and in contravention of law" and for an injunction to compel the defendants (hereinafter "USDA") to issue or cause to be issued "valid and unqualified" official grain inspection certificates under the United States Grain Standards Act, 7 U.S.C. § 71 et seq. (1976), certifying that the grain officially inspected after final elevation while being loaded aboard a ship was grade U.S. No. 3 Yellow Corn. DBOT is not a party to this action.
The case is currently before the Court on the parties cross motions for Summary Judgment. For the reasons set forth below the Court has determined that the Plaintiff's Motion must be denied, the Defendants' Motion granted and the case dismissed.
The facts of this case may be briefly stated. Cook Industries pursuant to a contract with Polish buyers commenced loading a cargo of corn on the ship M/V RYSY II, a super-tanker designed to carry oil but deployed by the buyers to carry grain. Loading began in December of 1975 in New Orleans, Louisiana. As required, the DBOT, a private agency licensed by the Secretary to conduct official grain inspections in the New Orleans area, began its inspection to certify the grade of corn. On January 10, 1976, when loading was substantially complete, USDA officials boarded the ship and began their own inspection. The USDA officials observed what they considered to be an excessive amount of broken corn and foreign material in the corn at rest in the holds of the ship.
DBOT was apprised of the observations of the USDA officials and started an inspection. On January 12, DBOT issued a certificate grading the corn as "U.S. No. 3 Yellow Corn" but the remarks section of that certificate included the statement "This grade does not necessarily represent the grade of the grain in the vessel." The use of this statement was authorized by the USDA.
Plaintiff unloaded approximately 25,000 bushels of the corn. DBOT conducted an official inspection of this corn and issued an official certificate grading the corn as "U.S. No. 3 Sample Grade Yellow Corn;" and in the remarks section of this certificate included the statement "Distinctly Low Quality -- Excessive amount of stones found in barge. Some stones not visible."
On January 16 an appeal inspection was conducted by USDA on the 25,000 bushels and the agency issued an Official Appeal Inspection Certificate which graded the corn as "U.S. Sample Grade Yellow Corn." In the remarks section the certificate stated the grain to be "Distinctly Low Quality -- Excessive large stones."
Plaintiff then loaded another 25,000 bushels to replace the amount that had been off loaded and after inspection this corn was graded as "U.S. No. 3 Yellow Corn." On January 18, 1976, the DBOT original grain certificates were surrendered to the DBOT and voided DBOT then issued "Corrected -- Original Official Grain Inspection Certificate" for the corn loaded aboard ship. Included in the remarks section of this certificate were certain comments with respect to the condition of the corn. It is these certificates that Plaintiff seeks to have revised.
Plaintiff requested an appeal inspection of the corn aboard the RYSY II and an appeal inspection by the Board of Appeals and Review. Both of these appeal requests were dismissed.
Plaintiff then brought this action alleging that the inspection of the grain by USDA personnel was not in accordance with the Act and that but for the intervention of USDA personnel Plaintiff would have received "clear certificates" and therefore the remarks regarding the quality of the grain must be stricken from the certificates.
Plaintiff does not argue that the Secretary did not have the authority under the Grain Standards Act to conduct a supervisory inspection of the grain.
Rather Plaintiff contends that the Act mandates inspections be carried out in accordance with procedures that the Secretary will establish and that where, as here, there were no procedures, any inspection carried out by USDA personnel could not be valid.
Defendant claims that reference to the second sentence of Section 16 and the regulations thereunder make clear that the section pertains to "official inspections," that is, inspections that are conducted by the licensed inspection agencies. The regulations referred to are set forth in 7 C.F.R. § 26.126 and are styled as "Supervision and Enforcement" procedures . . . They provide:
"(a) All sampling and testing, inspection certification, and related activities and functions performed under the Act by official inspection personnel or their agents shall be subject to supervision at all times by the Administrator and his duly authorized representatives. Whenever it is found that any official inspection personnel have performed any official function in an improper manner or have otherwise violated the Act, the regulations or the instructions issued to them by the Administrator, remedial action shall be promptly initiated in accordance with § 26.89."
"(b) Tests made in determining whether inspection results, and other representations, designations, or descriptions are false, incorrect, or misleading, shall be performed in accordance with the instructions. In reviewing the results of the tests, statistical tolerances established and published by the Administrator for expected variations between inspections shall be applied."