With or without USDA support, hog producers push line-speed case to the appellate court

It looks like the line-speed issue involving market hogs is going down the Big River for a decision by the Eighth U.S. Circuit  Court of Appeals in St. Louis with or without USDA’s help.

On April 1,  2021, a federal judge in St. Paul ruled that the USDA violated the federal Administrative Procedures Act (APA) by failing to consider if higher line speeds would harm workers.

The judge delayed the implementation of her order for 90 days. The National Pork Producers Council (NPPC) has used that time to lobby USDA to appeal the ruling.  And, it has used a new analysis by Iowa State University economist Dermot Hayes to show slowing line speeds will be an economic disaster.

Hayes finds the district court ruling will result in a 2.5 percent loss in pork packing plant capacity nationwide and more than $80 million in reduced income to small U.S. hog farmers.

“Some of the media reporting on this issue has inaccurately attributed the faster line speeds to decisions made under the Trump administration,” Hayes reports. “Five of the six plants affected by the court decision have been running at higher line speeds for decades. The other plant adopted higher line speeds under the New Swine Inspection System following USDA approval in 2019. Plans by other plants to adopt NSIS line speeds were delayed by the global pandemic.”

USDA’s silence about an appeal has not stopped Clemens Food Group, Quality Pork Producers, and Wholestone Farms Cooperation, who’ve intervened in the St. Paul case from asking for a review by the Circuit Court in St. Louis. Clemens, Quality Pork, and Wholestone have also asked for a continued stay pending appeal.

The court is deciding that issue without a hearing on June 9. District Court Judge Joan N. Ericksen did throw a lifeline out to the U.S. Department of Agriculture if the department needs more time.

She did, however, transmit the appeal to the Eighth Circuit on Wednesday.

A declaration by Clemens Vice President Eric Patton includes the submission of its line-speed data from 2014 to 2020, showing a decline in repetitive motion injuries and mostly unchanged laceration injuries while the line-speed increased to 1,210 carcasses per hour, up from 1,076.

“Clemens cannot maintain its current production capacity if it is forced to reduce its line speeds,” Patton’s declaration says. “Due to staffing shortages, infrastructure, sanitation practices, and other considerations, Clemens cannot make up the differences in production by adding shifts or workdays.”

Because breeding plans are developed years in advance, and it takes 16 months for Clemens to adjust production levels, the forced reductions mean hog producers will have to seek other facilities to harvest excess hogs.

“If the farmer-owners cannot find alternative harvesting facilities, their only options will be to mass-euthanize their excess hogs,” Patton says.

Plaintiffs in the Minnesota case are the United Food and Commercial Workers(UFCW) Union and its Local Unions No. 2, 440, and 663. The UFCW unions sued USDA in a matter that was eventually narrowed to the line-speed issue.

In her ruling, Ericksen found USDA was trying to have it both ways.

“USDA argues that because it had no authority to regulate worker safety under the relevant statutes, it reasonably answered the safety-related comments by stating that it had no authority to regulate worker safety. This circular logic fails to provide a reasonable explanation,” she wrote.

“As USDA acknowledged in its briefing, it could consider the effects its regulations would have on worker safety even if it had no authority to directly regulate workers. In other words, the question of whether (USDA’s  Food Safety and Inspection Service) has the authority or expertise to directly regulate worker safety does not determine whether FSIS is forbidden from considering the collateral effects its rulemaking might have on workers. Therefore, FSIS’s stated reason for declining to consider those collateral effects was not a rational explanation.”

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