Notice2021-15291
Response to the Office of Inspector General's Recommendations on the Rulemaking Process for the Proposed Rule Modernization of Swine Slaughter Inspection
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Published
July 19, 2021
Issuing agencies
Agriculture DepartmentFood Safety and Inspection Service
Abstract
The Food Safety and Inspection Service (FSIS) is responding to two recommendations from the USDA Office of Inspector General (OIG) regarding the Agency's rulemaking process for the proposed rule entitled Modernization of Swine Slaughter Inspection, that included the proposal to establish the New Swine Slaughter Inspection System (NSIS).
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<title>Federal Register, Volume 86 Issue 135 (Monday, July 19, 2021)</title>
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[Federal Register Volume 86, Number 135 (Monday, July 19, 2021)]
[Notices]
[Pages 37994-37995]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15291]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
[Docket No. FSIS-2020-0023]
Response to the Office of Inspector General's Recommendations on
the Rulemaking Process for the Proposed Rule Modernization of Swine
Slaughter Inspection
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is responding to
two recommendations from the USDA Office of Inspector General (OIG)
regarding the Agency's rulemaking process for the proposed rule
entitled Modernization of Swine Slaughter Inspection, that included the
proposal to establish the New Swine Slaughter Inspection System (NSIS).
FOR FURTHER INFORMATION CONTACT: Rachel Edelstein, Assistant
Administrator, Office of Policy and Program Development, telephone:
(202) 205-0495.
SUPPLEMENTARY INFORMATION:
Background
FSIS is providing information to further address two
recommendations from the recent USDA OIG Final Inspection Report, FSIS
Rulemaking Process for the Proposed Rule: Modernization of Swine
Slaughter Inspection (Inspection Report 24801-0001-41, June 23,
2020),\1\ both concerning the presentation of data in a preliminary
worker safety analysis that FSIS conducted when developing the proposed
rule.\2\ FSIS already responded to the two recommendations and the
responses were printed in the OIG report (available at <a href="https://www.usda.gov/sites/default/files/audit-reports/24801-0001-41.pdf">https://www.usda.gov/sites/default/files/audit-reports/24801-0001-41.pdf</a>). OIG
did not fully accept the FSIS responses, however, and requested further
clarification about the data in a public document.
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\1\ <a href="https://www.usda.gov/oig/audit-reports/fsis-rulemaking-process-proposed-rule-modernization-swine-slaughter-inspection">https://www.usda.gov/oig/audit-reports/fsis-rulemaking-process-proposed-rule-modernization-swine-slaughter-inspection</a>.
\2\ On March 31, 2021, the U.S. District Court for the District
of Minnesota vacated a portion of the NSIS final rule. The Court
found that FSIS violated the Administrative Procedure Act because it
asked for comments on the impact of line speed increases on worker
safety in the proposed rule but did not consider these comments in
the final rule. The Court vacated the final rule only insofar as it
eliminated the maximum line speed cap for NSIS establishments. The
other provisions of the final rule were not affected by the Court's
decision.
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In its final report, OIG recommended (Recommendation #2) that FSIS
communicate to the public the correct scope of data used in the FSIS
preliminary worker safety analysis. Specifically, OIG found a
typographical error in the sentence in the proposed rule that states,
``FSIS compared in-establishment injury rates between HACCP-Based
Inspection Models Project (HIMP) establishments and traditional
establishments from 2002 to 2010'' (83 FR 4796). OIG pointed out in its
report that for the preliminary worker safety analysis, FSIS also
examined CY 2011 results for 5 of 24 traditional establishments, which
were outside of its stated scope of CYs 2002 to 2010.
FSIS has acknowledged the typographical error in discussions with
OIG and noted that it did not affect the conclusions of the analysis or
have any bearing on its ability to be understood. Regardless of what
time span is used, from 2002 to 2010 or from 2002 to 2011, both show
that HIMP \3\ establishments had lower mean injury rates than non-HIMP
establishments. In addition, this OIG recommendation was addressed in
the publication of the final rule to modernize swine inspection (84 FR
52300), where FSIS included a link (84 FR 52305) to its Electronic
Freedom of Information Act Reading Room, which contains documents that
show FSIS' full analysis of worker injury data.
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\3\ The HACCP-Based Inspection Models Project, or HIMP, was a
pilot program for modernized poultry and swine inspection, data from
which informed the New Poultry Inspection System and NSIS
rulemakings.
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OIG also recommended (Recommendation #3) that FSIS communicate to
the public two limitations of the Occupational Safety and Health
Administration (OSHA) data used for FSIS' analysis. While the Agency
used the best publicly available data and requested from the public
additional data resources on injuries in swine establishments, OIG
contended that these two limitations should have been discussed in the
proposed or final rules. Specifically, OIG stated that (1) the OSHA
data the agency used in its analysis of the 29 establishments did not
include injury and illness rates for all establishments for each of the
10 years, and (2) the OSHA data used did not differentiate whether
injuries/illnesses occurred on the swine slaughter line or elsewhere
within the establishment.
FSIS is publishing OIG's two observations about the data used in
the preliminary worker safety analysis in response to OIG's
recommendation to communicate these observations to the public.
Importantly, FSIS did not develop the preliminary worker safety
[[Page 37995]]
analysis as a basis for the NSIS rulemaking, to draw conclusions on
worker safety in HIMP or non-HIMP establishments, or to determine
whether there is an associated impact on food safety. Had FSIS
developed the analysis for any of these reasons, it would have more
thoroughly addressed data limitations and uncertainty, as recommended
by OIG.
Instead, FSIS published the preliminary worker safety analysis
solely to solicit comments for use by OSHA and the National Institute
for Occupational Safety and Health (NIOSH) in examining worker safety
in swine slaughter establishments. OSHA and NIOSH are the Federal
agencies with jurisdiction over meat and poultry establishment worker
safety. Notably, FSIS stated this immediately following the discussion
of the preliminary analysis in the preamble to the proposed rule (83 FR
4796):
FSIS is requesting comments on the effects of faster line speeds
on worker safety. Specifically, FSIS is requesting comments on
whether line speeds for the NSIS should be set at the current
regulatory limit of 1,106 hph or some other number. The Agency is
also interested in comments on the availability of records or
studies that contain data that OSHA or the National Institute for
Occupational Safety and Health (NIOSH) may be able to use in
analyzing the effects of increased line speed on the safety and
health of employees throughout the establishment, including effects
prior to and following the evisceration line.
USDA Non-Discrimination Statement
In accordance with Federal civil rights law and U.S. Department of
Agriculture (USDA) civil rights regulations and policies, the USDA, its
Agencies, offices, and employees, and institutions participating in or
administering USDA programs are prohibited from discriminating based on
race, color, national origin, religion, sex, gender identity (including
gender expression), sexual orientation, disability, age, marital
status, family/parental status, income derived from a public assistance
program, political beliefs, or reprisal or retaliation for prior civil
rights activity, in any program or activity conducted or funded by USDA
(not all bases apply to all programs). Remedies and complaint filing
deadlines vary by program or incident.
Persons with disabilities who require alternative means of
communication for program information (e.g., Braille, large print,
audiotape, American Sign Language, etc.) should contact the responsible
Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or
contact USDA through the Federal Relay Service at (800) 877-8339.
Additionally, program information may be made available in languages
other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at <a href="https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint">https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint</a> and
at any USDA office or write a letter addressed to USDA and provide in
the letter all of the information requested in the form. To request a
copy of the complaint form, call (866) 632-9992. Submit your completed
form or letter to USDA by: (1) Mail: U.S. Department of Agriculture,
Office of the Assistant Secretary for Civil Rights, 1400 Independence
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3)
email: <a href="/cdn-cgi/l/email-protection#4030322f2732212d6e292e34212b2500353324216e272f36"><span class="__cf_email__" data-cfemail="6010120f0712010d4e090e14010b0520151304014e070f16">[email protected]</span></a>.
USDA is an equal opportunity provider, employer, and lender.
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, FSIS will announce this Federal
Register publication online through the FSIS web page located at:
<a href="https://www.fsis.usda.gov/federal-register">https://www.fsis.usda.gov/federal-register</a>.
FSIS also will announce and provide a link to it through the FSIS
Constituent Update, which is used to provide information regarding FSIS
policies, procedures, regulations, Federal Register notices, FSIS
public meetings, and other types of information that could affect or
would be of interest to our constituents and stakeholders. The
Constituent Update is available on the FSIS web page. Through the web
page, FSIS is able to provide information to a much broader, more
diverse audience. In addition, FSIS offers an email subscription
service which provides automatic and customized access to selected food
safety news and information. This service is available at <a href="https://www.fsis.usda.gov/subscribe">https://www.fsis.usda.gov/subscribe</a>. Options range from recalls to export
information, regulations, directives, and notices. Customers can add or
delete subscriptions themselves and have the option to password protect
their accounts.
Done at Washington, DC.
Paul Kiecker,
Administrator.
[FR Doc. 2021-15291 Filed 7-16-21; 8:45 am]
BILLING CODE 3410-DM-P
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