The opinion of the court was delivered by: JONES
In this action, plaintiff seeks declaratory and injunctive relief, alleging that defendant Butz has abused his discretion and refused to follow his own regulations under the Federal Meat Inspection Act, as amended by the Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq. (1970); 9 C.F.R. § 301 et seq. (1971). The jurisdiction of this Court is invoked under 5 U.S.C. §§ 701-706, 28 U.S.C. §§ 1331, 1337, 2201 and 2202 (1970).
On December 22, 1970 defendants notified plaintiff that 353 of its 953 cartons of boneless meat offered for importation from New Zealand on December 4, 1970 had been refused entry due to "possible contamination through mishandling." Defendants refused entry to these 353 cartons of meat on the basis of a visual inspection of: (1) the cartons in which the meat had been shipped; and (2) the hold of the carrier, the Cap Colville, in which the meat had been transported.
The results of the visual inspection indicated that both the cartons in question and the hold of the ship contained dirt, debris and unknown powdered substances. No samples of meat were taken from the 353 cartons for inspection, and plaintiff's request for an additional sampling inspection was refused by defendants.
Both parties have moved for summary judgment, and their statements submitted in accord with Local Rule 9(h) indicate that there are no material facts genuinely in dispute. The court finds therefore that summary judgment would be appropriate at this juncture.
The Federal Meat Inspection Act, as amended by the Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq. (1970), provides that certain meats or meat food products shall not be imported into the United States "if such articles are adulterated or misbranded and unless they comply with all the inspection . . . standards, and all other provisions of this chapter and regulations issued thereunder. . . ." 21 U.S.C. § 620(a)(1970). The same Act provides further that the Secretary of Agriculture may by regulations prescribe the conditions under which such meat or meat food products:
. . . shall be stored or otherwise handled by any person, firm, or corporation engaged in the business of buying, selling, freezing, storing, or transporting, in or for commerce, or importing, such articles, whenever the Secretary deems such action necessary to assure that such articles will not be adulterated or misbranded when delivered to the consumer. 21 U.S.C. § 624 (1970).
. . . if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health. . . . 21 U.S.C. § 601(m)(4) (1970).
Pursuant to the authority granted in the Act, the Secretary has issued regulations set out in 9 C.F.R. § 301 et seq. (1971). The regulations apply the term "adulterated" exactly as the Act does, including the specific application cited above. 9 C.F.R. § 301.2(aa)(4) (1971). The regulations likewise adopt the Act's restrictions on importation of adulterated or misbranded meat:
No product offered for importation from any foreign country shall be admitted into the United States if it is adulterated or misbranded or does not comply with all the requirements of this subchapter that would apply to it if it were a domestic product. 9 C.F.R. § 327.3(a) (1971).
As to the conditions of shipping or otherwise transporting meat subject to the provisions of the Act, the regulations provide:
Compartments of steamships, sailing vessels, railroad cars and other means of conveyance transporting any product to the United States . . . and all other devices used in moving and handling any product offered for importation into the United States, ...