Updating Administrative Requirements for Voluntary Shell Egg, Poultry, and Rabbit Grading, 42006-42015 [06-6159]

Download as PDF 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: rwilkins on PROD1PC63 with RULES_4 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 VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 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. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 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. E:\FR\FM\24JYR4.SGM 24JYR4 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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 rwilkins on PROD1PC63 with RULES_4 I I I VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 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. * * * * * PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 42007 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 E:\FR\FM\24JYR4.SGM 24JYR4 42008 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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: rwilkins on PROD1PC63 with RULES_4 I § 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 VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 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. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 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 E:\FR\FM\24JYR4.SGM 24JYR4 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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: rwilkins on PROD1PC63 with RULES_4 § 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; VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 (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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 42009 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 E:\FR\FM\24JYR4.SGM 24JYR4 42010 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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. rwilkins on PROD1PC63 with RULES_4 * * § 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 VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 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 E:\FR\FM\24JYR4.SGM 24JYR4 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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. rwilkins on PROD1PC63 with RULES_4 § 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 VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 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 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 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 E:\FR\FM\24JYR4.SGM 24JYR4 42012 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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 rwilkins on PROD1PC63 with RULES_4 § 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. * VerDate Aug<31>2005 * * 18:35 Jul 21, 2006 Jkt 208001 § 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. PO 00000 Frm 00008 Fmt 4701 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 E:\FR\FM\24JYR4.SGM 24JYR4 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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. rwilkins on PROD1PC63 with RULES_4 I § 70.34 [Amended] 77. Section 70.34 is amended in the third sentence by removing the word I VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 § 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) E:\FR\FM\24JYR4.SGM 24JYR4 42014 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations 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. rwilkins on PROD1PC63 with RULES_4 I § 70.71 [Amended] 89. In § 70.71, paragraph (c) is amended by removing the word I VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 I 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 PO 00000 Frm 00010 Fmt 4701 § 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. E:\FR\FM\24JYR4.SGM 24JYR4 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations (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] rwilkins on PROD1PC63 with RULES_4 BILLING CODE 3410–02–P VerDate Aug<31>2005 18:35 Jul 21, 2006 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 42015 E:\FR\FM\24JYR4.SGM 24JYR4

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]]

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Part VI





Department of Agriculture





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Agriculture Marketing Service



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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]]


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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.

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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 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