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.

OIG Position:
We accept FSIS’ management decision on this recommendation.

Recommendation 2-Communicate to the public the actual review period associated with FSIS’ analysis.

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

OIG takes issue with the sentence in the proposed rule that states, “FSIS compared in- establishment injury rates between HIMP and traditional establishments from 2002 to 2010” (83 FR 4780, 4796) because the Agency also looked at data from 2011. FSIS has explained several times that the “2010” is a minor typographical error and did not affect the conclusions of the analysis. Further, even with the minor typographical error, the sentence in the proposed rule is factually correct. Regardless of what time span is utilized – 2002-2010 or 2002-2011 – both show that HIMP establishments had lower mean injury rates than non-HIMP establishments. Again, the typographical error did not affect the conclusions of the analysis, so while the dates did contain an error, it had no bearing on the outcome, discussion, or understanding of the document.

As FSIS has explained to OIG multiple times, this recommendation has already been addressed with the publication of the final rule “Modernization of Swine Slaughter Inspection” (84 FR 52300). In the final rule (84 FR 52300, 52305), FSIS included a link to its Electronic Freedom of Information Act (FOIA) Reading Room, which contains documents that show FSIS’ full analysis of worker injury data. FSIS believes that this response is sufficient because the preliminary worker injury analysis was not used as a foundation for the rulemaking.

OIG Position
We do not accept FSIS’ management decision for this recommendation. While the linked documents in FSIS’ Electronic Freedom of Information Act (FOIA) Reading Room contain 2011 data for some individual establishments, the documents also contain the erroneous statement that the scope of FSIS’ worker safety analysis was from 2002 to 2010. To reach a management decision, FSIS needs to communicate to the public the actual review period associated with its analysis.

Recommendation 3- Communicate to the public the known limitations of the OSHA data used for FSIS’ analysis.

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

Similar to the response above, FSIS believes that this recommendation has already been addressed with the publication of the final rule “Modernization of Swine Slaughter Inspection” (84 FR 52300). In the final rule (84 FR 52300, 52305), FSIS included a link to its Electronic FOIA Reading Room, which contains documents that show FSIS’ full analysis of worker injury data. FSIS believes that this response is sufficient because the preliminary worker injury analysis was not used as a foundation for the rulemaking.

Additionally, FSIS explained to OIG that when the USDA guideline recommends verifying third-party data, it is not referring to data from other federal agencies. Federal agencies generally accept data from other federal agencies. FSIS does not have the authority to contact establishments to independently verify OSHA’s worker injury data and doing so would place an unnecessary information collection burden on industry.

OIG Position
We do not accept FSIS’ management decision for this recommendation. The linked documents in FSIS’ Electronic Freedom of Information Act (FOIA) Reading Room disclose additional known limitations that were not included in the language of the proposed or final rule.56 However, we determined that FSIS was aware of other limitations but did not disclose them. To reach management decision, FSIS needs to communicate all known limitations to the public. Specifically, FSIS still needs to communicate: (1) the data the agency used in its analysis of the 29 establishments did not include injury and illness rates for all establishments for each of the 10 years, and (2) the data used did not differentiate whether injuries/illnesses occurred on the swine slaughter line or elsewher within the establishment.

Recommendation 4- Determine the impact of (1) publishing an inaccurate review period related to the worker safety analysis in the proposed rule; and (2) not disclosing all known limitations related to the data used for the worker safety analysis in the proposed rule.

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

There is no impact related to the preliminary analysis of worker injury data because, as FSIS has explained multiple times, the preliminary analysis was not used to support the proposed rule. The preliminary analysis was only included as part of a larger request for comments. Many commenters suggested that FSIS should not use the data to inform decisions on worker safety, and FSIS clarified in the final rule that it did not use the data as a foundation for the rulemaking (see 84 FR 52300, 52305).

FSIS completed this action on October 1, 2019.

OIG Position
We accept FSIS’ management decision on this recommendation.