United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2000 Decided June 30, 2000
No. 99-5320
American Federation of Government Employees,
AFL-CIO, et al.,
Appellants
v.
Daniel R. Glickman, Secretary of the
U.S. Department of Agriculture, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(98cv00893)
Anne M. Wagner argued the cause for appellants. With
her on the briefs was Mark Roth.
Alfred Mollin, Attorney, U.S. Department of Justice, ar-
gued the cause for appellees. With him on the brief were
David W. Ogden, Acting Assistant Attorney General, William
B. Schultz, Deputy Assistant Attorney General, Barbara C.
Biddle, Attorney, and Wilma A. Lewis, U.S. Attorney.
Before: Edwards, Chief Judge, Randolph and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The Federal Meat Inspection
Act ("FMIA"), 21 U.S.C. s 604, and the Poultry Products
Inspection Act ("PPIA"), 21 U.S.C. s 455, require inspectors
appointed by the Department of Agriculture ("USDA") to
perform a "post-mortem inspection" of the carcasses and
parts of all livestock and birds processed for human consump-
tion. The question in this appeal from the judgment of the
district court is whether the statutes permit federal inspec-
tors to step back from the processing lines and perform their
inspection duties by overseeing inspections conducted by
plant employees.
I
Inspectors from the USDA's Food Safety and Inspection
Service ("FSIS") generally conduct post-mortem inspections
while stationed at fixed points along the slaughter processing
line. Using organoleptic methods, that is, relying on sight,
touch and smell, the inspectors examine the head, viscera, and
exterior of each carcass for signs of adulteration, such as
tumors, inflammation, parasites, and other diseases. See 9
C.F.R. pts. 310-11, ss 381.76-94. If the inspector detects no
signs of adulteration, the carcass is passed and marked with
the USDA legend. See 9 C.F.R. ss 310.8, 381.79. Under the
FMIA, if the inspector finds any lesion or other condition
"that might render the meat or any part unfit for food
purposes, or otherwise adulterated," the carcass (and its
parts) must be retained for veterinary disposition. 9 C.F.R.
s 310.3. A carcass or part found to "be unsound, unhealthful,
unwholesome, or otherwise adulterated" is condemned and
marked as such. Id. s 310.5. Similar procedures apply to
inspections under the PPIA. See id. ss 381.81-89.
The method of inspection just described had remained
unchanged for decades. Then, in the mid-1990s, FSIS em-
barked on a comprehensive food safety initiative targeting the
agency's resources at what it perceived as a serious health
risk--foodborne pathogens, such as salmonella and E. coli,
which cannot be detected by organoleptic inspection. At the
same time it determined to make changes in the current
inspection process to combat these microbial causes of food-
borne illness, FSIS addressed what it considered to be anoth-
er failure of the present regulatory system--that it provides
processing plants with little incentive to detect and eliminate
unacceptable carcasses before presenting them for inspection.
For these reasons, FSIS decided to require "industry to
assume responsibility for producing safe products, reducing
foodborne pathogens, and ... to shift Agency inspection
resources to those areas which present the greatest public
health risk." John W. McCutcheon Decl. at p 10.
In July 1996, FSIS took the first step in implementing its
new initiative by promulgating the Pathogen Reduction/
Hazard Analysis and Critical Control Points ("HACCP") final
rule. See 61 Fed. Reg. 38,806 (1996). The rule "requires
plants to implement science-based process control systems as
a means of preventing food safety hazards, sets certain food
safety performance standards, and establishes testing pro-
grams to ensure those standards are met." Food Safety and
Inspection Service, HACCP-Based Inspection Models 1
(1998). It provides the industry with complete control over
production decisions and execution, subject only to the perfor-
mance standards set by FSIS. FSIS believes that heighten-
ing the industry's responsibility for safe meat and poultry
products will increase "the incentives and flexibility establish-
ments need to innovate and improve food safety." HACCP
Final Rule, 61 Fed. Reg. 38,808.
Such advances, according to FSIS, cannot be achieved
without substantial changes to its approach to inspection. As
the agency put it, the roles of establishments and federal
inspectors need to be "realigned to accord with the HACCP
philosophy." Id. To design and test new inspection models,
FSIS initiated the Inspection Models Development Project
(the "Models Project"). Under the regulatory framework
proposed in the Models Project, the task of separating normal
from abnormal carcasses and parts will be carried out solely
by industry personnel. Federal inspectors will be responsible
for monitoring the plant's performance in sorting and for
verifying its compliance with performance standards and
regulatory requirements. Under the new model, a finding
that a product is not adulterated will be based on FSIS's
determination that the establishment's food safety and sanita-
tion control systems are preventing adulteration.1
Under the new inspection models, FSIS has said that
"slaughter process control will be an industry responsibility
subject to FSIS oversight and verification." HACCP-Based
Meat and Poultry Inspection Concepts: In-Plant Slaughter
Inspection Models Study Plan, 63 Fed. Reg. 40,381, 40,381
(1998). It explained, "[e]stablishment employees will conduct
anatomical and pathological examinations of carcasses, and
FSIS inspectors will oversee, evaluate, and verify the effec-
tiveness and reliability of the establishments' slaughter pro-
cess controls." Id. FSIS plans the transition to industry-
based inspection to occur in stages. At the outset, establish-
ment employees will only be responsible for identifying and
removing trimmable defects. They will later assume respon-
sibility for generalized condemnable conditions. And at the
final stage, employees will perform "all tasks related to
slaughter control," with the inspectors' role limited to over-
sight and verification. Food Safety and Inspection Service,
HACCP-Based Inspection Models Project In-Plant Slaugh-
ter 10 (1998).
Draft guidance put out by FSIS gives some indication of
what oversight and verification entails. Though the descrip-
__________
1 The Models Project encompasses several phases. The first
phase involves collecting baseline data of current performance
under federal inspection in order to ensure that the new system
achieves similar standards. This is followed by a period of testing
the new inspection models at certain volunteer plants. Testing
began in three such plants in September 1999, and FSIS has set
tentative start-up dates for eighteen others.
tions vary slightly depending on the class of animals, over-
sight amounts to inspectors observing establishment person-
nel as they process carcasses and remove unacceptable
products from the food supply. By verification, FSIS means
that inspectors will randomly sample and examine carcasses
that have been passed to determine if the establishment is
complying with the relevant performance standards.
The appellants are a group of federal meat and poultry
inspectors, their union, and the Community Nutrition Insti-
tute. They brought this suit to enjoin the Secretary from
"authorizing anything other than the carcass-by-carcass post-
mortem inspection by a federal government inspector." Brief
for Appellants at 5. Following cross-motions for summary
judgment, the district court ruled in the government's favor
on the basis that the word "inspection" did not clearly require
an organoleptic inspection. See American Fed'n of Gov't
Employees, AFL-CIO v. Glickman, No. 98-0893, Memoran-
dum and Order (D.D.C. Sept. 23, 1999).
II
The statutory language with which we are concerned, the
language supposedly allowing FSIS's oversight and verifica-
tion regime, is as follows. For meat, s 604 of the FMIA
provides: "the Secretary shall cause to be made by inspectors
appointed for that purpose a post-mortem examination and
inspection of the carcasses and parts thereof of all [livestock]
to be prepared at any slaughtering, ... or similar establish-
ment...." 21 U.S.C. s 604 (emphasis added). For poultry,
s 455(b) of the PPIA states: "[t]he Secretary, whenever
processing operations are being conducted, shall cause to be
made by inspectors post mortem inspection of the carcass of
each bird processed...." 21 U.S.C. s 455(b) (emphasis add-
ed).
The government does not deny that in the ninety or so
years since passage of the FMIA in 1907, "inspection" has
been taken to mean an organoleptic examination of the car-
cass, an inspection, that is, using the senses. Now the
government has discovered another meaning. A "federal
employee has performed an inspection of a carcass," the
government tells us, "when he has watched a plant employee
conduct the kind of examination, organoleptic or otherwise,
that is necessary to determine whether the carcass is fit for
human consumption. And in making these observations, the
oversight inspector will observe all of the carcasses that pass
along the slaughter line." Brief for the Appellees at 29.
In other words, the government believes that federal em-
ployees fulfill their statutory duty to inspect by watching
others perform the task. One might as well say that umpires
are pitchers because they carefully watch others throw base-
balls. The government thinks it can arrive at its position on
the basis that the word "inspection" is undefined in the
statutes. But the lack of a statutory definition does not
render a term ambiguous. See Bass v. Stolper, Koritzinsky,
Brewster & Neider, S.C., 111 F.3d 1322, 1325 (7th Cir. 1997).
It simply leads us to give the term its ordinary, common
meaning. See Perrin v. United States, 444 U.S. 37, 42 (1979);
Johnson v. SEC, 87 F.3d 484, 487 (D.C. Cir. 1996). And when
we treat the word "inspection" in that manner, it is easy to
see why there is nothing to the government's point that "an
oversight inspector will necessarily observe all carcasses and
parts that pass along the slaughter line." See John W.
McCutcheon Decl. at p 21. Every inspection entails an obser-
vation, but not every observation amounts to an inspection.
One may observe something without paying close attention to
it, and without giving it a critical appraisal, although that is
what these statutes demand. The military commander may
observe his troops without inspecting them. The foreman of
an assembly line may do the same with widgets.
Both statutes clearly contemplate that when inspections are
done, it will be federal inspectors--rather than private em-
ployees--who will make the critical determination whether a
product is adulterated or unadulterated.2 To the extent
federal employees are doing any systematic inspecting under
__________
2 "The term 'inspector' means: (1) an employee or official of the
United States Government ..., or (2) any employee or official of the
government of any State...." 21 U.S.C. s 453(k).
the Models Project, they are inspecting people not carcasses.
Delegating the task of inspecting carcasses to plant employ-
ees violates the clear mandates of the FMIA and PPIA. See
Chevron USA, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984). For that reason, we
reverse the grant of summary judgment and remand to the
district court for further proceedings consistent with this
opinion.
So ordered.