the advisory committee for an addi-

tional thirty days if the advisory committee deems this

necessary. Within thirty days after such certification,

the Secretary shall, after giving due consideration to all

data then before him, including such report, reeommen-

dations, underlying data, and statement, by order make

public a regulation—

(A) establishing a tolerance for the pesticide chem-

ical named in the petition for the purposes for which

it is so certified as useful; or

(B) exempting the pesticide chemical from the neces-

sity of a tolerance for such purposes.

(4) The regulations published under paragraph (2) or

(3) of this subsection will be effective upon publication.

(5) Within thirty days after publication, any person ad-

versely affected by a regulation published pursuant to

paragraph (2) or (3) of this subsection, or pursuant to

subsection (e), may file objections thereto with the See-

retary, specifying with particularity the provisions of the

regulation deemed objectionable, stating reasonable

grounds therefor, and requesting a public hearing upon

such objection. A copy of the objections filed by a per-

son other than the petitioner shall be served on the peti-

tioner, if the regulation was issued pursuant to a peti-

tion. The petitioner shall have two weeks to make a

written reply to the objections. The Secretary shall

thereupon, after due notice, hold such public hearing for

the purpose of receiving evidence relevant and material

to the issues raised by such objection. Any report, rec-

ommendations, underlying data, and reasons certified to

the Secretary by an advisory committee shall be made a

OR a a Nn eo

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part of the record of the hearing, if relevant and ma-

terial, subject to the provisions of section 7(c) of the

Administrative Procedure Act (5 U.S. C. see. 1006(¢)).

The National Academy of Sciences shall designate a

member of the advisory committee to appear and testify

at any such hearing with respect to the report and rec-

ommendations of such committee upon request of the

Secretary, the petitioner, or. the officer conducting the

hearing: Provided, That this shall not preclude any other

member of the advisory committee from appearing and

testifying at such hearing. As soon as practicable after

completion of the hearing, the Secretary shall act upon

such objections and by order make a public regulation.

Such regulation shall be based only on substantial evi-

dence of record at such hearing, including any report,

recommendations, underlying data, and reasons certified

to the Secretary by an advisory committee, and shall

set forth detailed findings of fact upon which the regula-

tion is based. No such order shall take effect prior to

the ninetieth day after its publication, unless the Sec-

retary finds that emergency conditions exist necessitat-

ing an earlier effective date, in which event the Secretary

shall specify in the order of his findings as to such con-

ditions.

(e) The Secretary may at any time, upon his own initiative

or upon the request of any interested person, propose the

issuance of a regulation establishing a tolerance for a pesti-

cide chemical or exempting it from the necessity of a tol-

erance. Thirty days after publication of such a proposal,

the Secretary may by order publish a regulation based upon

the proposal which shall become effective upon publication

unless within such thirty-day period a person who has

registered, or who has submitted an application for the

registration of, an economic poison under the Federal In-

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secticide, Fungicide, and Rodenticide Act [7 USCS §§ 121-

134 note, 135 and notes—135k] containing the pesticide

chemical named in the proposal, requests that the proposal

he referred to an advisory committee. In the event of such

a request, the Secretary shall forthwith submit the pro-

posal and other relevant data before him to an advisory

committee to be appointed in accordance with subsection

(g) of this section. As soon as practicable after such re-

ferral, but not later than sixty days thereafter, unless ex-

tended as hereinafter provided, the committee shall, after

independent study of the data submitted to it by the See-

retary and other data before it, certify to the Secretary

a report and recommendations on the proposal together

with all underlying data and a statement of the reasons

or basis for the recommendations. The sixty-day period

provided for herein may be extended by the advisory

committee for an additional thirty days if the advisory

committee deem this necessary. Within thirty days after

such certification, the Secretary may, after giving due con-

sideration to all data before him, including such report,

recommendations, underlying data and statement, by order

publish a regulation establishing a tolerance for the pesti-

cide chemical named in the proposal or exempting it from

the necessity of a tolerance which shall become effective

upon publication. Regulations issued under this subsec-

tion shall upon publication be subject to paragraph (5) of

subsection (d).

(f) All data submitted to the Secretary or to an advis-

ory committee in support of a petition under this section

shall be considered confidential by the Secretary and by

such advisory committee until publication of a regulation

under paragraph (2) or (3) of subsection (d) of this

section. Until such publication, such data shall not be re-

vealed to any person other than those authorized by the

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Secretary or by an advisory committee in the carrying

out of their official duties under this section.

(¢) Whenever the referral of a petition or proposal to an

advisory committee is requested under this section, or

the Secretary otherwise deems such referral necessary

the Secretary shall forthwith appoint a committee of com-

petent experts to review the petition or proposal and to

make a report and recommendations thereon. Each such

advisory committee shall be composed of experts, qualified

in the subject matter of the petition and of adequately

diversified professional background selected by the Na-

tional Academy of Sciences and shall include one or more

representatives from land-grant colleges. The size of the

committee shall be determined by the Secretary. Mem-

bers of an advisory committee shall receive compensation

and travel expenses in accordance with subsection (b)(5)

(D) of section 706 [21 USCS § 376]. The members shall

not be subject to any other provisions of law regarding

the appointment and compensation of employees of the

United States, The Secretary shall furnish the committee

with adequate clerical and other assistance, and shall by

rules and regulations prescribe the procedure to be fol-

lowed by the committee.

(h) A person who has filed a petition or who has re-

quested the referral of a proposal to an advisory com-

mittee in accordance with the provisions of this section,

as well as representatives of the Department of Health,

Education, and Welfare, shall have the right to consult

with any advisory committee provided for in subsection

(gz) in connection with the petition or proposal.

(i) (1) In a ease of actual controversy as to the validity

of any order under subsection (d) (5), (e), or (1) any

person who will be adversely affected by such order may

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obtain judicial review by filing in the United States

Court of Appeals for the circuit wherein such person

resides or has his principal place of business, or in the

United States Court of Appeals for the District of

Columbia Circuit, within sixty days after the entry of

such order, a petition praying that the order be set aside

in whole or in part.

(2) In the case of a petition with respect to an order

under subsection (d) (5) or (e), a copy of the petition

shall be forthwith transmitted by the clerk of the court

to the Secretary, or any officer designated by him for

that purpose, and thereupon the Secretary shall file in

the court the record of the proceedings on which he

based his order, as provided in section 2112 of title 28,

United States Code. Upon the filing of such petition,

the court shall have exclusive jurisdiction to affirm or

set aside the order complained of in whole or in part.

The findings of the Secretary with respect to ques-

tions of fact shall be sustained if supported by substan-

tial evidence when considered on the record as a whole,

including any report and recommendation of an advisory

committee.

(3) In the case of a petition with respect to an order

under subsection (1), a copy of the petition shall be

forthwith transmitted by the clerk of the court to the

Secretary of Agriculture, or any officer designated by

him for that purpose, and thereupon the Secretary

shall file in the court the record of the proceedings on

which he based his order, as provided in section 2112

of title 28, United States Code. Upon the filing of such

petition, the court shall have exclusive jurisdiction to

affirm or set aside the order complained of in whole

or in part. The findings of the Secretary with respect

to questions of fact shall be sustained if supported by

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substantial evidence when considered on the record as

a whole.

(4) If application is made to the court for leave to ad-

duce additional evidence, the court may order such ad-

ditional evidence to be taken before the Secretary of

fleaith, Edueation and Welfare or the Secretary of

Agriculture, as the case may be, and to be adduced upon

the hearing in such manner and upon such terms and

conditions as to the court may seem proper, if such evi-

dence is material and there were reasonable grounds for

failure to adduce such evidence in the proceedings be-

low. The Secretary of Health, Education, and Welfare

or the Secretary of Agriculture, as the case may be,

may modify his findings as to the facts and order by

reason of the additional evidence so taken, and shall

file with the court such modified findings and order.

(5) The judgment of the court affirming or setting

aside, in whole or in part, any order under this section

shall be final, subject to review by the Supreme Court

of the United States upon certiorari or certification as

provided in section 1254 of title 28 of the United States

Code. The commencement of proceedings under this sec-

tion shall not, unless specifically ordered by the court

to the contrary, operate as a stay of an order. The

courts shall advance on the docket and expedite the dis-

position of all causes filed therein pursuant to this sec-

tion.

(j) The Secretary may, upon the request of any person

who has obtained an experimental permit for a pesticide

chemical under the Federal Insecticide, Fungicide, and

Rodenticide Act [7 USCS §§ 121-134 note, 135 and notes—

135k] or upon his own initiative, establish a temporary

tolerance for the pesticide chemical for the uses covered

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by the permit whenever in his judgment, such action is

deemed necessary to protect the public health, or may

temporarily exempt such pesticide chemical from a toler-

ance. In establishing such a tolerance, the Secretary shall

give due regard to the necessity- for experimental work

in developing an adequate, wholesome, and economical food

supply and to the limtied hazard to the public health in-

volved in such work when conducted in accordance with

applicable regulations under the Federal Insecticide,

TFungicide, and Rodenticide Act [7 USCS §§ 121-134 note,

135 and notes-135k].

(k) Regulations affecting pesticide chemicals in or on raw

agricultural commodities which are promulgated under the

authority of section 406(a) [21 USCS § 346(a)] upon the

basis of public hearings instituted before January 1, 1953,

in accordance with section 701(e) [21 USCS § 371(e)],

shall be deemed to be regulations under this section and

shall be subject to amendment or repeal as provided in

subsection (m).

(l) The Secretary of Agriculture, upon request of any per-

son who has registered, or who has submitted an applica-

tion for the registration of, an economic poison under the

Federal Insecticide, Fungicide, and Rodenticide Act [7

USCS §§ 121-134 note, 135 and notes—135k], and whose

request is accompanied by a copy of a petition filed by such

person under subsection (d)(1) with respect to a pesticide

chemical which constitutes, or is an ingredient of, such eco-

nomic poison, shall within thirty days or within sixty days

if upon notice prior to the termination of such thirty days

the Secretary deems it necessary to postpone action for

such period, on the basis of data before him, either—

(1) certify to the Secretary of Health, Education, and

Welfare that such pesticide chemical is useful for the

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purpose for which a tolerance or exemption is sought; or

(2) notify the person requesting the certification of his

proposal to certify that the pesticide chemical does not

appear to be useful for the purpose for which a tolerance

or exemption is sought, or appears to be useful for only

some of the purposes for which a tolerance or exemption

is sought.

In the event that the Secretary of Agriculture takes the

action described in clause (2) of the preceding sentence,

the person requesting the certification, within one week

after receiving the proposed certification, may either (A)

request the Secretary of Agriculture to certify to the Sec-

retary of Health, Education, and Welfare on the basis of

the proposed certification; (B) request a hearing on the

proposed certification or the parts thereof objected to; or

no such action is taken, the Secretary may by order make

the certification as proposed. In the event that the action

described in clause (A) or (C) is taken, the Secretary shall

by order make the certification as proposed with respect

to such parts thereof as are requested. It [In] the event a

hearing is requested, the Secretary of Agriculture shall

provide opportunity for a prompt hearing. The certifica-

tion of the Secretary of Agriculture as the result of such

hearing shall be made by order and shall be based only on

substantial evidence of record at the hearing and shall set

forth detailed findings of fact. In no event shall the time

elapsing between the making of a request for a certification

under this subsection and final certification by the Secre-

tary of Agriculture exceed one hundred and sixty days.

The Seccetary shall submit to the Secretary of Health,

Education, and Weifare with any certification of usefulness

under this subsection an opinion, based on the data before

him, whether the tolerance or exemption proposed by the

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petitioner reasonably reflects the amount of residue likely

to result when the pesticide chemical is used in the manner

proposed for the purpose for which the certification is

made. The Secretary of Agriculture, after due notice and

opportunity for public hearing, is authorized to promul-

gate rules and regulations for carrying out the provisions

of this subsection.

(m) The Secretary of Health, Education, and Welfare

shall prescribe by regulations the procedure by which reg-

ulations under this section may be amended or repealed,

and such procedure shall conform to the procedure pro-

vided in this section for the promulgation of regulations

establishing tolerances, including the appointment of ad-

visory committees and the procedure for referring petitions

to such committees.

(n) The provisions of section 303(c) of the Federal Food,

Irug, and Cosmetic Act [21 USCS § 333(¢c)] with respect

to the furnishing of guaranties shall be applicable to raw

agricultural commodities covered by this section.

(o) The Secretary of Health, Education, and Welfare shall

by regulation require the payment of such fees as will in

the aggregate, in the judgment of the Secretary, be suffi-

cient over a reasonable term to provide, equip, and main-

tain an adequate service for the performance of the Secre-

tary’s functions under this section. Under such regulations,

the performance of the Secretary’s services or other func-

tions pursuant to this section, including any one or more

of the following, may be conditioned upon the payment of

such fees: (1) The acceptance of filing of a petition sub-

mitted under subsection (d); (2) the promulgation of a

regulation establishing a tolerance, or an exemption from

the necessity of a tolerance, under this section, or the

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amendment or repeal of such a regulation; (3) the referral

of a petition or proposal under this section to an advisory

committee; (4) the acceptance for filing of objections under

subsection (d)(5); or (5) the certification and filing in

court of a transcript of the proceedings and the record

under subsection (i)(2). Such regulations may further

provide for waiver or refund of fees in whole or in part

when in the judgment of the Secretary such waiver or

refund is equitable and not contrary to the purposes of

this subsection.

Tit. 21 § 348

§ 348. Foop appITIVEs

(a) Unsare Foop appitives. A food additive shall, with

respect to any particular use or intended use of such addi-

tives, be deemed to be unsafe for the purposes of the ap-

lication of clause (2)(C) of section 402(a) [21 USCS

§ 342(a)(2)(C)], unless—

(1) it and its use or intended use conform to the terms

of an exemption which is in effect pursuant to subsection

(i) of this section; or

(2) there is in effect, and it and its use or intended use

are in conformity with, a regulation issued under this

section prescribing the conditions under which such

additive may be safely used.

While such a regulation relating to a food additive is in

effect, a food shall not, by reason of bearing or contain-

ing such an additive in accordance with the regulation,

be considered adulterated within the meaning of clause

(1) of section 402(a) [21 USCS § 342(a)(1)].

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(b) PrtrTion TO ESTABLISH SAFETY. (1) Any person may,

with respect to any intended use of a food additive, file

with the Secretary a petition proposing the issuance of

a regulation prescribing the conditions under which such

additive may be safely used. -

(2) Such petition shall, in addition to any explanatory

or supporting data, contain—

(A) the name and all pertinent information concern-

ing such food additive, including, where available, its

chemical identity and composition;

(B) a statement of the conditions of the proposed use

of such addit've, including all directions, reeommenda-

tions, and suggestions proposed for the use of such

additive, and including specimens of its proposed

labeling ;

technical effect such additive is intended to produce,

and the quantity of such additive required to produce

such effect;

(D) a description of practicable methods for deter-

mining the quantity of such additive in or on food,

and any substance formed in or on food, because of

its use; and

(E) full reports of investigations made with respect

to the safety for use of such additive, including full

information as to the methods and controls used in

conducting such investigations.

(3) Upon request of the Secretary, the petitioner shall

furnish (or, if the petitioner is not the manufacturer

of such additive, the petitioner shall have the manu-

facturer of such additive furnish, without disclosure to

Se ee ee ee eee eaten a

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the petitioner) a full description of the methods used in,

and the facilities and controls used for, the production

of such additive.

(4) Upon request of the Secretary, the petitioner shall

furnish samples of the food additive involved, or articles

used as components thereof, and of the food in or on

which the additive is proposed to be used.

(5) Notice of the regulation proposed by the petitioner

shall be published in general terms by the Secretary

within thirty days after filing.

(ec) AcTIOoN ON THE PETITION. (1) The Secretary shall—

(A) by order establish a regulation (whether or not in

accord with that proposed by the petitioner) prescrib-

ing, with respect to one or mo-2 proposed uses of the

food additive involved, the conditions under which

such additive may be safely used (including, but not

limited to, specifications as to the particular food or

classes of food in or in which such additive may be

used, the maximum quantity which may be used or

permitted to remain in or on such food, the manner

in which such additive may be added to or used in or

on such food, and any directions or other labeling or

packaging requirements for such additive deemed nec-

essary by him to assure the safety of such use), and

shall notify the petitioner of such order and the rea-

sons for such action; or

(B) by order deny the petition, and shall notify the

petitioner of such order and of the reasons for such

action.

(2) The order required by paragraph (1)(A) or (B) of”

this subsection shall be issued within ninety days after

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the date of filing of the petition. except that the Secre-

tary may (prior to such ninetieth day), by written no-

tice to the petitioner, extend such ninety-day period to

such time (not more than one hundred and eighty days

after the date of filing of the petition) as the Secretary

deems necessary to enable him to study and investigate

the petition.

(3) No such regulation shall issue if a fair evaluation

of the data before the Secretary—

(A) fails to establish that the proposed use of the food

additive, under the conditions of use to be specified

in the regulation, will be safe: Provided, That no ad-

ditive shall be deemed to be safe if it is found to in-

duce cancer when ingested by man or animal, or if it

is found, after tests which are appropriate for the

evaluation of the safety of food additives, to induce

cancer in man or animal, except that this proviso shall

not apply with respect to the use of a substance as an

ingredient of feed for animals which are raised for

food production, if the Secretary finds (i) that, under

the conditions of use and feeding specified in proposed

labeling and reasonably certain to be followed in prac-

tice, such additive will not adversely affect the animals

for which such feed is intended, and (ii) that no resi-

due of the additive will be found (by methods of ex-

' amination prescribed or approved by the Secretary by

regulations, which regulations shall not be subject to

subsections (f) and (g) in any edible portion of such

animal after slaughter or in any food yielded by or

derived from the living animal; or

(B) shows that the proposed use of the additive would

promote deception of the consumer in violation of this

Act or would otherwise result in adulteration or in mis-

branding of food within the meaning of this Act.

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(4) If, in the judgment of the Secretary, based upon a

fair evaluation of the data before him, a tolerance limita-

tion is required in order to assure that the proposed use

of an additive will be safe, the Secretary—

(A) shall not fix such tolerance limitation at a level

higher than he finds to be reasonably required to ac-

complish the physical or other technical effect for which

such additive is intended; and

(B) shall not establish a regulation for such proposed

use if he finds upon a fair evaluation of the data be-

fore him that such data do not establish that such use

would accomplish the intended physical or other tech-

nical effect.

(5) In determining, for the purposes of this section,

whether a proposed use of a food additive is safe, the

Secretary shall consider among other relevant factors—

(A) the probable consumption of the additive and of

any substance formed in or on food because of the use

of the additive;

(B) the cumulative effect of such additive in the diet

of man or animals, taking into account any chemically

or pharmacologically related substance or substances

in such diet; and

ified by scientific training and experience to evaluate

the safety of food additives are generally recognized

as appropriate for the use of animal experimentation

data.

(d) ReauLation IssuED oN SEcRETARY’s INITIATIVE. The

Secretary may at any time, upon his own initiative, pro-

pose the issuance of a regulation prescribing, with re-

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spect to any particular use of a food additive, the con-

ditions under which such additive may be safely used,

and the reasons therefor. After the thirtieth day follow-

ing publication of such a proposal, the Secretary may by

order establish a regulation based upon the proposal.

(e) PUBLICATION AND EFFECTIVE DATE OF ORDERS. Any order,

including any regulation established by such order, is-

sued under subsection (c) or (c.) of this section, shall be

effective upon publication, but the Secretary may stay

such effectiveness if, after issuance of such order, a hear-

ing is sought with respect to such order pursuant to sub-

section (f).

(£) OpsEcTIONS AND PUBLIC HEARING. (1) Within thirty

days after publication of an order made pursuant to

subsection (c) or (d) of this section, any person ad-

versely affected by such an order may file objections

thereto with the Secretary, specifying with particularity

the provisions of the order deemed objectionable, stating

reasonable grounds therefor, and requesting a public

hearing upon such objections. The Secretary shall,

after due notice, as promptly as possible hold such

public hearing for the purpose of receiving evidence

relevant and material to the issues raised by such ob-

jections. As soon as practicable after completion of

the hearing, the Secretary shall by order act upon such

objections and make such order public.

(2) Such order shall be based upon a fair evaluation

of the entire reeord at such hearing, and shall inelude

a statement setting forth in detail the findings and con-

clusions upon which the order is based.

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(3) The Seeretary shall specify in the order the date on

which it shall take effect, except that it shall not be

made to take effect prior to the ninetieth day after its

publication, unless the Secretary finds that emergency

conditions exist necessitating an earlier effective date,

in which event the Secretary shall specify in the order

his findings as to such conditions.

(g) JuprctaL review. (1) In a ease of actual controversy

as to the validity of any order issued under subsection

(f), including any order thereunder with respect to

amendment or repeal of a regulation issued under this

section, any person who will be adversely affected by

such order may obtain judicial review by filing in the

United States Court of Appeals for the circuit wherein

such person resides or has his principal place of busi-

ness, or in the United States Court of Appeals for the

District of Columbia Cireuit, within sixty days after

the entry of such order, a petition praying that the

order be set aside in whole or in part.

(2) A copy of such petition shall be forthwith trans-

mitted by the clerk of the court to the Secretary, or any

officer designated by him for that purpose, and there-

upon the Secretary shall file in the court the record of

the proceedings on which he based his order, as pro-

vided in section 2112 of title 28, United States Code.

Upon the filing of such petition the court shall have

jurisdiction, which upon the filing of the record with it

shall be exclusive, to affirm or set aside the order com-

plained of in whole or in part. Until the filing of the

record the Secretary may modify or set aside his order.

(3) The court, on such judicial review, shall not sus-

tain the order of the Secretary if he failed to comply

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with any requirement imposed on him by subsection (f)

(2) of this section.

(4) If application is made to the court for leave to ad-

duce additional evidence, the court may order such ad-

ditional evidence to be taken before the Secretary and

to be adduced upon the hearing in such manner and

upon such terms and conditions as the court may seem

proper, if such evidence is material and there were rea-

sonable grounds for failure to adduce such evidence in

the proceedings below. The Secretary may modify his

findings as to the facts and order by reason of the ad-

ditional evidence so taken, and shall file with the court

such modified findings and order.

(5) The judgment of the court affirming or setting

aside, in whole or in part, any order under this section

shall be final, subject to review by the Supreme Court

of the United States upon certiorari or certification as

provided in section 1254 of title 28 of the United States

Code. The commencement of proceedings under this sec-

tion shall not, unless specifically ordered by the court to

the contrary, operate as a stay of an order.

(h) AMENDMENT OR REPEAL OF REGULATIONS. The Secretary

shall by regulation prescribe the procedure by which regu-

lations under the foregoing provisions of this seztion may

be amended or repealed, and such procedure shall con-

form to the procedure provided in this section for the

promulgation of such regulations.

(i) EXEMPTIONS FOR INVESTIGATIONAL USE. Without regard

to subsections (b) to (h), inclusive of this section, the

Secretary shall by regulation provide for exempting from

the requirements of this section any food additive, and

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any food bearing or containing such additive, intended

solely for investigational use by qualified experts when in

his opinion such exemption is consistent with the public

health.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.