Changes to the Schedule of Operations Regulations, 33974-33980 [2011-14442]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food Safety and Inspection Service

[Federal Register Volume 76, Number 112 (Friday, June 10, 2011)]
[Rules and Regulations]
[Pages 33974-33980]
From the Federal Register Online via the Government Printing 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.
---------------------------------------------------------------------------

    \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. https://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.
---------------------------------------------------------------------------

    \5\ Livestock, Dairy, & Poultry Outlook/LDP-M-188/February 24, 
2010; Economic Research Service, USDA. The Web-link to the report is 
https://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 https://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 https://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