[Federal Register Volume 76, Number 112 (Friday, June 10, 2011)]
[Rules and Regulations]
[Pages 33974-33980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14442]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 307, 381, and 590
[Docket No. FSIS-2010-0014]
RIN [0583-AD35]
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, poultry products, and egg products regulations pertaining to the
schedule of operations. FSIS is amending these regulations to define
the 8-hour work day 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.
DATES: Effective July 11, 2011.
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. The Egg Products Inspection Act
(EPIA), 21 U.S.C. 1031 et seq., provides for mandatory inspection of
egg products processed at official plants. FSIS bears the cost of
mandatory inspection provided during non-overtime and non-holiday hours
of operation. Official establishments and egg products plants 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 work day 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. As explained in the preamble to the proposed rule, FSIS proposed
the amendments to administer its inspection program in accord with the
Supreme Court's holding in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005),
and policy guidance from the Office of Personnel Management (OPM).
Specifically, the preamble to the proposed rule explained that this
regulatory change is necessary in light of the Supreme Court's ruling
that the Fair Labor Standards Act (FLSA) covers (1) any activity that
is integral and indispensable to a principal activity; and (2) during a
continuous workday, any walking time that occurs after the beginning of
the employee's first principal activity and before the end of the
employee's last principal activity. IBP, 546 U.S. at 37. The preamble
to the proposed rule also briefly addressed OPM's treatment of the de
minimis exception, codified at 5 CFR 551.412(a), and an OPM letter to
the National Treasury Employees Union discussing that regulation.
Finally, the preamble to the proposed rule described a settlement
reached between FSIS and the National Joint Council of Food Inspectors
regarding inspector compensation for donning and doffing activities.
Comments and FSIS Responses
FSIS received 20 comments on the proposed rule from the public,
industry, and trade organizations. FSIS also received a letter
concerning the proposal from the Department of Labor. Commenters
generally supported that FSIS inspection program personnel should be
fully compensated for work. However, commenters had varying opinions
regarding the Agency's interpretation of IBP, the distinction between
unique and non-unique gear, and application of the de minimis rule; and
questions about how FSIS will implement the rule.
Unique Versus Non-Unique Gear and the Application of De Minimis
Several comments addressed the Agency's treatment of IBP, Inc. v.
Alvarez, 546 U.S. 21 (2005), as it relates to the distinction between
unique and non-unique gear and application of the de minimis rule. The
two comments discussed in detail below were reflective of all comments
related to this topic. ``Unique'' gear refers to items that are unique
to the jobs at issue, such as cut-resistant gloves and chain link metal
aprons in livestock slaughter establishments. ``Non-unique'' gear
refers to generic items, such as hardhats, and hairnets, worn in all
slaughter and processing establishments.
The first comment, submitted by the Department of Labor (DOL),
argued that whether gear worn by employees is unique or non-unique is
irrelevant to whether donning and doffing the gear is a principal,
compensable activity. DOL stated that the preamble to the proposed rule
incorrectly implied that IBP only dealt with unique protective gear.
Rather, DOL stated that the two lower court cases that were
consolidated by the Supreme Court in IBP in fact dealt with both unique
and non-unique gear, and that the Supreme Court treated all items
interchangeably, without regard to
[[Page 33975]]
weight or uniqueness, declaring that both lower court cases involved
required protective gear that the lower courts found integral and
indispensable to the employees' work. Next, DOL pointed out that the
Supreme Court in IBP also cited approvingly to an older Supreme Court
decision, Steiner v. Mitchell, 350 U.S. 247 (1956), in which the court
held that changing into and out of old work clothes at a battery plant
was an integral and indispensable part of the workers' principal
activities, and therefore compensable. DOL argued that the old work
clothes in Steiner clearly qualify as non-unique gear.
On the other hand, a comment submitted by an industry trade
organization argued that the time associated with donning and doffing
non-unique gear is noncompensable because it is de minimis as a matter
of law. The trade organization stated that in IBP, the Supreme Court
did not hold that the donning and doffing of non-unique gear by on-line
inspectors in poultry establishments is a compensable activity. The
trade organization stated that the question of what constitutes
integral and indispensable activity was not addressed by the Supreme
Court in that case. The trade organization stated that IBP only
addressed whether walking time associated with donning and doffing
integral and indispensable gear is compensable. The trade organization
stated that the proposed rule incorrectly assumed that gear for both
poultry and livestock inspection program personnel is integral and
indispensable but that court precedent has not established that to be
the case. The trade organization stated that, to the contrary, before
IBP reached the Supreme Court, the 9th Circuit expressly concluded in
Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), that donning and
doffing time is compensable except for time associated with the donning
and doffing of generic protective gear, such as the hardhats and safety
goggles worn in the poultry industry, because the time it takes to don
and doff such generic gear is de minimis as a matter of law. The trade
organization stated that the Agency's proposed rule ignores the de
minimis rule set forth by the Supreme Court in Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680 (1946), and OPM's rule dealing with the de
minimis rule as applied to Federal employees, 5 CFR 551.412(a)(1).
Response:
The comments described above address two distinct concepts that
must be considered in turn to determine whether inspection program
personnel donning and doffing activities must be compensated under
Federal law. The first is: Are inspection program personnel donning and
doffing activities integral and indispensable to their principal
activity, and therefore covered under the FLSA? The second is: If the
donning and doffing activities are covered under the FLSA, are they
nevertheless noncompensable because they are de minimis? For the
reasons described below, FSIS has determined that (1) inspection
program personnel donning and doffing activities are covered by the
FLSA; and (2) they are not de minimis to the extent that FSIS can
reasonably account for them.
1. FSIS has determined that the FLSA covers time inspectors spend
donning and doffing both unique and non-unique gear which they are
directed by FSIS or an establishment to don and doff at the workplace
in order to provide inspection services.
The Portal-to-Portal Act excludes from FLSA coverage time spent
walking to and from the actual place of performance of the principal
activity of an employee, and activities that are ``preliminary or
postliminary'' to that principal activity. 29 U.S.C. 254(a). In IBP,
the Supreme Court clarified the scope of what the Portal-to-Portal Act
excludes from FLSA coverage, holding: (1) Any activity that is integral
and indispensable to a principal activity is itself a principal
activity and therefore outside the scope of the Portal-to-Portal Act,
and thus covered by the FLSA; and (2) during a continuous workday, any
walking time that occurs after the beginning of the employee's first
principal activity and before the end of the employee's last principal
activity is also outside the scope of the Portal-to-Portal Act and thus
covered by the FLSA. IBP, 546 U.S. at 37.
Accordingly, if donning and doffing is integral and indispensable
to inspectors' principal work activity, then it must also be considered
a principal activity covered by the FLSA. The classification of gear as
unique or non-unique has no bearing on whether the donning and doffing
of such gear at the workplace is an integral and indispensable
activity. For example, in Steiner, the Supreme Court considered whether
changing into and out of old work clothes at a battery plant was an
integral and indispensable part of the employees' principal activity of
making batteries. 350 U.S. at 256. Although there was arguably nothing
unique about the old work clothes at issue in Steiner, the Court held
that the employees' donning and doffing activity was integral and
indispensable to their principal activity. Id. The Court's analysis in
that case hinged not upon whether the donning and doffing involved
unique or non-unique gear, but upon the relationship of the pre-shift
and post-shift activity in question (i.e., donning and doffing the work
clothes) to the principal productive activity performed by the
employees (i.e., making batteries). Because of the toxic nature of
making batteries, the plant owners provided employees with old but
clean work clothes to change into and out of before and after their
shift. In doing so, the plant owners were able to ``make their plant as
safe a place as [was] possible under the circumstances and thereby
increase the efficiency of its operation.'' Id. at 249-51.
In Alvarez, the Ninth Circuit ruled that, in light of Steiner, the
donning and doffing of both unique and non-unique gear by meat
slaughter and processing plant employees was integral and indispensable
to their principal activities of slaughtering and processing beef and
therefore was not excluded from FLSA coverage by the Portal-to-Portal
Act. Alvarez, 339 F.3d at 903. The Ninth Circuit based this conclusion
on the finding that the donning and doffing activities in question were
necessary to the principal work done by the employees (i.e.,
slaughtering and processing beef) and done for the benefit of the
employer. Id. at 902-03. However, the Ninth Circuit ruled that since
the time it takes to perform the donning and doffing of this non-unique
gear is de minimis, therefore, it could not justify compensation for
the time on these tasks. Id. At 904.
As the comment from the industry trade organization pointed out,
the Supreme Court was not asked to review the Ninth Circuit's holding
that donning and doffing were integral and indispensable to the
principal activities of the meat slaughter and processing plant
employees. However, the Supreme Court did consider the Ninth Circuit's
related holding that during a continuous workday, time spent by
employees walking to their workstation after donning their required
gear was not excluded from the FLSA coverage by the Portal-to-Portal
Act. IBP, 546 U.S. at 32. The Supreme Court's affirmation of the Ninth
Circuit's holding with respect to walking to and from production areas
was premised on the correctness of the Ninth Circuit's holding that the
donning in question was indeed an integral and indispensable activity
marking the beginning of the continuous workday. See Perez v. Montaire
Farms, Inc., 601 F.Supp.2d 670, 676 (D. Md. 2009).
As was the case with the gear considered in Steiner and IBP,
sanitary and protective gear that FSIS inspectors are directed by FSIS
or an establishment to don and doff at the workplace in
[[Page 33976]]
order to provide inspection services is directly related to the
principal activity which they are employed to perform. The principal
productive activity of FSIS inspectors is to provide inspection
services at meat, poultry and egg products establishments. The purpose
of food inspection is to advance FSIS's mission of protecting the
health and welfare of consumers by verifying that food products are
wholesome and not adulterated. Inspection program personnel don
sanitary gear (e.g., hairnets, frocks, or smocks), if required by the
establishment, and protective gear required by FSIS, as discussed in
this Final rule under the heading ``Establishment Specific Application
of the Rule and What Does FSIS Mean by Required Gear'' before providing
inspection services, and doff it afterwards. To minimize the risk of
food contamination during inspection and to ensure that inspection
program personnel are protected from injury and may continue to fulfill
their duties safely and without interruption. The donning and doffing
of sanitary and protective gear by inspection program personnel is,
therefore, necessary to the provision of proper inspection services.
This is equally true of unique and non-unique gear. Accordingly, FSIS
finds that all gear that inspection program personnel are directed by
FSIS or an establishment to don and doff at the workplace in order to
provide inspection services is integral and indispensable to the
performance of their principal activities.
Because inspection program personnel's donning and doffing
activities are integral and indispensable to inspection program
personnel's principal activities, under the Supreme Court's ruling in
IBP, those donning and doffing activities are themselves principal
activities and are therefore covered by the FLSA. See IBP, 546 U.S. at
37. Additionally, during a continuous workday, if the donning and
doffing are ``principal activities,'' post-donning and pre-doffing walk
time is also covered by the FLSA. Id.; See 29 CFR 790.6.
2. Although inspection program personnel's donning and doffing
activities are covered by the FLSA, such activities might still be
deemed noncompensable if they fall under the de minimis exception. The
comment submitted by the trade organization argued that donning and
doffing time at poultry slaughter establishments is never compensable
because the donning and doffing of non-unique gear, such as that worn
by inspectors at poultry slaughter establishments, is always de
minimis. In light of the prevailing case law defining what constitutes
de minimis activities, and OPM's regulation limiting application of the
de minimis exception in the Federal sector to periods of 10 minutes per
day or less, FSIS disagrees with the trade organization comment.
Whether pre-shift and post-shift activity can be considered de
minimis requires a fact-specific inquiry. Although, ``[a]s a general
rule, employees cannot recover for otherwise compensable time if it is
de minimis,'' Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir.
1984), FSIS has determined that for inspection program personnel, time
spent donning and doffing is not de minimis.
The Supreme Court has reasoned that overtime compensation for ``a
few seconds or minutes'' is de minimis ``in light of the realities of
the industrial world.'' Anderson, 328 U.S. at 692: see also Lindow, 738
F.2d at 1062. Lindow, one of the most frequently cited cases on the
question of determining whether time spent in pre-shift and post-shift
activity is de minimis, describes three factors to be considered: (1)
The practical administrative difficulty of recording the additional
time; (2) the aggregate amount of compensable time; and (3) the
regularity of the additional work. Id. at 1063; see also Bobo v. United
States, 136 F.3d 1465, 1468 (Fed.Cir. 1998) (citing approvingly to
Lindow). In light of these three factors, FSIS has determined that, in
most cases, the time inspection program personnel are directed to spend
at the workplace donning and doffing required gear, and walking to
their workstation after donning and before doffing, is not de minimis.
The first factor, the practical administrative difficulty of
recording the additional time for payroll purposes, merits some
discussion. FSIS bills federally inspected establishments for
inspection services provided in excess of eight hours per shift. At
slaughter establishments, carcasses are not permitted to begin passing
the post-mortem inspection station on the evisceration line until an
FSIS on-line inspector is at his or her post-mortem inspection station,
ready to conduct carcass-by-carcass inspection. But inspectors must don
and doff their required gear before they begin on-line carcass
inspection. As a result, slaughter establishments must know in advance
of planning their schedule of operations how much of their eight hours
of free inspection services will be used for inspection program
personnel donning and doffing activities. For example, if a poultry
slaughter establishment does not wish to pay for overtime inspection
services, and the establishment knows that inspection program personnel
must spend a total of 9 minutes per day conducting FLSA-covered
donning, doffing, and walking activities, then the establishment can
adjust its slaughter inspection operations accordingly. If it chooses
to conduct slaughter operations for a full eight hours, it will incur
overtime costs because FSIS will have provided more than 8 hours of
inspection services.
In order to inform slaughter establishments how much donning and
doffing time to account for as part of their regular eight hours of
inspection services, FSIS will need to determine in advance of
implementing this rule how much time it actually takes for inspection
program personnel to conduct FLSA-covered donning, doffing, and walking
activities at each individual slaughter establishment.\1\ Because
donning and doffing activities do not typically change from day to day
at a given establishment, FSIS has determined that it is
administratively practical to accurately assess the amount of time
inspectors spend in those activities each day at each establishment, to
inform slaughter establishments how much inspection time will be used
for those activities in each respective establishment, and to ensure
that inspection program personnel have the correct amount of time to
conduct those activities each day.
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\1\ However, it should be noted that FSIS does not intend to use
this advance estimate of donning, doffing and walking time at each
establishment for payroll purposes, but only for scheduling and
billing purposes. FSIS intends to use the time studies only to
provide advance notice of the duration and costs to each
establishment of these principal activities. However, FSIS employees
will be paid based on the time it actually takes them each day to
perform these activities. FSIS anticipates that this time will be
recorded on the time and attendance sheet that each inspector fills
out. The actual time worked may or may not include overtime,
depending on how the establishment schedules the work.
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The second de minimis factor, the aggregate amount of compensable
time, also weighs in favor of a finding that inspection program
personnel donning and doffing time is not de minimis. Inspection
program personnel donning and doffing takes place every day, often for
several minutes per day. In aggregate over time, this results in a
substantial amount of compensable time.
The third de minimis factor, the regularity of the additional work,
weighs in favor of the same conclusion because donning and doffing of
generally the same gear occurs at the beginning and the end of every
work day, generally for the same amount of time each day. Accordingly,
FSIS finds that for inspection program personnel,
[[Page 33977]]
time they spend on donning and doffing activities is not de minimis.
The trade organization also argued that the donning and doffing of
non-unique gear is always noncompensable in light of an OPM regulation
addressing the de minimis doctrine in the context of Federal employees.
See 5 CFR 551.412(a)(1). Under that regulation, ``OPM limits the
application of the de minimis doctrine to periods of 10 minutes or less
per day.'' Bull v. United States, 68 Fed.Cl. 212, 226 (2005) (citing 5
CFR 551.412(a)(1); see also Riggs v. U.S., 21 Cl.Ct. 664, 683 (1990)
(holding that OPM's 10 minute threshold for time spent in pre-shift and
post-shift activities is a proper application of the de minimis rule to
the FLSA and the Portal-to-Portal Act).
Specifically, OPM's rule directs: ``If an agency reasonably
determines that a preparatory or concluding activity is closely related
to an employee's principal activities, and is indispensable to the
performance of the principal activities, and that the total time spent
in that activity is more than 10 minutes per workday, the agency shall
credit all of the time spent in that activity, including the 10
minutes, as hours of work.'' 5 CFR 551.412(a)(1).
The trade organization argued that under the OPM rule, preparatory
and concluding activities such as inspection program personnel donning
and doffing are only compensable when the total time spent in such
activities is more than 10 minutes per workday. To the contrary, as the
court explained in Bull, OPM's regulation provides an upper limit to
the amount of time that a Federal agency may consider noncompensable
under the de minimis exception, directing that if FLSA-covered activity
exceeds 10 minutes per work day, the agency must compensate its
employees for that activity. The rule forecloses the possibility of a
Federal agency finding that an FLSA-covered preparatory or concluding
activity which exceeds 10 minutes per day is de minimis. However, based
on the three factor test discussed above, FSIS has determined that for
inspection program personnel, most time spent on donning and doffing
activity is not de minimis, so OPM's regulation limiting application of
the de minimis doctrine is generally not applicable.
How FSIS Will Apply the Rule to Daily Operations
Several commenters sought clarification regarding how application
of this rule might affect establishment operating schedules.
Response
Because inspection program personnel donning and doffing are
principal activities, they will be treated in the same manner as other
inspection services. Thus, the new rule specifies that the regular
workweek, which consists of five 8-hour days of scheduled inspection
service provided without charge, will include donning and doffing
activities. Establishments must therefore understand that the 8-hours
per scheduled shift of inspection service which they are provided
without charge must include the time inspection program personnel need
for FLSA-covered donning and doffing activities. At establishments
where donning and doffing activities must occur before and after the
commencement of on-line, carcass and parts inspection, FSIS will ensure
that establishments know how much time inspection program personnel
donning and doffing activities take so that those establishments may
plan their regular operating schedules accordingly. If establishments
require more than 8 hours of inspection service, they must request
overtime inspection service as provided in 9 CFR 307.4(d)(3), 9 CFR
381.37(d)(3), and 9 CFR 590.126.
Establishment Specific Application of the Rule and What Does FSIS Mean
by Required Gear
Some industry commenters expressed concern that FSIS would impose a
``one-size-fits-all'' approach to implementing this regulation by
requiring each establishment to schedule the same amount of time for
donning and doffing activities. The commenters contended that each
establishment is different, and that the required donning, doffing and
walking time should reflect the realities of each individual
establishment. The commenters also requested that FSIS explain what the
phrase ``required gear'' is intended to include.
Response
FSIS agrees that actual donning, doffing, and walking time will
vary in each establishment depending on plant-specific variables. The
Agency does not intend to use a one-size-fits-all approach to implement
this rule. Some industry commenters misunderstood the proposed rule to
state that each establishment must provide 15 minutes for donning,
doffing, and walking time. This figure was only used in the context of
estimating the cost to industry that may result from this rule.
FSIS agrees with the commenters that post-donning and pre-doffing
walk time can vary significantly among establishments. Also, FSIS is
aware that inspectors may don and doff some equipment unique to a
specific establishment. However, there is equipment that FSIS requires
all of its on-line personnel to wear in meat slaughter operations and
poultry slaughter operations. The following is the specific gear FSIS
requires its employees to wear:
Hard Hats--FSIS Directive 4791.1, Revision 2, Amendment 2
(5/15/02), the Basic Occupational Health and Safety Program, requires
hard hats to be worn.
Hearing Protection--FSIS Directive 4791.1, Revision 2,
Amendment 2 (5/15/02), the Basic Occupational Health and Safety
Program, requires hearing protection.
Cut Resistant and Cover Gloves--FSIS Directive 4791.1,
Revision 2, Amendment 2 (5/15/02), the Basic Occupational Health and
Safety Program, requires Cut-Resistant Gloves.
Slaughter Equipment--Knives, hook, steel, and scabbard.
This equipment is required to perform postmortem inspection procedures
as outlined in FSIS Directive 6100.2 Postmortem Livestock Inspection
(9/17/07). Chapter II (pages 5-16) of this directive outlines the
required inspection procedures for all species of livestock.
In response to the comment about required gear, FSIS has determined
that the FLSA covers time inspectors spend donning and doffing required
gear which they are directed by FSIS or an establishment (e.g.,
hairnets, frocks, or smocks) to don and doff at the workplace in order
to provide inspection services.
Although FSIS requires inspection program personnel to wear skid-
resistant footwear, FSIS allows them to don and doff this footwear at
home. Accordingly, time spent donning and doffing required skid-
resistant footwear is generally not compensable. However, if an
individual establishment requires inspection program personnel to don
and doff footwear at the establishment, then that time would be
compensable.
Donning and doffing activities also include time to retrieve,
clean, and store equipment to maintain sanitary conditions. Such
activities were calculated and included as part of the time study
mentioned in the economic analysis for the proposed rule. The letter
from DOL also made specific reference to the need to compensate for the
time to conduct such activities.
Also, FSIS employees are entitled to their entire lunch period.
Donning and doffing activities, as well as walk time, are outside of
the lunch period. The donning and doffing activity can differ
[[Page 33978]]
around the lunch period based on several factors including the amount
of equipment (helmet, ear protection, etc.) the inspectors remove
before their lunch period. Some equipment is removed based on personal
comfort, and some equipment is removed because of plant requirements.
For this reason, the Agency determined that the most practical and
reasonable approach to assessing donning and doffing time surrounding
the lunch period is to assume that the inspector will remove all
personal protective equipment before taking his or her lunch period and
will don all equipment after the lunch period before resuming on-line
inspection duties. Therefore, donning and doffing around the lunch
period will be factored into the time measurement discussed below.
After publication of this rule, FSIS will measure the amount of
time it takes for on-line inspection program personnel to don and doff
all required gear (including before and after the lunch period), walk
to and from their workstation, and retrieve, clean, and store equipment
to maintain sanitary conditions at each affected meat and poultry
slaughter establishment. This cumulative total will give each plant the
specific donning, doffing, walking time, retrieving, cleaning, and
storage time measurement needed, so that they can account for it in
their daily schedule of operations or as overtime. See footnote 1 for
the explanation that this time will not be used for payroll purposes.
For administrative and scheduling purposes, the time will be rounded up
or down to the next whole minute. If an establishment has a concern
about the outcome of the time measurements in its facility it can
appeal as set out in FSIS's regulations.
Making Facilities Changes To Shorten Donning, Doffing, and Walking Time
Commenters also asked if it would be possible to make changes at
their establishment to reduce donning, doffing, and walk time.
Response
Establishments may make facilities adjustments to reduce donning,
doffing, and walk times, provided such changes do not affect the
sanitary conditions in the establishment or impede inspection.
Overtime Charges
Several commenters stated that FSIS should not charge for overtime
in 15 minute increments but only bill establishments for the actual
time inspectors at the establishment take to don, doff, and walk to and
from their work station.
Response
As a preliminary matter, compensable donning, doffing, and walking
time will not necessarily be overtime. Consistent with current
regulations, overtime will only be charged for time inspection program
personnel work in excess of eight hours per workday. If an
establishment's schedule of operations calls for less than eight hours
of on-line inspection time, then any compensable donning, doffing, and
walking time may still fit within the normal 8-hour workday. In that
case, no overtime charges would result.
On the other hand, if the total workday, including on-line
inspection time and compensable donning, doffing, and walking time,
exceeds eight hours per workday, then all time in excess of eight hours
will be charged as overtime as set forth in 9 CFR 307.6. This
regulation establishes that for billing purposes, eight or more minutes
shall be considered a full quarter hour. Also, the National Finance
Center, which is tasked with processing our bill documents, can only
bill in 15 minute increments.
FSIS Employees to Whom the Regulation Applies
FSIS received comments from Federal veterinarians stating that the
proposed rule concerning donning and doffing is too limited because it
does not include all personnel that must be prepared and on the line
when operations start, in particular Public Health Veterinarians and
Supervisory Public Health Veterinarians.
Response
The new regulations include donning, doffing, and walking time as
activities that are within an FSIS inspection personnel's 8-hour work-
day. This would apply to any FSIS inspection program personnel,
including FSIS veterinarians, who are required to don and doff and be
at an inspection station on the line at the start of a shift. In
general, FSIS Veterinarians, off-line inspectors, supervisory consumer
safety inspectors, inspectors in processing facilities, and inspectors
working in egg product plants are not required to be at an inspection
workstation at start of or at the end of a shift. Note that for
inspectors who are required to come in early, such as for pre-
operational inspection, their donning, doffing, and walking time must
also be accounted for.
Therefore, this regulatory change has no impact on their working
conditions, unless they have to perform on-line duties in order for the
establishment's line to start operating.
Change to the Regulatory Language
The letter that FSIS received from DOL stated that the proposed
regulation would define the proposed 8-hour workday as including ``the
necessary time for FSIS inspection program personnel to put on required
gear and walk to a work station and the necessary time for FSIS
inspection program personnel to return from a work station and remove
required gear. * * *'' DOL requested that the word necessary be
eliminated from the final regulation because it could be read to
suggest something less than the actual time taken while performing such
tasks.
Response
FSIS agrees with DOL that the actual time spent donning and doffing
and the associated walk times are inspection activities that fall into
the 8-hour workday. FSIS will know how much donning and doffing and
walk time there is at each establishment as discussed above. FSIS
believes this approach will ensure that FSIS employees are fully
compensated as required by the FLSA. Therefore, to more accurately
reflect that donning, doffing, and walk time are part of the
inspector's 8-hour workday, FSIS has eliminated the word necessary from
the final version of the regulation.
The Final Rule
Consistent with the proposed rule, FSIS is amending 9 CFR 307.4(c),
381.37(c), and 590.124 to provide that the eight hours of inspection
service includes the time for inspection program personnel to put on
required gear and walk to a work station and the time for inspection
program personnel to return from a work station and remove required
gear. Any time over those eight hours is overtime charged to an
establishment. The only change, as discussed above, is to remove the
word necessary from the regulatory language.
For egg product plants, FSIS's regulations at 9 CFR 590.124 define
the normal operating schedule as consisting of a continuous 8-hour
period per day (excluding not to exceed 1 hour for lunch) 5 consecutive
days per week. FSIS does not believe additional time for donning and
doffing will typically be necessary for inspection program personnel in
egg product plants because inspection program personnel at those plants
do not need to be at a required station for operations to begin. To
ensure compliance with the applicable law and OPM guidance, however,
the Agency is proposing to amend 9 CFR 590.124 to define the 8-hour
work day as including the time for inspection
[[Page 33979]]
program personnel to put on required gear and walk to a work station
and the time for inspection program personnel to return from a work
station and remove required gear. The Agency anticipates that this
change is likely to have little application to the work of the Agency's
egg product inspection program personnel.
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 significant.
Cost to the Industry
The FSIS cost estimate in this final rule remains similar to that
of the proposed rule, but has been updated to reflect final FSIS
overtime rates for FY 2011 and FY 2012.
Under this final rule, the most direct cost to the industry will be
the overtime fee that the Agency will need to charge establishments for
the time inspection program personnel spend donning required gear,
walking to a work station, returning from a work station, and doffing
required gear. If meat and poultry slaughter establishments want to
maintain their normal shift length of operating for eight hours, they
will incur some overtime fees. The choice is voluntary. Some meat and
poultry slaughter establishments may choose not to incur the overtime
charges if they expect that the decline in revenues from operating for
a shorter amount of time will be smaller than the overtime fee cost.
However, the Agency expects that most large meat and poultry slaughter
establishments will choose to pay the overtime charge and maintain
their current shift-time, as shortening the shift time will decrease
production and revenue while idling existing capacity.
The actual time FSIS inspection program personnel will take to don
and doff required gear will vary in each meat and poultry slaughter
establishment depending on plant-specific variables. In response to
comments on the proposed rule, FSIS has decided, as discussed above,
that it will measure the amount of time it takes for inspection program
personnel to don and doff all required gear, walk to and from their
workstation, and retrieve, clean, and store equipment to maintain
sanitary conditions. See footnote 1 for the explanation that this time
will not be used for payroll purposes.
For the purpose of its analysis, FSIS is using 15 minutes for
donning, doffing, and walking time at all meat and poultry slaughter
establishments as a reasonably conservative estimate for both poultry
and livestock inspectors. The overtime fee that the Agency charges for
15 minutes is $16.88 and $17.16 for FY 2011 and 2012, respectively.\2\
These costs are far less than the value of the poultry or livestock an
establishment can slaughter in 15 minutes per line.
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\2\ FSIS Final Rule of New Formula for Calculating the Basetime,
Overtime, Holiday, and Laboratory Rates; Rate Changes Based on the
Formulas; and Increased Fees for the Accredited Laboratory Program.
---------------------------------------------------------------------------
FSIS calculated these costs for the meat and poultry slaughter
establishments because carcasses are not permitted to begin passing the
post-mortem inspection station on the evisceration line until an FSIS
on-line inspector is at his or her post-mortem inspection station,
ready to conduct carcass and parts inspection.
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. Furthermore, very-small slaughter establishments typically
will not be affected by this rule because of the nature of how
slaughter is conducted in very-small establishments. Many of the
inspectors at such establishments are on patrol assignments, inspectors
typically drive up to the establishment, go into the establishment and
simply put on their frock.
The most recent Agency data shows that there are 1,041 meat and
poultry slaughter establishments, of which 263 are small and 566 are
very small (by Small Business Administration size standards.)
FSIS started by calculating the number of inspection program
personnel that this proposed rule will affect. Agency data show that
there are 2,911 inspection program personnel in the poultry and meat
slaughter establishments--1,954 in poultry and 957 in meat. Assuming
all the establishments pay the 15-minute overtime charge per inspection
program personnel, and that the establishments operate 260 days (5 days
a week times 52 weeks), the annual cost for one on-line inspector will
be about $4,389 at the FY 2011 rate. The total cost to the industry
will be about $12.8 million and $13.0 million in FY 2011 and 2012,
respectively (see Table 1). Given that the annual revenue of the meat
slaughtering industry alone in 2009 is about $67.2 billion,\3\ the
overtime cost to the industry is insignificant. If we breakdown the
cost for FY 2011 by establishment size, based on the numbers of
inspectors for each SBA size category, it will be $10.6 million for the
large establishments, $2.1 million for the small and $0.066 million for
the very small establishments.\4\
---------------------------------------------------------------------------
\3\ 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 7/16/2010.
\4\ Among the 2,911 inspectors, 2,416 are for the large
establishments, 480 are for the small establishments, and 15 are for
the very small establishments.
Table 1--Estimated Annual Cost of the Overtime Charge to the Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
inspection Overtime fee (15 Annual cost
program min.) Daily cost Number of days (Daily x Number
personnel of Days)
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2011....................................................... 2,911 $16.88 $49,138 260 $12,775,797
FY 2012....................................................... 2,911 17.16 49,953 260 12,987,718
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 2009 was about 91
billion pounds,\5\ the increased cost per pound due to the overtime fee
will be only $0.0001, on average.
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\5\ Livestock, Dairy, & Poultry Outlook/LDP-M-188/February 24,
2010; Economic Research Service, USDA. The Web-link to the report is
http://www.ers.usda.gov/Publications/ldp/2010/02Feb/ldpm188.pdf.
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[[Page 33980]]
Benefit of the Rule
This rule will ensure compliance with the law and the best 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. Based on the data and information contained in the cost
to industry section of this rule, the fee is, at most, $4,389 per year
for one on-line inspector for an extra 15 minutes (FY 2011 rate). The
time required for donning and doffing for small and very small
establishments is likely much less than 15 minutes. Furthermore, almost
all the very-small establishments will not be affected by this rule
because they are on a patrol assignment. 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.
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, in an effort to ensure that
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/2010_Final _Rules_Index/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 will 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 e-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_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
9 CFR Part 307
Facilities for inspection.
9 CFR Part 381
Poultry products inspection regulations.
9 CFR Part 590
Inspection of eggs and egg products (egg products inspection act).
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), revise the second sentence 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, and
shall include the time for FSIS inspection program personnel to put on
required gear and to walk to a work station, and the time for FSIS
inspection program personnel to return from a work station and remove
required gear, excluding the lunch period; except that, when possible,
the Department shall schedule the basic workweek so as to consist of 5
consecutive 8-hour days Monday through Friday, and shall include the
time for FSIS inspection program personnel to put on required gear and
to walk to a work station, and the time for FSIS inspection program
personnel to return from a work station and remove required gear,
excluding the lunch period. * * *
* * * * *
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), revise the second sentence 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, and
shall include the time for FSIS inspection program personnel to put on
required gear and to walk to a work station, and the time for FSIS
inspection program personnel to return from a work station and remove
required gear, excluding the lunch period; except that, when possible,
the Department shall schedule the basic workweek so as to consist of 5
consecutive 8-hour days Monday through Friday, and shall include the
time for FSIS inspection program personnel to put on required gear and
to walk to a work station, and the time for FSIS inspection program
personnel return from a work station and remove required gear,
excluding the lunch period. * * *
* * * * *
PART 590--INSPECTION OF EGGS AND EGG PRODUCTS (EGG PRODUCTS
INSPECTION ACT)
0
5. The authority citation for part 590 continues to read as follows:
Authority: 21 U.S.C. 1031-1056.
Sec. 590.124 [Amended]
0
6. In Sec. 590.124, in the second sentence, after the word ``day'',
add the phrase ``and shall include the time for FSIS inspection program
personnel to put on required gear and to walk to a work station, and
the time for FSIS inspection program personnel to return from a work
station and remove required gear''.
Done at Washington, DC, on: June 7, 2011.
Alfred V. Almanza,
Administrator.
[FR Doc. 2011-14442 Filed 6-9-11; 8:45 am]
BILLING CODE 3410-DM-P