USDA gets all but the line speed issue thrown out of court

The unions are down to one issue with the USDA about new inspection protocols for market hogs, and it is not food safety. After tossing out challenges to how USDA’s Food Safety and Inspection Service assigns inspectors, federal Judge Joan N. Ericksen agreed to hear the “line speed” issue.

Ericksen essentially dismissed about two-thirds of the lawsuit brought by unions against the U.S. Department of Agriculture but allowed the line speed issue to continue to trial. A scheduling conference for the “line speed” trial is now set for May 28 in the U.S. District Court for Minnesota.

Line speeds are not set by the FSIS but determined by market hog establishments on their own under the New Swine Inspection System (NSIS). And while line speed experiments with and without limits have not varied all that much, emotions have carried the day.

Led by the United Food and Commercial Workers Union, the plaintiffs were able to persuade Ericksen that it’s possible the USDA was “arbitrary and capricious” in off-loading any worker safety concerns about line speeds that may come up at a swine slaughter facility to Occupational Safety and Health Administration (OSHA).

FSIS and OSHA have a Memorandum of Understanding for how worker safety would be handled, including some cross-training so food safety personnel could recognize worker safety problems as they occur.

The unions claim that by eliminating line speed limits, it just follows that there will be a risk of injuries to their members. In looking for proof of that claim, Ericksen came up short and ended up in her 23-page ruling to rely on something called “predictive reaction.”

She said the plaintiff’s injury in fact argument is “not merely speculative” because they rely on “the predictable effect of government action on the decisions of third parties.”

As an example, the judge cited challenges to the federal government’s inclusion of a citizenship questionnaire on the 2020 census questionnaire.

“The challenges predicted that the non-citizen households would respond to the census at lower rates, and there, the state would lose out on federal funds distributed on the basis of the state population,” Ericksen wrote.

She said slaughterhouses will increase line speeds above the previous limit, increasing the risk of physical harm to the plaintiff’s members.

“Therefore, like in the census case, the government action will cause a predictable reaction by third parties that significantly increases the risk of harm to plaintiffs’ members,” she wrote.

A page or so later in her ruling, the judge says the plaintiffs’ theory of harm “hardly requires speculation” because people who work in slaughterhouses use sharp knives and work in close quarters.

The unions also wanted a judicial review of the USDA’s inspector assignments, but those parts of its lawsuit were “dismissed without prejudice.” That means they are dropped from this lawsuit on grounds of not having standing, but they may be brought back in the future.

FSIS also found itself put in a sort of “no good deed goes unpunished” position by the judge. “FSIS cannot both lack authority to consider worker safety and hold the authority to enact safety-related requirements,” she wrote.

Changes over the years in how the agency addressed worker safety, including partnering with OSHA, was found to be a problem.

“This internal inconsistency suggests that FSIS engaged in arbitrary decision-making,” Erickson found.

The FSIS began testing the Hazard Analysis and Critical Control Point Inspection Models Project or HIMP in 1996 to find more foodborne pathogens in poultry and pork. Those inspections procedures, built around spotting defective carcasses, were little changed since meat inspection began in 1906.

The new inspection protocols did not become available outside HIMP until 2014 for poultry and 2019 for pork.

Poultry and pork production employees are susceptible to musculoskeletal disorders from repetitive motions on the job. National Institute for Occupational Safety and Health studies have cited line speeds as contributing to such problems.

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Source: USDA gets all but the line speed issue thrown out of court

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