55 Agric. Dec. 738 regulations interpreting the nearly identical PPIA. The Secretary may have legitimate, rational reasons for differing between meat and poultry. However, in light of the strikingly similar 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 regulations governing contaminants during processing. Because the district court found the actions unreviewable, it did not proceed to review 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 processing. It is undisputed that these regulations are not "enforcement actions" under Heckler v. Chaney, but rather are agency interpretations of the PPIA and FMIA. In addition, appellee does 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 the regulations are a reasonable interpretation by the Secretary of the PPIA. Appellants 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 water retention regulation under the PPIA provision prohibiting adulterated and misbranded poultry products. The relevant definitions of "adulterated" and "misbranded" are identical under the PPIA and FMIA. Compare 21 U.S.C. § 453(g), (h) with 21 U.S.C. § 601(m), (n). However, the regulations permit up to 8% water to be retained during the processing of poultry, see 9 C.F.R. § 381.66 (1995), whereas the meat regulations do not allow the 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 thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appeal better or of greater value than it is." 21 U.S.C. § 453(g)(8). This definition provides law to apply. The district court can review whether the Secretary has properly excluded water absorbed during processing from the class of substances prohibited by the PPIA from being added to poultry. In addition, the court can compare the Secretary's poultry and meat regulations to determine whether the Secretary has acted arbitrarily and capriciously or abused his discretion by treating meat and poultry differently. Likewise, the definition of "misbranded" provides law to apply, as evidenced by the numerous court decisions reviewing agency action and inaction challenged as violations of the prohibition against misbranded poultry products. See, e.g.,American Meat Institute v. USDA, 646 F.2d 125 (4th Cir. 1981); National Pork Producers Council v. Bergland, 631 F.2d 1353 (8th Cir. 1980), cert. denied, 450 U.S. 912, 101 S. Ct. 1350, 67 L. Ed.2d 335 (1981); American Public Health Ass'n v. Butz, 511 F.2d 331 (D.C. Cir. 1974). Appellants contend that the current poultry regulations regarding water retention violate two of the provisions in the definition of "misbranded" poultry under the PPIA. First, a poultry product is misbranded "ifits labeling is false or misleading in any particular." 21 U.S.C. § 453 (h)(1). Second, a poultry product is misbranded ... [U]nless it bears a label showing. (B) an accurate 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 be permitted, and exemptions as to small packages or articles not in packages or other containers may be established by regulations prescribed by the Secretary. 21 U.S.C.§ 453(h)(8). The district court relied on the "reasonable variation" and "exemptions... may be established" language contained in 453 (h)(5) to conclude that all interpretations of the term "misbranded" were committed by Congress to agency discretion. This conclusion affords too much weight to 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. 519,97 S. Ct. 1305,51 L. Ed. 2d 604 (1977); see also 9 C.F.R. §§ 317.2,317.19 (1995) (defining scope of "reasonable variations"). There is nothing in the definition of "misbranded" that indicates Congress intended to afford complete discretion to the agency regarding decisions such as the water absorption provisions challenged in this case. Because appellee has not overcome the presumption of reviewability with respect to the poultry regulations that allow some water to be absorbed, Count II will be remanded to the district court for review of the Secretary's actions. 55 Agric. Dec. 749 VI. In conclusion, we reverse and remand this action to the district 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 would 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 for poultry process defects and to allow water washing of poultry contaminants are nonreviewable enforcement decisions under Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S.Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985). However, for the reasons stated in Part V of the majority opinion, I agree that the district court's dismissal of appellants' claim in Count II of the complaint (concerning the water absorption regulations) should be reversed, and that claim remanded for review. KREIDER DAIRY FARMS, INC. v. GLICKMAN, SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE. No. CIV.A. 95-6648. Filed August 15, 1996. Milk marketing order - Definition of producer-handler - Promulgation history-Remand. The United States District Court for the Eastern District of Pennsylvania remanded the case for further factfinding, in order to determine whether granting Kreider producer-handler status would give it an unfair economic advantage. The market administrator (MA) of Order 2 denied Kreider producer-handler status because its sales to Ahava are considered to be distributions to a "subdealer. Because Ahava plays a role in distributing the milk to its ultimate end users, the MA determined that Kreider is not completely self-contained, and is therefore, not entitled to be exempt from contributions to the producer-settlement fund. The Court found that the MA's interpretation of Order 2 is not clearly supported by the plain language of the order, the promulgation history, or agency precedent. It also determined that further fact finding is necessary to decide whether the economic justification for the market administrator 's interpretation is valid. It further held that if the petitioner prevails, it is entitled to a full refund of assessments with interest. UNITED STATES DISTRICT COURT MEMORANDUM CAHN, District Judge: Plaintiff, Kreider Dairy Farms, Inc. ("Kreider"), seeks review of a Decision and Order issued by the Judicial Officer of the United States Department of Agriculture ("USDA"). Kreider initiated this case by filing a complaint pursuant to section 608c(15)(B) of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq. (the "AMAA"). The case arises from the administration of a federal milk marketing order, enacted under the authority of the AMAA, which regulates the sale of milk and fluid milk products in the New York-New Jersey milk marketing area. See 7 C.F.R. § 1002 et seq. (1995). Kreider challenges the ruling of the Judicial Officer ("JO") who affirmed the decision of the Market Administrator ("MA") for the New York-New Jersey Milk Marketing Order ("Order 2")2 to regulate Kreider as a handler 'The Judicial Officer acts on behalf of the Secretary of Agriculture in all adjudicative matters which are appealed to the USDA. See 7 C.F.R. § 2.35 (1995). 2The following provides a helpful background on the purpose of a milk marketing order: Milk marketing orders issued under the [AMAA] provide for the classification of milk in accordance with the form in which or the purpose for which it is used, and for the payment to all producers delivering milk to all handlers under a particular order of uniform minimum prices for all milk so delivered. The procedure is generally as follows: The Market Administrator computes the value of milk used by each pool handler by multiplying the quantity of milk he uses in each class by the class price and adding the results. The values for all handlers are then combined into one total. That amount is decreased or increased by several subtractions or additions. ... The result is divided by the total quantity of milk that is priced under the regulatory program. The figure thus obtained is the basic or uniform price which must be paid to producers for their milk. Each handler whose own total use value of milk for a particular delivery period, i.e., a calendar month, is greater than his total payments at the uniform price is required to pay the difference into an equalization or producer-settlement fund. Each handler whose own total use value of milk is less than his total payments to producers at the uniform price is entitled to withdraw the amount of the difference from the equalization or producer-settlement fund. Thus a composite or uniform price is effectuated by means (continued...) 55 Agric. Dec. 749 under Order 2 rather than designating Kreider as a producer-handler exempt from paying certain fees for sales of fluid milk. Pursuant to 7 U.S.C. § 608c(15)(B) of the AMAA, Kreider sought review of the JO's decision by filing a complaint in this court against Defendant Dan Glickman, the Secretary of the USDA ("Defendant" or "the Secretary"). Currently before this court are Kreider's Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment. After consideration of the memoranda and the onrecord hearing on this matter, this court finds that Defendant's action is not warranted by the record before this court. Therefore, this case is remanded to the Secretary for further factual findings. PROCEDURAL HISTORY Kreider initiated these proceedings on December 23, 1993, by filing a Petition with the USDA pursuant to section 608c(15)(A) of the AMAA. An Answer to the Petition was filed by the Administrator of the Agricultural Marketing Service, USDA, on February 25, 1994. On December 14, 1994, a hearing was held before an administrative law judge ("ALJ"). In a Decision and Order dated March 20, 1995, the ALJ held that Kreider qualified as a producer-handler under Order 2 and stated that Kreider was therefore entitled to a full refund of all sums which had it been required to pay into producer-settlement and administrative funds established under the Order. As of November, 1994, these sums totalled $543,864.68. The ALJ denied Kreider's request for interest on the amount paid. The Agricultural Marketing Service filed its Appeal to the ALJ's Decision on May 5, 1995. Also on May 5, 1995, Kreider filed a Cross-Appeal concerning its right to interest on the refund. On September 28, 1995, the JO issued a Decision and Order reversing the ALJ and upholding the MA's decision to regulate Kreider as a handler under Order 2. See In re: Kreider Dairy Farms, Inc., 94 AMA Docket No. M-1-2 (USDA Sept. 28, 1995). On October 18, 1995, following the issuance of the JO's Decision and Order, Kreider filed its Complaint with the United States District Court for 2(...continued) of the equalization or producer-settlement fund. In re Yasgur Farms, Inc. 33 Agric. Dec. 389, 391-92 (1974) (quoting Grant v. Benson, 229 F.2d 765, 767 (D.C.Cir. 1955), cert. denied, 350 U.S. 1015 (1956)). |