[Federal Register Volume 87, Number 158 (Wednesday, August 17, 2022)]
[Rules and Regulations]
[Pages 50553-50556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17498]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 158 / Wednesday, August 17, 2022 / 
Rules and Regulations  

[[Page 50553]]



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, Department of Agriculture 
(USDA).

ACTION: Final rule.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending 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 the 
regulatory provisions and the comments on the proposed rule to remove 
them, 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: Effective October 17, 2022.

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

SUPPLEMENTARY INFORMATION:

Executive Summary

    On April 17, 2019, FSIS proposed (84 FR 15989) to amend its 
labeling regulations to remove provisions that require packages of meat 
or 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 
content in two different units of measurement 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.
    FSIS published the proposed rule in response to a petition 
submitted on behalf of a small meat processing establishment. The 
petitioner contended that the dual weight labeling requirements were 
unnecessary and imposed disparate cost on small businesses. After 
reviewing the existing regulations, FSIS 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.
    This final rule adopts the requirements in its April 17, 2019 
proposed rule, but for a few non-substantive changes to the proposed 
regulatory language. Specifically, FSIS is revising the proposed 
regulatory language at 9 CFR 317.2(h)(4) and 9 CFR 381.121(c)(5), and 
revising, instead of removing, the language at 9 CFR 317.2(h)(5), to 
update the net weight statement examples and to preserve specific 
unrelated requirements associated with the labeling of random weight 
packages of meat and poultry that were inadvertently proposed for 
deletion. Otherwise, FSIS has reviewed the comments on the proposed 
rule and is finalizing it without changes related to the comments.

Responses to Comments

    FSIS received 22 comments on the proposed rule submitted by a small 
business advocacy group; a meat and poultry trade association; 
individuals, including students; a State association of agricultural 
commissioners; and a nonprofit weights and measures organization.
    Comment: FSIS received comments from individuals, including 
students, opposed to the proposal. According to these commenters, 
having to convert weight measurements from one unit of measurement to 
another would be inconvenient. The commenters supported dual weight 
labeling because of its convenience in calculating weights for recipes 
and in determining nutritional values and because, according to them, 
the dual weight requirement is helpful for people from other cultures. 
These commenters also questioned FSIS' analysis that found that the 
change would result in benefits for small businesses.
    Response: FSIS believes there are various options available to 
consumers today that allow for the conversion of weight measurements 
with minimal inconvenience or cost to consumers. Requiring two 
different units of measurement on the same product, for limited 
products, is unlikely to significantly help inform consumers of 
different cultural backgrounds about the weights of their purchases. As 
discussed elsewhere in this document, industry, including small 
businesses, should benefit from the flexibility offered by this change 
to the labeling regulations.
    Comment: FSIS received comments from a nonprofit and a State 
association that supported the proposal, noting that it makes FSIS' 
regulations more consistent with the Fair Packaging and Labeling Act 
(the FPLA, from which meat and poultry are exempt), which was amended 
in 1992 to eliminate the requirement for product weight labeling in 
pounds and ounces on consumer commodities. To further promote FPLA 
consistency, these comments recommended that FSIS:
     Require all meat and poultry weights be declared in 
largest whole units;

[[Page 50554]]

     Remove the requirement to include the words ``Net Weight'' 
or ``Net Wt.'' from avoirdupois \1\ net weight statements and remove 
``Net Contents'' and ``Net'' from liquid net weight statements, or as 
an alternative, allow the use of ``Net'' and ``Net Mass'' for 
avoirdupois net weight statements; and
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    \1\ Avoirdupois is a system of weights and measures that 
includes pounds and ounces.
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     Require that all meat and poultry weights be declared in 
both imperial \2\ and metric units,\3\ or, as an alternative, allow 
metric units instead of imperial units.
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    \2\ The imperial system is a system of weights and measures that 
includes pounds, ounces, feet, yards, and miles.
    \3\ The metric system is a system of weights and measures that 
includes meters, liters, and grams.
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    One commenter also proposed that the net weight statement be 
allowed in any order, regardless of the use of imperial or metric 
units.
    Response: In general, FSIS believes that the costs to industry from 
the additional requirements proposed by these commenters cannot be 
justified. Further, since 1966, meat and poultry product labeling are 
expressly exempted from the FPLA and the regulations issued thereunder. 
Thus, consistency between the FSIS labeling regulations and the FPLA is 
not required. Specifically, FSIS' net weight regulations already 
require that the ``largest whole unit'' be used for liquid weights to 
promote consistency on labeling due to the high number of volume 
measurements, for example, fluid ounce, cups, pints, quarts, and 
gallons, and will remain in use pursuant to 9 CFR 317.2(h)(5) and 
381.121(c)(5).
    FSIS is removing the dual declaration requirement for avoirdupois 
weight on packages weighing one pound to less than four pounds to allow 
for the use of either ounces or pounds alone or in a voluntary dual 
declaration format that allows for ounces and pounds to be listed in 
any order. Requiring the use of the ``largest whole unit'' for these 
packages would require that all such packages be declared in pounds 
first; therefore, that requirement would remove the compliance 
flexibility that FSIS is providing by removing the dual declaration 
requirement.
    Regarding the comments on net weight declaration, FSIS' position is 
that the terms ``Net Weight'', ``Net Wt.'', ``Net Contents'', and 
``Net'' are an integral part of the net weight statement that clarifies 
for consumers the weight of the product separate from its package, as 
well as from other voluntary weights that may be included on a label, 
such as the weight per piece. FSIS' net weight regulations do not 
require metric units. However, FSIS allows metric weights and measures 
in the net weight statement as voluntary information after the net 
weight information required by the regulations is declared. Changing 
the regulations to include metric weights and measurements and the term 
``Net Mass'' is outside the scope of this rule.

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 final 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

    FSIS has updated the final qualitative analysis to incorporate more 
recent data. The changes include: Updated estimates in the ``Baseline'' 
section with 2019 Information Resources, Inc (IRI) scanner data; and 
updated estimates in the ``Expected Benefits Associated with the Final 
Rule'' section with 2020 Label Submission and Approval System (LSAS) 
data.

Baseline

    Prior to the effective date of this final rule, FSIS' regulations 
required labeling on 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 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 \4\ applied. According to 
2019 IRI scanner data,\5\ about 30,758 FSIS regulated products in the 
retail market have a dual net weight or content statement on the label. 
About 55 percent (2,620/4,725) of FSIS regulated companies manufacture 
at least one product with a dual net weight or content statement, and 
about 31 percent (1,459/4,725) of FSIS regulated companies manufacture 
products with both a dual and single net weight or content statement.
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    \4\ See 9 CFR 317.2(h)(9) and 381.121(h)(9) for the list of 
exemptions.
    \5\ The analysis, findings, and conclusions expressed in this 
report should not be attributed to IRI. 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 Benefits Associated With the Final Rule

    The final regulatory 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 final rule, all FSIS meat and poultry products will need to include 
only one unit of measurement in the net weight or content statement. 
Industry will benefit from more flexible net weight and content 
statement regulations across all FSIS meat and poultry products, 
especially start-up companies and companies currently with products 
having both single and dual net weight or content statements. Companies 
will no longer have to keep track of which products need to include a 
dual or single net weight or content declaration.
    The final rule also clarifies the net weight and content 
requirements for the industry and FSIS inspectors. When FSIS analyzed 
historical askFSIS \6\ 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. Under the 
final rule, FSIS expects that the new net weight and content 
requirements will be

[[Page 50555]]

clearer for industry and FSIS inspectors and that there will be fewer 
askFSIS questions and less misunderstanding of the net weight and 
content requirements.
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    \6\ 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 final rule. FSIS' Labeling and Program Delivery Staff (LPDS) 
evaluates sketches of labels \7\ through the LSAS prior to the 
associated labels entering the marketplace. According to 2020 LSAS 
data, LPDS requested corrections of errors in the dual net weight 
statement for 48 labels from 27 firms. These labels would not have 
needed modifications to their net weight statement under this final 
rule.
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    \7\ 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 will 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 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. The Agency sought, but did not receive, comment on capital 
costs for printing equipment for the dual declaration net weight and 
content statement.

Expected Costs Associated With the Final Rule

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

Regulatory Flexibility Act Assessment

    The FSIS Administrator has made a determination that this final 
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). The final rule is not expected to increase costs to the 
industry.

Paperwork Reduction Act

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

Executive Order 12988, Civil Justice Reform

    This 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

    In accordance with Federal civil rights law and U.S. Department of 
Agriculture (USDA) civil rights regulations and policies, the USDA, its 
Agencies, offices, and employees, and institutions participating in or 
administering USDA programs are prohibited from discriminating based on 
race, color, national origin, religion, sex, gender identity (including 
gender expression), sexual orientation, disability, age, marital 
status, family/parental status, income derived from a public assistance 
program, political beliefs, or reprisal or retaliation for prior civil 
rights activity, in any program or activity conducted or funded by USDA 
(not all bases apply to all programs). Remedies and complaint filing 
deadlines vary by program or incident.
    Persons with disabilities who require alternative means of 
communication for program information (e.g., Braille, large print, 
audiotape, American Sign Language, etc.) should contact the responsible 
Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or 
contact USDA through the Federal Relay Service at (800) 877-8339. 
Additionally, program information may be made available in languages 
other than English.
    To file a program discrimination complaint, complete the USDA 
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and 
at any USDA office or write a letter addressed to USDA and provide in 
the letter all of the information requested in the form. To request a 
copy of the complaint form, call (866) 632-9992. Submit your completed 
form or letter to USDA by: (1) mail: U.S. Department of Agriculture, 
Office of the Assistant Secretary for Civil Rights, 1400 Independence 
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) 
email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

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: 
https://www.fsis.usda.gov/federal-register.
    FSIS also will make copies of this publication available through 
the FSIS Constituent Update, which is used to

[[Page 50556]]

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: https://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 amends 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:

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


Sec.  317.2   [Amended]

0
2. Amend Sec.  317.2 as follows:
0
a. In paragraph (h)(4), remove the phrase ``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. (1.5 
lbs.).'''' and add in its place ``a declaration of 1 \1/2\ pounds 
avoirdupois weight shall be expressed as ``Net Wt. 24 oz.,'' ``Net Wt. 
1 lb. 8 oz.,'' ``Net Wt. 1\1/2\ lb.,'' or ``Net Wt. 1.5 lbs.''.''.
0
b. In paragraph (h)(5), remove ``the statement shall be expressed as a 
dual declaration both in ounces and (immediately thereafter in 
parentheses) in pounds'' and add in its place ``the statement shall be 
expressed in ounces or in pounds''.
0
c. In paragraph (h)(9)(i), remove the phrase ``, dual declaration,'' 
from the second and fourth sentences;
0
d. In paragraph (h)(9)(iii), remove the phrase ``, dual declaration,'';
0
e. In paragraph (h)(9)(iv), remove ``paragraphs (h) (3) and (5)'' and 
add in its place ``paragraph (h)(3)'';
0
f. In paragraph (h)(9)(v), remove ``paragraphs (h)(3) and (h)(5)'' and 
add in its place ``paragraph (h)(3)'' and remove the phrase ``, and 
that the statement be expressed both in ounces and in pounds,'';
0
g. In paragraph (h)(12), remove 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. Amend Sec.  381.121 as follows:
0
a. Paragraph (c)(5) is revised.
0
b. In paragraph (c)(8), remove ``, 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)'' from the first 
sentence;
0
c. In paragraph (c)(9)(i), remove the phrase ``, dual declaration,'' 
from the second and fourth sentences; and
0
d. In paragraph (c)(9)(iii), remove 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. On packages 
containing less than 1 pound or 1 pint, the statement shall be 
expressed in ounces or fractions of a pint, respectively. On packages 
containing 1 pound or 1 pint or more, and less than 4 pounds or 1 
gallon, the statement shall be expressed in ounces or in pounds with 
any remainder in terms of ounces or common or decimal fraction of the 
pound, or in the case of liquid measure, in the largest whole units 
with any remainder in terms of fluid ounces or common or decimal 
fraction of the pint or quart. For example, a declaration of three-
fourths pound avoirdupois weight shall be expressed as ``Net Wt. 12 
oz.''; a declaration of 1\1/2\ pounds avoirdupois weight shall be 
expressed as ``Net Wt. 24 oz.,'' ``Net Wt. 1 lb. 8 oz.,'' ``Net Wt. 
1\1/2\ lb.,'' or ``Net Wt. 1.5 lbs.''. However, on random weight 
packages the statement shall be expressed in terms of pounds and 
decimal fractions of the pound, for packages over 1 pound, and for 
packages which do not exceed 1 pound the statement may be in decimal 
fractions of the pound in lieu of ounces. The numbers may be written in 
provided the unit designation is printed. Paragraphs (c)(8) and (9) of 
this section permit certain exceptions to this paragraph (c)(5) for 
multi-unit packages, and random weight consumer size and small packages 
(less than \1/2\ ounce), respectively.
* * * * *

    Done in Washington, DC.
Paul Kiecker,
Administrator.
[FR Doc. 2022-17498 Filed 8-16-22; 8:45 am]
BILLING CODE 3410-DM-P