USDA check of safety data used for pork-processing line speed rule inadequate, OIG concludes

Washington — The U.S. Department of Agriculture “did not take adequate steps to determine whether the worker safety data it used … were reliable” when proposing a controversial rule that removes line speeds in pork-processing plants and transfers certain inspection responsibilities to plant workers, the USDA Office of Inspector General concludes in a report released June 25.

USDA published the proposed rule in the Feb. 1, 2018, Federal Register. Under the final rule – published in the Oct. 1 Federal Register and effective Dec. 2 – FSIS established an optional New Swine Slaughter Inspection System that revokes the current maximum line speed of 1,106 hogs per hour at participating processing plants.

Additionally, the rule requires all plants to establish written sanitary dressing plans and develop process control for intestinal pathogens that may trigger foodborne illnesses. USDA retains full charge of carcass inspections and animal preslaughter examinations while maintaining “the ability to slow or stop the (processing) line, as needed.”

In June 2019, multiple media outlets obtained a letter confirming the USDA OIG’s intent to investigate the effectiveness and integrity of the procedures USDA used to develop its proposal.

Responding to concerns posed by Sen. Dick Durbin (D-IL), USDA Inspector General Phyllis Fong sent a letter addressed to Durbin and 15 fellow members of Congress outlining OIG’s intended objective to determine whether FSIS:

• Complied with public transparency requirements under Executive Order 13563.
• Adhered to USDA Data Quality Guidelines in developing the proposed rule.
• Reached a reasonable determination about the reliability of the OSHA injury data to develop the proposed rule.
• Consulted with OSHA and NIOSH about the impact of the proposed regulation on workplace safety and health.
• Made information about its preliminary analysis on worker safety clearly accessible to the public during the comment period.

“This report confirms my concerns: that FSIS was not forthcoming about its worker safety analysis and used questionable data in developing a dangerous change to meat plant operations,” Durbin told Safety+Health. “Sacrificing worker safety for industry profits is unacceptable, and FSIS has earned the doubt and scrutiny it received through this report. I’m glad the OIG has recommended that FSIS update its rulemaking procedures and improve communication with the public.”

In its report, OIG recommends USDA’s Food Safety and Inspection Service “update its internal procedures for the rulemaking process, determine the impact of the omissions from the proposed rule, and communicate to the public the actual review period and known limitations” of the OSHA data for large plants with different allowed line speeds that FSIS used in its worker safety analysis.

In response to a draft of the final report, FSIS Administrator Paul Kiecker wrote: “FSIS believes that the report’s findings and recommendations are derived from the misapplication of E.O. 13563 and the USDA Information Quality Activities Guidelines to an analysis in the NSIS proposal, as well as from a distorted emphasis placed by the auditors on minor errors made in the proposal text.”

Asked for comment on the final report, an FSIS spokesperson echoed Kiecker’s position, telling S+H the errors made in the presentation of the analysis already were corrected, while the preliminary worker safety analysis “was neither prepared nor published in support of the proposal.”

Adam Pulver, an attorney for the watchdog group Public Citizen – which in October joined a coalition of labor unions in suing USDA over the final rule, issued a statement June 24.

“The inspector general confirmed what worker and consumer advocates have been stating for more than a year: In its rush to deregulate, the USDA failed to meaningfully consider the impacts of eliminating line speed maximums for swine slaughter facilities on workers,” the statement reads.

The proposal cited analysis of Bureau of Labor Statistics data showing that, when compared with traditional plants, establishments operating under the Hazard Analysis and Critical Control Point Inspection Models Project – a 1990s pilot program (known as HIMP) that allowed lines to run faster than current limits – “demonstrated that they are capable of consistently producing safe, wholesome and unadulterated pork products.”

In December 2018, Debbie Berkowitz, director of workplace health and safety programs at the National Employment Law Project, issued a statement questioning the validity of the analysis after obtaining a copy through a Freedom of Information Act request.

In a separate release that month, NELP highlighted a review by two experts from Texas State University showing that USDA compared injury rates from traditional plants with those from five HIMP plants, each of which were self-nominated for the program, and thus likely differed from traditional plants in areas such as age, maintenance, OSHA inspection experience and worker training.