AMS Issues Final Rule on Mandatory Country of Origin Labeling for Certain Agricultural Goods at Retail, Etc.

wild and farm raised fish and shellfish (covered fish commodities);

muscle cuts of beef (including veal), lamb, chicken, goat, and pork;

ground beef, ground lamb, ground chicken, ground goat, and ground pork;

perishable agricultural commodities;

macadamia nuts, pecans, and peanuts; and

ginseng.

In addition, effective March 16, 2009, AMS' final rule will make changes to certain COOL definitions, regulations on markings, recordkeeping requirements, etc. that will supersede the currently effective interim final rules.

(The interim final rule establishing the COOL requirements for covered fish commodities under 7 CFR Part 60 (published in October 2004, effective April 4, 2005) and the interim final rule establishing the COOL requirements for the other covered commodities¹ listed above under 7 CFR Part 65 (published in August 2008, effective September 30, 2008) remain in effect through March 15, 2009.

See ITT's Online Archives or 10/07/04 and 10/12/04 news, 04100715 and 04101220, for two-part BP summary of the October 2004 interim final rule. See ITT's Online Archives or 08/05/08 news, 08080520, for BP summary of the August 2008 interim final rule.)

Highlights of COOL Final Rule

Among other things, AMS' final rule implements the following (partial list):

Suppliers Must Continue to Inform Retailers of Country of Origin

The final rule continues to require, under 7 CFR 65.500(b)(1) and 7 CFR 60.400(b)(1), that any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, make available information to the buyer about the country(ies) of origin of the covered commodity. (For covered fish commodities, the method(s) of production must also be specified, i.e., wild and/or farm raised.)

This information may be provided either on the product itself, on the master shipping container, or in a document that accompanies the product through retail sale.

Importer Records Must Continue to Track Product from Port of Entry to Subsequent Recipient

For an imported covered commodity, the importer of record, as determined by U.S. Customs and Border Protection, must continue to ensure that their records provide clear product tracking from the port of entry into the U.S. to the immediate subsequent recipient and accurately reflect the country of origin of the item as identified in relevant CBP entry documents and information systems. Importers must maintain such records for a period of 1 yearfrom the date of the transaction.

Suppliers/Retailers Must Continue to Keep Certain Transaction Records, Etc.

Under the final rule, suppliers and retailers shall continue to make available to U.S. Department of Agriculture representatives upon request records maintained in the normal course of business that verify an origin (and method of production for covered fish commodities) claim, as applicable. Such records shall be provided within 5 business days of the request and may be kept in any location.

Producer affidavits shall be considered acceptable records that suppliers may utilize to initiate origin claims for all covered commodities, provided it is made by someone having first-hand knowledge of the origin of the covered commodity and identifies the covered commodity unique to the transaction. (See regulations at 7 CFR 60.400 and 65.500 for complete recordkeeping requirements for importers of record, retailers, and suppliers of covered commodities.)

Intermediary Suppliers/Retailers Not Liable for Certain Incorrect Designations

AMS' final rule adds new paragraphs under 7 CFR 60.400(b)(2) and (c)(4), and 7 CFR 65.500(b)(2) and (c)(3) stating that any intermediary supplier or retailer handling a covered commodity that is found to be designated incorrectly as to the country of origin (and/or method of production for covered fish commodities) shall not be held liable for a violation of the Agricultural Marketing Act by reason of the conduct of another if the intermediary supplier relied on the designation provided by the initiating supplier or other intermediary supplier, unless the intermediary supplier willfully disregarded information establishing that the country of origin (and/or method of production for covered fish commodities) declaration was false.

CBP-Approved Abbreviations May be Used for State, Regional, Etc. Designations

In response to comments received, under this final rule, abbreviations may be used for state, regional, or locality label designations for perishable agricultural commodities, peanuts, pecans, ginseng, and macadamia nuts whether domestically harvested or imported using official U.S. Postal Service abbreviations or other abbreviations approved by CBP.

(Under the interim final rules, only those abbreviations approved for use under CBP rules, regulations, and policies were acceptable.)

Restaurants, Processed Food (Including Cooked Items) Are Exempt

The final rule continues to exempt food service establishments (restaurants, bars, etc.) and processed food items (including those that are cooked, cured, smoked, and restructured) from COOL labeling requirements.

(See AMS' final rule for complete regulations and additional changes from the interim final rules, including additions and amendments to the definitions of "comingled covered commodities," "pre-labeled," "ground beef," "lamb," and "produced;" labeling requirements for certain muscle cut covered commodities; etc.)

¹The 2008 Farm Bill expanded the scope of the COOL program to include chicken, goat, macadamia nuts, pecans, and ginseng as covered commodities; added provisions for labeling products of multiple origins; as well as a number of other changes that were reflected in the interim final rule for the "other" covered commodities.

(See ITT's Online Archives or 06/21/07 news, 07062125, for BP summary of AMS' reopening the comment period on its October 2004 interim final rule for fish and shellfish covered commodities.

See ITT's Online Archives or 10/01/08 news, 08100120, for BP summary of the Food Safety and Inspection Service's six-month delay of enforcement of COOL labeling statements for meat and poultry.

See ITT's Online Archives or 01/12/09 news, 09011225, for BP summary of Canada, Nicaragua, and Mexico's request for World Trade Organization consultations on the U.S.' COOL provisions.)

AMS contact - Erin Morris (202) 720-5131

AMS final rule (D/N AMS-LS-07-0081, FR Pub 01/15/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-600.pdf

AMS guidance documents, including a summary of changes from the interim rule, abbreviations guidance, labeling options, etc. available at http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&navID=FinalRule&rightNav1=FinalRule&topNav=&leftNav=CommodityAreas&page=COOLRulesandRegulations&resultType=&acct=cntryoforgnlbl

AMS press release (dated 01/12/09) available at http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB/.cmd/ad/.ar/sa.retrievecontent/.c/6_2_1UH/.ce/7_2_5JM/.p/5_2_4TQ/.d/1/_th/J_2_9D/_s.7_0_A/7_0_1OB?PC_7_2_5JM_contentid=2009%2F01%2F0006.xml&PC_7_2_5JM