8 March 2006
-----------------------------------------------------------------------
[Federal Register: March 7, 2006 (Volume 71, Number 44)]
[Proposed Rules]
[Page 11326-11328]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07mr06-20]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
[[Page 11326]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Part 390
[Docket No. 04-006P]
[FDMS Docket Number FSIS-2005-0028]
RIN 0583-AD10
Availability of Lists of Retail Consignees During Meat or Poultry
Product Recalls
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Food Safety and Inspection Service (FSIS) is proposing to
amend the federal meat and poultry products inspection regulations to
provide that the Agency will make available to the public lists of the
retail consignees of meat and poultry products that have been
voluntarily recalled by a federally inspected meat or poultry products
establishment if product has been distributed to the retail level. FSIS
is proposing to routinely post these retail consignee lists on its Web
site as they are developed by the Agency during its recall verification
activities.
FSIS is proposing this action because it believes that the
efficiency of recalls will be improved if there is more information
available as to where products that have been recalled were sold. By
providing consumers more information about the locations where recalled
products have been sold, FSIS believes that consumers will be more
likely to identify and return such products to those locations or to
dispose of them. This action will apply only to meat and poultry
products.
DATES: Comments must be received on or before May 8, 2006. FSIS intends
to hold a public meeting on this issue during the comment period.
ADDRESSES: FSIS invites interested persons to submit comments on this
proposed rule. Comments may be submitted by any of the following
methods:
Federal eRulemaking Portal: This Web site provides the
ability to type short comments directly into the comment field on this
Web page or attach a file for lengthier comments. FSIS prefers to
receive comments through the Federal eRulemaking Portal. Go to http://www.regulations.gov
and, in the ``Search for Open Regulations'' box,
select ``Food Safety and Inspection Service'' from the agency drop-down
menu, and then click on ``Submit.'' In the Docket ID column, select
FDMS Docket Number FSIS-2005-0028 to submit or view public comments and
to view supporting and related materials available electronically.
After the close of the comment period, the docket can be viewed using
the ``Advanced Search'' function in Regulations.gov.
Mail, including floppy disks or CD-ROM's, and hand-or
courier-delivered items: Send to Docket Clerk, U.S. Department of
Agriculture, Food Safety and Inspection Service, 300 12th Street, SW.,
Room 102 Cotton Annex, Washington, DC 20250.
Electronic mail: fsis.regulationscomments@fsis.usda.gov.
All submissions received by mail and electronic mail must include
the Agency name and docket number 04-006P. All comments submitted in
response to this proposal, as well as research and background
information used by FSIS in developing this document, will be available
for public inspection in the FSIS Docket Room at the address listed
above between 8:30 a.m. and 4:30 p.m., Monday through Friday. The
comments also will be posted on the Agency's Web site at http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp
.
FOR FURTHER INFORMATION CONTACT: Lynn E. Dickey, Director, Regulations
and Petitions Policy Staff, Office of Policy, Program, and Employee
Development, Room 112, Cotton Annex, 300 12th Street, SW., Washington,
DC 20250-3700; Telephone (202) 720-2709, Fax (202) 690-0486.
SUPPLEMENTARY INFORMATION: FSIS is responsible for ensuring that meat
and poultry products are safe, wholesome, and accurately labeled. FSIS
enforces the Federal Meat Inspection Act (FMIA) and the Poultry
Products Inspection Act (PPIA). These two statutes require Federal
inspection and provide for Federal regulation of meat and poultry
products prepared for distribution in commerce for use as human food.
When there is reason to believe that meat or poultry products in
commerce are adulterated or misbranded, FSIS will request that the firm
that introduced the products into commerce recall them. If the
establishment does not agree to recall the products, FSIS has the
authority to detain and seek seizure of the products.
If the establishment does agree to recall the products, recall
information is widely disseminated by FSIS. For every recall, except
some Class III recalls, FSIS distributes a press release. FSIS send
recall information to wire services and media services in the areas
where the product was distributed. For recalls where no press release
is issued, FSIS distributes a Recall Notification Report (RNR) and
posts this on its Web site.
Through press releases and RNRs, FSIS provides the public with
information about meat and poultry recalls. This information includes:
A description of the food being recalled, any identifying codes, the
reason for the recall, the name of the producing establishment, the
level of product distribution (e.g., wholesale; retail) to which the
recall is to extend, the availability of product at the retail level,
the recall classification, and the appropriate contact persons for FSIS
and the recalling company. FSIS also lists those States to which
recalled product was shipped if fewer than 13 States were involved in
the recall. If the recall extends to more than 13 States, it is
considered to be a nationwide recall. In addition, FSIS sends recall
information to several media and constituent list-servers.
During the recall process, if products are recalled to the retail
level, FSIS requests that the firm conducting the recall provide FSIS
with a list of the consignees to whom the recalled meat or poultry
products were distributed. FSIS uses this information in verifying the
recall to ensure that the consignees have been notified of the recall
and are removing the products from the market and returning them to the
recalling firm. FSIS also obtains lists from the consignees of all
entities to which they distributed the product and contacts those
entities to ensure that they were notified. The Agency then obtains
those consignees' distribution lists and thereby traces the product
forward to the retail level.
[[Page 11327]]
FSIS has generally treated distribution lists obtained during
recalls as confidential business information, exempt from release under
the Freedom of Information Act (FOIA). In 2002, however, FSIS
promulgated regulations defining the circumstances and criteria under
which it would share product distribution information and customer
lists with States and other Federal agencies (67 FR 20009, April 24,
2002). FSIS will disclose this information to States and other Federal
government agencies to enable them to verify the removal of the
recalled products from commerce, provided that the State or Federal
agency has given to FSIS: (1) A written statement establishing its
authority to protect confidential distribution lists from public
disclosure, and (2) a written commitment not to disclose any
information provided to it by FSIS without the written permission of
the submitter of the information or written confirmation by FSIS that
the information no longer has confidential status (9 CFR 390.9). A
disclosure of product distribution information or customer lists to
States and other Federal agencies who have this authority and have made
such a commitment is not a disclosure to the public and does not waive
any FOIA exemption protection (9 CFR 390.9(c)).
Consumer groups and some State officials have advocated the public
release of information on where recalled meat and poultry products have
been shipped or distributed. These State officials have requested that
this information be provided to them without the limitations imposed by
FSIS' regulations (9 CFR 390.9(a)(1)), believing that they would be
better able to protect the public health. Similarly, some consumer
groups have asserted that the public can use this information to
identify more easily and effectively the product being recalled. These
State officials and consumer groups believe that making the retail
distribution information readily available will materially improve the
effectiveness of recalls.
While the current process is effective, FSIS believes that product
identification can be improved. While FSIS includes in its press
release the production code of the product recalled, and will in many
cases post a picture of the recalled product's label, it is often the
case that more product and often different product is returned than is
actually recalled. Therefore, FSIS believes that this proposal, if
adopted, would improve the efficiency of the recall process and address
consumer groups and State officials' concerns.
FSIS has concluded that it has authority to make available lists
the Agency has compiled during recalls of the retail consignees of meat
and poultry products that have been recalled, and that it would be
appropriate to do so to enhance the efficiency of recalls.
FSIS has concluded that making information identifying the retail
consignees of recalled products available to the public will improve
the efficiency of recalls by helping consumers to identify and focus on
the products that are recalled. In addition, making this retail
consignee information available will, we believe, help make clear that
other, similar products are not being recalled, and that there is no
reason to be concerned about such similar products. The Agency's
experience with recalls over time has shown that in many recalls, much
more product is returned than has actually been recalled. Often
products are returned that were not produced by the recalling company
or that were produced at different times or locations than the recalled
product.
FSIS is proposing to make available to the public on its Web site
the lists of the retail consignees of recalled meat or poultry products
that the Agency compiles in connection with its recall verification
activities. The retail consignee information will generally be lists
compiled by FSIS, and not the customer lists of any specific company.
The lists will contain only the names and locations of the identified
retail consignees of the recalled meat and poultry products. These
retail consignee lists will not include the names of intermediate
distributors of such products. Examples of intermediate distributors
include food service or institutional distributors. FSIS does not
believe that making lists of intermediate distributors routinely and
generally available during recalls is warranted. The information is of
little value to consumers but is often of commercial value to the
companies that rely on such intermediate distributors and firms to get
their products to the retail level. Accordingly, the Agency will not
make such information routinely available in connection with recalls.
However, this information will continue to be made available to State
agencies that have made a written commitment to FSIS in accordance with
9 CFR 390.9.
In proposing this action, FSIS is seeking the views of all
interested parties, including establishments, on this proposal. It is
also important to note that FSIS will hold a public meeting on this
proposal. The date and location of the meeting will be announced in the
Federal Register.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This proposal: (1) Preempts all state and local
laws and regulations that are inconsistent with this rule; (2) has no
retroactive effect; (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Executive Order 12866
This proposed rule was reviewed by the Office of Management and
Budget under Executive Order 12866 and was determined to be
significant.
FSIS considered several options, including amending its regulations
to include local health departments as entities that could receive
recall distribution lists or making the lists available only in
response to Freedom of Information requests and to State agencies with
agreements under 9 CFR 390.9. FSIS, however, chose to propose that the
Agency will make available to the public the names of retail consignees
of the recalled products that the Agency has compiled as a result of
its recall verification activities. This approach will alert individual
consumers, State and local authorities, and other Federal agencies of
the names of retail stores in which the recalled products may be found
in as expeditious a manner as possible. It will also not involve the
disclosure of confidential business information because the lists that
FSIS will make public will generally be lists that the Agency has
compiled, not the customer lists of any specific company, and only
information regarding retail outlets will be made public.
This action would not impose a monetary cost on establishments
conducting a recall, and the information proposed to be released would
not result in any competitive harm to the affected establishments. If
consumers use such information and are better able to identify and
return recalled meat and poultry products to the stores where they
purchased them, the recall process will be more timely and effective.
Although the benefits of the proposed action are not quantified, it is
reasonable to conclude that they are equal to or exceed the costs of
the rule, because costs are expected to be minimal.
Initial Regulatory Flexibility Analysis
The Agency has concluded that the rule will not have a significant
economic impact on a substantial
[[Page 11328]]
number of small entities. Consequently, an initial regulatory
flexibility analysis is not required.
Government Paperwork Elimination Act (GPEA)
FSIS is committed to achieving the goals of the GPEA, which
requires that Government agencies, in general, provide the public with
the option of submitting information or transacting business
electronically to the maximum extent possible. Under this proposed
rule, basic information provided to FSIS by official meat and poultry
products establishments voluntarily recalling adulterated meat and
poultry products may be submitted to the Agency electronically via e-
mail or facsimile. Allowing recalling establishments to do this would
reduce data collection time, and information processing and handling by
the establishments and FSIS.
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, in an effort to ensure that the
public and in particular minorities, women, and persons with
disabilities, are aware of this proposed rule, FSIS will announce it
on-line through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp
.
The Regulations.gov Web site is the central online rulemaking
portal of the United States government. It is being offered as a public
service to increase participation in the Federal government's
regulatory activities. FSIS participates in Regulations.gov and will
accept comments on documents published on the site. The site allows
visitors to search by keyword or Department or Agency for rulemakings
that allow for public comment. Each entry provides a quick link to a
comment form so that visitors can type in their comments and submit
them to FSIS. The Web site is located at http://www.regulations.gov.
FSIS also will 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, recalls, and other types of
information that could affect or would be of interest to our
constituents and stakeholders. The update is communicated via Listserv,
a free e-mail subscription service consisting of industry, trade, and
farm groups, consumer interest groups, allied health professionals,
scientific professionals, and other individuals who have requested to
be included. The update also is available on the FSIS Web page. Through
Listserv and the Web page, FSIS is able to provide information to a
much broader, more diverse audience.
In addition, FSIS offers an email subscription service which
provides an automatic and customized notification when popular pages
are updated, including Federal Register publications and related
documents. This service is available at http://www.fsis.usda.gov/news_and_events/email_subscription/
and allows FSIS customers to sign up
for subscription options across eight categories. 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 account.
List of Subjects in 9 CFR Part 390
Confidential business information, Freedom of information,
Government employees.
For the reasons discussed in the preamble, FSIS is proposing to
amend 9 CFR Chapter III, Subchapter D, as follows:
PART 390--FREEDOM OF INFORMATION AND PUBLIC INFORMATION
1. The authority citation for part 390 would be revised to read as
follows:
Authority: 5 U.S.C. 301, 552; 21 U.S.C. 451-471, 601-695; 7 CFR
1.3, 2.7.
2. A new Sec. 390.10 would added to read as follows:
Sec. 390.10 Availability of Lists of Retail Consignees during Meat or
Poultry Product Recalls.
(a) The Administrator of the Food Safety and Inspection Service
(FSIS), or designee, will publicly disclose the lists of the retail
consignees of recalled meat or poultry products that the Agency has
compiled to verify the removal of recalled product. These lists will be
available on the FSIS Web site.
(b) The lists that will be disclosed will contain only the names of
the identified retail consignees of recalled meat and poultry products
and their locations.
Done in Washington, DC, March 1, 2006.
Barbara J. Masters,
Administrator.
[FR Doc. 06-2125 Filed 3-6-06; 8:45 am]
BILLING CODE 3410-DM-P