Incorporation by Reference; Updating of Text; Net Weight Labeling of Meat and Poultry Products

SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the

Federal meat and poultry products inspection regulations to update

references to the National Institute of Standards and Technology (NIST)

Handbook 133, ``Checking the Net Contents of Packaged Goods'' and NIST

Handbook 44, ``Specifications, Tolerances and Other Technical

Requirements for Measuring Devices.'' A 1994 edition of NIST Handbook

44 was published in October 1993 and four supplements to NIST Handbook

133 were published in September 1990, October 1991, October 1992, and

October 1994, subsequent to their incorporation by reference in certain

sections of the Federal meat and poultry products inspection

regulations. FSIS is amending the provisions in its regulations that

reference the publications to reflect the most recent edition of NIST

Handbook 44 and the supplements to NIST Handbook 133.

DATES: This rule will be effective on May 8, 1995 unless we receive

written adverse comments or written notice of intent to submit adverse

comments on or before April 10, 1995.

ADDRESSES: Adverse comments or notice of intent to submit adverse

comments should be sent in triplicate to Regulations Development,

Policy, Evaluation and Planning Staff, Attention: Diane Moore, FSIS

Docket Clerk, Food Safety and Inspection Service, Room 3171, South

Agriculture Building, U.S. Department of Agriculture, Washington, DC

20250. Comments should reference Docket No. 94-012F. All comments will

be available for public inspection from 8:30 a.m. to 1 p.m. and 2 p.m.

to 4:30 p.m., Monday through Friday, in Room 3171, South Agriculture

Building, 14th and Independence Avenue SW., Washington, DC 20250.

FOR FURTHER INFORMATION CONTACT: Dr. Paula M. Cohen, Director,

Regulations Development, Policy, Evaluation and Planning Staff, Food

Safety and Inspection Service, U.S. Department of Agriculture,

Washington, DC 20250, (202) 720-7164.

SUPPLEMENTARY INFORMATION:

Background

Title 1 of the Code of Federal Regulations (1 CFR Part 51) requires

that an Agency seeking approval of a change to a publication that is

approved for incorporation by reference in the Code of Federal

Regulations publish a notice of the change in the Federal Register and

amend the Code of Federal Regulations. The Agency must also ensure that

a copy of the amendment or revision is on file at the Office of the

Federal Register and notify the Director of the Federal Register in

writing that the change is being made.

Accordingly, FSIS has reviewed the most recent publications, NIST

Handbook 44 and supplements to NIST Handbook 133, pertaining to meat

and meat food products and poultry and poultry products and FSIS'

regulations that reference the Handbooks.

The following is a summary of the changes to NIST Handbooks 44 and

133 applicable to meat and poultry products.

NIST Handbook 44

The changes to the General Scales Codes of NIST Handbook 44 from

1990 through 1993 primarily recognize new features and capabilities of

scales. These changes have the effect of giving scale manufacturers

more flexibility in scale design and the ability to incorporate

features that better meet the needs of the users. Although NIST

Handbook 44 addresses a wide range of scales, the following summary

describes the most significant changes to the Handbook as it applies to

scales used to weigh meat and poultry products produced in meat and

poultry establishments.

The most significant change is recognition of the use of electronic

forms of audit trails to provide security to scale adjustments rather

than requiring the use of a physical security seal to indicate when

access to metrological parameters has occurred. Another change allows

scales to incorporate an ``initial zero-setting mechanism.'' The

mechanism allows different types of scale platforms to be used while

continuing to allow the scale to weigh to capacity. Marking

requirements have been combined into a table format to make them more

understandable and easily referenced. Additionally, automatic and semi-

automatic calibration of scales using an internal calibration weight

are permitted provided the calibration mechanism or the calibration

process do not facilitate inaccurate adjustments to the scale. Finally,

tolerances for scales manufactured before 1986 have been consolidated,

in table format, for easy reference.

NIST Handbook 133

The changes to NIST Handbook 133 pertaining to meat and poultry

products are primarily for clarification and consistency with the meat

and poultry products inspection regulations. The following is a summary

of the more significant changes to NIST Handbook 133 pertaining to meat

and poultry products. The remaining changes were strictly editorial.

1. The definition of ``used tare'' and ``dried used tare'' were

made consistent with procedures for meat and poultry products that

permit drying in a microwave oven.

2. A reference to product for which no gray area has yet been

determined was added.

3. The reference to bacon with free-flowing liquid as

``subquality'' was deleted.

4. Group 5 Lower Limits for Individual Weights was changed to 1

percent of labeled weight. The lower limit of 1.5 ounces for the

largest weight of 160 ounces in Group 4 is equivalent to 0.94 percent

of the labeled weight. A fixed lower limit of 2 ounces (or 4 ounces,

depending upon the scale being used) in Group 5 (with labeled weight of

160 ounces and up) is too small as a percentage of the labeled weights.

For example, a lower limit of 2 ounces for [[Page 12884]] a labeled

weight of 50 pounds is equivalent to 0.25 percent of the labeled

weights.

5. Revisions were made to indicate that packaging materials must be

cleaned before weighing tare and to specify a zero gray area for bacon

packages with no free-flowing liquid inside as well as packages with no

absorbent material.

6. Revisions were made to establish a definition of ``fresh

poultry'' for net weight determinations and to clarify that the gray

area should only be applied to raw, fresh poultry in retail packages

when wet tare tests are conducted.

7. Revisions were made to specify procedures for cleaning tare

materials and to add a paragraph on the repackaging of packages opened

for tare determination.

8. A paragraph was added on procedures to follow when there is no

free-flowing liquid or absorbent material in contact with the product.

9. A paragraph was expanded to include testing of bacon, sausage,

or luncheon meats with no free-flowing liquid or absorbent tare

material.

10. Revisions were made to reflect changes to the Category A

sampling plans and to correct addresses and telephone numbers of FSIS

regional offices.

Copies of the 1994 Edition of the NIST Handbook 44, NIST Handbook

133, and supplements to NIST Handbook 133 issued in September 1990,

October 1991, October 1992, and October 1994, are on file at the Office

of the Federal Register. Copies of the publications and supplements may

be purchased from the Superintendent of Documents, U.S. Government

Printing Office, Washington, DC 20402.

Effective Date

We are publishing this rule without prior proposal because we view

this action as noncontroversial and anticipate no adverse public

comment. This rule will be effective, as published in this document, 60

days after the date of publication in the Federal Register unless we

receive written adverse comments or written notice of intent to submit

adverse comments within 30 days of the date of publication of this rule

in the Federal Register. Adverse comments are comments that suggest the

rule should not be adopted or that suggest the rule should be changed.

Executive Order 12866

This rule has been determined not to be significant for purposes of

Executive Order 12866 and therefore has not been reviewed by the Office

of Management and Budget.

Executive Order 12778

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule: (1) Preempts all State and local laws and

regulations that are inconsistent with this rule; (2) has no

retroactive effect; and (3) does not require administrative proceedings

before parties may file suit in court challenging this rule.

Effect on Small Entities

The Administrator, FSIS, has determined that this 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).

List of Subjects

9 CFR 317

Incorporation by reference, Meat inspection, Net weight.

9 CFR 381

Incorporation by reference, Poultry products inspection, Net

weight.

For the reasons set out in the preamble, 9 CFR parts 317 and 381

are amended as set forth below.

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 2.17, 2.55.

2. Section 317.19 is amended by revising the first sentence of

paragraph (a) and by adding a new paragraph (c) to read as follows:

Sec. 317.19 Definitions and procedures for determining net weight

compliance.

(a) For the purpose of Secs. 317.18 through 317.22 of this part,

the reasonable variations allowed, definitions, and procedures to be

used in determining net weight and net weight compliance are described

in the National Institute of Standards and Technology (NIST) Handbook

133, ``Checking the Net Contents of Packaged Goods,'' Third Edition,

September 1988, and Supplements 1, 2, 3, and 4 dated September 1990,

October 1991, October 1992, and October 1994, respectively, which are

incorporated by reference, with the exception of the NIST Handbook 133

and Supplements 1, 3, and 4 requirements listed in paragraphs (b) and

(c) of this section. * * *

(b) * * *

(c) The following requirements of Supplement 1, dated September

1990, Supplement 3, dated October 1992, and Supplement 4, dated 1994,

of NIST Handbook 133 are not incorporated by reference.

Supplement 1

Chapter 2 General Considerations

2.13.1. Polyethylene Sheeting and Film

2.13.2. Textiles

2.13.3. Mulch

Chapter 3 Methods of Test for Packages Labeled by Weight

3.11.4. Exhausting the Aerosol Container

Chapter 4 Methods of Test for Packages Labeled by Volume

4.6.4. Method D: Determining the Net Contents of Compressed Gas in

Cylinders

4.7. Milk

4.16. Fresh Oysters Labeled by Volume

Chapter 5 Methods of Test for Packages Labeled by Count, Length, Area,

Thickness, or Combinations of Quantities

5.4. Polyethylene Sheeting

Supplement 3

Chapter 3 Methods of Test for Packages Labeled by Weight

3.17. Flour and Dry Pet Food

Chapter 5 Methods of Test for Packages Labeled by Count, Length, Area,

Thickness, or Combination of Quantities

5.4. Polyethylene Sheeting

5.5. Paper Plates

5.8. Baler Twine

Appendix A. Forms and Worksheets

Supplement 4

3.11 Aerosol Packages

3.11.1 Equipment

3.11.2 Preparation for Test

3.11.3 The Determination of Net Contents: Part 1

3.11.4 Exhausting the Aerosol Container

3.11.5 The Determination of Net Contents: Part 2

Appendix A. Report Forms

3. Section 317.20(a) is amended by revising the second sentence to

read as follows:

Sec. 317.20 Scale requirements for accurate weights, repairs,

adjustments, and replacement after inspection.

(a) * * * Such scales shall meet the applicable requirements

contained in National Institute of Standards and Technology Handbook

44, ``Specifications, Tolerances and Other Technical Requirements for

Weighing [[Page 12885]] and Measuring Devices,'' 1994 Edition, October

1993, which is incorporated by reference. * * *

* * * * *

PART 381--POULTRY PRODUCTS INSPECTION REGULATIONS

4. The authority citation for part 381 continues to read as

follows:

Authority: 7 U.S.C. 450; 21 U.S.C. 451-470; 7 CFR 2.17, 2.55.

5. Section 381.121b is amended by revising the first sentence of

paragraph (a) and adding a new paragraph (c) to read as follows:

Sec. 381.121b Definitions and procedures for determining net weight

compliance.

(a) For the purpose of Sec. 381.121b of this part, the reasonable

variations allowed, definitions, and procedures to be used in

determining net weight and net weight compliance are described in the

National Institute of Standards and Technology (NIST) Handbook 133,

``Checking the Net Contents of Packaged Goods,'' Third Edition,

September 1988, and Supplements 1, 2, 3, and 4 dated September 1990,

October 1991, October 1992, and October 1994, respectively, which are

incorporated by reference, with the exception of the NIST Handbook 133

and Supplements 1 and 3 requirements listed in paragraphs (b) and (c)

of this section. * * *

(b) * * *

(c) The following requirements of Supplement 1 dated September

1990, Supplement 3 dated October 1992, and Supplement 4 dated October

1994, of NIST Handbook 133 are not incorporated by reference.

Supplement 1

Chapter 2 General Considerations

2.13.1. Polyethylene Sheeting and Film

2.13.2. Textiles

2.13.3. Mulch

Chapter 3 Methods of Test for Packages Labeled by Weight

3.11.4. Exhausting the Aerosol Container

Chapter 4 Methods of Test for Packages Labeled by Volume

4.6.4. Method D: Determining the Net Contents of Compressed Gas in

Cylinders

4.7. Milk

4.16. Fresh Oysters Labeled by Volume

Chapter 5 Methods of Test for Packages Labeled by Count, Length, Area,

Thickness, or Combinations of Quantities

5.4. Polyethylene Sheeting

Supplement 3

Chapter 3 Methods of Test for Packages Labeled by Weight

3.17. Flour and Dry Pet Food

Chapter 5 Methods of Test for Packages Labeled by Count, Length, Area,

Thickness, or Combinations of Quantities

5.4. Polyethylene Sheeting

5.5. Paper Plates

5.8. Baler Twine

Appendix A. Forms and Worksheets

Supplement 4

3.11 Aerosol Packages

3.11.1 Equipment

3.11.2 Preparation for Test

3.11.3 The Determination of Net Contents: Part 1

3.11.4 Exhausting the Aerosol Container

3.11.5 The Determination of Net Contents: Part 2

Appendix A. Report Forms

6. Section 381.121c(a) is amended by revising the second sentence

to read as follows:

Sec. 381.121c Scale requirements for accurate weights, repairs,

adjustments, and replacement after inspection.

(a) * * * 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,'' 1994 Edition,

October 1993, which is incorporated by reference. * * *

* * * * *

Done at Washington, DC, on: February 14, 1995.

Michael R. Taylor,

Acting Under Secretary for Food Safety.

[FR Doc. 95-4500 Filed 3-8-95; 8:45 am]

BILLING CODE 3410-DM-P