Interstate Distribution of State-Inspected Meat and Poultry Products

DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

[Docket No. 97-037N]

Interstate Distribution of State-Inspected Meat and Poultry

Products

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Notice of public meetings; request for comments.

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

comments on ways it can improve Federal and State cooperation in the

implementation of the Federal meat and poultry inspection laws, and on

whether, and if so how, those laws should be amended to permit meat and

poultry products inspected by State inspection programs to be

distributed in interstate commerce. State inspection programs are

authorized under the Federal Meat Inspection Act (FMIA) and the Poultry

Products Inspection Act (PPIA) to inspect meat and poultry

establishments that prepare products intended for use as human food

solely for distribution within the State under requirements ``at least

equal to'' those imposed under Federal inspection.

DATES: The meetings will be held on June 16 and 17, 1997, in Sioux

Falls, SD, and on July 22, 1997, in Washington, DC. Written information

and comments will be accepted and made a part of the record of these

proceedings through August 22, 1997.

ADDRESSES: The first meeting will be held from 9:00 a.m. to 4:00 p.m.

on June 16 and from 9:00 a.m. to 1:00 p.m. on June 17, 1997, at the

Radisson Encore Inn, 4300 Empire Place, Sioux Falls, SD 57106-6525;

telephone (605) 361-6684. The second meeting will be held from 9:00

a.m. to 5:00 p.m. on July 22, 1997, in the Ticonderoga Room of the

Hyatt Regency Washington on Capitol Hill, 400 New Jersey Avenue, NW,

Washington, DC 20001. Persons sending written comments should send an

original and two copies to the FSIS Docket Clerk, Docket No. 97-037N,

Room 102 Annex Building, 300 12th Street, SW, Food Safety and

Inspection Service, U.S. Department of Agriculture, Washington, DC

20250-3700.

FOR FURTHER INFORMATION CONTACT: Persons wishing to participate in

either of the two meetings are requested to register by contacting Ms.

Traci Phebus by telephone at (202) 501-7138, by FAX at (202) 501-7642,

or by E-mail at [email protected] Participants may reserve a 5-

minute comment period when they register. More time may be available,

depending on the number of people wishing to make a presentation and

the time needed for questions, following the presentations.

Reservations will be confirmed on a first-come, first-served basis.

Written comments may also be submitted for the record at the meetings.

For questions about the meetings contact Mr. Ralph Stafko at (202) 720-

7774, or FAX at (202) 720-2345. Participants who require a sign

language interpreter or other special accommodations should contact Ms.

Jennifer Callahan at (202) 501-7138.

SUPPLEMENTARY INFORMATION: A number of State Departments of Agriculture

operating their own meat and poultry inspection programs have expressed

various concerns about the relationship between the State programs and

the Federal meat and poultry inspection program, and, in addition, have

advocated amendments in Federal laws to permit State-inspected meat and

poultry products to be distributed in interstate commerce. FSIS will

conduct public hearings to explore these concerns and any recommended

alternative policies and procedures, including proposals to amend

Federal laws to improve the cooperative relationship between Federal

and State meat and poultry inspection programs. The following

information is provided in order to encourage the discussion of these

issues and the submission of relevant information and comment.

Background

FSIS must provide Federal inspection at any meat and poultry

establishment that produces meat and poultry products for interstate or

foreign commerce, or that produces such products for intrastate

commerce if the State in which it is located does not operate its own

program. Those approximately 6,500 establishments, encompassing very

large to very small establishments, produce the vast majority of the

nation's inspected meat and poultry products slaughtered and processed

in the United States.

Twenty-six states operate their own inspection programs, which

collectively inspect approximately 2,800 mostly small and mid-size meat

and poultry plants (Table 1). Estimates of the proportion of the

nation's meat and poultry products that are State-inspected have ranged

as high as 7 percent. FSIS data, limited to slaughter operations and

not accounting for processed products, show that State-inspected

establishments slaughter commercially a little more than 1 percent of

the nation's livestock and a small fraction of 1 percent of the

nation's poultry by weight.

To ensure that States are enforcing requirements ``at least equal

to'' the Federal requirements, FSIS inspection program personnel work

directly with State inspection officials providing advice and guidance

on Federal inspection requirements on a continuing basis and also

conduct periodic reviews of the State inspection programs. FSIS reviews

each State program's State Performance Plan (SPP) annually. The SPP is

a compilation of applicable State laws and regulations, program

resources, and current operations and enforcement activities (FSIS

Directive 5720.2, Cooperative Inspection Programs). In addition, teams

of FSIS experts periodically conduct comprehensive on-site reviews,

including random sampling of records and inspection of conditions in

State-inspected plants. State programs are rated as: 1, Acceptable; 2,

Acceptable with Minor Variations; 3, Acceptable with Significant

Variations; and 4,

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Unacceptable. A ``1'' is reviewed at least every 5 years; a ``2'' at

least every 4 years; a ``3'' at least every 3 years; and a ``4'' as

frequently as necessary, depending on the nature of the findings.

Presently, 6 States are rated ``1'', 14 States are rated ``2'', and 6

States are rated ``3''.

If a State does not have an ``at least equal to'' State inspection

program, the State is designated by FSIS as one in which Federal

inspection must be provided for all meat and poultry establishments

requiring inspection under Federal law, regardless of whether the

establishments' products are distributed solely within the State.

Currently, 24 States have no meat and poultry inspection programs.

(Table 2).

In addition to the State administered meat and poultry inspection

programs, State agencies also enforce adulteration and mislabeling

requirements of State and local laws governing meat and poultry

products in commercial channels outside inspected establishments.

Although the products are concurrently subject to FMIA and PPIA

adulteration and mislabeling provisions, FSIS relies heavily on State

and local agencies to ensure inspected products are kept safe,

wholesome, and properly labeled as they are handled during

distribution, and prepared and held for sale to consumers at retail

stores and restaurants.

Federal Support of State and Local Programs

State meat and poultry inspection programs are an integral part of

the Federal regulatory system for ensuring the safety of the nation's

meat and poultry products. Accordingly, the FMIA and PPIA provide for

FSIS cooperation with State agencies in carrying out the provisions of

the Federal inspection laws and specify that FSIS may furnish State

agencies advisory assistance, technical and laboratory assistance and

training, and financial and other aid for administration of the State

programs--up to 50 percent of the cost of any State's program.

Currently, FSIS provides about $40.5 million to 26 States for

administering the State inspection programs. In addition, FSIS

allocates funds specifically for training assistance to State programs.

Some States have found that despite Federal support, they cannot

maintain a State inspection program, and have deferred to FSIS to

conduct all meat and poultry inspection within their States. Even in

States maintaining inspection programs, State legislatures sometimes

appropriate less than 50 percent of the (USDA) estimated cost, thereby

reducing proportionately the amount of Federal money contributed to the

State program. In those cases, non-monetary Federal assistance in areas

such as training is especially important to the State programs.

In addition to 50 percent Federal funding of, and non-monetary

assistance to, State inspection programs, FSIS from time to time enters

into cooperative agreements with State agencies and provides funding

for those agencies to conduct Federal inspection, or other enforcement

activities under FMIA and PPIA within those States. This authority is

provided under the Talmadge-Aiken Act, which gives the Secretary

authority to enter into such agreements ``[i]n order to avoid

duplication of functions, facilities and personnel, and to attain

closer coordination and greater effectiveness and economy in

administration of Federal and State laws * * * within his area of

responsibility * * *'' (7 U.S.C. 450). Currently, FSIS has agreements

under its Federal-State Cooperative Inspection Program with 9 States,

under which employees of State inspection agencies carry out Federal

inspection in 255 establishments under USDA supervision (Table 3). FSIS

provides 50 percent funding for that work.

The President's Food Safety Initiative directs USDA and other

Federal food safety and public health agencies to improve coordination

and cooperation among themselves and with State and local governments

on food safety matters. The Initiative recognizes the importance of

State and local food safety agencies and provides for additional

Federal support of those State and local activities. For example, the

Initiative would improve training of State inspectors in Federal food

safety standards and provide to States equipment and technology for

rapid sharing of inspection results to develop a national database for

monitoring all food inspections.

FSIS is working closely with FDA, State and local governments, and

organizations representing industry, consumers, and public health

professionals to promote more effective food safety programs. FSIS also

is developing, in cooperation with the Association of Food and Drug

Officials, training and training materials on potentially high-risk

meat and poultry processing activities for State and local food

inspection agencies that oversee meat and poultry processing at retail

and food service operations. Although retail and food service

facilities generally are exempt from federally mandated inspection,

they are engaged in processing activities similar to those in inspected

establishments. In recognition of the need for more Federal support for

State agencies primarily responsible for regulating retail and food

service establishments, the Administration's 1998 FSIS budget requests

$565,000 for training State and local food inspectors on meat and

poultry processing and related food safety matters. In addition, FSIS

participates in the Partnership for Food Safety Education, a broad

alliance of industry, government, and other organizations, which is

developing a comprehensive plan for food safety education of consumers

and others who handle food.

FSIS believes it is essential to maintain and strengthen the State

administered meat and poultry inspection programs. FSIS officials

understand the concern of State officials of inspection programs that

the statutory requirement that State-inspected plants have Federal

inspection in order to ship interstate can result in a decrease in the

number of State-inspected plants and potentially threaten the viability

of the affected State program. Accordingly, FSIS solicits the views and

specific recommendations of all interested parties regarding how the

Agency can enhance its support of, and assist in improving, State

inspection programs under its current authorities.

Amending FMIA and PPIA

FSIS also is seeking comment on whether, and if so how, the FMIA

and PPIA should be amended to permit distribution of State-inspected

meat and poultry products in interstate commerce.

Some State Departments of Agriculture, mostly through the National

Association of State Departments of Agriculture (NASDA), contend that

because a State inspection program must be ``at least equal to''

Federal inspection, sales of State-inspected meat and poultry products

should not be limited to commercial distribution only in that State,

thereby denying State-inspected establishments access to markets that

could help them survive and prosper in an increasingly competitive

marketplace. Proponents of this view often cite the case where a State-

inspected plant located right next to the State line is cut off from

what would otherwise be a natural market because it is restricted to

intrastate sales. Many State program officials also point out that

while State-inspected products are restricted to intrastate sale,

imported products can be sold freely in any State.

Efforts to obtain statutory amendments that would permit

[[Page 31564]]

interstate distribution of State-inspected products led to a 1996

request for USDA to report to Congress on the issue. The Federal

Agriculture Improvement and Reform Act of 1996, also known as the 1996

Farm Bill, directed the Secretary of Agriculture to submit to Congress

a report concerning steps necessary to achieve interstate shipment of

products inspected under State programs that are ``at least equal to''

the Federal inspection program.

The Department submitted this report to Congress in July, 1996. The

report recommended that before State-inspected establishments are

authorized to ship products in interstate commerce, certain conditions

should be met: These conditions are: (1) States should implement FSIS's

Pathogen Reduction/Hazard Analysis Critical Control Point systems; (2)

FSIS resources would need to be adequate to accommodate any additional

oversight required to substantiate ``at least equal to'' status; (3)

such legislation should clarify that the Secretary retains ultimate

authority over products prepared for interstate commerce; and (4)

additional issues, mostly dealing with potential conflicts between

Federal and State laws, would have to be resolved.

Recently, two bills (H.R. 801 and H.R. 1137) have been introduced

in Congress to amend the FMIA and PPIA to permit the interstate

distribution of State-inspected meat and poultry. The Department has

determined that the changes proposed by these bills raise a number of

important food safety issues that require plenary discussion and

careful consideration. Some of the issues that need to be considered

are as follows:

Whether legislative changes to the FMIA and PPIA to

provide for interstate distribution of State-inspected products should

be enacted or made effective prior to implementation of HACCP?

Whether and, if so how, Federal oversight of State

programs should be strengthened in the event State-inspected products

are authorized to be shipped interstate?

Whether allowing the interstate distribution of State-

inspected products would lead to ``competing'' inspector programs among

the States and between the States and the Federal program, and also to

``forum shopping?''

Whether and how other pending or proposed regulatory

actions should be taken into account before any of the proposed

legislative changes are made effective? Further, there are a number of

jurisdictional issues central to the discussion:

Whether there would be concurrent State and Federal

jurisdiction regarding the denial/withdrawal/withholding of grants of

inspection?

Who would have jurisdiction over misbranding/adulteration

violations?

Whether States will have separate authority to detain/

seize/condemn/recall products in commercial channels outside plants?

The foregoing list of issues is not intended to be exhaustive. FSIS

welcomes discussion and comments on all issues related to the

interstate shipment of meat and poultry from State-inspected

establishments.

Done in Washington, DC, on: June 4, 1997.

Thomas J. Billy,

Administrator.

Table 1 summarizes the number of States at the end of fiscal year

1996 with intrastate inspection programs for meat (26) and poultry

(24); the number of State full-time equivalent staff years during

fiscal year 1996; and Federal funding assistance expended by States

during fiscal year 1996. ``M'' after the name of the State indicates

that the State conducted a meat inspection program; ``M&P'' indicates

that the State conducted meat and poultry inspection programs. In order

to continue operating intrastate inspection programs and to continue

receiving Federal funding assistance, States must maintain inspection

requirements at least equal to those of the Federal program.

Table 1.--State Inspection Programs

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Regular plants Custom exempt plants

------------------------------ ---------------------------------------- Full time FY 1996

Meat and Total Meat and equivalent federal

Meat Poultry poultry Meat Poultry Poultry Total staff years assistance

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ALABAMA M&P................................ 70 5 3 78 20 0 0 20 15.5 1,274,376

ALASKA M&P................................. 7 0 8 15 1 0 0 1 5.0 341,155

ARIZONA M&P................................ 63 2 0 65 27 0 0 27 24.8 584,388

DELAWARE M&P............................... 1 0 2 3 3 1 3 7 10.5 212,604

FLORDIA \1\ M&P............................ 0 105 27 132 26 ........ ........ 26 79.0 1,966,547

GEORGIA M \2\.............................. 86 0 0 86 21 0 0 21 101.0 2,403,110

HAWAII \3\ M&P............................. ........ ........ ........ ........ ........ ........ ........ ........ ........... 293,200

ILLINOIS M&P............................... 208 21 101 330 15 4 2 21 122.0 4,359,261

INDIANA M&P................................ 48 7 74 129 20 6 1 27 85.0 1,652,715

IOWA M&P................................... 136 6 0 142 105 5 6 116 34.0 1,010,902

KANSAS M&P................................. 141 5 5 151 12 1 0 13 51.0 1,282,247

LOUSIANA M&P............................... 84 5 1 90 42 0 0 42 68.0 1,754,579

MISSISSIPPI M&P............................ 36 0 15 51 18 4 0 22 44.0 1,098,002

MONTANA M&P................................ 22 0 15 37 87 31 20 138 15.0 341,039

NEW MEXICO M&P............................. 38 0 0 38 13 0 0 13 15.0 418,650

NORTH CAROLINA M&P......................... 156 10 0 166 41 0 0 41 125.0 2,847,709

OHIO M&P................................... 151 17 91 259 58 14 1 73 133.0 4,616,502

OKLAHOMA M&P............................... 63 3 22 88 60 0 0 60 68.0 1,616,065

SOUTH CAROLINA M&P......................... 43 9 56 108 0 0 0 0 49.0 1,131,972

SOUTH DAKOTA M \2\......................... 53 0 0 53 51 0 0 51 21.0 479,771

TEXAS M&P.................................. 256 12 78 346 131 4 11 146 213.0 4,622,924

UTAH M&P................................... 29 0 8 37 48 2 0 50 29.3 770,926

VERMONT M&P................................ 16 1 1 18 12 2 0 14 14.2 283,578

VIRGINIA M&P............................... 24 3 4 31 136 0 2 138 42.0 1,292,494

WEST VIRGINIA M&P.......................... 30 0 0 30 42 0 0 42 26.0 597,101

WISCONSIN M&P.............................. 155 10 113 278 56 3 13 72 85.0 2,983,403

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WYOMING M&P................................ 31 0 0 31 29 0 0 29 7.5 283,805

TOTAL...................................... 1,947 221 624 2,792 1,074 77 59 1,210 1,482.8 40,519,025

CALIFORNIA \1\............................. ........ ........ ........ ........ ........ ........ ........ 306 ........... 147,697

MINNESOTA \4\.............................. ........ ........ ........ ........ ........ ........ ........ 298 ........... 110,348

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\1\ FY 1995 figures. FY 1996 figures not available at this time.

\2\ Poultry Program is under Federal jurisdiction.

\3\ The Hawaii Program was designated November 1, 1995 so other statistics are not available.

\4\ Official plants are under Federal jurisdiction. Custom exempt facilities are reviewed under State contract.

*All Federal assistance amounts are estimates.

Table 2 lists the dates the Department assumed inspection of meat

and poultry products for intrastate sale in designated States as of

September 28, 1996. All plants in designated States come under Federal

inspection and their products can be sold in interstate commerce.

Table 2.--Dates USDA Assumed Intrastate Inspection

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State Meat Poultry

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Arkansas........................................ 06/01/81 01/02/71

California...................................... 04/01/76 04/01/76

Colorado........................................ 07/01/75 01/02/71

Connecticut..................................... 10/01/75 10/01/75

Georgia......................................... (\1\) 01/02/71

Hawaii.......................................... 11/01/95 11/01/95

Idaho........................................... 07/01/81 01/02/71

Kentucky........................................ 01/14/72 07/28/71

Maine........................................... 05/12/80 01/02/71

Maryland........................................ 04/01/91 04/01/91

Massachusetts................................... 01/12/76 01/12/76

Michigan........................................ 10/03/81 01/02/71

Minnesota....................................... 05/16/71 01/02/71

Missouri........................................ 08/18/72 08/18/72

Nebraska........................................ 10/01/71 07/28/71

Nevada.......................................... 07/01/73 07/01/73

New Hampshire................................... 08/07/78 08/07/78

New Jersey...................................... 07/01/75 07/01/75

New York........................................ 07/16/75 04/11/77

North Dakota.................................... 06/22/70 01/02/71

Oregon.......................................... 07/01/72 01/02/71

Pennsylvania.................................... 07/17/72 10/31/71

Rhode Island.................................... 10/01/81 10/01/81

South Dakota.................................... (\1\) 01/02/71

Tennessee....................................... 10/01/75 10/01/75

Washington...................................... 06/01 /73 06/01/73

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(\1\) Indicates USDA has not assumed meat inspection in the State shown.

Table 3 lists the number of meat, poultry, and other plants

inspected under Federal-State Cooperative Inspection Program (FSCIP)

agreements as of September 28, 1996. FSCIP agreements permit State

employees to carry out inspection in federally inspected plants.

Table 3.--Federal-State Cooperative Inspection Plants (Formerly Talmadge-Aiken)

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Meat and

State Meat Poultry poultry Sub Other Grand

plants plants plants total plants total

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Alabama............................................. 20 0 0 20 0 20

Georgia............................................. 11 0 41 52 0 52

Illinois............................................ 18 2 10 30 0 30

Mississippi......................................... 5 0 14 19 0 19

North Carolina...................................... 51 3 0 54 0 54

Oklahoma............................................ 13 0 1 14 0 14

Texas............................................... 7 1 14 22 0 22

Utah................................................ 8 0 5 13 0 13

Virginia............................................ 9 1 21 31 0 31

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Total......................................... 142 7 106 255 0 255

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[FR Doc. 97-15124 Filed 6-5-97; 1:51 pm]

BILLING CODE 3410-DM-P