A Minnesota federal court has ruled that the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) violated the Administrative Procedures Act (APA) when it adopted the New Swine Inspection System (NSIS), which eliminated line speed limits for pork processing. United Food & Com. Workers Union, Local 663 v. USDA, No. 19-2660 (D. Minn., entered March 31, 2021). The court found that the final rule establishing the NSIS “contains no discussion, analysis, or evaluation of the worker safety comments” that it received during the notice-and-comment period.

“The only response FSIS gave to the worker safety comments it solicited was to state that it lacked authority to regulate worker safety. In context, the agency appeared to suggest that it wanted to consider the comments but was not legally permitted to do so,” the court held. “By offering its lack of legal authority and expertise on worker safety as its only response to the safety-related comments, FSIS gave the clear impression that it was rejecting the comments as legally impermissible considerations.” Because FSIS did have the authority to consider worker safety, the court held, the implication was misleading. “FSIS could not simply disregard important policy considerations it had previously identified because of a conclusion about the scope of its legal authority. FSIS had identified safety concerns in the Proposed Rule and had recently declined to increase poultry line speeds because of safety issues. Those concerns involved ‘important policy choices’ that the agency needed to address because it had flagged those choices as important considerations.”

“The agency’s rejection of worker safety concerns is not merely a technicality. It had wide-reaching implications for workers and pork plant operators. Many of these stakeholders submitted comments directly addressing the issue. As the comments to the Proposed Rule demonstrate, there are compelling arguments on all sides of the issue. Members of the pork industry advocated for the elimination of line speed limits because it would allow them to increase production and realize economic efficiencies. On the other hand, workers raised concerns about their physical health and safety in the absence of line speed limits. ‘Making that difficult decision was the agency’s job, but the agency failed to do it.'”

Ruling that FSIS acted arbitrarily and capriciously in violation of the APA, the court vacated the final rule establishing the NSIS and remanded the case to FSIS for further consideration.

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