Dr. Richard Raymond, Under Secretary

March 8, 2007

Dr. Richard Raymond, Under Secretary

Office of Food Safety

Room 227E, James L. Whitten Building

12th Street and Jefferson Drive, S.W.

Washington, DC 20250

Transmitted via facsimile: (202) 690-0820

Dear Dr. Raymond:

It has come to our attention that, in several parts of the country, the agency is already implementing a policy of shutting off the Performance Based Inspection System (PBIS) scheduler, which the agency implied would occur under Risk-based Inspection (RBI) beginning in April. As you know FSIS’s PBIS performs several functions, including designating for inspectors what inspections need to be performed in a particular plant and collecting inspection reports of plant violations. This unannounced shut down of the scheduler raises three concerns: First, that the agency is implementing RBI in a piecemeal fashion and behind the scenes, contrary to its public statements. Second, that the agency is intentionally hiding evidence that it cannot meet the statutory mandate for continuous inspection. Finally, that the agency’s data on the compliance history of certain plants is so severely compromised that the agency cannot make reliable comparisons between plants concerning establishment risk control which is a foundation of its RBI plan.

The PBIS Scheduler and RBI Implementation

We have received information that the PBIS inspection task scheduler has been turned off, under some circumstances, in at least two districts. This violates the agency’s assurances to the public about how RBI will be implemented.

At the RBI meeting in October, Bobby Palesano announced that turning the PBIS scheduler off would be one of the phases of implementation of RBI,[1] that it would likely be one of the early phases, and that there would be some training of inspectors before this happens.[2] He also said that, prior to this, “a minimum level of verification activities” (based on the two factors of establishment control and product-inherent risk) would be scheduled for each plant.[3]

Recently published agency materials identify the minimum level of inspection activities that will occur for the plants at all three levels once the scheduler is turned off. It is our understanding that in the Districts where the scheduler has been turned off, the inspectors were provided with no written guidance on what inspection tasks were to be performed in those plants.

If disenabling the PBIS scheduler is unique to RBI, it appears that the agency has been prematurely implementing its program with no notice to the public or public input. If it is not unique to RBI, the agency has been misrepresenting its data management methods.

The PBIS Scheduler and the Mandate of Daily Inspection

To our knowledge, it had not previously been agency policy to send inspectors into plants without generating a PBIS schedule of inspection tasks to be performed. The PBIS schedule ensures that all of the required inspection tasks are done routinely in each plant. This is accomplished, partially, by enabling inspectors to report for the agency’s data management system which tasks they cannot perform on a particular day. An abundance of “not performed” codes may indicate that staffing shortages are preventing critical inspection tasks from being performed and also indicate that the agency is not meeting its statutory mandate of daily inspection in every plant.

Within the last decade, the agency has taken steps to obfuscate that information. Until 1997, the agency’s PBIS system had inspectors record when they could not perform an inspection task specifically because they had to cover multiple assignments due to a shortage of inspectors. In 2000, finding that 14-24% of inspection tasks in reviewed plants were not performed for this reason, USDA’s Office of Inspector General recommended[4] that the agency again collect this information. Had the agency done so, management officials in headquarters would have ready access to data informing them when the agency was not meeting its statutory mandate of daily inspection. The OIG noted in its 2004 follow-up report[5] that the agency still had not implemented this recommendation. In December 2006, the agency implemented Notice 83-06,[6] which again provides codes for when tasks are not performed, but does not include one indicating that inspectors did not have time because of staffing shortages.

We believe that it is incumbent upon the agency to collect information concerning how well it is using its staffing resources. Last spring, the agency narrowly avoided having to furlough inspectors because of budget shortfalls and last, summer, we informed you and Congress about the vacancy rates we learned of in many of your districts. At the same time, FSIS awarded $239,000 in bonuses to its SES staff, with most bonuses being in excess of 10% of the recipient’s annual salary.

While senior staff are spending their bonuses, chronic inspector shortages persist. The latest information we were able to acquire indicates that the agency is operating with a significant shortage in the number of frontline inspection personnel. The following are vacancy rates in the districts for which we could get information.[7] (Other districts would not provide information and, therefore, it should not be assumed that there are no vacancies in other districts. FWW has a pending FOIA with the agency for this information, which we still want and need).

Jackson District (AL, TN, MS) 10.6% fulltime, 8.8% intermittent positions

Raleigh District (NC, SC, KY) 11.6% in fulltime, GS-7 – GS10R positions

Chicago District (IL, IN, OH) 22.1% in fulltime positions

Denver District - 13% in bargaining unit positions

(NV, GU AZ, AK, ID, OR, CO, UT, HI, WA)

In both areas where we have been informed that the scheduler has already been turned off, the involved inspectors were told explicitly that it was because there were too many “Not Performed” codes being generated. Perhaps, not surprisingly, it is the Denver and Chicago Districts where we know that this has been happening for at least one, and perhaps two or more years. Whether intentional or not, the agency’s unannounced policy of turning off the PBIS scheduler in these areas has resulted in inspectors doing their jobs without any guidelines to replace the PBIS generated task schedule, at least in the areas of which we have been informed. It also has erased any evidence within the agency’s database management system of plants producing without inspection – a plant might be producing for days or weeks at a time, but because there were no records of assigned tasks not being performed, the agency’s database can provide no indication of that.

The PBIS scheduler and Data Underlying RBI Decisions

The agency’s plan for RBI involves individual plants’ compliance histories. This would be a result of the number of food safety-related violations found at the plant, presumably relative to the number of inspections that were performed. We have previously brought up the fact that the value and reliability of the agency’s data for a particular plant could be compromised if the plant had been subject to less inspection because of staffing shortages. Other stakeholders as well have questioned whether the agency has reliable data on which to implement RBI. The agency claims that it is implementing RBI in areas for which it has good records, but we know that two of the teams are located in the Denver and Chicago circuits. We have to, again, question the soundness of the data the agency will be using to make its RBI decisions.

We have the following questions:

1. What are the specific, current circumstances in which inspectors inspect federal plants without using a PBIS-generated schedule of inspection tasks? If there are written instructions concerning this, we request a copy of them.

2. Does this policy affect some or all plants in each District, or is it followed in only select locations, and if so, what are the factors determining what system of inspection a particular plant is under.

3. Approximately how many plants undergo this type of inspection and how long has this been occurring?

4. In the absence of the PBIS not performed codes, how has the agency monitored and recorded, where and when plants have produced meat or poultry without inspection and without an inspection task list generated?

5. The agency claims it will meet the daily inspection mandate in plants under RBI. Specifically how will the agency’s data management system present this report?

I would appreciate a prompt response to this letter. Should you have any questions regarding this matter, please feel free to contact me at (202) 797-6550.

Sincerely,

Wenonah Hauter, Executive Director

cc: Senator Herb Kohl

Senator Robert Bennett

Representative Rosa DeLauro

Representative Jack Kingston

USDA Inspector General Phyllis Fong

[1] Transcript, USDA/FSIS Risk-based Inspection Public Workshop. October 11, 2007. Page 322, Lines 16-18

[2] Transcript, Page 328, Lines 1-6

[3] Transcript, Page 332, Lines 11-20

[4] HACCP Implementation. USDA/OIG. Report 24001-3-At. June 2000. Pg 60-64. http://www.oig.usda.gov/webdocs/haccp.pdf

[5] Followup Audit on the Inspector General’s Food Safety Initiative of Fiscal 2000. Report 24001-4-At. September 2004. Pg 4-5. http://www.oig.usda.gov/webdocs/24001-4-AT-Redacted.pdf

[6] http://www.fsis.usda.gov/OPPDE/rdad/FSISNotices/83-06.pdf

[7] NOTE: The Agency has not standardized the way districts compile vacancy information, hence the disparities in the vacancy information here.