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Is UFCW v. USDA the end or just the beginning of the great line speed debate?

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Seaboard Foods wants to intervene in UFCW v. USDA “to move to stay the effect of the Court’s forthcoming judgment by 10.5 months as to Seaboard, and for the purpose of perfecting an appeal” with a stay pending appeal if necessary.

A federal court in Minnesota in March ruled that USDA’s Food Safety and Inspection Service (FSIS) hadn’t fully assessed how faster line speeds in pork plants affect employee safety. Shortly after the March 31 ruling, USDA notified pork processors that plants running faster than 1,106 hogs per hour should prepare to slow down.

Seaboard says it is “profoundly affected” by the court’s line-speed ruling and is “grateful” for the court’s 90-day pre-judgment stay, but it says to save it from “certain and significant loss” the stay needed to be extended by at least another 10.5 months.

UFCW v. USDA involves several local unions and the federal government. Seaboard’s intervention would add private sector interests into the litigation. The Kansas-based Seaboard argues that its vertically integrated supply chain is processing the hog supply that was put into development with reliance on FSIS’s now-vacated line speed provisions.

The UFCW (United Food and Commercial Workers) affiliated local unions argue that worker safety is at risk from high line speeds, while processors say an efficient line speed is based on current staffing and other issues. And, line speed can make the difference between a 5- or 6-day work week.

Seaboard’s request to intervene in the lawsuit includes a history of the litigation: “Briefly: a group of unions brought this Administrative Procedures Act challenge to the New Swine Inspection System (NSIS) rule adopted by USDA’s Food Safety and Inspection Service (FSIS) in October 2019.

“That rule allowed reforms to FSIS’s swine-inspection protocols and, as a result of those reforms, eliminated evisceration line speed limits for plants that adopted them. USDA defended the action.

“The Court’s decision rested in three parts. One, plaintiffs had the standing to challenge the NSIS rule. Two, the rule’s elimination of line-speed limits was arbitrary and capricious and therefore violated the APA. And three, the line- speed-elimination provision was severable and would be vacated pending remand to USDA, while the rest of the rule would remain in place.

“The Court exercised its discretion, though, to stay (delay) the order and entry of judgment for 90 days, ‘to allow the agency to decide how to proceed in light of this opinion and give regulated entities time to prepare for any operational change.’

“Seaboard, one of the regulated entities that overhauled its operations in reliance on the NSIS rule, has carefully and thoroughly considered the operational changes required by a return to 1,106 line speeds and seeks to intervene for the purpose of protecting its interest as affected by the Court’s ruling.

“Seaboard is deeply and immediately affected by the return to 1,106 line-speed limits required by the Court’s ruling, and its interest will go unprotected apart from intervention.”

“Seaboard also ordered its vertically integrated pork supply chain to account for its ability to operate at faster line speeds. Seaboard’s Vice President of Operations, Stephen Summerlin, explains the process and the consequences of the reversion to 1,106 line speeds in his attached declaration (declaration contained in original court documents).

“Being vertically integrated means that Seaboard owns and controls its entire pork-production process from start to finish. Seaboard has developed that process in reliance on, and in accordance with, the Guymon facility’s ability to run at unrestricted line speeds under the NSIS rule. The timeline of the process is such that if Guymon is required to return to evisceration line speeds capped at 1,106 head per hour, it will take at least 10.5 months to clear out the excess production that is already in the pipeline.”

Federal Judge Joan N. Ericksen has given the parties in the case until Friday, May 7, for “any response” to the Seaboard motion to intervene.   The National Pork Producers Council and the North American Meat Institute and Seaboard filed amicus briefs in the litigation last year. It is not known if any additional industry players will ask to intervene.

Erickson delayed her line speed order by 90 days, making its effective date around July 1.

The USDA could appeal the District Court ruling or propose new rules

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