Full opinion text
MEMORANDUM DECISION AND ORDER RE: (1) PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; (2) FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; (3) FEDERAL DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE; and (4) INTERVENOR-DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE (DOCS. 23, 31, 34, and 39) WANGER, District Judge. I. INTRODUCTION Cactus Corner, LLC, Venida Packing Company, California Citrus Mutual, and the California Grape and Tree Fruit League (“Plaintiffs”) sue the United States Department of Agriculture, Secretary of Agriculture Ann M. Veneman, and Bobby R. Acord, the Administrator of the Department of Agriculture’s Animal and Plant Health Inspection Service (“Defendants” or “Federal Defendants”) seeking judicial review of a final rule entitled “Importation of Clementines from Spain” (the “Rule”) promulgated in 67 Fed.Reg. 64702 (October 21, 2002), effective October 15, 2002. See Doc. 1, Complaint for Declaratory and Injunctive Relief (“Complaint”) at ¶¶ 1, 4-10. Plaintiffs advance four claims, that the Rule is: (1) inconsistent with and in excess of Defendants’ statutory authority under the Plant Protection Act, 7 U.S.C. §§ 7701 et seq., as provided in section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(C); (2) “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law” as provided in section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A); (3) violative of the Regulatory Flexibility Act, 5 U.S.C. §§ 601 et seq., and fails to observe procedure required by law, namely the preparation of an initial or final regulatory flexibility analysis for the Rule required by the Regulatory Flexibility Act (RFA), the deci-sional standards required under the PPA, and (4) violative of section 102 of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. See id. at 10. Plaintiffs seek declaratory and injunc-tive relief to set aside and hold the Rule unlawful, to enjoin Defendants from implementing it or otherwise allowing the importation of clementines from Spain. See id. at 10. Plaintiffs also seek an award of costs, disbursements, and reasonable attorneys’ fees. See id. On November 12, 2002, Inter Citrus, Ibertrade Commercial Corporation, LGS Specialty Sales, Ltd., and Luke G. Sears (Intervenor Defendants) moved under Fed.R.Civ.P. 24(a)(2) to intervene in the case as a matter of right. See Doc. 6. On December 20, 2002, the motion to intervene was granted. See Doc. 11, filed Jan. 7, 2003. Plaintiffs move for summary judgment. See Doc. 23, filed .Mar. 24, 2003, and Doc. 24. Federal Defendants filed a cross-motion and supporting memorandum for summary judgment. See Doc. 31, filed Apr. 25, 2003, and Doc. 32. Intervenor-Defen-dants filed opposition. See Doc. 30 filed Apr. 22, 2003. Plaintiffs filed opposition to Federal Defendants’ motion and a response to Intervenor-Defendants’ opposition to Plaintiffs’ motion. See Doc. 38 filed May 27, 2003. Federal Defendants filed a response to Plaintiffs’ opposition. See Doc. 43 filed Jun. 19, 2003. Pursuant to Fed.R.Evid. 201, Federal Defendants request the Court take judicial notice of a report entitled “Spanish Clementine Data Report and Analysis,” published on the website of the United States Department of Agriculture, Animal and Plant Health Inspection Service (“APHIS”). See Doc. 34, filed Apr. 28, 2003. Intervenor-Defendants request the Court take judicial notice of a letter entitled “Clementine Stakeholder Letter,” authored by the Department of Agriculture and published on its website. See Doc. 39, filed Jun. 10, 2003. Plaintiffs objected to both requests. See Doc., 35 filed May 1, 2003, and Doc. 40, filed Jun. 16, 2003. Intervenor-Defendants filed a supporting memorandum. See Doc. 36, filed May 8, 2003. A. Jurisdiction. Jurisdiction over the parties exists under 28 U.S.C. § 1331 and authority to grant the declaratory and. injunctive relief sought by Plaintiffs is provided under 28 U.S.C. § 2201 and 5 U.S.C. §§. 705 and 706. Oral argument was heard on January 8, 2004. II. BACKGROUND . A. Undisputed Material Facts On March 24, 2003, the parties submitted a statement of stipulated'facts pursuant to Local Rule 56-260(c). See Doc. 25. The parties agree that “this action for judicial review of an agency rule can be decided by the Court on the basis of the Motion, Opposition thereto and Cross-Motions for Summary Judgment, the responsive pleadings, the stipulated facts set forth below, and the Administrative Record filed by the Federal Defendants-on the understanding that, to do so, the Court will have to examine the portions of the Administrative Record (AR) cited by the parties.” See id. at 1-2:28-5. The parties further stipulated that “[bjecause this case involves judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2), the Court’s decision on the cross-motions for summary judgment does not involve an inquiry into whether there are any genuine issues of material fact.” Doc. 25 at 2:5-7 (citing Northwest Motorcycle Association v. United States Department of Agriculture, 18 F.3d 1468, 1472 (9th Cir.1994); Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994)). The parties agree the following are undisputed material facts: 1.On December 5, 2001, following reports of live Mediterranean fruit fly (“Medfly”) larvae being found in Spanish clementines purchased at retail outlets in a number of states, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) suspended imports of clementines from Spain indefinitely and initiated an investigation. (Doc. 25 at 2:10-13). 2. On July 11, 2002, APHIS published a proposed rule that would authorize a resumption of Spanish clementine imports on specific conditions. 67 Fed. Reg. 45922. APHIS held two public hearings and accepted comments on the proposal until September 9, 2002. (See id. at 2:14^16). 3. On October 15, 2002, APHIS promulgated the final rule (“Rule”) that is the subject of this action. The Rule, which was published in the Federal Register on October 21, 2002, 67 Fed.Reg. 64702, allows the importation of clementines grown in regions of Spain where Medfly is found — as long as certain conditions specified in the Rule are met. (See id. at 2:17-20). 4. APHIS did not prepare an initial or final regulatory flexibility analysis for the Rule, because it determined that the Rule will not have a significant economic impact on a substantial number of small entities. That determination was based on a Regulatory Impact Analysis dated October 15, 2002. 5. The relevant facts for purposes of judicial review are contained in the Administrative Record that APHIS filed with the Court on February 13, 2003. The parties hold differing views as to the meaning, significance, and implications of these facts and will express those views, with appropriate references to the Administrative Record, in their respective pleadings. {See id. at 2:25-28). B. Factual Background i. Events Leading up to the Import Suspension of Spanish Clementines in 2001 Clementines (several varieties of Citrus reticulata) from Spain have been imported into the United States for over fifteen years. See A.R. 1230. (“The U.S. Department of Agriculture (USDA) has allowed the importation of clementines from Spain since 1985.” A.R. 1130). Prior to the import ban of 2001, Federal Defendants allowed the importation of Spanish clementines under a regimen of cold treatment that was designed to prevent the risk of the Mediterranean Fruit Fly (“Medfly”) using the imported citrus as a pathway into the United States. See A.R. 1130, 1238. The pre-ban cold treatment regimen was specified in the Plant Protection and Quarantine Manual (7 C.F.R. § 300.1), which required fruit to be held at the following temperatures: Temperature Exposure Period (Days) 32°F or below 10 33°F or below 11 34°F or below 12 35°F or below 13 36°F or below 14 Pursuant to 7 C.F.R. § 319.56-2(e), Federal Defendants allowed the import of Spanish clementines under permit, subject to inspection at the port of entry to ensure the implementation of cold treatment measures. See A.R. 1130; see also, Statement of Dr. Inder P.S. Gadh (“Gadh”), APHIS Officer, A.R. 1054 (Inspection at the port of entry was “to verify the cold treatment documents, to take pulp temperatures, and also to do some spot checking for other pest other than the fruit fly.”) “Prior to November and December 2001, there had never been multiple confirmed finds of Medflies in fruit of any kind that had been legally imported into the mainland United States from any source.” See A.R. 1130. According to Dr. Gadh, the cold treatment regimen “worked very well since its inception in 1985 other than sporadic incidents of some shipments not making cold treatment or some suspicious looking fruit flies being reported as live but turned out to be dead, when checked.” See Gadh, A.R. 1054. Throughout the history of importation of clementines from Spain, “there was no [sic] major incidents to thwart or to raise alarms,” until late 2001. See A.R. at 1054. Between late November and December 2001, APHIS began receiving reports of live Medfly larvae in clementines from Spain. See Doc. 19, Notice of Filing, A.R. 1282, 67 Fed.Reg. 64702, filed Feb. 25, 2003. A list of live Medfly larvae finds discovered in clementines imported from Spain includes: (1) On November 20, 2001, live Medfly larvae were found in Avon, North Carolina by a consumer, who was also a North Carolina Department of Agriculture official. See A.R. 87, Richard L. Dunkle Letter to the Honorable Luis M. Esterue-las, dated Jan. 4, 2002. A North Carolina State Agriculture Inspector was able to collect 4-5 live pupae from the infested clementine. See id. at 121, Letter to No-boru Saito, dated Dec. 19, 2001. The fruit in which larvae were detected were traced back to a shipment aboard the “M/V Green Maloy” which arrived in Philadelphia on November 10, 2001. See id. at 87. (2) On November 27, 2001, live larvae were found by an APHIS employee in Bowie, Maryland, and were confirmed to be alive by a Plant Protection & Quarantine (“PPQ”) Identification staff specialist. See id. The infested fruit was traced back to the “M/V Green Maloy” and was also found in “Nadel” brand Spanish clementines. See id. at 88. (3) On December 3, 2001, in Santa Clara County, California, live larvae were found in Spanish clementines by county agriculture officials. See id. Fourteen “third instar” larvae were detected, four or five of which were alive. See A.R. at 121. The infested fruits were identified as “Bagu” brand, see id. at 88, were not in their original boxes, and were re-labeled as “LOT 4450 CUTIES,” a California brand. See A.R. at 121. The clementines were from Nob Hill Foods in San Jose, California, an urban supermarket not within close proximity to any citrus-producing areas. See id. (4) On December 4, 2001, eight live larvae were found by APHIS and PPQ officers in Shreveport, Louisiana. See id. at 88; A.R. at 166, Clementine Oranges from Spain: Talking Points (“Talking Points”), dated Dec. 5, 2001. “The larvae were identified as Tephritidae, and the only Tephritid in Spain is Medfly.” See Talking Points at 166. The infested fruit was traced back to a shipment which arrived on November 7, 2001 on the “M/V Japan Senator” in Newark, New Jersey. See A.R. at 88. The clementines were identified as “Evyan” brand and the “Japan Senator” contained four (4) containers of “Evyan” brand Spanish clementines: HJCU 6986080, HJCU 6010734, HJCU 6984683, and HJCU 6051271. See id. (5) On December 6, 2001, live larvae were found in Riverside and San Diego Counties, in the State of California, by county agriculture officials. See id. The infested fruit was found in “Elite” and “Llusar” brand Spanish clementines. See id. (6) On December 7, 2001, county agriculture officials in Riverside County, California, found live larvae in “Bagu” and “Llusar” brand Spanish clementines. See id. In addition to live Medfly larvae found in Spanish clementines, APHIS inspectors “found hundreds of dead larvae [during] the 2001 shipping season.” See id. at 115, APHIS Letter to Congressman Robert A. Borski, dated Apr. 22, 2002. The “unusually high number of dead Medfly [larvae] reported” is “indicative of an unusually high Medfly infestation in fruit coming from Spain this shipping season.” See id. at 163, Richard L. Dunkle Letter to Dr. Raphael Milan (“Letter Suspending Spanish Clementine Imports”), dated Dec. 5, 2001. Following these finds, APHIS initiated fruit cutting measures at United States’ ports of entry to ensure that appropriate cold treatment measures were in place. See id. at 126. On November 30, 2001, APHIS notified the Spanish Government that clementine imports were suspended pending completion of an investigation. See id. On December 4, 2001, APHIS notified the Government of Spain that clementine imports would resume on December 5th, after preliminary investigations indicated that the anomaly was limited to the “M/V Green Maloy.” See id. at 126; see also, A.R. 95-109, Cold Treatment Records for the MTV Green Maloy. The following day, APHIS notified the Spanish Government that “it was suspending the importation of clementines[,]” that “all shipments of clementines from Spain were refused entry into the United States,” and “restrictions on the marketing of Spanish clementines that had already been released into domestic commerce” would take effect immediately. See A.R. 1282, Final Rule, 67 Fed.Reg. 64702. ii. The December 5, 2001 Import Suspension, the Dangers Associated ivith the Mediterranean Fruit Fly, and the Secretary of Agriculture’s Authority under Section 7712(a) of the Plant Protection Act On December 5, 2001, based on the findings of live Medfly larvae in clementines imported from Spain, APHIS took the “emergency action of suspending the entry of Clementine citrus from Spain.” See Letter Suspending Spanish Clementine Imports. The same day, APHIS wrote clementine Stakeholders, stating the danger of the possibility of Medfly introduction in the United States and the remedial measures taken: The Medfly (Ceratitis capitata) is one of the world’s most destructive agricultural pests, threatening more than 20 kinds of fruits, nuts, and vegetables. The female Medfly attacks ripening fruit, piercing the soft skin and laying eggs in the puncture. The eggs hatch into larvae, which feed inside the fruit pulp. The United States has no established Medfly populations, and USDA has taken the following steps to guard against further introduction: • All imports of clementines from Spain are suspended until further notice. • Clementines cannot be moved into the following States due to climatic conditions and host materials that are favorable to Medflies: Alabama, Arizona, Arkansas, California, Florida, Georgia, Louisiana, Mississippi, North Carolina, Nevada, New Mexico, Oklahoma, Oregon, South Carolina, Tennessee, Texas, and Washington. This prohibition includes Puerto Rico. • Wholesalers and retailers may not sell or distribute clementines from Spain in the States listed above. The fruit must be removed from retail shelves and held for destruction in the States listed above or shipped to approved States. • Destruction or movement of fruit should be with advance approval from State agriculture or local USDA Plant Protection and Quarantine (PPQ) officials. State and PPQ contacts may be found on the APHIS website at www. aphis.usda.gov/ppq. • States that can receive Spanish clementines from prohibited States are as follows: Idaho, Iowa, Utah, Montana, Wyoming, West Virginia, Colorado, Kansas, Nebraska, South Dakota, North Dakota, Minnesota, Wisconsin, Illinois, Missouri, Indiana, Michigan, Ohio, Kentucky, Virginia, Pennsylvania, Maryland, Delaware, Hawaii, New Jersey, the District of Columbia, Rhode Island, Massachusetts, New York, New Hampshire, Vermont,... Maine, Alaska, and Connecticut. • Spanish clementines already in the United States will be authorized movement to Canada by USDA, PPQ officials on a case-by-case basis.” See A.R. at 164-65. At the same time, the Spanish Government dismissed the reports that live Medfiy larvae were found in clementines imported from Spain, stating that “cold treatment eliminates any possibility whatsoever of the larvae... survivingt,]” and that, as a result, “the presence of live larvae in the Spanish clementines defies explanation.” See A.R. at 173, Letter from Miguel Arias Cañete, Minister of Agriculture, Fisheries & Food of Spain to Ann M. Veneman, dated Dec. 5, 2001. On December 12, 2001, Mr. Luis M. Esteruelas, on behalf of the Spanish Ministry of Agriculture, requested that APHIS provide: (1) “evidence to date of all of the instances of larvae that has motivated USDA’s decision to suspend the importation of Spanish clementines into the United States... and (2) the entomological analyses of the larvae discovered. See Esteruelas Letter to Bill Hawks, Under Secretary for Marketing and Regulatory Programs, USDA, dated Dec. 12, 2001, at A.R. 133. The Spanish Ministry of Agriculture offered their full cooperation, stressing that “finding a solution to this matter is of the utmost urgency for the Spanish government and especially for the Ministry of Agriculture.” See id. According to Dr. Gadh, APHIS’ decision to suspend imports of clementines “was not taken well by Spain and.. .some importers here in the USA who decided to take the matter to the court.” See Gadh, A.R. 1055. Dr. Gadh opined: “APHIS had to take that action. There was no choice. And we did what we had to do to safeguard our resources and also to protect markets at the time.” See id. Interve-nor-Defendants filed suit in the United States District Court for the Eastern District of Pennsylvania seeking declaratory and injunctive relief against the USDA/ APHIS’ clementine import suspension. See Doc. 6 at 4:18-21. In a subsequent correspondence with APHIS, Intervenor-Defendants disputed the viability of the larvae discovered: “It is our understanding that the larvae were of dubious nature, especially those found in California. Inspectors stated that they were ‘possible [sic] alive’. All were of ‘brownish’ color, not the typical cream color of live larvae, and with the exception of one, all were found in supermarkets, far from the ‘point of entry.’ ” See A.R. at 205. The decision to prohibit the importation of Spanish clementines, taken by the Secretary of Agriculture, was made pursuant to her authority under the Plant Protection Act (“PPA”), 7 U.S.C. §§ 7701 et seq. See Final Rule at 64702-03, A.R. 1282-83; see 7 U.S.C. § 7712(a). Under Section 7712(a) of the PPA, the Secretary of Agriculture is authorized to prohibit or restrict the importation or entry of any plant product “if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction into the United States.. .of a plant pest..like the Med-fly, which is not widely distributed within the United States. See 7 U.S.C. § 7712(a). The Secretary should exercise her authority to restrict or prohibit the entry of a plant product into the United States where its entry “could present an unacceptable risk of introducing or spreading plant pests.” See 7 U.S.C. § 7701(7). This exercise of authority was taken after multiple live Medfiy larvae finds in the United States because Medfiy is “the hoof and mouth, or foot and mouth disease of the fresh food industry, probably of the entire plant industry. This is indeed the worst of the worst. It is an extremely plastic, dynamic, adaptable pest worldwide, not just in the United States, one of the key pests of fruit production.” See A.R. 1071, Statement of APHIS Official, Dr. Ron Sequeira (“Sequeira”), Public Hearing on Importation of Spanish Clementines, Oxnard, California, Aug. 20, 2002 (“Aug. 20, 2002 Hearing”). Dr. Sequeira opined that the possibility of the introduction of Medfly into citrus-producing areas of the United States “is more than an economic issue. It is a national security issue.” See id. at 1072. iii. Post-Import Suspension Actions taken by APHIS and the Spanish Government, leading up to the Final Rule Immediately after hearing reports that live Medfly larvae discoveries were made in clementines imported from Spain, a team of APHIS specialists visited Spain in mid-December 2001 to investigate the causes of the breakdown. See Spanish Clementine Program Technical Review, A.R. 1788-1800; see Gadh, A.R. 1055-56; see A.R. 1131. The APHIS review team visited clementine orchards, groves and packing houses throughout Spain, in addition to meeting with Spanish and Gen-eralitat Valenciana government representatives. See Gadh, A.R. at 1055-56. During APHIS’ field visit to groves in the Autonomous Community of Valencia, “it became apparent that trapping and bait spray activities under industry control lacked both consistency and direct Ministry [of Agriculture] oversight.” See Spanish Clementine Program Technical Review, A.R. 1789. APHIS deduced that “these programs are a voluntary ‘best management practice’ and that there are no adverse consequences for noncompli-anee.” See id. The APHIS review team surmised that “[m]any [Spanish] growers may not see the need to participate in established trapping and treatment protocols due to endemic fruit fly populations and the specific knowledge that fruit will be subject to cold treatment prior to being marketed in the United States.” See id. The review team was unable to determine the exact cause of the failure, but identified several conditions that may have contributed to an overwhelming larval presence: (1) unseasonably warm weather conditions; (2), higher than average fruit fly populations; (3) high host susceptibility of the early season clementine varieties; (4) low trap densities and inadequate bait spray applications; and (5) lack of any fruit cutting activities to adequately monitor larval populations. See id. In its final report, the APHIS review team “suggested that a more integrated system approach uncertainty by providing overlapping measures to strengthen several critical points in the certification process.” See Doc. 24, Appendix 1, APHIS Backgrounder, “Plant Protection and Quarantine — Spanish Clementine”, dated Jan. 9, 2002. APHIS believed that a “systems'approach concept would provide additional quarantine security, even if one or more components of the overall protocol fail.” See id. “Systems approach” is defined in 7 U.S.C. § 7702(18) as “a...set of phytosanitary procedures, at least two of which have an independent effect in mitigating .pest risk associated with the movement of commodities.” See 7 U.S.C. § 7702(18). The APHIS review team’s visit to Spain led to a study and report required under 7 U.S.C. § 7712(e). As a result, APHIS reviewed the evidence and issued a report entitled “Risk mitigation for tephritid fruit flies with special emphasis on risk reduction for commercial imports of clementines (several varieties of Citrus reticulata) from Spain using a Phytosanitary Hazard Analysis and Critical Control Point (PHAACP) system,” in March 2002. See A.R. 373 (published on April 16, 2002, A.R. 371, 67 Fed. Reg. 18578). The purpose of the Risk Mitigation Analysis (“RMA”) was to describe and evaluate the “systems approach” chosen by APHIS and other risk-mitigating measures associated with the importation of clementines from Spain. See id. Public comment was solicited for thirty (30) days after publication of the RMA, see A.R. 371, and was extended by notice in the Federal Register until June 14, 2002. See A.R. 321, 67 Fed.Reg. 36560-61. The RMA concluded that two critical control points were essential to prevent the establishment of Medfly in citrus-growing areas of the United States: (1) the application of cold treatment [in transit and storage]; and (2) the limitation of pests in the field [in Spain], See A.R. 1394. The RMA goal was to achieve “Pro-bit 9” mortality, which is acknowledged to be “a historical, well-recognized benchmark in the area of phytosanitary security.” See A.R. 1285. The term “Probit 9” refers to “a level or percentage of mortality of target pests (i.e., 99.9968 percent mortality or 32 survivors out of a million) caused by a control measure.” See id. at 1284. Using the available evidence, APHIS determined that “the likelihood of a mated pair in fruit from Spain was less than one in two thousand years, considering the 95th percentile of the distribution (less than one in more than ten thousand years using the mean of the distribution), even assuming multiple containers shipped to suitable areas.” See A.R. 1394. According to Ed Miller, an entomologist with APHIS’ Risk Analysis Systems, the results of the RMA “show[ ] a minimization of the probability that a mated pair arrives at an area where it would cause trouble,” when effective cold treatment and other control measures are in place. See A.R. 990-91. Miller emphasized that the key to success is “quality control,” stating that “[w]e need documentation and verification and transparency and communication, and research and methods development.” See id. at 991. iv. Adoption of the Rule The proposed rule, published in the Federal Register on July 11, 2002, harmonized the goals of APHIS in preventing Medflies from using clementines imported from Spain as a pathway for introduction and the goals of the U.S. and Spanish Governments in promoting trade. See A.R. 1129-JO, 67 Fed.Reg. 45922-33. The rule, which would require improved field control and quality control guidelines, represented a major improvement from the prior inspection regimen. See id. Major features of the proposed rule include: • Requiring Spanish growers to register and enter into an agreement with the Spanish Government to follow a mandatory pest management program, established by the Spanish Government and approved by APHIS, before exporting to the United States; • Improved monitoring and field control procedures designed to greatly reduce the number of viable Medfly larvae in clementines upon arrival to packing houses; • Spanish Government and/or direct APHIS oversight to monitor and record compliance with the program, the number of Medflies caught in the traps and further compliance with FDA pesticide residue regulations; • APHIS will oversee inspection and fruit cutting before cold treatment in order to detect Medfly larvae. If a ' single live Medfly is found in any shipment, the entire shipment will be rejected and - no reconditioning or repackaging of fruit will be allowed. If live Medfly larvae are found in any two shipments from a particular grove or grower, that grove/grower will be removed from the U.S. Export Program for the remainder of the clementine season. In addition, the proposed rule notified stakeholders that APHIS was soliciting comments for sixty (60) days, ending on September 9, 2002. See A.R. 1129, 67 Fed.Reg. 45922. Two public hearings were also held on, August 20, 2002 in Oxnard, California, see A.R. 1050-1127-, and on August 22, 2002 in Lake Alfred, Florida. See A.R. 973-1049. At the Oxnard Public Hearing, Dr. Gadh stated that “[the] conditions under which the Spanish clementines may be imported are that [the] Spanish government will -have-to institute a Medfly management program which is aimed to reduce the fruit fly infestation to less than 1.5 percent of the fruits.” See A.R. 1057. Furthermore, the proposed rule and conditions under which imports may be resumed constitute “a full fledged pre-clearance program set up in Spain.” See id. As required by Executive Order 12866, 1993 WL 388305, APHIS prepared a Regulatory Impact Analysis (“RIA”) on October 15, 2002, which concluded that regulatory benefits outweigh regulatory costs associated with implementation of the rule, see A.R. 1323, and that a regulatory flexibility analysis was not necessary because the proposed rule “will likely not have a significant economic impact on a substantial number of small Medfly host crop producers in the United States.” See A.R. 1334; see also, A.R. 1318. v. The Final Rule On October 22, 2002, APHIS published the Final Rule, see 7 C.F.R. § 319.56 — 2jj (the Rule), effective October 15, 2002, which authorized the resumption of Spanish clementine imports, subject to several new remedial measures which had not existed under 7 C.F.R. § 319.56-2(e). Under the “new Rule” of 7 C.F.R. § 319.56-2jj, persons who produce clementines in Spain for export to the United States are required to register with the Government of Spain and enter into an agreement to participate and follow the Medfly management program established by the Spanish Government. The Rule requires the Spanish Government to obtain APHIS approval of Spain’s Medfly management program which, in turn is subject to compliance monitoring by APHIS inspectors, and includes requirements for fruit fly specifications for trapping and recordkeeping. More specifically, the Rule requires Spanish producers to place traps in Medfly host plants at least 6 weeks prior to harvest and to utilize APHIS-approved pesticide bait treatments in the production areas at the rate specified by Spain’s Medfly management program (also subject to APHIS approval). The Rule also requires the Spanish Government to keep records documenting the trapping and control activities for all areas that produce clementines for United States export and to make these records available to APHIS upon request. If APHIS determines that an orchard does not operate in compliance with these regulations, it may suspend clementine exports to the U.S. from that orchard. All clementines imported to the U.S. under this rule, must be accompanied by a phytosanitary certificate stating that the fruit meets the conditions of the Government of Spain’s Mediterranean fruit fly management program and applicable APHIS regulations. Under the Rule, boxes in which clementines are packed must be labeled with a lot number which identifies the orchard where the fruit was grown and the packinghouse where the fruit was packed and must display the following statement: “Not for distribution in AZ, CA, FL, LA, TX, Puerto Rico, and any other U.S. Territories.” In addition, the rule provides that for each and every shipment of clementines intended for export to the United States, prior to cold treatment, APHIS inspectors will cut and inspect 200 fruit that are randomly selected from throughout the shipment and, should a single live Medfly in any stage of development be discovered, the entire shipment of clementines will be rejected. If a live Mediterranean fruit fly in any stage of development is found in any two lots of fruit from the same orchard during the same shipping season, that orchard will be removed from the export program for the remainder of that shipping season. This random cut inspection is an added level of testing to enhance success of cold treatment efficacy. One of the most significant protective measures the Rule implements is the change in cold treatment protocol. A revised cold treatment schedule has been adopted and is incorporated by reference at 7 C.F.R. § 300.1 in the Plant Protection and Quarantine (PPQ) Treatment Manual. Under this revised cold treatment schedule, the minimum exposure period for cold treatment is fourteen (14) days, where the temperature applied is 34 degrees or below, ranging up to a requirement of sixteen (16) days if the temperature applied is 35 degrees or below, and up to a maximum requirement of eighteen (18) days, where the temperature applied is 36 degrees or below. A.R. 1288. These changes add a minimum of two days more of cold treatment for each degree of temperature rise above 32. For cold treatment at temperatures of 32 degrees or below, the Rule’s application schedule adds four days; former application time was 10 days for 32 degrees, now, the minimum application period is 14 days. Id. The ORACBA analysis increases application periods for cold treatment to ensure even greater prevention than before, based on reliable studies that show that increasing the length of cold treatment applications yields substantially more protection than lowering the temperature. A.R. at 1211, 1220. Scientific study of cold treatment and the extent of its effectiveness in eradication of Medfly continues along with debate among researchers. A.R. at 1220-21. APHIS scientists opine that this revised cold treatment schedule will achieve a probit 9 level of mortality or even greater. A.R. at 1219, 1288. Upon arrival of clementines at a United States port of entry, the Rule now requires APHIS inspectors to examine the cold treatment data for each shipment to ensure it has been continuous. If APHIS inspectors determine that the cold treatment was not successfully completed, the shipment will be held until appropriate remedial actions have been implemented. The Rule requires an APHIS inspector, at the port of first arrival, to sample and cut clementines from each shipment to detect pest infestation according to sampling rates determined by the Administrator. During this process, if a single live Medfly is found, the shipment will be held and subjected to further investigation and remedial action. The Rule further provides that, if at any time APHIS determines that the safeguards contained in this section are inadequate, it may suspend importation for further investigation as to any deficiency. See 7 C.F.R. § 319.56 — 2jj. The Secretary expressly “determined that it is not necessary to prohibit the importation of clementines from Spain, in order to prevent the introduction into the United States or the dissemination within the United States of a plant pest or noxious weed.” See A.R. 1283. The Secretary based her determination on the finding that the protective measures contained in the Final Rule will prevent the introduction of the Medfly into the United States. See id. In the rulemaking process, the Secretary was required to: utilize “sound science,” use procedures that were “transparent and accessible,” 7 U.S.C. § 7712(b), and to publish procedures and standards that governed consideration of import requests. 7 U.S.C. § 7712(d). Factors that the Secretary considered, include: “(1) A risk management analysis (revised October 4, 2002), (2) a review of the existing cold treatment for clementines from Spain, ‘Evaluation of cold storage treatment against Mediterranean Fruit Fly, Ceratitis capitata (Wiedemann) (Dípt-era: Tephritidae)’ (May 2, 2002) ..., (3) a quantitative analysis of available data related to cold treatment for Medfly that was produced by USDA’s Office of Risk Assessment and Cost Benefit Analysis (ORACBA) ..., and (4) the determinations of USDA technical experts.” See id. The Risk Management Analysis (“RMA”) consists of an integrated study and evaluation of five component risks: (1) the number of fruit shipped (number of fruit per container and total amounts per year); (2) fruit infested with larvae in the field; (3) larvae per individual fruit; the effects of cold treatment; and the likelihood of suitable hosts in the area where clementines are imported and the likelihood of an adult fly emerging from imported fruit finding host material before death. Based upon the integrated application of these five components, the Risk Mitigation Analysis concluded that the probability that a pair of fruit flies could be enter the United States under the proposed conditions would be less than .001 per year, or one in ten thousand years. A.R. 1408. The probability of a mated pair of Medfly being present in a single shipment would be less than one in a million (0.000001). A.R. 1425, Table 4d. The probability that these fruit flies could mate and produce viable larvae in order to repopulate is even more remote. A.R. 1409,1425. III. LEGAL STANDARDS A. SUBJECT MATTER JURISDICTION The Court “ha[s] an independent obligation to address sua sponte whether [it] has subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999). United States District Courts have jurisdiction over cases in which the United States is a party. 28 U.S.C. § 1331. As the validity of rulemaking by the United States Department of Agriculture, an agency of the United States is at issue, federal subject matter jurisdiction is properly invoked. B. JUDICIAL NOTICE “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “A court shall take judicial notice if requested by a party and supplied with the necessary information.” Fed. R. Evid. 201(d). Judicially noticed facts often consist of matters of public record, such as prior court proceedings, see, e.g., Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988) (administrative materials), Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994)(city ordinances), Toney v. Burns, 829 F.2d 622, 626-27 (7th Cir.1987) (city ordinances and official maps), Aiello v. Town of Brookhaven, 136 F.Supp.2d 81, 86 n. 8 (E.D.N.Y.2001) (geological surveys and existing land use maps), and Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir.2000) (taking judicial notice of a filed complaint as a public record). Federal courts may “take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue.” U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). C.SUMMARY JUDGMENT Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed. R. Crv. P. 56(c); see also Maffei v. Northern Ins. Co. of New York, 12 F.3d 892, 899 (9th Cir.1993). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint. See U.A. Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir.1994). [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The more implausible the claim or defense asserted by the opposing party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. Northern Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). Nevertheless, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. A court’s role on summary judgment, however, is generally not to weigh the evidence, i.e., issue resolution, but rather to find genuine factual issues. See Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.1996). Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in Rule 56(e). See Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir.1996); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 n. 4 (9th Cir.1995). Properly authenticated documents, including discovery documents, although such documents are not admissible in that form at trial, can be used in a motion for summary judgment if appropriately authenticated by affidavit or declaration. See United States v. One Parcel of Real Property, 904 F.2d 487, 491-492 (9th Cir.1990). Supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. See Fed. R. Civ. P. 56(e); Conner v. Sakai, 15 F.3d 1463, 1470 (9th Cir.1993), rev’d on other grounds sub nom. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). D. SUMMARY ADJUDICATION The purpose of Rule 56(d) is to salvage some results from the judicial effort involved in evaluating a summary judgment motion and to frame narrow triable issues if the court finds that the order would be helpful with the progress of litigation. National Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F.Supp. 276, 285 (S.D.N.Y.1996). An order under Rule 56(d) narrows the issues and enables the parties to more fully recognize their rights, while permitting the court to retain full power to adjudicate all aspects of the case at the proper time. See 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2737, at 455-56 (2d ed.1983). The procedure under Rule 56(d) is designed to be ancillary to a summary judgment motion. Unlike Rule 56(c), which allows for interlocutory judgment on a question of liability, Rule 56(d) does not authorize the entry of a judgment on part of a claim or the granting of partial relief. Id. at 457. The obligation imposed upon the court by Rule 56(d), to specify the uncontrovert-ed material facts, is generally compulsory. See Woods v. Mertes, 9 F.R.D. 318, 320 (D.Del.1949). However, if the court determines that identifying indisputable facts through partial summary judgment would not materially expedite the adjudicative process, it may decline to do so. See WRIGHT, MILLER & KANE, supra, § 2737, at 460. E. JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT When the court reviews a government agency’s final action, the Rule 56(c) standard for summary judgment is amplified by 5 U.S.C. § 706(2) of the Administrative Procedure Act. Title 5 U.S.C. § 706 provides the applicable standard of review for agency action: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall- (1) compel agency action unlawfully withheld or unreasonably delayed; and (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 accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, Or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency healing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706. Summary judgment in a case of judicial review of agency action requires the court to review the administrative record to determine whether the agency’s action was “arbitrary and capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole.” Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994) (citing Good Samaritan Hospital, Corvallis v. Mathews, 609 F.2d 949, 951 (9th Cir.1979)). The parties have stipulated that this dispute can be decided on the administrative record and does not require the taking of evidence. See Doc. 25, Undisputed Statement of Material Facts, filed Mar. 24, 2003 at 2 (citing Northwest Motorcycle Association v. United States Department of Agriculture, 18 F.3d 1468, 1472 (9th Cir.1994) and Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994)). Plaintiffs challenge the validity of the October 15, 2002, Rule (hereinafter “the Rule”), authorizing Spanish importation of clementines to resume, after imports were suspended due to the presence of Medfly larvae, subject to revised conditions of phytosanitary inspections and treatment. See Doc. 24 at 3. See also, 67 Fed.Reg. 64702-64739, A.R. 1282 — 1319 (and particularly 67 Fed.Reg. 64708-11 and A.R. 1288-91). Plaintiffs seek to invalidate the Rule under 5 U.S.C. § 706 because: (1) the agency acted beyond its statutory authority (5 U.S.C. § 706(2)(C)); (2) the rule is arbitrary, capricious, and unlawful (5 U.S.C. § 706(2)(A)); (3) the agency promulgated the Rule in violation of procedures required by the Plant Protection Act (PPA) and the Regulatory Flexibility Act (RFA); and/or it was adopted in violation of the National Environmental Protection Act (NEPA) (5 U.S.C. § 706(2)(D)). Doc. 24 at 10,19, and 38. Federal Defendants assert that Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) deference is owed to the agency’s interpretation of the statutory requirements unless Congress’s intent unambiguously requires a different interpretation. Doc. 32 at 21. Plaintiffs argue that Chevron deference has no application because statutory construction is not at issue. Rather, Plaintiffs contend that USDA failed to meet its legal obligations by promulgating an arbitrary and capricious rule, in excess of its authority, and in violation of various procedures required by law. Doc. 38 at 5. Plaintiffs maintain that each ground upon which they seek to invalidate the Rule involves only questions of law, making the standard of review de novo. Doc. 24 at 10, fn. 38 (citing Akiak Native Cmty. v. United States Postal Service, 213 F.3d 1140, 1144 (9th Cir.2000) and Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994)). Plaintiffs accurately note that questions of law are generally reviewed de novo, however, the Secretary’s decision here does not include pure legal questions. Plaintiffs’ attacks on the validity of the Rule require a review of the reasonableness of agency action, viewing the record as a whole. See, e.g., Environment Now!, 877 F.Supp. at 1421; Samaritan Hospital, 609 F.2d at 951. Reasonableness is necessarily a question of fact. See, e.g., California Dental Ass’n v. F.T.C., 224 F.3d 942, 958 (9th Cir.2000); Continental T.V., Inc. v. G.T.E. Sylvania Inc., 694 F.2d 1132, 1135 (9th Cir.1982); Betaseed, Inc. v. U & I, Inc., 681 F.2d 1203, 1228-29 (9th Cir.1982); and Donnelly v. U.S., 201 F.2d 826, 829 (9th Cir.1953). The issues raised present mixed questions of law and fact. The reasonableness of the USDA’s actions must be considered in the context of the legal requirements of the applicable statutes (the APA, PPA, RFA and NEPA) to determine whether promulgation of the Rule was arbitrary and capricious, beyond the agency’s authority, and/or in violation of procedures required by law. A standard of de novo review does not govern here, as recognized in Estate of Merchant v. C.I.R., 947 F.2d 1390, 1392-93 (9th Cir.1991) (citing Pierce v. Underwood, 487 U.S. 552, 557-63, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); abrogating the de novo review standard of McConney, 728 F.2d at 1201). Estate of Merchant holds that when a district court reviews agency action, questions of whether the agency was “substantially justified,” or “unreasonable” in taking the final action, are governed by the principle that substantial deference should be accorded the agency as finder of fact and review is for “abuse of discretion.” See Merchant, 947 F.2d at 1392-93 (citing Pierce, 487 U.S. at 557-63, 108 S.Ct. 2541). Pierce observed that a trial court’s determination of whether agency action was “substantially justified” was neither a clear question of law or of fact and, therefore, was most fairly treated as a question of fact, entitled to deference upon review. Pierce, 487 U.S. at 559-60, 108 S.Ct. 2541. The agency action here requires determination of whether the USDA’s investigatory procedures, compilation of data, and scientific analyses were reasonable, competent, informed and properly applied to support the decision to resume importation of Spanish clementines. Environment Now, 877 F.Supp. at 1421, recognizes that “[ajgency action will be set aside as arbitrary and capricious if the agency lacked support in the administrative record for its factual assumptions or otherwise abused its discretion...” 877 F.Supp. at 1421 (citing Ass’n of Data Processing v. Board of Governors of Federal Reserve System, 745 F.2d 677, 683 (D.C.Cir.1984)). Marathon Oil Co. v. United States, 807 F.2d 759, 765 (9th Cir.1986), reiterates the standard of review in the district court under 5 U.S.C. § 706; substantial deference to agency decisions and the court is limited to determine whether “a clear error of judgment has occurred and whether the agency based its decision upon consideration of relevant factors.” Id. (citing Overton Park, 401 U.S. at 416, 91 S.Ct. 814). Reasonableness is judged by taking the administrative record as a whole. Id. at 766 (citing Continental Oil Co. v. United States, 184 F.2d 802, 820-21 (9th Cir.1950) and Ashland Oil, Inc. v. Phillips Petroleum Co., 554 F.2d 381, 387-88 (10th Cir.1975)). “[T]he 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, 414, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). This circuit recognizes a narrow scope of review applicable to agency action: “Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion.” Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970), cert denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971). See also Briggs v. Dalton, 939 F.Supp. 753, 760 (D.Hawai'i 1996) (accord). Despite this “narrow” scope of review, the court is still expected to make a “thorough, probing, in-depth review” of the administrative record to ensure the validity of the agency action, Overton Park, 401 U.S. at 415, 91 S.Ct. 814, and “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. at 416, 91 S.Ct. 814 (citing L. Jaffe, Judicial Control of AdministRAtive Aotion 359 at 182 (1965); McBee v. Bomar, 296 F.2d 235, 237 (6th Cir.1961); In re Josephson, 218 F.2d 174, 182 (1st Cir.1954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968); and Wong Wing Hang v. Immigration and Naturalization Serv., 360 F.2d 715, 719 (2nd Cir.1966)). IV. ANALYSIS A. JUDICIAL NOTICE Federal Defendants request judicial notice of a published report of the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) entitled “Spanish Clementine Data Report and Analysis 2002-2003 Season” (the “2002-2003 Data Report”). Doc. 34 filed Apr. 28, 2003. Plaintiffs object to judicial notice of the 2002-2003 Data Report on the basis that it is irrelevant to the issues presented in the pending litigation because it was prepared after and is not part of the administrative record and it appears to have been prepared for the litigation making the validity of its contents suspect. Doc. 35, Objection to Judicial Notice, filed May 1, 2003, at 2. Intervenor Defendants support Federal Defendants request for judicial notice of the 2002-2003 Data Report, arguing that it is a relevant, self-authenticating government publication reflecting scientific data, factors considered, and acts taken by the USDA and supports the validity and correctness of USDA assumptions made in the underlying administrative proceeding and promulgation of the October 15th Final Rule. Doc. 36, Interve-nor Defendant’s Memorandum in Support of Federal Defendant’s Request for Judicial Notice, filed May 8, 2003, at 2-3. Intervenor Defendants seek judicial notice of a published government letter entitled “Clementine Stakeholder Letter” (the “Stakeholder Letter”). Doc. 39, Interve-nor’s Request for Judicial Notice, filed Jun. 10, 2003 at 2. Plaintiffs object to Intervenor Defendants’ request for judicial notice of the Stakeholder Letter on the basis of relevancy as it is not part of the administrative record, was prepared after the Rule was published, and has questionable reliability. Doc. 40, Plaintiffs’ Objection to Judicial Notice, filed Jun. 16, 2003 at 2. In support of their request for judicial notice, Federal Defendants cite Clappier v. Flynn, 605 F.2d 519 (10th Cir.1979) and Mobil Oil Corp. v. TVA, 387 F.Supp. 498 (D.Ala.1974). In Clappier, 605 F.2d at 535, the Tenth Circuit held that judicial notice was properly taken of an official government publication in the Federal Registry relating to hospital rates and charges concerning medical care furnished by the United States in an action for injuries whereby Plaintiff was treated at a government hospital. In Mobil Oil, 387 F.Supp. at 500, fn. 1, the Alabama district court held that an agency’s annual reports were proper subjects for judicial notice. Rule 902 of the Federal Rules of Evidence provides that the following documents are self-authenticating: (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. (11) Certified Domestic Records of Regularly Conducted Activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record- (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. Fed.R.Evid. Rule 902. Fed.R.Evid. Rule 1005 provides: The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. Fed.R.Evid. Rule 1005. Rule 44 of the Federal Rules of Civil Procedure provides: An official record kept within the United States, or any state, district, or commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the United States, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer’s deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the officer’s office. Fed.R.Civ.Proc. Rule 44(a)(1). In Woolsey v. National Transp. Safety Bd., 993 F.2d 516, 520 (5th Cir.1993) rehearing denied 3 F.3d 441, cert. denied 511 U.S. 1081, 114 S.Ct. 1829, 128 L.Ed.2d 459, articles and self-promotional statements made by an air transport company in a weekly magazine were admissible as self-authenticating documents. See also, Dallas County v. Commercial Union Assur. Co., 286 F.2d 388, 391-92 (5th Cir.1961) (newspaper article admissible as secondary evidence); D.L. v. Unified School Dist. # 497, 270 F.Supp.2d 1217, 1235 (D.Kan.2002) (newspaper articles admissible to show fact of publication and as evidence of an agent’s statement); Nestle Co., Inc. v. Chester’s Market, Inc., 571 F.Supp. 763, (D.C.Conn.1983) reversed on other grounds, 756 F.2d 280, on remand 609 F.Supp. 588 (media articles were self-authenticating and admissible to show public perception and usage); U.S. v. Leal, 509 F.2d 122, 125-26 (9th Cir.1975) (foreign hotel registration forms were self-authenticating when prepared by public officials in carrying out duties of their office); U.S. v. Saputski, 496 F.2d 140, 142 (9th Cir.1974) (business records were self-authenticating so that signature was not prerequisite to admissibility in embezzlement lawsuit). See Fed.R.Evid. 803(8). A matter is not properly subject to judicial notice by the court if it involves a central and disputed issue. U.S. v. Baker, 641 F.2d 1311 (9th Cir.1981). However, a court may properly take notice of public facts and public documents. Greeson v. Imperial Irr. Dist., 59 F.2d 529, 531 (9th Cir.1932). Public records, such as census data, is appropriate subject matter for judicial notice. United States v. Esquivel, 75 F.3d 545, 549 (9th Cir.1996). But see, Carley v. Wheeled Coach, 991 F.2d 1117, 1126 (3rd Cir.1993) (refusing to take notice of government’s testing of vehicle rollovers as not “readily provable through a source whose accuracy cannot be reasonably questioned”) and Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 517 (11th Cir.1991) (refusing to take judicial notice of newspaper publication as source that establishes facts as indisputable). In Gafoor v. I.N.S., 231 F.3d 645, 655-56 (9th Cir.2000) judicial notice was taken of evidence outside the Board of Immigration Appeals’ administrative record, where such evidence was not previously available because the events had not yet occurred when the agency action was taken. Rankin v. DeSamo, 89 F.3d 1123, 1126 fn. 3 (3rd Cir.1996), took judicial notice of a financ