[Federal Register: March 28, 2006 (Volume 71, Number 59)]
[Proposed Rules]
[Page 15340-15343]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr06-6]
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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.
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[[Page 15340]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 317, 381, and 442
[Docket No. 04-041P; FDMS Docket Number FSIS-2005-0032]
RIN 0583-AD17
Determining Net Weight Compliance for Meat and Poultry Products
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is proposing to
amend the Federal meat and poultry products inspection regulations in
order that they reference the revised version of the National Institute
of Standards and Technology (NIST) Handbook 133 that contains standards
for determining the reasonable variations allowed for the declared net
weight on labels of immediate containers of meat and poultry products;
the procedures to be used to determine the net weight and net weight
compliance of meat and poultry products; and related definitions. The
Agency also is proposing to consolidate the separate net weight
regulations for meat and poultry products in a new CFR part, applicable
to both meat and poultry products.
DATES: Submit comments by May 30, 2006.
ADDRESSES: FSIS invites interested persons to submit comments on this
proposed rule. Comments may be submitted by any of the following
methods:
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, then click on ``Submit.'' In the Docket ID column, select FDMS
Docket Number FSIS-2005-0032 to submit or view public comments and to
view supporting and related materials available electronically.
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 or electronic mail must include
the Agency name and docket number 04-041P. 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. Comments
will also 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: Robert C. Post, PhD, Director,
Labeling and Consumer Protection Staff, Office of Policy, Program, and
Employee Development, FSIS, by telephone at (202) 205-0279 or by fax at
(202) 205-3625.
SUPPLEMENTARY INFORMATION:
Background
FSIS administers the Federal Meat Inspection Act (FMIA) (21 U.S.C.
601-695), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451-
470), and the regulations that implement these Acts. The FMIA and the
PPIA require that packages of meat and poultry products bear an
accurate statement of the quantity of their contents in terms of
weight, measure, or numerical count (21 U.S.C. 601(n)(5) and
453(b)(5)). The FMIA and PPIA also provide the Secretary of Agriculture
with the authority to prescribe standards of fill of containers for
such articles (21 U.S.C. 607(c)(2), 457 (b)(2)) that are not
inconsistent with any such standards established under the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 301-392). In implementing
regulations, FSIS has elected to enforce these provisions of the Acts
through the adoption of the NIST standards established for determining
compliance with the net weight contents statement of packaged goods
that are enumerated in NIST Handbook 133. Consequently, FSIS has
incorporated, by reference, the appropriate NIST standards in the
Federal meat and poultry inspection regulations.
NIST was established by Congress in 1988 to assist industry in the
development of technology to improve product quality, to modernize
manufacturing processes, to ensure product reliability, and to
facilitate rapid commercialization of products based on new scientific
discoveries. NIST's basic functions include developing, maintaining,
and retaining custody of the national standards of measurement and
providing the means and methods for comparing standards used in
science, engineering, manufacturing, commerce, industry, and education
with the standards adopted or recognized by the Federal Government.
NIST Handbook 133 is a procedural guide for compliance testing of
net content statements on packaged goods. FSIS has elected to make
mandatory the NIST standards in Handbook 133 regarding the
determination of the reasonable variations allowed from the declared
net weight on labels of immediate containers of meat and poultry
products, the procedures to be used to determine net weight and net
weight compliance for meat and poultry products, and related
definitions. Consequently, FSIS currently incorporates, by reference,
the NIST standards from Handbook 133 in its meat and poultry inspection
regulations (9 CFR parts 317.18 through 317.22 and 381.121a through
381.121e respectively). In January 2002, NIST issued a revised Handbook
133. Therefore, it is necessary for FSIS to amend the meat and poultry
inspection regulations to incorporate by reference the revised NIST
Handbook 133 and the standards set forth in it regarding the
determination of the reasonable variations allowed, definitions, and
procedures used to determine net weight, and net weight compliance of
packaged goods. The standards in revised Handbook 133 that are being
proposed to be incorporated by
[[Page 15341]]
reference in FSIS' meat and poultry inspection regulations remain
substantively unchanged from those currently incorporated by reference
in FSIS' regulations.
FSIS is also proposing to consolidate the separate net weight
regulations for meat and poultry products in a new CFR part 442 that
will be applicable to both meat and poultry products. Therefore, FSIS
is proposing to move the provisions in Sec. Sec. 317.18 through 317.22
and the provisions in Sec. Sec. 381.121a through 381.121e to new part
442. Sections 317.20 and 381.121c incorporate NIST Handbook 44 by
reference. Therefore, FSIS is proposing to move the provisions that
incorporate NIST Handbook 44 by reference to new CFR part 442. FSIS is
proposing to incorporate the same version of Handbook 44 that is
currently incorporated by reference in the regulations:
``Specifications, Tolerances, and Other Technical Requirements for
Weighing and Measuring Devices,'' 1999 Edition, November 1988.
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) no retroactive proceedings will be required before
parties may file suit in court challenging this rule.
Executive Order 12866 and the Regulatory Flexibility Act
This proposed rule has been determined to be not significant and,
therefore, has not been reviewed by the Office of Management and Budget
(OMB).
There are no costs associated with this proposal. The intent of
this proposed rule is to amend the meat and poultry inspection
regulations to incorporate by reference the standards in revised
Handbook 133, which are not substantively changed from those in the
version of Handbook 133 that is currently reflected in FSIS' meat and
poultry inspection regulations regarding the procedures to be used to
determine the net weight of, and net weight compliance for, meat and
poultry products. In addition, FSIS is proposing to consolidate its
meat and poultry net weight regulations into a new part 442 which will
be applicable to both meat and poultry products.
FSIS has made an initial determination that this proposed rule
would not have a significant economic impact on a substantial number of
small entities, as defined by the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). The proposed rule reflects the recent changes in the NIST
Handbook 133 standards for determining net weight compliance for meat
and poultry products.
Paperwork Reduction Act
This proposed rule has been reviewed under the Paperwork Reduction
Act and imposes no new paperwork or record-keeping requirements. The
information collection was approved under OMB number 0583-0094. This
proposed rule contains no other paperwork requirements.
Government Paperwork Elimination Act (GPEA)
FSIS is committed to compliance with the GPEA, which requires
Government agencies, in general, to provide the public the option of
communicating electronically with the government to the maximum extent
possible. The Agency will ensure that all forms used by the
establishments are made available electronically.
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, 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 e-mail 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
9 CFR Part 317
Food labeling, Meat inspection.
9 CFR Part 381
Food labeling, Poultry and poultry products.
9 CFR Part 424
Food labeling, Incorporation by reference, Meat inspection, Poultry
and poultry products.
For the reasons discussed in the preamble, FSIS proposes to amend 9
CFR Chapter III as follows:
PART 317--LABELING, MARKING DEVICES, AND CONTAINERS
1. The authority citation for part 317 continues to read as
follows:
Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
Sec. Sec. 317.18 through 317.22 [Removed and Reserved].
2. Remove and reserve Sec. Sec. 317.18 through 317.22.
PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS
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 2.18,
2.53.
Sec. Sec. 381.121a through 381.121e [Removed and Reserved].
4. Remove and reserve Sec. Sec. 381.121a through 381.121e.
[[Page 15342]]
Subchapter E--Regulatory Requirements Under the Federal Meat Inspection
Act and the Poultry Products Inspection Act
5. Subchapter E is amended by adding a new part 442 to read as
follows:
PART 442--QUANTITY OF CONTENTS LABELING AND PROCEDURES AND
REQUIREMENTS FOR ACCURATE WEIGHTS
Sec.
442.1 Quantity of contents labeling
442.2 Definitions and procedures for determining net weight
compliance
442.3 Scale requirements for accurate weights, repairs, adjustments,
and replacement after inspection
442.4 Testing of scales
442.5 Handling of failed product
Authority: 21 U.S.C. 451-470, 601-695; 7 CFR 2.18, 2.53.
Sec. 442.1 Quantity of contents labeling.
This part prescribes the procedures to be followed for determining
net weight compliance and prescribes the reasonable variations allowed
from the declared net weight on the labels of immediate containers of
products in accordance with 9 CFR 317.2(c)(4), 317.2(h), and 381.121.
Sec. 442.2 Definitions and procedures for determining net weight
compliance.
(a) For the purpose of Sec. 442.1 of this part, the reasonable
variations allowed, the definitions, and the procedures to be used in
determining net weight and net weight compliance are presented in the
National Institute of Standards and Technology (NIST) Handbook 133,
``Checking the Net Contents of Packaged Goods,'' Fourth Edition,
January 2002, which is incorporated by reference. Those provisions are
considered mandatory requirements. This incorporation was approved by
the Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. (These materials are incorporated as they exist on
the date of approval.) A notice of any change in the Handbook cited
herein will be published in the Federal Register. Copies may be
purchased from the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402. The incorporation information
also is available for inspection at the Office of the Federal Register
Information Center, 800 North Capitol Street, NW., suite 700,
Washington, DC 20408.
(b) The following NIST Handbook 133 requirements are not
incorporated by reference.
Chapter 2--Basic Test Procedure--Gravimetric Testing
2.4 Borax
Chapter 3--Test Procedures--For Packages Labeled by Volume
3.5 Mayonnaise and Salad Dressing
3.7 Pressed and Blown Glass Tumblers and Stemware
3.8 Volumetric Test Procedures for Paint, Varnish, and Lacquers--Non
Aerosol
3.9 Testing Viscous Materials--Such as Caulking Compounds and Pasters
3.10 Peat Moss
3.11 Mulch and Soils Labeled by Volume
3.12 Ice Cream Novelties
3.13 Fresh Oysters Labeled by Volume
3.14 Determining the Net Contents of Compressed Gas Cylinders
3.15 Volumetric Test Procedures for Packaged Firewood with a Labeled
Volume of 133 L (4 Cu Ft) or Less
3.16 Boxed Firewood
3.17 Crosshatched Firewood
3.18 Bundles and Bags of Firewood
Chapter 4--Test Procedures--Packages Labeled by Count, Linear Measure,
Area, Thickness, and Combinations of Quantities
4.5 Paper Plates and Sanitary Paper Products
4.6 Special Test Requirements for Packages Labeled by Linear or Square
Measure (Area)
4.7 Polyethylene sheeting
4.8 Packages Labeled by Linear or Square (Area) Measure
4.9 Bailer Twine--Test Procedure for Length
4.10 Procedure for Checking the Area Measurement of Chamois
Sec. 442.3 Scale requirements for accurate weights, repairs,
adjustments, and replacements after inspection.
(a) All scales used to weigh meat and poultry products sold or
otherwise distributed in commerce in federally inspected meat and
poultry establishments will be installed, maintained, and operated in a
manner that ensures accurate weights. Such scales shall meet the
applicable requirements contained in National Institute of Standards
and Technology (NIST) Handbook 44, ``Specifications, Tolerances, and
Other Technical Requirements for Weighing and Measuring Devices,'' 1999
Edition, November 1988, which is incorporated by reference. This
incorporation was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. (These materials are
incorporated as they exist on the date of approval.) A notice of any
change in the Handbook cited here will be published in the Federal
Register. Copies may be purchased from the Superintendent of Documents,
Government Printing Office, Washington, DC 20402. The incorporation
information also is available for inspection at the Office of the
Federal Register Information Center, 800 North Capitol Street, NW.,
suite 700, Washington, DC 20408.
(b) All scales used to weigh meat or poultry products sold or
otherwise distributed in commerce or in States designated under section
301(c) of the Federal Meat Inspection Act and section 5(c) of the
Poultry Products Inspection Act shall be of sufficient capacity to
weigh the entire unit or package.
(c) No scale will be used at a federally inspected establishment to
weigh meat or poultry products unless it has been found upon test and
inspection, as specified in NIST Handbook 44 to provide accurate
weight. If a scale is inspected or tested and found to be inaccurate,
or if any repairs, adjustments, or replacements are made to a scale, it
shall not be used until it has been reinspected and retested by a USDA
official, or a State or local government weights and measures official,
or a State registered or licensed scale repair firm or person, and it
must meet all accuracy requirements as specified in NIST Handbook 44.
If a USDA inspector has put a ``Retain'' tag on a scale, the tag can
only be removed by a USDA inspector. As long as the tag is on the
scale, it shall not be used.
Sec. 442.4 Testing of scales.
(a) The operator of each official establishment that weighs meat or
poultry food products will cause such scales to be tested for accuracy
in accordance with the technical requirements of NIST Handbook 44, at
least once during the calendar year. In cases where the scales are
found not to maintain accuracy between tests, more frequent tests may
be required and monitored by an authorized USDA program official.
(b) The operator of each official establishment shall display on or
near each scale a valid certification of the scale's accuracy from a
State or local government's weights and measures authority or from a
State registered or licensed scale repair firm or person, or shall have
alternative documented procedures showing that the scale has been
tested for accuracy in accordance with the requirements of NIST
Handbook 44.
Sec. 442.5 Handling of failed product.
Any lot of product that is found to be out of compliance with net
weight requirements upon testing in accordance with the methods
prescribed
[[Page 15343]]
in Sec. 442.2 of this subchapter shall be handled as follows;
(a) A lot tested in an official establishment and found not to
comply with net weight requirements may be reprocessed and must be
reweighed and remarked to satisfy the net weight requirements of this
section in accordance with the requirements of this part.
(b) A lot tested outside an official establishment and found not to
comply with net weight requirements must be reweighed and remarked with
a proper net weight statement, provided that such reweighing and
remarking will not deface, cover, or destroy any other marking or
labeling required under this subchapter and the net quantity of
contents is shown with the same prominence as the most conspicuous
feature of a label.
Done in Washington, DC, on March 22, 2006.
Barbara J. Masters,
Administrator.
[FR Doc. E6-4420 Filed 3-27-06; 8:45 am]
BILLING CODE 3410-DM-P