                              ___________

                              No. 95-2371
                              ___________
Delores J. Kenney,                   *
                                     *
     Plaintiff/Appellant,            *
                                     *
Rosemary Behrens; Carol Hans;
           *
Madeline Meyer; David Nichols; *
Wayne Newton,                        *
                                     *
     Plaintiffs,                     *
                                     *
Irvin Fox; Skip Numrich;
                 *
Gerald Timmerman; Larry Martin;
           *
James Willrett; James Scott;         *
H.T. Ringling; Richard Bell;         *
Jan Houck; Robert Perry;             *
Garland Dahl; John Haverhale;        *
Jack Knirk; Bill Long;               *
Mike Judy; Russ Dodge, Jr.;          *
Phil Van Horne, *
                                     *
     Plaintiffs/Appellants,          *   Appeal from the United States
                                     *   District Court for the
Robert Rebholtz,                     *   Southern District of Iowa.
                                     *
     Plaintiff, *
                                     *
Bub Miller; Scott Adamson;           *
Paul Genho; Jim Keller;              *
Earnie Reeves;   *
Mark Armentrout,                     *
                                     *
     Plaintiffs/Appellants,          *
                                     *
     v.                              *
                                     *
Daniel Glickman,                     *
Secretary of Agriculture,            *
                                     *
     Defendant/Appellee.             *

                                  __________

                     Submitted:     December 14, 1995
                     Filed:   September 30, 1996
                                  __________
Before McMILLIAN and BEAM, Circuit Judges, and PERRY,*
      District Judge.
                                         __________
PERRY, District Judge.


     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 reverse 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
                1
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 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.




     *The HONORABLE CATHERINE D. PERRY, United States District
     Judge for the Eastern District of Missouri, sitting by
     designation.
     1
      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.

                                            -2-
      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:        to 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




                                              -3-
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 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.


        In March 1993, the Secretary issued directives to operators and
inspectors of beef slaughter plants.2               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




        2
      In December 1993, interim guidelines replaced the March
1993 directives with no relevant substantive changes.

                                          -4-
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.      Appellants challenge this regulation on two grounds.
First, irrespective of the meat regulations, appellants allege that the
Secretary has violated the Poultry Act's prohibitions against "adulterated"
and "misbranded" carcasses by allowing water retention in poultry.    Second,
appellants allege that the Secretary has acted arbitrarily and capriciously
by allowing retention of water in poultry but not in meat.


                                     II.


     The district court held that none of the Secretary's challenged
actions or inactions are reviewable.       With respect to the zero tolerance
and contaminant removal standards, the court looked to the introductory
language of the PPIA and held that "that statute has been drawn so broadly
that there is no standard available for judging how and when the agency
should exercise its discretion."    Likewise, the court held that decisions
regarding




                                     -5-
retention of water during poultry processing are "left completely to the
discretion of the Secretary."          We review the district court's decision de
novo.       Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th
Cir.), cert. denied, 444 U.S. 899 (1979).


        The Administrative Procedure Act (APA) is the starting point for a
discussion of reviewability of an agency action.           The APA provides that any
person "adversely affected or aggrieved" by a "final agency action for
which there is no other adequate remedy" is generally entitled to judicial
review.       5 U.S.C. §§ 702, 704.3      There are two exceptions to the general
rule of reviewability: (1) where the statute explicitly precludes judicial
review, and (2) where "agency action is committed to agency discretion by
law."       Id. § 701(a).   In Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971), the Supreme Court noted that the second exception was
"very narrow" and that "it is applicable in those rare instances where
'statutes are drawn in such broad terms that in a given case there is no
law to apply.'"         Id. at 410 (footnote omitted) (quoting S. Rep. No. 752,
79th Cong., 1st Sess. 26 (1945)).              The Court again discussed the second
exception to reviewability in Heckler v. Chaney, 470 U.S. 821 (1985).                 In
Chaney, the Court created a rebuttable presumption that "an agency's
decision not to prosecute or enforce, whether through civil or criminal
process,       is   a   decision   generally   committed   to   an   agency's   absolute
discretion" under § 701(a)(2) of the APA.             Chaney, 470 U.S. at 831.


        In this case, neither party contends that any of the three challenged
actions are explicitly precluded from judicial review by statute, and
therefore the first exception to reviewability does




        3
      The APA judicial review provisions apply equally to agency
action and agency inaction. 5 U.S.C. §§ 551(13), 706(1); see
also Iowa ex rel. Miller v. Block, 771 F.2d 347, 352 (8th Cir.
1985), cert. denied, 478 U.S. 1012 (1986).

                                           -6-
not apply.   Appellee contends that its regulations regarding zero tolerance
and contaminant removal are enforcement decisions that are presumptively
unreviewable under Chaney.       Appellants contest the characterization of
these regulations (or lack thereof) as enforcement decisions, and claim
that they are reviewable.      With respect to the Secretary's decision to
allow water absorption into poultry, appellee apparently does not dispute
that the action is reviewable, and instead argues that the Secretary's
actions         were       not       arbitrary       and      capricious.



                                     III.


     Appellee contends that the Secretary's decisions to reject a zero
tolerance standard for poultry process defects and to allow water washing
of poultry contaminants are the type of enforcement decisions that the
Supreme Court declared presumptively unreviewable in Heckler v. Chaney, 470
U.S. 821 (1985).   In support of his argument, appellee states that the meat
and poultry inspection processes are the same, and that the Secretary has
merely made a decision to use agency resources to enforce the meat
inspection processing regulations more vigorously as part of a "high
priority" to prevent pathogens in the nations's meat supply.


     We reject appellee's characterization of the zero tolerance and water
washing policies as enforcement decisions; we find that Chaney does not
establish a presumption of unreviewability in this case.       In Heckler v.
Chaney, the Court held that the Food and Drug Administration's decision not
to take enforcement actions to prevent the use of lethal injections was not
subject to review.   Id.   According to the Court, a decision not to enforce
"often involves a complicated balancing of a number of factors which are
peculiarly within [the agency's] expertise."   Id. at 831.   The Court stated
the following reasons for the general unsuitability of judicial review of
enforcement actions:




                                      -7-
       [T]he agency must not only assess whether a violation has
       occurred, but whether agency resources are best spent on this
       violation or another, whether the agency is likely to succeed
       if it acts, whether the particular enforcement action requested
       best fits the agency's overall policies, and, indeed, whether
       the agency has enough resources to undertake the action at all.
       An agency generally cannot act against each technical violation
       of the statute it is charged with enforcing. The agency is far
       better equipped than the courts to deal with the many variables
       involved in the proper ordering of its priorities.

Id. at 831-32.


       The Secretary's decisions regarding zero tolerance and water washing
are not Chaney-type enforcement actions.        The Secretary has not decided
"whether a violation has occurred," has not decided whether he will
"succeed" if he acts, and has not determined which "technical violations"
to act against.    Rather, the Secretary has adopted general policies stating
that the tolerance level of process defects in poultry is slightly above
zero while the tolerance level of process defects in meat is zero, and that
poultry contaminants can be water washed rather than trimmed while meat
contaminants must be trimmed.      Those policies are the standards that the
Secretary deems acceptable to implement the goals of the PPIA and FMIA.


       Likewise, this is not a case where the Secretary has refused to
institute proceedings.    In support of the presumption of unreviewability,
the Court in Chaney stated:

       Finally, we recognize that an agency's refusal to institute
       proceedings shares to some extent the characteristics of the
       decision of a prosecutor in the Executive Branch not to indict
       -- a decision which has long been regarded as the special
       province of the Executive Branch . . .

Id. at 832.    This language suggests that Chaney applies to individual,
case-by-case determinations of when to enforce existing regulations rather
than   permanent   policies   or   standards.    An   example   highlights   the
distinction:   A prosecutor refuses to




                                      -8-
institute proceedings when he or she decides not to prosecute an individual
possessing one ounce of marijuana; Congress would not be characterized as
"refusing to institute proceedings" under Chaney if it amended the drug
laws to exclude simple possession of one ounce or less of marijuana as a
crime.


     In sum, we do not believe the Court in Chaney intended its definition
of "enforcement action" to include an interpretation by an agency that the
statute's goals could be met by adopting a certain permanent standard.4
See, e.g., Arent v. Shalala, 70 F.3d 610, 614 (D.C. Cir. 1995) ("Chaney is
of no assistance to the [agency] in this case because the [agency's]
promulgation of a standard for 'substantial compliance' under the [Act]
does not represent an enforcement action."); Edison Elec. Institute v. U.S.
EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) ("Petitioners are not challenging
the manner in which the [agency] has chosen to exercise its enforcement
discretion . . . Instead, petitioners are challenging the [agency's]
interpretation of [the Act] and its implementing regulations . . . Clearly,
this interpretation has to do with the substantive requirements of the law;
it is not the type of discretionary judgment concerning the allocation of
enforcement   resources   that   Heckler    shields   from   judicial   review.");
National Treasury Employees Union v. Horner, 854 F.2d 490, 496 (D.C. Cir.
1988) ("[The agency's] decision to develop some but not other competitive
examinations . . . is a major policy decision, quite




     4
      The Court in Chaney recognized that it was not addressing
the situation "where it could justifiably be found that the
agency has 'consciously and expressly adopted a general policy'
that is so extreme as to amount to an abdication of its statutory
responsibilities," and therefore expressed no opinion as to
whether such decisions would be unreviewable under § 701(a)(2).
Chaney, 470 U.S. at 833 n.4. In this case, the Secretary's zero
tolerance and contaminant removal standards are conscious and
express general policies. Although appellants have not argued
that this case involves an extreme policy that is an "abdication"
of the Secretary's responsibilities, we find that the Court's
distinction in footnote four of Chaney between general policies
and enforcement actions supports our conclusion.

                                      -9-
different from day-to-day agency nonenforcement decisions . . ."). The
poultry policies allowing greater than zero tolerance of process defects
and water washing of contaminants are policy decisions based on the
Secretary's interpretation of the PPIA in light of the goal to protect
consumers from health risks.


                                         IV.


        Having determined that the Secretary's zero tolerance and water
washing policies for poultry do not qualify as enforcement actions, we
continue to review the Secretary's challenged inactions under the relevant
provisions of the APA.        The Secretary's decisions with respect to poultry
are presumed reviewable unless there is no law to apply.               Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).        In general, there is
a     strong    presumption     that   Congress   intends   judicial   review    of
administrative action.        Abbott Lab. v. Gardner, 387 U.S. 136, 140 (1967).
"Judicial review of a final agency action will not be cut off unless there
is a persuasive reason to believe that such was the purpose of Congress."
Id.


        Courts have found that "law to apply" may exist in the underlying
statute or in regulations by the agency interpreting the underlying
statute.       See, e.g., Safe Energy Coalition of Michigan v. U.S. Nuclear
Regulatory Comm'n, 866 F.2d 1473, 1478 (D.C. Cir. 1989); Center for Auto
Safety v. Dole, 846 F.2d 1532, 1534 (D.C. Cir. 1988) (per curiam).              Both
the PPIA and the Secretary's regulations under the FMIA provide law to
apply in reviewing the Secretary's inaction with respect to zero tolerance
and water washing.     The district court relied on the introductory language
to the PPIA and found that it was so broad that there was no law to apply.
However, appellants rely on more than the introductory language to the PPIA
regarding protection of consumers' health; appellants also rely on the
language in the PPIA mandating that the Secretary prevent adulterated
poultry products from entering




                                         -10-
commerce.    See 21 U.S.C. §§ 453(g), 455.           We find that the prohibition of
"adulterated" products found in the PPIA provides a sufficient standard by
which the district court can examine the Secretary's zero tolerance and
water wash policies that govern poultry processing.                 The district court
must examine the Secretary's reasons for adopting the policies in light of
the goals of the PPIA and the definition of "adulterated" to determine
whether the Secretary's action or inaction was arbitrary and capricious or
an abuse of discretion.


        In addition, the Secretary's regulations and policies regarding meat
that were implemented pursuant to the FMIA provide law to apply.                  The PPIA
and FMIA are identical in several respects, and parallel in most other
respects.      The    legislative   history     of    the   two   Acts   and   subsequent
amendments indicate a congressional intent to construe the PPIA and the
FMIA consistently.      American Public Health Ass'n v. Butz, 511 F.2d 331, 335
(D.C. Cir. 1974); see also H.R. Rep. No. 1333, 90th Cong., 2d Sess. (1968),
reprinted in 1968 U.S.C.C.A.N. 3426.             Courts have also held that, in
general, similar or parallel statutes should be interpreted consistently
whenever possible.      See, e.g., Greenwood Trust Co. v. Massachu-setts, 971
F.2d 818, 827 (1st Cir. 1992), cert. denied, 506 U.S. 1052 (1993); FAIC
Securities, Inc. v. United States, 768 F.2d 352, 363 (D.C. Cir. 1985).
Although there is no requirement that the regulations interpreting the PPIA
and FMIA be identical, we believe that the Secretary's interpretation of
the FMIA -- which resulted in a zero tolerance of process defects in meat
and a requirement that meat processors trim contaminants -- provides law
to apply in evaluating the 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




                                         -11-
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,




                                    -12-
or make it appear 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 (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 "if its 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




                                    -13-
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 (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.


                                            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 (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.




                                            -14-
A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                            -15-
