The White House’s Cass Sunstein has found another poster child for his crusade to eliminate costly regulation under President Obama's Executive Order 13563. The order requires agencies and departments to “look back” at existing requirements in order to kill unnecessary health, safety, and environmental requirements. The U.S. Department of Agriculture (USDA), complying dutifully with the order, has dug deep into the garbage can where abandoned deregulatory proposals go to die, producing a despicable plan regarding poultry processing plants, already among the most hazardous workplaces in the nation. The proposed rollback would make corporate owners rather than federal inspectors responsible for scrutinizing slaughtered carcasses to ensure they are free of blood, guts, and (euphemistically) “fecal matter.” The new rule would save the federal government about $39 million annually—a small amount that accounts for the savings at USDA when a few hundred inspectors are offloaded. But the proposal would save the poultry industry an estimated $259 million annually.
How, you might be wondering, would a rule that requires companies to shoulder important new responsibilities save them money? Because without federal inspectors checking individual carcasses as they flash by on an already back-breaking assembly line, multi-billion dollar companies like Pilgrim’s Pride, Perdue, and Tyson’s will be able speed up those lines considerably, requiring workers to process as many as 175 birds per minute or three birds per second while still checking for fecal matter and other nasty detritus. Or, in other words, the existing workforce, with a smattering of additions (about one position for each of the 219 covered plants)—no big job development here!--will be put in the insufferable position of working that much faster, with the added responsibility of safeguarding public health.
The proposal to offload federal inspectors in favor of industry self-regulation was first raised in 1997, and was sufficiently controversial that Sen. Tom Harkin (D-Iowa) commissioned a Government Accountability Office (GAO) report on a USDA pilot program to test the implications of such a shift. The GAO findings were withering: not only was the USDA pilot program poorly designed and badly executed, independent, follow-up inspections at the program’s processing plants showed that “most of the inspection systems at these plants did not meet the safety standard for the presence of fecal material, which could contain harmful bacteria such as E. coli.” USDA did not even require pilot program companies to provide any special training for workers serving as inspectors, a conspicuous omission. In fact, GAO recommended that USDA require training if and when the pilot was expanded industry-wide. The pilot program remained in place but the Bush USDA dropped the idea of expansion.
In January 2012, the proposal mysteriously rose from the dead, with USDA describing it as a win for all parties. Ignoring GAO’s cautions, the resurrected proposal does not require any “formalized sorter training,” instead warning meekly that at some point in the future USDA may take a company to task for an egregious lack of training. USDA claims that salmonella infections would fall by 4,286, from an estimated 174,686 illnesses annually, and that campylobacter infections now affecting 169,005 people would decline by 986. (Campylobacter is an infectious disease that causes nausea, abdominal cramping, fever, and bloody diarrhea.) It gave no coherent reason why even these very modest decreases would result from a rule that put workers under excruciating pressure to do much more with less.
As for the line speed increases that will save industry some $256 million annually, USDA’s Federal Register notice announcing the proposal is at best cagey about their implications for worker safety: “One limitation of the existing inspection systems is that they require online inspectors to conduct sorting activities. This necessitates a time intensive online process that requires FSIS to allocate significant personnel resources to conduct activities that are more appropriately the responsibility of the establishment. The current systems thus limit line speeds, even if establishments can demonstrate that they are able to produce safe, unadulterated, wholesome products at more efficient rates.” (See 77 Fed. Reg. 4410.) How fast is too fast? The USDA does not opine on this crucial issue.
USDA’s incompetence on worker safety is long-standing; in fairness, it has enough trouble keeping a respectable distance from the industries it boosts when it must, with reluctance, try and regulate them. One can make an educated guess, though, that a rollback of this nature would have had a hard time getting past the Occupational Safety and Health Administration (OSHA), especially given its focus on Hispanic workers, who make up close to half of the poultry processing plants. We’ll never know for sure, but it would seem that OIRA’s enthusiasm for a deregulatory trophy to wave in the air prompted a short-circuiting of the vaunted “interagency review” it so strongly favors when a protective EPA rule is involved. Confirming this perception of a double standard is the embarrassing fact that no Regulatory Impact Assessment (RIA) had yet been posted in the rulemaking docket. Sunstein takes great umbrage at the notion that he and his staff are anything but neutral policy analysts who objectively assess regulatory matters, providing badly needed smart and penetrating review no matter which way the issues cut. Yet in this, as in so many other examples, OIRA greases the skids toward deregulation, while the skids that favor protection of public health, worker and consumer safety, and the environment are sticky indeed.
Meat and poultry processing is “among the most dangerous” occupations in the U.S., according to the GAO:
The work is physically demanding, repetitive, and often requires working in extreme temperatures—such as in refrigeration units that range from below zero to 40 degrees Fahrenheit—and plants often have high turnover rates. Workers often stand for long periods of time on production lines that move very quickly, wielding knives or other cutting instruments used to trim or remove portions of the carcasses. Conditions at the plant can also be loud, wet, dark, and slippery.
Although injury rates have been declining—down in 2010 to 5.9 per 100 workers from 14.7 in 2001, poultry processing remains twice as hazardous as other manufacturing occupations. According to a 2007 article in the American Journal of Industrial Medicine, musculoskeletal injuries to the head and neck were 2.4 times as prevalent in low-income African American women working in poultry processing as their counterparts in other occupations.
The United States has the distinction of being the world's largest poultry producer and the second-largest exporter of poultry meat, producing more than 43 billion pounds annually at a value that exceeds $20 billion. A recent Pew Environmental Group report explains that chicken is the most popular meat in the country, with the average American eating about 84 pounds annually, more than twice the amount we consumed in 1970.
Rather than address the challenges posed by this already under-regulated industry, Cass Sunstein and his SWAT team of deregulatory-minded economists have set the stage for yet another regulatory catastrophe. And we have every reason to expect matters to get a whole lot worse. A column by Dana Milbank in the Washington Post quotes a USDA inspector pointing out that if the poultry initiative survives, it is likely to be extended to red meat production (hogs and cattle), setting the nation up for another food poisoning episode of major proportions. Food and Water Watch, a national consumer group, obtained 5,000 USDA inspection reports from plants in the program, and said that its analysis of the document demonstrates that “company employees often miss defects like feathers, lungs, oil glands, trachea and bile still on the carcass.”
It’s enough to make one pause at the check-out line, returning those packages of chicken to their refrigerated case.
Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.
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