___________ No. 95-2371

___________ Delores J. Kenney, * * Plaintiff/Appellant, * * Rosemary Behrens; Carol Hans;

* Madeline Meyer; David Nichols; * Wayne Newton, * * Plaintiffs, * * Irvin Fox; Skip Numrich; * Gerald Timmerman; Larry Martin;

* James Willrett; James Scott; * H.T. Ringling; Richard Bell; * Jan Houck; Robert Perry; * Garland Dahl; John Haverhale; * Jack Knirk; Bill Long; * Mike Judy; Russ Dodge, Jr.; * Phil Van Horne, * * Plaintiffs/Appellants, * Appeal from the United States * District Court for the Robert Rebholtz, * Southern District of Iowa. * Plaintiff, * * Bub Miller; Scott Adamson; * Paul Genho; Jim Keller; * Earnie Reeves; * Mark Armentrout, * * Plaintiffs/Appellants, * * v. * * Daniel Glickman, * Secretary of Agriculture, * * Defendant/Appellee. *

__________ Submitted: December 14, 1995 Filed: September 30, 1996

__________

### *The HONORABLE CATHERINE D. PERRY, United States District

Judge for the Eastern District of Missouri, sitting by designation. Defendant below was Mike Espy, who was Secretary of 1 

### Agriculture at the time appellants brought this action. Daniel Glickman, current Secretary of Agriculture, has replaced Espy as party to this action.
-2- Before McMILLIAN and BEAM, Circuit Judges, and PERRY, * District Judge.

__________ PERRY, District Judge.

Delores Kenney and fellow poultry co nsumers appeal from the district court's order dismissing this action for failure to state a claim. Becaus e
we find th at the challenged actions and inactions of the Secretary o f Agriculture are reviewable, we reverse and remand to the district court fo r a determination of whether the Secretary abused his discretion.

I.

Th e original plaintiffs, poultry consumers and red meat producers , brough t an action against appellee Daniel Glickman, Secretary o f Agriculture, challenging certain aspects of the Department o f 1 Agriculture's regulatory scheme governing meat and poultry processing. Th e district court held that the poultry consumers had standing to challenge the Secretary's actions, but the red meat produc ers did not have standing. The red m eat producers did not appeal that part of the district court' s order. With respect to the poultry consumers, the district court granted the Secretary's motion to dismiss for failure to state a claim, holdin g that the actions and decisions of the Secretary of Agriculture challenged byappellants are not subject to judicial review. The poultry consumers have appealed that determination.

### -3- Appellant s challenge certain actions and inactions by the Secretary of Agri culture regarding the processing of poultry. The Secretary i s respons ible for implementing both the Poultry Products Inspection Ac t ("PPIA"), 21 U.S.C. § 451 et seq. , and the Federal Meat Inspection Ac t ("FMIA"), 21 U.S.C. § 601 et seq. The stated objectives and bases of the two Acts are identical: to protect the health and welfare of consumers an d to e liminate the burdens on interstate commerce that result from th e dist ribution of unwholesome, adulterated or mislabeled products. Wit h respec t to the health of consumers, both parties provided statistic s regard ing the large number of contaminated meat and poultry carcasse s proces sed each year and the negative consequences resulting from huma n consumption of the contaminated carcasses. In light of the identical goal s of the two Acts, appellants allege that the Secretary has issue d contra dictoryrequirements for the inspection and cleaning of meat an d poultr y, and that the Secretary has improperly allowed water absorbe d during processing to remain in poultry.
The processing of meat and poultry begins with the removal of c ertain parts of the carcasses. The carcasses and parts are then either sold or processed further. B ecause both meat and poultry are sold by weight, any moistu re added during processing increases the value of the carcass

. Simila rly, any trimming of the carcass during processing to remov e contaminants reduces the value of the carcass. To further the goals of th e PPIAand FMIA, the regulations require ante- and post-mortem inspections of the livestock and poultry processed for human food. In technical terms , the purpose of the inspections is to ensure that the carcasses are no t "adulterated" or "misbranded." The definitions of those two terms ar e nearly identical under the two Acts.

Ind ividual meat and poultry carcasses are inspected durin g processing, and carri ers of E. coli and other pathogens are removed. The well-known contaminants that carry pathogens are

### In December 1993, interim guidelines replaced the March 2 

### 1993 directives with no relevant substantive changes.
-4- feces, ingesta and mi lk. If contaminants are found on an individual meat
or pou ltry carcass, the regulations require processors to remove th e contami nants. The regulations refer to this as "zero tolerance" wit h respect to individual carcasses. After the indi vidual carcasses have been inspected and reprocessed as necessary, the inspector reinspects sampl e
carcasses selected from the entire lot to determine whether there was a "process defect" that may have caused contaminants to exist on carcasses in that particular lo t. Before March 1993, the regulations established a toleran ce slightly above zero with respect to process defects in bot h poultry and meat. Inother words, if the number of defects discovered on the s ample carcasses was less than the tolerance level, the entire lo t could proceed. If the defects exceeded the tolerance level, the entire lo t failed and corrective action was required.

In March 1993, the Secretary issued directives to operators an d insp ectors of beef slaughter plants. The directives -- which affecte d 2 meat but not poultry -- lowered the tolerance le vel for process defects to
zero. The directives did not affect the tolerance level for individua l carcasses, i.e. , the tolerance for contaminants on individual carcasse s remains zero for both meat and poultry. The tolerance level for process defects in poultry remains slightly above zero. In other words, a certain level of contaminants discovered in poultry during the process inspection is acceptable and the lot will not be returned for reprocessing.

In addition to the different standards of tolerance for proces s defects, the methods of contaminant removal appr oved by the Secretary also differ between meat and poultry. The regulations governing inspection s requir e meat processors to trim or otherwise actually remove th e contaminated tissue, while the regulations

### -5-

allow poultry processors to "water wash" the contaminated portion of the
carcass.

Ap pellants challenge the Secretary's decisions with respect to (1 ) the "zero tolerance" for process defects in meat but not poultry and (2) the regulations allowing poultry processors to w ater wash rather than trim contaminants. Appellants contend that the Secretary should either issue the same regulations for poultry and meat or provide a legally sufficient reason for treating meat and poultry differently.
Finally, appellants challenge certain water-retention regulation s gover ning poultry. The regulations governing water absorbed durin g processing differ between meat and poultry. The meat regulations prohibit processors from adding water and other substance s to a meat carcass during processing. Poultry carcasses, on the other hand, may absorb and retain an average of eight percent increase over the we ight of the carcass before final washing. Appellants challenge this regulation on two grounds

. First, irrespective of the meat regulations, appellants allege that th e Secretary has violated the Poultry Act's prohibitions against "adulterated " and "misbranded" carcasses by allowing water retention in poultry. Second , appellants allege that the Secretary has acted arbitrarily and capriciousl y by allowing retention of water in poultry but not in meat.

II.

The district court held that none of the Secretary's challenge d actions or inactions are reviewable. With respect to the zero tolerance and co ntaminant removal standards, the court looked to the introductor y language of the PPIA and held that "that statute has been drawn so broadly that ther e is no standard available for judging how and when the agenc y should exercise its d iscretion." Likewise, the court held that decisions regarding

### The APA judicial review provisions apply equally to agency 3 

### action and agency inaction. 5 U.S.C. §§ 551(13), 706(1); see also Iowa ex rel. Miller v. Block , 771 F.2d 347, 352 (8th Cir. 1985), cert. denied , 478 U.S. 1012 (1986). -6- retention of water during poultry processing are "left completely to the discretion of the Sec retary." We review the district court's decision de
novo . Thomas W. Garland, Inc. v. City of St. Louis , 596 F.2d 784, 787 (8t h Cir.), cert. denied , 444 U.S. 899 (1979).

The Admi nistrative Procedure Act (APA) is the starting point for a discussion of reviewability of an agency action. The APA provides that an y person "adversely affected or aggrieved" by a "final agency action fo r which there is no other adequate remedy" is gene rally entitled to judicial
rev iew. 5 U.S.C. §§ 702, 704. There are two exceptions to the genera l 3 rule of reviewability: (1) where the statute exp licitly precludes judicial review, and (2) where "agency action is committed to agency discretion by law." Id. § 701(a). In Citizens to Preserve Ov erton Park, Inc. v. Volpe , 401 U.S. 402 (1971), the Supreme Court noted tha t the second exception was "very narrow" and that "it is applicable in those rare instances wher e 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Id. at 410 (footnote omitted) (quoting S. Rep. No. 752, 79th Cong ., 1st Sess. 26 (1945)). The Court again discussed the secon d exception to reviewab ility in Heckler v. Chaney , 470 U.S. 821 (1985). In Chaney , the Court created a rebuttable presumption that "an agency' s dec ision not to prosecute or enforce, whether through civil or crimina l proces s, is a decision generally committed to an agency's absolut e discretion" under § 701(a)(2) of the APA. Chaney , 470 U.S. at 831.
In this case, neither party contends that any of the three chal lenged action s are explicitly precluded from judicial review by statute, an d therefore the first exception to reviewability does

### -7-

not apply. Appellee contends that its regulations regarding zero toleranc e and contaminant removal are enforcement decisions that are presumptively
unre viewable under Chaney . Appellants contest the characterization o f these regulations (or lack thereof) as enforcement decisions, and clai m that they are reviewable. With respect to the Secretary's decision t o allow water absorptio n into poultry, appellee apparently does not dispute that the action is reviewable, and instead argues that the Secretary' s actions were not arbitrary and capricious

.

III.

Appellee contends that the Secretary's decisions to reject a zer o tolerance standard fo r poultry process defects and to allow water washing of poultry contaminants are the type of enforcement decisions that th e Supreme Court declared presumptively unreviewable in Heckler v. Chaney , 47 0 U.S. 821 (1985). In support of his argument, appellee states that the mea t and poultry inspectio n processes are the same, and that the Secretary has
mer elymade a decision to use agency resources to enforce the mea t inspec tion processing regulations more vigorously as part of a "hig h priority" to prevent pathogens in the nations's meat supply.
We reject appellee's characterization of the zero tolerance andwater
was hing policies as enforcement decisions; we find that Chaneydoes no t establish a presumption of unreviewability in this case. In Heckler v

. Chaney , the Court held that the Food and Drug Administration's decision no t to take enforcement actions to prevent the use of lethal injections was no t subject to review. Id. According to the Court, a decision not to enforce "often involves a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise." Id. at 831. The Court state d the following reasons for the general unsuitability of judicial review of enforcement actions:

### -8- [T] he agency must not only assess whether a violation ha s occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement acti on requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the ac tion at all. An agency generally cannot act against each technic al violation of the statute it is charged with enforcing. The a gency is far better equipped than the courts to deal with the ma ny variables involved in the proper ordering of its priorities.
Id. at 831-32.
The Secretary's decisions regarding zero tolerance and water washing
are not Chaney -type enforcement actions. The Secretary has not decide d "whether a violation has occurred," has not decided whether he wil l "succeed" if he acts, and has not determined which "technical violations" to act against. Rather, the Secretary has adopted general policies statin g that the tolerance level of process defects in poultry is slightly above
zero while the tolerance level of process defects in meat is zero, and tha t pou ltrycontaminants can be water washed rather than trimmed while mea t contaminants must be trimmed. Those policies are the standards that the Secretarydeems acceptable to implement the goals of the PPIA and FMIA.

Likewise, this is not a case where the Secretary has refused t o institute proceedings . In support of the presumption of unreviewability, the Court in Chaneystated: Finally, we recognize that an agency's refusal to institut e procee dings shares to some extent the characteristics of th e decision of a prosecutor in the Executive Branch not to indict

-- a decision which has long been regarded as the specia l province of the Executive Branch . . .
Id. a t 832. This language suggests that Chaneyapplies to individual , case-by-case determinations of when to enforce e xisting regulations rather than p ermanent policies or standards. An example highlights th e distinction: A prosecutor refuses to

### The Court in Chaney recognized that it was not addressing 4 

### the situation "where it could justifiably be found that the agency has 'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities," and therefore expressed no opinion as to whether such decisions would be unreviewable under § 701(a)(2). Chaney , 470 U.S. at 833 n.4. In this case, the Secretary's zero tolerance and contaminant removal standards are conscious and express general policies. Although appellants have not argued that this case involves an extreme policy that is an "abdication" of the Secretary's responsibilities, we find that the Court's distinction in footnote four of Chaney between general policies and enforcement actions supports our conclusion.
-9- institute proceedings when he or she decides not to prosecute an individua l possessing one ounce of marijuana; Congress would not be characterized as "re fusing to institute proceedings" under Chaneyif it amended the dru g laws to exclude simple possession of one ounce or less of marijuana as a crime.

In sum, we do not believe the Court in Chaney intended its defi nition of "enforcement action" to include an interpreta tion by an agency that the stat ute's goals could be met by adopting a certain permanent standard. 4 See, e.g. , Arent v. Shalala , 70 F.3d 610, 614 (D .C. Cir. 1995) (" Chaney is of n o assistance to the [agency] in this case because the [agency's ] promul gation of a standard for 'substantial compliance' under the [Act ] does not represent an enforcement action."); Edison Elec. Institute v. U.S

. EPA , 996 F.2d 326, 33 3 (D.C. Cir. 1993) ("Petitioners are not challenging the manner in which the [agency] has chosen to exercise its enforcemen t discre tion . . . Instead, petitioners are challenging the [agency's ] interpretation of [the Act] and its implementing regulations . . . Clearly , this interpretation has to do with the substantive requirements of the law ; it is not the type of discretionary judgment concerning the allocation of enforcement resources that Heckler shields from judicial review.") ; National Treasury Emp loyees Union v. Horner , 854 F.2d 490, 496 (D.C. Cir. 1988) ("[The agency's ] decision to develop some but not other competitive examinations . . . is a major policy decision, quite

### -10-

differ ent from day-to-day agency nonenforcement decisions . . ."). Th e poultrypolicies allowing greater than zero tolerance of process defects and water washing of contaminants are policy decisions based on th e Secre tary's interpretation of the PPIA in light of the goal to protec t consumers from health risks.

IV.

Hav ing determined that the Secretary's zero tolerance and wate r washing policies for poultry do not qualify as enforcement actions, w e continue to review the Secretary's challenged in actions under the relevant provisions of the APA . The Secretary's decisions with respect to poultry
are presumed reviewable unless there is no law to apply. Citizens t o Preserve Overton Park v. Volpe , 401 U.S. 402 (19 71). In general, there is
a stron g presumption that Congress intends judicial review o f administrative action

. Abbott Lab. v. Gardner , 387 U.S. 136, 140 (1967). "Judicial review of a final agency action will n ot be cut off unless there is a persuasive reaso n to believe that such was the purpose of Congress." Id.

Courts have found that "law to apply" may exist in the underlyin g statut e or in regulations by the agency interpreting the underlyin g statu te. See, e.g. , Safe Energy Coalition of Michigan v. U.S. Nuclea r Regulatory Comm'n , 866 F.2d 1473, 1478 (D.C. Cir. 1989); Center for Auto Safetyv. Dole , 846 F.2d 1532, 1534 (D.C. Cir. 1988) (per curiam). Both the P PIA and the Secretary's regulations under the FMIA provide law t o apply in reviewing the Secretary's inaction with respect to zero tolerance and water washing. The district court relied onthe introductory language to the PPIA and found that it was so broad that there was no law to apply. However, appellants rely on more than the introductory language to the PPI A regard ing protection of consumers' health; appellants also rely on th e langua ge in the PPIA mandating that the Secretary prevent adulterate d poultry products from entering

### -11-

commerce. See 21 U.S .C. §§ 453(g), 455. We find that the prohibition of "adulterated" products found in the PPIA provide s a sufficient standard by whi ch the district court can examine the Secretary's zero tolerance an d wat er wash policies that govern poultry processing. The district cour t must examine the Secretary's reasons for adoptin g the policies in light of the g oals of the PPIA and the definition of "adulterated" to determin e whether the Secretary's action or inaction was a rbitrary and capricious or an abuse of discretion.
In addition, the Secretary's regulat ions and policies regarding meat that were implemented pursuant to the FMIA provi de law to apply. The PPIA and F MIA are identical in several respects, and parallel in most othe r respe cts. The legislative history of the two Acts and subsequen t
ame ndments indicate a congressional intent to construe the PPIA and th e FMIA consistently. American Public Health Ass'n v. Butz , 511 F.2d 331, 33 5 (D.C. Cir. 1974); see also H.R. Rep. No. 1333, 90th Cong., 2d Sess. (1968) , repr inted in 1968 U.S.C.C.A.N. 3426. Courts have also held that, i n general, similar or parallel statutes should be interpreted consistently whenever possible. S ee, e.g. , Greenwood Trust Co. v. Massachu-setts , 971 F.2d 818, 827 (1st Cir. 1992), cert. denied , 506 U.S. 1052 (1993); FAI C Secur ities, Inc. v. United States , 768 F.2d 352, 363 (D.C. Cir. 1985)

. Although there is no requirement that the regulations interpreting the PPI A and FMIA be identical, we believe that the Secretary's interpretation of the FMIA -- which res ulted in a zero tolerance of process defects in meat and a requirement that meat processors trim contaminants -- provides law to apply in evaluating the regulations interpreting the nearly identical PPIA. The Secretary may have legitimate, rational reasons for differing betwe en meat and poultry. However, in light of the strikingly simila r goals and language of the two statutes, we hold that there is law to apply to determine whether the Secretary acted arbitrarily and capriciously in distinguishing between poultry and meat in implementing regulation s governing contaminants during

### -12-

processing. Because the district court found th e actions unreviewable, it did not proceed to re view them. Accordingly, Count I will be remanded to the district court for review of the Secretary's actions.

V.

Appellants have also challenged the Secretary's regulations allowing up to 8% water to be absorbed during poultry pro cessing. It is undisputed that t hese regulations are not "enforcement actions" under Heckler v

. Chaney , b ut rather are agency interpretations of the PPIA and FMIA. I n addition, appellee do es not appear to argue that there is no law to apply
or that the decision to allow poultry to absorb some water is "committed to agency discretion." Rather, appellee appears to have conceded that the actions are reviewable, and essentially argued to this Court that th e regulations are a rea sonable interpretation by the Secretary of the PPIA.

Appellant s are correct that this action is reviewable because there is law to apply -- both the PPIA itself and the Secretary's interpretation of the nearly identical FMIA. Appellants challenged the poultry wate r retention regulation under the PPIA provision prohibiting adulterated and misbranded poultry products. The relevant definitions of "adulterated" an d "misbranded" are identical under the PPIA and FMIA. Compare 21 U.S.C. § 453(g), (h) with

21 U.S.C. § 601(m), (n). Howev er, the regulations permit up to 8% water to be retained during the processing of poultry, see 9 C.F.R. § 3 81.66 (1995), whereas the meat regulations do not allow th e retention of water or any other substance during processing, see 9 C.F.R. § 301.2(c)(8) (1995).
Under the PPIA, a poultry product is "adulterated" if "any substance has been added theret o or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength,

### -13-

or make it appear better or of greater value than it is." 21 U.S.C. § 453(g)(8). This definition provides law to appl y. The district court can review whether the Secretary has properly excluded water absorbed during processing from the c lass of substances prohibited by the PPIA from being added to p oultry. In addition, the court can compare the Secretary' s poultry and meat regu lations to determine whether the Secretary has acted arbitrarily and capriciously or abused his discr etion by treating meat and poultry differently.

Likewise, the definition of "misbranded" provides law to apply, a s eviden ced by the numerous court decisions reviewing agency action an d inaction challenged as violations of the prohibition against misbrande d poultry products. See , e.g. , American Meat Institute v. USDA , 646 F.2d 12 5 (4th Cir. 1981); National Pork Producers Council v. Bergland , 631 F.2d 135 3 (8th Cir. 1980), cert. denied , 450 U.S. 912 (198 1); American Public Health Ass'n v. Butz , 511 F.2d 331 (D.C. Cir. 1974). A ppellants contend that the current poultry regulations regarding water retention violate two of the provis ions in the definition of "misbranded" poultry under the PPIA

. First, a poultry product is misbranded "if its labeling is false o r misleading in any par ticular." 21 U.S.C. § 453(h)(1). Second, a poultry product is misbranded: [U]nless it bears a label showing . . . (B) an accurat e statement of the quantity of the product in terms of weight , measure, or numerical count: Provided , That under clause (B) of this subparagraph (5), reasonable variations may b e permitted, and exemption s as to small packages or articles not in packages or other containers may be established b y regulations prescribed by the Secretary.
21 U .S.C. § 453(h)(8). The district court relied on the "reasonabl e variation" and "exemptions . . . may be establis hed" language contained in § 453(h)(5) to conclu de that all interpretations of the term "misbranded" were committed by Congress

### -14-

to ag ency discretion. This conclusion affords too much weight t o provisions that are merely a part of the definition of "misbranded," and that appear to apply only in very narrow situations. See generally Rath Packing Co. v. Becker , 530 F.2d 1295, 1298-1301, 1308-12 (9th Cir. 1975), aff 'd , 430 U.S. 519 (1977); see also 9 C.F.R. §§ 317.2, 317.19 (1995 ) (defini ng scope of "reasonable variations"). There is nothing in th e definit ion of "misbranded" that indicates Congress intended to affor d
com plete discretion to the agency regarding decisions such as the wate r absorption provisions challenged in this case. Because appellee has not
overco me the presumption of reviewability with respect to the poultr y regulations that allow some water to be absorbed, Count II will be remande d to the district court for review of the Secretary's actions.

VI.

In conclusion, we reverse and remand this action to the distric t court on both Counts I and II for a review of the Secretary's actions.
McMILLIAN, Circuit Judge, dissenting in part.
I respectfully dissent in part. I w ould affirm the district court's dismissal of appellants' claim in Count I of the complaint. In my opinion , the Secretary's decisions not to enforce a zero tolerance standard fo r poultry process defects and to allow water washi ng of poultry contaminants are nonreviewable enf orcement decisions under Heckler v. Chaney , 470 U.S. 821, 831- 32 (1985). However, for the reasons stated in Part V of th e majori tyopinion, I agree that the district court's dismissal o f appe llants' claim in Count II of the complaint (concerning the wate r absorp tion regulations) should be reversed, and that claim remanded fo r review.

### -15- A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.