[Federal Register Volume 63, Number 45 (Monday, March 9, 1998)]
[Rules and Regulations]
[Pages 11359-11361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5987]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 63, No. 45 / Monday, March 9, 1998 / Rules 
and Regulations  

[[Page 11359]]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 381

[Docket No. 96-007F]
RIN 0583-AC17


Use of Two Kinds of Poultry Without Label Change

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the 
poultry products inspection regulations by adding a provision to permit 
manufacturers of poultry products to interchange the amounts and kinds 
of poultry, within specified limits, in a product without requiring 
that each such formulation change have a separate label. The provision 
applies in situations where two kinds of poultry make up at least 70 
percent of the poultry and poultry ingredients used in the product 
formulation and neither of the two kinds of poultry used constitute 
less than 30 percent of the poultry and poultry ingredients used. In 
these situations, one label with the word ``and'' instead of a comma 
between the names of each of the kinds of poultry in the ingredients 
statement, and in the product name, indicates to consumers that the 
order of predominance of the two kinds of poultry may be interchanged. 
This action is designed to provide consistent provisions for meat and 
poultry products.

EFFECTIVE DATE: May 8, 1998.

FOR FURTHER INFORMATION CONTACT: Robert Post, Director, Labeling and 
Compounds Review Division, Office of Policy, Program Development, and 
Evaluation, FSIS, (202) 418-8900.

SUPPLEMENTARY INFORMATION:

Background

    FSIS, in response to a petition by Judith Quick and Associates 
dated March 25, 1995, published in the Federal Register on December 27, 
1996, a proposed rule to amend the poultry products inspection 
regulations (61 FR 68167). FSIS proposed to permit the interchange of 
the amounts of two kinds of poultry within specific limits so that 
poultry product manufacturers would not have to modify the product 
label if they change the product formulation within those limits. When 
adopted, this change will make the poultry regulations and the meat 
regulations more consistent.
    Presently, the Federal meat inspection regulations provide that 
when two red meat species comprise at least 70 percent of the meat and 
meat byproduct ingredients of a product formulation, and when neither 
of the two red meat species constitutes less than 30 percent of the 
total weight of the meat and meat byproducts used, the red meat species 
may be interchanged in the product formulation without a change being 
made in the label ingredients statement, provided that the word ``and'' 
in lieu of a comma is inserted between the declaration of the red meat 
species in the ingredients statement (9 CFR 317.2(f)(1)(v)). (Meat 
byproduct ingredients are any parts of a meat animal carcass that are 
capable of use as human food other than meat.) This provision for red 
meat was promulgated in response to an industry request to allow red 
meat processors to utilize different amounts of meat ingredients 
without having to develop and maintain a large inventory of labels with 
different ingredients statements. This flexibility of ingredients 
permits processors to utilize whatever species of red meat is least 
expensive at the time they are producing the product. At the time, USDA 
did not include poultry in the coverage of this provision because the 
poultry industry was not producing further processed poultry products 
using different poultry kinds on a very widespread scale. Conditions 
have changed in the poultry industry, however, and FSIS is now 
extending this labeling flexibility to poultry and poultry ingredients. 
(Poultry ingredients include such products as giblets, skin, or fat in 
excess of natural proportions and Mechanically Separated (Kind of 
Poultry))(MS(K)).

Discussion of the Effect of the Rule

    Although the action that FSIS is announcing in this final rule is 
simple, it is easy to misunderstand. Section 381.118(f), which the 
Agency is adopting, applies to a poultry product in which, first, at 
least 70 percent of the poultry (e.g., chicken, turkey, chicken meat, 
turkey meat) and poultry ingredients (such as giblets, skin and fat in 
excess of natural proportions and mechanically separated (kind)) 
consists of two kinds of poultry, exclusive of poultry ingredients; 
and, second, when neither of the two kinds of poultry, exclusive of 
poultry ingredients, constitute less than 30 percent of the poultry and 
poultry ingredients.
    As an example, let us consider a simplified product consisting of 
29 percent chicken, 28 percent turkey, 22 percent mechanically 
separated chicken (i.e., a poultry ingredient), and 21 percent peas. 
The peas can be disregarded, since the rule applies only to the poultry 
and poultry ingredients. The chicken and turkey together comprise 57/79 
of the total of the poultry and poultry ingredients. This is 
approximately 72 percent. Because the two kinds of poultry (chicken and 
turkey) are over 70%, the product meets the first requirement. The 
chicken is approximately 37 percent of the poultry and poultry 
ingredients and the turkey is approximately 35 percent. Hence, they 
both meet the second requirement of being greater than 30 percent of 
the poultry and poultry ingredients. Therefore, this product could be 
named ``Chicken and Turkey with Peas'' and the ingredient statement 
would read, in order of predominance as required: ``Chicken and turkey, 
mechanically separated chicken, and peas.''
    As mentioned above, the poultry ingredients are included in the 
total amount of poultry and poultry ingredients. However, poultry 
ingredients must constitute no more than 30 percent of this amount, 
since 70 percent must be the two kinds of poultry. In addition, all the 
poultry ingredients must be listed separately in the ingredients 
statement, including the mechanically separated (kind) in accordance 
with the November 3, 1995, regulatory change in the poultry products 
inspection regulations (9 CFR 381.117(e)), (60 FR 55962).
    In poultry products, the two kinds of poultry that are most often 
used are

[[Page 11360]]

chicken and turkey. Because chicken is generally less costly than 
turkey, the use and applicability of this rule by poultry processors is 
limited. But it will be useful in the management of stock on hand to 
assure that inventory is used in a rational manner without numerous 
label adjustments. It should also protect the integrity of labeling and 
assure the consumer of a reasonable standard of consistency in the 
product name and list of ingredients.

Comments

    FSIS received seven comments in response to the proposed rule--two 
from industry members and five from trade associations. Overall, the 
comments were in full support of the flexibility provided by the 
proposal. However, all but one suggested changes that they thought 
would make the rule more effective.
    Most of the comments agreed that the 70/30 flexibility permitted by 
this rule (denoted by the use of the word ``and'') was needed in the 
product name as well as the ingredients statement. Otherwise, they 
pointed out, no benefit would be achieved with this regulatory change.
    The Agency agrees with the comments, and thus it has provided in 
Sec. 381.118(f) for the use of ``and'' in the product's name as well as 
in the ingredient statement.
    Several comments stated that mechanically separated (kind) (MS(K)) 
poultry (i.e., a poultry ingredient) should be permitted as part of the 
two kinds of poultry. One comment suggested that, at the time of the 
petition for this rule change, the standard of identity had not been 
established for MS(K). Therefore, the petitioner would not have had 
reason to request the explicit inclusion of MS(K) in the petition. 
Further, it was suggested that the exclusion of MS(K) would undermine 
the original intent of the petition and limit the application of this 
provision so severely that the goals of the petition would not be 
achieved. Several other comments wanted clarification in the final rule 
whether MS(K) was permitted as part of the two kinds of poultry.
    The purpose of the rule is to make the meat and poultry regulations 
parallel with regard to this 70/30 provision. Inasmuch as mechanically 
separated (species) (MS(S)), the red meat food product equivalent to 
MS(K), cannot be used to fulfill the red ``meat'' requirements under 
current regulations, MS(K), a poultry food product, cannot be used to 
fulfill the ``poultry'' requirement. In the proposed rule, FSIS 
specifically used MS(K) as an example of ``poultry ingredients'' 
(December 13, 1996, 61 FR 68167, 68168). Because MS(K) is a poultry 
food product and not ``poultry,'' it cannot be used to fulfill the 
poultry kind requirement.
    Many of the comments suggested that rule permit the use of kinds of 
poultry and red meat species so that both meat and poultry, e.g., 
``beef and chicken'' could be used in the 70/30 combination. The 
original petitioner did not request the flexibility to vary the amounts 
of meat species and poultry kinds in a product. Thus, this request is 
outside the scope of the proposed rule and this final rulemaking. 
Furthermore, the Agency has no information as to consumer expectations 
for this suggested type of flexibility using both meat and poultry 
without requiring each formulation change to have a separate label. 
Lastly, this type of flexibility could affect the appropriateness of 
the meat or poultry inspection legend on the label and raise standard 
questions and requirements as to temperatures for specific meat and 
poultry products. Thus, this type of suggested flexibility will need to 
wait for further integration of the meat and poultry regulations.
    Some commenters requested that the lower level of poultry kind be 
changed to 20 percent and some requested the change be expanded to 80 
percent/20 percent flexibility. The 20 percent lower level suggestion 
was obtained from FSIS Policy Memos 029 and 030A entitled ``Labeling 
Poultry Products Containing Livestock Ingredients,'' and ``Labeling 
Meat Products Containing Poultry Ingredients,'' respectively. The 
purpose of the policy memos was to distinguish between when a 
``species'' or ``kind'' identification is needed as part of the product 
name as opposed to being used as a product name qualifier. The use of 
20 percent of one kind of poultry either in a 70/20 flexibility or in 
an 80 percent/20 percent flexibility, could disrupt the order of 
predominance of the ingredients in the ingredient statement and could 
confound consumer expectations, since the Agency has no data on that 
subject and none were submitted to support this change.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. If this 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) 
administrative proceedings will not be required before parties may file 
suit in court challenging this rule. Executive Order 12866 and the 
Regulatory Flexibility Act.
    This rule has been determined to be not significant under Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    The Administrator has made an initial determination that this 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 rule will provide flexibility in the amount and kinds of poultry 
that may be used in a formulation without having to change product 
labels.

Paperwork Requirements

    Any paperwork requirements are approved under OMB Control No. 0583-
0092.

List of Subjects in 9 CFR Part 381

    Food labeling, Meat inspection, Poultry and poultry products.

    For the reasons discussed in the preamble, part 381 of the poultry 
products inspection regulations (9 CFR 381) is amended as follows:

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

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

    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 381.118 is amended by adding a new paragraph (f) to read 
as follows:


Sec. 381.118  Ingredients statement.

* * * * *
    (f) Establishments may interchange the identity of two kinds of 
poultry (e.g., chicken and turkey, chicken meat and turkey meat) used 
in a product formulation without changing the product's ingredient 
statement or product name under the following conditions:
    (1)(i) The two kinds of poultry used must comprise at least 70 
percent by weight of the poultry and the poultry ingredients [e.g. 
giblets, skin or fat in excess of natural proportions, or mechanically 
separated (kind)] used; and,
    (ii) Neither of the two kinds of poultry used can be less than 30 
percent by weight of the total poultry and poultry ingredients used;
    (2) The word ``and'' in lieu of a comma must be shown between the 
declaration of the two kinds of poultry in the ingredients statement 
and in the product name.


[[Page 11361]]


    Done at Washington, DC, on March 2, 1998.
Thomas J. Billy,
Administrator.
[FR Doc. 98-5987 Filed 3-6-98; 8:45 am]
BILLING CODE 3410-DM-P