55 Agric. Dec. 737 separate) and, therefore, is entitled to a refund of the amount from the producer-settlement fund.47 The judgment appealed is REVERSED, judgment consistent herewith in favor of Gore is RENDERED, and the matter is REMANDED for appropriate disposition. SANI-DAIRY, A DIVISION OF PENN TRAFFIC CO., INC. v. YEUTTER SECRETARY OF AGRICULTURE, UNITED STATES DEPARTMENT OF AGRICULTURE AND UNITED STATES OF AMERICA.' No. 95-3304. Decided July 31, 1996 as amended August 29, 1996. (Cite as: 91 F.3d 15) Milk marketing order - Prohibited economic trade barrier. The United States Court of Appeals for the Third Circuit affirmed and adopted the District Court's decision which held that the Secretary's regulations, as applied to the plaintiffs, constitute a prohibited economic trade barrier. Before: NYGAARD, SAROKIN and ALDISERT, Circuit Judges. Per Curiam. UNITED STATES COURT OF APPEALS THIRD CIRCUIT OPINION OF THE COURT 47 "See Abbotts Dairies Division of Fairmont Foods v. Butz, 584 F.2d 12 (3d Cir. 1978); see also 7 U.S.C. § 608c(15)(B) (1992) (granting jurisdiction in equity). 'Pursuant to Rule 12(a), F.R.A.P. Several Pennsylvania dairy farmers and a dairy cooperative' challenge the validity of the Secretary of Agriculture's regulations governing the marketing of fluid milk in the New York-New Jersey milk marketing area.2 Plaintiffs allege that the Secretary's regulations, promulgated under the Agricultural Marketing Agreement Act of 1937,7 U.S.C.§ 601 et seq., violate 7 U.S.C. § 608c(5)(G), which states: No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States. The district court found that the Secretary's regulations governing the marketing of fluid milk in the New York-New Jersey milk marketing area, as applied to plaintiffs, constituted a prohibited economic trade barrier to milk. producers and sellers outside the New York-New Jersey milk marketing area. See Lehigh Valley Cooperative Farmers, Inc. v. United States, 370 U.S. 76, 91-98 (1962). The district court awarded plaintiffs restitution and interest. We will now affirm, and in so doing adopt the reasoning of the district court expressed in Sani-Dairy v. Yeutter, 935 F.Supp. 608 (W.D. Pa. 1995) and Sani-Dairy v. Espy, F. Supp. NO. CIV. A. 90-222J, CIV. A. 90-236J, 1993 WL 832147 (W.D. Pa. Dec. 30, 1993). KENNEY v. GLICKMAN, SECRETARY OF AGRICULTURE. Decided September 30, 1996. (Cite as: 96 F.3d 1118) Not the type of enforcement decision that is presumptively unreviewable under APA- Sufficient law for judicial review - Reversed and remanded. Poultry and meat producers brought an action challenging USDA regulations governing meat and poultry processing. The United States District Court for the Southern District of Iowa 'The dairy cooperative is no longer part of this suit because it failed to exhaust its administrative remedies before seeking judicial review. The marketing area is defined in 7 C.F.R. § 1002.3. 55 Agric. Dec. 738 dismissed the action for failure to state a claim. The United States Court of Appeals for the Eight Circuit reversed and remanded the case finding that the regulations were not presumptively unreviewable enforcement decisions under the Administrative Procedure Act, and that there was sufficient law available for judicial review of the agency's decisions. The Secretary's decisions regarding zero tolerance water washing are general policies and standards, not decisions on whether a violation has occurred or should be acted against, and are therefore not enforcement actions. There is a strong presumption that Congress intends the judicial review of administrative action, and law to apply can be found in underlying statutes or regulations. The PPIA and the FMIA regulations provide sufficient law to apply in reviewing the Secretary's decisions regarding zero tolerance, water washing, and permissible water retention. The case was remanded for a determination of whether the Secretary abused his discretion. Before MCMILLIAN and BEAM, Circuit Judges, and PERRY," District Judge. UNITED STATES COURT OF APPEALS PERRY, District Judge. EIGHTH CIRCUIT Delores Kenney and fellow poultry consumers appeal from the district court's order dismissing this action for failure to state a claim. Because we find that the challenged actions and inactions of the Secretary of Agriculture are reviewable, we reserve and remand to the district court for a determination of whether the Secretary abused his discretion. I. The original plaintiffs, poultry consumers and red meat producers, brought an action against appellee Daniel Glickman, Secretary of Agriculture,' challenging certain aspects of the Department of Agriculture's regulatory scheme governing meat and poultry processing. The district court held that the poultry consumers had standing to challenge the Secretary's actions, but *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 Agriculture at the time appellants brought this action. Daniel Glickman, current Secretary of Agriculture, has replaced Espy as party to this action. ୮ the red meat producers did not have standing. The red meat 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, holding that the actions and decisions of the Secretary of Agriculture challenged by appellants are not subject to judicial review. The poultry consumers have appealed that determination. Appellants challenge certain actions and inactions by the Secretary of Agriculture regarding the processing of poultry. The Secretary is responsible for implementing both the Poultry Products Inspection Act ("PPIA"), 21 U.S.C.451 et seq., and the Federal Meat Inspection Act ("FMIA"),21 U.S.C. 601 et seq. The stated objectives and bases of the two Acts are identical: protect the health and welfare of consumers and to eliminate the burdens on interstate commerce that result from the distribution of unwholesome, adulterated or mislabeled products. With respect to the health of consumers, both parties provided statistics regarding the large number of contaminated meat and poultry carcasses processed each year and the negative consequences resulting from human consumption of the contaminated carcasses. In light of the identical goals of the two Acts, appellants allege that the Secretary has issued contradictory requirements for the inspection and cleaning of meat and poultry, and that the Secretary has improperly allowed water absorbed during processing to remain in poultry. The processing of meat and poultry begins with the removal of certain parts of the carcasses. The carcasses and parts are then either sold or processed further. Because both meat and poultry are sold by weight, any moisture added during processing increases the value of the carcass. Similarly, any trimming of the carcass during processing to remove contaminants reduces the value of the carcass. To further the goals of the PPIA and 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 not "adulterated" or "misbranded." The definitions of those two terms are nearly identical under the two Acts. Individual meat and poultry carcasses are inspected during processing, and carriers of E. coli and other pathogens are removed. The well-known contaminants that carry pathogens are feces, ingesta and milk. If contaminants are found on an individual meat or poultry carcass, the regulations require processors to remove the contaminants. The regulations refer to this as "zero tolerance" with respect to individual carcasses. After the individual carcasses have been inspected and reprocessed as necessary, the 55 Agric. Dec. 738 inspector reinspects sample 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 lot. Before March 1993, the regulations established a tolerance slightly above zero with respect to process defects in both poultry and meat. In other words, if the number of defects discovered on the sample carcasses was less than the tolerance level, the entire lot could proceed. If the defects exceeded the tolerance level, the entire lot failed and corrective action was required. 2 In March 1993, the Secretary issued directives to operators and inspectors of beef slaughter plants. The directives--which affected meat but not poultry--lowered the tolerance level for process defects to zero. The directives did not affect the tolerance level for individual carcasses, i.e., the tolerance for contaminants on individual carcasses 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 process defects, the methods of contaminant removal approved by the Secretary also differ between meat and poultry. The regulations governing inspections require meat processors to trim or otherwise actually remove the contaminated tissue, while the regulations allow poultry processors to "water wash" the contaminated portion of the carcass. Appellants 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 water 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 regulations governing poultry. The regulations governing water absorbed during processing differ between meat and poultry. The meat regulations prohibit processors from adding water and other substances to a meat carcass during processing. Poultry carcasses, on the other hand, may absorb and retain an average of eight percent increase over the weight of the carcass before final washing. 'In December 1993, interim guidelines replaced the March 1993 directives with no relevant substantive changes. |