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Granting NCC petition to increase poultry line speeds would violate federal rules, F&WW says

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Food & Water Watch (F&WW) is urging USDA’s Food Safety and Inspection Service (FSIS) to reject a Sept. 1 petition from the National Chicken Council (NCC) to allow faster line speeds in the slaughter inspection system, arguing the agency would violate rulemaking procedures if it grants the petition.

NCC’s petition asks the agency to establish a waiver program that allows establishments participating in both the New Poultry Inspection System (NPIS) and the Salmonella Initiative Program (SIP) to operate “without the arbitrary speed limitations” imposed under NPIS, which currently caps poultry line speeds at 140 birds per minute (bpm).

The waiver program, as NCC envisions it, would allow chicken slaughter plants to operate at any line speed they choose, as long as they can demonstrate they can maintain process control and conduct corrective actions if they lose process control.

FW&W, which opposes increasing poultry line speeds because of food and worker safety concerns, said FSIS would violate the Administrative Procedure Act (APA) if it grants NCC’s petition without going through the normal rulemaking channels, which require a Federal Register notice and comment period.

The NCC petition is publicly available on the FSIS website, but the agency has not published the petition in the Federal Register and it is not available on for comment.

If FSIS is considering changing poultry line speeds as requested by NCC, the agency should also host a public hearing on the proposal, F&WW said in an Oct. 5 letter to Carmen Rottenberg, acting deputy under secretary for food safety.

When FSIS established the 140-bpm line speed for NPIS slaughter plants, it did so under a legislative rule that prescribed binding law applicable to all facilities opting into the NPIS program, F&WW said. “There is no ambiguity or discretion as to the applicability of this provision, and violators are subject to Non-compliance Records (NRs).”

If FSIS were to grant NCC’s petition and establish a separate process whereby NPIS plants no longer are subject to this 140-bpm line-speed limit, this would constitute a rulemaking and would not qualify as simply granting a regulatory waiver, F&WW said.

Granting the petition would not be a “general statement of policy” either, and would not qualify for any of the APA’s narrow notice-and-comment exceptions, the group said. This is because “the petition seeks to bestow upon slaughter facilities the right to disregard existing line-speed limits and instead follow the new, non-discretionary ones that they establish, and it does so based upon mandatory criteria, i.e., the plants’ entrance into the NPIS and SIP programs and establishment of ‘a process’ for monitoring and ensuring they are maintaining and re-establishing process control no matter how inadequate such a process is.” 

“The requested rule would thus be binding on both companies and the agency and not simply a statement of policy,” F&WW added.

The APA also bars FSIS from establishing NCC’s requested waiver program as a “rule of agency organization, procedure, or practice,” because the rule would be primarily directed at slaughter facilities’ behavior and would have a substantial impact on them by lifting their line speed limits, F&WW noted.

NCC’s petition seeks “a stamp of agency approval or disapproval on a given type of behavior” by espousing that slaughter plants join the voluntary NPIS and SIP programs, which is “enough to make the establishment of such a program subject to the APA’s public-notice and opportunity-for-comment requirements,” the letter stated.

Granting NCC petition would violate waiver regulations

But even if FSIS provided adequate public notice and an opportunity to comment on NCC’s petition, FSIS has no authority to approve it under the agency’s waiver regulations, which only allow waivers to be granted for “limited periods” of time. NCC’s petition, however, seeks no time limits on the waiver program, but rather its “indefinite establishment, rendering it unlawful,” F&WW said.

Waivers may also only be granted for changes that would create “definite improvements,” but NCC’s petition only argues that changing the line speeds would not impair food safety and relies on data from the FSIS 2011 HACCP-Based Inspection Models (HIMP) assessment, which found no differences in Salmonella positive rates or fecal non-compliance records at plants that operated at faster line speeds than 140 bpm, the letter noted.

This HIMP data has since come into question because false Salmonella negatives may have occurred in the 2011 data due to the neutralizing solution FSIS was using prior to July 2016, F&WW noted. Other parts of the 2011 HIMP assessment also showed that HIMP plants had significantly higher non-compliance records for entire years for certain public-health-related inspection tasks.

“This is a far cry from definite improvements,” the letter stated. “Indeed, it appears as if the true thrust of NCC’s arguments is that granting the petition will simply improve profits, by ‘leveling the playing field within the U.S. chicken industry,’ and ‘eliminating competitive barriers between the U.S. and international chicken producers.’ This is not permissible grounds for granting slaughter plants a regulatory waiver.”

Granting NCC’s petition for a waiver would further conflict with the purposes and provisions of the Poultry Products Inspection Act (PPIA), which requires “critical appraisal” of poultry carcasses, but nothing in NCC’s petition demonstrates that inspectors will be able to properly inspect birds at faster line speeds, F&WW said.

NCC’s petition also fails to offer credible data showing that Salmonella and Campylobacter rates are lower in NPIS plants than in other plants – another criteria for increasing the line speeds, the letter said.

Animal welfare groups also oppose NCC petition

A coalition of animal welfare groups in a separate 85-page letter also asked FSIS to reject NCC’s petition to increase poultry line speeds, arguing that line speeds in excess of 140 bpm would present “unacceptable risks to animal welfare and worker safety without meaningful gains in food safety or any of the other considerations and obligations of FSIS.”

The groups, which include Animal Welfare Institute, Mercy for Animals, ASPCA, Farm Forward, Animal Legal Defense Fund, Compassion Over Killing and the Humane Society of the United States, argue that granting NCC’s petition would likely result in losses of process control due to fast line speeds.

Increasing line speeds would increase the likelihood of inhumane handling, which in turn would increase the risk that birds would “be bruised or die other than by slaughter” and result in adulterated product, the groups said in the Sept. 20 letter.

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