Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Rules and Regulations 52189 

§ 93.916 Special provisions. 

(a) Slaughter. Live VHS-regulated fish 

from VHS-regulated regions may be 

imported directly for slaughter under 

the following conditions: 

(1) An import permit has been 

obtained under § 93.912 and all 

conditions of the permit are observed. 

(2) An APHIS representative at the 

port seals the means of conveyance with 

official seals. 

(3) The shipment is moved directly 

from the port of entry to a slaughtering 

establishment that meets the following 

conditions: 

(i) The slaughtering establishment 

discharges its waste water to a 

municipal sewage system that includes 

waste water disinfection sufficient to 

neutralize any VHS virus or to either a 

non-discharging settling pond or a 

settling pond that disinfects, according 

to all applicable local, State, and 

Federal regulations, sufficiently to 

neutralize any VHS virus. 

(ii) Offal, including carcasses, from 

the slaughtering establishment is either 

rendered or composted. 

(4) An APHIS representative will 

unseal the vehicle upon arrival at the 

slaughtering establishment. 

(5) Any water used to transport the 

fish is disposed to a municipal sewage 

system that includes waste water 

disinfection sufficient to neutralize any 

VHS virus or to either a non-discharging 

settling pond or a settling pond that 

disinfects, according to all applicable 

local, State, and Federal regulations, 

sufficiently to neutralize any VHS virus. 

(b) Research or laboratory use. Live 

VHS-regulated fish may be imported 

from a VHS-regulated region for 

research or laboratory use under the 

following conditions: 

(1) An import permit has been 

obtained under § 93.912 and all 

conditions of the permit are observed. 

(2) The laboratory or research facility 

disposes of effluent to a municipal 

sewage system that includes waste 

water disinfection sufficient to 

neutralize any VHS virus or to either a 

non-discharging settling pond or a 

settling pond that disinfects, according 

to all applicable local, State, and 

Federal regulations, sufficiently to 

neutralize any VHS virus. 

(3) Carcasses must be rendered or 

composted. 

(4) Any water used to transport the 

fish is disposed to a municipal sewage 

system that includes waste water 

disinfection sufficient to neutralize any 

VHS virus or to either a non-discharging 

settling pond or a settling pond that 

disinfects, according to all applicable 

local, State, and Federal regulations, 

sufficiently to neutralize any VHS virus. 

Done in Washington, DC, this 4th day of 

September 2008. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E8–20852 Filed 9–8–08; 8:45 am] 

BILLING CODE 3410–34–P 

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. 

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 


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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 


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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Rules and Regulations 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. 

■ For the reasons discussed in the 

preamble, FSIS is amending 9 CFR 

Chapter III as follows: 


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52192 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Rules and Regulations 

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. 

§§ 317.18 through 317.22 [Removed and 

Reserved] 

■ 2. Remove and reserve §§ 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. 

§§ 381.121a through 381.121e [Removed 

and Reserved] 

■ 4. Remove and reserve §§ 381.121a 

through 381.121e. 

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. 

§ 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. 

§ 442.2 Definitions and procedures for 

determining net weight compliance. 

(a) For the purpose of § 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 

§ 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 


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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Rules and Regulations 52193 

1FSIS laboratories are not part of the ALP. FSIS 

laboratories are ISO17025 accredited. The methods 

that FSIS laboratories use are found on the FSIS 

Web site. 

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. 

§ 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. 

§ 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 § 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 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Parts 318, 381, and 439 

[FSIS Docket No. 03–020F; FDMS Docket 

No. 2005–0023] 

RIN # 0583–AD09 

Accredited Laboratory Program 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Final rule. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is revising, 

editing, and consolidating provisions of 

the standards and procedures for the 

accreditation of non-Federal analytical 

chemistry laboratories. Laboratories in 

the Accredited Laboratory Program 

(ALP) are accredited to analyze official 

meat and poultry samples for (1) 

specific chemical residues or classes of 

chemical residues, and (2) moisture, 

protein, fat, and salt. In particular, FSIS 

is amending its current regulations 

regarding the accreditation of nonFederal analytical chemistry 

laboratories to accommodate the 

adoption of newer methods for 

analyzing chemical residues and to 

correct some data. In addition, FSIS is 

making editorial changes to its 

accredited laboratory regulations to 

reflect Agency reorganizations and 

program changes and to improve the 

clarity and consistency of application 

for all laboratories participating in the 

ALP. Finally, FSIS is consolidating the 

accredited laboratory regulations from 9 

CFR 318.21 of the meat inspection 

regulations and 9 CFR 381.153 of the 

poultry products inspection regulations 

into a single new part, 9 CFR part 439. 

DATES: This rule will be effective 

October 9, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Eugene Vickers, Chief of the ALP, Office 

of Public Health Science, FSIS, at (202) 

690–6407 or fax (202) 690–6632, or by 

writing to the ALP, Box 17 Aerospace 

Center, Room 377, 901 D Street, SW., 

Washington, DC 20024. 

SUPPLEMENTARY INFORMATION: 

Background 

On January 17, 2006, FSIS proposed 

to amend the Federal meat and poultry 

products inspection regulations by 

revising, editing, and consolidating 

provisions of the standards and 

procedures for the accreditation of nonFederal analytical chemistry 

laboratories (71 FR 2483).1 This final 

rule is consistent with the proposed 

rule, except for the following technical 

revisions. First, FSIS had proposed to 

codify the Internet and mailing 

addresses for obtaining information on 

the ALP and minimum proficiency 

levels. In the final rule, FSIS is not 

codifying this address information 

because it is subject to change. 

However, Internet and mailing 

addresses for obtaining information are 

included in this preamble. 

In addition, FSIS had also proposed to 

establish a new § 439.60 that would 

have consolidated all references to 

‘‘violations of law’’ contained in 

§§ 318.21(d)(4), 318.21(f), 318.21(g)(4), 

381.153(d)(4), 381.153(f), and 

381.153(g)(4)). These regulations 

prescribe the conditions under which a 

laboratory will have its accreditation 

denied, suspended, or revoked. FSIS 

had proposed to consolidate references 

to violations of law to eliminate 

duplicative provisions within the 

regulations. The Agency did not intend 

to propose substantive changes to these 

regulations. 

However, when developing this final 

rule, FSIS determined that, as proposed, 

§ 439.60 did not adequately delineate 

the circumstances in which the Agency 

would deny, suspend, or revoke a 

laboratory’s accreditation for reasons 

associated with certain violations of 

law. Therefore, instead of consolidating 

all references to violations of law into 

new § 439.60 as proposed, this final rule 

describes the reasons that FSIS will 

deny, suspend, or revoke a laboratory’s 

accreditation under separate sections 

that include specific paragraphs that 

contain provisions for violations of law. 

Thus, under this final rule, instead of 

providing a cross-reference to § 439.60 

as proposed, § 439.50(c) describes the 

conditions under which FSIS will refuse 

to provide an accreditation to a 

laboratory for reasons associated with 

violations of law. In addition, instead of 

providing a cross-reference to § 439.60 

as proposed, § 439.52 of this final rule 

provides a complete description of the 

reasons that FSIS will suspend a 

laboratory’s accreditation. Finally, 

instead of providing a cross-reference to 

§ 439.60 as proposed, § 439.53(c) of this 

final rule describes the conditions under 

which FSIS will revoke a laboratory’s 

accreditation for reasons associated with 

violations of law. This final rule also 

removes proposed § 439.60, which 

proposed to consolidate the provisions 

for violations of law, and re-designates 

proposed § 439.70, the provisions for 

notification and hearings, as § 439.60. 


yshivers on PROD1PC62 with RULES