[Federal Register: June 23, 2004 (Volume 69, Number 120)]
[Rules and Regulations]               
[Page 34913-34916]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn04-5]                         

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DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 319

[Docket No. 96-006F]
RIN 0583-AC09

 
Beef or Pork with Barbecue Sauce; Revision of Standard

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending its 
regulations by removing meat yield requirements in the standard of 
identity for ``Beef with Barbecue Sauce'' and ``Pork with Barbecue 
Sauce.'' This action is in response to a petition. The petitioner 
states that the current food standard, promulgated in 1952, places 
producers of these products at a competitive disadvantage because 
producers of other meat and sauce products do not have a cooked meat 
yield requirement or a raw meat yield requirement. This action provides 
consistent requirements for most meat with sauce producers.

EFFECTIVE DATE: This rule is effective July 23, 2004.

FOR FURTHER INFORMATION CONTACT: Robert C. Post, Ph.D., Director, 
Labeling and Consumer Protection Staff, 1400 Independence Avenue, SW., 
Cotton Annex, Washington, DC 20250-3700, (202) 205-0279.

SUPPLEMENTARY INFORMATION: 

[[Page 34914]]

Background

    Section 319.312 of FSIS regulations requires that the products 
labeled as ``Beef with Barbecue Sauce'' and ``Pork with Barbecue 
Sauce'' contain a minimum of 50 percent cooked meat of the species 
identified on the label, that the cooked meat be reduced by cooking to 
no more than 70 percent of the weight of the uncooked meat, and if 
uncooked meat is used to produce the product, the product contain at 
least 72 percent meat computed on the weight of the uncooked meat.
    Some standards of identity have been promulgated with meat yield 
requirements, e.g., ``Hash'' (Sec.  319.302), ``Corned Beef Hash'' 
(Sec.  319.303) and ``Beef or Pork with Barbecue Sauce'' (Sec.  
319.312). Other meat and sauce products, such as ``Meat Stews'' (Sec.  
319.304), ``Beans with Frankfurters in Sauce, Sauerkraut with Wieners 
and Juice, and similar products' (Sec.  319.309), and ``Beef with Gravy 
and Gravy with Beef'' (Sec.  319.313), have minimum meat content 
requirements but do not require specific cooked or uncooked meat 
yields. There is no yield requirement for these mentioned products 
because the meat component used to make these latter products is 
typically pre-cooked and not cooked in the sauce.
    FSIS was petitioned by the American Meat Institute to amend FSIS'' 
regulations by removing a cooked meat yield requirement and a raw meat 
yield requirement for the food standards ``Beef with Barbecue Sauce'' 
and ``Pork with Barbecue Sauce.'' The petitioner stated that the food 
standard, promulgated in 1952, does not reflect the conditions of 
commercial marketability of beef or pork with barbecue sauce, and that 
given today's cooking methods and leaner meat cuts, a beef or pork item 
can be fully cooked at yields well above 70 percent. Further, these 
obsolete requirements place producers of these products at a 
competitive disadvantage with respect to manufacturers of similar 
products, such as ``Beef with Gravy'', who do not have such 
requirements.
    FSIS agrees with the petitioner's assertion that the subject 
standard of identity does not reflect the current conditions of 
commercial marketability of beef or pork with barbecue sauce. FSIS 
believes consumers are best served by promoting consistent standards 
among similar types of meat and poultry with sauce products. In this 
way, consumers can be assured that the same types of rules are applied 
to protect them from deceptive products so that they receive products 
with the essential components and the characteristics they expect.
    Therefore, on September 3, 1997 (62 FR 46450), FSIS proposed to 
revise 9 CFR part 319 by removing the meat yield requirements for the 
beef and pork with barbecue sauce food standards. FSIS had not acted to 
remove the meat yield requirements sooner because of other, higher-
priority regulatory initiatives.
    In response to the proposed rule, FSIS received 7 comments. After 
carefully analyzing the comments, FSIS has decided to adopt the 
proposed rule.

Comments and Responses

    FSIS received 7 comments from trade and professional organizations 
and food companies. Five commenters supported the revision and two 
opposed it. FSIS responses to the comments follow.
    Comment: One commenter stated that 9 CFR 319.312 is outdated and 
does not accurately reflect cooking yields resulting from today's 
advanced cooking methods. This commenter also stated that a revision of 
the standard will encourage broader competition and will result in a 
wider variety of products of this type in the marketplace.
    Response: FSIS agrees with this position. Revision of the 
regulation should promote the development of new and innovative 
products.
    Comment: Three commenters expressed the opinion that the rule 
should be expanded to include other competitive products that require 
maximum cooking yields as part of the product's standards.
    Response: FSIS does not agree with this comment. An expansion of 
this proposal to include other competitive products would not be within 
the scope of this rulemaking.
    Comment: One commenter stated that FSIS should consider the 
potential impact of this rulemaking on manufacturers of standardized 
poultry products.
    Response: This rulemaking will achieve consistency between the meat 
and poultry standards of identity in the regulations. The poultry 
standards do not include yield requirements.
    Comment: Three commenters stated that this rulemaking would provide 
consistency with requirements for other meat with sauce products.
    Response: FSIS agrees with this statement. The revision will 
eliminate the requirement for specific cooked meat yields for these two 
products and result in a standard that is consistent with requirements 
for other similar meat and poultry with sauce-type standardized 
products, e.g., beef with gravy. Consumers can be assured that the same 
types of rules apply to protect them from deceptive meat and poultry 
sauce-type products so that they receive products with the essential 
characteristics they expect.
    Comment: Two commenters who produce beef and pork with barbecue 
sauce were opposed to the revision of the regulation. They stated that 
such a revision would result in an economic hardship for their food 
companies given the large investments in equipment that they have made 
to facilitate manufacture of their product lines. These two commenters 
stated that the proposed revision would result in products containing 
less protein and more moisture and fat, resulting in economic 
adulteration.
    Response: FSIS does not believe that an economic hardship would 
result from the proposed revision of the regulation. As explained in 
the section on the benefits of this final rule below, manufacturers 
will not need to purchase new equipment. They will modify their yield 
by altering cooking times and temperatures. FSIS also disagrees with 
the commenters' position that products containing less protein and more 
fat and moisture automatically constitute economic adulteration. 
Consumers can rely on the nutrition facts and ingredients statement 
that are required on the labels of meat and poultry products to be 
informed of the protein, fat, and other constituents of the products 
they purchase. They can use this information to make comparisons 
between products they wish to purchase.

Executive Order 12866: Benefit-Cost Analysis

    This rule has been determined to be not significant and therefore 
has not been reviewed by the Office of Management and Budget in 
accordance with Executive Order 12866.

Need for the Rule

    The current standard, 9 CFR 319.312, requires that products labeled 
as ``Beef with Barbecue Sauce'' and ``Pork with Barbecue Sauce'' must 
contain a minimum of 50 percent cooked meat of the species identified 
on the label, that the cooked meat must be reduced by cooking to no 
more than 70 percent of the weight of the uncooked meat, and that if 
uncooked meat is used to produce the product, the product must contain 
at least 72 percent meat computed on the weight of the uncooked meat. 
This final rule will provide consistency among meat and sauce food 
standards by removing the meat yield requirements for the food standard 
``Beef with Barbecue Sauce''

[[Page 34915]]

and ``Pork with Barbecue Sauce''. It will leave unchanged the minimum 
meat content requirement. Removal of the meat yield requirement will 
bring this food standard in line with other food standards for other 
meat and sauce products.

Description of Affected Product

    The standard for beef with barbecue sauce and pork with barbecue 
sauce requires the product be cooked and have not less than 50 percent 
beef or pork. Usually the beef or pork meat used in this product is 
derived from larger cuts of beef or pork. Mechanically separated pork 
may be used in accordance with 9 CFR 319.6 (FSIS has determined that 
mechanically separated beef is inedible and has prohibited its use for 
human food). Beef or pork with barbecue sauce is marketed in 
supermarkets and merchandise discount stores as either frozen or 
canned.

Description of Affected Industry

    The industry is comprised of several hundred manufacturers who 
either conduct beef or pork slaughter and processing operations or only 
processing operations. Typically, these firms produce a broad range of 
processed products using beef, pork, or other meats. The majority of 
the manufacturers of beef with barbecue sauce or pork with barbecue 
sauce are located in the southeastern region of the United States and 
are considered small entities because they employ fewer than 500 
employees.\1\
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    \1\ The exact number of firms that process beef or pork with 
barbecue sauce is unavailable and indeterminate.
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Benefits

    The final rule will modernize the food standard for beef with 
barbecue sauce and pork with barbecue sauce to provide consistency with 
other meat and sauce food standards. Second, it will reflect the 
improvements in technology and the marketing of beef with barbecue 
sauce and pork with barbecue sauce products. Third, it will potentially 
reduce manufacturers highest component (meat) cost in producing beef or 
pork with barbecue sauce, and, therefore, it will result in savings 
that can be passed along to consumers through lower prices. Fourth, it 
will permit manufacturers to produce meat products with 70 percent or 
greater yield without requiring the purchase of new injection 
equipment.
    Deleting the yield requirement in the food standard for beef or 
pork with barbecue sauce will allow manufacturers of these products to 
compete on an equitable basis with manufacturers who produce other meat 
with sauce products, because food standards for other meat with sauce 
products do not include a cooking yield requirement.
    Current injection and tumbling technology permits manufacturers to 
produce cooked meat that will exceed 70 percent yield of the uncooked 
meat. The Agency believes that the current standard for beef or pork 
with barbecue sauce is outdated and does not reflect modern processing 
practices.\2\
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    \2\ This standard was adopted in the 1950's. 51 FR 32058 
(September 9, 1986).
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    The current practice is to supply meat products with high cook 
yields. Because of the technology that produces pumped meat, 
manufacturers can now supply cuts of meat that are moist and tender, 
which consumers have grown to expect. When the current standard was 
promulgated in 1952, the vacuum tumbling technology did not exist, and 
therefore the resulting pumped products were not available to 
consumers. Consumer expectations and preferences have evolved since the 
introduction of the vacuum tumbling technology. This final rule will 
permit manufacturers to supply pumped beef with barbecue sauce and 
pumped pork with barbecue sauce, meeting consumers' demands and 
preferences for pumped products.
    This final rule also will permit manufacturers to increase their 
least costly component (barbecue sauce), while reducing their highest 
cost component (the cooked meat portion). For example, a manufacturer 
processes 100 pounds of beef and cooks it to a yield of 70% (per the 
existing regulations) to 70 pounds. The manufacturer is then allowed to 
make a maximum of 140 pounds of beef with barbecue sauce in order to 
meet the requirement for a 50% minimum of cooked meat content. Under 
this final rule, the manufacturer is allowed to cook the same 100 
pounds of beef until it yields 75%. The manufacturer is then allowed to 
make a maximum of 150 pounds of beef with barbecue sauce. Thus the 
additional 10 pounds of beef with barbecue sauce is made up of an extra 
5 pounds of the least costly component of the product, barbecue 
sauce.\3\ Because of the lower cost of production to process these 
products, manufacturers can pass these cost savings to consumers in the 
form of lower prices.
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    \3\ Example is a simplified view of the final rule. Example does 
not take into consideration small amount of other ingredients and 
components that can be added to the beef or pork with barbecue 
sauce.
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    Manufacturers may continue to produce products of beef with 
barbecue sauce and pork with barbecue sauce with 70 percent or greater 
yield without purchasing new injection equipment by (1) shortening the 
present cooking time, and (2) changing the cooking temperature so that 
fewer of the juices are cooked out of the meat and, therefore, the meat 
will reach a higher yield. By not requiring a cook yield, the final 
rule will open new markets for manufacturers in which they may produce 
products that exceed the current cook yield requirement.

Costs

    The final rule should not impose any new cost burden on 
manufacturers of beef with barbecue sauce and pork with barbecue sauce 
because these manufacturers are producing other products that meet the 
no meat yield requirement for cooked meat. All manufacturers who cook 
these products to meet the existing 70 percent yield requirement and 
those manufacturers who exceed the yield requirement will be in 
compliance.

Regulatory Flexibility Analysis

    FSIS has examined the economic implications of the final rule as 
required by the Regulatory Flexibility Act (5 U.S.C. 601-612). If a 
rule has a significant economic impact on a substantial number of small 
entities, the Regulatory Flexibility Act requires us to analyze 
regulatory options that would lessen the economic effect of the rule on 
small entities. The agency has determined that the final rule will not 
have a significant impact on a substantial number of small entities.
    Since the majority of the industry is comprised of small entities, 
and the final rule does not impose additional cost, these small 
entities will not suffer a significant adverse impact on their business 
operations and profits.
    Small entities that are offering beef with barbecue sauce and pork 
with barbecue sauce products that do not exceed the 70 percent meat 
yield requirement when cooked will not be put at a disadvantage by the 
final rule. These small entities can continue to produce meat products 
that meet the 70 percent yield content.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court

[[Page 34916]]

challenging this rule. However, the administrative procedures specified 
in 9 CFR 390.7 must be exhausted prior to any judicial challenge of the 
application of the provisions of this rule, if the challenge involves 
any decision of an FSIS employee relating to a denial of access of 
information.

Paperwork Requirements

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

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 final rule, FSIS will announce it on-
line 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 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://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 in 9 CFR Part 319

    Meat inspection, Standards of identity or composition.

0
For the reasons set forth in the preamble, 9 CFR part 319 is amended to 
read as follows:

PART 319--DEFINITIONS AND STANDARDS OF IDENTITY OR COMPOSITION

0
1. The authority citation for part 319 is revised as follows:

    Authority: 7 U.S.C. 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 
2.18, 2.53.

0
2. Section 319.312 is revised to read as follows:


Sec.  319.312  Pork with barbecue sauce and beef with barbecue sauce.

    ``Pork with Barbecue Sauce'' and ``Beef with Barbecue Sauce'' shall 
consist of not less than 50 percent cooked meat of the species 
specified on the label. Mechanically Separated (Pork) may be used in 
accordance with Sec.  319.6.

    Done at Washington, DC, on: June 18, 2004.
Barbara J. Masters,
Administrator.
[FR Doc. 04-14194 Filed 6-22-04; 8:45 am]