transporting cherries owned by another person) who handles cherries[" (7 C.F.R. § 923.12)]. Section 923.13 [of the Cherry Order] expands upon what is meant by handle[, as follows]:

Handle and ship are synonymous and mean to sell, consign, deliver, or transport cherries or cause the sale, consignment, delivery, or transportation of cherries or in any other way to place cherries, or cause cherries to be placed, in the current of the commerce from any point within the production area to any point outside thereof: Provided, That the term "handle" shall not include the transportation within the production area of cherries from the orchard where grown to a packing facility located within such area for preparation for market, or the delivery of such cherries to such packing facility for such preparation.

[7 C.F.R. § 923.13.]

11. Hoverhawk, Inc., and Lyons & Son, Inc., describe themselves as growers of Rainier cherries (Tr. 175, 181-189, 392). They do not meet the definition of "handler" and [are] dismissed as Petitioners.

Conclusions

The [AMAA] authorizes the Secretary of Agriculture to promulgate marketing orders for certain fruits and vegetables. Marketing orders are implemented by committees composed of members of the regulated industry. The committees recommend... regulations to the Secretary to effectuate the marketing orders and to govern such matters as fruit size, fruit maturity, and advertising. The Secretary may adopt committees' recommendations through informal rule making. The [costs associated with administering] the marketing orders are funded through assessments imposed on fruit handlers based upon the volume of fruit they ship. The committees are required to submit annual budgets to the Secretary, along with a recommendation as to the rate of assessment for [each] year. The Secretary approves the committees' budget and the assessment to be imposed on handlers for each year in the form of a regulation.

Petitioner Auvil maintains that the criteria [for] size designation were [developed] without determining the scientific relationship between size and sugar content and the further distinction between cherries grown at lower elevations (500 feet to 1500 feet) and those grown at higher elevations (1500 feet to 2500 feet). Moreover, [Petitioner Auvil] asserts... that such criteria did not include sugar

56 Agric. Dec. 1045

content. Petitioner Auvil maintains that size is an unreliable indicator of maturity and flavor.

In addition, Petitioner Auvil maintains [that] the [Washington Cherry Marketing] Committee's recommendation of a minimum size of 11 row and a 17 Brix minimum was without objective basis, and that absolutely no scientific evidence was presented to support size as an indicator of maturity. Further, Petitioner alleges that the Committee did not discuss certain vital matters, such as whether a parity price had been set for Rainier cherries, what such price was, and how its proposal would affect high altitude growers and small family farms. Moreover, [Petitioner Auvil] alleges the Committee's actions were an attempt to [escalate] prices for the benefit of some farmers and to the detriment of other farmers in the higher elevations.

Petitioner Auvil alleges that the [size requirement for Rainier Cherries in the] Cherry Order constitutes an inverse condemnation of private property under the Fifth Amendment of the United States Constitution. [Petitioner Auvil] further alleges that the Department acted arbitrarily and capriciously when it adopted the [final rule published June 21, 1994 (59 Fed. Reg. 31,917), amending the] Cherry Order. In addition, [Petitioner Auvil] alleges the Department violated its substantive due process rights guaranteed by the Fifth Amendment to the United States Constitution.

It is well-settled that the burden of proof in a... proceeding [instituted under section 8c(15)(A) of the AMAA (7 U.S.C. § 608c(15)(A))] rests with the Petitioner, who has the burden of proving that the challenged marketing order provisions or obligations are not in accordance with law. In re Borden, Inc., 46 Agric. Dec. 1315 (1987), aff'd, No. H-88-1863 (S.D. Tex. Feb. 13, 1990)[, printed in 50 Agric. Dec. 1135 (1991)].

The scope of review is set forth in section 10(e) of the Administrative Procedure Act,... which provides . . . .:

[§ 706. Scope of review

... The reviewing court shall

(2)

hold unlawful and set aside agency action,

findings, and conclusions found to be-]

(A) arbitrary, capricious, an

abuse of discretion, or otherwise not in

Petitioner has the burden of proving that the rule making record does not provide the requisite level of support for the Secretary's findings and conclusions. In re Sunny Hill Farms Dairy Co., 26 Agric. Dec. 201 (1967), aff'd, 446 F.2d 1124 (8th Cir. 1971), cert. denied, 405 U.S. 917 (1972). In the absence of clear evidence to the contrary, administrative regulations are presumed to be based on facts justifying the Secretary's exercise of statutory authority. Lewes Dairy, Inc. v. Freeman, 401 F.2d 308 (3d Cir. 1968), cert. denied, 394 U.S. 929 (1969).

This proceeding does not afford Petitioner a forum to debate questions of policy, desirability, or effectiveness of order provisions. In re Sunny Hill Farms Dairy Co., supra. The responsibility for selecting the best means of achieving the statutory policy and the relationship between the remedy selected and such policy are peculiarly matters of administrative expertise. In re Defiance Milk Products Co., 44 Agric Dec. 11 (1985), aff'd, 857 F.2d 1065 (6th Cir. 1988).

The fact that Petitioner has the burden of proof in this proceeding and that this is not a proceeding to "second guess" the Secretary's policy judgments is set forth in many decisions, as follows:

It is well settled that the burden of proof in an 8c(15)(A) review proceeding rests with the petitioner. Petitioner in this proceeding has the burden of proving that the challenged Order provisions and obligations imposed upon it were "not in accordance with law" (7 U.S.C. 608c(15)(A)).

56 Agric. Dec. 1045

See Lewes Dairy, Inc. v. Freeman, 401 F.2d 308, 316-317 (C.A. 3), certiorari denied, 394 U.S. 929; Boonville Farms Cooperative, Inc. v. Freeman, 358 F.2d 681, 682 (C.A. 2); United States v. Mills, 315 F.2d 828, 836, 838 (C.A. 4), certiorari denied, 374 U.S. 832, 375 U.S. 819; Windham Creamery, Inc. v. Freeman, 230 F. Supp. 632, 635-636 (D.N.J.) affirmed, 350 F.2d 978 (C.A. 3), certiorari denied, 382 U.S. 979; Bailey Farm Dairy Co. v. Jones, 61 F. Supp. 209, 217 (E.D. Mo.), affirmed, 157 F.2d 87 (C.A. 8), certiorari denied, 329 U.S. 788; Wawa Dairy Farms v. Wickard, 56 F. Supp. 67, 70 (E.D. Pa.), affirmed, 149 F.2d 860, 862-863 (C.A. 3); In re Clyde Lisonbee, 31 Agriculture Decisions 952, 961 (1972); In re Fitchett Brothers, Inc., 31 Agriculture Decisions 1552, 1571 (1972).

The inquiry here does not encompass questions of policy, desirability, or the evaluation of the effectiveness of economic and marketing regulations issued pursuant to the Act. See In re Independent Milk Producer-Distributors' Assoc., 20 Agriculture Decisions 1, 18 (1961); In re Charles P. Mosby, Jr., d/b/a Cedar Grove Farms, 16 Agriculture Decisions 1209, 1220 (1957), affirmed, Southern Dist. Miss., January 5, 1959. See, also, Pacific States Co. v. White, 296 U.S. 176, 182.

The responsibility for selecting the means of achieving the statutory policy and the relationship between the remedy selected and such policy are peculiarly matters of administrative competence. American Power Co. v. S.E.C., 329 U.S. 90, 112; Secretary of Agriculture v. Central Roig [Ref.] Co., 338 U.S. 604, 610-614.

Without a showing that the action of the Secretary was arbitrary, his action is presumed to be valid. Benson v. Schofield, 236 F.2d 719, 722 (C.A.D.C.), certiorari denied, 352 U.S. 976; Reed v. Franke, 297 F.2d 17, 25-26 (C.A. 4). Mere assertions of illegality are not sufficient to have an order provision or administrative decision declared illegal. In re College Club Dairy, Inc., 15 Agriculture Decisions 367, 373 (1956).

There is a presumption of regularity with respect to the official acts of public officers and, "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, 272 U.S. 1, 14-15. Accord: [Panno v. United States, 203 F.2d 504, 509 (9th Cir. 1953);] Reines v. Woods, 192

F.2d 83, 85 (Emerg. C.A.); National Labor Relations Board v. Bibb Mfg. Co., 188 F.2d 825, 827 (C.A. 5); Woods v. Tate, 171 F.2d 511, 513 (C.A. 5); Pasadena Research Laboratories v. United States, 169 F.2d 375, 381 (C.A. 9), certiorari denied, 335 U.S. 853; Laughlin v. Cummings, 105 F.2d 71, 73 (C.A.D.C.). Specifically, administrative orders and regulations are presumed to be based on facts justifying the specific exercise of the delegated authority. United States v. Rock Royal Co-op., 307 U.S. 533, 567-568 (a case under the Act involved herein); Thompson v. Consolidated Gas Co., 300 U.S. 55, 69; Pacific States Co. v. White, 296 U.S. 176, 185186.

In re Michaels Dairies, Inc., 33 Agric. Dec. 16[6]3, 1701-02 (1974), aff'd, No. 2275 (D.D.C. Aug. 21, 1975), printed in 34 Agric. Dec. 1319 (1975), aff'd mem., 546 F.2d 1043 (D.C. Cir. 1976).

The "narrow" scope of review under the arbitrary and capricious standard of the Administrative Procedure Act (5 U.S.C. § 706(2)(A)) is set forth in Citizens to Preserve Overton Park, as follows:

Section 706(2)(A) requires a finding that the actual choice made was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (citations omitted).

The court further stated:

But we can discern in the Commission's opinion a rational basis for its treatment of the evidence, and the "arbitrary and capricious" test does not require more.

Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 290 (1974).

The "narrow" scope of review under 5 U.S.C. § 706(2)(A), i.e., "arbitrary,