[Federal Register Volume 77, Number 53 (Monday, March 19, 2012)]
[Proposed Rules]
[Pages 15976-15979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6372]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / 
Proposed Rules

[[Page 15976]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 307 and 381

[Docket No. FSIS--2011-0032]


Additional Changes to the Schedule of Operations Regulations

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Food Safety and Inspection Service (FSIS) is proposing to 
amend the meat and poultry products regulations pertaining to the 
schedule of operations. FSIS is proposing to amend these regulations to 
define the 8-hour workday as including time that inspection program 
personnel need to prepare the inspection station, if necessary, or 
retrieve and return lot tally sheets; the time necessary for FSIS 
inspection program personnel to sharpen knives, if necessary; and the 
time necessary to conduct duties scheduled by FSIS, including 
administrative activities. The activities are integral and 
indispensable to inspectors' work and are part of the continuous 
workday as defined by the Fair Labor Standards Act. Therefore, they are 
activities that need to be part of the Agency's regulatory definition 
for the 8-hour workday.

DATES: Submit comments on or before April 18, 2012.

ADDRESSES: FSIS invites interested persons to submit comments on this 
notice. Comments may be submitted by one of the following methods:
    <bullet> Federal eRulemaking Portal: This Web site provides the 
ability to type short comments directly into the comment field on this 
Web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for 
submitting comments.
    <bullet> Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. 
Department of Agriculture, Food Safety and Inspection Service, Patriots 
Plaza 3, 1400 Independence Avenue SW., Mailstop 3782, Room 8-163A, 
Washington, DC 20250-3700.
    <bullet> Hand- or courier-delivered submittals: Deliver to Patriots 
Plaza 3, 355 E. Street SW., Room 8-163A, Washington, DC 20250-3700
    Instructions: All items submitted by mail or electronic mail must 
include the Agency name and docket number FSIS-2012-0013. Comments 
received in response to this docket will be made available for public 
inspection and posted without change, including any personal 
information, to http://www.regulations.gov.
    Docket: For access to background documents or comments received, go 
to the FSIS Docket Room at Patriots Plaza 3, 355 E. Street, Room 8-164, 
Washington, DC 20250-3700 between 8 a.m. and 4:30 p.m., Monday through 
Friday.

FOR FURTHER INFORMATION CONTACT: Daniel L. Engeljohn, Assistant 
Administrator, Office of Policy and Program Development, FSIS, U.S. 
Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 
20250-3700, telephone: (202) 205-0495.

SUPPLEMENTARY INFORMATION:

Background

    The Federal Meat Inspection Act (FMIA), 21 U.S.C. 601 et seq., and 
the Poultry Products Inspection Act (PPIA), 21 U.S.C. 451 et seq., 
provide for mandatory Federal inspection of livestock and poultry 
slaughtered at official establishments and of meat and poultry products 
processed at official establishments, respectively. FSIS bears the cost 
of mandatory inspection provided during non-overtime and non-holiday 
hours of operation. Official establishments pay for inspection services 
performed on holidays or on an overtime basis.
    On August 9, 2010, FSIS proposed to amend its regulations 
pertaining to the schedule of operations. FSIS proposed to define the 
8-hour workday as including time that inspection program personnel need 
to spend at the workplace donning and doffing required gear, walking to 
their workstations after donning required gear, and walking from their 
work stations prior to doffing required gear.
    On June 10, 2011, FSIS issued the final rule that amended the meat, 
poultry products, and egg products regulations to define the 8-hour 
workday as including time that inspection program personnel need to 
spend at the workplace donning and doffing required gear, time spent 
walking to their workstations after donning required gear, and time 
spent walking from their work stations prior to doffing required gear.
    In connection with our development of the 2011 final rule, FSIS 
determined that there are three other activities that need to be 
included as a part of the defined workday. The first is the sharpening 
of knives in meat slaughter plants, the second is the completion of 
administrative duties (e.g., time and attendance), and the third is 
preparing for inspection (e.g., preparing a work station or obtaining 
forms). FSIS considers these activities as integral and indispensable 
to the principal work of inspection program personnel as defined in 29 
CFR 790.8, ``Principal'' activities. Therefore, these activities need 
to be part of the Agency's regulatory definition for the 8-hour 
workday.

Sharpening of Knives

    Livestock carcass inspection includes making excisions to cattle 
carcasses' heads, tongues, and certain organs while they are on the 
slaughter line and making cuts to the head of swine carcasses while 
they are on the slaughter line to inspect the carcass for diseases. 
Currently, inspection program personnel performing on-line inspection 
duties in poultry establishments do not use knives.
    Under this proposed rule, if a livestock slaughter establishment 
does not offer a knife-sharpening service to inspection program 
personnel, the establishment would be required to provide time for 
inspection program personnel that perform on-line inspection duties to 
sharpen his or her knife.
    FSIS determined that inspection program personnel on the cattle 
slaughter line who work 3 days or less a week would need 15 minutes 
once a week to sharpen their knife, if the establishment does not 
sharpen it. Inspection program personnel who work on the swine 
slaughter line, regardless of the days worked a week, would also need 
15 minutes once a week to sharpen

[[Page 15977]]

their knife, if the establishment does not sharpen it, because post-
mortem inspection procedures for swine require less incising with the 
knife than post-mortem inspection procedures for cattle. However, 
inspection program personnel on the cattle slaughter line who work 4 or 
more days a week would need 15 minutes twice a week to sharpen their 
knife, if the establishment does not sharpen it, because of the 
increased number of carcasses they cut into.
    FSIS is basing its estimate of 15 minutes to sharpen a knife on an 
Agency CD-ROM training video, ``Knife-Safety and Sharpening Skills.'' 
In the video it took an estimated 15 minutes to sharpen a knife. 
Assuming that the blade is in good condition and free of major nicks, 
it took 6-10 minutes to sharpen a knife and 5 minutes for preparation 
and breakdown. To determine the number of times a week a knife needs to 
be sharpened, FSIS considered a variety of factors, such the species 
being inspected (i.e., cattle or swine) and the number of carcasses 
inspected and species.
    FSIS has instructed its inspection program personnel that if an 
establishment provides a knife sharpening service for inspection 
program personnel, they are to use that service. Should this rule 
become final, and if a knife-sharpening service is not provided, 
livestock slaughter establishments would need to incorporate the times 
and frequencies discussed above for knife sharpening into the 8 hours 
of inspection or request that it be done in an overtime period.

Administrative Activities

    The completion of the AD-3530-4, Time and Attendance Report, 
constitutes the most time consuming and regularly occurring 
administrative duty that inspection program personnel may have to 
accomplish within the 8-hour workday. At slaughter establishments, FSIS 
estimates inspection program personnel need 1 minute every day to 
complete the time and attendance report.
    To determine this time estimate, FSIS evaluated the time needed to 
complete the actual Time and Attendance Reports for inspection program 
personnel performing on-line inspection duties. FSIS took into account 
various activities, such as the need to code leave and record overtime. 
Also, the Agency included the time needed for inspection program 
personnel to obtain the time and attendance record and to gather the 
data to be recorded on the time report. Based on its evaluation and the 
factors it considered, FSIS estimates that each day inspection program 
personnel need 1 minute within the scheduled 8-hour workday to allow 
for completion of the time and attendance report. Therefore, should 
this rule become final, slaughter establishments would need to provide 
inspection program personnel 1 minute everyday to complete the time and 
attendance activity. The 1 minute would need to be incorporated into 
the 8 hours of inspection or request that it be done in an overtime 
period.

Preparation for Inspection

    It is necessary for livestock work stations to be set up to include 
supplies needed for post-mortem inspection--for example, stamps used to 
identify condemned parts. This preparation can be done by the slaughter 
establishments. Should this rule go into effect, and the establishment 
choose not to prepare the work station, FSIS will direct its 
supervisory personnel at livestock establishments to measure the amount 
of time it takes inspection program personnel to don required gear, 
walk to a work station, prepare the work station, return from the work 
station and doff required gear.
    Inspection program personnel on poultry slaughter lines do not 
prepare the work station. However, they pick up and drop off lot tally 
sheets, which capture the number of birds condemned on post-mortem 
inspection, the conditions for which birds are condemned per lot, and 
the class of poultry for that lot. Should this rule go into effect, 
FSIS will direct its supervisory personnel in poultry slaughter 
establishments to measure the amount of time it takes inspection 
program personnel to don required gear, pick up a lot tally sheet, walk 
to a work station, return from the work station, drop off a lot tally 
sheet, and doff required gear.

Request for Comment and General Implementation Plan

    FSIS is not aware of any duties other than those discussed above 
that are integral and indispensable work activities under the Fair 
Labor Standards Act and, therefore, should be included as part of the 
continuous workday. The Agency requests comment on whether there are 
other duties that it should consider including.
    Should this rule become final, as with the provisions for donning, 
doffing, and the associated walk time, establishments will need to 
either incorporate the time for inspection program personnel performing 
on-line inspection duties to conduct knife sharpening, to complete the 
time and attendance reporting, and to prepare for inspection into their 
hours of operation or request overtime charges. The regulations provide 
that FSIS bills overtime in 15 minute increments (9 CFR 307.6 and 
381.39). Therefore, in situations where establishments have requested 
overtime, FSIS, when possible, will instruct inspection program 
personnel performing on-line inspection duties to do the activities 
addressed in this proposed rule during any time that remains within 15 
minutes of requested overtime.

Proposed Amendment to 9 CFR 307.4(c) and 381.37(c)

    For the reasons discussed above, FSIS is proposing to amend the 
meat and poultry products regulations to provide that the 8 hours of 
inspection service provided to establishments free of charge will 
include activities necessary to fully carry out an inspection program, 
including time for inspection program personnel to prepare the work 
station, if necessary, or retrieve and return lot tally sheets; the 
time necessary for FSIS inspection program personnel to sharpen knives, 
if necessary; and the time necessary to conduct duties scheduled by 
FSIS, including administrative duties.

Executive Order 12866 and the Regulatory Flexibility Act

    This rule was reviewed by the Office of Management and Budget under 
Executive Order 12866 and was determined to be non-significant.
    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated non-significant under 
section 3(f) of Executive Order 12866. Accordingly, the rule has not 
been reviewed by the Office of Management and Budget.

Cost to the Industry

    Under this proposed rule, the most direct cost to the industry will 
be the overtime fee that the Agency will need to charge slaughter 
establishments for the time inspection program personnel spend in three 
groups of activities: (1) Sharpening knives, (2) completing 
administrative activities, and (3) preparing for inspection. As we 
explained in the cost analysis of the

[[Page 15978]]

Final Rule on Changes to the Schedule of Operations Regulations (76 FR 
page 33979), if meat and poultry slaughter establishments want to 
maintain their normal shift length of operating for 8 hours, they would 
incur some overtime fees.\1\ Although the choice is voluntary, should 
this rule become final, the Agency expects that most meat and poultry 
slaughter establishments will choose to maintain their current shift-
time, as shortening the shift-time will decrease production and revenue 
while idling existing capacity. However, FSIS expects the overtime fee 
from these three groups of activities will not be significant because 
(1) the establishments have options, as we will discuss later, besides 
paying overtime for some of these activities, and (2) the time for 
carrying out administrative activities and preparing for inspection 
(including preparing an inspection station and picking up and dropping 
off lot tally sheets) is small (one minute or two per day) tand will 
probably not push the overtime over the 15 minutes threshold to incur 
more over-time charge than are currently assessed for donning and 
doffing activities.
---------------------------------------------------------------------------

    \1\ This regulatory change should not impact the schedule of 
operations for meat and poultry processing establishments and egg 
product plants because those establishments can begin operations 
without FSIS inspection program personnel being at an on-line 
inspection work station.
---------------------------------------------------------------------------

    Similar to donning and doffing, the actual time FSIS inspection 
program personnel will take to perform these activities will vary in 
each meat and poultry slaughter establishment depending on plant-
specific variables. FSIS has developed preliminary estimates on the 
amount of time it takes for inspection program personnel to perform 
these activities and is requesting from all interested parties input on 
FSIS' estimates.
    Knife-sharpening:
    a. Two 15-minute periods per week for inspection program personnel 
who perform on-line inspection duties in beef slaughter operations for 
4 or more days per week.
    b. One 15 minute period per week for inspection program personnel 
on the beef slaughter line for 3 days or less per week or in a swine 
slaughter establishment.
    <bullet> One minute per day to complete administrative activities.
    <bullet> Two minutes or less for preparing for inspection.
    Agency personnel data \2\ show that there are 3,053 inspection 
program personnel performing on-line inspection duties in the poultry 
and meat slaughter establishments--2,037 in poultry, 1,000 in meat, and 
16 in establishments that slaughter both meat and poultry. Data \3\ 
from a recent Agency survey indicate that among the meat slaughtering 
inspectors, 56 percent work in beef establishments that operate 4 or 5 
days per week, 4 percent work in beef establishments that operate less 
than 4 days per week, 36 percent work in swine establishments, and 4 
percent work in lamb, sheep, and goat establishments. Because lamb, 
sheep, and goat establishments are small or very small establishments, 
inspection program personnel would be able to complete the activities 
addressed in this proposed rule within the 8-hour day, and, therefore, 
there are no related cost calculations for these establishments in this 
proposed rule. Applying the percentages to the total of 1,016 meat 
slaughter inspectors,\4\ 573 inspection program personnel are in beef 
establishments that operate 4 or 5 days per week, and 409 are in either 
beef establishments that operate less than 4 days per week or in swine 
establishments. The overtime fee that the Agency charges for each 15 
minute interval is $17.08 for FY 2012. Multiplying this number by the 
Agency-estimated knife-sharpening time, we estimated the annual cost 
for knife sharpening time to be about $1,776.3 ($17.08 per quarter-hour 
x 2 knife-sharpening period per week x 52 weeks per year) per 
inspection program personnel in beef slaughter establishments that 
operate more for 4 days or more a week, and $888.2 ($17.08 per quarter-
hour x 52 weeks per year) per inspection program personnel in beef 
slaughter establishments that operate 3 days or less or in swine 
establishments (FY 2012 rate). If the industry had to pay all the meat 
slaughter inspectors to sharpen their knives, the total cost to the 
industry would be about $1.38 million ($1776.3 x 573) + ($888.2 x 409). 
However, the actual impact would be much less because the industry can 
offer knife-sharpening services to Agency inspection program personnel 
instead of paying overtime for it.
---------------------------------------------------------------------------

    \2\ As of November 2011.
    \3\ Survey date is March 2011.
    \4\ We count the inspection program personnel in combined meat 
and poultry as meat inspectors so not to underestimate the cost, as 
poultry slaughter inspectors do not currently have to sharpen 
knives.
---------------------------------------------------------------------------

    If an establishment provides a knife-sharpening service, FSIS will 
instruct inspection program personnel to use that service. A 
preliminary Agency query \5\ found that the majority of the meat-
slaughter establishments are offering knife sharpening to their 
employees, and about 91% of those also offer the service to Agency 
inspection program personnel as well. We expect that many other 
establishments will start offering the service to avoid paying overtime 
charges should this rule become effective.
---------------------------------------------------------------------------

    \5\ OFO conducted the query in November 2011.
---------------------------------------------------------------------------

    As for the other two groups of activities, the time they take is 
minimal. According to the Agency's estimates mentioned above, these 
activities combined will be at most 3 minutes per day. In addition, 
FSIS will permit the establishment to take on the responsibility of 
preparing the inspection station for inspection program personnel in 
livestock slaughter establishments. Given that the Agency charges 
overtime in 15 minute increments, and that it believes the donning, 
doffing, and walking time to be usually less than 15 minutes, time for 
these additional activities can be absorbed in the overtime period for 
donning, doffing, and walking time in most cases, thus not causing any 
additional overtime. In the unlikely, worst-case scenario where these 
activities push the daily overtime beyond the first 15 minute interval, 
the establishments would pay each inspection program personnel another 
$4,441 ($17.08 per inspector x 5 days per week x 52 weeks per year) 
annually. However, the Agency believes this scenario would apply to 
only a very small percentage of the inspection program personnel.
    Comparing the cost to the annual revenue of the meat slaughtering 
industry alone, which is about $67.2 billion,\6\ the costs of this rule 
to the industry would not be significant.
---------------------------------------------------------------------------

    \6\ Summary of the Animal (except Poultry) Slaughtering Industry 
in the U.S. and its International Trade [2010 edition,] Supplier 
Relations US, LLC. http://www.htrends.com/report-2700858-Animal_except_Poultry_Slaughtering_Industry_in_the_U_S_and_its_International_Trade_Edition.html, as of 11/16/2011.
---------------------------------------------------------------------------

Cost to the Consumer

    The industry is likely to pass the increased costs on to consumers 
because of the inelastic nature of the consumer demand for meat and 
poultry products. However, given that the total volume of meat and 
poultry slaughtered under Federal inspection in 2010 was about 92 
billion pounds,\7\ the increased cost per pound due to the overtime fee 
will be less than $0.0001 on average.
---------------------------------------------------------------------------

    \7\ Livestock, Dairy, & Poultry Outlook/LDP-M-209/November 16, 
2011; Economic Research Service, USDA.
---------------------------------------------------------------------------

Benefits of the Rule

    This proposed rule will include integral and indispensible work 
activities (as defined by the Fair Labor

[[Page 15979]]

Standards Act) into the defined inspector ``workday.'' Therefore, if 
finalized, this proposed rule will help ensure compliance with the law 
and the improved use of Agency resources.

Regulatory Flexibility Analysis

    The FSIS Administrator has made a preliminary determination that 
this proposed rule will not have a significant impact on a substantial 
number of small entities, as defined by the Regulatory Flexibility Act 
(5 U.S.C. 601). There are 263 small and 566 very small meat and poultry 
slaughter establishments (by Small Business Administration standard). 
In small and very small establishments, inspection program personnel 
typically have adequate time during their tour of duty to sharpen their 
knives as well as conduct the other activities under this proposed 
rule, because they do not have to be on-line for 8 hours. Therefore, 
the impact will not be significant.

Paperwork Reduction Act

    This proposed rule has been reviewed under the Paperwork Reduction 
Act and imposes no new paperwork or recordkeeping requirements.

Executive Order 13175

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments. The review reveals that this regulation 
will not have substantial and direct effects on Tribal governments and 
will not have significant Tribal implications.

USDA Nondiscrimination Statement

    The U.S. Department of Agriculture (USDA) prohibits discrimination 
in all its programs and activities on the basis of race, color, 
national origin, gender, religion, age, disability, political beliefs, 
sexual orientation, and marital or family status. (Not all prohibited 
bases apply to all programs.) Persons with disabilities who require 
alternative means for communication of program information (Braille, 
large print, or audiotape) should contact USDA's Target Center at (202) 
720-2600 (voice and TTY).
    To file a written complaint of discrimination, write USDA, Office 
of the Assistant Secretary for Civil Rights, 1400 Independence Avenue 
SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TTY). 
USDA is an equal opportunity provider and employer.

Additional Public Notification

    FSIS will announce this notice online through the FSIS Web page 
located at: http://www.fsis.usda.gov/regulations_&_policies/Federal_Register_Notices/index.asp.
    FSIS will also make copies of this Federal Register publication 
available through the FSIS Constituent Update, which is used to provide 
information regarding FSIS policies, procedures, regulations, Federal 
Register notices, FSIS public meetings, and other types of information 
that could affect or would be of interest to constituents and 
stakeholders. The Update is communicated via Listserv, a free 
electronic mail subscription service for industry, trade groups, 
consumer interest groups, health professionals, and other individuals 
who have asked to be included. The Update is also available on the FSIS 
Web page. Through the Listserv and Web page, FSIS is able to provide 
information to a much broader and more diverse audience. In addition, 
FSIS offers an electronic mail subscription service which provides 
automatic and customized access to selected food safety news and 
information. This service is available at: http://www.fsis.usda.gov/News_&_Events/Email_Subscription/. Options range from recalls to 
export information to regulations, directives and notices. Customers 
can add or delete subscriptions themselves, and have the option to 
password protect their accounts.

List of Subjects

9 CFR Part 307

    Government employees, Meat inspection.

9 CFR Part 381

    Government employees, Poultry products inspection.

    For the reasons discussed in the preamble, FSIS is proposing to 
amend 9 CFR Chapter III as follows:

PART 307--FACILITIES FOR INSPECTION

    1. The authority citation for part 307 continues to read as 
follows:

    Authority:  7 U.S.C. 394; 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.

    2. In Sec.  307.4(c), remove the second sentence and add two 
sentences in its place to read as follows:


Sec.  307.4  Schedule of operations.

* * * * *
    (c) * * * The basic workweek shall consist of 5 consecutive 8- hour 
days within the administrative workweek Sunday through Saturday, except 
that, when possible, the Department shall schedule the basic workweek 
so as to consist of 5 consecutive 8-hour days Monday through Friday. 
The 8-hour day excludes the lunch period, but shall include activities 
deemed necessary by the Agency to fully carry out an inspection 
program, including the time for FSIS inspection program personnel to 
put on required gear and to walk to a work station; to prepare the work 
station; to return from a work station and remove required gear; to 
sharpen knives, if necessary; and to conduct duties scheduled by FSIS, 
including administrative duties. * * *
* * * * *

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

    3. The authority citation for part 381 continues to read as 
follows:

    Authority: 7 U.S.C. 138f, 450; 21 U.S.C. 451-470; 7 CFR 2.7, 
2.18, 2.53.

    4. In Sec.  381.37(c), remove the second sentence and add two 
sentences in its place to read as follows:


Sec.  381.37  Schedule of operations.

* * * * *
    (c) * * * The basic workweek shall consist of 5 consecutive 8- hour 
days within the administrative workweek Sunday through Saturday, except 
that, when possible, the Department shall schedule the basic workweek 
so as to consist of 5 consecutive 8-hour days Monday through Friday. 
The 8-hour day excludes the lunch period, but shall include activities 
deemed necessary by the Agency to fully carry out an inspection 
program, including the time for FSIS inspection program personnel to 
put on required gear, pick up required forms and walk to a work 
station; and the time for FSIS inspection program personnel to return 
from a work station, drop off required forms, and remove required gear; 
and to conduct duties scheduled by FSIS, including administrative 
duties. * * *
* * * * *

    Done at Washington, DC, on: March 9, 2012.
Alfred Almanza,
Administrator.
[FR Doc. 2012-6372 Filed 3-16-12; 8:45 am]
BILLING CODE 3410-DM-P