National Pork Producers Council v. Bergland

• Decision Date: 11 February 1980
• Docket Number: Civ. No. 79-431-C.
• Citation: 484 F. Supp. 540
• Parties: NATIONAL PORK PRODUCERS COUNCIL, an Iowa Corporation, Charles Grassley, Tom Hagedorn and Steven Symms, Plaintiffs, National Independent Meat Packers Association, Plaintiff-Intervenor, v. Bob BERGLAND, Secretary of Agriculture, Carol Tucker Foreman, Assistant Secretary of Agriculture for Food and Consumer Services, and Donald Houston, Acting Administrator, Food Safety & Quality Service, Defendants.
• Court: U.S. District Court — Southern District of Iowa

484 F. Supp. 540

NATIONAL PORK PRODUCERS COUNCIL, an Iowa Corporation, Charles Grassley, Tom Hagedorn and Steven Symms, Plaintiffs, National Independent Meat Packers Association, Plaintiff-Intervenor, v. Bob BERGLAND, Secretary of Agriculture, Carol Tucker Foreman, Assistant Secretary of Agriculture for Food and Consumer Services, and Donald Houston, Acting Administrator, Food Safety & Quality Service, Defendants.

Civ. No. 79-431-C.

United States District Court, S. D. Iowa, C. D.

February 11, 1980.

COPYRIGHT MATERIAL OMITTED

Donald P. Colleton, Abramson & Fox, Chicago, Ill., Charles S. Crook, III, Beving, Swanson & Forrest, Des Moines, Iowa, for plaintiffs.

Edwin H. Pewett, Hershel Shanks, James B. Davis and James M. Kefauver, Washington, D. C., for plaintiff-intervenor.

Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, Theodore C. Hirt, and Gregory Cooper, Attys., Dept. of Justice, Washington, D. C., for defendants.

RULING AND ORDER

STUART, District Judge.

This is an action for judicial review of agency action pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. Plaintiffs are three members of the United States House of Representatives and two trade associations representing pork producers and meat packers. Defendants are the Secretary of Agriculture, the Assistant Secretary of Agriculture for Food and Consumer Services, and the Acting Administrator of the Food Safety and Quality Service (FSQS) of the United States Department of Agriculture (USDA). Plaintiffs seek a declaratory judgment that a USDA regulation permitting meat products prepared without nitrates or nitrites to be marketed under traditional names, such as bacon, ham, corned beef, and frankfurters, is arbitrary, capricious, an abuse of discretion and not otherwise in accordance with law. They also request permanent injunctive relief preventing defendants from approving meat product labels under the challenged provision.

On April 28, 1978, the Administrator of FSQS proposed to amend the federal meat inspection regulations (See Federal Meat Inspection Act of 1907, 21 U.S.C. §§ 601 et seq.) to permit the preparation and sale of meat food products under those traditional names, even though such products, which have traditionally been cured with nitrates or nitrites, would be prepared without such preservatives. 43 Fed.Reg. 18193 (April 28, 1978). He further proposed that:

(1) A product not prepared with nitrates or nitrites should be labeled `No Nitrate or Nitrite Added — Not Preserved, Must Be Refrigerated Below 40°F at All Times'; and

(2) The preparation and sale of a product prepared without nitrate or nitrite should be permitted only if the product is prepared with some added substance or substances and is found by the Administrator to have a similar flavor and consistency to the product prepared with nitrate or nitrite.

Id. at 18194-95. Individual consumers, consumer organizations, trade associations and others submitted 365 comments to FSQS regarding the proposed amendments. FSQS reviewed the comments and on July 18, 1979, consulted the National Advisory Committee on Meat and Poultry Inspection (the Advisory Committee) with regard to the proposals and the comments thereon. On August 21, 1979, the Acting Administrator of FSQS (who is hereinafter referred to as the "Administrator"), promulgated a regulation permitting, inter alia, meat products prepared without nitrates or nitrites to be marketed under the traditional names of products prepared with nitrates or nitrites if:

(1) The traditional name on the label of the product prepared without nitrates or nitrites is preceded by the word `Uncured' in the same size and style of lettering as the traditional name;

(2) The label carries the following information adjacent to the product name in lettering of easily readable style and at least one-half the size of the product name:

(a) `No Nitrate or Nitrite Added'; and

(b) `Not Preserved — Keep Refrigerated Below 40°F. At All Times';

(3) The product is found by the Administrator to be similar in size, flavor, consistency and general appearance to the product commonly prepared with nitrate or nitrite.

44 Fed.Reg. XXXXX-XXX (August 21, 1979).

On September 20, 1979, the National Pork Producers Council and Congressmen Grassley, Hagedorn and Symms filed this action. The National Independent Meat Packers Association was subsequently permitted to intervene as a party plaintiff. On November 9, 1979, plaintiffs' motion for a preliminary injunction came on for hearing before the Court. Subject to defendants' evidentiary objection noted infra and plaintiffs' request to present a consumer perception survey as evidence at a later date, it was agreed that the hearing would also constitute trial on the merits of plaintiffs' claims for a declaratory judgment and permanent injunction. See Fed.R.Civ.P. 65(a)(2). The Court did not rule on plaintiffs' request and would treat such application as a motion to reopen for newly discovered evidence. On November 14, 1979, the Court granted plaintiffs' motion for a preliminary injunction. Defendants have appealed therefrom, but the Court will file its ruling on the merits in order to provide defendants an opportunity to present the entire matter at one time.

Plaintiffs claim the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law", 5 U.S.C. § 706(2)(A), on the following grounds, inter alia:

(1) Defendants failed to consider all relevant factors, including the danger that botulism, a deadly food poisoning, would develop in uncured products that are not properly refrigerated as well as the adequacy of the labeling requirements to prevent mishandling;

(2) The regulation was promulgated for the unlawful purpose of promoting a market for uncured products;

(3) The regulation's similarity requirement is an impermissibly subjective standard of identity that

(a) bears no rational relationship to the purposes of standards of identity;

(b) was beyond defendants' authority to promulgate; and

(c) represents a radical but unexplained departure from previous standards of identity;

(4) The regulation requires uncured products to resemble cured products but does not require uncured products to be labeled as "imitation"; and

(5) Defendants did not prepare or consider preparing an Environmental Impact Statement (EIS).

Defendants contend that the Administrator acted reasonably and for a lawful purpose; that the similarity requirement is proper in all respects; and that neither the label "imitation" nor an EIS is required.

Defendants also insist that the Court's review of plaintiffs' claims on the merits is limited to the administrative record.¹ Defendants rely upon Federal Power Comm'n v. Transcontinental Pipe Line Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976); Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 239 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976); Nickol v. United States, 501 F.2d 1389 (10th Cir. 1974); and Wilson & Co. v. United States, 335 F.2d 788, 799 (7th Cir. 1964), cert. denied, 380 U.S. 951, 85 S.Ct. 1082, 13 L.Ed.2d 968 (1965). Plaintiffs cite Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 467 (D.Kan.1978), aff'd on other grounds, 602 F.2d 929 (10th Cir. 1979), for the proposition that evidence outside the administrative record is admissible in order to assist the Court in understanding the technical, scientific and consumer perception issues presented; to assist the Court in determining whether an EIS should have been prepared; and to establish whether defendants have overlooked any relevant factors in promulgating the rule.

In a recent action for judicial review under 5 U.S.C. § 706(2)(A), the Eighth Circuit has held, on the basis of an extensive quotation from Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420-21, 91 S.Ct. 814, 825-26, 28 L.Ed.2d 136 (1971), that:

Unless an inadequate evidentiary development before the agency can be shown and supplemental information submitted by the agency does not provide an adequate basis for judicial review, the court in conducting the plenary review mandated by Overton Park should limit its inquiry to the administrative record already in existence supplemented, if necessary, by affidavits, depositions, or other proof of an explanatory nature.

Independent Meat Packers Ass'n v. Butz, supra, at 239. In the instant case, the Court admitted evidence in support of and in opposition to plaintiffs' motion for a preliminary injunction. Its introduction for that limited purpose was not objected to. The Court admitted this same evidence on the merits of plaintiffs' claims for declaratory and permanent injunctive relief in order to permit the parties to make as complete a record as possible. In accordance with the principles set forth in Independent Meat Packers and Overton Park, supra, the Court has considered only the administrative record, supplemented by such explanatory evidence as is specifically noted hereinafter, in this ruling upon the merits of plaintiffs' claims. The evidence offered by the parties has not been considered for any other purpose.

SCOPE OF REVIEW

Under 5 U.S.C. § 706(2)(A), the Court is required to make a "thorough, probing, in-depth review" of the defendants' action. Overton Park, supra, 401 U.S. at 415, 91 S.Ct. at 823. If that scrutiny discloses that the defendants acted outside the scope of their authority, Schilling v. Rogers, 363 U.S. 666, 676-77, 80 S.Ct. 1288, 1295, 4 L.Ed.2d 1478 (1960); failed to consider "all relevant factors", Sabin v. Butz, 515 F.2d 1061, 1069 (10th Cir. 1975); United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 251 (2nd Cir. 1977); failed to develop an adequate administrative record which supports necessary findings, WAIT Radio v. Federal Communications Comm'n, 135 U.S.App.D.C. 317, 320, 418 F.2d 1153, 1156 (D.C.Cir. 1969), cert. denied, 409...