Independent Meat Packers Ass'n v. Butz
Independent Meat Packers Ass'n v. Butz
Opinion of the Court
These are appeals from an order of the district court
After a hearing on the application for a preliminary injunction, the district court, being persuaded that there was a reasonable likelihood of success, issued a preliminary injunction on April 11 enjoining implementation of the revised regulations in their entirety upon the posting of a $5,000 bond.
Prior to trial the Packers, Consumers, and all defendants filed motions for summary judgment. The federal defendants also moved for an order limiting the scope of the court’s inquiry to a review of the administrative record.
I.
Resolution of the issues raised in this appeal requires a brief review of the history of the beef grading program currently in force. The USD A inaugurated its voluntary beef grading program in May 1927 without express congressional authorization.
The yield grade of a beef carcass is determined by considering four factors: the thickness of the external fat, the amount of kidney, pelvic, and heart fat; the area of the ribeye; and the hot car
Acting under the rulemaking power vested in the Secretary of Agriculture by § 203 of the Agricultural Marketing Act of 1946, 7 U.S.C. § 1622(h), the USDA followed the notice and comment procedure outlined by § 4(b) of the Administrative Procedure Act, 5 U.S.C. § 553(c), in promulgating the challenged regulations. First, on September 11, 1974, the USDA filed notice in the Federal Register of proposed changes in standards for grades of carcass beef, 7 C.F.R. §§ 53.102, 53.104-105, and the standard for slaughter cattle, 7 C.F.R. §§ 53.201-.206. Interested persons were given an opportunity to present written comments, views, and arguments during a ninety-day period ending December 10, 1974.
The revised regulations contained four major changes in the standards for grades of carcass beef. First, conformation was eliminated as a factor for determining quality grade. Secondly, all carcasses submitted for grading would be identified for both quality grade and yield grade. Thirdly, having determined that increasing physiological maturity does not affect palatability within the youngest maturity group (cattle nine through thirty months old), the marbling requirements for this group were set at the lowest level previously acceptable in the Prime, Choice, and Standard grades. For the more mature beef in these grades increased marbling is still required to compensate for advancing age, but the minimum degree of marbling required was lowered by one degree. Lastly, to make the Good grade more uniform and restrictive, the Secretary limited this grade to carcasses in the A and B maturity groups and raised the minimum degree of marbling required by one-half degree.
The changes in the relationship between marbling-maturity and quality grades were opposed by most consumers, representatives of restaurants, institutions, their suppliers, and some feeders. Their opposition was based on the belief that the changes would impair the palatability of Prime and Choice beef and that consumers would have to pay “Choice grade prices for Good grade beef.” The requirement that all beef graded be graded for both quality and yield was opposed most strongly by meat packers. They voiced the belief that compulsory yield grading would increase
The cattlemen endorsed the objectives and principal provisions of the regulations. Their studies and experience convinced them that it would be possible to produce fed beef more economically, using less grain, and a shorter average period in the feedlot. Combining quality and yield grading would reward producers of high yielding beef with premium prices as it would tend to eliminate the use of averages in marketing cattle.
The district court’s memorandum opinion, which was designed to provide the basis for the injunction entered on May 29, considered the major contentions voiced by the opposing groups. First, the court found “substantial evidence” to support the changes in the relationship between marbling-maturity and quality grade. 395 F.Supp. at 927. This disposed of the principal challenge of the consumer group plaintiffs. Secondly, the court held that “compulsory yield grading” falls outside the authority, delegated to the Secretary of Agriculture by 7 U.S.C. § 1622(h). The court reasoned that the requirement that all beef submitted for grading be graded for both quality and yield is inconsistent with the voluntary tone of § 1622(h). Id. at 931. The court also stated that there was “no necessity for compulsory yield grading” and that “no appreciable benefit [would] result from compulsion.” Id. Lastly, the court considered the adequacy of the Department’s actions relative to Executive Order No. 11821. Being persuaded that the adequacy of compliance with the terms of the executive order was subject to judicial review, id. at 932, the court ruled that the Secretary’s inflation impact statement was deficient and that, accordingly, the regulations should be set aside in their entirety.
II.
Inasmuch as the USDA’s alleged failure to comply with the mandate of Executive Order No. 11821 was the broadest ground upon which the district court’s order enjoining implementation of the new regulations was based, we shall consider this issue first. Executive Order No. 11821, 39 Fed.Reg. 41501 (1974), requires the Director of the Office of Management and Budget (OMB) to consider the following factors in developing criteria for identifying legislative proposals, rules, and regulations having potential impact upon inflation: cost impact on consumers, businesses, markets, and government; effect on productivity of wage earners, businesses, and government; effect on competition; and effect on supplies of important products or services. The implementing document, OMB Circular No. A — 107, also requires consideration of the effect on employment and energy supplies or demand. In accordance with Section 5(d) of the OMB circular, the Secretary certified that the Department had evaluated the inflationary impact of the proposed regulations, 40 Fed.Reg. 11535, 11546 (1975), and forwarded a brief summary of the evaluation to the Council on Wage and Price Stability. The district court found this evaluation to be deficient because it did not consider the effect of the new regulations on the productivity of wage earners, competition, employment, energy resources, and secondary markets, weigh the impact of the alternative proposals submitted, or quantify the factors that were considered. 395 F.Supp. at 932.
Presidential proclamations and orders have the force and effect of laws when issued pursuant to a statutory mandate or delegation of authority from Congress. See Gnotta v. United States, 415 F.2d 1271, 1275 (8th Cir. 1969); Far
In summary, we conclude that the President did not undertake or intend to create any role for the judiciary in the implementation of Executive Order No. 11821. We hold, therefore, that the district court erroneously set aside the revised regulations in their entirety because of alleged deficiencies in the impact statement.
III.
Appellants assert that the district court’s conclusion that the USD A exceeded its statutory authority in promulgating the disputed regulations is plainly wrong. Specifically, the court found the compulsory yield provision of the new regulations, 40 Fed.Reg. at 11538, which requires that all beef submitted for grading be graded for both quality and yield, to be inconsistent with the voluntary tone of 7 U.S.C. § 1622(h), 395 F.Supp. at 931. As we have seen, under § 1622(h) the Secretary is directed and authorized to “inspect, certify, and identify the class, quality, quantity, and condition of agricultural products . under such rules and regulations as [he] may prescribe.” Section 1622(h) specifically provides that no person be required to use the “service authorized by this subsection.” The Secretary urges that this language permits him to bundle the Department’s grading services together and thus require applicants to either take or refuse the entire bundle.
We turn, then, to an analysis of the statute. In matters of statutory construction, we are guided by “the provisions of the whole law, and its object and policy.” State Highway Comm’n v. Volpe, 479 F.2d 1099, 1111-12 (8th Cir. 1973), citing Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). “The practical inquiry in litigation is usually to determine what a particular provision, clause, or
IV.
This brings us to an analysis of the substantive merits of the new regulations. Appellees contended at trial and assert here that the USD A acted arbitrarily and capriciously in promulgating the revised regulations. They specified three respects in which, in their view, the “compulsory yield” provision was defective. In addition to the issues previously discussed, their complaints focused upon practical problems inherent in compulsory yield grading, its alleged ineffectiveness, inflationary impact, and asserted inaccuracies in the USD A yield grade formula currently used. They also launched a multi-faceted attack on the new quality grade standards, especially its effect on the palatability of beef and the price of Choice graded beef. Finding “substantial evidence” to support the new quality grade standards, the district court resolved this issue favorable to 'appellants. Because appellees failed to file a cross-appeal, they may not now claim that the new quality grade regulations are without sufficient evidentiary support. See Tiedeman v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 513 F.2d 1267, 1272 (8th Cir. 1975).
Appellees concede that under the guidelines enunciated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the appropriate standard of review for regulations promulgated pursuant to the “notice and comment” procedure of the Administrative Procedure Act, 5 U.S.C. § 553(c) (informal rulemaking) is that specified by 5 U.S.C. § 706(2)(A), which authorizes a reviewing court to set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
We proceed to an independent examination of the record to determine whether the Department acted arbitrarily or capriciously in promulgating the regulation. The principal thrust of appellees’ argument is that because of alleged inaccuracies in the USD A yield grade equation and its subjective application by USD A graders, compulsory yield grading will not achieve its purpose — to force the wholesale market for beef and cattle to reflect the full retail sales value differences associated with differences in yield. 40 Fed.Reg. at 11536. USD A statistics indicate that for Choice beef car
We recognize that a compulsory yield grade program may cause a certain loss in flexibility by limiting packers’ ability to merchandise certain kinds of carcasses, especially those that are overfat or damaged, and by precluding those packers who customarily trim exterior fat prior to grading from selling such fat as an edible byproduct. Nevertheless, the disadvantages are to be balanced against the expected beneficial effects of the program, including the creation of price signals that will induce producers to shift their resources to the production of leaner cattle.
V.
We hold that a district court reviewing regulations promulgated pursuant to the notice and comment procedure specified by 5 U.S.C. § 553(c) is not empowered to conduct a de novo hearing. All parties agreed, as did the District Judge, that de novo review was not appropriate. But our examination of the voluminous record of the trial proceedings convinces us that the district court did in fact hold a de novo trial
The Honorable Robert V. Denney.
The Secretary and other original defendants appealed on July 2, 1975 (No. 75-1486). American National Cattlemen’s Association, intervening defendant, see page 231, infra, appealed on July 23, 1975 (No. 75-1541).
. 40 Fed.Reg. 49 (1974).
. Executive Order No. 11821 also directs the Director of the Office of Management and Budget to develop criteria for the identification of major legislative proposals, rules, and regulations having a significant impact upon inflation and to prescribe procedures for their evaluation. Pursuant to this mandate, the Office of Management and Budget on January 28, 1975 sent Circular No. A-107, which prescribes guidelines for compliance with the Order, to the heads of all executive departments.
. The bond was subsequently ordered increased to $10,000.
. The Purveyors, Feeders, and Restaurants were represented by the National Association of Meat Purveyors, National Livestock Feeders Association, and the National Restaurant Association. The Consumers were represented by the Consumer Federation of America, the National Consumers League, Americans for Democratic Action, Consumer Affairs Committee, National Consumers Congress, Public Citizen, Amalgamated Meat Cutters and Butcher Workmen of North America (AFD-CIO), Service Employees International Union (AFL-CIO), and the American Federation of Teachers (AFL-CIO).
. The court never formally ruled on the government’s motion. When the federal defendants argued their motion for summary judgment, however, they reiterated their request, which was orally denied from the bench. Tr., vol. 1, at 40-41.
. The ten-day trial generated seventeen volumes of testimony and several hundred exhibits.
. United States Department of Agriculture, Agriculture Marketing Service, Official United States Standards for Grades of Carcass Beef 2 (1973).
. See 1946 U.S.Code Cong.Service 1586.
. The Secretary is authorized to promulgate . regulations “to the end that agricultural products may be marketed to the best advantage, that trading may be facilitated, and that consumers may be able to obtain the quality product which they desire, except that no person shall be required to use [this] service . . ” 7 U.S.C. § 1622(h).
. The degrees of marbling in the order of descending quantity are as follows: abundant, moderately abundant, slightly abundant, moderate, modest, small, slight, traces, and practically devoid. 7 C.F.R. § 53.102(q).
. The five maturity groups are identified as A, B, C, D, and E, in order of increasing maturity. Id.
. Superior conformation, which is generally reflected in a carcass with a full, well-rounded appearance, means that there is a high proportion of meat to bone and a high proportion of weight in the more valuable parts of the carcass. 7 C.F.R. § 53.115(b)(2).
. The USDA yield grade is determined on the basis of the following equation: yield grade - 2.50 + 2.50 X adjusted fat thickness, inches) + (0.20 X percent kidney, pelvic, and heart fat) + (0.0038 X hot carcass weight, pounds) - (0.32 X area ribeyfe, square inches). 7 C.F.R. § 53.-103(a). Yield grades are designated by the numbers 1 through 5. A carcass typical of its yield provides approximately 2.3 percent more boneless retail cuts from the round, loin, rib, and chuck than the next lower (higher number) yield grade. U.S. Dep’t of Agriculture, Economic Research Service, Proposed Changes in the Relationship Between Marbling, Maturity, and Quality Grade 3 (Supp. Livestock Meat Situation Dec. 1974).
. See Cross, Equations for Estimating Boneless Retail Cut Yields from Beef Carcasses, 37 J.Animal Science 1267 (1973).
. Approximately 55-60 percent of all beef produced is USDA graded for quality.
. Although not required by the Administrative Procedure Act, the Department also conducted regional briefings in five cities.
. The packers are billed $14.60 per hour for work performed by federal graders during the daytime. 7 C.F.R. § 53.29(a).
. Section 202 of the Agricultural Marketing Act of 1946, 7 U.S.C. § 1621, reads in pertinent part as follows:
The Congress declares that a sound, efficient, and privately operated system for distributing and marketing agricultural products is essential to a prosperous agriculture and is indispensable to the maintenance of full employment and to the welfare, prosperity, and health of the Nation. It is further declared to be the policy of Congress to promote ... a scientific approach to the problems of marketing, transportation, and distribution of agricultural products . . . so that such products capable of being produced in abundance may be marketed in an orderly manner and efficiently distributed. In order to attain these objectives, it is the intent of Congress to provide for . (3) an integrated administration of all laws enacted by Congress to aid the distribution of agricultural products through research, market aids and services, and regulatory activities, to the end that marketing methods and facilities may be improved, that distribution costs may be reduced and the price spread between the producer and consumer may be narrowed . . . with a view to making it possible for the full production of American farms to be disposed of usefully, economically, profitably, and in an orderly manner. *
. The Wage and Price Stability Act, 12 U.S.C. § 1904 (Supp. 1975) reads in pertinent part as follows:
Sec. 3(a) The Council shall—
(1) review and analyze industrial capacity, demand, supply, and the effect of economic
concentration and anticompetitive practices, and supply in various sectors of the economy, working with the industrial groups concerned and appropriate governmental agencies to encourage price restraint;
(2) work with labor and management in the various sectors of the economy having special economic problems, as well as with appropriate government agencies, to improve the structure of collective bargaining and the performance of those sectors in restraining prices;
(3) improve wage and price data bases for the various sectors of the economy to improve collective bargaining and encourage price restraint;
(4) conduct public hearings necessary to provide for public scrutiny of inflationary problems in various sectors of the economy;
(5) focus attention on the need to increase productivity in both the public and private sectors of the economy;
(6) monitor the economy as a whole by acquiring as appropriate, reports on wages, costs, productivity, prices, sales, profits, imports, and exports; and
(7) review and appraise the various programs, policies, and activities of the departments and agencies of the United States for the purpose of determining the extent to which those programs and activities are contributing to inflation.
. The language of the Act is silent with respect to the President’s role other than his authority to appoint the members and chairman of the council. The brief legislative history suggests, however, that “[t]he provisions embodied in the . Act represent a
. We have grave doubts as to whether under Executive Order No. 11821 appellees have standing to judicially challenge the adequacy of the impact statement. Under the test enunciated in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), appellees must allege that they have suffered an “injury in fact” and that they seek to protect an interest “arguably within the zone of interests to be practiced or regulated by the statute or constitutional guarantee in question.” 397 U.S. at 153, 90 S.Ct. at 830. Appellees fail to satisfy the “zone of interests” facet of the constitutional test of standing. As we have noted, the purpose of the Executive Order is to help implement the President’s personal economic policies. Appellees have not shown that the order was designed for their benefit. Cf. Acevedo v. Nassau County, supra 500 F.2d at 1082-83.
. Contra, Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971).
. Under §§ 1622(c) and 1622(h), the following goals are relevant: (1) to develop and improve standards of quality, condition, quantity, and grade to encourage uniformity and consistency in commercial practice; (2) to market agricultural products to the best advantage; (3) to facilitate the trading of agricultural products; and (4) to make available quality products to consumers.
. Appellees’ citation of Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), holding that agency findings based on substantial evidence may “nonetheless reflect arbitrary and capricious action,” is inapposite.
. The trial court never reached this question. Its order enjoining implementation of the new regulations was based solely on questions of statutory authority and compliance with the Executive Order. See II and III, supra.
. We have already held, under II and III, supra, that the agency action was “otherwise in accordance with law.”
. See also Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 622 n.19, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972); contra, Chrysler Corp. v. Department of Transportation, 472 F.2d 659, 669 (6th Cir. 1972) (applying substantial evidence test).
. In Overton Park the court stated
[t]hat [plenary] review is to be based on the full administrative record that was before the Secretary at the time he made his decision. But since the bare record may not disclose the factors that were considered or the Secretary’s construction of the evidence it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary’s action was justifiable under the applicable standard.
The court may require the administrative officials who participated in the decision to give testimony explaining their action. . [W]here there are administrative findings that were made at the same time as the decision, . there must be a strong showing of bad faith or improper behavior before such inquiry may be made. But here there are no such formal findings and it may be that the only way there can be effective judicial review is by examining the decision-makers themselves.
The District Court is not, however, required to make such an inquiry. It may be that the Secretary can prepare formal findings . . . that will provide an adequate explanation for his action. Such an explanation will, to some extent, be a “post hoc rationalization” and thus must be viewed*239 critically. If the District Court decides that additional explanation is necessary, that court should consider which method will prove the most expeditious so that full review may be had as soon as possible.
401 U.S. at 420-21, 91 S.Ct. at 825 (citations omitted).
. THE COURT: I can tell you right now that I am not going to substitute my judgment for the Secretary, because he has more expertise in this than I do.
All I am going to inquire into is whether he did act within the scope of his authority under the Act and also whether he acted arbitrarily and capriciously.
Tr., vol. 1, at 54.
THE COURT: I don’t intend to have a de novo review. ... I want to know if there is substantial evidence to back up whether or not the Secretary acted arbitrarily and capriciously.
Tr., vol. 1, at 47.
5. The Court has examined the following references . . . . These references convince the Court that the Department had substantial evidence upon which to change the maturity-marbling relationship ....
. Appellees’ contention that appellants waived their right to object to the admission of evidence in addition to the material contained in the administrative record is without merit. At the outset appellants requested the trial court to limit the scope of the inquiry. Only after this request was denied did trial counsel, as a precautionary measure, call expert witnesses to testify on the merits of the regulations. Even if we were to assume that appellants did in fact consent to a trial de novo, the result is the same. As we have noted, the district court was not empowered to conduct a de novo review.
. Murphey, Estimating Yields of Retail Cuts from Beef Carcasses, 19 J. Animal Science 1240 (1960).
. See, e. g., Defendant’s Exhibit 616 (variables used in the yield grade equation appear to be the most acceptable among those reported when accuracy, speed, and expense are considered; Defendant’s Exhibit 662 (prediction equation using the same factors as those used in the USDA equations predicted percent boneless steak and roast meat with a multiple correlation of 0.97); Defendant’s Exhibit 666 (equations containing the variables used in the USDA equation resulted in the highest coefficients of multiple determination for percent of boneless steak and roast meat); Defendant’s Exhibit 670 (yield grade is most accurate method for predicting carcass composition, percent fat, and protein that can be readily applied by graders in a slaughter facility on large numbers of animals); Defendant’s Exhibit 672 (USDA equation, with a simple correlation coefficient of 0.83, is one of the three most useful equations for predicting retail yield). •
. Defendant’s Exhibit 601 (concluding that fat thickness, which is the primary factor used in determining yield grade, can be predicted in live animals with moderate accuracy and finding a correlation between live estimated fat thickness and carcass cutability of 0.65).
. Defendant’s Exhibit 602 (concluding that approximately 25 to 35 percent of the variation in actual cutability can be accounted for on the basis of live estimates of cutability).
. Defendant’s Exhibit 631 (live animal estimates of carcass yield grades accounted for 51 and 65 percent of the variation in carcass yield and percentage of actual cutability.
. Tr., vol. 11, at 1268-69.
. Community Economics Division, Economic Research Service, U. S. Dep’t of Agriculture, Economics of Beef Grades: Present and Proposed [Preliminary Draft November 27, 1974],
. Under 7 U.S.C. § 1622(c), the Secretary is authorized and directed to “develop and improve standards of quality, condition, quantity, grade, and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.”
. Perhaps our earlier remand for “a plenary hearing,” 514 F.2d at 1120, motivated the district court to hold a full-scale trial.
Reference
- Full Case Name
- INDEPENDENT MEAT PACKERS ASSOCIATION v. Earl L. BUTZ, Secretary of Agriculture, Appellants INDEPENDENT MEAT PACKERS ASSOCIATION v. AMERICAN NATIONAL CATTLEMEN'S ASSOCIATION, etc.
- Cited By
- 85 cases
- Status
- Published