Case 1:20-cv-02045-TJK Document 1 Filed 07/28/20 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Action No. 1:20-cv-2045
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`UNITED FOOD AND COMMERCIAL
`WORKERS UNION, LOCAL No. 227,
`330 Pinecroft Drive
`Louisville, KY 40219;
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`UNITED FOOD AND COMMERCIAL
`WORKERS UNION, LOCAL No. 1529,
`8205 Macon Road
`Cordova, TN 38018;
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`UNITED FOOD AND COMMERCIAL
`WORKERS UNION, LOCAL No. 1995,
`4207 Lebanon Road, Suite 100
`Hermitage, TN 37076;
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`UNITED FOOD AND COMMERCIAL
`WORKERS UNION, LOCAL No. 2008,
`7924 Interstate 30, Suite A
`Little Rock, AR 72209-2900;
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`RETAIL, WHOLESALE AND
`DEPARTMENT STORE UNION – MID
`SOUTH COUNCIL,
`1901 10th Avenue South
`Birmingham, AL 35205-2601
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`UNITED FOOD AND COMMERCIAL
`WORKERS UNION, AFL-CIO, CLC,
`1775 K Street, NW
`Washington, DC 20006,
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` Plaintiffs,
` v.
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`UNITED STATES DEPARTMENT OF
`AGRICULTURE,
`1400 Independence Avenue, SW
`Washington, DC 20250-1400
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` Defendant.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 1:20-cv-02045-TJK Document 1 Filed 07/28/20 Page 2 of 19
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`INTRODUCTION
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`Plaintiffs, five local labor unions and their affiliated international labor union, bring
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`1.
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`this action pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 702 & 706(2), to set
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`aside a waiver program adopted by defendant United States Department of Agriculture (USDA)
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`through its Food Safety Inspection Service (FSIS) and seven waivers granted by FSIS to poultry
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`plants at which Plaintiffs’ members work. FSIS adopted the waiver program without using
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`procedures required by the APA, and the program is arbitrary and capricious.
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`2.
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`FSIS’s waiver program permits plants that obtain a waiver to exceed the maximum
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`line speed set forth in a regulation that FSIS adopted in 2014. When FSIS issued its 2014
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`regulation, it considered an extensive rulemaking record demonstrating the harms that faster line
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`speeds can cause poultry workers. On the basis of that rulemaking record, FSIS abandoned a
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`proposal to allow poultry processing plants to operate at a maximum line speed of 175 birds per
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`minute (bpm), instead capping the maximum line speed at 140 bpm and adopting other regulations
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`designed to protect worker safety at poultry processing plants.
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`3.
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`With its new waiver program, FSIS reversed course, creating a program under
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`which plants can operate at speeds up to 175 bpm. As a result, although the 2014 regulation
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`adopted through notice-and-comment rulemaking states a maximum line speed of 140 bpm, FSIS
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`now permits nearly 43 percent of all plants subject to that regulation to operate at 175 bpm.
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`4.
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`In adopting the new waiver program, FSIS ignored concerns—raised by plaintiff
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`UFCW and others—that increasing line speeds at poultry processing plants would increase the risk
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`of injury to workers on the line. Instead, the agency asserted that it lacked the legal authority to
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`address worker safety concerns, even as it acknowledged that it had considered and addressed
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`worker safety concerns in its 2014 rulemaking.
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`Case 1:20-cv-02045-TJK Document 1 Filed 07/28/20 Page 3 of 19
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`5.
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`FSIS did not promulgate its new waiver program through notice-and-comment
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`rulemaking procedures. Instead, FSIS sought to justify the new program as an application of an
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`existing waiver regulation through which FSIS may grant waivers to experiment with new
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`technologies to facilitate “definite improvements.” The new waiver program does not fall within
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`that regulation, however, because faster line speeds are neither a new technology nor a definite
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`improvement.
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`6.
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`FSIS’s failure to consider and address the impact of its actions on worker safety
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`violates basic standards of reasoned decisionmaking, and its unexplained departure from the
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`conclusions set forth in its 2014 rulemaking represents classic arbitrary and capricious action. In
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`addition, FSIS violated the APA’s procedural requirements by failing to undertake notice-and-
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`comment rulemaking procedures to adopt its new waiver program. For these reasons and those set
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`forth below, the waiver program and waivers granted under it violate the APA and must be vacated.
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`JURISDICTION AND VENUE
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`This Court has jurisdiction under 28 U.S.C. § 1331.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1) and 5 U.S.C.
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`7.
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`8.
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`§ 703 because defendant resides in this district.
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`PARTIES
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`9.
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`Plaintiff United Food and Commercial Workers Union, Local No. 227 is a labor
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`organization headquartered in Louisville, Kentucky. Local 227 represents workers who work on
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`the poultry processing line in Tyson Foods plants in Robards, Kentucky (FSIS Establishment No.
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`P-19514) and Corydon, Indiana (FSIS Establishment No. P-1241). In April 2020, the Robards and
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`Corydon plants received waivers from FSIS that allow each plant to increase its line speed from
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`140 birds per minute to 175 birds per minute.
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`10.
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`Plaintiff United Food and Commercial Workers Union, Local No. 1529 is a labor
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`organization headquartered in Cordova, Tennessee. Local 1529 represents workers who work on
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`the poultry processing line in the Wayne Farms plant in Laurel, Mississippi (FSIS Establishment
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`No. P-519). In April 2020, the Laurel plant received a waiver from FSIS that allows the plant to
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`increase its line speed from 140 birds per minute to 175 birds per minute.
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`11.
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`Plaintiff United Food and Commercial Workers Union, Local No. 1995 is a labor
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`organization headquartered in Hermitage, Tennessee. Local 1995 represents workers who work on
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`the poultry processing line in the Wayne Farms plant in Albertville, Alabama (FSIS Establishment
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`No. P-1317). In April 2020, the Albertville plant received a waiver from FSIS that allows the plant
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`to increase its line speed from 140 birds per minute to 175 birds per minute.
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`12.
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`Plaintiff United Food and Commercial Workers Union, Local No. 2008 is a labor
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`organization headquartered in Little Rock, Arkansas. Local 2008 represents workers who work on
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`the poultry processing line in the Wayne Farms plant in Danville, Arkansas (FSIS Establishment
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`No. P-1009), and in the Tyson Foods plants in Dardanelle, Arkansas (FSIS Establishment No. P-
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`72) and Noel, Missouri (FSIS Establishment No. P-1362). In September 2019, the Dardanelle plant
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`received a waiver from FSIS that allows the plant to increase its line speed from 140 birds per
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`minute to 175 birds per minute. In April 2020, the Danville and Noel plants received waivers from
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`FSIS that allow each plant to increase its line speed from 140 birds per minute to 175 birds per
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`minute.
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`13.
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`Plaintiff Retail, Wholesale and Department Store Union – Mid South Council (Mid-
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`South) is a labor organization headquartered in Birmingham, Alabama. Mid-South represents
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`workers who work on the poultry processing line in the Wayne Farms plants in Jack, Alabama
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`(FSIS Establishment No. P-7485) and Decatur, Alabama (FSIS Establishment No. P-1235), and in
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`the Tyson Foods plant in Forest, Mississippi (FSIS Establishment No. P-164). In September 2019,
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`the Jack plant received a waiver from FSIS that allows the plant to increase its line speed from 140
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`birds per minute to 175 birds per minute. In April 2020, the Decatur and Forest plants received
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`waivers from FSIS that allow each plant to increase its line speed from 140 birds per minute to
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`175 birds per minute.
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`14.
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`Plaintiff United Food and Commercial Workers International Union (UFCW) is an
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`international labor organization headquartered in Washington, DC. It has approximately 1.3
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`million members and represents approximately 180,400 workers in the meat and poultry
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`processing industry. It represents approximately 70,600 poultry processing workers. Members of
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`UFCW Local 227, UFCW Local 1529, UFCW Local 1995, UFCW Local 2008, and Mid-South
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`are also members of UFCW.
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`15.
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`Defendant U.S. Department of Agriculture is an agency of the United States within
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`the meaning of the APA.
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`Poultry Processing and Worker Safety
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`FACTS
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`16.
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`In the United States, chickens are slaughtered for meat primarily in poultry
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`processing plants regulated by FSIS. These plants take in live birds and convert them into food
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`products ready to be packaged and shipped to restaurants and retail outlets.
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`17.
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`Despite the increasing use of automation, plants continue to rely on human workers
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`to perform many tasks involved in transforming live chickens into poultry products.
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`18.
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`The process of converting live birds into food products is organized around “lines.”
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`Workers hang chickens on the lines that will carry their carcasses throughout the plant. Workers
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`use saws, knives, scissors, and other tools to cut up and debone the birds prior to packaging. The
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`workplace environment is often coated with grease and blood, and workers must stand in close
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`quarters to ensure that they can keep up with the speed at which the poultry is moving down the
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`line.
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`19.
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`Poultry processing is highly dangerous for workers on the line.
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`20. Musculoskeletal problems—such as carpal tunnel syndrome (CTS), tendonitis, and
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`“trigger finger”—are “common” among poultry workers and “of particular concern.” Memo from
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`Thomas Galassi, Director Directorate of Enforcement Programs, Occupational Health and Safety
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`Administration,
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`to Regional Administrators and State Designees
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`(Oct. 28, 2015),
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`https://www.osha.gov/dep/enforcement/poultry_processing_10282015.html. Musculoskeletal
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`disorders arise because workers need to make thousands of repetitive movements each work day
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`to process chicken carcasses into food product that is suitable for human consumption. In 2013,
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`poultry workers suffered CTS at “more than seven times the national average,” and they were more
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`than “4.5 times more likely to identify repetitive motion as the exposure resulting in a serious
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`injury” as compared to all industries. Id. Likewise, the Department of Labor’s Occupational Health
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`and Safety Administration (OSHA) has noted, based on 2017 data, that the CTS rate for poultry
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`workers is 4.3 times higher than for workers in all of private industry. OSHA Regional Instruction,
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`Region IV, Directive No. CPL-2 02-02-030A, Executive Summary (effective date Oct. 1, 2019),
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`at 2, https://www.osha.gov/sites/default/files/enforcement/directives/CPL_2_02-02-030A.pdf.
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`21.
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`Poultry workers are also at heightened risk of suffering acute physical injuries.
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`According to 2017 data, poultry workers suffer amputations at twice the rate as workers in private
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`industries generally. Id. at 4. One recent analysis showed that the poultry industry ranks as the
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`fourteenth most dangerous industry for workers. Indeed, an average of eight workers per year died
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`on the job between 2013 and 2017 (excluding transportation-related injuries). Human Rights
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`Watch, When We’re Dead and Buried, Our Bones Will Keep Hurting: Workers’ Rights under
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`Threat
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`in Meat
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`and Poultry Plants
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`30 &
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`n.66
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`(2019)
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`(HRW Report),
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`https://www.hrw.org/sites/default/files/report_pdf/us0919_web.pdf. Sprains,
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`lacerations, and
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`contusions are common acute injuries suffered by workers in poultry processing establishments.
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`22.
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`Federal and private research, as well as workers’ experiences, point to work speed
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`as a “major contributing factor” to the high injury rates suffered by poultry workers. HRW Report
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`49 (citing studies). When the same number of employees process more birds to match an increase
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`in line speed, the number of repetitive motions they must undertake increases, which increases the
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`risk of long-term musculoskeletal disorders; and the faster the workers must process chickens, the
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`greater the risk of acute physical injuries. Id.
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`23.
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`As the National Institute for Occupational Safety and Health (NIOSH) explained to
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`FSIS in 2014, the risk of carpel tunnel syndrome for workers in poultry processing plants arises
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`from “the repetitive and forceful motions required by exposed workers to process poultry,” and
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`“[l]ine speed affects the periodicity of repetitive and forceful movements, which are the key causes
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`of musculoskeletal disorders.” Letter from John Howard, Director, to Alfred V. Almanza,
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`Administrator, FSIS (Apr. 4, 2014), at 2–3, https://www.cdc.gov/niosh/topics/poultry/pdfs/
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`LTR.Almanza.7.April_.2014.pdf.
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`24.
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`FSIS has acknowledged that an increase in line speed may affect “the safety of
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`establishment workers.” See Final Rule, Modernization of Poultry Slaughter Inspection, 79 Fed.
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`Reg. 49,565, 49,600 (Aug. 21, 2014) (Final Rule). Referring to NIOSH’s findings, FSIS noted “a
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`strong relationship between risk factors, such as prolonged or repetitive hand activity, gripping
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`force and exposure to cold, and [musculoskeletal disorders] including carpel tunnel syndrome” in
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`poultry processing. Id. at 49,598. And it concluded that “[i]ncreasing line speed in processing,
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`without changing other factors, could result in an increase of work pace for establishment
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`employees, and increasing work pace among establishment employees, without taking appropriate
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`mitigation actions, could increase risk of injuries and illnesses among establishment employees.”
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`Id.
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`FSIS’s Regulation of Poultry Line Speed
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`25.
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`FSIS regulates poultry line speeds pursuant to the Poultry Products Inspection Act
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`(the Act). The Act “provide[s] for the inspection of poultry and poultry products and otherwise
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`regulate[s] the processing and distribution of such articles” to prevent the sale of “poultry products
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`which are adulterated or misbranded.” 21 U.S.C. § 452. Poultry establishments are prohibited from
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`processing poultry products in a manner that does not comply with the Act’s requirements. Id.
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`§ 459(a).
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`26.
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`FSIS regulations require that all poultry products processed in an establishment be
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`inspected to ensure compliance with the Act’s requirements. 9 C.F.R. §§ 381.7; 381.76(a).
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`27.
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`FSIS regulations authorize six types of inspection systems for poultry. Id.
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`§ 381.76(b)(1). For each of these systems, the regulations establish a maximum line speed at which
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`the establishment can operate. The maximum line speed, measured in “birds per minute,”
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`“reflect[s] the time it takes for an inspector to effectively perform the online carcass inspection
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`procedures.” See Final Rule, 79 Fed. Reg. at 49,567; see also 9 C.F.R. §§ 381.67, 381.69,
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`381.76(b)(3)(ii)(b), 381.76(b)(4)(iv) (establishing maximum line speeds for various poultry
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`inspection systems).
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`28.
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`The newest of FSIS’s poultry inspection systems is called the New Poultry
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`Inspection System (NPIS). The NPIS differs from previous poultry inspection systems in that it
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`relies on establishment employees to sort and remove unacceptable carcasses before birds are
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`inspected.
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`29. When FSIS proposed the NPIS in 2012, it proposed setting the maximum line speed
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`at 175 bpm—a twenty-five percent increase from the fastest maximum line speed (140 bpm)
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`permitted under other inspection systems. Proposed Rule, Modernization of Poultry Slaughter
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`Inspection, 77 Fed. Reg. 4407, 4423 (Apr. 26, 2012) (Proposed Rule).
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`30.
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`FSIS recognized in the Proposed Rule that it should consider the effects of line
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`speed on establishment worker safety. Id. at 4423.
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`31.
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`In extending the period for commenting on the Proposed Rule, FSIS reiterated that
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`it had “consider[ed] the potential effects on [worker] safety” and that it was “interested in
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`comments on the effects of line speed and worker safety.” Notice, Extension of Comment Period,
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`Modernization of Poultry Slaughter Inspection, 77 Fed. Reg. 24,873, 24,875 (Apr. 26, 2012).
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`32.
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`33.
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`FSIS adopted a final rule creating NPIS in 2014. Final Rule, 79 Fed. Reg. 49,565.
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`In the Final Rule, FSIS did not adopt its proposal to allow poultry establishments
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`to operate at 175 bpm. Id. at 49,591. Instead, under NPIS, the maximum line speed is set by
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`regulation at 140 bpm. 9 C.F.R. § 381.69(a).
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`34.
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`In setting the maximum line speed at 140 bpm, FSIS cited data from poultry
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`processing plants that had previously received line-speed waivers pursuant to an FSIS pilot study.
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`Final Rule, 79 Fed. Reg. at 49,590–91. Although those waivers authorized the plants to operate
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`lines at 175 bpm, FSIS noted that the average speed at which those plants operated was 131 bpm.
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`Id.; see also Evaluation of HACCP Inspection Models (HIMP), USDA, FSIS (Aug. 2011), at 11,
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`https://www.fsis.usda.gov/shared/PDF/Evaluation_HACCP_HIMP.pdf. FSIS relied on
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`that
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`evidence in setting the maximum line speed for NPIS at 140 bpm. Final Rule, 79 Fed. Reg. at
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`49,591.
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`35.
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`FSIS permitted the establishments under the pilot study to continue operating at a
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`maximum line speed of 175 bpm. Id. FSIS anticipated comparing the data from the establishments
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`in the pilot study with data from establishments that had converted to NPIS.
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`36.
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`FSIS noted that it had received extensive comments about the effects on worker
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`safety of increasing the line-speed limit. Final Rule, 79 Fed. Reg. at 49,598. These commenters
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`“were concerned that an increase in production line speed would lead to increased rates of
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`musculoskeletal disorders, other traumatic injuries, and potentially adverse health effects of
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`psychological and emotional stress among industry workers, particularly in processing jobs
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`involving highly repetitive knife use.” Id.
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`37.
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`FSIS acknowledged that “[i]ncreasing line speed in processing, without changing
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`other factors, could result in an increase of work pace for establishment employees,” which, in
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`turn, could, “increase risk of injuries and illnesses among establishment employees.” Id.
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`38.
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`To address concerns about worker safety, FSIS “establish[ed] a new subpart” in its
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`regulations that require poultry establishments to attest that they “maintain[] a program to monitor
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`and document any work-related conditions that arise among establishment workers.” Id. at 49,600.
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`39.
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`FSIS also revised its regulations to provide that NPIS establishments must “comply
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`with all other applicable requirements of the law,” including, specifically, 29 U.S.C. § 654(a). Id.
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`at 49,597. Section 654(a) of Title 29 requires each employer to “furnish to each of his employees
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`employment and a place of employment which are free from recognized hazards that are causing
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`or are likely to cause death or serious physical harm to his employees.”
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`40.
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`FSIS also promised that it would “consider the available data on employee effects
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`collected from NIOSH activities when implementing the final rule.” Final Rule, 79 Fed. Reg. at
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`49,596.
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`The 2018 Waiver Program
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`41.
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`In September 2017, the National Chicken Council, a trade association for the broiler
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`chicken industry, petitioned FSIS to waive the maximum line speed regulation for NPIS plants.
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`See Petition to Permit Waivers of the Maximum Line Speed Rates for Young Chicken Slaughter
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`Establishments under the New Poultry Inspection System and Salmonella Initiative Program,
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`National
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`Chicken
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`Council
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`(Sept.
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`1,
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`2017)
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`(NCC
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`Petition),
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`at
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`1,
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`https://www.fsis.usda.gov/wps/wcm/connect/7734f5cf-05d9-4f89-a7eb-6d85037ad2a7/17-05-
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`Petition-National-Chicken-Council-09012017.pdf?MOD=AJPERES.
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`42.
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`FSIS treated the NCC Petition as a petition for rulemaking and sought comment on
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`the petition. FSIS received over 100,000 comments in response to the NCC Petition. Letter from
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`Carmen Rottenberg, Acting Deputy Under Secretary, Office of Food Safety, to Michael Brown,
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`President, National Chicken Council
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`(Jan. 29, 2018)
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`(FSIS Denial Letter), at 2,
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`https://www.fsis.usda.gov/wps/wcm/connect/235092cf-e3c0-4285-9560-e60cf6956df8/17-05-
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`FSIS-Response-Letter-01292018.pdf?MOD=AJPERES.
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`43.
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`UFCW submitted comments explaining that eliminating line-speed restrictions
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`“will put hard-working poultry workers at greater risk of being injured.” Comments of UFCW to
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`NCC Petition (Dec. 12, 2017), at 1; see also Comments of Oxfam America (Oct. 12, 2017)
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`(addressing worker safety issues); Comments of Southern Poverty Law Center (Oct. 13, 2017)
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`(same); Comments of Interfaith Worker Justice (Dec. 12, 2017) (same).
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`44.
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`Other commenters argued that FSIS could not grant the NCC Petition under
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`existing regulations, that the petition was inconsistent with the agency’s stated position on line
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`speed in the Final Rule, and that the maximum line speed could not be changed without
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`undertaking notice-and-comment rulemaking under the APA. Comments of National Employment
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`Law Project (Dec. 11, 2017), at 2–9; Comments of Food & Water Watch (Oct. 5, 2017), at 1–3.
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`45.
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`FSIS denied NCC’s petition in January 2018. At the same time, FSIS stated its
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`intent to “make available criteria that it will use to consider waiver requests from young chicken
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`establishments, in addition to the current twenty [operating under the pilot program], to operate at
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`line speeds of up to 175 bpm.” FSIS Denial Letter at 2.
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`46.
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`FSIS subsequently announced its line-speed waiver criteria through two
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`documents.
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`47.
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`First, on February 23, 2018, FSIS issued a “Constituent Update” that set forth
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`“FSIS’ Criteria for Consideration of Waiver Requests from Young Chicken Establishments to
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`Operate at Line Speeds Up to 175 Birds Per Minute.” 21 FSIS Constituent Update No. 19 (Feb.
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`23, 2018) (2018 Constituent Update), https://www.fsis.usda.gov/wps/wcm/connect/ee977696-
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`7f87-4b87-8717-15a824ce0a81/ConstiUpdate022318.pdf?MOD=AJPERES&CONVERT_TO
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`=url&CACHEID=ee977696-7f87-4b87-8717-15a824ce0a81.
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`48.
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`Second, on September 28, 2018, FSIS published a notice in the Federal Register
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`that elaborated on and modified the waiver criteria set out in the 2018 Constituent Update and
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`responded to comments submitted in response to the NCC Petition. See Notice, Petition To Permit
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`Waivers of Maximum Line Speeds for Young Chicken Establishments Operating Under the New
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`Poultry Inspection System; Criteria for Consideration of Waiver Requests for Young Chicken
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`Establishments To Operate at Line Speeds of Up to 175 Birds per Minute, 83 Fed. Reg. 49,048
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`(Sept. 28, 2018) (2018 Waiver Notice).
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`49.
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`Under the February and September documents (together, the 2018 Waiver
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`Program), an NPIS establishment may apply for a waiver to operate lines at up to 175 bpm if it (1)
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`has been operating in compliance with NPIS requirements for at least one year, (2) is in one of the
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`top two “Salmonella performance standard categor[ies],” (3) has a “demonstrated history of
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`regulatory compliance,” and (4) is “able to demonstrate that the new equipment, technologies, or
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`procedures that allow the establishment to operate at faster line speeds will maintain or improve
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`food safety.” 2018 Constituent Update at 1; see also 2018 Waiver Notice, 83 Fed. Reg. at 49,050
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`(adding “good commercial practices” regarding the humane slaughtering of birds as a regulatory-
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`compliance criterion).
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`50.
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`The establishment must document how increased line speed will not negatively
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`impact the safety of FSIS employees. 2018 Constituent Update at 2.
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`51.
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`FSIS does not require a waiver applicant to demonstrate that increased line speed
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`will not negatively impact plant workers.
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`52.
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`FSIS does not require a waiver applicant to demonstrate that faster line speeds will
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`improve food safety. 2018 Constituent Update at 2.
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`53.
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`FSIS asserted that it adopted the 2018 Waiver Program to allow NPIS
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`establishments to test new technologies, citing 9 C.F.R. § 381.3(b), which authorizes waivers to
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`test new technologies that would “facilitate definite improvements.” See 2018 Constituent Update
`
`1; see also 2018 Waiver Notice, 83 Fed. Reg. at 49,048.
`
`54.
`
`The 2018 Waiver Program treats faster line speeds as a new technology.
`
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`Case 1:20-cv-02045-TJK Document 1 Filed 07/28/20 Page 14 of 19
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`55.
`
`The 2018 Waiver Program treats faster line speeds as a “definite improvement[]”
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`even if it does not result in an improvement in food safety.
`
`56.
`
`The 2018 Waiver Program does not address the effect of line-speed increases on
`
`establishment worker safety, although FSIS received comments addressing the risk to worker
`
`safety in response to the NCC Petition.
`
`57.
`
`In adopting the 2018 Waiver Program, FSIS stated that it “has neither the legal
`
`authority nor the expertise to regulate or enforce workplace standards for establishment
`
`employees.” 2018 Waiver Notice, 83 Fed. Reg. at 49,057.
`
`58.
`
`FSIS acknowledged that it had adopted regulations in the Final Rule that address
`
`worker safety. Id. FSIS did not explain why it now believed that it lacked the legal authority to
`
`deny or condition waivers to protect worker safety at establishments operating at faster line speeds.
`
`59.
`
`An NPIS establishment that receives a waiver “will routinely need to operate at
`
`least one line at speeds above 140 bpm on average” to avoid the risk of having the waiver revoked.
`
`2018 Waiver Notice, 83 Fed. Reg. at 49,051.
`
`60.
`
`In adopting the 2018 Waiver Program, FSIS cited its experience with the
`
`establishments in its pilot program that are authorized to operate at speeds up to 175 bpm. Id.
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`Unlike in the 2014 Final Rule, FSIS did not indicate the average line speed at which these plants
`
`had been operating. FSIS did not provide an explanation of how its experience with those plants
`
`informed its decision to allow additional establishments to operate lines at up to 175 bpm.
`
`61.
`
`FSIS asserted that it intends to use data from plants that received waivers under the
`
`2018 Waiver Program to inform its decision on a future rulemaking. Id. at 49,052. NPIS did not
`
`explain why data from the establishments with waivers under the pilot program did not provide
`
`sufficient information to inform decisions about a future rulemaking. NPIS also did not explain
`
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`Case 1:20-cv-02045-TJK Document 1 Filed 07/28/20 Page 15 of 19
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`why it departed from its statement in the 2014 Final Rule that it intended to compare the data from
`
`the pilot program establishments with data from NPIS establishments “once the NPIS is fully
`
`implemented at most establishments.” Final Rule, 79 Fed. Reg. at 49,591.
`
`62.
`
`FSIS did not publish a notice of proposed rulemaking in the Federal Register before
`
`adopting the 2018 Waiver Program.
`
`Current Status of the 2018 Waiver Program
`
`63.
`
`On April 24, 2020, FSIS announced that, as of March 20, 2020, it was no longer
`
`accepting applications for waivers under the 2018 Waiver Program. 23 FSIS Constituent Update
`
`No. 29 (Apr. 24, 2020).
`
`64.
`
`To date, FSIS has granted new line-speed waivers to 35 chicken processing
`
`establishments under the 2018 Waiver Program. In total, 53 of the 124 NPIS chicken processing
`
`plants currently are authorized to operate lines at 175 bpm.
`
`Application of the 2018 Waiver Program to Plaintiffs’ Members’ Establishments
`
`65.
`
`Each Plaintiff represents workers who work on poultry processing lines at plants
`
`that are subject to the NPIS. Each such plant would be subject to the 140-bpm line-speed limit set
`
`forth in 9 C.F.R. § 381.69(a) but for a waiver granted by FSIS that establishes the maximum line
`
`speed at 175 bpm.
`
`66.
`
`FSIS does not publicly disclose waiver applications under the 2018 Waiver
`
`Program.
`
`67. With respect to the Wayne Farms plant in Danville, Arkansas, Wayne Farms
`
`submitted a line-speed waiver application to FSIS on November 11, 2019. The Danville plant
`
`waiver application did not propose to experiment with any new technology.
`
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`68. With respect to the Wayne Farms plant in Albertville, Alabama, Wayne Farms
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`submitted a line-speed waiver application to FSIS on December 12, 2019. The Albertville plant
`
`waiver application did not propose to experiment with any new technology.
`
`69. With respect to the Tyson Foods plant in Forest, Mississippi, Tyson Foods
`
`submitted a line-speed waiver application to FSIS on an unknown date. The Forestville plant
`
`waiver application did not propose to experiment with any new technology.
`
`70.
`
`On information and belief, Tyson Foods and Wayne Farms submitted line-speed
`
`waiver applications to FSIS for the other plants at which Plaintiffs’ members work that did not
`
`propose to experiment with any new technology.
`
`71.
`
`On information and belief, FSIS applied its 2018 Waiver Program to grant each of
`
`the line-speed waiver applications submitted by the plants at which Plaintiffs’ members work.
`
`72.
`
`On information and belief, in granting these line-speed waivers, FSIS did not
`
`impose any conditions on plants that address the increased risk to worker safety that would result
`
`from an increase in line speed.
`
`73.
`
`The line-speed waivers substantially harm Plaintiffs’ members by authorizing and
`
`requiring Plaintiffs’ members’ employers to operate at least one line at speeds above the 140-bpm
`
`limit set forth in 9 C.F.R. § 381.69, putting those members at substantially increased risk of injury.
`
`74.
`
`75.
`
`The 2018 Waiver Program is final agency action under the APA.
`
`Each line-speed waiver granted pursuant to the 2018 Waiver Program is final
`
`agency action under the APA.
`
`FIRST CAUSE OF ACTION
`(Violation of the APA – Notice and Comment)
`
`The 2018 Waiver Program is a legislative rule under the APA for which prior notice
`
`76.
`
`and an opportunity to comment were required pursuant to 5 U.S.C. § 553 before the rule could be
`
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`issued.
`
`77.
`
`FSIS failed to promulgate the 2018 Waiver Program in accordance with the APA’s
`
`notice-and-comment requirements.
`
`78.
`
`The 2018 Waiver Program was accordingly promulgated “without observance of
`
`procedure required by law.” 5 U.S.C. § 706(2)(D).
`
`SECOND CAUSE OF ACTION
` (Violation of the APA – Action Contrary to Law)
`FSIS’s waiver regulation authorizes FSIS
`to grant waivers
`
`79.
`
`to “permit
`
`experimentation so that new procedures, equipment, and processing techniques may be tested to
`
`facilitate definite improvements.” 9 C.F.R. § 381.3(b).
`
`80.
`
`The 2018 Waiver Program was not adopted for the purpose of permitting
`
`experimentation.
`
`81.
`
`The 2018 Waiver Program incorrectly treats a maximum poultry line speed of 175
`
`bpm as a “new procedure[], equipment, and processing technique[]” for purposes of 9 C.F.R.
`
`§ 381.3(b).
`
`82.
`
`The 2018 Waiver Program does not have facilitating definite improvement as its
`
`objective because it does not require waiver recipients to demonstrate an improvement to food
`
`safety and does not consider the increased risk to workers in evaluating improvement.
`
`83.
`
`The 2018 Waiver Program is accordingly “not in accordance with law.” 5 U.S.C.
`
`§ 706(2)(A).
`
`84.
`
`Each waiver granted under the 2018 Waiver Program is not in accordance with law.
`
`THIRD CAUSE OF ACTION
`(Violation of the APA – Arbitrary and Capricious Action)
`
`FSIS failed to provide an adequate rationale for its decision to issue line-speed
`
`85.
`
`waivers beyond the establishments in the pilot program.
`
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`86.
`
`FSIS failed to provide an adequate explanation for reversing its position in the 2014
`
`Final Rule that it had the authority to adopt requirements that protect worker safety.
`
`87.
`
`FSIS failed to provide an adequate explanation for its conclusion that it lacked
`
`authority to deny or condition waivers in order to protect worker safety.
`
`88.
`
`FSIS failed to conside