TEXAS FOOD INDUSTRY ASS'N v. ESPY
870 F.Supp. 143 (1994)
TEXAS FOOD INDUSTRY ASSOCIATION, et al.
Mike ESPY, et al.
Civ. No. A-94-CA-748 JN.
United States District Court, W.D. Texas, Austin Division.
December 13, 1994.
David L. Orr, Johnson & Gibbs, Austin, TX, Gary Jay Kushner, William A. Bradford, Jr., Mark D. Dopp, Pierre M. Donahue, Hogan & Hartson, Washington, DC, for plaintiffs.
Sylvia T. Kaser, Dept. of Justice, Civ. Div., FPB, Washington, DC, for defendants.
NOWLIN, District Judge.
Before the Court is Plaintiffs' Motion for Preliminary Injunction, filed November 3,
1994. Defendants' filed their Opposition to Plaintiffs' Motion for Preliminary Injunction on November 16, 1994 and Plaintiffs filed their Reply Brief in Support of their Motion for Preliminary Injunction on November 23, 1994. Additionally, several trade associations have submitted an Amici Curiae brief in support of Plaintiffs' Motion for Preliminary Injunction and several consumer groups have submitted an Amici Curiae brief in opposition. After reviewing the arguments of counsel, the applicable law, and the entire record in this case, the Court is of the opinion that Plaintiffs' Motion for Preliminary Injunction should be DENIED.
On October 17, 1994, the United States Department of Agriculture ("USDA") announced a new Escherichia Coli 0157:H7 ("E. Coli") sampling program, to be conducted by the Food Safety and Inspection Service ("FSIS"). The notice announced that the FSIS would collect and test five thousand (5,000) samples of raw ground beef from federally-inspected establishments and retail stores. Any of these samples testing positive for the pathogen E. Coli would be treated as "adulterated" under the Federal Meat Inspection Act ("FMIA") and referred to FSIS headquarters for regulatory action.1 Prior to this announcement, the USDA had treated pathogen-contaminated2 meat as unadulterated under the FMIA. On November 1, 1994, several supermarket and meat-industry organizations3 brought this action seeking to prevent the USDA from conducting its E. Coli sampling program. Plaintiffs argue that the USDA failed to adhere to the notice-and-comment procedure required by the Administrative Procedure Act ("APA") and move this Court for a temporary and permanent injunction. Plaintiffs also contend that the sampling program is an arbitrary and capricious exercise of agency authority and that it exceeds the USDA's statutory authority under the FMIA.
II. FINDINGS OF FACTS AND CONCLUSIONS OF LAW