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A South Dallas meat-processing plant’s beef with the U.S. Department of Agriculture has become the subject of national debate after U.S. District Judge A. Joe Fish issued a summary judgment on May 25 curtailing the agency’s regulatory authority in the Northern District of Texas. According to the decision, Supreme Beef Processors Inc. v. USDA is a case of first impression in the country. With the suit, Supreme Beef became the first meat processor to challenge standards used by the USDA to regulate the beef-processing industry. And with his ruling, Fish became the first judge to decide that the USDA’s performance standards are flawed and that it had no legal right to enforce them in this case. “Administrative agencies such as the USDA are accorded substantial discretion in carrying out their rule-making and enforcement responsibilities, but that discretion is not unbounded,” wrote Fish. Fish acknowledged that he was constrained by law from substituting his opinion for that of the USDA, but he ruled that preventing “administrative mysticism” was a function within his jurisdiction. It is not clear from the order just how far Fish intends his ruling to extend; Supreme Beef lead counsel John A. Gilliam says that this will not be clear until the final judgment is entered. He is hopeful that the judge will sign off on a broad stroke. “We think the judge could enter an order preventing the USDA from using the salmonella test to determine whether plants are sanitary across the country,” says Gilliam, a litigation partner in the Dallas office of Jenkens & Gilchrist. “We’ll have to wait and see.” What is certain, however, is that the USDA will appeal the decision to the 5th U.S. Circuit Court of Appeals. The Department of Justice, which represented the USDA, declines to comment on the case, but Secretary of Agriculture Dan Glickman issued a statement the same day that Fish handed down his opinion. The decision, says Glickman, “threatens to turn back the clock on the significant progress this administration and many in the industry have made to improve food safety for all Americans.” Glickman pledges that the USDA will take whatever steps necessary to overturn the decision. Even President Bill Clinton entered the fray, promising in a May 26 written statement that the DOJ would take the next step to safeguard the government’s “clearly effective” meat inspection system against the actions of a “small minority of meat plants.” TAINTED TESTS? In 1996, the USDA extensively revised the Federal Meat Inspection Act. Pursuant to the changes, meat-processing plants and grinders, which receive beef carcasses from slaughtering plants, had to adopt safety control systems to maintain sanitary conditions. The act named salmonella as an “indicator organism” to gauge whether these systems were effective. If tests showed that salmonella levels in meat processed at a plant remained below a certain number — called a performance standard — its system worked, and the plant was in compliance with the act. But if a plant failed three consecutive salmonella tests, the USDA could deem the plant unsanitary, and it could withdraw its inspectors from the plant. Because federal law prohibits the sale or transport of beef that has not been inspected and approved by USDA inspectors, this withdrawal effectively would shut down a plant. According to the opinion, in October 1999, Supreme Beef failed its third consecutive round of salmonella tests. The USDA sent a letter on Nov. 29 and stated it intended to suspend its inspections. The next day, Supreme Beef filed suit and applied for a temporary restraining order to keep inspectors in place until the parties could resolve the issue. Fish granted the TRO — and a preliminary injunction on Dec. 10 — until the matter was resolved. When the final judgment is entered on Supreme Beef’s summary judgment memorandum order, the injunction will become permanent, says Gilliam. In a 15-page opinion, Fish rejected the salmonella test because it is not a valid method to evaluate the condition of a meat-processing plant. “The USDA’s Salmonella tests … inspect a processor’s end product to determine whether its plant’s conditions are sanitary,” wrote Fish. “The flaw in such tests is that the presence of Salmonella is not solely — or even substantially — dependent upon the sanitation in a grinder’s establishment. Indeed a plant could, in theory, be completely sanitized from top to bottom, but if the meat in it tests positive for Salmonella, the USDA could withdraw its inspectors, effectively closing a plant that is sanitary. The USDA itself admits as much.” Fish further noted that, rather than picking up pathogens in the processing plant, beef carcasses can come into the plants already tainted with salmonella; the processing plants are unable to remove salmonella from incoming meat. “This demonstrates the unreliability of using a processor’s finished product to draw any conclusions about the sanitary conditions in the plant,” Fish wrote. Finally, the court shut down the argument offered by consumer groups in an amicus curiae that any rejection of performance tests is a rejection of science that would restrict the USDA to inspecting meat using only the five senses. Dallas solo Stephen Gardener, who represented the consumer groups, did not return a call for comment. Said Fish, “This argument misses the point, for what the court takes issue with today is not the use of scientific methods … but the agency’s science based tests of a processor’s product to evaluate the conditions of its plant.”

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