Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 1 of 32
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
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`
`
`UNITED FOOD AND COMMERCIAL
`WORKERS UNION, LOCAL NO. 227,
`et al.
`
`Plaintiffs,
`
`v.
`
`UNITED STATES DEPARTMENT OF
`AGRICULTURE,
`
`Defendant.
`
`
`
`Civil Action No. 1:20-cv-2045-TJK
`
`PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS
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`
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`
`
`Nandan M. Joshi (DC Bar No. 456750)
`Adam R. Pulver (DC Bar. No. 1020475)
`Public Citizen Litigation Group
`1600 20th Street NW
`Washington, DC 20009
`(202) 588-1000
`
`Sarai K. King
`United Food & Commercial Workers
`International Union, AFL-CIO, CLC
`1775 K Street, NW
`Washington, DC 20006-1598
`(202) 223-3111
`
`Counsel for Plaintiffs
`
`Dated: November 13, 2020
`
`

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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 2 of 32
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`TABLE OF AUTHORITIES .......................................................................................................... ii
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`TABLE OF CONTENTS
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`INTRODUCTION .......................................................................................................................... 1
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`BACKGROUND ............................................................................................................................ 2
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`LEGAL STANDARDS ................................................................................................................ 12
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`ARGUMENT ................................................................................................................................ 13
`
`I.
`
`II.
`
`UFCW has adequately established Article III standing. .................................................13
`
`UFCW was not required to identify an individual member with Article III
`standing in the complaint. ...............................................................................................20
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`III. UFCW falls with the zone of interests of the statutory scheme. .....................................23
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`CONCLUSION ............................................................................................................................. 26
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`i
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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 3 of 32
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`
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`TABLE OF AUTHORITIES
`
`Cases
`American Bar Ass’n v. United States Department of Education,
`370 F. Supp. 3d 1 (D.D.C. 2019) .............................................................................................. 23
`
`American Chemistry Council v. Department of Transportation,
`468 F.3d 810 (D.C. Cir. 2006) .................................................................................................. 22
`
`American Federation of Government Employees v. Office of Personnel
`Management,
`618 F. Supp. 2d 1254, 1259 (D.D.C. 1985),
`aff’d, 782 F.2d 278 (D.C. Cir. 1986) ........................................................................................ 22
`
`American Trucking Ass’ns, Inc. v. Federal Motor Carrier Safety Administration,
`724 F.3d 243 (D.C. Cir. 2013) ............................................................................................ 14, 18
`
`Attias v. Carefirst, Inc.,
`865 F.3d 620 (D.C. Cir. 2017) ................................................................................ 12, 14, 15, 18
`
`Center for Biological Diversity v. Bernhardt,
`442 F. Supp. 3d 97 (D.D.C. 2020) ............................................................................................ 13
`
`Chamber of Commerce. v. EPA,
`642 F.3d 192 (D.C. Cir. 2011) .................................................................................................. 22
`
`Chesapeake Climate Action Network v. Export-Import Bank of the United States,
`78 F. Supp. 3d 208 (D.D.C. 2015) ............................................................................................ 21
`
`Clarke v. Securities Industry Ass’n,
`479 U.S. 388 (1987) .................................................................................................................. 23
`
`Delaware Riverkeeper Network v. FERC,
`243 F. Supp. 3d 141 (D.D.C. 2017) ............................................................................................ 2
`
`Department of Commerce v. New York,
`139 S. Ct. 2551 (2019) ........................................................................................................ 13, 14
`
`Doe v. Stincer,
`175 F.3d 879 (11th Cir. 1999) .................................................................................................. 21
`
`Food & Water Watch, Inc. v. Vilsack,
`808 F.3d 905 (D.C. Cir. 2015) ................................................................................ 15, 16, 17, 18
`
`Frank v. Autovest, LLC,
`961 F.3d 1185 (D.C. Cir. 2020) ................................................................................................ 12
`
`
`
`ii
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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 4 of 32
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`
`
`Hughes v. Rowe,
`449 U.S. 5 (1980) ...................................................................................................................... 21
`
`Hunt v. Washington State Apple Advertisting Commission,
`432 U.S. 333 (1977) .................................................................................................................. 20
`
`Indian River County v. Department of Transportation,
`945 F.3d 515 (D.C. Cir. 2019) .................................................................................................. 24
`
`Jerome Stevens Pharmaceuticals, Inc. v. FDA,
`402 F.3d 1249 (D.C. Cir. 2005) ................................................................................................ 12
`
`Levine v. Johanns, No. C 05-04764 MHP,
`2006 WL 8441742 (N.D. Cal. Sept. 6, 2006) ........................................................................... 24
`
`Lexmark International, Inc. v. Static Control Components, Inc.,
`572 U.S. 118, 130 (2014) .................................................................................................... 23, 25
`
`Louisiana Environmental Action Network v. EPA,
`172 F.3d 65 (D.C. Cir. 1999) .................................................................................................... 19
`
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992) .................................................................................................................. 12
`
`Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
`567 U.S. 209 (2012) .................................................................................................................. 23
`
`National Credit Union Administration v. First National Bank & Trust Co.,
`522 U.S. 479 (1998) .................................................................................................................. 23
`
`National Treasury Employees Union v. Whipple,
`636 F. Supp. 2d 63 (D.D.C. 2009) ............................................................................................ 21
`
`Natural Resources Defense Council v. EPA,
`464 F.3d 1 (D.C. Cir. 2006) .......................................................................................... 13, 19, 22
`
`New York Republican State Committee v. SEC,
`927 F.3d 499 (D.C. Cir. 2019) ................................................................................ 14, 15, 16, 18
`
`New York v. Trump, No. 20-CV-5770 (RCW) (PWH) (JMF),
`2020 WL 5422959 (S.D.N.Y. Sept. 10, 2020) .......................................................................... 19
`
`Public Citizen Health Research Group v. Acosta,
`363 F. Supp. 3d 1 (D.D.C. 2018) .............................................................................................. 13
`
`Public Citizen, Inc. v. National Highway Traffic Safety Administraton, 489 F.3d
`1279 (D.C. Cir. 2007) ......................................................................................................... 13, 15
`
`
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`
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`Renal Physicians Ass’n v. U.S. Department of Health & Human Services,
`489 F.3d 1267 (D.C. Cir. 2007) ................................................................................................ 18
`
`Spokeo v. Robins,
`136 S. Ct. 1540 (2016) .............................................................................................................. 13
`
`Twin Rivers Paper Co. v. SEC,
`934 F.3d 607 (D.C. Cir. 2019) ............................................................................................ 25, 26
`
`United Food & Commercial Workers Local 751 v. Brown Group, Inc.,
`517 U.S. 544 (1996) ............................................................................................................ 20, 26
`
`United Food & Commercial Workers Union, Local No. 663 v. United States
`Department of Agriculture,
`451 F. Supp. 3d 1040 (D. Minn. Apr. 1, 2020) ......................................................................... 24
`
`Washington Alliance of Technology Workers v. United States Department of
`Homeland Security,
` 892 F.3d 332 (D.C. Cir. 2018) ................................................................................................. 21
`
`WildEarth Guardians v. Zinke,
`368 F. Supp. 3d 41 (D.D.C. 2019) ............................................................................................ 21
`
`Statutes
`Poultry Products Inspection Act
`
` 21 U.S.C. § 451 et seq. ............................................................................................................... 6
`
` 21 U.S.C. § 452 ........................................................................................................................... 6
`
` 21 U.S.C. § 459(a) ...................................................................................................................... 6
`
`29 U.S.C. § 654(a) .......................................................................................................................... 8
`
`Regulations
`9 C.F.R. § 381.67 ............................................................................................................................ 6
`
`9 C.F.R. § 381.67(a)........................................................................................................................ 7
`
`9 C.F.R. § 381.69 ............................................................................................................................ 6
`
`9 C.F.R. § 381.76(b)(1) ................................................................................................................... 6
`
`9 C.F.R. § 381.76(b)(3)(ii)(b) ......................................................................................................... 6
`
`9 C.F.R. § 381.76(b)(4)(iv) ............................................................................................................. 6
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`iv
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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 6 of 32
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`
`
`Federal Register
`Final Rule, Modernization of Poultry Slaughter Inspection, 79 Fed. Reg. 49,565
`(Aug. 21, 2014) .................................................................................................................. passim
`
`Irradiation of Meat Food Products, 64 Fed. Reg. 72,150 (Dec. 23, 1999) ................................... 25
`
`Notice, Extension of Comment Period, Modernization of Poultry Slaughter
`Inspection, 77 Fed. Reg. 24,873 (Apr. 26, 2012) ....................................................................... 7
`
`Notice, Petition To Permit Waivers of Maximum Line Speeds for Young Chicken
`Establishments Operating Under the New Poultry Inspection System; Criteria
`for Consideration of Waiver Requests for Young Chicken, Establishments To
`Operate at Line Speeds of Up to 175 Birds per Minute, 83 Fed. Reg. 49,048
`(Sept. 28, 2018) ..................................................................................................................... 9, 15
`
`Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP)
`Systems, 61 Fed. Reg. 38,806 (July 25, 1996) ......................................................................... 24
`
`Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP)
`Systems—Sample Collection— Technical Amendments and Corrections:
`Direct Final Rule, 62 Fed. Reg. 61,007 (Nov. 14, 1997) .......................................................... 25
`
`Proposed Rule, Modernization of Poultry Slaughter Inspection, 77 Fed. Reg. 4407
`(Apr. 26, 2012) .................................................................................................................. 7, 8, 24
`
`Other
`Poultry Products Inspection Act: Hearing on S. 313, S. 645, and S. 1128 Before
`the S. Comm. on Agriculture and Forestry, 85th Cong. (1957) ............................................... 25
`
`
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`INTRODUCTION
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`Plaintiffs United Food and Commercial Workers Union, Local No. 227, et al. (collectively,
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`UFCW) are unions that represent workers in various poultry processing plants throughout the
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`United States. UFCW represents almost all of the workers on the poultry processing line who
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`perform manual labor to turn live chickens into food product safe for human consumption. Because
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`this work is repetitive and dangerous, poultry workers are far more likely than the average
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`industrial worker to suffer acute injuries such as amputations and lacerations, and chronic ailments
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`such as carpal tunnel syndrome. The speed of the processing lines is widely recognized by the
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`scientific community as a major contributing factor to the high injury rate for poultry workers.
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`Indeed, when defendant United States Department of Agriculture (USDA) last examined poultry
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`line speeds in 2014, its Food Safety and Inspection Service (FSIS) decided not to increase the
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`existing limits on line speeds after considering worker safety concerns, and explicitly
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`acknowledged the evidence demonstrating the connection between line speed and worker safety.
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`In 2018, FSIS reversed course. Without commencing a new rulemaking and without
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`considering worker safety, FSIS created a new “waiver” regime that allows plants to exceed by 25
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`percent the line-speed limit set by regulation. Several plants where UFCW is the exclusive
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`collective bargaining representative have received waivers under the new policy. Workers on the
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`lines in those plants are now at a higher risk of injury than if their employers remained subject to
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`the maximum line speed established by the agency’s regulations.
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`To protect the workers it represents from safety risks associated with faster line speeds,
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`UFCW brought this action against the USDA for failing to engage in reasoned decisionmaking in
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`adopting its waiver program, for implementing its “new technology” waiver regulation unlawfully,
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`and for contravening notice-and-comment requirements in violation of the Administrative
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`Procedure Act (APA), 5 U.S.C. § 706(2). Although UDSA has moved to dismiss UFCW’s claims
`1
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`for lack of standing and under the zone-of-interests test, the complaint properly alleges Article III
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`standing, and the additional evidence submitted with this opposition confirms that USDA’s waiver
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`program substantially increases the risk of harm to poultry workers UFCW represents. In addition,
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`as USDA has repeatedly recognized through its regulatory actions, the worker safety concerns that
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`UFCW raises easily fall within the zone of interests of the statutory scheme. USDA’s motion to
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`dismiss should be denied.
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`The Impact of Line Speed on Worker Injuries in Poultry Plants
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`BACKGROUND
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`Bringing poultry products to the American consumer requires grueling manual labor by
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`thousands of UFCW-represented poultry workers who work “on the line.” Compl. (ECF 1) ¶¶ 9–
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`18. The “line” refers to the conveyance of chickens through a plant to transform them from live
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`birds to food product. Id. ¶ 18; Lauritsen Decl. ¶¶ 14–19.1 At the beginning of the process, workers
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`manually take live chickens that have been delivered to the plant and hang them upside down from
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`a conveyer; the birds are then killed, defeathered, eviscerated, washed, chilled, deboned, and
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`packaged for delivery. See id. ¶¶ 16–18; Joshi Decl., Ex. A (2016 GAO Report), at 7; Lauritsen
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`Decl. ¶¶ 14–19. As certain tasks have been automated, poultry processing plants have increased
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`the speeds at which they run the lines. Joshi Decl., Ex. A (2016 GAO Report), at 29 & n.67. Plants
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`still rely on workers, however, to perform many tasks. Compl. (ECF 1) ¶ 17; Joshi Decl., Ex. A
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`(2016 GAO Report), at 6.
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`The physical demands of processing poultry take a toll on workers. The poultry industry is
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`the fourteenth most dangerous industry for workers nationwide: An average of eight poultry
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`1 “[U]nder Rule 12(b)(1), the court ‘is not limited to the allegations of the complaint,’” and ‘a court
`may consider such materials outside the pleadings as it deems appropriate.” Del. Riverkeeper
`Network v. FERC, 243 F. Supp. 3d 141, 147 (D.D.C. 2017) (citations omitted).
`2
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`workers died every year in one four-year period, poultry workers face double the rate of
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`amputations as the average worker in private industry, and injuries such as sprains, lacerations,
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`and contusions are common among poultry workers. Compl. (ECF 1) ¶ 21; see also Joshi Decl.,
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`Ex. B (OSHA Regional Instruction), at 4 & Ex. C (HRW Report), at 30 & n.66. Many of these
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`injuries arise because workers on the line are required to stand close together using saws, knives,
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`and other tools to cut up, debone, and otherwise prepare chicken carcasses in an environment
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`coated with grease and blood, and must do so quickly enough to keep up with the speed at which
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`the birds are being conveyed down the line. Compl. (ECF 1) ¶ 18; Joshi Decl., Ex. D, at 1 (OSHA
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`Cuts & Lacerations Webpage) (observing that cuts and lacerations, which “account for about 10%
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`of injuries in the poultry processing industry,” are caused by workplace conditions such as
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`“[e]mployees working too close together” and “[p]iecework incentive programs encouraging
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`employees to work faster, often at the expense of working safely”); Joshi Decl., Ex. E (Oxfam
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`Report), at 25 (“One survey found that 17 percent of workers performing deboning, cutting, and
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`trimming had suffered a cut serious enough to require medical attention.”).
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`Poultry workers also commonly suffer from musculoskeletal disorders—such as carpal
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`tunnel syndrome (CTS), tendonitis, and “trigger finger.” Compl. (ECF 1) ¶ 20. Based on a 1997
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`survey,
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`the Occupational Health and Safety Administration (OSHA) estimates
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`that
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`musculoskeletal disorders account for approximately half of injuries among poultry workers. Joshi
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`Decl., Ex. F (OSHA Ergonomics Webpage), at 1. These disorders are a direct result of the
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`thousands of rapid, forceful, and repetitive movements that poultry workers must make to hang,
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`cut, debone, and prepare chicken carcasses as they move down the line. Compl. (ECF 1) ¶ 20; see
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`also Fagan Decl., Ex. B, at 1–3. “Most all jobs in poultry processing involve highly repetitive
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`tasks—repeating the same motions over and over again at a fast past with little variation in the
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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 10 of 32
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`tasks.” Joshi Decl., Ex. F (OSHA Ergonomics Webpage), at 1. For example, live hanging can
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`require a worker to lift live birds up to 25 times per minute, “[a] single employee may be required
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`to process hundreds of gizzards every hour,” and “[c]utting and trimming tasks often require 6 to
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`10 scissor or knife cuts per minute.” Joshi Decl., Ex. F (OSHA Ergonomics Webpage), at 1. OSHA
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`has observed, for example, that the carpal tunnel syndrome rate for poultry workers in 2017 was
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`4.3 times higher than for workers in all of private industry (Compl. (ECF 1) ¶ 20 (citing Joshi
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`Decl., Ex. B (OSHA Regional Instruction), at 2) and that, based on 2013 data, poultry workers
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`were “4.5 times more likely” than the average industry worker “to identify repetitive motion as the
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`exposure resulting in a serious injury,” id. (quoting Joshi Decl., Ex. G (Galassi Memo), at 2).
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`The scientific literature, and on-the-ground experiences of workers, confirm that a “major
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`contributing factor” to the high rate of injury among poultry line workers is the pace at which they
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`must work. Compl. (ECF 1) ¶ 22 (quoting Joshi Decl., Ex. C (HRW Report), at 49 & nn.133 &
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`134 (citing studies)). As the Government Accountability Office (GAO) has observed, “[t]he speed
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`at which production employees are expected to work” is “often determined by the … line speed,”
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`and “[t]he faster the pace at which the production line moves, the less able workers may be to
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`perform tasks needed for safety.” Joshi Decl., Ex. H (2005 GAO Report), at 31; see also Joshi
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`Decl., Ex. E (Oxfam Report), at 24 (“Workers surveyed over the last several years report that the
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`line speed is an enormous part of the reason that workers get injured.”); Final Rule, Modernization
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`of Poultry Slaughter Inspection, 79 Fed. Reg. 49,565, 49,698 (Aug. 21, 2014); Ramirez Decl. ¶ 7
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`(describing “knife slips” as a result of “working so quickly”).
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` Research demonstrates that increases in line speed leads to an enhanced risk of
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`musculoskeletal disorders in poultry workers. As the National Institute for Occupational Safety
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`and Health (NIOSH) explained to FSIS in 2014, the risk of carpel tunnel syndrome for workers in
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`poultry processing plants arises from “the repetitive and forceful motions required by exposed
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`workers to process poultry,” and “[l]ine speed affects the periodicity of repetitive and forceful
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`movements, which are the key causes of musculoskeletal disorders.” Compl. (ECF 1) ¶ 23 (quoting
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`Joshi Dec., Ex. I (NIOSH Letter), at 2–3). Indeed, as far back as 1988, NIOSH recommended that
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`poultry plants reduce their line speeds to address the prevalence of musculoskeletal disorders
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`among workers. Joshi Decl., Ex. J (Longmont Study), at 10 (recommending that a turkey plant
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`“[d]ecrease line speeds” in departments with high injury rates “as much as is practically feasible”);
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`see also Joshi Decl., Ex. K (Perdue Farms Study), at 18 (stating NIOSH’s conclusion that “slowing
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`down the main conveyer” would “reduce [cumulative trauma disorders] risk factors” among
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`poultry workers); Joshi Decl. Ex. L (Cargill Study), at 14 (stating NIOSH’s conclusion that
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`“slowing down the main line” can reduce “highly repetitive movements” that cause cumulative
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`trauma disorders).
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`Dr. Kathleen Fagan, MD, MPH, a former medical officer within the Office of Occupational
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`Medicine and Nursing at OSHA, has synthesized extant research to describe in detail how line
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`speed negatively effects worker safety. See Fagan Decl., Ex. B. As Dr. Fagan explains, “the speed
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`of work translates to the number of repetitions of the same movements, i.e., job tasks, per unit of
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`time,” and this “[r]epetitive motion, particularly if accompanied by force, causes acute
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`inflammation of the tissues.” Id. at 1. “[C]ontinued task performance” with injured or inflamed
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`tissue produces “a vicious cycle of injury,” leading to various forms of musculoskeletal disorders.
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`Id. Poultry processing work presents “major ergonomic hazards” such as “repetitive motion, force,
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`awkward posture, vibration and cold temperatures,” id. at 3, and repetitiveness is one of the key
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`factors in elevating workers’ musculoskeletal risk, id. at 1–2. Research confirms that poultry
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`processing work is, in fact, associated with high levels of musculoskeletal injuries, and that poultry
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`workers are exposed to ergonomic risks that exceed thresholds that are “considered hazardous” by
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`the American Conference of Governmental Industrial Hygienists (ACGIH). Id. at 3; see also id. at
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`4–5 (surveying research). The research shows that “[l]ine speeds in the poultry industry are a key
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`ergonomic hazard linked to” musculoskeletal disorders, and that “[i]ncreasing line speeds, in the
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`absence of effective ergonomic programs, will further increase the risk of [such disorders] and
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`other injuries and illnesses for poultry work.” Id. at 7; see also Joshi Decl., Ex. M (NIOSH Blog
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`Post), at 1 (describing the musculoskeletal risks arising out of work conditions in poultry
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`processing and recommending that plants reduce those risks by “[r]educ[ing] cone line speeds and
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`us[ing] additional cone lines so that job tasks are below the action limit” developed by ACGIH.)
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`NPIS and the 2014 Rulemaking
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`USDA, through FSIS, regulates poultry line speeds pursuant to the Poultry Products
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`Inspection Act (PPIA or Act), 21 U.S.C. § 451 et seq. The Act “provide[s] for the inspection of
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`poultry and poultry products and otherwise regulate[s] the processing and distribution of such
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`articles” to prevent the sale of “poultry products which are adulterated or misbranded,” id. § 452,
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`and prohibits plants from processing poultry products in a manner that does not comply with the
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`Act’s requirements, id. § 459(a).
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`FSIS regulations establish several types of inspection systems for different types of poultry
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`plants and set a maximum line speed for each system. 9 C.F.R. §§ 381.67, 381.69, 381.76(b)(1),
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`381.76(b)(3)(ii)(b), 381.76(b)(4)(iv). The maximum line speed, measured in “birds per minute”
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`(or bpm), “reflect[s] the time it takes for an inspector to effectively perform the online carcass
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`inspection procedures.” See Final Rule, 79 Fed. Reg. at 49,567. FSIS inspectors inspect birds after
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`they are eviscerated and before they are chilled, deboned, and packaged. Id. at 49,590.
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`The line speed limit at the inspection station helps to act as a brake on the pace of the work
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`throughout the poultry processing line because “work pace in processing departments is influenced
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`by inspection line speed.” Final Rule, 79 Fed. Reg. at 49,598. As Mark Lauritsen, UFCW’s
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`International Vice President for Meatpacking, explains, “[e]visceration line speeds affect the pace
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`of production and work in the entire processing plant.” Lauritsen Decl. ¶ 13. Specifically,
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`“[b]ecause the birds move continuously throughout the plant, evisceration line speeds affect the
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`flow of product throughout the plant,” id. ¶ 20, and “affect[] the work pace throughout the plant,”
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`including workers who process birds after inspection such as “in the debone area,” id. ¶ 21; see
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`also Joshi Decl., Ex. C (HRW Report), at 63 (“The testimony of workers who spoke with Human
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`Rights Watch, however, indicates that line speeds in different departments, even those separated
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`by full stops in processing, such as the freezer, remain closely related.”).
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`In 2014, FSIS adopted a rule creating the New Poultry Inspection System (NPIS). Under
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`NPIS, plants—including the plants at issue in this case—cannot exceed a line speed of 140 bpm.
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`9 C.F.R. § 381.67(a). Throughout the notice-and-comment rulemaking process, FSIS recognized
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`that the maximum line speed that it would establish for the NPIS inspections would have an effect
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`on the safety of poultry plant workers, and it took worker safety into account in establishing the
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`rule. See Proposed Rule, Modernization of Poultry Slaughter Inspection, 77 Fed. Reg. 4407, 4423
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`(Jan. 27, 2012) (“FSIS recognizes that evaluation of the effects of line speed on food safety should
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`include the effects of line speed on establishment employee safety.”); Notice, Extension of
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`Comment Period, Modernization of Poultry Slaughter Inspection, 77 Fed. Reg. 24,873, 24,875
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`(Apr. 26, 2012) (explaining that FSIS had “consider[ed] the potential effects on [worker] safety”
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`and that it was “interested in comments on the effects of line speed and worker safety”).
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`FSIS initially proposed setting the maximum line speed at NPIS plants at 175 bpm, see
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`Proposed Rule, 77 Fed. Reg. at 4423, but it received extensive comments from groups who “were
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`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.” Final Rule, 79 Fed. Reg. at 49,598. In response, FSIS
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`acknowledged that “[i]ncreasing line speed in processing, without changing other factors, could
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`result in an increase of work pace for establishment employees,” which, in turn, could, “increase
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`risk of injuries and illnesses among establishment employees.” Id. In the end, FSIS did not adopt
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`the 175 bpm maximum line speed it had proposed, but rather capped the line speed at 140 bpm.
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`See Final Rule, 79 Fed. Reg. at 49,591.
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`FSIS’s Final Rule addressed worker safety concerns in two additional ways. First, FSIS
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`“establish[ed] a new subpart” that requires poultry establishments to attest that they “maintain[] a
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`program to monitor and document any work-related conditions that arise among establishment
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`workers.” Id. at 49,600. Second, FSIS revised its regulations to provide that NPIS establishments
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`must “comply with all other applicable requirements of the law,” id., including, specifically, 29
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`U.S.C. § 654(a), which requires each employer to “furnish to each of his employees employment
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`and a place of employment which are free from recognized hazards that are causing or are likely
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`to cause death or serious physical harm to his employees.” FSIS also promised that it would
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`“consider the available data on employee effects collected from NIOSH activities when
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`implementing the final rule.” Id. at 49,596.
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`8
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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 15 of 32
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`FSIS’s New Waiver System
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`In September 2017, an industry trade group filed a petition to institute a waiver program
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`that would eliminate line speed limits for waiver recipients. Compl. (ECF 1) ¶ 41. FSIS denied
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`that petition, stating that it would instead “make available criteria that it will use to consider waiver
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`requests from young chicken establishments … to operate at line speeds of up to 175 bpm.” Id.
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`¶ 45 (quoting Joshi Decl., Ex. N (FSIS Denial Letter), at 2). Shortly after, in 2018, without
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`undertaking notice-and-comment rulemaking procedures, FSIS created a new waiver program (the
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`2018 Waiver Program). Under the 2018 Waiver Program, NPIS plants can apply for waivers
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`allowing them to operate poultry lines at up to 175 bpm. See Compl. (ECF 1) ¶¶ 41–46; see also
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`Joshi Decl., Ex. O (2018 Constituent Update), at 1; Notice, Petition To Permit Waivers of
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`Maximum Line Speeds for Young Chicken Establishments Operating Under the New Poultry
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`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). FSIS justified the 2018 Waiver Program under a FSIS
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`regulation that authorizes waivers for poultry plants to try out new technologies that could facilitate
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`“definite improvements.” See Compl. (ECF 1) ¶ 53; see also 9 C.F.R. § 381.3(b).
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`In creating the 2018 Waiver Program, FSIS ignored the risks that faster line speeds pose to
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`the safety of workers on the poultry line. Compl. (ECF 1) ¶ 56. Although a plant receiving a waiver
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`will “routinely need to operate at least one line at speeds above 140 bpm on average,” the Waiver
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`Program does not require plants to take any steps to protect workers from the health and safety
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`risks associated with faster line speeds. See 2018 Waiver Notice, 83 Fed. Reg. at 49,051. FSIS’s
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`sole reference to worker safety was a statement that it “has neither the legal authority nor the
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`expertise to regulate or enforce workplace standards for establishment employees.” Id. at 49,057.
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`9
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`Case 1:20-cv-02045-TJK Document 11 Filed 11/13/20 Page 16 of 32
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`FSIS did not explain its decision to forgo waiver conditions to ameliorate the heightened risks to
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`worker safety resulting from the mandatory increase in line speed. Compl. (ECF 1) ¶ 58. FSIS also
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`did not at