2021-03609. Internet Access at Official Establishments and Plants

AGENCY:

Food Safety and Inspection Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

The Food Safety and Inspection Service (FSIS) is proposing to amend its regulations to require official meat and poultry establishments and egg products plants and businesses receiving voluntary inspection services from FSIS that have an internet connection to provide FSIS access to it for the purposes of conducting and recording inspection verification activities. FSIS views internet service as a necessary utility, like lighting, heating, and laundry services, that should be provided by establishments as a regulatory condition of receiving inspection. Under this proposal, FSIS would not require establishments without internet access to purchase it or to upgrade the internet services they have, if inadequate for FSIS use.

DATES:

Submit comments on or before May 3, 2021.

ADDRESSES:

FSIS invites interested persons to submit comments on the proposed rule. Comments may be submitted by one of the following methods:

• Federal eRulemaking Portal: This website provides the ability to type short comments directly into the comment field on this web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.
• Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 1400 Independence Avenue SW, Mailstop 3758, Washington, DC 20250-3700.
• Hand- or courier-delivered submittals: Deliver to 1400 Independence Avenue SW, Jamie L. Whitten Building, Room 350-E, Washington, DC 20250-3700.

Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2020-0019. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

Docket: For access to background documents or comments received, call [phone] to schedule a time to visit the FSIS Docket Room at 1400 Independence Avenue SW, Washington, DC 20250-3700.

FOR FURTHER INFORMATION CONTACT:

Rachel Edelstein, Assistant Administrator, Office of Policy and Program Development; Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

FSIS has been delegated the authority to exercise the functions of the Secretary (7 CFR 2.18, 2.53) as specified in the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601, et seq.), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451, et seq.) and the Egg Products Inspection Act (EPIA) (21 U.S.C. 1031, et seq.). These statutes mandate that FSIS protect the public by verifying that meat, poultry, and egg products are safe, wholesome, unadulterated, and properly labeled and packaged. In addition to mandatory inspection, the Agricultural Marketing Act (AMA), 7 U.S.C. 1622, 1624, provides for inspection services to accommodate business needs, such as obtaining certifications necessary to meet requirements of importing countries or the inspection of nonamenable products (voluntary reimbursable services). This includes the voluntary service activities related to export certification (9 CFR part 350), voluntary inspection of exotic animals (e.g., antelope, bison) (9 CFR part 352), voluntary inspection of rabbits (9 CFR part 354), voluntary poultry inspection (9 CFR part 362), and the voluntary inspection of egg products (9 CFR part 592).

FSIS inspection program personnel (IPP) need to have efficient internet access to receive their scheduled inspection tasks and to record the results of the inspection tasks in the FSIS Public Health Information System (PHIS). PHIS is a web-based software application that integrates and streamlines all scheduling, assigning, tracking, and documentation for mission required FSIS food safety functions such as import management, export management, domestic production inspections, and risk analysis. FSIS employees, representatives of countries with whom the United States maintains an import and export relationship, and meat, poultry, and egg products establishments, which are subject to inspection, may all use PHIS. PHIS replaced several legacy client-server applications, multiple automated paper, and email-based processes.

For example, PHIS:

• Contains the establishment profile data for both official and non-official establishments that is used not only by IPP to perform their verification activities but also by other FSIS program areas to schedule laboratory sampling, inform policy decisions, and allocate resources.
• Contains slaughter totals and animal disposition information for amenable and exotic species, as entered by IPP. This data is used by FSIS and other USDA agencies (e.g., the Animal and Plant Health Inspection Service) to inform policy decisions, track emerging disease trends, and allocate resources.
• Contains inspection results and provides IPP the ability to issue non-compliance records to address regulatory violations at official and non-official establishments.
• Allows IPP to request sampling supplies and receive laboratory sample results.
• Provides for IPP review and approval of electronic import applications in the PHIS import management component, as well as electronic export applications for shipments destined to countries included in the PHIS export component.

The regulations at 9 CFR 307.1, 381.36(a), and 533.3 require official meat, poultry, and Siluriformes fish establishments to provide FSIS IPP with office space, including necessary furnishings, light, heat, and janitor services, rent free, for their exclusive use for official purposes. These regulations state that, at the discretion of the Administrator, small establishments requiring less than one full-time inspector need not furnish such facilities. The regulations at 590.136(a) similarly state that egg products plants will furnish office space, including furnishings, light, heat, and janitor service, without cost, for the use of IPP for official purposes. These regulations also provide that, at the discretion of the Administrator, small plants requiring the services of less than one full-time inspector need not furnish such accommodations.

The United States bears the cost of providing mandatory inspection services to official establishments (21 U.S.C. 468, 695, 1053(a)), while establishments and other facilities receiving voluntary inspection services must pay for such services. FSIS regulations governing the voluntary inspection of rabbits and egg products (e.g., inspection of the processing in official plants of products containing eggs, sampling of products and quantity and condition inspection of products) require that facilities purchasing such inspection services provide office space and utilities for use by IPP. Specifically, the regulations at 9 CFR 354.221(g) require facilities receiving voluntary rabbit inspection to provide IPP with office space, including, but not limited to, light, heat, and janitor services, without cost to the Agency. And, the regulations at 9 CFR 592.95(b)require facilities receiving voluntary inspection of egg products to provide IPP with acceptable furnished office space and equipment, including, but not limited to, a desk, lockers, or cabinets.

Establishments and other facilities that purchase other types of voluntary services under 9 CFR 350.7(a), 352.5(a), 362.5(a), including identification services, certification services, and voluntary inspection services may be charged to cover the cost of “other expenses” incurred by the Agency in connection with the furnishing of inspection. FSIS considers internet access to be an expense necessary for the provision of these voluntary inspection services.

As such, because internet access is a utility or expense necessary for the provision of both mandatory and voluntary inspection services, FSIS is proposing to require that establishments receiving mandatory inspection or purchasing voluntary inspection services provide internet access to IPP, as a condition of receiving inspection, provided the establishment already has internet service adequate for FSIS needs. Again, FSIS would not require establishments or facilities without internet access to purchase it or to upgrade the internet services they have, if inadequate for FSIS use.

Proposed Rule

FSIS is proposing to amend sections 9 CFR 307.1, 350.7(d), 352.5(d), 354.221(g), 362.5(d), 381.36(a), 533.3, 590.136(a), and 592.95(b) to require official meat, poultry, Siluriformes fish establishments and egg products plants, as well as facilities receiving voluntary services, including identification services, export certification, and voluntary exotic animal and poultry inspection, that have internet services, to provide FSIS IPP with internet access for the purposes of conducting and recording inspection verification activities. Consistent with the regulations providing that small establishments requiring less than one full-time inspector need not furnish FSIS with office space, lighting, heat, janitor services, and lockers, under this proposal, FSIS would not require establishments or facilities without internet access to purchase it or to upgrade the internet services they have, if inadequate for FSIS use.

In addition, FSIS is proposing to update 9 CFR 307.1 and 381.36(a) to change the title of the FSIS approving officials to Frontline Supervisors because FSIS no longer uses the title Circuit Supervisors. FSIS also proposes to change the use of the word “shall” to “must” in 9 CFR 307.1 and 381.36(a).

Executive Orders 12866 and 13563, 12988, and the Regulatory Flexibility Act

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866.

If this rule is finalized, FSIS does not expect any additional industry or Agency costs, because FSIS would not require establishments without internet access to purchase the services or to upgrade services that are not adequate for FSIS's use. FSIS would have cost savings by reducing the costs of providing internet access to FSIS IPP at establishments.

Expected Benefits of the Proposed Rule

Internet connectivity benefits establishments and FSIS by facilitating FSIS verification activities. Internet access lets FSIS IPP more efficiently transmit or receive critical information (e.g., receiving information on test results, submitting data on establishment operations, updating establishment profile information, and facilitating global trade).

FSIS would benefit through reduced payments for internet connection. FSIS spends on average $6.6 million ^[1] annually providing IPP with various forms of internet connection, such as direct or wireless local area network (LAN), and wireless solutions at approximately 1,500 establishments as well as additional mobile wireless solutions for IPP on patrol assignments. Of the approximate 6,500 active establishments, FSIS estimates that approximately 6,000 to 6,300 establishments have email addresses,^[2] which we assume means that these establishments have internet connection. The Agency is seeking comment on the level of internet connectivity at establishments that currently maintain internet services. If the Agency is able to use internet provided by these establishments, it would result in an upper bound savings of $6.6 million annualized at the 7 percent discount rate over ten years.

Expected Costs of the Proposed Rule

FSIS expects any cost associated with this proposed rule to be de minimis. Since most establishments have email addresses, FSIS expects most establishments to have internet connectivity adequate for FSIS needs. Such establishments would likely be able to provide internet service to FSIS without a significant burden or additional costs to do so. FSIS requests comments on the number and types of establishments or facilities receiving mandatory or purchasing voluntary inspection services that do not purchase internet services at all, do not purchase internet services adequate for FSIS needs, or could not provide IPP access to internet services without accruing significant costs, as well as any cost estimates for providing IPP with access to the establishment's existing internet services.

Regulatory Flexibility Act Assessment

The FSIS Administrator has made a preliminary determination that this proposed rule, if finalized, would not have a significant economic impact on a substantial number of small entities in the United States, as defined by the Regulatory Flexibility Act (5 U.S.C. 601), because any costs associated with the rule would be de minimis. FSIS would only require small businesses to provide internet access to FSIS IPP if the business has internet service and it's adequate for FSIS's use by IPP.

Executive Order 12988, Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

Paperwork Reduction Act

There are no new paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Environmental Impact

Each USDA agency is required to comply with 7 CFR part 1b of the Departmental regulations, which supplements the National Environmental Policy Act regulations published by the Council on Environmental Quality. Under these regulations, actions of certain USDA agencies and agency units are categorically excluded from the preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) unless the agency head determines that a particular action may have a significant environmental effect (7 CFR 1b.4(a)). FSIS is among the agencies categorically excluded from the preparation of an EA or EIS (7 CFR 1b.4(b)(6)).

FSIS has determined that this proposed rule would not create any extraordinary circumstances that would result in this normally excluded action having a significant effect on the human environment. Therefore, this action is appropriately subject to the categorical exclusion for FSIS programs and activities under 7 CFR 1b.4.

E-Government Act

FSIS and the U.S. Department of Agriculture (USDA) are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq.) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

Congressional Review Act

Pursuant to the Congressional Review Act at 5 U.S.C. 801 et seq., the Office of Information and Regulatory Affairs has determined that this proposed rule is not a “major rule,” as defined by 5 U.S.C. 804(2).

Additional Public Notification

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: http://www.fsis.usda.gov/​federal-register.

FSIS also will make copies of this 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 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: http://www.fsis.usda.gov/​subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.

USDA Non-Discrimination Statement

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

How To File a Complaint of Discrimination

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/​sites/​default/​files/​docs/​2012/​Complain_​combined_​6_​8_​12.pdf,, or write a letter signed by you or your authorized representative.

Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.

Fax: [phone].

Email: [e-mail].

Persons with disabilities who require alternative means for communication (braille, large print, audiotape, etc.), should contact USDA's TARGET Center at [phone] (voice and TDD).

List of Subjects

9 CFR Part 307

• Government employees
• Meat inspection

9 CFR Part 350

• Meat inspection
• Reporting and recordkeeping requirements

9 CFR Part 352

• Food labeling
• Meat inspection
• Reporting and recordkeeping requirements

9 CFR Part 354

• Administrative practice and procedure
• Animal diseases
• Food labeling
• Meat inspection
• Rabbits and rabbit products
• Reporting and recordkeeping requirements
• Signs and symbols

9 CFR Part 362

• Meat inspection
• Poultry and poultry products
• Reporting and recordkeeping requirements

9 CFR Part 381

• Administrative practice and procedure
• Animal diseases
• Crime
• Exports
• Food grades and standards
• Food labeling
• Food packaging
• Government employees
• Grant programs—agriculture
• Imports
• Intergovernmental relations
• Laboratories
• Meat inspection
• Nutrition
• Polychlorinated biphenyls (PCB's)
• Poultry and poultry products
• Reporting and recordkeeping requirements
• Seizures and forfeitures
• Signs and symbols
• Technical assistance
• Transportation

9 CFR Part 533

• Fish
• Food grades and standards
• Government employees
• Public health
• Seafood

9 CFR Part 590

• Eggs and egg products
• Exports
• Food grades and standards
• Food labeling
• Imports
• Reporting and recordkeeping requirements

9 CFR Part 592

• Eggs and egg products
• Exports
• Food grades and standards
• Food labeling
• Imports
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, FSIS is proposing to amend 9 CFR Chapter III as follows:

PART 307—FACILITIES FOR INSPECTION

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.

2. Revise § 307.1 to read as follows:

§ 307.1

Facilities for Program employees.

Office space, including necessary furnishings, light, internet access, heat, and janitor service, must be provided by official establishments, rent free, for the exclusive use for official purposes of the inspector and other Program employees assigned thereto. The space set aside for this purpose must meet with approval of the Frontline Supervisors and must be conveniently located, properly ventilated and provided with lockers suitable for the protection and storage of Program supplies and with facilities suitable for Program employees to change clothing if such clothes changing facilities are deemed necessary by FSIS. At the discretion of the Administrator, small plants requiring the services of less than one full-time inspector need not furnish facilities as prescribed in this section, where adequate facilities exist in a nearby convenient location. Laundry service for inspectors' outer work clothing must be provided by each establishment. Establishments that lack internet services are not required to purchase internet services for use by FSIS and establishments with internet services inadequate for use by FSIS are not required to upgrade such services.

PART 350—SPECIAL SERVICES RELATING TO MEAT AND OTHER PRODUCTS

3. The authority citation for part 350 continues to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.55.

4. In § 350.7, revise the section heading and add paragraph (h) to read as follows:

§ 350.7

Fees, charges, and Internet access.

* * * * *

(h) Internet access must be provided by the applicant for service, rent free, for the exclusive use for official purposes of the inspector and other Program employees assigned thereto. Applicants that lack internet services are not required to purchase internet services for use by FSIS and applicants with internet services inadequate for use by FSIS are not required to upgrade such services.

PART 352—EXOTIC ANIMALS AND HORSES; VOLUNTARY INSPECTION

5. The authority citation for part 352 continues to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17(g) and (i), 2.55.

6. In § 352.5, revise the section heading and add paragraph (f) to read as follows:

§ 352.5

Fees, charges and Internet access.

* * * * *

(f) Internet access must be provided by the applicant for service, rent free, for the exclusive use for official purposes of the inspector and other Program employees assigned thereto. Applicants that lack internet services are not required to purchase internet services for use by FSIS and applicants with internet services inadequate for use by FSIS are not required to upgrade such services.

PART 354—VOLUNTARY INSPECTION OF RABBITS AND EDIBLE PRODUCTS THEREOF

7. The authority citation for part 354 continues to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17(g) and (i), 2.55.

8. Revise § 354.221(g) to read as follows:

§ 354.221

Rooms and compartments.

* * * * *

(g) Inspector's office. Furnished office space, including, but not being limited to, light, heat, internet access, and janitor service shall be provided rent free in the official plant for the exclusive use for official purposes of the inspector and the Administration. The room or rooms set apart for this purpose must meet with the approval of the Frontline Supervisor and be conveniently located, properly ventilated, and provided with lockers or cabinets suitable for the protection and storage of supplies and with facilities suitable for inspectors to change clothing. Facilities that lack internet services are not required to purchase internet services for use by FSIS, and facilities with internet services inadequate for use by FSIS are not required to upgrade such services.

PART 362—VOLUNTARY POULTRY INSPECTION REGULATIONS

9. The authority citation for part 362 continues to read as follows:

Authority: 7 U.S.C. 1622; 7 CFR 2.18(g) and (i), 2.53.

10. In § 362.5, revise the section heading and add paragraph (h) to read as follows:

§ 362.5

Fees, charges, and Internet access.

* * * * *

(h) Internet access must be provided by the applicant for service, rent free, for the exclusive use for official purposes of the inspector and other Program employees assigned thereto. Applicants that lack internet services are not required to purchase internet services for use by FSIS and applicants with internet services inadequate for use by FSIS are not required to upgrade such services.

PART 381—POULTRY PRODUCTS INSPECTION REGULATIONS

11. The authority citation for part 381 continues to read as follows:

Authority: 7 U.S.C. 1633, 1901-1906; 21 U.S.C. 451-472; 7 CFR 2.18, 2.53.

12. Revise § 381.36(a) to read as follows:

§ 381.36

Facilities required.

(a) Inspector's Office. Office space, including, but not being limited to furnishings, light, internet access, heat, and janitor service, must be provided rent free in the official establishment, for the use of Government personnel for official purposes. The room or space set apart for this purpose must meet the approval of Frontline Supervisors and be conveniently located, properly ventilated, and provided with lockers or file cabinets suitable for the protection and storage of supplies and with facilities suitable for inspectors to change clothing. At the discretion of the Administrator, small plants requiring the services of less than one full-time inspector need not furnish facilities as prescribed in this section, where adequate facilities exist in a nearby convenient location. Each official establishment must provide commercial laundry service for inspectors' outer work clothing, or disposable outer work garments designed for one-time use, or uniform rental service garments which are laundered by the rental service. Establishments that lack internet services are not required to purchase internet services for use by FSIS and establishments with internet services inadequate for use by FSIS are not required to upgrade such services.

* * * * *

PART 533—SEPARATION OF ESTABLISHMENT; FACILITIES FOR INSPECTION; FACILITIES FOR PROGRAM EMPLOYEES; OTHER REQUIRED FACILITIES

13. The authority citation for part 533 continues to read as follows:

Authority: 21 U.S.C. 601-602, 606-622, 624-695; 7 CFR 2.7, 2.18, 2.53.

14. Revise § 533.3 to read as follows:

§ 533.3

Facilities for Program employees.

Office space, including necessary furnishings, light, internet access, heat, and janitor service, must be provided by official establishments, rent free, for the exclusive use for official purposes of the inspector and other Program employees assigned thereto. The space set aside for this purpose shall meet with approval of the District Manager or the frontline supervisor and must be conveniently located, properly ventilated, and provided with lockers suitable for the protection and storage of Program supplies and with facilities suitable for Program employees to change clothing if such facilities are deemed necessary by the frontline supervisor. At the discretion of the Administrator, small establishments requiring the services of less than one full-time inspector need not furnish facilities for Program employees as prescribed in this section, where adequate facilities exist in a nearby convenient location. Laundry service for inspectors' outer work clothing must be provided by each establishment. Establishments that lack internet services are not required to purchase internet services for use by FSIS and establishments with internet services inadequate for use by FSIS are not required to upgrade such services.

PART 590—INSPECTION OF EGGS AND EGG PRODUCTS (EGG PRODUCTS INSPECTION ACT)

15. The authority citation for part 590 continues to read as follows:

Authority: 21 U.S.C. 1031-1056; 7 CFR 2.18, 2.53.

16. Revise § 590.136(a) to read as follows:

§ 590.136

Accommodations and equipment to be furnished by facilities for use of inspection program personnel in performing service.

(a) Inspection program personnel office. Office space, including, but not limited to, furnishings, light, heat, internet access, and janitor service, will be provided without cost in the official plant for the use of inspection program personnel for official purposes. The room or space set apart for this purpose must meet the approval of the Food Safety and Inspection Service and be conveniently located, properly ventilated, and provided with lockers or file cabinets suitable for the protection and storage of supplies and with accommodations suitable for inspection program personnel to change clothing. At the discretion of the Administrator, small official plants requiring the services of less than one full-time inspector need not furnish accommodations for inspection program personnel as prescribed in this section where adequate accommodations exist in a nearby convenient location. Plants that lack internet services are not required to purchase internet services for use by FSIS, and plants with internet services inadequate for use by FSIS are not required to upgrade such services.

* * * * *

PART 592—VOLUNTARY INSPECTION OF EGG PRODUCTS

17. The authority citation for part 592 continues to read as follows:

Authority: 7 U.S.C. 1621-1627.

18. Revise § 592.95(b) to read as follows:

§ 592.95

Facilities and equipment to be furnished for use of inspection program personnel in performing service.

* * * * *

(b) Acceptable furnished office space and equipment, including but not being limited to, internet access, a desk, lockers or cabinets (equipped with a satisfactory locking device) suitable for the protection and storage of supplies, and with facilities for inspection program personnel to change clothing. Facilities that lack internet services are not required to purchase internet services for use by FSIS, and facilities with internet services inadequate for use by FSIS are not required to upgrade such services.

Done at Washington, DC.

Theresa Nintemann,

Acting Administrator.

Footnotes

1.  This is the average cost calculated using the FSIS Office of Chief Information Officer estimates of annual expenditures on internet services: $6,272,000 in 2017, $6,755,000 in 2018, and $6,755,000 in 2019.

2.  The count of establishments, rounded to the nearest hundred, with email addresses was compiled from the Office of Public Affairs and Consumer Education on 5/15/2020. The count of active establishments includes approximately 1,100 eligible importer/exporter establishments and approximately 2,000 establishments that have voluntary inspection eligibility. Data was downloaded from the FSIS Public Health Information System on 8/14/2020.