UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ANIMAL LEG DEF FUND

v.

GLICKMAN, DANIEL


97-5009d

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: In Animal Legal Defense Fund,  Inc. v.
Glickman, 154 F.3d 426 (D.C. Cir. 1998) (en banc), we  held that
plaintiff Marc Jurnove has standing to challenge  regulations
promulgated by the Secretary of Agriculture in  1991 that purport to
set "minimum requirements ... for a  physical environment adequate to
promote the psychological  well-being of primates." 7 U.S.C. s
2143(a)(1)-(2). The en  banc court left untouched the panel's decision
that Animal  Legal Defense Fund lacked standing. 154 F.3d at 428-29
n.3.  The court referred the merits--the question whether the 
Secretary's regulations satisfy that statutory mandate and the 
Administrative Procedure Act--to a future panel. Id. at 429,  445.
Finding that the regulations do meet the statutory and 


APA tests, we reverse the district court's decision to the  contrary.


* * *


In 1985 Congress passed the Improved Standards for  Laboratory Animals
Act, Pub. L. No. 99-198, 99 Stat. 1645,  amending the Animal Welfare
Act of 1966. See 7 U.S.C.  s 2131 et seq. The 1985 amendments directed
the Secretary  of Agriculture to promulgate "standards to govern the
hu- mane handling, care, treatment, and transportation of animals  by
dealers, research facilities, and exhibitors." Id.  s 2143(a)(1). The
Act specified that among these must be  "minimum requirements ... for
a physical environment ade- quate to promote the psychological
well-being of primates."  Id. s 2143(a)(1)-(2).


There are over 240 species of non-human primates, ranging  from
marmosets of South America that are a foot tall and  weigh less than
half a pound to gorillas of western Africa  standing six feet tall and
weighing up to 500 pounds. It  proved no simple task to design
regulations to promote the  psychological well-being of such varied
species as they are  kept and handled for exhibition and research.
Notice of  intent to issue regulations was first published in the
Federal  Register in 1986, 51 Fed. Reg. 7950 (1986), but the Secretary
 did not publish proposed regulations until 1989. 54 Fed. Reg.  10897
(1989). After receiving a flood of comments (10,686  timely ones, to
be precise), the Secretary reconsidered the  regulations and published
new proposed regulations in 1990.  55 Fed. Reg. 33448 (1990). After
receiving another 11,392  comments, he adopted final regulations in
1991. 56 Fed. Reg.  6426 (1991); 9 CFR s 3.81.


The final regulations consist of two separate modes of  regulation,
typically known as engineering standards and  performance standards.
The former dictate the required  means to achieve a result; the latter
state the desired out- comes, leaving to the facility the choice of
means. See 56  Fed. Reg. at 6427 (discussing engineering and
performance  standards generally). The Secretary identifies five


that he considers engineering standards, which in substance  require as
follows: (1) restraints are generally prohibited  subject to certain
exceptions as determined by the attending  veterinarian or the
research proposal, 9 CFR s 3.81(d); (2)  primary enclosures must be
"enriched" so that primates may  exhibit their typical behavior, such
as swinging or foraging,  id. s 3.81(b); (3) certain types of primates
must be given  special attention, including infants, young juveniles,
individu- ally housed primates, and great apes over 110 pounds, again 
in accord with "the instructions of the attending veterinari- an," id.
s 3.81(c); (4) facilities must "address the social needs  of nonhuman
primates ... in accordance with currently ac- cepted professional
standards ... and as directed by the  attending veterinarian," but
they may individually house pri- mates under conditions further
specified in the regulations,  id. s 3.81(a); and (5) minimum cage
sizes are set according to  the typical weight of different species,


To implement these guidelines and to promote the psycho- logical
well-being of the primates, facilities must develop  performance


Dealers, exhibitors, and research facilities must develop,  document,
and follow an appropriate plan for environ- ment enhancement adequate
to promote the psychologi- cal well-being of nonhuman primates. The
plan must be  in accordance with the currently accepted professional 
standards as cited in appropriate professional journals or  reference
guides, and as directed by the attending veteri- narian. This plan
must be made available to APHIS  [Animal and Plant Health Inspection
Service] upon re- quest, and, in the case of research facilities, to
officials of  any pertinent funding agency.


Id. s 3.81.


Jurnove primarily maintains that nothing about these regu- lations
establishes "minimum requirements ... for a physical  environment
adequate to promote the psychological well- being of primates," and
that the Secretary's use of perfor- mance plans and his apparent
deference to on-site veterinari-


ans amount to an impermissible delegation of his legal re-
sponsibility.


The district court agreed. Animal Legal Defense Fund v.  Glickman
("ALDF"), 943 F. Supp. 44 (D.D.C. 1996). It held  that the regulation
"fails to set standards," by which the  district court meant
engineering standards, and that "the  regulation completely delegates
the establishment of such  standards to the regulated entities"
because "[a]t best, the  regulation refers these entities to the
direction of their at- tending veterinarians--who are not under the
control of the  agency." Id. at 59. The district court also concluded
that  the Secretary had a duty to require social housing of primates 
given a finding by the Secretary that "[i]n general, housing in 
groups promotes psychological well-being more assuredly  than does
individual housing." Id. at 60 (quoting 56 Fed.  Reg. at 6473). As the
court read the regulation "the agency  delineates only when social
grouping might not be provided,"  and therefore "the regulation does
not contain any minimum  requirement on a point recognized by the
agency itself as  critical to the psychological well-being of


* * *


Jurnove argues that the plain language of the statute--the  Secretary
shall establish "minimum requirements ... for a  physical environment
adequate to promote the psychological  well-being of
primates"--requires that the Secretary spell out  exactly how primates
may and may not be housed and  handled (i.e., engineering standards),
or at least spell out the  "minimum requirements" in this manner. The
Secretary's  emphatic first response is: we did.


Jurnove consistently reads the regulations, as did the dis- trict
court, as if the only "requirement" of the facilities is the 
production of a performance plan and that, basically, anything 
goes--provided the facilities honor what he views as the  empty
formality of finding some sort of support from "cur- rently accepted
professional standards as cited in appropriate  professional journals
or reference guides" and from "the  attending veterinarian." 9 CFR s


an obvious parade of horribles. Facilities will find unscrupu- lous
veterinarians to rubber-stamp outrageous practices, and  fringe
periodicals will be the coin of the animal realm. This,  argues
Jurnove, is not the setting of "standards" or "mini- mum requirements"
that the statute plainly commands.


We need not decide when performance standards alone  could satisfy a
congressional mandate for minimum require- ments, or whether the sort
of agency deference depicted by  Jurnove could ever do so. The
regulations here include  specific engineering standards. The most
obvious example is  the regulation of cage sizes, id. s 3.80, which
even Jurnove  grants is an engineering standard. Jurnove attempts to 
discount the "primary enclosure" requirements because they  appear in
a different section of the regulations, and the  Animal Welfare Act
had previously mandated standards for  "housing." But the Secretary
stated that the cage require- ments were set as part of the standards
for promoting  psychological well-being, 56 Fed. Reg. at 6468, and it
is  perfectly permissible to implement congressional commands  through
complementary regulations, some of which serve  multiple goals. See
Public Citizen, Inc. v. FAA, 988 F.2d  186, 192-93 (D.C. Cir. 1993).


The Secretary's requirement bases cage size on the weight  of the
primate, with special provisions for great apes, whereas  the previous
regulations merely required "sufficient space to  allow each nonhuman
primate to make normal postural ad- justments with adequate freedom of
movement." 56 Fed.  Reg. at 6469. By hiking the requirements, the
Secretary  addressed an issue that Congress considered one of the 
central elements of a primate's psychological well-being. The 
statutory language speaks of minimum requirements for the  "physical
environment" of the primate, 7 U.S.C.  s 2143(a)(2)(B), and the
Conference Committee noted that  "[t]he intent of standards with
regard to promoting the  psychological well-being of primates is to
provide adequate  space equipped with devices for exercise consistent
with the  primate's natural instincts and habits." H.R. Conf. Rep. No.
 99-447, at 594 (1985) (emphasis added).


Similarly, the regulations on environmental enrichment,  special
consideration of certain primates (infants, juveniles,  etc.), and
restraint devices all plainly provide engineering  standards. 9 CFR s
3.81(b)-(d). The facilities "must" pro- vide environmental enrichment
and special consideration for  certain primates, id. s 3.81(b), (c),
and they "must not"  maintain primates in restraint devices "unless
required for  health reasons as determined by the attending
veterinarian or  by a research proposal approved by the Committee at
re- search facilities," id. s 3.81(d). The regulation on restraints 
then makes clear that even where a veterinarian approves of 
restraints, there are still limits:


Maintenance under such restraint must be for the short- est period
possible. In instances where long-term (more  than 12 hours) restraint
is required, the nonhuman pri- mate must be provided the opportunity
daily for unre- strained activity for at least one continuous hour
during  the period of restraint, unless continuous restraint is 
required by the research proposal approved by the Com- mittee at
research facilities.


Id. Although research facilities may be allowed to restrain  primates
continuously, this limited exception is not offered to  non-research
handlers and is in keeping with the statute's bar  on the Secretary
from interfering with research. See 7  U.S.C. s


These "requirements" may be minimal but they are clearly  mandatory.
Jurnove argued, and the district court agreed,  that this case begins
and ends with the fact that the Secre- tary provided no engineering
standards. ALDF, 943  F. Supp. at 59. But in fact he did.1




__________

n 1 Having found that the Secretary "ha[s] not yet issued stan- dards,"
the district court went on to hold that he had "unlawfully  withheld
and unreasonably delayed" action in violation of the APA;  it ordered
the Secretary to "commence appropriate rulemaking  procedures" and
promulgate standards. 943 F. Supp. at 59-60.  Our holding here moots
this theory and accordingly we vacate that  portion of the order.


It of course remains possible that the engineering and  performance
standards chosen by the Secretary are not  enough to meet the mandate
of "minimum requirements."  We assess this issue under the familiar
doctrine that if  Congress has spoken to the precise question at
issue, we  must "give effect to the unambiguously expressed intent of 
Congress," but if Congress has not, we defer to a permissible  agency
construction of the statute. Chevron U.S.A. Inc. v.  NRDC, 467 U.S.
837, 842-43 (1984).


Here Jurnove's Exhibit A (and indeed his only serious  example) is the
Secretary's handling of primates' "social  grouping." In 1989 the
Secretary proposed to include a  requirement of group housing for
primates, saying that he  intended to emphasize that


nonhuman primates must be grouped in a primary enclo- sure with
compatible members of their species or with  other nonhuman primate
species, either in pairs, family  groups, or other compatible social
groupings, whenever  possible and consistent with providing for the
nonhuman  primates' health, safety, and well-being, unless social 
grouping is prohibited by an animal care and use proce- dure and
approved by the facility's Committee.


54 Fed. Reg. 10822, 10917 (1989). This proposal was based  on evidence
that "nonhuman primates are social beings in  nature and require
contact with other nonhuman primates for  their psychological
well-being," and that "[s]ocial deprivation  is regarded by the
scientific community as psychologically  debilitating to social


The final rule, of course, refrained from imposing such a  general
group housing requirement. Jurnove (stating his  case in the best
light) would tie the agency to its 1989  proposal on two theories: He
argues first under Chevron that  because of this finding any
interpretation of the statute not  recognizing social grouping as one
of the "minimum require- ments" could not be a reasonable
interpretation of the stat- ute. And second he claims that the
Secretary's decision was  arbitrary and capricious because he failed
to explain it ade- quately, in violation of the Administrative


the principles set out in Motor Vehicle Mfrs. Ass'n v. State  Farm
Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). We  have distinguished
between Chevron review and State Farm  arbitrary and capricious
review, see Arent v. Shalala, 70 F.3d  610, 615-16 (D.C. Cir. 1995),
but the two issues "overlap at  the margins," id. at 615, 616 n.6;
Independent Petroleum  Assn. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir.
1996), and our  review here exemplifies such overlap. See also Kenneth
Culp  Davis & Richard J. Pierce, Jr., Administrative Law Treatise,  s
7.4, p. 214-15 (Supp. 1998) ("[T]here is complete overlap  between
Chevron step two and State Farm ... a rule that  adopts an
'unreasonable' interpretation of a statute within the  meaning of
Chevron step two is 'arbitrary and capricious'  within the meaning of


The Secretary's 1989 proposal was at odds with comments  already in the
record. For example, comments of the Ameri- can Psychological
Association had noted the wide disparities  in social behavior among
primates, with some forming large  troops of 50 to 100 or more, others
living in small groups of  10 to 20, and still others spending their
lives in almost  solitary isolation or as pairs in the wild. The 1989
proposal  itself then generated new opposing comments, most notably 
from the University of Chicago, which pointed out that group  housing
"can significantly increase the incidence of trauma,  the spread of
upper respiratory and gastrointestinal diseases  and more recently has
been responsible for the outbreak of  Simian Acquired Immune
Deficiency Syndrome." Moreover,  according to these comments, an image
of nonhuman pri- mates blissfully coexisting in groups is a
substantially incom- plete depiction of species-typical behavior.
Again, as the  University of Chicago informed the Secretary: "Even in 
compatible groups in no specific distress, species typical  activities
include threatening, chasing, fighting, wounding,  hair-pulling, food
competition, dominance challenges and re- versals, and displacement of
subordinate animals from food,  water and shelter. Such activity can
threaten the animals'  health and well-being."


The Secretary took account of such comments, just as the  designers of
"notice and comment" rulemaking intended. He 


pointed to expressions of concern that "social grouping would  endanger
the animal's [sic] welfare by increasing noise and  fighting," 55 Fed.
Reg. at 33491, and to contentions that  differences among species
(there are, recall, over 240) re- quired "discretion be used in
deciding whether to employ  group housing," id. Although it is true
(as the district court  noted and Jurnove here argues) that even in
the final rule- making the Secretary observed that "[i]n general,
housing in  groups promotes psychological well-being more assuredly 
than does individual housing," 943 F. Supp. at 60 (quoting 56  Fed.
Reg. at 6472-73), that generality was obviously qualified  by the


Thus the Secretary proposed a new regulation on social  grouping:


The environment enhancement plan must include specific  provisions to
address the social needs of nonhuman pri- mates of species known to
exist in social groups in  nature. Such specific provisions must be in
accordance  with currently accepted professional standards, as cited 
in appropriate professional journals or reference guides,  and as
directed by the attending veterinarian.


55 Fed. Reg. at 33525; 9 CFR s 3.81(a) (final rule same).  The
regulation then offers "exceptions" to the social needs  provision if
the primate is vicious or debilitated, if it carries  contagious
diseases, or if its potential companions are not  compatible. Id. s
3.81(a)(1)-(3). Even though social group- ing is no longer formally
mandated (facilities must only  produce a "specific" plan for action
that addresses "social  needs"), the Secretary rightly argues that the
enumeration of  the "exceptions" makes social grouping the "norm."


Contrary to the view of the district court, the statute did  not force
the Secretary to require social grouping and then  specify exceptions.
See 943 F. Supp. at 60. To the contrary,  we accord agencies broad
deference in choosing the level of  generality at which to articulate
rules. See American Truck- ing Ass'ns v. Department of Transp., 166
F.3d 374, 380 (D.C.  Cir. 1999); New Mexico v. EPA, 114 F.3d 290, 293
(D.C. Cir.  1997). Nothing in the statutory mandate required greater


specificity. See New Mexico, 114 F.3d at 293 (statutory  mandate to set
"criteria" for waste plant certification "says  nothing to suggest
that the criteria must be detailed or  quantitative"); Public Citizen
v. FAA, 988 F.2d 186, 191-92  (D.C. Cir. 1993) (statutory mandate to
set "minimum staffing  levels" did not require specification of
precise numbers of  personnel). Much as in New Mexico, because the
Secretary  was reasonably concerned that more precise specification 
might cause harm, it was entirely reasonable under the  statute for
him to choose a relatively flexible standard. See  55 Fed. Reg. at
33491; New Mexico, 114 F.3d at 293.2


The explanation that renders the Secretary's interpretation  of the
statute reasonable also serves to establish that the final  rule was
not arbitrary and capricious. Compare Arent, 70  F.3d at 616-17. Where
"Congress delegates power to an  agency to regulate on the borders of
the unknown, courts  cannot interfere with reasonable interpretations
of equivocal  evidence"; courts are most deferential of agency
readings of  scientific evidence. See New York v. EPA, 852 F.2d 574,
580  (D.C. Cir. 1988) (quoting Public Citizen Health Research  Group
v. Tyson, 796 F.2d 1479, 1505 (D.C. Cir. 1986)). There  is little
question that the Secretary was forced to regulate "on  the borders of
the unknown" in setting the baseline of rights  to "psychological
well-being" for nonhuman primates, or at  least how to "promote" their
psychological well-being. In  changing the design of the regulations,
the Secretary pointed  to substantial conflicting evidence on whether
a stringent  social grouping requirement was a good idea, 55 Fed. Reg.
at  33491, and thus his final policy judgment on social grouping  was


Jurnove may well be correct that some of the Secretary's  regulations
may prove difficult to enforce, or even difficult to  augment through
subsequent "interpretation." Cf. Hoctor v. 




__________

n 2 It is difficult to discern what difference use of the district 
court's preferred method (a requirement subject to exceptions)  would
make. Given the Secretary's amply supported findings, the  exceptions
would necessarily have been at a rather broad level of  generality.


USDA, 82 F.3d 165 (7th Cir. 1996). But the requirements  such as the
ones on cage size and restraints are eminently  enforceable, and the
Secretary has begun to offer interpreta- tions likely to assist both
regulatees and enforcers. See  Draft Policy on Environment Enhancement
for Nonhuman  Primates, 64 Fed. Reg. 38145 (1999).


* * *


Two final issues. ALDF now asserts standing in its own  right on the
basis of an "informational injury": the proposed  rules required that
facilities submit performance plans to the  agency (potentially making
them subject to the Freedom of  Information Act), but the final rule
required only that the  plans "be made available to APHIS upon
request." 9 CFR  s 3.81. ALDF's alleged "informational injury" is the
lack of  sufficient notice of this rule change. The argument is fore-
closed, however, by ALDF's failure to raise the "information- al
injury" theory before the first panel to hear this appeal.  See Animal
Legal Defense Fund, Inc. v. Glickman, 130 F.3d  464, 470 (D.C. Cir.
1997) ("ALDF specifically disclaims any  informational injury
resulting from a violation of the Animal  Welfare Act."). This leaves
only ALDF's procedural claim  that the change was not a "logical
outgrowth" of the earlier  proposal and thus a violation of "notice
and comment" re- quirements. But standing to raise a procedural injury
re- quires that the procedural norm be one "designed to protect  some
threatened concrete interest" of the plaintiff, see Lujan  v.
Defenders of Wildlife, 504 U.S. 555, 573 n.8 (1992), and the  prior
panel found that ALDF had advanced no such concrete  interest. 130


The second issue concerns intervention by the National  Association for
Biomedical Research, which argued for up- holding the Secretary's
regulations. Plaintiff (presumably  Jurnove) challenges the
Association's intervention on several  grounds. Since we uphold the
Secretary's regulations, the  issues surrounding the intervention are
at present moot. If  the Association seeks participation in any future
proceedings,  the issue of intervention can be determined at that


dependent upon its showing of the inadequacy of government 
representation of its interests then in prospect. See Solid  Waste
Agency v. United States Army Corps of Eng'rs, 101  F.3d 503, 508-09
(7th Cir. 1996).


* * *


The decision of the district court is


Reversed.