CASE 0:19-cv-02660-JNE-TNL Doc. 125 Filed 03/31/21 Page 1 of 68
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`
`
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`Case No. 19-cv-2660 (JNE/TNL)
`ORDER
`
`
`United Food and Commercial Workers
`Union, Local No. 663; United Food and
`Commercial Workers Union, Local No.
`440; United Food and Commercial
`Workers Union, Local No. 2; and United
`Food and Commercial Workers Union,
`AFL-CIO, CLC,
`
`
`
`
`
`
`
`
`
`v.
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`
`
`
`
`
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`United States Department of Agriculture,
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`Plaintiffs,
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`Defendant.
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`Under the Federal Meat Inspection Act (“FMIA”), federal inspectors with the
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`Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) monitor pork
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`slaughterhouses to ensure that safe and wholesome pork products are sold to the public.
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`These inspectors examine all swine that will become meat products before and after
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`slaughter. See 21 U.S.C. § 604. To ensure adequate post-mortem inspections, FSIS
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`regulates the speed of evisceration lines. See 9 C.F.R. § 310.1(b)(3). In October 2019,
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`FSIS adopted the New Swine Inspection System (“NSIS”), an optional program that
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`implemented several reforms, including the elimination of evisceration line speed limits.
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`See Modernization of Swine Slaughter Inspection, 84 Fed. Reg. 52,300, 52,315 (Oct. 1,
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`2019) (“Final Rule”).
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`On behalf of workers at pork processing plants, the United Food and Commercial
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`Workers Union (“UFCW”) and three of its local chapters challenged the Final Rule under
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`CASE 0:19-cv-02660-JNE-TNL Doc. 125 Filed 03/31/21 Page 2 of 68
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`the Administrative Procedure Act (“APA”). The case is now before the Court on the
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`parties’ cross-motions for summary judgment and USDA’s motion for remand without
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`vacatur. For the reasons discussed below, Plaintiffs have standing to bring this case and
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`have shown that the agency violated the APA. When FSIS proposed the NSIS, it
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`expressly identified worker safety as an important consideration and requested public
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`comment on whether increasing line speeds would harm workers. Then, after receiving
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`many comments raising worker safety concerns, FSIS rejected the comments and
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`eliminated line speed limits without considering worker safety. In doing so, the agency
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`failed to satisfy the APA’s requirement of reasoned decision-making. Therefore, the
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`Court will vacate the Final Rule’s elimination of line speed limits under the NSIS,
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`codified at 9 C.F.R. § 310.26(c), but will not set aside any other aspect of the Final Rule.
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`To give the agency and regulated entities an opportunity to adapt to the vacatur, the Court
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`will stay this order and entry of judgment for 90 days.
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`BACKGROUND
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`I. Regulatory and Industry Background
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`A. The Traditional Swine Inspection System
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`“Meat and poultry plants are generally designed for an orderly flow from point of
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`entry of the living animal to the finished food product.” GAO, GAO-18-12, Workplace
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`Safety and Health: Better Outreach, Collaboration, and Information Needed to Help
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`Protect Workers at Meat and Poultry Plants 5–6, fig. 2 (2017), https://www.gao.gov/
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`assets/gao-18-12.pdf (“2017 GAO Report”), Admin. R. (“AR”) 101383. The process
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`begins on the kill floor, “where the animal is rendered unconscious and slaughter occurs.”
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`Id. at 5. Then, the animals are hung on shackles attached to a mechanized line, the
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`evisceration line, that carries the carcasses through evisceration and inspection. Id. at 6,
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`fig. 2. After evisceration, carcasses are chilled and then, on the processing line, cut “into
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`small portions that can be transported directly to supermarkets.” Id. at 5.
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`Under the FMIA, FSIS conducts ante- and post-mortem inspections of all hogs
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`that will be sold as pork products. See 21 U.S.C. §§ 603–04; 9 C.F.R. § 310.1(a). FSIS
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`inspectors assess the hogs after slaughter while they are both on and off the evisceration
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`line. 2017 GAO Report at 5. During evisceration, plant employees trim the animals and
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`federal inspectors conduct an inspection. Modernization of Swine Slaughter Inspection,
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`83 Fed. Reg. 4780, 4783–84 (proposed Feb. 1, 2018) (“Proposed Rule”). If the animals
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`are found fit for consumption, inspectors then conduct an offline examination that
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`includes testing for foodborne pathogens, like salmonella. Id. at 4785.
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`Under the traditional inspection system, most slaughterhouses voluntarily
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`segregate obviously unfit animals, so FSIS only needs to inspect the animals the facility
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`has deemed appropriate for slaughter. Id. at 4783. After slaughter, however, most
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`establishments do not inspect the carcasses again to identify and remove correctable
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`defects or flag carcasses that should be condemned. Id. at 4784. This means that FSIS
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`inspectors conduct this time-intensive sorting, which slows down inspection rates and
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`leaves less time to inspect apparently healthy carcasses for foodborne pathogens. Id.
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`In 1996, FSIS adopted a new framework of inspection that required
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`slaughterhouses to develop more preventive controls to ensure they produced safe meat
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`products: the hazard analysis and critical control point system (“HACCP”). Id. at 4780.
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`FSIS then launched a pilot program, the HACCP-Based Inspection Models Project
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`(“HIMP”). Id. One goal of HIMP was to give federal inspectors more time to prioritize
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`testing for foodborne pathogens by making pork processing establishment employees,
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`instead of FSIS staff, responsible for sorting activities. Id. at 4784.
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`The first HIMP model FSIS proposed did not involve an examination of each
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`animal carcass by FSIS inspectors, which the D.C. Circuit found violated the FMIA. See
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`Am. Fed’n Gov’t Emps., AFL-CIO v. Glickman, 215 F.3d 7, 11 (D.C. Cir. 2000). FSIS
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`consequently modified HIMP to include an inspection of each carcass by federal agents,
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`which the court found complied with the FMIA. Am. Fed’n Gov’t Emps., AFL-CIO v.
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`Veneman, 284 F.3d 125, 130 (D.C. Cir. 2002).
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`In 2013, the USDA Office of Inspector General (“OIG”) audited HIMP and
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`concluded that FSIS had not adequately overseen the program, potentially increasing
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`food safety risks. Proposed Rule at 4788 (citing OIG, USDA, Audit Rep. 24601-0001-41,
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`Food Safety and Inspection Service – Inspection and Enforcement Activities at Swine
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`Slaughter Plants (2013), https://www.usda.gov/sites/default/files/24601-0001-41.pdf
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`(“2013 OIG Report”)). It also found that three of the five HIMP plants had some of the
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`highest noncompliance records in the industry “because of FSIS’ lack of oversight.” 2013
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`OIG Report at 17. The Government Accountability Office (“GAO”) similarly reviewed
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`HIMP, finding that FSIS had not adequately evaluated it and that it led to faster line
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`speeds, creating food and worker safety concerns. GAO, GAO-13-775, Food Safety:
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`More Disclosure and Data Needed to Clarify Impact of Changes to Poultry and Hog
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`Inspections (2013), https://www.gao.gov/assets/gao-13-775.pdf (“2013 GAO Report”),
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`AR 101277; 2017 GAO Report at 1. In response to these reports, FSIS evaluated the
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`HIMP program and reached the opposite conclusion. See Proposed Rule at 4790. It found
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`that HIMP establishments had more food safety inspections and demonstrated improved
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`compliance with sanitation standards. Id.
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`B. The New Swine Inspection System
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`In February 2018, USDA published a notice of proposed rulemaking (“NPRM”)
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`that proposed establishing the NSIS. Id. at 4780. NSIS would replicate features tested in
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`the HIMP pilot, including: requiring slaughterhouses to conduct ante- and post-mortem
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`sorting to remove defective or contaminated animals; reducing the number of FSIS online
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`inspectors, which would allow FSIS to increase offline inspections; and increasing
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`maximum line speeds. Id. at 4780–81. In the NPRM, FSIS relied upon a preliminary
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`analysis of OSHA data to state that HIMP facilities had lower worker injury rates. Id. at
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`4796. FSIS specifically requested comment on the effects increased line speeds may have
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`on worker safety:
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`FSIS recognizes that evaluation of the effects of line speed on food safety should
`include the effects of line speed on establishment employee safety. . . . FSIS is
`requesting comments on the effects of faster line speeds on worker safety.
`Specifically, FSIS is requesting comments on whether line speeds for the NSIS
`should be set at the current regulatory limit of 1,106 hph or some other number.
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`Many interested parties answered the agency’s call for comments about line
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`Id.
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`speeds. Citing Bureau of Labor Statistics data and studies by OSHA and GAO, these
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`commenters noted that eliminating line speed limits would harm workers, increase injury
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`rates, and reduce the quality of meat products. See, e.g., Professor Melissa J. Perry, ScD,
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`MHS, FACE, Comment on Proposed Rule (May 2, 2018), https://www.regulations.gov/
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`comment/FSIS-2016-0017-83467 (“Perry Comment”), AR 96947; Am. Public Health
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`Ass’n Occupational Health & Safety Section, Comment on Proposed Rule (Apr. 26,
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`2018), https://www.regulations.gov/comment/FSIS-2016-0017-61127 (“APHA
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`Comment”), AR 62444. For example, one comment cited an OSHA recommendation that
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`“establishments should reduce line speeds and production rates to decrease injury rates.”
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`Final Rule at 52,314.
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`On October 1, 2019, FSIS adopted the regulations proposed in the NPRM. Id. at
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`52,300. FSIS responded to the worker safety comments by asserting that it had “neither
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`the authority nor the expertise to regulate issues related to establishment worker safety”
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`under the FMIA. Id. at 52,315. Instead, FSIS wrote, OSHA has the statutory authority to
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`regulate worker safety in slaughterhouses. Id. While it agreed that worker safety is
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`important, it stated that it was compelled by law to only regulate food safety, not
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`establishment worker safety. Id. The Final Rule also required each NSIS establishment to
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`submit an annual attestation to the local FSIS safety committee “stating that it maintains a
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`program to monitor and document any work-related conditions of establishment
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`workers.” 9 C.F.R. § 310.27; Final Rule at 52,315. FSIS wrote that it would forward
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`these attestations to OSHA and work with OSHA to improve worker safety, following the
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`terms of an agreement between the agencies. See Final Rule at 52,315 (citing
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`Memorandum of Understanding Between OSHA and FSIS (Feb. 4, 1994)).
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`C. Related Administrative Actions
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`Before FSIS enacted the NSIS, FSIS had considered its role in promoting safety
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`for the employees of meat processing facilities. In 2013, the agency requested an opinion
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`from the USDA’s Office of General Counsel regarding the extent of its legal authority to
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`regulate worker safety. In 2015, the agency modified the poultry slaughter inspection
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`system and considered lines speeds in relation to worker safety. In 2017, GAO reviewed
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`the agency’s role in promoting safety for meat processing workers.
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`1. 2013 Office of General Counsel Memorandum
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`USDA’s Office of General Counsel drafted a memorandum in response to a
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`Department of Labor request that FSIS “implement an illness and injury surveillance
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`system to monitor and document any work related medical conditions that arise among
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`establishment employees during the implementation of” a new poultry inspection system.
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`Memorandum for the Gen. Couns., USDA, from James A. Booth, Assistant Gen. Couns.
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`& Sheila H. Novak, Deputy Assistant Gen. Couns. 2 (Mar. 15, 2013) (“OGC Memo”),
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`AR 103198. After this memorandum was drafted, FSIS found that it lacked the authority
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`to create such a system. See FSIS White Paper on the Insufficient Nexus Between
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`Illnesses in Workers and Food Safety 1 (May 29, 2013), AR 103209. After analyzing
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`FSIS’s authorizing statutes and the legislative history, the memo determined that because
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`FSIS’s primary purpose was related to food safety, it could not establish a new regulatory
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`requirement related only to worker safety. OGC Memo at 4–5. It cited a district court
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`opinion that reached the same conclusion: “the purpose and intent of the FSIS is to ensure
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`food safety, not workplace safety.” Id. at 4 (quoting Dawkins v. United States, 226 F.
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`Supp. 2d 750, 757 (M.D.N.C. 2002).
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`After rejecting the notion that FSIS could regulate worker safety, the memo
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`explained that “it may consider factors beyond those in the [Poultry Products Inspection
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`Acts],” including worker safety. OGC Memo at 6. The memo noted that “statutes such as
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`the Regulatory Flexibility Act, the National Environmental Policy Act and various
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`Executive Orders (EO) require agencies to consider factors beyond those in their
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`authorizing legislation when they promulgate regulations.” Id. The memo concluded:
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`“While an agency may enact rules with provisions that are not explicitly authorized in the
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`enabling legislation, the imposition of requirements that are not related to food safety and
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`are based on findings not made by FSIS would be outside the agency’s authority.” Id. at
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`11.
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`One example of how FSIS has considered worker safety is in its collaboration with
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`OSHA. In 1994, the two agencies adopted a Memorandum of Understanding (“MOU”)
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`that established training protocols that would allow FSIS inspectors to better recognize
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`and report unsafe working conditions to OSHA. Memorandum of Understanding
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`Between OSHA and FSIS (Feb. 4, 1994), https://www.osha.gov/laws-regs/mou/1994-02-
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`04, AR 103211. The MOU acknowledges that FSIS’s primary responsibility is food
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`safety and that OSHA is primarily responsible for workplace safety. Id.
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`The OGC Memo also cites some precedents to establish that FSIS had historically
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`taken a similar approach to worker safety. For example, in a proposed rule to implement
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`a new poultry inspection system, FSIS noted that its “direct legal authority with respect to
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`regulating working conditions extends only to [FSIS] inspection personnel,” and that
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`“OSHA is the lead Federal agency responsible for establishment worker safety issues.”
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`Modernization of Poultry Slaughter Inspection, 77 Fed. Reg. 24,873, 24,877 (proposed
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`Apr. 26, 2012). In both a 1999 rule and a 1992 rule permitting poultry producers to use
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`irradiation to treat pathogens in poultry products, FSIS required the producers to
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`document compliance with Nuclear Regulatory Commission and OSHA requirements for
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`worker safety. Irradiation of Meat Food Products, 64 Fed. Reg. 72,150, 72,151 (Dec. 23,
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`1999); Irradiation of Poultry Products, 57 Fed. Reg. 43,588, 43,594 (Sept. 21, 1992). In
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`both actions, the agency collaborated with OSHA to address worker safety concerns
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`related to food safety requirements.
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`In short, the 2013 OGC Memo found that although FSIS could not implement a
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`new regulatory requirement focused solely on workplace safety, it could consider worker
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`safety in its rulemaking and collaborate with the appropriate federal agencies to advance
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`safety-related measures.
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`2. 2015 Poultry Rulemaking
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`In a 2015 rulemaking that established a New Poultry Inspection System (“NPIS”),
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`FSIS considered concerns raised about worker safety. Modernization of Poultry Slaughter
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`Inspection, 79 Fed. Reg. 49,566, 49,599 (Aug. 21, 2014). In that rulemaking, FSIS
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`retained the pre-existing line speed limits. Id. at 49,567. Many commenters to that rule
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`raised concerns that faster line speeds would negatively affect workers’ health and safety.
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`Id. at 49,597–98. FSIS established a collaboration with the CDC’s National Institute for
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`Occupational Safety and Health (“NIOSH”) to evaluate the role of line speeds in worker
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`health and safety. Id. at 49,596. FSIS wrote that it considered this study “to be an
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`important first step in measuring any impact of evisceration (or inspection) line speeds on
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`workers in poultry slaughter and processing establishments.” Id.
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`Additionally, in the poultry final rule, FSIS discussed its collaboration with
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`OSHA: “FSIS also recognizes the importance of establishment worker safety and will
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`work with OSHA to heighten FSIS employees’ awareness of serious occupational safety
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`hazards in FSIS-regulated establishments.” Id. In fact, “FSIS had numerous discussions
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`with OSHA during the development of this final rule on how best to address potential
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`issues related to line speeds and worker safety.” Id. at 49,597. FSIS noted that while it
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`was working with OSHA to address this issue, “any increase in line speed that
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`establishments implement under the NPIS will not exceed the maximum line speeds
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`authorized under the existing inspection systems.” Id. FSIS then described and endorsed
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`OSHA’s recommendations, while noting that it did “not have the authority to require that
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`establishments adopt these recommendations.” Id. “To stress the importance of
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`establishment worker safety, FSIS has modified the proposed regulation that prescribes
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`maximum line speed rates under the NPIS to emphasize establishments’ existing legal
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`obligation to comply with OSHA statutes.” Id.
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`In the poultry rule, FSIS directly addressed comments about line speeds and
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`worker safety by reviewing the research cited by commenters. Id. at 49,598. In doing so,
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`it noted that “a key distinction should be made between processing line speed, inspection
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`line speed, and daily production volume.” Id. FSIS only directly regulates poultry
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`inspection lines and the work pace at a plant depends on multiple factors. Id. For
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`example, staffing, technology, operating hours, and production volume also affect work
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`pace. Id. Notwithstanding that observation, FSIS created a safety-related attestation
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`requirement for poultry plants to address “concerns about the effects that increased line
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`speeds might have on the health and safety of workers.” Id. at 49,600. The attestation
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`requires poultry plants to state that they maintain “a program to monitor and document
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`any work-related conditions that arise among establishment workers.” Id. “As OSHA is
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`the Federal agency with statutory and regulatory authority to promote workplace safety
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`and health, FSIS will forward the annual attestations to OSHA for further review.” Id.
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`Finally, FSIS suggested that its adoption of the attestation requirement was within
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`its regulatory authority as established by statute and Executive Order 12866. It noted that
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`FSIS “will not be responsible for determining the merit of the content of each
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`establishment’s monitoring program or enforcement of noncompliance with this section.”
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`Id. It also stated that the requirement of coordinating with OSHA was “[c]onsistent with
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`the mandate of E.O. 12866.” Id. Executive Order 12866 promotes interagency
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`coordination and the reduction of “unacceptable or unreasonable costs on society.” Exec.
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`Order No. 12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993). FSIS justified the attestation by
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`noting that identifying worker risks would “reduce the costs associated with worker
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`injury by enabling establishments to adjust their processes or implement other
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`appropriate measures before additional employees are affected.” Modernization of
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`Poultry Slaughter Inspection, 79 Fed. Reg. at 49,600.
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`3. 2017 Government Accountability Office Report
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`In 2017, the Government Accountability Office (“GAO”) reviewed OSHA and
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`FSIS efforts to improve workplace safety at meat and poultry plants. It found that the
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`MOU between OSHA and FSIS had not been fully implemented and that FSIS officials
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`did not report workplace hazards to OSHA for fear of triggering an inspection. 2017
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`GAO Report at 34. FSIS had not contacted OSHA “as it developed a proposed rule that
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`would, among other things, have permitted plants to operate at a faster maximum speed.”
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`Id. at 37. FSIS officials stated that coordinating with OSHA was unnecessary because
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`they believed that the Office of Management and Budget interagency review process was
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`sufficient to address any worker safety concerns. Id. at 38.
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`GAO concluded that “the federal government is missing out on a cost-effective
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`opportunity to further protect the safety and health of both plant workers and FSIS
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`inspectors.” Id. at 49. In response to this report, FSIS noted that “in collaborating with
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`OSHA, FSIS will need to ensure its primary mission is not compromised by undertaking
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`activities that take time and resources away from its food safety inspection
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`responsibilities.” Id. at 52.
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`II. NSIS Implementation
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`Since the Final Rule took effect, several pork processing plants have converted to
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`the NSIS. Workers at several facilities that FSIS anticipated would implement the NSIS
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`submitted affidavits explaining how line speeds affect their health and safety.
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`A. Plants Adopting the NSIS
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`According to the USDA, as of July 28, 2020, seven pork processing plants had
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`converted to the NSIS. Decl. of Hany Sidrak (“Sidrak Decl.”) ¶ 5. Of these plants, only
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`Seaboard Foods in Guymon, Oklahoma had experienced a change, because the other
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`plants had previously operated under HIMP or received line speed waivers. Id. ¶ 6.1 Two
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`other plants had written to USDA stating that they intended to convert to the NSIS in
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`2020. See Decl. of Adam Pulver (“Pulver Decl.”) Exs. 1–2, ECF No. 108.
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`Three of these plants submitted affidavits through amici, the North American Meat
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`Institute and the National Pork Producers Council. See Amicus Brief of the N. Am. Meat
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`Inst. & Nat’l Pork Producers Council (“Pork Industry Amicus Brief”) Exs. 1–3. An
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`operational vice president from Clemens Food Group testified that its plants operated at
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`an average speed of 1250 heads per hour (“hph”) between May and July of 2020. Id. Ex.
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`1, Decl. of Eric Patton (“Patton Decl.”) ¶ 5. Clemens spent about $63 million to upgrade
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`its facilities for the NSIS and anticipates a $42 million annual increase in profits as a
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`result. Id. ¶ 15. WholeStone Farms Cooperative operated at an average line speed of 1295
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`hph in 2020. Id. Ex. 2, Decl. of WholeStone Farms Coop. (“Weers Decl.”) ¶ 5. Seaboard
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`Foods averaged a line speed of 1118 hph in the second quarter of 2020 and invested $82
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`million in upgrades to convert to NSIS. Id. Ex. 3, Decl. of Stephen Summerlin
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`(“Summerlin Decl.”) ¶¶ 3, 14.
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`The Final Rule ended the pre-existing waivers. Final Rule at 52,301. FSIS is
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`authorized to grant waivers for limited time periods for experimentation. 9 C.F.R.
`§ 303.1(h).
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`B. Workers Affected by the NSIS
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`Plaintiffs in this case are three local chapters of the UFCW and the international
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`UFCW.2 According to its constitution, the international UFCW is authorized to represent
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`the members of these local chapters. Decl. of Richard Dennis Olson (“Olson Decl.”) Ex.
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`A., 2018 UFCW International Constitution, art. 1(A). Plaintiffs’ members work in all
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`aspects of pork production, including on the evisceration line, kill floor, and production
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`line. Decl. of Martin Rosas ¶ 6. They submitted affidavits explaining how evisceration
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`line speeds affect their work.
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`Plaintiffs’ members testified that they face significant risks when the evisceration
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`line operates at higher speeds. For example, Chiedzo Henry works on the evisceration
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`line at the JBS plant in Ottumwa, Iowa and uses sharp scissors to remove the pancreases
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`of hogs. Decl. of Chiedzo Henry (“Henry Decl.”) ¶ 4. Demarcus Sykes guts hogs at the
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`Tyson plant in Waterloo, Iowa and uses “sharp knives to remove viscera while hog
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`carcasses pass by on a moving, mechanized line.” Decl. of Demarcus Sykes (“Sykes
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`Decl.”) ¶ 4. At the Tyson plant in Logansport, Indiana, Robert Haskew similarly uses
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`knives to trim viscera. Decl. of Robert Haskew (“Haskew Decl.”) ¶¶ 1–4. Union
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`members on the evisceration line state that they are more likely to be injured by
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`The local labor unions represent workers at four swine processing plants in
`2
`Minnesota, Iowa, Missouri, and Oklahoma. Decl. of Matthew Utecht ¶ 4 (Local 663,
`Minnesota); Decl. of Leo Kanne ¶ 4 (Local 440, Iowa); Decl. of Martin Rosas ¶¶ 4–5
`(Local 2, Missouri and Oklahoma). Each of these plants is one that FSIS identified as
`likely to increase its line speeds and adopt the NSIS. Decl. of Richard Dennis Olson
`(“Olson Decl.”) ¶ 5. The international UFCW represents 33,000 workers in the pork
`processing industry and its members work at 18 of the 40 high-volume establishments
`FSIS expected to implement the NSIS. Olson Decl. ¶ 5; Final Rule at 52,322.
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`lacerations when working at faster speeds to keep pace with the line. See, e.g., Henry
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`Decl. ¶ 5.
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`Before hogs reach the evisceration line, they pass through the kill floor where
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`workers gambrel the hogs by cutting and hanging the carcasses. Decl. of Mark Lauritsen
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`(“Lauritsen Decl.”) ¶ 17. This requires workers to maneuver and lift hog carcasses that
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`weigh approximately 400 pounds. Decl. of Sean Fuller (“Fuller Decl.”) ¶ 5. When the
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`evisceration line moves faster, the kill floor workers must keep pace with the line. Id. ¶ 7.
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`These workers state that hog carcasses will sometimes fall from the hooks, injuring
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`workers, and that this risk increases as they work at higher speeds. Id.; Decl. of Jose
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`Quinonez (“Quinonez Decl.”) ¶ 13; Decl. of David Eric Carrasco (“Carrasco Decl.”)
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`¶ 10. David Eric Carrasco at the Smithfield plant in Denison, Iowa testified that he has
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`hooked himself by accident because of high speeds. Carrasco Decl. ¶ 9. He has also had
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`hogs fall on him and has seen workers injured by falling hogs. Id. ¶¶ 10–12.
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`Marty Stein, who also works at the Smithfield plant in Denison, testified:
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`“everything I do is affected by the line speed.” Decl. of Marty Joseph Stein (“Stein
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`Decl.”) ¶¶ 1, 6. He processes internal organs directly from the kill floor to produce pet
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`food and must keep pace with the line. Id. ¶¶ 5–6. Amanda Miranda works on the kill
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`floor at a Triumph Foods facility in St. Joseph, Missouri. Decl. of Amanda Miranda
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`(“Miranda Decl.”) ¶ 1. She testified that when the line moves faster, workers get behind
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`on making the required incisions while the hog is directly in front of them. Id. ¶ 16. That
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`means that they must scoot over to reach hogs that have already passed their area, making
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`it more likely they will collide with and possibly cut other workers. Id.
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`Jose Quinonez is a union member who works at the Seaboard Foods plant in
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`Guymon, Oklahoma. Quinonez Decl. ¶ 1. He is a “walking steward” on the production
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`floor. Id. ¶ 5. He also works as a tongue x-ray operator and removes skin and hair using a
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`six-inch knife at a table with other workers. Id. ¶¶ 9–10. He states that the line speeds
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`were running at about 1200 hph in 2020 prior to the COVID-19 outbreak. Id. ¶ 8. He
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`testified that the plant did not change hours or hire more workers, but instead required
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`them to work faster. Id. ¶ 14. When working faster, he feels more pain in his hands and
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`shoulders from repetitive motions. Id. ¶¶ 11–12. Additionally, he testified to witnessing
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`hogs fall off the chain and injure workers on the kill floor. Id. ¶ 13.
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`Other UFCW members have worked on the cut floor where they trimmed chilled
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`meat. For example, Elizabeth Bell, who now boxes meat products at the Smithfield plant
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`in Tar Heel, North Carolina, used to skin and cut pork loins using a circular blade. Decl.
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`of Elizabeth Bell (“Bell Decl.”) ¶¶ 1, 8. She testified that she has “seen USDA inspectors
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`stop the line when a worker is injured in the past, or in order to stop a worker from being
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`injured.” Id. ¶ 12. “They have to stop the line when people get injured because people
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`bleed on the line.” Id. Pablo Martinez currently cuts pork loins at the JBS facility in
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`Worthington, Minnesota. Decl. of Pablo Martinez (“Martinez Decl.”) ¶¶ 1–2. He has
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`testified that he experiences pain when the lines move faster and has “observed severe
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`hand injuries to my coworkers on the kill floor who use knives.” Id. ¶ 8. He wrote: “I see
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`that workers’ hands so mangled I cannot imagine they could even write a check.” Id.
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`
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`Hany Sidrak, a Deputy Assistant Administrator in FSIS’s Office of Field
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`Operations has testified that the elimination of evisceration line speed limits will only
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`CASE 0:19-cv-02660-JNE-TNL Doc. 125 Filed 03/31/21 Page 17 of 68
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`affect the work pace of the evisceration line, not the processing line. Sidrak Decl. ¶ 1.
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`After evisceration, the hogs are chilled for approximately 24 hours before further
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`processing can occur. Id. ¶ 13. “Because of this chilling step, the speed of evisceration
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`lines can have no impact on the speed of processing lines.” Id. This official also testified
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`that most employees do not use sharp objects on the evisceration line: “The only
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`establishment employees who use knives on the evisceration line are those responsible
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`for removing abnormalities and contamination from carcasses and those who incise
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`mandibular lymph nodes.” Id. ¶ 12.
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`
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`Pork producers cited data from three plants to demonstrate that there is no
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`correlation between increased line speeds and injuries. See Pork Industry Amicus Brief at
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`5, 10, 15. At Clemens, for example, the OSHA reportable incident rate for repetitive
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`motion injuries has decreased from a rate of 18.1 per 100 employees in 2014 to 3.1 in
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`May and June of 2020. Patton Decl. ¶¶ 6–13. The incident rate for lacerations has been
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`more variable, from 2.9 in 2014, to a low of 1.3 in 2019, to a new high of 3.8 in 2020. Id.
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`III. Procedural History
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`Plaintiffs filed this lawsuit under the APA challenging the reduction in FSIS
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`inspectors and the elimination of line speed limits. See 5 U.S.C. § 706. Plaintiffs argue
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`that USDA’s elimination of line speed limits was arbitrary and capricious because the
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`agency failed to consider worker safety. USDA moved to dismiss the lawsuit and in April
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`2020, the Court dismissed Plaintiffs’ challenge to the inspector reduction for lack of
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`standing but allowed the line speed challenge to proceed.
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`After the Court ruled on Defendant’s motion to dismiss, Defendant filed a motion
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`to stay summary judgment proceedings and remand the case back to the agency without
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`vacating the Final Rule. While that motion was pending, Plaintiffs moved for summary
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`judgment. The Court denied Defendant’s request to stay summary judgment proceedings
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`and deferred ruling on the remand request until it ruled on summary judgment. Defendant
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`then filed a cross-motion for summary judgment. Now, the parties’ cross-motions for
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`summary judgment and Defendant’s remand request are before the Court.
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`DISCUSSION
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`I. Article III Standing
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`USDA argues that Plaintiffs cannot prove that they have standing under Article III
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`of the Constitution. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992); Iowa League
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`of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013). Because standing is a jurisdictional
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`requirement, “the court has an independent obligation to assure that standing exists,
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`regardless of whether it is challenged by any of the parties.” Summers v. Earth Island
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`Inst., 555 U.S. 488, 499 (2009). On USDA’s motion to dismiss, the Court concluded that
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`Plaintiffs had pleaded Article III standing for their challenge to the elimination of line
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`speed limits in the Final Rule. Now, “to survive a summary judgment motion, ‘[they]
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`must set forth by affidavit or other evidence specific facts’” to prove each element of
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`