[Federal Register Volume 60, Number 46 (Thursday, March 9, 1995)]
[Rules and Regulations]
[Pages 12883-12885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4500]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Rules 
and Regulations  

[[Page 12883]]

DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 317 and 381

[Docket No. 94-012F]


Incorporation by Reference; Updating of Text; Net Weight Labeling 
of Meat and Poultry Products

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Direct final rule.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the 
Federal meat and poultry products inspection regulations to update 
references to the National Institute of Standards and Technology (NIST) 
Handbook 133, ``Checking the Net Contents of Packaged Goods'' and NIST 
Handbook 44, ``Specifications, Tolerances and Other Technical 
Requirements for Measuring Devices.'' A 1994 edition of NIST Handbook 
44 was published in October 1993 and four supplements to NIST Handbook 
133 were published in September 1990, October 1991, October 1992, and 
October 1994, subsequent to their incorporation by reference in certain 
sections of the Federal meat and poultry products inspection 
regulations. FSIS is amending the provisions in its regulations that 
reference the publications to reflect the most recent edition of NIST 
Handbook 44 and the supplements to NIST Handbook 133.

DATES: This rule will be effective on May 8, 1995 unless we receive 
written adverse comments or written notice of intent to submit adverse 
comments on or before April 10, 1995.

ADDRESSES: Adverse comments or notice of intent to submit adverse 
comments should be sent in triplicate to Regulations Development, 
Policy, Evaluation and Planning Staff, Attention: Diane Moore, FSIS 
Docket Clerk, Food Safety and Inspection Service, Room 3171, South 
Agriculture Building, U.S. Department of Agriculture, Washington, DC 
20250. Comments should reference Docket No. 94-012F. All comments will 
be available for public inspection from 8:30 a.m. to 1 p.m. and 2 p.m. 
to 4:30 p.m., Monday through Friday, in Room 3171, South Agriculture 
Building, 14th and Independence Avenue SW., Washington, DC 20250.

FOR FURTHER INFORMATION CONTACT: Dr. Paula M. Cohen, Director, 
Regulations Development, Policy, Evaluation and Planning Staff, Food 
Safety and Inspection Service, U.S. Department of Agriculture, 
Washington, DC 20250, (202) 720-7164.

SUPPLEMENTARY INFORMATION:

Background

    Title 1 of the Code of Federal Regulations (1 CFR Part 51) requires 
that an Agency seeking approval of a change to a publication that is 
approved for incorporation by reference in the Code of Federal 
Regulations publish a notice of the change in the Federal Register and 
amend the Code of Federal Regulations. The Agency must also ensure that 
a copy of the amendment or revision is on file at the Office of the 
Federal Register and notify the Director of the Federal Register in 
writing that the change is being made.
    Accordingly, FSIS has reviewed the most recent publications, NIST 
Handbook 44 and supplements to NIST Handbook 133, pertaining to meat 
and meat food products and poultry and poultry products and FSIS' 
regulations that reference the Handbooks.
    The following is a summary of the changes to NIST Handbooks 44 and 
133 applicable to meat and poultry products.

NIST Handbook 44

    The changes to the General Scales Codes of NIST Handbook 44 from 
1990 through 1993 primarily recognize new features and capabilities of 
scales. These changes have the effect of giving scale manufacturers 
more flexibility in scale design and the ability to incorporate 
features that better meet the needs of the users. Although NIST 
Handbook 44 addresses a wide range of scales, the following summary 
describes the most significant changes to the Handbook as it applies to 
scales used to weigh meat and poultry products produced in meat and 
poultry establishments.
    The most significant change is recognition of the use of electronic 
forms of audit trails to provide security to scale adjustments rather 
than requiring the use of a physical security seal to indicate when 
access to metrological parameters has occurred. Another change allows 
scales to incorporate an ``initial zero-setting mechanism.'' The 
mechanism allows different types of scale platforms to be used while 
continuing to allow the scale to weigh to capacity. Marking 
requirements have been combined into a table format to make them more 
understandable and easily referenced. Additionally, automatic and semi-
automatic calibration of scales using an internal calibration weight 
are permitted provided the calibration mechanism or the calibration 
process do not facilitate inaccurate adjustments to the scale. Finally, 
tolerances for scales manufactured before 1986 have been consolidated, 
in table format, for easy reference.

NIST Handbook 133

    The changes to NIST Handbook 133 pertaining to meat and poultry 
products are primarily for clarification and consistency with the meat 
and poultry products inspection regulations. The following is a summary 
of the more significant changes to NIST Handbook 133 pertaining to meat 
and poultry products. The remaining changes were strictly editorial.
    1. The definition of ``used tare'' and ``dried used tare'' were 
made consistent with procedures for meat and poultry products that 
permit drying in a microwave oven.
    2. A reference to product for which no gray area has yet been 
determined was added.
    3. The reference to bacon with free-flowing liquid as 
``subquality'' was deleted.
    4. Group 5 Lower Limits for Individual Weights was changed to 1 
percent of labeled weight. The lower limit of 1.5 ounces for the 
largest weight of 160 ounces in Group 4 is equivalent to 0.94 percent 
of the labeled weight. A fixed lower limit of 2 ounces (or 4 ounces, 
depending upon the scale being used) in Group 5 (with labeled weight of 
160 ounces and up) is too small as a percentage of the labeled weights. 
For example, a lower limit of 2 ounces for [[Page 12884]] a labeled 
weight of 50 pounds is equivalent to 0.25 percent of the labeled 
weights.
    5. Revisions were made to indicate that packaging materials must be 
cleaned before weighing tare and to specify a zero gray area for bacon 
packages with no free-flowing liquid inside as well as packages with no 
absorbent material.
    6. Revisions were made to establish a definition of ``fresh 
poultry'' for net weight determinations and to clarify that the gray 
area should only be applied to raw, fresh poultry in retail packages 
when wet tare tests are conducted.
    7. Revisions were made to specify procedures for cleaning tare 
materials and to add a paragraph on the repackaging of packages opened 
for tare determination.
    8. A paragraph was added on procedures to follow when there is no 
free-flowing liquid or absorbent material in contact with the product.
    9. A paragraph was expanded to include testing of bacon, sausage, 
or luncheon meats with no free-flowing liquid or absorbent tare 
material.
    10. Revisions were made to reflect changes to the Category A 
sampling plans and to correct addresses and telephone numbers of FSIS 
regional offices.
    Copies of the 1994 Edition of the NIST Handbook 44, NIST Handbook 
133, and supplements to NIST Handbook 133 issued in September 1990, 
October 1991, October 1992, and October 1994, are on file at the Office 
of the Federal Register. Copies of the publications and supplements may 
be purchased from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402.

Effective Date

    We are publishing this rule without prior proposal because we view 
this action as noncontroversial and anticipate no adverse public 
comment. This rule will be effective, as published in this document, 60 
days after the date of publication in the Federal Register unless we 
receive written adverse comments or written notice of intent to submit 
adverse comments within 30 days of the date of publication of this rule 
in the Federal Register. Adverse comments are comments that suggest the 
rule should not be adopted or that suggest the rule should be changed.

Executive Order 12866

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

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule: (1) Preempts all 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 challenging this rule.
Effect on Small Entities

    The Administrator, FSIS, has determined that this rule will 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).

List of Subjects

9 CFR 317

    Incorporation by reference, Meat inspection, Net weight.

9 CFR 381

    Incorporation by reference, Poultry products inspection, Net 
weight.

    For the reasons set out in the preamble, 9 CFR parts 317 and 381 
are amended as set forth below.

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 2.17, 2.55.

    2. Section 317.19 is amended by revising the first sentence of 
paragraph (a) and by adding a new paragraph (c) to read as follows:


Sec. 317.19  Definitions and procedures for determining net weight 
compliance.

    (a) For the purpose of Secs. 317.18 through 317.22 of this part, 
the reasonable variations allowed, definitions, and procedures to be 
used in determining net weight and net weight compliance are described 
in the National Institute of Standards and Technology (NIST) Handbook 
133, ``Checking the Net Contents of Packaged Goods,'' Third Edition, 
September 1988, and Supplements 1, 2, 3, and 4 dated September 1990, 
October 1991, October 1992, and October 1994, respectively, which are 
incorporated by reference, with the exception of the NIST Handbook 133 
and Supplements 1, 3, and 4 requirements listed in paragraphs (b) and 
(c) of this section. * * *
    (b) * * *
    (c) The following requirements of Supplement 1, dated September 
1990, Supplement 3, dated October 1992, and Supplement 4, dated 1994, 
of NIST Handbook 133 are not incorporated by reference.
Supplement 1
Chapter 2  General Considerations
2.13.1. Polyethylene Sheeting and Film
2.13.2. Textiles
2.13.3. Mulch
Chapter 3  Methods of Test for Packages Labeled by Weight
3.11.4. Exhausting the Aerosol Container
Chapter 4  Methods of Test for Packages Labeled by Volume
4.6.4. Method D: Determining the Net Contents of Compressed Gas in 
Cylinders
4.7. Milk
4.16. Fresh Oysters Labeled by Volume
Chapter 5  Methods of Test for Packages Labeled by Count, Length, Area, 
Thickness, or Combinations of Quantities
5.4. Polyethylene Sheeting
Supplement 3
Chapter 3  Methods of Test for Packages Labeled by Weight
3.17. Flour and Dry Pet Food
Chapter 5  Methods of Test for Packages Labeled by Count, Length, Area, 
Thickness, or Combination of Quantities
5.4. Polyethylene Sheeting
5.5. Paper Plates
5.8. Baler Twine
Appendix A.  Forms and Worksheets
Supplement 4
3.11  Aerosol Packages
3.11.1  Equipment
3.11.2  Preparation for Test
3.11.3  The Determination of Net Contents: Part 1
3.11.4  Exhausting the Aerosol Container
3.11.5  The Determination of Net Contents: Part 2
Appendix A. Report Forms
    3. Section 317.20(a) is amended by revising the second sentence to 
read as follows:


Sec. 317.20  Scale requirements for accurate weights, repairs, 
adjustments, and replacement after inspection.

    (a) * * * Such scales shall meet the applicable requirements 
contained in National Institute of Standards and Technology Handbook 
44, ``Specifications, Tolerances and Other Technical Requirements for 
Weighing [[Page 12885]] and Measuring Devices,'' 1994 Edition, October 
1993, which is incorporated by reference. * * *
* * * * *

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

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

    Authority: 7 U.S.C. 450; 21 U.S.C. 451-470; 7 CFR 2.17, 2.55.

    5. Section 381.121b is amended by revising the first sentence of 
paragraph (a) and adding a new paragraph (c) to read as follows:


Sec. 381.121b  Definitions and procedures for determining net weight 
compliance.

    (a) For the purpose of Sec. 381.121b of this part, the reasonable 
variations allowed, definitions, and procedures to be used in 
determining net weight and net weight compliance are described in the 
National Institute of Standards and Technology (NIST) Handbook 133, 
``Checking the Net Contents of Packaged Goods,'' Third Edition, 
September 1988, and Supplements 1, 2, 3, and 4 dated September 1990, 
October 1991, October 1992, and October 1994, respectively, which are 
incorporated by reference, with the exception of the NIST Handbook 133 
and Supplements 1 and 3 requirements listed in paragraphs (b) and (c) 
of this section. * * *
    (b) * * *
    (c) The following requirements of Supplement 1 dated September 
1990, Supplement 3 dated October 1992, and Supplement 4 dated October 
1994, of NIST Handbook 133 are not incorporated by reference.
Supplement 1
Chapter 2  General Considerations
2.13.1. Polyethylene Sheeting and Film
2.13.2. Textiles
2.13.3. Mulch
Chapter 3  Methods of Test for Packages Labeled by Weight
3.11.4. Exhausting the Aerosol Container
Chapter 4  Methods of Test for Packages Labeled by Volume
4.6.4.  Method D: Determining the Net Contents of Compressed Gas in 
Cylinders
4.7. Milk
4.16. Fresh Oysters Labeled by Volume
Chapter 5  Methods of Test for Packages Labeled by Count, Length, Area, 
Thickness, or Combinations of Quantities
5.4. Polyethylene Sheeting
Supplement 3
Chapter 3  Methods of Test for Packages Labeled by Weight
3.17.  Flour and Dry Pet Food
Chapter 5  Methods of Test for Packages Labeled by Count, Length, Area, 
Thickness, or Combinations of Quantities
5.4. Polyethylene Sheeting
5.5. Paper Plates
5.8. Baler Twine
Appendix A. Forms and Worksheets
Supplement 4
3.11  Aerosol Packages
3.11.1  Equipment
3.11.2  Preparation for Test
3.11.3  The Determination of Net Contents: Part 1
3.11.4  Exhausting the Aerosol Container
3.11.5  The Determination of Net Contents: Part 2
Appendix A. Report Forms
    6. Section 381.121c(a) is amended by revising the second sentence 
to read as follows:


Sec. 381.121c  Scale requirements for accurate weights, repairs, 
adjustments, and replacement after inspection.

    (a) * * * 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,'' 1994 Edition, 
October 1993, which is incorporated by reference. * * *
* * * * *
    Done at Washington, DC, on: February 14, 1995.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 95-4500 Filed 3-8-95; 8:45 am]
BILLING CODE 3410-DM-P