[Federal Register: September 29, 2003 (Volume 68, Number 188)]
[Proposed Rules]               
[Page 55902-55905]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se03-33]                         

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[[Page 55902]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 381

[Docket No. 99-017P]
RIN 0583-AC83

 
Classes of Poultry

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 definitions and standards for the official U.S. classes of 
poultry so that they more accurately and clearly describe the 
characteristics of poultry in the market today. Poultry classes are 
defined primarily in terms of the age and sex of the bird. Genetic 
improvements and new poultry management techniques have reduced the 
grow-out period for some poultry classes, while extensive cross 
breeding has produced poultry with higher meat yields but blurred breed 
distinctions. This action is being taken to ensure that poultry 
products are labeled in a truthful and non-misleading manner.

DATES: Comments must be received on or before November 28, 2003.

ADDRESSES: Submit one original and two copies of written comments to: 
FSIS Docket Clerk, DOCKET 99-017P, U.S. Department of 
Agriculture, Food Safety and Inspection Service, Room 102, Cotton 
Annex, SW., Washington, DC 20250-3700. All comments submitted on this 
proposal will be available for public inspection in the Docket Clerk's 
Office between 8:30 a.m. and 4:30 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Dr. Robert C. Post, Director, Labeling 
and Consumer Protection Staff, Office of Policy and Program 
Development, Food Safety and Inspection Service, U.S. Department of 
Agriculture; (202) 205-0279.

SUPPLEMENTARY INFORMATION:

Background

    The Poultry Products Inspection Act (PPIA) prohibits the 
distribution of poultry products that are adulterated or misbranded (21 
U.S.C 458). The PPIA also authorizes the Secretary of Agriculture to 
prescribe, among other things, definitions and standards of identity or 
composition for poultry products, whenever the Secretary determines 
that such action is necessary for the protection of the public (21 
U.S.C. 457(b)). Poultry classes were established by USDA almost 30 
years ago to aid in labeling five kinds of poultry--chickens, turkeys, 
ducks, geese, and guineas. The classes were based primarily on the age 
and sex of the bird, with Rock Cornish-type chickens also being defined 
by breed.
    FSIS uses poultry class standards to ensure that poultry products 
are labeled in a truthful and non-misleading manner.
    Recently, FSIS reviewed the poultry class definitions with USDA's 
Agricultural Marketing Service (AMS) Poultry Programs, and both 
agencies discussed the issue with members of the poultry industry and 
others knowledgeable about poultry genetics and breeding. The mission 
of the AMS is to facilitate the marketing of poultry through grading, 
certification, market news, and commodity procurement services. The 
classes are incorporated into AMS's official U.S. Classes, Standards, 
and Grades for Poultry (AMS 70.200 et seq.) as a convenience for those 
processors, marketers, and consumers using AMS's voluntary poultry 
grading service.
    After examining current poultry production methods and reviewing 
the poultry classes defined in 9 CFR 381.170, FSIS and AMS determined 
that a number of poultry class definitions did not reflect today's 
poultry characteristics nor current industry practices. Advancements in 
breeding and husbandry have generally shortened the period of time 
required for birds to attain market-ready weights. For example, today 
broilers 3.5 to 4.5 pounds in weight can be produced in less than 10 
weeks, and are frequently produced in 6 to 8 weeks. Thirty years ago, 
it took 12 to 13 weeks to produce birds with the physical 
characteristics of broilers. Given these findings, FSIS and AMS 
determined that the poultry class definitions need to be revised to 
more accurately and clearly describe poultry being marketed today and 
to ensure that the labels for poultry products are truthful and non-
misleading. When the revised class definitions are finalized, AMS will 
incorporate them into its U.S. Classes, Standards, and Grades for 
Poultry.
    FSIS is concerned with the truthful presentation of the 
characteristics of poultry products because consumers rely on product 
labels when making purchasing decisions. The age of the bird affects 
the tenderness of the meat and the smoothness of skin, thus dictating 
the cooking method to use for maximum flavor and tenderness. Poultry 
meat from young birds is more tender than that from older birds. Young 
birds are suitable for all cooking methods, especially broiling, 
barbecuing, roasting, and frying. Less tender, mature birds are most 
suitable for moist-heat cooking, such as stewing and baking, and may be 
preferred for use in soups, casseroles, salads, and sandwiches.
    FSIS is proposing to lower the age definitions for six classes of 
poultry: Rock Cornish game hen or Cornish game hen from 5 to 6 weeks to 
less than 5 weeks (381.170(a)(1)(i)); broiler or fryer from under 13 
weeks to less than 10 weeks (381.170(a)(1)(iii)); roaster or roasting 
chicken from 3 to 5 months to less than 12 weeks (381.170(a)(1)(iv)); 
capon from under 8 months to less than 4 months (381.170(a)(1)(v)); 
fryer-roaster turkey from under 16 weeks to less than 12 weeks 
(381.170(a)(2)(i)); and young turkey from under 8 months to less than 6 
months (381.170(a)(2)(ii)). The Agency is proposing to delete the word 
``usually'' from the age designation descriptions in all of the poultry 
class standards so that these age designations will be clear and 
enforceable.
    The poultry class definitions for geese and guineas currently do 
not contain age designations that distinguish young birds from mature 
birds(381.170(a)(4) and 381.170(a)(5)). However, the Agency is 
considering revising the geese and guinea poultry class standards to 
include such age designations. Therefore, FSIS is soliciting comments 
on what age designations would be appropriate for poultry identified as 
``young geese,'' ``mature geese,'' ``young guineas'' and ``old 
guineas.''
    The general physical characteristics of birds identified as mature 
or old turkeys

[[Page 55903]]

are the same regardless of the gender of the bird. Therefore, FSIS is 
proposing to revise the labeling of mature or old turkeys so that sex 
designation, such as hen or tom, currently required, would be optional.
    Current class definitions state that a bird labeled as a Rock 
Cornish-type chicken must be ``the progeny of a cross between a 
purebred Cornish and a purebred Rock chicken'' (9 CFR 
381.170(a)(1)(ii)), or ``a Cornish chicken or the progeny of a Cornish 
chicken crossed with another breed of chicken'' (9 CFR 
381.170(a)(1)(i)). While this statement was appropriate when these 
chickens were originally developed over 40 years ago, today it is 
doubtful that any purebred Cornish or Rock lines exist in commercial 
chicken production. The names ``Rock Cornish game hen'' and ``Cornish 
game hen'' are now used to identify a very young, very small, whole 
chicken that is marketed as an individual serving. Although the names 
refer to hens, either sex can be used since birds of this class are 
sexually immature. The names ``Rock Cornish fryer,'' ``Rock Cornish 
roaster,'' and ``Rock Cornish hen'' are no longer meaningful because 
these birds cannot be reliably distinguished on the basis of progeny 
from other existing classes. Therefore, the Agency is proposing to 
define the Rock Cornish game hen or Cornish game hen class only in 
terms of age and weight and to delete the class of Rock Cornish fryer, 
roaster, and hen.
    The existing class definition for the roaster or roasting chicken 
class states that the breast bone cartilage of these birds ``may be 
somewhat less flexible'' than the breast bone cartilage of birds in the 
broiler or fryer class (9 CFR 381.170(a)(iv)). The Agency is proposing 
to replace the words ``may be'' with the word ``is,'' so that the 
definition better reflects the characteristics of birds classified as 
roasters and to make the language of the revised roaster class 
definition more consistent with the other poultry class definitions.
    In most of the poultry class definitions the term ``mature'' refers 
to old adult birds. However, the term ``fully matured'' in the yearling 
turkey class definition is used to describe the breeding capability of 
the bird. FSIS has determined that the description of the age and 
physical characteristics provided in the proposed yearling turkey 
definition sufficiently characterize the birds that belong to this 
poultry class. Therefore, for consistency, FSIS is proposing to delete 
the term ``fully matured'' from the yearling turkey class definition.
    FSIS is proposing to change the name of the broiler duckling or 
fryer duckling class to ``duckling.'' Birds in this class of ducks are 
currently labeled and marketed as ``ducklings'' without the prefixes 
``broiler'' or ``fryer.'' These are obsolete marketing terms for ducks 
that are not being used and have not been used for quite some time. In 
addition, FSIS is proposing to change the name of the roaster duckling 
class to ``roaster duck.'' Roaster ducks are currently labeled and 
marketed as ``ducks'' rather that ``ducklings.''
    In addition to the substantive changes made to the poultry class 
standards, the class definitions have been edited for clarity, 
consistency, and uniformity. For example, under the proposed revisions, 
the class names used within the regulatory text will be placed in 
quotation marks to make the format of the poultry class standards 
regulation consistent with the other regulations that prescribe 
standards of identity for poultry products. References to specific 
numbers of weeks or months will be preceded by the words ``less than'' 
or ``more than'' rather than ``under'' or ``in excess of'' to improve 
the clarity of the regulations.
    To avoid inconsistencies, section 457(b)(2) of Title 21 of the 
U.S.C. requires that the Secretary of Agriculture consult with the 
Secretary of Health and Human Services and an appropriate advisory 
committee as provided for in 21 U.S.C. 454 before issuing standards of 
identity for poultry products. Pursuant to this requirement, before it 
publishes any final rule that is developed as a result of this 
proposal, FSIS will consult with the Food and Drug Administration (FDA) 
to ensure that the revised poultry class standards are not inconsistent 
with any existing product standards established by the FDA. FSIS will 
also present the revised poultry class standards to the National 
Advisory Committee on Meat and Poultry Inspection (NACMPI) for 
consultation to ensure that there is no inconsistency between Federal 
and State standards. Any changes to the revised standards that occur as 
a result of these consultations will be incorporated into the final 
rule.
    Interested parties have suggested that certain poultry classes 
should include a requirement for ready-to-cook (RTC) carcass weight in 
addition to the proposed maturity factors. For example, some parties 
have suggested that the Agency require that roaster chickens have a RTC 
weight of 5 pounds or more in addition to the appropriate maturity 
characteristics. FSIS is soliciting comments regarding the merit of 
establishing RTC carcass weights or maximums for poultry classes. To be 
of value, the comments must provide a factual basis for or against the 
establishment of weight requirements.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be significant and was 
reviewed by the Office of Management and Budget under Executive Order 
12866.
    FSIS is proposing to amend its regulations to update the standards 
for poultry classes to reflect current poultry characteristics and 
industry production practices. Under the authority of the PPIA, FSIS 
develops and enforces poultry product definitions and standards of 
identity to protect the public. FSIS is concerned with the truthful 
presentation of the characteristics of poultry because consumers rely 
on product labels when making purchasing decisions. For FSIS to enforce 
poultry class labeling claims, the poultry class definitions must 
reflect current poultry characteristics and the corresponding industry 
norms.
    Presently, labels on poultry products are not necessarily based on 
current industry standards. For example, birds with the general 
physical characteristics of the broiler class can be produced in less 
than 10 weeks, often in 6 to 8 weeks, and are labeled as ``broilers.'' 
However, the current broiler class definition under 9 CFR 381.170 
states that broilers are ``usually under 13 weeks of age.'' Birds with 
the general physical characteristics of the roaster class are being 
produced in 10 to 12 weeks and are labeled as ``roasters.'' However, 
the current roaster class definition under 9 CFR 381.170 states that 
roasters are ``usually 3 to 5 months of age.'' While these birds have 
physical characteristics that are consistent with the current poultry 
class standards that are defined in 9 CFR 381.170, the age references 
in the regulations may be misleading to consumers because the ages 
associated with the regulatory classification do not reflect current 
industry norms. When consumers purchase a bird labeled as a 
``broiler,'' they are generally getting a bird that is less than 10 
weeks old, not as old as 13 weeks as suggested by the current broiler 
class definition. Likewise, when consumers purchase a bird labeled as a 
``roaster,'' they are generally getting a bird that was produced in 
less than 12 weeks rather than 3 to 5 months as suggested by the 
current roaster class definition. Labeling a product as a ``broiler,'' 
``roaster,'' or any other definition should be truthful and reflective 
of today's production practices and industry norms so that product 
definitions and labels are

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correct and not misleading to consumers. All poultry being marketed 
today have physical attributes that conform to the proposed class 
definitions. Thus, there is no need to establish entirely new poultry 
classes.
    In addition to the proposed rule, FSIS considered the option of no 
rulemaking and the option of defining poultry classes using weight 
ranges in place of general maturity characteristics. Under the option 
of no rulemaking, the poultry class standards as defined in the FSIS 
regulations would remain in place. However, these definitions fail to 
take into account current poultry characteristics and poultry 
production practices, which have generally shortened the period of time 
required for birds to attain market-ready weights. Therefore, the usual 
ages of the birds stated in the current class definitions are 
inaccurate and, as a result, may mislead consumers. Without the 
proposed changes, FSIS's ability to enforce poultry class labeling 
claims is also not as effective.
    At the suggestion of a trade organization and of an industry 
processor, FSIS considered using weight ranges to define turkey and 
roaster classes rather than age and general maturity characteristics. 
However, for turkey classes, FSIS did not believe that such a class 
system would accurately distinguish birds that differ significantly in 
product characteristics, such as meat tenderness and skin texture. 
Also, while some processors use the weight of the poultry they sell as 
part of their marketing program, except for Rock Cornish game hens, 
none of the poultry classes are based on weight. During early 
discussions with industry, a major processor that sells roasters 
suggested creating a weight requirement for this class of birds. 
However, information suggested that classifying roasters on the basis 
of weight was not an accepted practice by processors industry-wide. 
Therefore, the Agency has used age and general physical characteristics 
as the basis for the revised poultry class standards. Nevertheless, in 
this proposed rule, FSIS is soliciting comments on the merit of 
establishing ready-to-cook weight ranges for poultry classes.
    Amending the poultry class definitions to better reflect the 
characteristics of poultry that is being marketed today will benefit 
consumers by ensuring that labels for poultry products are truthful and 
non-misleading. Companies, such as high volume food buyers, will also 
benefit because they refer to these classes in their purchase 
specifications to ensure that they receive products with the 
appropriate characteristics. Because poultry class standards are used 
by AMS to define requirements for quality grades and in official U.S. 
government procurement specifications used to purchase products for the 
School Lunch Program and the military, updating the poultry class 
standards will benefit AMS by ensuring the legal sufficiency of these 
quality requirements and the procurement documents. This proposed rule 
will also enhance FSIS' ability to enforce poultry class labeling 
claims.
    This proposed rule has the potential to raise prices somewhat for 
consumers. The most significant change in the proposed poultry classes 
is the definition changes for the broiler and roaster classes, and the 
effects of this change may be minimal. Roasters are generally $.08 to 
$.13 per pound more expensive than broilers. Because the typical age in 
the definition of roaster will be reduced from 3 to 5 months to less 
than 12 weeks, some birds that may have been sold as broilers under the 
less than 13 week age definition may be sold for higher price per pound 
as roasters. This change would result in a net transfer from consumers 
to producers. Assuming a 5 lb. dressed carcass, that is a price 
difference of $.40 to $.65 per bird. If such a change occurs, there 
would be no net social cost, but there would be redistributive impacts. 
FSIS has no information on and cannot estimate the potential for such 
changes. Because these birds have the general physical characteristics 
of roasters, they most likely are already being marketed as roasters 
rather than broilers. Thus, the proposed changes to the poultry class 
definitions may validate existing practices so that this cost effect 
should be minimized.

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). The advancements in growing practices and technologies 
that have occurred since the original poultry class standards were 
developed are prevalent throughout the industry, regardless of the size 
of the entity. The proposed rule merely updates existing regulations to 
reflect current poultry characteristics and production practices used 
throughout the entire industry.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule (1) preempts all State and 
local law 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 challenging this 
rule.

Paperwork Requirements

    There are no paperwork or recordkeeping requirements associated 
with this proposed 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 better ensure 
that minorities, women, and persons with disabilities are aware of this 
proposed rule, FSIS will announce it and make copies of this Federal 
Register publication available through the FSIS Constituent Update. 
FSIS provides a weekly Constituent Update, which is communicated via 
Listserv, a free e-mail subscription service. In addition, the update 
is available 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 Constituent update is used to provide 
information regarding FSIS policies, procedures, regulations, Federal 
Register notices, FSIS public meetings, recalls, and any other types of 
information that could affect or would be of interest to our 
constituents/stakeholders. The constituent Listserv consists of 
industry, trade, and farm groups, consumer interest groups, allied 
health professionals, scientific professionals, and other individuals 
that have requested to be included. Through the Listserv and web page, 
FSIS is able to provide information to a much broader, more diverse 
audience.
    For more information contact the Congressional and Public Affairs 
Office, at (202) 720-9113. To be added to the free e-mail subscription 
service (Listserv) go to the ``Constituent Update'' page on the FSIS 
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fsis.usda.gov/oa/update/update.htm. Click on the 
``Subscribe to the Constituent Update Listserv'' link, then fill out 
and submit the form.

List of Subjects in 9 CFR Part 381

    Food grades and standards, Poultry and poultry products.
    For the reasons set forth in the preamble, FSIS proposes to amend 9 
CFR part 381 as follows:

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

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


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    Authority: 7 U.S.C. 138f; 7 U.S.C. 450; 21 U.S.C. 451-470; 7 CFR 
2.18, 2.53.

    2. Section 381.170 would be amended by revising paragraph (a) to 
read as follows:


Sec.  381.170  Standards for kinds and classes, and for cuts of raw 
poultry.

    (a) The following standards specify the various classes of the 
specified kinds of poultry, and the requirements for each class:
    (1) Chickens--(i) Rock Cornish game hen or Cornish game hen. A 
``Rock Cornish game hen'' or ``Cornish game hen'' is a young immature 
chicken (less than 5 weeks of age), of either sex, with a ready-to-cook 
carcass weight of not more than 2 pounds.
    (ii) Broiler or fryer. A ``broiler'' or ``fryer'' is a young 
chicken (less than 10 weeks of age), of either sex, that is tender-
meated with soft, pliable, smooth-textured skin and flexible breastbone 
cartilage.
    (iii) Roaster or roasting chicken. A ``roaster'' or ``roasting 
chicken'' is a young chicken (less than 12 weeks of age), of either 
sex, that is tender-meated with soft, pliable, smooth-textured skin and 
breastbone cartilage that is somewhat less flexible than that of a 
broiler or fryer.
    (iv) Capon. A ``capon'' is a surgically neutered male chicken (less 
than 4 months of age) that is tender-meated with soft, pliable, smooth-
textured skin.
    (v) Hen, fowl, baking chicken, or stewing chicken. A ``hen,'' 
``fowl,'' ``baking chicken,'' or ``stewing chicken'' is an adult female 
chicken (more than 10 months of age) with meat less tender than that of 
a roaster or roasting chicken and a nonflexible breastbone tip.
    (vi) Cock or rooster. A ``cock'' or ``rooster'' is an adult male 
chicken with coarse skin, toughened and darkened meat, and a 
nonflexible breastbone tip.
    (2) Turkeys--(i) Fryer-roaster turkey. A ``fryer-roaster turkey'' 
is an immature turkey (less than 12 weeks of age), of either sex, that 
is tender-meated with soft, pliable, smooth-textured skin, and flexible 
breastbone cartilage.
    (ii) Young turkey. A ``young turkey'' is a turkey (less than 6 
months of age), of either sex, that is tender-meated with soft, 
pliable, smooth-textured skin and breastbone cartilage that is less 
flexible than that of a fryer-roaster turkey.
    (iii) Yearling turkey. A ``yearling turkey'' is a turkey (less than 
15 months of age), of either sex, that is reasonably tender-meated with 
reasonably smooth-textured skin.
    (iv) Mature or old (hen or tom) turkey. A ``mature turkey'' or 
``old turkey'' is an adult turkey (more than 15 months of age), of 
either sex, with coarse skin and toughened flesh. Sex designation is 
optional.
    (3) Ducks--(i) Duckling. A ``duckling'' is a young duck (less than 
8 weeks of age), of either sex, that is tender-meated and has a soft 
bill and soft windpipe.
    (ii) Roaster duck. A ``roaster duck'' is a young duck (less than 16 
weeks of age), of either sex, that is tender-meated and has a bill that 
is not completely hardened and a windpipe that is easily dented.
    (iii) Mature duck or old duck. A ``mature duck'' or an ``old duck'' 
is an adult duck (more than 6 months of age), of either sex, with 
toughened flesh, a hardened bill, and a hardened windpipe.
    (4) Geese--(i) Young goose. A ``young goose'' is an immature goose, 
of either sex, that is tender-meated and has a windpipe that is easily 
dented.
    (ii) Mature goose or old goose. A ``mature goose'' or ``old goose'' 
is an adult goose, of either sex, that has toughened flesh and a 
hardened windpipe.
    (5) Guineas--(i) Young guinea. A ``young guinea'' is an immature 
guinea, of either sex, that is tender-meated and has a flexible 
breastbone cartilage.
    (ii) Mature guinea or old guinea. A ``mature guinea'' or ``old 
guinea'' is an adult guinea, of either sex, that has toughened flesh 
and a non-flexible breastbone.
* * * * *

    Done at Washington, DC, on September 24, 2003.
Linda Swacina,
Acting Administrator.
[FR Doc. 03-24536 Filed 9-26-03; 8:45 am]