author: BATTEY, District Judge.

text:
    Georgia TRUNDLE, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. CIV 85-5154.
    United States District Court, D. South Dakota, W.D.
    Jan. 13, 1986.

      Todd A. Schweiger, Black Hills Legal Services, Inc., Rapid City, S.D., for plaintiff.
    Reed Rasmussen, Asst. U.S. Atty., Rapid City, S.D., for defendant.
   MEMORANDUM OPINION AND ORDER

BATTEY, District Judge.

A. NATURE AND PROCEDURAL HISTORY

Plaintiff brings this action seeking judicial review pursuant to 42 U.S.C. § 405(g). The claim is for Supplemental Security Income Benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.

Plaintiff applied for Supplemental Security Income Benefits on September 5, 1984, alleging the claimed disability date of August 24, 1984. A hearing was held before the Honorable Frederick B. Strothman, Administrative Law Judge (“ALJ”), on March 6, 1985. On April 15,1985, the ALJ denied the disability claim as filed. On July 31, 1985, the appeals council denied Plaintiff’s request for a reversal of Judge Strothman’s decision and thereafter the Plaintiff sought review in this Court.

(i) Prior Hearing History

Plaintiff originally filed a Supplemental Security Income claim on May 13, 1980 (Tr. 42) in which she claimed that she injured her back on August 9, 1977, while working on the railroad at Edgemont, South Dakota. (Tr. 46). At the time of her injury she was 35 years of age. It was determined at that time that she did not have a physical impairment that significantly interfered with basic work related functions and accordingly, disability was not established. (Tr. 53).

The vocational report in that proceeding indicated that her work history showed employment for six months from October of 1973 to April of 1973 as a laborer, one year and five months from April 1976 to September 1977 as a railroad laborer for Burlington Northern Railway, and four months in 1976 as a cook with the Stockmen’s Cafe. No employment history was shown after September of 1977. (Tr. 67).

Plaintiffs medical history indicated that on August 27, 1977, she consulted Dennis R. Wicks, M.D., and was found to have low back pain, secondary to lumbar muscle spasm which was caused by some heavy lifting while working for the Burlington Northern Railroad. After conservative treatment she was admitted to the hospital for bed rest and spent four days in the hospital. (Tr. 77-78). Capsulizing her condition therein in this period of time, Dr. Lee Ahrlin stated that:

This lady was seen by me back on November 12, 1979. I had seen her a number of times prior to this. She has had problems with low back pain, along with other joint complaints. She is noted to have some arthritic changes in her back and I would not feel that she do any heavy type work. I would see no reason why she couldn’t be trained to do some type of light activity, although I am not sure that her present status she would be able to do very much without further job training of some type. (Tr. 87).

On February 27, 1981, the Honorable Adam Gefreh, held based upon the application filed May 13, 1980, for Supplemental Security Income under the Social Security Act, that she was not eligible for benefits. (Tr. 94-99). The Plaintiff appealed to the Appeals Council for review and the AU was affirmed. (Tr. 105). No further action was taken with respect to that claim.

(ii) Current Claim Procedure

A new application for Supplemental Security Income was filed on September 5, 1984 (Tr. 106). In this application she stated that her disabling condition was, “I have a backache. I take medication. When I work it bothers me.” (Tr. 116).

A hearing was held before Frederick B. Strothman, Administrative Law Judge, on March 6, 1985, in Rapid City, South Dakota. Ms. Trundle, who was represented by a paralegal at this proceeding, was the only person who testified. Ms. Trundle testified that she has pain in “[m]y upper and lower back, my upper shoulder and my right arm — right part of my back and the bottom part on my right side. The top to the bottom of my lower back.” (Tr. 24-25). She testified that the pain is nearly always present and is a burning and dull ache in the bottom of her back and causes a burning sensation in the upper part of her arms. (Tr. 24-26).

Ms. Trundle’s daily activities are limited. She possesses a valid driver’s license, but does not own a car or drive. (Tr. 17, 26). Her daily chores are limited to cooking for herself and washing dishes. Her daughter, who also lives in Edgemont, does the vacuuming, laundry, and most of the grocery shopping. (Tr. 27, 36). On a normal day she spends most of her time reading, doing Indian beadwork, and fixing simple meals. (Tr. 28). She testified that she used to attend dances regularly, but now usually only goes out once a week to attend church. (Tr. 28). Her daughter and mother visit on a regular basis. (Tr. 30).

Ms. Trundle testified that she does not like to take pain pills because they make her groggy. (Tr. 29). However, when the pain gets severe enough she will take Darvon or Valium and codeine. She also uses hot and cold packs on her back, and takes hot showers to relieve the pain. She testified that her condition has gotten progressively worse. She stated she used to have days where she felt fine, but now the pain is with her all the time. (Tr. 29-31).

Various exhibits were filed with the AU in connection with Ms. Trundle’s claim. Exhibit B-18 was a report made by Dr. Dale Berkebile on November 6, 1984. (Tr. 184-185). In the report, Dr. Berkebile traced the history of Ms. Trundle's back problems. He noted that anti-inflammatory drugs upset her stomach. He stated:

I can find no clinical evidence to support this woman’s claim that she has back pain. She does tell a convincing story and I believe that she does have back pain. I just can’t find anything on physical exam to substantiate a cause.

The record also contains a report from James Kullbom, M.D., made on November 30, 1984. (Exhibit B-19, Tr. 186). He reported:

She has more problems with cold weather and heavier lifting. The patient’s x-ray examination shows spurring in the thoracic spine consistent with arthritis. The patient’s physical exam today reveals no deformity, no atrophy, but she has normal nurological [sic] exam in both lower and upper extremities throughout. The patient has no weakness and no radicular symptoms, just back pain consistent with osteoarthritis of the spine. The patient’s impression is osteoarthritis of the thoracolumbar spine.

Dr. Kullbom also noted that Ms. Trundle seemed to be “well motivated and wantfed] to get on with her life.”

Ms. Trundle also underwent a CT scan. (Exhibit B-23, Tr. 193). Dr. Krafka’s x-ray report from this scan stated that the L3-14 is considered to be normal, but that the L4-5 showed a “moderate disk bulge which may be of significance.” The L5-S1 was also normal. The impression of Dr. Krafka was that Ms. Trundle had “probably significant disk bulge and possible herniation at L4-5. Myelography may be of additional help in this pt.”

B. THE AD’S DECISION

The AD denied Ms. Trundle’s claim for disability. He found that the claimant was not engaged in substantial gainful activity. (Tr. 12). He also found that she suffered from a severe impairment as the term is defined in the regulations. (Tr. 9). Although the AD did not make a specific finding on the durational requirement, it can be assumed from the reading of the AD’s opinion and findings that this requirement was met. Specifically, he found:

2. The medical evidence establishes that the claimant has chronic low back strain with moderate osteoarthritis of the thoracolumbar spine, without any neurological signs or findings, and that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart F, Regulations No. 4.
3. The claimant’s testimony regarding the intensity, severity, and restricting nature of her pain was disproportionate to the medical findings, and not credible.
4. The claimant has the residual functional capacity to perform the physical exertion requirements of work except for frequent or repeated bending or twisting, prolonged or unrelieved walking and standing, or lifting and carrying in excess of ten pounds. There are no nonexertional limitations. (20 CFR 416.945).
5. The claimant is unable to perform her past relevant work as waitress, laborer, or cook.
6. The claimant has the residual functional capacity to perform the full range of sedentary work. (20 CFR 416.967)
7. The claimant is 43 years old, which is defined as a younger individual (20 CFR 416.963).
8. The claimant has completed an eighth grade education (20 CFR 416.-964).
9. In view of the claimant’s age and residual functional capacity, the issue of transferability of work skills is not material.
10. Section 416.969 of Regulations No. 4 and Rules 201.24, Table No. 1 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant’s residual functional capacity, age, education, and work experience, she is not disabled.
11. The claimant was not under a “disability,” as defined in the Social Security Act, at any time through the date of this decision (20 CFR 416.-920(f).

The AD found that Ms. Trundle has the residual functional capacity (RFC) for at least “sedentary” work. He based this on the medical findings of the case and claimant’s testimony at the hearing. He stated:

Based on the limited extent of the medical findings in this case, and the claimant’s own testimony that she could sit for several hours without any discomfort, I found her testimony regarding her severe pain and severe limitations to be generally not credible. Even looking at the evidence most favorably to the claimant, I would agree that she does suffer some pain and limitation, and would therefore be precluded from any work that required frequent bending, twisting, or lifting and carrying in excess of 10 pounds.

He then went on to state that considering the Plaintiff’s RFC for sedentary work, her age, education, and work experience, the vocational rules directed a finding of not disabled.

In disability cases where it is established that the claimant cannot return to her past work, the burden shifts to the Secretary to show that there is other substantial gainful activity that the claimant could perform. Nicks v. Sckweiker, 696 F.2d 633 (8th Cir.1983); Tucker v. Sckweiker, 689 F.2d 777 (8th Cir.1982).

The RFC is merely a medical factor. These guidelines are codified at Subpart P, Part 404, Chapter 3, Title 20 of the Code of Federal Regulations. It is an assessment of a claimant’s physical ability to perform certain exertional tasks. McCoy v. Sckweiker, 683 F.2d 1138, 1148 (8th Cir. 1982). However, the guidelines and grid are not controlling when a claimant has a nonexertional impairment. Id. Pain is a nonexertional limitation. Nicks, supra, at 636; see also Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 666, note 8 (1st Cir.1981). In cases involving nonexertional impairments, the guidelines and grid “cannot be used to direct a conclusion of disabled or not disabled without regard to other evidence, such as vocational testimony.” McCoy, supra, at 1148.

Complaints of pain should be assessed in accordance with Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) {Polaski 1) and Polaski v. Heckler, 751 F.2d 943 (8th Cir.1984) {Polaski II). Miller v. Heckler, 756 F.2d 679 (8th Cir.1985). According to Polaski I,

Direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaint solely because the objective medical evidence does not fully support them.

Polaski I, supra, at 1322. Furthermore, the court in Polaski I ruled that the lack of objective medical evidence to support the degree of severity of a claimant’s subjective complaints is just one factor to be considered in evaluating the credibility of the testimony and complaints. Id. The ALJ should give full consideration to all of the evidence relating to the complaints, including observations by third parties, treating and examining physicians, the claimant’s prior work record, and observations relating to matters such as:

1. the claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.

Id. Also, Polaski II, at 949. In other words, it is error for the AU to accept or reject subjective complaints solely on the basis of personal observations. Nevertheless, subjective complaints of pain may be discounted if there are inconsistencies in the evidence as a whole. Polaski I, supra, at 1322.

In the instant case, the claimant testified as to her daily activities, which are limited to doing a few household chores, reading, and crafts. She also testified that the pain is almost always present, and described it as a burning, dull sensation: She is unable to take anti-inflammatory drugs, because they upset her stomach. She takes Tylenol and tranquilizers on a fairly regular basis, but testified she does not like to take drugs that make her sleepy and tries to avoid this as much as possible.

In this case, the AU erred by not calling a vocational expert to testify concerning what other jobs that Trundle might be able to perform in light of the pain from which she suffers. Smith v. Schweiker, 728 F.2d 1158 (8th Cir.1984). In Smith, the claimant had rheumatoid arthritis or was considered a borderline case. She had to limit her exposure to the cold, and she also required an hour of rest in the morning and in the afternoon. The claimant testified to pain in her shoulders, knees, hips, hands and back. She was able to do some housework, including vacuuming and cooking, and drove approximately 30 miles per week. She testified that she normally took six aspirin at once, and she limped when her hip hurt. There was medical evidence that she did not suffer from a loss of range of motion. The court found several grounds for reversal, but stated that the inadequacy of the AU’s findings with respect to the claimant’s complaints of pain and limitation of motion was one ground compelling reversal. The court stressed that the AU must give serious consideration to a claimant’s subjective complaints of pain. Id. at 1163. Even though an AU may not believe the claimant’s subjective complaint of pain based on inconsistencies in the testimony and other circumstances in the case, the AU cannot circumvent the Eighth Circuit’s principles regarding pain “ ‘under the guise of a credibility finding.’ We have recognized that ‘[i]t is simply insufficient for the AU to suggest in a conclusory fashion that complaints of pain are not credible.’ ” Id. (quoting Simonson v. Schweiker, 699 F.2d 426, 429 (8th Cir.1983)).

The Eighth Circuit has consistently emphasized that strict reliance on objective medical evidence of pain is contrary to the law of this circuit. E.g., Marshall v. Heckler, 731 F.2d 555 (8th Cir.1984); Layton v. Heckler, 726 F.2d 440 (8th Cir.1984). In Marshall, the Eighth Circuit recognized that the AU has the authority to reject subjective evidence of pain for a legally sufficient reason. Marshall, supra, at 557. However, when there is no legally sufficient reason for rejecting subjective evidence of pain, the AU may not rely on the grid. In cases where the guidelines and grid do not apply, the Secretary must call a vocational expert to establish whether the claimant can do work other than her past job, unless there is substantial evidence from other sources which bears directly on the substantial gainful activity of the claimant. Id.

In this case the AU clearly failed to apply the Polaski standard and the factors enunciated in the other dispositive Eighth Circuit cases cited above. On remand the burden will be upon the Secretary to show that there were other jobs available in the national economy which realistically suited Trundle’s qualifications and capabilities. McMillian v. Schweiker, 697 F.2d 215 (8th Cir.1983). In other words, if the Secretary holds another hearing on this matter, a vocational expert must be called to testify as to whether or not there is work in the economy which the claimant can perform.

ORDER

Based on the foregoing Memorandum Opinion, it is hereby

ORDERED that the Secretary’s final decision denying Plaintiff’s claim for Supplemental Security Income benefits is reversed and remanded. The Secretary may either promptly award Plaintiff’s claim for benefits, or promptly hold an additional hearing where testimony will be presented, including testimony by a vocational expert.


source: Caselaw Access Project

author: MAZZONE, District Judge.

license: Public Domain

text:
    ANIMAL LEGAL DEFENSE FUND BOSTON, INC. v. PROVIMI VEAL CORPORATION.
    Civ. A. 85-3113-MA.
    United States District Court, D. Massachusetts.
    Jan. 14, 1986.
    Steven M. Wise, Animal Legal Defense Fund, Boston, Mass., for plaintiff.
    Fox, Carpenter, O’Neill & Shannon, P.C., Milwaukee, Wis., Richard F. McCarthy, Richard L. Binder, Willeox, Pirozzolo & McCarthy, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

MAZZONE, District Judge.

Disputes about food grow naturally out of our conviction that we are what we eat. This case, which questions the treatment of calves, illustrates this abiding and deeply-felt concern. The Animal Legal Defense Fund — Boston, Inc. (“ALDF”), is a nonprofit charitable Massachusetts corporation whose members “promote animal welfare in purchasing their food.” Convinced that calves raised for veal are mistreated, and that antibiotic drugs added to their feed endanger human health, the ALDF filed this action in Massachusetts state court. Defendant Provimi Veal Corporation (“Provimi”), a Wisconsin veal producer, buys calves raised by others in Massachusetts, slaughters them and sells the veal to meat distributors; Provimi’s 1984 sales of veal in Massachusetts exceeded $1 million. Provimi also manufactures and sells pre-mixed and finished animal feeds and milk replacers. See Provimi, Inc. v. United States, 230 Ct.Cl. 621, 680 F.2d 111 (Ct.Cl.1982); Bonda’s Veevoederfabriek, Etc. v. Provimi, Inc., 425 F.Supp. 1034 (E.D.Wis.1977).

Based on the Massachusetts consumer protection statute, Mass.Gen.Laws Ann. ch. 93A, §§ 1-11 (West 1984), the ALDF complaint seeks an order obligating Provimi to tell retail consumers how the calves that Provimi buys are raised. Its members, the ALDF complaint alleges, do not want to buy veal from calves raised in this cruel and unhealthful manner. Yet, because this information is not available to retail consumers, ALDF members have unwittingly bought and eaten Provimi veal. Other ALDF members feel they are unable to buy or eat veal at all.

The calves that Provimi buys in Massachusetts, the ALDF says, aré raised in dark, confined pens; they are fed iron-deprived diets, which make them anemic so that their meat will be white rather than red. Their food also contains antibiotic drugs, such as penicillin and the tetracyclines, at dose levels below those required to treat an actual disease. These subtherapeutic doses are used to promote growth and to ward off disease. Although Provimi does not raise its own calves, the ALDF contends that Provimi tells farmers how it wants them to be raised.

Provimi acts unfairly and deceptively because it does not tell consumers of its veal how the calves it buys are raised. Provimi buys “factory-farmed” veal calves that are “confined, intensively-raised [and] special-fed.” Amended Complaint, ¶ 4. Such treatment is “cruel” and “fails adequately to meet the physiological and ethological needs of calves.” Id. Members of the ALDF refuse to eat veal from calves raised this way because it would offend their “moral and aesthetic beliefs.” Not telling consumers about this cruelty is unfair and deceptive, because it denies to consumers information they might consider important in deciding whether to buy Provimi’s veal.

More complicated is the ALDF claim that Provimi ought to tell consumers that its veal might be unhealthful because it comes from calves that are fed antibiotics sub-therapeutically. Bacteria immune to antibiotics flourish in animals whose feeds contain antibiotics. Resistance to antibiotics can pass from harmless bacteria in the animal’s gut to other bacteria, such as salmonella, that can cause disease in humans. Resistant organisms passed to humans in meat render normal antibiotics ineffective against a wide range of infections. Patients may suffer prolonged illness or death while being treated with ineffective medicines. Consumers should be told about this health risk, the ALDF says, because it might influence their decision to buy veal; not telling them is unfair and deceptive.

The ALDF filed its complaint in Massachusetts state court in June, 1985. An amended complaint was filed a month later in July. Asserting diversity of citizenship, Provimi removed the case to this Court in August, 1985. 28 U.S.C. §§ 1441, 1332. Also in August, Provimi filed its answer, admitting that it buys calves and sells veal in Massachusetts, and that it does not disclose to consumers how those calves are raised. Provimi advanced numerous affirmative defenses which it now presses in its motion for judgment on the pleadings. Fed.R.Civ.P. 12(c). That motion is now before the Court.

The parties briefed the legal questions raised by the ALDF’s amended complaint with vigor and at great length. Provimi filed a 46-page memorandum of law. In opposition, the ALDF filed a 93-page memorandum of law. Finally, Provimi responded with a 54-page reply brief.

Provimi raised numerous affirmative defenses in its answer and motion for judgment on the pleadings, but only two of them, pre-emption of the state law claim by federal law, and failure to state a claim on which relief can be granted, need be treated here. For reasons explained more fully below, Provimi’s motion must be granted and the ALDF amended complaint dismissed.

I.

The ALDF alleges that calves, raised according to Provimi’s instructions, are treated cruelly because they are kept in cramped pens and are ill-fed. Even if the ALDF is right, however, chapter 93A is an inappropriate remedy. The cruel treatment of animals violates criminal statutes which are enforced by public officials, not private organizations, no matter how well-intentioned.

Cruelty to animals is a crime in Massachusetts. See e.g., Mass.Gen.Laws Ann. ch. 272, §§ 77, 78A, 81, 85A (West Supp. 1985). These statutes are- “directed against acts which may be thought to have a tendency to dull humanitarian feelings and to corrupt the morals of those who observe or have knowledged of those acts.” Knox v. Massachusetts Society for the Prevention of Cruelty to Animals, 12 Mass.App. 407, 409, 425 N.E.2d 393 (quoting Commonwealth v. Higgins, 277 Mass. 191, 194, 178 N.E. 536 (1931)). Like nearly all criminal laws, these anti-cruelty statutes are enforced by public law enforcement officials. Mass.Gen.Laws Ann. ch. 272, § 84 (West 1970). See Quinn v. Aetna bife & Cas. Co., 482 F.Supp. 22, 29 (E.D.N. Y.1979), affd, 616 F.2d 38 (2d Cir.1980). Cruelty to animals is an offense “against public morals, which the commission of cruel and barbarous acts tends to corrupt,” Commonwealth v. Turner, 145 Mass. 296, 300, 14 N.E. 130 (1887). It is true that officers of the Massachusetts Society for the Prevention of Cruelty to Animals, a private charitable and benevolent organization, Massachusetts Society for the Prevention of Cruelty to Animals v. Boston, 142 Mass. 24, 27, 6 N.E. 840 (1886), do enforce these anti-cruelty statutes, but only when they have been appointed special police officers by the Commissioner of Public Safety. Mass.Gen.Laws Ann. ch. 147, § 10 (West Supp.1985). See also Mass. Gen.Laws Ann. ch. 129, § 9 (West Supp. 1985) (agents of the Massachusetts Society for the Prevention of Cruelty to Animals can inspect slaughterhouses, pet shops, guard dog businesses, hearing dog businesses and horse stables in order to enforce anti-cruelty and disease statutes).

It is also true that the ALDF does not, in the strict sense, try to enforce Massachusetts’ criminal anti-cruelty statutes. It concedes it has no authority, as a private charitable organization, to do so. Instead, the ALDF insists that the Massachusetts consumer protection law gives concerned consumers a private right of action when violations of the anti-cruelty statutes affect them as consumers. Consumers have a right to know that veal sold to them comes from cruelly mistreated calves; Provimi’s failure to give consumers that information, not the cruel treatment itself, is the unfair and deceptive trade practice in violation of chapter 93A. As adroit and skillful as this argument is, it is misdirected.

What makes Provimi’s nondisclosure an unfair and deceptive trade practice is that it keeps consumers from knowing about a criminal violation, namely a violation of section 77. Not disclosing how calves are raised is deceptive, says the ALDF, because would-be veal buyers, including those who belong to the ALDF, might consider the criminally cruel treatment of calves raised for veal “relevant information,” 940 C.M.R. 3.05(1), or a fact “the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction ...” 940 C.M.R. 3.16(2). An ALDF victory in this action would have an unmistakable effect: to enforce by means of an injunction obtained in a private lawsuit, a criminal statute enforceable only by public prosecutors and, in legislatively-sanctioned circumstances, private groups, among which the ALDF is not numbered.

Relying on the decision in Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 365 N.E.2d 802 (1977), the ALDF argues that chapter 93A creates a private remedy for violations of other statutes which themselves do not provide for private enforcement actions. This reliance is misplaced, however. Dodd held that private plaintiffs could base a chapter 93A action against an insurance company on violations of a second statute regulating unfair and deceptive insurance practices. That statute, Mass. Gen.Laws Ann. ch. 176D, did not provide for private actions and contemplated enforcement by the Commissioner of Insurance. Dodd, however, turned on a saving clause in chapter 176D providing that it did not “relieve or absolve any person ... from any liability under any other laws of this commonwealth.” Dodd also concerned two regulatory statutes, both intended to protect consumers. “The mere existence of one regulatory statute,” the Dodd court reasoned, “does not affect the applicability of a broader, nonconflieting statute, particularly when both statutes provide for concurrent coverage of their common subject matter.” Id. at 78, 365 N.E.2d 802. Notably, chapter 93A was amended, following Dodd, and now explicitly provides that violations of chapter 176D can be enforced in a chapter 93A private action. See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 674-75, 448 N.E.2d 357 (1983).

However well-intentioned it is, the ALDF is pursuing its goals along an improper avenue in this litigation. If convinced it has uncovered gross, and systematic mistreatment of animals, the ALDF should concentrate its estimable advocacy urging public officials and the designated private animal protection organizations to proper action.

II.

The ALDF is also disturbed about what calves are fed and not fed. Calves raised for veal, like many food animals, eat medicated animal feeds which contain subtherapeutic levels antibiotic drugs believed to promote growth. Humans who consume meat from these animals, the ALDF fears, also ingest bacteria resistant antibiotic drugs. Such bacteria can cause serious illness, difficult to treat because normally effective antibiotic drugs would be useless. According to the ALDF, iron is omitted from the diet of calves so the veal will be pale and white rather than red.

The ALDF claims that calves raised on this antibiotic-rich, iron-deprived diet yield veal that is adulterated and unwholesome in violation of federal and Massachusetts regulations. Selling such veal violates chapter 93A because it is an unfair trade practice not to comply with a Massachusetts public health statute or regulation, 940 C.M.R. 3.16(3). Similarly, it is an unfair and deceptive trade practice to violate any federal consumer protection statute. 940 C.M.R. 3.16(4). And not disclosing to consumers of veal that calves are fed antibiotic drugs is unfair and deceptive because it is important information that should be available to a consumer choosing whether to purchase veal. 940 C.M.R. 3.05(1), 3.16(2).

It is unnecessary to reach the merits of the ALDF’s claims, however, because they are pre-empted by the comprehensive federal scheme regulating the labeling, packaging and marketing of meat and the use of medicated animal feeds. The ALDF’s concerns are well-founded and quite serious. But this action, brought under a state consumer protection law, is an inappropriate remedy, and the ALDF’s complaint must, therefore, be dismissed.

Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state law claims, whether they are based on statute, regulation or common law, may be pre-empted in several circumstances. “First, when Congress, in enacting a federal statute has expressed a clear intent to pre-empt state law; second, when it is clear, despite the absence of explicit pre-emptive language, that Congress has intended, by legislating comprehensively, to occupy an entire field of regulation and has thereby left no room for the States to supplement federal law; and, finally, when compliance with both state and federal law is impossible.” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 (1984) (citations omitted). Accord Michigan Canners and Freezers Ass’n v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984). The ALDF wrongly suggests that federal regulations are to be given less pre-emptive weight than federal statutes. “Federal regulations have no less pre-emptive effect than federal statutes.” Fidelity Federal Savings and Loan Assn. v. De La Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982). The ALDF’s claim is based on the Massachusetts consumer protection statute and not on conflicting state regulations but that does not avoid pre-emption. “[Regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be a potent method of governing conduct and controlling policy.” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 781, 3 L.Ed.2d 775 (1959); see Cipollone v. Liggett Group, Inc., 593 F.Supp. 1146, 1151 (D.N.J.1984).

The federal statutory and regulatory scheme involved here entails two federal statutes and two federal agencies. Food labeling generally is governed on the federal level by the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301-392 (West Supp.1985), and its regulations, which come under the administrative aegis of the Food and Drug Administration (“FDA”).

Medicated animal feeds and drugs used in treating animals which are raised for human consumption are also controlled by the FDCA as part of its comprehensive scheme to protect the public from drugs that may be unsafe or ineffective for their intended uses. See United States v. An Art. of Drug Con. of 4,680 Pails, 725 F.2d 976, 978 (5th Cir.1984); International Nutrition v. U.S. Dept. of Health, 676 F.2d 338, 339 (8th Cir.1982); Agri-Tech, Inc. v. Richardson, 482 F.2d 1148, 1150-51 (8th Cir.1973). “New animal drugs,” must be approved by the Food and Drug Administration before they can be lawfully marketed. 21 U.S.C. § 360b(a)(l)(A). The FDA can refuse to approve a New Animal Drug Application if the drug is proven not safe, 21 U.S.C. § 360b(d)(l)(A) & (B), or that “there is a lack of substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof.” 21 U.S.C. § 360b(d)(l)(E).

A drug that is not a “new animal drug” can be marketed without FDA approval. For a drug not to be considered a new animal drug, it must be “generally recognized” by qualified experts as safe and effective for each of its intended uses. 21 U.S.C. § 321(w).

Animal feeds that contain antibiotics are treated in a separate category parallel to new animal drugs. 21 U.S.C. § 321(x). Medicated animal feeds must also win FDA approval, apart from approval of the animal drug itself, before they can be marketed. 21 U.S.C. § 360b(m).

Meat and meat food products shipped in interstate commerce are regulated by the Federal Meat Inspection Act, as amended by the Wholesome Meat Act, 21 U.S.C. §§ 601-695 (West Supp.l985)(“FMIA”), and its regulations. The FMIA is administered by the United States Department of Agriculture (“USDA”). Enacted in 1907, the FMIA ensures that the “health and welfare of consumers [is] protected by assuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged.” 21 U.S.C. § 602.

Combined, the FDCA and the FMIA form a comprehensive regulatory scheme intended to “protect the health and welfare of consumers and to prevent and eliminate burdens on commerce by assuring that meat and poultry products are wholesome and properly labeled.” See e.g., American Public Health Assn. v. Butz, 511 F.2d 331, 332 (D.C.Cir.1974); National Pork Producers Council v. Bergland, 631 F.2d 1353, 1361 (8th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1350, 67 L.Ed.2d 335 (1981).

The ALDF insists that Congress did not intend to entirely exclude all state regulation of food labels and animal drugs; that Congress was not concerned about bacteria in meat; and, that requiring a notice or label or warning “concerning the potential harmful effects of the genetically-altered” bacteria possibly contained in veal, would not conflict with federal regulations. I cannot agree, and for the reasons explained below, must conclude instead that the ALDF’s chapter 93A claim is pre-empted by the federal regulatory scheme.

First, to the extent the ALDF’s amended complaint is based on violations of the FDCA or the parallel Massachusetts statute, Mass.Gen.Laws Ann. eh. 94, § 186— which deem adulterated, food containing “any poisonous or deleterious substance which may render it injurious to health” — it is pre-empted. The ALDF says that Provimi violates the FDCA because it sells adulterated veal. It is true that veal containing salmonella bacteria resistant to antibiotics is adulterated, within the meaning of the FDCA. Continental Seafoods, Inc. v. Schweiker, 674 F.2d 38, 43 (D.C.Cir.1982). Diseases caused by drug-resistant bacteria may be prolonged and serious. A recent Centers for Disease Control study traced an outbreak of human food poisoning caused by salmonella bacteria resistant to several common antibiotics, to calves fed subtherapeutic doses of antibiotics. Holmberg, Osterholm, Senger & Cohen, 311 New Eng.J. of Med. 617 (1984).

But there is no allegation in the ALDF’s complaint that Provimi has sold veal in Massachusetts contaminated with antibiotic-resistant salmonella. More important, the ALDF complaint fails to state a claim on which relief can be granted because no private right of action can be implied under the FDCA. Pacific Trading Co. v. Wilson and Co., 547 F.2d 367, 370-71 (7th Cir.1976); Nat. Women’s Health Network v. A.H. Robins Co., 545 F.Supp. 1177, 1178 (D.Mass.1982). Even assuming, for the moment, that the ALDF can show that Provimi violates the FDCA because its veal is adulterated, the state law authority for the injunctive relief it seeks — the Massachusetts consumer protection statute — is pre-empted by the FDCA. “A private right of action is equally inconsistent with the federal regulatory scheme, whether the right is based in federal or state law.” Nat. Women’s Health Network, 545 F.Supp. at 1181. Massachusetts cannot confer on private persons the power to enforce a federal statute whose enforcement Congress left to federal administrative agencies. Nor can the ALDF enforce chapter 94, the Massachusetts statute which parallels the FDCA, in a private action under the Massachusetts consumer protection protection statute.

The same reasoning applies to the ALDF’s claim that Provimi’s veal is adulterated because calves are not fed iron. Iron, the ALDF argues, is a “valuable constituent” of veal; its absence renders veal an adulterated food. 21 U.S.C. § 342(b)(1). Nothing in the ALDF’s brief suggests why veal must contain iron — it is the value of iron to humans that is important here, and not whether healthy calves require iron. Even assuming the ALDF is correct, however, this violation of the FDCA cannot support a private action under the Massachusetts consumer protection statute.

Second, the subtherapeutic and therapeutic use of antibiotics is controlled by a complicated and comprehensive federal statutory and regulatory scheme. Chapter 93A does not apply to “transactions or actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the Commonwealth or of the United States.” Mass.Gen.Laws Ann. ch. 93A, § 3. Antibiotic use in animals that complies with the federal scheme does not violate the Massachusetts consumer protection statute. Nowhere in its pleadings does the ALDF allege that either farmers or Provimi fail to comply with the federal statutory and regulatory scheme.

Even if the ALDF avoided this exemption, however, the comprehensive federal statutory and regulatory scheme pre-empts any injunctive relief under chapter 93A. The FDCA and its regulations establish complicated procedures by which new drugs proposed to be used in treating animals both subtherapeutically as feed additives and therapeutically, are approved before they can be marketed. Human safety is specifically considered, because it is in animals raised for food that these drugs and feeds will be used. 21 U.S.C. § 360b(d)(2). “The edible products of food-producing animals treated with such drugs” can contain only certain trace amounts of the drugs. 21 C.F.R. § 556 (1975). Further, regulations promulgated by the Secretary of Agriculture under the FMIA provide that all livestock slaughtered for human consumption shall be inspected before and after slaughter, to assure that these antibiotic levels are not exceeded. 9 C.F.R. §§ 309.16, 310.21 (1984). Food that contains approved animal drugs “or any substance formed in or on the food because of [the approved drug’s] use” cannot be found to be adulterated. 21 U.S.C. § 360b(k).

The risk of antibiotic-resistant bacteria, the ALDF’s particular concern, is not ignored in these regulations. In the early 1970s, the FDA assembled an Antibiotic Task Force to study the widespread sub-therapeutic use of antibiotics in food-producing animals. That group recommended extensive further studies to assess the risk of an increase in antibiotic-resistant, bacterially-induced disease in humans or animals due to use of antibiotics as feed additives. In 1973, acting on the task force’s advice, the FDA published 21 C.F.R. § 135.-109 (since renumbered 558.15). The regulation proposed to revoke FDA approval for subtherapeutic use of antibiotics in two years unless data were submitted “which resolve conclusively the issues concerning their safety to man and animals.” See United States v. An Art. of Drug Con. of 4,680 Pails, 725 F.2d at 978-81. Studies of resistant salmonella are specifically called for. Drugs and animal feeds which were already approved were allowed to remain on the market while this testing was performed.

Thus, the federal statutory and regulatory scheme fully controls the use of antibiotics in animals, including possible health risks to humans. While it is true that the FDCA does not contain explicit pre-emptive language, Congress’ intent to occupy the field of antibiotic use in animals, and to direct the States to leave all regulatory activity in that area to the federal government is clear. See Fidelity Federal Savings & Loan Assn. v. De La Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022.

Finally, the ALDF cannot escape the preemptive reach of the federal statutory and regulatory scheme by asking for an injunction simply obligating Provimi to tell consumers that the calves it buys are fed antibiotics subtherapeutieally.

The ALDF wants Provimi to display on its “label or packaging” a “warning concerning the potential harmful effects of the genetically-altered salmonellae, or information that concerns the manner in which the veal calves were raised or procured.” Even assuming chapter 93A provides a basis for such a warning, it is plainly preempted by the federal regulatory scheme.

First, antibiotic use is thoroughly regulated by the FDCA. When Congress has fully occupied a field of regulation, even non-conflicting state regulation is preempted. Capital Cities Cable, Inc. v. Crisp, 467 U.S. at-, 104 S.Ct. at 2700. Second, the ALDF’s proposed warning is pre-empted by the FMIA which controls the labeling and packaging of meat and meat food products. Unlike the FDCA, it contains explicit pre-emption language; it permits some concurrent state regulation, but prohibits state “[mjarking, labeling, packaging, or ingredient requirements in addition to, or different than, those” mandated by federal law. 21 U.S.C. § 678. The Secretary of Agriculture is authorized to prescribe “definitions and standards of identity or composition” for meat and meat food products which must be consistent with those prescribed under the FDCA. 21 U.S.C. § 607(c)(2). Meat and meat food products cannot be labeled until they have been inspected; inspections before and after slaughter assure that antibiotic tolerances set by the FDCA are not exceeded. 9 C.F.R. §§ 309.16, 310.21.

Federal law does not require meat and meat food product labels to carry a warning or an explanation about the subtherapeutic use of antibiotics. The ALDF seeks to impose requirements “in addition to or different than the federal requirements.” See Grocery Mfrs. of America, 755 F.2d 993 at 1002. It is true, as the ALDF contends, that Massachusetts can enact meat laws aimed at protecting the health and well-being of its citizens. Mario’s Butcher Shop & Food Center, 574 F.Supp. 653 at 655. Preparation of foodstuffs for market has traditionally been a matter of local concern. American Meat Institute v. Ball, 550 F.Supp. 285, 287 (W.D.Mich.1982), affd sub nom., American Meat Institute v. Pridgeon, 724 F.2d 45 (6th Cir.1984). Still, meat ingredient standards, labeling and packaging have been pre-empted by the FMIA, id., and states cannot impose different or additional affirmative requirements on meat and meat food products. Mario’s Butcher Shop & Food Center, 574 F.Supp. at 655.

Conclusion

On this record, the defendant is entitled to judgment on the pleadings. Accepting all of the well-pleaded, material facts alleged in the complaint, there is no cause of action stated for which this Court can grant relief.

Accordingly, the complaint is to be dismissed.

SO ORDERED.

      . Subtherapeutic, continuous application of antibiotics in feed animals is believed to promote faster growth, improve feeding efficiency, and limit disease outbreaks, particularly among animals kept in crowded, confined quarters. Therapeutic application of antibiotics is intended to treat disease, once detected, and is administered in larger doses than for subtherapeutic use. United States v. An Art. of Drug Con. of 4,680 Pails, 725 F.2d 976, 988 n. 27 (5th Cir.1984). Exactly why and how subtherapeutic doses of antibiotics promote growth is not fully understood. Several explanations have been advanced. Antibiotics might increase an animal’s metabolism. They might increase the rate at which the animal can absorb nutrients in its food. Most commonly accepted, it appears, is the theory that antibiotics limit subclinical diseases, those which may not cause evident symptoms but are nonetheless taxing to the animal. O. Schell, Modern Meat, at 11 (1984).

      . Provimi also contends that the ALDF lacks standing to litigate its concerns, that it did not send Provimi a demand letter before filing suit as required by the Massachusetts consumer protection statute, and that it did not join indispensable parties — the farmers who actually raise the veal calves Provimi buys. A good deal of the briefs is devoted to the standing question.
      Although today’s ruling assumes standing, it does not decide that difficult question. Nothing in this decision is meant to suggest that the ALDF’s concerns about eating veal from mistreated calves, or about the health risks of feeding antibiotics subtherapeutically to livestock, are sufficient, or insufficient, to satisfy the constitutional standing requirements. U.S. Const., Art. Ill, sec. 2, cl. 1. The same holds true, of course, for the other affirmative defenses raised by Provimi but not decided here.

      . The ALDF, relying on Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), contends that the supervision of food for market has always been deemed a matter of peculiarly local concern. This suggestion obscures more than aids. Florida Lime & Avocado Growers involved a challenge to a California statute imposing a different maturity standard on avocados than the federal standard. The Court noted that the federal regulation set simply a minimum level of maturity for picking but did not prevent California’s control over sale of avocados in the interests of California consumers. Id. at 145, 83 S.Ct. at 1219. "Congressional regulation of one end of the stream of commerce,’’ the Court reasoned, "does not, ipso facto, oust all state regulation at the other end." Id.

      The federal scheme here does not simply set minimum standards and invite the States to demand higher standards for its consumers. No distinction can be made between federal control of production or processing of meat and control by the States of its retailing. The federal concern in Florida Lime & Avocado Growers was "no more than to invite farmers and growers to get together ... to work out local harvesting, packing and processing programs” to relieve depressed marketing conditions. Id. at 150, 83 S.Ct. at 1221. California’s concern was to keep immature avocados and avocados which would never ripen because picked prematurely, out of the retail market. Here, there is a single concern: namely, the safety and effectiveness of subtherapeutic use of antibiotics in food-producing animals.

      . The ALDF relies on American Meat Institute v. Bali, 550 F.Supp. 285 (W.D.Mich.1982), arguing that a State can require sellers to tell consumers that federally inspected meats do not meet its own meat standards. At issue in American Meat Institute was a Michigan law requiring a retailer selling meats which did not meet Michigan standards to display a placard. The placard told consumers that the product did not meet Michigan’s "high” standards, but did meet "lower” federal standards. The ALDF’s reliance is misplaced.
      First, the placard law escaped pre-emption because Michigan required only a placard displayed near the meat products and not a warning or explanation on the product’s label or packaging. The ALDF, in its brief, says it wants this Court to rewrite meat labels and packaging. Moreover, the placard law did not survive commerce clause scrutiny; the law provided inaccurate and misleading information to consumers and therefore its burdensome effect on interstate commerce was unjustified. Id. at 294.
      Second, American Meat Institute involved a state statute directly concerned with meat, and not a broad consumer protection law. The difference is important. While Congress may leave to the States the power to supplement its regulations, such regulation is also tested under the commerce clause. A State cannot unreasonably burden or discriminate against interstate commerce; the State must demonstrate a legitimate state interest. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 152-54, 83 S.Ct. 1210, 1222, 10 L.Ed.2d 248 (1963). All of this requires deliberate weighing of different and often conflicting interests.
      Subtherapeutic use of antibiotics undeniably promotes faster and more efficient production of meat. It may also pose a health risk, but how great a risk and whether it is justifiable is another matter. And if there is a risk, how best to control it? Should antibiotics be banned from use in animals, or should their use be restricted? Perhaps a warning to consumers similar to that required on cigarette packages is adequate. Questions of this sort can never, finally, be decided. They are questions of policy. A different question might be presented if Massachusetts had enacted a warning requirement similar to that in American Meat Institute. But even if the pre-emption hurdle is cleared, the ALDF asks this Court to do what it is singularly ill-suited to do.

      . This decision is reached on the narrow ground of federal pre-emption. It does not minimize the serious risk that resistant germs, immune to antibiotic medicines, could grow in drug-fed animals and spread to humans where they could cause diseases that could not be treated with normally effective antibiotics.
      The practice of feeding antibiotics subtherapeutically to food-producing animals is widespread. Most of the pork, and much of the beef and poultry produced in the United States is raised on feed treated with antibiotics. N.Y. Times, Sept. 16, 1984, at Al, col. 5. If, as many suspect, this is creating transferable drug resistance in animal bacteria that is showing up later in human bacteria, it is cause for concern. The vulnerability of disease-causing bacteria to antibiotics is a resource, just as much as unpolluted air and water, which, as we consume it by the use and misuse of antibiotics is diminished. A 1978 report by the World Health Organization warned that "[ojutbreaks of infection due to drug-resistant organisms are an increasing problem in both the developing and developed countries," and blamed the problem on “the widespread and indiscriminate use of antimicrobial drugs in man and animals.” O. Schell, Modem Meat, at 18 (1984).
      Whether, and how, to regulate the use of antibiotics as animal-feed additives is a difficult and fractious public health issue, of course. The livestock and pharmaceutical industries say that the undeniable benefits of the antibiotics in fattening livestock — which can mean greater efficiency and thus lower meat costs to consumers — are too great to abandon medicated feed without solid evidence. Even if antibiotics are eliminated from animal feed, they add, their widespread use and misuse to combat infections in animals and humans alike would permit the continued evolution of resistant bacteria. Critics of the virtually unrestricted subtherapeutic use of antibiotics say the evidence demonstrating animal-to-human spread of disease from resistant bacteria does exist and is unmistakable. Moreover, alternatives for growth promotion in food animals are available. Levy, 311 New Eng.J. of Med. 663 (Sept. 6, 1984).
      Following a prolonged outbreak of salmonellosis in the sixties, the British government convened a committee to determine whether to regulate the use of antibiotics as animal-feed additives. In 1971, Britain sharply restricted the use of antibiotics in livestock feed, and a number of other European countries have adopted similar restrictions. Schell at 106.
      Congress and the federal regulatory agencies are not ignorant of the dispute, but repeated efforts to curtail or eliminate the use of antibiotics as animal-feed additives have failed. In 1977 the Food and Drug Administration proposed to regulate the unrestricted use of the most common antibiotics in animal feeds by making their sale and use contingent on veterinary prescription. Id. at 28. The FDA began proceedings to withdraw its approvals for the use of subtherapeutic levels of penicillin and the tetracyclines in animal feed. See United States v. An Art. of Drug Con. of 4,680 Pails, 725 F.2d 976, 988-89 (5th Cir.1984). Congress blocked the move and directed the FDA to wait until further scientific studies were completed. Critics say that influential farm-state legislators led the opposition, at the urging of the livestock and pharmaceutical industries. N.Y. Times, Sept. 16, 1984, at Al, col. 5. The National Academy of Sciences Committee to Study the Human Health Effects of Subtherapeutic Antibiotic Use in Animal Feeds, in 1980, recommended that further study be done. Schell at 108. Two studies contracted for by the FDA are now being reviewed. Reportedly, the FDA is considering whether to renew the proposal for a ban on antibiotics in animal feed following a Centers for Disease Control study tracing an outbreak of human food poisoning to antibiotic-resistant germs from beef cattle fed subtherapeutic antibiotics in their feed. N.Y. Times, Sept. 16, 1984, at Al, col. 5. Two months ago, however, the Secretary of Health and Human Services denied a petition seeking to have the subtherapeutic use of penicillin and the tetracyclines declared an imminent hazard, 21 U.S.C. § 360b(e), and approval for the new animal drug applications for that use immediately suspended.
      Apparently frustrated with Congress and the FDA, the ALDF brought this action under the Massachusetts consumer protection statute hoping, apparently, to force the federal government’s hand. The ALDF could well be concerned about the federal government’s ability and eagerness to oversee and regulate the animal drug and livestock industries. Such concern is justified, as evidenced by a recent study prepared by the House Government Operations subcommittee on inter-governmental relations and human resources, which reports grave deficiencies on the part of the Food and Drug Administration in monitoring the use of toxic drugs and nutrition supplements in raising livestock. N.Y. Times, Jan. 13, 1986, at Al, col. 3. While the ALDF’s impatience may be understandable, its new tactic cannot succeed. The FMIA and the. FDCA evince Congress’ intent to control the use of antibiotics in animal feed and this complaint cannot get around that fact. As stated earlier, the ALDF should bring its considerable influence to bear when Congress and the FDA face the question of transferable drug resistance from food animals to humans.


author: MURRAY M. SCHWARTZ, Chief Judge.

text:
    CONOCO INC. and Consolidation Coal Company, Plaintiffs, v. Donald P. HODEL, Secretary of the Interior and United States Department of the Interior, Defendants.
    Civ. A. No. 85-277 MMS.
    United States District Court, D. Delaware.
    Jan. 14, 1986.

      Andrew B. Kirkpatrick, Jr., and Richard D. Allen, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del.; of counsel: Richard
    McMillan, Jr., Steven P. Quarles, and Peter K. Levine of Crowell & Moring, Washington, D.C., for plaintiffs.
    William C. Carpenter, Jr., U.S. Atty., and Richard G. Andrews, Asst. U.S. Atty., Wilmington, Del.; Alan Brenner, Dept. of Justice, Washington, D.C., for defendants.
   OPINION

MURRAY M. SCHWARTZ, Chief Judge.

Plaintiffs Conoco, Inc. (“Conoco”) and Consolidated Coal Company (“Consolidated”) seek declaratory relief to prevent defendant the Secretary of the Interior (“the Secretary”) from applying Section 2 of the Mineral Lands Leasing Act (“MLLA”), codified as amended at 30 U.S.C. § 201(a)(2)(A) (1982), to federal, leases of minerals other than coal.

The matter is before this Court on cross-motions for summary judgment. For the reasons explained below, the Court will deny plaintiffs’ motion and will grant defendant's motion for summary judgment.

Facts

Under the authority of the Mineral Lands Leasing Act of 1920 (“MLLA”), 30 U.S.C. § 181 et seq. (1982), the Secretary of the Interior leases federal lands containing certain types of mineral deposits. Sub-chapter I of the MLLA contains generally applicable mineral leasing provisions; sub-chapters II, III, IV, V, VII, VIII, and IX cover the leasing of coal, phosphates, oil and gas, oil shale, sodium, sulphur, and potash, respectively.

In 1976 Congress enacted the Federal Coal Leasing Amendments Act (“the FCLAA”). Section 3 of the FCLAA amended subchapter II of the MLLA and established additional requirements for the issuance of new federal coal leases. One of the purposes of the FCLAA was to promote the “diligent development” of federal coal leases. See 30 U.S.C. §§ 202a(2), (3); H.R.Rep. No. 681, 94th Cong., 2d Sess. 9-13 (1976), reprinted in 1976 U.S.Code Cong. & Ad.News pp. 1943, 1945-48. To achieve that goal, Section 2 of the MLLA as amended penalizes companies that have held a federal coal lease for more than ten years from the effective date of the statute, August 4,1976, without producing coal therefrom in commercial quantities.

Under the Secretary’s interpretation of Section 2, any holder of federal coal leases acquired prior to August 4, 1976 who fails adequately to develop those leases by August 4, 1986 is precluded from acquiring new federal leases for coal and for every other mineral covered by the MLLA. Companies “controlled by or under common control with” such a holder (“associated companies”) are similarly precluded. See 30 U.S.C. § 201(a)(2)(A). Under the final guidelines issued by the Secretary, “a subsidiary’s violation [of Section 2] is charged to a controlling parent____” 50 Fed.Reg. 35144 (Aug. 29, 1985).

Conoco is an energy company incorporated in Delaware with its principal place of business in Houston, Texas. Conoco engages in the exploration, production, refining, and marketing of oil and gas products, and derives substantial revenue from its holdings of federal onshore oil and gas leases. Consolidated, a Delaware corporation with its principal place of business in Pittsburgh, Pennsylvania, is a wholly owned subsidiary of Conoco and a major coal producer and marketer.

Consolidated holds thirty undeveloped federal coal leases issued prior to 1976 which contain an estimated 1.3 billion tons of recoverable coal. To avoid the penalty of Section 2(a)(2)(A), Consolidated must have these properties in production by August 4, 1986. Consolidated asserts it cannot produce coal from these leaseholds in commercial quantities by that date. For purposes of this litigation, Consolidated does not dispute that it will not be permitted to require additional federal coal leases after August 4, 1986. Complaint at 1122.

At present, twenty percent of Conoco’s total oil and gas leases, encompassing some one and one-half million acres, are held in federal onshore leases. In addition, Conoco adds over 10,000 leases to its inventory per year. Between 1981 and 1985, Conoco annually acquired federal onshore oil and gas leases ranging from 48,000 to 365,000 acres. If Consolidated continues to hold its nonproducing pre-1976 federal coal leases after December 4, 1986, Conoco, as the parent of Consolidated, will be required to forgo the opportunity to obtain new federal oil and gas leases. Conversely, if Consolidated divests itself of the pre-1976 leases in order to allow Conoco to continue to acquire new federal oil and gas leases, it alleges the divestiture, even if feasible, “would result in substantial financial losses.” Id. 1123.

Plaintiffs assert the Secretary has wrongfully interpreted the federal lease-exclusion provisions of Section 2(a)(2)(A) of the MLLA by extending it to companies such as Conoco which are affiliated with companies holding federal coal leases, but which themselves own no coal leases and seek only non-coal federal mineral leases. Further, plaintiffs charge that in February, 1985, the Secretary suddenly changed his longstanding interpretation that the Section 2(a)(2)(A) prohibition applied only to coal leases.

Plaintiffs seek a declaration from this. Court that the Secretary’s interpretation is arbitrary and capricious, an abuse of discretion, beyond the Secretary’s authority and contrary to law, and that the prohibition of Section 2(a)(2)(A) of the MLLA applies to federal coal leases only. Conoco also seeks a declaratory judgment that the Secretary shall allow it to apply for federal non-coal leases without regard to the status of Consolidated’s pre-1976 federal coal leases.

The Secretary denies his statutory interpretation of Section 2(a)(2)(A) to include federal non-coal leases is either new or erroneous. The Secretary claims the plain language of the statute and the legislative history negate the plaintiff's interpretation and that the Department’s interpretation has been consistent since the statute was enacted.

Analysis

1. Statutory Language

In all cases involving statutory con- ■ struetion, a court’s starting point must be the language employed by Congress. See, e.g., North Dakota v. United States, 460 U.S. 300, 311, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983). The ordinary presumption is that the words of the statute are conclusive evidence of the legislative purpose. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982).

Section 3 of the Federal Coal Leasing Amendment Act of 1975 amended the last sentence of Section 2(a) of the Mineral Lands Leasing Act (30 U.S.C. § 201(a)) to read:

The Secretary shall not issue a lease or leases under the terms of this Act to any person, association, corporation, or any subsidiary, affiliate, or persons controlled by or under common control with such person, association, or corporation, where any such entity holds a lease or leases issued by the United States to coal deposits and has held such lease or leases issued for a period of ten years when such entity is not, except as provided for in section 7(b) of this Act, producing coal from the lease deposits in commercial quantities. In computing the ten-year period referred to in the preceding sentence, periods of time prior to the date of enactment shall not be counted.

Pub.L. No. 94-377, § 3 (1976), codified at 30 U.S.C. § 201(a)(2)(A) (1982) (emphasis added).

Plaintiffs urge the opening portion of the first sentence of Section 2, reading “The Secretary shall not issue a lease or leases under the terms of this Act____” means - “The Secretary shall not issue a coal lease or leases under the terms of this Act____” Plaintiffs buttress their position by noting that the word “lease” as used in the remainder of the sentence refers to “coal lease,” and therefore when “lease” is first used in the sentence it must also refer to coal lease. Plaintiffs go on to point out that the words “lease,” “leases,” “leasing,” and “lessee” are used over one hundred times in the rest of the FCLAA. Only fifty-five times are these words accompanied by the word “coal” in the same sentence, and twenty-eight times the word “coal” does not even appear in the same paragraph. Plaintiffs argue that this consistent usage establishes a “common usage” of the word “lease” to mean “coal lease” throughout the FCLAA.

It is true that the words “lease,” “leases,” “leasing,” and “lessee” as used in the FCLAA generally refer to coal leases. This does not mean the first use of the word “lease” in Section 3 also means “coal lease.”

Plaintiffs focus unduly on the word “a lease or leases” in the first sentence. A word in a statute cannot be construed in isolation. The sentence reads: “... a lease or leases under the terms of this Act____” Plaintiffs would have the Court ignore the phrase “under the terms of this Act,” arguing that it is “immaterial” whether “this Act” refers to the FCLAA or the MLLA.

A statute cannot be read so as to render certain words nugatory. See, e.g., United States v. Johnson; 462 F.2d 423, 428 (3d Cir.1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1983). Plainly the words “under the terms of this Act” modify the word “a lease or leases.” The question then becomes, to which Act, the FCLAA or the MLLA, do the words “this Act” refer?

If “this Act” refers to the FCLAA, then Congress was referring only to federal coal leases, for the FCLAA deals with coal leases. If “this Act” refers to the MLLA, however, then Congress was referring to all federal mineral leases since the MLLA grants the Secretary authority to lease deposits of coal, phosphate, sodium, potassium, oil, gas, oil shale; and gilsonite on federal lands.

Read in context “this Act” refers to the MLLA and not the FCLAA. First, Congress was amending the MLLA by enacting the FCLAA. Section 3 of the FCLAA begins: “The last sentence of section 2(a) of the Mineral Land Leasing Act (30 U.S.C. § 201(a)) is amended to read as follows: ‘(2)(a) The Secretary shall not issue a lease or leases under the terms of this Act____’ ” Pub.L. No. 94-377, § 3 (1976). The amended subsection beginning “The Secretary shall not issue____” is thus expressly intended to replace the old section 2(a) of the MLLA. According to well-established principles of statutory construction, this new section is to be considered as part of the original act. Markham v. Cabell, 326 U.S. 404, 411, 66 S.Ct. 193, 196, 90 L.Ed. 165 (1945); Republic Steel Corp. v. Costle, 581 F.2d 1228, 1232 (6th Cir.1978) (citing Markham), cert. denied, 440 U.S. 909, 99 S.Ct. 1219, 59 L.Ed.2d 457 (1979); Kirchner v. Kansas Turnpike Auth., 336 F.2d 222, 230 (10th Cir.1964); see also 1A Sutherland Stat. Const. § 22.34, at 293 (4th ed. rev. 1985). Since the new section is considered part of the old act, the reference to “this Act” necessarily refers to the MLLA, not the FCLAA.

Second, the words “under the terms of this Act” become mere surplusage if read to refer to the FCLAA. The entire subject matter of the FCLAA is federal coal leasing. If Congress had intended to mean “coal lease” when it used the words “a lease or leases under the terms of this Act” it could have accomplished that aim by saying simply: “The Secretary shall not issue a lease or leases to any person..

Third, the very next sentence of Section 3 of the FCLAA refers to “the Federal Coal Leasing Amendments Act of 1975.” If by “this Act” in the first sentence of Section 3 Congress had intended to refer to the FCLAA, it is unclear why it would have then spelled out its reference to the FCLAA in the succeeding sentence. The Court is constrained to assume that Congress by choosing different words intended to convey different meanings.

Moreover, the words “lease” or “leases” when used in the remainder of that first sentence unambiguously refer to coal leases: “where such entity holds a lease or lease issued by the United States to coal deposits and has held such lease or leases ____”; and “when such entity is not ... producing coal from the lease deposits____” Congress used very different words modifying the words “lease” or “leases” in these latter clauses than it did in the first clause of the sentence. If Congress had meant its first use of “lease or leases” in this sentence to refer to “coal leases,” it would have had no occasion to make explicit later in the sentence that “lease or leases” referred to coal leases only. Once again, plaintiffs’ argument would render superfluous part of the statutory language used by Congress.

Plaintiffs point also to other sections of the statute as supportive of their position. First, plaintiffs argue that Section 7(b) of the MLLA, as amended by Section 6 of the FCLAA, does not use the word “coal” once, although it uses the words “lease” and “lessee” eight times. Plaintiffs conclude that “lease,” used without modification, means “coal lease.” Plaintiffs neglect to point out, however, that Section 6 of the FCLAA also amends Section 7(a) of the MLLA; and Section 7(a) begins by discussing “coal leases.” In the context of Section 7, then, the words “lease” or “leases” in Section 7(b) clearly refer to “coal leases.” Second, plaintiffs point to Sections 3, 5(b), and 6 of the FCLAA, which amend MLLA Sections 2(a)(3)(D), 2(d)(3), and 7(c), respectively, codified at 30 U.S.C. §§ 201(a)(3)(D), 202a(3), & 207(c) (1982). Each of these sections uses the term “lease” unmodified to refer to coal leases. As is readily apparent, however, these entire paragraphs are subsections contained within larger sections, the context of which in every instance makes clear that “lease” refers to coal lease. See 30 U.S.C. § 201(a)(3)(A)(i) (“No lease sale shall be held unless the lands containing the coal deposits____”); id. § 202a(l) (“The Secretary, upon determining that maximum economic recovery of the coal or coal deposits is served thereby, may approve the consolidation of coal leases into a logical mining unit____”); and id. § 207(a) (“A coal lease shall be for the term of twenty years____”).

Third, plaintiffs argue that the language used in Section 9 of the FCLAA buttresses its argument that “lease” means coal lease. Section 9 amends the MLLA by providing that a certain percentage of federal royalties is to be given to the States to use “as the legislature of the State may direct giving priority to those subdivisions of the State socially or economically impacted by development of minerals leased under this Act.” Pub.L. No. 94-377, § 9(a) (1976), codified at 30 U.S.C. § 191 (1982). Plaintiffs argue that this specific reference to all “minerals leased” leads to the conclusion that the word “lease” in all other places in the FCLAA means “coal lease.” The answer to this argument is that Congress in Section 9 was addressing a concern entirely different from that addressed by Section 2. The focus of Section 2 is to encourage development of federal coal leases held by the private sector. Section 9 on the other hand directs funds to areas affected by development occurring because of MLLA leases. Whatever support plaintiffs are able to derive from Section 9 is outweighed by the lack of support the text of Section 2(a)(2)(A) itself gives their interpretation.

Plaintiffs also argue that the Secretary’s interpretation of Section 3 of the FCLAA is “illogical” because it imposes on undeveloped pre-1976 federal coal leases a sanction far more severe than the sanction on undeveloped post-1976 federal coal leases. The proper forum for this type of argument is Congress, not the courts. The courts have no power to undo purely on policy grounds what Congress has done. “[T]hat Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes.” United States v. Locke, — U.S. -, -, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985). Nor may the judiciary “soften the clear import of Congress’ chosen words whenever a court believes those words lead to a harsh result.” Id.

2. Legislative History

Plaintiffs also assert there is support for their position in the legislative history of the FCLAA. It may be appropriate for a court to examine committee reports and other authoritative legislative material in order to determine congressional intent as embodied in positive law. Determining the meaning of a statute from its legislative history is a step to be taken cautiously, particularly where, as here, the meaning appears clear from the face of the statute. Rivera v. Becerra, 714 F.2d 887 (9th Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984).

Plaintiffs consider it significant that no member of Congress in discussing, the FCLAA ever mentioned that the Section 3 prohibition would affect either the issuance of oil and gas leases to oil companies that owned coal companies or leases for minerals other than coal. Plaintiffs contend such “far-reaching” effects would not pass unnoticed.

No significance may be attached to Congress’ silence in the legislative history. To infer intent from congressional silence, and to elevate that silence over a positive congressional enactment, entirely distorts legislative intent. As the Supreme Court has observed, “[t]he search for significance in the silence of Congress is too often the pursuit of a mirage.” Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229 (1942).

Plaintiffs also direct the Court to five specific instances in the legislative history where Section 3 of the FCLAA is discussed. According to plaintiffs, the context in which the unmodified word “lease” is used in these passages compels the conclusion that only “coal lease” was meant.

The two passages in the House Report which plaintiffs cite are ambiguous. At best these references support an interpretation of either “coal lease” or “mineral lease.” An ambiguous reference in the legislative history cannot overcome clear statutory language. Equally unpersuasive are plaintiffs’ three citations to floor debate where the members of Congress quoted were simply explaining the FCLAA. Since the FCLAA was fully explained in the House Report, the Court refuses to attach any weight to these extemporaneous statements in which the speakers attempted merely to paraphrase the written reports. This is not a situation where there was a floor amendment and the floor debate is important because it is the only source of legislative history. See, e.g., Northeast Bancorp v. Board of Governors, — U.S.,-,-, 105 S'.Ct. 2545, 2551, 86 L.Ed.2d 112 (1985).

Contrary to plaintiffs’ assertions, the legislative history demonstrates that Congress was aware at the .time of enactment of the way the Department of the Interior construed the language of the proposed statute. In a July, 1975 letter to Congress commenting on H.R. 6721, the predecessor of the statute finally enacted, the Department of the Interior called to the attention of Congress the penalty provision of Section 3 of the FCLAA. In the letter, which was reprinted in the House Report on the FCLAA, the Department wrote: “The penalty for not producing within 10 years would not only be cancellation of the lease, but cancellation of any other lease issued under the Mineral Leasing Act that the person, association, or corporation holds.” H.R.Rep. No. 681, 94th Cong., 1st Sess. 38 (1975), U.S.Code Cong. & Admin.News 1976, pp. 1974, 1975. The inclusion within the committee report of such a plain statement of the enforcing agency’s interpretation of proposed legislation conclusively demonstrates that Congress was aware of this interpretation.

Plaintiffs’ legislative-history argument in support of their position is rejected.

3. Administrative Interpretation

Plaintiffs also contend that the Department of the Interior has changed its interpretation of Section 3 of the FCLAA. A review of the pertinent materials convinces the Court that plaintiffs are wrong.

As noted above, see supra, p. 294, the Department’s July, 1975 letter to Congress regarding the proposed act contained an interpretation identical to that now contested by plaintiffs. The Department in 1980 issued a Solicitor’s Office opinion that concluded: “Both a fair reading of Section 3 itself and the legislative history support the conclusion that the penalty for violating Section 3 is to bar a lessee from obtaining any of the various types of mineral leases obtainable under the Mineral Leas-, ing Act.” This 1980 opinion, although not formally published or adopted by the Department, was distributed to the public upon request, and was provided to the American Mining Congress, a major industry group to which plaintiffs belong. Dkt. 11, at 16-17. In the course of numerous legislative hearings on bills to repeal Section 3 in 1982, 1983, and 1984, Department officials repeatedly expressed the Department’s view that the Section 3 penalty applied to all mineral leases, not just coal leases. See Federal Coal Leasing Amendments Act of 1982: Hearings on S. 2704 Before the Subcomm. on Energy and Mineral Resources of the Senate Comm, on Energy and Natural Resources, 97th Cong.2d Sess. 9 (1982) (statement of Garrey E. Carruthers, Ass’t Sec’y, Dep’t of the Interior); Amending the Mineral Leasing Act of 1920: Hearings on S. 1634 Before the Subcomm. on Energy and Mineral Resources of the Senate Comm. on Energy and Natural Resources, 98th Cong., 1st Sess. 9 (1983) (statement of J. Stephen Griles, Dep. Ass’t Sec’y, Dep’t of the Interior); To Amend the Mineral Lands Leasing Act of 1920: Hearings on H.R. 1530 Before the Subcomm. on Mining Forest Management and Bonneville Power Administration of the House Comm. on Interior and Insular Affairs, 90th Cong., 2d Sess. 5 (1984) (statement of J. Stephen Griles, Dep. Ass’t Sec’y, Dep’t of the Interi- or).

In a memorandum to the Assistant Secretary for Land and Minerals Management dated February 12, 1985, the Solicitor concluded that Section 3 of the FCLAA applies to all MLLA leases. Memorandum M-36951 from Department of the Interior Solicitor to Assistant Secretary for Land and Minerals Management (Feb. 12,1985). The Secretary subsequently published Draft Guidelines on Section 2(A)(2)(A) of the MLLA. 50 Fed.Reg. 6398 (Feb. 15, 1985). Appendix B of the Draft Guidelines listed the types of minerals that may not be leased to any entity or affiliate which cannot satisfy the requirements of Section 2(a)(2)(A) on or after August 4, 1986. Id. at 6400. The minerals listed were coal, gilsonite (including all vein-type), solid hydrocarbons, oil and gas (including tar sands), oil shale, phosphate, potash, sodium, and sulphur. Id. at 6406.

Subsequent to the filing of this suit, the Secretary on August 29, 1985 issued Final Guidelines for the Department’s administration of Section 2(a)(2)(A). See 50 Fed. Reg. 35125 (Aug. 29, 1985). The guidelines interpret Section 2(a)(2)(A) as prohibiting a federal coal lessee, or any affiliate, from acquiring any new federal leases under the MLLA for coal or other minerals if the coal leasee has held a nonproducing federal coal lease for more than ten years from August 4, 1986. Id. at 35126, 35133. This interpretation is consistent with the Secretary’s pre-litigation posture with respect to Section 2(a)(2)(A).

Thus, the Department has consistently construed the penalty provision of Section 3 to apply to all mineral leases.

Plaintiffs argue that the Department’s coal-leasing regulations implementing Section 3, contained in 43 C.F.R. §§ 3400 et seq., limit the scope of the Section 3 penalty to coal leases only. Section 3472.1-2(e) states:

After August 4, 1986, no lease shall be issued to any applicant or bidder ... that holds and has held for 10 years any lease from which coal is not being produced ... in commercial quantities____

43 C.F.R. § 3472.1-2(e) (1984). As used in this part,

“Lease” means a Federal lease, issued under the coal leasing, provisions of the mineral leasing laws, which grant the exclusive right to explore for and extract coal. In provisions of this group that also refer to Federal leases for minerals other than coal, the term “Federal coal lease” may apply.

43 C.F.R. § 3400.0-5(r) (1984).

Regulations governing oil and gas-lease qualifications are found in 43 C.F.R. § 3102 (1984). These regulations do not discuss Section 3. Plaintiffs argue that, because no other regulations have been promulgated for Section 3, the regulations at 43 C.F.R. § 3400 et seq. necessarily indicate that the Secretary interprets the penalty provision of Section 3 to apply to coal leases only.

When faced with a problem of construing an administrative regulation, a court must show the interpretation given by the officers or the agency charged with its enforcement deference even greater than the judicial deference given to agency interpretation of a statute. Udall v. Tail-man, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). “[T]he agency’s interpretation of a regulation ‘is deemed of controlling weight as long as it is one of several reasonable interpretations ... even though the chosen exegesis may not appear quite as reasonable as some other construction.’ ” Budd Co. v. Occupational Safety & Health Review Comm’n, 513 F.2d 201, 205 (3d Cir.1975) (per curiam) (quoting Roy Bryant Cattle Co. v. United States, 463 F.2d 418, 420 (5th Cir.1972)).

Plaintiffs’ argument ignores that the preamble to the 1982 coal-leasing regulations stated that the “rulemaking relates only to coal leases and implies nothing about Section 3’s applicability to other minerals.” 47 Fed.Reg. 33131 (July 30, 1982). Furthermore, although not issued as regulations, the Final Guidelines published by the Secretary on August 29, 1985 set forth the Department’s interpretation of Section 2(a)(2)(A) with respect to all federal mineral leases. 50 Fed.Reg. 35125.

The Department’s interpretation of 43 C.F.R. § 3472.1-2(e) is reasonable. There appears no reason why the Department should place within the same section of the Code of Federal Regulations all regulations implementing a particular statutory provision, or why the Department should not publish its interpretation of a statutory section partly as regulations and partly as guidelines. The Department has chosen to organize its regulations in a manner the plaintiffs essentially profess to find unintelligible. The Court does not agree.

The regulations and Final Guidelines implementing Section 2(a)(2)(A) were adopted based on the Department’s own review of the statute and are fully consistent with the Department's earlier views. See supra at pp. 294-95. Consequently, the Court finds the Department’s interpretation persuasive. Cf. Bethlehem Steel Corp. v. Occupational Safety & Health Review Comm’n, 573 F.2d 157, 160 (3d Cir.1977) (finding nonauthoritative an administrative interpretation of an OSHA regulation which was based on the report of a nongovernmental agency and which was not consistently interpreted by the agency).

The plain language of the statute dictates that the word “lease,” as used in the opening clause of the first sentence of Section 2 of the MLLA, means “mineral lease” and not “coal lease.” Plaintiffs’ arguments to the contrary based on the legislative history and on the administrative interpretation fail.

Conclusion

I have held that Section 2(a)(2)(A) of the MLLA applies to all federal mineral leases and not to federal coal leases only. Accordingly, plaintiffs’ motion for summary judgment will be denied and the Secretary’s cross-motion will be granted.

      . Section 2 is the amended portion of the MLLA under discussion. Hereinafter, a reference to “Section 2” is to Section 2 of the MLLA, codified at 30 U.S.C. § 201(a)(2). A reference to "Section 3” is to Section 3 of the FCLAA which amended Section 2 of the MLLA.

      . Section 2(a)(2)(A) of the MLLA as amended shall not take effect until December 31, 1986. Pub.L. No. 99-190, § 320 (Dec. 19, 1985).

      . See supra note 2.

      . See supra note 2 for the effective date of the statute.

      . See supra note 2 for the effective date of the statute.

        . Plaintiffs in their complaint claim that the Secretary failed to act in accordance with the Administrative Procedure Act ("APA”), 5 U.S.C. § 551 et seq., in promulgating its interpretation of Section 3 of the FCLAA. Complaint at ¶ 18. Plaintiffs have not pursued this claim in their motion for summary judgment, in which they assert that “[t]his case raises the single issue of whether [Section 3 of the FCLAA] ... was intended not only to regulate federal coal leasing but substantially to impact federal leasing of oil, gas and other minerals as well." Dkt. 4 at 1-2.

      . As codified at 30 U.S.C. § 201(a)(2)(A), this sentence reads: “The Secretary shall not issue a lease or leases under the terms of this chapter____” — not "Act." "Chapter," of course, refers to Chapter 3A of title 30; that is, to the MLLA, not the FCLAA. Because the Statutes at Large prevail over the Code whenever the two are inconsistent, American Bank & Trust Co. v. Dallas Cty., 463 U.S. 855, 103 S.Ct. 3369, 3375 n. 8, 77 L.Ed.2d 1072 (1983) (citing Stephan v. United States, 319 U.S. 423, 426, 63 S.Ct. 1135, 1136, 87 L.Ed. 1490 (1943)), and the particular Code section has not been enacted into positive law, the Court confines its interpretation to the statute as enacted, and not as subsequently codified.

      . Codified at 30 U.S.C. § 207(b). This Section waives the requirement of continued operation where the operations “are interrupted by strikes, the elements, or casualties not attributable to the lessee." Plaintiffs make no claim that this exception applies to them.

      . In support of their common-usage argument, plaintiffs rely on Mills Music, Inc. v. Snyder, — U.S. -, -, 105 S.Ct. 638, 646, 83 L.Ed.2d 556 (1985), in which the Supreme Court construed a subsection of the copyright law, 17 U.S.C. § 304(c)(6)(A), which uses the word “grant" three times within a single sentence. The Court stated: "[i]t is logical to assume that the same word has the same meaning when it is twice used earlier in the same sentence.” One cannot wrench a sentence out of the Supreme Court’s opinion in Mills Music and apply it to the statute under review. To do so is to substitute wooden formalism for analysis. In the context of Mills Music, the Supreme Court’s interpretation was, to use its characterization, “logical." No logic compels this interpretation in an entirely different statute.

      . Section 8 of the Act of October 30, 1978, 92 Stat. 2075, changed the title to the Federal Coal Leasing Amendments Act of 1976.

      . The second sentence of Section 3 of the FCLAA reads: “In computing the ten-year period referred to in the preceding sentence, periods of time prior to the date of enactment of the Federal Coal Leasing Amendment Act of 1975 shall not be counted.” As codified, this Section reads: "In computing the ten-year period referred to in the preceding sentence, periods of time prior to August 4, 1976 [the date of enactment of the FCLAA], shall not be counted.”

      . Section 6(a) of the FCLAA provides that any coal lease which is not producing in commercial quantities at the end of ten years shall be terminated. Other mineral leases and other coal leases held by the same lessee are unaffected.

      . Plaintiffs cite H.R.Rep. No. 681, 94th Cong., 1st Sess. 15, 22 (1975); 122 Cong.Rec. 4135 (daily ed., Jan. 21, 1976) (remarks of Rep. Mink); id. at 4143 (remarks of Rep. Drinan); id. at S9883 (daily ed., June 21, 1976) (remarks of Sen. Metcalf).

      . The first passage quoted by plaintiffs reads:
      The problems of speculation are addressed by H.R. 6721, which requires termination of any lease not producing in commercial quantities at the end of 15 years. Old leases ... would be exempt from this provision [FCLAA § 6], except to the extent it might be made applicable upon readjustment of lease terms, but the lessees would be prohibited from acquiring any new Federal leases should they continue to hold old leases 15 years after enactment without producing therefrom.
      H.R.Rep. No. 681, 94th Cong., 2d Sess. 15 (1975), U.S.Code Cong. & Admin. News 1976, p. 1951.
      The second passage reads:
      [Section 3] would bar the issuance of new leases to any individual or corporations that have held a lease for a period of 15 years, beginning on the date of enactment of the Federal Coal Leasing Amendments Act of 1975, without producing coal therefrom.

        Id. at 22, U.S.Code Cong. & Admin.News 1976, p. 1958. Subsequent to its passage by the House, the FCLAA was amended to change “15 years” to “10 years."

      . Plaintiffs also cite in support of their of the word “lease" reading an unenacted floor amendment proposed by Representative Hughes which contained the words "lease or leases under the terms of this Act.” See 122 Cong.Rec. 4161 (daily ed. Jan. 21, 1976). Plaintiffs contend that Representative Hughes confirmed that these words in his amendment dealt only with coal leases, and also that Congress’ consideration of this amendment, which was ultimately defeated, shows Congress’ understanding that these words means "coal leases.”
      Hughes’ amendment was intended to forbid entirely oil and gas companies from obtaining coal leases, in an attempt to prohibit increasing concentration in the field of energy. See id. The brief debate on the amendment was confined to its substantive provisions. There was no discussion of the precise meaning of the words “lease or leases under the terms of this Act.” See id. at 161-63.
      The Court finds irrelevant to this case the entire congressional debate surrounding Representative Hughes' amendment. There is in the debate no indication of what Congress, as opposed to Representative Hughes, understood his language to mean. Since the amendment was defeated, Congress had neither occasion nor need to harmonize the language of this amendment with the language of the statute as passed. The Court is unimpressed that Representative Hughes himself understood the words "lease or leases under the terms of this Act" to refer to "coal lease or leases.” An individual legislator may well be personally confused as to the meaning of a statutory phrase; the Court will not attribute to the Congress as a whole an individual legislator’s interpretation, particularly where it is a phrase from an unenacted floor amendment whose exegesis plaintiff offers as authoritative for the statute as a whole.

      . Not only interior officials charged with enactment of this section, but the chairman of plaintiff Consolidated Coal in testimony to Congress understood this to be the recognized interpretation of Section 3. See Amending the Mineral Leasing Act of 1920: Hearing on S. 1634 Before the Subcomm. on Energy and Mineral Resources of the Sen. Comm. on Energy and Natural Resources, 98th Cong., 1st Sess. 176 (1983) (statement of B.R. "Bobby” Brown, Chairman and Chief Executive Officer, Consolidation Coal Co.) (“under Section 3 of FCLAA these [coal] lessees must relinquish all undeveloped [pre-1976 coal] leases ... or they are barred from obtaining any new leases of oil, gas, coal, or any other leasable material’) (emphasis added).

      . See supra note 2 for effective date of the statute.

      . See supra note 2 for the effective date of the statute. '

      . See supra note 2 for the effective date of the statute.