The Office of Inspector General (OIG) report on USDA’s recent rulemaking for the Modernization of Swine Slaughter Inspection did not find much to concern USDA’s Food Safety and Inspection Service (FSIS).

“We determined whether FSIS,” the OIG report says, “with respect to its worker safety analysis section of the proposed rule: (1) complied with public transparency requirements under E.O. 13563; (2) made information about its preliminary analysis on worker safety clearly accessible to the public during the comment period; (3) adhered to the guidelines in developing the proposed rule; (4) came to a reasonable determination about the reliability of the OSHA injury data it used for the proposed rule; and (5) consulted with OSHA and NIOSH about the impact of the proposed rule on workplace safety and health.”

FSIS Administrator Paul Kiecker responded by charging OIG’s report stems from ” a distorted emphasis placed by the auditors on minor errors.” Kiecker, who has led the $1 billion agency since March, says OIG did not properly apply the Obama era Executive Order and the auditors distorted minor errors in the rule’s text.

The FSIS published a rule on the Modernization of Swine Slaughter on Feb. 1, 2018. As part of this rule, the FSIS proposed to revoke maximum swine slaughter line speeds for participating establishments and authorize them to set their line speeds based on their ability to maintain quality and performance measures. The report adds. “In the proposed rule, FSIS compared worker safety data from the Occupational Safety and Health Administration (OSHA) for large establishments with different allowed line speeds (“worker safety analysis”).”

Line speed grew into a political issue of its own and by March 26, 2019, several members of Congress asked to review USDA’s rulemaking process related to the proposed rules’ worker safety analysis.

“based on our inspection, we concluded that FSIS generally complied with the public participation requirements under Executive Order (E.O.) 13563 and, to the extent required, communicated to OSHA and the National Institute for Occupational Safety and Health (NIOSH) about the impact of the proposed rule,” it continued.

“However, we found that FSIS did not fully disclose its data sources in its worker safety analysis. Additionally, we concluded that it did not fully adhere to the USDA Information Quality Activities Guidelines (“Guidelines”) data presentation and transparency requirements in the worker safety analysis section in the proposed rule. Finally, we concluded that FSIS did not take adequate steps to determine whether the worker safety data it used for the proposed rule were reliable.”

During the period when the rule was being advanced, Kiecker was deputy FSIS Administrator.  OIG made four recommendations to FSIS but backed off on two after arguments from FSIS.  Here’s how that discussion occurred:

Audit Recommendation 1 – updat FSIS’s internal procedures for the rulemaking process to include a review of proposed rules to ensure compliance with USDA’s Information Quality Activities Guidelines, including data source transparency requirements.

FSIS Response:
In its May 21, 2020, response, FSIS stated:

As explained above, FSIS maintains that it complied with Departmental guidance because the preliminary worker injury analysis was not used as a foundation for the rulemaking. Nevertheless, FSIS intends to updat FSIS Directive 1232.4, Regulations Development and Clearance, to include additional instructions for FSIS employees who review Federal Register documents before publication. FSIS will include key points from the Department’s Information Quality Activities Guidelines.

FSIS provided an estimated completion date of October 30, 2020, for this action.