A federal judge has vacated the portion of USDA’s 2019 swine inspection rule allowing plants to operate without limits on line speeds but gave the department 90 days to decide how to respond.
The three-month stay of the decision “will allow the agency to decide how to proceed in light of this opinion and give regulated entities time to prepare for any operational change,” U.S. District Judge Joan Ericksen in Minnesota said in her decision Wednesday, March 31.
"This is an important decision and we are reviewing it closely in light of the authorities, mission and mandate of the Food Safety and Inspection Service," a USDA spokesperson said. "The Administration is deeply committed to worker safety and a safe, reliable food supply."
The lawsuit was brought by the United Food & Commercial Workers International Union and three of its local chapters.
“The court’s decision recognized that Trump’s USDA violated basic principles of administrative law when it refused to consider the impact of its actions on plant workers and claimed, contrary to its longstanding practice, that it was not allowed to do so," said Public Citizen attorney Adam Pulver, lead counsel on the case. "An agency can’t put its hands over its ears and refuse to consider facts that cut against its policy preferences, as USDA did here in ignoring workers and public health advocates, and blindly following industry’s wishes.”
North American Meat Institute spokesperson Sarah Little said NAMI "is disappointed in the ruling, especially following the 20 years of study through the pilot, the HACCP-Based Inspection Model Project (HIMP). We are still reading through the order and do not know of USDA’s next steps." She also said NAMI “offered compelling evidence about the safety of workers in HIMP/NSIS in our amicus brief. For these reasons, we would like to see the agency appeal and ask for a stay.” NAMI filed an amicus brief in the case with the National Pork Producers Council supporting the government.
Ericksen found that the Food Safety and Inspection Service failed to explain why it did not factor worker safety into its decision to adopt the New Swine Inspection System.
“When FSIS proposed the NSIS, it expressly identified worker safety as an important consideration and requested public comment on whether increasing line speeds would harm workers,” the judge said in her order.
“Then, after receiving many comments raising worker safety concerns, FSIS rejected the comments and eliminated line speed limits without considering worker safety,” she said. That was a violation of the Administrative Procedure Act’s requirement to engage in “reasoned decision-making,” she concluded.
While conceding “there is some evidence to suggest that line speeds do not increase worker injury rates,” Ericksen concluded “the weight of the evidence clearly demonstrates that line speeds are a risk factor that will increase the already hazardous conditions faced by workers.”
Those risks “are not merely speculative,” Ericksen said, but are supported by “several academic studies” and government research conducted by the National Institute for Occupational Safety and Health as well as recommendations from the Occupational Safety and Health Administration and the Government Accountability Office.
In the decision, Ericksen cited statements from workers detailing the risks of increased line speeds.
“Union members on the evisceration line state that they are more likely to be injured by lacerations when working at faster speeds to keep pace with the line,” she said. “When the evisceration line moves faster, the kill floor workers must keep pace with the line. These workers state that hog carcasses will sometimes fall from the hooks, injuring workers, and that this risk increases as they work at higher speeds.”
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In its proposed NSIS rule, FSIS said it “recognizes that evaluation of the effects of line speed on food safety should include the effects of line speed on establishment employee safety.” But when the final rule was adopted, FSIS said it lacked authority to regulate worker safety.
“FSIS historically held the position that although it could not enact regulatory requirements related solely to worker safety, it could consider the effects its actions may have on worker safety,” the judge said.
“USDA argues that the final rule is consistent with this position because FSIS considered worker safety when it adopted the rule,” she continued. “However, there is nothing in the final rule that suggests it did so. While FSIS summarized the comments it received about worker safety, the final rule contains no discussion, analysis, or evaluation of the worker safety comments.”
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This story has been updated to include a comment from the North American Meat Institute.