[Federal Register Volume 77, Number 188 (Thursday, September 27, 2012)]
[Rules and Regulations]
[Pages 59291-59294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23682]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 307 and 381
[Docket No. FSIS-2011-0032]
RIN 0583-AD48
Additional Changes to the Schedule of Operations Regulations
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the
meat and poultry product regulations pertaining to the schedule of
operations. FSIS is amending 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: Effective November 26, 2012.
FOR FURTHER INFORMATION CONTACT: Rachel Edelstein, Acting 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. 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 overtime.
On March 19, 2012, FSIS proposed to amend its regulations
pertaining to the schedule of operations (77 FR 15976). FSIS proposed
to amend these regulations to define the 8-hour workday as including
time that inspection program personnel need to prepare the inspection
station at meat slaughter establishments, if necessary, or to retrieve
and return lot tally sheets at poultry slaughter establishments; the
time necessary for FSIS inspection program personnel to sharpen knives,
if necessary, at meat slaughter establishments; and the time necessary
to conduct duties scheduled by FSIS, including administrative
activities at meat and poultry slaughter establishments. The activities
are 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.
Response to Comments
FSIS received one comment within the scope of the rulemaking
regarding the proposed rule change from an association representing the
meat industry. The comment raised the following issues:
De Minimis
The commenter stated that FSIS has ignored the Office of Personnel
Management (OPM) regulation 5 CFR 551.412(a) that governs the exclusion
of de minimis actions from compensable activities. The commenter stated
that the OPM rule excludes preparatory activities that last less than
10 minutes and also stated that the proposed rule identified two of
three activities specified in the proposal--administrative activities
and preparation for inspection--as each taking less than 10 minutes per
day. Therefore, the commenter asserted that the OPM regulation
precludes the need for the proposed rule.
Response
As stated in the proposed rule, 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. As
integral and indispensable work activities under the Fair Labor
Standards Act, FSIS finds that these activities should be included as
part of the continuous workday when reading both 5 CFR 551.412(a) and
the OPM definition of ``workday'' at 5 CFR 551.411(a), together. 5 CFR
551.412(a) cannot be properly read alone to exclude time spent on
indispensable work activities during the continuous workday from
compensable hours of work. Any duties scheduled by FSIS, including
administrative duties, are integral and indispensable to the essential
work of inspection program personnel because they enable inspection
program personnel to carry out their work effectively. The preparation
of the workstation is an integral and indispensable activity ensuring
that inspectors have the necessary stamps used to identify condemned
parts while conducting their inspection duties. Therefore,
administrative duties and the preparation of the work station in cattle
slaughter establishments are integral and indispensable to the
principal work of inspection program personnel as defined in 29 CFR
790.8, ``Principal'' activities, and thus, these activities need to be
part of the Agency's regulatory definition for the 8-hour workday.
[[Page 59292]]
Knife Sharpening
The commenter did not dispute that knife sharpening is a
compensable activity but did oppose the standardized approach in the
proposed rule that would give inspectors one 15-minute period for knife
sharpening if they perform on-line duties in a cattle slaughter
establishment 3 days or less per week or if they perform on-line duties
in a swine slaughter establishment, and two 15-minute periods for knife
sharpening if they perform on-line duties in a cattle slaughter
establishment 4 or more days per week. The commenter stated that plants
should be permitted to conduct individualized assessments of the time
it takes inspectors to sharpen their knives.
Response
The time estimates FSIS developed in the proposed rule for knife
sharpening were based on an Agency CD-ROM training video, ``Knife-
Safety and Sharpening Skills,'' and the numbers of times per week for
knife sharpening were based on a variety of factors, including the
species being inspected (i.e., cattle or swine) and the number of
carcasses inspected. The time allocations that FSIS is finalizing are
necessary to ensure the safe and proper use of knives during
inspection. The Agency cannot ensure the safety of its inspectors and
that proper knife sharpening occurs if each establishment determines
for itself how long it should take inspectors to sharpen a knife
because each establishment will have a financial incentive to reduce
this amount of time. Therefore, when FSIS implements this rule, it will
ensure inspection program personnel have an appropriate amount of time
to sharpen their knives.
Inaccurate Inspector Time Records
The commenter stated that because inspectors bill in 15-minute
increments, all slaughter facilities already pay inspectors for time
during which inspection work is not being done. The commenter stated
that a facility should be permitted to review inspectors' time records
and offer corrections supported by reports and stamped surveillance
footage, if necessary, before inspectors submit their time records. The
commenter also stated that during interruptions for line stoppages or
equipment failures, inspectors should make use of the time that they
are not on the line for activities such as knife sharpening. The
commenter also stated that if inspectors choose not to use such time,
establishments should not have to pay overtime for the activity.
Response
FSIS supervisors assign work to inspection program personnel. FSIS
will ensure that its supervisory personnel instruct inspection program
personnel to complete the activities addressed in this final rule
during any time remaining in a 15-minute increment of overtime or
during work times when they are not on the line. However, FSIS does not
agree that establishments should implement a formal monitoring program,
such as video surveillance of FSIS employees or checking inspector time
sheets. FSIS supervisors ensure that employees accurately record the
time that they work. Establishment management should discuss any
concerns about the time worked by FSIS inspectors with FSIS
supervisors.
Line Time
Lastly, the commenter stated that any additional time inspectors
need to be compensated for under the proposed rule should not count
against the 10-hour-per-day limit of actual inspector time permitted by
FSIS.
Response
FSIS ensures that the maximum time an employee may work on the
slaughter line is ten (10) hours per work day. While knife sharpening,
station preparation, and administrative duties are integral to the work
and conducted during the continuous workday, they are activities not
done on the slaughter line itself. Therefore, these activities are not
subject to the 10 hour per day limit of slaughter line activity.
Amendment to 9 CFR 307.4(c) and 381.37(c)
After consideration of the comments received and for the reasons
discussed above, FSIS is adopting the proposed rule as a final without
revision and is amending the meat 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; 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. When the
rule goes into effect, FSIS will direct its supervisory personnel at
livestock slaughter establishments to conduct a new time measurement
that measures the amount of time it takes to don required gear, walk to
a work station, prepare the work station, and doff required gear. If
establishments do not provide a knife sharpening service, the
establishment will also need to incorporate the times and frequencies
discussed above in response to comments on knife sharpening into the 8
hours of inspection or request that knife sharpening be done in an
overtime period.
FSIS is amending the 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
retrieve and return lot tally sheets and the time necessary to conduct
duties scheduled by FSIS, including administrative duties. Inspection
program personnel in poultry products establishments do not use knives
when conducting inspection activities and do not need to prepare the
work station. When this rule goes into effect, FSIS will direct its
supervisory personnel in poultry slaughter establishments to conduct a
new time measurement that measures the amount of time it takes
inspection program personnel to don required gear, pick up a lot tally
sheet, and doff required gear.
In addition, when this rule goes into effect, slaughter
establishments will need to provide inspection program personnel 1
minute every day to complete time and attendance activities.
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 will
bill 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 rule during any time that remains within 15-minutes of requested
overtime.
Executive Order 12866 and the Regulatory Flexibility Act
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.
[[Page 59293]]
Cost to the Industry
Under this final 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 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, 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
does not expect the overtime fee from these three groups of activities
to 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--and will probably not push the overtime over the 15-
minute threshold to incur more over-time charge than are currently
assessed for donning and doffing activities.
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\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.
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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 developed estimates on the amount of time it
takes for inspection program personnel to perform these activities and
requested public comments. FSIS did not receive any comments on the
estimates, so FSIS's estimates remain the same in this final rule.
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.
One minute per day to complete administrative activities.
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 poultry and
meat slaughter establishments--2,037 in poultry, 1,000 in meat, and 16
in establishments that slaughter both meat and poultry. Data from an
Agency survey \3\ indicates 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 final rule within the 8-hour day, and, therefore,
there are no related cost calculations for these establishments in this
final rule. Applying the percentages to the total of 1,016 meat
slaughter inspectors,\4\ we have 573 inspection program personnel
working in beef establishments that operate 4 or 5 days per week, and
409 working in either beef establishments that operate less than 4 days
per week or 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 periods per week x 52 weeks per
year) per inspection program personnel in beef slaughter establishments
that operate 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.
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.
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\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.
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If an establishment provides a knife-sharpening service, FSIS will
instruct inspection program personnel to use that service. An 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. We
expect that many other establishments will start offering the service
to avoid paying overtime charges when this rule becomes effective.
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\5\ OFO conducted the query in November 2011.
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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 will not be significant.
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\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.
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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
[[Page 59294]]
billion pounds,\7\ the increased cost per pound due to the overtime fee
will be less than $0.0001 on average.
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\7\ Livestock, Dairy, & Poultry Outlook/LDP-M-209/November 16,
2011; Economic Research Service, USDA.
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Benefits of the Rule
This final rule will include integral and indispensible work
activities (as defined by the Fair Labor Standards Act) into the
defined inspector ``workday.'' Therefore, this rule will help ensure
compliance with the law and the improved use of Agency resources.
Regulatory Flexibility Analysis
The FSIS Administrator has made a determination that this final
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 final rule, because
they do not have to be on-line for 8 hours. Therefore, the impact will
not be significant.
Paperwork Reduction Act
This final rule has been reviewed under the Paperwork Reduction Act
and imposes no new paperwork or recordkeeping requirements.
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 final rule 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 amending 9 CFR
Chapter III as follows:
PART 307--FACILITIES FOR INSPECTION
0
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.
0
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
0
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.
0
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: September 21, 2012.
Alfred V. Almanza,
Administrator.
[FR Doc. 2012-23682 Filed 9-26-12; 8:45 am]
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