We’ve received the bad news from impeccable sources that the much-criticized USDA poultry processing rule has passed White House review at record speed—20 days, count ‘em!—and will be released late this afternoon. As usual, the process of OIRA review was shrouded in secrecy, with affected stakeholders filing in and out of the White House to talk about a rule they had never seen to taciturn OIRA officials who had long since cut a deal with USDA. Of course, the late afternoon release is designed to forestall criticism in the same news cycle that will report the White House spin on the rule. But we know enough about it to make some basic observations.
Our sources informed us that the rule will allow companies to have processing lines that run at the speed of 140 birds per minute—that’s 2.3 chickens every single second, although it’s also the current USDA maximum, allowing USDA to claim that the new rule doesn’t make matters any worse.
OSHA, which was deeply involved in negotiations with USDA, clearly views this outcome as a great victory because it reduces by 35 birds/minute the original and outlandish USDA proposal that line speeds increase to 175 birds/minute. But saving workers from the furthest reach of bad conditions without beginning to address their documented daily misery is incremental change, not victory. The plain truth is that study after study, including a recent NIOSH report, have documented severe ergonomic injuries at line speeds significantly below 140 birds/minute. OSHA didn’t review those studies dispassionately in a rulemaking that would honor its mission of protecting workers from harm. Instead, it played a numbers game with USDA under the watchful eye of White House staffers, leaving an already bad working situation to fester.
The final rule contains a requirement that chicken processing plants put up a poster informing workers that they have the right to report ergonomic injuries. The plant operators must accept such reports and make them available for OSHA scrutiny. This requirement is also a modest improvement on the status quo: some plants allow workers suffering shooting pains in their arms and hands to visit with a nurse, but fire them if they go see a doctor. But does anyone really think that this requirement will be honored by such ruthless employers or that this cowed, unorganized work force will be courageous enough to make such reports? Only systematic and vigorous enforcement will produce such results. We’ll be watching to see if OSHA can muster some.
Also as a result of this rule, federal inspectors will be pulled off the processing lines, breaking a key link in the thin chain of ensuring food safety that has already failed us too many times, most notably in the Foster Farms fiasco. Rather than having skilled, independent inspectors watching operations in the plant, the rule shifts inspection to company employees who are sensitive to production quotas and job stability. In addition there is an absence of minimum standards for preventing Salmonella and Campylobacter contamination that continues to threaten millions of consumers.
The rule was with OIRA for 20 days — the blink of an eye by OIRA standards, and the speed with which it shot through may be the best indication that it does not address the many concerns that prominent consumer groups, public health advocates, labor unions, worker safety advocates, and the National Council of La Raza raised in public comments to the USDA. Why La Raza? Thirty-four percent of poultry processing workers are Hispanics, working for wages a bit better than the minimum wage in among the harshest conditions anywhere in American industry. If the rule modernized anything in a good way, OIRA’s typical practice would be to open it up to a months-long drubbing by industry.
CPR has amply documented the achingly slow pace of OIRA’s review of a range of rules aimed at protecting workers, consumers and the environment. In the past, rules to enact key provisions of the Food Modernization and Safety Act of 2010 have been stuck at OIRA long past the prescribed 90-day review period, and thousands of Americans continue to get sick from food-borne illnesses that are easily preventable. The Obama Administration has allowed exactly one OSHA health standard to emerge from the OIRA process: a proposed rule to protect people whose work exposes them to silica dust. It has been 15 years in the making.
Like the Bush Administration before it, the Obama White House claims the OIRA process is used to strengthen rules; history demonstrates otherwise. This shameful exercise in non-review is more of the same. We will be looking through the rule when it is posted in the Federal Register, but we’re willing to bet that it has a lot more in store for industry than for workers and consumers.
Editors' note: the rule has yet to be released. Please keep an eye on CPRBlog for further analysis as soon as the rule’s text is available
Rena Steinzor, CPR President; Professor of Law, University of Maryland Carey School of Law. Bio.
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