`[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Rules and Regulations]
[Pages 52189-52193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20559]


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DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 317, 381, and 442

[Docket No. FSIS-2008-0015]
RIN  0583-AD17


Determining Net Weight Compliance for Meat and Poultry Products

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending its 
regulations to reference the most recent 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 is also consolidating the separate net weight 
regulations for meat and poultry products in a new CFR part, applicable 
to both meat and poultry products.
    This final rule does not incorporate by reference sections in 
Handbook 133 that concern the ``wet tare'' method for determining net 
weight. The ``wet tare'' method does not include free-flowing liquid as 
part of the product but as part of the tare weight. The Agency regards 
any solutions that are added to meat or poultry to be part of the 
product and considers free-flowing liquids to be an integral component 
of these products, and therefore uses the ``dry tare'', not the ``wet 
tare'' method.

DATES: Effective Date: This regulation is effective October 9, 2008. 
The incorporation by reference of the NIST Handbook 133, Fourth 
Edition, is approved by the Director of the Federal Register as of 
October 9, 2008.

FOR FURTHER INFORMATION CONTACT: Charles Gioglio, Director, Labeling 
and Program Delivery Division, Food Safety and Inspection Service, U.S. 
Department of Agriculture, Washington, DC 20250-3700; (202) 205-0010.

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 adopt the relevant 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 certain 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 regulations. The 
Agency first incorporated NIST Handbook 133 by reference in

[[Page 52190]]

November 1990 (FR 55 49826) as instructions to inspection personnel for 
determining net weight compliance. In January 2005, NIST published a 
revised edition of Handbook 133.
    On March 28, 2006, FSIS published a proposed rule in the Federal 
Register to amend the Federal meat and poultry products inspection 
regulations to reference the most recent version of NIST Handbook 133, 
which contains standards for determining reasonable variations allowed 
for the declared net weight on labels of immediate containers of meat 
and poultry products; the procedures used to determine the net weight 
and the net weight compliance of meat and poultry products; and related 
definitions (71 FR 15340). The Agency also proposed to consolidate the 
separate net weight regulations for meat and poultry products in a new 
CFR part applicable to both meat and poultry products. On April 19, 
2006, FSIS published a technical correction to the proposed rule to 
reference the NIST Handbook 133 dated January 2005 (71 FR 20041). The 
proposed rule incorrectly referenced the NIST Handbook 133 dated 
January 2002.
    This final rule is consistent with the proposed rule. However, the 
rule proposed to incorporate by reference tare procedures and 
definitions in NIST Handbook 133 that concern the ``wet tare'' method. 
After considering the comments on the proposed rule, FSIS has decided 
not to incorporate by reference sections in Handbook 133 that concern 
the ``wet tare'' method for determining net weight. As explained below, 
these sections are not relevant to how FSIS enforces the FMIA and the 
PPIA, and therefore there is no reason to incorporate them. Also in 
response to comments, 9 CFR 442.3 has been modified to refer to scales 
used to determine the net weight of meat and poultry products. FSIS 
made this change to clarify the regulations.

Comments and Responses

    FSIS received 5 comments in response to the March 28, 2006, 
proposed rule. Four comments were from meat and poultry trade 
associations. One of those comments was jointly submitted by six trade 
associations. One comment was from an individual. The trade 
associations, in general, supported the incorporation of the NIST 
Handbook 133 by reference and combining and consolidating the meat and 
poultry net weight provisions into one part. The comment from the 
individual opposed using any standards referenced in another document.
    Comment: One comment stated that while the proposed rule was 
intended to simply update the regulations to incorporate the current 
edition of the NIST Handbook 133, FSIS should take the opportunity to 
underscore the guidance that the Agency has communicated concerning how 
to account for free-flowing liquid that is contained within the 
packaging of meat and poultry products.
    Three comments, including two petitions that the Agency is treating 
as comments, stated that by referencing the NIST Handbook 133 ``wet 
tare'' procedures, the Agency is continuing to incorporate 
inconsistencies and should remove the conflicting reference.
    Response: FSIS agrees that the regulations should be modified to 
remove references to the ``wet tare'' method for determining net weight 
compliance.
    The ``tare weight'' is ``the weight of a container, wrapper, or 
other material that is deducted from the gross weight to obtain the net 
weight.'' FSIS regards any solutions that are added to meat or poultry, 
or into which the meat or poultry is placed for flavoring, seasoning, 
or tenderizing, to be part of the product. Similarly, FSIS considers 
free-flowing liquids in packages of meat and poultry products to be 
integral components of these products. Therefore, when FSIS inspectors 
determine net weight compliance in official establishments, inspectors 
include any free flowing liquid contained in the packaging. This method 
of determining net weight is called a ``dry tare'' method. When net 
weight is determined based on a dry tare method, the gross weight of 
the product includes free-flowing liquid and excludes the dry or dried 
packaging material.
    The NIST Handbook 133 describes ``Tare Procedures,'' in Chapter 2, 
Section 2.3 ``Basic Test Procedure.'' In this section there are two 
methods for determining the dry tare of products, the ``used'' and 
``unused'' methods. The ``used dry tare'' method considers the actual 
packaging material the product was removed from to be tare. The 
``unused dry tare'' method is used for testing packages in retail store 
locations where they are packaged and allows samples of the packaging 
material available in the store to be considered tare. FSIS inspectors 
use the used dry tare method, but both dry tare methods are consistent 
with FSIS' position concerning product net weight. In determining net 
weight of meat or poultry products, both dry tare methods include the 
free flowing liquids in product packages.
    The Tare Procedures section of Handbook 133 also describes the 
``wet tare'' method for determining net weight compliance. The ``wet 
tare'' method does not include free-flowing liquids as part of the 
product but as part of the tare weight. As stated previously, FSIS 
considers free-flowing liquid part of the product and does not use the 
``wet tare'' for determining net weight compliance.
    After considering the comments received, FSIS agrees that it makes 
little sense to incorporate a method that it does not use. Doing so 
only creates confusion and ambiguity about what method is used by FSIS. 
Consequently, FSIS is modifying the regulations so that the references 
to the ``wet tare'' method for determining net weight compliance in 
NIST Handbook 133 are not incorporated by reference. As previously 
stated, the Agency considers the free-flowing liquids in packages of 
meat and poultry products, including single-ingredient, raw poultry 
products, to be integral components of these products.
    Although State and county government officials have concurrent 
authority to enforce net weight requirements for meat and poultry 
products at the local level, they must do so in a manner that does not 
conflict with Federal requirements. Under 21 U.S.C. 678 and 476e, 
marking, labeling, packaging, or ingredient requirements in addition 
to, or different than, those made under the FMIA or PPIA may not be 
imposed by any State or Territory or the District of Columbia with 
respect to articles prepared at any establishment under inspection. To 
be consistent with this final rule, State and local officials must 
determine net weight compliance for meat and poultry products, 
including single-ingredient, raw poultry, in a manner that includes the 
free flowing liquids as part of the product and not part of the tare 
weight.
    Comment: One comment requested that the regulation pertaining to 
scale requirements, 9 CFR 442.3(a), be amended to clarify the 
definition and intent of ``all scales'' to say ``scales used to weigh 
meat and poultry products in compliance with NIST Handbook 133.'' The 
comment also requested that the scale testing regulation be amended to 
clarify that ``any repairs, adjustments, or replacements'' that require 
reinspection and retesting are those ``repairs, adjustments, or 
replacements'' affecting the accuracy of the scale. In addition, the 
comment requested clarification as to the identity of the ``USDA 
official'' who would be authorized to reinspect and retest a repaired 
scale.
    Response: FSIS agrees that 9 CFR 442.3 should be clarified to refer 
to the

[[Page 52191]]

scales that are used to weigh meat and poultry products for net weight 
compliance. Therefore, FSIS has amended the regulation (9 CFR 442.3(a), 
(b), and (c)) to refer to ``scales used to determine the net weight of 
meat and poultry products.''
    Regarding the comment to clarify that only repairs, adjustments, or 
replacements that affect accuracy need to be reinspected and retested 
before the scale can be used, FSIS cannot adequately specify in the 
regulations that repairs, adjustments, or replacements will or will not 
affect accuracy. If a scale needs a battery replacement, computer 
program upgrade, or new cord installation, there is no way to determine 
whether the repairs, adjustments, or replacements affect the accuracy 
of the scale without retesting or reinspecting the scale. Therefore, 
FSIS is not amending 9 CFR 442.3(a) in response to the comment.
    FSIS also is not amending the regulations to specify which USDA 
officials are authorized to reinspect and retest a scale that has been 
found inaccurate, repaired, adjusted, or replaced. The Agency requires 
flexibility in determining who is available and qualified to reinspect 
and retest scales used to weigh meat or poultry products at federally 
inspected establishments.
    Comment: Two comments agreed with the proposed changes and 
requested that FSIS use this opportunity to provide a more complete 
explanation as to the procedural nature of NIST Handbook 133, and that 
it cannot serve as a compliance document.
    Response: FSIS' net weight regulations (9 CFR 317.18-317.22 and 
381.121a-381.121e) state that the procedures set forth are for 
determining ``net weight compliance.'' This final rule incorporates the 
relevant parts of the latest edition of the NIST Handbook 133 into FSIS 
regulations. Therefore, the incorporated provisions of NIST Handbook 
133 do not serve merely as compliance guidance but are in fact made 
part of the meat and poultry products inspection regulations.
    Comment: One comment objected to the use of standards that are not 
specifically listed in the regulation but are in a referenced 
publication that is not publicly available.
    Response: FSIS does not agree with this comment. The NIST Handbook 
133 is available to the public via the National Institute of Standards 
and Technology Web site http://ts.nist.gov/WeightsAndMeasures/h1334-05.cfm.
    In addition, the regulations provide that a notice of any change in 
the Handbook cited therein will be published in the Federal Register.

Executive Order 12988

    This final rule has been reviewed under the Executive Order 12988, 
Civil Justice Reform. Under this final 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 retroactive proceedings will be required before parties may file 
suit in court challenging this rule.

Executive Order 12866 and the Regulatory Flexibility Act

    This final rule has been reviewed under Executive Order 12866. The 
rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget (OMB).
    There are no costs associated with this final rule. The intent of 
this final rule is to amend the meat and poultry inspection regulations 
to incorporate by reference the relevant 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, this final rule consolidates the meat and 
poultry net weight regulations into a new 9 CFR part 442 which will be 
applicable to both meat and poultry products.

Effect on Small Entities

    FSIS has determined that this final 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 final rule reflects an updated version of the NIST Handbook 133 
standards for determining net weight compliance for meat and poultry 
products.

Paperwork Reduction Act

    This final rule has been reviewed under the Paperwork Reduction Act 
and imposes no new paperwork or recordkeeping 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 
minorities, women, and persons with disabilities are aware of this 
final rule, FSIS will announce it online through the FSIS Web page 
located at http://www.fsis.usda.gov/regulations_&_policies/2008_Interim_&_Final_Rules_Index/index.asp. FSIS will also 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, FSIS 
public meetings, and other types of information that could affect or 
would be of interest to constituents and stakeholders. The Update is 
communicated via Listserv, a free electronic mail subscription service 
for industry, trade groups, consumer interest groups, health 
professionals, and other individuals who have asked to be included. The 
Update is also available on the FSIS Web page. Through the Listserv and 
Web page, FSIS is able to provide information to a much broader and 
more diverse audience. In addition, FSIS offers an e-mail 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/news_and_events/email_subscription/. 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 accounts.

List of Subjects

9 CFR Part 317

    Food labeling, Meat inspection.

9 CFR Part 381

    Food labeling, Poultry and poultry products.

9 CFR Part 442

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

0
For the reasons discussed in the preamble, FSIS is amending 9 CFR 
Chapter III as follows:

[[Page 52192]]

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. Sec.  317.18 through 317.22  [Removed and Reserved]

0
2. Remove and reserve Sec. Sec.  317.18 through 317.22.

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

0
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]

0
4. Remove and reserve Sec. Sec.  381.121a through 381.121e.

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

0
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, and 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 2005, which is incorporated by reference. The Director of the 
Federal Register approves this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of NIST Handbook 133 may 
be purchased from the Superintendent of Documents, U.S. Government 
Printing Office, 732 N. Capitol Street, NW., Washington, DC, 20401. You 
may contact the Government Printing Office Toll-Free at 1-866-512-1800 
or go to: http://bookstore.gpo.gov. You may inspect a copy of NIST 
Handbook 133 at the FSIS Docket Room, U.S. Department of Agriculture, 
Food Safety and Inspection Service, 1400 Independence Avenue, SW., Room 
2534, Washington, DC 20250. You can contact the FSIS Docket room by 
calling 202-720-0344 or 202-720-3813. The NIST Handbook 133 is also 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) The following NIST Handbook 133 requirements are not 
incorporated by reference.

Chapter 2--Basic Test Procedure--Gravimetric Testing

2.3 Basic Test Procedure--Tare Procedures--Wet Tare
2.3 Basic Test Procedure--Moisture Allowances--What moisture 
allowance is used with wet tare when testing packages bearing a USDA 
seal of inspection?
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 Appendix 
C Glossary--wet tare


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

    (a) All scales used to determine the net weight of 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 determine the net weight of 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 
determine the net weight of 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

[[Page 52193]]

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 verified 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 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 August 13, 2008.
Alfred V. Almanza,
Administrator.
[FR Doc. E8-20559 Filed 9-8-08; 8:45 am]
BILLING CODE 3410-DM-P`