[Federal Register Volume 86, Number 135 (Monday, July 19, 2021)]
[Notices]
[Pages 37994-37995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15291]


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DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

[Docket No. FSIS-2020-0023]


Response to the Office of Inspector General's Recommendations on 
the Rulemaking Process for the Proposed Rule Modernization of Swine 
Slaughter Inspection

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Notice.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is responding to 
two recommendations from the USDA Office of Inspector General (OIG) 
regarding the Agency's rulemaking process for the proposed rule 
entitled Modernization of Swine Slaughter Inspection, that included the 
proposal to establish the New Swine Slaughter Inspection System (NSIS).

FOR FURTHER INFORMATION CONTACT: Rachel Edelstein, Assistant 
Administrator, Office of Policy and Program Development, telephone: 
(202) 205-0495.

SUPPLEMENTARY INFORMATION:

Background

    FSIS is providing information to further address two 
recommendations from the recent USDA OIG Final Inspection Report, FSIS 
Rulemaking Process for the Proposed Rule: Modernization of Swine 
Slaughter Inspection (Inspection Report 24801-0001-41, June 23, 
2020),\1\ both concerning the presentation of data in a preliminary 
worker safety analysis that FSIS conducted when developing the proposed 
rule.\2\ FSIS already responded to the two recommendations and the 
responses were printed in the OIG report (available at https://www.usda.gov/sites/default/files/audit-reports/24801-0001-41.pdf). OIG 
did not fully accept the FSIS responses, however, and requested further 
clarification about the data in a public document.
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    \1\ https://www.usda.gov/oig/audit-reports/fsis-rulemaking-process-proposed-rule-modernization-swine-slaughter-inspection.
    \2\ On March 31, 2021, the U.S. District Court for the District 
of Minnesota vacated a portion of the NSIS final rule. The Court 
found that FSIS violated the Administrative Procedure Act because it 
asked for comments on the impact of line speed increases on worker 
safety in the proposed rule but did not consider these comments in 
the final rule. The Court vacated the final rule only insofar as it 
eliminated the maximum line speed cap for NSIS establishments. The 
other provisions of the final rule were not affected by the Court's 
decision.
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    In its final report, OIG recommended (Recommendation #2) that FSIS 
communicate to the public the correct scope of data used in the FSIS 
preliminary worker safety analysis. Specifically, OIG found a 
typographical error in the sentence in the proposed rule that states, 
``FSIS compared in-establishment injury rates between HACCP-Based 
Inspection Models Project (HIMP) establishments and traditional 
establishments from 2002 to 2010'' (83 FR 4796). OIG pointed out in its 
report that for the preliminary worker safety analysis, FSIS also 
examined CY 2011 results for 5 of 24 traditional establishments, which 
were outside of its stated scope of CYs 2002 to 2010.
    FSIS has acknowledged the typographical error in discussions with 
OIG and noted that it did not affect the conclusions of the analysis or 
have any bearing on its ability to be understood. Regardless of what 
time span is used, from 2002 to 2010 or from 2002 to 2011, both show 
that HIMP \3\ establishments had lower mean injury rates than non-HIMP 
establishments. In addition, this OIG recommendation was addressed in 
the publication of the final rule to modernize swine inspection (84 FR 
52300), where FSIS included a link (84 FR 52305) to its Electronic 
Freedom of Information Act Reading Room, which contains documents that 
show FSIS' full analysis of worker injury data.
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    \3\ The HACCP-Based Inspection Models Project, or HIMP, was a 
pilot program for modernized poultry and swine inspection, data from 
which informed the New Poultry Inspection System and NSIS 
rulemakings.
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    OIG also recommended (Recommendation #3) that FSIS communicate to 
the public two limitations of the Occupational Safety and Health 
Administration (OSHA) data used for FSIS' analysis. While the Agency 
used the best publicly available data and requested from the public 
additional data resources on injuries in swine establishments, OIG 
contended that these two limitations should have been discussed in the 
proposed or final rules. Specifically, OIG stated that (1) the OSHA 
data the agency used in its analysis of the 29 establishments did not 
include injury and illness rates for all establishments for each of the 
10 years, and (2) the OSHA data used did not differentiate whether 
injuries/illnesses occurred on the swine slaughter line or elsewhere 
within the establishment.
    FSIS is publishing OIG's two observations about the data used in 
the preliminary worker safety analysis in response to OIG's 
recommendation to communicate these observations to the public. 
Importantly, FSIS did not develop the preliminary worker safety

[[Page 37995]]

analysis as a basis for the NSIS rulemaking, to draw conclusions on 
worker safety in HIMP or non-HIMP establishments, or to determine 
whether there is an associated impact on food safety. Had FSIS 
developed the analysis for any of these reasons, it would have more 
thoroughly addressed data limitations and uncertainty, as recommended 
by OIG.
    Instead, FSIS published the preliminary worker safety analysis 
solely to solicit comments for use by OSHA and the National Institute 
for Occupational Safety and Health (NIOSH) in examining worker safety 
in swine slaughter establishments. OSHA and NIOSH are the Federal 
agencies with jurisdiction over meat and poultry establishment worker 
safety. Notably, FSIS stated this immediately following the discussion 
of the preliminary analysis in the preamble to the proposed rule (83 FR 
4796):

    FSIS is requesting comments on the effects of faster line speeds 
on worker safety. Specifically, FSIS is requesting comments on 
whether line speeds for the NSIS should be set at the current 
regulatory limit of 1,106 hph or some other number. The Agency is 
also interested in comments on the availability of records or 
studies that contain data that OSHA or the National Institute for 
Occupational Safety and Health (NIOSH) may be able to use in 
analyzing the effects of increased line speed on the safety and 
health of employees throughout the establishment, including effects 
prior to and following the evisceration line.

USDA Non-Discrimination Statement

    In accordance with Federal civil rights law and U.S. Department of 
Agriculture (USDA) civil rights regulations and policies, the USDA, its 
Agencies, offices, and employees, and institutions participating in or 
administering USDA programs are prohibited from discriminating based on 
race, color, national origin, religion, sex, gender identity (including 
gender expression), sexual orientation, disability, age, marital 
status, family/parental status, income derived from a public assistance 
program, political beliefs, or reprisal or retaliation for prior civil 
rights activity, in any program or activity conducted or funded by USDA 
(not all bases apply to all programs). Remedies and complaint filing 
deadlines vary by program or incident.
    Persons with disabilities who require alternative means of 
communication for program information (e.g., Braille, large print, 
audiotape, American Sign Language, etc.) should contact the responsible 
Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or 
contact USDA through the Federal Relay Service at (800) 877-8339. 
Additionally, program information may be made available in languages 
other than English.
    To file a program discrimination complaint, complete the USDA 
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and 
at any USDA office or write a letter addressed to USDA and provide in 
the letter all of the information requested in the form. To request a 
copy of the complaint form, call (866) 632-9992. Submit your completed 
form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, 
Office of the Assistant Secretary for Civil Rights, 1400 Independence 
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) 
email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, FSIS will announce this Federal 
Register publication online through the FSIS web page located at: 
https://www.fsis.usda.gov/federal-register.
    FSIS also will announce and provide a link to it 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 
Constituent Update is available on the FSIS web page. Through the web 
page, FSIS is able to provide information to a much broader, more 
diverse audience. In addition, FSIS offers an email subscription 
service which provides automatic and customized access to selected food 
safety news and information. This service is available at https://www.fsis.usda.gov/subscribe. Options range from recalls to export 
information, regulations, directives, and notices. Customers can add or 
delete subscriptions themselves and have the option to password protect 
their accounts.

    Done at Washington, DC.
Paul Kiecker,
Administrator.
[FR Doc. 2021-15291 Filed 7-16-21; 8:45 am]
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