Section 17 of the Poultry Products Inspection Act (PPIA) prohibits importation into the US of slaughtered poultry, or parts or products thereof, of any kind unless they are healthful, wholesome, fit for human food, not adulterated, and contain no dye, chemical, preservative, or ingredient that renders them unhealthy, unwholesome, adulterated, or unfit for human food. A foreign country's poultry inspection system must include standards equivalent to those of the US and the legal authority for the system and its implementing regulations must be determined equivalent to those of the US. Foreign countries must also ensure that all certifications required under the poultry inspection regulations can be relied upon before approval to export poultry products to the US may be granted.

The USDA's Food Safety Inspection Service (FSIS) conducted a review of China's poultry processing inspection system in December 2004 and determined that it meets US standards. Accordingly, FSIS issued a proposal to allow processed poultry products from China to be imported into the US, but only if such products are processed in certified establishments from poultry slaughtered in certified slaughter establishments in other countries eligible to export poultry to the US. China would not be eligible to export poultry products that were slaughtered in domestic establishments.

Harkin's letter argues that the USDA has not demonstrated that the proposed rule will adequately protect the US from the risk of high pathogenicity avian influenza (HPAI). HPAI involves highly contagious strains of the avian influenza virus and its symptoms are severe and almost invariably deadly. While the HPAI virus afflicts animals rather than humans, there have been isolated cases of animal-to-human transmission in instances characterised by close and repeated human interaction with infected poultry. The World Health Organisation (WHO) has warned that HPAI, and particularly the virulent H5N1 strain, could potentially mutate into a form that is highly infectious to humans and spreads easily from person to person, producing a serious worldwide pandemic.

The spread of the H5N1 strain throughout China, Turkey, Vietnam, and various other countries has become a growing concern for health authorities around of the world. China reported 32 cases of HPAI in 2005, resulting in the death of 10 people and 154,600 birds and the culling of over 22.5 million birds. To protect its domestic poultry population from the disease, the US established a temporary prohibition on 4 February 2004 on the importation of unprocessed bird and poultry carcasses, parts, and products from countries where the H5N1 strain has been found to exist.

According to Harkin, the proposal to add China to the list of eligible processed poultry exporters "is largely an exercise in attempting to craft an exception or carve-out for processed products from USDA's general ban on poultry and poultry products shipped from China." While the requirements appear adequate on paper, it is uncertain how FSIS will ensure that poultry products processed in China for export to the US will contain no poultry that was raised or slaughtered in China. In fact, Harkin notes, the FSIS rule does not include a prohibition against a Chinese plant handling and processing poultry products for both the domestic and export markets. Even if such a prohibition were in place, says Harkin, FSIS would have no way of ensuring that a plant segregates poultry according to the final destination of the product, nor could it determine whether any improperly cooked poultry products are shipped to the US.

Harkin goes one step further by questioning the conviction of FSIS in the effectiveness of its own proposed rule. Specifically, the senior Senator from Iowa does not understand why FSIS should ban poultry raised or slaughtered in China from being exported to the US if Chinese plants can be trusted to thoroughly cook their merchandise so as to eliminate any contamination from HPAI. Conversely, it would make no sense to require that poultry products be properly cooked if Chinese processors can effectively segregate poultry raised or slaughtered in HPAI-free countries from domestically-raised or slaughtered birds. While FSIS may argue that these two provisions reinforce one another for added protection, Harkin can only infer that FSIS officials still lack confidence that Chinese plants "will fully and consistently carry out either of the critical requirements in the proposed rule - to keep Chinese poultry out of products to be exported to the United States and to cook those products properly to kill the avian influenza virus."

Finally, Harkin questions whether FSIS' commitment to perform annual inspections of Chinese plants will be at all useful in ensuring constant and continuous compliance with the proposed rule. Given these perceived failures and inconsistencies, Harkin is recommending that the USDA abandon the proposed rule unless its shortcomings are addressed.