[Federal Register Volume 64, Number 198 (Thursday, October 14, 1999)]
[Notices]
[Pages 55694-55695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26733]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
[Docket No. 99-041N]
Exemption of Retail Store Operations From Inspection Requirements
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is publishing
this notice to advise interested persons of a change in the application
of the requirements for inspection under the Federal Meat Inspection
Act (FMIA) and the Poultry Products Inspection Act (PPIA). The United
States Court of Appeals for the District of Columbia Circuit recently
decided that retail stores exempt from federal inspection requirements
do not become subject to those requirements when they supply their own
kiosks with cooked hams and cooked turkeys that the retail stores have
sliced, glazed, and packaged. As a result, inspection under the FMIA or
the PPIA is not required if an otherwise exempt retail store transports
products such as these to additional locations before it sells them to
consumers.
FSIS is reviewing its regulations on the exemption of retail
operations from requirements for inspection under the FMIA and the
PPIA. After completing this review, the Agency intends to initiate
notice-and-comment rulemaking on the application of these requirements
and on the handling conditions necessary to ensure that products
delivered to consumers are not adulterated or misbranded.
FOR FURTHER INFORMATION CONTACT: Philip Derfler, Deputy Administrator,
Office of Policy, Program Development and Evaluation, Food Safety and
Inspection Service, Washington, DC 20250-3700; (202) 720-2710.
SUPPLEMENTARY INFORMATION: The Food Safety and Inspection Service
(FSIS) administers a regulatory program under the Federal Meat
Inspection Act (FMIA) (21 U.S.C. 601 et seq.) and the Poultry Products
Inspection Act (PPIA) (21 U.S.C. 451 et seq.) to protect the health and
welfare of consumers by preventing the distribution of products that
are unwholesome, adulterated, or misbranded. Both the FMIA and the PPIA
include requirements for federal inspection, and they prohibit selling
or transporting, offering for sale or transportation, or receiving for
transportation, in commerce, products that are adulterated or
misbranded and products required to be inspected unless they have been
inspected and passed (21 U.S.C. 458(a)(2) and 610(c)). Intrastate
operations and transactions are effectively subject to the same
requirements and prohibitions, pursuant to a State inspection program
or designation for federal inspection (21 U.S.C. 454(c)(1) and
661(c)(1)).
In The Original Honey Baked Ham Company of Georgia, Inc. v.
Glickman, et al., 172 F.3d 885, 886 (D.C. Cir. 1999), the United States
Court of Appeals for the District of Columbia Circuit decided that
Honey Baked Ham retail stores that are exempt from federal inspection
requirements do not become subject to those requirements when they
supply their own temporary kiosks (booths with refrigeration units)
with cooked hams and cooked turkeys that the retail stores have sliced,
glazed, and packaged. According to the Court of Appeals:
* * * That the company's retail stores supply temporary kiosks
during holiday seasons does not * * * transform them into ``hybrid
retail/wholesale'' establishments to which the federal inspection
requirements apply. A wholesaler does not sell to the ultimate
consumer; a wholesaler is a middleman who sells to a retailer. To
the extent that Honey Baked Ham's retail stores supply the company's
kiosks, they still do not fit within the category of
``wholesalers.'' The stores do not sell their products to the
kiosks; the kiosks are simply an extension of the stores' retail
operations. According to the * * * Department's own regulations, the
company's stores fit within the description of retail
establishments, kiosks or not. Their operations, of the sort
``traditionally and usually conducted at retail stores,'' will not
change when they supply kiosks. The stores glaze, slice and package
products. See 9 CFR Secs. 303.1(d)(2)(i)(a), (c), (e),
381.10(d)(2)(i). They sell to consumers only, not to retailers. See
9 CFR Secs. 303.1(d)(2)(iii)(a), 381.10(d)(2)(iii)(a). They use meat
and poultry products that are federally- or State-inspected and
passed. See 9 CFR Secs. 303.1(d)(2)(iii)(c), 381.10(d)(2)(iii)(c). *
* * [T]here is no indication that [Honey Baked] sales * * * will
exceed normal retail quantities. See 9 CFR Secs. 303.1(d)(2)(ii),
381.10(d)(2)(ii). Because the company's retail stores will not lose
their retail character or become ``similar'' to wholesale
establishments when the kiosk system is fully implemented, the
stores are not required to submit to federal inspection.
172 F.3d at 889.
Therefore, otherwise exempt retail store operations do not become
subject to inspection requirements because a retail store transports
products such as these to additional locations for sale to consumers.
Retail stores that believe their operations have been subjected to
federal inspection solely because they transport products to additional
locations before sale may request that inspection be terminated. (The
request should be directed to the district office for the district in
which a store is located.) The Agency is informing State inspection
program officials, as well as FSIS personnel, of this change.
In addition, FSIS is reviewing its regulations on the exemption of
retail operations from requirements for inspection under the FMIA or
the PPIA. After completing this review, the Agency intends to initiate
notice-and-comment rulemaking on the application of these requirements
and on the handling conditions necessary to ensure that products
delivered to consumers are not adulterated or misbranded. (See 21
U.S.C. 454, 455, 463(a), 464, 603 through 606, 623, 624, and 661.)
Additional Public Notification
Pursuant to Departmental Regulation 4300-4, ``Civil Rights Impact
Analysis,'' dated September 22, 1993, FSIS has considered the potential
civil rights impact of this notice on minorities, women, and persons
with disabilities. FSIS anticipates that this notice will not have a
negative or disproportionate impact on minorities, women, or persons
with disabilities. However, notices generally are designed to provide
information and public awareness of policy developments is important.
Consequently, in an effort to better ensure that minorities, women, and
persons with disabilities are aware of this notice, FSIS will announce
the publication of this Federal Register notice in the FSIS Constituent
Update.
FSIS provides a weekly FSIS Constituent Update, which is
communicated via fax to over 300 organizations and individuals. In
addition, the update is available on line through the FSIS web page
located at http://www.fsis.usda.gov. The web page is used to provide
information regarding FSIS policies, procedures, regulations, Federal
Register notices, FSIS public meetings, recalls, and any other types of
information that could affect or would be of interest to our
constituents/stakeholders. The constituent fax list consists of
industry, trade, and farm groups, consumer interest groups, allied
health professionals, scientific professionals, and other individuals
that have requested to be included.
Through these various channels, FSIS is able to provide information
to a much broader, more diverse audience. For more information and to
be added to the constituent fax list, fax your request to
[[Page 55695]]
the Congressional and Public Affairs Office, at (202) 720-5704.
Done at Washington, DC, on: October 6, 1999.
Thomas J. Billy,
Administrator.
[FR Doc. 99-26733 Filed 10-13-99; 8:45 am]
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