Cooperative Inspection Programs: Interstate Shipment of Meat and Poultry Products, 24714-24759 [2011-9865]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food Safety and Inspection Service

[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Rules and Regulations]
[Pages 24714-24759]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9865]



[[Page 24713]]

Vol. 76

Monday,

No. 84

May 2, 2011

Part III





Department of Agriculture





-----------------------------------------------------------------------



Food Safety and Inspection Service



-----------------------------------------------------------------------



9 CFR Parts 321, 332, and 381



Cooperative Inspection Programs: Interstate Shipment of Meat and 
Poultry Product; Final Rule

Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Rules and 
Regulations

[[Page 24714]]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 321, 332, and 381

[Docket No. FSIS-2008-0039]
RIN 0583-AD37


Cooperative Inspection Programs: Interstate Shipment of Meat and 
Poultry Products

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the 
Federal meat and poultry products inspection regulations to establish a 
new voluntary cooperative program under which State-inspected 
establishments with 25 or fewer employees will be eligible to ship meat 
and poultry products in interstate commerce. In participating States, 
State-inspected establishments selected to take part in this program 
will be required to comply with all Federal standards under the Federal 
Meat Inspection Act (FMIA) and the Poultry Products Inspection Act 
(PPIA). These establishments will receive inspection services from 
State inspection personnel that have been trained in the enforcement of 
the FMIA and PPIA. Meat and poultry products produced under the program 
that have been inspected and passed by designated State personnel will 
bear an official Federal mark of inspection and will be permitted to be 
distributed in interstate commerce. FSIS will provide oversight and 
enforcement of the program.

DATES: Effective Date: July 1, 2011.

FOR FURTHER INFORMATION CONTACT: Daniel Engeljohn, Assistant 
Administrator, Office of Policy and Program Development, Room 350-E, 
Jamie L. Whitten Building, 1400 Independence Avenue, SW., Washington, 
DC 20250; Telephone (202) 720-2709, Fax (202) 720-2025.

SUPPLEMENTARY INFORMATION:

I. 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.) 
(``the Acts'') require that FSIS protect the public by ensuring that 
meat and poultry products are safe, wholesome, and accurately labeled. 
The Acts require Federal inspection and provide for Federal regulation 
of meat and poultry products prepared for distribution in commerce for 
use as human food.
    Cooperative State inspection programs. Section 661 of the FMIA and 
454 of the PPIA authorize FSIS to cooperate with State agencies in 
developing and administering their own meat or poultry products 
inspection programs for the inspection and regulation of products that 
are produced and sold solely within the State (21 U.S.C. 661 & 454). 
These cooperative State inspection programs are required to operate in 
a manner and with authorities ``at least equal to,'' but not 
necessarily identical to, the provisions set out in the FMIA and PPIA 
(21 U.S.C. 661 (a)(1) & 454 (a)(1)). The ``at least equal to'' standard 
is a concept that requires that State MPI Programs operate in a manner 
that is at least as effective as those standards adopted for the 
Federal inspection program. The Acts provide for FSIS to contribute up 
to 50 percent of the cost of the cooperative State inspection programs, 
as long as the State programs are effectively enforcing requirements 
that are ``at least equal to'' the Federal program (21 U.S.C. 661 
(a)(3) & 454 (a)(3)).
    Section 11015 of Title XI of The Food, Conservation, and Energy Act 
of 2008 (``the 2008 Farm Bill''), enacted on June 18, 2008, amended the 
Acts to establish a new cooperative inspection program under which 
certain State-inspected establishments will be eligible to ship meat 
and poultry products in interstate commerce (Pub. L. 110-246, 112 Stat. 
1651; 21 U.S.C. 683 and 472). The amendments to the Acts provide that 
the Secretary of Agriculture (FSIS by delegation), ``in coordination 
with the appropriate State agency of the State in which the 
establishment is located,'' may select State-inspected establishments 
with 25 or fewer employees to ship meat and poultry products in 
interstate commerce (21 U.S.C. 683 (b) and 472(b)). Inspection services 
for these establishments must be provided by State inspection personnel 
that have ``undergone all necessary inspection training and 
certification to assist the Secretary with the administration and 
enforcement of [the Acts]'' (21 U.S.C. 683(a)(2) and 472(a)(2)). Meat 
and poultry products inspected and passed by the State inspection 
personnel would bear a ``Federal mark, stamp, tag, or label of 
inspection'' and would be permitted to be shipped in interstate 
commerce (21 U.S.C. 683(b)(1) and 472(b)(1)).
    The law provides for the Secretary to ``designate an employee of 
the Federal government'' to ``provide oversight and enforcement'' of 
the program (21 U.S.C. 683(d)(1) and 472 (d)(1)). If the Federal 
employee finds that an establishment selected for the program is in 
violation of the Acts, he or she is required to ``deselect the selected 
establishment or suspend inspection at the selected establishment'' (21 
U.S.C. 683(d)(3)(c) and 472(d)(3)(c)). The law requires that any 
selected establishment that FSIS ``determines to be in violation of any 
requirement of the Act, be transitioned to be a Federal establishment'' 
(21 U.S.C. 683(h) and 472(g)).
    The law provides that FSIS is to reimburse a State for costs 
related to the inspection of establishments in the State selected for 
the program ``in an amount of not less than 60 percent of eligible 
State costs'' (21 U.S.C. 683(c) and 472(c)). The law also states that 
FSIS ``may provide grants to appropriate State agencies to assist the 
appropriate State agencies in helping establishments covered by this 
Act to transition to selected establishments'' (21 U.S.C. 683(g) and 
472(f)). The law is to take effect ``on the date on which the 
Secretary, after providing a period of public comment (including 
through the conduct of public meetings or hearings), promulgates final 
regulations to carry out [section 11015]'' (21 U.S.C. 683 (j)(1) and 
472((i)(1)).
    Proposed rule. On September 16, 2009, FSIS published proposed 
regulations to implement the new cooperative interstate shipment 
program (``Cooperative Inspection Programs: Interstate Shipment of Meat 
and Poultry Products,'' 74 FR 47648).
    FSIS held two public meetings by teleconference on October 27, 
2009, and November 4, 2009, to solicit comments on the proposed 
regulations (74 FR 54493). The comment period for the proposed rule was 
scheduled to close on November 16, 2009, but, in response to comments, 
was extended to December 16, 2009.
    In developing this final rule, FSIS considered all comments 
submitted in response to the September 2009 proposed rule, as well as 
those provided at the two teleconferences held in October and November 
2009. Based on its analysis of the issues, and on information provided 
by the comments, FSIS made certain changes to the proposed regulations. 
Those changes are summarized below and are discussed in detail in the 
Agency's responses to comments.
    For a more detailed discussion of section 11015 of the 2008 Farm 
Bill and FSIS's proposed implementing regulations, refer to the 
September 16, 2009, proposed rule.

[[Page 24715]]

II. Summary of Amendments to the Proposed Rule To Implement the 
Cooperative Interstate Shipment Program

    In this rulemaking, FSIS is finalizing, with some changes, the 
provisions in the September 2009 proposed rule. Specifically, the 
Agency is amending the proposal to:
     Revise the standards for determining an establishment's 
average number of employees for purposes of the cooperative interstate 
shipment program to exclude employees whose duties do not involve 
handling the meat or poultry products produced by the establishment (9 
CFR 332.3(b)(1) and (2) and 9 CFR 318.513(b)(1) and (2));
     Revise the standards for determining the average number of 
employees for purposes of the cooperative interstate shipment program 
to include uncompensated volunteers who are involved in handling the 
meat or poultry products produced by the establishment (9 CFR 
332.3(b)(6) and 381.515(b)(6));
     Allow States that have existing cooperative agreements for 
a State MPI program to submit a request to enter into an agreement with 
FSIS for a cooperative interstate shipment program before the States 
have identified establishments to recommend for the cooperative 
interstate shipment program (9 CFR 332.4(b)(1) and 381.514(b)(1));
     Identify factors that will be considered to determine the 
frequency with which the FSIS selected establishment coordinator (SEC) 
will visit selected establishments under his or her jurisdiction (9 CFR 
332.7(a) and 381.517(a));
     Give establishments that were deselected from the 
cooperative interstate shipment program because they are located in a 
State whose agreement for the program was terminated the option to 
either revert back to operating under the cooperative State MPI program 
or obtain a Federal grant of inspection (9 CFR 332.11(a) and 
381.521(a));
     Allow establishments that were deselected from the 
cooperative interstate shipment and successfully transitioned to become 
Federal establishments to revert back to the State MPI program after 
successfully operating as a Federal establishment for a year (9 CFR 
332.11(b) and 381.521(b));
     Allow establishments selected to participate in the 
cooperative interstate shipment program to operate under both the State 
MPI program for the State where the establishment is located and the 
new cooperative interstate shipment program. State-inspected 
establishments that operate under both programs must maintain an 
appropriate separation of time or space between operations (9 CFR 
332.13 and 381.523);
     Allow selected establishments that are in full compliance 
with the requirements of the cooperative interstate shipment program to 
voluntarily end their participation in the program and revert back to 
the State MPI program (9 CFR 332.14 and 381.514);
     Codify the definition of ``eligible State costs'' to 
include those costs that a State has justified and FSIS has approved as 
necessary for the State to provide inspection services to selected 
establishments in the State (9 CFR 321.3(b) and 381.187(b)).

III. Comments and Responses

    FSIS received approximately 90 separate comment letters in response 
to the September 2009 proposed regulations and approximately 5000 
identical comment letters submitted by a consumer advocacy organization 
on behalf of private citizens. Comments submitted by consumer advocacy 
organizations, private citizens, State farm bureaus, trade associations 
representing meat processors, and a labor union representing food and 
commercial workers expressed general support for the proposed 
regulations. Comments submitted by an association of State meat and 
food inspection directors, an association of State Departments of 
Agriculture, several State Departments of Agriculture and other State 
agencies, farm and agriculture advocacy organizations, Congress members 
providing comments on behalf of the State of Wisconsin, and private 
citizens expressed support for the concept of a cooperative interstate 
shipment program but objected to several provisions in FSIS's proposed 
implementing regulations. Other comments submitted by FSIS inspection 
personnel, small federally-inspected establishments, and one consumer 
advocacy organization opposed any program that would permit State-
inspected meat and poultry products in interstate commerce.
    Following is a discussion of these comments and FSIS's responses.

A. Development of the proposed rule

    Comment: Several comments criticized FSIS for not consulting with 
State officials during the development of the proposed regulations. The 
comments stated that several States and organizations of State 
officials had offered to form an advisory committee to assist FSIS in 
developing the proposed regulations to implement the cooperative 
interstate shipment program. As noted by the comments, FSIS determined 
that such a request was not practical due to the regulatory constraints 
and the statutory time-line for implementing this program. The comments 
encouraged FSIS to work closely with State inspection officials to 
develop final regulations to make the program as workable as possible. 
One comment said that creating an environment where state regulators 
and federal regulators work together consistently will provide the 
stability the program needs to be successful for all involved.
    Some comments suggested that FSIS use this rulemaking as an 
opportunity to encourage more State involvement in addressing the 
nation's food safety problem. The comments encouraged FSIS to accord 
considerable weight to comments submitted by States with exemplary food 
safety inspection histories and State-inspected establishments that 
likewise have exemplary histories when the Agency finalizes the 
proposed rule.
    Response: FSIS appreciates the States' willingness to participate 
in the development and implementation of the new cooperative interstate 
shipment program. In developing this final rule, FSIS carefully 
considered the comments and suggestions submitted by the States and, as 
a result, the Agency made certain revisions to the proposed 
regulations. FSIS will work closely with the States as the Agency moves 
forward to implement the cooperative interstate shipment program 
established in this final rule.
    Comment: A few comments stated that the teleconference format for 
the two public meetings that were held in October and November of 2009 
was not an appropriate way to generate comments on the proposed 
cooperative interstate shipment program. One comment noted that there 
were few comments presented during the teleconferences, which the 
commenter believed may be related to the format of the public meeting. 
One comment said that both teleconferences occurred on the same dates 
and times when FSIS was offering webinars for small and very small 
plant operators, which presented a conflict for those interested in 
participating in both meetings. Another comment complained that, 
although the commenter had registered for the teleconference and has a 
confirmation passcode to participate, the commenter was not allowed to 
speak during the meeting.
    Response: FSIS chose the teleconference format for the public 
meetings to provide individuals with

[[Page 24716]]

easier access to the meeting, particularly those who may lack the 
resources or time to attend a meeting in person. FSIS will consider the 
comments submitted on this issue to determine how it can improve its 
use of the teleconference format to conduct public meetings in the 
future.

B. General Support for and General Opposition to the Proposed Rule

1. Support for the Proposed Regulations
    Comment: Comments submitted by consumer advocacy organizations, 
private citizens, State farm bureaus, trade associations representing 
meat processors, and a labor union representing food and commercial 
workers expressed general support for FSIS's proposed regulations to 
implement the cooperative interstate shipment program. Some of these 
comments said that the language in Section 11015 of the 2008 Farm Bill 
reflects an agreement reached through negotiations between various 
national consumer organizations, the National Association of State 
Departments of Agriculture, the National Farmers Union, the American 
Federation of Government Employees, and the United Food and Commercial 
Workers Union. According to these comments, the language in section 
11015 was carefully crafted to meet the desire of some State-inspected 
meat plants to enlarge their area of sales while assuring that all meat 
and poultry sold across state lines meet federal inspection standards. 
The comments commended FSIS for writing proposed regulations that 
closely adhere to both the intent and specific language of the 
legislation.
    One comment noted that the program established in the proposed 
regulations builds on existing State inspection programs and includes 
important enhancements that can lead to stronger State inspection 
programs. The comment approved of the fact that, like the statute, the 
proposed regulations would not permit ``regulatory forum shopping.''
    Response: FSIS agrees that the proposed regulations are consistent 
with both the intent and language of the enabling legislation. The 
Agency also agrees that the program established in the proposed 
regulations will complement the existing State inspection programs.
2. Support Interstate Shipment but not the Program Proposed by FSIS
    Comment: Comments submitted by an organization of State Agriculture 
Departments, an organization of State meat inspection program 
Directors, several State Departments of Agriculture, State agencies, 
farm and agriculture advocacy organizations, and private citizens 
expressed support for the concept of a cooperative interstate shipment 
program but had concerns about FSIS's proposed regulations to implement 
the program. Many of these comments stated that, instead of allowing 
for the interstate shipment of state inspected products, FSIS's 
proposed regulations essentially set up another Federal inspection 
system under more stringent and inflexible provisions than the current 
Federal system. According to the comments, FSIS's proposed program 
fails to remove unnecessary barriers for small establishments to sell 
their specialty products across State lines. The comments asserted that 
the proposed regulations will create a regulatory system that is too 
burdensome for either establishments or State inspection programs, 
which likely means that few will take advantage of the program.
    To support these assertions, the comments noted that, when FSIS 
issued the proposed rule, the Agency estimated that approximately 60% 
(16 of 27) of the States with existing State MPI programs and 
approximately 200-600 establishments were interested in participating 
in the new cooperative interstate shipment program. The comments stated 
that after FSIS issued the proposed rule, an internal poll conducted by 
an organization of State official indicates that only 2 of these 27 
States, each with only a handful of establishments, now find the 
cooperative interstate shipment proposed by FSIS to be even potentially 
viable. According to the comments, without a drastic revision of the 
proposed regulations and active FSIS participation in cooperation with 
the State partners, the program is unlikely to succeed.
    Response: After careful consideration of all comments submitted in 
response to the 2009 proposed rule, FSIS modified the proposed 
regulations to provide some added flexibility for establishments 
selected to participate in the cooperative interstate shipment program. 
For example, under this final rule, selected establishments that are in 
full compliance with the program will be permitted to voluntarily end 
their participation in the program. This final rule will also permit 
selected establishments to operate under both the cooperative 
interstate shipment program and the State's MPI program if they 
maintain an appropriate separation of time or space between operations. 
The Agency believes that these modifications, which are discussed in 
more detail in the Agency's response to comments, will provide 
additional incentive for some establishments to participate in the 
program.
3. Oppose any Program That Would Allow Interstate Shipment of State-
Inspected Product
    Comment: Comments submitted by FSIS inspection personnel, small 
federally-inspected meat and poultry processing establishments, and a 
consumer advocacy organization objected to any program that would 
permit state-inspected meat and poultry products to be shipped in 
interstate commerce. According to many of these comments, meat and 
poultry products produced in State-inspected establishments do not 
undergo the same level of inspection as products produced in Federal-
inspected facilities, and many State MPI programs are not truly ``at 
least equal to'' the Federal inspection program. A few comments 
referenced a 2006 Office of Inspector General Audit Report of State-
inspected meat and poultry programs that the comments said found that 
some State-inspected facilities had failed to operate in a sanitary 
manner and that FSIS had not provided consistent oversight of existing 
State MPI programs.
    Response: As required by law, the cooperative interstate shipment 
program established under this final rule will operate under the same 
standards imposed under the Federal inspection program. Thus, meat and 
poultry products produced in State-inspected establishments selected 
for the cooperative interstate shipment program will undergo the same 
level of inspection as products produced in federally-inspected 
facilities.
    With respect to the comment that many State MPI programs are not 
truly ``equal to'' the Federal inspection program, each year the FSIS 
OPEER Federal State Audit Branch reviews the State cooperative MPI 
programs and their requirements to verify that each State program ``at 
least equal to'' the Federal program. These comprehensive reviews 
consist of an annual review of the State MPI program's self assessment 
submission and an on-site review to verify the State's self-assessment 
submission. The onsite reviews are scheduled at a minimum, once every 
three years.
    Based on the self assessment documents received during FY 2009, 
FSIS determined that all of the 27 State MPI programs provided adequate 
documentation to support that they have implemented and can maintain 
MPI programs ``at least equal to'' the Federal program. FSIS determined 
that

[[Page 24717]]

all of the 11 State MPI programs reviewed on-site were enforcing 
requirements ``at least equal to'' those imposed under the Federal 
Acts.
    In its 2006 audit of the FSIS's cooperative State MPI programs, the 
OIG provided recommendations to strengthen FSIS's review of these 
programs. FSIS provided management decisions in response to the 2006 
OIG audit recommendations, which were accepted by OIG. The Agency has 
implemented the 2006 management decisions.
    Comment: One comment stated that State-inspected establishments 
should not be allowed to ship products interstate because the States do 
not have the money or staff to provide the inspection that the Federal 
government does. Another comment maintained that Federal inspectors 
undergo more extensive training than State inspection personnel and, 
therefore, unlike State inspectors, are continuously expanding their 
knowledge bases.
    Response: As discussed in greater detail below, to qualify for the 
cooperative interstate shipment program, States with cooperative State 
MPI programs will need to demonstrate that they have staffing 
sufficient to conduct the same inspection activities in establishments 
operating under the cooperative interstate shipment program that FSIS 
conducts in official Federal establishments. The States will also need 
to demonstrate that the designated State personnel have been properly 
trained in Federal inspection methodology. FSIS will not enter into an 
agreement for a cooperative interstate shipment program with States 
that are unable to meet these conditions.
    Comment: One comment submitted by a consumer advocacy organization 
said that while the commenter does not support State-inspected meat and 
poultry for either intrastate or interstate commerce, it understands 
that Congress amended the FMIA and PPIA to establish the cooperative 
interstate shipment program, and that FSIS is required to develop 
regulations to implement the law. The comment urged the Agency to put 
into place a system whereby establishments that participate in the 
program are held to the identical Federal standards and practices as 
those establishments under Federal inspection and that the Agency 
maintain strict oversight of such a program.
    Response: The cooperative interstate shipment program established 
in these final regulations will be a State inspection program under 
which designated State-personnel enforce Federal food safety standards. 
As required by law, FSIS will provide oversight and enforcement of the 
program.
    Comment: Several comments submitted by FSIS inspection personnel 
and small federally-inspected meat and poultry processors maintained 
that instead of establishing cooperative interstate shipment program, 
FSIS should require that State-inspected establishments that desire to 
ship their meat and poultry products in interstate commerce come under 
Federal inspection.
    One comment submitted by a small federally-inspected establishment 
explained that as a small company, it decided to obtain a Federal grant 
of inspection as an investment for the future of its business. The 
comment noted that the establishment did this to allow for interstate 
sales of its products and that the same option is available today for 
any company willing to make a similar investment. The comment asserted 
that to provide for a level playing field, all small companies that 
want to sell their products across state lines should be required to go 
through the same process and obtain a Federal grant of inspection.
    Response: Section 11015 of the 2008 Farm Bill amended the FMIA and 
PPIA to establish the cooperative interstate shipment program. The 
amendments require that FSIS issue final regulations to implement the 
new program. Once the new program becomes effective, small State-
inspected establishments that are interested in selling meat or poultry 
products across State lines will have the option to operate as a 
selected establishment under the cooperative interstate shipment 
program or as an official Federal establishment. An establishment that 
ships products across States lines must comply with all Federal 
standards regardless of the inspection program that it chooses to 
operate under.
    Comment: One comment said that the cooperative interstate shipment 
program is not necessary because the Talmadge/Aiken program serves the 
same purpose.
    Response: The Talmadge-Aiken program and the cooperative interstate 
shipment program serve different purposes. Under the Talmadge-Aiken 
program, FSIS enters into a separate agreement with a State agency for 
the State program to conduct meat, poultry, or egg products inspection 
or other regulatory activities on behalf of FSIS. Establishments that 
participate in the Talmadge-Aiken program operate under a Federal grant 
of inspection. Under the cooperative interstate shipment program, FSIS 
enters into a separate agreement with a State agency to enforce Federal 
food safety standards at State-inspected establishments. Establishments 
that participate in the cooperative interstate shipment program are not 
Federal establishments operating under a Federal grant of inspection.
    Comment: Comments submitted by a few FSIS inspection personnel 
opposed the proposed cooperative interstate shipment stated because the 
commenters believe that the program will result in a reduction in the 
Federal inspection force. The comments stated that under such a 
program, small federally-inspected establishments will want to drop 
their Federal grant of inspection and produce products under State-
inspection, thereby taking jobs that would otherwise belong to Federal 
employees and giving them to State employees.
    Response: Under the law and implementing regulations, 
establishments that operate under the Federal inspection program are 
ineligible to participate in the cooperative interstate shipment 
program. The new program is limited to certain small and very small 
State-inspected establishments. Thus, the cooperative interstate 
shipment program will have little effect on Federal inspection 
personnel.
    Comment: One comment objected to allowing the interstate shipment 
of state-inspected products because, according to the comment, FSIS 
will no longer have control or jurisdiction over some meat and poultry 
products in interstate commerce. The comment noted that a State's 
jurisdiction is limited to the State's borders. The comment asked what 
would happen if product produced by a State-inspected establishment is 
implicated in a food safety issue resulting in a recall.
    Response: Under the law, FSIS is responsible for providing 
oversight and enforcement of the cooperative interstate shipment 
program. Therefore, if an establishment operating under the cooperative 
interstate shipment program distributes meat or poultry products that 
present a food safety hazard or that need to be recalled for other 
reasons, FSIS will coordinate with the State MPI program to ensure that 
such product is removed from commerce. FSIS will be responsible for the 
overall coordination of the recall and for verifying that recalled 
product that has been shipped interstate has been removed from 
commerce.

C. Establishment Participation--Conditions for Eligibility and 
Standards for Determining Average Number of Employees

    The proposed rule prescribed conditions that State-inspected

[[Page 24718]]

establishments would be required to meet to become eligible to 
participate in the cooperative interstate shipment program. Consistent 
with the law, among these proposed conditions were that an 
establishment be in compliance with all Federal inspection requirements 
under the FMIA, PPIA, and their implementing regulations, and that the 
establishment employ, on average, no more than 25 individuals. The 
proposed rule also included proposed standards for determining the 
average number of employees, which, for the most part, reflect 
applicable methods used by the Small Business Administration (SBA) to 
calculate the number of employees for a small business concern. FSIS 
received several comments on the proposed conditions for establishment 
eligibility and the proposed standards for determining the average 
number of employees.
1. Compliance With Federal Standards
    Comment: Some comments agreed that State-inspected establishments 
should be required to comply with Federal standards to be eligible for 
the cooperative interstate shipment program. The comments stated that 
many small and very small establishments have managed to conform to, 
and operate successfully under, the requirements of the Federal 
inspection system. Two comments noted that data obtained from FSIS's 
PBIS in 2007 show that 51 percent (2,878 of 5,603) of all federally-
inspected establishments have 10 or fewer employees and 80% have 50 or 
fewer employees.
    The comments also noted that all establishments that prepare or 
process meat and poultry products have always had the opportunity to 
ship their products in interstate commerce provided that they apply for 
and receive a Federal grant of inspection. The comments stated that 
small and very small establishments now under Federal inspection have 
invested time and money to comply with all Federal regulations and to 
operate under Federal standards. The comments asserted that while the 
new cooperative interstate shipment program is intended to offer 
establishments operating under their State inspection program an 
opportunity to broaden their distribution, any establishment that ships 
meat or poultry products in interstate commerce can and should meet 
Federal food safety standards.
    Other comments stated that requiring that State-inspected 
establishments comply with Federal food safety standards in order to be 
eligible for the cooperative interstate shipment program will establish 
unfair barriers for small plants to participate in the program. The 
comments urged FSIS to provide small State-inspected establishments 
with greater flexibility in achieving food safety standards. One 
comment from a small State-inspected establishment stated that it 
cannot afford Federal inspection. The comment noted that establishments 
operating under the State MPI system are required to adhere to very 
strict food safety standards but, unlike the Federal system, State 
inspection personnel are also available to help the small and very 
small establishments with education and training.
    Response: The amendments to the Acts in section 11015 of the 2008 
Farm Bill require that State-inspected establishments be in compliance 
with all Federal standards in order to be eligible for the cooperative 
interstate shipment program. The provisions in the Acts that establish 
the cooperative interstate shipment program define an ``eligible 
establishment'' as an establishment that is in compliance with both ``* 
* * the State inspection program of the State in which the 
establishment is located'' and ``[the FMIA or PPIA], including the 
rules and regulations issued under [the FMIA or PPIA]'' (21 U.S.C. 
472(a)(3) and 683(a)(3)).
    The Senate Conference Committee report on the bill that established 
the cooperative interstate shipment program also makes clear that 
establishments selected for the program ``* * * must fully follow [the 
FMIA or PPIA], its regulations, notices, directives and policies just 
as would be required of a Federal establishment'' (S. Rep. No. 220, 
110th Cong., 1st Sess. (2007), pp. 211-214). Thus, requiring that 
State-inspected establishments comply with Federal food safety 
standards to become eligible to participate in the cooperative 
interstate shipment program is consistent with both the language and 
intent of section 11015 of the 2008 Farm Bill.
    FSIS's Office of Outreach, Employee Education, and Training (OOEET) 
will provide technical resources, information, and guidance to small 
and very-small State establishments that are interested in becoming 
eligible to participate in the cooperative interstate shipment program.
2. Determining Average Number of Employees
    a. Proposed standard: All individuals, both supervisory and non-
supervisory, employed by the establishment on a full-time, part-time, 
or temporary basis are to be counted when calculating the total number 
of employees.
    Comment: Several comments stated that for purposes of the 
cooperative interstate shipment program, an establishment's average 
number of employees should be based only on those directly involved in 
the preparation or processing of meat and poultry products. The 
comments noted that many small and very small establishments conduct 
operations other than the processing of meat or poultry products, such 
as grocery stores, convenience stores, or other retail outlets. 
According to the comments, employees that do not perform duties related 
to the meat or poultry processing operations of the business should not 
be included when calculating the average number of employees.
    One comment suggested that FSIS consider basing the ``value'' 
associated with the employee on the workers compensation code that the 
employer designates. The commenter said that it could give FSIS a 
simple way of determining which workers are associated with the meat 
processing part of the business and which employees offer other roles 
for the company, such as administrative workers or retail clerks.
    Other comments said that all establishment personnel, including 
those not involved in the actual production of meat and poultry 
products, should be counted when calculating the average number of 
employees. One comment noted that the law specifically states that 
supervisory and nonsupervisory employees are to be counted when 
calculating the average number of employees. The comment maintained 
that this indicates that if Congress had intended to exclude certain 
employees from the calculation, it would have expressly stated so in 
the law. The comment urged FSIS to require that temporary and part-time 
employees, regardless of their position in the establishment, be 
counted when determining the average number of employees.
    Response: Although the law limits participation in the cooperative 
interstate shipment program to State-inspected establishments that 
employ, on average, 25 or fewer employees, it does not distinguish 
between employees involved in an establishment's meat or poultry 
processing operations from those that are not. Counting all individuals 
employed by the establishment would ensure that participation in the 
cooperative interstate shipment program is limited to very small and 
certain small establishments. Counting only

[[Page 24719]]

employees directly involved in the preparation or processing of meat 
and poultry products would create a more flexible standard that would 
expand the number of potentially eligible establishments to include 
those that have a small number of employees that work in meat or 
poultry processing but a larger number of employees that work in other 
areas of their business.
    The 2008 amendments to the Acts give FSIS the authority to define 
``average number of employees'' for purposes of the cooperative 
interstate shipment program, but they also make clear that the program 
is intended for State-inspected establishments that employ a limited 
number of individuals. Therefore, FSIS is adopting a standard for 
calculating the average number of employees that provides some 
flexibility for establishments that conduct operations other than meat 
or poultry processing, but that also clearly distinguishes those 
employees that are to be counted for purposes of the interstate 
shipment program from those that are not.
    Therefore, instead of counting all individuals employed by the 
establishment as proposed, under this final rule, an establishment's 
average number of employees will be calculated by counting all 
individuals employed by the establishment, excluding the employees that 
do not come into contact with the meat or poultry products produced by 
the establishment. For example, if the owner of a gas station produces 
beef jerky and sells it at the gas station, the employees that are 
involved in producing the jerky, as well as those that work as cashiers 
and sell the product, will be counted. The mechanics that work on the 
cars, however, will not be. Employees that perform solely 
administrative functions and that do not handle meat or poultry 
products will also not be counted.
    When an establishment conducts multiple operations, it is sometimes 
difficult to distinguish employees associated with the meat or poultry 
operations from those that are not. For example, an individual employed 
as a cashier at an establishment's deli operations may also slice and 
package meat or poultry products produced by the establishment. The 
standard adopted in this final rule clearly distinguishes employees 
whose duties are associated with the meat or poultry products produced 
by an establishment from those that are not. It also ensures that the 
cooperative interstate shipment program will remain limited to certain 
small and very small establishments, as intended.
    b. Proposed standard: Part-time and temporary employees are to be 
counted the same as full-time employees.
    Comment: Several comments, most submitted by consumer advocacy 
organizations and one submitted by a food and commercial workers union, 
agreed with the proposed standard to count part-time and temporary 
workers as full-time workers for purposes of qualifying for the 
cooperative interstate shipment program. The comments noted that most 
very small establishments have few full-time employees, and many do not 
operate every day. The comments maintained that counting part-time and 
temporary employees the same as full time employees is an effective 
means to assure the cooperative interstate shipment program serves the 
entities it was intended to serve. According to the comment, failing to 
count part-time and temporary employees in the average number of 
employees would permit substantially larger entities to participate in 
a program that was designed to serve very small local establishments.
    Some of these comments noted that during negotiations with the 
States, consumer advocacy groups reluctantly agreed to the States' 
request for a program with a 25 employee limit. According to the 
comment, none of the groups involved in the negotiations ever agreed to 
anything larger than 25 employees. The comments said that the primary 
reason that many consumer advocacy organizations had opposed the House 
interstate shipment bill was because the bill contained a 50 employee 
limit, which, according to the comment, would have expanded the number 
of establishments in the new cooperative program far beyond what was 
intended. One comment stated that, although the program's 25 employee 
limit is reasonable, the commenter would have preferred a limit of 10 
employees, which is similar to the current FSIS definition for very 
small establishments.
    Several other comments, most submitted by State Departments of 
Agriculture and other State agencies, disagreed with the proposed 
standard to count part-time and temporary workers as full time 
employees. The comments stated that such a standard seems excessive and 
does not provide an accurate depiction of an establishment's actual 
number of employees.
    The comments noted that many small establishments in small towns 
hire part-time employees who work as little as a few hours a week. 
According to the comments, to count such employees as full-time would 
contradict and undercut the rural development intentions of the 
enabling legislation. One comment stated that in some rural areas, 
especially those with small and very small establishments, meat 
processing has a seasonal component that provides part-time seasonal 
work for rural residents. The comments noted that during each part of 
the day, an establishment may have only 25 employees on site, even if 
the total number of part-time and fulltime employees employed overall 
during the day exceeds 25.
    The comments suggested that part-time and temporary workers be 
counted on the basis of ``full-time equivalents'' or ``FTEs,'' i.e., 
based on the ratio of their work-hours to those of a full-time year-
round employee. The comments said that part-time and temporary 
employees should be grouped together and counted based on the number of 
hours they work each week during the year, with 40 hours per week being 
considered an FTE. Several comments suggested formulas for calculating 
the number of employees based on FTEs.
    Response: After considering the comments, FSIS has decided to adopt 
the proposed standard to count temporary and part time employees the 
same as full-time employees. For purposes of its regulatory programs, 
FSIS defines small and very small establishments based on SBA criteria. 
A standard that counts part-time and temporary workers the same as 
full-time workers reflects the SBA methods for calculating the average 
number of employees for a small business concern and is thus consistent 
with FSIS's overall approach for defining small and very small 
establishments.\1\
---------------------------------------------------------------------------

    \1\ See 13 CFR 121.105 and 121.106 for SBA methods to calculate 
the number of employees of a business concern where the size 
standard in number of employees.
---------------------------------------------------------------------------

    As noted by the comments, several very small establishments have 
few full-time employees, and many do not operate every day. A standard 
that is based on the SBA criteria that counts part-time and temporary 
employees the same as full time employees allows these establishments 
to hire seasonal workers while ensuring that only very small and 
certain small establishments are eligible to participate in the 
program.
    Comment: Several comments stated that the standards for determining 
the average number of employees need to allow for more flexibility in 
counting temporary seasonal workers. The comments noted that small and 
very small establishments often have fluctuation in their employees 
during certain parts of the year, such as during

[[Page 24720]]

holiday and hunting seasons, and that the term ``seasonal'' will have 
different meanings in different areas of the country. Some comments 
noted some establishments hire extra employees to help with seasonal 
activities that are not related to the processing of amenable species, 
such as processing game meat or for busy times in their retail shops 
around holidays.
    The comments suggested that seasonal employees be counted based on 
FTE. As an example, the comments explained that a seasonal employee who 
works full-time for 3 months would be a 25% FTE and should be counted 
as one quarter of an employee.
    One comment asserted that seasonal employees should not be counted 
at all when calculating the average number of employees. The comment 
suggested that the final rule define a seasonal employee as an employee 
that works for the establishment ninety or fewer days in a calendar 
year.
    Response: When Congress amended the FMIA and PPIA to establish the 
cooperative interstate shipment program, it intended for FSIS to 
interpret the term average ``[hellip]to provide some flexibility to 
these selected plants that require seasonal employees for certain parts 
of the year, as long as the increase in employees are [sic] manageable 
by the establishment and the increase in employees does not undermine 
food safety standards'' (S. Rep. No. 220, 110th Cong., 1st Sess., pp. 
211-214 (2007)).
    As discussed below, under the proposed rule, selected 
establishments may temporarily employ more than 25 employees during 
busy seasons, as long as the average number of employees continues to 
be 25 and the number of employees does not exceed 35. Thus, a standard 
that counts temporary seasonal employees the same as full-time 
employees will allow selected establishments to hire seasonal employees 
while ensuring that the number of employees remains manageable by the 
establishment, as Congress intended.
    FSIS disagrees with the comment that stated that seasonal employees 
should not be counted at all. Such an approach would be inconsistent 
with the language and intent of the statute.
    c. Proposed standard: The total number of employees cannot exceed 
35 at any given time, regardless of the average number of employees.
    Comment: Some comments stated that the proposed standard that 
provides that the total number of employees can never exceed 35 
individuals at any given time, regardless of the average number of 
employees, is a reasonable upper limit for selected establishments to 
remain eligible to participate in the program. One comment stated that 
such a limit is reasonable if FSIS does not count part-time and 
temporary employees the same as full time.
    Other comments asserted that FSIS should not limit the number of 
employees working at a selected establishment at any given time if the 
establishment maintains an average of 25 employees or fewer. The 
comments stated that while section 11015 of the 2008 Farm Bill requires 
that the average number of employees not exceed 25, the law does not 
prohibit a selected establishment from ever, over the course of a year, 
having more than 35 employees.
    The comments stated that in many small establishments there may be 
``spikes'' in employee numbers during busy periods, but the overall 
average number of employees is under 25. The comments asserted that, as 
written, the proposed rule excludes such establishments from 
participating in the interstate shipment program. According to the 
comments, section 11015 was not intended to exclude these 
establishments. The comments suggested that FSIS revise the proposed 
rule to ensure that these establishments remain eligible for the 
program.
    One comment disagreed with the proposed 35 employees limit because, 
according to the comment, allowing selected establishment to have 35 
employees during seasonal shifts represents, at minimum, a 40% increase 
in establishment personnel. The comment argued that the higher number 
of employees represents a huge increase in production that could 
overwhelm a very small establishment's production systems, which could 
result in contaminated food entering commerce. The comment noted that 
if an establishment routinely employs 5 people and then increases this 
number to 10 or 20 during a certain timeframe, it will have a 100% or 
400% increase in employees. The comment maintained that this level of 
increase is not manageable and is not what Congress intended.
    The comment suggested that instead of limiting the total number of 
employees to 35 at any given time, FSIS should cap at 20% the increase 
in the number of employees that an establishment may use during a 
seasonal shift. The comment acknowledged that the commenter does not 
have data to support this number, but stated that it stands to reason 
that a sudden increase in production could significantly affect the 
dynamics within an establishment and overwhelm the system. According to 
the comment, small and very small establishments have HACCP plans for a 
production process at a certain level that would not necessarily 
support a significantly higher level of production. The comment pointed 
out that FSIS did not provide any data to support the proposed 35 
employee cap.
    One comment stated that FSIS should not allow more than 25 
employees in selected establishments at any given time. The comment 
noted that section 11015 requires that establishments that consistently 
employ more than 25 employees but fewer than 35 employees transition to 
Federal establishments within three years of the enactment date. The 
comment stated that this provision indicates that Congress recognized 
that establishments that ship product in interstate commerce and that 
have more than 25 employees should be under Federal inspection.
    Response: While the 2008 amendments to the Acts do not specifically 
prohibit selected establishments from ever having more than 35 
employees, the Senate report described above indicates that Congress 
intended that there be some limits on the number of employees working 
at a selected establishment at any given time.
    As explained in the preamble to the proposed rule, FSIS proposed 
that the number of employees working in a selected establishment never 
exceed 35 at any given time because the law allows FSIS to select for 
the cooperative interstate shipment program establishments that 
employed more than 25 but fewer than 35 employees as of June 18, 2008, 
the date the law was enacted (21 U.S.C. 683(b)(3)(B) and 472(b)(3)(B)). 
To remain in the program, these establishments must employ fewer than 
25 employees on average 3 years after the effective date of this final 
rule. Thus, while Congress did not intend to ``* * * routinely allow 
selected establishments to employ above 25 or more employees,'' the 
fact that the law provides for some selected establishments to 
initially employ up to 35 individuals demonstrates that a temporary 
increase in the number of employees of up to 35 individuals, as long as 
the average number of employees remains 25 or fewer, is consistent with 
the language and intent of the Acts.
    As noted above, when Congress established the cooperative 
interstate shipment program, it intended to provide some flexibility to 
establishments that require seasonal employees to meet consumer demands 
for certain parts of the year. The 20%

[[Page 24721]]

cap on the increase in the number of employees suggested by one of the 
comments would greatly restrict the number of temporary workers that a 
selected establishment would be allowed to hire during busy seasons. 
For example, an establishment that regularly employs five employees on 
average would be permitted to hire only one temporary employee during 
its busy seasons. Many small and very small establishments operate on 
an intermittent or seasonal basis and are accustomed to adjusting their 
operations to temporarily increase production without undermining food 
safety standards. FSIS has concluded that restricting the increase in 
employees to 20% is unlikely to provide the flexibility that many very 
small selected establishments will need to meet seasonal demands for 
their products.
    d. Proposed standards: Volunteers who receive no compensation are 
not considered employees.
    Comment: One comment disagreed with the proposed standard that 
provides that volunteers are not considered employees. The comment 
stated as a food safety measure, uncompensated volunteers who are 
engaged in meat or poultry product processing should be considered 
employees for the purpose of the cooperative interstate shipment 
program.
    Response: FSIS agrees with this comment and has revised the 
standards for counting employees to include as employees, volunteers 
that perform duties that involve handling the meat or poultry products 
produced by the establishment.

D. State Participation: ``The Same as'' Standard for Inspection 
Services Provided to Selected Establishments

    The proposed regulations provide that States interested in 
establishing an agreement for a cooperative interstate shipment program 
are required to submit a request for such an agreement to FSIS through 
the FSIS district office that covers the State. The proposed rule also 
provided that, in their requests, States are required to include 
documentation to demonstrate that they are able to provide the 
necessary inspection services to selected establishments in the State 
and conduct any related activities that would be required under a 
cooperative interstate shipment program. The preamble to the proposed 
rule explained that to meet this requirement, the statute requires that 
States demonstrate that the inspection service that they provide to 
selected establishments in the State will be ``the same as,'' rather 
than ``at least equal to'' those provided under the Federal inspection 
program. FSIS received a significant number of comments on the proposed 
``same as'' standard.
1. Support for ``the same as'' Standard
    Comments submitted by consumer advocacy organizations, meat 
processor trade associations whose members mainly operate under the 
Federal inspection system, a union representing food and commercial 
workers, two pork producer trade associations, and some private 
citizens expressed support for the proposed ``same as'' standard.
    Comment: The comments that supported the proposed ``same as'' 
standard agreed that the language and intent of the enabling statute 
require that the cooperative interstate shipment program operate under 
standards that are the ``same as'' the Federal inspection system and 
not the ``at least equal to'' standard that applies to State MPI 
programs. The comments believed that all meat and poultry products 
shipped in interstate commerce should be required to comply with 
uniform Federal food safety standards rather then multiple State 
standards. The comments stated that it is especially important for 
State-inspected establishments that participate in the new program to 
be in compliance with all Federal standards because the meat and 
poultry products produced by these establishments will bear a Federal 
mark of inspection.
    One comment stated that requiring that selected establishments that 
voluntarily request the opportunity to participate in a cooperative 
interstate shipment program operate in a manner that is the ``same as'' 
federally-inspected establishments is not only consistent with the 
provisions and intent of the law, but also ensures that the food safety 
standards established in the FMIA, PPIA, and their implementing 
regulations are applied uniformly to all meat and poultry products that 
are distributed in interstate commerce. The comment encouraged FSIS to 
retain the proposed ``same as'' standard to first and foremost ensure 
the safety of meat and poultry products distributed in interstate 
commerce, but also to ensure equity in the marketplace. The comment 
added that this fundamental proposition, that the playing field be 
level for all companies engaging in interstate commerce, was a critical 
element in securing passage of the statutory provisions that authorized 
the cooperative interstate shipment program. The comment asserted that 
the program must not provide an unfair advantage to small companies 
that will not, or cannot, make the commitments necessary to comply with 
Federal food safety requirements.
    Two comments stated that requiring that State-inspected products 
produced under the cooperative interstate shipment program comply with 
all Federal requirements is essential for maintaining domestic and 
international markets for U.S. meat and poultry products. Other 
comments said that consumers expect that products carrying the Federal 
mark of inspection comply with Federal standards for meat and poultry 
inspection. The comments stated that establishments that are not held 
to all aspects of the Federal requirements should not be entitled to 
apply the Federal mark of inspection on their products.
    One comment that supported the ``same as'' standard noted that 
although establishments operating under a State MPI inspection program 
receive inspection services that are ``at least equal to'' the Federal 
inspection program, the methodology employed by FSIS is a critical part 
of the effectiveness of the Federal food safety system. The comment 
asserted that, as such, it is essential for States that participate in 
the cooperative interstate shipment program to follow Federal 
inspection methodology when providing inspection services to selected 
establishments.
    Response: FSIS agrees that the ``same as'' standard is consistent 
with the language and intent of the statutes. The issues raised by the 
comments demonstrate why it is important for the cooperative interstate 
shipment program to operate under standards that are ``the same as'' 
those imposed under the Federal meat and poultry products inspection 
programs.
2. Opposed to ``same as'' standard
    Several comments submitted by State Departments of Agriculture and 
other State agencies, as well as organizations representing these 
entities, objected to the proposed ``same as'' standard. Some farm and 
rural community advocacy organizations, cattle producer organizations, 
a trade association representing small meat processors, and an animal 
welfare advocacy organization also opposed the proposed standard.
    Comment: Several comments that objected to the proposed ``same as'' 
standard claimed that such a standard is not authorized by law. These 
comments asserted that the Acts, as amended by the 2008 Farm Bill, do 
not contain any language that would require that the inspection 
services that States provide to selected establishments be ``the same

[[Page 24722]]

as'' or ``identical to'' the inspection services provided under the 
Federal program. The comments maintained that such an interpretation is 
an extrapolation of the language that does not exist in the statute.
    The comments noted that under the 2008 Farm Bill amendments, the 
term ``eligible establishment'' refers to an establishment that is ``in 
compliance with'' the Acts. The comments also noted that these 
amendments authorize the SEC to ``ensure that selected establishments 
are operating in a manner that is consistent with * * *'' the Acts (21 
U.S.C. 472(d)(3)(A), 683(d)(3)(A)). The comments argued that these 
provisions indicate that if Congress had intended to require that the 
State program be ``the same as'' or ``identical to'' to the Federal 
program, it would have specifically said so in the statute.
    The comments also noted that the 2008 Farm Bill did not amend the 
provisions in the FMIA and PPIA that provide for cooperative State MPI 
programs that are ``at least equal'' to the Federal program. According 
to the comments, the fact that Congress did not amend these provisions 
demonstrates that State programs that are ``at least equal to'' the 
Federal program are in compliance with the Acts.
    Response: The language in the FMIA and PPIA, as amended by the 2008 
Farm Bill, is clear: Congress provided that the cooperative interstate 
shipment program would operate under standards that are ``the same as'' 
those imposed under the Federal program.
    The 2008 amendments to the FMIA and PPIA provide that to be 
eligible for the cooperative interstate shipment, State-inspected 
establishments must be in compliance with both the State's MPI program 
and ``* * * the requirements of this chapter, including the rules and 
regulations issued under this chapter'' (21 U.S.C. 472(a)(3) and 
683(a)(3)). As used in the statutes, the term ``this chapter'' refers 
to the FMIA at 21 U.S.C Chapter 12, and the PPIA at 21 U.S.C. Chapter 
10. The 2008 amendments also require that the State personnel 
designated to provide inspection services under the program undergo ``* 
* * all necessary training and certification to assist * * * in the 
administration and enforcement of this chapter, including the rules and 
regulations issued under this chapter'' (21 U.S.C. 472(a)(2) and 
683(a)(2)). The 2008 amendments allow a meat or poultry product 
inspected by designated State personnel to bear a Federal mark of 
inspection and be shipped in interstate commerce if the product ``* * * 
qualifies for the mark * * * under the requirements of this chapter'' 
(21 U.S.C. 472(b)(1)(A) and 683(b)(1)(A)).
    The Senate Conference Committee report on the bill that established 
the cooperative interstate shipment program provides that ``* * * 
establishments selected for the [cooperative interstate shipment] 
program * * * must fully follow [the FMIA or PPIA], its regulations, 
notices, directives and policies just as would be required of a Federal 
establishment'' (S. Rep. No. 220, 110th Cong., 1st Sess. (2007), pp. 
211-214). The report also provides that ``* * * [t]he inspection 
personnel of the State that will inspect the selected establishment 
must have undergone all the necessary training to carry out the 
requirement of [the Acts], [their] regulations, notices directives and 
policies, just as required of a Federal inspector.''
    Thus, both the statute and the Committee report make clear that 
Congress intended for the cooperative interstate shipment program to 
operate under standards that are ``the same as'' those imposed under 
the Federal inspection program.
    FSIS agrees with the comments that stated that the 2008 Farm Bill 
did not amend the provisions in the FMIA and PPIA that provide for 
cooperative State MPI programs that are ``at least equal'' to the 
Federal program. However, FSIS disagrees that this means that State 
programs that are ``at least equal to'' the Federal program are in 
compliance with all requirements of the Acts for purposes of the 
cooperative interstate shipment program. Under the FMIA and PPIA, 
establishments operating under an ``at least equal to'' State MPI 
program are permitted to produce meat or poultry products solely for 
distribution within the State where the establishment is located (21 
U.S.C. 454(a)(1) and 661(a)(1)). Thus, State programs that are ``at 
least equal to'' the Federal program are in compliance with the Acts 
only if the establishments operating under these programs prepare and 
ship products solely for use within the State where they are located.
    Comment: One comment asked whether the proposed rule requires that 
a State's entire MPI program must be ``identical to'' the Federal 
program for the State to qualify for the cooperative interstate 
shipment program.
    Response: No, a State's entire MPI program does not need to be 
identical to the Federal program for the State to qualify for the 
cooperative interstate shipment program. To qualify for the program, a 
State must demonstrate that the inspection services that it will 
provide to selected establishments in the State will be ``the same as'' 
those provided under the Federal inspection program. States that 
participate in the cooperative interstate shipment program may continue 
to operate an ``at least equal to'' State MPI program for 
establishments that produce meat and poultry pr