[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]