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 Department of Agriculture Food Safety and Inspection Service 9 CFR Part 381
[Docket No. 04-033F; FDMS No. FSIS-2007-0045]
RIN 0583-AD18
 AGENCY: Food Safety and Inspection Service, USDA.
 ACTION: Final rule.
 SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the Federal poultry products inspection regulations to provide that turkey slaughter establishments that open turkey carcasses with Bar-type cuts may operate at the maximum line speeds established for J-type cuts if the establishment uses the specific type of shackle described in this final rule. Under this final rule, as under current regulations, the inspector in charge will reduce line speeds when, in his or her judgment, the prescribed inspection procedure cannot be adequately performed within the time available because of the health conditions of a particular flock or because of other factors. Such factors include the manner in which birds are being presented to the inspector and the level of contamination among the birds on the line.
 DATES: *Effective Date:*
                         October 8, 2008.
 FOR FURTHER INFORMATION CONTACT: Patrick Burke, Risk Management Division, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, Room 3543, South Building, 1400 Independence Avenue, SW., Washington, DC 20250; Telephone (202) 720-7974.


SUPPLEMENTARY INFORMATION: Background The Poultry Products Inspection Act (PPIA) requires post-mortem inspection of all carcasses of slaughtered poultry subject to the Act (21 U.S.C. 455(b)). Under the New Turkey Inspection (NTI) System regulation (9 CFR 381.68), one or two inspectors on each eviscerating line examine the whole carcass and viscera of each bird. The NTI System regulation provides maximum line speeds for: (1) One inspector and two inspector lines; (2) light (under 16 pounds) and heavy (16 pounds and over) turkeys; and (3) turkeys with J-type cut openings and turkeys with Bar-type cut openings. Some turkey slaughter establishments cut a J-type opening in the turkey carcass, which is a large abdominal opening in the turkey that facilitates the removal of the viscera. These establishments use a metal or plastic device that is inserted into the cavity of the carcass to hold the hocks. Other establishments leave a section of skin intact between the vent and body opening to secure the hocks. This type of opening is called a Bar-type cut opening. When the final NTI System regulation was published in 1985 (50 FR 37508), because of the shackles that were in use, Bar-type cut turkeys presented for inspection on a three-point suspension required an extra inspection hand motion to raise the bar-cut skin flap to observe the under side of the bar-cut skin flap and the kidney area. This extra hand motion is not necessary to inspect J-type cut turkeys. Therefore, the regulation requires a slower line speed for Bar-type cut operations than for J-type cut operations. In addition, the regulation states that the inspector in charge may reduce inspection line rates when, in his or her judgment, the prescribed inspection procedure cannot be adequately performed within the time available because the health conditions of a particular flock dictate a need for a more extended inspection (9 CFR 381.68(c)). In 1988, a turkey slaughter establishment developed a turkey shackle that positioned the three-point hung turkey carcasses on a shackle with a 4-inch by 4-inch selector (or kickout), a 45 degree bend of the lower 2 inches, an extended central loop portion of the shackle that lowered the abdominal cavity opening of the carcasses to an angle of 30 degrees from the vertical in direct alignment with the inspector's view, and a width of 10.5 inches. This shackle allows light to illuminate the total inside surfaces of the carcass and allows FSIS inspectors to view and properly inspect the inside surfaces of the carcass with minimal manipulation. Thus, with the modified shackles, the Bar-type cut inspection hand motions are similar to the J-type cut inspection hand motions. After this turkey slaughter establishment installed the modified shackles, FSIS conducted a study on the effectiveness of these shackles. FSIS concluded that, in a Bar-type cut operation using the modified shackle and regulatory maximum J-type cut line speeds, establishment employees and FSIS inspectors are able to perform as well as they did when using the slower, regulatory maximum Bar-type cut line speeds. FSIS also concluded that, because the modified shackle allows for modification of the inspection hand motions, use of the modified shackle decreases the inspector's work load under the Bar-type cut inspection procedure. Under 9 CFR 381.3(b), for limited periods, the Administrator of FSIS may waive provisions of the regulations to permit experimentation so that new procedures, equipment, and processing techniques may be tested to facilitate definite improvements. Under this regulation, on July 21, 1989, the Administrator waived the NTI System regulation for the first establishment that installed the modified shackles, so that the Bar-type cut establishment could run at the maximum line speeds for J-type cut turkeys. That establishment is no longer using the modified shackle. FSIS has, however, allowed two other establishments that installed the modified turkey shackles described above to run at the maximum line speeds for J-type cut turkeys. Under 9 CFR 381.3(b), FSIS authorized one to begin operating at the faster line speeds on June 15, 2001, and the other on March 17, 2004. FSIS reviewed in-plant trial data from these establishments, including disposition accuracy, contamination rate, microbiological characteristics, and other product characteristics. The data show no statistical difference between turkeys 
                    ( print page 51900)
                    processed using the modified Bar-type cut shackle running at the faster J-type cut line speeds and turkeys processed at the same establishment using the original Bar-type cut shackle (non-modified) running at the slower Bar-type cut line speeds. On February 19, 2004, ConAgra Foods, the parent company of the two establishments that process Bar-type cut turkey carcasses with modified shackles, using the faster line speeds for J-type cuts, submitted a petition to FSIS requesting that the Agency revise its regulations to allow turkey establishments that use Bar-type cuts and modified shackles to operate under the inspection rates (line speeds) established for J-type cuts. On September 9, 2005, FSIS proposed to amend the regulations consistent with the petitioner's request (70 FR 53582). Proposed and Final Rule Changes This final rule amends the NTI System regulation, consistent with the petitioner's request, to provide that turkey slaughter establishments that open turkey carcasses with Bar-type cuts may operate at the maximum line speeds established for J-type cuts if the establishment uses a shackle with a 4-inch by 4-inch selector (or kickout), a 45 degree bend of the lower 2 inches, an extended central loop portion of the shackle that lowers the abdominal cavity opening of the carcasses to an angle of 30 degrees from the vertical in direct alignment with the inspector's view, and a width of 10.5 inches. The final rule provisions are the same as those that FSIS proposed. FSIS did not make any changes in the final rule based on comments received in response to the proposed rule. Based on the in-plant trial data discussed above, FSIS has determined that product quality and safety will not be affected by allowing establishments producing Bar-cut turkeys to operate at the maximum regulatory line speeds for J-type cuts, provided these establishments use the type of shackle described in this final rule. FSIS has concluded that this rule will facilitate post-mortem inspection of turkey carcasses. For the two Bar-type cut turkey establishments that use the modified shackle to be able to run at these line speeds on a permanent basis, it is necessary that FSIS amend 9 CFR 381.68. In addition, it is necessary that FSIS amend the regulation to allow all turkey slaughter establishments that may use Bar-type cut openings to run at the maximum J-type cut line speeds, provided that such establishments use the correct shackles, and provided that the health conditions of the flock or other factors do not cause the inspector-in-charge to reduce the line speed. Under this final rule, as under current regulations, the inspector in charge can reduce line speeds when, in his or her judgment, the prescribed inspection procedure cannot be adequately performed within the time available because of the health conditions of a particular flock. In addition, this final rule makes clear that the inspector-in-charge could reduce line speeds when the prescribed inspection procedure cannot be adequately performed within the time available because of factors other than the health conditions of the flock. This rule specifies that such factors could include the manner in which birds are being presented to the inspector for inspection and the level of contamination among the birds on the line. Responses to Comments on the Proposal FSIS received three comments in response to the proposed rule on allowing Bar-type cut turkey operations to use J-type cut maximum line speeds, one from an FSIS employee and two from animal rights organizations. *Comment:*
                     The FSIS employee asked whether studies have been completed to determine what effect the increase in line speed will have on the upper extremities of FSIS inspectors and establishment employees. The commenter also questioned whether concrete guidelines would be given to inspection program personnel to assist them in making an objective decision regarding reducing line speeds. In addition, the employee questioned whether FSIS performed baseline studies concerning the safety of those who work on the evisceration line when the initial NTI System regulation was proposed. This commenter stated that FSIS employees are ignorant as to the debilitating and potentially disabling effects that increasing line speeds have on the muscles, nerves, tendons, joints, and ligaments of their upper extremities. *Response:*
                     In 1989, based on the study of the effectiveness of the modified shackle discussed above, FSIS determined that, by eliminating the tilting motion at establishments operating with the J-type cut maximum line speeds, the inspection procedure was improved. Tilting the turkey normally required an ulner deviation of the hands, which is one of the motions thought to lead to Carpal Tunnel Syndrome. Therefore, FSIS determined that the modified shackle is ergonomically better than the traditional turkey shackle. FSIS did not conduct baseline studies concerning the safety of those who work on the evisceration line when the initial NTI System regulation was proposed in 1984 (49 FR 44640) or finalized in 1985 (50 FR 37508). FSIS determined it was unnecessary to conduct such baseline studies because the NTI System regulation eliminated certain inspector motions. By eliminating motions, the regulation increased the safety for inspection program personnel who work on turkey evisceration lines. FSIS does not intend to issue new guidance to inspection program personnel to assist them in making an objective decision regarding reducing line speeds. Under this rule, as under current regulations, inspection program personnel are to use their professional judgment when making a decision to reduce line speeds. *Comment:*
                     The two animal rights organizations stated that faster line speeds will result in a great deal of additional suffering to birds during shackling. One of the commenters stated that when line speeds are increased, workers grab the birds more roughly and snap their legs into shackles more violently. The other commenter stated that meat and poultry slaughter establishment workers involved in incidents of inhumane handling often explain that they were forced to mistreat animals because of the pressure of keeping up with the slaughter line. The commenter further stated that FSIS should consider the potential impact on animal treatment when proposing changes to slaughter practices, such as line speeds. *Response*: FSIS believes that faster line speeds will not result in additional suffering to birds. With the increased line speed, the company may hire additional handlers with the result that the time to hang the birds remains the same. As FSIS explained in the 
                    **Federal Register**
                     notice on the treatment of live poultry before slaughter (70 FR 56624, September 28, 2005), under the PPIA and Agency regulations, all poultry establishments must handle live poultry in a manner that is consistent with good commercial practices, which means they should be treated humanely. In this notice, FSIS also explained that the Agency considers humane methods of handling birds and humane slaughter operations a high priority and takes seriously any violations of applicable laws and regulations. Under 9 CFR 381.71, FSIS condemns poultry showing, on ante mortem inspection, certain diseases or conditions. Bruising is one condition that may result in condemnation (9 CFR 381.89). Bruises 
                    ( print page 51901)
                    are likely to result when birds are not treated humanely. Executive Order 12866 This action has been reviewed for compliance with Executive Order (EO) 12866. This rule has been designated “non-significant” and therefore has not been reviewed by the Office of Management and Budget. Need for the Rule This rule is necessary to provide more production options for turkey slaughter establishments. For the two Bar-type cut turkey establishments that use the modified shackles to be able to run at the faster line speeds on a permanent basis, it is necessary that FSIS amend the regulations. In addition, it is necessary that FSIS amend the regulations to allow all turkey establishments that may use Bar-type cut openings to run at the maximum J-type cut line speeds, provided that such establishments use the correct shackles, and provided that the health conditions of the flock or other factors do not cause the inspector in charge to reduce the line speed. Industry Overview According to FSIS' Animal Disposition Reporting System (ADRS), the U.S. turkey industry consists of approximately 80 slaughter and processing establishments, of which 25 are considered very small, 30 are considered small, and 25 are considered large.[1]
                    
                     The total industry employs between 20,000 and 25,000 people in the United States, with thousands more employed in related industries, such as contract growing, product distribution, equipment manufacturing, and other affiliated services.[2] Turkey companies are vertically integrated, meaning that they control or contract for all phases of production and processing—from breeding through delivery to retail. In a vertically integrated framework of turkey contracting, establishments (integrators) accept much of the risk of turkey growing in exchange for greater control over both the quality and quantity of birds. Usually, the contract calls for establishments to provide growers with chicks or poult hatchlings and feed from their own hatcheries and feed mills, veterinary services, medication, and field supervisors to monitor operations. The contract growers provide housing, equipment, labor, water, and all or most of the fuel and litter. Growers raise the birds until ready for shipment to the establishments. In their contractual arrangements with growers, establishments usually agree to pay a pre-established fee per pound for live turkeys plus a bonus or penalty for performance relative to other growers.[3] In 2006, the number of turkeys raised in the United States was 262 million head, weighing an average of 24.8 pounds. In 2006, the number of pounds of turkey produced was 6.5 billion pounds. At a rate of 45 cents per pound, the value of production equaled $2.9 billion. U.S. consumption of turkey and turkey products is estimated to be nearly 17.1 pounds per person for 2007. The most popular turkey product continues to be the whole turkey, comprising 25 percent of all turkey sales in 2006. The product distribution for turkey products is as follows: 41.1 percent to grocery stores and other retail outlets; 23.1 percent sold in commodity outlets; 21.6 percent sold to foodservice outlets; and 10 percent exported. U.S. exports of turkey products in 2006 were 545 million pounds, comprising 9.6 percent of total turkey production. In 2006, the top four export markets for U.S. turkey were Mexico (310.0 million pounds), China (35.4 million pounds), Russia (25.2 million pounds), and Canada (21.9 million pounds). Traditionally, turkey plants face highly seasonal demand, with most production occurring in the last quarter of the year to accommodate the increased consumption of turkeys around Christmas and Thanksgiving. Because of a shift in consumers' taste for turkey and turkey products, consumers are consuming more turkey products, such as turkey sausages, ground turkey, luncheon meat, and tray packs; pre-cooked turkey products such as deli breasts, turkey ham, and turkey bacon; and other further processed turkey products, on a year-round basis. More consumers are consuming turkey on a year-round basis because of health concerns and turkey's nutritional value, which addresses those concerns.[4]
                    
                     This trend in consumption reduces the excess capacity that plants were experiencing during much of the year to a more balanced production cycle year round. By supplying turkey and turkey products year round, turkey plants have been able to stabilize production rates. Stabilized production rates lower production costs because plants are able to avoid hiring, training, laying off employees, and starting up and shutting down of facilities on a seasonal basis. Estimated Benefits Establishments that process Bar-type cut turkeys and install the modified shackles will likely realize benefits because these establishments will be able to process more turkeys by using the J-type cut line speeds. According to ConAgra (who has petitioned FSIS to amend the regulations, consistent with this rule), by using the J-type cut line speeds, a turkey plant processing Bar-type cut turkeys can increase its production capacity by 13 percent. Also according to ConAgra, under typical pricing and operation parameters, this increase will result in $600,000 to $3,000,000 more in revenue annually per establishment. In addition, this increase in capacity for processing turkeys will allow establishments to receive a greater return on their fixed assets. In addition to the two establishments that use Bar-type cuts that FSIS has authorized to run at the maximum line speeds for J-type cuts, any other Bar-type cut establishment also can begin using the modified shackle and faster line speeds under this final rule. If other turkey slaughter establishments produce a large volume of whole turkeys, some of these turkey establishments may decide to install the shackles to process Bar-type cut turkeys and may obtain benefits similar to those ConAgra projected in its petition. The use of the modified shackles for Bar-type cut turkeys, compared to the traditional shackles for these turkeys, changes the presentation of the turkey so that the inspector need not manipulate the bar skin strip to observe the underside of that flap and the kidney area. Therefore, the Agency may also realize benefits because the inspectors would not be required to perform an extra hand motion. The elimination of this extra hand motion may reduce undue fatigue among turkey inspectors. Based on data from an FSIS study at a Bar-type cut turkey plant that ran at the J-type cut maximum line speeds and used the modified shackle that met the criteria to be included in this rule, this 
                    ( print page 51902)
                    rule will not affect product quality or safety. Estimated Costs The costs of the final rule will be the costs establishments incur in purchasing and installing the modified shackles. Establishments are not likely to incur these costs unless they will realize benefits. Industry sources estimate that it would cost a typical plant $55,000 (in 2006 dollars) to install the modified shackles on two assembly lines. Regulatory Flexibility Act (RFA) FSIS has examined the economic implications of the final rule as required by the RFA (5 U.S.C. 601-612). If a rule has a significant economic impact on a substantial number of small entities, the RFA requires that regulatory options that would lessen the economic effect of the rule on small entities be analyzed. FSIS has determined that the final rule will not have a significant impact on a substantial number of small entities for the reasons discussed below. One of the establishments using the modified shackle is small, and one is large. Under the final rule, turkey slaughter establishments are not required to install modified shackles and are only likely to do so should they incur profits through the faster line speed for the production of whole turkeys. Based on the ADRS data discussed above, there are about 30 small turkey slaughter establishments that could potentially install modified shackles. Very small establishments are not likely to install modified shackles because they are seasonal turkey processors. Executive Order 12988 This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act There are no paperwork or recordkeeping requirements associated with this final rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the minorities, women, and persons with disabilities, are aware of this final rule, FSIS will announce it on-line through the FSIS Web page located at 
                    *http://www.fsis.usda.gov/​Regulations_​&​_​Policies/​2008_​Interim_​&​_​Final_​Rules_​Index/​index.asp*. FSIS also will 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 our constituents and stakeholders. The Update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade groups, consumer interest groups, health professionals, and other individuals who have requested 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 e-mail subscription service that provides automatic and customized access to selected food safety news and information. This service is available at 
                    *http://www.fsis.usda.gov/​news_​and_​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 in 9 CFR Part 381 Poultry products inspection
Post-mortem
 For the reasons discussed in the preamble, FSIS is amending 9 CFR part 381 as follows: PART 381—POULTRY PRODUCTS INSPECTION REGULATIONS
 1.The authority citation for part 381 continues to read as follows: Authority:
                        21 U.S.C. 451 
                            *et seq.* 2.Section 381.68 is amended as follows: a.Paragraph (a) is amended by revising the first two sentences and by adding a new sentence after the second newly revised sentence; b.Paragraph (c) is amended by adding “or other factors, including the manner in which birds are being presented to the inspector for inspection and the level of contamination among the birds on the line,” in the introductory text after the words “particular flock”; and by revising the table and footnotes. The revisions and additions read as follows: § 381.68
  (a) The maximum inspection rates for one inspector New Turkey Inspection (NTI-1 and NTI-1 Modified) and two inspectors New Turkey Inspection (NTI-2 and NTI-2 Modified) are listed in the table below. The line speeds for NTI-1 and NTI-2 are for lines using standard 9-inch shackles on 12-inch centers with birds hung on every shackle and opened with J-type or Bar-type opening cuts. The line speeds for NTI-1 Modified and NTI-2 Modified are for Bar-type cut turkey lines using a shackle with a 4-inch by 4-inch selector (or kickout), a 45 degree bend of the lower 2 inches, an extended central loop portion of the shackle that lowers the abdominal cavity opening of the carcasses to an angle of 30 degrees from the vertical in direct alignment with the inspector's view, and a width of 10.5 inches. * * * 
 (c) * * * 
 
 Maximum Turkey Inspection Rates
Inspection system
Line configuration
Number of inspectors
Birds/minuteJ-Type
Bar-Type(<16#)
                                     light
(>16#) 1
                                     heavy
(<16#)
                                     light
(>16#) 1
                                     heavyNTI-1
12-1
1
32
30
25
21NTI-2
2
                                     24-2
2
51
41
45
35NTI-1 Modified
12-1
1
—
—
32
30NTI-2 Modified
2
                                     24-2
2
—
—
51
411
                                 This weight refers to the bird at the point of post-mortem inspection without blood or feet.2
                                 The turkeys are suspended on the slaughter line at 12-inch intervals with two inspectors each looking at alternating birds at 24-inch intervals.
 Done in Washington, DC, on August 29, 2008. Alfred V. Almanza, Administrator.


# Footnotes

1.
    
                         In the preamble to the final rule entitled “Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP) Systems,” establishments that employ between 1-9 persons and have less than $2.5 million in annual sales are considered very small; those that employ 10 to 499 persons are considered small; and those that employ 500 or more persons are considered large. Back to Citation
 2.
    
                         National Turkey Federation Web site (
                        *http://www.eatturkey.com/​index.html*). Turkey Facts and Trivia. Back to Citation
 3.
    
                         USDA Structural Change in U.S. Chicken and Turkey Slaughter, Michael Ollinger, James MacDonald, Milton Madison, September 2000, pp. 11-12 (ERS Agricultural Economic Report Number 787). Back to Citation
 4.
    
                         Consumers are recognizing the health benefits of turkey as a low-fat, high-protein source. National Turkey Federation Web site. Back to Citation


[FR Doc. E8-20551 Filed 9-5-08; 8:45 am] BILLING CODE 3410-DM-P