[Federal Register Volume 73, Number 174 (Monday, September 8, 2008)]
[Rules and Regulations]
[Pages 51899-51903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20551]



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 Rules and Regulations
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  Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / 
Rules and Regulations  

[[Page 51899]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 381

[Docket No. 04-033F; FDMS No. FSIS-2007-0045]
RIN 0583-AD18


Allowing Bar-Type Cut Turkey Operations To Use J-Type Cut Maximum 
Line Speeds

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

[[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

[[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\
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    \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.
    \2\ National Turkey Federation Web site (http://www.eatturkey.com/index.html). Turkey Facts and Trivia.
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    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\
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    \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).
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    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.
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    \4\ Consumers are recognizing the health benefits of turkey as a 
low-fat, high-protein source. National Turkey Federation Web site.
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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

[[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.

0
For the reasons discussed in the preamble, FSIS is amending 9 CFR part 
381 as follows:

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

0
1. The authority citation for part 381 continues to read as follows:

    Authority: 21 U.S.C. 451 et seq.


0
2. Section 381.68 is amended as follows:
0
a. Paragraph (a) is amended by revising the first two sentences and by 
adding a new sentence after the second newly revised sentence;
0
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:


Sec.  381.68  Maximum inspection rates--New turkey inspection system.

    (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) * * *

[[Page 51903]]



                                                             Maximum Turkey Inspection Rates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                   Birds/minute
                                                                                         ---------------------------------------------------------------
                                                                  Line        Number of               J-Type                         Bar-Type
                     Inspection system                       configuration    inspectors ---------------------------------------------------------------
                                                                                          (<16)  (>16)  (<16)  (>16)
                                                                                               light        \1\  heavy         light        \1\  heavy
--------------------------------------------------------------------------------------------------------------------------------------------------------
NTI-1.....................................................             12-1            1             32              30              25              21
NTI-2.....................................................         \2\ 24-2            2             51              41              45              35
NTI-1 Modified............................................             12-1            1             --              --              32              30
NTI-2 Modified............................................         \2\ 24-2            2             --              --              51              41
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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.
[FR Doc. E8-20551 Filed 9-5-08; 8:45 am]
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