[Federal Register Volume 71, Number 59 (Tuesday, March 28, 2006)]
[Proposed Rules]
[Pages 15340-15343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4420]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 59 / Tuesday, March 28, 2006 / 
Proposed Rules  

[[Page 15340]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 317, 381, and 442

[Docket No. 04-041P; FDMS Docket Number FSIS-2005-0032]
RIN #0583-AD17


Determining Net Weight Compliance for Meat and Poultry Products

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: The Food Safety and Inspection Service (FSIS) is proposing to 
amend the Federal meat and poultry products inspection regulations in 
order that they reference the revised version of the National Institute 
of Standards and Technology (NIST) Handbook 133 that contains standards 
for determining the reasonable variations allowed for the declared net 
weight on labels of immediate containers of meat and poultry products; 
the procedures to be used to determine the net weight and net weight 
compliance of meat and poultry products; and related definitions. The 
Agency also is proposing to consolidate the separate net weight 
regulations for meat and poultry products in a new CFR part, applicable 
to both meat and poultry products.

DATES: Submit comments by May 30, 2006.

ADDRESSES: FSIS invites interested persons to submit comments on this 
proposed rule. Comments may be submitted by any of the following 
methods:
     Federal eRulemaking Portal: This Web site provides the 
ability to type short comments directly into the comment field on this 
Web page or attach a file for lengthier comments. FSIS prefers to 
receive comments through the Federal eRulemaking Portal. Go to 
http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Food Safety and Inspection Service'' from the agency drop-down 
menu, then click on ``Submit.'' In the Docket ID column, select FDMS 
Docket Number FSIS-2005-0032 to submit or view public comments and to 
view supporting and related materials available electronically.
     Mail, including floppy disks or CD-ROM's, and hand- or 
courier-delivered items: Send to Docket Clerk, U.S. Department of 
Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., 
Room 102 Cotton Annex, Washington, DC 20250.
     Electronic mail: [email protected].
    All submissions received by mail or electronic mail must include 
the Agency name and docket number 04-041P. All comments submitted in 
response to this proposal, as well as research and background 
information used by FSIS in developing this document, will be available 
for public inspection in the FSIS Docket Room at the address listed 
above between 8:30 a.m. and 4:30 p.m., Monday through Friday. Comments 
will also be posted on the Agency's Web site at 
http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp.

FOR FURTHER INFORMATION CONTACT: Robert C. Post, PhD, Director, 
Labeling and Consumer Protection Staff, Office of Policy, Program, and 
Employee Development, FSIS, by telephone at (202) 205-0279 or by fax at 
(202) 205-3625.

SUPPLEMENTARY INFORMATION:

Background

    FSIS administers the Federal Meat Inspection Act (FMIA) (21 U.S.C. 
601-695), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451-
470), and the regulations that implement these Acts. The FMIA and the 
PPIA require that packages of meat and poultry products bear an 
accurate statement of the quantity of their contents in terms of 
weight, measure, or numerical count (21 U.S.C. 601(n)(5) and 
453(b)(5)). The FMIA and PPIA also provide the Secretary of Agriculture 
with the authority to prescribe standards of fill of containers for 
such articles (21 U.S.C. 607(c)(2), 457 (b)(2)) that are not 
inconsistent with any such standards established under the Federal 
Food, Drug, and Cosmetic Act (21 U.S.C. 301-392). In implementing 
regulations, FSIS has elected to enforce these provisions of the Acts 
through the adoption of the NIST standards established for determining 
compliance with the net weight contents statement of packaged goods 
that are enumerated in NIST Handbook 133. Consequently, FSIS has 
incorporated, by reference, the appropriate NIST standards in the 
Federal meat and poultry inspection regulations.
    NIST was established by Congress in 1988 to assist industry in the 
development of technology to improve product quality, to modernize 
manufacturing processes, to ensure product reliability, and to 
facilitate rapid commercialization of products based on new scientific 
discoveries. NIST's basic functions include developing, maintaining, 
and retaining custody of the national standards of measurement and 
providing the means and methods for comparing standards used in 
science, engineering, manufacturing, commerce, industry, and education 
with the standards adopted or recognized by the Federal Government.
    NIST Handbook 133 is a procedural guide for compliance testing of 
net content statements on packaged goods. FSIS has elected to make 
mandatory the NIST standards in Handbook 133 regarding the 
determination of the reasonable variations allowed from the declared 
net weight on labels of immediate containers of meat and poultry 
products, the procedures to be used to determine net weight and net 
weight compliance for meat and poultry products, and related 
definitions. Consequently, FSIS currently incorporates, by reference, 
the NIST standards from Handbook 133 in its meat and poultry inspection 
regulations (9 CFR parts 317.18 through 317.22 and 381.121a through 
381.121e respectively). In January 2002, NIST issued a revised Handbook 
133. Therefore, it is necessary for FSIS to amend the meat and poultry 
inspection regulations to incorporate by reference the revised NIST 
Handbook 133 and the standards set forth in it regarding the 
determination of the reasonable variations allowed, definitions, and 
procedures used to determine net weight, and net weight compliance of 
packaged goods. The standards in revised Handbook 133 that are being 
proposed to be incorporated by

[[Page 15341]]

reference in FSIS' meat and poultry inspection regulations remain 
substantively unchanged from those currently incorporated by reference 
in FSIS' regulations.
    FSIS is also proposing to consolidate the separate net weight 
regulations for meat and poultry products in a new CFR part 442 that 
will be applicable to both meat and poultry products. Therefore, FSIS 
is proposing to move the provisions in Sec. Sec.  317.18 through 317.22 
and the provisions in Sec. Sec.  381.121a through 381.121e to new part 
442. Sections 317.20 and 381.121c incorporate NIST Handbook 44 by 
reference. Therefore, FSIS is proposing to move the provisions that 
incorporate NIST Handbook 44 by reference to new CFR part 442. FSIS is 
proposing to incorporate the same version of Handbook 44 that is 
currently incorporated by reference in the regulations: 
``Specifications, Tolerances, and Other Technical Requirements for 
Weighing and Measuring Devices,'' 1999 Edition, November 1988.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed 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) no retroactive proceedings will be required before 
parties may file suit in court challenging this rule.

Executive Order 12866 and the Regulatory Flexibility Act

    This proposed rule has been determined to be not significant and, 
therefore, has not been reviewed by the Office of Management and Budget 
(OMB).
    There are no costs associated with this proposal. The intent of 
this proposed rule is to amend the meat and poultry inspection 
regulations to incorporate by reference the standards in revised 
Handbook 133, which are not substantively changed from those in the 
version of Handbook 133 that is currently reflected in FSIS' meat and 
poultry inspection regulations regarding the procedures to be used to 
determine the net weight of, and net weight compliance for, meat and 
poultry products. In addition, FSIS is proposing to consolidate its 
meat and poultry net weight regulations into a new part 442 which will 
be applicable to both meat and poultry products.
    FSIS has made an initial determination that this proposed rule 
would 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 et seq.). The proposed rule reflects the recent changes in the NIST 
Handbook 133 standards for determining net weight compliance for meat 
and poultry products.

Paperwork Reduction Act

    This proposed rule has been reviewed under the Paperwork Reduction 
Act and imposes no new paperwork or record-keeping requirements. The 
information collection was approved under OMB number 0583-0094. This 
proposed rule contains no other paperwork requirements.

Government Paperwork Elimination Act (GPEA)

    FSIS is committed to compliance with the GPEA, which requires 
Government agencies, in general, to provide the public the option of 
communicating electronically with the government to the maximum extent 
possible. The Agency will ensure that all forms used by the 
establishments are made available electronically.

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 proposed rule, FSIS will announce it 
on-line through the FSIS Web page located at 
http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp.
    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://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, 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.
    In addition, FSIS offers an e-mail subscription service which 
provides an automatic and customized notification when popular pages 
are updated, including Federal Register publications and related 
documents. This service is available at 
http://www.fsis.usda.gov/news_and_events/email_subscription/ and allows 
FSIS customers to sign up for subscription options across eight categories. Options range from recalls to export information to regulations, directives and notices. 
Customers can add or delete subscriptions themselves and have the 
option to password protect their account.

List of Subjects

9 CFR Part 317

    Food labeling, Meat inspection.

9 CFR Part 381

    Food labeling, Poultry and poultry products.

9 CFR Part 424

    Food labeling, Incorporation by reference, Meat inspection, Poultry 
and poultry products.

    For the reasons discussed in the preamble, FSIS proposes to amend 9 
CFR Chapter III as follows:

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 2.18, 2.53.


Sec. Sec.  317.18 through 317.22  [Removed and Reserved].

    2. Remove and reserve Sec. Sec.  317.18 through 317.22.

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

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

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


Sec. Sec.  381.121a through 381.121e  [Removed and Reserved].

    4. Remove and reserve Sec. Sec.  381.121a through 381.121e.

[[Page 15342]]

Subchapter E--Regulatory Requirements Under the Federal Meat Inspection 
Act and the Poultry Products Inspection Act

    5. Subchapter E is amended by adding a new part 442 to read as 
follows:

PART 442--QUANTITY OF CONTENTS LABELING AND PROCEDURES AND 
REQUIREMENTS FOR ACCURATE WEIGHTS

Sec.
442.1 Quantity of contents labeling
442.2 Definitions and procedures for determining net weight 
compliance
442.3 Scale requirements for accurate weights, repairs, adjustments, 
and replacement after inspection
442.4 Testing of scales
442.5 Handling of failed product

    Authority: 21 U.S.C. 451-470, 601-695; 7 CFR 2.18, 2.53.


Sec.  442.1  Quantity of contents labeling.

    This part prescribes the procedures to be followed for determining 
net weight compliance and prescribes the reasonable variations allowed 
from the declared net weight on the labels of immediate containers of 
products in accordance with 9 CFR 317.2(c)(4), 317.2(h), and 381.121.


Sec.  442.2  Definitions and procedures for determining net weight 
compliance.

    (a) For the purpose of Sec.  442.1 of this part, the reasonable 
variations allowed, the definitions, and the procedures to be used in 
determining net weight and net weight compliance are presented in the 
National Institute of Standards and Technology (NIST) Handbook 133, 
``Checking the Net Contents of Packaged Goods,'' Fourth Edition, 
January 2002, which is incorporated by reference. Those provisions are 
considered mandatory requirements. This incorporation was approved by 
the Director of the Federal Register in accordance with 5 U.S.C. 552(a) 
and 1 CFR part 51. (These materials are incorporated as they exist on 
the date of approval.) A notice of any change in the Handbook cited 
herein will be published in the Federal Register. Copies may be 
purchased from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402. The incorporation information 
also is available for inspection at the Office of the Federal Register 
Information Center, 800 North Capitol Street, NW., suite 700, 
Washington, DC 20408.
    (b) The following NIST Handbook 133 requirements are not 
incorporated by reference.
Chapter 2--Basic Test Procedure--Gravimetric Testing
2.4 Borax
Chapter 3--Test Procedures--For Packages Labeled by Volume
3.5 Mayonnaise and Salad Dressing
3.7 Pressed and Blown Glass Tumblers and Stemware
3.8 Volumetric Test Procedures for Paint, Varnish, and Lacquers--Non 
Aerosol
3.9 Testing Viscous Materials--Such as Caulking Compounds and Pasters
3.10 Peat Moss
3.11 Mulch and Soils Labeled by Volume
3.12 Ice Cream Novelties
3.13 Fresh Oysters Labeled by Volume
3.14 Determining the Net Contents of Compressed Gas Cylinders
3.15 Volumetric Test Procedures for Packaged Firewood with a Labeled 
Volume of 133 L (4 Cu Ft) or Less
3.16 Boxed Firewood
3.17 Crosshatched Firewood
3.18 Bundles and Bags of Firewood
Chapter 4--Test Procedures--Packages Labeled by Count, Linear Measure, 
Area, Thickness, and Combinations of Quantities
4.5 Paper Plates and Sanitary Paper Products
4.6 Special Test Requirements for Packages Labeled by Linear or Square 
Measure (Area)
4.7 Polyethylene sheeting
4.8 Packages Labeled by Linear or Square (Area) Measure
4.9 Bailer Twine--Test Procedure for Length
4.10 Procedure for Checking the Area Measurement of Chamois

Sec.  442.3  Scale requirements for accurate weights, repairs, 
adjustments, and replacements after inspection.

    (a) All scales used to weigh meat and poultry products sold or 
otherwise distributed in commerce in federally inspected meat and 
poultry establishments will be installed, maintained, and operated in a 
manner that ensures accurate weights. 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,'' 1999 
Edition, November 1988, which is incorporated by reference. This 
incorporation was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. (These materials are 
incorporated as they exist on the date of approval.) A notice of any 
change in the Handbook cited here will be published in the Federal 
Register. Copies may be purchased from the Superintendent of Documents, 
Government Printing Office, Washington, DC 20402. The incorporation 
information also is available for inspection at the Office of the 
Federal Register Information Center, 800 North Capitol Street, NW., 
suite 700, Washington, DC 20408.
    (b) All scales used to weigh meat or poultry products sold or 
otherwise distributed in commerce or in States designated under section 
301(c) of the Federal Meat Inspection Act and section 5(c) of the 
Poultry Products Inspection Act shall be of sufficient capacity to 
weigh the entire unit or package.
    (c) No scale will be used at a federally inspected establishment to 
weigh meat or poultry products unless it has been found upon test and 
inspection, as specified in NIST Handbook 44 to provide accurate 
weight. If a scale is inspected or tested and found to be inaccurate, 
or if any repairs, adjustments, or replacements are made to a scale, it 
shall not be used until it has been reinspected and retested by a USDA 
official, or a State or local government weights and measures official, 
or a State registered or licensed scale repair firm or person, and it 
must meet all accuracy requirements as specified in NIST Handbook 44. 
If a USDA inspector has put a ``Retain'' tag on a scale, the tag can 
only be removed by a USDA inspector. As long as the tag is on the 
scale, it shall not be used.


Sec.  442.4  Testing of scales.

    (a) The operator of each official establishment that weighs meat or 
poultry food products will cause such scales to be tested for accuracy 
in accordance with the technical requirements of NIST Handbook 44, at 
least once during the calendar year. In cases where the scales are 
found not to maintain accuracy between tests, more frequent tests may 
be required and monitored by an authorized USDA program official.
    (b) The operator of each official establishment shall display on or 
near each scale a valid certification of the scale's accuracy from a 
State or local government's weights and measures authority or from a 
State registered or licensed scale repair firm or person, or shall have 
alternative documented procedures showing that the scale has been 
tested for accuracy in accordance with the requirements of NIST 
Handbook 44.


Sec.  442.5  Handling of failed product.

    Any lot of product that is found to be out of compliance with net 
weight requirements upon testing in accordance with the methods 
prescribed

[[Page 15343]]

in Sec.  442.2 of this subchapter shall be handled as follows;
    (a) A lot tested in an official establishment and found not to 
comply with net weight requirements may be reprocessed and must be 
reweighed and remarked to satisfy the net weight requirements of this 
section in accordance with the requirements of this part.
    (b) A lot tested outside an official establishment and found not to 
comply with net weight requirements must be reweighed and remarked with 
a proper net weight statement, provided that such reweighing and 
remarking will not deface, cover, or destroy any other marking or 
labeling required under this subchapter and the net quantity of 
contents is shown with the same prominence as the most conspicuous 
feature of a label.

    Done in Washington, DC, on March 22, 2006.
Barbara J. Masters,
Administrator.
[FR Doc. E6-4420 Filed 3-27-06; 8:45 am]
BILLING CODE 3410-DM-P