[Federal Register: August 18, 2004 (Volume 69, Number 159)]
[Proposed Rules]               
[Page 51194-51196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

Proposed Rules
                                                Federal Register

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.


[[Page 51194]]


Food Safety and Inspection Service

9 CFR Parts 327 and 381

[Docket No. 03-033P]
RIN 0583-AD08

Frequency of Foreign Inspection System Supervisory Visits to 
Certified Foreign Establishments

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Proposed rule.


SUMMARY: FSIS is proposing to amend its regulations to change the 
required frequency of foreign inspection system supervisory visits to 
certified foreign establishments so as to bring FSIS import 
requirements into agreement with its requirements for domestic 
establishments. FSIS is proposing to delete the current requirement 
that supervisory visits take place ``not less frequent[ly] than one 
such visit per month.'' In its place, FSIS is proposing to require 
foreign inspection systems to make ``periodic supervisory visits'' to 
certified establishments in order to ensure that such establishments 
continue to meet FSIS requirements for certification to export meat and 
poultry to the United States.

DATES: Comments must be received on or before October 18, 2004. FSIS 
invites interested persons to submit comments on this notice.

ADDRESSES: Comments may be submitted by any of the following methods:
     Mail, including floppy disks or CD-ROM's, and hand-or 
courier-delivered items: Send to Docket Clerk, U.S. Department of 
Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., 
Room 102 Cotton Annex, Washington, DC 20250.
    All submissions received must include the Agency name and docket 
number 03-033P.
    All comments submitted in response to this Proposal, as well as 
research and background information used by FSIS in developing this 
document, will be available for public inspection in the FSIS Docket 
Room at the address listed above between 8:30 a.m. and 4:30 p.m., 
Monday through Friday. The comments also will be posted on the Agency's 
web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fsis.usda.gov/OPPDE/rdad/FRDockets.htm.

International Equivalence Staff, FSIS Office of International Affairs; 
(202) 720-6400.

SUPPLEMENTARY INFORMATION: The Federal Meat Inspection Act (FMIA) and 
the Poultry Products Inspection Act (PPIA) place restrictions on 
imports into the United States that are designed to protect public 
health. Meat and poultry products can only be exported to the United 
States from countries with inspection systems that are equivalent to 
that of the United States, and only if the exported products are safe, 
otherwise unadulterated, and properly labeled. To ensure that these 
requirements are met, the Agency evaluates the inspection systems, 
laws, and regulations of foreign countries to verify that they are 
equivalent to those of the United States. FSIS conducts audits at least 
annually to ensure that foreign inspection systems continue to be 
equivalent. It also re-inspects products offered for import into the 
United States.
    Foreign countries found by FSIS to have equivalent inspection 
systems are eligible to export products to the United States. It is 
then the responsibility of the eligible country to certify 
establishments as meeting the requirements for exporting meat or 
poultry products to this country and to ensure that products from these 
establishments are safe, wholesome, and not misbranded.
    FSIS applies a number of measures in evaluating a foreign country's 
inspection system. Among these measures has been a very specific 
requirement that foreign inspection systems schedule supervisory visits 
to certified establishments ``not less frequent[ly] than one such visit 
per month.'' FSIS has noted that this requirement results in more 
frequent establishment visits than are required by the parallel 
component of the domestic inspection system.
    In the United States, FSIS conducts supervisory visits to USDA-
inspected establishments on a regular basis but there is no specific 
requirement that these visits be conducted monthly. These supervisory 
visits, termed In-Plant Performance System Reviews, are conducted at 
federally-inspected establishments as needed to assess the performance 
of inspection personnel. In-Plant Performance System Reviews help to 
verify that inspection personnel are performing their regulatory 
responsibilities in a manner consistent with the governing laws, 
regulations, and policies. These visits by FSIS supervisors are, 
however, only one component of inspection supervision. Supervisory 
contacts with inspection personnel assigned to establishments are also 
maintained by frequent, sometimes daily, telephone and e-mail 
communications, by meetings held to correlate inspection activities 
across an FSIS inspection region (known as a Circuit or District), and 
by management reports that summarize inspection activities in every 
federally-inspected establishment.
    Several countries that export meat or poultry to the United States 
have requested that FSIS permit them to schedule their supervisory 
visits in a manner similar to what is done in the United States. FSIS 
has not been able to grant these requests, even in circumstances where 
to do so would be reasonable and equitable, because the current 
regulatory requirements for foreign supervisory visits are written in a 
manner that gives the Agency no authority to grant exceptions.
    Changing the FSIS regulatory requirement for frequency of foreign 
supervisory visits will give eligible countries the flexibility to 
structure their own supervisory program as they deem necessary so as to 
ensure that establishments continue to meet the requirements for 
certification to export to the United States. With its routine annual 
audits, FSIS verifies that equivalent sanitary measures are maintained, 
and that the regulatory controls of a foreign inspection system are 
effective. If audit findings indicate that a foreign country's 
supervisory program is not providing adequate regulatory oversight of 
certified establishments so as to ensure compliance with U.S. import 
requirements, FSIS takes appropriate action, including preventing U.S. 
entry of products from any non-complying

[[Page 51195]]

establishment until inadequacies are resolved.
    Harmonizing FSIS import requirements with domestic practices would 
meet U.S. obligations as a signatory to the World Trade Organization 
(WTO) ``Agreement on the Application of Sanitary and Phytosanitary 
Measures''--commonly called the SPS Agreement. Article 2.3 of the SPS 
Agreement states that WTO ``Members shall ensure that their sanitary 
and phytosanitary measures do not arbitrarily or unjustifiably 
discriminate between Members where identical or similar conditions 
prevail, including between their own territory and that of other 
Members. Sanitary and phytosanitary measures shall not be applied in a 
manner which would constitute a disguised restriction on international 
trade.'' The effect of Article 2.3 is that FSIS, acting as a regulatory 
agency of the United States, may not impose import requirements on 
inspection systems or establishments in an exporting country that are 
more stringent than those applied domestically.
    Consequently, FSIS proposes to amend 9 CFR 327.2(a)(2)(iv)(A) and 9 
CFR 381.196(a)(2)(iv)(A) to provide that supervisory visits by a 
representative of the foreign inspection system are to occur at 
periodic intervals to ensure that establishments and products meet the 
requirements for certification to the United States on an ongoing 
basis. This change, if adopted, will make the Agency's requirements for 
foreign inspection programs as consistent as possible with the FSIS 
domestic inspection program. It will also provide foreign countries 
with flexibility in structuring their programs.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
It has been determined to be not significant for purposes of E.O. 12866 
and therefore has not been reviewed by the Office of Management and 
Budget (OMB).

Economic Impact Analysis

    This proposed rule is expected to have no economic impact.

Effect on Small Entities

    The Administrator, FSIS, has made an initial determination that 
this proposed 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).

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted:
    (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) Administrative proceedings will not be required before parties 
may file suit in court challenging this rule.

Paperwork Requirements

    No new paperwork requirements are associated with this proposed 

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, in an effort to ensure that the 
public and in particular minorities, women, and persons with 
disabilities, are aware of this proposed rule, FSIS will announce it 
online through the FSIS web page located at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fsis.usda.gov.

    The Regulations.gov website is the central online rulemaking portal 
of the United States Government. It is being offered as a public 
service to increase participation in the Federal Government's 
regulatory activities. FSIS participates in Regulations.gov and will 
accept comments on documents published on the site. The site allows 
visitors to search by keyword or Department or Agency for rulemakings 
that allow for public comment. Each entry provides a quick link to a 
comment form so that visitors can type in their comments and submit 
them to FSIS. The website is located at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

    FSIS also will 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, recalls, and other types of 
information that could affect or would be of interest to our 
constituents and stakeholders. The update is communicated via Listserv, 
a free e-mail subscription service consisting of industry, trade, and 
farm groups, consumer interest groups, allied health professionals, 
scientific professionals, and other individuals who have requested to 
be included. The update also is available on the FSIS web page. Through 
Listserv and the web page, FSIS is able to provide information to a 
much broader, more diverse audience.

List of Subjects

9 CFR Part 327

    Imported products.

9 CFR Part 381

    Imported poultry products, poultry inspection.

    For the reasons discussed in the preamble, FSIS is proposing to 
amend 9 CFR, parts 327 and 381, as follows:


    1. The authority for part 327 continues to read as follows:

    Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.

    2. Section 327.2(a)(2)(iv)(A) would be amended to read as follows:

Sec.  327.2  Eligibility of foreign countries for importation of 
products into the United States.

    (a) * * *
    (2) * * *
    (iv) * * *
    (A) Periodic supervisory visits by a representative of the foreign 
inspection system to each establishment certified in accordance with 
paragraph (a)(3) of this section to ensure that requirements referred 
to in paragraphs (a)(2)(ii)(A) through (H) of this section are being 
met: Provided, That such visits are not required with respect to any 
establishment during a period when the establishment is not operating 
or is not engaged in producing products for exportation to the United 
* * * * *


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

    Authority: 7 U.S.C. 138f, 450; 21 U.S.C. 451-470; 7 CFR 2.18, 

Subpart T--Imported Poultry Products

    4. Section 381.196(a)(2)(iv)(A) would be amended to read as 

Sec.  381.196  Eligibility of foreign countries for importation of 
products into the United States.

    (a) * * *
    (2) * * *
    (iv) * * *
    (A) Periodic supervisory visits by a representative of the foreign 
inspection system to each establishment certified in accordance with 
paragraph (a)(3) of this section to ensure that requirements referred 
to in paragraphs (a)(2)(ii)(A) through (H) of this section are being 
met: Provided, That such visits are not required with respect to any

[[Page 51196]]

establishment during a period when the establishment is not operating 
or is not engaged in producing products for exportation to the United 
* * * * *

    Done in Washington, DC, on August 12, 2004.
Barbara J. Masters,
Acting Administrator.
[FR Doc. 04-18889 Filed 8-17-04; 8:45 am]