[Federal Register Volume 84, Number 74 (Wednesday, April 17, 2019)]
[Proposed Rules]
[Pages 15989-15992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07634]


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 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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.
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  Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / 
Proposed Rules  

[[Page 15989]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 317 and 381

[Docket Number FSIS-2018-0012]
RIN 0583-AD71


Rescission of Dual Labeling Requirements for Certain Packages of 
Meat and 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 its labeling regulations to remove provisions that require 
packages of meat or poultry products that contain at least one pound or 
one pint, but less than four pounds or one gallon, to express the net 
weight or net contents in two different units of measurement on the 
product label. FSIS is taking this action in response to a petition 
submitted on behalf of a small meat processing establishment. After 
reviewing these provisions, FSIS has determined that it is not 
necessary for labels of any meat or poultry products to bear dual 
statements of weight or content, using more than one unit of 
measurement, to convey the accurate weight or amount of the product to 
consumers.

DATES: Comments must be received on or before June 17, 2019.

ADDRESSES: FSIS invites interested persons to submit comments on the 
proposed rule. Comments may be submitted by one of the following 
methods:
     Federal eRulemaking Portal: This website provides the 
ability to type short comments directly into the comment field on this 
web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for 
submitting comments.
     Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. 
Department of Agriculture, Food Safety and Inspection Service, 1400 
Independence Avenue SW, Mailstop 3758, Room 6065, Washington, DC 20250-
3700.
     Hand- or courier-delivered submittals: Deliver to 1400 
Independence Avenue SW, Room 6065, Washington, DC 20250-3700.
    Instructions: All items submitted by mail or electronic mail must 
include the Agency name and docket number FSIS-2018-0012. Comments 
received in response to this docket will be made available for public 
inspection and posted without change, including any personal 
information, to http://www.regulations.gov.
    Docket: For access to background documents or comments received, 
call (202) 720-5627 to schedule a time to visit the FSIS Docket Room at 
1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

FOR FURTHER INFORMATION CONTACT: Rosalyn Murphy-Jenkins, Director, 
Labeling and Program Delivery Division, Office of Policy and Program 
Development; Telephone: (301) 504-0878, Fax: (202) 245-4795

SUPPLEMENTARY INFORMATION: 

Background

    FSIS is the public health regulatory agency in the USDA that is 
responsible for ensuring that the nation's commercial supply of meat, 
poultry, and egg products is safe, wholesome, and accurately labeled 
and packaged. FSIS develops and implements regulations and policies to 
ensure that meat, poultry, and egg product labeling is not false or 
misleading.

Regulatory Reform

    On February 24, 2017, President Trump signed Executive Order (E.O.) 
13777, ``Enforcing the Regulatory Reform Agenda.'' Section 3(a) of the 
E.O. directs Federal agencies to establish a Regulatory Reform Task 
Force (Task Force). One of the duties of the USDA Task Force is to 
evaluate existing regulations and make recommendations to the Secretary 
of Agriculture for their repeal, replacement, or modification.
    To help the Task Force conduct their evaluation, the USDA published 
a proposed rule in the Federal Register (82 FR 32649, July 17, 2017) 
requesting ideas from the public on how the Department can provide 
better customer service and remove unintended barriers to participation 
in USDA programs. In response to the proposed rule, FSIS received a 
petition submitted on behalf of a small meat processing establishment 
requesting that FSIS rescind regulations (9 CFR 317.2(h)(5) and 
381.121(c)(5)) that require packages of meat and poultry products that 
contain at least one pound or pint, but less than four pounds or one 
gallon, to express the net weight or net contents as a ``dual 
declaration'' on the product label.
    Specifically, under the regulations at 9 CFR 317.2(h)(5) and 
381.121(c)(5), dual declaration is required to express the net weight 
in ounces and immediately thereafter in parentheses in pounds, with any 
remainder in terms of ounces or common or decimal fraction of the pound 
(e.g., ``Net Wt. 24 oz. (1 lb. 8 oz.), ``Net Wt. 24 oz. (1.5 lbs.)'' or 
``Net Wt. 24 oz. (1 \1/2\ lb.)''). For liquid measure, dual declaration 
is required to be expressed as the net content in fluid ounces and 
immediately thereafter in parentheses the largest whole U.S. customary 
unit (e.g., pints or, quarts, with any remainder expressed in terms of 
fluid ounces or common or decimal fraction of the pint or quart (e.g., 
``Net contents 32 fl oz. (1 QT)'' or ``Net contents 30 fl oz. (1 pint 
14 fl oz.)''). Packages of products that contain less than one pound or 
pint or that contain four pounds or one gallon or more are not subject 
to the ``dual declaration'' and may express the product's net weight or 
net content as a single, accurate statement.
    The petition stated that FSIS should eliminate the dual declaration 
requirements because meat and poultry products do not need to be 
labeled with dual statements of weight or content, using different 
units of measurement, to convey accurate weight or amount information 
to consumers. In addition, the petition stated that the labeling 
equipment needed to print labels with dual net weight statements can be 
more expensive than the equipment used to print labels with single net 
weight statements. According to the petition, the costs associated with 
the dual declaration labeling requirements may be stifling competition 
and limiting the ability of start-up and small producers to compete 
with large producers. The petition is available on FSIS's website at

[[Page 15990]]

https://www.fsis.usda.gov/wps/portal/fsis/topics/regulations/petitions.

Proposed Rule

    After reviewing the dual declaration labeling requirements, FSIS 
has determined that the corresponding sections in the regulations are 
unnecessary. FSIS is proposing to eliminate all of the provisions in 9 
CFR 317.2(h) and 381.121(c) that require or cross-reference dual net 
weight or content statements. Package labeling of meat or poultry 
products in amounts subject to the current requirements do not need 
dual statements of weight or content, using different units of 
measurement, to convey accurate weight or amount information to 
consumers. If this proposed rule becomes final, establishments that 
produce meat and poultry products in packages containing 1 pound or 1 
pint and less than 4 pounds or one gallon will be required to only 
express the weight or contents in one unit of measurement on the 
product label (e.g., ``Net Wt. 24 oz.'' or ``Net Wt. 1.5 lbs.'', rather 
than ``Net Wt. 24 oz. (1.5 lbs.)''). Establishments will be allowed to 
use their current labels until they run out, or may elect to use them 
indefinitely, as a matter of choice.
    FSIS did not find that the labeling equipment needed to print 
labels with dual net weight or content statements is more expensive 
than the equipment used to print labels with single net weight or 
content statements. FSIS is requesting comments on the costs associated 
with printing the dual declaration on labels.

Executive Orders 12866 and 13563, and the Regulatory Flexibility Act

    E.O.s 12866 and 13563 direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
benefits, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This proposed rule 
has been designated as a ``non-significant'' regulatory action under 
section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed 
by the Office of Management and Budget (OMB) under E.O. 12866.

Economic Impact Analysis

Baseline

    Currently, packages of meat or poultry products that contain at 
least one pound or one pint, but less than four pounds or one gallon, 
are required to express the net weight or content as a ``dual 
declaration'' (i.e., in both ounces and pounds or fluid ounces and 
pints, or quarts) on the product label, unless an exemption \1\ 
applies. According to 2015 Information Resources, Inc., (IRI) scanner 
data,\2\ about 31,679 FSIS regulated products in the retail market have 
a dual net weight or content statement on the label. About 62 percent 
(2,594/4,184) of FSIS regulated companies manufacture at least one 
product with a dual net weight or content statement, and over 35 
percent (1,500/4,184) of FSIS regulated companies manufacture products 
with both a dual and single net weight or content statement.
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    \1\ See 9 CFR 317.2(h)(9) and 381.121(h)(9) for the list of 
exemptions.
    \2\ IRI gathers data by scanners in supermarkets, drugstores, 
and mass merchandisers and maintains a panel of consumer households 
that record purchases at outlets by scanning UPC codes on the 
products purchased.
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Expected Cost Savings and Benefits Associated With the Proposed Rule

    The proposed amendments to 9 CFR 317.2(h)(5) and 9 CFR 
381.121(c)(5) remove the requirements for dual net weight or content 
statements on labels of meat and poultry products that contain at least 
one pound or one pint, but less than four pounds or one gallon. Under 
the proposed rule, all FSIS meat and poultry products would need to 
include only one unit of measurement in the net weight or content 
statement. Industry would benefit from consistent and more flexible net 
weight and content statement regulations across all FSIS meat and 
poultry products, especially start-up companies and companies with 
products having both single and dual net weight or content statements. 
Companies would no longer have to keep track of which products need to 
include a dual or single net weight or content declaration.
    The proposed changes would also clarify the net weight and content 
requirements for the industry and FSIS inspectors. When FSIS analyzed 
historical askFSIS \3\ data, it showed confusion surrounding the dual 
declaration net weight and content requirements. Industry often 
incorrectly interpreted the dual declaration net weight and content 
requirements as needing to include both the avoirdupois measure (ounces 
or pounds) and the metric measure (grams or kilograms) in the net 
weight or content statement. FSIS also received askFSIS questions about 
exemptions. For example, industry wanted to know if random weight 
packages, packages under one pound, and products sold for further 
processing were exempt from the dual declaration net weight and content 
requirements. The remaining questions sought formatting clarification 
on the order of the measurements and about the line spacing. Questions 
regarding the order sought clarification on which measurements should 
be listed first: Pounds or ounces, fluid ounces or pints or quarts. 
Industry also asked if the second net weight or content declaration 
could be listed on a separate line to better fit on labels. If the 
proposed changes are finalized, FSIS expects the net weight and content 
requirements will be clearer and there will be fewer askFSIS questions 
and less misunderstanding of the net weight and content requirements.
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    \3\ askFSIS is a web-based computer application, designed to 
help answer technical and policy-related questions from inspection 
program personnel, industry, consumer groups, other stakeholders, 
and the public.
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    Further, the likelihood of misprinted labels should decrease under 
the proposed rule. FSIS's Labeling and Program Delivery Staff (LPDS) 
evaluates sketches of labels \4\ through the Label Submission and 
Approval System (LSAS) prior to the associated labels entering the 
marketplace. According to 2017 LSAS data, LPDS approved twelve labels 
from eight firms contingent on correction of errors in the dual net 
weight statement. These labels would not have needed modifications to 
their net weight statement under the proposed changes.
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    \4\ LPDS evaluates four types of FSIS labels; (1) Labels for 
religious exempt products, (2) Labels for export with deviations 
from domestic requirements, (3) Labels with special statements and 
claims, and (4) Labels for temporary approval. All other labels can 
be generically approved. Additional information on generically 
approved labels is available here: https://www.fsis.usda.gov/wps/wcm/connect/bf170761-33e3-4a2d-8f86-940c2698e2c5/Label-Approval-Guide.pdf?MOD=AJPERES/.
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    In addition, removing the dual declaration requirements would free-
up a small amount of space on the principal display panel of labels. 
Switching from dual declarations to single declarations could also 
marginally decrease ink consumption for companies.
    FSIS did not find a price difference in capital printing equipment 
for complying with the dual declaration net weight or content 
statement. However, there is a price difference in scale-printing 
systems for printing a dual net weight or content statement versus a 
single statement. Companies typically use scale-printing systems to 
print net weight information on random weight packages (e.g., sliced 
turkey from a deli counter). Random weight packages with varying weight 
and with no fixed weight

[[Page 15991]]

pattern are currently exempt from the dual declaration net weight and 
content statement requirement. Therefore, the scale-printer cost 
discrepancies were not included in the cost analysis. FSIS seeks 
comment on capital costs for printing equipment for the dual 
declaration net weight and content statement.

Expected Costs Associated With the Proposed Rule

    There are no expected costs associated with this proposed rule. 
Companies that already have products labeled with the two measurements 
in the net weight or contents statement are not required to update 
their labels to a single net weight or contents statement.

Regulatory Flexibility Act Assessment

    The FSIS Administrator has made a preliminary 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). The proposed rule is not expected to 
increase costs to the industry.

Executive Order 13771

    Consistent with E.O. 13771 (82 FR 9339, February 3, 2017), FSIS has 
estimated that this proposed rule would yield qualitative cost savings. 
Therefore, if finalized as proposed, this rule is expected to be an 
E.O. 13771 deregulatory action.

Paperwork Reduction Act

    There are no new paperwork or recordkeeping requirements associated 
with this proposed rule under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520).

Executive Order 12988, Civil Justice Reform

    This proposed rule has been reviewed under E.O. 12988, Civil 
Justice Reform. Under this rule: (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 
administrative proceedings will be required before parties may file 
suit in court challenging this rule.

E-Government Act

    FSIS and USDA are committed to achieving the purposes of the E-
Government Act (44 U.S.C. 3601, et seq.) by, among other things, 
promoting the use of the internet and other information technologies 
and providing increased opportunities for citizen access to Government 
information and services, and for other purposes.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
E.O. 13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' E.O. 13175 requires Federal agencies to consult and 
coordinate with tribes on a government-to-government basis on policies 
that have tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes.
    FSIS has assessed the impact of this rule on Indian tribes and 
determined that this rule does not, to our knowledge, have tribal 
implications that require tribal consultation under E.O. 13175. If a 
Tribe requests consultation, FSIS will work with the Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions and modifications identified herein are not expressly 
mandated by Congress.

USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds 
of race, color, national origin, religion, sex, gender identity, sexual 
orientation, disability, age, marital status, family/parental status, 
income derived from a public assistance program, or political beliefs, 
exclude from participation in, deny the benefits of, or subject to 
discrimination any person in the United States under any program or 
activity conducted by the USDA.

How to File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program 
Discrimination Complaint Form, which may be accessed online at: http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your 
authorized representative. Send your completed complaint form or letter 
to USDA by mail, fax, or email:
    Mail: U.S. Department of Agriculture, Director, Office of 
Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.
    Fax: (202) 690-7442.
    Email: [email protected].
    Persons with disabilities who require alternative means for 
communication (Braille, large print, audiotape, etc.), should contact 
USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, FSIS will announce this Federal 
Register publication on-line through the FSIS web page located at: 
http://www.fsis.usda.gov/federal-register.
    FSIS also will make copies of this publication available through 
the FSIS Constituent Update, which is used to provide information 
regarding FSIS policies, procedures, regulations, Federal Register 
notices, FSIS public meetings, and other types of information that 
could affect or would be of interest to our constituents and 
stakeholders. The Constituent Update is available on the FSIS web page. 
Through the web page, FSIS is able to provide information to a much 
broader, more diverse audience. In addition, FSIS offers an email 
subscription service which provides automatic and customized access to 
selected food safety news and information. This service is available 
at: http://www.fsis.usda.gov/subscribe. Options range from recalls to 
export information, regulations, directives, and notices. Customers can 
add or delete subscriptions themselves, and have the option to password 
protect their accounts.

List of Subjects

9 CFR Part 317

    Food labeling, Food packaging, Meat inspection, Nutrition, 
Reporting and recordkeeping requirements.

9 CFR Part 381

    Administrative practice and procedure, Animal diseases, Crime, 
Exports, Food grades and standards, Food labeling, Food packaging, 
Government employees, Grant programs-agriculture, Intergovernmental 
relations, Laboratories, Meat inspection, Nutrition, Polychlorinated 
biphenyls (PCB's), Poultry and poultry products, Reporting and 
recordkeeping requirements, Seizures and forfeitures, Signs and 
symbols, Technical assistance, Transportation.
    For the reasons set out in the preamble, FSIS is proposing to amend 
9 CFR parts 317 and 381 as follows:

PART 317--LABELING, MARKING DEVICES, AND CONTAINERS

0
1. The authority citation for part 317 continues to read as follows:


[[Page 15992]]


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


Sec.  317.2  [Amended]

0
2. In Sec.  317.2:
0
a. Paragraph (h)(4) is amended by removing the phrase ``except as 
provided for in paragraph (h)(5) of this section for random weight 
packages; a declaration of 1\1/2\ pounds avoirdupois weight shall be 
expressed as `Net Wt. 24 oz. (1 lb. 8 oz.),' `Net Wt. 24 oz. (1\1/2\ 
lb.),' or `Net Wt. 24 oz. (1.5lbs).' '';
0
b. Paragraph (h)(5) is removed and reserved.
0
c. Paragraph (h)(9)(i) is amended by removing the phrase '', dual 
declaration,'' from the second and fourth sentences;
0
d. Paragraph (h)(9)(iii) is amended by removing the phrase ``, dual 
declaration,'';
0
e. Paragraphs (h)(9)(iv) and (v) are amended by removing the word 
``paragraphs'' and adding in its place ``paragraph'' and removing the 
phrase ``and (5)'';
0
f. Paragraph (h)(9)(v) is further amended by removing the phrase ``, 
and that the statement be expressed both in ounces and in pounds,''; 
and
0
g. Paragraph (h)(12) is amended by removing the phrase ``, except that 
such declaration of total quantity need not be followed by an 
additional parenthetical declaration in terms of the largest whole 
units and subdivisions thereof, as required by paragraph (h)(5) of this 
section''.

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

0
3. The authority citation for part 381 is revised to read as follows:

    Authority:  7 U.S.C. 138f, 1633; 21 U.S.C. 451-472; 7 CFR 2.7, 
2.18, 2.53.

0
4. In Sec.  381.121:
0
a. Paragraph (c)(5) is revised;
0
b. The first sentence in paragraph (c)(8) is amended by removing ``, 
except that such declaration of total quantity need not be followed by 
an additional parenthetical declaration in terms of the largest whole 
units and subdivisions thereof, as otherwise required by this paragraph 
(c)'';
0
c. Paragraph (c)(9)(i) is amended by removing the phrase '', dual 
declaration,'' from the second and fourth sentences; and
0
d. Paragraph (c)(9)(iii) is amended by removing the phrase ``, dual 
declaration,''.
    The revision reads as follows:


Sec.  381.121   Quantity of contents.

* * * * *
    (c) * * *
    (5) The terms ``net weight'' or ``net wt.'' shall be used when 
stating the net quantity of contents in terms of weight, and the term 
``net contents'' or ``contents'' when stating the net quantity of 
contents in terms of fluid measure. Except as provided in Sec.  
381.128, the statement shall be expressed in terms of avoirdupois 
weight or liquid measure. Where no general consumer usage to the 
contrary exists, the statement shall be in terms of liquid measure, if 
the product is liquid, or in terms of weight if the product is solid, 
semi-solid, viscous, or a mixture of solid and liquid.
* * * * *

    Done in Washington, DC.
Carmen M. Rottenberg,
Administrator.
[FR Doc. 2019-07634 Filed 4-16-19; 8:45 am]
 BILLING CODE 3410-DM-P