[Federal Register: March 7, 2006 (Volume 71, Number 44)]
[Proposed Rules]               
[Page 11326-11328]
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 11326]]


Food Safety and Inspection Service

9 CFR Part 390

[Docket No. 04-006P]
[FDMS Docket Number FSIS-2005-0028]
RIN 0583-AD10

Availability of Lists of Retail Consignees During Meat or Poultry 
Product Recalls

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Proposed rule.


SUMMARY: The Food Safety and Inspection Service (FSIS) is proposing to 
amend the federal meat and poultry products inspection regulations to 
provide that the Agency will make available to the public lists of the 
retail consignees of meat and poultry products that have been 
voluntarily recalled by a federally inspected meat or poultry products 
establishment if product has been distributed to the retail level. FSIS 
is proposing to routinely post these retail consignee lists on its Web 
site as they are developed by the Agency during its recall verification 
    FSIS is proposing this action because it believes that the 
efficiency of recalls will be improved if there is more information 
available as to where products that have been recalled were sold. By 
providing consumers more information about the locations where recalled 
products have been sold, FSIS believes that consumers will be more 
likely to identify and return such products to those locations or to 
dispose of them. This action will apply only to meat and poultry 

DATES: Comments must be received on or before May 8, 2006. FSIS intends 
to hold a public meeting on this issue during the comment period.

ADDRESSES: FSIS invites interested persons to submit comments on this 
proposed rule. Comments may be submitted by any of the following 
     Federal eRulemaking Portal: This Web site provides the 
ability to type short comments directly into the comment field on this 
Web page or attach a file for lengthier comments. FSIS prefers to 
receive comments through the Federal eRulemaking Portal. Go to http://www.regulations.gov
 and, in the ``Search for Open Regulations'' box, 

select ``Food Safety and Inspection Service'' from the agency drop-down 
menu, and then click on ``Submit.'' In the Docket ID column, select 
FDMS Docket Number FSIS-2005-0028 to submit or view public comments and 
to view supporting and related materials available electronically. 
After the close of the comment period, the docket can be viewed using 
the ``Advanced Search'' function in Regulations.gov.
     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.
     Electronic mail: fsis.regulationscomments@fsis.usda.gov.
    All submissions received by mail and electronic mail must include 
the Agency name and docket number 04-006P. 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://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp

FOR FURTHER INFORMATION CONTACT: Lynn E. Dickey, Director, Regulations 
and Petitions Policy Staff, Office of Policy, Program, and Employee 
Development, Room 112, Cotton Annex, 300 12th Street, SW., Washington, 
DC 20250-3700; Telephone (202) 720-2709, Fax (202) 690-0486.

SUPPLEMENTARY INFORMATION: FSIS is responsible for ensuring that meat 
and poultry products are safe, wholesome, and accurately labeled. FSIS 
enforces the Federal Meat Inspection Act (FMIA) and the Poultry 
Products Inspection Act (PPIA). These two statutes require Federal 
inspection and provide for Federal regulation of meat and poultry 
products prepared for distribution in commerce for use as human food. 
When there is reason to believe that meat or poultry products in 
commerce are adulterated or misbranded, FSIS will request that the firm 
that introduced the products into commerce recall them. If the 
establishment does not agree to recall the products, FSIS has the 
authority to detain and seek seizure of the products.
    If the establishment does agree to recall the products, recall 
information is widely disseminated by FSIS. For every recall, except 
some Class III recalls, FSIS distributes a press release. FSIS send 
recall information to wire services and media services in the areas 
where the product was distributed. For recalls where no press release 
is issued, FSIS distributes a Recall Notification Report (RNR) and 
posts this on its Web site.
    Through press releases and RNRs, FSIS provides the public with 
information about meat and poultry recalls. This information includes: 
A description of the food being recalled, any identifying codes, the 
reason for the recall, the name of the producing establishment, the 
level of product distribution (e.g., wholesale; retail) to which the 
recall is to extend, the availability of product at the retail level, 
the recall classification, and the appropriate contact persons for FSIS 
and the recalling company. FSIS also lists those States to which 
recalled product was shipped if fewer than 13 States were involved in 
the recall. If the recall extends to more than 13 States, it is 
considered to be a nationwide recall. In addition, FSIS sends recall 
information to several media and constituent list-servers.
    During the recall process, if products are recalled to the retail 
level, FSIS requests that the firm conducting the recall provide FSIS 
with a list of the consignees to whom the recalled meat or poultry 
products were distributed. FSIS uses this information in verifying the 
recall to ensure that the consignees have been notified of the recall 
and are removing the products from the market and returning them to the 
recalling firm. FSIS also obtains lists from the consignees of all 
entities to which they distributed the product and contacts those 
entities to ensure that they were notified. The Agency then obtains 
those consignees' distribution lists and thereby traces the product 
forward to the retail level.

[[Page 11327]]

    FSIS has generally treated distribution lists obtained during 
recalls as confidential business information, exempt from release under 
the Freedom of Information Act (FOIA). In 2002, however, FSIS 
promulgated regulations defining the circumstances and criteria under 
which it would share product distribution information and customer 
lists with States and other Federal agencies (67 FR 20009, April 24, 
2002). FSIS will disclose this information to States and other Federal 
government agencies to enable them to verify the removal of the 
recalled products from commerce, provided that the State or Federal 
agency has given to FSIS: (1) A written statement establishing its 
authority to protect confidential distribution lists from public 
disclosure, and (2) a written commitment not to disclose any 
information provided to it by FSIS without the written permission of 
the submitter of the information or written confirmation by FSIS that 
the information no longer has confidential status (9 CFR 390.9). A 
disclosure of product distribution information or customer lists to 
States and other Federal agencies who have this authority and have made 
such a commitment is not a disclosure to the public and does not waive 
any FOIA exemption protection (9 CFR 390.9(c)).
    Consumer groups and some State officials have advocated the public 
release of information on where recalled meat and poultry products have 
been shipped or distributed. These State officials have requested that 
this information be provided to them without the limitations imposed by 
FSIS' regulations (9 CFR 390.9(a)(1)), believing that they would be 
better able to protect the public health. Similarly, some consumer 
groups have asserted that the public can use this information to 
identify more easily and effectively the product being recalled. These 
State officials and consumer groups believe that making the retail 
distribution information readily available will materially improve the 
effectiveness of recalls.
    While the current process is effective, FSIS believes that product 
identification can be improved. While FSIS includes in its press 
release the production code of the product recalled, and will in many 
cases post a picture of the recalled product's label, it is often the 
case that more product and often different product is returned than is 
actually recalled. Therefore, FSIS believes that this proposal, if 
adopted, would improve the efficiency of the recall process and address 
consumer groups and State officials' concerns.
    FSIS has concluded that it has authority to make available lists 
the Agency has compiled during recalls of the retail consignees of meat 
and poultry products that have been recalled, and that it would be 
appropriate to do so to enhance the efficiency of recalls.
    FSIS has concluded that making information identifying the retail 
consignees of recalled products available to the public will improve 
the efficiency of recalls by helping consumers to identify and focus on 
the products that are recalled. In addition, making this retail 
consignee information available will, we believe, help make clear that 
other, similar products are not being recalled, and that there is no 
reason to be concerned about such similar products. The Agency's 
experience with recalls over time has shown that in many recalls, much 
more product is returned than has actually been recalled. Often 
products are returned that were not produced by the recalling company 
or that were produced at different times or locations than the recalled 
    FSIS is proposing to make available to the public on its Web site 
the lists of the retail consignees of recalled meat or poultry products 
that the Agency compiles in connection with its recall verification 
activities. The retail consignee information will generally be lists 
compiled by FSIS, and not the customer lists of any specific company. 
The lists will contain only the names and locations of the identified 
retail consignees of the recalled meat and poultry products. These 
retail consignee lists will not include the names of intermediate 
distributors of such products. Examples of intermediate distributors 
include food service or institutional distributors. FSIS does not 
believe that making lists of intermediate distributors routinely and 
generally available during recalls is warranted. The information is of 
little value to consumers but is often of commercial value to the 
companies that rely on such intermediate distributors and firms to get 
their products to the retail level. Accordingly, the Agency will not 
make such information routinely available in connection with recalls. 
However, this information will continue to be made available to State 
agencies that have made a written commitment to FSIS in accordance with 
9 CFR 390.9.
    In proposing this action, FSIS is seeking the views of all 
interested parties, including establishments, on this proposal. It is 
also important to note that FSIS will hold a public meeting on this 
proposal. The date and location of the meeting will be announced in the 
Federal Register.

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This proposal: (1) Preempts all state and local 
laws and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Executive Order 12866

    This proposed rule was reviewed by the Office of Management and 
Budget under Executive Order 12866 and was determined to be 
    FSIS considered several options, including amending its regulations 
to include local health departments as entities that could receive 
recall distribution lists or making the lists available only in 
response to Freedom of Information requests and to State agencies with 
agreements under 9 CFR 390.9. FSIS, however, chose to propose that the 
Agency will make available to the public the names of retail consignees 
of the recalled products that the Agency has compiled as a result of 
its recall verification activities. This approach will alert individual 
consumers, State and local authorities, and other Federal agencies of 
the names of retail stores in which the recalled products may be found 
in as expeditious a manner as possible. It will also not involve the 
disclosure of confidential business information because the lists that 
FSIS will make public will generally be lists that the Agency has 
compiled, not the customer lists of any specific company, and only 
information regarding retail outlets will be made public.
    This action would not impose a monetary cost on establishments 
conducting a recall, and the information proposed to be released would 
not result in any competitive harm to the affected establishments. If 
consumers use such information and are better able to identify and 
return recalled meat and poultry products to the stores where they 
purchased them, the recall process will be more timely and effective. 
Although the benefits of the proposed action are not quantified, it is 
reasonable to conclude that they are equal to or exceed the costs of 
the rule, because costs are expected to be minimal.

Initial Regulatory Flexibility Analysis

    The Agency has concluded that the rule will not have a significant 
economic impact on a substantial

[[Page 11328]]

number of small entities. Consequently, an initial regulatory 
flexibility analysis is not required.

Government Paperwork Elimination Act (GPEA)

    FSIS is committed to achieving the goals of the GPEA, which 
requires that Government agencies, in general, provide the public with 
the option of submitting information or transacting business 
electronically to the maximum extent possible. Under this proposed 
rule, basic information provided to FSIS by official meat and poultry 
products establishments voluntarily recalling adulterated meat and 
poultry products may be submitted to the Agency electronically via e-
mail or facsimile. Allowing recalling establishments to do this would 
reduce data collection time, and information processing and handling by 
the establishments and FSIS.

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 
on-line through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp

    The Regulations.gov Web site 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 Web site is located at 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.
    In addition, FSIS offers an email subscription service which 
provides an automatic and customized notification when popular pages 
are updated, including Federal Register publications and related 
documents. This service is available at http://www.fsis.usda.gov/news_and_events/email_subscription/
 and allows FSIS customers to sign up 

for subscription options across eight categories. 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 account.

List of Subjects in 9 CFR Part 390

    Confidential business information, Freedom of information, 
Government employees.

    For the reasons discussed in the preamble, FSIS is proposing to 
amend 9 CFR Chapter III, Subchapter D, as follows:


    1. The authority citation for part 390 would be revised to read as 

    Authority: 5 U.S.C. 301, 552; 21 U.S.C. 451-471, 601-695; 7 CFR 
1.3, 2.7.

    2. A new Sec.  390.10 would added to read as follows:

Sec.  390.10  Availability of Lists of Retail Consignees during Meat or 
Poultry Product Recalls.

    (a) The Administrator of the Food Safety and Inspection Service 
(FSIS), or designee, will publicly disclose the lists of the retail 
consignees of recalled meat or poultry products that the Agency has 
compiled to verify the removal of recalled product. These lists will be 
available on the FSIS Web site.
    (b) The lists that will be disclosed will contain only the names of 
the identified retail consignees of recalled meat and poultry products 
and their locations.

    Done in Washington, DC, March 1, 2006.
Barbara J. Masters,
[FR Doc. 06-2125 Filed 3-6-06; 8:45 am]