United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2002 Decided March 29, 2002
No. 01-5035
American Federation of Government Employees,
AFL-CIO, et al.,
Appellants
v.
Ann M. Veneman, 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 and filed the briefs for
appellants. With her on the briefs was Mark Roth.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the
briefs were Roscoe C. Howard, Jr., U.S. Attorney, Mark B.
Stern and Colette G. Matzzie, Attorneys, U.S. Department of
Justice. Barbara C. Biddle, Assistant Director, U.S. Depart-
ment of Justice, entered an appearance.
Before: Ginsburg, Chief Judge, Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: This case returns to us after
proceedings on remand from Am. Fed'n of Gov't Employees
v. Glickman, 215 F.3d 7 (D.C. Cir. 2000) ("AFGE I"). The
United States Department of Agriculture ("USDA") had at-
tempted to test a new inspection model at several hog and
poultry processing plants. AFGE I held that, as implement-
ed, the model program violated 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. While the case
was on remand in the district court, the USDA modified its
model program. The question now is whether the revised
model program complies with these statutes.
Both statutes seek to ensure that all meat and poultry
products processed for human consumption are wholesome
and unadulterated. See 21 U.S.C. s 602; 21 U.S.C. s 451.
The FMIA requires USDA inspectors to conduct a post-
mortem "examination and inspection of the carcasses and
parts thereof of all cattle, sheep, swine, goats, horses, mules
and other equines." 21 U.S.C. s 604. The PPIA requires
USDA inspectors to conduct a "post mortem inspection of the
carcass of each bird processed." 21 U.S.C. s 455(b).
The USDA's Food Safety and Inspection Service ("FSIS")
traditionally assigned federal inspectors to processing lines
where they conducted "organoleptic" inspections of carcasses,
relying on sight, touch and smell in examining the head,
viscera, and exterior of the carcasses to detect signs of
adulteration, such as tumors, parasites and other diseases.
See AFGE I, 215 F.3d at 8, 10. In "the mid-1990s, FSIS
embarked 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 foodborne illness, FSIS addressed what it considered to be
another 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." AFGE I, 215 F.3d at 9.
"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)." 215 F.3d at 9. The
rule required meat and poultry plants to develop and install a
system of preventive controls to ensure the safety of their
products. See 61 Fed. Reg. 38,814; see also 9 C.F.R.
s 417.2(a). Because the HACCP rule gave processing plants
greater control over production decisions, FSIS determined
that changes in its traditional organoleptic inspection methods
would be necessary to realign the roles of federal inspectors
with the new HACCP philosophy. See 61 Fed. Reg. 38,818.
Accordingly, in 1997 FSIS published a notice in the Federal
Register explaining that as a result of the HACCP final rule,
"[e]very aspect of traditional FSIS methods of inspection for
slaughter and processing needs to be reconsidered." 62 Fed.
Reg. 31,553. The notice said the agency was launching the
Inspection Models Development Project (the "Models Pro-
ject"), through which it would design and test various new
inspection models in a series of trials in volunteer meat and
poultry slaughter establishments. See 62 Fed. Reg. 31,558.
If--after gathering data on the various test models and
preparing a final report analyzing the different models--the
FSIS decided that its traditional inspection methods needed
to be changed, then it pledged to initiate rulemaking to alter
existing inspection procedures. 62 Fed. Reg. 31,558.
The first new inspection approach, tested at several volun-
teer processing plants under the Models Project, gave indus-
try personnel the task of separating normal from abnormal
carcasses and parts. Federal inspectors had two limited
roles: oversight and verification. Oversight inspectors ob-
served establishment personnel as they processed carcasses
and removed unacceptable products from the food supply;
verification inspectors randomly sampled carcasses to deter-
mine if the plant was complying with relevant performance
standards. See AFGE I, 215 F.3d at 10.
In 1998, the plaintiffs in this action sought to enjoin imple-
mentation of the new inspection model, arguing that it violat-
ed the FMIA and PPIA because federal inspectors were not
personally inspecting each carcass. The district court, find-
ing the program in compliance with the statutes, granted
summary judgment for the government. We reversed and
remanded. See AFGE I, 215 F.3d at 7. Because the model
program had federal employees "inspecting people not car-
casses," the USDA was not fulfilling its statutory duty to
conduct post-mortem inspections of carcasses. See id. at 11.
On remand, plaintiffs moved for entry of an order consis-
tent with AFGE I declaring that the USDA's inspection
model violated the FMIA and PPIA. The government op-
posed the motion and moved for a declaratory judgment,
arguing that it had modified its Models Project in response to
the AFGE I decision. Only the declaration of Michael Gras-
so, the project manager of the FSIS's inspection program,
offered a comprehensive written description of the modifica-
tion, which was accomplished without a new rulemaking.
Grasso's declaration explained that in the eleven poultry
establishments voluntarily participating in the Models Pro-
ject, the new program called for federal inspectors to play
two roles: (1) "carcass inspectors" stationed at the end of
slaughter lines would examine each poultry carcass for adul-
teration after the carcasses were eviscerated, sorted, washed
and trimmed by establishment employees but before the
carcasses were put into the chiller; and (2) "verification
inspectors" would oversee the poultry establishment's inspec-
tion efforts. See Grasso Declaration at 5. In the three
participating hog plants, the modified program called for
federal carcass inspectors located at up to three fixed loca-
tions along the slaughter lines: in the area where the carcass
and head were separated; where the carcass and viscera
were separated; and at the pre-wash verification location.
See id. at 8.* These inspectors would be responsible for
examining the carcass, head, and viscera of all hogs. See id.
Other inspectors would also be assigned to hog plants to
verify the effectiveness of the plant's process control systems.
The USDA told the district court that it would begin
implementing the modified inspection system in two of the
eleven poultry plants on September 18, 2000, and that it
would complete implementation in all fourteen participating
plants no later than November 6, 2000. Plaintiffs objected on
the grounds that the modified program violated the FMIA,
PPIA, and conflicted with AFGE I because it did not require
federal inspectors to subject each carcass to a close and
critical appraisal. The government defended on the basis
that the main error in the prior program had been remedied
because federal inspectors would be directly observing each
carcass to determine whether or not it was adulterated.
The district court granted plaintiffs' motion for a remedial
order, declaring that the first model program violated the
FMIA and PPIA. See Am. Fed'n of Gov't Employees v.
Glickman, 127 F. Supp. 2d 243 (D.D.C. 2001). As to the
modified program, the court determined that Congress had
not unambiguously expressed its intent about how much
"inspection" is required by the statutes. Relying on Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984),
the court concluded that the modified program reflected
USDA's reasonable interpretation of the statutes.
In the first appeal in this case, we were faced with the issue
"whether the statutes permit federal inspectors to step back
from the processing lines and perform their inspection duties
by overseeing inspections conducted by plant employees."
215 F.3d at 8. Both the FMIA and PPIA yielded a certain
__________
* Due to the physical configuration of the slaughter line in some
hog establishments, fewer than three inspectors may be used
because "it may be possible for one inspector to inspect both the
head and viscera or the viscera and carcass." Grasso Declaration at
8 (explaining that, for example, "the chain that carries the head may
be adjacent to the viscera pans, which may enable one inspector to
examine both the head and viscera").
solution: the statutes require federal inspectors to inspect
animal carcasses not people. The issue in this second appeal
is of a different sort. Federal inspectors are now examining
carcasses, but are they properly performing "inspections," as
the statutes require?
Courts pronouncing on the meaning of a word or phrase in
a statute often declare generally that the meaning is "plain"
or that it is "ambiguous." Such declarations may mask a
critical analytical step. A statute can be clear or unclear
depending on what question we want it to answer. We may
borrow H.L.A. Hart's famous hypothetical to illustrate the
point. Imagine the following law: "No vehicle may be taken
into the park." H.L.A. Hart, The Concept of Law 125 (1961).
If one asks whether this prohibits taking baseballs into the
park, the answer is clearly no. If one asks whether this
forbids driving automobiles through the park, the answer is
clearly yes. But if the question is whether the law prohibits
riding a bicycle or a skateboard in the park or pushing a baby
carriage there, uncertainties arise.
So it is with the FMIA and PPIA. Both statutes delineate
what must be inspected and by whom, see AFGE I, 215 F.3d
at 10-11, but neither statute tells the reader exactly what an
"inspection" entails. The district court, citing Chevron, there-
fore deferred to the USDA's view of "inspection" as reflected
in the modified program. The parties, following the district
court's lead, assume Chevron applies. But it would be plain
error for us to rely on the case. United States v. Mead
Corp., 533 U.S. 218, 226-27 (2001), decided after the district
court ruled, held that Chevron applies only when "Congress
delegated authority to the agency generally to make rules
carrying the force of law, and ... the agency interpretation
claiming deference was promulgated in the exercise of that
authority." The modified program described in the Grasso
declaration was not the product of a statutorily-created
decision-making process, such as formal adjudication or
notice-and-comment rulemaking. Nor does the modified pro-
gram itself contain any indication that the USDA "ever set
out with a lawmaking pretense in mind," Mead, 533 U.S. at
233. The USDA announced that the Models Project would
serve as a temporary test project rather than as its final say
on the matter. See 62 Fed. Reg. 31,558 (explaining that after
testing various inspection models, the agency will write a final
report and "initiate rulemaking, as appropriate, to change
existing inspection procedures"). Because the USDA did not
intend to act with the force of law when it promulgated the
modified program, the program has no more status than
opinion letters, policy statements, agency manuals, and en-
forcement guidelines, all of which are undeserving of Chevron
deference. See Christensen v. Harris County, 529 U.S. 576,
587 (2000); Mead, 533 U.S. at 234. Still, as the reasoned
judgment of the federal agency charged with administering
our federal meat and poultry inspection laws, the USDA's
view about the scope of inspection required by the FMIA and
PPIA constitutes "a body of experience and informed judg-
ment" to which we may properly resort for guidance. Skid-
more v. Swift & Co., 323 U.S. 134, 140 (1944).
The USDA determined that its modified inspection pro-
gram, which calls for one carcass and one verification inspec-
tor per slaughter line at poultry plants, and one verification
inspector and up to three carcass inspectors at hog plants,
would be sufficient to allow its employees to detect adulterat-
ed meat and poultry. With admirable candor, plaintiffs con-
cede that the statutes do not require organoleptic inspections.
They believe the modified program is nevertheless flawed
because federal inspectors examine poultry carcasses only
after industry employees have eviscerated, sorted, trimmed
and rinsed the carcasses. As to the statute, the PPIA states
that federal inspectors must conduct a "post mortem inspec-
tion of the carcass of each bird processed." 21 U.S.C.
s 455(b). Another subsection states that "[a]ll poultry car-
casses and parts thereof ... found to be adulterated shall be
condemned," 21 U.S.C. s 455(c). Plaintiffs wonder how fed-
eral inspectors can fulfill their duty to condemn adulterated
"parts" if all they are checking for adulteration are poultry
carcasses. The USDA has a ready response, one we find
convincing. Inspection of the viscera "is not necessary to
determine whether a poultry carcass is adulterated." Brief
for Appellees at 23. With only one exception, all generalized
poultry diseases and conditions can be readily discerned by
inspecting the carcasses alone and therefore are adequately
addressed by the practice, incorporated in the modified pro-
gram, of condemning all viscera that correspond to carcasses
found to be adulterated. The one disease that cannot be
detected by inspecting the carcasses alone--avian visceral
leukosis--is adequately dealt with under the modified pro-
gram by having an FSIS inspector examine the viscera from
the initial 300 birds slaughtered from each flock. If avian
visceral leukosis is present, it will be present throughout the
flock and therefore will be detected.
Plaintiffs also assert that the line speeds used in the
modified program at both hog and poultry plants are too fast
to allow federal inspectors to make a critical appraisal of each
carcass. But as the USDA points out, higher line speeds are
appropriate. Fewer adulterated poultry carcasses and hog
parts and carcasses will be presented for federal inspection
under the modified program because employees of the pro-
cessing plants will sort out carcasses before they reach
federal inspectors. Neither the PPIA nor the FMIA prohib-
its establishment employees from paring down the overall
number of carcasses by removing some adulterated carcasses
before they get to FSIS inspectors. Furthermore, as the
USDA tests its models project, it plans to monitor whether a
second inspector is necessary in establishments operating at
high line speeds. See Grasso Declaration at 6.
We therefore hold that the USDA's current modified in-
spection model, as described in the Grasso declaration, does
not violate the FMIA or the PPIA. Because the modified
program calls for federal inspectors in participating poultry
plants to personally examine each poultry carcass leaving the
slaughter line, the USDA is complying with the PPIA's
requirement that "the carcass of each bird processed" be
inspected for adulteration. 21 U.S.C. s 455. The modified
program also satisfies the FMIA because the program calls
for federal inspectors in participating hog plants to inspect all
hog carcasses, heads and viscera, as the statute demands.
See 21 U.S.C. s 604.
We have reviewed only the USDA's implementation of its
current, modified inspection model. This is a test program, a
temporary measure intended as an experiment. If the USDA
undertakes a rulemaking to adopt as a permanent change
something along the lines of the modified program, experi-
ence with the program's operation and its effectiveness will
doubtless play a significant role. For this and other reasons,
our opinion today may not necessarily foreshadow the out-
come of judicial review of such future regulations.
Judgment affirmed.