Updating Administrative Requirements for Voluntary Shell Egg, Poultry, and Rabbit Grading, 42006-42015 [06-6159]
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42006
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 56 and 70
[Docket No. PY–02–003]
RIN 0581–AC25
Updating Administrative Requirements
for Voluntary Shell Egg, Poultry, and
Rabbit Grading
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
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SUMMARY: The Agricultural Marketing
Service (AMS) is amending the
administrative requirements in the
regulations governing the voluntary
shell egg, poultry, and rabbit grading
programs. The amendments update the
administrative requirements and make
minor, nonsubstantive changes for
clarity and uniformity of style. This
improves operational efficiency of the
grading programs by making the
administrative requirements more
accurate, clear, consistent, and easier to
use.
DATES: Effective Date: August 23, 2006.
FOR FURTHER INFORMATION CONTACT:
David Bowden, Jr., Chief,
Standardization Branch, (202) 720–
3506.
SUPPLEMENTARY INFORMATION:
Background
Voluntary shell egg, poultry, and
rabbit grading programs are provided for
under the Agricultural Marketing Act of
1946, as amended, and are offered on a
fee-for-service basis. The programs
operate under the regulations in 7 CFR
part 56 (Voluntary Grading of Shell
Eggs) and 7 CFR part 70 (Voluntary
Grading of Poultry Products and Rabbit
Products).
Supervisory personnel at national,
regional, and State levels are
responsible for overall operation of
these grading programs and
implementation of the regulations.
Historically, graders were licensed in
either shell egg grading or poultry
grading, some also in rabbit grading, and
they would use only one of the
regulations. Today, graders are
increasingly cross-utilized for both shell
egg and poultry grading, and use both 7
CFR parts 56 and 70.
Both regulations have been in effect
since the 1950s and have been amended
from time to time as requirements have
changed.
While each regulation has its own
commodity-specific requirements, both
regulations have the same or similar
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administrative requirements. A review
of the administrative requirements
identified general editorial or
housekeeping changes that were
needed. These changes enable program
staff at all levels to implement the
administrative requirements of both
regulations consistently, uniformly,
easily, and fairly. The amendments do
not change how the administrative
requirements are administered, how the
commodity-specific requirements are
implemented, or the responsibilities of
program users.
The amendments make the
administrative requirements more
accurate, easier to implement, and
easier to follow.
For example:
• References to the official U.S.
Standards, Grades, and Weight Classes
for Shell Eggs and the official U.S.
Classes, Standards, and Grades for
Poultry and Rabbits reflect that they are
no longer in the Code of Federal
Regulations.
• Punctuation, grammar,
capitalization, abbreviations, legal
phrases, terms, format, and style are
consistent with current regulatory
documents, the U.S. Government
Printing Office Style Manual, and the
Federal Register Document Drafting
Handbook. Pronouns used are genderneutral, consistent with current writing
style.
• Redesignated sections make
requirements easier to locate in the
regulations.
• Sections about nondiscrimination
and political activity for Federal
employees reflect current requirements.
• Editing of Agency names and
displays of control numbers assigned to
information collection requirements by
the Office of Management and Budget
saves space and avoids the repetitive
use of certain numbers and words.
• ‘‘Poultry Programs’’ correctly
identifies the organization.
• ‘‘Electronic means’’ correctly
reflects current technology.
• ‘‘Agricultural Marketing Service or
AMS’’ is added for consistency with
other Agency regulations.
• Duplicate sections are removed.
• Inconsistencies in the wording of
headings and sections common to both
regulations are harmonized, where
feasible and practical, to assist program
staff at all levels.
• Administrative requirements that
have historically been implemented in
both grading programs, but are found in
only one of the regulations, are added to
the regulation where they are not
specified.
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Proposed Rule and Comments
A proposed rule was published in the
Federal Register (71 FR 2168, January
13, 2006). During the 30 day comment
period that ended February 13, the
agency received one comment. The
commenter expressed concern that
comments could not be accepted
electronically. The agency determined
that the address provided was
incomplete. A correction was published
in the Federal Register (70 FR 4056,
January 25). Other concerns expressed
by the commenter were not pertinent to
the rule or were outside the scope of the
regulations being revised.
Executive Order 12866
This rule has been determined to be
not significant for purposes of Executive
Order 12866 and, therefore, has not
been reviewed by the Office of
Management and Budget.
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This action is not intended to
have retroactive effect. This rule does
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule. There are no administrative
procedures that must be exhausted prior
to any judicial challenge to the
provisions of this rule.
Effect on Small Entities
The purpose of the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) is to fit regulatory actions to the
scale of businesses subject to such
actions in order that small businesses
will not be unduly or disproportionately
burdened. The Small Business
Administration (SBA) (13 CFR 121.201)
defines small entities that produce and
process poultry as those whose annual
number of employees is less than 500,
and defines small entities that produce
and process chicken eggs as those
whose annual receipts are less than
$9,000,000. Approximately 625,500 egg
laying hens are needed to produce
enough eggs to gross $9,000,000.
There are about 376 users of Poultry
Programs’ grading services. These
official plants can pack eggs, poultry,
and rabbits in packages bearing the
USDA grade shield when AMS graders
are present to certify that the products
meet the grade requirements as labeled.
Many of these users are small entities
under the criteria established by the
SBA. These entities are under no
obligation to use grading services as
authorized under the Agricultural
Marketing Act of 1946.
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Pursuant to requirements set forth in
the RFA, the AMS has considered the
economic impact of this rule on small
entities. This rule is editorial and
housekeeping in nature. It affects
administrative requirements by
updating language and references that
are outdated. It harmonizes the
administrative content of both
regulations. It does not change how the
administrative requirements are
administered, how commodity-specific
requirements are implemented, or the
responsibilities of program users.
Accordingly, AMS has determined that
provisions of this rule do not have a
significant economic impact on a
substantial number of small entities.
Paperwork Reduction
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the Office of Management and
Budget (OMB) has previously approved
the information collection and
recordkeeping requirements included in
this rule, and there are no new
requirements. The assigned OMB
control numbers are 0581–0127 and
0581–0128.
List of Subjects
7 CFR Part 56
Eggs and egg products, Food grades
and standards, Food labeling, Reporting
and recordkeeping requirements.
7 CFR Part 70
Food grades and standards, Food
labeling, Poultry and poultry products,
Rabbits and rabbit products, Reporting
and recordkeeping requirements.
For the reasons set forth in the
preamble, Title 7, Code of Federal
Regulations, parts 56 and 70 are
amended as follows:
I
PART 56—VOLUNTARY GRADING OF
SHELL EGGS
1. The authority citation for part 56
continues to read as follows:
I
Authority: 7 U.S.C. 1621–1627.
§ 56.1
[Amended]
2. Section § 56.1 amended as follows:
A. Remove the definition of Service.
B. Revise the introductory text and the
definitions of Act, Applicant,
Department, Grader, Grading certificate,
Official plant or official establishment,
Origin grading, Regulations, and
Sampling, in alphabetical order, as set
forth below.
I C. Add the definitions of Acceptable,
Identify, Shell egg grading service, State
supervisor or Federal-State supervisor,
and United States Standards for Quality
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I
I
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of Individual Shell Eggs, in alphabetical
order, as set forth below.
I D. Alphabetize the definitions of
Administrator and Agricultural
Marketing Service.
I E. Amend the definition of
Administrator by removing the words
‘‘Agricultural Marketing Service of the
Department’’ and adding ‘‘AMS’’ in
their place and removing the word ‘‘his’’
and adding ‘‘the Administrator’s’’ in its
place.
I F. Amend the definition of Grading or
grading service by removing the word
‘‘Service’’ and adding ‘‘AMS’’ in its
place at the end of paragraph (1).
I G. Amend the definition of Holiday or
legal holiday by removing the words
‘‘shall mean’’ and adding ‘‘means’’ in
their place.
I H. Amend the definition of Secretary
by removing the word ‘‘his’’ and adding
‘‘the Secretary’s’’ in its place.
The additions and revisions, in
alphabetical order, read as follows:
§ 56.1 Meaning of words and terms
defined.
For the purpose of the regulations in
this part, words in the singular shall be
deemed to import the plural and vice
versa, as the case may demand. Unless
the context otherwise requires, the
terms shall have the following meaning:
Acceptable means suitable for the
purpose intended by the AMS.
Act means the applicable provisions
of the Agricultural Marketing Act of
1946 (60 Stat. 1087, as amended; 7
U.S.C. 1621 et seq.), or any other act of
Congress conferring like authority.
*
*
*
*
*
Applicant means any interested
person who requests any grading
service.
*
*
*
*
*
Department means the United States
Department of Agriculture (USDA).
*
*
*
*
*
Grader means any Federal or State
employee or the employee of a local
jurisdiction or cooperating agency to
whom a license has been issued by the
Secretary to investigate and certify in
accordance with the regulations in this
part, the class, quality, quantity, or
condition of products.
*
*
*
*
*
Grading certificate means a statement,
either written or printed, issued by a
grader pursuant to the Act and the
regulations in this part, relative to the
class, quantity, quality, or condition of
products.
*
*
*
*
*
Identify means to apply official
identification to products or the
containers thereof.
*
*
*
*
*
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Official plant or official establishment
means one or more buildings or parts
thereof comprising a single plant in
which the facilities and methods of
operation therein have been approved
by the Administrator as suitable and
adequate for grading service and in
which grading is carried on in
accordance with the regulations in this
part.
*
*
*
*
*
Origin grading means a grading made
on a lot of eggs at a plant where the eggs
are graded and packed.
*
*
*
*
*
Regulations means the provisions in
this entire part and such United States
standards, grades, and weight classes as
may be in effect at the time grading is
performed.
Sampling means the act of taking
samples of any product for grading or
certification.
*
*
*
*
*
Shell egg grading service means the
personnel who are actively engaged in
the administration, application, and
direction of shell egg grading programs
and services pursuant to the regulations
in this part.
*
*
*
*
*
State supervisor or Federal-State
supervisor means any authorized and
designated individual who is in charge
of the shell egg grading service in a
State.
United States Standards for Quality of
Individual Shell Eggs means the official
U.S. Standards, Grades, and Weight
Classes for Shell Eggs (AMS 56) that are
maintained by and available from
Poultry Programs, AMS.
I 3. The undesignated center heading
preceding § 56.3 is revised to read as
follows:
General
§ 56.3
[Amended]
4. Section 56.3 is amended by:
A. Removing paragraph designation
(a).
I B. Removing paragraph (b).
I C. Adding the words ‘‘the regulations
in’’ immediately after the words ‘‘Act
and’’ in the first sentence.
I D. Removing the words ‘‘Agricultural
Marketing Service’’ and adding ‘‘AMS’’
in their place in the last sentence.
I 5. The undesignated center heading
preceding § 56.4 is removed.
I
I
§ 56.4
[Amended]
6. In § 56.4, paragraph (a) is amended
in the first sentence by adding the
words ‘‘for Shell Eggs’’ after ‘‘Classes’’
and removing the words ‘‘as contained
in subpart C of this part.’’
I
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7. The section heading for § 56.5 is
revised to read as follows:
I
§ 56.5
*
Accessibility of product.
*
§ 56.6
*
*
*
[Amended]
8. Section 56.6 is amended in the first
sentence by removing the word
‘‘applicable’’ and adding ‘‘responsible’’
in its place and adding the words ‘‘in
accordance with instructions issued by
the Administrator’’ immediately
following the word ‘‘rendered’’ in the
second sentence.
I 9. Section 56.7 is added to read as
follows:
I
§ 56.7
Nondiscrimination.
The conduct of all services and the
licensing of graders under these
regulations shall be accomplished
without discrimination as to race, color,
national origin, sex, religion, age,
disability, political beliefs, sexual
orientation, or marital or family status.
I 10. Section 56.9 is revised to read as
follows:
§ 56.9
OMB control number.
(a) Purpose. The collecting of
information requirements in this part
has been approved by the Office of
Management and Budget (OMB) and
assigned OMB control number 0581–
0128.
(b) Display.
§ 56.11
SECTIONS WHERE INFORMATION COLLECTION REQUIREMENTS ARE IDENTIFIED AND DESCRIBED
56.3(a)
56.4(a)
56.10(a)
56.11
56.12
56.17(b)
56.18
56.21(a)
56.21(b)
56.21(c)
56.23
56.24
56.25
56.26
56.30
56.31(a)
56.35(b)
56.35(c)
56.37
56.52(a)(l)
56.52(a)(4)
56.52(b)(1)
56.52(b)(3)(ii)
56.54(b)(1)
56.54(b)(3)(ii)
56.56(a)
56.57
56.58
56.60
56.62
56.76(f)(7)
56.76(h)
11. The undesignated center heading
preceding § 56.10 is revised to read as
follows:
I
Licensed and Authorized Graders
*
*
*
*
*
12. Section 56.10 is revised to read as
follows:
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§ 56.10 Who may be licensed and
authorized.
(a) Any person who is a Federal or
State employee, the employee of a local
jurisdiction, or the employee of a
cooperating agency possessing proper
qualifications as determined by an
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examination for competency and who is
to perform grading service under this
part, may be licensed by the Secretary
as a grader.
(b) All licenses issued by the
Secretary shall be countersigned by the
officer in charge of the shell egg grading
service of the AMS or any other
designated officer.
(c) Any person, who is employed at
any official plant and possesses proper
qualifications, as determined by the
Administrator, may be authorized to
candle and grade eggs on the basis of the
‘‘U.S. Standards for Quality of
Individual Shell Eggs,’’ with respect to
eggs purchased from producers or eggs
to be packaged with official
identification. In addition, such
authorization may be granted to any
qualified person to act as a ‘‘quality
assurance inspector’’ in the packaging
and grade labeling of products. No
person to whom such authorization is
granted shall have authority to issue any
grading certificates, grading
memoranda, or other official
documents; and all eggs which are
graded by any such person shall
thereafter be check graded by a grader.
I 13. Section 56.11 is revised to read as
follows:
Financial interest of graders.
Graders shall not render service on
any product in which they are
financially interested.
I 14. Section 56.12 is revised to read as
follows:
§ 56.12
Suspension of license; revocation.
Pending final action by the Secretary,
any person authorized to countersign a
license to perform grading service may,
whenever such action is deemed
necessary to assure that any grading
service is properly performed, suspend
any license to perform grading service
issued pursuant to this part, by giving
notice of such suspension or revocation
to the respective licensee, accompanied
by a statement of the reasons therefor.
Within 7 days after the receipt of the
aforesaid notice and statement of
reasons, the licensee may file an appeal
in writing with the Secretary, supported
by any argument or evidence that the
licensee may wish to offer as to why
their license should not be further
suspended or revoked. After the
expiration of the aforesaid 7-day period
and consideration of such argument and
evidence, the Secretary will take such
action as deemed appropriate with
respect to such suspension or
revocation. When no appeal is filed
within the prescribed 7 days, the license
to perform grading service is revoked.
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15. Section 56.13 is revised to read as
follows:
I
§ 56.13
Cancellation of license.
Upon termination of the services of a
licensed grader, the grader’s license
shall be immediately surrendered for
cancellation.
§ 56.14
[Amended]
16. Section 56.14 is amended by
removing the word ‘‘he’’ and adding
‘‘the licensee’’ in its place.
I 17. Section 56.15 is revised to read as
follows:
I
§ 56.15
Political activity.
Federal graders may participate in
certain political activities, including
management of and participation in
political campaigns, in accordance with
AMS policy. Graders are subject to these
rules while they are on leave with or
without pay, including furlough;
however the rules do not apply to
cooperative employees not under
Federal supervision and intermittent
employees on the days they perform no
service. Willful violations of the
political activity rules will constitute
grounds for removal from the AMS.
I 18. Section 56.16 is revised to read as
follows:
§ 56.16
Identification.
Graders shall have in their possession
at all times, and present upon request
while on duty, the means of
identification furnished to them by the
Department.
§ 56.17 Equipment and facilities for
graders.
19. In § 56.17, the section heading is
revised as set forth above and the
introductory text and paragraph (b) are
revised to read as follows:
Equipment and facilities to be
furnished by the applicant for use of
graders in performing service on a
resident basis shall include, but not be
limited to, the following:
*
*
*
*
*
(b) Furnished office space, a desk, and
file or storage cabinets (equipped with
a satisfactory locking device) suitable
for the security and storage of official
supplies, and other facilities and
equipment as may otherwise be
required. Such space and equipment
must meet the approval of the national
supervisor.
I 20. Section 56.19 is added
immediately following § 56.18 and
before the undesignated center heading
to read as follows:
I
§ 56.19
Prerequisites to grading.
Grading of products shall be rendered
pursuant to the regulations in this part
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and under such conditions and in
accordance with such methods as may
be prescribed or approved by the
Administrator.
I 21. The undesignated center heading
preceding § 56.20 is revised to read as
follows:
Application for Grading Service
22. Section 56.20 is revised to read as
follows:
I
§ 56.20
Who may obtain grading service.
An application for grading service
may be made by any interested person,
including, but not being limited to any
authorized agent of the United States,
any State, county, municipality, or
common carrier.
§ 56.21
[Amended]
23. In § 56.21, paragraph (a) is
amended by removing the words ‘‘basis
may’’ and adding ‘‘basis shall’’ in their
place and paragraph (b) is amended in
the second sentence by adding the
words ‘‘, or at the AMS Web site.’’ after
‘‘office.’’
I 24. Section 56.22 is revised to read as
follows:
I
§ 56.22
Filing of application.
An application for grading service
shall be regarded as filed only when
made pursuant to the regulations in this
part.
I 25. Section 56.24 is revised to read as
follows:
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§ 56.24
Rejection of application
(a) An application for grading service
may be rejected by the Administrator:
(1) Whenever the applicant fails to
meet the requirements of the regulations
prescribing the conditions under which
the service is made available;
(2) Whenever the product is owned by
or located on the premises of a person
currently denied the benefits of the Act;
(3) Where any individual holding
office or a responsible position with or
having a substantial financial interest or
share in the applicant is currently
denied the benefits of the Act or was
responsible in whole or in part for the
current denial of the benefits of the Act
to any person;
(4) Where the Administrator
determines that the application is an
attempt on the part of a person currently
denied the benefits of the Act to obtain
grading services;
(5) Whenever the applicant, after an
initial survey has been made in
accordance with the regulations, fails to
bring the grading facilities and
equipment into compliance with the
regulations within a reasonable period
of time;
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(6) Notwithstanding any prior
approval whenever, before inauguration
of service, the applicant fails to fulfill
commitments concerning the
inauguration of the service;
(7) When it appears that to perform
the services specified in this part would
not be to the best interests of the public
welfare or of the Government; or
(8) When it appears to the
Administrator that prior commitments
of the Department necessitate rejection
of the application.
(b) Each such applicant shall be
promptly notified by registered mail of
the reasons for the rejection. A written
petition for reconsideration of such
rejection may be filed by the applicant
with the Administrator if postmarked or
delivered within 10 days after the
receipt of notice of the rejection. Such
petition shall state specifically the
errors alleged to have been made by the
Administrator in rejecting the
application. Within 20 days following
the receipt of such a petition for
reconsideration, the Administrator shall
approve the application or notify the
applicant by registered mail of the
reasons for the rejection thereof.
I 26. Section 56.25 is revised to read as
follows:
§ 56.25
Withdrawal of Application.
An application for grading service
may be withdrawn by the applicant at
any time before the service is performed
upon payment by the applicant, of all
expenses incurred by the AMS in
connection with such application.
§ 56.27
[Amended]
27. Section 56.27 is amended by
adding the words ‘‘and subject to the
availability of qualified graders’’
immediately after ‘‘practicable.’’
I 28. Section 56.28 is printed twice in
the 2006 Code of Federal Regulations.
The first copy should be removed.
I 29. Section 56.29 is added to read as
follows:
I
§ 56.29 Suspension or withdrawal of plant
approval for correctable cause.
(a) Any plant approval given pursuant
to the regulations in this part may be
suspended by the Administrator for:
(1) Failure to maintain grading
facilities and equipment in a satisfactory
state of repair, sanitation, or cleanliness;
(2) The use of operating procedures
which are not in accordance with the
regulations in this part; or
(3) Alterations of grading facilities or
equipment which have not been
approved in accordance with the
regulations in this part.
(b) Whenever it is feasible to do so,
written notice in advance of a
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suspension shall be given to the person
concerned and shall specify a
reasonable period of time in which
corrective action must be taken. If
advance written notice is not given, the
suspension action shall be promptly
confirmed in writing and the reasons
therefor shall be stated, except in
instances where the person has already
corrected the deficiency. Such service,
after appropriate corrective action is
taken, will be restored immediately, or
as soon thereafter as a grader can be
made available. During such period of
suspension, grading service shall not be
rendered. However, the other provisions
of the regulations pertaining to
providing grading service on a resident
basis will remain in effect unless such
service is terminated in accordance with
the provisions of this part.
(c) If the grading facilities or methods
of operation are not brought into
compliance within a reasonable period
of time as specified by the
Administrator, the Administrator shall
initiate withdrawal action pursuant to
the Rules of Practice Governing Formal
Adjudicatory Proceedings (7 CFR part 1,
subpart H), and the operator shall be
afforded an opportunity for an oral
hearing upon written request in
accordance with such Rules of Practice,
with respect to the merits or validity of
the withdrawal action, but any
suspension shall continue in effect
pending the outcome of such hearing
unless otherwise ordered by the
Administrator. Upon withdrawal of
grading service in an official plant, the
plant approval shall also become
terminated and all labels, seals, tags, or
packaging material bearing official
identification shall, under the
supervision of a person designated by
the AMS, either be destroyed or the
official identification completely
obliterated or sealed in a manner
acceptable to the AMS.
(d) In any case where grading service
is withdrawn under this section, the
person concerned may thereafter apply
for grading service as provided in
§§ 56.20 through 56.29 of these
regulations.
I 30. The undesignated center heading
preceding § 56.30 is removed.
I 31. Section 56.30 is revised to read as
follows:
§ 56.30 Application for grading service in
official plants; approval.
Any person desiring to process and
pack products in a plant under grading
service must receive approval of such
plant and facilities as an official plant
prior to the rendition of such service.
An application for grading service to be
rendered in an official plant shall be
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approved according to the following
procedure: When application has been
filed for grading service, as aforesaid,
the State supervisor or the supervisor’s
assistant shall examine the grading
office, facilities, and equipment and
specify any facility or equipment
modifications needed for the service.
When the plant survey has been
completed and approved in accordance
with the regulations in this part, service
may be installed.
I 32. The undesignated center heading
preceding § 56.31 is revised to read as
follows:
Reports
33. Section 56.31 is revised to read as
follows:
Report of grading work.
Reports of grading work performed
within official plants shall be forwarded
to the Administrator by the grader in a
manner as may be specified by the
Administrator.
§ 56.32
§ 56.46
[Amended]
39. In § 56.46, paragraph (c) is
amended by removing the word
‘‘Supervisor’’ and adding ‘‘supervisor’’
in its place.
I
§ 56.49
[Amended]
40. In § 56.49, the first sentence is
amended by removing the word
‘‘service’’ the first time it appears and
adding ‘‘AMS’’ in its place.
I
I
§ 56.31
(b) Fees and charges for any grading
service shall, unless otherwise required
pursuant to paragraph (c) of this section,
be paid by check, draft, or money order
payable to the Agricultural Marketing
Service and remitted promptly to the
AMS.
*
*
*
*
*
[Redesignated as § 56.38]
34. Section 56.32 is redesignated as
§ 56.38 and a new § 56.32 is added to
read as follows:
I
41. In § 56.52, the heading is revised
as set forth above and paragraph (a) is
amended by removing the words
‘‘Agricultural Marketing Service, U.S.
Department of Agriculture (hereinafter
referred to as ‘‘the AMS’’)’’ and adding
‘‘AMS’’ in their place.
§ 56.61
I
[Amended]
The applicant for grading service shall
furnish to the grader rendering such
service such information as may be
required for the purposes of this part.
I 35. Section 56.33 is added
immediately following § 56.32 and
before the undesignated center heading
to read as follows:
42. In § 56.54, paragraph (a) is
amended in the first sentence by
removing the words ‘‘Agricultural
Marketing Service, U.S. Department of
Agriculture (hereinafter referred to as
‘‘AMS’’)’’ and adding ‘‘AMS’’ in their
place and paragraph (b)(5) is amended
by removing the words ‘‘part 55 or.’’
I 43. Section 56.55 is revised to read as
follows:
§ 56.33
§ 56.55
Report of Violations
§ 56.35
[Amended]
36. In § 56.35, paragraph (c) is
amended in the first sentence by
removing the words ‘‘with the labeling
on’’ and adding ‘‘on the labeling of’’ in
their place.
I 37. The section heading of § 56.36 is
revised to read as follows:
I
§ 56.36 Form of grademark and
information required.
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*
*
§ 56.45
*
*
*
Payment of fees and charges.
38. In § 56.45, the section heading is
revised as set forth above and paragraph
(b) is revised to read as follows:
*
*
*
*
*
I
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Disposition.
§ 56.52 Charges for continuous grading
performed on a resident basis.
I
Each grader shall report, in the
manner prescribed by the
Administrator, all violations of and
noncompliance with the Act and the
regulations in this part of which such
grader has knowledge.
§ 56.57
45. In § 56.57, the section heading is
revised as set forth above and in the first
sentence the words ‘‘person designated
by him’’ are removed and ‘‘the
applicant’s designee’’ are added in their
place.
§ 56.54
§ 56.32 Information to be furnished to
graders.
certificate covering each product graded
by such grader. A grader’s name may be
signed on a grading certificate by a
person other than the grader, if such
person has been designated as the
authorized agent of such grader by the
national supervisor: Provided, That the
certificate is prepared from an official
memorandum of grading signed by the
grader: And provided further, That a
notarized power of attorney authorizing
such signature has been issued to such
person by the grader and is on file in the
office of grading. In such case, the
authorized agent shall sign both the
agent’s name and the grader’s name,
e.g., ‘‘John Doe by Mary Roe.’’
Forms.
Grading certificates and sampling
report forms (including appeal grading
certificates and regrading certificates)
shall be issued on forms approved by
the Administrator.
I 44. Section 56.56 is revised to read as
follows:
I
§ 56.56
Issuance.
(a) Resident grading basis. Certificates
will be issued only upon request
therefor by the applicant or the AMS.
When requested, a grader shall issue a
certificate covering product graded by
such grader. In addition, a grader may
issue a grading certificate covering
product graded in whole or in part by
another grader when the grader has
knowledge that the product is eligible
for certification based on personal
examination of the product or official
grading records.
(b) Other than resident grading. Each
grader shall, in person or by the grader’s
authorized agent, issue a grading
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I
[Amended]
46. In § 56.61, paragraph (b) is
amended by adding the words
‘‘determination of the’’ immediately
following ‘‘with the’’ and adding the
words ‘‘with the regional director’’
immediately following ‘‘request’’.
I 47. In § 56.64, paragraph (a) is revised
to read as follows:
I
§ 56.64
Who shall perform the appeal.
(a) An appeal grading or review of a
decision requested under § 56.61(a)
shall be made by the grader’s immediate
supervisor, or by one or more licensed
graders assigned by the immediate
supervisor.
*
*
*
*
*
I 48. In § 56.65, paragraphs (a) and (b)
are revised to read as follows:
§ 56.65
Procedures for appeal gradings.
(a) The appeal sample shall consist of
product taken from the original sample
container plus an equal number of
samples selected at random.
(b) When the original samples are not
available or have been altered, such as
the removal of undergrades, the appeal
sample size for the lot shall consist of
double the samples required in
§ 56.4(b).
*
*
*
*
*
§ 56.66
[Amended]
49. Section 56.66 is amended in the
fourth sentence by removing the words
‘‘grade mark’’ and adding ‘‘grademark’’
in their place.
I 50. A new undesignated center
heading is added following § 56.66 to
read as follows:
I
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Denial of Service
51. Sections 56.68 through 56.74 are
added to read as follows:
I
§ 56.68
Debarment.
The acts or practices set forth in
§§ 56.69 through 56.74, or the causing
thereof, may be deemed sufficient cause
for the debarment by the Administrator
of any person, including any agents,
officers, subsidiaries, or affiliates of
such person, from all benefits of the act
for a specified period. The Rules of
Practice Governing Formal Adjudicatory
Proceedings (7 CFR part 1, subpart H)
shall be applicable to such debarment
action.
§ 56.69 Misrepresentation, deceptive, or
fraudulent act or practice.
Any willful misrepresentation or any
deceptive or fraudulent act or practice
found to be made or committed by any
person in connection with:
(a) The making or filing of an
application for any grading service,
appeal, or regrading service;
(b) The making of the product
accessible for sampling or grading;
(c) The making, issuing, or using or
attempting to issue or use any grading
certificate, symbol, stamp, label, seal, or
identification authorized pursuant to
the regulations in this part;
(d) The use of the terms ‘‘United
States’’ or ‘‘U.S.’’ in conjunction with
the grade of the product;
(e) The use of any of the aforesaid
terms or any official stamp, symbol,
label, seal, or identification in the
labeling or advertising of any product.
§ 56.70
Use of facsimile forms.
Using or attempting to use a form
which simulates in whole or in part any
certificate, symbol, stamp, label, seal or
identification authorized to be issued or
used under the regulations in this part.
§ 56.71
Willful violation of the regulations.
Any willful violation of the
regulations in this part or the Act.
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§ 56.72 Interfering with a grader or
employee of the AMS.
Any interference with or obstruction
or any attempted interference or
obstruction of or assault upon any
graders, licensees, or employees of the
AMS in the performance of their duties.
The giving or offering, directly or
indirectly, of any money, loan, gift, or
anything of value to an employee of the
AMS or the making or offering of any
contribution to or in any way
supplementing the salary, compensation
or expenses of an employee of the AMS
or the offering or entering into a private
contract or agreement with an employee
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of the AMS for any services to be
rendered while employed by the AMS.
§ 56.73
Misleading labeling.
The use of the terms ‘‘Government
Graded’’, ‘‘Federal-State Graded’’, or
terms of similar import in the labeling
or advertising of any product without
stating in the label or advertisement the
U.S. grade of the product as determined
by an authorized grader.
§ 56.74
Miscellaneous.
The existence of any of the conditions
set forth in § 56.24 constituting the basis
for the rejection of an application for
grading service.
PART 70—VOLUNTARY GRADING OF
POULTRY PRODUCTS AND RABBIT
PRODUCTS
52. The authority citation for part 70
continues to read as follows:
I
Authority: 7 U.S.C. 1621–1627.
53. The undesignated center heading
preceding § 70.1 is revised to read as
follows:
I
Definitions
§ 70.1
[Amended]
54. Section 70.1 is amended as
follows:
I A. Remove the definition of Service.
I B. Revise the section heading, the
introductory text, and the definitions of
Chief of the Grading Branch and
National supervisor.
I C. Add the definitions of Agricultural
Marketing Service, Interested party,
Sampling, United States Classes,
Standards, and Grades for Poultry, and
United States Classes, Standards, and
Grades for Rabbits, in alphabetical
order, as set forth below.
I D. Amend the definition of
Acceptable by removing the words ‘‘and
acceptable to the Service’’ and adding
‘‘by the AMS’’ in their place.
I E. Amend the definition of
Administrator by removing the words
‘‘Agricultural Marketing Service of the
Department’’ and adding ‘‘AMS’’ in
their place and removing the word ‘‘his’’
and adding ‘‘the Administrator’s’’ in its
place.
I F. Amend the definition of Class by
adding the words ‘‘or species’’ after
‘‘kind’’.
I G. Amend the definition of
Department by adding the word
‘‘(USDA)’’ after ‘‘Agriculture.’’
I H. Amend the definition of Grading
certificate by adding the words ‘‘Act and
the’’ after ‘‘pursuant to the.’’
I I. Amend the definition Holiday or
Legal Holiday by removing the words
‘‘Legal Holiday shall mean’’ and adding
‘‘legal holiday means’’ in their place.
I
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42011
J. Amend the definition of Secretary
by removing the word ‘‘his’’ and adding
‘‘the Secretary’s’’ in its place.
I The additions and revisions, in
alphabetical order, read as follows:
I
§ 70.1 Meaning of words and terms
defined.
For the purpose of the regulations in
this part, words in the singular shall be
deemed to import the plural and vice
versa, as the case may demand. Unless
the context otherwise requires, the
terms shall have the following meaning:
*
*
*
*
*
Agricultural Marketing Service or
AMS means the Agricultural Marketing
Service of the Department.
*
*
*
*
*
Chief of the Grading Branch means
Chief of the Grading Branch, Poultry
Programs, AMS.
*
*
*
*
*
Interested party means any person
financially interested in a transaction
involving any grading service.
*
*
*
*
*
National supervisor means the officer
in charge of the poultry grading service
of the AMS, and other employees of the
Department as may be designated by the
national supervisor.
*
*
*
*
*
Sampling means the act of taking
samples of any product for grading or
certification.
*
*
*
*
*
United States Classes, Standards, and
Grades for Poultry means the official
U.S. Classes, Standards, and Grades for
Poultry (AMS 70.200 et seq.) that are
maintained by and available from
Poultry Programs, AMS.
United States Classes, Standards, and
Grades for Rabbits means the official
U.S. Classes, Standards, and Grades for
Rabbits (AMS 70.300 et seq.) that are
maintained by and available from
Poultry Programs, AMS.
§ 70.2
[Amended]
55. In § 70.2, paragraph (c) is amended
by removing the word ‘‘Grade’’ and
adding ‘‘grade’’ in its place.
I 56. An undesignated center heading is
added preceding § 70.3 to read as
follows:
I
General
57. Section 70.3 is revised to read as
follows:
I
§ 70.3
Administration.
The Administrator shall perform, for
and under the supervision of the
Secretary, such duties as the Secretary
may require in the enforcement or
administration of the provisions of the
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Act and the regulations in this part. The
Administrator is authorized to waive for
limited periods any particular
provisions of the regulations in this part
to permit experimentation so that new
procedures, equipment, grading, and
processing techniques may be tested to
facilitate definite improvements and at
the same time to determine full
compliance with the spirit and intent of
the regulations in this part. The AMS
and its officers and employees shall not
be liable in damages through acts of
commission or omission in the
administration of this part.
I 58. Section 70.5 is revised to read as
follows:
§ 70.5
Nondiscrimination.
The conduct of all services and the
licensing of graders under these
regulations shall be accomplished
without regard to race, color, national
origin, religion, age, sex, disability,
political beliefs, sexual orientation, or
marital or family status.
I 59. Section 70.6 is revised to read as
follows:
§ 70.6
OMB control number.
(a) Purpose. The collecting of
information requirements in this part
has been approved by the Office of
Management and Budget (OMB) and
assigned OMB control number 0581–
0127.
(b) Display.
SECTIONS WHERE INFORMATION COLLECTION REQUIREMENTS ARE IDENTIFIED AND DESCRIBED
70.3
70.4(a)
70.5
70.18
70.20(a)
70.22
70.31(a)
70.31(b)
70.34
70.35
70.36
70.38(c)
70.38(d)
70.39
70.40
70.50
70.61
70.62
70.73
70.76(b)(1)
70.76(b)(3)(ii)
70.77(a)(1)
70.77(a)(4)
70.77(b)(1)
70.77(b)(3)(ii)
70.91(a)
70.91(c)
70.92
70.101
70.102
60. Section § 70.8 is added to read as
follows:
I
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§ 70.8
Other applicable regulations.
Compliance with the regulations in
this part shall not excuse failure to
comply with any other Federal, or any
State, or municipal applicable laws or
regulations.
I 61. The undesignated center heading
preceding § 70.10 is removed.
I 62. The section heading for § 70.10 is
revised to read as follows:
§ 70.10
*
*
Basis of grading service.
*
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*
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§ 70.10
[Amended]
§ 70.13 Ready-to-cook poultry and rabbits
and specified poultry food products.
(a) Ready-to-cook poultry or rabbit
carcasses or parts or specified poultry
food products may be graded only if
they have been inspected and certified
by the poultry inspection service of the
Department, or inspected and passed by
any other inspection system which is
acceptable to the Department.
(b) Only when ready-to-cook poultry
carcasses, parts, poultry food products,
including those used in preparing raw
poultry food products, have been graded
on an individual basis by a grader or by
an authorized person pursuant to
§ 70.20(c) and thereafter checkgraded by
a grader, and when poultry food
products have been prepared under the
supervision of a grader, when necessary
the individual container, carcass, part,
or poultry food product be identified
with the appropriate official letter
grademark. Checkgrading shall be
accomplished in accordance with a
statistical sampling plan prescribed by
the Administrator. Grading with respect
to quality factors for freezing defects
and appearance of the finished
products, when necessary, shall be done
on a sample basis in accordance with a
plan prescribed by the Administrator.
(c) Only when ready-to-cook rabbit
carcasses or parts have been graded on
an individual basis by a grader or by an
authorized person pursuant to § 70.20(c)
and thereafter checkgraded by a grader,
may the container or the individual
carcass or part be identified with the
appropriate official letter grademark.
Checkgrading shall be accomplished in
accordance with a statistical sampling
plan prescribed by the Administrator.
Grading with respect to quality factors
for freezing defects and appearance of
the finished products may be done on
a sample basis in accordance with a
plan prescribed by the Administrator.
§ 70.14
[Amended]
I 65. In § 70.14, the words ‘‘U.S.
Department of Agriculture’’ are removed
and ‘‘Department’’ is added in their
place.
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66. Section 70.15 is revised to read as
follows:
I
63. Section 70.10 is amended by:
A. Designating the undesignated text
as paragraph (a).
I B. Revising the words ‘‘classes,’’
‘‘standards’’ and ‘‘grades’’ in the second
sentence to read as ‘‘Classes,’’
‘‘Standards’’ and ‘‘Grades,’’ respectfully.
I C. Removing the words ‘‘as contained
in subparts B and C of this part’’ in the
second sentence and adding the words
‘‘for Poultry and Rabbits’’ in their place.
I 64. Section 70.13 is revised to read as
follows:
I
I
Sfmt 4702
§ 70.15 Equipment and facilities for
graders.
Equipment and facilities to be
furnished by the applicant for use of
graders in performing service on a
resident basis shall include, but not be
limited to, the following:
(a)(1) An accurate metal stem
thermometer.
(2) A drill with a steel bit to drill
holes in frozen product for inserting the
metal thermometer stem to determine
temperature.
(3) Scales graduated in tenths of a
pound or less for weighing carcasses,
parts, or products individually in
containers up to 100 pounds, and test
weights for such scales.
(4) Scales graduated in one-pound
graduation or less for weighing bulk
containers of poultry and test weights
for such scales.
(b) Furnished office space, a desk, and
file or storage cabinets (equipped with
a satisfactory locking device) suitable
for the security and storage of official
supplies, and other facilities and
equipment as may otherwise be
required. Such space and equipment
must meet the approval of the national
supervisor.
I 67. The undesignated center heading
preceding § 70.20 is revised to read as
follows:
Licensed and Authorized Graders
§ 70.20 Who may be licensed and
authorized.
68. In § 70.20, the section heading is
revised as set forth above and paragraph
(b) is amended by removing the words
‘‘Agricultural Marketing Service’’ and
adding ‘‘AMS’’ in their place.
I
§ 70.21
[Amended]
69. Section 70.21 is amended by:
A. Removing the words ‘‘he deems
such action’’ in the first sentence and
adding ‘‘such action is deemed’’ in their
place.
I B. Removing the words ‘‘he may wish
to offer as to why his’’ in the second
sentence and adding ‘‘the licensee may
wish to offer as to why the’’ in their
place.
I C. Removing the words ‘‘he deems’’ in
the third sentence and adding
‘‘deemed’’ in their place.
I 70. Section 70.22 is revised to read as
follows:
I
I
§ 70.22
Surrender of license.
Each license which is suspended or
revoked shall immediately be
surrendered by the licensee to the office
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of grading servicing the area in which
the license is located.
I 71. Section 70.23 is revised to read as
follows:
‘‘his’’ and adding ‘‘the supervisor’s’’ in
its place.
§ 70.23
§ 70.35
Identification.
Graders shall have in their possession
at all times, and present upon request
while on duty, the means of
identification furnished to them by the
Department.
I 72. Section 70.24 is revised to read as
follows:
§ 70.24
Financial interest of graders.
Graders shall not render service on
any product in which they are
financially interested.
I 73. Section 70.25 is revised to read as
follows:
§ 70.25
Political activity.
Federal graders may participate in
certain political activities, including
management and participation in
political campaigns in accordance with
AMS policy. Graders are subject to these
rules while they are on leave with or
without pay, including furlough;
however, the rules do not apply to
cooperative employees not under
Federal supervision and intermittent
employees on the days they perform no
service. Willful violations of the
political activity rules will constitute
grounds for removal from the AMS.
I 74. Section 70.26 is added
immediately following § 70.25 and
before the undesignated center heading
to read as follows:
§ 70.26
Cancellation of license.
Upon termination of the services of a
licensed grader, the grader’s license
shall be immediately surrendered for
cancellation.
I 75. Section 70.30 is revised to read as
follows:
§ 70.30
Who may obtain grading service.
An application for grading service
may be made by any interested person,
including, but not being limited to any
authorized agent of the United States,
any State, county, municipality, or
common carrier.
§ 70.31
[Amended]
76. In § 70.31, paragraph (a) is
amended by removing the words ‘‘basis
may’’ and adding ‘‘basis shall’’ in their
place and removing the word
‘‘telegraph’’ and adding ‘‘any electronic
means’’ in its place.
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I
§ 70.34
[Amended]
77. Section 70.34 is amended in the
third sentence by removing the word
I
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78. Section 70.35 is revised to read as
follows:
I
Rejection of application.
(a) Any application for grading service
may be rejected by the Administrator:
(1) Whenever the applicant fails to
meet the requirements of the regulations
prescribing the conditions under which
the service is made available;
(2) Whenever the product is owned by
or located on the premises of a person
currently denied the benefits of the Act;
(3) Where any individual holding
office or a responsible position with or
having a substantial financial interest or
share in the applicant, is currently
denied the benefits of the Act, or was
responsible in whole or in part for the
current denial of the benefits of the Act
to any person;
(4) Where the Administrator
determines that the application is an
attempt on the part of a person currently
denied the benefits of the Act to obtain
grading service;
(5) Whenever the applicant, after an
initial survey has been made in
accordance with § 70.34, fails to bring
the grading facilities and equipment
into compliance with the regulations
within a reasonable period of time; or
(6) Notwithstanding any prior
approval whenever, before inauguration
of service, the applicant fails to fulfill
commitments concerning the
inauguration of the service.
(7) When it appears that to perform
the services specified in this part would
not be to the best interests of the public
welfare or of the Government;
(8) When it appears to the
Administrator that prior commitments
of the Department necessitate rejection
of the application.
(b) Each such applicant shall be
promptly notified by registered mail of
the reasons for the rejection. A written
petition for reconsideration of such
rejection may be filed by the applicant
with the Administrator if postmarked or
delivered within 10 days after receipt of
notice of the rejection. Such petition
shall state specifically the errors alleged
to have been made by the Administrator
in rejecting the application. Within 20
days following the receipt of such a
petition for reconsideration, the
Administrator shall approve the
application or notify the applicant by
registered mail of the reasons for the
rejection thereof.
79. Section 70.36 is revised to read as
follows:
I
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§ 70.36
42013
Withdrawal of Application.
An application for grading service
may be withdrawn by the applicant at
any time before the service is performed
upon payment by the applicant, of all
expenses incurred by the AMS in
connection with such application.
I 80. In § 70.38, paragraph (c) is revised
to read as follows:
§ 70.38 Suspension or withdrawal of plant
approval for correctable cause.
*
*
*
*
*
(c) If the grading facilities or methods
of operation are not brought into
compliance within a reasonable period
of time as specified by the
Administrator, the Administrator shall
initiate withdrawal action pursuant to
the Rules of Practice Governing Formal
Adjudicatory Proceedings and Grading
Service (7 CFR part 1, subpart H), and
the operator shall be afforded an
opportunity for an oral hearing upon the
operator’s written request in accordance
with such Rules of Practice, with
respect to the merits or validity of the
withdrawal action, but any suspension
shall continue in effect pending the
outcome of such hearing unless
otherwise ordered by the Administrator.
Upon withdrawal of grading service in
an official plant, the plant approval
shall also become terminated, and all
labels, seals, tags, or packaging material
bearing official identification shall,
under the supervision of a person
designated by the AMS, either be
destroyed, or the official identification
completely obliterated, or sealed in a
manner acceptable to the AMS.
*
*
*
*
*
I 81. Section 70.39 is added
immediately following § 70.38 and
before the undesignated center heading
to read as follows:
§ 70.39
Form of application.
Each application for grading or
sampling a specified lot of any product
shall include such information as may
be required by the Administrator in
regard to the product and the premises
where such product is to be graded or
sampled.
I 82. Section 70.40 is revised to read as
follows:
§ 70.40
Debarment.
The acts or practices set forth in
§§ 70.41 through 70.46, or the causing
thereof, may be deemed sufficient cause
for the debarment by the Administrator
of any person, including any agents,
officers, subsidiaries, or affiliates of
such person, from all benefits of the act
for a specified period. The Rules of
Practice Governing Formal Adjudicatory
Proceedings (7 CFR part 1, subpart H)
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shall be applicable to such debarment
action.
‘‘Supervisor’’ and adding ‘‘supervisor’’
in its place.
§ 70.41 Misrepresentation, deceptive, or
fraudulent act or practice.
§ 70.72 Fees for appeal grading or review
of a grader’s decision.
83. In § 70.41, the section heading is
revised as set forth above and paragraph
(b) is amended by adding the words
‘‘sampling or’’ after ‘‘for.’’
90. Section 70.72 is amended by:
A. Revising the section heading as set
forth above.
I B. Removing the words ‘‘or
examination’’ both times they appear.
I C. Removing the words ‘‘will be
borne’’ and adding ‘‘shall be borne’’ in
their place.
I
§ 70.44
[Amended]
84. Section 70.44 is amended in the
first sentence by removing the word
‘‘his’’ and adding ‘‘such employees’’ in
its place.
I 85. Section 70.56 is added
immediately following § 70.55 and
before the undesignated center heading
to read as follows:
I
§ 70.56 Grading requirements of poultry
and rabbits identified with official
identification.
(a) Poultry and rabbit products to be
identified with the grademarks
illustrated in § 70.51 must be
individually graded by a grader or by
authorized personnel pursuant to
§ 70.20 and thereafter checkgraded by a
grader.
(b) Poultry and rabbit products not
graded in accordance with paragraph (a)
of this section may be officially graded
on a sample basis and the shipping
containers may be identified with
grademarks which contain the words
‘‘Sample Graded’’ and which are
approved by the Administrator.
I 86. Section 70.60 is revised to read as
follows:
§ 70.60
Report of grading work.
Reports of grading work performed
within official plants shall be forwarded
to the Administrator by the grader in a
manner as may be specified by the
Administrator.
I 87. Section 70.62 is revised to read as
follows:
§ 70.62
Report of violations.
Each grader shall report, in the
manner prescribed by the
Administrator, all violations and
noncompliances under the Act and the
regulations in this part of which such
grader has knowledge.
§ 70.70
[Amended]
88. In § 70.70, paragraph (b) is
amended by removing the words
‘‘Agricultural Marketing Service’’ and
adding ‘‘AMS’’ in their place and by
removing the word ‘‘Service’’ and
adding ‘‘AMS’’ in its place.
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I
§ 70.71
[Amended]
89. In § 70.71, paragraph (c) is
amended by removing the word
I
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I
§ 70.75
[Amended]
90a. In § 70.75 in the first sentence
remove the word ‘‘Service’’ and add
‘‘AMS’’ in its place.
I
§ 70.76
[Amended]
91. In § 70.76, paragraph (a) is
amended by removing the words ‘‘the
Agricultural Marketing Service, U.S.
Department of Agriculture (hereinafter
referred to as ‘‘AMS’’)’’ and adding
‘‘AMS’’ in their place.
I
§ 70.77
[Amended]
92. In § 70.77, paragraph (a) is
amended by removing the words
‘‘Agricultural Marketing Service, U.S.
Department of Agriculture (hereinafter
referred to as ‘‘AMS’’)’’ and adding
‘‘AMS’’ in their place.
I 93. The undesignated center heading
preceding § 70.80 is removed.
I
§ 70.80
[Amended]
94. The section heading for § 70.80 is
removed and the undesignated text is
designated as paragraph (b) of § 70.10.
I
§ 70.81
95. Section 70.81 is removed.
96. Section 70.90 is revised to read as
follows:
I
Forms.
Grading certificates and sampling
report forms (including appeal grading
certificates and regrading certificates)
shall be issued on forms approved by
the Administrator.
I 97. Section 70.91 is revised to read as
follows:
§ 70.91
Issuance.
(a) Resident grading basis. Certificates
will be issued only upon a request
therefor by the applicant or the AMS.
When requested, a grader shall issue a
certificate covering product graded by
such grader. In addition, a grader may
issue a grading certificate covering
product graded in whole or in part by
another grader when the grader has
knowledge that the product is eligible
for certification based on personal
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§ 70.92
Sfmt 4702
Disposition.
The original and a copy of each
grading certificate, issued pursuant to
§§ 70.90 through 70.93, and not to
exceed two additional copies thereof if
requested by the applicant prior to
issuance shall, immediately upon
issuance, be delivered or mailed to the
applicant or the applicant’s designee.
Other copies shall be filed and retained
in accordance with the disposition
schedule for grading program records.
I 99. Section 70.93 is added
immediately following § 70.92 and
before the undesignated center heading
to read as follows:
§ 70.93
[Removed]
I
§ 70.90
examination of the product or official
grading records.
(b) Other than resident grading. Each
grader shall, in person or by an
authorized agent, issue a grading
certificate covering each product graded
by such grader. A grader’s name may be
signed on a grading certificate by a
person other than the grader if such
person has been designated as the
authorized agent of such grader by the
national supervisor: Provided, That the
certificate is prepared from an official
memorandum of grading signed by the
grader: And provided further, That a
notarized power of attorney authorizing
such signature has been issued to such
person by the grader and is on file in the
office of grading. In such case, the
authorized agent shall sign both the
agents name and the grader’s name, e.g.,
‘‘John Doe by Mary Roe.’’
I 98. Section 70.92 is revised to read as
follows:
Advance information.
Upon request of an applicant, all or
part of the contents of any grading
certificate issued to such applicant may
be telephoned or transmitted by any
electronic means to the applicant, or to
the applicant’s designee, at the
applicant’s expense.
I 100. In § 70.104, paragraph (a) is
revised to read as follows:
§ 70.104
Who shall perform the appeal.
(a) An appeal grading or review of a
decision requested under § 70.101(a)
shall be made by the grader’s immediate
supervisor or by one or more licensed
graders assigned by the immediate
supervisor.
*
*
*
*
*
I 101. In § 70.105, paragraphs (a) and
(b) are revised to read as follows:
§ 70.105
Procedures for appeal gradings.
(a) The appeal sample shall consist of
product taken from the original sample
container plus an equal number of
containers selected at random.
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(b) When the original samples are not
available or have been altered, such as
the removal of undergrades, the appeal
sample size for the lot shall consist of
double the samples required in § 70.80.
*
*
*
*
*
Dated: June 15, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 06–6159 Filed 7–21–06; 8:45 am]
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Agencies
[Federal Register Volume 71, Number 141 (Monday, July 24, 2006)]
[Rules and Regulations]
[Pages 42006-42015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6159]
[[Page 42005]]
-----------------------------------------------------------------------
Part VI
Department of Agriculture
-----------------------------------------------------------------------
Agriculture Marketing Service
-----------------------------------------------------------------------
7 CFR Parts 56 and 70
Updating Administrative Requirements for Voluntary Shell Egg, Poultry,
and Rabbit Grading; Final Rule
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules
and Regulations
[[Page 42006]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 56 and 70
[Docket No. PY-02-003]
RIN 0581-AC25
Updating Administrative Requirements for Voluntary Shell Egg,
Poultry, and Rabbit Grading
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Agricultural Marketing Service (AMS) is amending the
administrative requirements in the regulations governing the voluntary
shell egg, poultry, and rabbit grading programs. The amendments update
the administrative requirements and make minor, nonsubstantive changes
for clarity and uniformity of style. This improves operational
efficiency of the grading programs by making the administrative
requirements more accurate, clear, consistent, and easier to use.
DATES: Effective Date: August 23, 2006.
FOR FURTHER INFORMATION CONTACT: David Bowden, Jr., Chief,
Standardization Branch, (202) 720-3506.
SUPPLEMENTARY INFORMATION:
Background
Voluntary shell egg, poultry, and rabbit grading programs are
provided for under the Agricultural Marketing Act of 1946, as amended,
and are offered on a fee-for-service basis. The programs operate under
the regulations in 7 CFR part 56 (Voluntary Grading of Shell Eggs) and
7 CFR part 70 (Voluntary Grading of Poultry Products and Rabbit
Products).
Supervisory personnel at national, regional, and State levels are
responsible for overall operation of these grading programs and
implementation of the regulations. Historically, graders were licensed
in either shell egg grading or poultry grading, some also in rabbit
grading, and they would use only one of the regulations. Today, graders
are increasingly cross-utilized for both shell egg and poultry grading,
and use both 7 CFR parts 56 and 70.
Both regulations have been in effect since the 1950s and have been
amended from time to time as requirements have changed.
While each regulation has its own commodity-specific requirements,
both regulations have the same or similar administrative requirements.
A review of the administrative requirements identified general
editorial or housekeeping changes that were needed. These changes
enable program staff at all levels to implement the administrative
requirements of both regulations consistently, uniformly, easily, and
fairly. The amendments do not change how the administrative
requirements are administered, how the commodity-specific requirements
are implemented, or the responsibilities of program users.
The amendments make the administrative requirements more accurate,
easier to implement, and easier to follow.
For example:
References to the official U.S. Standards, Grades, and
Weight Classes for Shell Eggs and the official U.S. Classes, Standards,
and Grades for Poultry and Rabbits reflect that they are no longer in
the Code of Federal Regulations.
Punctuation, grammar, capitalization, abbreviations, legal
phrases, terms, format, and style are consistent with current
regulatory documents, the U.S. Government Printing Office Style Manual,
and the Federal Register Document Drafting Handbook. Pronouns used are
gender-neutral, consistent with current writing style.
Redesignated sections make requirements easier to locate
in the regulations.
Sections about nondiscrimination and political activity
for Federal employees reflect current requirements.
Editing of Agency names and displays of control numbers
assigned to information collection requirements by the Office of
Management and Budget saves space and avoids the repetitive use of
certain numbers and words.
``Poultry Programs'' correctly identifies the
organization.
``Electronic means'' correctly reflects current
technology.
``Agricultural Marketing Service or AMS'' is added for
consistency with other Agency regulations.
Duplicate sections are removed.
Inconsistencies in the wording of headings and sections
common to both regulations are harmonized, where feasible and
practical, to assist program staff at all levels.
Administrative requirements that have historically been
implemented in both grading programs, but are found in only one of the
regulations, are added to the regulation where they are not specified.
Proposed Rule and Comments
A proposed rule was published in the Federal Register (71 FR 2168,
January 13, 2006). During the 30 day comment period that ended February
13, the agency received one comment. The commenter expressed concern
that comments could not be accepted electronically. The agency
determined that the address provided was incomplete. A correction was
published in the Federal Register (70 FR 4056, January 25). Other
concerns expressed by the commenter were not pertinent to the rule or
were outside the scope of the regulations being revised.
Executive Order 12866
This rule has been determined to be not significant for purposes of
Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This action is not intended to have retroactive effect.
This rule does not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. There are no administrative procedures that must be exhausted
prior to any judicial challenge to the provisions of this rule.
Effect on Small Entities
The purpose of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
et seq.) is to fit regulatory actions to the scale of businesses
subject to such actions in order that small businesses will not be
unduly or disproportionately burdened. The Small Business
Administration (SBA) (13 CFR 121.201) defines small entities that
produce and process poultry as those whose annual number of employees
is less than 500, and defines small entities that produce and process
chicken eggs as those whose annual receipts are less than $9,000,000.
Approximately 625,500 egg laying hens are needed to produce enough eggs
to gross $9,000,000.
There are about 376 users of Poultry Programs' grading services.
These official plants can pack eggs, poultry, and rabbits in packages
bearing the USDA grade shield when AMS graders are present to certify
that the products meet the grade requirements as labeled. Many of these
users are small entities under the criteria established by the SBA.
These entities are under no obligation to use grading services as
authorized under the Agricultural Marketing Act of 1946.
[[Page 42007]]
Pursuant to requirements set forth in the RFA, the AMS has
considered the economic impact of this rule on small entities. This
rule is editorial and housekeeping in nature. It affects administrative
requirements by updating language and references that are outdated. It
harmonizes the administrative content of both regulations. It does not
change how the administrative requirements are administered, how
commodity-specific requirements are implemented, or the
responsibilities of program users. Accordingly, AMS has determined that
provisions of this rule do not have a significant economic impact on a
substantial number of small entities.
Paperwork Reduction
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the Office of Management and Budget (OMB) has previously
approved the information collection and recordkeeping requirements
included in this rule, and there are no new requirements. The assigned
OMB control numbers are 0581-0127 and 0581-0128.
List of Subjects
7 CFR Part 56
Eggs and egg products, Food grades and standards, Food labeling,
Reporting and recordkeeping requirements.
7 CFR Part 70
Food grades and standards, Food labeling, Poultry and poultry
products, Rabbits and rabbit products, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, Title 7, Code of Federal
Regulations, parts 56 and 70 are amended as follows:
PART 56--VOLUNTARY GRADING OF SHELL EGGS
0
1. The authority citation for part 56 continues to read as follows:
Authority: 7 U.S.C. 1621-1627.
Sec. 56.1 [Amended]
0
2. Section Sec. 56.1 amended as follows:
0
A. Remove the definition of Service.
0
B. Revise the introductory text and the definitions of Act, Applicant,
Department, Grader, Grading certificate, Official plant or official
establishment, Origin grading, Regulations, and Sampling, in
alphabetical order, as set forth below.
0
C. Add the definitions of Acceptable, Identify, Shell egg grading
service, State supervisor or Federal-State supervisor, and United
States Standards for Quality of Individual Shell Eggs, in alphabetical
order, as set forth below.
0
D. Alphabetize the definitions of Administrator and Agricultural
Marketing Service.
0
E. Amend the definition of Administrator by removing the words
``Agricultural Marketing Service of the Department'' and adding ``AMS''
in their place and removing the word ``his'' and adding ``the
Administrator's'' in its place.
0
F. Amend the definition of Grading or grading service by removing the
word ``Service'' and adding ``AMS'' in its place at the end of
paragraph (1).
0
G. Amend the definition of Holiday or legal holiday by removing the
words ``shall mean'' and adding ``means'' in their place.
0
H. Amend the definition of Secretary by removing the word ``his'' and
adding ``the Secretary's'' in its place.
The additions and revisions, in alphabetical order, read as
follows:
Sec. 56.1 Meaning of words and terms defined.
For the purpose of the regulations in this part, words in the
singular shall be deemed to import the plural and vice versa, as the
case may demand. Unless the context otherwise requires, the terms shall
have the following meaning:
Acceptable means suitable for the purpose intended by the AMS.
Act means the applicable provisions of the Agricultural Marketing
Act of 1946 (60 Stat. 1087, as amended; 7 U.S.C. 1621 et seq.), or any
other act of Congress conferring like authority.
* * * * *
Applicant means any interested person who requests any grading
service.
* * * * *
Department means the United States Department of Agriculture
(USDA).
* * * * *
Grader means any Federal or State employee or the employee of a
local jurisdiction or cooperating agency to whom a license has been
issued by the Secretary to investigate and certify in accordance with
the regulations in this part, the class, quality, quantity, or
condition of products.
* * * * *
Grading certificate means a statement, either written or printed,
issued by a grader pursuant to the Act and the regulations in this
part, relative to the class, quantity, quality, or condition of
products.
* * * * *
Identify means to apply official identification to products or the
containers thereof.
* * * * *
Official plant or official establishment means one or more
buildings or parts thereof comprising a single plant in which the
facilities and methods of operation therein have been approved by the
Administrator as suitable and adequate for grading service and in which
grading is carried on in accordance with the regulations in this part.
* * * * *
Origin grading means a grading made on a lot of eggs at a plant
where the eggs are graded and packed.
* * * * *
Regulations means the provisions in this entire part and such
United States standards, grades, and weight classes as may be in effect
at the time grading is performed.
Sampling means the act of taking samples of any product for grading
or certification.
* * * * *
Shell egg grading service means the personnel who are actively
engaged in the administration, application, and direction of shell egg
grading programs and services pursuant to the regulations in this part.
* * * * *
State supervisor or Federal-State supervisor means any authorized
and designated individual who is in charge of the shell egg grading
service in a State.
United States Standards for Quality of Individual Shell Eggs means
the official U.S. Standards, Grades, and Weight Classes for Shell Eggs
(AMS 56) that are maintained by and available from Poultry Programs,
AMS.
0
3. The undesignated center heading preceding Sec. 56.3 is revised to
read as follows:
General
Sec. 56.3 [Amended]
0
4. Section 56.3 is amended by:
0
A. Removing paragraph designation (a).
0
B. Removing paragraph (b).
0
C. Adding the words ``the regulations in'' immediately after the words
``Act and'' in the first sentence.
0
D. Removing the words ``Agricultural Marketing Service'' and adding
``AMS'' in their place in the last sentence.
0
5. The undesignated center heading preceding Sec. 56.4 is removed.
Sec. 56.4 [Amended]
0
6. In Sec. 56.4, paragraph (a) is amended in the first sentence by
adding the words ``for Shell Eggs'' after ``Classes'' and removing the
words ``as contained in subpart C of this part.''
[[Page 42008]]
0
7. The section heading for Sec. 56.5 is revised to read as follows:
Sec. 56.5 Accessibility of product.
* * * * *
Sec. 56.6 [Amended]
0
8. Section 56.6 is amended in the first sentence by removing the word
``applicable'' and adding ``responsible'' in its place and adding the
words ``in accordance with instructions issued by the Administrator''
immediately following the word ``rendered'' in the second sentence.
0
9. Section 56.7 is added to read as follows:
Sec. 56.7 Nondiscrimination.
The conduct of all services and the licensing of graders under
these regulations shall be accomplished without discrimination as to
race, color, national origin, sex, religion, age, disability, political
beliefs, sexual orientation, or marital or family status.
0
10. Section 56.9 is revised to read as follows:
Sec. 56.9 OMB control number.
(a) Purpose. The collecting of information requirements in this
part has been approved by the Office of Management and Budget (OMB) and
assigned OMB control number 0581-0128.
(b) Display.
Sections Where Information Collection Requirements Are Identified and
Described
------------------------------------------------------------------------
------------------------------------------------------------------------
56.3(a) 56.24 56.52(b)(3)(ii)
56.4(a) 56.25 56.54(b)(1)
56.10(a) 56.26 56.54(b)(3)(ii)
56.11 56.30 56.56(a)
56.12 56.31(a) 56.57
56.17(b) 56.35(b) 56.58
56.18 56.35(c) 56.60
56.21(a) 56.37 56.62
56.21(b) 56.52(a)(l) 56.76(f)(7)
56.21(c) 56.52(a)(4) 56.76(h)
56.23 56.52(b)(1)
------------------------------------------------------------------------
0
11. The undesignated center heading preceding Sec. 56.10 is revised to
read as follows:
Licensed and Authorized Graders
* * * * *
0
12. Section 56.10 is revised to read as follows:
Sec. 56.10 Who may be licensed and authorized.
(a) Any person who is a Federal or State employee, the employee of
a local jurisdiction, or the employee of a cooperating agency
possessing proper qualifications as determined by an examination for
competency and who is to perform grading service under this part, may
be licensed by the Secretary as a grader.
(b) All licenses issued by the Secretary shall be countersigned by
the officer in charge of the shell egg grading service of the AMS or
any other designated officer.
(c) Any person, who is employed at any official plant and possesses
proper qualifications, as determined by the Administrator, may be
authorized to candle and grade eggs on the basis of the ``U.S.
Standards for Quality of Individual Shell Eggs,'' with respect to eggs
purchased from producers or eggs to be packaged with official
identification. In addition, such authorization may be granted to any
qualified person to act as a ``quality assurance inspector'' in the
packaging and grade labeling of products. No person to whom such
authorization is granted shall have authority to issue any grading
certificates, grading memoranda, or other official documents; and all
eggs which are graded by any such person shall thereafter be check
graded by a grader.
0
13. Section 56.11 is revised to read as follows:
Sec. 56.11 Financial interest of graders.
Graders shall not render service on any product in which they are
financially interested.
0
14. Section 56.12 is revised to read as follows:
Sec. 56.12 Suspension of license; revocation.
Pending final action by the Secretary, any person authorized to
countersign a license to perform grading service may, whenever such
action is deemed necessary to assure that any grading service is
properly performed, suspend any license to perform grading service
issued pursuant to this part, by giving notice of such suspension or
revocation to the respective licensee, accompanied by a statement of
the reasons therefor. Within 7 days after the receipt of the aforesaid
notice and statement of reasons, the licensee may file an appeal in
writing with the Secretary, supported by any argument or evidence that
the licensee may wish to offer as to why their license should not be
further suspended or revoked. After the expiration of the aforesaid 7-
day period and consideration of such argument and evidence, the
Secretary will take such action as deemed appropriate with respect to
such suspension or revocation. When no appeal is filed within the
prescribed 7 days, the license to perform grading service is revoked.
0
15. Section 56.13 is revised to read as follows:
Sec. 56.13 Cancellation of license.
Upon termination of the services of a licensed grader, the grader's
license shall be immediately surrendered for cancellation.
Sec. 56.14 [Amended]
0
16. Section 56.14 is amended by removing the word ``he'' and adding
``the licensee'' in its place.
0
17. Section 56.15 is revised to read as follows:
Sec. 56.15 Political activity.
Federal graders may participate in certain political activities,
including management of and participation in political campaigns, in
accordance with AMS policy. Graders are subject to these rules while
they are on leave with or without pay, including furlough; however the
rules do not apply to cooperative employees not under Federal
supervision and intermittent employees on the days they perform no
service. Willful violations of the political activity rules will
constitute grounds for removal from the AMS.
0
18. Section 56.16 is revised to read as follows:
Sec. 56.16 Identification.
Graders shall have in their possession at all times, and present
upon request while on duty, the means of identification furnished to
them by the Department.
Sec. 56.17 Equipment and facilities for graders.
0
19. In Sec. 56.17, the section heading is revised as set forth above
and the introductory text and paragraph (b) are revised to read as
follows:
Equipment and facilities to be furnished by the applicant for use
of graders in performing service on a resident basis shall include, but
not be limited to, the following:
* * * * *
(b) Furnished office space, a desk, and file or storage cabinets
(equipped with a satisfactory locking device) suitable for the security
and storage of official supplies, and other facilities and equipment as
may otherwise be required. Such space and equipment must meet the
approval of the national supervisor.
0
20. Section 56.19 is added immediately following Sec. 56.18 and before
the undesignated center heading to read as follows:
Sec. 56.19 Prerequisites to grading.
Grading of products shall be rendered pursuant to the regulations
in this part
[[Page 42009]]
and under such conditions and in accordance with such methods as may be
prescribed or approved by the Administrator.
0
21. The undesignated center heading preceding Sec. 56.20 is revised to
read as follows:
Application for Grading Service
0
22. Section 56.20 is revised to read as follows:
Sec. 56.20 Who may obtain grading service.
An application for grading service may be made by any interested
person, including, but not being limited to any authorized agent of the
United States, any State, county, municipality, or common carrier.
Sec. 56.21 [Amended]
0
23. In Sec. 56.21, paragraph (a) is amended by removing the words
``basis may'' and adding ``basis shall'' in their place and paragraph
(b) is amended in the second sentence by adding the words ``, or at the
AMS Web site.'' after ``office.''
0
24. Section 56.22 is revised to read as follows:
Sec. 56.22 Filing of application.
An application for grading service shall be regarded as filed only
when made pursuant to the regulations in this part.
0
25. Section 56.24 is revised to read as follows:
Sec. 56.24 Rejection of application
(a) An application for grading service may be rejected by the
Administrator:
(1) Whenever the applicant fails to meet the requirements of the
regulations prescribing the conditions under which the service is made
available;
(2) Whenever the product is owned by or located on the premises of
a person currently denied the benefits of the Act;
(3) Where any individual holding office or a responsible position
with or having a substantial financial interest or share in the
applicant is currently denied the benefits of the Act or was
responsible in whole or in part for the current denial of the benefits
of the Act to any person;
(4) Where the Administrator determines that the application is an
attempt on the part of a person currently denied the benefits of the
Act to obtain grading services;
(5) Whenever the applicant, after an initial survey has been made
in accordance with the regulations, fails to bring the grading
facilities and equipment into compliance with the regulations within a
reasonable period of time;
(6) Notwithstanding any prior approval whenever, before
inauguration of service, the applicant fails to fulfill commitments
concerning the inauguration of the service;
(7) When it appears that to perform the services specified in this
part would not be to the best interests of the public welfare or of the
Government; or
(8) When it appears to the Administrator that prior commitments of
the Department necessitate rejection of the application.
(b) Each such applicant shall be promptly notified by registered
mail of the reasons for the rejection. A written petition for
reconsideration of such rejection may be filed by the applicant with
the Administrator if postmarked or delivered within 10 days after the
receipt of notice of the rejection. Such petition shall state
specifically the errors alleged to have been made by the Administrator
in rejecting the application. Within 20 days following the receipt of
such a petition for reconsideration, the Administrator shall approve
the application or notify the applicant by registered mail of the
reasons for the rejection thereof.
0
26. Section 56.25 is revised to read as follows:
Sec. 56.25 Withdrawal of Application.
An application for grading service may be withdrawn by the
applicant at any time before the service is performed upon payment by
the applicant, of all expenses incurred by the AMS in connection with
such application.
Sec. 56.27 [Amended]
0
27. Section 56.27 is amended by adding the words ``and subject to the
availability of qualified graders'' immediately after ``practicable.''
0
28. Section 56.28 is printed twice in the 2006 Code of Federal
Regulations. The first copy should be removed.
0
29. Section 56.29 is added to read as follows:
Sec. 56.29 Suspension or withdrawal of plant approval for correctable
cause.
(a) Any plant approval given pursuant to the regulations in this
part may be suspended by the Administrator for:
(1) Failure to maintain grading facilities and equipment in a
satisfactory state of repair, sanitation, or cleanliness;
(2) The use of operating procedures which are not in accordance
with the regulations in this part; or
(3) Alterations of grading facilities or equipment which have not
been approved in accordance with the regulations in this part.
(b) Whenever it is feasible to do so, written notice in advance of
a suspension shall be given to the person concerned and shall specify a
reasonable period of time in which corrective action must be taken. If
advance written notice is not given, the suspension action shall be
promptly confirmed in writing and the reasons therefor shall be stated,
except in instances where the person has already corrected the
deficiency. Such service, after appropriate corrective action is taken,
will be restored immediately, or as soon thereafter as a grader can be
made available. During such period of suspension, grading service shall
not be rendered. However, the other provisions of the regulations
pertaining to providing grading service on a resident basis will remain
in effect unless such service is terminated in accordance with the
provisions of this part.
(c) If the grading facilities or methods of operation are not
brought into compliance within a reasonable period of time as specified
by the Administrator, the Administrator shall initiate withdrawal
action pursuant to the Rules of Practice Governing Formal Adjudicatory
Proceedings (7 CFR part 1, subpart H), and the operator shall be
afforded an opportunity for an oral hearing upon written request in
accordance with such Rules of Practice, with respect to the merits or
validity of the withdrawal action, but any suspension shall continue in
effect pending the outcome of such hearing unless otherwise ordered by
the Administrator. Upon withdrawal of grading service in an official
plant, the plant approval shall also become terminated and all labels,
seals, tags, or packaging material bearing official identification
shall, under the supervision of a person designated by the AMS, either
be destroyed or the official identification completely obliterated or
sealed in a manner acceptable to the AMS.
(d) In any case where grading service is withdrawn under this
section, the person concerned may thereafter apply for grading service
as provided in Sec. Sec. 56.20 through 56.29 of these regulations.
0
30. The undesignated center heading preceding Sec. 56.30 is removed.
0
31. Section 56.30 is revised to read as follows:
Sec. 56.30 Application for grading service in official plants;
approval.
Any person desiring to process and pack products in a plant under
grading service must receive approval of such plant and facilities as
an official plant prior to the rendition of such service. An
application for grading service to be rendered in an official plant
shall be
[[Page 42010]]
approved according to the following procedure: When application has
been filed for grading service, as aforesaid, the State supervisor or
the supervisor's assistant shall examine the grading office,
facilities, and equipment and specify any facility or equipment
modifications needed for the service. When the plant survey has been
completed and approved in accordance with the regulations in this part,
service may be installed.
0
32. The undesignated center heading preceding Sec. 56.31 is revised to
read as follows:
Reports
0
33. Section 56.31 is revised to read as follows:
Sec. 56.31 Report of grading work.
Reports of grading work performed within official plants shall be
forwarded to the Administrator by the grader in a manner as may be
specified by the Administrator.
Sec. 56.32 [Redesignated as Sec. 56.38]
0
34. Section 56.32 is redesignated as Sec. 56.38 and a new Sec. 56.32
is added to read as follows:
Sec. 56.32 Information to be furnished to graders.
The applicant for grading service shall furnish to the grader
rendering such service such information as may be required for the
purposes of this part.
0
35. Section 56.33 is added immediately following Sec. 56.32 and before
the undesignated center heading to read as follows:
Sec. 56.33 Report of Violations
Each grader shall report, in the manner prescribed by the
Administrator, all violations of and noncompliance with the Act and the
regulations in this part of which such grader has knowledge.
Sec. 56.35 [Amended]
0
36. In Sec. 56.35, paragraph (c) is amended in the first sentence by
removing the words ``with the labeling on'' and adding ``on the
labeling of'' in their place.
0
37. The section heading of Sec. 56.36 is revised to read as follows:
Sec. 56.36 Form of grademark and information required.
* * * * *
Sec. 56.45 Payment of fees and charges.
0
38. In Sec. 56.45, the section heading is revised as set forth above
and paragraph (b) is revised to read as follows:
* * * * *
(b) Fees and charges for any grading service shall, unless
otherwise required pursuant to paragraph (c) of this section, be paid
by check, draft, or money order payable to the Agricultural Marketing
Service and remitted promptly to the AMS.
* * * * *
Sec. 56.46 [Amended]
0
39. In Sec. 56.46, paragraph (c) is amended by removing the word
``Supervisor'' and adding ``supervisor'' in its place.
Sec. 56.49 [Amended]
0
40. In Sec. 56.49, the first sentence is amended by removing the word
``service'' the first time it appears and adding ``AMS'' in its place.
Sec. 56.52 Charges for continuous grading performed on a resident
basis.
0
41. In Sec. 56.52, the heading is revised as set forth above and
paragraph (a) is amended by removing the words ``Agricultural Marketing
Service, U.S. Department of Agriculture (hereinafter referred to as
``the AMS'')'' and adding ``AMS'' in their place.
Sec. 56.54 [Amended]
0
42. In Sec. 56.54, paragraph (a) is amended in the first sentence by
removing the words ``Agricultural Marketing Service, U.S. Department of
Agriculture (hereinafter referred to as ``AMS'')'' and adding ``AMS''
in their place and paragraph (b)(5) is amended by removing the words
``part 55 or.''
0
43. Section 56.55 is revised to read as follows:
Sec. 56.55 Forms.
0
Grading certificates and sampling report forms (including appeal
grading certificates and regrading certificates) shall be issued on
forms approved by the Administrator.
0
44. Section 56.56 is revised to read as follows:
Sec. 56.56 Issuance.
(a) Resident grading basis. Certificates will be issued only upon
request therefor by the applicant or the AMS. When requested, a grader
shall issue a certificate covering product graded by such grader. In
addition, a grader may issue a grading certificate covering product
graded in whole or in part by another grader when the grader has
knowledge that the product is eligible for certification based on
personal examination of the product or official grading records.
(b) Other than resident grading. Each grader shall, in person or by
the grader's authorized agent, issue a grading certificate covering
each product graded by such grader. A grader's name may be signed on a
grading certificate by a person other than the grader, if such person
has been designated as the authorized agent of such grader by the
national supervisor: Provided, That the certificate is prepared from an
official memorandum of grading signed by the grader: And provided
further, That a notarized power of attorney authorizing such signature
has been issued to such person by the grader and is on file in the
office of grading. In such case, the authorized agent shall sign both
the agent's name and the grader's name, e.g., ``John Doe by Mary Roe.''
Sec. 56.57 Disposition.
0
45. In Sec. 56.57, the section heading is revised as set forth above
and in the first sentence the words ``person designated by him'' are
removed and ``the applicant's designee'' are added in their place.
Sec. 56.61 [Amended]
0
46. In Sec. 56.61, paragraph (b) is amended by adding the words
``determination of the'' immediately following ``with the'' and adding
the words ``with the regional director'' immediately following
``request''.
0
47. In Sec. 56.64, paragraph (a) is revised to read as follows:
Sec. 56.64 Who shall perform the appeal.
(a) An appeal grading or review of a decision requested under Sec.
56.61(a) shall be made by the grader's immediate supervisor, or by one
or more licensed graders assigned by the immediate supervisor.
* * * * *
0
48. In Sec. 56.65, paragraphs (a) and (b) are revised to read as
follows:
Sec. 56.65 Procedures for appeal gradings.
(a) The appeal sample shall consist of product taken from the
original sample container plus an equal number of samples selected at
random.
(b) When the original samples are not available or have been
altered, such as the removal of undergrades, the appeal sample size for
the lot shall consist of double the samples required in Sec. 56.4(b).
* * * * *
Sec. 56.66 [Amended]
0
49. Section 56.66 is amended in the fourth sentence by removing the
words ``grade mark'' and adding ``grademark'' in their place.
0
50. A new undesignated center heading is added following Sec. 56.66 to
read as follows:
[[Page 42011]]
Denial of Service
0
51. Sections 56.68 through 56.74 are added to read as follows:
Sec. 56.68 Debarment.
The acts or practices set forth in Sec. Sec. 56.69 through 56.74,
or the causing thereof, may be deemed sufficient cause for the
debarment by the Administrator of any person, including any agents,
officers, subsidiaries, or affiliates of such person, from all benefits
of the act for a specified period. The Rules of Practice Governing
Formal Adjudicatory Proceedings (7 CFR part 1, subpart H) shall be
applicable to such debarment action.
Sec. 56.69 Misrepresentation, deceptive, or fraudulent act or
practice.
Any willful misrepresentation or any deceptive or fraudulent act or
practice found to be made or committed by any person in connection
with:
(a) The making or filing of an application for any grading service,
appeal, or regrading service;
(b) The making of the product accessible for sampling or grading;
(c) The making, issuing, or using or attempting to issue or use any
grading certificate, symbol, stamp, label, seal, or identification
authorized pursuant to the regulations in this part;
(d) The use of the terms ``United States'' or ``U.S.'' in
conjunction with the grade of the product;
(e) The use of any of the aforesaid terms or any official stamp,
symbol, label, seal, or identification in the labeling or advertising
of any product.
Sec. 56.70 Use of facsimile forms.
Using or attempting to use a form which simulates in whole or in
part any certificate, symbol, stamp, label, seal or identification
authorized to be issued or used under the regulations in this part.
Sec. 56.71 Willful violation of the regulations.
Any willful violation of the regulations in this part or the Act.
Sec. 56.72 Interfering with a grader or employee of the AMS.
Any interference with or obstruction or any attempted interference
or obstruction of or assault upon any graders, licensees, or employees
of the AMS in the performance of their duties. The giving or offering,
directly or indirectly, of any money, loan, gift, or anything of value
to an employee of the AMS or the making or offering of any contribution
to or in any way supplementing the salary, compensation or expenses of
an employee of the AMS or the offering or entering into a private
contract or agreement with an employee of the AMS for any services to
be rendered while employed by the AMS.
Sec. 56.73 Misleading labeling.
The use of the terms ``Government Graded'', ``Federal-State
Graded'', or terms of similar import in the labeling or advertising of
any product without stating in the label or advertisement the U.S.
grade of the product as determined by an authorized grader.
Sec. 56.74 Miscellaneous.
The existence of any of the conditions set forth in Sec. 56.24
constituting the basis for the rejection of an application for grading
service.
PART 70--VOLUNTARY GRADING OF POULTRY PRODUCTS AND RABBIT PRODUCTS
0
52. The authority citation for part 70 continues to read as follows:
Authority: 7 U.S.C. 1621-1627.
0
53. The undesignated center heading preceding Sec. 70.1 is revised to
read as follows:
Definitions
Sec. 70.1 [Amended]
0
54. Section 70.1 is amended as follows:
0
A. Remove the definition of Service.
0
B. Revise the section heading, the introductory text, and the
definitions of Chief of the Grading Branch and National supervisor.
0
C. Add the definitions of Agricultural Marketing Service, Interested
party, Sampling, United States Classes, Standards, and Grades for
Poultry, and United States Classes, Standards, and Grades for Rabbits,
in alphabetical order, as set forth below.
0
D. Amend the definition of Acceptable by removing the words ``and
acceptable to the Service'' and adding ``by the AMS'' in their place.
0
E. Amend the definition of Administrator by removing the words
``Agricultural Marketing Service of the Department'' and adding ``AMS''
in their place and removing the word ``his'' and adding ``the
Administrator's'' in its place.
0
F. Amend the definition of Class by adding the words ``or species''
after ``kind''.
0
G. Amend the definition of Department by adding the word ``(USDA)''
after ``Agriculture.''
0
H. Amend the definition of Grading certificate by adding the words
``Act and the'' after ``pursuant to the.''
0
I. Amend the definition Holiday or Legal Holiday by removing the words
``Legal Holiday shall mean'' and adding ``legal holiday means'' in
their place.
0
J. Amend the definition of Secretary by removing the word ``his'' and
adding ``the Secretary's'' in its place.
0
The additions and revisions, in alphabetical order, read as follows:
Sec. 70.1 Meaning of words and terms defined.
For the purpose of the regulations in this part, words in the
singular shall be deemed to import the plural and vice versa, as the
case may demand. Unless the context otherwise requires, the terms shall
have the following meaning:
* * * * *
Agricultural Marketing Service or AMS means the Agricultural
Marketing Service of the Department.
* * * * *
Chief of the Grading Branch means Chief of the Grading Branch,
Poultry Programs, AMS.
* * * * *
Interested party means any person financially interested in a
transaction involving any grading service.
* * * * *
National supervisor means the officer in charge of the poultry
grading service of the AMS, and other employees of the Department as
may be designated by the national supervisor.
* * * * *
Sampling means the act of taking samples of any product for grading
or certification.
* * * * *
United States Classes, Standards, and Grades for Poultry means the
official U.S. Classes, Standards, and Grades for Poultry (AMS 70.200 et
seq.) that are maintained by and available from Poultry Programs, AMS.
United States Classes, Standards, and Grades for Rabbits means the
official U.S. Classes, Standards, and Grades for Rabbits (AMS 70.300 et
seq.) that are maintained by and available from Poultry Programs, AMS.
Sec. 70.2 [Amended]
0
55. In Sec. 70.2, paragraph (c) is amended by removing the word
``Grade'' and adding ``grade'' in its place.
0
56. An undesignated center heading is added preceding Sec. 70.3 to
read as follows:
General
0
57. Section 70.3 is revised to read as follows:
Sec. 70.3 Administration.
The Administrator shall perform, for and under the supervision of
the Secretary, such duties as the Secretary may require in the
enforcement or administration of the provisions of the
[[Page 42012]]
Act and the regulations in this part. The Administrator is authorized
to waive for limited periods any particular provisions of the
regulations in this part to permit experimentation so that new
procedures, equipment, grading, and processing techniques may be tested
to facilitate definite improvements and at the same time to determine
full compliance with the spirit and intent of the regulations in this
part. The AMS and its officers and employees shall not be liable in
damages through acts of commission or omission in the administration of
this part.
0
58. Section 70.5 is revised to read as follows:
Sec. 70.5 Nondiscrimination.
The conduct of all services and the licensing of graders under
these regulations shall be accomplished without regard to race, color,
national origin, religion, age, sex, disability, political beliefs,
sexual orientation, or marital or family status.
0
59. Section 70.6 is revised to read as follows:
Sec. 70.6 OMB control number.
(a) Purpose. The collecting of information requirements in this
part has been approved by the Office of Management and Budget (OMB) and
assigned OMB control number 0581-0127.
(b) Display.
Sections Where Information Collection Requirements Are Identified and
Described
------------------------------------------------------------------------
------------------------------------------------------------------------
70.3 70.36 70.76(b)(3)(ii)
70.4(a) 70.38(c) 70.77(a)(1)
70.5 70.38(d) 70.77(a)(4)
70.18 70.39 70.77(b)(1)
70.20(a) 70.40 70.77(b)(3)(ii)
70.22 70.50 70.91(a)
70.31(a) 70.61 70.91(c)
70.31(b) 70.62 70.92
70.34 70.73 70.101
70.35 70.76(b)(1) 70.102
------------------------------------------------------------------------
0
60. Section Sec. 70.8 is added to read as follows:
Sec. 70.8 Other applicable regulations.
Compliance with the regulations in this part shall not excuse
failure to comply with any other Federal, or any State, or municipal
applicable laws or regulations.
0
61. The undesignated center heading preceding Sec. 70.10 is removed.
0
62. The section heading for Sec. 70.10 is revised to read as follows:
Sec. 70.10 Basis of grading service.
* * * * *
Sec. 70.10 [Amended]
0
63. Section 70.10 is amended by:
0
A. Designating the undesignated text as paragraph (a).
0
B. Revising the words ``classes,'' ``standards'' and ``grades'' in the
second sentence to read as ``Classes,'' ``Standards'' and ``Grades,''
respectfully.
0
C. Removing the words ``as contained in subparts B and C of this part''
in the second sentence and adding the words ``for Poultry and Rabbits''
in their place.
0
64. Section 70.13 is revised to read as follows:
Sec. 70.13 Ready-to-cook poultry and rabbits and specified poultry
food products.
(a) Ready-to-cook poultry or rabbit carcasses or parts or specified
poultry food products may be graded only if they have been inspected
and certified by the poultry inspection service of the Department, or
inspected and passed by any other inspection system which is acceptable
to the Department.
(b) Only when ready-to-cook poultry carcasses, parts, poultry food
products, including those used in preparing raw poultry food products,
have been graded on an individual basis by a grader or by an authorized
person pursuant to Sec. 70.20(c) and thereafter checkgraded by a
grader, and when poultry food products have been prepared under the
supervision of a grader, when necessary the individual container,
carcass, part, or poultry food product be identified with the
appropriate official letter grademark. Checkgrading shall be
accomplished in accordance with a statistical sampling plan prescribed
by the Administrator. Grading with respect to quality factors for
freezing defects and appearance of the finished products, when
necessary, shall be done on a sample basis in accordance with a plan
prescribed by the Administrator.
(c) Only when ready-to-cook rabbit carcasses or parts have been
graded on an individual basis by a grader or by an authorized person
pursuant to Sec. 70.20(c) and thereafter checkgraded by a grader, may
the container or the individual carcass or part be identified with the
appropriate official letter grademark. Checkgrading shall be
accomplished in accordance with a statistical sampling plan prescribed
by the Administrator. Grading with respect to quality factors for
freezing defects and appearance of the finished products may be done on
a sample basis in accordance with a plan prescribed by the
Administrator.
Sec. 70.14 [Amended]
0
65. In Sec. 70.14, the words ``U.S. Department of Agriculture'' are
removed and ``Department'' is added in their place.
0
66. Section 70.15 is revised to read as follows:
Sec. 70.15 Equipment and facilities for graders.
Equipment and facilities to be furnished by the applicant for use
of graders in performing service on a resident basis shall include, but
not be limited to, the following:
(a)(1) An accurate metal stem thermometer.
(2) A drill with a steel bit to drill holes in frozen product for
inserting the metal thermometer stem to determine temperature.
(3) Scales graduated in tenths of a pound or less for weighing
carcasses, parts, or products individually in containers up to 100
pounds, and test weights for such scales.
(4) Scales graduated in one-pound graduation or less for weighing
bulk containers of poultry and test weights for such scales.
(b) Furnished office space, a desk, and file or storage cabinets
(equipped with a satisfactory locking device) suitable for the security
and storage of official supplies, and other facilities and equipment as
may otherwise be required. Such space and equipment must meet the
approval of the national supervisor.
0
67. The undesignated center heading preceding Sec. 70.20 is revised to
read as follows:
Licensed and Authorized Graders
Sec. 70.20 Who may be licensed and authorized.
0
68. In Sec. 70.20, the section heading is revised as set forth above
and paragraph (b) is amended by removing the words ``Agricultural
Marketing Service'' and adding ``AMS'' in their place.
Sec. 70.21 [Amended]
0
69. Section 70.21 is amended by:
0
A. Removing the words ``he deems such action'' in the first sentence
and adding ``such action is deemed'' in their place.
0
B. Removing the words ``he may wish to offer as to why his'' in the
second sentence and adding ``the licensee may wish to offer as to why
the'' in their place.
0
C. Removing the words ``he deems'' in the third sentence and adding
``deemed'' in their place.
0
70. Section 70.22 is revised to read as follows:
Sec. 70.22 Surrender of license.
Each license which is suspended or revoked shall immediately be
surrendered by the licensee to the office
[[Page 42013]]
of grading servicing the area in which the license is located.
0
71. Section 70.23 is revised to read as follows:
Sec. 70.23 Identification.
Graders shall have in their possession at all times, and present
upon request while on duty, the means of identification furnished to
them by the Department.
0
72. Section 70.24 is revised to read as follows:
Sec. 70.24 Financial interest of graders.
Graders shall not render service on any product in which they are
financially interested.
0
73. Section 70.25 is revised to read as follows:
Sec. 70.25 Political activity.
Federal graders may participate in certain political activities,
including management and participation in political campaigns in
accordance with AMS policy. Graders are subject to these rules while
they are on leave with or without pay, including furlough; however, the
rules do not apply to cooperative employees not under Federal
supervision and intermittent employees on the days they perform no
service. Willful violations of the political activity rules will
constitute grounds for removal from the AMS.
0
74. Section 70.26 is added immediately following Sec. 70.25 and before
the undesignated center heading to read as follows:
Sec. 70.26 Cancellation of license.
Upon termination of the services of a licensed grader, the grader's
license shall be immediately surrendered for cancellation.
0
75. Section 70.30 is revised to read as follows:
Sec. 70.30 Who may obtain grading service.
An application for grading service may be made by any interested
person, including, but not being limited to any authorized agent of the
United States, any State, county, municipality, or common carrier.
Sec. 70.31 [Amended]
0
76. In Sec. 70.31, paragraph (a) is amended by removing the words
``basis may'' and adding ``basis shall'' in their place and removing
the word ``telegraph'' and adding ``any electronic means'' in its
place.
Sec. 70.34 [Amended]
0
77. Section 70.34 is amended in the third sentence by removing the word
``his'' and adding ``the supervisor's'' in its place.
0
78. Section 70.35 is revised to read as follows:
Sec. 70.35 Rejection of application.
(a) Any application for grading service may be rejected by the
Administrator:
(1) Whenever the applicant fails to meet the requirements of the
regulations prescribing the conditions under which the service is made
available;
(2) Whenever the product is owned by or located on the premises of
a person currently denied the benefits of the Act;
(3) Where any individual holding office or a responsible position
with or having a substantial financial interest or share in the
applicant, is currently denied the benefits of the Act, or was
responsible in whole or in part for the current denial of the benefits
of the Act to any person;
(4) Where the Administrator determines that the application is an
attempt on the part of a person currently denied the benefits of the
Act to obtain grading service;
(5) Whenever the applicant, after an initial survey has been made
in accordance with Sec. 70.34, fails to bring the grading facilities
and equipment into compliance with the regulations within a reasonable
period of time; or
(6) Notwithstanding any prior approval whenever, before
inauguration of service, the applicant fails to fulfill commitments
concerning the inauguration of the service.
(7) When it appears that to perform the services specified in this
part would not be to the best interests of the public welfare or of the
Government;
(8) When it appears to the Administrator that prior commitments of
the Department necessitate rejection of the application.
(b) Each such applicant shall be promptly notified by registered
mail of the reasons for the rejection. A written petition for
reconsideration of such rejection may be filed by the applicant with
the Administrator if postmarked or delivered within 10 days after
receipt of notice of the rejection. Such petition shall state
specifically the errors alleged to have been made by the Administrator
in rejecting the application. Within 20 days following the receipt of
such a petition for reconsideration, the Administrator shall approve
the application or notify the applicant by registered mail of the
reasons for the rejection thereof.
0
79. Section 70.36 is revised to read as follows:
Sec. 70.36 Withdrawal of Application.
An application for grading service may be withdrawn by the
applicant at any time before the service is performed upon payment by
the applicant, of all expenses incurred by the AMS in connection with
such application.
0
80. In Sec. 70.38, paragraph (c) is revised to read as follows:
Sec. 70.38 Suspension or withdrawal of plant approval for correctable
cause.
* * * * *
(c) If the grading facilities or methods of operation are not
brought into compliance within a reasonable period of time as specified
by the Administrator, the Administrator shall initiate withdrawal
action pursuant to the Rules of Practice Governing Formal Adjudicatory
Proceedings and Grading Service (7 CFR part 1, subpart H), and the
operator shall be afforded an opportunity for an oral hearing upon the
operator's written request in accordance with such Rules of Practice,
with respect to the merits or validity of the withdrawal action, but
any suspension shall continue in effect pending the outcome of such
hearing unless otherwise ordered by the Administrator. Upon withdrawal
of grading service in an official plant, the plant approval shall also
become terminated, and all labels, seals, tags, or packaging material
bearing official identification shall, under the supervision of a
person designated by the AMS, either be destroyed, or the official
identification completely obliterated, or sealed in a manner acceptable
to the AMS.
* * * * *
0
81. Section 70.39 is added immediately following Sec. 70.38 and before
the undesignated center heading to read as follows:
Sec. 70.39 Form of application.
Each application for grading or sampling a specified lot of any
product shall include such information as may be required by the
Administrator in regard to the product and the premises where such
product is to be graded or sampled.
0
82. Section 70.40 is revised to read as follows:
Sec. 70.40 Debarment.
The acts or practices set forth in Sec. Sec. 70.41 through 70.46,
or the causing thereof, may be deemed sufficient cause for the
debarment by the Administrator of any person, including any agents,
officers, subsidiaries, or affiliates of such person, from all benefits
of the act for a specified period. The Rules of Practice Governing
Formal Adjudicatory Proceedings (7 CFR part 1, subpart H)
[[Page 42014]]
shall be applicable to such debarment action.
Sec. 70.41 Misrepresentation, deceptive, or fraudulent act or
practice.
0
83. In Sec. 70.41, the section heading is revised as set forth above
and paragraph (b) is amended by adding the words ``sampling or'' after
``for.''
Sec. 70.44 [Amended]
0
84. Section 70.44 is amended in the first sentence by removing the word
``his'' and adding ``such employees'' in its place.
0
85. Section 70.56 is added immediately following Sec. 70.55 and before
the undesignated center heading to read as follows:
Sec. 70.56 Grading requirements of poultry and rabbits identified
with official identification.
(a) Poultry and rabbit products to be identified with the
grademarks illustrated in Sec. 70.51 must be individually graded by a
grader or by authorized personnel pursuant to Sec. 70.20 and
thereafter checkgraded by a grader.
(b) Poultry and rabbit products not graded in accordance with
paragraph (a) of this section may be officially graded on a sample
basis and the shipping containers may be identified with grademarks
which contain the words ``Sample Graded'' and which are approved by the
Administrator.
0
86. Section 70.60 is revised to read as follows:
Sec. 70.60 Report of grading work.
Reports of grading work performed within official plants shall be
forwarded to the Administrator by the grader in a manner as may be
specified by the Administrator.
0
87. Section 70.62 is revised to read as follows:
Sec. 70.62 Report of violations.
Each grader shall report, in the manner prescribed by the
Administrator, all violations and noncompliances under the Act and the
regulations in this part of which such grader has knowledge.
Sec. 70.70 [Amended]
0
88. In Sec. 70.70, paragraph (b) is amended by removing the words
``Agricultural Marketing Service'' and adding ``AMS'' in their place
and by removing the word ``Service'' and adding ``AMS'' in its place.
Sec. 70.71 [Amended]
0
89. In Sec. 70.71, paragraph (c) is amended by removing the word
``Supervisor'' and adding ``supervisor'' in its place.
Sec. 70.72 Fees for appeal grading or review of a grader's decision.
0
90. Section 70.72 is amended by:
0
A. Revising the section heading as set forth above.
0
B. Removing the words ``or examination'' both times they appear.
0
C. Removing the words ``will be borne'' and adding ``shall be borne''
in their place.
Sec. 70.75 [Amended]
0
90a. In Sec. 70.75 in the first sentence remove the word ``Service''
and add ``AMS'' in its place.
Sec. 70.76 [Amended]
0
91. In Sec. 70.76, paragraph (a) is amended by removing the words
``the Agricultural Marketing Service, U.S. Department of Agriculture
(hereinafter referred to as ``AMS'')'' and adding ``AMS'' in their
place.
Sec. 70.77 [Amended]
0
92. In Sec. 70.77, paragraph (a) is amended by removing the words
``Agricultural Marketing Service, U.S. Department of Agriculture
(hereinafter referred to as ``AMS'')'' and adding ``AMS'' in their
place.
0
93. The undesignated center heading preceding Sec. 70.80 is removed.
Sec. 70.80 [Amended]
0
94. The section heading for Sec. 70.80 is removed and the undesignated
text is designated as paragraph (b) of Sec. 70.10.
Sec. 70.81 [Removed]
0
95. Section 70.81 is removed.
0
96. Section 70.90 is revised to read as follows:
Sec. 70.90 Forms.
Grading certificates and sampling report forms (including appeal
grading certificates and regrading certificates) shall be issued on
forms approved by the Administrator.
0
97. Section 70.91 is revised to read as follows:
Sec. 70.91 Issuance.
(a) Resident grading basis. Certificates will be issued only upon a
request therefor by the applicant or the AMS. When requested, a grader
shall issue a certificate covering product graded by such grader. In
addition, a grader may issue a grading certificate covering product
graded in whole or in part by another grader when the grader has
knowledge that the product is eligible for certification based on
personal examination of the product or official grading records.
(b) Other than resident grading. Each grader shall, in person or by
an authorized agent, issue a grading certificate covering each product
graded by such grader. A grader's name may be signed on a grading
certificate by a person other than the grader if such person has been
designated as the authorized agent of such grader by the national
supervisor: Provided, That the certificate is prepared from an official
memorandum of grading signed by the grader: And provided further, That
a notarized power of attorney authorizing such signature has been
issued to such person by the grader and is on file in the office of
grading. In such case, the authorized agent shall sign both the agents
name and the grader's name, e.g., ``John Doe by Mary Roe.''
0
98. Section 70.92 is revised to read as follows:
Sec. 70.92 Disposition.
The original and a copy of each grading certificate, issued
pursuant to Sec. Sec. 70.90 through 70.93, and not to exceed two
additional copies thereof if requested by the applicant prior to
issuance shall, immediately upon issuance, be delivered or mailed to
the applicant or the applicant's designee. Other copies shall be filed
and retained in accordance with the disposition schedule for grading
program records.
0
99. Section 70.93 is added immediately following Sec. 70.92 and before
the undesignated center heading to read as follows:
Sec. 70.93 Advance information.
Upon request of an applicant, all or part of the contents of any
grading certificate issued to such applicant may be telephoned or
transmitted by any electronic means to the applicant, or to the
applicant's designee, at the applicant's expense.
0
100. In Sec. 70.104, paragraph (a) is revised to read as follows:
Sec. 70.104 Who shall perform the appeal.
(a) An appeal grading or review of a decision requested under Sec.
70.101(a) shall be made by the grader's immediate supervisor or by one
or more licensed graders assigned by the immediate supervisor.
* * * * *
0
101. In Sec. 70.105, paragraphs (a) and (b) are revised to read as
follows:
Sec. 70.105 Procedures for appeal gradings.
(a) The appeal sample shall consist of product taken from the
original sample container plus an equal number of containers selected
at random.
[[Page 42015]]
(b) When the original samples are not available or have been
altered, such as the removal of undergrades, the appeal sample size for
the lot shall consist of double the samples required in Sec. 70.80.
* * * * *
Dated: June 15, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-6159 Filed 7-21-06; 8:45 am]
BILLING CODE 3410-02-P