[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    7


          Parts 53 to 209

                         Revised as of January 1, 2003

Agriculture





          Containing a codification of documents of general 
          applicability and future effect
          As of January 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 7:
    Subtitle B--Regulations of the Department of Agriculture 
      (Continued)
          Chapter I--Agricultural Marketing Service 
          (Standards, Inspections, Marketing Practices), 
          Department of Agriculture (Continued)                      5
  Finding Aids:
      Material Approved for Incorporation by Reference........     435
      Table of CFR Titles and Chapters........................     437
      Alphabetical List of Agencies Appearing in the CFR......     455
      List of CFR Sections Affected...........................     465



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  7 CFR 53.1 refers 
                       to title 7, part 53, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2003), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
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instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
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also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2003.



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                               THIS TITLE

    Title 7--Agriculture is composed of fifteen volumes. The parts in 
these volumes are arranged in the following order: parts 1-26, 27-52, 
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of January 1, 2003.

    The Food and Nutrition Service current regulations in the volume 
containing parts 210-299, include the Child Nutrition Programs and the 
Food Stamp Program. The regulations of the Federal Crop Insurance 
Corporation are found in the volume containing parts 400-699.

    All marketing agreements and orders for fruits, vegetables and nuts 
appear in the one volume containing parts 900-999. All marketing 
agreements and orders for milk appear in the volume containing parts 
1000-1199. Part 900--General Regulations is carried as a note in the 
volume containing parts 1000-1199, as a convenience to the user.

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[[Page 1]]



                          TITLE 7--AGRICULTURE




                  (This book contains parts 53 to 209)

  --------------------------------------------------------------------
                                                                    Part

  SUBTITLE B--Regulations of the Department of Agriculture (Continued)

chapter i--Agricultural Marketing Service (Standards, 
  Inspections, Marketing Practices), Department of 
  Agriculture (Continued)...................................          53

[[Page 3]]

  Subtitle B--Regulations of the Department of Agriculture (Continued)

[[Page 5]]



 CHAPTER I--AGRICULTURAL MARKETING SERVICE \1\ (STANDARDS, INSPECTIONS, 
       MARKETING PRACTICES), DEPARTMENT OF AGRICULTURE (CONTINUED)



---------------------------------------------------------------------------

  \1\ Including matters within the responsibilities of the Federal Grain 
Inspection Service.
---------------------------------------------------------------------------

  --------------------------------------------------------------------

SUBCHAPTER C--REGULATIONS AND STANDARDS UNDER THE AGRICULTURAL MARKETING 
       ACT OF 1946 AND THE EGG PRODUCTS INSPECTION ACT (CONTINUED)
Part                                                                Page
53              Livestock (grading, certification, and 
                    standards)..............................           7
54              Meats, prepared meats, and meat products 
                    (grading, certification, and standards).          13
55              Voluntary inspection of egg products and 
                    grading.................................          41
56              Voluntary grading of shell eggs.............          56
57              Inspection of eggs (Egg Products Inspection 
                    Act)....................................          76
58              Grading and inspection, general 
                    specifications for approved plants and 
                    standards for grades of dairy products..          94
59              Livestock mandatory reporting...............         170
60              [Reserved]

61              Cottonseed sold or offered for sale for 
                    crushing purposes (inspection, sampling 
                    and certification)......................         183
70              Voluntary grading of poultry products and 
                    rabbit products.........................         189
75              Regulations for inspection and certification 
                    of quality of agricultural and vegetable 
                    seeds...................................         208
         SUBCHAPTER D--EXPORT AND DOMESTIC CONSUMPTION PROGRAMS
80              Fresh Russet Potato Diversion Program.......         215
81              Prune/dried Plum Diversion Program..........         215
           SUBCHAPTER E--COMMODITY LABORATORY TESTING PROGRAMS
90              Introduction................................         220
91              Services and general information............         222

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92              Tobacco.....................................         237
93              Processed fruits and vegetables.............         240
94              Poultry and egg products....................         243
95              [Reserved]

96              Cottonseed sold or offered for sale for 
                    crushing purposes (chemical analysis and 
                    United States official grade 
                    certification)..........................         247
97              Plant variety and protection................         255
98              Meals, Ready-to-Eat (MRE's), meats, and meat 
                    products................................         274
99-109          [Reserved]

110             Recordkeeping on restricted use pesticides 
                    by certified applicators; surveys and 
                    reports.................................         277
111-159         [Reserved]

                       SUBCHAPTER F--NAVAL STORES
160             Regulations and standards for naval stores..         289
                       SUBCHAPTERS G-H [RESERVED]
                     SUBCHAPTER K--FEDERAL SEED ACT
201             Federal Seed Act regulations................         308
202             Federal Seed Act rules of practice..........         382
203-204         [Reserved]

       SUBCHAPTER L--REQUIREMENTS RELATING TO PURCHASES [RESERVED]
         SUBCHAPTER M-- ORGANIC FOODS PRODUCTION ACT PROVISIONS
205             National Organic Program....................         386
206-209         Reserved

[[Page 7]]



SUBCHAPTER C--REGULATIONS AND STANDARDS UNDER THE AGRICULTURAL MARKETING 
      ACT OF 1946 AND THE EGG PRODUCTS INSPECTION ACT--(Continued)





PART 53--LIVESTOCK (GRADING, CERTIFICATION, AND STANDARDS)--Table of Contents




                         Subpart A--Regulations

                               Definitions

Sec.
53.1  Meaning of words.
53.2  Designation of official certificates, memoranda, marks, other 
          identifications, for purposes of the Agricultural Marketing 
          Act.

                             Administration

53.3  Authority.

                                 Service

53.4  Kind of service.
53.5  Availability of service.
53.8  How to obtain service.
53.9  Order of furnishing service.
53.10  When request for service deemed made.
53.11  Withdrawal of application or request for service.
53.12  Authority of agent.
53.13  Denial or withdrawal of service.
53.14  Financial interest of official grader.
53.15  Accessibility to livestock.
53.16  Official certificates.
53.17  Advance information concerning service rendered.

                           Charges for Service

53.18  Fees and other charges for service.
53.19  Payment of fees and other charges.

                              Miscellaneous

53.20  Identification.
53.21  Errors in service.

Subpart B [Reserved]

    Authority: 7 U.S.C. 1621-1627.

    Source: 42 FR 53902, Oct. 4, 1977, unless otherwise noted.



                         Subpart A--Regulations

                               Definitions



Sec. 53.1  Meaning of words.

    Words used in this subpart in the singular form shall be deemed to 
import the plural, and vice versa, as the case may demand. For the 
purposes of such regulations, unless the context otherwise requires, the 
following terms shall be construed, respectively, to mean:
    Acceptance service. The service established and conducted under the 
regulations for the determination and certification or other 
identification of the compliance of livestock with specifications.
    Act. The Agricultural Marketing Act of 1946 (Title II of the act of 
Congress approved August 14, 1946, 60 Stat. 1087, as amended by Pub. L. 
272, 84th Cong., 69 Stat. 553, 7 U.S.C. 1621-1627).
    Administrator. The Administrator of the Agricultural Marketing 
Service, or any officer or employee of the Agricultural Marketing 
Service to whom authority has heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in his stead.
    Agricultural Marketing Service. The Agricultural Marketing Service 
of the Department.
    Applicant. Any person who has applied for service under the 
regulations.
    Branch. The Livestock Market News Branch of the Division.
    Chief. The Chief of the Branch, or any officer or employee of the 
Branch to whom authority has heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in his stead.
    Class. A subdivision of livestock based on essential physical 
characteristics that differentiate between major groups of the same kind 
of species.
    Compliance. Conformity of livestock to the specifications under 
which the livestock was purchased or sold, with particular reference to 
the weight, quality or other characterics of livestock.
    Cooperative agreement. A cooperative agreement between the 
Agricultural Marketing Service and another Federal agency or a State 
agency, or other agency, organization or person as specified in the 
Agricultural Marketing Act of 1946, as amended, for conducting the 
service.

[[Page 8]]

    Department. The United States Department of Agriculture.
    Director. The Director of the Division or any officer or employee of 
the Division to whom authority has heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in his stead.
    Division. Livestock, Poultry, Grain and Seed Division.
    Financially interested person. Any person having a financial 
interest in the livestock involved, including but not limited to the 
shipper, receiver, producer, seller, buyer, or carrier of the livestock 
or products.
    Grade. (1) As a noun, this term means an important commercial 
subdivision of livestock based on certain definite and preference 
determining factors, such as, but not limited to, conformation, finish, 
and muscling in livestock.
    (2) As a verb, this term means to determine the class, grade, or 
other quality of livestock according to applicable standards for such 
livestock.
    Grading service. The service established and conducted under the 
regulations for the determination and certification or other 
identification of the class, grade, or other quality of livestock under 
standards.
    Legal holiday. Those days designated as legal public holidays in 
title 5, United States Code, section 6103(a).
    Livestock. Cattle, sheep, swine, or goats.
    Official grader. An employee of the Department or other person 
authorized by the Department to determine and certify or otherwise 
identify the class, grade, other quality, or compliance of livestock 
under the regulations.
    Person. Any individual, partnership, corporation, or other legal 
entity, or Government agency.
    Regulations. The regulations in this subpart.
    Service. Grading service or acceptance service.
    Specifications. Description with respect to the class, grade, other 
quality, quantity or condition of livestock approved by the 
Administrator, and available for use by the industry regardless of the 
origin of the descriptions.
    Standards. The standards of the Department contained in Official 
United States Standards for Grades of: Carcass Beef; Veal and Calf 
Carcasses; Lamb, Yearling Mutton, and Mutton Carcasses; and, Pork 
Carcasses.
    Supervisor. An official person designated by the Director or Chief 
to supervise and maintain uniformity and accuracy of service under the 
regulations.

[42 FR 53902, Oct. 4, 1977, as amended at 63 FR 72101, Dec. 31, 1998]



Sec. 53.2  Designation of official certificates, memoranda, marks, other identifications, for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks or other identifications, and devices for making such marks or 
identifications, issued or authorized under section 203 of said act, and 
certain misrepresentations concerning the inspection or grading of 
agricultural products under said section. For the purposes of said 
subsection and the provisions in this part, the terms listed below shall 
have the respective meanings specified:
    (a) Official certificate means any form of certification, either 
written or printed, including that prescribed in Sec. 53.16, used under 
the regulations to certify with respect to the inspection, class, grade, 
quality, size, quantity, or condition of livestock with applicable 
specifications.
    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of grading, determining compliance, 
or inspecting, pursuant to the regulations, any processing or plant-
operation report made by an authorized person in connection with 
grading, determining compliance, inspecting, or sampling under the 
regulations, and any report made by an authorized person of services 
performed pursuant to the regulations.
    (c) Official mark or other official identification means any form of 
mark or other identification, used under the regulations in marking 
livestock thereof, to show inspection, class,

[[Page 9]]

grade, quality, size, quantity, or condition of the livestock (including 
the compliance of livestock with applicable specifications), or to 
maintain the identity of livestock for which service is provided under 
the regulations.

                             Administration



Sec. 53.3  Authority.

    The Director is charged with the administration of the regulations 
and the Act insofar as they relate to livestock.

                                 Service



Sec. 53.4  Kind of service.

    Grading service under the regulations shall consist of the 
determination and certification and other identification, upon request 
by the applicant, of the class, grade, or other quality of livestock 
under applicable standards. Class, grade and other quality may be 
determined under said standards for livestock. Acceptance service under 
the regulations shall consist of the determination of the conformity of 
livestock to specifications approved by the Director or Chief and the 
certification and other identification of such livestock in accordance 
with specifications, upon request by the applicant.

[42 FR 53902, Oct. 4, 1977, as amended at 63 FR 72101, Dec. 31, 1998]



Sec. 53.5  Availability of service.

    Service under these regulations may be made available with respect 
to livestock shipped or received in interstate commerce, and with 
respect to the livestock not so shipped or received if the Director or 
Chief determines that the furnishing of service for such livestock would 
facilitate the marketing, distribution, processing, or utilization of 
agricultural products through commercial channels. Also, such service 
may be made available under a cooperative agreement. Service under these 
regulations shall be provided without discrimination as to race, color, 
sex, creed, or national origin.



Sec. 53.8  How to obtain service.

    (a) Application. Any person may apply to the Director or Chief for 
service under the regulations with respect to livestock in which the 
applicant is financially interested. The application shall be made on a 
form approved by the Director.
    (b) Notice of eligibility for service. The applicant for service 
will be notified whether his application is approved.
    (c) Request by applicant for service-- (1) Noncommitment. Upon 
notification of the approval on an application for service, the 
applicant may, from time to time as desired, make oral or written 
requests for service under the regulations with respect to specific 
livestock for which the service is to be furnished under such 
application. Such requests shall be made at a market news office either 
directly or through any employee of the Agricultural Marketing Service 
who may be designated for such purposes.



Sec. 53.9  Order of furnishing service.

    Service under the regulations shall be furnished to applicants in 
the order in which requests therefor are received, insofar as consistent 
with good management, efficiency and economy. Precedence will be given, 
when necessary, to requests made by any government agency or any regular 
user of the service.



Sec. 53.10  When request for service deemed made.

    A request for service under the regulations shall be deemed to be 
made when received by a market news office. Records showing the date and 
time of the request shall be made and kept in such office.



Sec. 53.11  Withdrawal of application or request for service.

    An application or a request for service under the regulations may be 
withdrawn by the applicant at any time before the application is 
approved or prior to performance of service, upon payment, in accordance 
with Secs. 53.18 and 53.19, of any expenses already incurred by the 
Agricultural Marketing Service in connection therewith.



Sec. 53.12  Authority of agent.

    Proof of the authority of any person making an application or a 
request for service under the regulations on behalf of any other person 
may be required at the discretion of the Director or Chief

[[Page 10]]

or the official in charge of the market news office or other employee 
receiving the application or request under Sec. 53.8.



Sec. 53.13  Denial or withdrawal of service.

    (a) For misconduct--(1) Bases for denial or withdrawal. An 
application or a request for service may be rejected, or the benefits of 
the service may be otherwise denied to, or withdrawn from, any person 
who, or whose employee or agent in the scope of his employment or 
agency: (i) Has willfully made any misrepresentation or has committed 
any other fraudulent or deceptive practice in connection with any 
application or request for service under the regulations; (ii) has given 
or attempted to give, as a loan or for any other purpose, any money, 
favor, or other thing of value, to any employee of the Department 
authorized to perform any function under the regulations; (iii) has 
interfered with or obstructed, or attempted to interfere with or to 
obstruct, any employee of the Department in the performance of his 
duties under the regulations by intimidation, threats, assaults, abuse, 
or any other improper means; (iv) has knowingly falsely made, issued, 
altered, forged, or counterfeited any official certificate, memorandum, 
mark, or other identification; (v) has knowingly uttered, published, or 
used as true any such falsely made, issued, altered, forged, or 
counterfeited certificate, memorandum, mark, identification, or device; 
(vi) has knowingly obtained or retained possession of any such falsely 
made, issued, altered, forged, or counterfeited certificate, memorandum, 
mark, identification, or device, or of any livestock bearing any such 
falsely made, issued, altered, forged, or counterfeited mark or 
identification; or (vii) has in any manner not specified in this 
paragraph violated subsection 203(h) of the Act: Provided, That 
paragraph (a)(1)(vi) of this section shall not be deemed to be violated 
if the person in possession of any item mentioned therein notifies the 
Director or Chief without delay that he has possession of such item and, 
surrenders it to the Director or Chief or destroys it or brings it into 
compliance with the regulations by obliterating or removing the 
violative features under supervision of the Director or Chief: And 
provided, further, That paragraph (a)(1)(ii) through (vi) of this 
section shall not be deemed to be violated by any act committed by any 
person prior to the making of an application for service under the 
regulations by the principal person. An application or a request for 
service may be rejected, or the benefits of the service may be otherwise 
denied to, or withdrawn from, any person who, or whose employee or agent 
in the scope of his employment or agency, has committed any of the 
offenses specified in paragraph (a)(1) (i) through (vii) of this section 
after such application was made. Moreover, an application or a request 
for service made in the name of a person otherwise eligible for service 
under the regulations may be rejected, or the benefits of the service 
may be otherwise denied to, or withdrawn from, such a person (a) in case 
the service is or would be performed at an establishment operated (1) by 
a corporation, partnership, or other person from whom the benefits of 
the service are currently being withheld under this paragraph, or (2) by 
a corporation, partnership, or other person having an officer, director, 
partner, or substantial investor from whom the benefits of the service 
are currently being withheld and who has any authority with respect to 
the establishment where service is or would be performed, or (b) in case 
the service is or would be performed with respect to any livestock in 
which any corporation, partnership, or other person within paragraph 
(a)(1)(vii)(a)(1) of this section has a contract or other financial 
interest.
    (2) Procedure. All cases arising under this paragraph shall be 
conducted in accordance with the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth in Secs. 1.130 through 1.151 of this title and the 
Supplemental Rules of Practice in part 50 of this chapter.
    (b) For miscellaneous reasons. An application or a request for 
service may be rejected, or the benefits of the service may be otherwise 
denied to, or withdrawn from, any person, without a hearing, by the 
official in charge of the appropriate market news office with

[[Page 11]]

the concurrence of the Director or Chief: (1) For administrative reasons 
such as the nonavailability of personnel to perform the service; (2) for 
the failure to pay for service; (3) for other noncompliance with the 
conditions on which service is available as provided in the regulations, 
except matters covered by paragraph (a) of this section; or (4) in case 
the person is a partnership, corporation, or other person from whom the 
benefits of the service are currently being withheld under paragraph (a) 
of this section. Notice of such denial or withdrawal, and the reasons 
therefor, shall promptly be given to the person involved.
    (c) Filing of records. The final orders in formal proceedings under 
paragraph (a) of this section to deny or withdraw the service under the 
regulations (except orders required for good cause to be held 
confidential and not cited as precedents) and other records in such 
proceedings (except those required for good cause to be held 
confidential) shall be filed with the Hearing Clerk and shall be 
available for inspection by persons having a proper interest therein.

[42 FR 53902, Oct. 4, 1977, as amended at 60 FR 8464, Feb. 14, 1995]



Sec. 53.14  Financial interest of official grader.

    No official grader shall grade or determine compliance of any 
livestock in which he or any of his relatives by blood or marriage is 
directly or indirectly financially interested.



Sec. 53.15  Accessibility to livestock.

    (a) The applicant shall cause livestock, with respect to which 
service is requested, to be made easily accessible for examination and 
to be so placed, with adequate illuminating facilities, as to disclose 
their class, grade, other quality, and compliance. Supervisors and other 
employees of the Department responsible for maintaining uniformity and 
accuracy of service under the regulations shall have access to all parts 
of establishments covered by approved applications for service under the 
regulations, for the purpose of examining all livestock in the 
establishments which have been or are to be graded or examined for 
compliance with specifications.
    (b) [Reserved]



Sec. 53.16  Official certificates.

    (a) Required; exception. The official grader shall prepare, sign, 
and issue a livestock acceptance certificate covering livestock for 
which compliance has been determined.
    (b) Where weight is certified, the word ``Not'' shall be deleted 
from the phrases ``Weights Not Verified.''
    (c) Distribution. The original certificate, and not to exceed two 
copies, shall be delivered or mailed to the applicant or other person 
designated by him. The remaining copies shall be forwarded as required 
by agency, division, and branch instructions. Additional copies will be 
furnished to any person financially interested in livestock involved 
with the concurrence of the applicant and upon payment of fees, as 
provided in Sec. 53.18(d).



Sec. 53.17  Advance information concerning service rendered.

    Upon request of any applicant, all or any part of the contents of 
any certificate issued to him under the regulations, or other 
notification concerning the determination of class, grade, other 
quality, or compliance of livestock for such applicant may be 
transmitted by telegraph or telephone to him, or to any person 
designated by him, at his expense.

                           Charges for Service



Sec. 53.18  Fees and other charges for service.

    Fees and other charges equal as nearly as may be to the cost of the 
services rendered shall be assessed and collected from applicants in 
accordance with the following provisions unless otherwise provided in 
the cooperative agreement under which the services are furnished, or as 
provided in Sec. 53.8.
    (a) Fees based on hourly rates. Except as otherwise provided in this 
section, fees for service shall be based on the time required to render 
the service, calculated to the nearest 15-minute period, including time 
required for the preparation of certificates and travel of the official 
grader in connection

[[Page 12]]

with the performance of service. A minimum charge for 1 hour shall be 
made for service pursuant to each request notwithstanding that the time 
required to perform service may be less than 60 minutes. The base hourly 
rate shall be $29.40 per hour for work performed between the hours of 6 
a.m. and 6 p.m., Monday through Friday, except on legal holidays; $32.80 
per hour for work performed before 6 a.m. or after 6 p.m., Monday 
through Friday, and anytime Saturday or Sunday except on legal holidays; 
and $58.80 per hour for all work performed on legal holidays.
    (b) Travel charges. When service is requested at a place so distant 
from an official grader's headquarters, or place of prior assignment on 
a circuitous routing that a total of one-half hour or more is required 
for the grader to travel to such place and back to the headquarters, or 
to the next place of assignment on a circuitous routing, the charge for 
such service shall include a mileage charge administratively determined 
by the Chief, and travel tolls, if applicable, for such travel prorated 
against all the applicants furnished the service involved on an 
equitable basis, or where the travel is made by public transportation 
(including hired vehicle), a fee equal to the actual cost thereof. 
However, the applicant will not be charged a new mileage rate without 
notification before the service is rendered.
    (c) Per diem charges. When service is requested at a place away from 
the official grader's headquarters, the fee for such service shall 
include a per diem charge if the employee performing the service is paid 
per diem in accordance with existing travel regulations. Per diem 
charges to applicants will cover the same period of time for which the 
grader receives per diem reimbursement. The per diem rate will be 
administratively determined by the Chief. However, the applicant will 
not be charged a new per diem rate without notification before the 
service is rendered.
    (d) Fees for extra copies of certificates. In addition to copies of 
certificates furnished under Sec. 53.16, any financially interested 
person may obtain not to exceed three copies of any such certificate 
within 1 year from its date of issuance upon payment of a fee of $1.00, 
and not to exceed three copies of any such certificate at any time 
thereafter, while a copy of such certificate is on file in the 
Department, upon payment of a fee of $5.00.
    (e) Other charges. When costs, other than costs specified in 
paragraphs (a), (b), (c), and (d) of this section, are involved in 
providing the services, the applicant will be charged for these costs. 
The amount of these charges will be determined administratively by the 
Chief. However, the applicant will not be charged for such cost without 
notification before the service is rendered of the charge for such item 
of expense.

[42 FR 53902, Oct. 4, 1977, as amended at 47 FR 54927, Dec. 7, 1982; 48 
FR 16874, Apr. 20, 1983]



Sec. 53.19  Payment of fees and other charges.

    Fees and other charges for service shall be paid in accordance with 
the following provisions unless otherwise provided in the cooperative 
agreement under which the service is furnished. Upon receipt of billing 
for fees and other charges for service the applicant shall remit by 
check, draft, or money order, made payable to the Agricultural Marketing 
Service, U.S.D.A., payment for the service in accordance with directions 
on the billing, and such fees and charges shall be paid in advance if 
required by the official grader or other authorized official.

                              Miscellaneous



Sec. 53.20  Identification.

    All official graders and supervisors shall have their Agricultural 
Marketing Service identification cards in their possession at all times 
while they are performing any function under the regulations and shall 
identify themselves by such cards upon request.



Sec. 53.21  Errors in service.

    When an official grader, supervisor, or other responsible employee 
of the Branch has evidence of misgrading, or of incorrect certification 
or other incorrect determination or identification as to the class, 
grade, other quality, or compliance of livestock, he shall report the 
matter to his immediate supervisor. The supervisor will investigate

[[Page 13]]

the matter and, if he deems advisable, will report it to the owner or 
his agent. The supervisor shall take appropriate action to correct 
errors found in the determination or identification of class, grade or 
other quality or compliance of livestock if the livestock is still owned 
by the person who owned them when, and are still located at the 
establishment where, the incorrect service was rendered and if such 
service was rendered by a grader under the jurisdiction of such 
supervisor, and the supervisor shall take adequate measures to prevent 
the recurrence of such errors.

Subpart B [Reserved]



PART 54--MEATS, PREPARED MEATS, AND MEAT PRODUCTS (GRADING, CERTIFICATION, AND STANDARDS)--Table of Contents




                         Subpart A--Regulations

                               Definitions

Sec.
54.1  Meaning of words.
54.2  Designation of official certificates, memoranda, marks, other 
          identifications, and devices for purposes of the Agricultural 
          Marketing Act.

                             Administration

54.3  Authority.

                                 Service

54.4  Kind of service.
54.5  Availability of service.
54.6  How to obtain service.
54.7  Order of furnishing service.
54.8  When request for service deemed made.
54.9  Withdrawal of application or request for service.
54.10  Authority of agent.
54.11  Denial or withdrawal of service.
54.12  Financial interest of official grader.
54.13  Accessibility and refrigeration of products; access to 
          establishments.
54.14  Official certificates.
54.15  Advance information concerning service rendered.
54.16  Marking of products.
54.17  Official identifications.
54.18  Custody of identification devices.

                             Appeal Service

54.19  What is appeal service; marking products on appeal; requirements 
          for appeal; certain determinations not appealable.
54.20  Request for appeal service.
54.21  When request for appeal service may be withdrawn.
54.22  Denial or withdrawal of appeal service.
54.23  Who shall perform appeal service.
54.24  Appeal certificates.
54.25  Superseded certificates.
54.26  Application of other regulations to appeal service.

                           Charges for Service

54.27  Fees and other charges for service.
54.28  Payment of fees and other charges.

                              Miscellaneous

54.29  Identification.
54.30  Errors in service.
54.31  Uniforms.

Subpart B [Reserved]

 Subpart C--Regulations Governing the Certification of Sanitary Design 
  and Fabrication of Equipment Used in the Slaughter, Processing, and 
               Packaging of Livestock and Poultry Products

Sec.
54.1001  Meaning of words.
54.1002  Terms defined.
54.1003  Designation of official certificates, memoranda, marks, and 
          other identifications for purposes of the Agricultural 
          Marketing Act.
54.1004  Administration and implementation.
54.1005  Basis of service.
54.1006  Kind of service.
54.1007  Availability of service.
54.1008  How to obtain service.
54.1009  Order of furnishing service.
54.1010  When request for service deemed made.
54.1011  Withdrawal of application or request for service.
54.1012  Authority of agent.
54.1013  When an application may be rejected.
54.1014  Accessibility of equipment and utensils; access to 
          establishments.
54.1015  Official reports, forms, and certificates.
54.1016  Advance information concerning service rendered.
54.1017  Authority to use official identification.
54.1018  Form of official identification and approval for use.
54.1019  Renewal of Acceptance Certification.
54.1020  Appeal service; marking equipment or utensils on appeal; 
          requirements for appeal; certain determinations not 
          appealable.
54.1021  Request for appeal service.
54.1022  When request for appeal service may be withdrawn.

[[Page 14]]

54.1023  Denial or withdrawal of appeal service.
54.1024  Who shall perform appeal service.
54.1025  Appeal reports.
54.1026  Superseded reports.
54.1027  Application of other regulations to appeal service.
54.1028  Fees and other charges for service.
54.1029  Payment of fees and other charges.
54.1030  Identification.
54.1031  Errors in service.
54.1032  Denial or withdrawal of service.
54.1033  Confidential treatment.
54.1034  OMB control numbers assigned pursuant to the Paperwork 
          Reduction Act.

    Authority: 7 U.S.C. 1621-1627.

    Source: 42 FR 53921, Oct. 4, 1977, unless otherwise noted. 
Redesignated at 46 FR 63203, Dec. 31, 1981.



                         Subpart A--Regulations

                               Definitions



Sec. 54.1  Meaning of words.

    Words used in this subpart in the singular form shall be deemed to 
import the plural, and vice versa, as the case may demand. For the 
purposes of such regulations, unless the context otherwise requires, the 
following terms shall be construed, respectively, to mean:
    Administrator. The Administrator of the Agricultural Marketing 
Service, or any officer or employee of the Agricultural Marketing 
Service to whom authority has heretofore been delegated or to whom 
authority may hereafter be delegated, to act in his stead.
    Agricultural Marketing Service. The Agricultural Marketing Service 
of the Department.
    Animals. Cattle, sheep, swine, or goats.
    Applicant. Any person who has applied for service under the 
regulations.
    Branch. The Meat Grading Branch of the Division.
    Carcass. The commercially prepared or dressed body of any animal 
intended for human food.
    Carcass Data Service. The service established and conducted under 
the regulations to provide producers and other interested persons with 
data on carcass characteristics.
    Certification service. The service established and conducted under 
the regulations for the determination and certification or other 
identification of the compliance of products with specifications.
    Chief. The Chief of the Branch, or any officer or employee of the 
Branch to whom authority has heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in his stead.
    Class. A subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same kind 
of species.
    Compliance. Conformity of a product to the specifications under 
which the product was purchased or sold, with particular reference to 
the quality, cleanliness, state of refrigeration, method of processing, 
and trim of products.
    Contract verification service. A program allowing institutions or 
other large purchasers of commodity products to have those products 
compared to contractual requirements.
    Cooperative agreement. A cooperative agreement between the 
Agricultural Marketing Service and another Federal agency or a State 
agency, or other agency, organization or person as specified in the 
Agricultural Marketing Act of 1946, as amended, for conducting the 
service.
    Department. The United States Department of Agriculture.
    Director. The Director of the Division, or any officer or employee 
of the Division to whom authority has heretofore been delegated, or to 
whom authority may hereafter be delegated, to act in his stead.
    Division. The Meat Quality Division of the Agricultural Marketing 
Service.
    Fabricating. Cutting into wholesale or retail cuts, dicing or 
grinding.
    Federal Meat Inspection. The meat inspection system conducted under 
the Federal Meat Inspection Act as amended by the Wholesome Meat Act (21 
U.S.C. 601 et seq.) and the regulations thereunder (9 CFR chapter III, 
subchapter A).
    Financially interested person. Any person having a financial 
interest in the products involved, including but not limited to the 
shipper, receiver, producer, seller, buyer, or carrier of the products.
    Grade. (1) As a noun, this term means an important commercial 
subdivision

[[Page 15]]

of a product based on certain definite and preference determining 
factors, such as, but not limited to, conformation, finish, and quality 
in meats.
    (2) As a verb, this term means to determine the class, grade, or 
other quality of a product according to applicable standards for such 
product.
    Grading Service. The service established and conducted under the 
regulations for the determination and certification or other 
identification of the class, grade, or other quality of products under 
standards.
    Immediate container. The carton, can, pot, tin, casing, wrapper, or 
other receptacle or covering constituting the basic unit in which 
products are directly contained or wrapped when packed in the customary 
manner for delivery to the meat trade or to consumers.
    Institutional Meat Purchase Specifications. Specifications 
describing various meat cuts, meat products, and meat food products 
derived from all livestock species, commonly abbreviated ``IMPS'', and 
intended for use by any meat procuring activity. For labeling purposes, 
only product certified by the Meat Grading and Certification Branch may 
contain the letters ``IMPS'' on the product label.
    Legal Holiday. Those days designated as legal public holidays in 
title 5, United States Code, section 6103(a).
    Livestock. Bovine, ovine, porcine.
    Meat. The edible part of the muscle of an animal, which is skeletal, 
or which is found in the tongue, in the diaphragm, in the heart, or in 
the esophagus, and which is intended for human food, with or without the 
accompanying and overlying fat and the portions of bone, skin, sinew, 
nerve, and blood vessels which normally accompany the muscle tissue and 
which are not separated from it in the process of dressing. This term 
does not include the muscle found in the lips, snout, or ears.
    Meat by-products. All edible parts (other than meat and prepared 
meats) intended for human food, derived from one or more animals, and 
including but not limited to such organs and parts as livers, kidneys, 
sweetbreads, brains, lungs, spleens, stomachs, tripe, lips, snouts, and 
ears.
    Meat food products. Any articles intended for human food (other than 
meat, prepared meats, and meat by-products) which are derived or 
prepared in whole or in substantial and definite part, from any portion 
of any animal, except such articles as organotherapeutic substances, 
meat juice, meat extract, and the like, which are only for medicinal 
purposes and are advertised only to the medical profession.
    Office of grading. The office of an official grader.
    Official grader. An employee of the Department or other person 
authorized by the Department to determine and certify or otherwise 
identify the class, grade, other quality, or compliance of products 
under the regulations.
    Person. Any individual, partnership, corporation, or other legal 
entity, or Government agency.
    Prepared meats. The products intended for human food which are 
obtained by subjecting meat to drying, curing, smoking, cooking, 
grinding, seasoning, or flavoring, or to any combination of such 
procedures, and to which no considerable quantity of any substance other 
than meat or meat byproducts has been added.
    Processing. Drying, curing, smoking, cooking, seasoning, or 
flavoring or any combination of such processes, with or without 
fabricating.
    Products. Meats, prepared meats, meat by-products, or meat food 
products.
    Quality. A combination of the inherent properties of a product which 
determines its relative degree of excellence.
    Quality grade. A designation based on those characteristics of meat 
which predict the palatability characteristics of the lean.
    Quality Systems Certification Program. A multifaceted program 
allowing all aspects of the livestock industry to have quality systems, 
or processes within quality systems, verified by AMS agent(s) to 
effectuate use of such quality systems to meet contractual requirements, 
or as a marketing tool.
    Service. Grading service or acceptance service.

[[Page 16]]

    Shipping container. The receptacle or covering in which one or more 
immediate containers of products are packed for transportation.
    Specifications. Descriptions with respect to the class, grade, other 
quality, quantity or condition of products, approved by the 
Administrator, and available for use by the industry regardless of the 
origin of the descriptions.
    Standards. The standards of the Department contained in Official 
United States Standards for Grades of: Carcass Beef; Veal and Calf 
Carcasses; Lamb, Yearling Mutton, and Mutton Carcasses; and, Pork 
Carcasses.
    Supervisor of grading. An official grader or other person designated 
by the Director or Chief to supervise and maintain uniformity and 
accuracy of service under the regulations.
    The Act. The Agricultural Marketing Act of 1946 (Title II of the act 
of Congress approved August 14, 1946, 60 Stat. 1087, as amended by Pub. 
L. 272, 84th Cong., 69 Stat. 553, 7 U.S.C. 1621-1627).
    The regulations. The regulations in this subpart.
    Yield grade. A designation which reflects the estimated yield of 
retail cuts that may be obtained from a beef, lamb, yearling mutton, or 
mutton carcass.

[42 FR 53921, Oct. 4, 1977, as amended at 45 FR 51762, Aug. 5, 1980. 
Redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 61 FR 11505, 
Mar. 21, 1996; 63 FR 72102, Dec. 31, 1998]



Sec. 54.2  Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks or other identifications, and devices for making such marks or 
identifications, issued or authorized under section 203 of said act, and 
certain misrepresentations concerning the inspection or grading of 
agricultural products under said section. For the purposes of said 
subsection and the provisions in this part, the terms listed below shall 
have the respective meanings specified:
    (a) Official certificate means any form of certification, either 
written or printed, used under the regulations to certify with respect 
to the inspection, class, grade, quality, size, quantity, or condition 
of products (including the compliance of products with applicable 
specifications).
    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of grading, determining compliance, 
inspecting, or sampling pursuant to the regulations, any processing or 
plant-operation report made by an authorized person in connection with 
grading, determining compliance, inspecting, or sampling under the 
regulations, and any report made by an authorized person of services 
performed pursuant to the regulations.
    (c) Official mark or other official identification means any form of 
mark or other identification, including those prescribed in Sec. 54.17; 
used under the regulations in marking any products, or the immediate or 
shipping containers thereof, to show inspection class, grade quality, 
size quantity, or condition of the products (including the compliance of 
products with applicable specifications), or to maintain the identity of 
products for which service is provided under the regulations.
    (d) Official device means any roller, stamp, brand or other device 
used under the regulations to mark any products or the immediate or 
shipping containers, thereof, with any official mark or other official 
identification.

                             Administration



Sec. 54.3  Authority.

    The Chief is charged with the administration, under the general 
supervision and direction of the Director, of the regulations and the 
Act insofar as they relate to products.

                                 Service



Sec. 54.4  Kind of service.

    (1) Grading service under the regulations shall consist of the 
determination and certification and other identification, upon request 
by the applicant, of

[[Page 17]]

the class, grade, or other quality of products under applicable 
standards. Class, grade, and other quality may be determined under said 
standards for meat of cattle, sheep, or swine in carcass form only, 
except upon approval by the Director upon his determination of good 
cause and provided that the meat can be identified in conformance with 
the standards.
    (2) Certification service under the regulations shall consist of the 
determination of the conformity of products to specifications approved 
by the Director or Chief and the certification and other identification 
of such livestock or products in accordance with specifications, upon 
request by the applicant. Determination as to product compliance with 
specifications for ingredient content or method of preparation may be 
based upon information received from the inspection system having 
jurisdiction over the products involved.
    (3) The Carcass Data Service, under the regulations, shall consist 
of the evaluation of carcass characteristics, in accordance with 
applicable official United States Standards of carcasses of animals 
identified with the official eartag as shown in Sec. 54.17, the 
recording of such data, and transmittal of the data to, or as directed 
by, the applicant for the service.
    (4) The Contract Verification Service, under the regulations, 
provides wholesale buyers of noncertified commodity products a method of 
determining whether procurement(s) met contractually specified 
requirements.
    (5) The Quality Systems Certification Program, under the 
regulations, provides meatpackers, processors, producers, or other 
businesses in the livestock and meat trade the ability to have special 
processes or documented quality management systems verified.

[63 FR 72102, Dec. 31, 1998]



Sec. 54.5  Availability of service.

    Service under these regulations may be made available with respect 
to products shipped or received in interstate commerce, and with respect 
to the products not so shipped or received if the Director or Chief 
determines that the furnishing of service for such products would 
facilitate the marketing, distribution, processing, or utilization of 
agricultural products through commercial channels. Also, such service 
may be made available under a cooperative agreement. Service under these 
regulations shall be provided without discrimination as to race, color, 
sex, creed, or national origin. Service will be furnished for products 
only if they were derived from animals slaughtered in federally 
inspected establishments or operated under State meat inspection in a 
State other than one designated in 9 CFR 331.2. Service under these 
regulations will be furnished for imported meat only if it is marked so 
that the name of the country of origin appears on most of the major 
retail cuts. The mark of foreign origin shall be imprinted by roller 
brand or handstamp and shall be applied so that the imprint is at least 
2 inches from the backbone of lamb, 3 inches from the backbone of veal 
and calf, and 4 inches from the backbone of beef carcasses. The mark of 
foreign origin shall be repeated parallel to the backbone of the carcass 
so as to appear on each round, rump, full loin, rib, and chuck of each 
bovine and ovine carcass in letters at least one-fourth of an inch high, 
with no more than three-fourths of an inch space between impressions. 
Imprints of each such brand shall be submitted to the Chief for the 
determination of compliance with these regulations prior to use of the 
brand on meats offered for Federal grading. It shall be the 
responsibility of the applicant to notify the meat grade performing the 
service whenever imported meat is offered for grading.



Sec. 54.6  How to obtain service.

    (a) Application. Any person may apply to the Director or Chief for 
service under the regulations with respect to products in which the 
applicant is financially interested. The application shall be made on a 
form approved by the Director. In any case in which the service is 
intended to be furnished at an establishment not operated by the 
applicant, the application shall be approved by the operator of such 
establishment and such approval shall constitute an authorization for 
any employees of the Department to enter the

[[Page 18]]

establishment for the purpose of performing their functions under the 
regulations. The application shall state:
    (1) The name and address of the establishment at which service is 
desired; (2) the name and post office address of the applicant; (3) the 
financial interest of the applicant in the products, except where 
application is made by an official of a Government agency in his 
official capacity; and (4) the signature of the applicant (or the 
signature and title of his representative). The application shall 
indicate the legal status of the applicant as an individual, 
partnership, corporation, or other form of legal entity. Any change in 
such status, at any time while service is being received, shall be 
promptly reported to the Director or Chief by the person receiving the 
service.
    (b) Notice of eligibility for service. The applicant for service at 
any establishment will be notified whether his application is approved.
    (c) Request by applicant for service--(1) Noncommitment. Upon 
notification of the approval on an application for service, the 
applicant may, from time to time as desired, make oral or written 
requests for service under the regulations with respect to specific 
products for which the service is to be furnished under such 
application. Such requests shall be made at an office for grading either 
directly or through any employee of the Agricultural Marketing Service 
who may be designated for such purposes.
    (2) Commitment. If desired, the applicant may request to enter into 
an agreement with the Agricultural Marketing Service for the furnishing 
of service on a weekly commitment basis, whereby the applicant agrees to 
pay for 8 hours of service per day, 5 days per week, Monday through 
Friday, excluding Federal legal holidays occurring Monday through Friday 
on which no grading and certification services are performed, as 
provided in Sec. 54.27(b), and the Agricultural Marketing Service agrees 
to make an official grader available to perform such service for the 
applicant. However, the Agricultural Marketing Service reserves the 
right to use any grader assigned to a plant under such a commitment to 
perform service for other applicants when, in the opinion of the Chief, 
the grader is not needed to perform service for the commitment 
applicant. An applicant who terminates a commitment, and within 1 year 
after cancellation is granted a new commitment at his request, shall pay 
for the moving costs actually incurred by the Agricultural Marketing 
Service to cover the transfer of the grader who will service the 
applicant's new commitment. If more than one applicant is involved in 
the reapplication for a canceled meat grading and certification 
commitment requiring the transfer of the grader, the moving costs will 
be prorated among the applicants according to each applicant's committed 
portion of the grader's services. However, the moving costs will be 
charged only to those applicants who were parties to the previously 
canceled commitment. An applicant may, for periods of 3 months or less, 
enter into an agreement by memorandum with the Agricultural Marketing 
Service for the furnishing of service on a weekly basis. In the latter 
case, transfer of graders would not be involved and charges will be made 
in accordance with Sec. 54.27.

[42 FR 53921, Oct. 4, 1977. Redesignated at 46 FR 63203, Dec. 31, 1981, 
as amended at 47 FR 44704, Oct. 12, 1982]



Sec. 54.7  Order of furnishing service.

    Service under the regulations shall be furnished to applicants in 
the order in which requests therefor are received, insofar as consistent 
with good management, efficiency and economy. Precedence will be given, 
when necessary, to requests made by any government agency or any regular 
user of the service, and to requests for appeal service under 
Sec. 54.20.



Sec. 54.8  When request for service deemed made.

    A request for service under the regulations shall be deemed to be 
made when received by an office of grading. Records showing the date and 
time of the request shall be made and kept in such office. However, in 
the case of the Carcass Data Service, the purchase of official USDA 
eartags shall constitute a request for such service and the requisition 
form used to purchase the

[[Page 19]]

eartags shall be kept in the designated office of record.



Sec. 54.9  Withdrawal of application or request for service.

    An application or a request for service under the regulations may be 
withdrawn by the applicant at any time before the application is 
approved or prior to performance of service, upon payment, in accordance 
with Secs. 54.27 and 54.28, of any expenses already incurred by the 
Agricultural Marketing Service in connection therewith.



Sec. 54.10  Authority of agent.

    Proof of the authority of any person making an application or a 
request for service under the regulations on behalf of any other person 
may be required at the discretion of the Director or Chief or the 
official in charge of the office of grading or other employee receiving 
the application or request under Sec. 54.6.



Sec. 54.11  Denial or withdrawal of service.

    (a) For misconduct--(1) Bases for denial or withdrawal. An 
application or a request for service may be rejected, or the benefits of 
the service may be otherwise denied to, or withdrawn from, any person 
who, or whose employee or agent in the scope of his employment or 
agency:
    (i) Has wilfully made any misrepresentation or has committed any 
other fraudulent or deceptive practice in connection with any 
application or request for service under the regulations;
    (ii) Has given or attempted to give, as a loan or for any other 
purpose, any money, favor, or other thing of value, to any employee of 
the Department authorized to perform any function under the regulations;
    (iii) Has interfered with or obstructed, or attempted to interfere 
with or to obstruct, any employee of the Department in the performance 
of his duties under the regulations by intimidation, threats, assaults, 
abuse, or any other improper means;
    (iv) Has knowingly falsely made, issued, altered, forged, or 
counterfeited any official certificate, memorandum, mark, or other 
identification, or device for making any such mark or identification;
    (v) Has knowingly uttered, published, or used as true any such 
falsely made, issued, altered, forged, or counterfeited certificate, 
memorandum, mark, identification, or device;
    (vi) Has knowingly obtained or retained possession of any such 
falsely made, issued, altered, forged, or counterfeited certificate, 
memorandum, mark, identification, or device, or of any such official 
device, or of any product bearing any such falsely made, issued, 
altered, forged, or counterfeited mark or identification, or of any 
carcass or wholesale or retail cut bearing any designation specified in 
paragraph (a)(1)(vii) of this section which has not been federally 
graded or derived from a carcass graded as being of the indicated grade;
    (vii) Has applied the designation ``Prime,'' ``Choice,'' ``Select,'' 
``Good,'' ``Standard,'' ``Commercial,'' ``Utility,'' ``Cutter,'' 
``Canner,'' ``Cull,'' ``Medium,'' ``No. 1,'' ``No. 2,'' ``No. 3,'' ``No. 
4,'' ``Yield Grade 1,'' ``Yield Grade 2,'' ``Yield Grade 3,'' ``Yield 
Grade 4,'' or ``Yield Grade 5'' by stamp, or brand directly on any 
carcass, wholesale cut, or retail cut of any carcass, as part of a grade 
designation;
    (viii) Has applied to immediate containers or shipping containers of 
carcasses, wholesale cuts, or retail cuts, grade designations specified 
in paragraph (a)(1)(vii) of this section, when such carcasses, wholesale 
cuts, or retail cuts contained therein have not been federally graded;
    (ix) Has knowingly used, moved, or otherwise altered, in any manner, 
meat or meat products identified by an official product control device, 
mark, or other identification as specified in Sec. 54.17, or has removed 
such official device, mark, or identification from the meat or meat 
products so identified without the express permission of an authorized 
representative of the USDA; or
    (x) Has in any manner not specified in this paragraph violated 
subsection 203(h) of the AMA: Provided, That paragraph (a)(1)(vi) of 
this section shall not be deemed to be violated if the person in 
possession of any item mentioned therein notifies the Director or Chief 
without such delay that he has possession of such item and, in the case 
of an

[[Page 20]]

official device, surrenders it to the Chief, and, in the case of any 
other item, surrenders it to the Director or Chief or destroys it or 
brings it into compliance with the regulations by obliterating or 
removing the violative features under supervision of the Director or 
Chief: And provided further, That paragraphs (a)(1) (ii) through (ix) of 
this section shall not be deemed to be violated by any act committed by 
any person prior to the making of an application of service under the 
regulations by the principal person. An application or a request for 
service may be rejected or the benefits of the service may be otherwise 
denied to, or withdrawn from, any person who operates an establishment 
for which he has made application for service if, with the knowledge of 
such operator, any other person conducting any operations in such 
establishment has committed any of the offenses specified in paragraphs 
(a)(1) (i) through (x) of this section after such application was made. 
Moreover, an application or a request for service made in the name of a 
person otherwise eligible for service under the regulations may be 
rejected, or the benefits of the service may be otherwise denied to, or 
withdrawn from, such a person (A) in case the service is or would be 
performed at an establishment operated (1) by a corporation, 
partnership, or other person from whom the benefits of the service are 
currently being withheld under this paragraph, or (2) by a corporation, 
partnership, or other person having an officer, director, partner, or 
substantial investor from whom the benefits of the service are currently 
being withheld and who has any authority with respect to the 
establishment where service is or would be performed; or (B) in case the 
service is or would be performed with respect to any product in which 
any corporation, partnership, or other person within paragraph 
(a)(1)(x)(A)(1) of this section has a contract or other financial 
interest.
    (2) Procedure. All cases arising under this paragraph shall be 
conducted in accordance with the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth in Secs. 1.130 through 1.151 of this title and the 
Supplemental Rules of Practice in part 50 of this chapter.
    (b) For miscellaneous reasons. An application or a request for 
service may be rejected, or the benefits of the service may be otherwise 
denied to, or withdrawn from, any person, without a hearing by the 
official in charge of the appropriate office of grading, with the 
concurrence of the Director or Chief (1) for administrative reasons such 
as the nonavailability of personnel to perform the service; (2) for the 
failure to pay for service; (3) in case the application or request 
relates to products which are not eligible for service under Sec. 54.5 
or which are unclean or are in an unclean establishment; (4) for other 
noncompliance with the conditions on which service is available as 
provided in the regulations, except matters covered by paragraph (a) of 
this section; or (5) in case the person is a partnership, corporation, 
or other person from whom the benefits of the service are currently 
being withheld under paragraph (a) of this section. Notice of such 
denial or withdrawal, and the reasons therefor, shall promptly be given 
to the person involved.
    (c) Filing of records. The final orders in formal proceedings under 
paragraph (a) of this section to deny or withdraw the service under the 
regulations (except orders required for good cause to be held 
confidential and not cited as precedents) and other records in such 
proceedings (except those required for good cause to be held 
confidential) shall be filed with the Hearing Clerk and shall be 
available for inspection by persons having a proper interest therein.

[42 FR 53921, Oct. 4, 1977. Redesignated at 46 FR 63203, Dec. 31, 1981, 
as amended at 50 FR 14366, Apr. 12, 1985; 52 FR 35683, Sept. 23, 1987; 
60 FR 8464, Feb. 14, 1995]



Sec. 54.12  Financial interest of official grader.

    No official grader shall grade or determine compliance of any 
products in which he or any of his relatives by blood or marriage is 
directly or indirectly financially interested.

[[Page 21]]



Sec. 54.13  Accessibility and refrigeration of products; access to establishments.

    (a) The applicant shall cause products, with respect to which 
service is requested, to be made easily accessible for examination and 
to be so placed, with adequate illuminating facilities, as to disclose 
their class, grade, other quality, and compliance. Supervisors of 
grading and other employees of the Department responsible for 
maintaining uniformity and accuracy of service under the regulations 
shall have access to all parts of establishments covered by approved 
applications for service under the regulations, for the purpose of 
examining all products in the establishments which have been or are to 
be graded or examined for compliance with specifications or which bear 
any marks of grade or compliance.
    (b) Grading service will only be furnished for meat that a USDA 
grader determines is chilled so that grade factors are developed to the 
extent that a proper grade determination can be made in accordance with 
the official standards. To be eligible for grading, beef carcasses must 
be ribbed at least 10 minutes prior to being offered for grading. Meat 
that is presented in a frozen condition shall not be eligible for a 
grade determination. Meat of all eligible species shall be graded only 
in the establishment where the animal was slaughtered or initially 
chilled (except for veal and calf carcasses, which shall be graded only 
after the hide is removed and only in the establishment where such 
removal occurs). The Director may grant prior approval for grading at a 
location other than the establishment of slaughter or initial chill upon 
notification to the Division if the Branch was unable to provide grading 
service in a timely manner and that the meat can be identified in 
conformance with the standards.

[42 FR 53921, Oct. 4, 1977, as amended at 45 FR 51762, Aug. 5, 1980. 
Redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 63 FR 72102, 
Dec. 31, 1998]



Sec. 54.14  Official certificates.

    (a) Agricultural Products Certificate Form LS-5-3 (Figure 1) is the 
official certificate for products under the regulations. The official 
grader shall prepare, sign, and issue an Agricultural Products 
Certificate Form LS-5-3 covering products for which that grader 
determined final specification compliance. Where weight or count is 
verified, the grader shall initial in the block titled ``Weights and 
Total Count Verified.''
    (b) Applicant Charges Certificate Form LS-5-5 (Figure 2) will be 
used to reduce paperwork for applicants assigned multiple graders. 
Assigned graders will complete one Form LS-5-5. Each grader will enter 
their code letters and signature in the appropriate location(s) to 
indicate certificate completion.

[[Page 22]]

[GRAPHIC] [TIFF OMITTED] TC25SE91.000


[[Page 23]]


[GRAPHIC] [TIFF OMITTED] TC25SE91.001

    (c) Distribution. The original certificate, and not to exceed two 
copies, shall be delivered or mailed to the applicant or other person 
designated by him. The remaining copies shall be forwarded as required 
by agency, division, and branch instructions. Additional copies will be 
furnished to any person

[[Page 24]]

financially interested in the products involved with the concurrence of 
the applicant and upon payment of fees, as provided in Sec. 54.27.

[42 FR 53921, Oct. 4, 1977. Redesignated at 46 FR 63203, Dec. 31, 1981, 
as amended at 51 FR 590, Jan. 7, 1986; 61 FR 11506, Mar. 21, 1996]



Sec. 54.15  Advance information concerning service rendered.

    Upon request of any applicant, all or any part of the contents of 
any certificate issued to him under the regulations, or other 
notification concerning the determination of class, grade, other 
quality, or compliance of products for such applicant may be transmitted 
by telegraph or telephone to him, or to any person designated by him, at 
his expense.



Sec. 54.16  Marking of products.

    All products for which class and grade under the standards are 
determined under the regulations, or the immediate and shipping 
containers thereof, shall be stamped, branded, or otherwise marked with 
an appropriate official identification: Provided, That except as 
otherwise directed by the Chief, such marking will not be required when 
an applicant only desires official certificates. The marking of 
products, or their containers, as required by this section shall be done 
by official graders or under their immediate supervision.

[42 FR 53921, Oct. 4, 1977. Redesignated at 46 FR 63203, Dec. 31, 1981, 
as amended at 63 FR 72102, Dec. 31, 1998]



Sec. 54.17  Official identifications.

    (a) A shield enclosing the letters ``USDA'' and code identification 
letters of the grader performing the service, as shown below, 
constitutes a form of official identification under the regulations for 
preliminary grade of carcasses.
[GRAPHIC] [TIFF OMITTED] TC25SE91.002

    (b) A shield enclosing the letters ``USDA'' as shown in Figure 1 
with the appropriate quality grade designation ``Prime,'' ``Choice,'' 
``Select,'' ``Good,'' ``Standard,'' ``Commercial,'' ``Utility,'' 
``Cutter,'' ``Canner,'' or ``Cull,'' as provided in the official United 
States Standards for Grades of Beef, Veal and Calf, Lamb, Yearling 
Mutton, and Mutton Carcasses and accompanied by the class designation 
``Bullock,'' ``Veal,'' ``Calf,'' ``Lamb,'' ``Yearling Mutton,'' or 
``Mutton,'' constitutes a form of official identification under the 
regulations to show the quality grade, and where necessary the class, 
undersaid standards, of steer, heifer, and cow beef, veal, calf, lamb, 
yearling mutton and mutton. The code identification letters of the 
grader performing the service will appear intermittently outside the 
shield.
[GRAPHIC] [TIFF OMITTED] TC25SE91.003

    (c) A shield enclosing the letters ``USDA'' and the words ``Yield 
Grade,'' as in Figure 1, with the appropriate yield grade designation 
``1,'' ``2,'' ``3'', ``4,'' or ``5'' as provided in the Official United 
States Standards for Grades of Fresh Beef Carcasses and the Official 
United States Standards for Grades of Lamb, Yearling Mutton, and Mutton 
Carcasses constitutes a form of official identification under the 
regulations to

[[Page 25]]

show the yield grade under said standards. When yield graded, bull and 
bullock carcasses will be identified with the class designation ``Bull'' 
and ``Bullock,'' respectively. The code identification letters of the 
grader performing the service will appear outside the shield.
[GRAPHIC] [TIFF OMITTED] TR21MR96.007

    (d) Under the regulations, for carcass grade identification purposes 
only, a shield enclosing the letters ``USDA'' with the appropriate yield 
grade designation number of ``1,'' ``2,'' ``3,'' ``4,'' or ``5'' between 
the ``US'' and ``DA'', with the appropriate quality grade designation of 
``Prime'', ``Choice,'' or ``Select,'' below both as shown in Figure 1. 
The code identification letters for the grader performing the service 
will appear outside underneath the shield.
[GRAPHIC] [TIFF OMITTED] TR21MR96.008

    (e) Under the regulations, for yield grade identification purposes 
only, a shield enclosing the letters ``US'' on one side and ``DA'' on 
the other, with the appropriate Yield Grade designation number ``1,'' 
``2,'' ``3,'' ``4,'' or ``5'' as shown in Figure 1. The code 
identification letters for the grader performing the service will appear 
outside underneath the shield.

[[Page 26]]

[GRAPHIC] [TIFF OMITTED] TR21MR96.009

    (f) Under the regulations, for quality grade identification only, a 
shield enclosing the letters ``US'' on one side and ``DA'' on the other 
with the appropriate Quality Grade designation of ``Prime,'' ``Choice,'' 
or ``Select'' as shown in Figure 1. The code identification letters for 
the grader performing the service will appear outside underneath the 
shield.
[GRAPHIC] [TIFF OMITTED] TR21MR96.010

    (g) The letters ``USDA'' with the appropriate grade designation 
``1,'' ``2,'' ``3,'' ``4,'' ``Utility,'' or ``Cull'' enclosed in a 
shield as shown in Figure 1, as provided in the Official United States 
Standards for Grades of Pork Carcasses, constitutes a form of official 
identification under the regulations to show the grade under said 
standards of barrow, gilt, and sow pork carcasses.

[[Page 27]]

[GRAPHIC] [TIFF OMITTED] TR21MR96.011

    (h) The following constitute forms of official identification under 
the regulations to show compliance of products:
[GRAPHIC] [TIFF OMITTED] TC25SE91.004

[GRAPHIC] [TIFF OMITTED] TC25SE91.005

[GRAPHIC] [TIFF OMITTED] TC25SE91.006

    Note: The letters ``RWX'', and ``UF'' shown in figures 1, and 2 are 
examples, respectively, of the code identification letters of the 
official grader performing the service.

    (i) The following, as shown in Figure 1, constitutes official 
identification to show quality system certification:
[GRAPHIC] [TIFF OMITTED] TC25SE91.007

    (j) A shield-shaped ear tag enclosing the letters ``USDA'', the 
words ``Carcass Data Service,'' as shown below (Figure 1), and a serial 
number constitutes a form of official identification under the 
regulations for livestock and carcasses. Other information may appear on 
the backside of the ear tag at the option of the purchasers.

[[Page 28]]

[GRAPHIC] [TIFF OMITTED] TC25SE91.008

    (k)(1) One device used by USDA graders is a rectangular, serially 
numbered, orange tag on which a shield encloses the letters ``USDA'' and 
the words ``Product Control'' as shown in Figure 1, constitutes a form 
of official identification under the regulations for meat and meat 
products.
[GRAPHIC] [TIFF OMITTED] TR21MR96.015

    (2) Official graders and supervisors of grading may use ``Product 
Control'' tags or other methods and devices as approved by the 
Administrator for the identification and control of meat and meat 
products which are not in compliance with the regulations or are held 
pending the results of an examination. Any such meat or meat product so 
identified shall not be used, moved, or

[[Page 29]]

altered in any manner; nor shall official control identification be 
removed, without the express permission of an authorized representative 
of the USDA.

[42 FR 53921, Oct. 4, 1977, as amended at 45 FR 51762, Aug. 5, 1980. 
Redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 50 FR 14367, 
Apr. 12, 1985; 52 FR 35683, Sept. 23, 1987; 61 FR 11509, Mar. 21, 1996]



Sec. 54.18  Custody of identification devices.

    (a) All identification devices used in marking products or the 
containers thereof under the regulations, including those indicating 
compliance with specifications approved by the Chief, shall be kept in 
the custody of the Branch, and accurate records shall be kept by the 
Branch of all such devices. Each office of grading shall keep a record 
of the devices assigned to it. Such devices shall be distributed only to 
persons authorized by the Department, who shall keep the devices in 
their possession or control at all times and maintain complete records 
of such devices.
    (b) Upon request, applicants shall provide a metal cabinet(s) or 
locker(s) for the secure storage of official meat grading equipment and 
identification devices for each Federal meat grader assigned to their 
establishment. Such cabinet(s) or locker(s) shall be capable of being 
locked with a special Government-owned lock and shall be placed in an 
easily accessible and reasonably secure location within the applicant's 
establishment.

                             Appeal Service



Sec. 54.19  What is appeal service; marking products on appeal; requirements for appeal; certain determinations not appealable.

    (a) Appeal service is a redetermination of the class, grade, other 
quality, or compliance of product when the applicant for the appeal 
service formally challenges the correctness of the original 
determination. Only a person who has title to, or is a party to a 
contract for the sale of, a product may request appeal service with 
respect to such product and if the original determination of class, 
grade, other quality or compliance is found on appeal to have been in 
error all incorrect marks of class, grade, other quality and compliance 
will be removed from the product, and if the person having title to the 
product so requests, correct marks as determined on the appeal will be 
applied to the product. Examination requested to determine the class, 
grade, other quality, or compliance of a product which has been altered 
or has undergone a material change since the original service, or 
examination of product requested for the purpose of obtaining an up-to-
date certificate and not involving any question as to the correctness of 
the original service for the product involved shall be considered 
equivalent to original service and not appeal service.
    (b) Grade determinations cannot be appealed for any lot or product 
consisting of less than 10 similar units. Moreover, appeal service will 
not be furnished with respect to product that has been altered or has 
undergone any material change since the original service.

[42 FR 53921, Oct. 4, 1977, as amended at 45 FR 51762, Aug. 5, 1980. 
Redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 54.20  Request for appeal service.

    Except as otherwise provided in Sec. 54.19, a request for appeal 
service with respect to any product under the regulations may be made by 
any person who is financially interested in the product when he 
disagrees with the determination as to class, grade, other quality, or 
compliance of the product as shown by the markings on the product or its 
containers, or as stated in the applicable certificate. A request for 
appeal service shall be filed with the Chief, directly or through the 
official grader who performed the original service or the official in 
charge of the office of grading to which such grader was assigned at the 
time of the service, or through the nearest office of grading. The 
request shall state the reasons therefor and may be accompanied by a 
copy of any previous certificate or report, or any other information 
which the applicant may have received regarding the product at the time 
of the original service. Such request may be made orally (including by 
telephone) or in writing (including by telegram). If made orally, the 
person receiving the

[[Page 30]]

request may require that it be confirmed in writing. Requests for appeal 
service received through an official grader or an office of grading 
shall be transmitted promptly to the Chief for instructions.



Sec. 54.21  When request for appeal service may be withdrawn.

    A request for appeal service may be withdrawn by the applicant at 
any time before the appeal service has been performed, upon payment of 
any expenses already incurred under the regulations by the Branch in 
connection therewith.



Sec. 54.22  Denial or withdrawal of appeal service.

    A request for appeal service may be rejected or such service may be 
otherwise denied to or withdrawn from any person, without a hearing, in 
accordance with the procedure set forth in Sec. 54.11(b), if it shall 
appear that the person or product involved is not eligible for appeal 
service under Sec. 54.19, or that the identity of the product has been 
lost; or for any of the causes set forth in Sec. 54.11(b). Appeal 
service may also be denied to, or withdrawn from, any person in any case 
under Sec. 54.11(a), in accordance with the procedure set forth in said 
section.



Sec. 54.23  Who shall perform appeal service.

    Appeal service for products shall be performed by official graders 
designated by the Chief or by the official in charge of an office of 
grading when so authorized by the Chief, and shall be conducted jointly 
by two official graders, or more when practicable. No official grader 
shall perform appeal service for any product for which he previously 
performed the service.



Sec. 54.24  Appeal certificates.

    Immediately after appeal service has been performed for any 
products, a certificate designated as an ``appeal certificate'' shall be 
prepared, signed, and issued referring specifically to the original 
certificate and stating the class, grade, other quality, or compliance 
of the products as shown by the appeal service.



Sec. 54.25  Superseded certificates.

    The appeal certificate shall supersede the original certificate 
which, thereupon, shall become null and void and shall not thereafter be 
deemed to show the class, grade, other quality, or compliance of the 
products described therein. However, the fees charged for the original 
service shall not be remitted. If the original and all copies of the 
superseded certificate are not delivered to the official with whom the 
request for appeal service is filed, the official graders issuing the 
appeal certificate shall forward notice of such issuance and of the 
cancellation of the original certificate to such persons as they may 
deem necessary to prevent fraudulent use of the superseded certificate.



Sec. 54.26  Application of other regulations to appeal service.

    The regulations in Secs. 54.1 through 54.18 and Secs. 54.27 through 
54.30 shall apply to appeal service except insofar as they are 
manifestly inapplicable.

                           Charges for Service



Sec. 54.27  Fees and other charges for service.

    Fees and other charges equal as nearly as may be to the cost of the 
services rendered shall be assessed and collected from applicants in 
accordance with the following provisions unless otherwise provided in 
the cooperative agreement under which the services are furnished, or as 
provided in Sec. 54.6.
    (a) Fees for Service on Noncommitment Basis (Hourly Rates). Except 
as otherwise provided in this section, fees for service shall be based 
on the time required to render the service, calculated to the nearest 
15-minute period, including official grader's travel and certificate(s) 
preparation time in connection with the performance of service. A 
minimum charge of one-half hour shall be made for service pursuant to 
each request notwithstanding that the time required to perform service 
may be less than 30 minutes. The base hourly rate for noncommitment 
applicants shall be $52 per hour for 8 hours or less of work performed 
between the hours of 6 a.m. and 6 p.m., Monday through Friday, except on 
legal holidays; $57 per hour for work performed in excess of 8 hours per

[[Page 31]]

day for each assigned official grader and for work performed before 6 
a.m. and after 6 p.m., Monday through Friday, and any time Saturday or 
Sunday, except on Federal legal holidays; and $90 per hour for all work 
performed on Federal legal holidays.
    (b) Fees for Service on Commitment Basis. Minimum fees for service 
performed under a commitment agreement or an agreement by memorandum 
shall be on the basis of 8 hours per day, Monday through Friday, 
excluding Federal legal holidays occurring Monday through Friday on 
which no grading and certification services are performed. The base 
hourly rate for service performed under such agreements shall be $45 per 
hour for 8 consecutive hours or less of work performed between the hours 
of 6 a.m. and 6 p.m., Monday through Friday, except on Federal legal 
holidays; $57 per hour for work performed in excess of 8 hours per day 
for each assigned official grader and for work performed before 6 a.m. 
and after 6 p.m., Monday through Friday, and any time Saturday or 
Sunday, except on Federal legal holidays; and $90 per hour for all work 
performed on Federal legal holidays. The Agency reserves the right under 
such a commitment agreement or agreement by memorandum to use any grader 
assigned to the plant on a commitment basis to perform service for other 
applicants, as provided in Sec. 54.6(c), crediting the commitment 
applicant with the number of hours charged to the other applicant, 
provided the allowable credit hours plus hours actually worked for the 
applicants do not exceed 8 hours on any day, Monday through Friday, 
excluding legal holidays.
    (c) Travel charges. When service is requested at a place so distant 
from an official grader's headquarters, or place of prior assignment on 
a circuitous routing that a total of one-half hour or more is required 
for the grader to travel to such place and back to the headquarters, or 
to the next place of assignment on a circuitous routing, the charge for 
such service shall include a mileage charge administratively determined 
by the Chief, and travel tolls, if applicable, for such travel prorated 
against all the applicants furnished the service involved on an 
equitable basis, or where the travel is made by public transportation 
(including hired vehicles), a fee equal to the actual cost thereof. 
However, the applicant will not be charged a new mileage rate without 
notification before the service is rendered.
    (d) Per diem charges. When service is requested at a place away from 
the official grader's headquarters, the fee for such service shall 
include a per diem charge if the employee performing the service is paid 
per diem in accordance with existing travel regulations. Per diem 
charges to applicants will cover the same period of time for which the 
grader receives per diem reimbursement. The per diem rate will be 
administratively determined by the Chief. However, the applicant will 
not be charged a new per diem rate without notification before the 
service is rendered.
    (e) Fees for appeal service. Fees for appeal service shall be 
determined on the basis of the time, of two official graders, required 
to render the service, calculated to the nearest fifteen-minute period, 
including the time required for the preparation of certificates and 
travel of such graders in connection with the performance of the 
service, at the applicable hourly rate prescribed in paragraph (a) of 
this section, plus any travel charges and per diem for such graders 
ordinarily chargeable under paragraphs (c) and (d) of this section: 
Provided, That when on appeal it is found that there was error in the 
original determination equal to or exceeding ten percent of the total 
number of similar units of the products involved, no charge will be made 
for the appeal service unless a special agreement therefor was made with 
the applicant in advance.
    (f) Fees for extra copies of certificates. In addition to copies of 
certificates furnished under Sec. 54.14, any financially interested 
person may obtain not to exceed three copies of any such certificate 
within one year from its date of issuance upon payment of a fee of 
$1.00, and not to exceed three copies of any such certificate at any 
time thereafter, while a copy of such certificate is on file in the 
Department, upon payment of a fee of $5.00.

[[Page 32]]

    (g) Other charges. When costs, other than costs specified in 
paragraphs (a), (b), (c), (d), (e), and (f) of this section, are 
involved in providing the services, the applicant will be charged for 
these costs. The amount of these charges will be determined 
administratively by the Chief. However, the applicant will not be 
charged for such cost without notification before the service is 
rendered of the charge for such item of expense.

[42 FR 53921, Oct. 4, 1977. Redesignated at 46 FR 63203, Dec. 31, 1981, 
as amended at 47 FR 44704, Oct. 12, 1982; 51 FR 21135, June 11, 1986; 54 
FR 21401, May 18, 1989; 55 FR 20443, May 17, 1990; 57 FR 11427, Apr. 3, 
1992; 58 FR 48592, Sept. 17, 1993; 58 FR 64670, Dec. 9, 1993; 59 FR 
1890, Jan. 13, 1994; 59 FR 13643, Mar. 23, 1994; 63 FR 32966, June 17, 
1998; 65 FR 34042, May 26, 2000]



Sec. 54.28  Payment of fees and other charges.

    Fees and other charges for service shall be paid in accordance with 
the following provisions unless otherwise provided in the cooperative 
agreement under which the service is furnished. Upon receipt of billing 
for fees and other charges for service the applicant shall remit by 
check, draft, or money order, made payable to the Agricultural Marketing 
Service, USDA, payment for the service in accordance with directions on 
the billing, and such fees and charges shall be paid in advance if 
required by the official grader or other authorized official.

                              Miscellaneous



Sec. 54.29  Identification.

    All official graders and supervisors of grading shall have their 
Agricultural Marketing Service identification cards in their possession 
at all times while they are performing any function under the 
regulations and shall identify themselves by such cards upon request.



Sec. 54.30  Errors in service.

    When an official grader, supervisor of grading, or other responsible 
employee of the Branch has evidence of misgrading, or of incorrect 
certification or other incorrect determination or identification as to 
the class, grade, other quality, or compliance of a product, he shall 
report the matter to his immediate supervisor. The supervisor of grading 
will investigate the matter and, if he deems advisable, will report it 
to the owner or his agent. The supervisor of grading shall take 
appropriate action to correct errors found in the determination or 
identification of class, grade or other quality or compliance of 
products if the products are still owned by the person who owned them 
when, and are still located at the establishment where, the incorrect 
service was rendered and if such service was rendered by a grader under 
the jurisdiction of such supervisor, and the supervisor of grading shall 
take adequate measures to prevent the recurrence of such errors.



Sec. 54.31  Uniforms.

    All meat graders and their supervisory personnel are required to 
wear clean, white, well-maintained outer frocks while performing any 
function under these regulations involving contact with or the handling 
of any meat or meat product.

[45 FR 19214, Mar. 25, 1980. Redesignated at 46 FR 63203, Dec. 31, 1981]

Subpart B [Reserved]



 Subpart C--Regulations Governing the Certification of Sanitary Design 
  and Fabrication of Equipment Used in the Slaughter, Processing, and 
               Packaging of Livestock and Poultry Products

    Source: 66 FR 1198, Jan. 5, 2001, unless otherwise noted.



Sec. 54.1001  Meaning of words.

    For the purposes of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand.



Sec. 54.1002  Terms defined.

    Act. The Agricultural Marketing Act of 1946, as amended (7 U.S.C. 
1621 et seq.).
    Administrator. The Administrator of the Agricultural Marketing 
Service (AMS), United States Department of

[[Page 33]]

Agriculture, or the representative to whom authority has been delegated 
to act in the stead of the Administrator.
    Agricultural Marketing Service (AMS). The Agricultural Marketing 
Service of the United States Department of Agriculture.
    Applicant. Any person who applies for service under the regulations 
in this subpart.
    Branch. The Dairy Grading Branch, Dairy Programs, Agricultural 
Marketing Service.
    Chief. The Chief of the Dairy Grading Branch, Dairy Programs, 
Agricultural Marketing Service, or the representative to whom authority 
has been delegated to act in the stead of the Chief.
    Compliance. Conformity of a processing system, piece of processing 
equipment, or a utensil to identified standards.
    Department. The United States Department of Agriculture.
    Deputy Administrator. The Deputy Administrator of the Dairy Programs 
of the Agricultural Marketing Service or any officer or employee of the 
Dairy Programs to whom authority has heretofore been delegated, or to 
whom authority may hereafter be delegated to act in the stead of the 
Deputy Administrator.
    Design Review Specialist. An employee of the Branch who determines 
and certifies or otherwise evaluates the compliance of equipment or 
utensils under the regulations.
    Design Evaluation and Certification Service. The service established 
and conducted under the regulations for the evaluation and certification 
or other identification of the compliance of equipment or utensils used 
for the slaughter, processing or packaging of livestock and poultry 
products (Referred to hereinafter as ``equipment'' or ``utensils'') with 
sanitary specifications or standards.
    Fabricator. Commercial entity engaged in the manufacture or assembly 
of equipment or utensils.
    Financially interested person. Any person having a financial 
interest in the equipment or utensils involved, including but not 
limited to the designer, fabricator, or user of the equipment or 
utensils.
    Legal Holiday. Those days designated as legal public holidays in 
Title 5, United States Code, section 6103(a).
    Person. Any individual, partnership, corporation, or other legal 
entity, or Government agency.
    Processing. Cooking, baking, curing, heating, drying, mixing, 
grinding, churning, separating, extracting, cutting, fermenting, 
eviscerating, preserving, dehydrating, freezing, or otherwise 
manufacturing, and includes the packaging, canning, jarring, or 
otherwise enclosing in a container.
    Program. The Dairy Programs of the Agricultural Marketing Service.
    Standards. The most recent version of standards for equipment and 
utensils formulated by the NSF/3-A Joint Committee on Food Processing 
Equipment (Referred to hereinafter as ``NSF/3-A'').
    The regulations. The regulations in this Subpart.



Sec. 54.1003  Designation of official certificates, memoranda, marks, and other identifications, for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended provides criminal penalties for various specified offenses 
relating to official certificates, memoranda, and marks or other 
identifications, issued or authorized under section 203 of said Act, and 
certain misrepresentations concerning the inspection or grading of 
agricultural products under said section. For the purposes of said 
subsection and the provisions in this subpart, the terms listed in 
paragraphs (a) through (c) of this section shall have the respective 
meanings specified:
    (a) ``Official certificate'' means any form of certification, either 
written or printed, used under the regulations to certify with respect 
to the evaluation, review, condition, or acceptance of equipment or 
utensils (including the compliance of equipment or utensils with 
applicable standards).
    (b) ``Official memorandum'' means any initial record of findings 
made by an authorized employee of the Dairy Grading Branch in the 
process of determining compliance, evaluating, or reviewing equipment or 
utensils pursuant to the regulations, any processing or in plant-
operation report made by

[[Page 34]]

an authorized Dairy Grading Branch employee in connection with 
determining compliance, evaluating, or reviewing equipment or utensils 
under the regulations, and any report made by an authorized employee of 
the Dairy Grading Branch of any other services performed pursuant to the 
regulations.
    (c) ``Official mark'' or ``other official identification'' means any 
form of mark or other identification, including those prescribed in 
Sec. 54.1018; used under the regulations in marking any equipment or 
utensils or displayed as an indication that the equipment or utensils 
has been evaluated by AMS (including the compliance of the equipment or 
utensils with applicable standards).



Sec. 54.1004  Administration and implementation.

    The Administrator designates the administration and implementation 
of the Certification of Sanitary Design and Fabrication of Equipment 
Used in the Processing of Livestock and Poultry Products service to the 
Dairy Grading Branch, Dairy Programs, Agricultural Marketing Service. 
The Chief is charged with the administration, under the general 
supervision and direction of the Deputy Administrator, of the 
regulations and the Act insofar as they relate to equipment or utensils 
used to process livestock and poultry products.



Sec. 54.1005  Basis of service.

    (a) Certification of Sanitary Design and Fabrication of Equipment 
Used in the Slaughter, Processing, and Packaging of Livestock and 
Poultry Products service shall be performed in accordance with the 
provisions of this subpart, the instructions and guidelines issued or 
approved by the Chief and the applicable standards developed by the NSF/
3-A.
    (b) Copies of standards developed by NSF/3-A that AMS will inspect 
and certify to are available, for a nominal fee, from NSF International 
at www.nsf.org or contact Techstreet, 310 Miller Avenue, Ann Arbor, MI 
48103; Phone (800) 699-9277. Copies of all other instructions and 
guidelines can be obtained from, and copies of standards developed by 
NSF/3-A may be inspected at, the U.S. Department of Agriculture, 
Agricultural Marketing Service, Dairy Programs, Dairy Grading Branch; 
Room 2746-S; 1400 Independence Ave., SW., Washington, DC 20250-6456.
    (c) All services provided in accordance with the regulations shall 
be rendered without discrimination on the basis of race, color, national 
origin, gender, religion, age, disability, political beliefs, sexual 
orientation, or marital or family status.



Sec. 54.1006  Kind of service.

    Certification of Sanitary Design and Fabrication of Equipment Used 
in the Slaughter, Processing, and Packaging of Livestock and Poultry 
Products service under the regulations shall consist of the evaluation, 
certification and/or identification, upon request by the applicant, of 
the adherence of the design and fabrication of equipment and utensils to 
sanitary principles and criteria under applicable standards identified 
in this subpart. Equipment or utensils having an identical design, 
materials of construction, and fabrication, except for scaling up or 
down in size, may be submitted for evaluation as a model line or series. 
Determination as to equipment or utensils compliance with standards for 
materials of fabrication or method of fabrication may be based upon 
information received from the fabricator.



Sec. 54.1007  Availability of service.

    Service under these regulations may be made available to the 
designers, fabricators, users, or other interested person or party, of 
the equipment or utensils. Subject to the provisions of this subpart, 
services shall be performed only when a qualified design review 
specialist is available, and when the location of the equipment or 
utensils, evaluation facilities and conditions, as determined by the 
Chief, are suitable for conducting such service.



Sec. 54.1008  How to obtain service.

    (a) Application. Any person may apply to the Chief for service under 
the regulations with respect to equipment or utensils in which the 
applicant is financially interested. The application shall be made on a 
form approved by the Chief. In any case in which the service is intended 
to be furnished at an establishment not operated by the

[[Page 35]]

applicant, the applicant shall be responsible for obtaining approval for 
accessability of the equipment or utensil from the operator of such 
establishment and such approval shall constitute an authorization for 
any employees of the Department to enter the establishment for the 
purpose of performing their functions under the regulations. The 
application shall state:
    (1) The name and address of the establishment at which service is 
desired;
    (2) The name and post office address of the applicant;
    (3) Identification of the party that will be responsible for payment 
of all services rendered in response to the request;
    (4) The type of equipment or utensil presented for evaluation;
    (5) The date(s) on which service is requested to be performed; and
    (6) The signature of the applicant (or the signature and title of 
the applicant's representative) and date of the request.
    (b) Notice of eligibility for service. The applicant for service 
will be notified whether the applicant's application is approved.



Sec. 54.1009  Order of furnishing service.

    Service under the regulations shall be furnished to applicants, 
insofar as practicable and subject to the availability of a qualified 
design review specialist, in the order in which requests therefor are 
received, insofar as consistent with good management, efficiency and 
economy. Precedence will be given, when necessary, to requests made by 
any government agency and to requests for appeal service under 
Sec. 54.1021.



Sec. 54.1010  When request for service deemed made.

    A request for service under the regulations shall be deemed to be 
made when received by the Branch. Records showing the date and time of 
the request shall be maintained.



Sec. 54.1011  Withdrawal of application or request for service.

    An application or a request for service under the regulations may be 
withdrawn by the applicant at any time before the application is 
approved or prior to performance of service. The applicant shall be 
responsible for payment, in accordance with Sec. 54.1028 and 
Sec. 54.1029, of any expenses already incurred by the Agricultural 
Marketing Service in connection therewith.



Sec. 54.1012  Authority of agent.

    Proof of the authority of any person making an application or a 
request for service under the regulations on behalf of any other person 
may be required at the discretion of the Deputy Administrator or Chief 
or other employee receiving the application or request under 
Sec. 54.1008.



Sec. 54.1013  When an application may be rejected.

    (a) An application or a request for service may be denied by the 
design review specialist, with the concurrence of the Deputy 
Administrator or Chief when:
    (1) For administrative reasons such as the non-availability of 
personnel to perform the service;
    (2) The application or request relates to equipment or utensils 
which are not eligible for service under Sec. 54.1006;
    (3) The applicant fails to meet either the application requirements 
prescribed in this subpart or the conditions for receiving such service;
    (4) The equipment or utensil is owned by, or located on the premises 
of, a person currently denied the benefits of the Act;
    (5) The applicant has substantial financial ties to a person who is 
currently denied the benefits of the Act, or who has been adjudged, in 
an administrative or judicial proceeding, responsible in any way for a 
current denial of benefits of the Act to any other person.
    (6) The applicant is currently denied services under the Act.
    (7) Any fees billed to the applicant are not paid within 30 days; or
    (8) The applicant has failed to comply with the Act or this subpart 
or with the instructions or guidelines issued hereunder.
    (b) The Chief shall provide notice to an applicant whose application 
is rejected, and shall explain the reason(s) for the rejection. If such 
notification is made verbally, written confirmation may be provided.

[[Page 36]]



Sec. 54.1014  Accessibility of equipment and utensils; access to establishments.

    (a) The applicant shall cause equipment and utensils to be made 
easily accessible for examination and to be so placed, with adequate 
illumination to facilitate evaluation for compliance. The applicant 
shall furnish or make available any necessary tools; such as boroscope, 
profilometer, disassembly tools, ladders, radius gauges, and the like; 
necessary to complete the evaluation.
    (b) Supervisors of USDA design review specialists responsible for 
maintaining uniformity and accuracy of service under the regulations 
shall have access to all parts of establishments covered by approved 
applications for service under the regulations, for the purpose of 
examining all equipment or utensils in the establishments which have 
been or are to be evaluated for compliance with standards or which bear 
any marks of compliance.



Sec. 54.1015  Official reports, forms, and certificates.

    (a) Report. The design review specialist shall prepare, sign, and 
issue a narrative report covering the observations, comments and 
recommendations based on the evaluation for conformance with standards 
of equipment and utensils as provided for in Sec. 54.1005 and indicate 
the fees and other charges incurred for the services rendered.
    (b) Forms. Form DA-161 is the official certificate for equipment or 
utensils evaluated and is accepted under the regulations. Issuance of 
this certificate is optional at the request of the applicant.
    (c) Distribution. The original report and official certificate (if 
requested) shall be delivered or mailed to the applicant or other 
persons designated by the applicant. Other copies shall be forwarded as 
required by agency, program, and branch instructions. Additional copies 
will be furnished to any person financially interested in the equipment 
or utensil involved with the concurrence of the applicant and upon 
payment of fees, as provided in Sec. 54.1028 and Sec. 54.1029.



Sec. 54.1016  Advance information concerning service rendered.

    Upon request of any applicant, all or any part of the contents of 
any report issued to the applicant under the regulations, or other 
notification concerning the determination of compliance of equipment or 
utensils for such applicant may be transmitted by facsimile transmission 
to the applicant, or to any person designated by the applicant at the 
applicant's expense.



Sec. 54.1017  Authority to use official identification.

    The Chief may authorize an applicant or any persons designated by 
the applicant to use the official identification symbol to mark 
equipment or utensils, or for display in descriptive or promotional 
materials providing the equipment or utensils is evaluated pursuant to 
this subpart and found to be in compliance.



Sec. 54.1018  Form of official identification and approval for use.

    (a) The official identification symbol approved for use on 
equipment, utensils, or descriptive or promotional materials shall 
appear in the form and design shown in Figure 1.
    (b) The official identification symbol on equipment or utensils 
shall be displayed by etching or the placement of a non-removable 
sticker located in close proximity to the equipment identification 
plate.
    (c) The official identification symbol is recommended to be at least 
3/4 inch by 3/4 inch in size. Symbols which are smaller in size will be 
considered provided they are sufficiently large to be identifiable and 
legible.
    (d) The official identification symbol shall not be used in 
descriptive and promotional materials without prior approval by the 
Chief. The official identification symbol, if used, on the descriptive 
or promotional materials shall be printed as part of the text or format.
    (e) An applicant shall submit to the Chief of the Dairy Grading 
Branch, Dairy Programs, Agricultural Marketing Service, U.S. Department 
of Agriculture, P.O. Box 96456, Washington, D.C. 20090-6456, an 
application, if one is not on file, requesting approval to use

[[Page 37]]

the official identification symbol on officially accepted equipment and 
in descriptive or promotional materials.
[GRAPHIC] [TIFF OMITTED] TR05JA01.000



Sec. 54.1019  Renewal of acceptance certification.

    The manufacturer of any equipment or utensil which has been issued a 
report or certification stating acceptance of compliance shall resubmit 
the design and fabrication details of any change in materials of 
construction, design, or fabrication which may impair the cleanability 
or hygienic design of the equipment or utensil. If no change in 
materials of construction, design, or fabrication which may impair the 
cleanability or hygienic design of the equipment or utensil has occurred 
during the period of four years after the date of the most recent report

[[Page 38]]

stating acceptance of compliance or if no design or fabrication changes 
have been made, the applicant may submit a certificate of conformance 
signed by the chief engineering officer and the chief executive officer 
of the company stating that no design changes have been made to the 
specified equipment or utensil.



Sec. 54.1020  Appeal service; marking equipment or utensils on appeal; requirements for appeal; certain determinations not appealable.

    (a) Appeal service is a re-evaluation of the compliance of a piece 
of equipment, portion of a piece of equipment, or utensil to design or 
fabrication criteria according to the standards prescribed by this 
subpart.
    (b) Only the original applicant or their representative may request 
appeal service requesting a reevaluation of the original determination 
of the design and fabrication of the equipment or utensil for compliance 
with the standards specified in this subpart.
    (c) Appeal service will not be furnished for:
    (1) A piece of equipment, portion of a piece of equipment, or 
utensil which has been altered or has undergone a material change since 
the original service.
    (2) For the purpose of obtaining an up-to-date report or certificate 
which does not involve a question as to the correctness of the original 
service for the piece of equipment, portion of a piece of equipment, or 
utensil.



Sec. 54.1021  Request for appeal service.

    (a) Except as otherwise provided in Sec. 54.1020, an applicant or 
their representative may request appeal service when the applicant or 
their representative disagree with the determination as to compliance 
with the standard of the piece of equipment, portion of a piece of 
equipment, or utensil as documented in the applicable report.
    (b) A request for appeal service shall be filed with the Chief, 
directly or through the design review specialist who performed the 
original service. The request shall state the reasons for the 
disagreement with the original determination and may be accompanied by a 
copy of any previous certificate or report, or any other information 
which the applicant may have received regarding the piece of equipment, 
portion of a piece of equipment, or utensil at the time of the original 
service. Such request may be made orally (including by telephone) or in 
writing (including by facsimile transmission). If made orally, the Dairy 
Grading Branch employee receiving the request may require that it be 
confirmed in writing.



Sec. 54.1022  When request for appeal service may be withdrawn.

    A request for appeal service may be withdrawn by the applicant at 
any time before the appeal service has been performed, upon payment of 
any expenses already incurred under the regulations by the Branch in 
connection therewith.



Sec. 54.1023  Denial or withdrawal of appeal service.

    A request for appeal service may be rejected or such service may be 
otherwise denied to or withdrawn from any person in accordance with the 
procedure set forth in Sec. 54.1013(a), if it appears that the person or 
product involved is not eligible for appeal service under Sec. 54.1020, 
or that the identity of the piece of equipment, portion of a piece of 
equipment, or utensil has been lost; or for any of the causes set forth 
in Sec. 54.1032.



Sec. 54.1024  Who shall perform appeal service.

    Appeal service for equipment or utensils shall be performed by the 
Chief or a design review specialist designated by the Chief. No design 
review specialist may perform appeal service for any piece of equipment, 
portion of a piece of equipment or utensil for which the original design 
review specialist performed the initial evaluation service.



Sec. 54.1025  Appeal reports.

    After appeal service has been performed for any piece of equipment, 
portion of a piece of equipment or utensils, an official report shall be 
prepared, signed, and issued referring specifically to the original 
report and stating the determination of the re-evaluation of compliance 
of the piece

[[Page 39]]

of equipment, portion of a piece of equipment or utensil.



Sec. 54.1026  Superseded reports.

    The appeal report shall supersede the original report which, 
thereupon, shall become null and void for all or a portion of the report 
pertaining to the appeal service and shall not thereafter be deemed to 
show the compliance of the equipment or utensils described therein. 
However, the fees charged for the original service shall not be remitted 
to the applicant who filed the appeal.



Sec. 54.1027  Application of other regulations to appeal service.

    The regulations in this subpart shall apply to appeal service except 
insofar as they are inapplicable.



Sec. 54.1028  Fees and other charges for service.

    Fees and other charges equal as nearly as may be to the cost of the 
services rendered shall be assessed and collected from applicants in 
accordance with the provisions for Fees and Charges set forth in 7 CFR 
part 58, Subpart A, Regulations Governing the Inspection and Grading 
Services of Manufactured or Processed Dairy Products, sections 
Secs. 58.38, 58.39, 58.41, 58.42, and 58.43, as appropriate.



Sec. 54.1029  Payment of fees and other charges.

    Fees and other charges for service shall be paid upon receipt of 
billing for fees and other charges for service. The applicant shall 
remit by check, draft, or money order, made payable to the Agricultural 
Marketing Service, USDA, payment for the service in accordance with 
directions on the billing, and such fees and charges shall be paid in 
advance if required by the official design review specialist or other 
authorized official.



Sec. 54.1030  Identification.

    All official design review specialists and supervisors shall have 
their Agricultural Marketing Service identification cards in their 
possession at all times while they are performing any function under the 
regulations and shall identify themselves by such cards upon request.



Sec. 54.1031  Errors in service.

    When a design review specialist, supervisor, or other responsible 
employee of the Branch has evidence of inaccurate evaluation, or of 
incorrect certification or other incorrect determination or 
identification as to the compliance of a piece of equipment or utensil, 
such person shall report the matter to the Chief. The Chief will 
investigate the matter and, if deemed advisable, will report any 
material errors to the owner or the owner's agent. The Chief shall take 
appropriate action to correct errors found in the determination of 
compliance of equipment or utensils, and the Chief shall take adequate 
measures to prevent the recurrence of such errors.



Sec. 54.1032  Denial or withdrawal of service.

    (a)(1) Bases for denial or withdrawal. An application or a request 
for service may be rejected, or the benefits of the service may be 
otherwise denied to, or withdrawn from, any person who, or whose 
employee or agent in the scope of the person's employment or agency:
    (i) Has wilfully made any misrepresentation or has committed any 
other fraudulent or deceptive practice in connection with any 
application or request for service under the regulations;
    (ii) Has given or attempted to give, as a loan or for any other 
purpose, any money, favor, or other thing of value, to any employee of 
the Department authorized to perform any function under the regulations;
    (iii) Has interfered with or obstructed, or attempted to interfere 
with or to obstruct, any employee of the Department in the performance 
of duties under the regulations by intimidation, threats, assaults, 
abuse, or any other improper means;
    (iv) Has knowingly falsely made, issued, altered, forged, or 
counterfeited any official certificate, memorandum, mark, or other 
identification;
    (v) Has knowingly uttered, published, or used as true any such 
falsely made, issued, altered, forged, or counterfeited certificate, 
memorandum, mark or identification;
    (vi) Has knowingly obtained or retained possession of any such 
falsely

[[Page 40]]

made, issued, altered, forged, or counterfeited certificate, memorandum, 
mark or identification, or of any equipment or utensil bearing any such 
falsely made, issued, altered, forged, or counterfeited mark or 
identification;
    (vii) Has applied the designation ``USDA Accepted Equipment'', ``AMS 
Accepted Equipment'', ``USDA Approved Equipment'', ``AMS Approved 
Equipment'', ``Approved By USDA'', ``Approved By AMS'', ``Accepted By 
USDA'', ``Accepted By AMS'', ``USDA Approved'', ``USDA Accepted'', ``AMS 
Approved'', ``AMS Accepted'', or any other variation of wording which 
states or implies official sanction by the United States Department of 
Agriculture by stamp, or brand directly on any equipment or utensil, or 
used as part of any promotional materials which has not been inspected 
and deemed in compliance with this subpart; or,
    (viii) Has in any manner not specified in this paragraph violated 
subsection 203(h) of the AMA: Provided, That paragraph (a)(1)(vi) of 
this section shall not be deemed to be violated if the person in 
possession of any item mentioned therein notifies the Deputy 
Administrator or Chief without such delay that such person has 
possession of such item and, in the case of an official identification, 
surrenders it to the Chief, and, in the case of any other item, 
surrenders it to the Deputy Administrator or Chief or destroys it or 
brings it into compliance with the regulations by obliterating or 
removing the violative features under supervision of the Deputy 
Administrator or Chief: And provided further, That paragraphs (a)(1) 
(ii) through (vii) of this section shall not be deemed to be violated by 
any act committed by any person prior to the making of an application of 
service under the regulations by the principal person. An application or 
a request for service may be rejected or the benefits of the service may 
be otherwise denied to, or withdrawn from, any person who operates an 
establishment for which such person has made application for service if, 
with the knowledge of such operator, any other person conducting any 
operations in such establishment has committed any of the offenses 
specified in paragraphs (a)(1) (i) through (vii) of this section after 
such application was made. Moreover, an application or a request for 
service made in the name of a person otherwise eligible for service 
under the regulations may be rejected, or the benefits of the service 
may be otherwise denied to, or withdrawn from, such a person:
    (A) In case the service is or would be performed at an establishment 
operated:
    (1) By a corporation, partnership, or other person from whom the 
benefits of the service are currently being withheld under this 
paragraph; or
    (2) By a corporation, partnership, or other person having an 
officer, director, partner, or substantial investor from whom the 
benefits of the service are currently being withheld and who has any 
authority with respect to the establishment where service is or would be 
performed; or
    (B) In case the service is or would be performed with respect to any 
product in which any corporation, partnership, or other person within 
paragraph (a)(1)(viii)(A)(1) of this section has a contract or other 
financial interest.
    (2) Procedure. All cases arising under this paragraph shall be 
conducted in accordance with the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth in 7 CFR Secs. 1.130 through 1.151 and the 
Supplemental Rules of Practice in part 50, 7 CFR Sec. 50.1 et seq.
    (b) Filing of records. The final orders in formal proceedings under 
paragraph (a) of this section to deny or withdraw the service under the 
regulations (except orders required for good cause to be held 
confidential and not cited as precedents) and other records in such 
proceedings (except those required for good cause to be held 
confidential) shall be filed with the Hearing Clerk and shall be 
available for inspection by persons having a proper interest therein.



Sec. 54.1033  Confidential treatment.

    Every design review specialist providing service under these 
regulations shall keep confidential all information secured and not 
disclose such information to any person except an authorized 
representative of the Department.

[[Page 41]]



Sec. 54.1034  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    The following control number has been assigned to the information 
collection requirements in 7 CFR Part 54, Subpart C, by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1995 
(44 U.S.C. Chapter 35).

------------------------------------------------------------------------
                                                             Current OMB
      7 CFR section where  requirements are described        control No.
------------------------------------------------------------------------
54.1008(a).................................................    0581-0126
54.1017....................................................    0581-0126
54.1018(e).................................................    0581-0126
54.1019....................................................    0581-0126
54.1020....................................................    0581-0126
54.1021....................................................    0581-0126
------------------------------------------------------------------------



PART 55--VOLUNTARY INSPECTION OF EGG PRODUCTS AND GRADING--Table of Contents




            Subpart A--Inspection and Grading of Egg Products

                               Definitions

Sec.
55.1  Meaning of words.
55.2  Terms defined.
55.5  Designation of official certificates, memoranda, marks, other 
          identifications, and devices for purposes of the Agricultural 
          Marketing Act.

                             Administration

55.10  Authority.
55.11  Nondiscrimination.

                                 General

55.20  Kinds of services available.
55.22  Where service is offered.
55.24  Basis of service.
55.25  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

                         Performance of Services

55.30  Licensed graders and inspectors.
55.40  Suspension of license; revocation.
55.50  Cancellation of license.
55.60  Surrender of license.
55.70  Identification.
55.80  Political activity.
55.90  Authority and duties of inspectors performing service on a 
          resident inspection basis.
55.95  Facilities and equipment to be furnished for use of graders and 
          inspectors in performing service on a resident inspection 
          basis.
55.96  Schedule of operation of official plants.

                         Application for Service

55.100  Who may obtain service.
55.120  Authority of applicant.
55.130  How application for service may be made; conditions of resident 
          service.
55.140  Application for inspection in official plants; approval.
55.150  When application may be rejected.
55.160  When application may be withdrawn.
55.170  Order of service.
55.180  Suspension of plant approval.

                            Denial of Service

55.200  Debarment.
55.220  Other applicable regulations.
55.240  Report of violations.
55.260  Reuse of containers bearing official identification prohibited.

                    Identifying and Marking Products

55.300  Approval of official identification.
55.310  Form of official identification symbol and inspection mark.
55.320  Products that may bear the inspection mark.
55.330  Unauthorized use or disposition of approved labels.
55.340  Supervision of marking and packaging.
55.350  Accessibility of product.
55.360  Certificates.
55.370  Certificate issuance.
55.380  Disposition of certificates.
55.390  Advance information.

                                 Appeals

55.400  Who may request an appeal grading or inspection or review of a 
          grader's or inspector's decision.
55.410  Where to file an appeal.
55.420  How to file an appeal.
55.430  When an application for an appeal grading or inspection may be 
          refused.
55.440  Who shall perform the appeal.
55.450  Procedures for selecting appeal samples.
55.460  Appeal certificates.

                            Fees and Charges

55.500  Payment of fees and charges.
55.510  Fees and charges for services other than on a continuous 
          resident basis.
55.530  Travel expenses and other charges.
55.560  Charges for continuous inspection and grading service on a 
          resident basis.
55.570  Fees for service performed under cooperative agreement.

                  Sanitary and Processing Requirements

55.600  General.
55.650  Inspection and grading.

[[Page 42]]

  Subpart B--Official U.S. Standards for Palatability Scores for Dried 
                               Whole Eggs

55.800  Preparation of samples for palatability test.
55.820  Palatability scores for dried whole eggs.

    Authority: 7 U.S.C. 1621-1627.

    Source: 36 FR 11795, June 19, 1971, unless otherwise noted. 
Redesignated at 42 FR 32514, June 27, 1977 and further redesignated at 
46 FR 63203, Dec. 31, 1981.



            Subpart A--Inspection and Grading of Egg Products

                               Definitions



Sec. 55.1  Meaning of words.

    Under the regulations in this part words in the singular shall be 
deemed to import the plural and vice versa, as the case may demand.



Sec. 55.2  Terms defined.

    For the purpose of the regulations in this part, unless the context 
otherwise requires, the following terms shall be construed, 
respectively:
    Act means the applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087; 7 U.S.C. 1621 et seq.), or any other Act of 
Congress conferring like authority.
    Administrator means the Administrator of the Agricultural Marketing 
Service (AMS) of the Department or any other officer or employee of the 
Department to whom there has heretofore been delegated, or to whom there 
may hereafter be delegated the authority to act in his stead.
    Applicant means any interested party who requests any grading or 
inspection service, or appeal grading or appeal inspection, with respect 
to any product.
    Chief of the Grading Branch means the Chief of the Poultry Grading 
Branch, Poultry Division, Agricultural Marketing Service.
    Class means any subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same 
kind, species, or method of processing.
    Condition means any condition (including, but not being limited to, 
the state of preservation, cleanliness, soundness, wholesomeness, or 
fitness for human food) of any product which affects its 
merchantability; or any condition, including, but not being limited to, 
the processing, handling, or packaging which affects such product.
    Department means the U.S. Department of Agriculture.
    Eggs of Current Production means shell eggs which have moved through 
the usual marketing channels since the time they were laid and are not 
in excess of 60 days old.
    Holiday or Legal holiday shall mean the legal public holidays 
specified by the Congress in paragraph (a) of section 6103, Title 5, of 
the United States Code.
    Inspection/grading means (1) the act of determining, according to 
the regulations, the class, quality, quantity, or condition of any 
product by examining each unit thereof or a representative sample drawn 
by a grader; (2) the act of issuing a certificate; or (3) the act of 
identifying, when requested by the applicant, any product by means of 
official identification pursuant to the Act and this part.
    Inspection and grading certificate or certificate means a statement, 
either written or printed, issued by a grader or inspector pursuant to 
the Act and this part, relative to the class, quality, quantity, and 
condition of products.
    Inspector/grader means any employee of the Department authorized by 
the Secretary, or any other person to whom a license has been issued by 
the Secretary, to investigate and certify, in accordance with the Act 
and this part, to shippers of products and other interested parties the 
class, quality, quantity, and condition of such products.
    Interested party means any person financially interested in a 
transaction involving any grading, inspection, or appeal grading or 
inspection of any product.
    National Supervisor means (1) the officer in charge of the service 
of AMS, and (2) such other employee of AMS as may be designated by him.
    Office of grading means the office of any grader or inspector.
    Official plant means any plant in which the facilities and methods 
of operation therein have been found by the

[[Page 43]]

Administrator to be suitable and adequate for grading service or 
inspection in accordance with this part and in which such service is 
carried on.
    Person means any individual, partnership, association, business 
trust, corporation, or any organized group of persons, whether 
incorporated or not.
    Product or products means eggs (whether liquid, frozen, or dried), 
egg products and any food product which is prepared or manufactured and 
contains eggs as an ingredient.
    Quality means the inherent properties of any product which determine 
its relative degree of excellence.
    Regional Director means any employee of the Department in charge of 
the service in a designated geographical area.
    Regulations means the provisions in this part.
    Sampling means the act of taking samples of any product for grading 
or inspection.
    Secretary means the Secretary of the Department or any other officer 
or employee of the Department to whom there has heretofore been 
delegated, or to whom there may hereafter be delegated, the authority to 
act in his stead.
    Service means (1) any grading or inspection, in accordance with the 
Act and the regulations in this part, of any product, (2) supervision, 
in any official plant, of the preparation or packaging of any product, 
or (3) any appeal grading or appeal inspection of any previously graded 
or inspected product.
    Shell eggs means the shell eggs of the domesticated chicken, turkey, 
duck, goose, and guinea.

[36 FR 11795, June 19, 1971, as amended at 36 FR 19301, Oct. 2, 1971; 37 
FR 17816, Sept. 1, 1972. Redesignated at 42 FR 32514, June 27, 1977, as 
amended at 43 FR 60137, Dec. 26, 1978. Redesignated at 46 FR 63203, Dec. 
31, 1981, as amended at 47 FR 46069, Oct. 15, 1982; 47 FR 54421, Dec. 3, 
1982]



Sec. 55.5  Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks or other identifications, and devices for making such marks or 
identifications, issued or authorized under section 203 of said Act, and 
certain misrepresentations concerning the inspection or grading of 
agricultural products under said section. For the purposes of said 
subsection and the provisions in this part, the terms listed below shall 
have the respective meanings specified:
    (a) Official certificate means any form of certification, either 
written or printed, used under this part to certify with respect to the 
sampling, inspection, class, grade, quality, size, quantity, or 
condition of products (including the compliance of products with 
applicable specifications).
    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of grading, inspecting, or sampling 
pursuant to this part, any processing or plant-operation report made by 
an authorized person in connection with grading, inspecting, or sampling 
under this part and any report made by an authorized person of services 
performed pursuant to this part.
    (c) Official mark means the grade mark, inspection mark, and any 
other mark or symbol formulated pursuant to the regulations in this 
part, stating that the product was graded or inspected, or for the 
purpose of maintaining the identity of the product.
    (d) Official identification means any United States (U.S.) standard 
designation of class, grade, quality, size, quantity, or condition 
specified in this part or any symbol, stamp, label, or seal indicating 
that the product has been officially graded or inspected and/or 
indicating the class, grade, quality, size, quantity, or condition of 
the product approved by the Administrator and authorized to be affixed 
to any product, or affixed to or printed on the packaging material of 
any product.
    (e) Official device means a printed label, or other method as 
approved by the Administrator for the purpose of applying any official 
mark or other identification to any product of the packaging material 
thereof.

[[Page 44]]

                             Administration



Sec. 55.10  Authority.

    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 Act and this 
part. The Administrator is authorized to waive for a limited period any 
particular provisions of the regulations in this part to permit 
experimentation so that new procedures, equipment, 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 Agricultural Marketing Service and its 
officers and employees shall not be liable in damages through acts of 
commission or omission in the administration of this part.

[42 FR 2969, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 55.11  Nondiscrimination.

    The conduct of all services and the licensing of graders and 
inspectors under these regulations shall be accomplished without 
discrimination as to race, color, religion, sex, national origin, age or 
disability.

[40 FR 20055, May 8, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981; 60 FR 49168, 
Sept. 21, 1995]

                                 General



Sec. 55.20  Kinds of services available.

    The regulations in this part provide for the following kinds of 
services:
    (a) Inspection of the processing of products containing eggs in 
official plants.
    (b) Sampling of products.
    (c) Quantity and condition inspection of products.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 58 
FR 42413, Aug. 9, 1993]



Sec. 55.22  Where service is offered.

    Any product may be graded or inspected wherever a grader or 
inspector is available and the facilities and the conditions are 
satisfactory for the conduct of the service.



Sec. 55.24  Basis of service.

    (a) Products shall be graded or inspected in accordance with such 
standards, methods, and instructions as may be issued or approved by the 
Administrator. All service shall be subject to supervision at all times 
by the applicable State supervisor, egg products supervisor, Regional 
Director, and National Supervisor. Whenever the supervisor of a grader 
or inspector has evidence that such grader or inspector incorrectly 
graded or inspected a product, such supervisor shall take such action as 
is necessary to correct the grading or inspection and to cause any 
improper official identification which appears on the product or 
containers thereof to be corrected prior to shipment of the product from 
the place of the initial grading or inspection.
    (b) Whenever service is performed on a sample basis, such sample 
shall be drawn in accordance with the instructions as issued by the 
Administrator.



Sec. 55.25  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    (a) Purpose. This section collects and displays the control numbers 
assigned to information collection requirements by the Office of 
Management and Budget contained in 7 CFR part 55 pursuant to the 
Paperwork Reduction Act of 1980, Pub. L. 96-511.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
       7 CFR section where identified and described            control
                                                               number
------------------------------------------------------------------------
Sec.  55.10...............................................     0581-0146
Sec.  55.24(a)............................................     0581-0146
Sec.  55.30(a)............................................     0581-0146
Sec.  55.40...............................................     0581-0146
Sec.  55.90(b)............................................     0581-0146
Sec.  55.95(b)............................................     0581-0146
Sec.  55.96...............................................     0581-0146
Sec.  55.120..............................................     0581-0146
Sec.  55.130(a)...........................................     0581-0146
Sec.  55.130(b)...........................................     0581-0146
Sec.  55.130(c)...........................................     0581-0146
Sec.  55.140..............................................     0581-0146
Sec.  55.150..............................................     0581-0146
Sec.  55.160..............................................     0581-0146
Sec.  55.200(a)...........................................     0581-0146
Sec.  55.240..............................................     0581-0146
Sec.  55.300..............................................     0581-0146
Sec.  55.340(c)...........................................     0581-0146
Sec.  55.370(a)...........................................     0581-0146
Sec.  55.380..............................................     0581-0146

[[Page 45]]

 
Sec.  55.390..............................................     0581-0146
Sec.  55.400..............................................     0581-0146
Sec.  55.420..............................................     0581-0146
Sec.  55.560(a)(1)........................................     0581-0146
Sec.  55.560(b)(1)........................................     0581-0146
Sec.  55.560(b)(3)(ii)....................................     0581-0146
Sec.  55.600..............................................     0581-0146
------------------------------------------------------------------------


[49 FR 2880, Jan. 24, 1984, as amended at 55 FR 23421, June 8, 1990]

                         Performance of Services



Sec. 55.30  Licensed graders and inspectors.

    (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 or inspector.
    (b) All licenses issued by the Secretary are to be countersigned by 
the officer-in-charge of the service of the Agricultural Marketing 
Service or by any other official of AMS designated by such officer.
    (c) No person may be licensed to grade or inspect any product in 
which he is financially interested.

[36 FR 11795, June 19, 1971, as amended at 37 FR 12918, June 30, 1972. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 55.40  Suspension of license; revocation.

    Pending final action by the Secretary, any person authorized to 
countersign a license to perform service may, whenever he deems such 
action necessary to assure that any grading or inspection services are 
properly performed, suspend any license to perform grading or inspection 
service issued pursuant to this part, by giving notice of such 
suspension 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 
he may wish to offer as to why his 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 he deems appropriate with respect to such suspension or 
revocation. When no appeal is filed within the prescribed 7 days, the 
license to perform grading or inspection service is revoked.



Sec. 55.50  Cancellation of license.

    Upon termination of his services as a grader or inspector, each 
licensee shall surrender his license immediately for cancellation.



Sec. 55.60  Surrender of license.

    Each license which is canceled, suspended, or revoked shall 
immediately be surrendered by the licensee to the office of the service 
in the region in which he is located.



Sec. 55.70  Identification.

    All graders, inspectors, and supervisors shall have in their 
possession at all times while on duty and present upon request the means 
of identification furnished by the Department to such person.



Sec. 55.80  Political activity.

    All graders and inspectors are forbidden during the period of their 
respective appointments or licenses, to take an active part in political 
management or in political campaigns. Political activity in city, 
county, State, or national elections, whether primary or regular, or in 
behalf of any party or candidate is prohibited, except as authorized by 
law or regulation of the Department. This applies to all appointees, 
including, but not being limited to, temporary and cooperative employees 
and employees on leave of absence with or without pay. Willful violation 
of this section will constitute grounds for dismissal in the case of 
appointees and revocation of licenses in the case of licensees.

[36 FR 11795, June 19, 1971, as amended at 42 FR 2969, Jan. 14, 1977. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]

[[Page 46]]



Sec. 55.90  Authority and duties of inspectors performing service on a resident inspection basis.

    (a) Each inspector is authorized:
    (1) To make such observations and inspections as he deems necessary 
to enable him to certify that products have been prepared, processed, 
stored, and otherwise handled in conformity with the regulations in this 
part;
    (2) To supervise the marking of packages containing products which 
are eligible to be identified with official identification;
    (3) To retain in his custody, or under his supervision, labels with 
official identification, marking devices, samples, certificates, seals, 
and reports of inspectors;
    (4) To deface or remove, or cause to be defaced or removed under his 
personal supervision, any official identification from any package 
containing products whenever he determines that such products were not 
processed in accordance with the regulations in this part or are not fit 
for human food;
    (5) To issue a certificate upon request on any product processed in 
the official plant; and
    (6) To use retention tags or other devices and methods as may be 
approved by the Administrator for the identification and control of 
products which are not in compliance with the regulations in this part 
or are held for further examination, and any equipment, utensils, rooms 
or compartments which are found to be unclean or otherwise in violation 
of any of the regulations in this part. No product, equipment, utensil, 
room or compartment shall be released for use until it has been made 
acceptable. Such identification shall not be removed by anyone other 
than inspector or grader.
    (b) Each inspector shall prepare such reports and records as may be 
prescribed by the officer-in-charge of the service.

[36 FR 11795, June 19, 1971, as amended at 42 FR 2969, Jan. 14, 1977. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 55.95  Facilities and equipment to be furnished for use of graders and inspectors in performing service on a resident inspection basis.

    (a) Facilities and equipment for proper sampling, weighing, 
examination of products and monitoring processing procedures shall be 
furnished by the official plant for use by inspectors and graders. Such 
facilities and equipment shall include but not be limited to a room or 
area suitable for sampling product, and acceptable candling light, 
flashlight, heavy duty, high speed drill with an eleven sixteenths-inch 
or larger bit of sufficient length to reach the bottom of containers 
used for frozen eggs, metal stem thermometer(s), test thermometer(s), 
stop watch, test weighing scale(s) and test weight(s), test kit for 
determining the bactericidal strength of sanitizing solutions, and 
stationary or adequately secured storage box or cage (capable of being 
locked only by the inspector) for holding official samples.
    (b) Acceptable furnished office space and equipment, including but 
not being limited to, a desk, lockers or cabinets (equipped with a 
satisfactory locking device) suitable for the protection and storage of 
supplies, and with facilities for inspectors and graders to change 
clothing.

[60 FR 49168, Sept. 21, 1995]



Sec. 55.96  Schedule of operation of official plants.

    Grading operating schedules for services performed pursuant to 
Sec. 55.560 shall be requested in writing and be approved by the 
Administrator. Normal operating schedules for a full week consist of a 
continuous 8-hour period per day (excluding not to exceed 1 hour for 
lunch), 5 consecutive days per week, within the administrative workweek, 
Sunday through Saturday, for each shift required. Less than 8-hour 
schedules may be requested and will be approved if a grader is 
available. Clock hours of daily operations need not be specified in the 
request, although as a condition of continued approval, the hours of 
operation shall be reasonably uniform from day to day. As an 
alternative, the normal operating schedule

[[Page 47]]

shall consist of a continuous 10-hour period per day (excluding not to 
exceed 1 hour for lunch), 4 consecutive days per week, within the 
administrative workweek, Sunday through Saturday for each full shift 
required. Graders are to be given reasonable advance notice by 
management of any change in the hours that grading service is requested.

[48 FR 20682, May 9, 1983, as amended at 60 FR 49168, Sept. 21, 1995]

                         Application for Service



Sec. 55.100  Who may obtain service.

    (a) An application for service may be made by any interested person, 
including, but not being limited to, the United States, any State, 
county, municipality, or common carrier, and any authorized agent of the 
foregoing.
    (b) Where service is offered: Any product may be graded or 
inspected, wherever a grader or inspector is available and the 
facilities and the conditions are satisfactory for the conduct of the 
service.



Sec. 55.120  Authority of applicant.

    Proof of the authority of any person applying for any service may be 
required at the discretion of the Administrator.



Sec. 55.130  How application for service may be made; conditions of resident service.

    (a) On a fee basis. An application for any service may be made in 
any office of grading, or with any grader or inspector at or nearest the 
place where the service is desired. Such application for service may be 
made orally (in person or by telephone), in writing or by telegraph. If 
an application for grading service is made orally, the office of 
grading, grader or inspector with whom such application is made, or the 
Administrator may require that the application be confirmed in writing.
    (b) On a resident inspection basis. An application for inspection on 
a resident inspection basis to be rendered in an official plant must be 
made in writing on forms approved by the Administrator and filed with 
the Administrator. Such forms may be obtained at the national, regional, 
or State grading office. In making application, the applicant agrees to 
comply with the terms and conditions of the regulations in this part 
(including, but not being limited to, such instructions governing 
grading and inspection of products as may be issued from time to time by 
the Administrator). No member of or delegate to Congress or Resident 
Commissioner, shall be admitted to any benefit that may arise from such 
service unless derived through service rendered a corporation for its 
general benefit.
    (c) Form of application. Each application for grading or inspecting 
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 inspected.



Sec. 55.140  Application for inspection in official plants; approval.

    Any person desiring to process products under inspection service 
must receive approval of such plant and facilities as an official plant 
prior to the installation of such service. The initial survey, drawings, 
and specifications to be submitted, changes and revisions in the 
official plant, and final survey and procedure for plant approval shall 
be in accordance with and conform with the applicable provisions of 
Sec. 59.146 of this chapter, regulations governing the inspection of 
eggs and egg products.

[40 FR 20055, May 8, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 55.150  When application may be rejected.

    Any application for service may be rejected by the Administrator (a) 
whenever the applicant fails to meet the requirements of the regulations 
in this part prescribing the conditions under which the service is made 
available; (b) whenever the product is owned by or located on the 
premises of a person currently denied the benefits of the Act; (c) 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

[[Page 48]]

Act to any person; (d) 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 service; (e) whenever the applicant, after 
an initial survey has been made in accordance with Sec. 55.140, fails to 
bring the plant, facilities, and operating procedures into compliance 
with the regulations in this part within a reasonable period of time; 
(f) notwithstanding any prior approval whenever, before inauguration of 
service, the applicant fails to fulfill commitments concerning the 
inauguration of the service; (g) 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 (h) when it appears to the 
Administrator that prior commitments of the Department necessitate 
rejection of the application. 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.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 46069, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982]



Sec. 55.160  When application may be withdrawn.

    An application for 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 AMS in connection with such application.



Sec. 55.170  Order of service.

    Service shall be performed, insofar as practicable, in the order in 
which applications therefor are made except that precedence may be given 
to any application for an appeal.

[36 FR 11795, June 19, 1971, as amended at 42 FR 2969, Jan. 14, 1977. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 55.180  Suspension of plant approval.

    (a) Any plant approval pursuant to the regulations in this part may 
be suspended for (1) failure to maintain plant and equipment in a 
satisfactory state of repairs; (2) the use of operating procedures which 
are not in accordance with the regulations in this part; or (3) 
alterations of buildings, facilities, or equipment which cannot be 
approved in accordance with the regulations in this part.
    (b) During such period of suspension, inspection service shall not 
be rendered. However, the other provisions of the regulations in this 
part pertaining to providing service on a resident basis will remain in 
effect unless service is terminated in accordance with the terms 
thereof. If the plant facilities or methods of operation are not brought 
into compliance within a reasonable period of time to be specified by 
the Administrator, the application and service shall be terminated. Upon 
termination of service in an official plant pursuant to the regulations 
in this part, 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 Administrator, either be destroyed, or the official identification 
completely obliterated, or sealed in a manner acceptable to the 
Department.

                            Denial of Service



Sec. 55.200  Debarment.

    (a) The following acts or practices 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 any or all benefits of the Act for a specified period. 
The rules of practice governing withdrawal of inspection and grading 
services in formal adjudicatory proceedings instituted by the Secretary 
(7

[[Page 49]]

CFR, part 1, subpart H) shall be applicable to such a debarment action:
    (1) 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:
    (i) The making or filing of an application for any service or 
appeal;
    (ii) The making of the product accessible for sampling, grading or 
inspection;
    (iii) The making, issuing or using or attempting to issue or use any 
certificate, symbol, stamp, label, seal, or identification authorized 
pursuant to the regulations in this part;
    (iv) The use of the terms ``United States,'' ``U.S.,'' ``Government 
Graded,'' ``Federal-State Graded,'' ``U.S. Inspected,'' ``Government 
Inspected,'' or terms of similar import in the labeling or advertising 
of any product;
    (v) The use of any official stamp, symbol, label, seal, or 
identification in the labeling or advertising of any product.
    (2) 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.
    (3) Willful violation of the regulations. Any willful violation of 
the regulations in this part or the Act.
    (4) Interfering with a grader, inspector, or employee of AMS. Any 
interference with or obstruction or any attempted interference or 
obstruction of or assault upon any grader, licensee, inspector or 
employee of AMS in the performance of his duties. The giving or 
offering, directly or indirectly, of any money, loan, gift, or anything 
of value to an employee of AMS, or the making or offering of any 
contribution to or in any way supplementing the salary, compensation or 
expenses of an employee of AMS, or the offering or entering into a 
private contract or agreement with an employee of AMS for any services 
to be rendered while employed by AMS.
    (5) Miscellaneous. The existence of any of the conditions set forth 
in Sec. 55.150 constituting the basis for the rejection of an 
application for grading or inspection service.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 43 FR 60137, Dec. 26, 1978. Redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 55.220  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.



Sec. 55.240  Report of violations.

    Each grader and inspector shall report, in the manner prescribed by 
the Administrator, all violations and noncompliance under the Act and 
this part of which such grader or inspector has knowledge.



Sec. 55.260  Reuse of containers bearing official identification prohibited.

    The reuse, by any person, of containers bearing official 
identification is prohibited unless such identification is applicable in 
all respects to product being packed therein. In such instances, the 
container and label may be used provided the packaging is accomplished 
under the supervision of an inspector or grader and the container is in 
clean, sound condition and lined with a suitable inner liner.

                    Identifying and Marking Products



Sec. 55.300  Approval of official identification.

    Labeling procedures, required information on labels, and method of 
label approval, shall be in accordance with and conform with the 
applicable provisions of Sec. 59.411 of this chapter, regulations 
governing the inspection of eggs and egg products, except where ``egg 
product(s)'' is used in Sec. 59.411, the word ``product(s)'' shall be 
substituted and used for this part 55.

[40 FR 20055, May 8, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 55.310  Form of official identification symbol and inspection mark.

    (a) The shield set forth in Figure 1, containing the letters 
``USDA,'' shall be the official identification symbol for

[[Page 50]]

the purposes of this part and when used, imitated, or simulated in any 
manner in connection with a product shall be deemed to constitute a 
representation that the product has been officially inspected for the 
purpose of Sec. 55.5.
[GRAPHIC] [TIFF OMITTED] TC25SE91.010

    (b) The inspection marks which are permitted to be used on products 
shall be contained within the outline of a shield and with the wording 
and design set forth in Figure 2 of this section, except the plant 
number may be preceded by the letter ``P'' in lieu of the word 
``plant''. Alternatively, it may be omitted from the official shield if 
applied on the container's principal display panel or other prominent 
location and preceded by the letter ``P'' or the word ``Plant''.
[GRAPHIC] [TIFF OMITTED] TC25SE91.011


[36 FR 11795, June 19, 1971, as amended at 40 FR 20055, May 8, 1975. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981, as amended at 60 FR 49168, Sept. 21, 1995]



Sec. 55.320  Products that may bear the inspection mark.

    Products which are permitted to bear the inspection mark shall be 
processed in an official plant from edible shell eggs or other edible 
egg products eligible to bear the inspection mark and may contain other 
edible ingredients. The official mark, when used, shall be printed or 
lithographed and applied as a part of the principal display panel of the 
container, but shall not be applied to a detachable cover.



Sec. 55.330  Unauthorized use or disposition of approved labels.

    (a) Containers or labels which bear official identification approved 
for use pursuant to Sec. 55.300 shall be used only for the purpose for 
which approved. Any unauthorized use or disposition of approved 
containers or labels which bear any official identification may result 
in cancellation of the approval and denial of the use of containers or 
labels bearing official identification or denial of the benefits of the 
Act pursuant to the provisions of Sec. 55.200;
    (b) The use of simulations or imitations of any official 
identification by any person is prohibited;
    (c) Upon termination of inspection service in an official plant 
pursuant to the regulations in this part, all labels

[[Page 51]]

or packaging material bearing official identification to be used to 
identify product packed by the plant shall either be destroyed, or have 
the official identification completely obliterated under the supervision 
of a USDA representative, or, if to be used at another location, 
modified in a manner acceptable to the Service.

[36 FR 11795, June 19, 1971, as amended at 40 FR 20055, May 8, 1975; 42 
FR 2969, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, and 
further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 60 FR 
49168, Sept. 21, 1995]



Sec. 55.340  Supervision of marking and packaging.

    (a) Evidence of label approval. No grader or inspector shall 
authorize the use of official identification on any inspected product 
unless he has on file evidence that such official identification or 
packaging material bearing such official identification has been 
approved in accordance with the provisions of Sec. 55.300.
    (b) Affixing of official identification. No official identification 
may be affixed to or placed on or caused to be affixed to or placed on 
any product or container thereof except by a grader or inspector or 
under the supervision of a grader or inspector or other person 
authorized by the Administrator. All such products shall have been 
inspected in accordance with the regulations in this part. The grader or 
inspector shall have supervision over the use and handling of all 
material bearing any official identification.
    (c) Labels for products sold under Government contract. The grader 
or inspector-in-charge may approve labels for containers of product sold 
under a contract specification to governmental agencies when such 
product is not offered for resale to the general public: Provided, That 
the contract specifications include complete specific requirements with 
respect to labeling, and are made available to the grader or inspector.



Sec. 55.350  Accessibility of product.

    Each product for which service is requested shall be so placed as to 
disclose fully its class, quality, quantity, and condition as the 
circumstances may warrant.



Sec. 55.360  Certificates.

    Certificates (including appeal certificates) shall be issued on 
forms approved by the Administrator.



Sec. 55.370  Certificate issuance.

    (a) Resident service. Certificates will be issued only upon a 
request therefor by the applicant or AMS. When requested, an inspector 
shall issue a certificate covering product inspected by him. In 
addition, an inspector may issue a certificate covering product 
inspected in whole or in part by another inspector when the inspector 
has knowledge that the product is eligible for certification based on 
personal examination of the product or official inspection records.
    (b) Other than resident service. Each inspector shall, in person or 
by his authorized agent, issue a certificate covering each product 
inspected by him. An inspector's name may be signed on a certificate by 
a person other than the inspector, if such person has been designated as 
the authorized agent of such inspector by the National Supervisor: 
Provided, That the certificate is prepared from an official memorandum 
of inspection signed by the inspector: And provided further, That a 
notarized power of attorney authorizing such signature has been issued 
to such person by the inspector and is on file in the office of the 
service. In such case, the authorized agent shall sign both his own and 
the inspector's name, e.g., ``John Doe by Richard Roe.''



Sec. 55.380  Disposition of certificates.

    The original and a copy of each certificate, issued pursuant to 
Sec. 55.370 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 person designated by him. Other 
copies shall be filed and

[[Page 52]]

retained in accordance with the disposition schedule for inspection 
program records.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 46069, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982]



Sec. 55.390  Advance information.

    Upon request of an applicant, all or part of the contents of any 
certificate issued to such applicant may be telephoned or telegraphed to 
him, or to any person designated by him, at his expense.

                                 Appeals



Sec. 55.400  Who may request an appeal grading or inspection or review of a grader's or inspector's decision.

    An appeal grading or inspection may be requested by any interested 
party who is dissatisfied with the determination by a grader or 
inspector of the class, quality, quantity, or condition of any product, 
as evidenced by the USDA inspection mark and accompanying label, or as 
stated on a certificate and a review may be requested by the operator of 
an official plant with respect to a grader's or inspector's decision or 
on any other matter related to grading or inspection in the official 
plant.



Sec. 55.410  Where to file an appeal.

    (a) Appeal of resident grader's or inspector's grading or decision 
in an official plant. Any interested party who is not satisfied with the 
determination of the class, quality, quantity, or condition of product 
which was graded or inspected by a grader or inspector in an official 
plant and has not left such plant, and the operator of any official 
plant who is not satisfied with a decision by a grader or inspector on 
any other matter relating to grading or inspection in such plant may 
request an appeal grading or inspection or review of the decision by the 
grader or inspector by filing such request with the grader's or 
inspector's immediate supervisor.
    (b) All other appeal requests. Any interested party who is not 
satisfied with the determination of the class, quality, quantity, or 
condition of product which has left the official plant where it was 
graded or inspected or which was graded or inspected other than in an 
official plant may request an appeal grading or inspection by filing 
such request with the Regional Director in the region where the product 
is located or with the Chief of the Grading Branch.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 60 
FR 49168, Sept. 21, 1995]



Sec. 55.420  How to file an appeal.

    The request for an appeal grading or inspection or review of a 
grader's or inspector's decision may be made orally or in writing. If 
made orally, written confirmation may be required. The applicant shall 
clearly state the identity of the product, the decision which is 
questioned, and the reason(s) for requesting the appeal service. If such 
appeal request is based on the results stated on an official 
certificate, the original and all copies of the certificate available at 
the appeal grading or inspection site shall be provided to the appeal 
grader or inspector assigned to make the appeal grading or inspection.

[60 FR 49168, Sept. 21, 1995]



Sec. 55.430  When an application for an appeal grading or inspection may be refused.

    When it appears to the official with whom an appeal request is filed 
that the reasons given in the request are frivolous or not substantial, 
class, quality, quantity, or that the condition of the product has 
undergone a material change since the original grading or inspection, or 
that the original lot has changed in some manner, or the Act or the 
regulations in this part have not been complied with, the applicant's 
request for the appeal grading or inspection may be refused. In such 
case, the applicant shall be promptly notified of the reason(s) for 
refusal.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 60 
FR 49168, Sept. 21, 1995]



Sec. 55.440  Who shall perform the appeal.

    (a) An appeal grading or inspection or review of a decision 
requested under Sec. 55.410(a) shall be made by the grader's

[[Page 53]]

or inspector's immediate supervisor or by a licensed grader or inspector 
assigned by the immediate supervisor other than the grader or inspector 
whose grading or inspection or decision is being appealed.
    (b) Appeal gradings or inspections requested under Sec. 55.410(b) 
shall be performed by a grader or inspector other than the grader or 
inspector who originally graded or inspected the product.
    (c) Whenever practical, an appeal grading or inspection shall be 
conducted jointly by two graders or inspectors. The assignment of the 
grader(s) or inspector(s) who will make the appeal grading or inspection 
under Sec. 55.410(b) shall be made by the Regional Director or the Chief 
of the Grading Branch.



Sec. 55.450  Procedures for selecting appeal samples.

    (a) Prohibition on movement of product. Products shall not have been 
moved from the place where the grading or inspection being appealed was 
performed and must have been maintained under adequate refrigeration, 
when applicable.
    (b) Laboratory analyses. The appeal sample shall consist of product 
taken from the original sample containers plus an equal number of 
containers selected at random. When the original sample containers 
cannot be located, the appeal sample shall consist of product taken at 
random from double the number of original sample containers.
    (c) Condition inspection. The appeal sample shall consist of product 
taken from the original sample containers plus an equal number of 
containers selected at random. A condition appeal cannot be made unless 
all originally sampled containers are available.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 60 
FR 49168, Sept. 21, 1995]



Sec. 55.460  Appeal certificates.

    Immediately after an appeal grading or inspection is completed, an 
appeal certificate shall be issued to show that the original grading or 
inspection was sustained or was not sustained. Such certificate shall 
supersede any previously issued certificate for the product involved and 
shall clearly identify the number and date of the superseded 
certificate. The issuance of the appeal certificate may be withheld 
until any previously issued certificate and all copies have been 
returned when such action is deemed necessary to protect the interest of 
the Government. When the appeal grader or inspector assigns a different 
class to the lot or determines that a net weight shortage exists, the 
lot shall be retained pending correction of the labeling or approval of 
the product disposition by the National Supervisor.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 60 
FR 49168, Sept. 21, 1995]

                            Fees and Charges



Sec. 55.500  Payment of fees and charges.

    (a) Fees and charges for any service shall be paid by the interested 
party making the application for such service, in accordance with the 
applicable provisions of this section and Secs. 55.510 through 55.560, 
both inclusive. If so required by the grader or inspector, such fees and 
charges shall be paid in advance.
    (b) Fees and charges for any 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 AMS.
    (c) Fees and charges for any service under a cooperative agreement 
with any State or person shall be paid in accordance with the terms of 
such cooperative agreement.

[36 FR 11795, June 19, 1971, as amended at 42 FR 2969, Jan. 14, 1977. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 55.510  Fees and charges for services other than on a continuous resident basis.

    (a) Unless otherwise provided in this part, the fees to be charged 
and collected for any service (other than for an appeal) performed, in 
accordance with this part on a fee basis shall be based on the 
applicable rates specified

[[Page 54]]

in Secs. 55.510 through 55.560, both inclusive.
    (b) Fees for product inspection and sampling for laboratory analysis 
will be based on the time required to perform the services. The hourly 
charge shall be $33.64 and shall include the time actually required to 
perform the sampling and inspection, waiting time, travel time, and any 
clerical costs involved in issuing a certificate.
    (c) Services rendered on Saturdays, Sundays, or legal holidays shall 
be charged for at the rate of $35.52 per hour. Information on legal 
holidays is available from the Supervisor.
    (d) The cost of an appeal grading, inspection, laboratory analysis, 
or review of a grader's or inspector's decision shall be borne by the 
appellant at an hourly rate of $27.36 for time spent performing the 
appeal and travel time to and from the site of the appeal, plus any 
additional expenses. If the appeal grading, inspection, laboratory 
analysis, or review of a grader's or inspector's decision discloses that 
a material error was made in the original determination, no fee or 
expenses will be charged.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 8, Jan. 2, 1981. Redesignated at 46 FR 63203, Dec. 
31, 1981, as amended at 59 FR 52637, Oct. 18, 1994]



Sec. 55.530  Travel expenses and other charges.

    Charges are to be made to cover the cost of travel and other 
expenses incurred by the Department in connection with rendering grading 
service. Such charges shall include the costs of transportation, per 
diem, shipping containers, postage, and any other expenses.

[42 FR 2969, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 8, Jan. 2, 1981. Redesignated at 46 FR 63203, Dec. 
31, 1981]



Sec. 55.560  Charges for continuous inspection and grading service on a resident basis.

    Fees to be charged and collected for service on a resident basis 
shall be those provided in this section. The fees to be charged for any 
appeal grading or inspection shall be as provided in Sec. 55.510.
    (a) Charges. The charges for the service shall be paid by the 
applicant and shall include items listed in this section as are 
applicable. Payment for the full cost of the service rendered to the 
applicant shall be made by the applicant to the Agricultural Marketing 
Service, U.S. Department of Agriculture. Such full costs shall comprise 
such of the items listed in this section as are due and included in the 
bill or bills covering the period or periods during which the grading 
and inspection service was rendered. Bills will be rendered by the 10th 
day following the end of the billing period in which the service was 
rendered and are payable upon receipt.
    (1) An inauguration charge of $310 will be made at the time an 
application for service is signed except when the application is 
required because of a change in name or ownership. If service is not 
installed within 6 months from the date the application is filed, or if 
service is inactive due to an approved request for removal of a 
grader(s) or inspector(s) for a period of 6 months, the application will 
be considered terminated, but a new application may be filed at any 
time. In addition, there will be a charge of $300 if the application is 
terminated at the request of the applicant for reasons other than for a 
change in location, within 12 months from the date of the inauguration 
of service.
    (2) A charge for the salary and other costs, as specified in this 
subparagraph, for each grader or inspector while assigned to a plant, 
except that no charge will be made when the assigned grader or inspector 
is temporarily reassigned by AMS to perform grading or inspection 
service for other than the applicant. Base salary rates will be 
determined on a national average for all official plants operating in 
States under a Federal Trust Fund Agreement where Federal graders, State 
graders, or a combination of Federal and State graders are used, by 
averaging the salary rates paid to each Federal or State grader assigned 
to such plants. Charges to plants are as follows:

[[Page 55]]

    (i) For all regular hours of work scheduled and approved as an 
established tour of duty for a plant, the regular rate charge will be 
made. The regular rate charge will be determined by adding an amount to 
the base salary rate to cover the costs to AMS for such items as the 
Employer's Tax imposed under the U.S. Internal Revenue Code (26 U.S.C.) 
for Old Age and Survivor's Benefits under the Social Security System, 
retirement benefits, groups life insurance, severance pay, sick leave, 
annual leave, additional salary and travel costs for relief grading 
service, accident payments, certain moving costs, and related servicing 
costs.
    (ii) All hours worked by an assigned grader or inspector or another 
grader or inspector in excess of the approved tour of duty, or worked on 
a nonscheduled workday, or actually worked on a holiday in excess of the 
tour of duty, will be considered as overtime. The charge for such 
overtime will be 150 percent of the grader's or inspector's base salary 
rate.
    (iii) For work performed on a holiday which is within the 
established tour of duty approved for a plant, the added charge will be 
the same as the grader's or inspector's base rate.
    (iv) For work performed between 6 p.m. and 6 a.m., night 
differential charges (for regular, overtime, or holiday hours worked 
during this period) will be at the applicable rates established plus 10 
percent of the base rate.
    (v) For work performed on Sunday, Sunday differential charges (for 
regular, overtime, or holiday hours worked on Sunday) will be at the 
applicable rates established plus 25 percent of the base rate.
    (vi) For all hours of work performed in a plant without an approved 
tour of duty, the charge will be one of the applicable hourly rates in 
Sec. 55.510.
    (3) An administrative service charge equal to 25 percent of the 
grader's or inspector's total salary costs. A minimum charge of $215 
will be made each billing period. The minimum charge also applies where 
an approved application is in effect and no product is handled.
    (b) Other provisions. (1) The applicant shall designate in writing 
the employees of the applicant who will be required and authorized to 
furnish each grader or inspector with such information as may be 
necessary for the performance of the service.
    (2) AMS will provide, as available, an adequate number of graders or 
inspectors to perform the service. The number of graders or inspectors 
required will be determined by AMS based on the expected demand for 
service.
    (3) The service shall be provided at designated locations and shall 
be continued until the service is suspended, withdrawn, or terminated 
by:
    (i) Mutual consent;
    (ii) Thirty (30) days' written notice, by either the applicant or 
AMS specifying the date of suspension, withdrawal, or termination;
    (iii) One (1) day's written notice by AMS to the applicant if the 
applicant fails to honor any invoice within thirty (30) days after date 
of invoice covering the cost of the grading and inspection service; or
    (iv) Action taken by AMS pursuant to the provisions of Sec. 55.180 
or Sec. 55.200.
    (4) Graders or inspectors will be required to confine their 
activities to those duties necessary in the rendering of service and 
such closely related activities as may be approved by the Administrator.
    (5) When similar services are furnished to the same applicant under 
part 56 or part 70 of this chapter, the charges listed in this section 
shall not be repeated.

[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]

    Editorial Note: For Federal Register citations affecting 
Sec. 55.560, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 55.570  Fees for service performed under cooperative agreement.

    The fees to be charged and collected for any service performed under 
cooperative agreement shall be those provided for by such agreement.

[[Page 56]]

                  Sanitary and Processing Requirements



Sec. 55.600  General.

    Except as otherwise approved by the Administrator, the sanitary, 
processing, and facility requirements, as applicable, shall be the same 
for the product processed under this part as for egg products processed 
under Secs. 59.500 through 59.580(c) of this chapter and Sec. 55.650.



Sec. 55.650  Inspection and grading.

    Examinations of the ingredients, processing, and the product shall 
be made to assure the production of a wholesome, unadulterated, and 
properly labeled product. Such examinations include, but are not being 
limited to:
    (a) Sanitation checks of plant premises, facilities, equipment, and 
processing operations.
    (b) Checks on ingredients and additives used in products to assure 
that they are not adulterated, are fit for use as human food, and are 
stored, handled, and used in a sanitary manner.
    (c) Examination of the eggs or egg products used in the products to 
assure they are wholesome, not adulterated, and comply with the 
temperature, pasteurization, or other applicable requirements.
    (d) Inspection during the processing and production of the product 
to determine compliance with any applicable standard or specification 
for such product.
    (e) Examination during processing of the product to assure 
compliance with approved formulas and labeling.
    (f) Test weighing and organoleptic examinations of finished product.



  Subpart B--Official U.S. Standards for Palatability Scores for Dried 
                               Whole Eggs



Sec. 55.800  Preparation of samples for palatability test.

    Reconstitute 33 grams of dried whole egg powder as completely as 
possible with 90 grams of distilled water in a suitable, clean 
container. Add the water and mix until the mixture is smooth and free 
from lumps. Place the container in gently boiling water and stir the 
mixture while coagulation takes place. When coagulated to the 
consistency of scrambled eggs, the sample is ready for the palatability 
test.



Sec. 55.820  Palatability scores for dried whole eggs.

    The palatability score of the prepared sample shall be determined by 
a panel of officially qualified graders of dried eggs of the 
Agricultural Marketing Service, and shall be rated in accordance with 
the following table:

------------------------------------------------------------------------
                 Score                        Description of Quality
------------------------------------------------------------------------
8......................................  No detectable off flavor,
                                          comparable to high quality
                                          fresh shell eggs.
7\1/2\.................................  Very slight off flavor.
7......................................  Slight but not unpleasant off
                                          flavor.
6\1/2\.................................  Definite but not unpleasant off
                                          flavor.
6......................................  Pronounced off flavor (slightly
                                          unpleasant).
5......................................  Unpleasant off flavor.
4......................................  Definite unpleasant off flavor.
3......................................  Pronounced unpleasant off
                                          flavor.
2......................................  Repulsive flavor.
1......................................  Definite repulsive flavor.
0......................................  Pronounced repulsive flavor.
------------------------------------------------------------------------


[36 FR 11795, June 19, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 46070, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982]



PART 56--VOLUNTARY GRADING OF SHELL EGGS--Table of Contents




                    Subpart A--Grading of Shell Eggs

                               Definitions

Sec.
56.1  Meaning of words and terms defined.
56.2  Designation of official certificates, memoranda, marks, other 
          identifications, and devices for purposes of the Agricultural 
          Marketing Act.

                             Administration

56.3  Administration.

                                 General

56.4  Basis of grading service.
56.5  Accessibility and condition of product.
56.6  Supervision.
56.8  Other applicable regulations.
56.9  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

                            Licensed Graders

56.10  Who may be licensed.
56.11  Authorization to perform limited grading services.

[[Page 57]]

56.12  Suspension of license; revocation.
56.13  Cancellation of license.
56.14  Surrender of license.
56.15  Political activity.
56.16  Identification.
56.17  Facilities and equipment for graders.
56.18  Schedule of operation of official plants.

                         Application for Grading

56.20  Who may obtain grading service.
56.21  How application for service may be made; conditions of service.
56.22  Filing of application.
56.23  Form of application.
56.24  When application may be rejected.
56.25  When application may be withdrawn.
56.26  Authority of applicant.
56.27  Order of service.

                               Violations

56.30  Report of violations.

                            Denial of Service

56.31  Debarment.
56.32  Retention authorities.

                    Identifying and Marking Products

56.35  Authority to use, and approval of official identification.
56.36  Form of grademark and information required.
56.37  Lot marking of officially identified product.
56.38  [Reserved]

     Prerequisites to Packaging Shell Eggs Identified With Consumer 
                               Grademarks

56.39  Quality assurance inspector required.
56.40  Grading requirements of shell eggs identified with consumer 
          grademarks.
56.41  Check grading officially identified product.
56.42-56.43  [Reserved]

                            Fees and Charges

56.45  Payment for fees and charges.
56.46  On a fee basis.
56.47  Fees for appeal grading or review of a grader's decision.
56.49  Travel expenses and other charges.
56.52  Continuous grading performed on a resident basis.
56.53  Fees or charges for grading service performed under cooperative 
          agreement.
56.54  Charges for continuous grading performed on a nonresident basis.

                          Grading Certificates

56.55  Grading certificates and sampling report forms.
56.56  Grading certificate issuance.
56.57  Disposition of grading certificates.
56.58  Advance information.

                     Appeal of a Grading or Decision

56.60  Who may request an appeal grading or review of a grader's 
          decision.
56.61  Where to file an appeal.
56.62  How to file an appeal.
56.63  When an application for an appeal grading may be refused.
56.64  Who shall perform the appeal.
56.65  Procedures for appeal gradings.
56.66  Appeal grading certificates.

                          Facility Requirements

56.75  Applicability of facility and operating requirements.
56.76  Minimum facility and operating requirements for shell egg grading 
          and packing plants.
56.77  Health and hygiene of personnel.

    Authority: 7 U.S.C. 1621-1627.



                    Subpart A--Grading of Shell Eggs

                               Definitions



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, and unless the context otherwise requires, the 
following terms shall be construed, respectively, as follows:
    Act means the applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087; 7 U.S.C. 1621 et seq.), or any other act of 
Congress conferring like authority.
    Administrator means the Administrator of the Agricultural Marketing 
Service of the Department or any other officer or employee of the 
Department to whom there has heretofore been delegated, or to whom there 
may hereafter be delegated the authority to act in his stead.
    Ambient temperature means the air temperature maintained in an egg 
storage facility or transport vehicle.
    Applicant means an interested party who requests any grading 
service, appeal grading, or regrading with respect to any product.
    Cage mark means any stain-type mark caused by an egg coming in 
contact with a material that imparts a rusty or blackish appearance to 
the shell.

[[Page 58]]

    Case means, when referring to containers, an egg case, as used in 
commercial practice in the United States, holding 30 dozens of shell 
eggs.
    Chief of the Grading Branch means the Chief of the Poultry Grading 
Branch of the Poultry Division, Agricultural Marketing Service.
    Class means any subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same 
kind, species, or method of processing.
    Condition means any condition (including, but not being limited to, 
the state of preservation, cleanliness, soundness, wholesomeness, or 
fitness for human food) of any product which affects its 
merchantability.
    Department means the United States Department of Agriculture.
    Eggs of current production means shell eggs which have moved through 
usual marketing channels since the time they were laid and have not been 
held in refrigerated storage in excess of 30 days. ``Refrigerator or 
storage eggs'' means shell eggs which have been held under refrigeration 
for a period of more than 30 days.
    Grader means any employee of the Department authorized by the 
Secretary, or any other person to whom a license has been issued by the 
Secretary, to investigate and certify, in accordance with the act and 
this part, to shippers of products and other interested parties the 
class, quality, quantity, and condition of such products.
    Grading or grading service means: (1) The act whereby a grader 
determines, according to the regulations in this part, the class, 
quality, quantity, or condition of any product by examining each unit 
thereof or each unit of the representative sample thereof drawn by a 
grader and issues a grading certificate with respect thereto, except 
that with respect to grading service performed on a resident basis the 
issuance of a grading certificate shall be pursuant to a request 
therefor by the applicant or the Service; (2) the act whereby the grader 
identifies, according to the regulations in this part, the graded 
product; (3) continuous supervision, in an official plant, of the 
handling or packaging of any product; and (4) any regrading or any 
appeal grading of a previously graded product.
    Grading certificate means a statement, either written or printed, 
issued by a grader pursuant to the act and this part, relative to the 
class, quantity, quality, or condition of products.
    Holiday or legal holiday shall mean the legal public holidays 
specified by the Congress in paragraph (a) of section 6103, title 5, of 
the United States Code.
    Interested party means any person financially interested in a 
transaction involving any grading, appeal grading, or regrading of any 
product.
    National supervisor means (1) the officer in charge of the shell egg 
grading service of the Agricultural Marketing Service, and (2) such 
other employees of the Service as may be designated by him.
    Nest run eggs means eggs which are packed as they come from the 
production facilities without having been washed, sized and/or candled 
for quality, with the exception that some Checks, Dirties, or other 
obvious undergrades may have been removed.
    Office of grading means the office of any grader.
    Official plant means any plant in which the facilities and methods 
of operation therein have been found by the Administrator to be suitable 
and adequate for grading service in accordance with this part and in 
which grading service is carried on.
    Origin grading is a grading made on a lot of eggs at a plant where 
the eggs are graded and packed.
    Person means any individual, partnership, association, business 
trust, corporation, or any organized group of persons, whether 
incorporated or not.
    Potable water means water that has been approved by the State health 
authority or agency or laboratory acceptable to the Administrator as 
safe for drinking and suitable for food processing.
    Product or products means shell eggs of the domesticated chicken.
    Quality means the inherent properties of any product which determine 
its relative degree of excellence.
    Quality assurance inspector means any designated company employee 
other

[[Page 59]]

than the plant owner, manager, foreman, or supervisor, authorized by the 
Secretary to examine product and to supervise the labeling, dating, and 
lotting of officially graded shell eggs and to assure that such product 
is packaged under sanitary conditions, graded by authorized personnel, 
and maintained under proper inventory control until released by an 
employee of the Department.
    Regional director means any employee of the Department in charge of 
the shell egg grading service in a designated geographical area.
    Regulations means the provisions in this part.
    Sampling means the act of taking samples of any product for grading.
    Secretary means the Secretary of the Department or any other officer 
or employee of the Department to whom there has heretofore been 
delegated, or to whom there may hereafter be delegated, the authority to 
act in his stead.
    Service means the Agricultural Marketing Service of the Department.
    Shell eggs means shell eggs of domesticated chickens.
    Shell protected means eggs which have had a protective covering such 
as oil applied to the shell surface. The product used shall be 
acceptable to the Food and Drug Administration.
    Washed ungraded eggs means eggs which have been washed but not sized 
or segregated for quality.

[20 FR 669, Feb. 1, 1955]

    Editorial Note: For Federal Register citations affecting Sec. 56.1, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 56.2  Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks or other identifications, and devices for making such marks or 
identifications, issued or authorized under section 203 of said act, and 
certain misrepresentations concerning the grading of agricultural 
products under said section. For the purposes of said subsection and the 
provisions in this part, the terms listed in this section shall have the 
respective meanings specified:
    (a) Official certificate means any form of certification, either 
written or printed, used under this part to certify with respect to the 
sampling, class, grade, quality, size, quantity, or condition of 
products (including the compliance of products with applicable 
specifications).
    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of grading or sampling pursuant to 
this part, any processing or plant-operation report made by an 
authorized person in connection with grading or sampling under this 
part, and any report made by an authorized person of services performed 
pursuant to this part.
    (c) Official mark means the grademark and any other mark, or any 
variations in such marks approved by the Administrator and authorized to 
be affixed to any product, or affixed to or printed on the packaging 
material of any product, stating that the product was graded, or 
indicating the appropriate U.S. grade or condition of the product, or 
for the purpose of maintaining the identity of products graded under 
this part, including but not limited to, those set forth in Sec. 56.36.
    (d) Official identification means any United States (U.S.) standard 
designation of class, grade, quality, size, quantity, or condition 
specified in this part or any symbol, stamp, label or seal indicating 
that the product has been officially graded and/or indicating the class, 
grade, quality, size, quantity, or condition of the product approved by 
the Administrator and authorized to be affixed to any product, or 
affixed to or printed on the packaging material of any product.
    (e) Official device means a stamping appliance, branding device, 
stencil, printed label, or any other mechanically or manually operated 
tool that is approved by the Administrator for the purpose of applying 
any official mark

[[Page 60]]

or other identification to any product or the packaging material 
thereof.

[28 FR 6341, June 20, 1963. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]

                             Administration



Sec. 56.3  Administration.

    (a) 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 Act and 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, 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 Agricultural Marketing Service and its 
officers and employees shall not be liable in damages through acts of 
commission or omission in the administration of this part.
    (b) The conduct of all services and the licensing of graders under 
these regulations shall be accomplished without discrimination as to 
race, color, national origin, religion, age, sex, or disability.

[20 FR 670, Feb. 1, 1955, as amended at 38 FR 26798, Sept. 26, 1973; 42 
FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 60 FR 
12402, Mar. 7, 1995]

                                 General



Sec. 56.4  Basis of grading service.

    (a) Any grading service in accordance with the regulations in this 
part shall be for class, quality, quantity, or condition or any 
combination thereof. Grading service with respect to the determination 
of the quality of products shall be on the basis of the ``United States 
Standards, Grades, and Weight Classes'' as contained in subpart C of 
this part. However, grading service may be rendered with respect to 
products which are bought and sold on the basis of institutional 
contract specifications or specifications of the applicant and such 
service, when approved by the Administrator, shall be rendered on the 
basis of such specifications. The supervision of packaging shall be in 
accordance with such instructions as may be approved or issued by the 
Administrator.
    (b) Whenever grading service is performed on a representative sample 
basis, such sample shall be drawn and consist of not less than the 
minimum number of cases as indicated in the following table. A minimum 
of one hundred eggs shall be examined per sample case. For lots which 
consist of less than 1 case, a minimum of 50 eggs shall be examined. If 
the lot consists of less than 50 eggs, all eggs will be examined.

       Minimum Number of Cases Comprising a Representative Sample
------------------------------------------------------------------------
                                                                Cases in
                         Cases in lot                            sample
------------------------------------------------------------------------
1 case.......................................................          1
2 to 10, inclusive...........................................          2
11 to 25, inclusive..........................................          3
26 to 50, inclusive..........................................          4
51 to 100, inclusive.........................................          5
101 to 200, inclusive........................................          8
201 to 300, inclusive........................................         11
301 to 400, inclusive........................................         13
401 to 500, inclusive........................................         14
501 to 600, inclusive........................................         16
------------------------------------------------------------------------


For each additional 50 cases, or fraction thereof, in excess of 600 
cases, one additional case shall be included in the sample.

[20 FR 670, Feb. 1, 1955, as amended at 22 FR 8167, Oct. 16, 1957; 28 FR 
6342, June 20, 1963; 42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 
32514, June 27, 1977, and further redesignated at 46 FR 63203, Dec. 31, 
1981]



Sec. 56.5  Accessibility and condition of product.

    Each product for which grading service is requested shall be so 
conditioned and placed as to permit a proper determination of the class, 
quality, quantity, or condition of such product.

[20 FR 670, Feb. 1, 1955, as amended at 27 FR 10317, Oct. 23, 1962. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 56.6  Supervision.

    All grading service shall be subject to supervision at all times by 
the applicable State supervisor, regional director and national 
supervisor. Such service shall be rendered where the facilities

[[Page 61]]

and conditions are satisfactory for the conduct of the service and the 
requisite graders are available. Whenever the supervisor of a grader has 
evidence that such grader incorrectly graded a product, such supervisor 
shall take such action as is necessary to correct the grading and to 
cause any improper grademarks which appear on the product or the 
containers thereof to be corrected prior to shipment of the product from 
the place of initial grading.

[40 FR 20055, May 8, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 43 FR 60138, Dec. 26, 1978. Redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 56.8  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.

[20 FR 670, Feb. 1, 1955. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.9  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    (a) Purpose. This section collects and displays the control numbers 
assigned to information collection requirements by the Office of 
Management and Budget contained in 7 CFR part 56 pursuant to the 
Paperwork Reduction Act of 1980, Pub. L. 96-511.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
        7 CFR section where identified and described           control
                                                                number
------------------------------------------------------------------------
56.3(a)....................................................    0581-0128
56.4(a)....................................................    0581-0128
56.10(a)...................................................    0581-0128
56.11......................................................    0581-0128
56.12......................................................    0581-0128
56.17(b)...................................................    0581-0128
56.18......................................................    0581-0128
56.21(a)...................................................    0581-0128
56.21(b)...................................................    0581-0128
56.23......................................................    0581-0128
56.24......................................................    0581-0128
56.25......................................................    0581-0128
56.26......................................................    0581-0128
56.30......................................................    0581-0128
56.31(a)...................................................    0581-0128
56.35(b)...................................................    0581-0128
56.35(c)...................................................    0581-0128
56.37......................................................    0581-0128
56.52(a)(1)................................................    0581-0128
56.52(a)(4)................................................    0581-0128
56.52(b)(1)................................................    0581-0128
56.52(b)(3)(ii)............................................    0581-0128
56.54(b)(1)................................................    0581-0128
56.54(b)(3)(ii)............................................    0581-0128
56.56(a)...................................................    0581-0128
56.57......................................................    0581-0128
56.58......................................................    0581-0128
56.60......................................................    0581-0128
56.62......................................................    0581-0128
56.76(e)(6)................................................    0581-0128
56.76(g)...................................................    0581-0128
------------------------------------------------------------------------


[48 FR 56565, Dec. 22, 1983, as amended at 52 FR 23935, June 26, 1987]

                            Licensed Graders



Sec. 56.10  Who may be licensed.

    (a) Except as otherwise provided in paragraph (c) of this section, 
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 poultry grading service of the Agricultural 
Marketing Service or any other designated officer of such Service.
    (c) No person may be licensed to grade or sample any product in 
which he is financially interested.

[20 FR 670, Feb. 1, 1955, as amended at 28 FR 6342, June 20, 1963; 37 FR 
12918, June 30, 1972. Redesignated at 42 FR 32514, June 27, 1977, and 
further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.11  Authorization to perform limited grading services.

    Any person who is employed by 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

[[Page 62]]

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.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



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 he deems 
such action 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 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 he may wish to offer as to 
why his 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 he deems 
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.

[35 FR 19327, Dec. 22, 1970. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.13  Cancellation of license.

    Upon termination of his services as a grader, each licensee shall 
surrender his license immediately for cancellation.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.14  Surrender of license.

    Each license which is canceled, suspended, or has expired shall 
immediately be surrendered by the licensee to the office of grading 
serving the area in which he is located.

[31 FR 2773, Feb. 16, 1966. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.15  Political activity.

    All graders are forbidden during the period of their respective 
appointments or licenses, to take an active part in political management 
or in political campaigns. Political activity in city, county, State, or 
national elections, whether primary or regular, or in behalf of any 
party or candidate, or any measure to be voted upon, is prohibited. This 
applies to all appointees, including, but not being limited to, 
temporary and cooperative employees, and employees on leave of absence 
with or without pay. Willful violation of this section will constitute 
grounds for dismissal in the case of appointees and revocation of 
licenses in the case of licensees.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.16  Identification.

    All graders shall each have in possession at all times, and present 
upon request, while on duty, the means of identification furnished by 
the Department to such person.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.17  Facilities and equipment for graders.

    Facilities and equipment to be furnished by the applicant for use of 
graders in performing service on a resident basis shall include (when 
deemed necessary) the following:
    (a)(1) An accurate metal stem thermometer;
    (2) Electronic digital-display scales graduated in increments of \1/
10\-ounce or less for weighing individual eggs and test weights for 
calibrating such scales. Plants packing product based on metric weight 
must provide scales graduated in increments of 1-gram or less;
    (3) Electronic digital-display scales graduated in increments of \1/
4\-ounce or

[[Page 63]]

less for weighing the lightest and heaviest consumer packages packed in 
the plant and test weights for calibrating such scales;
    (4) Scales graduated in increments of \1/4\-pound or less for 
weighing shipping containers and test weights for calibrating such 
scales;
    (5) An acceptable candling light.
    (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 stamps and supplies, and other facilities and 
equipment as may otherwise be required. Such space and equipment must 
meet the approval of the National supervisor.

[32 FR 8230, June 8, 1967. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 39570, Aug. 4, 1981. Redesignated at 46 FR 63203, 
Dec. 31, 1981, as amended at 60 FR 12402, Mar. 7, 1995; 63 FR 13330, 
Mar. 19, 1998]



Sec. 56.18  Schedule of operation of official plants.

    Grading operating schedules for services performed pursuant to 
Secs. 56.52 and 56.54 shall be requested in writing and be approved by 
the Administrator. Normal operating schedules for a full week consist of 
a continuous 8-hour period per day (excluding not to exceed 1 hour for 
lunch), 5 consecutive days per week, within the administrative workweek, 
Sunday through Saturday, for each shift required. Less than 8-hour 
schedules may be requested and will be approved if a grader is 
available. Clock hours of daily operations need not be specified in the 
request, although as a condition of continued approval, the hours of 
operation shall be reasonably uniform from day to day. Graders are to be 
notified by management 1 day in advance of any change in the hours 
grading service is requested.

[48 FR 20683, May 9, 1983]

                         Application for Grading



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, the United States, any 
State, county, municipality, or common carrier, and any authorized agent 
of the foregoing.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.21  How application for service may be made; conditions of service.

    (a) Noncontinuous grading service on a fee basis. An application for 
any noncontinuous grading service on a fee basis may be made in any 
office of grading, or with any grader at or nearest the place where the 
service is desired. Such application may be made orally (in person or by 
telephone), in writing, or by telegraph. If the application for grading 
service is made orally, the office of grading or the grader with whom 
such application is made, or the Administrator, may require that the 
application be confirmed in writing.
    (b) Continuous grading service on a resident basis or continuous 
grading service on a nonresident basis. An application for continuous 
grading service on a resident basis or for continuous grading service on 
a nonresident basis must be made in writing on forms approved by the 
Administrator and filed with the Administrator. Such forms may be 
obtained at the national, regional, or State grading office. In making 
application, the applicant agrees to comply with the terms and 
conditions of the regulations (including, but not being limited to, such 
instructions governing grading of products as may be issued from time to 
time by the Administrator). No member of or Delegate to Congress or 
Resident Commissioner shall be admitted to any benefit that may arise 
from such service unless derived through service rendered a corporation 
for its general benefit.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.22  Filing of application.

    An application for grading or sampling of a specified lot of any 
product shall be regarded as filed only when made pursuant to this part.

[28 FR 6342, June 20, 1963. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]

[[Page 64]]



Sec. 56.23  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.

[28 FR 6342, June 20, 1963. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.24  When application may be rejected.

    An application for grading service may be rejected by the 
Administrator (a) whenever the applicant fails to meet the requirements 
of the regulations prescribing the conditions under which the service is 
made available; (b) whenever the product is owned by or located on the 
premises of a person currently denied the benefits of the act; (c) 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; (d) 
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; (e) whenever the applicant fails to bring the plant 
facilities, and operating procedures into compliance with the 
regulations within a reasonable period of time; (f) notwithstanding any 
prior approval whenever, before inauguration of service, the applicant 
fails to fulfill commitments concerning the inauguration of the service; 
(g) 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 (h) when it appears to the Administrator that prior 
commitments of the Department necessitate rejection of the application. 
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.

[28 FR 6342, June 20, 1963, as amended at 42 FR 2970, Jan. 14, 1977. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 56.25  When application may be withdrawn.

    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 Service in connection with 
such application.

[20 FR 671, Feb. 1, 1955. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.26  Authority of applicant.

    Proof of the authority of any person applying for any grading 
service may be required at the discretion of the Administrator.

[20 FR 671, Feb. 1, 1955. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.27  Order of service.

    Grading service shall be performed, insofar as practicable, in the 
order in which applications therefor are made except that precedence may 
be given to any application for an appeal grading.

[20 FR 671, Feb. 1, 1955; 20 FR 757, Feb. 4, 1955, as amended at 42 FR 
2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, and 
further redesignated at 46 FR 63203, Dec. 31, 1981]

                               Violations



Sec. 56.30  Report of violations.

    Each grader, shall report in the manner prescribed by the 
Administrator, all violations and noncompliances

[[Page 65]]

under the Act and this part of which such grader, has knowledge.

[42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]

                            Denial of Service



Sec. 56.31  Debarment.

    (a) The following acts or practices 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 specific period. The 
rules of practice governing withdrawal of grading services in formal 
adjudicatory proceedings instituted by the Secretary (7 CFR, part 1, 
subpart H) shall be applicable to such debarment action.
    (1) 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:
    (i) The making or filing of an application for any grading service 
or appeal service;
    (ii) The making of the product accessible for sampling or grading;
    (iii) 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;
    (iv) The use of the terms ``United States'' or ``U.S.'' in 
conjunction with the grade of the product;
    (v) 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; or
    (vi) The use of the terms ``Government Graded,'' ``Federal-State 
Graded'' or terms of similar import in the labeling or advertising of 
any product.
    (2) 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.
    (3) Willful violation of the regulations. Any willful violation of 
the regulations in this part or the act.
    (4) Interfering with a grader or employee of the Service. Any 
interference with or obstruction or any attempted interference or 
obstruction of or assault upon any grader, licensee, or employee of the 
Service in the performance of his duties. The giving or offering, 
directly or indirectly, of any money, loan, gift, or anything of value 
to an employee of the Service or the making or offering of any 
contribution to or in any way supplementing the salary, compensation or 
expenses of an employee of the Service or the offering or entering into 
a private contract or agreement with an employee of the Service for any 
services to be rendered while employed by the Service.
    (5) 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.
    (6) 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.

[20 FR 9895, Dec. 23, 1955, as amended at 28 FR 6343, June 20, 1963; 35 
FR 5664, Apr. 8, 1970; 42 FR 2970, Jan. 14, 1977. Redesignated at 42 FR 
32514, June 27, 1977, and further redesignated at 43 FR 60138, Dec. 26, 
1978, and at 46 FR 63203, Dec. 31, 1981]



Sec. 56.32  Retention authorities.

    A grader may use retention tags or other devices and methods as 
approved by the Administrator for the identification and control of 
shell eggs which are not in compliance with the regulations or are held 
for further examination and for any equipment, utensils, rooms or 
compartments which are found unclean or otherwise in violation of the 
regulations. Any such item shall not be released until in compliance 
with the regulations and retention identification shall not be removed 
by anyone other than a grader.

[35 FR 5664, Apr. 8, 1970. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]

[[Page 66]]

                    Identifying and Marking Products



Sec. 56.35  Authority to use, and approval of official identification.

    (a) Authority to use official identification. Authority to 
officially identify product graded pursuant to this part is granted only 
to applicants who make the services of a grader or quality assurance 
inspector available for use in accordance with this part. Packaging 
materials bearing official identification marks shall be approved 
pursuant to Secs. 56.35 to 56.37, inclusive, and shall be used only for 
the purpose for which approved and prescribed by the Administrator. Any 
unauthorized use or disposition of approved labels or packaging 
materials which bear any official identification may result in 
cancellation of the approval and denial of the use of labels or 
packaging materials bearing official identification or denial of the 
benefits of the Act pursuant to the provisions of Sec. 56.31.
    (b) Approval of official identification. No label, container, or 
packaging material which bears official identification may contain any 
statement that is false or misleading. No label, container, or packaging 
material bearing official identification may be printed or prepared for 
use until the printers' or other final proof has been approved by the 
Administrator in accordance with the regulations in this part, the 
Federal Food, Drug, and Cosmetic Act, the Fair Packaging and Labeling 
Act, and the regulations promulgated under these acts. The use of 
finished labels must be approved as prescribed by the Administrator. A 
grader may apply official identification stamps to shipping containers 
if they do not bear any statement that is false or misleading. If the 
label is printed or otherwise applied directly to the container, the 
principal display panels of such container shall for this purpose be 
considered as the label. The label shall contain the name, address, and 
ZIP Code of the packer or distributor of the product, the name of the 
product, a statement of the net contents of the container, and the U.S. 
grademark.
    (c) Nutritional labeling. Nutrition information must be included 
with the labeling on each unit container of consumer packaged shell eggs 
in accordance with the provisions of Title 21, Chapter I, Part 101, 
Regulations for the Enforcement of the Federal Food, Drug, and Cosmetic 
Act and the Fair Packaging and Labeling Act. The nutrition information 
included on labels is subject to review by the Food and Drug 
Administration prior to approval by the Department.
    (d) Refrigeration labeling. All containers bearing official U.S. 
Grade AA, A, or B identification shall be labeled to indicate that 
refrigeration is required, e.g., ``Keep Refrigerated,'' or words of 
similar meaning.

[40 FR 20055, May 8, 1975, as amended at 42 FR 2970, Jan. 14, 1977. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981, as amended at 60 FR 12402, Mar. 7, 1995; 64 
FR 56947, Oct. 22, 1999]



Sec. 56.36  Form of grademark and information required.

    (a) Form of official identification symbol and grademark. (1) The 
shield set forth in Figure 1 of this section shall be the official 
identification symbol for purposes of this part and when used, imitated, 
or simulated in any manner in connection with shell eggs, shall be 
deemed prima facia to constitute a representation that the product has 
been officially graded for the purposes of Sec. 56.2.
    (2) Except as otherwise authorized, the grademark permitted to be 
used to officially identify USDA consumer-graded shell eggs shall be of 
the form and design indicated in Figures 2 through 4 of this section. 
The shield shall be of sufficient size so that the printing and other 
information contained therein is legible and in approximately the same 
proportion as shown in these figures.
    (3) The ``Produced From'' grademark in Figure 5 of this section may 
be used to identify products for which there are no official U.S. grade 
standards (e.g., pasteurized shell eggs), provided that these products 
are approved by the Agency and are prepared from U.S. Consumer Grade AA 
or A shell eggs under the continuous supervision of a grader.
    (b) Information required on grademark. (1) Except as otherwise 
authorized by the Administrator, each grademark

[[Page 67]]

used shall include the letters ``USDA'' and the U.S. grade of the 
product it identifies, such as ``A Grade,'' as shown in Figure 2 of this 
section. Such information shall be printed with the shield and the 
wording within the shield in contrasting colors in a manner such that 
the design is legible and conspicuous on the material upon which it is 
printed.
    (2) The size or weight class of the product, such as ``Large,'' may 
appear within the grademark as shown in Figure 3 of this section. If the 
size or weight class is omitted from the grademark, it must appear 
prominently on the main panel of the carton.
    (3) Except as otherwise authorized, the bands of the shield in 
Figure 4 of this section shall be displayed in three colors, with the 
color of the top, middle, and bottom bands being blue, white, and red, 
respectively.
    (4) The ``Produced From'' grademark in Figure 5 of this section may 
be any one of the designs shown in Figures 2 through 4 of this section. 
The text outside the shield shall be conspicuous, legible, and in 
approximately the same proportion and close proximity to the shield as 
shown in Figure 5 of this section.
    (5) The plant number of the official plant preceded by the letter 
``P'' must be shown on each carton or packaging material.
[GRAPHIC] [TIFF OMITTED] TR19MR98.011

[GRAPHIC] [TIFF OMITTED] TR19MR98.012

[GRAPHIC] [TIFF OMITTED] TR19MR98.013

[GRAPHIC] [TIFF OMITTED] TR19MR98.014


[[Page 68]]


[GRAPHIC] [TIFF OMITTED] TR19MR98.015


[63 FR 13330, Mar. 19, 1998]



Sec. 56.37  Lot marking of officially identified product.

    Each carton identified with the grademarks shown in Sec. 56.36 shall 
be legibly lot numbered on either the carton or the consumer package. 
The lot number shall be the consecutive day of the year on which the 
eggs were packed (e.g., 132), except other lot numbering systems may be 
used when submitted in writing and approved by the Administrator.

[35 FR 5664, Apr. 8, 1970. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 39570, Aug. 4, 1981. Redesignated at 46 FR 63203, 
Dec. 31, 1981, as amended at 60 FR 12402, Mar. 7, 1995; 63 FR 13331, 
Mar. 19, 1998]



Sec. 56.38  [Reserved]

     Prerequisites to Packaging Shell Eggs Identified With Consumer 
                               Grademarks



Sec. 56.39  Quality assurance inspector required.

    The official identification of any graded product as provided in 
Secs. 56.35 to 56.41, inclusive, shall be done only under the 
supervision of a grader or quality assurance inspector. The grader or 
quality assurance inspector shall have supervision over the use and 
handling of all material bearing any official identification.

[42 FR 2971, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 39570, Aug. 4, 1981. Redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 56.40  Grading requirements of shell eggs identified with consumer grademarks.

    (a) Shell eggs to be identified with the grademarks illustrated in 
Sec. 56.36 must be individually graded by a grader or by authorized 
personnel pursuant to Sec. 56.11 and thereafter check graded by a 
grader.
    (b) Shell eggs 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.
    (c) Shell eggs which are to bear the U.S. consumer grademark shall 
be packed only from eggs of current production. They shall not possess 
any undesirable odors or flavors.

[32 FR 8231, June 8, 1967. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 39571, Aug. 4, 1981. Redesignated at 46 FR 63203, 
Dec. 31, 1981, as amended at 63 FR 13331, Mar. 19, 1998]



Sec. 56.41  Check grading officially identified product.

    Officially identified shell eggs packed or received in an official 
plant may be subject to final check grading prior to their shipment. 
Such product found not to be in compliance with the assigned official 
grade shall be placed under a retention tag until it is regraded to 
comply with the grade assigned or until the official identification is 
removed.

[35 FR 5664, Apr. 8, 1970. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Secs. 56.42-56.43  [Reserved]

                            Fees and Charges



Sec. 56.45  Payment for fees and charges.

    (a) Fees and charges for any grading service shall be paid by the 
interested party making the application for such grading service, in 
accordance with the applicable provisions of this section and 
Secs. 56.46 to 56.54, both inclusive; and, if so required by the grader, 
such fees and charges shall be paid in advance.
    (b) Fees and charges for any grading service shall, unless otherwise 
required

[[Page 69]]

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 Service.
    (c) Fees and charges for any grading service under a cooperative 
agreement with any State or person shall be paid in accordance with the 
terms of such cooperative agreement.

[33 FR 20004, Dec. 31, 1968 and 42 FR 2971, Jan. 14, 1977. Redesignated 
at 42 FR 32514, June 27, 1977, and further redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 56.46  On a fee basis.

    (a) Unless otherwise provided in this part, the fees to be charged 
and collected for any service performed, in accordance with this part, 
on a fee basis shall be based on the applicable rates specified in this 
section.
    (b) Fees for grading services will be based on the time required to 
perform the services. The hourly charge shall be $57.68 and shall 
include the time actually required to perform the grading, waiting time, 
travel time, and any clerical costs involved in issuing a certificate.
    (c) Grading services rendered on Saturdays, Sundays, or legal 
holidays shall be charged for at the rate of $66.64 per hour. 
Information on legal holidays is available from the Supervisor.

[67 FR 78666, Dec. 26, 2002]



Sec. 56.47  Fees for appeal grading or review of a grader's decision.

    The cost of an appeal grading or review of a grader's decision shall 
be borne by the appellant on a fee basis at rates set forth in 
Sec. 56.46, plus any travel and additional expenses. If the appeal 
grading or review of a grader's decision discloses that a material error 
was made in the original determination, no fee or expenses will be 
charged.

[63 FR 52133, Sept. 30, 1998]



Sec. 56.49  Travel expenses and other charges.

    Charges are to be made to cover the cost of travel and other 
expenses incurred by the service in connection with rendering grading 
service. Such charges shall include the cost of transportation, per 
diem, and any other expenses.

[42 FR 2971, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 8, Jan. 2, 1981. Redesignated at 46 FR 63203, Dec. 
31, 1981]



Sec. 56.52  Continuous grading performed on a resident basis.

    Fees to be charged and collected for any grading service, other than 
for an appeal grading, on a resident grading basis, shall be those 
provided in this section. The fees to be charged for any appeal grading 
shall be as provided in Sec. 56.47.
    (a) Charges. The charges for the grading of shell eggs shall be paid 
by the applicant for the service and shall include items listed in this 
section as are applicable. Payment for the full cost of the grading 
service rendered to the applicant shall be made by the applicant to 
Agricultural Marketing Service, U.S. Department of Agriculture 
(hereinafter referred to as ``AMS''). Such full costs shall comprise 
such of the items listed in this section as are due and included in the 
bill or bills covering the period or periods during which the grading 
service was rendered. Bills will be rendered by the 10th day following 
the end of the period in which the service was rendered and are payable 
upon receipt.
    (1) An inauguration charge of $310 will be made at the time an 
application for service is signed except when the application is 
required because of a change in name or ownership. If service is not 
installed within 6 months from the date the application is filed, or if 
service is inactive due to an approved request for removal of a 
grader(s) for a period of 6 months, the application will be considered 
terminated, but a new application may be filed at any time. In addition 
there will be a charge of $300 if the application is terminated at the 
request of the applicant for reasons other than for a change in 
location, within 12 months from the date of the inauguration of service.
    (2) A charge for the salary and other costs, as specified in this 
paragraph, for each grader while assigned to a plant, except that no 
charge will be made when the assigned grader is temporarily reassigned 
by AMS to perform

[[Page 70]]

grading service for other than the applicant. Base salary rates will be 
determined on a national average for all official plants operating in 
States under a Federal Trust Fund Agreement where Federal graders, State 
graders, or a combination of Federal and State graders are used, by 
averaging the salary rates paid to each Federal or State grader assigned 
to such plants. Charges to plants are as follows:
    (i) For all regular hours of work scheduled and approved as an 
established tour of duty for a plant, the regular rate charge will be 
made. The regular rate charge will be determined by adding an amount to 
the base salary rate to cover the costs to AMS for such items as the 
Employer's Tax imposed under the U.S. Internal Revenue Code (26 U.S.C.) 
for Old Age and Survivor's Benefits under the Social Security System, 
retirement benefits, group life insurance, severance pay, sick leave, 
annual leave, additional salary and travel costs for relief grading 
service, accident payments, certain moving costs, and related servicing 
costs.
    (ii) All hours worked by an assigned grader or another grader in 
excess of the approved tour of duty, or worked on a nonscheduled 
workday, or actually worked on a holiday in excess of the tour of duty, 
will be considered as overtime. The charge for such overtime will be 150 
percent of the grader's base salary rate.
    (iii) For work performed on a holiday which is within the 
established tour of duty approved for a plant, the added charge will be 
the same as the grader's base rate.
    (iv) For work performed between 6 p.m. and 6 a.m., night 
differential charges (for regular, overtime, or holiday hours worked 
during this period) will be at the applicable rates established plus 10 
percent of the base rate.
    (v) For work performed on Sunday, Sunday differential charges (for 
regular, overtime, or holiday hours worked on Sunday) will be at the 
applicable rates established plus 25 percent of the base rate.
    (vi) For all hours of work performed in a plant without an approved 
tour of duty, the charge will be one of the applicable hourly rates in 
Sec. 56.46.
    (3) A charge at the hourly rates specified in Sec. 56.46, plus 
actual travel expenses incurred by AMS for intermediate surveys to firms 
without grading service in effect.
    (4) An administrative service charge based upon the aggregate number 
of 30-dozen cases of all shell eggs handled in the plant per billing 
period multiplied by $0.048, except that the minimum charge per billing 
period shall be $260 and the maximum charge shall be $2,675. The minimum 
charge also applies where an approved application is in effect and no 
product is handled.
    (b) Other provisions. (1) The applicant shall designate in writing 
the employees of the applicant who will be required and authorized to 
furnish each grader with such information as may be necessary for the 
performance of the grading service.
    (2) AMS will provide, as available, an adequate number of graders to 
perform the grading service. The number of graders required will be 
determined by AMS based on the expected demand for service.
    (3) The grading service shall be provided at the designated plant 
and shall be continued until the service is suspended, withdrawn, or 
terminated by:
    (i) Mutual consent;
    (ii) Thirty (30) days' written notice, by either the applicant or 
AMS specifying the date of suspension, withdrawal, or termination;
    (iii) One (1) day's written notice by AMS to the applicant if the 
applicant fails to honor any invoice within thirty (30) days after date 
of invoice covering the cost of the grading service; or
    (iv) Action taken by AMS pursuant to the provisions of Sec. 56.31.
    (4) Graders will be required to confine their activities to those 
duties necessary in the rendering of grading service and such closely 
related activities as may be approved by AMS: Provided, That in no 
instance may the graders assume the duties of management.

[34 FR 8232, May 28, 1969]

    Editorial Note: For Federal Register citations to Sec. 56.52, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.

[[Page 71]]



Sec. 56.53  Fees or charges for grading service performed under cooperative agreement.

    Fees or charges to be made to an applicant for grading service which 
differ from those listed in Secs. 56.45 through 56.54 shall be provided 
for by a cooperative agreement.

[36 FR 7894, Apr. 28, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.54  Charges for continuous grading performed on a nonresident basis.

    Fees to be charged and collected for grading service on a 
nonresident grading basis, shall be those provided in this section. The 
fees to be charged for any appeal grading shall be as provided in 
Sec. 56.47.
    (a) Charges. The charges for the grading of shell eggs shall be paid 
by the applicant for the service and shall include items listed in this 
section as are applicable. Payment for the full cost of the grading 
service rendered to the applicant shall be made by the applicant to the 
Agricultural Marketing Service, U.S. Department of Agriculture 
(hereinafter referred to as ``AMS''). Such full costs shall comprise 
such of the items listed in this section as are due and included in the 
bill or bills covering the period or periods during which the grading 
service was rendered. Bills will be rendered by the 10th day following 
the end of the billing period in which the service was rendered and are 
payable upon receipt.
    (1) A charge for the salary and other costs, as specified in this 
paragraph, for each grader while assigned to a plant, except that no 
charge will be made when the assigned grader is temporarily reassigned 
by AMS to perform grading service for other than the applicant. Base 
salary rates will be determined on a national average for all official 
plants operating in States under a Federal Trust Fund Agreement where 
Federal graders, State graders, or a combination of Federal and State 
graders are used, by averaging the salary rates paid to each Federal or 
State grader assigned to such plants. Charges to plants are as follows:
    (i) For all regular hours of work scheduled and approved as an 
established tour of duty for a plant, the regular rate charge will be 
made. The regular rate charge will be determined by adding an amount to 
the base salary rate to cover the costs to AMS for such items as the 
Employer's Tax imposed under the U.S. Internal Revenue Code (26 U.S.C.) 
for Old Age and Survivor's Benefits under the Social Security System, 
retirement benefits, group life insurance, severance pay, sick leave, 
annual leave, additional salary and travel costs for relief grading 
service, accident payments, certain moving costs, and related servicing 
costs.
    (ii) All hours worked by an assigned grader or another grader in 
excess of the approved tour of duty, or worked on a nonscheduled 
workday, or actually worked on a holiday in excess of the tour of duty, 
will be considered as overtime. The charge for such overtime will be 150 
percent of the grader's base salary rate.
    (iii) For work performed on a holiday which is within the 
established tour of duty approved for a plant, the added charge will be 
the same as the grader's base rate.
    (iv) For work performed between 6 p.m. and 6 a.m., night 
differential charges (for regular, overtime, or holiday hours worked 
during this period) will be at the applicable rates established plus 10 
percent of the base rate.
    (v) For work performed on Sunday, Sunday differential charges (for 
regular, overtime, or holiday hours worked on Sunday) will be at the 
applicable rates established plus 25 percent of the base rate.
    (vi) For all hours of work performed in a plant without an approved 
tour of duty, the charge will be one of the applicable hourly rates in 
Sec. 56.46.
    (2) An administrative service charge equal to 25 percent of the 
grader's total salary costs. A minimum charge of $260 will be made each 
billing period. The minimum charge also applies where an approved 
application is in effect and no product is handled.
    (b) Other provisions. (1) The applicant shall designate in writing 
the employees of the applicant who will be required and authorized to 
furnish each grader with such information as may be necessary for the 
performance of the grading service.

[[Page 72]]

    (2) AMS will provide, as available, an adequate number of graders to 
perform the grading service. The number of graders required will be 
determined by AMS based on the expected demand for service.
    (3) The grading service shall be provided at designated locations 
and shall be continued until the service is suspended, withdrawn, or 
terminated by:
    (i) Mutual consent;
    (ii) Thirty (30) days' written notice, by either the applicant or 
AMS specifying the date of suspension, withdrawal, or termination;
    (iii) One (1) day's written notice by AMS to the applicant if the 
applicant fails to honor any invoice within thirty (30) days after date 
of invoice covering the cost of the grading service; or
    (iv) Action taken by AMS pursuant to the provisions of Sec. 56.31.
    (4) Graders will be required to confine their activities to those 
duties necessary in the rendering of grading service and such closely 
related activities as may be approved by AMS: Provided, That in no 
instance may the graders assume the duties of management.
    (5) When similar nonresident grading services are furnished to the 
same applicant under part 55 or part 70 of this chapter, the charges 
listed in this section shall not be repeated.

[35 FR 19327, Dec. 22, 1970]

    Editorial Note: For Federal Register citations to Sec. 56.54, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.

                          Grading Certificates



Sec. 56.55  Grading certificates and sampling report forms.

    Grading certificates and sampling report forms shall be issued on 
forms approved by the Administrator.

[20 FR 673, Feb. 1, 1955. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.56  Grading certificate issuance.

    (a) Resident grading basis. Certificates will be issued only upon 
request therefor by the applicant or the Service. When requested, a 
grader shall issue a certificate covering product graded by him. 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 
his authorized agent, issue a grading certificate covering each product 
graded by him. 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 his own and the grader's 
name, e.g., ``John Doe by Richard Roe.''

[36 FR 9841, May 29, 1971, as amended at 36 FR 10937, June 5, 1971. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 56.57  Disposition of grading certificates.

    The original and a copy of each grading certificate, issued pursuant 
to Sec. 56.56, 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 person designated 
by him. Other copies shall be filed and retained in accordance with the 
disposition schedule for grading program records.

[36 FR 9842, May 29, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 46070, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982]



Sec. 56.58  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 
telegraphed to him, or

[[Page 73]]

to any person designated by him, at his expense.

[20 FR 673, Feb. 1, 1955. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]

                     Appeal of a Grading or Decision

    Source: Sections 56.60 through 56.66 appear at 35 FR 9918, June 17, 
1970, unless otherwise noted. Redesignated at 42 FR 32514, June 27, 
1977, and further redesignated at 46 FR 63203, Dec. 31, 1981.



Sec. 56.60  Who may request an appeal grading or review of a grader's decision.

    An appeal grading may be requested by any interested party who is 
dissatisfied with the determination by a grader of the class, quality, 
quantity, or condition of any product as evidenced by the USDA grademark 
and accompanying label, or as stated on a grading certificate and a 
review may be requested by the operator of an official plant with 
respect to a grader's decision or on any other matter related to grading 
in the official plant.



Sec. 56.61  Where to file an appeal.

    (a) Appeal from resident grader's grading or decision in an official 
plant. Any interested party who is not satisfied with the determination 
of the class, quality, quantity, or condition of product which was 
graded by a grader in an official plant and has not left such plant, and 
the operator of any official plant who is not satisfied with a decision 
by a grader on any other matter related to grading in such plant may 
request an appeal grading or review of the decision by the grader by 
filing such request with the grader's immediate supervisor.
    (b) All other appeal requests. Any interested party who is not 
satisfied with the class, quality, quantity, or condition of product 
which has left the official plant where it was graded or which was 
graded other than in an official plant may request an appeal grading by 
filing such request in the area where the product is located or with the 
Chief of the Grading Branch.



Sec. 56.62  How to file an appeal.

    Any request for an appeal grading or review of a grader's decision 
may be made orally or in writing. If made orally, written confirmation 
may be required. The applicant shall clearly state the reasons for 
requesting the appeal service and a description of the product, or the 
decision which is questioned. If such appeal request is based on the 
results stated on an official certificate, the original and all 
available copies of the certificate shall be returned to the appeal 
grader assigned to make the appeal grading.



Sec. 56.63  When an application for an appeal grading may be refused.

    When it appears to the official with whom an appeal request is filed 
that the reasons given in the request are frivolous or not substantial, 
or that the quality or condition of the product has undergone a material 
change since the original grading, or that the original lot has changed 
in some manner, or the Act or the regulations in this part have not been 
complied with, the applicant's request for the appeal grading may be 
refused. In such case, the applicant shall be promptly notified of the 
reason(s) for such refusal.



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 
a licensed grader assigned by the immediate supervisor other than the 
grader whose grading or decision is being appealed.
    (b) Appeal gradings requested under Sec. 56.61(b) shall be performed 
by a grader other than the grader who originally graded the product.
    (c) Whenever practical, an appeal grading shall be conducted jointly 
by two graders. The assignment of the grader(s) who will make the appeal 
grading requested under Sec. 56.61(b) shall be made by the regional 
director or the Chief of the Grading Branch.

[35 FR 9918, June 17, 1970, as amended at 40 FR 20056, May 8, 1975. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981]



Sec. 56.65  Procedures for appeal gradings.

    (a) When all of the originally graded and identified samples are 
available, the appeal sample shall consist of such

[[Page 74]]

samples plus an equal number of samples.
    (b) When the original samples are not available, the appeal sample 
size for the lot shall consist of double the samples required in 
Sec. 56.4(b).
    (c) Shell eggs shall not have been moved from the original place of 
grading and must have been maintained under adequate refrigeration and 
humidity conditions.

[35 FR 9918, June 17, 1970. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 46070, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982]



Sec. 56.66  Appeal grading certificates.

    Immediately after an appeal grading is completed, an appeal 
certificate shall be issued to show that the original grading was 
sustained or was not sustained. Such certificate shall supersede any 
previously issued certificate for the product involved and shall clearly 
identify the number and date of the superseded certificate. The issuance 
of the appeal certificate may be withheld until any previously issued 
certificate and all copies have been returned when such action is deemed 
necessary to protect the interest of the Government. When the appeal 
grader assigns a different grade to the lot, the existing grade mark 
shall be changed or obliterated as necessary. When the appeal grader 
assigns a different class or quantity designation to the lot, the 
labeling shall be corrected.

                          Facility Requirements



Sec. 56.75  Applicability of facility and operating requirements.

    The provisions of Sec. 56.76 shall be applicable to any grading 
service that is provided on a resident basis.

[28 FR 6345, June 20, 1963. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 56.76  Minimum facility and operating requirements for shell egg grading and packing plants.

    (a) General requirements for buildings and plant facilities. (1) 
Buildings shall be of sound construction so as to prevent, insofar as 
practicable, the entrance or harboring of vermin.
    (2) Grading and packing rooms shall be of sufficient size to permit 
installation of necessary equipment and the conduct of grading and 
packing in a sanitary manner. These rooms shall be kept reasonably clean 
during grading and packing operations and shall be thoroughly cleaned at 
the end of each operating day.
    (3) Adequate lavatory and toilet accommodations shall be provided. 
Toilet and locker rooms shall be maintained in a clean and sanitary 
condition. Hot and cold running water shall be provided. Rooms shall be 
ventilated to the outside of the building. Signs shall be posted in the 
rest rooms instructing employees to wash their hands before returning to 
work.
    (4) A separate refuse room or a designated area for the accumulation 
of trash must be provided in plants which do not have a system for the 
daily removal or destruction of such trash.
    (5) Wood benches, platforms, etc., in areas which are subjected to 
moisture and which develop odors shall be replaced with equipment of 
metal construction. Wood walls or partitions which develop odors shall 
be replaced with materials impervious to moisture. Newly constructed 
plants should be equipped with metal benches, platforms, etc., in areas 
which are subjected to moisture.
    (b) Grading room requirements. (1) The egg grading or candling area 
shall be adequately darkened to make possible the accurate quality 
determination of the candled appearance of eggs. There shall be no other 
light source or reflections of light that interfere with, or prohibit 
the accurate quality determination of eggs in the grading or candling 
area.
    (2) The grading and candling equipment shall provide adequate light 
to facilitate quality determinations. Other light sources and equipment 
or facilities shall be provided to permit the detection and removal of 
stained and dirty eggs or other undergrade eggs.
    (3) Adequate facilities, equipment, and light sources shall be 
provided to determine the condition of packing material.
    (4) Egg weighing equipment shall be provided. The egg weighing 
equipment

[[Page 75]]

shall be constructed to permit cleaning; operation in a clean, sanitary 
manner; and shall be capable of ready adjustment.
    (5) Adequate ventilation shall be provided.
    (c) Cooler room requirements. (1) Cooler rooms shall be refrigerated 
and capable of maintaining an ambient temperature no greater than 45 
deg.F (7.2  deg.C). Accurate thermometers shall be provided for 
monitoring cooler room temperatures.
    (2) Cooler rooms shall be free from objectionable odors and from 
mold, and shall be maintained in a sanitary condition.
    (3) All shell egg coolers shall be equipped with a hygrometer or 
portable equipment such as a psychrometer shall be available to 
determine the relative humidity. Humidifying equipment capable of 
maintaining a relative humidity which will minimize shrinkage shall be 
provided.
    (d) Shell egg protecting operations. Shell egg protecting (oil 
processing) operations shall be conducted in a manner to avoid 
contamination of the product and maximize conservation of its quality.
    (1) Eggs with excess moisture on the shell shall not be shell 
protected.
    (2) Oil having any off odor, or that is obviously contaminated, 
shall not be used in shell egg protection.
    (3) Processing oil that has been previously used and which has 
become contaminated shall be filtered and heat treated at 180  deg.F. 
for 3 minutes prior to use.
    (4) Shell egg processing equipment shall be washed, rinsed, and 
treated with a bactericidal agent each time the oil is removed. It is 
preferable to filter and heat treat processing oil and clean processing 
equipment daily when in use.
    (5) Adequate coverage and protection against dust and dirt shall be 
provided when the equipment is not in use.
    (e) Shell egg cleaning operations. (1) Shell egg cleaning equipment 
shall be kept in good repair and shall be cleaned after each day's use 
or more frequently, if necessary.
    (2) The temperature of the wash water shall be maintained at 90 
deg.F. or higher, and shall be at least 20  deg.F. warmer than the 
temperature of the eggs to be washed. These temperatures shall be 
maintained throughout the cleaning cycle.
    (3) An approved cleaning compound shall be used in the wash water. 
(The use of metered equipment for dispensing the compound into solution 
is recommended.)
    (4) Wash water shall be changed approximately every 4 hours or more 
often if needed to maintain sanitary conditions, and at the end of each 
shift. Remedial measures shall be taken to prevent excess foaming during 
the egg washing operation.
    (5) Replacement water shall be added continuously to the wash water 
of washers. Rinse water, chlorine, or quaternary sanitizing rinse may be 
used as part of the replacement water, provided, they are compatible 
with the washing compound. Iodine sanitizing rinse may not be used as 
part of the replacement water.
    (6) Only potable water may be used to wash eggs. Each official plant 
shall submit certification to the national office stating that their 
water supply is potable. An analysis of the iron content of the water 
supply, stated in parts per million, is also required. When the iron 
content exceeds 2 parts per million, equipment shall be provided to 
correct the excess iron content. Frequency of testing shall be 
determined by the Administrator. When the water source is changed, new 
tests are required.
    (7) Waste water from the egg washing operation shall be piped 
directly to drains.
    (8) The washing and drying operation shall be continuous and shall 
be completed as rapidly as possible. Eggs shall not be allowed to stand 
or soak in water. Immersion-type washers shall not be used.
    (9) Prewetting shell eggs prior to washing may be accomplished by 
spraying a continuous flow of water over the eggs in a manner which 
permits the water to drain away or other methods which may be approved 
by the Administrator. The temperature of the water shall be the same as 
prescribed in this section.
    (10) Washed eggs shall be spray-rinsed with water having a 
temperature equal

[[Page 76]]

to, or warmer than, the temperature of the wash water and contain an 
approved sanitizer of not less than 50 p/m nor more than 200 p/m of 
available chlorine or its equivalent. Alternate procedures, in lieu of a 
sanitizer rinse, may be approved by the National Supervisor.
    (11) Test kits shall be provided and used to determine the strength 
of the sanitizing solution.
    (12) During any rest period, eggs shall be removed from the washing 
and rinsing area of the egg washer and from the scanning area whenever 
there is a buildup of heat.
    (13) Washed eggs shall be reasonably dry before cartoning or casing.
    (14) When steam or vapors originate from the washing operation, they 
shall be continuously and directly removed to the outside of the 
building.
    (f) Requirements for eggs that are to be officially identified. (1) 
Shell eggs that are to be officially identified as U.S. Grade AA, A, or 
B shall be placed under refrigeration at an ambient temperature no 
greater than 45  deg.F (7.2  deg.C) promptly after packaging. Shell eggs 
officially identified as U.S. Grade AA, A, or B, when shipped between 
official plants, shall be transported at an ambient temperature no 
greater than 45  deg.F (7.2  deg.C).
    (2) Every reasonable precaution shall be exercised to prevent 
``sweating'' of eggs.
    (3) Eggs that are to be officially identified as U.S. Grade AA, A, 
or B shall be packaged only in new or good used cases and packing 
materials. Cases and packing materials must be reasonably clean, free of 
mold, mustiness, and off odors, and must be of sufficient strength and 
durability to adequately protect the eggs during normal distribution.
    (g) The following substances used in the plant shall be approved and 
handled in accordance with the manufacturer's instructions: Pesticides, 
insecticides, rodenticides, cleaning compounds, destaining compounds, 
foam control compounds, sanitizers, and inks and oils coming into 
contact with the product.

[20 FR 674, Feb. 1, 1955, as amended at 22 FR 8168, Oct. 16, 1957; 28 FR 
6346, June 20, 1963; 32 FR 8232, June 8, 1967; 35 FR 5664, Apr. 8, 1970; 
40 FR 20056, May 8, 1975. Redesignated at 42 FR 32514, June 27, 1977, as 
amended at 46 FR 39571, Aug. 4, 1981. Redesignated at 46 FR 63203, Dec. 
31, 1981, as amended at 47 FR 46070, Oct. 15, 1982; 47 FR 54421, Dec. 3, 
1982; 60 FR 12402, Mar. 7, 1995; 63 FR 13331, Mar. 19, 1998; 64 FR 
56947, Oct. 22, 1999]



Sec. 56.77  Health and hygiene of personnel.

    (a) No person known to be affected by a communicable or infectious 
disease shall be permitted to come in contact with the product.
    (b) Plant personnel coming into contact with the product shall wear 
clean clothing.

[32 FR 8232, June 8, 1967. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



PART 57--INSPECTION OF EGGS (EGG PRODUCTS INSPECTION ACT)--Table of Contents




         Subpart A--Regulations Governing the Inspection of Eggs

                               Definitions

Sec.
57.1  Meaning of words.
57.5  Terms defined.

                             Administration

57.10  Authority.
57.13  Federal and State cooperation.
57.17  Nondiscrimination.
57.18  OMB control number.

                           Scope of Inspection

57.20  Inspection in accordance with methods prescribed or approved.
57.22  Basis of service.
57.28  Other inspections.

                      Relation to Other Authorities

57.35  Eggs outside official plants.

            Eggs and Egg Products Not Intended for Human Food

57.45  Prohibition on eggs and egg products not intended for use as 
          human food.

[[Page 77]]

                       Refrigeration of Shell Eggs

57.50  Temperature and labeling Requirements.

                               Exemptions

57.100  Specific exemptions.
57.105  Suspension or termination of exemptions.

                         Performance of Service

57.110  Licensed inspectors.
57.112  Suspension of license or authority; revocation.
57.114  Surrender of license.
57.116  Activities of inspectors.
57.118  Identification.
57.119  Political activity.
57.120  Financial interest of inspectors.
57.132  Access to plants.
57.134  Accessibility of product.

Records and Related Requirements for Egg Handlers and Related Industries

57.200  Records and related requirements.
57.220  Information and assistance to be furnished to inspectors.

                        Administrative Detention

57.240  Detaining product.

                   Appeal of an Inspection or Decision

57.300  Who may request an appeal inspection or review of an inspector's 
          decision.
57.310  Where to file an appeal.
57.320  How to file an appeal.
57.330  When an application for an appeal grading or inspection may be 
          refused.
57.340  Who shall perform the appeal.
57.350  Procedures for selecting appeal samples.
57.360  Appeal inspection certificates.
57.370  Cost of appeals.

                     Identifying and Marking Product

57.410  Shell eggs required to be labeled.

                                Retention

57.426  Retention.

                         Processing Requirements

57.504  General operating procedures.

                   Registration of Shell Egg Handlers

57.690  Persons required to register.

              Inspection and Disposition of Restricted Eggs

57.700  Prohibition on disposition of restricted eggs.
57.720  Disposition of restricted eggs.
57.760  Inspection of egg handlers.

Identification of Restricted Eggs or Egg Products Not Intended for Human 
                               Consumption

57.800  Identification of restricted eggs.
57.801  Nest run or washed ungraded eggs.
57.840  Identification of inedible, unwholesome, or adulterated egg 
          products.
57.860  Identification wording.

                                 Imports

57.900  Requirements for importation of restricted eggs into the United 
          States.
57.905  Importation of restricted eggs or eggs containing more 
          restricted eggs than permitted in the official standards for 
          U.S. Consumer Grade B.
57.915  Foreign inspection certification required.
57.920  Importer to make application for inspection of imported eggs.
57.925  Inspection of imported eggs.
57.930  Imported eggs; retention in customs custody; delivery under 
          bond; movement prior to inspection; sealing; handling; 
          facilities, and assistance.
57.935  Means of conveyance and equipment used in handling eggs to be 
          maintained in sanitary condition.
57.945  Foreign eggs offered for importation; reporting of findings to 
          customs; handling of products refused entry.
57.950  Labeling of containers of eggs for importation.
57.955  Labeling of shipping containers of eggs for importation.
57.960  Small importations for consignee's personal use, display, or 
          laboratory analysis.
57.965  Returned U.S. inspected and marked products; not importations.
57.970  Charges for storage, cartage, and labor with respect to products 
          imported contrary to the Act.

    Subpart B--Rules of Practice Governing Proceedings Under the Egg 
                         Products Inspection Act

              Scope and Applicability of Rules of Practice

57.1000  Administrative proceedings.

    Authority: 21 U.S.C. 1031-1056.

    Source: 63 FR 69968, Dec. 17, 1998, unless otherwise noted.

    Editorial Note: 1. At 63 FR 69969, Dec. 17, 1998, part 57 was added 
by duplicating portions of part 59. At 63 FR 72353, Dec. 31, 1998, part 
59 was redesignated as part 590 of 9 CFR.

    2. Nomenclature changes to part 57 appear at 63 FR 69971, Dec. 17, 
1998.

[[Page 78]]



         Subpart A--Regulations Governing the Inspection of Eggs

                               Definitions



Sec. 57.1  Meaning of words.

    Under these regulations, words in the singular shall be deemed to 
mean the plural and vice versa, as the case may demand.



Sec. 57.5  Terms defined.

    For the purpose of these regulations, unless the context otherwise 
requires, the following terms shall be construed, respectively, as 
follows:
    Acceptable means suitable for the purpose intended and acceptable to 
the Administrator.
    Act means the applicable provisions of the Egg Products Inspection 
Act (Pub. L. 91-597, 84 Stat. 1620 et seq.).
    Administrator means the Administrator of the Agricultural Marketing 
Service of the Department or any other officer or employee of the 
Department to whom there has heretofore been delegated, or to whom there 
may hereafter be delegated the authority to act in his stead.
    Adulterated means any egg or egg product under one or more of the 
following circumstances:
    (a) If it bears or contains any poisonous or deleterious substance 
which may render it injurious to health; but in case the substance is 
not an added substance, such article shall not be considered adulterated 
under this clause if the quantity of such substance in or on such 
article does not ordinarily render it injurious to health;
    (b)(1) If it bears or contains any added poisonous or added 
deleterious substance (other than one which is (i) a pesticide chemical 
in or on a raw agricultural commodity; (ii) a food additive; or (iii) a 
color additive) which may in the judgment of the Secretary, make such 
article unfit for human food;
    (2) If it is, in whole or in part, a raw agricultural commodity and 
such commodity bears or contains a pesticide chemical which is unsafe 
within the meaning of section 408 of the Federal Food, Drug, and 
Cosmetic Act;
    (3) If it bears or contains any food additive which is unsafe within 
the meaning of section 409 of the Federal Food, Drug, and Cosmetic Act;
    (4) If it bears or contains any color additive which is unsafe 
within the meaning of section 706 of the Federal Food, Drug, and 
Cosmetic Act: Provided, that an article which is not otherwise deemed 
adulterated under paragraph (b)(2), (3), or (4) of this definition shall 
nevertheless be deemed adulterated if use of the pesticide chemical, 
food additive, or color additive, in or on such article, is prohibited 
by regulations of the Secretary in official plants;
    (c) If it consists in whole or in part of any filthy, putrid, or 
decomposed substance, or if it is otherwise unfit for human food;
    (d) If it has been prepared, packaged, or held under insanitary 
conditions whereby it may have become contaminated with filth, or 
whereby it may have been rendered injurious to health;
    (e) If it is an egg which has been subjected to incubation or the 
product of any egg which has been subjected to incubation;
    (f) If its container is composed, in whole or in part of any 
poisonous or deleterious substance which may render the contents 
injurious to health;
    (g) If it has been intentionally subjected to radiation, unless the 
use of the radiation was in conformity with a regulation or exemption in 
effect pursuant to section 409 of the Federal Food, Drug, and Cosmetic 
Act; or
    (h) If any valuable constituent has been, in whole or in part, 
omitted or abstracted therefrom; or if any substance has been 
substituted, wholly or in part therefor; or if damage or inferiority has 
been concealed in any manner; or if any substance has been added thereto 
or mixed or packed therewith so as to increase its bulk or weight, or 
reduce its quality or strength, or make it appear better or of greater 
value than it is.
    Ambient temperature means the air temperature maintained in an egg 
storage facility or transport vehicle.
    Applicant means any person who requests any inspection service as 
authorized under the Act or the regulations of this part.

[[Page 79]]

    Capable of use as human food means any egg or egg product, unless it 
is denatured, or otherwise identified, as required by these regulations 
to deter its use as human food.
    Chief of the Grading Branch means Chief of the Poultry Grading 
Branch, Poultry Division, Agricultural Marketing Service.
    Class means any subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same 
kind, type, or method of processing.
    Commerce means interstate, foreign, or intrastate commerce.
    Condition means any condition (including, but not being limited to, 
the state of preservation, cleanliness, soundness, wholesomeness, or 
fitness for human food) of any product which affects its 
merchantability; or any condition, including but not being limited to, 
the processing, handling, or packaging which affects such product.
    Container or Package includes for egg products, any box, can, tin, 
plastic, or other receptacle, wrapper, or cover and for shell eggs, any 
carton, basket, case, cart, pallet, or other receptacle.
    (a) Immediate container means any package or other container in 
which egg products or shell eggs are packed for household or other 
ultimate consumers.
    (b) Shipping container means any container used in packing an 
immediate container.
    Department means the U.S. Department of Agriculture.
    Dirty egg or Dirties means an egg(s) that has an unbroken shell with 
adhering dirt or foreign material.
    Egg means the shell egg of the domesticated chicken, turkey, duck, 
goose, or guinea. Some of the terms applicable to shell eggs are as 
follows:
    (a) Check means an egg that has a broken shell or crack in the shell 
but has its shell membranes intact and contents not leaking.
    (b) Clean and sound shell egg means any egg whose shell is free of 
adhering dirt or foreign material and is not cracked or broken.
    (c) Dirty egg or Dirties means an egg(s) that has a shell that is 
unbroken and has adhering dirt, foreign material, or prominent stains.
    (d) Incubator reject means an egg that has been subjected to 
incubation and has been removed from incubation during the hatching 
operations as infertile or otherwise unhatchable.
    (e) Inedible means eggs of the following descriptions: Black rots, 
yellow rots, white rots, mixed rots, sour eggs, eggs with green whites, 
eggs with stuck yolks, moldy eggs, musty eggs, eggs showing blood rings, 
and eggs containing embryo chicks (at or beyond the blood ring stage).
    (f) Leaker means an egg that has a crack or break in the shell and 
shell membranes to the extent that the egg contents are exposed or are 
exuding or free to exude through the shell.
    (g) Loss means an egg that is unfit for human food because it is 
smashed or broken so that its contents are leaking; or overheated, 
frozen, or contaminated; or an incubator reject; or because it contains 
a bloody white, large meat spots, a large quantity of blood, or other 
foreign material.
    (h) Restricted egg means any check, dirty egg, incubator reject, 
inedible, leaker, or loss.
    Egg handler means any person, excluding the ultimate consumer, who 
engages in any business in commerce that involves buying or selling any 
eggs (as a poultry producer or otherwise), or processing any egg 
products, or otherwise using any eggs in the preparation of human food.
    Egg product means any dried, frozen, or liquid eggs, with or without 
added ingredients, excepting products which contain eggs only in a 
relatively small proportion or historically have not been, in the 
judgment of the Secretary, considered by consumers as products of the 
egg food industry, and which may be exempted by the Secretary under such 
conditions as he may prescribe to assure that the egg ingredients are 
not adulterated and such products are not represented as egg products. 
For the purposes of this part, the following products, among others, are 
exempted as not being egg products: Freeze-dried products, imitation egg 
products, egg substitutes, dietary foods, dried no-bake custard mixes, 
egg nog mixes, acidic dressings, noodles, milk and egg dip, cake mixes, 
French toast, and sandwiches containing eggs or egg

[[Page 80]]

products, provided, such products are prepared from inspected egg 
products or eggs containing no more restricted eggs than are allowed in 
the official standards for U.S. Consumer Grade B shell eggs. Balut and 
other similar ethnic delicacies are also exempted from inspection under 
this part.
    Eggs of current production means shell eggs which have moved through 
the usual marketing channels since the time they were laid and are not 
in excess of 60 days old.
    Fair Packaging and Labeling Act means the Act so entitled, approved 
November 3, 1966 (80 Stat. 1296), and Acts amendatory thereof or 
supplementary thereto.
    Federal Food, Drug, and Cosmetic Act means the Act so entitled, 
approved June 25, 1938 (52 Stat. 1040), and Acts amendatory thereof or 
supplementary thereto.
    Inspection means the application of such inspection methods and 
techniques as are deemed necessary by the responsible Secretary to carry 
out the provisions of the Egg Products Inspection Act and the 
regulations under this part.
    Inspection service means the official service within the Department 
having the responsibility for carrying out the provisions of the Egg 
Products Inspection Act. Inspection service also means the activities 
performed, including official reporting by such official service.
    Inspector/Grader means:
    (a) Any employee or official of the United States Government 
authorized to inspect eggs or egg products under the authority of this 
part; or
    (b) Any employee or official of the government of any State or local 
jurisdiction authorized by the Secretary to inspect eggs or egg products 
under the authority of this part, under an agreement entered into 
between the Secretary and the appropriate State or other agency.
    Interested party means any person financially interested in a 
transaction involving any inspection or appeal inspection of any 
product, or the decision of an inspector.
    Label means a display of any printed, graphic, or other method of 
identification upon the shipping container, if any, or upon the 
immediate container, including but not limited to, an individual 
consumer package of eggs and egg products, or accompanying such product.
    Misbranded means any egg products which are not labeled and packaged 
in accordance with the requirements prescribed by regulations of the 
Administrator under this part.
    National Supervisor means:
    (a) The officer in charge of the inspection service; and
    (b) Such other employee of the Service as may be designated by him.
    Nest-run eggs means eggs which are packed as they come from the 
production facilities without having been washed, sized and/or candled 
for quality, with the exception that some checks, dirties, or other 
obvious undergrades may have been removed.
    Official certificate means any certificate prescribed by regulations 
of the Administrator for issuance by an inspector or other person 
performing official functions under this part.
    Official device means any device prescribed or authorized by the 
Secretary for use in applying any official mark.
    Official identification means the official inspection mark or any 
other symbol prescribed by regulations of this part to identify the 
status of any article.
    Official inspection mark means any symbol prescribed by the 
regulations of the Administrator showing that egg products were 
inspected in accordance with this part.
    Official standards means the standards of quality, grades, and 
weight classes for eggs.
    Office of inspection means the office of any inspector.
    Pasteurize means the subjecting of each particle of egg products to 
heat or other treatments to destroy harmful viable microorganisms by 
such processes as may be prescribed by these regulations.
    Person means any individual, partnership, corporation, association, 
or other business unit.
    Pesticide chemical, Food additive, Color additive, and Raw 
agricultural commodity shall have the same meaning for purposes of this 
part as under the Federal Food, Drug, and Cosmetic Act.

[[Page 81]]

    Plant means any place of business where egg products are processed:
    (a) Exempted plant means any plant where the Administrator has 
determined the facilities and operating procedures meet such standards 
as may be prescribed by this part, and where the eggs received or used 
in the manufacture of egg products contain no more restricted eggs than 
are allowed by the official standards of U.S. Consumer Grade B for shell 
eggs, and where an exemption has been granted.
    (b) Official plant means any plant in which the plant facilities, 
methods of operation and sanitary procedures have been found suitable 
and adequate by the Administrator for the continuous inspection of egg 
products in accordance with this part and in which inspection service is 
carried on.
    Potable water means water that has been approved by a State health 
authority or other agency or laboratory acceptable to the Administrator 
as safe for drinking and suitable for food processing.
    Processing means manufacturing of egg products, including breaking 
eggs or filtering, mixing, blending, pasteurizing, stabilizing, cooling, 
freezing or drying, or packaging egg products at official plants.
    Producer-packer means any producer who sorts eggs only from his own 
production and packs them into their various qualities.
    Quality means the inherent properties of any product which determine 
its relative degree of excellence.
    Regional Director means any employee of the Department in charge of 
inspection service in a designated geographical region.
    Regulations means the provisions in this part.
    Regulatory inspector means any employee of the U.S. Government, or 
State or local jurisdiction, who is authorized by the Secretary to make 
such inspections as required in Sec. 57.28 of these regulations.
    Sampling means the act of taking samples of any product for 
inspection or analyses.
    Sanitize means the application of a bactericidal treatment which is 
approved as being effective in destroying microorganisms, including 
pathogens.
    Secretary means the Secretary of Agriculture or his delegate.
    Service means the Agricultural Marketing Service (AMS) of the 
Department.
    Shell egg packer (grading station) means any person engaged in the 
sorting of eggs from sources other than or in addition to his own 
production into their various qualities, either mechanically or by other 
means.
    Stabilization means the subjection of any egg product to a 
desugaring process.
    State means any State of the United States, the Commonwealth of 
Puerto Rico, the Virgin Islands of the United States, and the District 
of Columbia.
    Ultimate consumer means any household consumer, restaurant, 
institution, or any other party who has purchased or received shell eggs 
or egg products for consumption.
    United States means the States.
    Washed ungraded eggs means eggs which have been washed but not sized 
or segregated for quality.
    White or albumen means, for the purpose of this part, the product 
obtained from the egg as broken from the shell and separated from the 
yolk.

[63 FR 69968, 69970, Dec. 17, 1998]

                             Administration



Sec. 57.10  Authority.

    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 Act, and this 
part. The Administrator may waive for a limited period any particular 
provisions of the regulations to permit experimentation so that new 
procedures, equipment, and processing techniques may be tested to 
facilitate definite improvements and at the same time to maintain full 
compliance with the spirit and intent of the regulations. The 
Agricultural Marketing Service and its officers and employees shall not 
be liable in damages through acts of commission or omission in the 
administration of this part.



Sec. 57.13  Federal and State cooperation.

    The Secretary shall, whenever he determines that it would effectuate 
the

[[Page 82]]

purposes of the Act, authorize the Administrator to cooperate with 
appropriate State and other governmental agencies in carrying out any 
provisions of the Egg Products Inspection Act and these regulations. In 
carrying out the provisions of the Act and the regulations, the 
Secretary may conduct such examinations, investigations, and inspections 
as he determines practicable through any officer or employee of any such 
agency commissioned by him for such purpose. The Secretary shall 
reimburse the States and other agencies for the services rendered by 
them in such cooperative programs as agreed to in the cooperative 
agreements as signed by the Administrator and the duly authorized agent 
of the State or other agency.



Sec. 57.17  Nondiscrimination.

    The conduct of all services and the licensing of graders and 
inspectors under these regulations shall be accomplished without 
discrimination as to race, color, religion, sex, national origin, age, 
or disability.



Sec. 57.18  OMB control number.

    The information collection requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 0581-0113.

[63 FR 69970, Dec. 17, 1998]

                           Scope of Inspection



Sec. 57.20  Inspection in accordance with methods prescribed or approved.

    Inspection of eggs shall be rendered pursuant to these regulations 
and under such conditions and in accordance with such methods as may be 
prescribed or approved by the Administrator.

[63 FR 69968, 69970, Dec. 17, 1998]



Sec. 57.22  Basis of service.

    These regulations provide for inspection services pursuant to the 
Egg Products Inspection Act. Eggs and egg products shall be inspected in 
accordance with such standards, methods, and instructions as may be 
issued or approved by the Administrator. Inspection services shall be 
subject to supervision at all times by the applicable Federal-State 
supervisor, egg products supervisor, Regional Director, and National 
Supervisor.



Sec. 57.28  Other inspections.

    (a) Periodic inspections shall be made of:
    (1) Business premises, facilities, inventories, operations, 
transport vehicles, and records of egg handlers, and the records of all 
persons engaged in the business of transporting, shipping, or receiving 
any eggs or egg products. In the case of shell egg packers packing eggs 
for the ultimate consumer, such inspections shall be made a minimum of 
once each calendar quarter. Hatcheries are to be inspected a minimum of 
once each fiscal year.
    (2) [Reserved]
    (b) Inspections shall be made of imported eggs as required in this 
part.

[63 FR 69968, 69970, Dec. 17, 1998]

                      Relation to Other Authorities



Sec. 57.35  Eggs outside official plants.

    (a) For eggs which have moved or are moving in interstate or foreign 
commerce, no State or local jurisdiction (1) may require the use of 
standards of quality, condition, grade, or weight classes which are in 
addition to or different than the official standards or (2) other than 
those in noncontiguous areas of the United States may require labeling 
to show the State or other geographical area of production or origin. 
This shall not preclude a State from requiring the name, address, and 
license number of the person processing or packaging eggs to be shown on 
each container.
    (b) Any State or local jurisdiction may exercise jurisdiction with 
respect to eggs and egg products for the purpose of preventing the 
distribution for human food purposes of any such articles which are 
outside of the official plant and are in violation of this part or any 
of said Federal Acts or any State or local law consistent therewith.

[[Page 83]]

            Eggs and Egg Products Not Intended for Human Food



Sec. 57.45  Prohibition on eggs and egg products not intended for use as human food.

    (a) No person shall buy, sell, or transport or offer to buy or sell, 
or offer or receive for transportation in commerce, any eggs or egg 
products which are not intended for use as human food, unless they are 
denatured or decharacterized, unless shipped under seal as authorized in 
Secs. 57.504(c) and 57.720(a) and identified as required by the 
regulations in this part.
    (b) No person shall import or export shell eggs classified as loss, 
inedible, or incubator rejects unless they are denatured or 
decharacterized and identified as required by the regulations in this 
part.

[63 FR 69968, 69970, Dec. 17, 1998]

                       Refrigeration of Shell Eggs



Sec. 57.50  Temperature and labeling requirements.

    (a) No shell egg handler shall possess any shell eggs that are 
packed into containers destined for the ultimate consumer unless they 
are stored and transported under refrigeration at an ambient temperature 
of no greater than 45 deg.F (7.2 deg.C).
    (b) No shell egg handler shall possess any shell eggs that are 
packed into containers destined for the ultimate consumer unless they 
are labeled to indicate that refrigeration is required.
    (c) Any producer-packer with an annual egg production from a flock 
of 3,000 or fewer hens is exempt from the temperature and labeling 
requirements of this section.

                               Exemptions



Sec. 57.100  Specific exemptions.

    The following are exempt to the extent prescribed as to the 
provisions for control of restricted eggs in section 8(a)(1) and (2) of 
the Act: Provided, That as to paragraphs (c) through (f) of this 
section, the exemptions do not apply to restricted eggs when prohibited 
by State or local law: And provided further, That the sale of ``hard-
cooked shell eggs'' or ``peeled hard-cooked shell eggs'' prepared from 
checks is subject to the conditions for exemption in paragraphs (c), 
(d), and (f) of this section: And provided further, That the conditions 
for exemption and provisions of these regulations are met:
    (a) The sale, transportation, possession, or use of eggs which 
contain no more restricted eggs than are allowed by the tolerances in 
the official standards for U.S. Consumer Grade B shell eggs;
    (b) [Reserved]
    (c) The sale at the site of production, on a door-to-door retail 
route, or at an established place of business away from the site of 
production, by a poultry producer of eggs from his own flock's 
production directly to a household consumer exclusively for use by such 
consumer and members of his household and his nonpaying guests and 
employees, and the transportation, possession, and use of such eggs: 
Provided, That each such sale of restricted eggs shall be limited to no 
more than 30 dozen eggs; And provided further, (1) That eggs sold 
directly to consumers at an established place of business away from the 
site of production be moved directly from the producer to such place of 
business; (2) that such business away from the site of production be 
owned and managed by the producer; and (3) that such eggs which are sold 
on a door-to-door route or at an established place of business away from 
the site of production shall contain no more loss and/or leakers than 
allowed in the official standards for U.S. Consumer Grade B shell eggs.
    (d) The sale of eggs by any producer with an annual egg production 
from a flock of 3,000 hens or less and the record requirements of 
Sec. 57.200;
    (e) The processing and sale of egg products by any poultry producer 
from eggs of his own flock's production when sold directly to a 
household consumer exclusively for use by such consumer and members of 
his household and his nonpaying guests and employees;
    (f) The sale of eggs by shell egg packers on the premises where the 
grading station is located, directly to household consumers for use by 
such consumer and members of his household and his nonpaying guests and 
employees, and the transportation, possession,

[[Page 84]]

and use of such eggs. Each such sale of ``restricted eggs'': Shall be 
limited to no more than 30 dozen eggs;
    (g) The processing in nonofficial plants, including but not limited 
to bakeries, restaurants, and other food processors, without continuous 
inspection, of certain categories of food products which contain eggs or 
egg products as an ingredient, and the sale and possession of such 
products: Provided, That such products are manufactured from inspected 
egg products processed in accordance with this part or from eggs 
containing no more restricted eggs than are allowed in the official 
standards for U.S. Consumer Grade B shell eggs;
    (h) The purchase, sale, possession, or transportation of shell eggs 
containing more restricted eggs than allowed in the tolerances for U.S. 
Consumer Grade B shell eggs: Provided, That such eggs are handled in 
accordance with Secs. 57.200 and 57.700 through 57.860 to assure that 
only eggs fit for human food are used for such purpose. This exemption 
applies to the following:
    (1) Egg producers, assemblers, wholesalers, and grading operations;
    (2) Hatcheries;
    (3) Transporters;
    (4) Laboratories, pharmaceutical companies; and
    (5) Processors of products not intended for use as human food.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.105  Suspension or termination of exemptions.

    (a) The Administrator may immediately suspend or terminate any 
exemption under Sec. 57.100(b) at any time with respect to any person, 
if the conditions of exemption prescribed by this section are not being 
met. The Administrator may modify or revoke any regulation of this part, 
granting exemptions whenever he determines such action appropriate to 
effectuate the purposes of the Act.
    (b) Failure to comply with the condition of the exemptions contained 
in Sec. 57.100 shall subject such person to the penalties provided for 
in the Act and in this part.

                         Performance of Service



Sec. 57.110  Licensed inspectors.

    (a) Any person who is a Federal or State employee, or the employee 
of a local jurisdiction possessing proper qualifications as determined 
by an examination for competency and who is to perform services pursuant 
to this part, may be licensed by the Secretary as an inspector.
    (b) Licenses issued by the Secretary are to be countersigned by the 
Administrator or by any other designated official of the Service.
    (c) No person may be licensed to inspect any product in which he is 
financially interested.



Sec. 57.112  Suspension of license or authority; revocation.

    Pending final action by the Secretary, any person authorized to 
countersign a license to perform inspection services may, whenever he 
deems such action necessary to assure that any inspection service is 
properly performed, suspend any license to perform inspection services 
issued pursuant to this part by giving notice of such suspension 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 by the licensee, he may file an appeal in writing, with the 
Secretary, supported by any argument or evidence that he may wish to 
offer as to why his license should not be 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 he deems 
appropriate with respect to such suspension or revocation. When no 
appeal is filed within the prescribed 7 days, the license is revoked or 
suspended.



Sec. 57.114  Surrender of license.

    Upon termination of his services as an inspector or whenever his 
license has been suspended or revoked, the licensee shall surrender his 
license and other items of identification furnished by the Department 
immediately to the inspection service.

[[Page 85]]



Sec. 57.116  Activities of inspectors.

    Inspectors at official plants shall confine their activities to 
those duties necessary in the rendering of inspection service and such 
closely related activities as may be approved by the Administrator.



Sec. 57.118  Identification.

    Inspectors shall have in their possession at all times while on 
duty, and present upon request, the means of identification furnished by 
the Department to such persons.



Sec. 57.119  Political activity.

    Inspectors are forbidden during the period of their respective 
appointments, or licenses, to take an active part in political 
management or in political campaigns. Political activity in city, 
county, State, or national elections, whether primary or regular, or in 
behalf of any party or candidate, except as authorized by law or 
regulation of the Department, is prohibited. This applies to all 
appointees, including but not being limited to temporary and cooperative 
employees and employees on leave of absence with or without pay. Willful 
violation of this section or Sec. 57.120 will constitute grounds for 
dismissal in the case of appointees and revocation of licenses in the 
case of licensees.



Sec. 57.120  Financial interest of inspectors.

    No inspector shall inspect any product in which he is financially 
interested.



Sec. 57.132  Access to plants.

    Access shall not be refused to any representative of the Secretary 
to any plant, place of business, or transport vehicle subject to 
inspection under the provisions of this part upon presentation of proper 
credentials.



Sec. 57.134  Accessibility of product.

    (a) Each product for which inspection service is required shall be 
so placed as to disclose fully its class, quality, quantity, and 
condition as the circumstances may warrant.
    (b) The perimeter of each cooler room used to store shell eggs 
packed in containers destined for the ultimate consumer shall be made 
accessible in order for the Secretary's representatives to determine the 
ambient temperature under which shell eggs are stored.

Records and Related Requirements for Egg Handlers and Related Industries



Sec. 57.200  Records and related requirements.

    (a) Persons engaged in the business of transporting, shipping, or 
receiving any eggs in commerce, or holding such articles so received, 
and all egg handlers, including hatcheries, shall maintain records 
showing, for a period of 2 years, to the extent that they are concerned 
therewith, the receipt, delivery, sale, movement, and disposition of all 
eggs handled by them, and shall, upon the request of an authorized 
representative of the Secretary, permit him, at reasonable times, to 
have access to and to copy all such records.
    (b) Production records by categories of eggs such as graded eggs, 
nest-run eggs, dirties, checks, leakers, loss, inedible, etc., bills of 
sale, inventories, receipts, shipments, shippers, receivers, dates of 
shipment and receipt, carrier names, etc., as determined by the 
Administrator, shall be maintained by all shell egg handlers, except 
that, producers who ship all of their production as nest-run eggs 
without segregation need only to maintain records indicating the amount 
of shell eggs shipped, date of shipment, and the receivers' name and 
address, need only to maintain records indicating the amount of eggs 
received, date received, and the name and address of the shipper.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.220  Information and assistance to be furnished to inspectors.

    When inspection service is performed at any plant, the plant 
operator shall furnish the inspector such information and assistance as 
may be required for the performance of inspection functions, preparing 
certificates, reports, and for other official duties.

[[Page 86]]

                        Administrative Detention



Sec. 57.240  Detaining product.

    Whenever any eggs subject to the Act are found by any authorized 
representative of the Secretary upon any premises, and there is reason 
to believe that they are or have been processed, bought, sold, 
possessed, used, transported, or offered or received for sale or 
transportation in violation of the Act or the regulations in this part, 
or that they are in any other way in violation of the Act, or whenever 
any restricted eggs capable of use as human food are found by such a 
representative in the possession of any person not authorized to acquire 
such eggs under the regulations in this part, such articles may be 
detained by such representative for a period not to exceed 20 days, as 
more fully provided in section 19 of the Act. A detention tag or other 
similar device shall be used to identify detained product, and the 
custodian or owner shall be given a written notice of such detention. 
Only authorized representatives of the Secretary shall affix or remove 
detention identification. The provisions of this section shall in no way 
derogate from authority for condemnation or seizure conferred by other 
provisions of the Act, the regulations in this part, or other laws.

[63 FR 69968, 69971, Dec. 17, 1998]

                   Appeal of an Inspection or Decision



Sec. 57.300  Who may request an appeal inspection or review of an inspector's decision.

    Any appeal inspection may be requested by any interested party who 
is dissatisfied with the determination by an inspector of the class, 
quantity, or condition of any product, and a review may be requested by 
the operator of an official plant with respect to an inspector's 
decision or on any other matter related to inspection in the official 
plant.



Sec. 57.310  Where to file an appeal.

    Any interested party who is not satisfied with the determination of 
the class, quantity, or condition of product which was inspected other 
than in an official plant may request an appeal inspection by filing 
such request with the Regional Director in the region where the product 
is located or with the Chief of the Grading Branch.

[63 FR 69971, Dec. 17, 1998]



Sec. 57.320  How to file an appeal.

    The request for an appeal inspection or review of an inspector's 
decision may be made orally or in writing. If made orally, written 
confirmation may be required. The applicant shall clearly state the 
identity of the product, the decision which is questioned, and the 
reason(s) for requesting the appeal service. If such appeal request is 
based on the results stated on an official certificate, the original and 
all copies of the certificate available at the appeal inspection site 
shall be provided to the inspector assigned to make the appeal 
inspection.



Sec. 57.330  When an application for an appeal grading or inspection may be refused.

    When it appears to the official with whom an appeal request is filed 
that the reasons given in the request are frivolous or not substantial, 
or that the condition of the product has undergone a material change 
since the original grading or inspection, or that the original lot has 
changed in some manner, or the Act or the regulations in this part have 
not been complied with, the applicant's request for the appeal 
inspection may be refused. In such case, the applicant shall be promptly 
notified of the reason(s) for such refusal.



Sec. 57.340  Who shall perform the appeal.

    The assignment of the inspector(s) who will make the appeal 
inspection under Sec. 57.310 shall be made by the Regional Director or 
the Chief of the Grading Branch, Poultry Division, Agricultural 
Marketing Service.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.350  Procedures for selecting appeal samples.

    (a) Prohibition on movement of product. Products shall not have been 
moved from the place where the inspection being appealed was performed 
and must

[[Page 87]]

have been maintained under adequate refrigeration when applicable.
    (b) Laboratory analyses. The appeal sample shall consist of product 
taken from the original sample containers plus an equal number of 
containers selected at random. When the original sample containers 
cannot be located, the appeal sample shall consist of product taken at 
random from double the number of original sample containers.
    (c) Condition inspection. The appeal sample shall consist of product 
taken from the original sample containers plus an equal number of 
containers selected at random. A condition appeal cannot be made unless 
all originally sampled containers are available.



Sec. 57.360  Appeal inspection certificates.

    Immediately after an appeal inspection is completed, an appeal 
certificate shall be issued to show that the original inspection was 
sustained or was not sustained. Such certificate shall supersede any 
previously issued certificate for the product involved and shall clearly 
identify the number and date of the superseded certificate. The issuance 
of the appeal certificate may be withheld until any previously issued 
certificate and all copies have been returned when such action is deemed 
necessary to protect the interest of the Government. When the appeal 
inspector assigns a different class to the lot or determines that a net 
weight shortage exists, the lot shall be retained pending correction of 
the labeling or approval of the product disposition by the National 
Supervisor.



Sec. 57.370  Cost of appeals.

    (a) There shall be no cost to the appellant when the appeal 
inspection discloses a material error was made in the original 
determination.
    (b) The costs of an appeal shall be borne by the appellant at an 
hourly rate of $27.36, including travel time and expenses if the appeal 
was frivolous, including but not being limited to the following: The 
appeal inspection discloses that no material error was made in the 
original inspection, the condition of the product has undergone a 
material change since the original inspection, the original lot has 
changed in some manner, or the Act or these regulations have not been 
complied with.

                     Identifying and Marking Product



Sec. 57.410  Shell eggs required to be labeled.

    All shell eggs packed into containers destined for the ultimate 
consumer shall be labeled to indicate that refrigeration is required, 
e.g., ``Keep Refrigerated,'' or words of similar meaning.

[63 FR 69968, 69971, Dec. 17, 1998]

                                Retention



Sec. 57.426  Retention.

    Retention tags or other devices and methods as may be approved by 
the Administrator shall be used for the identification and control of 
products which are not in compliance with the regulations or are held 
for further examination, and any equipment, utensils, rooms or 
compartments which are found to be unclean or otherwise in violation of 
the regulations. No product, equipment, utensil, room, or compartment 
shall be released for use until it has been made acceptable. Such 
identification shall not be removed by anyone other than an inspector.

                         Processing Requirements



Sec. 57.504  General operating procedures.

    (a)-(b) [Reserved]
    (c) All loss and inedible eggs or egg products shall be placed in a 
container clearly labeled ``inedible'' and containing a sufficient 
amount of approved denaturant or decharacterant, such as FD&C brown, 
blue, black, or green colors, meat and fish by-products, grain and 
milling by-products, or any other substance, as approved by the 
Administrator, that will accomplish the purposes of this section. Shell 
eggs shall be crushed and the substance shall be dispersed through the 
product in amounts sufficient to give the product a distinctive 
appearance or odor.

[63 FR 69971, Dec. 17, 1998]

[[Page 88]]

                   Registration of Shell Egg Handlers



Sec. 57.690  Persons required to register.

    Shell egg handlers, except for producer-packers with an annual egg 
production from a flock of 3,000 hens or less, who grade and pack eggs 
for the ultimate consumer, and hatcheries are required to register with 
the U.S. Department of Agriculture by furnishing their name, place of 
business, and such other information as is requested on forms provided 
by or available from the U.S. Department of Agriculture. Completed forms 
shall be sent to the addressee indicated on the form. Persons as those 
listed above who are establishing a business will be required to 
register before they start operations.

[40 FR 20059, May 8, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 63 
FR 45675, Aug. 27, 1998. Redesignated at 63 FR 69970, Dec. 17, 1998]

              Inspection and Disposition of Restricted Eggs



Sec. 57.700  Prohibition on disposition of restricted eggs.

    (a) No person shall buy, sell, or transport, or offer to buy or 
sell, or offer or receive for transportation in any business in commerce 
any restricted eggs, except as authorized in Secs. 57.100 and 57.720.
    (b) No egg handler shall possess any restricted eggs, except as 
authorized in Secs. 57.100 and 57.720.
    (c) No egg handler shall use any restricted eggs in the preparation 
of human food, except as provided in Secs. 57.100 and 57.720.

[36 FR 9814, May 28, 1971. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, and at 63 FR 
69970, Dec. 17, 1998]



Sec. 57.720  Disposition of restricted eggs.

    (a) Eggs classified as checks, dirties, incubator rejects, 
inedibles, leakers, or loss shall be disposed of by one of the following 
methods at point and time of segregation:
    (1) Checks and dirties shall be labeled in accordance with 
Sec. 57.800 and shipped directly or indirectly to an official egg 
products plant for segregation and processing. Inedible and loss eggs 
shall not be intermingled in the same container with checks and dirties.
    (2) By destruction in a manner approved by the Administrator, such 
as crushing and denaturing or decharacterizing in accordance with 
Sec. 57.504(c) and identifying the product as ``Inedible Egg Product--
Not To Be Used As Human Food.''
    (3) Processing for industrial use or for animal food. Such product 
shall be denatured or decharacterized in accordance with Sec. 57.504(c) 
and identified as provided in Secs. 57.840 and 57.860, or handled in 
accordance with other procedures approved by the Administrator. 
Notwithstanding the foregoing, product which was produced under official 
supervision and transported for industrial use or animal food need not 
be denatured or decharacterized if it is shipped under Government seal 
and received by an inspector or grader as defined in this part.
    (4) By coloring the shells of loss and inedible eggs with a 
sufficient amount of FD&C color to give a distinct appearance, or 
applying a substance that will penetrate the shell and decharacterize 
the egg meat. Except that, lots of eggs containing significant 
percentages of blood spots or meat spots, but no other types of loss or 
inedible eggs may be shipped directly to official egg products plants, 
provided they are conspicuously labeled with the name and address of the 
shipper and the wording ``Spots--For Processing Only In Official Egg 
Products Plants.''
    (5) Incubator rejects shall be broken or crushed and denatured or 
decharacterized in accordance with Sec. 57.504(c) and labeled as 
required in Secs. 57.840 and 57.860.
    (b) Eggs which are packed for the ultimate consumer and which have 
been found to exceed the tolerance for restricted eggs permitted in the 
official standards for U.S. Consumer Grade B shall be identified as 
required in Secs. 57.800 and 57.860 and shall be shipped directly or 
indirectly:
    (1) To an official egg products plant for proper segregation and 
processing; or
    (2) Be regraded so that they comply with the official standards; or

[[Page 89]]

    (3) Used as other than human food.
    (c) Records shall be maintained as provided in Sec. 57.200 to assure 
proper disposition.

[36 FR 9814, May 28, 1971; 36 FR 10841, June 4, 1971; 37 FR 6659, Apr. 
1, 1972; 40 FR 20059, May 8, 1975. Redesignated at 42 FR 32514, June 27, 
1977, and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended 
at 47 FR 745, Jan. 7, 1982; 60 FR 49170, Sept. 21, 1995. Redesignated at 
63 FR 69970, Dec. 17, 1998]



Sec. 57.760  Inspection of egg handlers.

    Duly authorized representatives of the Secretary shall make such 
periodic inspections of egg handlers, their transport vehicles, and 
their records as the Secretary may require to ascertain if any of the 
provisions of the Act or this part applicable to such egg handlers have 
been violated. Such representatives shall be afforded access to any 
place of business, plant, or transport vehicle subject to inspection 
under the provisions of the Act.

[63 FR 45675, Aug. 27, 1998. Redesignated at 63 FR 69970, Dec. 17, 1998]

Identification of Restricted Eggs or Egg Products Not Intended for Human 
                               Consumption



Sec. 57.800  Identification of restricted eggs.

    The shipping container of restricted eggs shall be determined to be 
satisfactorily identified if such container bears the packer's name and 
address, the quality of the eggs in the container (e.g., dirties, 
checks, inedibles, or loss), or the statement ``Restricted Eggs--For 
Processing Only In An Official USDA Egg Products Plant,'' for checks or 
dirties, or ``Restricted Eggs--Not To Be Used As Human Food,'' for 
inedibles, loss, and incubator rejects, or ``Restricted Eggs--To Be 
Regraded'' for graded eggs which contain more restricted eggs than are 
allowed in the official standards for U.S. Consumer Grade B shell eggs. 
The size of the letters of the identification wording shall be as 
required in Sec. 57.860. When eggs are packed in immediate containers, 
e.g., cartons, sleeve packs, overwrapped 2\1/2\- or 3-dozen packs, etc., 
for sale to household consumers under the exemptions provided for in 
section 57.100 (c), or (f), they shall be deemed to be satisfactorily 
identified in accordance with the requirements of this part if such 
immediate containers bear the packer's name and address and the quality 
of the eggs. Alternatively, a point of sale sign may be displayed 
showing the above information.



Sec. 57.801  Nest run or washed ungraded eggs.

    Nest run or washed ungraded eggs are exempt from the labeling 
provisions in Sec. 57.800. However, when such eggs are packed and sold 
to consumers, they may not exceed the tolerance for restricted eggs 
permitted in the official standards for U.S. Consumer Grade B shell 
eggs.

[60 FR 49171, Sept. 21, 1995. Redesignated at 63 FR 69970, Dec. 17, 
1998]



Sec. 57.840  Identification of inedible, unwholesome, or adulterated egg products.

    All inedible, unwholesome, or adulterated egg products shall be 
identified with the name and address of the processor, the words 
``Inedible Egg Products--Not To Be Used as Human Food.''



Sec. 57.860  Identification wording.

    The letters of the identification wording shall be legible and 
conspicuous.

                                 Imports



Sec. 57.900  Requirements for importation of restricted eggs into the United States.

    (a) Restricted eggs may be imported into the United States from any 
foreign country only in accordance with these regulations. The term 
United States means any State of the United States, the Commonwealth of 
Puerto Rico, the Virgin Islands of the United States, and the District 
of Columbia. The importation of any egg in violation of the regulations 
of this part is prohibited.
    (b) All such imported articles shall upon entry into the United 
States be deemed and treated as domestic articles and be subject to the 
other provisions of the Act, these regulations, and other Federal or 
State requirements.

[63 FR 69968, 69971, Dec. 17, 1998]

[[Page 90]]



Sec. 57.905  Importation of restricted eggs or eggs containing more restricted eggs than permitted in the official standards for U.S. Consumer Grade B.

    (a) No containers of restricted egg(s) other than checks or dirties 
shall be imported into the United States. The shipping containers of 
such eggs shall be identified with the name, address, and country of 
origin of the exporter, and the date of pack and quality of the eggs 
(e.g., checks, or dirties) preceded by the word ``Imported'' or the 
statement ``Imported Restricted Eggs--For Processing Only In An Official 
USDA Plant,'' or ``Restricted Eggs--Not To Be Used As Human Food.'' Such 
identification shall be legible and conspicuous. Alternatively, for 
properly sealed and certified shipments of shell eggs imported for 
breaking at an official egg products plant, the shipping containers need 
not be labeled, provided that the shipment is segregated and controlled 
upon arrival at the destination breaking plant.
    (b) Eggs which are imported for use as human food and upon entry are 
found to contain more restricted eggs than permitted in the official 
standards for U.S. Consumer Grade B, shall be refused entry and returned 
to the importing country or be conspicuously and legibly identified as 
``Imported Restricted Eggs'' and be sent directly under official seal: 
(1) To a place where they may be regraded to comply with the official 
U.S. standards for consumer grades; (2) to an official USDA egg products 
processing plant; or (3) to be used as other than human food.



Sec. 57.915  Foreign inspection certification required.

    (a) [Reserved]
    (b) Except as otherwise provided in Sec. 57.960, each consignment of 
shell eggs shall be accompanied by a foreign inspection certificate, 
which, unless otherwise approved by the Administrator contains the 
following information:
    (1) Country exporting product;
    (2) City and date where issued;
    (3) Quality or description of eggs;
    (4) Number of cases and total quantity;
    (5) Identification marks on containers;
    (6) Name and address of exporter;
    (7) Name and address of importer;
    (8) A certification that the quality or description of the shell 
eggs, including date of pack, is true and accurate;
    (9) A certification that shell eggs which have been packed into 
containers destined for the ultimate consumer have, at all times after 
packing, been stored and transported under refrigeration at an ambient 
temperature of no greater than 45  deg.F (7.2  deg.C); and
    (10) Name (including signature) and title of person authorized to 
issue inspection certificates for shell eggs exported to the United 
States.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.920  Importer to make application for inspection of imported eggs.

    Each person importing any eggs shall make application for inspection 
upon PY Form 222-Import Request, to the Chief, Poultry Grading Branch, 
Poultry Division, Agricultural Marketing Service, U.S. Department of 
Agriculture, Washington, DC 20250, or to the Poultry Division, Poultry 
Grading Branch office at the port where the product is to be offered for 
importation. Application shall be made as long as possible prior to the 
arrival of each consignment of product, except in the case of product 
exempted from inspection by Sec. 57.960. Each application shall state 
the approximate date of product arrival in the United States, the name 
of the ship or other carrier, the country from which the product was 
shipped, the destination, the quantity and class of product, whether 
fresh, frozen, or dried, and the point of first arrival in the United 
States.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.925  Inspection of imported eggs.

    (a) Except as provided in Sec. 57.960, eggs offered for importation 
from any foreign country shall be subject to inspection in accordance 
with established inspection procedures, including the examination of the 
labeling information on the containers, by an inspector before the 
product shall be admitted into the United States. Importers will be 
advised of the point where inspection

[[Page 91]]

will be made, and in case of small shipments (less than carload lots), 
the importer may be required to move the product to the location of the 
nearest inspector.
    (b) Inspectors may take samples, without cost to the United States, 
of any product offered for importation which is subject to analysis or 
quality determination, except that samples shall not be taken of any 
products offered for importation under Sec. 57.960, unless there is 
reason for suspecting the presence therein of a substance in violation 
of that section.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.930  Imported eggs; retention in customs custody; delivery under bond; movement prior to inspection; sealing; handling; facilities, and assistance.

    (a) No eggs required by this part to be inspected shall be released 
from customs custody prior to required inspections, but such product may 
be delivered to the consignee, or his agent, prior to inspection if the 
consignee shall furnish a bond, in the form prescribed by the Secretary 
of the Treasury, conditioned that the product shall be returned, if 
demanded, to the collector of the port where the same is offered for 
clearance through customs.
    (b) Notwithstanding paragraph (a) of this section, no product 
required by this part to be inspected shall be moved prior to inspection 
from the port of arrival where first unloaded, and if arriving by water 
from the wharf where first unloaded at such port, to any place other 
than the place designated in accordance with this part as the place 
where the same shall be inspected; and no product shall be conveyed in 
any manner other than in compliance with this part.
    (c) Means of conveyance or packages in which any product is moved in 
accordance with this part, prior to inspection, from the port or wharf 
where first unloaded in the United States, shall be sealed with special 
import seals of the U.S. Department of Agriculture or otherwise 
identified as provided herein, unless already sealed with customs or 
consular seals in accordance with the customs regulations. Such special 
seals shall be affixed by an inspector or, if there is no inspector at 
such port, by a customs officer. In lieu of sealing packages, the 
carrier or importer may furnish and attach to each package of product a 
warning notice on bright yellow paper, not less than 5x8 inches in size, 
containing the following legend in black type of a conspicuous size:

                     (Name of Truck Line or Carrier)

                                 Notice

    This package of ---------- must be delivered intact to an inspector 
of the Poultry Division, U.S. Department of Agriculture.

                                 Warning

    Failure to comply with these instructions will result in penalty 
action being taken against the holder of the customs entry bond.
    If the product is found to be acceptable upon inspection, the 
product may be released to the consignee, or his agent, and this warning 
notice defaced.
    (d) No person shall affix, break, alter, deface, mutilate, remove, 
or destroy any special import seal of the U.S. Department of 
Agriculture, except customs officers or inspectors, or as provided in 
paragraph (f) of this section.
    (e) No product shall be removed from any means of conveyance or 
package sealed with a special import seal of the U.S. Department of 
Agriculture, except under the supervision of an inspector or a customs 
officer, or as provided in paragraph (f) of this section.
    (f) In case of a wreck or similar extraordinary emergency, the 
special import seal of the U.S. Department of Agriculture on a car, 
truck, or other means of conveyance may be broken by the carrier and, if 
necessary, the articles may be reloaded into another means of conveyance 
for transportation to destination. In all such cases, the carrier shall 
immediately report the facts by telegraph to the Chief of the Grading 
Branch.
    (g) The consignee or his agent shall provide such facilities and 
assistance as the inspector may require for the inspection and handling 
and marking of products offered for importation.

[63 FR 69968, 69971, Dec. 17, 1998]

[[Page 92]]



Sec. 57.935  Means of conveyance and equipment used in handling eggs to be maintained in sanitary condition.

    Compartments of boats, railroad cars, and other means of conveyance 
transporting any product to the United States, and all chutes, 
platforms, racks, tables, tools, utensils, and all other devices used in 
moving and handling such product offered for importation, shall be 
maintained in a sanitary condition.



Sec. 57.945  Foreign eggs offered for importation; reporting of findings to customs; handling of products refused entry.

    (a) Inspectors shall report their findings to the collector of 
customs at the port where products are offered for entry, and shall 
request the collector to refuse entry to eggs which are marked or 
designated ``U.S. Refused Entry'' or otherwise are not in compliance 
with the regulations in this part. Unless such products are exported by 
the consignee within a time specified by the collector of customs 
(usually 30 days), the consignee shall cause the destruction of such 
products for human food purposes under the supervision of an inspector. 
If products are destroyed for human food purposes under the supervision 
of an inspector, he shall give prompt notice thereof to the District 
Director of Customs.
    (b) Consignees shall, at their own expense, return immediately to 
the collector of customs, in means of conveyance or packages sealed by 
the U.S. Department of Agriculture, any eggs received by them under this 
part which in any respect do not comply with this part.
    (c) Except as provided in Sec. 57.930(a), no person shall remove or 
cause to be removed from any place designated as the place of 
inspection, any eggs which the regulations require to be marked in any 
way, unless the same has been clearly and legibly marked in compliance 
with this part.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.950  Labeling of containers of eggs for importation.

    (a) Immediate containers of product offered for importation shall 
bear a label, printed in English, showing:
    (1) The name of product;
    (2) The name of the country of origin of the product, and for 
consumer packaged products, preceded by the words ``Product of,'' which 
statement shall appear immediately under the name of the product;
    (3) The quality or description of shell eggs, including date of 
pack;
    (4) For shell eggs, the words, ``Keep Refrigerated,'' or words of 
similar meaning;
    (5) [Reserved]
    (6) The name and place of business of manufacturer, packer, or 
distributor, qualified by a phrase which reveals the connection that 
such person has with the product;
    (7) An accurate statement of the quantity;
    (b) For properly sealed and certified shipments of shell eggs 
imported for breaking at an official egg products plant, the immediate 
containers need not be labeled, provided that the shipment is segregated 
and controlled upon arrival at the destination breaking plant.
    (c) The labels shall not be false or misleading in any respect.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.955  Labeling of shipping containers of eggs for importation.

    (a) Shipping containers of foreign product which are shipped to the 
United States shall bear in a prominent and legible manner:
    (1) The common or usual name of the product;
    (2) The name of the country of origin;
    (3)-(4) [Reserved]
    (5) The quality or description of the eggs, except as required in 
Sec. 57.905;
    (6) The words ``Keep refrigerated'' or words of similar meaning.
    (b) Labeling on shipping containers examined at the time of 
inspection in the United States, if found to be false or misleading, 
shall be cause for the product to be refused entry.

[[Page 93]]

    (c) For properly sealed and certified shipments of shell eggs 
imported for breaking at an official egg products plant, the shipping 
containers need not be labeled, provided that the shipment is segregated 
and controlled upon arrival at the destination breaking plant.
    (d) In the case of products which are not in compliance solely 
because of misbranding, such products may be brought into compliance 
with the regulations only under the supervision of an authorized 
representative of the Administrator.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.960  Small importations for consignee's personal use, display, or laboratory analysis.

    Any eggs which are offered for importation, exclusively for the 
consignee's personal use, display, or laboratory analysis, and not for 
sale or distribution; which is sound, healthful, wholesome, and fit for 
human food; and which is not adulterated and does not contain any 
substance not permitted by the Act or regulations, may be admitted into 
the United States without a foreign inspection certificate. Such product 
is not required to be inspected upon arrival in the United States and 
may be shipped to the consignee without further restriction under this 
part: Provided, That the Department may, with respect to any specific 
importation, require that the consignee certify that such product is 
exclusively for the consignee's personal use, display, or laboratory 
analysis and not for sale or distribution. The amount of such product 
imported shall not exceed 30-dozen shell eggs, unless otherwise 
authorized by the Administrator.

[63 FR 69968, 69971, Dec. 17, 1998]



Sec. 57.965  Returned U.S. inspected and marked products; not importations.

    Products which have been inspected by the United States Department 
of Agriculture and so marked, and which are returned from foreign 
countries are not importations within the meaning of this part. Such 
returned shipments shall be reported to the Administrator by letter.



Sec. 57.970  Charges for storage, cartage, and labor with respect to products imported contrary to the Act.

    All charges for storage, cartage, and labor with respect to any 
product which is imported contrary to this part shall be paid by the 
owner or consignee, and in default of such payment shall constitute a 
lien against such product and any other product thereafter imported 
under the Act by or for such owner or consignee.



    Subpart B--Rules of Practice Governing Proceedings Under the Egg 
                         Products Inspection Act

    Source: 64 FR 40738, July 28, 1999, unless otherwise noted.

              Scope and Applicability of Rules of Practice



Sec. 57.1000  Administrative proceedings.

    (a) The Uniform Rules of Practice for the Department of Agriculture 
promulgated in subpart H of part 1, subtitle A, title 7, Code of Federal 
Regulations, are the Rules of Practice applicable to adjudicating 
administrative proceedings under section 12(c) of the Egg Products 
Inspection Act (21 U.S.C. 1041).
    (b) In addition to the proceedings set forth in paragraph (a) of 
this section, the Administrator, in his discretion, at any time prior to 
the issuance of a complaint seeking a civil penalty under the Act may 
enter into a stipulation with any person, in accordance with the 
following prescribed conditions:
    (1) The Administrator gives notice of an apparent violation of the 
Act or the regulations issued thereunder by such person and affords such 
person an opportunity for a hearing regarding the matter as provided by 
the Act;
    (2) Such person expressly waives hearing and agrees to a specified 
order including an agreement to pay a specified civil penalty within a 
designated time; and
    (3) The Administrator agrees to accept the specified civil penalty 
in settlement of the particular matter involved if it is paid within the 
designated time.

[[Page 94]]

    (4) If the specified penalty is not paid within the time designated 
in such stipulation, the amount of the stipulated penalty shall not be 
relevant in any respect to the penalty that may be assessed after the 
institution of a formal administrative proceeding pursuant to the 
Uniform Rules of Practice, Subpart H, Part 1, Title 7, Code of Federal 
Regulations.



PART 58--GRADING AND INSPECTION, GENERAL SPECIFICATIONS FOR APPROVED PLANTS AND STANDARDS FOR GRADES OF DAIRY PRODUCTS\1\--Table of Contents




Subpart A--Regulations Governing the Inspection and Grading Services of 
                Manufactured or Processed Dairy Products

                               Definitions
---------------------------------------------------------------------------

    \1\ Compliance with these standards does not excuse failure to 
comply with the provisions of the Federal Food, Drug and Cosmetic Act.
---------------------------------------------------------------------------

Sec.
58.1  Meaning of words.
58.2  Designation of official certificates, memoranda, marks, 
          identifications, and devices for purpose of the Agricultural 
          Marketing Act.

                             Administration

58.3  Authority.

                      Inspection or Grading Service

58.4  Basis of service.
58.5  Where service is offered.
58.6  Supervision of service.
58.7  Who may obtain service.
58.8  How to make application.
58.9  Form of application.
58.10  Filing of application.
58.11  Approval of application.
58.12  When application may be rejected.
58.13  When application may be withdrawn.
58.14  Authority of applicant.
58.15  Accessibility and condition of product.
58.16  Disposition of samples.
58.17  Order of service.
58.18  Inspection or grading certificates, memoranda, or reports.
58.19  Issuance of inspection or grading certificates.
58.20  Disposition of inspection or grading certificates or reports.
58.21  Advance information.

       Appeal Inspection or Grading and Reinstatement of Regrading

58.22  When appeal inspection or grading may be requested.
58.23  How to obtain appeal inspection or grading.
58.24  Record of filing time.
58.25  When an application for appeal inspection or grading may be 
          refused.
58.26  When an application for an appeal inspection or grading may be 
          withdrawn.
58.27  Order in which appeal inspections or gradings are performed.
58.28  Who shall make appeal inspections or gradings.
58.29  Appeal inspection or grading certificate or report.
58.30  Application for reinspection or regrading.
58.31  Reinspection or regrading certificate or report.
58.32  Superseded certificates or reports.

                   Licensing of Inspectors or Graders

58.33  Who may be licensed.
58.34  Suspension or revocation of license.
58.35  Surrender of license.
58.36  Identification.
58.37  Financial interest of licensees.

                            Fees and Charges

58.38  Payment of fees and charges.
58.39  Fees for holiday or other nonworktime.
58.40  Fees for appeal inspection or grading.
58.41  Fees for additional copies of certificates.
58.42  Travel expenses and other charges.
58.43  Fees for inspection, grading, and sampling.
58.45  Fees for continuous resident services.
58.46  Fees for service performed under cooperative agreement.

               Marking, Branding, and Identifying Product

58.49  Authority to use official identification.
58.50  Approval and form of official identification.
58.51  Information required on official identification.
58.52  Time limit for packaging inspected or graded products with 
          official identification.

    Prerequisites to Packaging Products With Official Identification

58.53  Supervisor of packaging required.
58.54  Packing and packaging room and equipment.
58.55  Facilities for keeping quality samples.
58.56  Incubation of product samples.
58.57  Product not eligible for packaging with official identification.

[[Page 95]]

                               Violations

58.58  Debarment of service.

                              Miscellaneous

58.61  Political activity.
58.62  Report of violations.
58.63  Other applicable regulations.
58.64  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

  Subpart B--General Specifications for Dairy Plants Approved for USDA 
                     Inspection and Grading Service

                               Definitions

58.100  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.
58.101  Meaning of words.

                                 Purpose

58.122  Approved plants under USDA inspection and grading service.

                             Approved Plants

58.123  Survey and approval.
58.124  Denial or suspension of plant approval.

         Premises, Buildings, Facilities, Equipment and Utensils

58.125  Premises.
58.126  Buildings.
58.127  Facilities.
58.128  Equipment and utensils.

                    Personnel, Cleanliness and Health

58.129  Cleanliness.
58.130  Health.

             Protection and Transport of Raw Milk and Cream

58.131  Equipment and facilities.

                   Quality Specifications for Raw Milk

58.132  Basis for classification.
58.133  Methods for quality and wholesomeness determination.
58.134  Sediment content.
58.135  Bacterial estimate.
58.136  Rejected milk.
58.137  Excluded milk.
58.138  Quality testing of milk from new producers.
58.139  Record of tests.
58.140  Field service.
58.141  Alternate quality control program.

                   Operations and Operating Procedures

58.142  Product quality and stability.
58.143  Raw product storage.
58.144  Pasteurization or ultra-pasteurization.
58.145  Composition and wholesomeness.
58.146  Cleaning and sanitizing treatment.
58.147  Insect and rodent control program.
58.148  Plant records.
58.149  Alternate quality control programs for dairy products.

                  Packaging and General Identification

58.150  Containers.
58.151  Packaging and repackaging.
58.152  General identification.

                       Storage of Finished Product

58.153  Dry storage.
58.154  Refrigerated storage.

             Inspection, Grading and Official Identification

58.155  Grading.
58.156  Inspection.
58.157  Inspection or grading certificates.
58.158  Official identification.

                          Explanation of Terms

58.159  Terms.

  Supplemental Specifications for Plants Manufacturing, Processing and 
Packaging Nonfat Dry Milk, Instant Nonfat Dry Milk, Dry Whole Milk, and 
                             Dry Buttermilk

                               Definitions

58.205  Meaning of words.

                         Rooms and Compartments

58.210  Dry storage of product.
58.211  Packaging room for bulk products.
58.212  Hopper or dump room.
58.213  Repackaging room.

                         Equipment and Utensils

58.214  General construction, repair and installation.
58.215  Pre-heaters.
58.216  Hotwells.
58.217  Evaporators and/or vacuum pans.
58.218  Surge tanks.
58.219  High pressure pumps and lines.
58.220  Drying systems.
58.221  Collectors and conveyors.
58.222  Dry dairy product cooling equipment.
58.223  Special treatment equipment.
58.224  Sifters.
58.225  Clothing and shoe covers.
58.226  Portable and stationary bulk bins.
58.227  Sampling device.
58.228  Dump hoppers, screens, mixers and conveyors.
58.229  Filler and packaging equipment.
58.230  Heavy duty vacuum cleaners.

                Quality Specifications for Raw Materials

58.231  General.
58.232  Milk.
58.233  Skim milk.
58.234  Buttermilk.

[[Page 96]]

58.235  Modified dry milk products.

                   Operations and Operating Procedures

58.236  Pasteurization and heat treatment.
58.237  Condensed surge supply.
58.238  Condensed storage tanks.
58.239  Drying.
58.240  Cooling dry products.
58.241  Packaging, repackaging and storage.
58.242  Product adulteration.
58.243  Checking quality.
58.244  Number of samples.
58.245  Method of sample analysis.
58.246  Cleaning of dryers, collectors, conveyors, ducts, sifters and 
          storage bins.
58.247  Insect and rodent control program.

 Requirements for Finished Products Bearing USDA Official Identification

58.248  Nonfat dry milk.
58.249  Instant nonfat dry milk.
58.250  Dry whole milk.
58.251  Dry buttermilk and dry buttermilk product.

  Supplemental Specifications for Plants Manufacturing, Processing and 
                  Packaging Butter and Related Products

                               Definitions

58.305  Meaning of words.

                         Rooms and Compartments

58.311  Coolers and freezers.
58.312  Churn rooms.
58.313  Print and bulk packaging rooms.

                         Equipment and Utensils

58.314  General construction, repair and installation.
58.315  Continuous churns.
58.316  Conventional churns.
58.317  Bulk butter trucks, boats, texturizers, and packers.
58.318  Butter, frozen or plastic cream melting machines.
58.319  Printing equipment.
58.320  Brine tanks.
58.321  Cream storage tanks.

                 Quality Specifications for Raw Material

58.322  Cream.
58.323  [Reserved]
58.324  Butteroil.
58.325  Anhydrous milkfat.
58.326  Plastic cream.
58.327  Frozen cream.
58.328  Salt.
58.329  Color.
58.330  Butter starter cultures.
58.331  Starter distillate.

                   Operations and Operating Procedures

58.332  Segregation of raw material.
58.334  Pasteurization.
58.335  Quality control tests.
58.336  Frequency of sampling for quality control of cream, butter and 
          related products.
58.337  Official test methods.
58.338  Composition and wholesomeness.
58.339  Containers.
58.340  Printing and packaging.
58.341  Repackaging.
58.342  General identification.
58.343  Storage of finished product in coolers.
58.344  Storage of finished product in freezer.

 Requirements for Finished Products Bearing USDA Official Identification

58.345  Butter.
58.346  Whipped butter.
58.347  Butteroil or anhydrous milkfat.
58.348  Plastic cream.
58.349  Frozen cream.

   Supplemental Specifications for Plants Manufacturing and Packaging 
                                 Cheese

                               Definitions

58.405  Meaning of words.

                         Rooms and Compartments

58.406  Starter facility.
58.407  Make room.
58.408  Brine room.
58.409  Drying room.
58.410  Paraffining room.
58.411  Rindless cheese wrapping area.
58.412  Coolers or curing rooms.
58.413  Cutting and packaging rooms.

                         Equipment and Utensils

58.414  General construction, repair and installation.
58.415  Starter vats.
58.416  Cheese vats, tanks and drain tables.
58.417  Mechanical agitators.
58.418  Automatic cheese making equipment.
58.419  Curd mill and miscellaneous equipment.
58.420  Hoops, forms and followers.
58.421  Press.
58.422  Brine tank.
58.423  Cheese vacuumizing chamber.
58.424  Monorail.
58.425  Conveyor for moving and draining block or barrel cheese.
58.426  Rindless cheese wrapping equipment.
58.427  Paraffin tanks.
58.428  Specialty equipment.
58.429  Washing machine.

                 Quality Specifications for Raw Material

58.430  Milk.
58.431  Hydrogen peroxide.
58.432  Catalase.
58.433  Cheese cultures.
58.434  Calcium chloride.
58.435  Color.

[[Page 97]]

58.436  Rennet, pepsin, or other milk clotting enzymes and flavor 
          enzymes.
58.437  Salt.

                   Operations and Operating Procedures

58.438  Cheese from pasteurized milk.
58.439  Cheese from unpasteurized milk.
58.440  Make schedule.
58.441  Records.
58.442  Laboratory and quality control tests.
58.443  Whey handling.
58.444  Packaging and repackaging.
58.445  General identification.

 Requirements for Finished Products Bearing USDA Official Identification

58.446  Quality requirements.

   Supplemental Specifications for Plants Manufacturing and Packaging 
                             Cottage Cheese

                               Definitions

58.505  Meaning of words.

                         Rooms and Compartments

58.510  Rooms and compartments.

                         Equipment and Utensils

58.511  General construction, repair and installation.
58.512  Cheese vats or tanks.
58.513  Agitators.
58.514  Container fillers.
58.515  Mixers.
58.516  Starter vats.

                 Quality Specifications for Raw Material

58.517  General.
58.518  Milk.
58.519  Dairy products.
58.520  Nondairy ingredients.

                   Operations and Operating Procedures

58.521  Pasteurization and product flow.
58.522  Reconstituting nonfat dry milk.
58.523  Laboratory and quality control tests.
58.524  Packaging and general identification.
58.525  Storage of finished product.

  Requirements for Cottage Cheese Bearing USDA Official Identification

58.526  Official identification.
58.527  Physical requirements.
58.528  Microbiological requirements.
58.529  Chemical requirements.
58.530  Keeping quality requirements.

 Supplemental Specifications for Plants Manufacturing, Processing, and 
                        Packaging Frozen Desserts

                               Definitions

58.605  Meaning of words.

                         Rooms and Compartments

58.619  Mix processing room.
58.620  Freezing and packaging rooms.
58.621  Freezing tunnels.
58.622  Hardening and storage rooms.

                         Equipment and Utensils

58.623  Homogenizer.
58.624  Freezers.
58.625  Fruit or syrup feeders.
58.626  Packaging equipment.

                 Quality Specifications for Raw Material

58.627  Milk and dairy products.
58.628  Sweetening agents.
58.629  Flavoring agents.
58.630  Stabilizers.
58.631  Emulsifiers.
58.632  Acid.
58.633  Color.

                   Operations and Operating Procedures

58.634  Assembling and combining mix ingredients.
58.635  Pasteurization of the mix.
58.636  Homogenization.
58.637  Cooling the mix.
58.638  Freezing the mix.
58.639  Addition of flavor.
58.640  Packaging.
58.641  Hardening and storage.
58.642  Quality control tests.
58.643  Frequency of sampling.
58.644  Test methods.
58.645  General identification.

 Requirements for Finished Products Bearing USDA Official Identification

58.646  Official identification.
58.647  Composition requirements for ice cream.
58.648  Microbiological requirements for ice cream.
58.649  Physical requirements for ice cream.
58.650  Requirements for frozen custard.
58.652  Composition requirements for sherbet.
58.653  Microbiological requirements for sherbet.
58.654  Physical requirements for sherbet.

  Supplemental Specifications for Plants Manufacturing, Processing and 
        Packaging Pasteurized Process Cheese and Related Products

                               Definitions

58.705  Meaning of words.

                         Equipment and Utensils

58.706  General construction, repair and installation.
58.707  Conveyors.
58.708  Grinders or shredders.
58.709  Cookers.

[[Page 98]]

58.710  Fillers.

                 Quality Specifications for Raw Material

58.711  Cheddar, colby, washed or soaked curd, granular or stirred curd 
          cheese.
58.712  Swiss.
58.713  Gruyere.
58.714  Cream cheese, Neufchatel cheese.
58.715  Cream, plastic cream and anhydrous milkfat.
58.716  Nonfat dry milk.
58.717  Whey.
58.718  Flavor ingredients.
58.719  Coloring.
58.720  Acidifying agents.
58.721  Salt.
58.722  Emulsifying agents.

                   Operations and Operating Procedures

58.723  Basis for selecting cheese for processing.
58.724  Blending.
58.725  Trimming and cleaning.
58.726  Cutting and grinding.
58.727  Adding optional ingredients.
58.728  Cooking the batch.
58.729  Forming containers.
58.730  Filling containers.
58.731  Closing and sealing containers.
58.732  Cooling the packaged cheese.
58.733  Quality control tests.

    Requirements for Processed Cheese Products Bearing USDA Official 
                             Identification

58.734  Official identification.
58.735  Quality specifications for raw materials.

              Quality Specifications For Finished Products

58.736  Pasteurized process cheese.
58.737  Pasteurized process cheese food.
58.738  Pasteurized process cheese spread and related products.

 Supplemental Specifications for Plants Manufacturing, Processing, and 
                Packaging Whey, Whey Products and Lactose

                               Definitions

58.805  Meaning of words.

                         Rooms and Compartments

58.806  General.

                         Equipment and Utensils

58.807  General construction, repair and installation.

                Quality Specifications for Raw Materials

58.808  Whey.

                   Operations and Operating Procedures

58.809  Pasteurization.
58.810  Temperature requirements.
58.811  General.
58.812  Methods of sample analysis

 Requirements for Finished Products Bearing USDA Official Identification

58.813  Dry whey.

  Supplemental Specifications for Plants Manufacturing, Processing and 
  Packaging Evaporated and Condensed Milk or Ultra-Pasteurized Products

                               Definitions

58.905  Meaning of words.

                         Equipment and Utensils

58.912  General construction, repair and installation.
58.913  Evaporators and vacuum pans.
58.914  Fillers.
58.915  Batch or continuous in-container thermal processing equipment.
58.916  Homogenizer.

                   Operations and Operating Procedures

58.917  General.
58.918  Standardization.
58.919  Pre-heat, pasteurization.
58.920  Homogenization.
58.921  Concentration.
58.922  Thermal processing.
58.923  Filling containers.
58.924  Aseptic filling.
58.925  Sweetened condensed.
58.926  Heat stability.
58.927  Storage.
58.928  Quality control tests.
58.929  Frequency of sampling for quality control.
58.930  Official test methods.
58.931  General identification.

                Quality Specifications for Raw Materials

58.932  Milk.
58.933  Stabilizers.
58.934  Sugars.
58.935  Chocolate and cocoa.

 Requirements for Finished Products Bearing USDA Official Identification

58.936  Milk.
58.937  Physical requirements for evaporated milk.
58.938  Physical requirements and microbiological limits for sweetened 
          condensed milk.

Subparts C-V [Reserved]

  Subpart W--United States Department of Agriculture Standard for Ice 
                                  Cream

58.2825  United States Standard for ice cream.
58.2826  General identification.

[[Page 99]]

58.2827  Official identification.

    Authority: 7 U.S.C. 1621--1627.

    Source: 23 FR 9410, Dec. 5, 1958, unless otherwise noted. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981.
    Note: Compliance with these standards does not excuse failure to 
comply with the provisions of the Federal Food, Drug, and Cosmetic Act.



Subpart A--Regulations Governing the Inspection and Grading Services of 
                Manufactured or Processed Dairy Products

    Source: 37 FR 22363, Oct. 19, 1972, unless otherwise noted. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981.

                               Definitions



Sec. 58.1  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to import the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning:
    Act means the applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087, as amended; 7 U.S.C. 1621-1627) or any other 
act of Congress conferring like authority.
    Administrator means the Administrator of the Agricultural Marketing 
Service or any other officer or employee of the Agricultural Marketing 
Service to whom authority has heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in his stead.
    Agricultural Marketing Service or AMS means the Agricultural 
Marketing Service of the Department.
    Applicant means any interested party who has applied for inspection 
or grading service.
    Approved laboratory means a laboratory in which the facilities and 
equipment used for official testing have been adequate to perform the 
necessary official tests in accordance with this part.
    Approved plant means one or more adjacent buildings, or parts 
thereof, comprising a single plant at one location in which the 
facilities and methods of operation therein have been surveyed and 
approved by the Administrator as suitable and adequate for inspection or 
grading service in accordance with this part.
    Area Supervisor means any employee of the Branch in charge of dairy 
inspection or grading service in a designated geographical area.
    Branch means the Dairy Inspection Branch of the Poultry and Dairy 
Quality Division.
    Chief means the Chief of the Branch, or any officer or employee of 
the Branch to whom authority has been heretofore delegated, or to whom 
authority may hereafter be delegated, to act in his stead.
    Class means any subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same kind 
or method of processing.
    Condition of container means the degree of acceptability of the 
container with respect to freedom from defects which affect its 
serviceability, including appearance as well as usability, of the 
container for its intended purpose.
    Condition of product or condition is an expression of the extent to 
which a product is free from defects which affect its usability, 
including but not limited to, the state of preservation, cleanliness, 
soundness, wholesomeness, or fitness for human food.
    Continuous resident service or resident service is inspection or 
grading service performed at a dairy manufacturing plant or grading 
station by an inspector or grader assigned to the plant or station on a 
continuous, year-round, resident basis.
    Department or USDA means the U.S. Department of Agriculture.
    Director means the Director of the Poultry and Dairy Quality 
Division, or any other officer or employee of the Division to whom 
authority has heretofore been delegated or to whom authority may 
hereafter be delegated, to act in his stead.
    Division means the Poultry and Dairy Quality Division of the 
Agricultural Marketing Service.
    Inspection or grading service or service means in accordance with 
this part, the act of (a) drawing samples of any

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product; (b) determining the class, grade, quality, composition, size, 
quantity, or condition of any product by examining each unit or 
representative samples; (c) determining condition of product containers; 
(d) identifying any product or packaging material by means of official 
identification; (e) regrading or appeal grading of a previously graded 
product; (f) inspecting dairy plant facilities, equipment, and 
operations; such as, processing, manufacturing, packaging, repackaging, 
and quality control; (g) supervision of packaging inspected or graded 
product; (h) reinspection or appeal inspection; and (i) issuing an 
inspection or grading certificate or sampling, inspection, or other 
report related to any of the foregoing.
    Inspector or grader means any Federal or State employee to whom a 
license has been issued by the Administrator to perform one or more 
types of inspection or grading services.
    Inspection or grading office means the office of any inspector or 
grader.
    Interested party means any person financially interested in a 
transaction involving any inspection or grading service.
    Licensed plant employee means an employee of an approved plant to 
whom a license is issued by the Administrator to supervise packaging of 
officially inspected or graded product, perform laboratory tests, or 
perform other duties as assigned by the Administrator. A licensed plant 
employee is not authorized to issue any inspection or grading 
certificate.
    Product means butter, cheese (whether natural or processed), milk, 
cream, milk products (whether dried, frozen, evaporated, stabilized, or 
condensed), ice cream, dry whey, dry buttermilk, and any other food 
product, which is prepared or manufactured in whole or in part from any 
of the aforesaid products, as the Administrator may hereafter designate.
    Person means any individual, partnership, association, business, 
trust, corporation, or any organized group of persons, whether 
incorporated or not.
    Plant survey means an appraisal of the plant to determine extent to 
which facilities, equipment, method of operation, and raw material being 
received are in accordance with the provisions of this part. The survey 
shall be used to determine suitability of the plant for inspection or 
grading service.
    Quality means the inherent properties of any product which determine 
its relative degree of excellence.
    Regulations means the provisions of this subpart.
    Sampling report means a statement issued by an inspector or grader 
identifying samples taken by him for inspection or grading service.
    Supervisor of packaging means an employee of the Department or other 
person licensed by the Administrator to supervise the packaging and 
official identification of product or any repackaging of bulk product.

(60 Stat. 1087, 7 U.S.C. 1621 et seq.; 84 Stat. 1620, 21 U.S.C. 1031 et 
seq.)

[37 FR 22363, Oct. 19, 1972, as amended at 38 FR 4381, Feb. 14, 1973. 
Redesignated at 42 FR 32514, June 27, 1977, as amended at 43 FR 60138, 
Dec. 26, 1978. Redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 
54 FR 15167, Apr. 17, 1989]



Sec. 58.2  Designation of official certificates, memoranda, marks, identifications, and devices for purpose of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks or identifications, and devices for making such marks or 
identifications, issued or authorized under section 203 of said Act, and 
certain misrepresentations concerning the inspection or grading of 
agricultural products under said section. For the purposes of said 
subsection and the provisions in this part, the terms listed below shall 
have the respective meanings specified:
    (a) Official certificate means any form of certification, either 
written or printed (including that prescribed in Sec. 58.18) used under 
the regulations in this subpart to certify with respect to the 
inspection of dairy processing plants and the inspection, class, grade, 
quality, size, quantity, or condition of products (including the 
compliance of products and packaging material with applicable 
specifications).

[[Page 101]]

    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of inspecting, grading, determining 
compliance, or sampling pursuant to the regulations in this subpart, any 
processing or plant-operation report made by an authorized person in 
connection with inspecting, grading, determining compliance, or sampling 
under the regulations in this subpart, and any report made by an 
authorized person of services performed pursuant to the regulations in 
this subpart.
    (c) Official identification or other official marks means any form 
of identification or mark (including, but not limited to, those in 
Secs. 58.49 through 58.51) approved by the Administrator and authorized 
to be affixed to any product, or affixed to or printed on the packaging 
material of any product certifying the inspection, class, grade, 
quality, size, quantity, or condition of the products (including the 
compliance of products with applicable specifications) or to maintain 
the identity of the product for which service is provided under the 
regulations in this subpart.
    (d) Official device means a stamping applicance, branding device, 
stencil, printed label, or any other mechanically or manually operated 
tool that is approved by the Administrator for the purpose of applying 
any official mark or other identification to any product or the 
packaging material thereof.

                             Administration



Sec. 58.3  Authority.

    The Administrator shall perform such duties as may be required in 
the enforcement and administration of the provisions of the Act and this 
part.

                      Inspection or Grading Service



Sec. 58.4  Basis of service.

    Inspection or grading service shall be performed in accordance with 
the provisions of this part, the instructions and procedures issued or 
approved by the Administrator, U.S. standards for grades, Federal 
specifications, and specifications as defined in a specific purchase 
contract. All services provided in accordance with these regulations 
shall be rendered without discrimination on the basis of race, color, 
creed, or national origin.

[39 FR 986, Jan. 4, 1974. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 58.5  Where service is offered.

    Subject to the provisions of this part, inspection or grading 
service may be performed when a qualified inspector or grader is 
available, and when the facilities and conditions are satisfactory for 
the conduct of the service.



Sec. 58.6  Supervision of service.

    All inspection or grading service shall be subject to supervision by 
a supervisory inspector or grader, Area Supervisor, or by the Chief, or 
such other person of the Branch as may be designated by the Chief. 
Whenever there is evidence that inspection or grading service has been 
incorrectly performed, a supervisor shall immediately make a 
reinspection or regrading, and he shall supersede the previous 
inspection or grading certificate or report with a new certificate or 
report showing the corrected information.



Sec. 58.7  Who may obtain service.

    An application for inspection or grading service may be made by any 
interested person, including, but not limited to, the United States, any 
State, county, municipality, or common carrier, or any authorized agent 
of the foregoing.



Sec. 58.8  How to make application.

    (a) On a fee basis. An application for inspection or grading service 
may be made in any inspection or grading office or with any inspector or 
grader. Such application may be made orally (in person or by telephone), 
in writing, or by telegraph. If made orally, written confirmation may be 
required.
    (b) On a continuous basis. Application for inspection or grading 
service on a continuous basis as provided in Sec. 58.45 shall be made in 
writing on application forms as approved by the Administrator and filed 
with the Administrator.

[[Page 102]]



Sec. 58.9  Form of application.

    Each application for inspection or grading service shall include 
such information as may be required by the Administrator in regard to 
the type of service; kind of products and place of manufacture, 
processing, or packaging: and location where service is desired.



Sec. 58.10  Filing of application.

    An application for inspection or grading service shall be regarded 
as filed only when made pursuant to this subpart.



Sec. 58.11  Approval of application.

    An application for inspection or grading service may be approved 
when (a) a qualified inspector or grader is available, (b) facilities 
and conditions are satisfactory for the conduct of the service, and (c) 
the product has been manufactured or processed in a plant approved for 
inspection or grading service in accordance with the provisions of this 
part and instructions issued thereunder.



Sec. 58.12  When application may be rejected.

    An application for inspection or grading service may be rejected by 
the Administrator (a) when the applicant fails to meet the requirements 
of the regulations in this subpart prescribing the conditions under 
which the service is made available; (b) when the product is owned by, 
or located on the premises of, a person currently denied the benefits of 
the Act; (c) when an individual holding office or a responsible position 
with or having a substantial financial interest or share with 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; (d) when the application is an attempt on the part of a 
person currently denied the benefits of the Act to obtain inspection or 
grading service; (e) when the product was produced from unwholesome raw 
material or was produced under insanitary or otherwise unsatisfactory 
conditions; (f) when the product is of illegal composition or is lacking 
satisfactory keeping quality; (g) when the product has been produced in 
a plant which has not been surveyed and approved for inspection or 
grading service; (h) when fees billed are not paid within 30 days; or 
(i) when there is noncompliance with the Act or this part or 
instructions issued hereunder. When an application is rejected, the 
applicant shall be notified in writing by the Area Supervisor or his 
designated representative, the reason or reasons for the rejection.

[37 FR 22363, Oct. 19, 1972, as amended at 53 FR 20278, June 3, 1988]



Sec. 58.13  When application may be withdrawn.

    An application for inspection or 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 AMS in connection with 
such application.



Sec. 58.14  Authority of applicant.

    Proof of the authority of any person applying for any inspection or 
grading service may be required in the discretion of the Administrator.



Sec. 58.15  Accessibility and condition of product.

    Each lot of product for which inspection or grading service is 
requested shall be so conditioned and placed as to permit selection of 
representative samples and proper determination of the class, grade, 
quality, quantity, or condition of such product. In addition, if sample 
packages are furnished by the applicant, such samples shall be 
representative of the lot to be inspected or graded and additional 
samples shall be made available for verification. The room or area where 
the service is to be performed shall be clean and sanitary, free from 
foreign odors, and shall be provided with adequate lighting, 
ventilation, and temperature control.



Sec. 58.16  Disposition of samples.

    Any sample of product used for inspection or grading may be returned 
to the applicant at his request and at his expense if such request was 
made at the time of the application for the service. In the event the 
aforesaid request was not made at the time of application for the 
service, the sample of product may be destroyed, disposed of

[[Page 103]]

to a charitable organization, or disposed of by any other method 
prescribed by the Administrator.



Sec. 58.17  Order of service.

    Inspection or grading service shall be performed, insofar as 
practicable and subject to the availability of qualified inspectors or 
graders, in the order in which applications are made except that 
precedence may be given to any application for an appeal inspection or 
grading.



Sec. 58.18  Inspection or grading certificates, memoranda, or reports.

    Inspection or grading certificates and sampling, plant survey, and 
other memoranda or reports shall be issued on forms approved by the 
Administrator.



Sec. 58.19  Issuance of inspection or grading certificates.

    An inspection or grading certificate shall be issued to cover a 
product inspected or graded in accordance with Instructions issued by 
the Administrator and shall be signed by an inspector or grader. This 
does not preclude an inspector or grader from granting a power of 
attorney to another person to sign in his stead, if such grant of power 
of attorney has been approved by the Administrator: Provided, That in 
all cases any such certificate shall be prepared in accordance with the 
facts set forth in the official memorandum defined in Sec. 58.2(b): And 
provided further, that whenever a certificate is signed by a person 
under a power of attorney the certificate should so indicate. The 
signature of the holder of the power shall appear in conjunction with 
the name of the grader or inspector who personally graded or inspected 
the product.

[39 FR 986, Jan. 4, 1974. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 58.20  Disposition of inspection or grading certificates or reports.

    The original of any inspection or grading certificate or report 
issued pursuant to Sec. 58.19, and not to exceed four copies thereof, 
shall immediately upon issuance be delivered or mailed to the applicant 
or person designated by him. One copy shall be filed in the inspection 
and grading office serving the area in which the service was performed 
and all other copies shall be filed in such manner as the Administrator 
may approve. Additional copies of any such certificate or report may be 
supplied to any interested party as provided in Sec. 58.41.



Sec. 58.21  Advance information.

    Upon request of an applicant, all or part of the contents of any 
inspection or grading certificate or report issued to such applicant may 
be telephoned or telegraphed to him, or to any person designed by him, 
at applicant's expense.

       Appeal Inspection or Grading and Reinstatement of Regrading



Sec. 58.22  When appeal inspection or grading may be requested.

    (a) An application for an appeal inspection or grading may be made 
by any interested party who is dissatisfied with any determination 
stated in any inspection or grading certificate or report if the 
identity of the samples or the product has not been lost; or the 
conditions under which inspection service was performed have not 
changed. Such application for appeal inspection or grading shall be made 
within 2 days following the day on which the service was performed. Upon 
approval by the Administrator, the time within which an application for 
an appeal grading may be made may be extended.
    (b) An appeal inspection shall be limited to a review of the 
sampling procedure and in analysis of the official sample used, when, as 
a result of the original inspection, the commodity was found to be 
contaminated with filthy, putrid, and decomposed material. If it is 
determined that the sampling procedures were improper, a new sample 
shall be obtained.



Sec. 58.23  How to obtain appeal inspection or grading.

    Appeal inspection or grading may be obtained by filing a request 
therefore, (a) with the Administrator, (b) with the inspector or grader 
who issued the inspection or grading certificate or report with respect 
to which the appeal

[[Page 104]]

service is requested, or (c) with the supervisor of such inspector or 
grader. The application for appeal inspection or grading shall state the 
reasons therefore, and may be accompanied by a copy of the aforesaid 
inspection or grading certificate or report or any other information the 
applicant may have secured regarding the product or the service from 
which the appeal is requested. Such application may be made orally (in 
person or by telephone), in writing, or by telegraph. If made orally, 
written confirmation may be required.



Sec. 58.24  Record of filing time.

    A record showing the date and hour when each such application for 
appeal inspection or grading is received shall be maintained in such 
manner as the Administrator may prescribe.



Sec. 58.25  When an application for appeal inspection or grading may be refused.

    The Administrator may refuse an application for an appeal inspection 
or grading when (a) the quality or condition of the products has 
undergone a material change since the time of original service, (b) the 
identical products inspected or graded cannot be made accessible for 
reinspection or regrading, (c) the conditions under which inspection 
service was performed have changed, (d) it appears that the reasons for 
an appeal inspection or grading are frivolous or not substantial, or (e) 
the Act or this part have not been complied with. The applicant shall be 
promptly notified of the reason for such refusal.



Sec. 58.26  When an application for an appeal inspection or grading may be withdrawn.

    An application for appeal inspection or grading may be withdrawn by 
the applicant at any time before the appeal inspection or grading is 
made upon payment, by the applicant, of all expenses incurred by AMS in 
connection with such application.



Sec. 58.27  Order in which appeal inspections or gradings are performed.

    Appeal inspections or gradings shall be performed, insofar as 
practicable, in the order in which applications therefor are received; 
and any such application may be given precedence pursuant to Sec. 58.17.



Sec. 58.28  Who shall make appeal inspections or gradings.

    An appeal inspection or grading of any product or service shall be 
made by any inspector or grader (other than the one from whose service 
the appeal is made) designated for this purpose by the Administrator; 
and, whenever practical, such appeal inspection or grading shall be 
conducted jointly by two such inspectors or graders.



Sec. 58.29  Appeal inspection or grading certificate or report.

    Immediately after an appeal inspection or grading has been 
completed, an appeal inspection or grading certificate or report shall 
be issued showing the results of the inspection or grading. Such 
certificate or report shall thereupon supersede the previous certificate 
or report and will be effective retroactive to the date of the previous 
certificate or report. Each appeal certificate or report shall clearly 
set forth the number and the date of the previous certificate or report 
which it supersedes. The provisions of Secs. 58.18 through 58.21 shall, 
whenever applicable, also apply to appeal certificates or reports except 
that copies shall be furnished each interested party of record.



Sec. 58.30  Application for reinspection or regrading.

    An application for the reinspection or regrading of any previously 
inspected or graded product may be made at any time by any interested 
party; and such application shall clearly indicate the reasons for 
requesting the reinspection or regrading. The provisions of the 
regulations in this subpart relative to inspection or grading service 
shall apply to reinspection or regrading service.



Sec. 58.31  Reinspection or regrading certificate or report.

    Immediately after a reinspection or regrading has been completed, a 
reinspection or a regrading certificate or report shall be issued 
showing the results of such reinspection or regrading;

[[Page 105]]

and such certificate or report shall thereupon supersede, as of the time 
of issuance, the inspection or grading certificate or report previously 
issued. Each reinspection or regrading certificate or report shall 
clearly set forth the number and date of the inspection or grading 
certificate or report that it supersedes. The provisions of Secs. 58.18 
through 58.21 shall, whenever applicable, also apply to reinspection or 
regrading certificates or reports except that copies shall be furnished 
each interested party of record.



Sec. 58.32  Superseded certificates or reports.

    When any inspection or grading certificate or report is superseded 
in accordance with this part, such certificate or report shall become 
null and void and, after the effective time of the supersedure, shall no 
longer represent the class, grade, quality, quantity, or condition 
described therein. If the original and all copies of such superseded 
certificate or report are not returned to the inspector or grader 
issuing the reinspection or regrading or appeal inspection or grading 
certificate or report, the inspector or grader shall notify such persons 
as he considers necessary to prevent fraudulent use of the superseded 
certificate or report.

                   Licensing of Inspectors or Graders



Sec. 58.33  Who may be licensed.

    Any person processing proper qualifications, as determined by an 
examination for competency, held at such time and in such manner as may 
be prescribed by the Administrator, may be licensed to perform specified 
inspection or grading service. Each license issued shall be signed by 
the Administrator.

[53 FR 20278, June 3, 1988]



Sec. 58.34  Suspension or revocation of license.

    For good cause and in instances of willful wrongdoing, the 
Administrator may suspend any license issued under the regulations in 
this subpart by giving notice of such suspension to the respective 
individual involved, accompanied by a statement of reasons therefor. 
Within 10 days after receipt of the aforesaid notice and statement of 
reasons by such individual, he may file an appeal in writing with the 
Administrator supported by any argument or evidence that he may wish to 
offer as to why his license should not be suspended or revoked. In 
conjunction therewith, he may request and, in such event, shall be 
accorded an oral hearing. After consideration of such argument and 
evidence, the Administrator will take such action as warranted with 
respect to such suspension or revocation. When no appeal is filed within 
the prescribed 10 days, the license is revoked.



Sec. 58.35  Surrender of license.

    Each license which is suspended or revoked shall be surrendered 
promptly by the licensee to his supervisor. Upon termination of the 
services of a licensee, the license shall be surrendered promptly by the 
licensee to his supervisor.



Sec. 58.36  Identification.

    Each licensee shall have his license card in his possession at all 
times while performing any function under the regulations in this 
subpart and shall identify himself by such card upon request.



Sec. 58.37  Financial interest of licensees.

    No licensee shall render service on any product in which he is 
financially interested.

                            Fees and Charges



Sec. 58.38  Payment of fees and charges.

    (a) Fees and charges for any inspection or grading service shall be 
paid by the interested party, making the application for such service, 
in accordance with the applicable provisions of this section and 
Secs. 58.39 through 58.46 and, if so required by the inspector or 
grader, such fees and charges shall be paid in advance.
    (b) Fees and charges for any inspection or grading service performed 
by any inspector or grader who is a salaried employee of the Department 
shall, unless otherwise required pursuant to paragraph (c) of this 
section, be paid by the interested party making application for such 
inspection or grading

[[Page 106]]

service by check, draft, or money order payable to the Agricultural 
Marketing Service and remitted promptly to the office indicated on the 
bill.
    (c) Fees and charges for any inspection or grading service under a 
cooperative agreement with any State or person shall be paid in 
accordance with the terms of the cooperative agreement by the interested 
party making application for the service.



Sec. 58.39  Fees for holiday or other nonworktime.

    If an applicant requests that inspection or grading service be 
performed on a holiday, Saturday, or Sunday or in excess of each 8-hour 
shift Monday through Friday, he shall be charged for such service at a 
rate of 1\1/2\ times the rate which would be applicable for such service 
if performed during normal working hours.



Sec. 58.40  Fees for appeal inspection or grading.

    The fees to be charged for any appeal inspection or grading shall be 
double the fees specified on the inspection or grading certificate from 
which the appeal is taken: Provided, That the fee for any appeal grading 
requested by any agency of the U.S. Government shall be the same as set 
forth in the certificate from which the appeal is taken. If the result 
of any appeal inspection or grading discloses that a material error was 
made in the inspection or grading appealed from, no fee shall be 
required.



Sec. 58.41  Fees for additional copies of certificates.

    Additional copies of any inspection or grading certificates 
(including takeoff certificates), other than those provided for in 
Sec. 58.20 may be supplied to any interested party upon payment of a fee 
based on time required to prepare such copies at the hourly rate 
specified in Sec. 58.43.

[54 FR 15167, Apr. 17, 1989]



Sec. 58.42  Travel expenses and other charges.

    Charges shall be made to cover the cost of travel and other expenses 
incurred by AMS in connection with the performance of any inspection or 
grading service.

[53 FR 20278, June 3, 1988]



Sec. 58.43  Fees for inspection, grading, and sampling.

    Except as otherwise provided in Secs. 58.38 through 58.46, charges 
shall be made for inspection, grading, and sampling service at the 
hourly rate of $56.00 for service performed between 6:00 a.m. and 6:00 
p.m. and $61.60 for service performed between 6:00 p.m. and 6:00 a.m., 
for the time required to perform the service calculated to the nearest 
15-minute period, including the time required for preparation of 
certificates and reports and the travel time of the inspector or grader 
in connection with the performance of the service. A minimum charge of 
one-half hour shall be made for service pursuant to each request or 
certificate issued.

[62 FR 66258, Dec. 18, 1997]



Sec. 58.45  Fees for continuous resident services.

    Irrespective of the fees and charges provided in Secs. 58.39 and 
58.43, charges for the inspector(s) and grader(s) assigned to a 
continuous resident program shall be made at the rate of $51.00 per hour 
for services performed during the assigned tour of duty. Charges for 
service performed in excess of the assigned tour of duty shall be made 
at a rate of 1\1/2\ times the rate stated in this section.

[62 FR 66258, Dec. 18, 1997]



Sec. 58.46  Fees for service performed under cooperative agreement.

    The fees to be charged and collected for any service performed under 
cooperative agreement shall be those provided for by such agreement.

               Marking, Branding, and Identifying Product



Sec. 58.49  Authority to use official identification.

    Whenever the Administrator determines that the granting of authority 
to any person to package any product, inspected or graded pursuant to 
this part, and to use official identification, pursuant to Secs. 58.49 
through 58.57, will

[[Page 107]]

not be inconsistent with the Act and this part, he may authorize such 
use of official identification. Any application for such authority shall 
be submitted to the Administrator in such form as he may require.



Sec. 58.50  Approval and form of official identification.

    (a) Any package label or packaging material which bears any official 
identification shall be used only in such manner as the Administrator 
may prescribe, and such official identification shall be of such form 
and contain such information as the Administrator may require. No label 
or packaging material bearing official identification shall be used 
unless finished copies or samples thereof have been approved by the 
Administrator.
    (b) Inspection or grade mark permitted to be used to officially 
identify packages containing dairy products which are inspected or 
graded pursuant to this part shall be contained in a shield in the form 
and design indicated in Figures 1, 2, and 3 of this section or such 
other form, design, or wording as may be approved by the Administrator.
[GRAPHIC] [TIFF OMITTED] TC25SE91.014

[GRAPHIC] [TIFF OMITTED] TC25SE91.015

[GRAPHIC] [TIFF OMITTED] TC25SE91.016


The official identification illustrated in Figure 1 is designed for use 
on graded product packed under USDA inspection. Figure 2 is designed for 
graded product processed and packed under USDA inspection. Figure 3 is 
designated for inspected product (when U.S. standards for grades are not 
established) processed and packed under USDA quality control service. 
The official identification shall be printed on the package label, on 
the carton or on the wrapper and, preferably, on one of the main panels 
of the carton or wrapper. The shield identification shall be not less 
than \3/4\ inch by \3/4\ inch in size, and preferably 1 inch by 1 inch 
on 1-pound cartons or wrappers. Consideration will be given by the 
Administrator of a smaller shield on special packages where the size of 
the label does not permit use of the \3/4\ inch by \3/4\ inch shield.
    (c) Official identification under this subpart shall be limited to 
U.S. Grade B or higher or to an equivalent standard of quality for U.S. 
name grades or numerical score grades when U.S. standards for grades of 
a product have not been established.
    (d) A sketch, proof, or photocopy of each proposed label or 
packaging material bearing official identification shall be submitted to 
the Chief of the Dairy Inspection Branch, Poultry and Dairy Quality 
Division, Agricultural Marketing Service, U.S. Department of 
Agriculture, Washington, DC 20250, for review and tentative approval 
prior to acquisition of a supply of material.
    (e) The firm packaging the product shall furnish to the Chief four 
copies of

[[Page 108]]

the printed labels and packaging materials bearing official 
identification for final approval prior to use.

(60 Stat. 1087, 7 U.S.C. 1621 et seq.; 84 Stat. 1620, 21 U.S.C. 1031 et 
seq.)

[37 FR 22363, Oct. 19, 1972, as amended at 39 FR 987, Jan. 4, 1974. 
Redesignated at 42 FR 32514, June 27, 1977, as amended at 43 FR 60138, 
Dec. 26, 1978. Redesignated at 46 FR 63203, Dec. 31, 1981]



Sec. 58.51  Information required on official identification.

    Each official identification shall conspicuously indicate the U.S. 
grade of the product it identifies, if there be a grade, or such other 
appropriate terminology as may be approved by the Administrator. Also, 
it shall include the appropriate phrase: ``Officially graded,'' 
``Officially Inspected,'' or ``Federal-State graded.'' When required by 
the Administrator, the package label, carton, or wrapper bearing 
official identification for dairy products shall be stamped or 
perforated with the date packed and the certificate number or a code 
number to indicate lot and date packed. Such coding shall be made 
available to and approved by the Administrator.



Sec. 58.52  Time limit for packaging inspected or graded products with official identification.

    Any lot of butter which is graded for packaging with official grade 
identification shall be packaged within 10 days immediately following 
the date of grading, and any lot of natural cheese or dry milk shall be 
packaged within 30 days immediately following date of grading provided 
the product is properly stored during the 10- or 30-day period. Time 
limit for packaging other inspected or graded products shall be as 
approved by the Administrator. If inspected or graded product is moved 
to another location, a reinspection or regrading shall be required.

    Prerequisites to Packaging Products With Official Identification



Sec. 58.53  Supervisor of packaging required.

    The official identification of any inspected or graded product, as 
provided in Secs. 58.50 through 58.52, this section, and Secs. 58.54 
through 58.57, shall be done only under the supervision of a supervisor 
of packaging. The authority to use official identification may be 
granted by the Administrator only to applicants who utilize the services 
of a supervisor of packaging in accordance with this subpart. The 
supervisor of packaging shall have jurisdiction over the use and 
handling of all packaging material bearing any official identification.



Sec. 58.54  Packing and packaging room and equipment.

    Each applicant who is granted authority to package any product with 
official identification and who operates, for such purpose, a packaging 
room shall maintain the room and the equipment therein in accordance 
with this part.



Sec. 58.55  Facilities for keeping quality samples.

    Each applicant granted authority, as aforesaid, to package product 
with official identification shall provide and maintain suitable 
equipment for the purpose of incubating samples of product.



Sec. 58.56  Incubation of product samples.

    (a) Samples of product may be taken from any lot of product which is 
submitted for inspection or grading and packaging with official 
identification, or sample may be taken after packaging for the purpose 
of determining in accordance with provisions of this part if such 
product possesses satisfactory keeping quality.
    (b) Samples of product may be taken for keeping quality tests in 
accordance with provisions of this part from any lot of product 
submitted for inspection or grading. Issuance of the inspection or 
grading certificate may be withheld pending completion of the tests.



Sec. 58.57  Product not eligible for packaging with official identification.

    (a) When a lot of inspected or graded product shows unsatisfactory 
keeping quality, other lots from the same manufacturing plant shall not 
be packaged with official identification. Packaging with official 
identification may be resumed only when it is determined that

[[Page 109]]

product from such plant possesses satisfactory keeping quality.
    (b) Any manufacturing or processing plant supplying product, 
directly or indirectly, for packaging with official identification shall 
be surveyed and approved for inspection or grading service.

                               Violations



Sec. 58.58  Debarment of service.

    (a) The following acts or practices, 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 any or all benefits of the Act for a specified period. 
The rules of practice governing withdrawal of inspection and grading 
services in formal adjudicatory proceedings instituted by the Secretary 
(7 CFR, part 1, subpart H) shall be applicable to such debarment action.
    (1) Fraud or misrepresentation. Any willful misrepresentation or 
deceptive or fraudulent practice or act found to be made or committed by 
any person in connection with:
    (i) The making or filing of any application for any inspection or 
grading service, appeal reinspection, or regrading service;
    (ii) The making of the product accessible for inspection or grading 
service;
    (iii) The making, issuing, or using or attempting to issue or use 
any inspection or grading certificate issued pursuant to the regulations 
in this subpart or the use of any official stamp, label, or 
identification;
    (iv) The use of the terms ``United States,'' ``U.S.,'' ``Officially 
graded,'' ``Officially Inspected,'' ``Federal-State graded,'' or 
``Government graded,'' or terms of similar import in the labeling or 
advertising of any product without stating in conjunction therewith the 
official U.S. grade of the product; or
    (v) The use of any of the aforesaid terms or an official stamp, 
label, or identification in the labeling or advertising of any product 
that has not been inspected or graded pursuant to this part.
    (2) Use of facsimile form. Using or attempting to use a form which 
simulates in whole or in part any official identification for the 
purpose of purporting to evidence the U.S. grade of any product; or the 
unauthorized use of a facsimile form which simulates in whole or in part 
any official inspection or grading certificate, stamp, label, or other 
official inspection mark; and
    (3) Mislabeling. The use of any words, numerals, letters, or 
facsimile form which simulates in whole or in part any identification 
purporting to be a grade when such product does not comply with any 
recognized standards in general use for such grade, and such activity 
may be deemed sufficient cause for debarring such person from any or all 
benefits of the Act.
    (4) Willful violation of the regulations in this subpart. Willful 
violation of the provisions in this part or the Act, or the instructions 
or specifications issued thereunder.
    (5) Interfering with an inspector or grader. Any interference with 
or obstruction or any attempted interference or obstruction of any 
inspector or grader in the performance of his duties by intimidation, 
threat, bribery, assault, or other improper means.
    (b) [Reserved]

(60 Stat. 1087, 7 U.S.C. 1621 et seq.; 84 Stat. 1620, 21 U.S.C. 1031 et 
seq.)

[37 FR 22363, Oct. 19, 1972. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 43 FR 60138, Dec. 26, 1978. Redesignated at 46 FR 63203, 
Dec. 31, 1981]

                              Miscellaneous



Sec. 58.61  Political activity.

    All inspectors or graders are forbidden during the period of their 
respective appointments or licenses to take an active part in political 
management or in political campaigns. Political activities in city, 
county, State, or national elections, whether primary or regular, or in 
behalf of any party or candidate, or any measure to be voted upon, is 
prohibited. This applies to all appointees, including, but not being 
limited to, temporary and cooperative employees and employees on leave 
of absence with or without pay. Willful violation of this section will 
constitute grounds for dismissal in the case of appointees and 
revocation of licenses in the case of licensees.

[[Page 110]]



Sec. 58.62  Report of violations.

    Each inspector, grader, and supervisor of packaging shall report, in 
the manner prescribed by the Administrator, all violations and 
noncompliances under the Act and this part of which such inspector, 
grader, or supervisor of packaging has knowledge.



Sec. 58.63  Other applicable regulations.

    Compliance with the provisions in this part shall not excuse failure 
to comply with any other Federal, or any State, or municipal applicable 
laws or regulations.



Sec. 58.64  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    The following control number has been assigned to the information 
collection requirements in 7 CFR part 58, subpart A, by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1980, 
Pub. L. 96-511.

------------------------------------------------------------------------
                                                             Current OMB
       7 CFR section where requirements are described        control No.
------------------------------------------------------------------------
58.8(a)(b).................................................    0581-0126
58.9.......................................................    0581-0126
58.14......................................................    0581-0126
58.23......................................................    0581-0126
58.30......................................................    0581-0126
58.33......................................................    0581-0126
58.49......................................................    0581-0126
58.50(d)(e)................................................    0581-0126
58.51......................................................    0581-0126
58.122(b)..................................................    0581-0126
------------------------------------------------------------------------


[49 FR 6881, Feb. 24, 1984]



  Subpart B--General Specifications for Dairy Plants Approved for USDA 
                    Inspection and Grading Service\1\
---------------------------------------------------------------------------

    \1\ Compliance with these standards does not excuse failure to 
comply with the provisions of the Federal Food, Drug, and Cosmetic Act, 
Environmental Protection Act, or applicable laws and regulations of any 
State or Municipality.

    Source: 40 FR 47911, Oct. 10, 1975, unless otherwise noted. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981.

                               Definitions



Sec. 58.100  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    The following control number has been assigned to the information 
collection requirements in 7 CFR part 58, subpart B, by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1980, 
Pub. L. 96-511.

------------------------------------------------------------------------
                                                             Current OMB
       7 CFR section where requirements are described        control No.
------------------------------------------------------------------------
58.139.....................................................    0581-0110
58.148.....................................................    0581-0110
58.441.....................................................    0581-0110
------------------------------------------------------------------------


[49 FR 6881, Feb. 24, 1984; as amended at 61 FR 67448, Dec. 23, 1996]



Sec. 58.101  Meaning of words.

    For the purpose of the regulations of this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning:
    (a) Act. The applicable provisions of the Agricultural Marketing Act 
of 1946 (60 Stat. 1087, as amended; (7 U.S.C. 1621-1627)), or any other 
Act of Congress conferring like authority.
    (b) Administrator. The Administrator of the Agricultural Marketing 
Service or any other officer or employee of the Agricultural Marketing 
Service of the Department to whom there has heretofore been delegated, 
or to whom there may hereafter be delegated the authority to act in his 
stead.
    (c) Approved laboratory. A laboratory in which the facilities and 
equipment used for official testing have been approved by the 
Administrator as being adequate to perform the necessary official tests 
in accordance with this part, and operates under a USDA surveillance 
program as set forth by the Administrator.
    (d) Approved plant. One or more adjacent buildings, or parts 
thereof, comprising a single plant at one location in which the 
facilities and methods of operation therein have been surveyed and 
approved by the Administrator as suitable and adequate for inspection or

[[Page 111]]

grading service in accordance with the following:
    (1) Shall satisfactorily meet the specifications of this subpart as 
determined by the Administrator.
    (2) Receive dairy products only from plants, transfer stations, 
receiving stations and cream buying stations which satisfactorily comply 
with the applicable requirements of this subpart as determined by the 
Administrator. (Occasional shipments may be received from nonapproved 
plants provided the product is tested and meets the quality requirements 
for No. 2 milk.)
    (e) Sanitizing treatment. Subjection of a clean product contact 
surface to steam, hot water, hot air, or an acceptable sanitizing 
solution for the destruction of most human pathogens and other 
vegetative microorganisms to a level considered safe for product 
production. Such treatment shall not adversely affect the equipment, the 
milk or the milk product, or the health of consumers. Sanitizing 
solutions shall comply with 21 CFR 178.1010.
    (f) Resident service. Inspection or grading service performed at a 
dairy manufacturing plant or grading station by an inspector or grader 
assigned to the plant or station on a continuous basis.
    (g) Dairy products. Butter, cheese (whether natural or processed), 
skim milk, cream, whey or buttermilk (whether dry, evaporated, 
stabilized or condensed), frozen desserts and any other food product 
which is prepared or manufactured in whole or in part from any of the 
aforesaid products, as the Administrator may hereafter designate.
    (h) Grader. Any employee of the Department authorized by the 
Administrator or any other person to whom a license has been issued by 
the Administrator to investigate and certify, in accordance with the Act 
and this part, to shippers of products and other interested parties, the 
class, quality, quantity, and condition of such products.
    (i) Inspector. Any employee of the Department authorized by the 
Administrator or any other person to whom a license has been issued by 
the Administrator to inspect and certify quality, quantity and condition 
of products, observe the manufacturing, processing, packaging and 
handling of dairy products, and to perform dairy plant surveys in 
accordance with the regulations of this part.
    (j) Inspection or grading service. Means in accordance with this 
part, the act of (1) drawing samples of any product; (2) determining the 
class, grade, quality, composition, size, quantity, condition, or 
wholesomeness of any product by examining each unit or representative 
samples; (3) determining condition of product containers; (4) 
identifying any product or packaging material by means of official 
identification; (5) regrading or appeal grading of a previously graded 
product; (6) inspecting dairy plant facilities, equipment, and 
operations; such as, processing, manufacturing, packaging, repackaging, 
and quality control; (7) supervision of packaging inspected or graded 
product; (8) reinspection or appeal inspection; and (9) issuing an 
inspection or grading certificate or sampling, inspection, or other 
report related to any of the foregoing.
    (k) Milk. The term milk shall include the following:
    (1) Milk is the lacteal secretion, practically free from colostrum, 
obtained by the complete milking of one or more healthy cows. The cows 
shall be located in a Modified Accredited Area, an Accredited Free 
State, or an Accredited Free Herd for tuberculosis as determined by the 
Department. In addition, the cows shall be located in States meeting 
Class B status or Certified-Free Herds or shall be involved in a milk 
ring testing program or blood testing program under the current USDA 
Brucellosis Eradication Uniform Methods and Rules.
    (2) Goat milk is the lacteal secretion, practically free from 
colostrum, obtained by the complete milking of one or more healthy 
goats. The goats shall be located in States meeting the current USDA 
Uniform Methods and Rules for Bovine Tuberculosis Eradication or an 
Accredited Free Goat Herd. Goat milk shall only be used to manufacture 
dairy products that are legally provided for in 21 CFR or recognized as 
non-standardized traditional products normally manufactured from goats 
milk.

[[Page 112]]

    (l) Official identification. Official identification is provided for 
use on product packed under USDA inspection. Any package label or 
packaging material which bears any official identification shall be used 
only in such manner as the Administrator may prescribe, and such 
official identification shall be of such form and contain such 
information as the Administrator may require.
    (m) Official Methods of Analysis of the Association of Official 
Analytical Chemists. ``Official Methods of Analysis of the Association 
of Official Analytical Chemists,'' a publication of the Association of 
Official Analytical Chemists International, 481 North Frederick Avenue, 
Suite 500, Gaithersburg, MD 20877-2417.
    (n) Pasteurization (Pasteurized). Pasteurization shall mean that 
every particle of product shall have been heated in properly operated 
equipment to one of the temperatures specified in the table and held 
continuously at or above that temperature for at least the specified 
time (or other time/temperature relationship equivalent thereto in 
microbial destruction):

                             Fluid Products
------------------------------------------------------------------------
               Temperature                              Time
------------------------------------------------------------------------
145  deg.F (vat pasteurization)..........  30 minutes.
161  deg.F (high temperature short time    15 seconds.
 pasteurization).
191  deg.F (higher heat shorter time       1.0 second.
 pasteurization).
194  deg.F (higher heat shorter time       0.5 second.
 pasteurization).
201  deg.F (higher heat shorter time       0.1 second.
 pasteurization).
204  deg.F (higher heat shorter time       .05 second.
 pasteurization).
212  deg.F (higher heat shorter time       .01 second.
 pasteurization).
------------------------------------------------------------------------


  Products Having Dairy Ingredients With a Fat Content of 10 Percent or
                    More, or Contain Added Sweeteners
150  deg.F...............................  30 minutes.
166  deg.F...............................  15 seconds.
 


                           Frozen Dessert Mix
155  deg.F...............................  30 minutes.
175  deg.F...............................  25 seconds.
 


                   Condensed Milk To Be Repasteurized
166  deg.F...............................  15 seconds.
 

    (o) Plant survey. An appraisal of a plant to determine the extent to 
which facilities, equipment, method of operation, and raw material being 
received are in accordance with the provisions of this part. The survey 
shall be used to determine suitability of the plant for USDA inspection 
or grading service.
    (p) Plant status. The extent to which a plant complies with this 
subpart shall be determined under procedures as set forth by the 
Administrator.
    (q) Producer. The person or persons who exercise control over the 
production of the milk delivered to a processing plant or receiving 
station and who receive payment for this product.
    (r) Quality control. The inspection of the quality of the raw 
material and the conditions relative to the preparation of the product 
from its raw state through each step in the entire process. It includes 
the inspection of conditions under which the product is prepared, 
processed, manufactured, packed and stored. In addition, assistance and 
guidance is offered to improve the raw milk quality, processing methods, 
quality, stability, and packaging and handling of the finished product.
    (s) Regulations. The term ``regulations'' means the provisions 
contained in this part.
    (t) Shall. Expresses a provision that is mandatory.
    (u) Should. Expresses recommended nonmandatory provisions which when 
followed would significantly aid in a quality improvement program.
    (v) Standard Methods for the Examination of Dairy Products. 
``Standard Methods for the Examination of Dairy Products,'' a 
publication of the American Public Health Association, 1015 Fifteenth 
Street, NW Washington, D.C. 20005.
    (w) 3-A Sanitary Standards and Accepted Practice. The latest 
standards for dairy equipment and accepted practices formulated by the 
3-A Sanitary Standards Committees representing the International 
Association for Food Protection, the Food and Drug Administration, and 
the Dairy Industry Committee. Published by the International Association 
for Food Protection, 6200 Aurora Avenue, Suite 200 W, Des Moines, Iowa 
50322-2863.
    (x) USDA or Department. Means the United States Department of 
Agriculture.

[[Page 113]]

    (y) Receiving Station. Any place, premise, or establishment where 
milk or dairy products are received, collected or handled for transfer 
to a processing or manufacturing plant.
    (z) Transfer station. Any place, premise, or establishment where 
milk or dairy products are transferred directly from one transport tank 
to another.
    (aa) Corrosion-resistant. Those materials that maintain their 
original surface characteristics under prolonged influence of the 
product to be contacted, cleaning compounds and sanitizing solutions, 
and other conditions of the environment in which used.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 50 
FR 34672, Aug. 27, 1985; 58 FR 42413, Aug. 9, 1993; 59 FR 24321, May 10, 
1994; 59 FR 50121, Sep. 30, 1994; 67 FR 48974, July 29, 2002]

                                 Purpose



Sec. 58.122  Approved plants under USDA inspection and grading service.

    (a) Adoption of certain sound practices at dairy plants will 
significantly aid the operators to manufacture more consistently, 
uniform high-quality stable dairy products. Only dairy products 
manufactured, processed and packaged in an approved plant may be graded 
or inspected and identified with official identification. The 
specifications established herein provide the basis for a quality 
maintenance program which may be effectively carried forward through 
official inspection, grading, and quality control service.
    (b) USDA inspection and grading service is provided to dairy product 
manufacturing plants on a voluntary basis. The operator of any dairy 
plant desiring to have such a plant qualified as an approved plant under 
USDA inspection and grading service may request surveys of such plant, 
premises, equipment, facilities, methods of operation, and raw material 
to determine whether they are adequate to permit inspection and grading 
service. The cost of this survey shall be borne by the applicant.

                             Approved Plants



Sec. 58.123  Survey and approval.

    Prior to the approval of a plant, a designated representative of the 
Administrator shall make a survey of the plant, premises, storage 
facilities, equipment and raw material, volume of raw material processed 
daily, and facilities for handling the products at the plant. The survey 
shall be made at least twice a year to determine whether the facilities, 
equipment, method of operation, and raw material being received are 
adequate and suitable for USDA inspection and grading service in 
accordance with the provisions of this part. To be eligible for approval 
a plant shall satisfactorily meet the specifications of this subpart as 
determined by the Administrator.



Sec. 58.124  Denial or suspension of plant approval.

    Plant approval may be denied or suspended if a determination is made 
by a designated representative of the Administrator that the plant is 
not performing satisfactorily in regard to; (a) the classification of 
milk, (b) proper segregation and disposal of unwholesome raw materials 
or finished product, (c) adequate facilities and condition of processing 
equipment, (d) sanitary conditions of plant and equipment, (e) control 
of insects, rodents and other vermin, (f) use of non-toxic product 
contact surfaces and prevention of adulteration of raw materials and 
products with chemicals or other foreign material, (g) proper operating 
procedures, (h) the maintenance of legal composition of finished 
products, (i) the manufacture of stable dairy products, of desirable 
keeping quality characteristics, (j) proper storage conditions for 
ingredients and dairy products, or (k) suitable and effective packaging 
methods and material.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, and amended at 
67 FR 48974, July 29, 2002]

[[Page 114]]

         Premises, Buildings, Facilities, Equipment and Utensils



Sec. 58.125  Premises.

    (a) The premises shall be kept in a clean and orderly condition, and 
shall be free from strong or foul odors, smoke, or excessive air 
pollution. Construction and maintenance of driveways and adjacent plant 
traffic areas should be of cement, asphalt, or similar material to keep 
dust and mud to a minimum.
    (b) Surroundings. The immediate surroundings shall be free from 
refuse, rubbish, overgrown vegetation, and waste materials to prevent 
harborage of rodents, insects and other vermin.
    (c) Drainage. A suitable drainage system shall be provided which 
will allow rapid drainage of all water from plant buildings and 
driveways, including surface water around the plant and on the premises, 
and all such water shall be disposed of in such a manner as to prevent 
an environmental or health hazard.



Sec. 58.126  Buildings.

    The building or buildings shall be of sound construction and shall 
be kept in good repair to prevent the entrance or harboring of rodents, 
birds, insects, vermin, dogs, and cats. All service pipe openings 
through outside walls shall be effectively sealed around the opening or 
provided with tight metal collars.
    (a) Outside doors, windows, openings, etc. All openings to the outer 
air including doors, windows, skylights and transoms shall be 
effectively protected or screened against the entrance of flies and 
other insects, rodents, birds, dust and dirt. All outside doors opening 
into processing rooms shall be in good condition and fit propperly. All 
hinged, outside screen doors shall open outward. All doors and windows 
should be kept clean and in good repair. Outside conveyor openings and 
other special-type outside openings shall be effectively protected to 
prevent the entrance of flies and rodents, by the use of doors, screens, 
flaps, fans or tunnels. Outside openings for sanitary pipelines shall be 
covered when not in use. On new construction window sills should be 
slanted downward at approximately a 45 deg. angle.
    (b) Walls, ceilings, partitions and posts. The walls, ceilings, 
partitions, and posts of rooms in which milk, or dairy products are 
processed, manufactured, handled, packaged or stored (except dry storage 
of packaged finished products and supplies) or in which utensils are 
washed and stored, shall be smoothly finished with a suitable material 
of light color, which is substantially impervious to moisture and kept 
clean. They shall be refinished as often as necessary to maintain a 
neat, clean surface. For easier cleaning new construction should have 
rounded cove at the juncture of the wall and floor in all receiving, 
pasteurizing, manufacturing, packaging and storage rooms.
    (c) Floors. The floors of all rooms in which milk, or dairy products 
are processed, manufactured, packaged or stored or in which utensils are 
washed shall be constructed of tile properly laid with impervious joint 
material, concrete, or other equally impervious material. The floors 
shall be smooth, kept in good repair, graded so that there will be no 
pools of standing water or milk products after flushing, and all 
openings to the drains shall be equipped with traps properly constructed 
and kept in good repair. On new construction, bell and standpipe type 
traps shall not be used. The plumbing shall be so installed as to 
prevent the back-up of sewage into the drain lines and to the floor of 
the plant. Cold storage rooms used for storage of product and starter 
rooms need not be provided with floor drains if the floor is sloped to 
drain to an exit.

Sound, smooth, wood floors which can be kept clean, may be used in rooms 
where new containers and supplies and certain packaged finished products 
are stored.
    (d) Lighting and ventilation. (1) Light shall be ample, natural or 
artificial, or both, of good quality and well distributed. All rooms in 
which dairy products are manufactured or packaged or where utensils are 
washed shall have at least 30 foot-candles of light intensity on all 
working surfaces. Rooms where dairy products are graded or examined for 
condition and quality shall have at least 50 foot-candles of light 
intensity on the working surface. Restrooms and locker rooms should have 
at least 30

[[Page 115]]

foot-candles of light intensity. In all other rooms there shall be 
provided at least 5 foot-candles of light intensity when measured at a 
distance of 30 inches from the floor. Where contamination of product by 
broken glass is possible, light bulbs and fluorescent tubes shall be 
protected against breakage.
    (2) There shall be adequate heating, ventilation or air conditioning 
for all rooms and compartments to permit maintenance of sanitary 
conditions. Exhaust or inlet fans, vents, hoods or temperature and 
humidity control equipment shall be provided where and when needed, to 
minimize or control room temperatures, eliminate objectionable odors, 
and aid in prevention of moisture condensation and mold. Inlet fans 
should be provided with an adequate air filtering device to eliminate 
dirt and dust from the incoming air. Ventilation systems shall be 
cleaned periodically as needed and maintained in good repair. Exhaust 
outlets shall be screened or provided with self closing louvers to 
prevent the entrance of insects when not in use.
    (e) Rooms and compartments. Rooms and compartments in which any raw 
material, packaging, ingredient supplies or dairy products are handled, 
manufactured, packaged or stored shall be so designed, constructed and 
maintained as to assure desirable room temperatures and clean and 
orderly operating conditions free from objectionable odors and vapors. 
Enclosed bulk milk receiving rooms, when present, shall be separated 
from the processing rooms by a wall. Rooms for receiving can milk shall 
be separated from the processing rooms by a partition or by suitable 
arrangement of equipment. Processing rooms shall be kept free from 
equipment and materials not regularly used.
    (1) Coolers and freezers. Coolers and freezers where dairy products 
are stored shall be clean, reasonably dry and maintained at the proper 
uniform temperature and humidity to adequately protect the product, and 
minimize the growth of mold. Adequate circulation of air shall be 
maintained at all times. They shall be free from rodents, insects, and 
pests. Shelves shall be kept clean and dry. Refrigeration units shall 
have provisions for collecting and disposing of condensate.
    (2) Supply room. The supply rooms or areas used for the storing of 
packaging materials; containers, and miscellaneous ingredients shall be 
kept clean, dry, orderly, free from insects, rodents, and mold, and 
maintained in good repair. Such items stored therein shall be adequately 
protected from dust, dirt, or other extraneous material and so arranged 
on racks, shelves or pallets to permit access to the supplies and 
cleaning and inspection of the room. Insecticides, rodenticides, 
cleaning compounds and other nonfood products shall be properly labeled 
and segregated, and stored in a separate room or cabinet away from milk, 
dairy products, ingredients or packaging supplies.
    (3) Boiler rooms, shop rooms and shop areas. The boiler, and shop 
rooms shall be separated from other rooms where milk, and dairy products 
are processed, manufactured, packaged, handled or stored. Shop rooms or 
areas should be kept orderly and reasonably free from dust and dirt.
    (4) Toilet and dressing rooms. Adequate toilet and dressing room 
facilities shall be conveniently located.
    (i) Toilet rooms shall not open directly into any room in which milk 
or dairy products are processed, manufactured, packaged or stored; doors 
shall be self-closing; ventilation shall be provided by mechanical means 
to the outer air; fixtures shall be kept clean and in good repair.
    (ii) All employees shall be furnished with a locker or other 
suitable facility and the lockers and dressing rooms shall be kept clean 
and orderly. Adequate handwashing facilities shall be provided. Legible 
signs shall be posted conspicuously in each toilet or dressing room 
directing employees to wash their hands before returning to work.
    (5) Laboratory. (i) Consistent with the size and type of plant and 
the volume of dairy products manufactured, an adequately equipped 
laboratory shall be maintained and properly staffed with qualified and 
trained personnel for quality control and analytical testing. The 
laboratory should be located

[[Page 116]]

reasonably close to the processing activity and be of sufficient size to 
perform tests necessary in evaluating the quality of raw and finished 
products.
    (ii) Approved laboratories shall be supervised by the USDA resident 
inspector in all aspects of official testing and in reporting results. 
Plant laboratory personnel in such plants may be authorized by USDA to 
perform official duties. The AMS Science and Technology Programs will 
provide independent auditing of laboratory analysis functions.
    (iii) An approved central control laboratory serving more than one 
plant may be acceptable, if conveniently located to the dairy plants, 
and if samples and results can be transmitted without undue delay.
    (6) Starter facilities. Adequate facilities shall be provided for 
the handling of starter cultures. The facilities shall not be located 
near areas where contamination is likely to occur.
    (7) Grading and inspection room. When grading or inspection of 
product is performed the plants shall furnish a room or designated area 
specifically for this purpose. The room or area shall be suitably 
located, sufficient in size, well lighted (see Sec. 58.126d), ventilated 
and the temperature shall be not less than 60  deg.F. It shall be kept 
clean and dry, free from foreign odors and reasonably free from 
disturbing elements which would interfere with proper concentration by 
the grader or inspector. The grading or inspection room or area shall be 
equipped with a table or desk and convenient facilities for washing 
hands.
    (8) Resident inspector's facilities. In resident plants, an office 
or space shall be provided for official purposes. The room or space 
should be conveniently located in or near the approved laboratory, 
adequate in size, and equipped with desk and a lockable storage supply 
cabinet, and clothes locker. It shall be well lighted, ventilated or air 
conditioned, and heated. Custodial service shall be furnished on a 
regular basis.
    (9) Lunch rooms and eating areas. When these areas are provided, 
they (i) shall be kept clean and orderly, (ii) should not open directly 
into any room in which milk or dairy products are processed, 
manufactured or packaged, and (iii) signs shall be posted directing 
employees to wash their hands before returning to work.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 58 
FR 42413, Aug. 9, 1993; 59 FR 24321, May 10, 1994; 59 FR 50121, Sept. 
30, 1994; 67 FR 48974, July 29, 2002]



Sec. 58.127  Facilities.

    (a) Water supply. There shall be an ample supply of both hot and 
cold water of safe and sanitary quality, with adequate facilities for 
its proper distribution throughout the plant, and protected against 
contamination. Water from other facilities, when officially approved, 
may be used for boiler feed water and condenser water provided that such 
water lines are completely separated from the water lines carrying the 
sanitary water supply, and the equipment is so constructed and 
controlled as to preclude contamination of product contact surfaces. 
There shall be no cross connection between potable water lines and non-
potable water lines or between public and private water supplies. 
Bacteriological examinations shall be made of the plant's sanitary water 
supply taken at the plant at least twice a year, or as often as 
necessary to determine safety and suitability as related to product 
keeping quality for use in manufactured products shall be made by a USDA 
or State agency laboratory except for supplies that are regularly tested 
for purity and bacteriological quality, and approved by the local health 
officer. The results of all water tests shall be kept on file at the 
plant for which the test was performed.

The location, construction, and operation of any well shall comply with 
regulations of the appropriate agency.
    (b) Drinking-water facilities. Drinking-water facilities of a 
sanitary type shall be provided in the plant and should be conveniently 
located.
    (c) Hand-washing facilities. Convenient hand-washing facilities 
shall be provided, including hot and cold running water, soap or other 
detergents, and sanitary single service towels or air driers. Such 
accommodations shall be located in or adjacent to toilet and dressing 
rooms and also at such other

[[Page 117]]

places in the plant as may be essential to the cleanliness of all 
personnel handling products. Vats for washing equipment or utensils 
shall not be used as hand-washing facilities. Containers shall be 
provided for used towels and other wastes. The containers may be metal 
or plastic, disposable or reuseable and should have self-closing covers.
    (d) Steam. Steam shall be supplied in sufficient volume and pressure 
for satisfactory operation of each applicable piece of equipment. 
Culinary steam used in direct contact with milk or dairy products shall 
be free from harmful substances or extraneous material and only those 
boiler water additives that meet the requirements of 21 CFR 173.310 
shall be used, or a secondary steam generator shall be used in which 
soft water is converted to steam and no boiler compounds are used. Steam 
traps, strainers, and condensate traps shall be used wherever applicable 
to insure a satisfactory and safe steam supply. Culinary steam shall 
comply with the 3-A Accepted Practices for a Method of Producing Steam 
of Culinary Quality, number 609. This document is available from the 
International Association for Food Protection, 6200 Aurora Avenue, Suite 
200 W, Des Moines, Iowa 50322-2863.
    (e) Air under pressure. The method for supplying air under pressure, 
which comes in contact with milk or dairy products or any product 
contact surface shall comply with the 3-A Accepted Practices for 
Supplying Air Under Pressure.
    (f) Disposal of wastes. Dairy wastes shall be properly disposed of 
from the plant and premises consistent with requirements imposed by the 
Environmental Protection Act. The sewer system shall have sufficient 
slope and capacity to readily remove all waste from the various 
processing operations. Where a public sewer is not available, all wastes 
shall be properly disposed of so as not to contaminate milk equipment or 
to create a nuisance or public health hazard. Containers used for the 
collection and holding of wastes shall be constructed of metal, plastic, 
or other equally impervious material and kept covered with tight fitting 
lids. Waste shall be stored in an area or room in a manner to protect it 
from flies and vermin. Solid wastes shall be disposed of regularly and 
the containers cleaned before reuse. Accumulation of dry waste paper and 
cardboard shall be kept to a minimum and disposed of in a manner that is 
environmentally acceptable.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48974, July 29, 2002]



Sec. 58.128  Equipment and utensils.

    (a) General construction, repair and installation. The equipment and 
utensils used for the processing of milk and manufacture of dairy 
products shall be constructed to be readily demountable where necessary 
for cleaning and sanitizing. The product contact surfaces of all 
utensils and equipment such as holding tanks, pasteurizers, coolers, 
vats, agitators, pumps, sanitary piping and fittings or any specialized 
equipment shall be constructed of stainless steel, or other materials 
which under conditions of intended use are as equally corrosion 
resistant. Non-metallic parts other than glass having product contact 
surfaces shall comply with 3-A Sanitary Standards for Plastic or Rubber 
and Rubber-Like Materials. Equipment and utensils used for cleaning 
shall be in an acceptable condition, such as not rusty, pitted or 
corroded. All equipment and piping shall be designed and installed so as 
to be easily accessible for cleaning, and shall be kept in good repair, 
free from cracks and corroded surfaces. New or rearranged equipment, 
shall be set away from any wall or spaced in such a manner as to 
facilitate proper cleaning and to maintain good housekeeping. All parts 
or interior surfaces of equipment, pipes (except certain piping cleaned-
in-place) or fittings, including valves and connections shall be 
accessible for inspection. Milk and dairy product pumps shall be of a 
sanitary type and easily dismantled for cleaning or shall be of 
specially approved construction to allow effective cleaning in place.

All C.I.P. systems shall comply with the 3-A Accepted Practices for 
Permanently Installed Sanitary Product, Pipelines and Cleaning Systems.

[[Page 118]]

    (b) Weigh cans and receiving tanks. Weigh cans and receiving tanks 
shall comply with the 3-A Sanitary Standards for Weigh Cans and 
Receiving Tanks for Raw Milk and shall be easily accessible for cleaning 
both inside and outside and shall be elevated above the floor and 
protected sufficiently with the necessary covers or baffles to prevent 
contamination from splash, condensate and drippage. Where necessary to 
provide easy access for cleaning of floors and adjacent wall areas, the 
receiving tank shall be equipped with wheels or casters to allow easy 
removal.
    (c) Can washers. Can washers shall have sufficient capacity and 
ability to discharge a clean dry can and cover and shall be kept 
properly timed in accordance with the instructions of the manufacturer. 
They should be equipped with proper temperature controls on the wash and 
rinse tanks and the following additional devices: Prerinse jet, wash 
tank solution feeder, can sanitizing attachment, forced air vapor 
exhaust, and removable air filter on drying chamber. The water and steam 
lines supplying the washer shall maintain a reasonably uniform pressure 
and if necessary be equipped with pressure regulating valves. The steam 
pressure to the can washer should be not less than 80 pounds, and the 
temperature of the wash and final rinse solution should be automatically 
controlled and not exceed 140  deg.F.
    (d) Product storage tanks or vats. Storage tanks or vats shall be 
fully enclosed or tightly covered and well insulated. The entire 
interior surface, agitator and all appurtenances shall be accessible for 
thorough cleaning and inspection. Any opening at the top of the tank or 
vat including the entrance of the shaft shall be suitably protected 
against the entrance of dust, moisture, insects, oil or grease. The 
sight glasses, if used, shall be sound, clear, and in good repair. Vats 
which have hinged covers shall be easily cleaned and shall be so 
designed that moisture, or dust on the surface cannot enter the vat when 
the covers are raised. If the storage tanks or vats are equipped with 
air agitation, the system shall be of an approved type and properly 
installed in accordance with the 3-A Accepted Practices for Supplying 
Air Under Pressure. Storage tanks or vats intended to hold product for 
longer than approximately 8 hours shall be equipped with adequate 
refrigeration and/or have adequate insulation. New or replacement 
storage tanks or vats shall comply with the appropriate 3-A Sanitary 
Standards for Storage Tanks for Milk and Milk Products or Sanitary 
Standards for Silo-Type Storage Tanks for Milk and Milk Products and 
shall be equipped with thermometers in good operating order.
    (e) Separators. All product contact surfaces of separators shall be 
free from rust and pits and insofar as practicable shall be of stainless 
steel or other equally noncorrosive metals.
    (f) Coil or dome type batch pasteurizers. Coil or dome type batch 
pasteurizers shall be stainless steel lined and if the coil is not 
stainless steel or other equally noncorrosive metal it shall be properly 
tinned over the entire surface. Sanitary seal assemblies at the shaft 
ends of coil vats shall be of the removable type, except that existing 
equipment not provided with this type gland will be acceptable if the 
packing glands are maintained and operated without adverse effects. New 
or replacement units shall be provided with removable packing glands. 
Dome type pasteurizer agitators shall be stainless steel except that any 
non-metallic parts shall comply with 3-A Sanitary Standards for Plastic 
or Rubber and Rubberlike Materials, as applicable. Each pasteurizer used 
for heating product at a temperature of 5  deg.F. or more above the 
minimum pasteurization temperature need not have the airspace heater. It 
shall be equipped with an airspace thermometer to insure a temperature 
at least 5  deg.F. above that required for pasteurization of the 
product. There shall be adequate means of controlling the temperature of 
the heating medium, Batch pasteurizers shall have temperature indicating 
and recording devices.
    (g) Short time pasteurizing systems. When pasteurization is intended 
or required, an approved timing pump or device, recorder-controller, 
automatic flow diversion valve and holding tube or its equivalent, if 
not a part of the existing equipment, shall be installed

[[Page 119]]

on all such equipment used for pasteurization, to assure complete 
pasteurization. The entire facility shall comply with the 3-A Accepted 
Practices for the Sanitary Construction, Installation, Testing and 
Operation of High Temperature Short Time Pasteurizers. After the unit 
has been tested according to the 3-A Accepted Practices, the timing pump 
or device and the recorder controller shall be sealed at the correct 
setting to assure pasteurization. The system should be rechecked semi-
annually to assure continued compliance with the 3-A Accepted Practices. 
Sealing and rechecking of the unit shall be performed by the control 
authority having jurisdiction. When direct steam pasteurizers are used, 
the steam, prior to entering the product, shall be conducted through a 
steam strainer and a steam purifier equipped with a steam trap and only 
steam meeting the requirements for culinary steam shall be used.
    (h) Thermometers and recorders--(1) Indicating thermometers. (i) 
Long stem indicating thermometers which are accurate within 0.5  deg.F., 
plus or minus, for the applicable temperature range, shall be provided 
for checking the temperature of pasteurization and cooling of products 
in vats and checking the accuracy of recording thermometers.
    (ii) Short stem indicating thermometers, which are accurate within 
0.5  deg.F., plus or minus, for the applicable temperature range, shall 
be installed in the proper stationary position in all pasteurizers. 
Storage tanks where temperature readings are required shall have 
thermometers which are accurate within 2.0  deg.F., plus or minus.
    (iii) Air space indicating thermometers, where applicable, which are 
accurate within 1.0  deg.F., plus or minus, for the proper temperature 
range shall also be installed above the surface of the products 
pasteurized in vats, to make certain that the temperature of the foam 
and/or air above the products pasteurized also received the required 
minimum temperature treatment.
    (2) Recording thermometers. (i) Recording thermometers that are 
accurate within 1  deg.F., plus or minus, for the applicable temperature 
range, shall be used on each heat treating, pasteurizing or thermal 
processing unit to record the heating process.
    (ii) Additional use of recording thermometers accurate within 2 
deg.F., plus or minus may be required where a record of temperature or 
time of cooling and holding is of significant importance.
    (iii) Recorder charts shall be marked to show date and plant 
identification, reading of the indicating thermometer at a particular 
referenced reading point on the recording chart, amount and name of 
product, product temperature at which the ``cut-in'' and ``cut-out'' 
function, record of the period in which flow diversion valve is in 
forward-flow position, signature or initials of operator.
    (i) Surface coolers. Surface coolers shall be equipped with hinged 
or removable covers for the protection of the product. The edges of the 
fins shall be so designed as to divert condensate on nonproduct contact 
surfaces away from product contact surfaces. All gaskets or swivel 
connections shall be leak proof.
    (j) Plate type heat exchangers. Plate type heat exchanger shall 
comply with the 3-A Sanitary Standards Plate Type Heat Exchangers for 
Milk and Milk Products. All gaskets shall be tight and kept in good 
operating order. Plates shall be opened for inspection by the operator 
at sufficiently frequent intervals to determine if the equipment is 
clean and in satisfactory condition. A cleaning regimen should be posted 
to insure proper cleaning procedures between inspection periods.
    (k) Internal return tubular heat exchangers. Internal return tubular 
heat exchangers shall comply with the 3-A Sanitary Standards for 
Internal Return Tubular Heat Exchangers for Use with Milk and Milk 
Products.
    (l) Pumps. Pumps used for milk, and dairy products shall be of the 
sanitary type and constructed to comply with 3-A Sanitary Standards for 
Pumps for Milk and Milk Products. Unless pumps are specifically designed 
for effective cleaning-in-place they shall be disassembled and 
thoroughly cleaned after use.
    (m) Scales. All scales shall comply with National Bureau of 
Standards Handbook 44. (Latest revision).

[[Page 120]]

    (1) Small capacity scales shall be capable of the following 
accuracy, and shall be graduated in no higher than one ounce 
graduations. (This table taken from the presently effective 1973 
revision.)

------------------------------------------------------------------------
                                                      Minimum tolerance
                                                   ---------------------
                                                      Ounces     Pounds
------------------------------------------------------------------------
Load in pounds:
  0 to 4 inclusive................................     \1/32\      0.002
  5 to 10 inclusive...............................     \1/16\       .004
  11 to 20 inclusive..............................      \1/8\       .008
  21 to 30 inclusive..............................     \3/16\       .012
  31 to 50 inclusive..............................      \1/2\       .031
  51 to 500 inclusive.............................      \3/4\       .047
------------------------------------------------------------------------

    (2) Large capacity scales shall be capable of the following 
accuracy, and shall be graduated in no higher than \1/4\ pound 
graduations for scales of capacity of up to 250 pounds; \1/2\ pound 
graduations for scales above 250 pounds capacity.

(This table taken from the presently effective 1973 revision.)

------------------------------------------------------------------------
                                                      Minimum tolerance
                                                   ---------------------
                                                      Ounces     Pounds
------------------------------------------------------------------------
Load in pounds:
  101 to 150 inclusive............................     1\1/4\      0.078
  151 to 250 inclusive............................        2         .125
  251 to 500 inclusive............................        4         .250
  501 to 1000 inclusive...........................        8         .500
  1001 to 2500 inclusive..........................  .........      1.0
------------------------------------------------------------------------


Compliance shall be determined by the appropriate regulatory authority.
    (n) Homogenizers. Homogenizers and high pressure pumps of the 
plunger type shall comply with the 3-A Sanitary Standards for 
Homogenizers and Pumps of the Plunger Type and shall be disassembled and 
thoroughly cleaned after use.
    (o) New replacement or modified equipment, processing system, or 
utensils. All new, replacement, or modified equipment and all processing 
systems, cleaning systems, utensils, or replacement parts shall comply 
with the most current, appropriate 3-A Sanitary Standards or 3-A 
Accepted Practices. If 3-A Sanitary Standards or 3-A Accepted Practices 
are not available, such equipment and replacements shall meet the 
general criteria of this section and the USDA Guidelines for the 
Sanitary Design and Fabrication of Dairy Processing Equipment available 
from USDA, Agricultural Marketing Service, Dairy Programs, Dairy Grading 
Branch, or by accessing the Internet at www.ams.gov/dairy/grade.htm.
    (p) Vacuumizing equipment. The vacuum chamber, as used for flavor 
control, shall be made of stainless steel or other equally corrosion 
resistant metal. The unit shall be constructed to facilitate cleaning 
and all product contact surfaces shall be accessible for inspection. 
Vacuum chambers located on the pasteurized side of the unit shall be 
isolated by means of a vacuum breaker and a positive activated check 
valve on the product inlet side and a vacuum breaker and a positive 
activated check valve on the discharge side. If direct steam is used, it 
should also be equipped with a ratio controller to regulate the 
composition when applicable to the finished product. Only steam which 
meets the requirements for culinary steam shall be used. The incoming 
steam supply shall be regulated by an automatic solenoid valve which 
will cut off the steam supply in the event the flow diversion valve of 
the pasteurizer is not in the forward flow position. Condensers when 
used shall be equipped with a water level control and an automatic 
safety shutoff valve.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48974, July 29, 2002]

                    Personnel, Cleanliness and Health



Sec. 58.129  Cleanliness.

    All employees shall wash their hands before beginning work and upon 
returning to work after using toilet facilities, eating, smoking or 
otherwise soiling their hands. They shall keep their hands clean and 
follow good hygienic practices while on duty. Expectorating or use of 
tobacco in any form shall be prohibited in each room and compartment 
where any milk, dairy products, or supplies are prepared, stored or 
otherwise handled. Clean white or light-colored washable or disposable 
outer garments and caps (paper caps, hard hats, or hair nets acceptable) 
shall be worn to adequately protect the hair and beards when grown by 
all persons engaged in receiving, testing, processing milk, 
manufacturing, packaging or handling dairy products.

[[Page 121]]



Sec. 58.130  Health.

    No person afflicted with a communicable disease shall be permitted 
in any room or compartment where milk and dairy products are prepared, 
manufactured or otherwise handled. No person who has a discharging or 
infected wound, sore or lesion on hands, arms or other exposed portion 
of the body shall work in any dairy processing rooms or in any capacity 
resulting in contact with milk, or dairy products. Each employee whose 
work brings him in contact with the processing or handling of dairy 
products, containers or equipment should have a medical and physical 
examination by a registered physician or by the local department of 
health at the time of employment. An employee returning to work 
following illness from a communicable disease shall have a certificate 
from the attending physician to establish proof of complete recovery.

             Protection and Transport of Raw Milk and Cream



Sec. 58.131  Equipment and facilities.

    (a)(1) Milk cans. Cans used in transporting milk from dairy farm to 
plant shall be of such construction (preferably seamless with umbrella 
lids) as to be easily cleaned, and shall be inspected, repaired, and 
replaced as necessary to exclude substantially the use of cans and lids 
with open seams, cracks, rust, milkstone, or any unsanitary condition. 
Adequate provisions should be made so that milk in cans will be cooled 
immediately after milking to 50  deg.F. or lower unless delivered to the 
plant within two hours after milking.
    (2) Farm bulk tanks. Farm bulk tanks shall comply with 3-A Sanitary 
Standards for Farm Cooling and Holding Tanks or 3-A Sanitary Standards 
for Farm Milk Storage Tanks, as applicable. They shall be installed in a 
milk house in accordance with the requirements of the regulatory agency 
in jurisdiction. The bulk cooling tanks shall be designed and equipped 
with refrigeration to permit the cooling of the milk to 40  deg.F. or 
lower within two hours after milking, and maintain it at 45  deg.F. or 
below until picked up.
    (b)(1) Receiving stations. Receiving stations shall comply with the 
applicable sections of this subpart covering premises, buildings, 
facilities, equipment, utensils, personnel, cleanliness and health.
    (2) Transfer stations. Transfer stations shall comply with the 
applicable sections of this subpart covering premises, floors, lighting, 
water supply, hand-washing facilities, disposal of wastes, general 
construction, repair and installation of equipment, piping and utensils 
and personnel--cleanliness and health. As climatic and operating 
conditions require the transfer station shall comply with the applicable 
sections for walls, ceilings, doors and windows.
    (3) Cream stations. Cream stations shall provide adequate protection 
and facilities for the handling, transferring and cooling of farm 
separated cream. The area shall be large enough to avoid undue crowding 
with a normal volume of business and shall be separated from other areas 
and the outside by self closing, tight fitting doors. All openings shall 
be screened during fly season. The floor, walls and ceiling shall be of 
satisfactory construction, in good repair and kept clean. Lighting and 
ventilation shall meet the requirements of Sec. 58.126(d). Cooling 
facilities shall be provided to cool the cream to 50  deg.F. or lower 
unless shipped within 8 hours after receipt. Facilities shall be 
provided to wash, sanitize and store cans and equipment used in the 
operation. The cream should not be more than 4 days old when picked up 
for delivery to the processing plant.
    (c)(1) Transporting milk or cream. Vehicles used for the 
transportation of can milk or cream shall be of the enclosed type, 
constructed and operated to protect the product from extreme 
temperature, dust, or other adverse conditions and they shall be kept 
clean. Decking boards or racks shall be provided where more than one 
tier of cans is carried. Cans or vehicles used for the transportation of 
milk from the farm to the plant shall not be used for transporting skim 
milk, buttermilk, or whey to producers.
    (2) Transport tanks. The exterior shell shall be clean and free from 
open seams or cracks which would permit liquid to

[[Page 122]]

enter the jacket. The interior shell shall be stainless steel and so 
constructed that it will not buckle, sag or prevent complete drainage. 
All product contact surfaces shall be smooth, easily cleaned and 
maintained in good repair. The pump and hose cabinet shall be fully 
enclosed with tight fitting doors and the inlet and outlet shall be 
provided with dust covers to give adequate protection from road dust. 
Tank manholes should be equipped with an adequate filtering system 
during loading and unloading. New and replacement transport tanks shall 
comply with 3-A Sanitary Standards for Stainless Steel Automotive Milk 
and Milk Products Transportation Tanks for Bulk Delivery and/or Farm 
Pick-up Service.
    (3) Facilities for cleaning and sanitizing. Enclosed or covered 
facilities (as climatic conditions require) shall be available for 
washing and sanitizing of transport tanks, piping, and accessories, at 
central locations or at all plants that receive or ship milk or milk 
products in transport tanks.
    (d) Transfer of milk to transport tank. Milk shall be transferred 
under sanitary conditions from farm bulk tanks through stainless steel 
piping or approved tubing. The sanitary piping and tubing shall be 
capped when not in use.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48975, July 29, 2002]

                   Quality Specifications for Raw Milk



Sec. 58.132  Basis for classification.

    The quality classification of raw milk for manufacturing purposes 
from each producer shall be based on an organoleptic examination for 
appearance and odor, a drug residue test, and quality control tests for 
sediment content, bacterial estimate and somatic cell count. All milk 
received from producers shall not exceed the Food and Drug 
Administration's established limits for pesticide, herbicide and drug 
residues. Producers shall be promptly notified of any shipment or 
portion thereof of their milk that fails to meet any of these quality 
specifications.

[58 FR 26912, May 6, 1993]'



Sec. 58.133  Methods for quality and wholesomeness determination.

    (a) Appearance and odor. The appearance of acceptable raw milk shall 
be normal and free of excessive coarse sediment when examined visually 
or by an acceptable test procedure. The milk shall not show any abnormal 
condition (including, but not limited to, curdled, ropy, bloody or 
mastitic condition), as indicated by sight or other test procedures. The 
odor shall be fresh and sweet. The milk shall be free from objectionable 
feed and other off-odors that adversely affect the finished product.
    (b) Somatic cell count. (1) A laboratory examination to determine 
the level of somatic cells shall be made at least four times in each 6-
month period at irregular intervals on milk received from each patron.
    (2) A screening test may be conducted on goat herd milk. When a goat 
herd screening sample test exceeds either of the following results, a 
confirmatory test identified in paragraph (b)(3) of this section shall 
be conducted.
    (3) Milk shall be tested for somatic cell content by using one of 
the following procedures or by any other method approved by Standard 
Methods for the Examination of Dairy Products (confirmatory test for 
somatic cells in goat milk):
    (i) Direct Microscopic Somatic Cell Count (Single Strip Procedure). 
Pyronin Y-methyl green stain or ``New York'' modification shall be used 
as the confirmatory test for goat's milk.
    (ii) Electronic Somatic Cell Count (particle counter).
    (iii) Electronic Somatic Cell Count (fluorescent dye).
    (4) The somatic cell test identified in paragraph (b)(3) of this 
section shall be considered as the official results.
    (5) Whenever the official test indicates the presence of more than 
750,000 somatic cells per ml. (1,000,000 per ml. for goat milk), the 
following procedures shall be applied:
    (i) The producer shall be notified with a warning of the excessive 
somatic cell count.
    (ii) Whenever two out of the last four consecutive somatic cell 
counts exceed 750,000 per ml. (1,000,000 per ml. for goat milk), the 
appropriate State regulatory

[[Page 123]]

authority shall be notified and a written notice given to the producer. 
This notice shall be in effect as long as two of the last four 
consecutive samples exceed 750,000 per ml. (1,000,000 per ml. for goat 
milk).
    (c) Drug residue level. (1) USDA-approved plants shall not accept 
for processing any milk testing positive for drug residue. All milk 
received at USDA-approved plants shall be sampled and tested prior to 
processing for beta lactam drug residue. When directed by the regulatory 
agency, additional testing for other drug residues shall be performed. 
Samples shall be analyzed for beta lactams and other drug residues by 
methods that have been independently evaluated or evaluated by the Food 
and Drug Administration (FDA) and that have been accepted by the (FDA) 
as effective to detect drug residues at current safe or tolerance 
levels. Safe and tolerance levels for particular drugs are established 
by the FDA and can be obtained from the U.S. Food and Drug 
Administration Center for Food Safety and Applied Nutrition, 200 C 
Street SW., Washington, DC 20204.
    (2) Individual producer milk samples for beta lactam drug residue 
testing shall be obtained from each milk shipment as follows:
    (i) Milk in farm bulk tanks. A sample shall be taken at each farm 
and shall include milk from each farm bulk tank.
    (ii) Milk in cans. A sample shall be formed separately at the 
receiving plant for each can milk producer included in a delivery, and 
shall be representative of all milk received from the producer.
    (3) Load milk samples for beta lactam drug residue testing shall be 
obtained from each milk shipment as follows:
    (i) Milk in bulk milk pickup tankers. A sample shall be taken from 
the bulk milk pickup tanker after its arrival at the plant and prior to 
further commingling.
    (ii) Milk in cans. A sample representing all of the milk received on 
a shipment shall be formed at the plant, using a sampling procedure that 
includes milk from every can on the vehicle.
    (4) Follow-up to positive-testing samples. (i) When a load sample 
tests positive for drug residue, the appropriate State regulatory agency 
shall be notified immediately of the positive test result and of the 
intended disposition of the shipment of milk containing the drug 
residue.
    (ii) Each individual producer sample represented in the positive-
testing load sample shall be singly tested to determine the producer of 
the milk sample testing positive for drug residue. Identification of the 
producer responsible for producing the milk testing positive for drug 
residue, and details of the final disposition of the shipment of milk 
containing the drug residue, shall be reported immediately to the 
appropriate agency.
    (iii) Milk shipment from the producer identified as the source of 
milk testing positive for drug residue shall cease immediately and may 
resume only after a sample from a subsequent milking does not test 
positive for drug residue.

[50 FR 34672, Aug. 27, 1985, as amended at 58 FR 26912, May 6, 1993; 67 
FR 48975, July 29, 2002]



Sec. 58.134  Sediment content.

    (a) Method of testing. Methods for determining the sediment content 
of the milk of individual producers shall be those described in the 
latest edition of Standard Methods for the Examination of Dairy 
Products. Sediment content shall be based on comparison with applicable 
charts of the United States Sediment Standards for Milk and Milk 
Products, available from USDA, AMS, Dairy Programs, Dairy 
Standardization Branch.
    (b) Sediment content classification. Milk shall be classified for 
sediment content, regardless of the results of the appearance and odor 
examination required in Sec. 58.133(a), as follows:

                         USDA Sediment Standard

    No. 1 (acceptable)--not to exceed 0.50 mg. or equivalent.
    No. 2 (acceptable)--not to exceed 1.50 mg. or equivalent.
    No. 3 (probational, not over 10 days)--not to exceed 2.50 mg. or 
equivalent.
    No. 4 (reject)--over 2.50 mg. or equivalent.
    (c) Frequency of tests. At least once each month, at irregular 
intervals, the

[[Page 124]]

milk from each producer shall be tested as follows:
    (1) Milk in cans. One or more cans of milk selected at random from 
each producer.
    (2) Milk in farm bulk tanks. A sample shall be taken from each farm 
bulk tank.
    (d) Acceptance or rejection of milk. If the sediment disc is 
classified as No. 1, No. 2, or No. 3 the producer's milk may be 
accepted. If the sediment disc is classified No. 4 the milk shall be 
rejected: Provided that, If the shipment of milk is commingled with 
other milk in a transport tank the next shipment shall not be accepted 
until its quality has been determined before being picked up; however, 
if the person making the test is unable to get to the farm before the 
next shipment it may be accepted but no further shipments shall be 
accepted unless the milk meets the requirements of No. 3 or better. In 
the case of milk classified as No. 3 or No. 4, if in cans, all cans 
shall be tested. Producers of No. 3 or No. 4 milk (cans or bulk) shall 
be notified immediately and shall be furnished applicable sediment discs 
and the next shipment shall be tested.
    (e) Retests. On test of the next shipment (if in cans, all cans 
shall be tested) milk classified as No. 1, No. 2, or No. 3 may be 
accepted, but No. 4 milk shall be rejected. Retests of bulk milk 
classified as No. 4 shall be made before pickup. The producers of No. 3 
or No. 4 milk shall be notified immediately, furnished applicable 
sediment discs and the next shipment tested.
This procedure of retesting successive shipments and accepting 
probational (No. 3) milk and rejecting No. 4 milk may be continued for 
not more than 10 calendar days. If at the end of this time all of the 
producer's milk does not meet the acceptable sediment content 
classification (No. 1 or No. 2), it shall be rejected.

[40 FR 47911, Oct. 10, 1975, Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 50 
FR 34673, Aug. 27, 1985; 67 FR 48975, July 29, 2002]



Sec. 58.135  Bacterial estimate.

    (a) Methods of Testing. Milk shall be tested for bacterial estimate 
by using one of the following methods or by any other method approved by 
Standard Methods for the Examination of Dairy Products.
    (1) Direct Microscopic clump count;
    (2) Standard plate count;
    (3) Plate loop count;
    (4) Pectin gel plate count;
    (5) Petrifilm aerobic count;
    (6) Spiral plate count;
    (7) Hydrophobic grid membrane filter count;
    (8) Impedance/conductance count;
    (9) Reflectance calorimetry.
    (b) Frequency of Testing. A laboratory examination to determine the 
bacterial estimate shall be made on a representative sample of each 
producer's milk at least once each month at irregular intervals. Samples 
shall be analyzed at a laboratory in accordance with State regulations.
    (c) Acceptance of milk. The following procedures shall be applied 
with respect to bacterial estimates:
    (1) Whenever the bacterial estimate indicates the presence of more 
than 500,000 bacteria per ml., the producer shall be notified with a 
warning of the excessive bacterial estimate.
    (2) Whenever two of the last four consecutive bacterial estimates 
exceed 500,000 per ml., the appropriate regulatory authority shall be 
notified and a written warning notice given to the producer. The notice 
shall be in effect so long as two out of the last four consecutive 
samples exceed 500,000 per ml.
    (3) An additional sample shall be taken after a lapse of 3 days but 
within 21 days of the notice required in paragraph (c) (2) of this 
section. If this sample also exceeds 500,000 per ml., subsequent 
milkings shall be excluded from the market until satisfactory compliance 
is obtained. Shipment may be resumed when an additional sample of herd 
milk is tested and found satisfactory.

[67 FR 48975, July 29, 2002]



Sec. 58.136  Rejected milk.

    A plant shall reject specific milk from a producer if the milk fails 
to meet the requirements for appearance and odor (Sec. 58.133(a)), if it 
is classified No. 4 for sediment content (Sec. 58.134), or if it tests 
positive for drug residue (Sec. 58.133(c)).

[58 FR 26913, May 6, 1993]

[[Page 125]]



Sec. 58.137  Excluded milk.

    A plant shall not accept milk from a producer if:
    (a) The milk has been in a probational (No. 3) sediment content 
classification for more than 10 calendar days (Sec. 58.134);
    (b) Three of the last five milk samples have exceeded the maximum 
bacterial estimate of 500,000 per ml. (Sec. 58.135 (c)(3)).
    (c) Three of the last five milk samples have exceeded the maximum 
somatic cell count level of 750,000 per ml. (1,000,000 per ml. for goat 
milk) (Sec. 58.133 (b)(6)); or
    (d) The producer's milk shipments to either the Grade A or the 
manufacturing grade milk market currently are not permitted due to a 
positive drug residue test (Sec. 58.133(c)(4)).

[58 FR 26913, May 6, 1993, as amended at 67 FR 48975, July 29, 2002]



Sec. 58.138  Quality testing of milk from new producers.

    A quality examination and tests shall be made on the first shipment 
of milk from a producer shipping milk to a plant for the first time or 
resuming shipment to a plant after a period of non-shipment. The milk 
shall meet the requirements for acceptable milk, somatic cell count and 
drug residue level (Secs. 58.133, 58.134 and 58.135). The buyer shall 
also confirm that the producer's milk is currently not excluded from the 
market (Sec. 58.137). Thereafter, the milk shall be tested in accordance 
with the provisions in Secs. 58.133, 58.134 and 58.135.

[58 FR 26913, May 6, 1993]



Sec. 58.139  Record of tests.

    Accurate records listing the results of quality and drug residue 
tests for each producer shall be kept on file at the plant. 
Additionally, the plant shall obtain the quality and drug residue test 
records (Sec. 58.148(a), (e) and (g)) for any producer transferring milk 
shipment from another plant. These records shall be available for 
examination by the inspector.

[58 FR 26913, May 6, 1993]



Sec. 58.140  Field service.

    A representative of the plant shall arrange to promptly visit the 
farm of each producer whose milk tests positive for drug residue, 
exceeds the maximum somatic cell count level, or does not meet the 
requirements for acceptable milk. The purpose of the visit shall be to 
inspect the milking equipment and facilities and to offer assistance to 
improve the quality of the producer's milk and eliminate any potential 
causes of drug residues. A representative of the plant should routinely 
visit each producer as often as necessary to assist and encourage the 
production of high quality milk.

[58 FR 26913, May 6, 1993]



Sec. 58.141  Alternate quality control program.

    When a plant has in operation an acceptable quality program, at the 
producer level, which is approved by the Administrator as being 
effective in obtaining results comparable to or higher than the quality 
program as outlined above for milk or cream, then such a program may be 
accepted in lieu of the program herein prescribed.

                   Operations and Operating Procedures



Sec. 58.142  Product quality and stability.

    The receiving, holding and processing of milk and cream and the 
manufacturing, handling, packaging, storing and delivery of dairy 
products shall be in accordance with clean and sanitary methods, 
consistent with good commercial practices to promote the production of 
the highest quality of finished product and improve product stability. 
Milk should not be more than three days old when picked up from the 
producer and delivered to the plant, receiving station or transfer 
station.



Sec. 58.143  Raw product storage.

    (a) All milk shall be held and processed under conditions and at 
temperatures that will avoid contamination and rapid deterioration. Drip 
milk from can washers and any other source shall not be used for the 
manufacture of dairy products. Bulk milk in storage tanks within the 
dairy plant shall be

[[Page 126]]

handled in such a manner as to minimize bacterial increase and shall be 
maintained at 45  deg.F. or lower until processing begins. This does not 
preclude holding milk at higher temperatures for a period of time, where 
applicable to particular manufacturing or processing practices.
    (b) The bacteriological quality of commingled milk in storage tanks 
shall not exceed 1,000,000/ml.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48976, July 29, 2002]



Sec. 58.144  Pasteurization or ultra-pasteurization.

    When pasteurization or ultra-pasteurization is intended or required, 
or when a product is designated ``pasteurized'' or ``ultra-pasteurized'' 
every particle of the product shall be subjected to such temperatures 
and holding periods in approved systems as will assure proper 
pasteurization or ultra-pasteurization of the product. The heat 
treatment by either process shall be sufficient to insure public health 
safety and to assure adequate keeping quality, yet retaining the most 
desirable flavor and body characteristics of the finished product.



Sec. 58.145  Composition and wholesomeness.

    All necessary precautions shall be taken to prevent contamination or 
adulteration of the milk or dairy products during manufacturing. All 
substances and ingredients used in the processing or manufacturing of 
any dairy product shall be subject to inspection and shall be wholesome 
and practically free from impurities. The finished products shall comply 
with the requirements of the Federal Food, Drug, and Cosmetic Act as to 
their composition and wholesomeness.



Sec. 58.146  Cleaning and sanitizing treatment.

    (a) Equipment and utensils. The equipment, sanitary piping and 
utensils used in receiving and processing of the milk, and manufacturing 
and handling of the product shall be maintained in a sanitary condition. 
Sanitary seal assemblies shall be removable on all agitators, pumps, and 
vats and shall be inspected at regular intervals and kept clean. Unless 
other provisions are recommended in the following supplement sections, 
all equipment not designed for C.I.P. cleaning or mechanical cleaning 
shall be disassembled after each day's use for thorough cleaning. Dairy 
cleaners, detergents, wetting agents or sanitizing agents, or other 
similar materials which will not contaminate or adversely affect the 
products may be used. Steel wool or metal sponges shall not be used in 
the cleaning of any dairy equipment or utensils.
    (1) Product contact surfaces shall be subjected to an effective 
sanitizing treatment prior to use, except where dry cleaning is 
permitted. Utensils and portable equipment used in processing and 
manufacturing operations shall be stored above the floor in clean, dry 
locations and in a self draining position on racks constructed of 
impervious corrosion-resistant material.
    (2) C.I.P. cleaning or mechanical cleaning systems shall be used 
only on equipment and pipeline systems which have been designed, 
engineered and installed for that purpose. When such cleaning is used, 
careful attention shall be given to the proper procedures to assure 
satisfactory cleaning. All C.I.P. installations and cleaning procedures 
shall be in accordance with 3-A Suggested Method for the Installation 
and Cleaning of Cleaned-In-Place Sanitary Milk Pipelines for Milk and 
Milk Products Plants. Because of the possibilities of corrosion, the 
recommendations of the cleaning compound manufacturer should be followed 
with respect to time, temperature and concentration of specific acid or 
alkaline solutions and bactericides. Such cleaning operation should be 
preceded by a thorough rinse at approximately 110-115  deg.F. 
continuously discarding the water. Following the circulation of the 
cleaning solution the equipment and lines shall be thoroughly rinsed 
with lukewarm water and checks should be made for effectiveness of 
cleaning. All caps, plugs, special fittings, valve seats, cross ends, 
pumps, and tee ends shall be opened or removed and brushed clean. All 
non-pasteurized product contact surfaces should be sanitized. 
Immediately prior to starting the product

[[Page 127]]

flow, the pasteurized product contact surfaces shall be given sanitizing 
treatment.
    (b) Milk cans and can washers. Milk cans and lids shall be cleaned, 
sanitized and dried before returning to producers. Inspection, repair or 
replacement of cans and lids shall be adequate to substantially exclude 
from use cans and lids showing open seams, cracks, rust condition, 
milkstone or any unsanitary condition.

Washers shall be maintained in a clean and satisfactory operating 
condition and kept free from accumulation of scale or debris which will 
adversely affect the efficiency of the washer. Only washing compounds 
which are compatible with the water for effective cleaning, should be 
used. The can washer should be checked regularly during the run for 
proper operation. At the end of the day, the wash and rinse tanks should 
be drained and cleaned, jets and strainers cleaned, air filters checked 
and changed or cleaned if needed, and checks should be made for proper 
adjustment and condition of mechanical parts.
    (c) Milk transport tanks. A covered or enclosed wash dock and 
cleaning and sanitizing facilities shall be available to all plants that 
receive or ship milk in tanks. Milk transport tanks, sanitary piping, 
fittings, and pumps shall be cleaned and sanitized at least once each 
day after use: Provided that, if they are not to be used immediately 
after emptying a load of milk, they shall be washed promptly after use 
and given bactericidal treatment immediately before use. After being 
washed and sanitized, each tank should be identified by a tag attached 
to the outlet valve, bearing the following information: Plant and 
specific location where cleaned, date and time of day of washing and 
sanitizing, and name of person who washed and name of person who 
sanitized the tank. The tag shall not be removed until the tank is again 
washed and sanitized.
    (d) Building. All windows, glass, partitions, and skylights should 
be washed as often as necessary to keep them clean. Cracked or broken 
glass shall be replaced promptly. The walls, ceilings and doors should 
be washed periodically and kept free from soil and unsightly conditions. 
The shelves and ledges should be wiped or vacuumed as often as necessary 
to keep them free from dust and debris. The material picked up by the 
vacuum cleaners shall be disposed of in sealed containers which will 
prevent contamination or insect infestation from the waste material.



Sec. 58.147  Insect and rodent control program.

    In addition to any commercial pest control service, if one is 
utilized, a specially designated employee should be made responsible for 
the performance of a regularly scheduled insect and rodent control 
program. Poisonous substances shall be properly labeled, and shall be 
handled, stored and used in such a manner as considered satisfactory by 
the Environmental Protection Agency.



Sec. 58.148  Plant records.

    Adequate plant records shall be maintained of all required tests and 
analyses performed in the laboratory or throughout the plant during 
storage, processing and manufacturing, on all raw milk receipts and 
dairy products. Such records shall be available for examination at all 
reasonable times by the inspector. The following are the records which 
shall be maintained for examination at the plant or receiving station 
where performed.
    (a) Sediment and bacterial test results on raw milk from each 
producer. Retain for 12 months.
    (1) Routine tests and monthly summary of all producers showing 
number and percent of total in each class.
    (2) Retests, if initial test places milk in probationary status.
    (3) Rejections of raw milk over No. 3 in quality.
    (b) Pasteurization recorder charts. Retain for 3 months.
    (c) Water supply test certificate. Retain current copy for 6 months.
    (d) Cooling and heating recorder charts. Retain for 3 months.
    (e) Load and individual drug residue test results. Retain for 12 
months.
    (f) Notifications to appropriate State regulatory agencies of 
positive drug residue tests and intended and final

[[Page 128]]

dispositions of milk testing positive for drug residue. Retain for 12 
months.
    (g) Somatic cell count test results on raw milk from each producer. 
Retain for 12 months.

(Approved by the Office of Management and Budget under OMB control 
number 0583-0047) \1\
---------------------------------------------------------------------------

    \1\ Editorial Note: See table appearing in Sec. 58.100 for correct 
OMB control number.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 745, Jan. 7, 1982; 58 FR 26913, May 6, 1993]



Sec. 58.149  Alternate quality control programs for dairy products.

    (a) When a plant has in operation an acceptable quality control 
program which is approved by the Administrator as being effective in 
obtaining results comparable to or higher than the quality control 
program as outlined in this subpart, then such a program may be accepted 
in lieu of the program herein prescribed.
    (b) Where a minimum number of samples per batch of product, or per 
unit of time on continuous production runs are not specified, the phrase 
``as many samples shall be taken as is necessary to assure compliance to 
specific quality requirements'' is used. Acceptable performance of this 
would be any method approved by the Administrator as meeting sound 
statistical methods of selecting samples and determining the number of 
samples to be taken.

                  Packaging and General Identification



Sec. 58.150  Containers.

    (a) The size, style, and type of packaging used for dairy products 
shall be commercially acceptable containers and packaging materials 
which will satisfactorily cover and protect the quality of the contents 
during storage and regular channels of trade and under normal conditions 
of handling.
    (b) Packaging materials for dairy products shall be selected which 
will provide sufficiently low permeability to air and vapor to prevent 
the formation of mold growth and surface oxidation. In addition, the 
wrapper should be resistant to puncturing, tearing, cracking or breaking 
under normal conditions of handling, shipping and storage. When special 
type packaging is used, the instructions of the manufacturer shall be 
followed closely as to its application and methods of closure.



Sec. 58.151  Packaging and repackaging.

    (a) Packaging dairy products or cutting and repackaging all styles 
of dairy products shall be conducted under rigid sanitary conditions. 
The atmosphere of the packaging rooms, the equipment and packaging 
materials shall be practically free from mold and bacterial 
contamination. Methods for checking the level of contamination shall be 
as prescribed by the latest edition of Standard Methods or by other 
satisfactory methods approved by the Administrator.
    (b) When officially graded bulk dairy products are to be repackaged 
into consumer type packages with official grade labels or other official 
identification, a supervisor of packaging shall be required, see subpart 
A of this part. (title 7, Secs. 58.2 and 58.53 of the Code of Federal 
Regulations). If the packaging or repackaging is done in a plant other 
than the one in which the dairy product is manufactured, the plant, 
equipment, facilities and personnel shall meet the same requirements as 
outlined in this subpart.



Sec. 58.152  General identification.

    All commercial bulk packages or consumer packaged product containing 
dairy products manufactured under the provisions of this subpart shall 
comply with the applicable regulation of the Food and Drug 
Administration.

                       Storage of Finished Product



Sec. 58.153  Dry storage.

    The product should be stored at least 18 inches from the wall in 
aisles, rows, or sections and lots, in such a manner as to be orderly 
and easily accessible for inspection. Rooms should be cleaned regularly. 
It is recommended that dunnage or pallets be used when practical. Care 
shall be taken in the storage of any other product foreign to dairy 
products in the same room, in order to prevent impairment or damage

[[Page 129]]

to the dairy product from mold, absorbed odors, or vermin or insect 
infestation. Control of humidity and temperature shall be maintained at 
all times, consistent with good commercial practices, to prevent 
conditions detrimental to the product and container.



Sec. 58.154  Refrigerated storage.

    Finished product in containers subject to such conditions that will 
affect its useability shall be placed on shelves, dunnage or pallets and 
properly identified. It shall be stored under temperatures that will 
best maintain the initial quality. The product shall not be exposed to 
anything from which it might absorb any foreign odors or be contaminated 
by drippage or condensation.

             Inspection, Grading and Official Identification



Sec. 58.155  Grading.

    Dairy products which have been processed or manufactured in 
accordance with the provisions of this subpart may be graded by the 
grader in accordance with the U.S. Standards for Grades. Laboratory 
analyses, when required in determining the final grade shall be 
conducted in an approved laboratory.



Sec. 58.156  Inspection.

    Dairy products, which have been processed or manufactured in an 
approved plant, and for which there are no official U.S. Standards for 
Grades, shall be inspected for quality by the inspector in accordance 
with contract requirements or product specifications established by the 
U.S. Department of Agriculture or other Federal agency or buyer and 
seller. Laboratory analysis when required shall be conducted in an 
approved laboratory.



Sec. 58.157  Inspection or grading certificates.

    All dairy products which have been processed or manufactured, 
packaged and inspected or graded in accordance with the provision of 
this part may be covered by an inspection or grading certificate issued 
by the inspector or grader.



Sec. 58.158  Official identification.

    (a) Application for authority to apply official identification to 
packaging material or containers shall be made in accordance with the 
provisions of subpart A of this part. (title 7, Secs. 58.49 through 
58.57 of the Code of Federal Regulations.)
    (b) Only dairy products received, processed, or manufactured in 
accordance with the specifications contained in this subpart and 
inspected and/or graded in accordance with the provisions of this part 
may be identified with official identification.

                          Explanation of Terms



Sec. 58.159  Terms.

    (a) Fresh and sweet. Free from ``old milk'' flavor of developed 
acidity or other off-flavors.
    (b) Normal feed. Regional feed flavors, such as alfalfa, clover, 
silage, or similar feeds or grasses (weed flavors, such as peppergrass, 
French weed, onion, garlic, or other obnoxious weeds, excluded).
    (c) Off-flavors. Tastes or odors, such as utensil, bitter, barny, or 
other associated defects when present to a degree readily detectable.
    (d) Developed acidity. An apparent increase from the normal acidity 
of the milk to a degree of taste and odor which is detectable.
    (e) Extraneous matter. Foreign substances, such as filth, hair, 
insects and fragments thereof, and rodents, and materials, such as 
metal, fiber, wood and glass.
    (f) Sediment. Fine particles of material other than the foreign 
substances and materials defined in paragraph (e) of this section.
    (g) C.I.P. The abbreviation of an approved system of cleaning 
pipelines called ``Cleaned-in-Place.''
    (h) Mechanical cleaning. Denotes cleaning solely by circulation and/
or flowing chemical detergent solution and water rinses onto and over 
the surfaces to be cleaned, by mechanical means.

[[Page 130]]

 Supplemental Specifications for Plants Manufacturing, Processing, and 
Packaging Nonfat Dry Milk, Instant Nonfat Dry Milk, Dry Whole Milk, and 
                             Dry Buttermilk

                               Definitions



Sec. 58.205  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning:
    (a) Nonfat dry milk. The product obtained by the removal of only 
water from pasteurized skim milk. It contains not more than 5 percent by 
weight of moisture and not more than 1\1/2\ percent by weight of milkfat 
and it conforms to the applicable provisions of 21 CFR 131 ``Milk and 
Cream'' as issued by the Food and Drug Administration. Nonfat dry milk 
shall not contain nor be derived from dry buttermilk, dry whey, or 
products other than skim milk, and shall not contain any added 
preservative, neutralizing agent, or other chemical.
    (b) Instant nonfat dry milk. Instant nonfat dry milk is nonfat dry 
milk which has been produced in such a manner as to substantially 
improve its dispersing and reconstitution characteristics over that 
produced by the conventional process. Instant nonfat dry milk shall not 
contain dry buttermilk, dry whey, or products other than nonfat dry 
milk, except that lactose may be added as a processing aid during 
instantizing. The instant nonfat dry milk shall not contain any added 
preservatives, neutralizing agent, or other chemical. If lactose is 
used, the amount of lactose shall be the minimum required to produce the 
desired effect, but in no case shall the amount exceed 2.0 percent of 
the weight of the nonfat dry milk. If instant nonfat dry milk is 
fortified with vitamin A, and the product is reconstituted in accordance 
with the label directions, each quart of the reconstituted product shall 
contain 2000 International Units thereof. If instant nonfat dry milk is 
fortified with vitamin D, and the product is reconstituted in accordance 
with the label directions, each quart of the reconstituted product shall 
contain 400 International Units thereof.
    (c) Dry whole milk. The pasteurized product resulting from the 
removal of water from milk and contains the lactose, milk proteins, milk 
fat, and milk minerals in the same relative proportions as in the fresh 
milk from which made. The milk may be standardized but shall not contain 
buttermilk, or any added preservative, neutralizing agent or other 
chemicals.
    (d) Dry buttermilk. The product resulting from drying liquid 
buttermilk that was derived from the churning of butter and pasteurized 
prior to condensing at a temperature of 161  deg.F for 15 seconds or its 
equivalent in bacterial destruction. Dry buttermilk shall have a protein 
content of not less than 30.0 percent. Dry buttermilk shall not contain 
nor be derived from nonfat dry milk, dry whey, or products other than 
buttermilk, and shall not contain any added preservative, neutralizing 
agent, or other chemical.
    (e) Dry buttermilk product. The product resulting from drying liquid 
buttermilk that was derived from the churning of butter and pasteurized 
prior to condensing at a temperature of 161  deg.F for 15 seconds or its 
equivalent in bacterial destruction. Dry buttermilk product has a 
protein content less than 30.0 percent. Dry buttermilk product shall not 
contain nor be derived from nonfat dry milk, dry whey, or products other 
than buttermilk, and shall not contain any added preservative, 
neutralizing agent, or other chemical.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 56 
FR 33855, July 24, 1991; 61 FR 17548, Apr. 22, 1996; 61 FR 35590, July 
8, 1996]

                         Rooms and Compartments



Sec. 58.210  Dry storage of product.

    Storage rooms for the dry storage of product shall be adequate in 
size, kept clean, orderly, free from rodents, insects, and mold, and 
maintained in good repair. They shall be adequately lighted and 
ventilated. The ceilings, walls, beams and floors should be free

[[Page 131]]

from structural defects and inaccessible false areas which may harbor 
insects.



Sec. 58.211  Packaging room for bulk products.

    A separate room or area shall be provided for filling bulk 
containers, and shall be constructed in accordance with Sec. 58.126. The 
number of control panels and switch boxes in this area should be kept to 
a minimum. Control panels shall be mounted a sufficient distance from 
the walls to facilitate cleaning or satisfactorily sealed to the wall, 
or shall be mounted in the wall and provided with tight fitting 
removable doors to facilitate cleaning. An adequate exhaust system shall 
be provided to minimize the accumulation of product dust within the 
packaging room and where needed, a dust collector shall be provided and 
properly maintained to keep roofs and outside areas free of dry product. 
Only packaging materials that are used within a day's operation may be 
kept in the packaging area. These materials shall be kept on metal racks 
or tables at least six inches off the floor. Unnecessary fixtures, 
equipment, or false areas which may collect dust and harbor insects, 
should not be allowed in the packaging room.



Sec. 58.212  Hopper or dump room.

    A separate room shall be provided for the transfer of bulk dry dairy 
products to the hoppers and conveyors which lead to the fillers. This 
room shall meet the same requirements for construction and facilities as 
the bulk packaging operation. Areas and facilities provided for the 
transfer of dry dairy products from portable bulk bins will be accepted 
if gasketed surfaces or direct connections are used that appreciably 
eliminate the escape of product into the area.



Sec. 58.213  Repackaging room.

    A separate room shall be provided for the filling of small packages 
and shall meet the same requirements for construction and facilities as 
the bulk packaging operation.

                         Equipment and Utensils



Sec. 58.214  General construction, repair and installation.

    All equipment and utensils necessary to the manufacture of dry milk 
products, including pasteurizer, timing-pump or device, flow diversion 
valve and recorder controller, shall meet the same general requirements 
as outlined in Sec. 58.128 of this subpart. In addition, for certain 
other equipment the following requirements shall be met.



Sec. 58.215  Pre-heaters.

    The pre-heaters shall be of stainless steel or other equally 
corrosion resistant material, cleanable, accessible for inspection and 
shall be equipped with suitable automatic temperature controls.



Sec. 58.216  Hotwells.

    The hotwells shall be enclosed or covered and should be equipped 
with indicating thermometers either in the hotwell or in the hot milk 
inlet line to the hotwell. If used for holding high heat products, they 
should also have recorders.



Sec. 58.217  Evaporators and/or vacuum pans.

    Evaporators or vacuum pans or both, with open type condensers shall 
be equipped with an automatic condenser water level control, barometric 
leg, or so constructed so as to prevent water from entering the product. 
New or replacement units shall comply with the 3-A Sanitary Standards 
for Milk and Milk Products Evaporators and Vacuum Pans. When enclosed 
type condensers are used, no special controls are needed to prevent 
water from entering the product. Water collected from the condensing of 
product (cow water) in this equipment may be utilized for prerinsing and 
cleaning solution make-up; provided it is equipped with proper controls 
that will automatically divert water with entrained solids to the waste 
water system. ``Cow water'' shall not be used for acidified or final 
equipment rinse.



Sec. 58.218  Surge tanks.

    If surge tanks are used for hot milk, and temperatures of product 
including

[[Page 132]]

foam being held in the surge tank during processing, is not maintained 
at a minimum of 150  deg.F, then two or more surge tanks shall be 
installed with cross connections to permit flushing and cleaning during 
operation. Covers easily removable for cleaning shall be provided and 
used at all times.



Sec. 58.219  High pressure pumps and lines.

    High pressure lines may be cleaned-in-place and shall be of such 
construction that dead ends, valves and the high pressure pumps can be 
disassembled for hand cleaning. The high pressure pump shall comply with 
the 3-A Sanitary Standard for Homogenizers and Pumps of the Plunger 
Type.



Sec. 58.220  Drying systems.

    (a) Spray dryers. Spray dryers shall be of a continuous discharge 
type and all product contact surfaces shall be of stainless steel or 
other equally corrosion resistant material. All joints and seams in the 
product contact surfaces shall be welded and ground smooth. All dryers 
shall be constructed so as to facilitate ease in cleaning and 
inspection. Sight glasses or ports of sufficient size shall be located 
at strategic positions. Dryers shall be equipped with suitable air 
intake filters. The filter system shall comply with the applicable 
requirements of the 3-A Accepted Practices for Milk and Milk Products 
Spray Drying Systems. The filtering system shall be cleaned or component 
parts replaced as often as necessary to maintain a clean and adequate 
air supply. In gas fired dryers, precautions should be taken to assure 
complete combustion. Air shall be drawn into the dryer from sources free 
from objectionable odors and smoke, dust or dirt. New systems, 
replacement systems, or portions of systems replaced shall comply with 
the requirements of the 3-A Accepted Practices for Milk and Milk 
Products Spray Drying Systems.
    (b) Roller dryers. (1) The drums of a roller dryer shall be smooth, 
readily cleanable and free of pits and rust. The knives shall be 
maintained in such condition so as not to cause scoring of the drums.
    (2) The end boards shall have an impervious surface and be readily 
cleanable. They shall be provided with a means of adjustment to prevent 
leakage and accumulation of milk solids. The stack, hood, the drip pan 
inside of the hood and related shields shall be constructed of stainless 
steel and be readily cleanable. The lower edge of the hood shall be 
constructed so as to prevent condensate from entering the product zone. 
The hood shall be properly located and the stack of adequate capacity to 
remove the vapors. The stack shall be closed when the dryer is not in 
operation. The augers shall be stainless steel or properly plated, and 
readily cleanable. The auger troughs and related shields shall be of 
stainless steel and be readily cleanable. All air entering the dryer 
room shall be filtered to eliminate dust and dirt. The filter system 
shall consist of filtering media or device that will effectively, and in 
accordance with good commercial practices, prevent the entrance of 
foreign substances into the drying room. The filtering system shall be 
cleaned or component parts replaced as often as necessary to maintain a 
clean and adequate air supply. All dryer adjustments shall be made and 
the dryer operating normally before food grade product is collected from 
the dryer.
    (c) Other drying systems. These systems shall be constructed 
following the applicable principles of the 3-A Accepted Practices for 
Milk and Milk Products Spray Drying Systems.



Sec. 58.221  Collectors and conveyors.

    Collectors shall be made of stainless steel or equally noncorrosive 
material and should be constructed to facilitate cleaning and 
inspection. Filter sack collectors, if used, shall be in good condition 
and the system shall be of such construction that all parts are 
accessible for cleaning and inspection. Conveyors shall be of stainless 
steel or equally corrosion resistant material and should be constructed 
to facilitate thorough cleaning and inspection.



Sec. 58.222  Dry dairy product cooling equipment.

    Cooling equipment shall be provided with sufficient capacity to cool 
the product as specified in Sec. 58.240. A suitable dry air supply with 
an effective

[[Page 133]]

filtering system meeting the requirements of Sec. 58.220(a) shall be 
provided where air cooling and conveying is used.



Sec. 58.223  Special treatment equipment.

    Any special equipment (instantizers, hammer mills, etc.) used to 
treat dry milk products shall be of sanitary construction and all parts 
shall be accessible for cleaning and inspection. New or replacement 
instantizing systems shall comply with the 3-A Accepted Practices for 
Instantizing Systems for Dry Milk and Dry Milk Products.



Sec. 58.224  Sifters.

    All newly installed sifters used for dry milk and dry milk products 
shall comply with the 3-A Sanitary Standards for Sifters for Dry Milk 
and Dry Milk Products. All other sifters shall be constructed of 
stainless steel or other equally noncorrosive material and shall be of 
sanitary construction and accessible for cleaning and inspection. The 
mesh size of sifter screen used for various dry dairy products shall be 
those recommended in the appendix of the 3-A Standard for sifters.



Sec. 58.225  Clothing and shoe covers.

    Clean clothing and shoe covers shall be provided exclusively for the 
purpose of cleaning the interior of the dryer when it is necessary to 
enter the dryer to perform the cleaning operation.



Sec. 58.226  Portable and stationary bulk bins.

    Bulk bins shall be constructed of stainless steel, aluminum or other 
equally corrosion resistant materials, free from cracks, seams and must 
have an interior surface that is relatively smooth and easily cleanable. 
All product contact surfaces shall be easily accessible for cleaning. 
The capacity of each portable and bulk bin shall be limited to permit 
proper operating procedures such as sampling and daily removal of all 
product to preclude commingling of different days production.



Sec. 58.227  Sampling device.

    If automatic sampling devices are used, they shall be constructed in 
such a manner as to prevent contamination of the product, and all parts 
must be readily accessible for cleaning. The type of sampler and the 
sampling procedure shall be as approved by the Administrator.



Sec. 58.228  Dump hoppers, screens, mixers and conveyors.

    The product contact surfaces of dump hoppers, screens, mixers and 
conveyors which are used in the process of transferring dry products 
from bulk containers to fillers for small packages or containers, shall 
be of stainless or equally corrosion resistant material and designed to 
prevent contamination. All parts should be accessible for cleaning. The 
dump hoppers shall be of such height above floor level as to prevent 
foreign material or spilled product from entering the hopper.



Sec. 58.229  Filler and packaging equipment.

    All filling and packaging equipment shall be of sanitary 
construction and all parts, including valves and filler heads accessible 
for cleaning. New or replacement equipment should comply with the 3-A 
Sanitary Standards for equipment for Packaging Dry Milk and Dry Milk 
Products.



Sec. 58.230  Heavy duty vacuum cleaners.

    Each plant handling dry milk products shall be equipped with a heavy 
duty industrial vacuum cleaner. The vacuum cleaner shall be of a type 
that has a collector or disposable bag which will not recontaminate the 
atmosphere of the processing and packaging areas. Regular scheduling 
shall be established for its use in vacuuming applicable areas.

                Quality Specifications for Raw Materials



Sec. 58.231  General.

    All raw materials received at the drying plant shall meet the 
following quality specifications.



Sec. 58.232  Milk.

    Raw milk shall meet the requirements as outlined in Secs. 58.132 
through 58.138 and, unless processed within two hours after being 
received, it shall be cooled to and held at a temperature of 45  deg.F. 
or lower until processed.

[[Page 134]]



Sec. 58.233  Skim milk.

    The skim milk shall be separated from whole milk meeting the 
requirements as outlined in Secs. 58.132 through 58.138, and unless 
processed immediately, it shall be cooled to and maintained at a 
temperature of 45  deg.F. or lower from the time of separating until the 
time of processing.



Sec. 58.234  Buttermilk.

    Buttermilk for drying as dry buttermilk or dry buttermilk product 
shall be fresh and derived from the churning of butter, with or without 
the addition of harmless lactic culture. No preservative, neutralizing 
agent or other chemical may be added. Fluid buttermilk, unless cultured, 
shall be held at 45  deg.F or lower unless processed within 2 hours.

[56 FR 33855, July 24, 1991]



Sec. 58.235  Modified dry milk products.

    Dry milk products to which approved neutralizing agents or chemicals 
have been added or constituents removed to alter their original 
characteristics for processing or usage shall come from products meeting 
the requirements of Secs. 58.232, 58.233, or 58.234. These products 
shall meet the applicable labeling requirements.

                   Operations and Operating Procedures



Sec. 58.236  Pasteurization and heat treatment.

    All milk and buttermilk used in the manufacture of dry milk products 
and modified dry milk products shall be pasteurized at the plant where 
dried, except that acidified buttermilk containing 40 percent or more 
solids may be transported to another plant for drying without 
repasteurization. Provided the condensed product is handled according to 
sanitary conditions approved by the Administrator.
    (a) Pasteurization. (1) All milk or skim milk to be used in the 
manufacture of nonfat dry milk shall be pasteurized prior to condensing 
at a minimum temperature of 161  deg.F. for at least 15 seconds or its 
equivalent in bacterial destruction. Condensed milk products made from 
pasteurized milk may be transported to a drying plant, provided that it 
shall be effectively repasteurized at the drying plant, prior to drying, 
at no less than 166  deg.F. for 15 seconds or its equivalent in 
bacterial destruction.
    (2) All buttermilk to be used in the manufacture of dry buttermilk 
or dry buttermilk product shall be pasteurized prior to condensing at a 
temperature of 161  deg.F for 15 seconds or its equivalent in bacterial 
destruction.
    (b) Heat treatment--(1) High-heat. The finished product shall not 
exceed 1.5 mg. undenatured whey protein nitrogen per gram of nonfat dry 
milk as classified in the U.S. Standards for Grades of Nonfat Dry Milk 
(Spray Process).
    (2) Medium-heat. The finished product shall show undenatured whey 
protein nitrogen between the levels of ``high-heat'' and ``low-heat'' 
(1.51 to 5.99 mg.).
    (3) Low-heat. The finished product shall show not less than 6.0 
undenatured whey protein nitrogen per gram of non-fat dry milk as 
classified in the U.S. Standards for Grades of Nonfat Dry Milk (Spray 
Process).

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 56 
FR 33855, July 24, 1991]



Sec. 58.237  Condensed surge supply.

    Surge tanks or balance tanks if used between the evaporators and 
dryer shall be used to hold only the minimum amount of condensed product 
necessary for a uniform flow to the dryers. Such tanks holding product 
at temperatures below 150  deg.F. shall be completely emptied and washed 
after each 4 hours of operation or less. Alternate tanks shall be 
provided to permit continuous operation during washing of tanks.



Sec. 58.238  Condensed storage tanks.

    (a) Excess production of condensed product over that which the dryer 
will take continuously from the pans should be bypassed through a cooler 
into a storage tank at 50  deg.F. or lower and held at this temperature 
until used.
    (b) Product cut-off points shall be made at least every 24 hours and 
the

[[Page 135]]

tank completely emptied, washed, and sanitized before reuse.



Sec. 58.239  Drying.

    Each dryer should be operated to produce the highest quality dry 
product consistent with the most efficient operation. The dry products 
shall be removed from the drying chamber continuously during the drying 
process.



Sec. 58.240  Cooling dry products.

    Prior to packaging and immediately following removal from the drying 
chamber the dry product shall be cooled to a temperature not exceeding 
110  deg.F, however, if the product is to be held in a bulk bin the 
temperature should be reduced to approximately 90  deg.F but shall be 
not more than 110  deg.F.



Sec. 58.241  Packaging, repackaging and storage.

    (a) Containers. Packages or containers used for the packaging of 
nonfat dry milk or other dry milk products shall be any clean, sound 
commercially accepted container or packaging material which will 
satisfactorily protect the contents through the regular channels of 
trade, without significant impairment of quality with respect to flavor, 
wholesomeness or moisture content under the normal conditions of 
handling. In no instance will containers which have previously been used 
for nonfood items, or food items which would be deleterious to the dairy 
product be allowed to be used for the bulk handling of dairy products.
    (b) Filling. Empty containers shall be protected at all times from 
possible contamination and containers which are to be lined shall not be 
prepared more than one hour in advance of filling. Every precaution 
shall be taken during the filling operation to minimize product dust and 
spillage. When necessary a mechanical shaker shall be provided; the 
tapping or pounding of containers should be prohibited. The containers 
shall be closed immediately after filling and the exteriors shall be 
vacuumed or brushed when necessary to render them practically free of 
residual product before being transferred from the filling room to the 
palleting or dry storage areas.
    (c) Repackaging. The entire repackaging operation shall be conducted 
in a sanitary manner with all precautions taken to prevent contamination 
and to minimize dust. All exterior surfaces of individual containers 
shall be practically free of product before overwrapping or packing in 
shipping containers. The room shall be kept free of dust accumulation, 
waste, cartons, liners, or other refuse. Conveyors, packaging and carton 
making equipment shall be vacuumed frequently during the operating day 
to prevent the accumulation of dust. No bottles or glass materials of 
any kind shall be permitted in the repackaging or hopper room. The inlet 
openings of all hoppers and bins shall be of minimum size, screened and 
placed well above the floor level. The room and all packaging equipment 
shall be cleaned as often as necessary to maintain a sanitary operation. 
Close attention shall be given to cleaning equipment where residues of 
the dry product may accumulate. A thorough clean-up including windows, 
doors, walls, light fixtures and ledges, should be performed as 
frequently as is necessary to maintain a high standard of cleanliness 
and sanitation. All waste dry dairy products including dribble product 
at the fillers, shall be properly identified and disposed of as animal 
feed.
    (d) Storage--(1) Product. The packaged dry milk product shall be 
stored or so arranged in aisles, rows, or sections and lots at least 18 
inches from any wall and in such a manner as to be orderly, easily 
accessible for inspection or for cleaning of the room. All bags and 
small containers of products shall be placed on pallets elevated from 
the floor. Products in small containers may be stored by methods 
preventing direct contact with the floor when the condition of the 
container is satisfactorily maintained. The storage room shall be kept 
clean and dry and all openings protected against entrance of insects and 
rodents.
    (2) Supplies. All supplies shall be placed on dunnage or pallets and 
arranged in an orderly manner for accessibility and cleaning of the 
room. It is preferable that supplies be stored in an area separate from 
that used for storing the dry products. Supplies shall be

[[Page 136]]

kept enclosed in their original wrapping material until used. After 
removal of supplies from their original containers, they shall be kept 
in an enclosed metal cabinet, bins or on shelving and if not enclosed 
shall be protected from powder, and dust or other contamination. The 
room should be vacuumed as often as necessary and kept clean and 
orderly.



Sec. 58.242  Product adulteration.

    All necessary precautions shall be taken throughout the entire 
operation to prevent the adulteration of one product with another. The 
commingling of one type of liquid or dry product with another shall be 
considered as an adulteration of that product. This does not prohibit 
the normal standardization of like products in accordance with good 
commercial practices or the production of specific products for special 
uses, provided applicable labeling requirements are met.



Sec. 58.243  Checking quality.

    All milk, milk products and dry milk products shall be subject to 
inspection and analysis by the dairy plant for quality and condition 
throughout each processing operation. Periodically samples of product 
and environmental material shall be tested for salmonella. Test results 
shall be negative when samples are tested for salmonella. Line samples 
should be taken periodically as an aid to quality control in addition to 
the regular routine analysis made on the finished products.



Sec. 58.244  Number of samples.

    As many samples shall be taken from each dryer production lot as is 
necessary to assure proper composition and quality control. A sufficient 
number of representative samples from the lot shall be taken to assure 
compliance with the stated net weight on the container.



Sec. 58.245  Method of sample analysis.

    Samples shall be tested according to the applicable methods of 
laboratory analysis contained in either DA Instruction 918-RL as issued 
by the USDA, Agricultural Marketing Service, Dairy Programs, or Official 
Methods of Analysis of the Association of Analytical Chemists or 
Standard Methods for the Examination of Dairy Products.

[67 FR 48976, July 29, 2002]



Sec. 58.246  Cleaning of dryers, collectors, conveyors, ducts, sifters and storage bins.

    This equipment shall be cleaned as often as is necessary to maintain 
such equipment in a clean and sanitary condition. The kind of cleaning 
procedure either wet or dry and the frequency of cleaning shall be based 
upon observation of actual operating results and conditions.



Sec. 58.247  Insect and rodent control program.

    In addition to any commercial pest control service, if one is 
utilized, a specially designated employee should be made responsible for 
the performance of a regularly scheduled insect and rodent control 
program as outlined in University of Wisconsin Extension Bulletin A2518 
or subsequent revisions thereof, or one equivalent thereto.

 Requirements for Finished Products Bearing USDA Official Identification



Sec. 58.248  Nonfat dry milk.

    (a) Nonfat dry milk in commercial bulk containers bearing an 
official identification shall meet the requirements of U.S. Extra Grade 
or U.S. Standard Grade.
    (b) Regular nonfat dry milk in consumer size packages which bears an 
official identification shall meet the requirements of U.S. Extra Grade. 
In addition, the nonfat dry milk shall be sampled and tested in 
accordance with Secs. 58.244 and 58.245.



Sec. 58.249  Instant nonfat dry milk.

    (a) Only instant nonfat dry milk manufactured and packaged in 
accordance with the requirements of this part and with the applicable 
requirements in subpart A of this part which has been officially 
inspected in process and found to be in compliance with these 
requirements may be identified with the official USDA U.S. Extra Grade, 
processed and packed inspection shield.

[[Page 137]]

    (b) Instant nonfat dry milk shall meet the applicable standard for 
U.S. Extra Grade.



Sec. 58.250  Dry whole milk.

    Dry whole milk in commercial bulk containers which bears an official 
identification shall meet the requirements for the U.S. Standards for 
Grades of Dry Whole Milk. Quality requirements for dry whole milk in 
consumer packages shall be for U.S. Extra Grade and shall be gas packed 
with an oxygen content of not more than 2.0 percent.



Sec. 58.251  Dry buttermilk and dry buttermilk product.

    The quality requirements for dry buttermilk or dry buttermilk 
product bearing an official identification shall be in accordance with 
the U.S. Standards for Grades of Dry Buttermilk and Dry Buttermilk 
Product.

[56 FR 33855, July 24, 1991]

  Supplemental Specifications for Plants Manufacturing, Processing and 
                  Packaging Butter and Related Products

                               Definitions



Sec. 58.305  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning.
    (a) Butter. The food product usually known as butter, and which is 
made exclusively from milk or cream, or both, with or without common 
salt, with or without additional coloring matter, and containing not 
less than 80 percent by weight of milkfat, all tolerances having been 
allowed for.
    (b) Butteroil. The food product resulting from the removal of 
practically all of the moisture and solids-not-fat from butter. It 
contains not less than 99.6 percent fat and not more than 0.3 percent 
moisture and not more than 0.1 percent other butter constituents, of 
which the salt shall be not more than 0.05 percent. Antioxidants 
permitted to be used are as follows:

------------------------------------------------------------------------
              Antioxidant                         Maximum level
------------------------------------------------------------------------
Propyl gallate.........................  0.02% of fat.
Butylated hydroxytoluene (BHT).........  0.02% of fat.
Butylated hydroxyanisole (BHA).........  0.02% of fat.
Tocopherols............................  Limit by GMP.
Ascorbyl palmitate.....................  Limit by GMP.
Dilauryl thiodipropionate..............  0.02% of fat.
         Antioxidant synergists
Citric acid............................  Limit by GMP.
Sodium citrate.........................  Limit by GMP.
Isopropyl citrate......................  0.02% of food.
Phosphoric acid........................  Limit by GMP.
Monoglyceride citrate..................  200 ppm of fat.
------------------------------------------------------------------------


An inert gas may be used to flush air-tight containers before, during, 
and after filling. Carbon dioxide may not be used for this purpose.
    (c) Anhydrous milkfat. The food product resulting from the removal 
of practically all of the moisture and solids-not-fat from pasteurized 
cream or butter. It contains not less than 99.8 percent fat and not more 
than 0.1 percent moisture and, when produced from butter, not more than 
0.1 percent other butter constituents, of which the salt shall be not 
more than 0.05 percent. An inert gas may be used to flush air-tight 
containers before, during, and after filling. Carbon dioxide may not be 
used for this purpose.
    (d) Frozen cream. Sweet cream which has been pasteurized and frozen. 
It contains approximately 40 percent milkfat.
    (e) Plastic cream. Sweet cream which has been pasteurized and 
contains approximately 80 percent milkfat.
    (f) Whipped butter. The food product is made by the uniform 
incorporation of air or inert gas into butter.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 59 
FR 1264, Jan. 10, 1994; 60 FR 4825, Jan. 24, 1995]

                         Rooms and Compartments



Sec. 58.311  Coolers and freezers.

    The coolers and freezers shall be equipped with facilities for 
maintaining proper temperature and humidity conditions, consistent with 
good commercial practices for the applicable product, to protect the 
equality and condition of the products during storage or during 
tempering prior to further processing. Coolers and freezers shall be 
kept clean, orderly, free from

[[Page 138]]

insects, rodents, and mold, and maintained in good repair. They shall be 
adequately lighted and proper circulation of air shall be maintained at 
all times. The floors, walls, and ceilings shall be of such construction 
as to permit thorough cleaning.



Sec. 58.312  Churn rooms.

    Churn rooms in addition to proper construction and sanitation shall 
be so equipped that the air is kept free from objectionable odors and 
vapors and extreme temperatures by means of adequate ventilation and 
exhaust systems or air conditioning and heating facilities.



Sec. 58.313  Print and bulk packaging rooms.

    Rooms used for packaging print or bulk butter and related products 
should, in addition to proper construction and sanitation, provide an 
atmosphere relatively free from mold (not more than 15 colonies per 
plate during a 15 min. exposure), dust, or other air-borne contamination 
and maintain a reasonable room temperature in accordance with good 
commercial practices.

                         Equipment and Utensils



Sec. 58.314  General construction, repair and installation.

    All equipment and utensils necessary to the manufacture of butter 
and related products shall meet the same general requirements as 
outlined in Sec. 58.128. In addition for certain other equipment, the 
following requirements shall be met.



Sec. 58.315  Continuous churns.

    All product contact surfaces of the churn and related equipment 
shall be of noncorrosive material. All non-metallic product contact 
surfaces shall comply with 3-A Standards for Plastic, Rubber, and 
Rubber-Like Materials. All product contact surfaces of the churn and 
related equipment shall be readily accessible for cleaning and 
inspection. Construction shall follow the applicable principles of the 
3-A Sanitary Standards.



Sec. 58.316  Conventional churns.

    Churns shall be constructed of aluminum, stainless steel or equally 
corrosion resistant metal, free from cracks, and in good repair. All 
gasket material shall be fat resistant, nontoxic and reasonably durable. 
Seals around the doors shall be tight.



Sec. 58.317  Bulk butter trucks, boats, texturizers, and packers.

    Bulk butter trucks, boats, texturizers, and packers shall be 
constructed of aluminum, stainless steel, or equally corrosion resistant 
metal free from cracks, seams and must have a surface that is relatively 
smooth and easily cleanable. All non-metallic product surfaces shall 
comply with 3-A Standards for Plastic, Rubber, and Rubber-Like Material.



Sec. 58.318  Butter, frozen or plastic cream melting machines.

    Shavers, shredders or melting machines used for rapid melting of 
butter, frozen or plastic cream shall be of stainless steel or equally 
corrosion resistant metal, free from cracks and of sanitary 
construction, and readily cleanable.



Sec. 58.319  Printing equipment.

    All printing equipment shall be designed so as to adequately protect 
the product and be readily demountable for cleaning of product contact 
surfaces. All product contact surfaces shall be aluminum, stainless 
steel or equally corrosion resistant metal, or plastic, rubber and 
rubber like material which comply with 3-A standards, except that 
conveyors may be constructed of material which can be properly cleaned 
and maintained in a satisfactory manner.



Sec. 58.320  Brine tanks.

    Brine tanks used for the treating of parchment liners shall be 
constructed of noncorrosive material and have an adequate and safe means 
of heating the salt solution for the treatment of the liners. The tank 
should also be provided with a satisfactory drainage outlet.

[[Page 139]]



Sec. 58.321  Cream storage tanks.

    Cream storage tanks shall meet the requirements of Sec. 58.128(d). 
Cream storage tanks for continuous churns should be equipped with 
effective temperature controls and recording devices.

                 Quality Specifications for Raw Material



Sec. 58.322  Cream.

    Cream separated at an approved plant and used for the manufacture of 
butter shall have been derived from raw material meeting the 
requirements as listed under Secs. 58.132 through 58.138 of this 
subpart.

[50 FR 34673, Aug. 27, 1985]



Sec. 58.323  [Reserved]



Sec. 58.324  Butteroil.

    To produce butteroil eligible for official certification, the butter 
used shall conform to the flavor requirements of U.S. Grade AA, U.S. 
Grade A, or U.S. Grade B, and shall have been manufactured in an 
approved plant.



Sec. 58.325  Anhydrous milkfat.

    If cream is used in the production of anhydrous milkfat that is 
eligible for official certification, the anhydrous milkfat shall be made 
by a continuous separation process directly from milk or cream. The 
cream used shall be comparable to the flavor quality specified above for 
U.S. Grade AA or U.S. Grade A butter. The milkfat from cream may then be 
further concentrated into oil. The cream or oil shall be pasteurized in 
accordance with the procedures for cream for buttermaking 
(Sec. 58.334a). If butter is used in the production of anhydrous milkfat 
that is eligible for official certification, the butter used shall 
conform to the flavor requirements of U.S. Grade AA or U.S. Grade A 
butter and shall have been manufactured in an approved plant. The 
appearance of anhydrous milkfat should be fairly smooth and uniform in 
consistency.

[60 FR 4826, Jan. 24, 1995]



Sec. 58.326  Plastic cream.

    To produce plastic cream eligible for official certification, the 
quality of the cream used shall meet the requirements of cream 
acceptable for the manufacture of U.S. Grade AA or U.S. Grade A butter.



Sec. 58.327  Frozen cream.

    To produce frozen cream eligible for official certification, the 
quality of the cream used shall meet the requirements of cream 
acceptable for the manufacture of U.S. Grade AA or U.S. Grade A butter.



Sec. 58.328  Salt.

    The salt shall be free-flowing, white refined sodium chloride and 
shall meet the requirements of The Food Chemical Codex.



Sec. 58.329  Color.

    Coloring, when used shall be Annatto or any color which is approved 
by the U.S. Food and Drug Administration.



Sec. 58.330  Butter starter cultures.

    Harmless bacterial cultures when used in the development of flavor 
components in butter and related products shall have a pleasing and 
desirable flavor and shall have the ability to transmit these qualities 
to the finished product.



Sec. 58.331  Starter distillate.

    The refined flavor components when used to flavor butter and related 
products. It shall be of food grade quality, free of extraneous material 
and prepared in accordance with good commercial practice.

                   Operations and Operating Procedures



Sec. 58.332  Segregation of raw material.

    The milk and cream received at the dairy plant shall meet the 
quality specifications as indicated under Sec. 58.322. The milk and 
cream should be segregated by quality and processed separately in such a 
manner that the finished product will fully meet the requirements of a 
particular U.S. Grade or other specification, whichever is applicable.



Sec. 58.334  Pasteurization.

    The milk or cream shall be pasteurized at the plant where the milk 
or

[[Page 140]]

cream is processed into the finished product or by procedures as set 
forth by the Administrator.
    (a) Cream for butter making. The cream for butter making shall be 
pasteurized at a temperature of not less than 165  deg.F. and held 
continuously in a vat at such temperature for not less than 30 minutes; 
or pasteurized by HTST method at a minimum temperature of not less than 
185  deg.F. for not less than 15 seconds; or it shall be pasteurized by 
any other equivalent temperature and holding time which will assure 
adequate pasteurization. Additional heat treatment above the minimum 
pasteurization requirement is advisable to insure improved keeping-
quality characteristics.

Adequate pasteurization control shall be used and the diversion valve 
shall be set to divert at no less than 185  deg.F. with a 15 second 
holding time or its equivalent in time and temperature to assure 
pasteurization. If the vat or holding method of pasteurization is used, 
vat covers shall be closed prior to holding period to assure temperature 
of air space reaching 5  deg.F. higher than the minimum temperature 
during the holding time. Covers shall also be kept closed during the 
holding and cooling period.
    (b) Cream for plastic or frozen cream. The pasteurization of cream 
for plastic or frozen cream shall be accomplished in the same manner as 
in paragraph (a) of this section, except, that the temperature for the 
vat method shall be not less than 170  deg.F. for not less than 30 
minutes, or not less than 190  deg.F. for not less than 15 seconds or by 
any other temperature and holding time which will assure adequate 
pasteurization and comparable keeping-quality characteristics.



Sec. 58.335  Quality control tests.

    All milk, cream and related products are subject to inspection for 
quality and condition throughout each processing operation. Quality 
control tests shall be made on flow samples as often as necessary to 
check the effectiveness of processing and manufacturing and as an aid in 
correcting deficiencies in processing and manufacturing. Routine 
analysis shall be made on raw materials and finished products to assure 
adequate microbiological, composition and chemical control.



Sec. 58.336  Frequency of sampling for quality control of cream, butter and related products.

    (a) Microbiological. Samples shall be taken from churnings or 
batches and should be taken as often as is necessary to insure 
microbiological control.
    (b) Composition. Sampling and testing for product composition shall 
be made on churns or batches as often as is necessary to insure adequate 
composition control. For in-plant control, the Kohman or modified Kohman 
test may be used.
    (c) Chemical--(1) Acid degree value. This test should be made on 
churnings or batches from samples taken from the cream as often as is 
necessary to aid in the control of lipase activity.
    (2) Free fatty acid. This test should be made on churnings or 
batches from samples taken from the butter as often as is necessary to 
aid in the control of lipase activity.
    (d) Other analysis. Other chemical analysis or physical measurements 
shall be performed as often as is necessary to insure meeting grade 
standards and contract specifications.
    (e) Weight or volume control. Representative samples of the packaged 
product should be checked using procedures prescribed by the 
Administrator during the packaging operation to assure compliance with 
the stated net weight or volume on the container.
    (f) Keeping quality and stability. Samples from churnings shall be 
subjected to a seven day keeping quality test at a temperature of 72 
deg.F. to establish and maintain a satisfactory keeping quality history. 
Optionally 98  deg.F. for 48 hours may be used, however, in case of a 
dispute, the results of the seven days at 72  deg.F. will prevail.



Sec. 58.337  Official test methods.

    (a) Chemical. Chemical analyses except where otherwise prescribed 
herein, shall be made in accordance with the methods described in the 
latest edition of Official Methods of Analysis of the Association of 
Official Analytical Chemists, published by the Association

[[Page 141]]

of Official Analytical Chemists, the Official and Tentative Methods of 
the American Oil Chemists Society or any other methods giving equivalent 
results.
    (b) Microbiological. Microbiological determinations shall be made in 
accordance with the methods described or suggested in the latest edition 
of Standard Methods for the Examination of Dairy Products, published by 
the American Public Health Association.



Sec. 58.338  Composition and wholesomeness.

    All ingredients used in the manufacture of butter and related 
products shall be subject to inspection and shall be wholesome and 
practically free from impurities. Chlorinating facilities shall be 
provided for butter wash water if needed and all other necessary 
precautions shall be taken to prevent contamination of products. All 
finished products shall comply with the requirements of the Federal 
Food, Drug and Cosmetic Act, as to composition and wholesomeness.



Sec. 58.339  Containers.

    (a) Containers used for the packaging of butter and related products 
shall be commercially acceptable containers or packaging material that 
will satisfactorily protect the quality of the contents in regular 
channels of trade. Caps or covers which extend over the lip of the 
container shall be used on all cups or tubs containing two pounds or 
less, to protect the product from contamination during subsequent 
handling.
    (b) Liners and wrappers. Supplies of parchment liners, wrappers and 
other packaging material shall be protected against dust, mold and other 
possible contamination.
    (1) Prior to use, parchment liners for bulk butter packages shall be 
completely immersed in a boiling salt solution in a suitable container 
constructed of stainless steel or other equally non-corrosive material. 
The liners shall be maintained in the solution for not less than 30 
minutes. The liners shall be effectively treated with a solution 
consisting of at least 15 pounds of salt for every 85 pounds of water 
and shall be strengthened or changed as frequently as necessary to keep 
the solution full strength and in good condition.
    (2) Other liners such as polyethylene shall be treated or handled in 
such a manner as to prevent contamination of the liner prior to filling.
    (c) Filling bulk butter containers. The lined butter containers 
shall be protected from possible contamination prior to filling. Use of 
parchment liners may be accomplished by alternately inverting one 
container over the other or stacking the lined boxes on their sides in a 
rack, until ready for use. When using polyethylene liners the boxes 
should be lined immediately prior to use. When packing butter into the 
bulk containers, care shall be taken to fill the corners leaving as few 
holes or openings as possible. The surface of the butter as well as the 
covering liner shall be smoothed evenly over the top surface before 
closing and sealing the container. Containers should be stacked only as 
high as the firmness of the product will support weight, so as not to 
crush or distort the container.



Sec. 58.340  Printing and packaging.

    Printing and packaging of consumer size containers of butter shall 
be conducted under sanitary conditions. Separate rooms equipped with 
automatic filling and packaging equipment should be provided. The 
outside cartons should be removed from bulk butter in a room outside of 
the printing operation but the parchment removal and cutting of the 
butter may be done in the print room.



Sec. 58.341  Repackaging.

    When officially graded or inspected bulk product is to be repackaged 
into consumer type packages for official grade labeling or other 
official identification, a supervisor of packaging shall be required and 
the plant, equipment, facilities and personnel shall meet the same 
specifications as outlined in this part, including such markings or 
identification as may be required.



Sec. 58.342  General identification.

    Commercial bulk shipping containers shall be legibly marked with the 
name of the product, net weight, name and address of manufacturer, 
processor or

[[Page 142]]

distributor or other assigned plant identification (manufacturer's lot 
number, churn number, etc.) and any other identification that may be 
required. Packages of plastic or frozen cream shall be marked with the 
percent of milkfat.



Sec. 58.343  Storage of finished product in coolers.

    All products shall be kept under refrigeration at temperatures of 40 
 deg.F. or lower after packaging and until ready for distribution or 
shipment. The products shall not be placed directly on floors or exposed 
to foreign odors or conditions such as drippage due to condensation 
which might cause package or product damage.



Sec. 58.344  Storage of finished product in freezer.

    (a) Sharp freezers. Plastic cream or frozen cream intended for 
storage shall be placed in quick freezer rooms immediately after 
packaging, for rapid and complete freezing within 24 hours. The packages 
shall be piled or spaced in such a manner that air can freely circulate 
between and around the packages. The rooms shall be maintained at -10 
deg.F. or lower and shall be equipped to provide sufficient high 
velocity, air circulation for rapid freezing. After the products have 
been completely frozen, they may be transferred to a freezer storage 
room for continued storage.
    (b) Freezer storage. The room shall be maintained at a temperature 
of 0  deg.F. or lower. Adequate air circulation is desirable.

Butter intended to be held more than 30 days shall be placed in a 
freezer room as soon as possible after packaging. If not frozen before 
being placed in the freezer, the packages shall be spaced in such a 
manner as to permit rapid freezing and repiled, if necessary, at a later 
time.

 Requirements for Finished Products Bearing USDA Official Identification



Sec. 58.345  Butter.

    The quality requirements for butter shall be in accordance with the 
U.S. Standards for Grades of Butter for U.S. Grade AA, U.S. Grade A, or 
U.S. Grade B, respectively.
    (a) In addition, the butter is subject to the following 
specifications when sampled and tested in accordance with Secs. 58.336 
and 58.337.
    (b) Proteolytic count, not more than 100 per gram; yeast and mold 
count, not more than 20 per gram; coliform count, not more than 10 per 
gram.
    (c) Optional except when required or requested: Copper content, not 
more than 0.3 ppm; iron content, not more than 1.0 ppm; enterococci, not 
more than 10 per gram.



Sec. 58.346  Whipped butter.

    (a) The quality requirements for whipped butter shall be in 
accordance with the U.S. Standards for Grades of Whipped Butter for U.S. 
Grade AA and U.S. Grade A, respectively.
    (b) Whipped butter shall also be subject to the following 
specifications when sampled and tested in accordance with Sec. 58.336 
and Sec. 58.337, respectively:
    (1) Proteolytic count, not more than 50 per gram; yeast and mold 
count, not more than 10 per gram; coliform count, not more than 10 per 
gram; and keeping-quality test, satisfactory after 7 days at 72  deg.F.
    (2) Optional except when required or requested: Copper content, not 
more than 0.3 ppm; iron content, not more than 1.0 ppm; enterococci, not 
more than 10 per gram.

[59 FR 1264, Jan. 10, 1994, as amended at 67 FR 48976, July 29, 2002]



Sec. 58.347  Butteroil or anhydrous milkfat.

    The flavor shall be bland and free from rancid, oxidized, or other 
objectionable flavors.
    (a) In addition, the finished products shall meet the following 
specifications when sampled and tested in accordance with Secs. 58.336 
and 58.337:

[[Page 143]]



------------------------------------------------------------------------
                                       Butteroil       Anhydrous milkfat
------------------------------------------------------------------------
Milkfat.........................  Not less than 99.6  Not less than 99.8
                                   percent.            percent.
Moisture........................  Not more than 0.3   Not more than 0.1
                                   percent.            percent.
Other butter constituents         Not more than 0.1   Not more than 0.1
 including salt.                   percent.            percent.
Salt............................  Not more than 0.05  Not more than 0.05
                                   percent.            percent.
Antioxidants....................  Those permitted by  Those permitted by
                                   standards of the    standards of the
                                   Codex               Codex
                                   Alimentarius        Alimentarius
                                   Commission and      Commission and
                                   authorized for      authorized for
                                   use by the Food     use by the Food
                                   and Drug            and Drug
                                   Administration.     Administration.
Free fatty acids................  Not more than 0.5   Not more than 0.3
                                   percent             percent
                                   (calculated as      (calculated as
                                   oleic acid).        oleic acid).
Peroxide value..................  Not more than 0.1   Not more than 0.1
                                   milliequivalent     milliequivalent
                                   per kilogram of     per kilogram of
                                   fat.                fat.
Iron content....................  Not more than 0.2   Not more than 0.2
                                   ppm.                ppm.
Copper content..................  Not more than 0.05  Not more than 0.05
                                   ppm.                ppm.
------------------------------------------------------------------------

    (b) [Reserved]

[60 FR 4826, Jan. 24, 1995]



Sec. 58.348  Plastic cream.

    The flavor shall be sweet, pleasing and desirable but may possess 
the following flavors to a slight degree; aged, bitter, flat, smothered 
and storage; and cooked and feed flavors to a definite degree. It shall 
be free from rancid, oxidized or other objectionable flavors.
    (a) In addition, the finished product shall meet the following 
specifications when sampled and tested in accordance with Secs. 58.336 
and 58.337.
    (b) Standard plate count, not more than 30,000 per gram; coliform 
count, not more than 10 per gram; yeast and mold, not more than 20 per 
gram;
    (c) Optional except when required or requested: Copper content not 
more than 0.3 ppm; iron content not more than 1.0 ppm.



Sec. 58.349  Frozen cream.

    The flavor shall be sweet, pleasing and desirable, but may possess 
the following flavors to a slight degree: Aged, bitter, flat, smothered, 
storage; and cooked and feed flavors to a definite degree. It shall be 
free from rancid, oxidized or other objectionable flavors.
    (a) In addition, the product shall meet the following specifications 
when sampled and tested in accordance with Secs. 58.336 and 58.337. 
Samples for analysis should be taken prior to freezing of the product.
    (b) Standard plate count, not more than 30,000 per ml.; coliform 
count, not more than 10 per ml.; yeast and mold, not more than 20 per 
ml.
    (c) Optional except when required or requested: Copper content, not 
more than 0.3 ppm; iron content not more than 1.0 ppm.

   Supplemental Specifications for Plants Manufacturing and Packaging 
                                 Cheese

                               Definitions



Sec. 58.405  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa as the 
case may demand. Unless the context otherwise requires, the following 
terms shall have the following meaning:
    (a) Cheese. The fresh or matured product obtained by draining after 
coagulation of milk, cream, skimmed, or partly skimmed milk or a 
combination of some or all of these products and including any cheese 
that conforms to the requirements of the Food and Drug Administration 
for cheeses and related cheese products (21 CFR part 133).
    (b) Milkfat from whey. The fat obtained from the separation of 
cheese whey.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48976, July 29, 2002]

                         Rooms and Compartments



Sec. 58.406  Starter facility.

    A separate starter room or properly designed starter tanks and 
satisfactory air movement techniques shall be provided for the 
propagation and handling

[[Page 144]]

of starter cultures. All necessary precaution shall be taken to prevent 
contamination of the facility, equipment and the air therein. A filtered 
air supply with a minimum average efficiency of 90 percent when tested 
in accordance with the ASHRAE Synthetic Dust Arrestance Test should be 
provided so as to obtain outward movement of air from the room to 
minimize contamination.



Sec. 58.407  Make room.

    The rooms in which the cheese is manufactured shall be of adequate 
size, and the equipment adequately spaced to permit movement around the 
equipment for proper cleaning and satisfactory working conditions. 
Adequate filtered air ventilation should be provided. When applicable, 
the mold count should be not more than 15 colonies per plate during a 15 
minute exposure.



Sec. 58.408  Brine room.

    A brine room, when applicable, should be a separate room constructed 
so it can be readily cleanable. The brine room equipment shall be 
maintained in good repair and corrosion kept at a minimum.



Sec. 58.409  Drying room.

    When applicable, a drying room of adequate size shall be provided to 
accommodate the maximum production of cheese during the flush period. 
Adequate shelving and air circulation shall be provided for proper 
drying. Temperature and humidity control facilities should be provided 
which will promote the development of a sound, dry surface of the 
cheese.



Sec. 58.410  Paraffining room.

    When applicable for rind cheese, a separate room or compartment 
should be provided for paraffining and boxing the cheese. The room shall 
be of adequate size and the temperature maintained near the temperature 
of the drying room to avoid sweating of the cheese prior to paraffining.



Sec. 58.411  Rindless cheese wrapping area.

    For rindless cheese a suitable space shall be provided for proper 
wrapping and boxing of the cheese. The area shall be free from dust, 
condensation, mold or other conditions which may contaminate the surface 
of the cheese or contribute to unsatisfactory packaging of the cheese.



Sec. 58.412  Coolers or curing rooms.

    Coolers or curing rooms where cheese is held for curing or storage 
shall be clean and maintained at the proper uniform temperature and 
humidity to adequately protect the cheese, and minimize the undesirable 
growth of mold. Proper circulation of air shall be maintained at all 
times. The shelves shall be kept clean and dry. This does not preclude 
the maintenance of suitable conditions for the curing of mold and 
surface ripened varieties.



Sec. 58.413  Cutting and packaging rooms.

    When small packages of cheese are cut and wrapped, separate rooms 
shall be provided for the cleaning and preparation of the bulk cheese 
and for the cutting and wrapping operation. The rooms shall be well 
lighted, ventilated and provided with filtered air. Air movement shall 
be outward to minimize the entrance of unfiltered air into the cutting 
and packaging room. The waste materials and waste cheese shall be 
disposed of in an environmentally and/or sanitary approved manner.

                         Equipment and Utensils



Sec. 58.414  General construction, repair and installation.

    All equipment and utensils necessary to the manufacture of cheese 
and related products shall meet the same general requirements as 
outlined in Sec. 58.128. In addition, for certain other equipment the 
following requirements shall be met.



Sec. 58.415  Starter vats.

    Bulk starter vats shall be of stainless steel or equally corrosion 
resistant metal and should be constructed according to the applicable 3-
A Sanitary Standards. New or replacement vats shall be constructed 
according to the applicable 3-A Sanitary Standards. The vats shall be in 
good repair, equipped with tight fitting lids and have adequate 
temperature controls such as

[[Page 145]]

valves, indicating and/or recording thermometers.



Sec. 58.416  Cheese vats, tanks and drain tables.

    (a) The vats, tanks and drain tables used for making cheese should 
be of metal construction with adequate jacket capacity for uniform 
heating. The inner liner shall be minimum 16 gauge stainless steel or 
other equally corrosion resistant metal, properly pitched from side to 
center and from rear to front for adequate drainage. The liner shall be 
smooth, free from excessive dents or creases and shall extend over the 
edge of the outer jacket. The outer jacket shall be constructed of 
stainless steel or other metal which can be kept clean and sanitary. The 
junction of the liner and outer jackets shall be constructed so as to 
prevent milk or cheese from entering the inner jacket.
    (b) The vat, tank and/or drain table shall be equipped with a 
suitable sanitary outlet valve. Effective valves shall be provided and 
properly maintained to control the application of heat to this 
equipment. If this equipment is provided with removable cloth covers, 
they shall be clean.



Sec. 58.417  Mechanical agitators.

    The mechanical agitators shall be of sanitary construction. The 
carriages shall be of the enclosed type and all product contact 
surfaces, shields, shafts, and hubs shall be constructed of stainless 
steel or other equally corrosion resistant metal. Metal blades, forks, 
or stirrers shall be constructed of stainless steel and of material 
approved in the 3-A Sanitary Standards for Plastic, and Rubber and 
Rubber-Like Materials and shall be free from rough or sharp edges which 
might scratch the equipment or remove metal particles.



Sec. 58.418  Automatic cheese making equipment.

    (a) Automatic Curd Maker. The automatic curd making system shall be 
constructed of stainless steel or of material approved in the 3-A 
Sanitary Standards for Plastic, and Rubber and Rubber-Like Material. All 
areas shall be free from cracks and rough surfaces and constructed so 
that they can be easily cleaned.
    (b) Curd conveying systems. The curd conveying system, conveying 
lines and cyclone separator shall be constructed of stainless steel or 
other equally corrosion resistant metal and in such manner that it can 
be satisfactorily cleaned. The system shall be of sufficient size to 
handle the volume of curd and be provided with filtered air of the 
quality satisfactory for the intended use. Air compressors or vacuum 
pumps shall not be located in the processing or packaging areas.
    (c) Automatic salter. The automatic salter shall be constructed of 
stainless steel or other equally corrosion resistant metal. This 
equipment shall be constructed to equally distribute the salt throughout 
the curd. It shall be designed to accurately weigh the amount of salt 
added. The automatic salter shall be constructed so that it can be 
satisfactorily cleaned. The salting system shall provide for adequate 
absorption of the salt in the curd. Water and steam used to moisten the 
curd prior to salting shall be potable water or culinary steam.
    (d) Automatic curd filler. The automatic curd filler shall be 
constructed of stainless steel or other equally corrosion resistant 
metal. This equipment shall be of sufficient size to handle the volume 
of curd and constructed and controlled so as to accurately weigh the 
amount of curd as it fills. The curd filler shall be constructed so that 
it can be satisfactorily cleaned.
    (e) Hoop and barrel washer. The washer shall be constructed so that 
it can be satisfactorily cleaned. It shall also be equipped with 
temperature and pressure controls to ensure satisfactory cleaning of the 
hoops or barrels. It should be adequately vented to the outside.



Sec. 58.419  Curd mill and miscellaneous equipment.

    Knives, hand rakes, shovels, scoops, paddles, strainers, and 
miscellaneous equipment shall be stainless steel or of material approved 
in the 3-A Sanitary Standards for Plastic and Rubber-like Material. The 
product contact surfaces of the curd mill should be of stainless steel. 
All pieces of equipment shall be

[[Page 146]]

so constructed that they can be kept clean and free from rough or sharp 
edges which might scratch the equipment or remove metal particles. The 
wires in the curd knives shall be stainless steel, kept tight and 
replaced when necessary.



Sec. 58.420  Hoops, forms and followers.

    The hoops, forms, and followers shall be constructed of stainless 
steel, heavy tinned steel or other approved materials. If tinned, they 
shall be kept tinned and free from rust. All hoops, forms, and followers 
shall be kept in good repair. Drums or other special forms used to press 
and store cheese shall be clean and sanitary.



Sec. 58.421  Press.

    The cheese press should be constructed of stainless steel and all 
joints welded and all surfaces, seams and openings readily cleanable. 
The pressure device shall be the continuous type. Press cloths shall be 
maintained in good repair and in a sanitary condition. Single service 
press cloths shall be used only once.



Sec. 58.422  Brine tank.

    The brine tank shall be constructed of suitable non-toxic material 
and should be resistant to corrosion, pitting or flaking. The brine tank 
shall be operated so as to assure the brine is clean, well circulated, 
and of the proper strength and temperature for the variety of cheese 
being made.



Sec. 58.423  Cheese vacuumizing chamber.

    The vacuum chamber shall be satisfactorily constructed and 
maintained so that the product is not contaminated with rust or flaking 
paint. An inner liner of stainless steel or other corrosion resistant 
material should be provided.



Sec. 58.424  Monorail.

    The monorail shall be constructed so as to prevent foreign material 
from falling on the cheese or cheese containers.



Sec. 58.425  Conveyor for moving and draining block or barrel cheese.

    The conveyor shall be constructed so that it will not contaminate 
the cheese and be easily cleaned. It shall be installed so that the 
press drippings will not cause an environmental problem.



Sec. 58.426  Rindless cheese wrapping equipment.

    The equipment used to heat seal the wrapper applied to rindless 
cheese shall have square interior corners, reasonably smooth interior 
surface and have controls that shall provide uniform pressure and heat 
equally to all surfaces. The equipment used to apply shrinkable wrapping 
material to rindless cheese shall operate to maintain the natural 
intended shape of the cheese in an acceptable manner, reasonably smooth 
surfaces on the cheese and tightly adhere the wrapper to the surface of 
the cheese.



Sec. 58.427  Paraffin tanks.

    The metal tank should be adequate in size, have wood rather than 
metal racks to support the cheese, have heat controls and an indicating 
thermometer. The cheese wax shall be kept clean.



Sec. 58.428  Speciality equipment.

    All product contact areas of speciality equipment shall be 
constructed of stainless steel or of material approved in the 3-A 
Sanitary Standards for Plastic and Rubber and Rubber-Like Material, and 
constructed following 3-A Sanitary Standards principles.



Sec. 58.429  Washing machine.

    When used, the washing machine for cheese cloths and bandages shall 
be of commercial quality and size; or of sufficient size to handle the 
applicable load. It should be equipped with temperature and water level 
controls.

                 Quality Specifications for Raw Material



Sec. 58.430  Milk.

    The milk shall be fresh, sweet, pleasing and desirable in flavor and 
shall meet the requirements as outlined under Secs. 58.132 through 
58.138. The milk may be adjusted by separating part of the fat from the 
milk or by adding one or more of the following dairy products: Cream, 
skim milk, concentrated

[[Page 147]]

skim milk, nonfat dry milk, and water in a quantity sufficient to 
reconstitute any concentrated or dry milk used. Such dairy products 
shall have originated from raw milk meeting the same requirements as 
outlined under Secs. 58.132 through 58.138.



Sec. 58.431  Hydrogen peroxide.

    The solution shall comply with the specification of the U.S. 
Pharmacopeia, except that it may exceed the concentration specified 
therein and it does not contain added preservative. Application and 
usage shall be as specified in the ``Definitions and Standards of 
Identity for Cheese and Cheese Products'', Food and Drug Administration.



Sec. 58.432  Catalase.

    The catalase preparation shall be a stable, buffered solution, 
neutral in pH, having a potency of not less than 100 Keil units per 
milliliter. The source of the catalase, its application and usage shall 
be as specified in the ``Definitions and Standards of Identity for 
Cheese and Cheese Products,'' Food and Drug Administration.



Sec. 58.433  Cheese cultures.

    Harmless microbial cultures used in the development of acid and 
flavor components in cheese shall have a pleasing and desirable taste 
and odor and shall have the ability to actively produce the desired 
results in the cheese during the manufacturing process.



Sec. 58.434  Calcium chloride.

    Calcium chloride, when used, shall meet the requirements of the Food 
Chemical Codex.



Sec. 58.435  Color.

    Coloring when used, shall be Annatto or any cheese or butter color 
which meet the requirements of the Food and Drug Administration.



Sec. 58.436  Rennet, pepsin, other milk clotting enzymes and flavor enzymes.

    Enzyme preparations used in the manufacture of cheese shall be safe 
and suitable.



Sec. 58.437  Salt.

    The salt shall be free-flowing, white refined sodium chloride and 
shall meet the requirements of the Food Chemical Codex.

                   Operations and Operating Procedures



Sec. 58.438  Cheese from pasteurized milk.

    If the cheese is labeled as pasteurized, the milk shall be 
pasteurized by subjecting every particle of milk to a minimum 
temperature of 161  deg.F. for not less than 15 seconds or by any other 
acceptable combination of temperature and time treatment approved by the 
Administrator. HTST pasteurization units shall be equipped with the 
proper controls and equipment to assure pasteurization. If the milk is 
held more than 2 hours between the time of pasteurization and setting, 
it shall be cooled to 45  deg.F. or lower until time of setting.



Sec. 58.439  Cheese from unpasteurized milk.

    If the cheese is labeled as ``heat treated'', ``unpasteurized,'' 
``raw milk'', or ``for manufacturing'' the milk may be raw or heated at 
temperatures below pasteurization. Cheese made from unpasteurized milk 
shall be cured for a period of 60 days at a temperature not less than 35 
 deg.F. If the milk is held more than 2 hours between time of receipt or 
heat treatment and setting, it shall be cooled to 45  deg.F. or lower 
until time of setting.



Sec. 58.440  Make schedule.

    A uniform schedule should be established and followed as closely as 
possible for the various steps of setting, cutting, cooking, draining 
the whey

[[Page 148]]

and milling the curd, to promote a uniform quality of cheese.



Sec. 58.441  Records.

    Starter and make records should be kept at least three months.

(Approved by the Office of Management and Budget under OMB control 
number 0583-0047) \1\
---------------------------------------------------------------------------

    \1\ Editorial Note: See table appearing in Sec. 58.100 for correct 
OMB control number.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 745, Jan. 7, 1982]



Sec. 58.442  Laboratory and quality control tests.

    (a) Chemical analyses--(1) Milkfat and moisture. One sample shall be 
tested from each vat of the finished cheese to assure compliance with 
composition requirements.
    (2) Test method. Chemical analysis shall be made in accordance with 
the methods described in Official Methods of Analysis of the Association 
of Official Analytical Chemists as specified in the appropriate 
standards of identity, the latest edition of Standard Methods or by 
other methods giving equivalent results.
    (b) Weight or volume control. Representative samples of the finished 
product shall be checked during the packaging operation to assure 
compliance with the stated net weight on the container of consumer size 
packages.



Sec. 58.443  Whey handling.

    (a) Adequate sanitary facilities shall be provided for the handling 
of whey. If outside, necessary precautions shall be taken to minimize 
flies, insects and development of objectionable odors.
    (b) Whey or whey products intended for human food shall at all times 
be handled in a sanitary manner in accordance with the procedures of 
this subpart as specified for handling milk and dairy products.
    (c) Milkfat from whey should not be more than four days old when 
shipped.



Sec. 58.444  Packaging and repackaging.

    (a) Packaging rindless cheese or cutting and repackaging all styles 
of bulk cheese shall be conducted under rigid sanitary conditions. The 
atmosphere of the packaging rooms, the equipment and the packaging 
material shall be practically free from mold and bacterial 
contamination.
    (b) When officially graded bulk cheese is to be repackaged into 
consumer type packages with official grade labels or other official 
identification, a supervisor of packaging shall be required. If the 
repackaging is performed in a plant other than the one in which the 
cheese is manufactured and the product is officially identified, the 
plant, equipment, facilities and personnel shall meet the same 
requirements as outlined in this part.



Sec. 58.445  General identification.

    Bulk cheese for cutting and the container for cheese for 
manufacturing shall be legibly marked with the name of the product, code 
or date of manufacture, vat number, officially designated code number or 
name and address of manufacturer. Each consumer sized container shall 
meet the applicable regulations of the Food and Drug Administration.

 Requirements for Finished Products Bearing USDA Official Identification



Sec. 58.446  Quality requirements.

    (a) Cheddar cheese. The quality requirements for Cheddar cheese 
shall be in accordance with the U.S. Standards for Grades of Cheddar 
Cheese.
    (b) Colby cheese. The quality requirements for Colby cheese shall be 
in accordance with the U.S. Standards for Grades of Colby Cheese.
    (c) Monterey (Monterey Jack) cheese. The quality requirements for 
Monterey (Monterey Jack) cheese shall be in accordance with the U.S. 
Standards for Grades of Monterey (Monterey Jack) Cheese.
    (d) Swiss cheese, Emmentaler cheese. The quality requirements for 
Swiss cheese, Emmentaler cheese shall be in accordance with the U.S. 
Standards for Grades for Swiss Cheese, Emmentaler Cheese.
    (e) Bulk American cheese for manufacturing. The quality requirements 
for bulk American cheese for manufacturing shall be in accordance with 
the

[[Page 149]]

U.S. Standards for Grades of Bulk American Cheese for Manufacturing.

   Supplemental Specifications for Plants Manufacturing and Packaging 
                             Cottage Cheese

                               Definitions



Sec. 58.505  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning:
    (a) Condensed skim. Skim milk which has been condensed to 
approximately one-third the original volume in accordance with standard 
commercial practice.
    (b) Cottage cheese. (1) The soft uncured cheese meeting the 
requirements of the Food and Drug Administration for dry curd cottage 
cheese (21 CFR 133.129).
    (2) Cottage Cheese. The soft uncured cheese meeting the requirements 
of the Food and Drug Administration for cottage cheese (21 CFR 133.128).
    (3) Reduced Fat, Light, and Fat Free Cottage Cheese. The products 
conforming to all applicable Federal Regulations including ``Cottage 
cheese,'' Food and Drug Administration (21 CFR 133.128), ``Dry curd 
cottage cheese,'' Food and Drug Administration (21 CFR 133.129), 
``Nutrient content claims for fat, fatty acid, and cholesterol content 
of foods,'' Food and Drug Administration (21 CFR 101.62), and 
``Requirements for foods named by use of a nutrient content claim and a 
standardized term,'' Food and Drug Administration (21 CFR 130.10).
    (c) Direct acidification. The production of cottage cheese, without 
the use of bacterial starter cultures, through the use of approved food 
grade acids. This product shall be labeled according to the requirements 
of the Food and Drug Administration, 21 CFR 133.128 or 133.129, as 
appropriate.
    (d) Cottage Cheese with fruits, nuts, chives, or other vegetables. 
Shall consist of cottage cheese to which has been added fruits, nuts, 
chives, and other vegetables. The finished cheese shall comply with the 
requirements of the Food and Drug Administration for cottage cheese (21 
CFR 133.128).
    (e) Cream. The milkfat portion of milk which rises to the surface of 
milk on standing or is separated from it by centrifugal force and 
contains not less than 18.0 percent of milkfat.
    (f) Creaming mixture. The creaming mixture consists of cream or a 
mixture of cream with milk or skim milk or both. To adjust the solids 
content, nonfat dry milk or concentrated skim milk may be added but not 
to exceed 3.0 percent by weight of the creaming mixture. It may or may 
not contain a culture of harmless lactic acid and flavor producing 
bacteria, food grade acid, salt, and stabilizers with or without 
carriers. The creaming mixture in its final form may or may not be 
homogenized and shall conform to the requirements of the Food and Drug 
Administration (21 CFR 133.128(b)).

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48976, July 29, 2002]

                         Rooms and Compartments



Sec. 58.510  Rooms and compartments.

    (a) Processing operations with open cheese vats should be separated 
from other rooms or areas. Excessive personnel traffic or other possible 
contaminating conditions should be avoided. Rooms, compartments, 
coolers, and dry storage space in which any raw material, packaging or 
ingredients supplies or finished products are handled, processed, 
packaged or stored shall be designed and constructed to assure clean and 
orderly operations.
    (b) Ventilation. Processing and packaging rooms or compartments 
shall be ventilated to maintain sanitary conditions, preclude the growth 
of mold and air borne bacterial contaminants, prevent undue condensation 
of water vapor and minimize or eliminate objectionable odors. To 
minimize air borne contamination in processing and packaging rooms a 
filtered air supply meeting the requirements of Sec. 58.510(c) shall be 
provided. The incoming air shall exert an outward pressure so that the 
movement of air will be outward and prevent the movement of unfiltered 
air inward.

[[Page 150]]

    (c) Starter facility. A separate starter room or properly designed 
starter tanks and satisfactory air movement techniques shall be provided 
for the propagation and handling of starter cultures. All necessary 
precautions shall be taken to prevent contamination of the room, 
equipment and the air therein. A filtered air supply with a minimum 
average efficiency of 90% when tested in accordance with the ASHRAE 
Synthetic Dust Arrestance Test should be provided so as to obtain an 
outward movement of air from the room to minimize contamination.
    (d) Coolers. Coolers shall be equipped with facilities for 
maintaining proper temperature and humidity conditions, consistent with 
good commercial practices for the applicable product, to protect the 
quality and condition of the products. Coolers shall be kept clean, 
orderly and free from mold, and maintained in good repair. They shall be 
adequately lighted and proper circulation of air shall be maintained at 
all times. The floors, walls, and ceilings shall be of such construction 
as to permit thorough cleaning.

                         Equipment and Utensils



Sec. 58.511  General construction, repair and installation.

    The equipment and utensils used for the manufacture and handling of 
cottage cheese shall be as specified in Sec. 58.128. In addition for 
certain other equipment the following requirements shall be met.



Sec. 58.512  Cheese vats or tanks.

    (a) Cheese vats or tanks shall meet the requirements of Sec. 58.416. 
When direct steam injection is used for heating the milk, the vat or 
tank may be of single shell construction. The steam shall be culinary 
steam.
    (b) Vats shall be equipped with valves to control the heating and 
cooling medium and a suitable sanitary outlet valve. Vats used for 
creaming curd should be equipped with a refrigerated cooling medium. A 
circulating pump for the heating and cooling medium is recommended.



Sec. 58.513  Agitators.

    Mechanical agitators shall meet the requirements of Sec. 58.417.



Sec. 58.514  Container fillers.

    Shall comply with the 3-A Sanitary Standards for Equipment for 
Packaging Frozen Desserts and Cottage Cheese.



Sec. 58.515  Mixers.

    Only mixers shall be used which will mix the cheese carefully and 
keep shattering of the curd particles to a minimum. They shall be 
constructed in such a manner as to be readily cleanable. If shafts 
extend through the wall of the tank below the level of the product, they 
shall be equipped with proper seals which are readily removable for 
cleaning and sanitizing. The mixer shall be enclosed or equipped with 
tight fitting covers.



Sec. 58.516  Starter vats.

    Bulk starter vats shall meet the requirements of Sec. 58.415.

                 Quality Specifications for Raw Material



Sec. 58.517  General.

    Raw materials used for manufacturing cottage cheese shall meet the 
following quality specifications.



Sec. 58.518  Milk.

    The selection of raw milk for cottage cheese shall be in accordance 
with Secs. 58.132 through 58.138.



Sec. 58.519  Dairy products.

    (a) Raw skim milk. All raw skim milk obtained from a secondary 
source shall be separated from milk meeting the same quality 
requirements for milk as outlined in Sec. 58.518 above. Skim milk after 
being pasteurized and separated shall be cooled to 45  deg.F. or lower 
unless the skim milk is to be set for cheese within two hours after 
pasteurizing. The skim milk should not be more than 48 hours old from 
the time the milk was received at the plant and the skim milk is set for 
cheese.
    (b) Nonfat dry milk. Nonfat dry milk, when used, shall be obtained 
from milk meeting the same quality requirements

[[Page 151]]

as outlined in Sec. 58.518 above. It shall be processed according to the 
requirements of this Subpart, and should meet the requirements of 
Sec. 58.236(b)(3).
    (c) Condensed skim milk. Condensed skim milk, if used, shall be 
prepared from raw milk or skim milk that meets the same quality 
requirements outlined above for raw milk or skim milk. It shall be 
cooled promptly after drawing from the vacuum pan or evaporator and 
shall have been pasteurized before concentrating or during the 
manufacture. The standard plate count of the concentrated milk shall not 
exceed 30,000 per ml. at time of use.
    (d) Cream. Any cream used for preparing the dressing for creamed 
cottage cheese shall be separated from milk meeting at least the same 
quality requirements as the skim milk used for making the curd. The 
flavor of the cream shall be fresh and sweet. Cream obtained from a 
secondary source shall meet the same requirements. The creaming mixture 
prepared from this cream, after pasteurization, shall have a standard 
plate count of no more than 30,000 per ml.



Sec. 58.520  Nondairy ingredients.

    (a) Calcium chloride. Calcium chloride, when used, shall be of food 
grade quality and free from extraneous material.
    (b) Salt. Salt shall be free flowing, white refined sodium chloride 
and shall meet the requirements of The Food Chemical Codex.
    (c) Other ingredients. Other ingredients such as fruits, nuts, 
chives or other vegetables used or blended with cottage cheese shall be 
reasonably free of bacteria so as not to appreciably increase the 
bacterial count of the finished product. The various ingredients in kind 
shall be consistent in size and color so as to produce the desired 
appearance and appeal of the finished product. The flavor of the 
ingredients used shall be natural and represent the intended flavor and 
intensity desired in the finished product. Such ingredients shall be 
clean, wholesome, of uniformly good quality, free from mold, rancid or 
decomposed particles. Vegetables used in cottage cheese may first be 
soaked for 15 to 20 minutes in a cold 25 to 50 ppm chlorine solution to 
appreciably reduce the bacterial population. After soaking, the 
vegetables shall be drained and used soon thereafter.

                   Operations and Operating Procedures



Sec. 58.521  Pasteurization and product flow.

    (a) The skim milk used for the manufacture of cottage cheese shall 
be pasteurized not more than 24 hours prior to the time of setting by 
heating every particle of skim milk to a temperature of 161  deg.F. for 
not less than 15 seconds or by any other combination of temperature and 
time giving equivalent results. All skim milk must be cooled promptly to 
setting temperature. If held more than two hours between pasteurization 
and time of setting, the skim milk shall be cooled and held at 45 
deg.F. or lower until set.
    (b) Cream or cheese dressing shall be pasteurized at not less than 
150  deg.F. for not less than 30 minutes or at not less than 166  deg.F. 
for not less than 15 seconds or by any other combination of temperature 
and time treatment giving equivalent results. Cream and cheese dressing 
shall be cooled promptly to 40  deg.F. or lower after pasteurization to 
aid in further cooling of cottage cheese curd for improved keeping 
quality.
    (c) Reconstituted nonfat dry milk for cottage cheese manufacture 
need not be re-pasteurized provided it is reconstituted within two hours 
prior to the time of setting using water which is free from viable 
pathogenic or otherwise harmful microorganisms as well as microorganisms 
which may cause spoilage of cottage cheese. Skim milk separated from 
pasteurized whole milk need not be re-pasteurized provided it is 
separated in equipment from which all traces of raw milk from previous 
operations have been removed by proper cleaning and sanitizing.



Sec. 58.522  Reconstituting nonfat dry milk.

    Nonfat dry milk shall be reconstituted in a sanitary manner.



Sec. 58.523  Laboratory and quality control tests.

    (a) Quality control tests shall be made on samples as often as 
necessary

[[Page 152]]

to determine the shelf-life and stability of the finished product. 
Routine analyses shall be made on raw materials and finished product to 
assure satisfactory composition, shelf-life and stability.
    (b) Frequency of sampling--(1) Microbiological. Samples of raw milk 
for testing shall be taken as prescribed in Sec. 58.135. Representative 
samples shall be taken of finished cottage cheese and from each lot or 
batch of product used as an ingredient. For keeping quality tests 
representative samples shall be taken of finished cottage cheese;
    (2) Chemical--(i) Milkfat and Moisture. Representative samples shall 
be taken of cottage cheese; dry cottage cheese shall be tested for 
moisture only.
    (ii) pH. Representative samples shall be taken of finished cottage 
cheese.
    (c) Test methods--(1) Microbiological. Microbiological 
determinations shall be made for coliform, psychrotrophic and yeasts and 
molds. These tests shall be made in accordance with the methods 
described in the latest edition of Standard Methods for the Examination 
of Dairy Products, published by the American Public Health Association.
    (2) Chemical. Chemical analysis shall be made in accordance with the 
methods described in the latest edition of Official Methods of Analysis 
of the Association of Official Analytical Chemists, published by the 
Association of Official Analytical Chemists, the latest edition of 
Standard Methods for the Examination of Dairy Products, or by other 
methods giving equivalent results.



Sec. 58.524  Packaging and general identification.

    (a) Containers. Containers used for packaging cottage cheese shall 
be any commercially acceptable multiple use or single service container 
or packaging material which will satisfactorily protect the contents 
through the regular channels of trade without significant impairment of 
quality with respect to flavor, or contamination under normal conditions 
of handling. Caps or covers which extend over the lip of the container 
shall be used on all cups or tubs containing two pounds or less, to 
protect the product from contamination during subsequent handling.
    (b) Packaging. The cheese shall be packaged in a sanitary manner and 
automatic filling and capping equipment shall be used on all small 
sizes. The containers shall be checked weighed during the filling 
operation to assure they are filled uniformly to not less than the 
stated net weight on the container. Also care shall be taken that the 
cottage cheese be of uniform consistency at the time of packaging to 
assure legal composition in all packages.
    (c) General identification. Bulk packages containing cottage cheese 
shall be adequately and legibly marked with the name of the product, net 
weight, name and address of the manufacturer, lot number, code or date 
of packaging and any other identification as may be required. Consumer 
size packaged products shall meet the applicable regulations of the Food 
and Drug Administration.



Sec. 58.525  Storage of finished product.

    Cottage cheese after packaging shall be promptly stored at a 
temperature of 45  deg.F. or lower to maintain quality and condition 
until loaded for distribution. During distribution and storage prior to 
sale the product should be maintained at a temperature of 45  deg.F. or 
lower. The product shall not be exposed to foreign odors or conditions 
such as drippage or condensation that might cause package or product 
damage. Packaged cottage cheese shall not be placed directly on floors.

  Requirements for Cottage Cheese Bearing USDA Official Identification



Sec. 58.526  Official identification.

    (a) Only cottage cheese manufactured and packaged in accordance with 
the requirements of this part and with the applicable requirements in 
subpart A of this part which has been officially inspected in process 
and found to be in compliance with these requirements may be identified 
with the official USDA Quality Approved Inspection Shield.
    (b) Nonfat dry milk. Nonfat dry milk, when used in cottage cheese 
bearing official identification, shall meet the requirements for U.S. 
Extra Grade

[[Page 153]]

(Spray Process), at time of use, and should be of U.S. Low Heat 
Classification (not less than 6.0 mg. undenatured whey protein nitrogen 
per gram of nonfat dry milk). In addition, the nonfat dry milk shall 
have a direct microscopic count not exceeding 75 million per gram. The 
age of the nonfat dry milk shall be covered by a USDA grading 
certificate, evidencing compliance with quality requirements, dated not 
more than 6 months prior to use of the dry milk. In the interim between 
manufacture and use, the nonfat dry milk shall be stored in a clean, 
dry, vermin-free space. In any case, if the nonfat dry milk is more than 
120 days old, at time of use, it shall be examined for flavor to make 
certain that it meets the requirements for U.S. Extra Grade.



Sec. 58.527  Physical requirements.

    (a) Flavor. The cottage cheese shall possess a mild pleasing flavor, 
similar to fresh whole milk or light cream and may possess the delicate 
flavor and aroma of a good lactic starter. The product may possess to a 
slight degree a feed, acid, or salty flavor but shall be free from 
chalky, bitter, utensil, fruity, yeasty, or other objectionable flavors.
    (b) Body and texture. The curd particles shall have a meaty texture, 
but sufficiently tender to permit proper absorption of cream or cheese 
dressing. The texture shall be smooth and velvety and shall not be 
mealy, crumbly, pasty, sticky, mushy, watery, rubbery or slimy or 
possess any other objectionable characteristics of body and texture. 
Small curd style (cut with \1/4\ inch knives) should have curd particles 
approximately \1/4\ inch or less in size. Large curd style (cut with 
knives over \1/4\ inch) should have curd particles approximately \3/8\ 
inch or more in size.
    (c) Color and appearance. The finished cottage cheese, creamed or 
plain curd, shall have an attractive natural color and appearance with 
curd particles of reasonably uniform size. The creamed cottage cheese 
shall be uniformly mixed with the cream or dressing properly absorbed or 
adhering to the curd so as to prevent excessive drainage.



Sec. 58.528  Microbiological requirements.

    Compliance shall be based on 3 out of 5 consecutive samples taken at 
the time of packaging.
    (a) Coliform. Not more than 10 per gram.
    (b) Psychrotrophic. No more than 100 per gram.
    (c) Yeasts and molds. Not more than 10 per gram.



Sec. 58.529  Chemical requirements.

    (a) Moisture. See Sec. 58.505(b).
    (b) Milkfat. See Sec. 58.505(b).
    (c) pH. Not higher than 5.2.
    (d) Phosphatase. Not more than 4 micrograms of phenol equivalent per 
gram of cheese.



Sec. 58.530  Keeping quality requirements.

    Keeping quality samples taken from the packaging line shall be held 
at 45  deg.F. for 10 days. At the end of the 10 day period the samples 
shall possess a satisfactory flavor and appearance, and shall be free 
from bitter, sour, fruity, or other objectionable tastes and odors. The 
surface shall not be discolored, translucent, slimy or show any other 
objectionable condition.

  Supplemental Specifications for Plants Manufacturing, Processing and 
                        Packaging Frozen Desserts

                               Definitions



Sec. 58.605  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning as applied to frozen 
desserts meeting FDA requirements and briefly defined as follows:
    (a) Ice cream. The product conforming to the requirements of the 
Food and Drug Administration for ice cream (21 CFR 135.110).
    (b) Frozen custard. The product conforming to the requirements of 
the Food and Drug Administration for frozen custard (21 CFR 135.110).
    (c) Reduced Fat, Light, or Fat free Ice Cream. The products 
conforming to all

[[Page 154]]

applicable Federal Regulations including ``Ice cream and frozen 
custard,'' Food and Drug Administration (21 CFR 135.110), ``Nutrient 
content claims for fat, fatty acid, and cholesterol content of foods,'' 
Food and Drug Administration (21 CFR 101.62), and ``Requirements for 
foods named by use of a nutrient content claim and a standardized 
term,'' Food and Drug Administration (21 CFR 130.10).
    (d) Sherbet. The product conforming to the requirements of the Food 
and Drug Administration for sherbet (21 CFR 135.140).
    (e) Mellorine. The product conforming to the requirements of the 
Food and Drug Administration for mellorine (21 CFR 135.130).
    (f) Overrun. The trade expression used to reference the increase in 
volume of the frozen product over the volume of the mix. This increase 
in volume is due to air being whipped into the product during the 
freezing process. It is expressed as percent of the volume of the mix.
    (g) Mix. The trade name for the combined and processed ingredients 
which after freezing become a frozen dessert.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 67 
FR 48976, July 29, 2002]

                         Rooms and Compartments



Sec. 58.619  Mix processing room.

    The rooms used for combining mix ingredients and processing the mix 
shall meet the applicable requirements for rooms specified in 
Sec. 58.126. The room shall be ventilated to remove moisture and prevent 
condensation from forming on walls and ceiling. The room shall be well 
lighted.



Sec. 58.620  Freezing and packaging rooms.

    The rooms used for freezing and packaging frozen desserts shall be 
adequate in size to permit satisfactory air circulation and maintained 
in a clean and sanitary condition. The rooms shall be constructed in the 
same manner as prescribed above for mix rooms.



Sec. 58.621  Freezing tunnels.

    Freezing tunnels for quick freezing at extremely low temperatures 
shall be designed and constructed as to insure ease in cleaning and 
satisfactory conditions of operation.



Sec. 58.622  Hardening and storage rooms.

    Hardening and storage rooms for frozen desserts shall be constructed 
of satisfactory material for this purpose. The rooms shall be maintained 
in a clean and orderly manner. Adequate shelves, bins, or pallets shall 
be provided to keep the packages of finished products off the floor and 
to prevent damage to the containers. Sufficient refrigeration should be 
provided to insure adequate storage temperature (-10 deg. or lower). Air 
shall be circulated to maintain uniform temperature throughout the 
rooms. A vestibule or double entry way should be provided to minimize 
heat shock of the frozen products.

                         Equipment and Utensils



Sec. 58.623  Homogenizer.

    Homogenizer shall comply with 3-A Sanitary Standards.



Sec. 58.624  Freezers.

    Product contact surfaces of freezers used to lower the temperature 
of the liquid mix to a semi-frozen mass by a stirring action shall be 
constructed of a stainless steel or equally corrosion resistant metal 
and all parts easily accessible for cleaning and sanitizing. Batch and 
continuous freezers should comply with the applicable 3-A Standards.



Sec. 58.625  Fruit or syrup feeders.

    Fruit or syrup feeders inject flavoring material into the semi-
frozen product. Product contact surfaces shall be constructed of 
stainless steel or equally corrosion resistant metal and all pumps shall 
be in accordance to 3-A Sanitary Standards for dairy equipment. The 
feeder shall be constructed to enable complete disassembly for cleaning 
and sanitizing.

[[Page 155]]



Sec. 58.626  Packaging equipment.

    Packaging equipment designed to mechanically fill and close single 
service containers with frozen desserts shall be constructed so that all 
product contact surfaces shall be of stainless steel or equally 
corrosion-resistant metal. All product contact surfaces shall be easily 
accessible for cleaning. The design and operation of the machine shall 
in no way contaminate the container of the finished product placed 
therein. New or replacement equipment shall comply with the 3A Sanitary 
Standards for Equipment for Packaging Frozen Desserts and Cottage 
Cheese.

                 Quality Specifications for Raw Material



Sec. 58.627  Milk and dairy products.

    To produce ice cream and related products the raw milk and cream 
shall meet the quality requirements as prescribed in Secs. 58.132 
through 58.138, except that only commingled milk and cream meeting the 
bacteriological requirements of No. 1 shall be used.



Sec. 58.628  Sweetening agents.

    Sweetening agents shall be clean and wholesome and consist of one or 
more of the approved sweeteners listed in Sec. 58.605.



Sec. 58.629  Flavoring agents.

    Flavoring agents either natural or artificial shall be wholesome and 
free from undesirable flavors. They must impart the desired 
characteristic to the finished product. Flavoring agents shall be one or 
more of those approved in Sec. 58.605.



Sec. 58.630  Stabilizers.

    Stabilizers shall be clean and wholesome and consist of one or more 
of those approved in Sec. 58.605.



Sec. 58.631  Emulsifiers.

    Emulsifiers shall be clean and wholesome and consist of one or more 
of those approved in Sec. 58.605.



Sec. 58.632  Acid.

    Acids used in sherbet shall be wholesome and of food grade quality 
and consist of one or more of those approved in Sec. 58.605.



Sec. 58.633  Color.

    Coloring used for ice cream and related products shall be those 
certified by the U.S. Food and Drug Administration as safe for human 
consumption.

                   Operations and Operating Procedures



Sec. 58.634  Assembling and combining mix ingredients.

    The assembling and combining of mix ingredients for processing shall 
be in accordance with clean and sanitary methods and shall be consistent 
with good commercial practices. All raw materials shall be subjected to 
inspection for quality and condition prior to being combined and 
processed into the finished mix. All necessary precautions shall be 
taken to prevent the contamination of any raw material or the finished 
mix with any foreign substance.



Sec. 58.635  Pasteurization of the mix.

    Every particle of the mix, except added flavoring ingredients, shall 
be pasteurized at not less than 155  deg.F. and held at that temperature 
for 30 minutes or for 175  deg.F. for 25 seconds; or it may be 
pasteurized by any other equivalent temperature and holding time which 
will assure adequate pasteurization.



Sec. 58.636  Homogenization.

    Homogenization of the pasteurized mix shall be accomplished to 
effectively reduce the size of the milkfat globules and evenly disperse 
them throughout the mix.



Sec. 58.637  Cooling the mix.

    The mix shall be immediately cooled to a temperature of 45  deg.F. 
or lower, and stored at this temperature until further processing 
begins.



Sec. 58.638  Freezing the mix.

    After the mix enters the freezer, it shall be frozen as rapidly as 
possible to assure the formation of minute crystals. Proper adjustment 
of rate of flow, refrigerant and air pressure controls shall be achieved 
to assure correct

[[Page 156]]

overrun and consistency of the product for packaging and further 
freezing.



Sec. 58.639  Addition of flavor.

    The addition of flavoring ingredients to semi-frozen mix just prior 
to packaging shall be performed in a clean and sanitary manner. Care 
shall be taken to insure the flavor injection equipment has been 
properly cleaned and sanitized prior to use and that the flavor 
ingredients are of good quality and wholesome.



Sec. 58.640  Packaging.

    The packaging of the semifrozen product shall be done by means which 
will in no way contaminate the container or the product. When single 
service containers and lids are used, they shall be of good construction 
and protect the finished product. Containers used for frozen products 
shall be stored and handled in a sanitary manner so as to protect them 
from dust and bacterial contamination.



Sec. 58.641  Hardening and storage.

    Immediately after the semifrozen product is placed in its intended 
container it shall be placed in a hardening tunnel or hardening room to 
continue the freezing process. Rapid freezing to 0 deg. to -15  deg.F is 
desirable to produce a good textured product.



Sec. 58.642  Quality control tests.

    All mix ingredients shall be subject to inspection for quality and 
condition throughout each processing operation. Quality control tests 
shall be made on flow line samples as often as necessary to check the 
effectiveness of processing and sanitation and as an aid in correcting 
deficiencies. Routine analysis shall be made on raw materials and 
finished products to assure adequate composition, weight or volume 
control.



Sec. 58.643  Frequency of sampling.

    (a) Microbiological. Representative samples shall be taken from each 
type of mix, and for the finished frozen product one sample from each 
flavor made.
    (b) Composition. Representative samples shall be tested for fat and 
solids-not-fat on each type of mix manufactured. Spot checks shall be 
made on the finished products as often as is necessary to assure 
compliance with composition standards.
    (c) Weight or volume control. Representative samples of the packaged 
products shall be checked during the packaging operation to assure 
compliance with the stated volume on the container as well as weight and 
overrun requirements.



Sec. 58.644  Test methods.

    (a) Microbiological. Microbiological determinations shall be made in 
accordance with the methods described in the latest edition of Standard 
Methods for the Examination of Dairy Products.
    (b) Chemical. Chemical analysis shall be made in accordance with the 
methods described in the latest edition of Official Methods of Analysis 
of the Association of Official Analytical Chemists, the latest edition 
of Standard Methods, or by other methods giving equivalent results.



Sec. 58.645  General identification.

    The various types of frozen desserts shall be packaged and labeled 
in accordance with the applicable regulations of the Food and Drug 
Administration.

 Requirements for Finished Products Bearing USDA Official Identification



Sec. 58.646  Official identification.

    (a) Only ice cream and related products manufactured and packaged in 
accordance with the requirements of this part and with the applicable 
requirements in subpart A of this part which have been officially 
inspected in process and found to be in compliance with these 
requirements may be identified with the official USDA Quality Approved 
Inspection Shield.
    (b) Dairy products used in the manufacture of frozen desserts for 
which there are U.S. grades established (nonfat dry milk, whole milk, 
buttermilk and whey) shall be U.S. Extra Grade or better, and in the 
case of unsalted butter, shall be no lower than U.S. Grade A. Dairy 
products for which there are not USDA grade shall meet the applicable 
requirements of this part which permit such product to bear the USDA 
Quality Approved Inspection Shield.

[[Page 157]]



Sec. 58.647  Composition requirements for ice cream.

    See Sec. 58.605(a).



Sec. 58.648  Microbiological requirements for ice cream.

    The finished product shall contain not more than 50,000 bacteria per 
gram as determined by the standard plate count, and shall contain not 
more than 10 coliform organisms per gram for plain and not more than 20 
coliform per gram in chocolate, fruit, nut or other flavors in three out 
of five samples.



Sec. 58.649  Physical requirements for ice cream.

    (a) Flavor. The flavor of the finished ice cream shall be pleasing 
and desirable, and characteristic of the fresh milk and cream and the 
particular flavoring used.
    (b) Body and texture. The body shall be firm, have substance and 
readily melt to a creamy consistency when exposed to room temperatures; 
the texture shall be fine, smooth, and have the appearance of creaminess 
throughout.
    (c) Color. The color shall be attractive, pleasing, uniform and 
characteristic of the flavor represented.



Sec. 58.650  Requirements for frozen custard.

    The same requirements apply as for ice cream except plain frozen 
custard shall have a minimum egg yolk solids content of 1.4 percent, and 
1.12 percent when fruits, nuts and other such ingredients are used for 
flavoring.



Sec. 58.652  Composition requirements for sherbet.

    See Sec. 58.605(d).



Sec. 58.653  Microbiological requirements for sherbet.

    The finished product shall contain not more than 50,000 bacteria per 
gram as determined by the standard plate count and shall contain not 
more than 10 coliform organisms per gram in three out of five samples.



Sec. 58.654  Physical requirements for sherbet.

    (a) Flavor. The flavor of the finished sherbet shall be pleasing and 
desirable and characteristic of the particular flavoring used and shall 
impart a sweet yet tart sensation.
    (b) Body and texture. The body shall be firm, compact, somwhat chewy 
and readily melt to an even syrupy consistency at room temperatures; the 
texture shall be smooth but not as fine as in ice cream and shall be 
even throughout.
    (c) Color. The color shall be attractive, pleasing, uniform and 
characteristic of the flavor represented.

  Supplemental Specifications for Plants Manufacturing, Processing and 
        Packaging Pasteurized Process Cheese and Related Products

                               Definitions



Sec. 58.705  Meaning of words.

    (a) Pasteurized process cheese and related products. Pasteurized 
process cheese and related products are the foods which conform to the 
applicable requirements of the Food and Drug Administration for cheeses 
and related cheese products (21 CFR part 133).
    (b) Blend set up. The trade term for a particular group of vat lots 
of cheese selected to form a blend based upon their combined ability to 
impart the desired characteristics to a pasteurized process cheese 
product.
    (c) Cooker batch. The amount of cheese and added optional 
ingredients placed into a cooker at one time, heated to pasteurization 
temperature, and held for the required length of time.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, and amended at 
67 FR 48976, July 29, 2002]

                         Equipment and Utensils



Sec. 58.706  General construction, repair and installation.

    The equipment and utensils used for the handling and processing of 
cheese products shall be as specified in Sec. 58.128 of this subpart. In 
addition, for certain other equipment the following requirements shall 
be met.



Sec. 58.707  Conveyors.

    Conveyors shall be constructed of material which can be properly 
cleaned, will not rust, or otherwise

[[Page 158]]

contaminate the cheese, and shall be maintained in good repair.



Sec. 58.708  Grinders or shredders.

    The grinders or shredders used in the preparation of the trimmed and 
cleaned cheese shall be of corrosion-resistant material, and of such 
construction as to prevent contamination of the cheese and to allow 
thorough cleaning of all parts and product contact surfaces.



Sec. 58.709  Cookers.

    The cookers shall be the steam jacketed or direct steam type. They 
shall be constructed of stainless steel or other equally corrosion-
resistant material. All product contact surfaces shall be readily 
accessible for cleaning. Each cooker shall be equipped with an 
indicating thermometer, and shall be equipped with a temperature 
recording device. The recording thermometer stem may be placed in the 
cooker if satisfactory time charts are obtained, if not, the stem shall 
be placed in the hotwell or filler hopper. Steam check valves on direct 
steam type cookers shall be mounted flush with cooker wall, be 
constructed of stainless steel and designed to prevent the backup of 
product into the steam line, or the steam line shall be constructed of 
stainless steel pipes and fittings which can be readily cleaned. If 
direct steam is applied to the product only culinary steam shall be used 
(see Sec. 58.127(d)).



Sec. 58.710  Fillers.

    A strainer should be installed between the cooker and the filler. 
The hoppers of all filters shall be covered but the cover may have sight 
ports. If necessary, the hopper may have an agitator to prevent buildup 
on side wall. The filler valves and head shall be kept in good repair 
and capable of accurate measurements. Product contact surfaces shall be 
of stainless steel or other corrosion resistant material.

                 Quality Specifications for Raw Material



Sec. 58.711  Cheddar, colby, washed or soaked curd, granular or stirred curd cheese.

    Cheese, used in the manufacture of pasteurized process cheese 
products should possess a pleasing and desirable taste and odor 
consistent with the age of the cheese; should have body and texture 
characteristics which will impart the desired body and texture 
characteristics in the finished product; and should possess finish and 
appearance characteristics which will permit removal of all packaging 
material and surface defects. The cheese should at least meet the 
requirements equivalent to U.S. Standard Grade for Bulk American Cheese 
for Manufacturing provided the quantity of the cheese with any one 
defect as listed for U.S. Standard Grade is limited to assure a 
satisfactory finished product.



Sec. 58.712  Swiss.

    Swiss cheese used in the manufacture of pasteurized process cheese 
and related products should be equivalent to U.S. Grade B or better, 
except that the cheese may be blind or possess finish characteristics 
which do not impair the interior quality.



Sec. 58.713  Gruyere.

    Gruyere cheese used in the manufacture of process cheese and related 
products should be of good wholesome quality and except for smaller eyes 
and sharper flavor shall meet the same requirements as for Swiss cheese.



Sec. 58.714  Cream cheese, Neufchatel cheese.

    These cheeses when mixed with other foods, or used for spreads and 
dips should possess a fresh, pleasing and desirable flavor.

[[Page 159]]



Sec. 58.715  Cream, plastic cream and anhydrous milkfat.

    These food products shall be pasteurized, sweet, have a pleasing and 
desirable flavor and be free from objectionable flavors, and shall be 
obtained from milk which complies with the quality requirements as 
specified in Secs. 58.132 through 58.138 of this subpart.



Sec. 58.716  Nonfat dry milk.

    Nonfat dry milk used in cheese products should meet the requirements 
equivalent to U.S. Extra Grade except that the moisture content may be 
in excess of that specified for the particular grade.



Sec. 58.717  Whey.

    Whey used in cheese products should meet the requirements equivalent 
to USDA Extra Grade except that the moisture requirement for dry whey 
may be waived.



Sec. 58.718  Flavor ingredients.

    Flavor ingredients used in process cheese and related products shall 
be those permitted by the Food and Drug Standards of Identity, and in no 
way deleterious to the quality or flavor of the finished product. In the 
case of bulky flavoring ingredients such as pimento, the particles 
should be, to at least a reasonable degree, uniform in size, shape and 
consistency. The individual types of flavoring materials should be 
uniform in color and should impart the characteristic flavor desired in 
the finished product.



Sec. 58.719  Coloring.

    Coloring shall be Annatto or any other cheese or butter color which 
is approved by the Food and Drug Administration.



Sec. 58.720  Acidifying agents.

    Acidifying agents if used shall be those permitted by the Food and 
Drug Administration for the specific pasteurized process cheese product.



Sec. 58.721  Salt.

    Salt shall be free flowing, white refined sodium chloride and shall 
meet the requirements of The Food Chemical Codex.



Sec. 58.722  Emulsifying agents.

    Emulsifying agents shall be those permitted by the Food and Drug 
Administration for the specific pasteurized process cheese product, and 
shall be free from extraneous material.

                   Operations and Operating Procedures



Sec. 58.723  Basis for selecting cheese for processing.

    A representative sample shall have been examined to determine fat 
and moisture content. One sample unit from each vat of cheese shall have 
been examined to determine the suitability of the vat for use in process 
cheese products in accordance with the flavor, body and texture 
characteristics permitted in Secs. 58.711 through 58.714 as applicable, 
and to determine the characteristics it will contribute to the finished 
product when blended with other cheese. The cheese included in each 
blend shall be selected on the basis of the desirable qualities which 
will result in the desired finished product. Recook from equivalent 
blends may be used in an amount that will not adversely affect the 
finished product. Hot cheese from the filler may be added to the cooker 
in amounts which will not adversely affect the finished product.



Sec. 58.724  Blending.

    To as great an extent as is practical, each vat of cheese should be 
divided and distributed throughout numerous cooker batches. The purpose 
being to minimize the preponderance and consequent influence of any one 
vat on the characteristics of the finished product, and to promote as 
much uniformity as is practical. In blending also consider the final 
composition requirements for fat and moisture. Quantities of salt, 
color, emulsifier and other allowable ingredients to be added shall be 
calculated and predetermined for each cooker batch.



Sec. 58.725  Trimming and cleaning.

    The natural cheese shall be cleaned free of all non-edible portions. 
Paraffin and bandages as well as rind surface, mold or unclean areas or 
any other part which is unwholesome or unappetizing shall be removed.

[[Page 160]]



Sec. 58.726  Cutting and grinding.

    The trimmed and cleaned cheese should be cut into sections of 
convenient size to be handled by the grinder or shredder. The grinding 
and mixing of the blended lots of cheese should be done in such a manner 
as to insure a homogeneous mixture throughout the batch.



Sec. 58.727  Adding optional ingredients.

    As each batch is added to the cooker, the predetermined amounts of 
salt, emulsifiers, color, or other allowable optional ingredients shall 
be added. However, a special blending vat may be used to mix the ground 
cheese and other ingredients before they enter the cooker to provide 
composition control.



Sec. 58.728  Cooking the batch.

    Each batch of cheese within the cooker, including the optional 
ingredients, shall be thoroughly commingled and the contents pasteurized 
at a temperature of at least 158  deg.F. and held at that temperature 
for not less than 30 seconds or any other equally effective combination 
of time and temperature approved by the Administrator. Care shall be 
taken to prevent the entrance of cheese particles or ingredients after 
the cooker batch of cheese has reached the final heating temperature. 
After holding for the required period of time, the hot cheese shall be 
emptied from the cooker as quickly as possible.



Sec. 58.729  Forming containers.

    Containers either lined or unlined shall be assembled and stored in 
a sanitary manner to prevent contamination. The handling of containers 
by filler crews should be done with extreme care and observance of 
personal cleanliness. Preforming and assembling of pouch liners and 
containers shall be kept to a minimum and the supply rotated to limit 
the length of time exposed to possible contamination prior to filling.



Sec. 58.730  Filling containers.

    Hot fluid cheese from the cookers may be held in hotwells or hoppers 
to assure a constant and even supply of processed cheese to the filler 
or slice former. Filler valves shall effectively measure the desired 
amount of product into the pouch or container in a sanitary manner and 
shall cut off sharply without drip or drag of cheese across the opening. 
An effective system shall be used to maintain accurate and precise 
weight control. Damaged or unsatisfactory packages shall be removed from 
production, and the cheese may be salvaged into sanitary containers, and 
added back to cookers.



Sec. 58.731  Closing and sealing containers.

    Pouches, liners, or containers having product contact surfaces, 
after filling shall be folded or closed and sealed in a sanitary manner, 
preferably by mechanical means, so as to assure against contamination. 
Each container in addition to other required labeling shall be coded in 
such a manner as to be easily identified as to date of manufacture by 
lot or sublot number.



Sec. 58.732  Cooling the packaged cheese.

    After the containers are filled they shall be stacked, or cased and 
stacked in such a manner as to prevent breaking of seals due to 
excessive bulging and to allow immediate progressive cooling of the 
individual containers of cheese. As a minimum the cheese should be 
cooled to a temperature of 100  deg.F. or lower within 24 hours after 
filling. The temperature of the cheese should be reduced further, before 
being shipped or if storage is intended.



Sec. 58.733  Quality control tests.

    (a) Chemical analyses. The following chemical analyses shall be 
performed in accordance with the appropriate edition of the Official 
Methods of Analysis of the AOAC as specified in the appropriate 
Standards of Identity or in accordance with methods that give equivalent 
results.
    (1) Cheese. A representative sample of cheese used in the 
manufacture of pasteurized process cheese products shall have been 
tested prior to usage to determine its moisture and fat content.
    (2) Pasteurized process cheese products. As many samples shall be 
taken of the finished product direct from the cooker, hopper, filler, or 
other location as is necessary to assure compliance with composition 
requirements. Spot checks should be made on samples from the

[[Page 161]]

cooker as frequently as is necessary to indicate pasteurization by means 
of the phosphatase test, as well as any other tests necessary to assure 
good quality control.
    (b) Examination of physical characteristics. As many samples shall 
be taken as is necessary to assure meeting the required physical 
characteristics of the products. Representative samples shall be taken 
from production for examination of physical characteristics. The samples 
shall be examined at approximately 70  deg.F. the first day of operation 
after the date of processing for the following characteristics: (1) 
Finish and appearance, (2) flavor, (3) color, (4) body and texture, and 
(5) slicing or spreading properties.
    (c) Keeping quality. During processing or preferably from the cooled 
stock select sufficient samples at random from the production run. The 
samples should be stored at approximately 50  deg.F. for 3 months for 
evaluation of physical characteristics as in paragraph (b) of this 
section. Additional samples may be selected and held at different 
temperatures or time.
    (d) Weight control. During the filling operation as many samples 
shall be randomly selected and weighed from each production run as is 
necessary to assure accuracy of the net weight established for the 
finished products.

    Requirements for Processed Cheese Products Bearing USDA Official 
                             Identification



Sec. 58.734  Official identification.

    Only process cheese products manufactured and packaged in accordance 
with the requirements of this part and with the applicable requirements 
in subpart A of this part which have been officially inspected in 
process and found to be in compliance with these requirements may be 
identified with official USDA Quality Approved Inspection Shield.



Sec. 58.735  Quality specifications for raw materials.

    (a) Cheddar colby, washed or soaked curd, granular or stirred curd 
cheese. Cheese, used in the manufacture of pasteurized process cheese 
products which are identified with the USDA official identification 
shall possess a pleasing and desirable taste and odor consistent with 
the age of the cheese; shall have body and texture characteristics which 
will impart the desired body and texture characteristics in the finished 
product; and shall possess finish and appearance characteristics which 
will permit removal of all packaging material and surface defects. The 
cheese shall at least meet the requirements of U.S. Standard Grade for 
Bulk American Cheese for Manufacturing provided the quantity of the 
cheese with any one defect as listed for U.S. Standard Grade is limited, 
to assure compliance with the specifications of the finished product.
    (b) Swiss. Swiss cheese used in the manufacture of pasteurized 
process cheese and related products bearing official identification 
shall be U.S. Grade B or better, except that the cheese may be blind or 
possess finish characteristics which do not impair the interior quality.
    (c) Gruyere. Gruyere cheese used in the manufacture of process 
cheese and related products shall be of good wholesome quality and 
except for smaller eyes and sharper flavor shall meet the same 
requirements as for Swiss cheese.
    (d) Cream cheese, Neufchatel cheese. Mixed with other foods, or used 
for spreads and dips shall possess a fresh, pleasing and desirable 
flavor.
    (e) Cream, plastic cream and anhydrous milkfat. These food products 
shall be pasteurized, sweet, have a pleasing and desirable flavor and be 
free from objectionable flavors, and shall be obtained from milk which 
complies with the quality requirements as specified in Sec. 58.132 of 
this subpart.
    (f) Nonfat dry milk. Nonfat dry milk used in officially identified 
cheese products shall meet the requirements of U.S. Extra Grade except 
that the moisture content may be in excess of that specified for the 
particular grade.
    (g) Whey. Condensed or dry whey used in officially identified cheese 
products shall meet the requirements for USDA Extra Grade except that 
the moisture requirement for dry whey may be waived.
    (h) Flavor ingredients. Flavor ingredients used in process cheese 
and related products shall be those permitted by

[[Page 162]]

the Food and Drug Standards of Identity, and in no way deleterious to 
the quality or flavor of the finished product. In the case of bulky 
flavoring ingredients such as pimento, the particles shall be, to at 
least a reasonable degree, uniform in size, shape and consistency. The 
individual types of flavoring materials shall be uniform in color and 
shall impart the characteristic flavor desired in the finished product.
    (i) Other ingredients. For coloring, acidifying agents, salt, and 
emulsifying agents see Secs. 58.719, 58.720, 58.721 and 58.722.

              Quality Specifications for Finished Products



Sec. 58.736  Pasteurized process cheese.

    Shall conform to the provisions of the Definitions and Standards of 
Identity for Pasteurized Process Cheese and Related Products, Food and 
Drug Administration. The average age of the cheese in the blend shall be 
such that the desired flavor, body and texture will be achieved in the 
finished product. The quality of pasteurized process cheese shall be 
determined on the basis of flavor, body and texture, color, and finish 
and appearance.
    (a) Flavor. Has a pleasing and desirable mild cheese taste and odor 
characteristic of the variety or varieties of cheese ingredients used. 
If additional optional ingredients are used they shall be incorporated 
in accordance with good commercial practices and the flavor imparted 
shall be pleasing and desirable. May have a slight cooked or very slight 
acid or emulsifier flavor; is free from any undesirable tastes and 
odors.
    (b) Body and texture. Shall have a medium-firm, smooth and velvety 
body free from uncooked cheese particles. Is resilient and not tough, 
brittle, short, weak, or sticky. It shall be free from pin holes or 
openings except those caused by trapped steam. The cheese shall slice 
freely, and shall not stick to the knife or break when cut into 
approximately \1/8\ inch slices. If in sliced form, the slices shall 
separate readily.
    (c) Color. May be colored or uncolored but shall be uniform 
throughout. If colored it shall be bright and not be dull or faded. To 
promote uniformity and a common reference to describe color use the 
color designations as depicted by the National Cheese Institute standard 
color guide for cheese.
    (d) Finish and appearance. The wrapper may be slightly wrinkled but 
shall envelop the cheese, adhere closely to the surface, and be 
completely sealed and not broken or soiled.



Sec. 58.737  Pasteurized process cheese food.

    Shall conform to the provisions of the Definitions and Standards of 
Identity for Pasteurized Process Cheese Food and Related Products, Food 
and Drug Administration. The average age of the cheese in the blend 
shall be such that the desired flavor, body and texture will be achieved 
in the finished product. The quality of pasteurized process cheese food 
shall be determined on the basis of flavor, body and texture, color, and 
finish and appearance.
    (a) Flavor. Has a pleasing and desirable mild cheese taste and odor 
characteristic of the variety or varieties of cheese ingredients used. 
If additional optional ingredients are used they shall be incorporated 
in accordance with good commercial practices and the flavor imparted 
shall be pleasing and desirable. May have a slight cooked or very slight 
acid or emulsifier flavors; is free from any undesirable tastes and 
odors.
    (b) Body and texture. Shall have a reasonably medium-firm smooth and 
velvety body and free from uncooked cheese particles. Is resilient and 
not tough, brittle, short or sticky. It shall be free from pin holes or 
openings except those caused by trapped steam. The product shall slice 
freely with only a slight amount of sticking and shall not break when 
cut into approximately \1/8\ inch slices. If in sliced form, the slices 
shall separate readily.
    (c) Color. May be colored or uncolored but shall be uniform 
throughout. If colored it shall be bright and not be dull or faded. To 
promote uniformity and a common reference to describe color use the 
color designations as depicted by the National Cheese Institute standard 
color guide for cheese.
    (d) Finish and appearance. The wrapper may be slightly wrinkled but 
shall

[[Page 163]]

envelop the cheese, adhere closely to the surface, and be completely 
sealed and not broken or soiled.



Sec. 58.738  Pasteurized process cheese spread and related products.

    Shall conform to the applicable provisions of the Definitions and 
Standards of Identity for Pasteurized Process Cheese Spreads, Food and 
Drug Administration. The pH of pasteurized process cheese spreads shall 
not be below 4.0.

The quality of pasteurized process cheese spreads shall be determined on 
the basis of flavor, body and texture, color, and finish and appearance.
    (a) Flavor. Has a pleasing and desirable cheese taste and odor 
characteristic of the variety or varieties of cheese ingredients used. 
If additional optional ingredients are used they shall be incorporated 
in accordance with good commercial practices and the flavor imparted 
shall be pleasing and desirable. May have a slight cooked, acid, or 
emulsifier flavor; is free from any undesirable tastes and odors.
    (b) Body and texture. Shall have a smooth body free from uncooked 
cheese particles and when packaged shall form into a homogeneous plastic 
mass, and be free from pin holes or openings except those caused by 
trapped steam. Product made for slicing shall slice freely when cut into 
approximately \1/8\ inch slices with only a slight amount of sticking. 
Product made for spreading shall be spreadable at approximately 70 
deg.F.
    (c) Color. May be colored or uncolored but shall be uniform 
throughout. If colored it shall be bright and not be dull or faded. To 
promote uniformity and a common reference to describe color the color 
designations as depicted by the National Cheese Institute standard color 
guide for cheese may be used.
    (d) Finish and appearance. Wrappers, if used, may be slightly 
wrinkled but shall envelop the cheese, adhere closely to the surface, 
and be completely sealed and not broken or soiled. Other containers made 
of suitable materials shall be completely filled, sealed and not broken 
or soiled.

 Supplemental Specifications for Plants Manufacturing, Processing, and 
                Packaging Whey, Whey Products and Lactose

                               Definitions



Sec. 58.805  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa, as 
the case may demand. Unless the context otherwise requires, the 
following terms shall have the following meaning:
    (a) Whey. ``Whey'' is the fluid obtained by separating the coagulum 
from milk, cream, and/or skim milk in cheesemaking. The acidity of the 
whey may be adjusted by the addition of safe and suitable pH adjusting 
ingredients. Moisture removed from cheese curd as a result of salting 
may be collected for further processing as whey if the collection of the 
moisture and the removal of the salt from the moisture are conducted in 
accordance with procedures approved by the Administrator.
    (b) Dry Whey. ``Dry Whey'' is the product resulting from drying 
fresh whey which has been pasteurized and to which nothing has been 
added as a preservative. It contains all constituents, except moisture, 
in the same relative proportions as in the whey.
    (c) Dry Sweet Whey. Dry whey not over 0.16 percent titratable 
acidity on a reconstituted basis.
    (d) Dry Whey--% Titratable Acidity. Dry whey over 0.16 percent, but 
below 0.35 percent titratable acidity on a reconstituted basis. The 
blank being filled with the actual acidity.
    (e) Dry Acid Whey. Dry whey with 0.35 percent or higher titratable 
acidity on a reconstituted basis.
    (f) Modified Whey Products:
    (1) Partially demineralized whey,
    (2) Partially delactosed whey,
    (3) Demineralized whey, and
    (4) Whey protein concentrate-products defined by regulations of the 
Food and Drug Administration.

[[Page 164]]

    (g) Lactose (milk sugar). That food product defined by regulations 
of the Food and Drug Administration.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 1257, Jan. 6, 1981. Redesignated at 46 FR 63203, 
Dec. 31, 1981, as amended at 55 FR 39912, Oct. 1, 1990]

                         Rooms and Compartments



Sec. 58.806  General.

    Dry storage of product, packaging room for bulk product, and hopper 
or dump room shall meet the requirements of Secs. 58.210 through 58.212 
as applicable.

                         Equipment and Utensils



Sec. 58.807  General construction, repair and installation.

    All equipment and utensils necessary for the manufacture of whey, 
whey products and lactose shall meet the same general requirements for 
materials and construction as outlined in Secs. 58.128 and 58.215 
through 58.230 as applicable, except for the following:
    (a) Modified Whey Products. Equipment for whey fractionation, such 
as ultrafiltration, reverse osmosis, gel filtration, and electrodialysis 
shall be constructed in accordance with 3-A sanitary design principles, 
except where engineering requirements preclude strict adherence to such 
standards. Materials used for product contact surfaces shall meet 
applicable 3-A Sanitary Standards or Food and Drug Administration 
requirements. All equipment shall be of sanitary construction and 
readily cleanable.
    (b) Lactose. Equipment used in the further processing of lactose 
following its separation from whey shall have smooth surfaces, be 
cleanable, free from cracks or crevices, readily accessible for 
inspection and shall be constructed of non-toxic material meeting 
applicable Food and Drug Administration requirements and under 
conditions of use shall be resistant to corrosion, pitting or flaking. 
[The use of stainless steel is optional.]

                Quality Specifications for Raw Materials



Sec. 58.808  Whey.

    Whey for processing shall be fresh and originate from the processing 
of products made from milk meeting the requirements as outlined in 
Secs. 58.132 through 58.138. Only those ingredients approved by the Food 
and Drug Administration may be added to the whey for processing, except 
when restricted by this subpart. Whey products to which approved 
ingredients have been added or constituents removed to alter original 
characteristics for processing or usage shall be labeled to meet the 
applicable requirements.

                   Operations and Operating Procedures



Sec. 58.809  Pasteurization.

    (a) All fluid whey used in the manufacture of dry whey, dry whey 
products, modified whey products, and lactose shall be pasteurized prior 
to condensing. When the condensing and drying operations for dry whey 
take place at the same plant, the pasteurization may be located at a 
different point in the operation provided it will protect the quality of 
the finished product and not adversely affect the processing procedure.
    (b) Pasteurized products transported to another plant for final 
processing shall be repasteurized, except that condensed whey containing 
40 percent or more solids may be transported to another plant for 
further processing into dry whey, dry whey products or lactose without 
repasteurization.
    (c) If whey is transferred to another plant for further processing, 
or if during the processing procedure unpasteurized ingredients are 
added (except those necessary for lactose crystallization), or 
processing procedures permit contamination or bacterial growth, the whey 
shall be repasteurized as close to the final drying operations as 
possible.



Sec. 58.810  Temperature requirements.

    (a) Unless processed within 2 hours, all whey or condensed whey, 
except

[[Page 165]]

acid type whey with a titratable acidity of 0.40 percent or above, or a 
pH of 4.6 or below, shall be cooled to 45  deg.F or less, or heated to 
145  deg.F or higher. Other temperatures may be used when essential for 
the technology of the process, such as lactose crystallization and 
membrane whey separation processes, when the quality and wholesomeness 
of the product is not impaired.
    (b) Recording thermometers shall be required and so located to 
assure that the cooling or heating requirements in paragraph (a) of this 
section are met.



Sec. 58.811  General.

    The operating procedures as contained in Secs. 58.237 through 
58.244, 58.246, 58.247, and 58.443 (a) and (b) shall be followed as 
applicable.



Sec. 58.812  Methods of sample analysis.

    Samples shall be tested according to the applicable methods of 
laboratory analysis contained in either DA Instruction 918-RL, as issued 
by the USDA, Agricultural Marketing Service, Dairy Programs, or the 
Official Methods of Analysis of the Association of Official Analytical 
Chemists, or Standard Methods for the Examination of Dairy Products.

[67 FR 48976, July 29, 2002]

 Requirements for Finished Products Bearing USDA Official Identification



Sec. 58.813  Dry whey.

    The quality requirements for dry whey shall be in accordance with 
the U.S. Standards for Dry Whey.

 Supplemental Specifications for Plants Manufacturing, Processing, and 
  Packaging Evaporated and Condensed Milk or Ultra-Pasteurized Products

                               definitions



Sec. 58.905  Meaning of words.

    For the purpose of the regulations in this subpart, words in the 
singular form shall be deemed to impart the plural and vice versa as the 
case may demand. Unless the context otherwise requires, the following 
terms shall have the following meaning:
    (a) Evaporated milk. The liquid food made by evaporating sweet milk 
to such point that it contains not less than 6.5 percent of milkfat and 
not less than 16.5 percent of the total milk solids. The finished 
product shall conform to the requirements of the Food and Drug 
Administration for evaporated milk (21 CFR 131.130).
    (b) Concentrated milk, plain condensed milk. The product which 
conforms to the standard of identity for evaporated milk except that it 
is not processed by heat to prevent spoilage. The container may be 
unsealed, and stabilizing ingredients are not used. The finished product 
shall conform to the requirements of the Food and Drug Administration 
for concentrated milk (21 CFR 131.115).
    (c) Sweetened condensed milk. The liquid or semi-liquid food made by 
evaporating a mixture of sweet milk and refined sugar (sucrose) or any 
combination of refined sugar (sucrose) and refined corn sugar (dextrose) 
to such point that the finished sweetened condensed milk contains not 
less than 28.0 percent of total milk solids and not less than 8.0 
percent of milkfat. The quantity of sugar used is sufficient to prevent 
spoilage. The finished product shall conform to the requirements of the 
Food and Drug Administration for sweetened condensed milk (21 CFR 
131.120).
    (d) Ultra-pasteurized. The product shall have been thermally 
processed at or above 280  deg.F for at least 2 seconds, either before 
or after packaging, so as to produce a product which has an extended 
shelf life under refrigerated conditions.

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, and amended at 
67 FR 48976, July 29, 2002]

                         Equipment and Utensils



Sec. 58.912  General construction, repair and installation.

    The equipment and utensils used for processing and packaging 
evaporated, condensed or ultra pasteurized dairy products shall be as 
specified in Sec. 58.128. In addition for certain other equipment, the 
following requirements shall be met.

[[Page 166]]



Sec. 58.913  Evaporators and vacuum pans.

    All equipment used in the removal of moisture from milk or milk 
products for the purpose of concentrating the solids should comply with 
the requirements of the 3-A Sanitary Standards for Milk and Milk 
Products Evaporators and Vacuum Pans.



Sec. 58.914  Fillers.

    Both gravity and vacuum type fillers shall be of sanitary design and 
all product contact surfaces, if metal, shall be made of stainless steel 
or equally corrosion-resistant material; except that, certain evaporated 
milk fillers having brass parts may be approved if free from corroded 
surfaces and kept in good repair. Nonmetallic product contact surfaces 
shall comply with the requirements for 3-A Sanitary Standards for 
Plastic, and Rubber and Rubber-Like Materials. Fillers shall be designed 
so that they in no way will contaminate or detract from the quality of 
the product being packaged.



Sec. 58.915  Batch or continuous in-container thermal processing equipment.

    Batch or continuous in-container thermal processing equipment shall 
meet the requirements of the Food and Drug Administration for thermally 
processed low-acid foods packaged in hermetically sealed containers (21 
CFR part 113). The equipment shall be maintained in such a manner as to 
assure control of the length of processing and to minimize the number of 
damaged containers.

[67 FR 48977, July 29, 2002]



Sec. 58.916  Homogenizer.

    Homogenizers where applicable shall be used to reduce the size of 
the fat particles and to evenly disperse them in the product. 
Homogenizers shall comply with the applicable 3-A Sanitary Standards.

                   Operations and Operating Procedures



Sec. 58.917  General.

    There are many operations and procedures used in the preparation of 
evaporated, condensed and ultra pasteurized dairy products that are 
similar, therefore, the following general requirements will apply when 
such operations or procedures are used.



Sec. 58.918  Standardization.

    The standardization of the product to obtain a finished product of a 
given composition shall be accomplished by the addition or removal of 
milkfat, milk solids-not-fat and/or water. The ingredients added to 
accomplish the desired composition shall be of the same hygenic quality 
as the product being standardized.



Sec. 58.919  Pre-heat, pasteurization.

    When pasteurization is intended or required by either the vat 
method, HTST method, or by the HHST method it shall be accomplished by 
systems and equipment meeting the requirements outlined in Sec. 58.128. 
Pre-heat temperatures prior to ultra pasteurization will be those that 
have the most favorable effect on the finished product.



Sec. 58.920  Homogenization.

    Where applicable concentrated products shall be homogenized for the 
purpose of dispersing the fat throughout the product. The temperature of 
the product at time of homogenization and the pressure at which 
homogenization is accomplished will be that which accomplishes the most 
desired results in the finished products.



Sec. 58.921  Concentration.

    Concentrating by evaporation shall be accomplished with a minimum of 
chemical change in the product. The equipment and systems used shall in 
no way contaminate or adversely affect the desirability of the finished 
product.



Sec. 58.922  Thermal processing.

    The destruction of living organisms shall be performed in one of the 
following methods: (a) The complete in-container method, by heating the 
container and contents to a range of 212  deg.F to 280  deg.F for a 
sufficient time; (b) by a continuous flow process at or above 280  deg.F 
for at least 2 seconds, then packaged aseptically; (c) the product is 
first processed according to methods as in

[[Page 167]]

paragraph (b) of this section, then packaged and given further heat 
treatment to complete the process.



Sec. 58.923  Filling containers.

    (a) The filling of small containers with product shall be done in a 
sanitary manner. The containers shall not contaminate or detract from 
the quality of the product in any way. After filling, the container 
shall be hermetically sealed.
    (b) Bulk containers for the product shall be suitable and adequate 
to protect the product in storage or transit. The bulk container 
(including bulk tankers) shall be cleaned and sanitized before filling, 
and filled and closed in a sanitary manner.



Sec. 58.924  Aseptic filling.

    A previously ultra pasteurized product shall be filled under 
conditions which prevent contamination of the product by living 
organisms or spores. The containers prior to being filled shall be 
sterilized and maintained, in a sterile condition. The containers shall 
be sealed in a manner that prevents contamination of the product.



Sec. 58.925  Sweetened condensed.

    After condensing, the sweetened condensed product should be cooled 
rapidly to about 85  deg.F to induce crystallization of the 
oversaturated lactose. When the desired crystallization is reached 
further cooling is resumed to 68 deg.-70  deg.F.



Sec. 58.926  Heat stability.

    Prior to thermal processing of concentrated products and where 
stabilizers are allowed, tests should be made on the heat stability of 
the product to determine necessity for, and the amount of stabilizer 
needed. Based on the stability tests, safe and suitable stabilizers and 
emulsifiers may be added.



Sec. 58.927  Storage.

    Finished products which are to be held more than 30 days should be 
stored at temperatures below 72  deg.F Precautions shall be taken to 
prevent freezing of the product.



Sec. 58.928  Quality control tests.

    All dairy products and other ingredients shall be subject to 
inspection for quality and condition throughout each processing 
operation. Quality control tests shall be made on flow samples as often 
as is necessary to check the effectiveness of processing and 
manufacturing and as an aid in correcting deficiencies. Routine analyses 
shall be made on raw materials and finished products to assure adequate 
composition control. For each batch or production run a keeping quality 
test shall be made to determine product stability.



Sec. 58.929  Frequency of sampling for quality control.

    (a) Composition. Sampling and testing for composition shall be made 
on batches of product as often as is necessary to control composition. 
On continuous production runs, enough samples shall be taken throughout 
the run to adequately assure composition requirements.
    (b) Other chemical analysis or physical analysis. Such tests shall 
be performed as often as is necessary to assure compliance with 
standards, specifications or contract requirements.
    (c) Weight or volume control. Representative samples of the packaged 
products shall be checked during the filling operation to assure 
compliance with the stated net weight or volume on the container.
    (d) Keeping quality and stability. A minimum of one sample from each 
batch of product or one representative sample per hour from a continuous 
production run shall be taken. For continuous runs, samples shall be 
taken at the start, each hour, and at the end of the run. Samples should 
also be taken after resumption of processing following an interruption 
in continuous operation. Each sample shall be incubated at 90  deg.F to 
100  deg.F for seven days.



Sec. 58.930  Official test methods.

    (a) Chemical. Chemical analysis, except where otherwise prescribed 
herein, shall be made in accordance with the methods described in the 
latest edition of Official Methods of Analysis of the AOAC or by the 
latest edition of Standard Methods for the Examination of Dairy 
Products.

[[Page 168]]

    (b) Microbiological. Microbiological determinations shall be made in 
accordance with the methods described in the latest edition of Standard 
Methods for the Examination of Dairy Products.



Sec. 58.931  General identification.

    Bulk shipping containers shall be legibly marked with the name of 
the product, net weight, name and address of manufacturer, processor or 
distributor, a lot number and coded date of manufacture. Consumer sized 
containers shall meet the applicable regulations of the Food and Drug 
Administration.

                Quality Specifications for Raw Materials



Sec. 58.932  Milk.

    The raw milk shall meet the requirements as outlined in Secs. 58.132 
through 58.138. Unless processed within two hours after being received, 
it shall be cooled to, and held at a temperature of 45  deg.F or lower 
until processed.



Sec. 58.933  Stabilizers.

    Shall be those permitted by the Food and Drug Administration's 
``Standards of Identity'' as optional ingredients for specific products. 
Stabilizers shall be free from extraneous material, be of food grade 
quality and not be in violation of the Federal Food, Drug and Cosmetic 
Act.



Sec. 58.934  Sugars.

    Any sugar used in the manufacture of sweetened condensed or 
sterilized milk products shall be refined, and of food grade quality.



Sec. 58.935  Chocolate and cocoa.

    Such products used as flavor ingredients shall meet the requirements 
of the Food and Drug Administration, ``Definitions and Standards of 
Identity for Cocoa Products.''

 Requirements for Finished Products Bearing USDA Official Identification



Sec. 58.936  Milk.

    To process and package evaporated and condensed milk of ultra-
pasteurized dairy products eligible for official identification with the 
USDA Quality Approved Inspection Shield the raw incoming milk shall meet 
the requirements as outlined in Secs. 58.132 through 58.136. Unless 
processed within two hours after being received, it shall be cooled to, 
and held at a temperature of 45  deg.F or lower until processed.



Sec. 58.937  Physical requirements for evaporated milk.

    (a) Flavor. The product shall possess a sweet, pleasing and 
desirable flavor with not more than a definite cooked flavor. It shall 
be free from scorched, oxidized or other objectionable tastes and odors.
    (b) Body and texture. The product shall be of uniform consistency 
and appearance. It shall be smooth and free from fat separation, lumps, 
clots, gel formation, coarse milk solids precipitate or sedimentation 
and extraneous material.
    (c) Color. The color shall be of a natural white or light cream.
    (d) Degree of burn-on. The interior walls of the container shall not 
show excessive burn-on of product (product fused to more than 75 percent 
of the inner surface of the can).
    (e) Keeping quality. Samples incubated at 90-100  deg.F shall show 
no sensory, chemical or microbiological deterioration after seven days.



Sec. 58.938  Physical requirements and microbiological limits for sweetened condensed milk.

    (a) Flavor. Shall be sweet, clean, and free from rancid, oxidized, 
scorched, fermented, stale or other objectionable tastes and odors.
    (b) Color. Shall be white to light cream.
    (c) Texture. Shall be smooth and uniform, free from lumps or coarse 
graininess. There shall not be sufficient settling of the lactose to 
cause a deposit on the bottom of the container.
    (d) Body. Shall be sufficiently viscous so that the product upon 
being poured at room temperature piles up above the surface of that 
previously poured, but does not retain a definite form.
    (e) Microbiological limits. (1) Coliforms, less than 10 per gram; 
(2) yeasts, less than 5 per gram; (3) molds, less than 5 per gram; (4) 
total plate count, less than 1,000 per gram.

[[Page 169]]

    (f) Keeping quality. Samples incubated at 90-100  deg.F shall show 
no physical evidence of deterioration after seven days.
    (h) Sediment. The amount of sediment retained on a lintine disc 
after a sample composed of 225 grams of product dissolved in 500 ml. of 
140  deg.F water has passed through it, shall not exceed 0.10 mg. as 
indicated by the USDA Sediment Standard for Milk and Milk Products (7 
CFR 58.2726).

[40 FR 47911, Oct. 10, 1975. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, and amended at 
67 FR 48977, July 29, 2002]

Subparts C-V [Reserved]



  Subpart W--United States Department of Agriculture Standard for Ice 
                                  Cream

    Source: 42 FR 56717, Oct. 28, 1977, unless otherwise noted. 
Redesignated at 46 FR 63203, Dec. 31, 1981.



Sec. 58.2825  United States Standard for ice cream.

    (a) Ice cream shall contain at least 1.6 pounds of total solids to 
the gallon, weigh not less than 4.5 pounds to the gallon, and contain 
not less than 20 percent total milk solids, constitued of not less than 
10 percent milkfat. In no case shall the content of milk solids not fat 
be less than 6 percent. Whey shall not, by weight, be more than 25 
percent of the milk solids not fat.
    (b) When one or more of the bulky optional ingredients, as approved 
by the Food and Drug Administration, are used, the weights of milk fat 
and total milk solids (excusive of such fat and solids in any malted 
milk used) are not less than 10 percent and 20 percent, respectively, of 
the remainder obtained by subtracting the weight of such optional 
ingredients, from the weight of the finished ice cream; but in no case 
is the weight of milk fat or total milk solids less than 8 percent and 
16 percent, respectively, of the weight of the finished ice cream. In 
calculating the reduction of milk fat and total milk solids from the use 
of bulky optional ingredients, chocolate and cocoa solids used shall be 
considered the bulky ingredients. In order to make allowance for 
additional sweetening ingredients needed when bulky ingredients are 
used, the weight of chocolate or cocoa solids may be multiplied by 2.5; 
the weight of fruit or nuts used may be multiplied by 1.4; and the 
weight of partially or wholly dried fruits or fruit juices may be 
multiplied by appropriate factors to obtain the original weights before 
drying and this weight multiplied by 1.4 The finished ice cream contains 
not less than 1.6 pounds to the gallon; except that when the optional 
ingredient microcrystalline cellulose is used, the finished ice cream 
contains not less than 1.6 pounds of total solids to the gallon and 
weighs not less than 4.5 pounds to the gallon exclusive, in both cases, 
of the weight of the microcrystalline cellulose.
    (c) Optional characterizing ingredients, optional sweetening 
ingredients, stabilizers, and emulsifiers as approved by the Food and 
Drug Administration may be used.



Sec. 58.2826  General identification.

    Consumer packaged product shall comply with the applicable labeling 
regulations of the Food and Drug Administration.



Sec. 58.2827  Official identification.

    (a) The official symbol to be used to identify product meeting the 
USDA standard for ice cream shall be as follows:
[GRAPHIC] [TIFF OMITTED] TC25SE91.017

    (b) Ice cream manufacturing plants using this symbol shall be USDA 
approved as set forth in subpart B of this regulation, and the ice cream 
bearing the symbol shall be manufactured under continuous resident or 
continuous nonresident USDA inspection service in accordance with 
subpart A of this regulation. The dairy ingredients used in such ice 
cream shall come from USDA approved plants.

[[Page 170]]



PART 59--LIVESTOCK MANDATORY REPORTING--Table of Contents




                      Subpart A--General Provisions

Sec.
59.10  General administrative provisions.
59.20  Recordkeeping.
59.30  Definitions.

                       Subpart B--Cattle Reporting

59.100  Definitions.
59.101  Mandatory daily reporting for live cattle.
59.102  Mandatory weekly reporting for live cattle.
59.103  Mandatory reporting of boxed beef sales.

                       Subpart C--Swine Reporting

59.200  Definitions.
59.201  General reporting provisions.
59.202  Mandatory daily reporting for swine.
59.203  Mandatory weekly reporting for swine.

                        Subpart D--Lamb Reporting

59.300  Definitions.
59.301  Mandatory daily reporting for lambs.
59.302  Mandatory weekly reporting for lambs.
59.303  Mandatory reporting of lamb carcasses and boxed lamb.

                      Subpart E--OMB Control Number

59.400  OMB control number assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 7 U.S.C. 1621 et seq.

    Source: 65 FR 75514, Dec. 1, 2000, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 59.10  General administrative provisions.

    (a) Reporting by packers and importers. A packer or importer shall 
report all information required under this Part on an individual lot 
basis.
    (b) Reporting schedule. Whenever a packer or importer is required to 
report information on transactions of livestock and livestock products 
under this Part by a set time, all covered transactions up to within one 
half hour of the reporting deadline shall be reported. Transactions 
completed during the one half hour prior to the previous reporting time, 
but not reported in the previous report, shall be reported at the next 
scheduled reporting time.
    (c) Regional reporting and aggregation. The Secretary shall make 
information obtained under this Part available to the public only in a 
manner that:
    (1) Ensures that the information is published on a national and a 
regional or statewide basis as the Secretary determines to be 
appropriate;
    (2) Ensures that the identity of a reporting person or the entity 
which they represent is not disclosed; and
    (3) Market information reported to the Secretary by packers and 
importers shall be aggregated in such a manner that the market reports 
issued will not disclose the identity of persons, packers and importers, 
including parties to a contract and packer's and importer's proprietary 
information.
    (d) Adjustments. Prior to the publication of any information 
required under this Part, the Secretary may make reasonable adjustments 
in information reported by packers and importers to reflect price 
aberrations or other unusual or unique occurrences that the Secretary 
determines would distort the published information to the detriment of 
producers, packers, or other market participants.
    (e) Reporting of activities on weekends and holidays. Livestock and 
livestock products committed to a packer, or importer, or purchased, 
sold, or slaughtered by a packer or importer on a weekend day or holiday 
shall be reported to the Secretary in accordance with the provisions of 
this Part and reported by the Secretary on the immediately following 
reporting day. A packer shall not be required to report such actions 
more than once on the immediately following reporting day.
    (f) Reporting methods. Whenever information is required to be 
reported under this Part, it shall be reported by electronic means and 
shall adhere to a standardized format established by the Secretary to 
achieve the objectives of this Part, except in emergencies or in cases 
when an alternative method is agreeable to the entity required to report 
and AMS.



Sec. 59.20  Recordkeeping.

    (a) In General. Each packer or importer required to report 
information

[[Page 171]]

to the Secretary under the Act and this Part shall maintain for 2 years 
and make available to the Secretary the following information on 
request:
    (1) The original contracts, agreements, receipts, and other records 
associated with any transaction relating to the purchase, sale, pricing, 
transportation, delivery, weighing, slaughter, or carcass 
characteristics of all livestock or livestock products; and
    (2) Such records or other information as is necessary or appropriate 
to verify the accuracy of the information required to be reported under 
the Act and this Part.
    (b) Purchases of cattle and swine and sales of boxed beef cuts. A 
record of a purchase of a lot of cattle or swine, or a sale of a unit of 
boxed beef cuts, by a packer shall evidence whether the purchase or sale 
occurred:
    (1) Before 10 a.m. Central Time;
    (2) Between 10 a.m. and 2 p.m. Central Time; or (3) After 2 p.m. 
Central Time.
    (c) Purchases of lambs. A record of a purchase of a lot of lambs by 
a packer shall evidence whether the purchase occurred:
    (1) Before 2 p.m. Central Time; or
    (2) After 2 p.m. Central Time.
    (d) Sales of lamb carcasses and sales of boxed lamb cuts. A record 
of a sale by a packer of lamb carcasses and cuts, or of a sale by an 
importer of lamb cuts shall evidence time and date the sale occurred:
    (1) Before 2 p.m. Central Time; or
    (2) After 2 p.m. Central Time.
    (e) Reporting sales of boxed beef cuts and sales of boxed lamb cuts.
    (1) Beef packers must report all sales of boxed beef items by the 
applicable Institutional Meat Purchase Specifications (IMPS) item number 
or the boxed beef items' cutting and trimming specifications.
    (2) Lamb packers and importers must report all sales of boxed lamb 
items by the applicable Institutional Meat Purchase Specifications 
(IMPS) item number or the boxed lamb items' cutting and trimming 
specifications.



Sec. 59.30  Definitions.

    The following definitions apply to this part.
    Base price. The term ``base price'' means the price paid for 
livestock, delivered at the packing plant, before application of any 
premiums or discounts, expressed in dollars per hundred pounds of hot 
carcass weight.
    Basis level. The term ``basis level'' means the agreed on adjustment 
to a future price to establish the final price paid for livestock.
    Current slaughter week. The term ``current slaughter week'' means 
the period beginning Monday, and ending Sunday, of the week in which a 
reporting day occurs.
    Discount. The term ``discount'' means the adjustment, expressed in 
dollars per one hundred pounds, subtracted from the base price due to 
weight, quality characteristics, yield characteristics, livestock class, 
dark cutting, breed, or dressing percentage.
    Exported. The term ``exported'' means livestock or livestock 
products that are physically shipped to locations outside of the 50 
States.
    F.O.B. The term ``F.O.B.'' means free on board, regardless of the 
mode of transportation, at the point of direct shipment by the seller to 
the buyer (e.g., F.O.B. Plant, F.O.B. Feedlot).
    Imported. The term ``imported'' means livestock that are raised to 
slaughter weight outside of the 50 States or livestock products produced 
outside of the 50 States.
    Institutional meat purchase specifications. Specifications 
describing various meat cuts, meat products, and meat food products 
derived from all livestock species, commonly abbreviated ``IMPS'', and 
intended for use by any meat procuring activity. Copies of the IMPS may 
be obtained from the U.S. Department of Agriculture, Agricultural 
Marketing Service, Livestock and Seed Program located at Room 2603 South 
Building, 1400 Independence Ave, SW., PO Box 96456, Washington, DC 
20090-6456. Phone (202) 720-4486 or Fax (202) 720-1112. Copies may also 
be obtained over the Internet at: www.ams.usda.gov/lsg/stand/st-
pubs.htm.
    Livestock. The term ``livestock'' means cattle, swine, and lambs.
    Lot. (1) When used in reference to livestock, the term ``lot'' means 
a group of one or more livestock that is identified for the purpose of a 
single

[[Page 172]]

transaction between a buyer and a seller;
    (2) When used in reference to lamb carcasses, the term ``lot'' means 
a group of one or more lamb carcasses sharing a similar weight range 
category and comprising a single transaction between a buyer and seller; 
or
    (3) When used in reference to boxed beef and lamb, the term ``lot'' 
means a group of one or more boxes of beef or lamb items sharing cutting 
and trimming specifications and comprising a single transaction between 
a buyer and seller.
    Marketing. The term ``marketing'' means the sale or other 
disposition of livestock, livestock products, or meat or meat food 
products in commerce.
    Negotiated purchase. The term ``negotiated purchase'' means a cash 
or spot market purchase by a packer of livestock from a producer under 
which the base price for the livestock is determined by seller-buyer 
interaction and agreement on a delivery day. The livestock are scheduled 
for delivery to the packer not more than 14 days after the date on which 
the livestock are committed to the packer.
    Negotiated sale. The term ``negotiated sale'' means a cash or spot 
market sale by a producer of livestock to a packer under which the base 
price for the livestock is determined by seller-buyer interaction and 
agreement on a delivery day. The livestock are scheduled for delivery to 
the packer not later than 14 days after the date on which the livestock 
are committed to the packer. When used in reference to sales of boxed 
beef or lamb cuts or lamb carcasses the term ``negotiated sale'' means a 
sale by a packer selling boxed beef or lamb cuts or lamb carcasses to a 
buyer of boxed beef or lamb cuts or lamb carcasses under which the price 
for the boxed beef or lamb cuts or lamb carcasses is determined by 
seller-buyer interaction and agreement on a day.
    Origin. The term ``origin'' means the State where the livestock were 
fed to slaughter weight.
    Premium. The term ``premium'' means the adjustment, expressed in 
dollars per one hundred pounds, added to the base price due to weight, 
quality characteristics, yield characteristics, livestock class, and 
breed.
    Priced. The term ``priced'' means the time when the final price is 
determined either through buyer-seller interaction and agreement or as a 
result of some other price determining method.
    Prior slaughter week. The term ``prior slaughter week'' means the 
Monday through Sunday prior to a reporting day.
    Producer. The term ``producer'' means any person engaged in the 
business of selling livestock to a packer for slaughter (including the 
sale of livestock from a packer to another packer).
    Purchased. The term ``purchased'' means the agreement on a price, or 
the method for calculating a price, determined through buyer-seller 
interaction and agreement.
    Reporting day. The term ``reporting day'' means a day on which a 
packer conducts business regarding livestock committed to the packer, or 
livestock purchased, sold, or slaughtered by the packer; the Secretary 
is required to make such information available to the public; and the 
Department of Agriculture is open to conduct business.
    Secretary. The term ``Secretary'' means the Secretary of Agriculture 
of the United States or any other officer or employee of the Department 
of Agriculture to whom authority has been delegated or may hereafter be 
delegated to act in the Secretary's stead.
    State. The term ``State'' means each of the 50 States.



                       Subpart B--Cattle Reporting



Sec. 59.100  Definitions.

    The following definitions apply to this subpart.
    Boxed beef. The term ``boxed beef'' means those carlot-based 
portions of a beef carcass including fresh primals, subprimals, cuts 
fabricated from subprimals (excluding portion-control cuts such as chops 
and steaks similar to those portion cut items described in the 
Institutional Meat Purchase Specifications (IMPS) for Fresh Beef 
Products Series 100, and thin meats (e.g. inside and outside skirts, 
pectoral meat, cap and wedge meat, and blade meat) not older than 14 
days from date of manufacture; fresh ground beef, beef trimmings, and 
boneless processing

[[Page 173]]

beef not older than 7 days from date of manufacture; and frozen beef 
trimmings and boneless processing beef not older than 60 days from date 
of manufacture.
    Branded. The term ``branded'' means boxed beef cuts produced and 
marketed under a corporate trademark (for example, products that are 
marketed on their quality, yield, or breed characteristics), or boxed 
beef cuts produced and marketed under one of USDA's Meat Grading and 
Certification Branch, Certified Beef programs.
    Carcass characteristics. The term ``carcass characteristics'' means 
the range and average carcass weight in pounds, the quality grade and 
yield grade (if applicable), and the average cattle dressing percentage.
    Carlot-based. The term ``carlot-based'' means any transaction 
between a buyer and a seller destined for two or less delivery stops 
consisting of one or more individual boxed beef items.
    Cattle committed. The term ``cattle committed'' means cattle that 
are scheduled to be delivered to a packer within the 7-day period 
beginning on the date of an agreement to sell the cattle.
    Cattle type. The term ``cattle type'' means the following types of 
cattle purchased for slaughter:
    (1) Fed steers;
    (2) Fed heifers;
    (3) Fed Holsteins and other fed dairy steers and heifers;
    (4) Cows; and
    (5) Bulls.
    Established. The term ``established'', when used in connection with 
prices, means that point in time when the buyer and seller agree upon a 
net price.
    Formula marketing arrangement.
    (1) When used in reference to live cattle, the term ``formula 
marketing arrangement'' means the advance commitment of cattle for 
slaughter by any means other than through a negotiated purchase or a 
forward contract, using a method for calculating price in which the 
price is determined at a future date.
    (2) When used in reference to boxed beef, the term ``formula 
marketing arrangement'' means the advance commitment of boxed beef by 
any means other than through a negotiated purchase or a forward 
contract, using a method for calculating price in which the price is 
determined at a future date.
    Forward contract.
    (1) When used in reference to live cattle, the term ``forward 
contact'' means an agreement for the purchase of cattle, executed in 
advance of slaughter, under which the base price is established by 
reference to prices quoted on the Chicago Mercantile Exchange, or other 
comparable publicly available prices.
    (2) When used in reference to boxed beef, the term ``forward 
contract'' means an agreement for the sale of boxed beef, executed in 
advance of manufacture, under which the base price is established by 
reference to publicly available quoted prices.
    Packer. The term ``packer'' means any person engaged in the business 
of buying cattle in commerce for purposes of slaughter, of manufacturing 
or preparing meats or meat food products from cattle for sale or 
shipment in commerce, or of marketing meats or meat food products from 
cattle in an unmanufactured form acting as a wholesale broker, dealer, 
or distributor in commerce. For any calendar year, the term ``packer'' 
includes only a federally inspected cattle processing plant that 
slaughtered an average of 125,000 head of cattle per year during the 
immediately preceding 5 calendar years. Additionally, in the case of a 
cattle processing plant that did not slaughter cattle during the 
immediately preceding 5 calendar years, it shall be considered a packer 
if the Secretary determines the processing plant should be considered a 
packer under this subpart after considering its capacity.
    Packer-owned cattle. The term ``packer-owned cattle'' means cattle 
that a packer owns for at least 14 days immediately before slaughter.
    Prices for cattle. The term ``prices for cattle'' includes the price 
per hundredweight; the purchase type; the quantity on a live and a 
dressed weight basis; the estimated live weight range; the average live 
weight; the estimated percentage of cattle of a USDA quality grade 
Choice or better; beef carcass classification; any premiums or discounts 
associated with weight, quality

[[Page 174]]

grade, yield grade, or type of purchase; cattle State of origin; 
estimated cattle dressing percentage; and price basis as F.O.B. feedlot 
or delivered at the plant.
    Terms of trade. The term ``terms of trade'' means, with respect to 
the purchase of cattle for slaughter:
    (1) Whether a packer provided any financing agreement or arrangement 
with regard to the cattle;
    (2) Whether the delivery terms specified the location of the 
producer or the location of the packer's plant;
    (3) Whether the producer is able to unilaterally specify the date 
and time during the business day of the packer that the cattle are to be 
delivered for slaughter; and
    (4) The percentage of cattle purchased by a packer as a negotiated 
purchase that are delivered to the plant for slaughter more than 7 days, 
but fewer than 14 days, after the earlier of either the date on which 
the cattle were committed to the packer, the date on which the cattle 
were purchased by the packer, or the date on which the cattle were 
priced by the packer.
    Type of purchase. The term ``type of purchase'' with respect to 
cattle, means a negotiated purchase, a formula market arrangement, and a 
forward contract.
    Type of sale. The term ``type of sale'' with respect to boxed beef, 
means a negotiated sale, a formula market arrangement, and a forward 
contract.



Sec. 59.101  Mandatory daily reporting for live cattle.

    (a) In General. The corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary at least two times each reporting day not later than 10:00 
a.m. Central Time and not later than 2:00 p.m. Central Time the 
following information for each cattle type, inclusive since the last 
reporting, categorized to clearly delineate domestic from imported 
market purchases as described in Sec. 59.10(b).
    (1) The prices for cattle (per hundredweight) established on that 
day, categorized by:
    (i) The type of purchase;
    (ii) The quantity of cattle purchased on a live weight basis;
    (iii) The quantity of cattle purchased on a dressed weight basis;
    (iv) A range and average of estimated live weights of cattle 
purchased;
    (v) An estimate of the percentage of the cattle purchased that were 
of a quality grade of Choice or better; and
    (vi) Any premiums or discounts associated with weight, quality 
grade, or yield grade expressed in dollars per hundredweight on a 
dressed basis.
    (2) The quantity of cattle delivered to the packer (quoted in 
numbers of head) on that day, categorized by:
    (i) The type of purchase;
    (ii) The quantity of cattle delivered on a live weight basis; and
    (iii) The quantity of cattle delivered on a dressed weight basis.
    (3) The quantity of cattle committed to the packer (quoted in 
numbers of head) as of that day, categorized by:
    (i) The type of purchase;
    (ii) The quantity of cattle committed on a live weight basis; and
    (iii) The quantity of cattle committed on a dressed weight basis.
    (4) The terms of trade regarding the cattle, as applicable.
    (b) Publication. The Secretary shall make the information available 
to the public not less frequently than three times each reporting day.



Sec. 59.102  Mandatory weekly reporting for live cattle.

    (a) In General. The corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary on the first reporting day of each week, not later than 9:00 
a.m. Central Time, the following information applicable to the prior 
slaughter week, categorized to clearly delineate domestic from imported 
market purchases:
    (1) The quantity of cattle purchased through forward contracts that 
were slaughtered;
    (2) The quantity of cattle delivered under a formula marketing 
arrangement that were slaughtered;
    (3) The quantity and carcass characteristics of packer-owned cattle 
that were slaughtered;
    (4) The quantity, basis level, and delivery month for all cattle 
purchased through forward contracts;

[[Page 175]]

    (5) The range and average of intended premiums and discounts 
(including those associated with weight, quality grade, yield grade, or 
type of cattle) that are expected to be in effect for the current 
slaughter week; and
    (6) The following information for cattle purchased through a formula 
marketing arrangement and slaughtered during the prior slaughter week:
    (i) The quantity (quoted in both numbers of head and pounds) of 
cattle;
    (ii) The weighted average price paid for a carcass, including 
applicable premiums and discounts;
    (iii) The range of premiums and discounts paid;
    (iv) The weighted average of premiums and discounts paid;
    (v) The range of prices paid; and
    (vi) The terms of trade regarding the cattle, as applicable.
    (b) Publication. The Secretary shall make available to the public 
the information obtained under paragraph (a) of this section on the 
first reporting day of the current slaughter week by 10:00 a.m. Central 
Time.



Sec. 59.103  Mandatory reporting of boxed beef sales.

    (a) Daily reporting. The corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary at least twice each reporting day (once by 10 a.m. Central 
Time, and once by 2 p.m. Central Time) the following information on 
total boxed beef domestic and export sales established on that day 
inclusive since the last reporting as described in Sec. 59.10(b):
    (1) The price for each lot of each boxed beef sale, quoted in 
dollars per hundredweight on a F.O.B. plant basis;
    (2) The quantity for each lot of each sale, quoted by number of 
pounds sold; and
    (3) The information regarding the characteristics of each sale is as 
follows:
    (i) The type of sale;
    (ii) The branded product characteristics, if applicable;
    (iii) The grade for steer and heifer beef (e.g., USDA Prime, USDA 
Choice or better, USDA Choice, USDA Select, ungraded no-roll product);
    (iv) The grade for cow beef or packer yield and/or quality sort for 
cow beef (e.g., Breakers, Boners, White Cow);
    (v) The cut of beef, referencing the most recent version of the 
Institutional Meat Purchase Specifications (IMPS), when applicable;
    (vi) The trim specification;
    (vii) The weight range of the cut;
    (viii) The product delivery period; and
    (ix) The beef type (steer/heifer, dairy steer/heifer, or cow).
    (b) Publication. The Secretary shall make available to the public 
the information obtained under paragraph (a) of this section not less 
frequently than twice each reporting day.



                       Subpart C--Swine Reporting



Sec. 59.200  Definitions.

    The following definitions apply to this subpart.
    Affiliate. The term ``affiliate'', with respect to a packer, means:
    (1) A person that directly or indirectly owns, controls, or holds 
with power to vote, 5 percent or more of the outstanding voting 
securities of the packer;
    (2) A person 5 percent or more of whose outstanding voting 
securities are directly or indirectly owned, controlled, or held with 
power to vote, by the packer; and
    (3) A person that directly or indirectly controls, or is controlled 
by or under common control with, the packer.
    Applicable reporting period. The term ``applicable reporting 
period'' means the period of time prescribed by the prior day report, 
the morning report, and the afternoon report, as provided in 
Sec. 59.202.
    Average carcass weight. The term ``average carcass weight'' means 
the weight obtained by dividing the total carcass weight of the swine 
slaughtered at the packing plant during the applicable reporting period 
by the number of these same swine.
    Average lean percentage. The term ``average lean percentage'' means 
the value equal to the average percentage of the carcass weight 
comprised of lean meat for the swine slaughtered during

[[Page 176]]

the applicable reporting period. Whenever the packer changes the manner 
in which the average lean percentage is calculated, the packer shall 
make available to the Secretary the underlying data, applicable 
methodology and formulae, and supporting materials used to determine the 
average lean percentage, which the Secretary may convert either to the 
carcass measurements or lean percentage of the swine of the individual 
packer to correlate to a common percent lean measurement.
    Average net price. The term ``average net price'' means the quotient 
(stated per hundred pounds of carcass weight of swine) obtained by 
dividing the total amount paid for the swine slaughtered at a packing 
plant during the applicable reporting period (including all premiums and 
less all discounts) by the total carcass weight of the swine (in hundred 
pound increments).
    Average sort loss. The term ``average sort loss'' means the average 
discount (in dollars per hundred pounds carcass weight) for swine 
slaughtered during the applicable reporting period, resulting from the 
fact that the swine did not fall within the individual packer's 
established carcass weight range or lot variation range.
    Backfat. The term ``backfat'' means the fat thickness (in inches) 
measured between the third and fourth rib from the last rib, 7 
centimeters from the carcass split (or adjusted from the individual 
packer's measurement to that reference point using an adjustment made by 
the Secretary) of the swine slaughtered during the applicable reporting 
period.
    Barrow. The term ``barrow'' means a neutered male swine, with the 
neutering performed before the swine reached sexual maturity.
    Base market hog. The term ``base market hog'' means a hog for which 
no discounts are subtracted from and no premiums are added to the base 
price.
    Base price. The term ``base price'' means the price from which no 
discounts are subtracted and no premiums are added.
    Boars. The term ``boar'' means a sexually-intact male swine.
    Bred female swine. The term ``bred female swine'' means any female 
swine, whether a sow or gilt, that has been mated or inseminated, or has 
been confirmed, to be pregnant.
    Formula price. The term ``formula price'' means a price determined 
by a mathematical formula under which the price established for a 
specified market serves as the basis for the formula.
    Gilt. The term ``gilt'' means a young female swine that has not 
produced a litter.
    Highest net price. The term ``highest net price'' means the highest 
net price paid for a single lot or group of swine slaughtered at a 
packing plant during the applicable reporting period per hundred pounds 
of carcass weight of swine.
    Hog Class. The term ``hog class'' means, as applicable, barrows or 
gilts; sows; or boars or stags.
    Loin depth. The term ``loin depth'' means the muscle depth (in 
inches) measured between the third and fourth ribs from the last rib, 7 
centimeters from the carcass split (or adjusted from the individual 
packer's measurement to that reference point using an adjustment made by 
the Secretary) of the swine slaughtered during the applicable reporting 
period.
    Lowest net price. The term ``lowest net price'' means the lowest net 
price paid for a single lot or group of swine slaughtered at a packing 
plant during the applicable reporting period per hundred pounds of 
carcass weight of swine.
    Net price. The term ``net price'' means the total amount paid by a 
packer to a producer (including all premiums, less all discounts) per 
hundred pounds of carcass weight of swine delivered at the plant. The 
total amount paid shall include any sum deducted from the price (per 
hundredweight) paid to a producer that reflects the repayment of a 
balance owed by the producer to the packer or the accumulation of a 
balance to later be repaid by the packer to the producer. The total 
amount paid shall exclude any sum earlier paid to a producer that must 
be repaid to the packer.
    Noncarcass merit premium. The term ``noncarcass merit premium'' 
means an increase in the base price of the swine offered by an 
individual packer or packing plant, based on any factor other than the 
characteristics of the

[[Page 177]]

carcass, if the actual amount of the premium is known before the sale 
and delivery of the swine.
    Other market formula purchase. The term ``other market formula 
purchase'' means a purchase of swine by a packer in which the pricing 
mechanism is a formula price based on any market other than the market 
for swine, pork, or a pork product. The term ``other market formula 
purchase'' includes a formula purchase in a case which the price formula 
is based on 1 or more futures or options contracts.
    Other purchase arrangement. The term ``other purchase arrangement'' 
means a purchase of swine by a packer that is not a negotiated purchase, 
swine or pork market formula purchase, or other market formula purchase; 
and does not involve packer-owned swine.
    Packer. The term ``packer'' means any person engaged in the business 
of buying swine in commerce for purposes of slaughter, of manufacturing 
or preparing meats or meat food products from swine for sale or shipment 
in commerce, or of marketing meats or meat food products from swine in 
an unmanufactured form acting as a wholesale broker, dealer, or 
distributor in commerce. For any calendar year, the term ``packer'' 
includes only a federally inspected swine processing plant that 
slaughtered an average of 100,000 head of swine per year during the 
immediately preceding 5 calendar years. Additionally, in the case of a 
swine processing plant that did not slaughter swine during the 
immediately preceding 5 calendar years, it shall be considered a packer 
if the Secretary determines the processing plant should be considered a 
packer under this subpart after considering its capacity.
    Packer-owned swine. The term ``packer-owned swine'' means swine that 
a packer (including a subsidiary or affiliate of the packer) owns for at 
least 14 days immediately before slaughter.
    Packer-sold swine. The term ``packer-sold swine'' means the swine 
that are owned by a packer (including a subsidiary or affiliate of the 
packer) for more than 14 days immediately before sale for slaughter; and 
sold for slaughter to another packer.
    Pork. The term ``pork'' means the meat of a porcine animal.
    Pork product. The term ``pork product'' means a product or byproduct 
produced or processed in whole or in part from pork.
    Purchase data. The term ``purchase data'' means all of the 
applicable data, including base price and weight (if purchased live), 
for all swine purchased during the applicable reporting period, 
regardless of the expected delivery date of the swine, reported by:
    (1) Hog class;
    (2) Type of purchase; and
    (3) Packer-owned swine.
    Slaughter data. The term ``slaughter data'' means all of the 
applicable data for all swine slaughtered by a packer during the 
applicable reporting period, regardless of whether the price of the 
swine was negotiated or otherwise determined, reported by:
    (1) Hog class;
    (2) Type of purchase; and
    (3) Packer-owned swine.
    Sow. The term ``sow'' means an adult female swine that has produced 
1 or more litters.
    Stag. The term ``stag'' means a male swine that was neutered after 
reaching sexual maturity.
    Swine. The term ``swine'' means a porcine animal raised to be a 
feeder pig, raised for seedstock, or raised for slaughter.
    Swine committed. The term ``swine committed'' means swine scheduled 
and delivered to a packer within the 14-day period beginning on the date 
of an agreement to sell the swine.
    Swine or pork market formula purchase. The term ``swine or pork 
market formula purchase'' means a purchase of swine by a packer in which 
the pricing mechanism is a formula price based on a market for swine, 
pork, or a pork product, other than a future or option for swine, pork, 
or a pork product.
    Type of purchase. The term ``type of purchase'', with respect to 
swine, means:
    (1) A negotiated purchase;
    (2) Other market formula purchase;
    (3) A swine or pork market formula purchase; and
    (4) Other purchase arrangement.



Sec. 59.201  General reporting provisions.

    (a) Packer-owned swine. Information required under this section for 
packer-

[[Page 178]]

owned swine shall include quantity and carcass characteristics, but not 
price.
    (b) Type of Purchase. If information regarding the type of purchase 
is required under this section, the information shall be reported 
according to the numbers and percentages of each type of purchase 
comprising:
    (1) Packer-sold swine; and
    (2) All other swine.



Sec. 59.202  Mandatory daily reporting for swine.

    (a) Prior day report. The corporate officers or officially 
designated representatives of each packer shall report to the Secretary 
for each business day of the packer not later than 7:00 a.m. Central 
Time on each reporting day information regarding all swine purchased, 
priced, or slaughtered during the prior business day of the packer as 
specified in Sec. 59.10(b):
    (1) All purchase data, reported by lot, including:
    (i) The total number of swine purchased;
    (ii) The total number of swine scheduled for delivery to a packer 
for slaughter;
    (iii) The base price and weight for all swine purchased on a live 
weight basis; and
    (iv) The base price and premiums and discounts paid for carcass 
characteristics for all swine purchased on a carcass basis for which a 
price has been established. For swine that were not priced, this 
information shall be reported on the next prior day report after the 
price is established.
    (2) The following slaughter data for the total number of swine 
slaughtered:
    (i) The average net price;
    (ii) The lowest net price;
    (iii) The highest net price;
    (iv) The average carcass weight;
    (v) The average sort loss;
    (vi) The average backfat;
    (vii) The average loin depth;
    (viii) The average lean percentage; and
    (ix) Total quantity slaughtered.
    (3) Packer purchase commitments, which shall be equal to the number 
of swine scheduled for delivery to a packer for slaughter for each of 
the next 14 calendar days.
    (4) Publication. The Secretary shall publish the information 
obtained under this paragraph in a prior day report not later than 8:00 
a.m. Central Time on the reporting day on which the information is 
received from the packer.
    (b) Morning report. The corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary not later than 10:00 a.m. Central Time each reporting day as 
described in Sec. 59.10(b):
    (1) The packer's best estimate of the total number of swine and 
packer-owned swine expected to be purchased throughout the reporting day 
through each type of purchase;
    (2) The total number of swine and packer-owned swine purchased up to 
that time of the reporting day through each type of purchase;
    (3) All purchase data for base market hogs purchased up to that time 
of the reporting day through negotiated purchases; and
    (4) All purchase data for base market hogs purchased through each 
type of purchase other than negotiated purchase up to that time of the 
reporting day, unless such information is unavailable due to pricing 
that is determined on a delayed basis. The packer shall report 
information on such purchases on the first reporting day or scheduled 
reporting time on a reporting day after the price has been determined.
    (5) Publication. The Secretary shall publish the information 
obtained under this paragraph in the morning report as soon as 
practicable, but not later than 11 a.m. Central Time, on each reporting 
day.
    (c) Afternoon report. The corporate officers or officially 
designated representatives of each packer processing plant shall report 
to the Secretary not later than 2:00 p.m. Central Time each reporting 
day as described in Sec. 59.10(b):
    (1) The packer's best estimate of the total number of swine and 
packer-owned swine expected to be purchased throughout the reporting day 
through each type of purchase;
    (2) The total number of swine and packer-owned swine purchased up to 
that time of the reporting day through each type of purchase;

[[Page 179]]

    (3) The base price paid for all base market hogs purchased up to 
that time of the reporting day through negotiated purchases; and
    (4) The base price paid for all base market hogs purchased through 
each type of purchase other than negotiated purchase up to that time of 
the reporting day, unless such information is unavailable due to pricing 
that is determined on a delayed basis. The packer shall report 
information on such purchases on the first reporting day or scheduled 
reporting time on a reporting day after the price has been determined.
    (5) Publication. The Secretary shall publish the information 
obtained under this paragraph in the afternoon report as soon as 
practicable, but not later than 3:00 p.m. Central Time, on each 
reporting day.



Sec. 59.203  Mandatory weekly reporting for swine.

    (a) Weekly noncarcass merit premium report. Not later than 4:00 p.m. 
Central Time in accordance with Sec. 59.10(b) on the first reporting day 
of each week, the corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary a noncarcass merit premium report that lists:
    (1) Each category of standard noncarcass merit premiums used by the 
packer in the prior slaughter week; and
    (2) The dollar value (in dollars per hundred pounds of carcass 
weight) paid to producers by the packer, by category.
    (b) Premium list. A packer shall maintain and make available to a 
producer, on request, a current listing of the dollar values (per 
hundred pounds of carcass weight) of each noncarcass merit premium used 
by the packer during the current or the prior slaughter week.
    (c) Publication. The Secretary shall publish the information 
obtained under this subsection as soon as practicable, but not later 
than 5:00 p.m. Central Time, on the first reporting day of each week.



                        Subpart D--Lamb Reporting



Sec. 59.300  Definitions.

    The following definitions apply to this subpart.
    Boxed lamb. The term ``boxed lamb'' means those carlot-based 
portions of a lamb carcass including fresh primals, subprimals, cuts 
fabricated from subprimals (excluding portion-control cuts such as chops 
and steaks similar to those portion cut items described in the 
Institutional Meat Purchase Specifications (IMPS) for Fresh Lamb and 
Mutton Series 200, and thin meats (e.g. inside and outside skirts, 
pectoral meat, cap and wedge meat, and blade meat) not older than 14 
days from date of manufacture; fresh ground lamb, lamb trimmings, and 
boneless processing lamb not older than 7 days from date of manufacture; 
frozen primals, subprimals, cuts fabricated from subprimals, and thin 
meats not older than 180 days from date of manufacture; and frozen 
ground lamb, lamb trimmings, and boneless processing lamb not older than 
90 days from date of manufacture.
    Branded. The term ``branded'' means boxed lamb cuts produced and 
marketed under a corporate trademark (for example, products that are 
marketed on their quality, yield, or breed characteristics), or boxed 
lamb cuts produced and marketed under one of USDA's Meat Grading and 
Certification Branch, Certified programs.
    Carcass characteristics. The term ``carcass characteristics'' means 
the range and average carcass weight in pounds, the quality grade and 
yield grade (if applicable), and the lamb average dressing percentage.
    Carlot-based. The term ``carlot-based'' means any transaction 
between a buyer and a seller destined for three or less delivery stops 
consisting of one or more individual boxed lamb items or any combination 
of carcass weights.
    Established. The term ``established'', when used in connection with 
prices, means that point in time when the buyer and seller agree upon a 
net price.
    Formula marketing arrangement.
    (1) When used in reference to live lambs, the term ``formula 
marketing

[[Page 180]]

arrangement'' means the advance commitment of lambs for slaughter by any 
means other than through a negotiated purchase or a forward contract, 
using a method for calculating price in which the price is determined at 
a future date.
    (2) When used in reference to boxed lamb, the term ``formula 
marketing arrangement'' means the advance commitment of boxed lamb by 
any means other than through a negotiated purchase or a forward 
contract, using a method for calculating price in which the price is 
determined at a future date.
    Forward contract.
    (1) When used in reference to live lambs, the term ``forward 
contact'' means an agreement for the purchase of lambs, executed in 
advance of slaughter, under which the base price is established by 
reference to publicly available prices.
    (2) When used in reference to boxed lamb, the term ``forward 
contract'' means an agreement for the sale of boxed lamb, executed in 
advance of manufacture, under which the base price is established by 
reference to publicly available quoted prices.
    Importer. The term ``importer'' means any person engaged in the 
business of importing lamb meat products who takes ownership of such 
lamb meat products with the intent to sell or ship in U.S. commerce. For 
any calendar year, the term includes only those that imported an average 
of 5,000 metric tons of lamb meat products per year during the 
immediately preceding 5 calendar years. Additionally, the term includes 
those that did not import an average of 5,000 metric tons of lamb meat 
products during the immediately preceding 5 calendar years, if the 
Secretary determines that the person should be considered an importer 
based on their volume of lamb imports.
    Lambs committed. The term ``lambs committed'' means lambs that are 
scheduled to be delivered to a packer within the 7-day period beginning 
on the date of an agreement to sell the lambs.
    Packer. The term ``packer'' means any person engaged in the business 
of buying lambs in commerce for purposes of slaughter, of manufacturing 
or preparing meat products from lambs for sale or shipment in commerce, 
or of marketing meats or meat products from lambs in an unmanufactured 
form acting as a wholesale broker, dealer, or distributor in commerce. 
For any calendar year, the term includes only a federally inspected lamb 
processing plant which slaughtered or processed the equivalent of an 
average of 75,000 head of lambs per year during the immediately 
preceding 5 calendar years. Additionally, the term includes a lamb 
processing plant that did not slaughter or process an average of 75,000 
lambs during the immediately preceding 5 calendar years if the Secretary 
determines that the processing plant should be considered a packer after 
considering its capacity.
    Packer-owned lambs. The term ``packer-owned lambs'' means lambs that 
a packer owns for at least 14 days immediately before slaughter.
    Terms of trade. The term ``terms of trade'' includes, with respect 
to the purchase of lambs for slaughter:
    (1) Whether a packer provided any financing agreement or arrangement 
with regard to the lambs;
    (2) Whether the delivery terms specified the location of the 
producer or the location of the packer's plant;
    (3) Whether the producer is able to unilaterally specify the date 
that the lambs are to be delivered for slaughter; and
    (4) The percentage of lambs purchased by a packer as a negotiated 
purchase that are delivered to the plant for slaughter more than 7 days, 
but less than 14 days, after the earlier of either:
    (i) The date on which the lambs were committed to the packer;
    (ii) The date on which the lambs were purchased by the packer; or
    (iii) The date on which the lambs were priced by the packer.
    Type of purchase. The term ``type of purchase'' means a negotiated 
purchase, a formula market arrangement, and a forward contract.
    Type of sale. The term ``type of sale'' with respect to boxed lamb, 
means a negotiated sale, a formula market arrangement, and a forward 
contract.

[[Page 181]]



Sec. 59.301  Mandatory daily reporting for lambs.

    (a) In general. The corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary at least once each reporting day not later than 2:00 p.m. 
Central Time the following information for lamb, categorized to clearly 
delineate domestic from imported market purchases as described in 
Sec. 59.10(b):
    (1) The prices for lambs (per hundredweight) established on that day 
as F.O.B. feedlot or delivered at the plant, categorized by:
    (i) The type of purchase;
    (ii) The class of lamb;
    (iii) The quantity of lambs purchased on a live weight basis;
    (iv) The quantity of lambs purchased on a dressed weight basis;
    (v) A range and average of estimated live weights of lambs 
purchased;
    (vi) An estimate of the percentage of the lambs purchased that were 
of a quality grade of Choice or better;
    (vii) Any premiums or discounts associated with weight, quality 
grade, yield grade, or any type of purchase;
    (viii) Lamb State of origin;
    (ix) The pelt type; and
    (x) The estimated lamb dressing percentage.
    (2) The quantity of lambs delivered to the packer (quoted in numbers 
of head) on that day, categorized by:
    (i) The type of purchase;
    (ii) The quantity of lambs delivered on a live weight basis; and
    (iii) The quantity of lambs delivered on a dressed weight basis.
    (3) The quantity of lambs committed to the packer (quoted in numbers 
of head) as of that day, categorized by:
    (i) The type of purchase;
    (ii) The quantity of lambs committed on a live weight basis; and
    (iii) The quantity of lambs committed on a dressed weight basis.
    (4) The terms of trade regarding the lambs, as applicable.
    (b) Publication. The Secretary shall make the information available 
to the public not less than once each reporting day.



Sec. 59.302  Mandatory weekly reporting for lambs.

    (a) In general. The corporate officers or officially designated 
representatives of each packer processing plant shall report to the 
Secretary the following information applicable to the prior slaughter 
week contained in paragraphs (a)(1) through (a)(4) and (a)(6) of this 
section not later than 9 a.m. Central Time on the second reporting day 
of the current slaughter week, and the following information applicable 
to the prior slaughter week contained in paragraph (a)(5) of this 
section not later than 9:00 a.m. Central Time on the first reporting day 
of the current slaughter week categorized to clearly delineate domestic 
from imported market purchases:
    (1) The quantity of lambs purchased through forward contracts that 
were slaughtered;
    (2) The quantity of lambs delivered under a formula marketing 
arrangement that were slaughtered;
    (3) The quantity and carcass characteristics of packer-owned lambs 
that were slaughtered;
    (4) The quantity, basis level, and delivery month for all lambs 
purchased through forward contracts;
    (5) The following information applicable to the current slaughter 
week. The range and average of intended premiums and discounts 
(including those associated with weight, quality grade, yield grade, or 
type of lamb) that are expected to be in effect for the current 
slaughter week; and
    (6) The following information for lambs purchased through a formula 
marketing arrangement and slaughtered during the prior slaughter week, 
categorized to clearly delineate domestic from imported market 
purchases:
    (i) The quantity (quoted in both numbers of head and pounds) of 
lambs;
    (ii) The weighted average price paid for a carcass, including 
applicable premiums and discounts;
    (iii) The range of premiums and discounts paid;
    (iv) The weighted average of premiums and discounts paid;
    (v) The range of prices paid; and
    (vi) The terms of trade regarding the lambs, as applicable.

[[Page 182]]

    (b) Publication. The Secretary shall make available to the public 
the information obtained under paragraphs (a)(1) through (a)(4) and 
(a)(6) of this section on the second reporting day of the current 
slaughter week and information obtained in paragraph (a)(5) of this 
section on the first reporting day of the current slaughter week.



Sec. 59.303  Mandatory reporting of lamb carcasses and boxed lamb.

    (a) Daily reporting of lamb carcass transactions. The corporate 
officers or officially designated representatives of each packer shall 
report to the Secretary each reporting day the following information on 
total carlot-based lamb carcass transactions not later than 3:00 p.m. 
Central Time in accordance with Sec. 59.10(b):
    (1) The price for each lot of each lamb carcass transaction, quoted 
in dollars per hundredweight on an F.O.B. plant basis;
    (2) The quantity for each lot of each transaction, quoted by number 
of carcasses sold; and
    (3) The following information regarding the characteristics of each 
transaction:
    (i) The type of sale;
    (ii) The USDA quality grade of lamb;
    (iii) The USDA yield grade;
    (iv) The estimated weight range of the carcasses; and
    (v) The product delivery period.
    (b) Daily reporting of domestic boxed lamb sales. The corporate 
officers or officially designated representatives of each packer shall 
report to the Secretary each reporting day the following information on 
total domestic boxed lamb cut sales not later than 2:30 p.m. Central 
Time as described in Sec. 59.10(b):
    (1) The price for each lot of each boxed lamb cut sale, quoted in 
dollars per hundredweight on a F.O.B. plant basis;
    (2) The quantity for each lot of each sale, quoted by product weight 
sold; and
    (3) The following information regarding the characteristics of each 
transaction:
    (i) The type of sale;
    (ii) The branded product characteristics, if applicable;
    (iii) The U.S.D.A. quality grade of lamb;
    (iv) The cut of lamb, referencing the most recent version of the 
Institutional Meat Purchase Specifications (IMPS), when applicable;
    (v) U.S.D.A. yield grade, if applicable;
    (vi) The product state of refrigeration;
    (vii) The weight range of the cut; and
    (viii) The product delivery period.
    (c) Weekly reporting of imported boxed lamb sales. The corporate 
officers or officially designated representatives of each lamb importer 
shall report to the Secretary on the first reporting day of each week 
the following information applicable to the prior week for imported 
boxed lamb cut sales not later than 10 a.m. Central Time:
    (1) The price for each lot of a boxed lamb cut sale, quoted in 
dollars per hundredweight on a F.O.B. plant basis;
    (2) The quantity for each lot of a transaction, quoted by product 
weight sold; and
    (3) The following information regarding the characteristics of each 
transaction:
    (i) The type of sale;
    (ii) The branded product characteristics, if applicable;
    (iii) The cut of lamb, referencing the most recent version of the 
Institutional Meat Purchase Specifications (IMPS), when applicable;
    (iv) The product state of refrigeration;
    (v) The weight range of the cut; and
    (vi) The product delivery period.
    (d) Publication. The Secretary shall make available to the public 
the information required to be reported in paragraphs (a) and (b) of 
this section not less frequently than once each reporting day and the 
information required to be reported in paragraph (c) of this section on 
the first reporting day of the current slaughter week.



                      Subpart E--OMB Control Number



Sec. 59.400  OMB control number assigned pursuant to the Paperwork Reduction Act.

    The information collection and recordkeeping requirements of this 
part have been approved by the Office of Management and Budget (OMB) 
under

[[Page 183]]

the provisions of 44 U.S.C. Chapter 35 and have been assigned OMB 
Control Number 0581-0186.

                           PART 60 [RESERVED]



PART 61--COTTONSEED SOLD OR OFFERED FOR SALE FOR CRUSHING PURPOSES (INSPECTION, SAMPLING AND CERTIFICATION)--Table of Contents




                         Subpart A--Regulations

                               Definitions

Sec.
61.1  Words in singular form.
61.2  Terms defined.
61.2a  Designation of official certificates, memoranda, marks, other 
          identifications, and devices for purpose of the Agricultural 
          Marketing Act.

                       Administrative and General

61.3  Director.
61.4  Supervisor of cottonseed inspection.
61.5  Regulations to govern.
61.6  Denial of further services.
61.7  Misrepresentation.
61.8  Application for review.
61.9  Cost of review.

                      Licensed Cottonseed Samplers

61.25  Application for license as sampler; form.
61.27  Period of license; renewals.
61.30  Examination of sampler.
61.31  License must be posted.
61.32  No discrimination in sampling.
61.33  Equipment of sampler; contents of certificate.
61.34  Drawing and preparation of sample.
61.36  Cause for suspension or revocation.
61.37  License may be suspended.
61.38  Suspended license to be returned to Division.
61.39  Duplicate license.
61.40  Reports of licensed samplers.
61.41  Unlicensed persons must not represent themselves as licensed 
          samplers.
61.42  Information on sampling to be kept confidential.

 Subpart B--Standards for Grades of Cottonseed Sold or Offered for Sale 
             for Crushing Purposes Within the United States

61.101  Determination of grade.
61.102  Determination of quantity index.
61.103  Determination of quality index.
61.104  Sampling and certification of samples and grades.

    Source: 22 FR 10948, Dec. 28, 1957, unless otherwise noted.



                         Subpart A--Regulations

    Authority: Sec. 205, 60 Stat. 1090, as amended, (7 U.S.C. 1624).

                               Definitions



Sec. 61.1  Words in singular form.

    Words used in the regulations in this subpart in the singular form 
shall be deemed to import the plural, and vice-versa, as the case may 
demand.



Sec. 61.2  Terms defined.

    As used throughout the regulations in this part, unless the context 
otherwise requires, the following terms shall be construed, respectively 
to mean:
    (a) The act. The applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087; 7 U.S.C. 1621 et seq.) or any other act of 
Congress conferring like authority.
    (b) Regulations. Regulations mean the provisions in this subpart.
    (c) Department. The United States Department of Agriculture.
    (d) Secretary. The Secretary of Agriculture of the United States, or 
any officer or employee of the Department to whom authority has 
heretofore been delegated, or to whom authority may hereafter be 
delegated, to act in his stead.
    (e) Service. The Agricultural Marketing Service of the United States 
Department of Agriculture.
    (f) Administrator. The Administrator of the Agricultural Marketing 
Service, or any officer or employee of the Service, to whom authority 
has heretofore been delegated, or to whom authority may hereafter be 
delegated, to act in his stead.
    (g) Division. The Cotton Division of the Agricultural Marketing 
Service.
    (h) Director. The Director of the Cotton Division, or any officer or 
employee of the Division to whom authority has heretofore been 
delegated, or to whom authority may hereafter be delegated, to act in 
his stead.
    (i) Custodian. Person who has possession or control of cottonseed or 
of samples of cottonseed as agent, controller, broker, or factor, as the 
case may be.

[[Page 184]]

    (j) Owner. Person who through financial interest owns or controls, 
or has the disposition of either cottonseed or of samples of cottonseed.
    (k) Official cottonseed standards. The official standards of the 
United States for the grading, sampling, and analyzing of cottonseed 
sold or offered for sale for crushing purposes.
    (l) Supervisor of cottonseed inspection. An officer of the Division 
designated as such by the Director.
    (m) License. A license issued under the act by the Secretary.
    (n) Licensed cottonseed chemist. A person licensed under the act by 
the Secretary to make quantitative and qualitative chemical analyses of 
samples of cottonseed according to the methods prescribed by the Science 
Division Director of the Agricultural Marketing Service and to 
certificate the grade according to the official cottonseed standards of 
the United States.
    (o) Licensed cottonseed sampler. A person licensed by the Secretary 
to draw and to certificate the authenticity of samples of cottonseed in 
accordance with the regulations in this subpart.
    (p) Dispute. A disagreement as to the true grade of a sample of 
cottonseed analyzed and graded by a licensed chemist.
    (q) Party. A party to a dispute.
    (r) Commercial laboratory. A chemical laboratory operated by an 
individual, firm, or corporation in which one or more persons are 
engaged in the chemical analysis of materials for the public.
    (s) Cottonseed. The word ``cottonseed'' as used in this part means 
the seed, after having been put through the usual and customary process 
known as cotton ginning, of any cotton produced within the continental 
United States.
    (t) Lot. That parcel or quantity of cottonseed offered for sale or 
tendered for delivery or delivered on a sale or contract of sale, in 
freight cars, trucks, wagons, or otherwise in the quantities and within 
the time limits prescribed from time to time by the Director for the 
drawing and preparation of official samples by licensed cottonseed 
samplers.
    (u) Official sample. A specimen of cottonseed drawn and prepared by 
a licensed cottonseed sampler and certified by him as representative of 
a certain identified lot, in accordance with the regulations in this 
subpart.

[22 FR 10948, Dec. 28, 1957, as amended at 58 FR 42413, Aug. 9, 1993]



Sec. 61.2a  Designation of official certificates, memoranda, marks, other identifications, and devices for purpose of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks, or other identifications, and devices for making such marks or 
identifications, issued or authorized under section 203 of said act, and 
certain misrepresentations concerning the inspection or grading of 
agricultural products under said section. For the purposes of said 
subsection and the provisions in this part, the terms listed below shall 
have the respective meanings specified:
    (a) Official certificate means any form of certification, either 
written or printed, used under this part to certify with respect to the 
inspection, sampling, class, grade, quality, quantity, or condition of 
products (including the compliance of products with applicable 
specifications).
    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of grading, inspecting, or sampling, 
pursuant to this part, any processing or plant-operation report made by 
an authorized person in connection with grading, inspecting, or sampling 
under this part, and any report made by an authorized person of services 
performed pursuant to this part.
    (c) Official mark means the grade mark, inspection mark, and any 
other mark, approved by the Administrator and authorized to be affixed 
to any product, or affixed to or printed on the packaging material of 
any product, stating that the product was graded or inspected or both, 
or indicating the appropriate U.S. grade or condition of the product, or 
for the purpose or maintaining the identity of products graded or 
inspected or both under this part.

[[Page 185]]

    (d) Official identification means any United States (U.S.) standard 
designation of class, grade, quality, quantity, or condition specified 
in this part, or any symbol, stamp, label, or seal indicating that the 
product has been officially graded or inspected and/or indicating the 
class, grade, quality, quantity, or condition of the product, approved 
by the Administrator and authorized to be affixed to any product, or 
affixed to or printed on the packaging material of any product.
    (e) Official device means a stamping appliance, branding device, 
stencil, printed label, or any other mechanically or manually operated 
tool that is approved by the Administrator for the purpose of applying 
any official mark or other identification to any product or the 
packaging material thereof.

                       Administrative and General



Sec. 61.3  Director.

    The Director shall perform for and under the supervision of the 
Secretary and the Administrator, such duties as the Secretary or the 
Administrator may require in enforcing the provisions of the act and the 
regulations.



Sec. 61.4  Supervisor of cottonseed inspection.

    The Director, whenever he deems necessary, may designate an officer 
of the Division as supervisor of cottonseed inspection who shall 
supervise the inspection and sampling of cottonseed and perform such 
other duties as may be required of him in administering the act and the 
regulations.



Sec. 61.5  Regulations to govern.

    The inspection, sampling, analyzing, and grading of cottonseed in 
the United States pursuant to the act shall be performed as prescribed 
in methods approved from time to time by the Director.



Sec. 61.6  Denial of further services.

    Any person, partnership, or corporation that shall have undertaken 
to utilize the services of licensed cottonseed samplers under these 
regulations who shall not make available for official sampling and 
analysis each lot of cottonseed purchased or sold on grade and received 
by such person or partnership or corporation, may be denied further 
services under the act and these regulations: Provided, That in cases of 
persons, partnerships, or corporations operating two or more cottonseed 
crushing units under separate local managements, such penalty shall 
apply only to the offending unit, unless it shall be shown that the 
actions of such unit were at the direction or with the knowledge, 
approval, or acquiescence of the general management.

[22 FR 10948, Dec. 28, 1957, as amended at 58 FR 42413, Aug. 9, 1993]



Sec. 61.7  Misrepresentation.

    Any willful misrepresentation or any deceptive or fradulent practice 
made or committed by an applicant for a cottonseed sampler's certificate 
or for a cottonseed chemist's certificate or for an appeal grade 
certificate in connection with the sampling or grading of cottonseed by 
persons licensed under the act and the regulations or the issuance or 
use of a certificate not issued by a person licensed under the 
regulations in imitation of or that might mislead anyone to believe that 
such certificate was in fact issued by a person licensed under the act, 
or that might be otherwise false, misleading, or deceptive, may be 
deemed sufficient cause for debarring such applicant from any further 
benefits of the act.



Sec. 61.8  Application for review.

    In case of dispute in which a review is desired of the grading of 
any official sample of cottonseed covered by a valid certificate issued 
by a licensed cottonseed chemist, application therefor shall be filed 
with or mailed to a supervisor of cottonseed inspection within ten days 
after the date of the original certificate, whereupon the licensed 
chemist issuing the certificate shall immediately surrender to such 
supervisor the retained portion of the original sample, together with 
such records as may be required, for the determination of the true 
grade. The supervisor shall assign to such retained portion an 
identification number, shall divide such retained portion into two parts

[[Page 186]]

and submit the parts to two other licensed cottonseed chemists for 
reanalysis. Should the supervisor determine that such reanalyses 
indicate a grade differing from the original by not more than plus or 
minus one full grade, the original grade shall be considered the true 
grade. Should he find that such reanalyses indicate a grade differing 
more than plus or minus one full grade from the original, he shall 
determine the true grade. In any case, the supervisor shall issue over 
his name an appeal cottonseed grade certificate showing the true grade 
as determined in accordance with this section, which shall supersede the 
licensed chemists' certificates relating to the grade of such seed. 
Where due solely to errors in calculation or clerical error a grade 
certificated by a licensed cottonseed chemist is not the true grade, the 
supervisor shall direct the licensee to cancel the original and to issue 
a correct certificate. Should such error be found after an application 
for review has been filed, the supervisor shall nevertheless issue an 
appeal cottonseed grade certificate showing the true grade of the 
cottonseed involved.

[22 FR 10948, Dec. 28, 1957, Dec. 28, 1957, as amended at 58 FR 42413, 
Aug. 9, 1993]



Sec. 61.9  Cost of review.

    In cases of review of the grade of any official sample of 
cottonseed, payment covering the costs of re-analysis shall accompany 
the application.

                      Licensed Cottonseed Samplers



Sec. 61.25  Application for license as sampler; form.

    (a) Applications for licenses to sample cottonseed shall be made to 
the Director on forms furnished for the purpose by him.
    (b) Each such application shall be in English, shall be signed by 
the applicant, and shall contain or be accompanied by (1) satisfactory 
evidence that he is an actual resident of the United States, (2) 
satisfactory evidence of his experience in the handling and sampling of 
cottonseed, (3) a statement by the applicant that he agrees to comply 
with and abide by the terms of the act and these regulations so far as 
they relate to him, and with instructions issued from time to time 
governing the sampling of cottonseed, and (4) such other information as 
may be required.



Sec. 61.27  Period of license; renewals.

    The period for which a license may be issued under the regulations 
in Secs. 61.25 through 61.42 shall be from the first day of August 
following receipt of the application, and shall continue for 5 years, 
ending on the 31st of July in the fifth year. Renewals shall be for 5 
years also, beginning with the first day of August and ending on the 
31st day of July in the fifth year: Provided, That licenses or renewals 
issued on and after June 1 of any year shall be for the period ending 
July 31 of the fifth year following.

[59 FR 26411, May 20, 1994]



Sec. 61.30  Examination of sampler.

    Each applicant for a license as a sampler and each licensed sampler 
whenever requested by an authorized representative of the Director, 
shall submit to an examination or test to show his ability properly to 
perform the duties for which he is applying for a license or for which 
he has been licensed, and each such applicant or licensee shall furnish 
the Division any information requested at any time in regard to his 
sampling of cottonseed.



Sec. 61.31  License must be posted.

    Each licensed sampler shall keep his license conspicuously posted at 
the place where he functions as a sampler or in such other place as may 
be approved by the Director.



Sec. 61.32  No discrimination in sampling.

    Each licensed sampler, when requested, shall without discrimination, 
as soon as practicable and upon reasonable terms, sample any cottonseed 
if the same be made available to him at his place of business, under 
conditions that will permit proper sampling. Each such licensee shall 
give preference to those who request his services as such over persons 
who request his services in any other capacity.

[[Page 187]]



Sec. 61.33  Equipment of sampler; contents of certificate.

    Each licensed sampler shall have available suitable triers or 
sampling tools, sample containers, scales, seed cleaners, seed mixers, 
and air-tight containers for enclosing and forwarding the official 
samples to licensed chemist, and with tags and samplers' certificates 
approved or furnished by the Director or his representative for 
identifying the samples of cottonseed and for certificating the 
condition of the cottonseed represented by such samples. There shall be 
clearly written or printed on the face of such certificate (a) a 
suitable caption; (b) the location of the cottonseed involved and its 
point of origin; (c) the identification of the lot from which the sample 
was drawn; (d) the date on which the sample was drawn; (e) the gross 
weight of the original sample, and the net weight of the cleaned sample; 
(f) a statement indicating that the sample was drawn in accordance with 
sampling methods prescribed by the Director of the Cotton Division; and 
(g) the signature of the licensed sampler as such. The use of such tags 
and certificates shall be in conformity with instructions issued from 
time to time by the Division.



Sec. 61.34  Drawing and preparation of sample.

    Each licensed cottonseed sampler shall draw, prepare, and identify 
one official sample of cottonseed and a duplicate thereof from each lot 
made available to him in such manner as may be required by the Director, 
and shall promptly prepare it for forwarding to a licensed cottonseed 
chemist for analysis and grading. The duplicate shall be sealed and 
retained by the sampler until the original official sample shall have 
been analyzed by a licensed chemist. If the original official sample 
shall become lost or destroyed before having been analyzed the duplicate 
shall become the official sample; otherwise the licensed sampler shall 
immediately remove the identification marks from the duplicate and 
discard it. In no case shall the duplicate be offered for analysis 
unless the original shall have been lost or destroyed before analysis.



Sec. 61.36  Cause for suspension or revocation.

    The failure or refusal of any cottonseed sampled, duly licensed as 
such under the regulations in this subpart, to draw, prepare, identify, 
and to forward an official sample of every lot of cottonseed made 
available to him for the purpose, in accordance with these regulations, 
shall be cause for the suspension or revocation of his license. A 
sampler's license may also be suspended when the sampler (a) has ceased 
to perform services as a licensed cottonseed sampler, (b) has knowingly 
or carelessly sampled cottonseed improperly, (c) has violated or evaded 
any provision of the Act, these regulations, or the sampling methods 
prescribed by the Director, (d) has used his license or allowed it to be 
used for any fraudulent or improper purposes, or (e) has in any manner 
become incompetent or incapacitated to perform the duties of a licensed 
sampler.



Sec. 61.37  License may be suspended.

    The Director may, without a hearing, suspend or revoke the license 
issued to a licensed sampler upon written request and a satisfactory 
statement of reasons therefor submitted by such licensed sampler. 
Pending final action by the Secretary, the Director may, whenever he 
deems such action necessary, suspend the license of any licensed sampler 
by giving notice of such suspension to the licensee, accompanied by a 
statement of the reasons therefor. Within 10 days after the receipt of 
the aforesaid notice and statement of reasons by such licensee, he may 
file an appeal, in writing, with the Secretary, supported by any 
argument or evidence that he may wish to offer as to why his license 
should not be suspended or revoked. After the expiration of the 
aforesaid 10-day period and consideration of such argument and evidence, 
the Secretary will take such action as he deems appropriate with respect 
to such suspension or revocation. When no appeal is filed within the 
prescribed 10 days, the license shall be automatically revoked.

[[Page 188]]



Sec. 61.38  Suspended license to be returned to Division.

    In case a license issued to a sampler is suspended or revoked such 
license shall be returned to the Division. At the expiration of any 
period of suspension of such license, unless in the meantime it be 
revoked, the dates of beginning and termination of such suspension shall 
be endorsed thereon, it shall be returned to the person to whom it was 
originally issued, and its shall be posted as prescribed in Sec. 61.31.



Sec. 61.39  Duplicate license.

    Upon satisfactory proof of the loss or destruction of a license 
issued to a sampler hereunder, a new license may be issued under the 
same or a new number.



Sec. 61.40  Reports of licensed samplers.

    Each licensed sampler, when requested, shall make reports on forms 
furnished for the purpose by the Division bearing upon his activity as 
such licensee.



Sec. 61.41  Unlicensed persons must not represent themselves as licensed samplers.

    No person shall in any way represent himself to be a sampler 
licensed under the act unless he holds an unsuspended and unrevoked 
license issued thereunder.



Sec. 61.42  Information on sampling to be kept confidential.

    Every person licensed under the act as a sampler of cottonseed shall 
keep confidential all information secured by him relative to shipments 
of cottonseed sampled by him. He shall not disclose such information to 
any person except an authorized representative of the Department.



 Subpart B--Standards for Grades of Cottonseed Sold or Offered for Sale 
             for Crushing Purposes Within the United States

    Authority: Secs. 203, 205, 60 Stat. 1087, 1090, as amended; 7 U.S.C. 
1622, 1624.



Sec. 61.101  Determination of grade.

    The grade of cottonseed shall be determined from the analysis of 
samples by licensed chemists, and it shall be the result, stated in the 
nearest whole or half numbers, obtained by multiplying a quantity index 
by a quality index and dividing the result by 100. The quantity index 
and the quality index shall be determined as hereinafter provided.
    (a) The basis grade of cottonseed shall be grade 100.
    (b) High grades of cottonseed shall be those grades above 100.
    (c) Low grades of cottonseed shall be those grades below 100.
    (d) Grades for American Pima cottonseed shall be suffixed by the 
designation ``American Pima'' or by the symbol ``AP.''

[22 FR 10948, Dec. 28, 1957, as amended at 37 FR 20157, Sept. 27, 1972; 
58 FR 42413, Aug. 9, 1993]



Sec. 61.102  Determination of quantity index.

    The quantity index of cottonseed shall be determined as follows:
    (a) For upland cottonseed the quantity index shall equal four times 
percentage of oil plus six times percentage of ammonia, plus 5.
    (b) For American Pima cottonseed the quantity index shall equal four 
times percentage of oil, plus six times percentage of ammonia, minus 10.

[37 FR 20157, Sept. 27, 1972]



Sec. 61.103  Determination of quality index.

    The quality index of cottonseed shall be an index of purity and 
soundness, and shall be determined as follows:
    (a) Prime quality cottonseed. Cottonseed that by analysis contains 
not more than 1.0 percent of foreign matter, not more than 12.0 percent 
of moisture, and not more than 1.8 percent of free fatty acids in the 
oil in the seed, shall be known as prime quality cottonseed and shall 
have a quality index of 100.
    (b) Below prime quality cottonseed. The quality index of cottonseed 
that, by analysis, contain foreign matter, moisture, or free fatty acids 
in the oil in the seed, in excess of the percentages

[[Page 189]]

prescribed in paragraph (a) of this section shall be found by reducing 
the quality index of prime quality cottonseed as follows:
    (1) Four-tenths of a unit for each 0.1 percent of free fatty acids 
in the oil in the seed in excess of 1.8 percent.
    (2) One-tenth of a unit for each 0.1 percent of foreign matter in 
excess of 1.0 percent.
    (3) One-tenth of a unit for each 0.1 percent of moisture in excess 
of 12.0 percent.
    (c) Off quality cottonseed. Cottonseed that has been treated by 
either mechanical or chemical process other than the usual cleaning, 
drying, and ginning (except sterilization required by the United States 
Department of Agriculture for quarantine purposes) or that are fermented 
or hot, or that upon analysis are found to contain 12.5 percent or more 
of free fatty acids in the oil in the seed, or more than 10.0 percent of 
foreign matter, or more than 20.0 percent of moisture, or more than 25.0 
percent of moisture and foreign matter combined, shall be designated as 
``off quality cottonseed.''
    (d) Below grade cottonseed. Cottonseed the grade of which when 
calculated according to Sec. 61.101 is below grade 40.0 shall be 
designated as ``below grade cottonseed,'' and a numerical grade shall 
not be indicated.



Sec. 61.104  Sampling and certification of samples and grades.

    The drawing, preparation, and certification of samples of 
cottonseed, and certification of grades of cottonseed shall be performed 
in accordance with methods approved from time to time for the purposes 
by the Director, or his representatives.

[22 FR 10948, Dec. 28, 1957, as amended at 58 FR 42413, Aug. 9, 1993]



PART 70--VOLUNTARY GRADING OF POULTRY PRODUCTS AND RABBIT PRODUCTS--Table of Contents




       Subpart A--Grading of Poultry Products and Rabbit Products

                                 General

Sec.
70.1  Definitions.
70.2  Designation of official certificates, memoranda, marks, other 
          identifications, and devices for purposes of the Agricultural 
          Marketing Act.
70.3  Administration.
70.4  Grading services available.
70.5  Nondiscrimination.
70.6  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

                            Basis of Service

70.10  Grading service.
70.11  [Reserved]
70.12  Supervision.
70.13  Ready-to-cook poultry and rabbits and specified poultry food 
          products; eligibility.
70.14  Squabs and domesticated game birds; eligibility.
70.15  Equipment and facilities to be furnished for use of graders in 
          performing service on a resident basis.
70.16  Prerequisites to grading.
70.17  Accessibility of products.
70.18  Schedule of operation of official plants.

                         Performance of Services

70.20  Licensed or authorized graders.
70.21  Suspension of license; revocation.
70.22  Surrender of license.
70.23  Identification.
70.24  Financial interest of graders.
70.25  Political activity.

                     Application for Grading Service

70.30  Who may obtain grading service.
70.31  How application for service may be made; conditions of service.
70.32  Filing of application.
70.33  Authority of applicant.
70.34  Application for grading service in official plants; approval.
70.35  Rejection of application.
70.36  Withdrawal of application.
70.37  Order of service.
70.38  Suspension or withdrawal of plant approval for correctable cause.

                            Denial of Service

70.40  Debarment.
70.41  Misrepresentation, deceptive, or fraudulent acts or practices.
70.42  Use of facsimile forms.
70.43  Willful violation of the regulations.
70.44  Interfering with a grader or employee of Service.
70.45  Misleading labeling.
70.46  Miscellaneous.

                    Identifying and Marking Products

70.50  Approval of official identification and wording on labels.
70.51  Form of grademark and information required.

[[Page 190]]

70.52  Prerequisites to packaging ready-to-cook poultry or rabbits 
          identified with consumer grademarks.
70.54  Retention authorities.
70.55  Check grading officially identified product.

                                 Reports

70.60  Report of grading work.
70.61  Information to be furnished to graders.
70.62  Reports of violations.

                            Fees and Charges

70.70  Payment of fees and charges.
70.71  On a fee basis.
70.72  Fees for appeal grading, or examination or review of a grader's 
          decision.
70.75  Travel expenses and other charges.
70.76  Charges for continuous poultry grading performed on a nonresident 
          basis.
70.77  Charges for continuous poultry or rabbit grading performed on a 
          resident basis.
70.78  Fees or charges for grading service performed under cooperative 
          agreement.

                                 Grading

70.80  General.
70.81  Ready-to-cook poultry and rabbits and specified poultry food 
          products.

                          Grading Certificates

70.90  Forms.
70.91  Issuance and disposition.
70.92  Advance information.

                     Appeal of a Grading or Decision

70.100  Who may request an appeal grading or review of a grader's 
          decision.
70.101  Where to file an appeal.
70.102  How to file an appeal.
70.103  When an application for an appeal grading may be refused.
70.104  Who shall perform the appeal.
70.105  Procedures for appeal gradings.
70.106  Appeal grading certificates.

       Sanitary Requirements, Facilities, and Operating Procedures

70.110  Requirements for sanitation, facilities, and operating 
          procedures in official plants.

Subparts B-C [Reserved]

    Authority: 7 U.S.C. 1621-1627.

    Source: 41 FR 23681, June 11, 1976, unless otherwise noted. 
Redesignated at 42 FR 32514, June 27, 1977, and further redesignated at 
46 FR 63203, Dec. 31, 1981.



       Subpart A--Grading of Poultry Products and Rabbit Products

                                 General



Sec. 70.1  Definitions.

    Unless the context otherwise requires, the following terms shall 
have the following meaning:
    Acceptable means suitable for the purpose intended and acceptable to 
the Service.
    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.
    Administrator means the Administrator of the Agricultural Marketing 
Service of the Department or any other officer or employee of the 
Department to whom there has heretofore been delegated or to whom there 
may hereafter be delegated the authority to act in his stead.
    Applicant means any interested person who requests any grading 
service.
    Carcass means any poultry or rabbit carcass.
    Chief of the Grading Branch means Chief of the Poultry Grading 
Branch, Poultry Division, Agricultural Marketing Service.
    Class means any subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same 
kind.
    Condition means any condition, including but not being limited to, 
the state of preservation, cleanliness, or soundness of any product; or 
any condition, including but not limited to the processing, handling, or 
packaging which affects such product.
    Condition and wholesomeness means the condition of any product and 
its healthfulness and fitness for human food.
    Department means the United States Department of Agriculture.
    Free from protruding feathers or hairs means that a poultry carcass, 
part, or poultry product with the skin on is free from protruding 
feathers or hairs which are visible to a grader during an examination at 
normal operating speeds. However, a poultry carcass, part, or poultry 
product may be considered as being free from protruding

[[Page 191]]

feathers or hairs if it has a generally clean appearance and if not more 
than an occasional protruding feather or hair is evidenced during a more 
careful examination.
    Giblets means the following poultry organs when properly trimmed and 
washed: The liver from which the bile sac has been removed, the heart 
from which the pericardial sac has been removed, and the gizzard from 
which the lining and contents have been removed. With respect to rabbits 
``giblets'' means the liver from which the bile sac has been removed and 
the heart from which the pericardial sac has been removed.
    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 or grading service means: (a) The act whereby a grader 
determines, according to the regulations in this part the class, 
quality, quantity, or condition of any product by examining each unit 
thereof or each unit of the representative sample thereof drawn by a 
grader, and issues a grading certificate with respect thereto, except 
that with respect to grading service performed on a resident basis, the 
issuance of a grading certificate shall be pursuant to a request 
therefor by the applicant or the Service; (b) the act whereby the grader 
identifies, according to the regulations in this part, the graded 
product; (c) with respect to any official plant, the act whereby a 
grader determines that the product in such plant was processed, handled, 
and packaged in accordance with Sec. 70.110, or (d) any regrading or any 
appeal grading of a previously graded product.
    Grading certificate means a statement, either written or printed, 
issued by a grader, pursuant to the regulations in this part, relative 
to the class, quality, quantity, or condition of a product.
    Holiday or Legal Holiday shall mean the legal public holidays 
specified by the Congress in paragraph (a) of section 6103, title 5, of 
the United States Code.
    Identify means to apply official identification to products or the 
containers thereof.
    Lightly shaded discolorations on poultry are generally reddish in 
color and are usually confined to areas of the skin or the surface of 
the flesh.
    Moderately shaded discolorations on poultry skin or flesh are areas 
that are generally dark red or bluish, or are areas of flesh bruising. 
Moderately shaded discolorations are free from blood clots that are 
visible to a grader during an examination of the carcass, part, or 
poultry product at normal grading speeds.
    National supervisor means (a) the officer in charge of the poultry 
grading service of the Agricultural Marketing Service, and (b) other 
officers and employees of the Department designated by the officer in 
charge of the poultry grading service of the Agricultural Marketing 
Service.
    Office of grading means the office of any grader.
    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.
    Person means any individual, partnership, association, business 
trust, corporation, or any organized group of persons, whether 
incorporated or not.
    Poultry means any kind of domesticated bird, including, but not 
being limited to, chickens, turkeys, ducks, geese, pigeons, and guineas.
    Poultry food product means any article of human food or any article 
intended for or capable of being so used, which is prepared or derived 
in whole or in substantial part, from any edible part or parts of 
poultry.
    Poultry product means any ready-to-cook poultry carcass or part 
therefrom or any specified poultry food product.
    Poultry grading service means the personnel who are actively engaged 
in the administration, application, and direction of poultry and rabbit 
grading programs and services pursuant to the regulations in this part.

[[Page 192]]

    Quality means the inherent properties of any product which determine 
its relative degree of excellence.
    Rabbit means any domesticated rabbit whether live or dead.
    Rabbit product means any ready-to-cook rabbit carcass or part 
therefrom.
    Ready-to-cook poultry means any slaughtered poultry free from 
protruding feathers, vestigial feathers (hair or down as the case may 
be) and from which the head, feet, crop, oil gland, trachea, esophagus, 
entrails, mature reproductive organs, and lungs have been removed, and 
the kidneys have been removed from certain mature poultry as defined in 
9 CFR part 381, and with or without the giblets, and which is suitable 
for cooking without need of further processing. Ready-to-cook poultry 
also means any cut-up or disjointed portion of poultry or other parts of 
poultry as defined in 9 CFR part 381 that are suitable for cooking 
without need of further processing.
    Ready-to-cook rabbit means any rabbit which has been slaughtered for 
human food, from which the head, blood, skin, feet, and inedible viscera 
have been removed, that is ready to cook without need of further 
processing. Ready-to-cook rabbit also means any cut-up or disjointed 
portion of rabbit or any edible part thereof.
    Regional director means any employee of the Department in charge of 
poultry grading service in a designated geographical area.
    Regulations means the provisions of this entire part and such United 
States classes, standards, and grades for products as may be in effect 
at the time grading is performed.
    Secretary means the Secretary of the Department, or any other 
officer or employee of the Department to whom there has heretofore been 
delegated, or to whom there may hereafter be delegated, the authority to 
act in his stead.
    Service means the Agricultural Marketing Service of the Department.
    Slight discolorations on poultry skin or flesh are areas of 
discoloration that are generally pinkish in color and do not detract 
from the appearance of the carcass, part, or poultry product.
    Soundness means freedom from external evidence of any disease or 
condition which may render a carcass or product unfit for food.
    State supervisor or Federal-State supervisor means any authorized 
and designated individual who is in charge of the poultry grading 
service in a State.

[41 FR 23681, June 11, 1976; 41 FR 24693, June 18, 1976. Redesignated at 
42 FR 32514, June 27, 1977, as amended at 43 FR 60138, Dec. 26, 1978. 
Redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 FR 46071, 
Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982; 51 FR 17280, May 9, 1986; 60 
FR 6639, Feb. 2, 1995; 63 FR 40628, July 30, 1998]



Sec. 70.2  Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946, as 
amended by Pub. L. 272, 84th Congress, provides criminal penalties for 
various specified offenses relating to official certificates, memoranda, 
marks, or other identification and devices for making such marks or 
identifications, issued or authorized under section 203 of said Act, and 
certain misrepresentations concerning the grading of agricultural 
products under said section. For the purposes of said subsection and the 
provisions in this part, the terms listed in this section shall have the 
respective meaning specified:
    (a) Official certificate means any form of certification, either 
written or printed, used under this part to certify with respect to the 
sampling, class, grade, quality, size, quantity, or condition of 
products (including the compliance of products with applicable 
specifications).
    (b) Official memorandum means any initial record of findings made by 
an authorized person in the process of grading or sampling pursuant to 
this part, any processing or plant-operation report made by an 
authorized person in connection with grading or sampling under this 
part, and any report made by an authorized person of services performed 
pursuant to this part.
    (c) Official mark means the grade-mark and any other mark, or any 
variations in such marks, approved by the Administrator and authorized 
to be affixed to any product or affixed to or printed on the packaging 
material of

[[Page 193]]

any product, stating that the product was graded or indicating the 
appropriate U.S. Grade or condition of the product, or for maintaining 
the identity of products graded under this part, including but not 
limited to, those marks set forth in Sec. 70.51.
    (d) Official identification means any United States (U.S.) standard 
designation of class, grade, quality, size, quantity, or condition 
specified in this part or any symbol, stamp, label, or seal indicating 
that the product has been officially graded and/or indicating the class, 
grade, quality, size, quantity, or condition of the product approved by 
the Administrator and authorized to be affixed to any product, or 
affixed to or printed on the packaging material of any product.
    (e) Official device means a stamping appliance, branding device, 
stencil, printed label, or any other mechanically or manually operated 
tool that is approved by the Administrator for the purpose of applying 
any official mark or other identification to any product or the 
packaging material thereof.



Sec. 70.3  Administration.

    The Administrator shall perform for and under the supervision of the 
Secretary such duties as are prescribed in the regulations in this part 
and as the Secretary may require in the administration of the 
regulations in this part. The Administrator is authorized to waive for 
limited periods any particular provisions of the regulations to permit 
experimentation so that new procedures and grading 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. 
The Agricultural Marketing Service and its officers and employees shall 
not be liable in damages through acts of commission or omission in the 
administration of this part.



Sec. 70.4  Grading services available.

    The regulations in this part provide for the following kinds of 
service; and any one or more of the different services applicable to 
official plants may be rendered in an official plant:
    (a) Grading of ready-to-cook poultry and rabbits in an official 
plant or at other locations with adequate facilities.
    (b) Grading of specified poultry food products in official plants.



Sec. 70.5  Nondiscrimination.

    The conduct of all services and the licensing of graders and 
inspectors under these regulations shall be accomplished without regard 
to race, color, national origin, religion, age, sex, or disability.

[60 FR 6640, Feb. 2, 1995]



Sec. 70.6  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    (a) Purpose. This section collects and displays the control numbers 
assigned to information collection requirements by the Office of 
Management and Budget contained in 7 CFR part 70 pursuant to the 
Paperwork Reduction Act of 1980, Pub. L. 96-511.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
        7 CFR section where identified and described         control No.
------------------------------------------------------------------------
70.3.......................................................    0581-0127
70.10......................................................    0581-0127
70.17......................................................    0581-0127
70.18......................................................    0581-0127
70.20(a)...................................................    0581-0127
70.21......................................................    0581-0127
70.31(a)...................................................    0581-0127
70.31(b)...................................................    0581-0127
70.33......................................................    0581-0127
70.34......................................................    0581-0127
70.35......................................................    0581-0127
70.36......................................................    0581-0127
70.38(c)...................................................    0581-0127
70.38(d)...................................................    0581-0127
70.40......................................................    0581-0127
70.50......................................................    0581-0127
70.61......................................................    0581-0127
70.62......................................................    0581-0127
70.73......................................................    0581-0127
70.76(b)(1)................................................    0581-0127
70.76(b)(3)(ii)............................................    0581-0127
70.77(a)(1)................................................    0581-0127
70.77(a)(4)................................................    0581-0127
70.77(b)(1)................................................    0581-0127
70.77(b)(3)(ii)............................................    0581-0127
70.91(a)...................................................    0581-0127
70.91(c)...................................................    0581-0127
70.92......................................................    0581-0127
70.100.....................................................    0581-0127
70.102.....................................................    0581-0127
70.210(e)..................................................    0581-0127
70.310(e)..................................................    0581-0127
------------------------------------------------------------------------


[48 FR 56566, Dec. 22, 1983, as amended at 51 FR 26224, July 22, 1986]

[[Page 194]]

                            Basis of Service



Sec. 70.10  Grading service.

    Any grading service in accordance with the regulations in this part 
shall be for class, quality, quantity, or condition or any combination 
thereof. Grading service with respect to determination of quality of 
products shall be on the basis of United States classes, standards, and 
grades as contained in subparts B and C of this part. However, grading 
service may be rendered with respect to products which are bought and 
sold on the basis of institutional contract specifications or 
specifications of the applicant, and such service, when approved by the 
Administrator, shall be rendered on the basis of such specifications.



Sec. 70.11  [Reserved]



Sec. 70.12  Supervision.

    All grading service shall be subject to supervision at all times by 
the responsible State supervisor, regional director, and national 
supervisor. Such service shall be rendered in accordance with 
instructions issued by the Administrator where the facilities and 
conditions are satisfactory for the conduct of the service and the 
requisite graders are available. Whenever the supervisor of a grader has 
evidence that such grader incorrectly graded a product, such supervisor 
shall take such action as is necessary to correct the grading and to 
cause any improper grademarks which appear on the product or containers 
thereof to be corrected prior to shipment of the product from the place 
of initial grading.



Sec. 70.13  Ready-to-cook poultry and rabbits and specified poultry food products; eligibility.

    Only ready-to-cook poultry and rabbits and specified poultry food 
products which are inspected and passed by the poultry inspection 
service of the U.S. Department of Agriculture or by any other official 
inspection system acceptable to the Department may be graded.



Sec. 70.14  Squabs and domesticated game birds; eligibility.

    Squabs and domesticated game birds (including, but not being limited 
to, quail, pheasants, and wild species of ducks and geese raised in 
captivity) may be graded under the regulations in this part, only if 
they have been inspected and passed by the poultry inspection service of 
the U.S. Department of Agriculture or have been inspected by any other 
official inspection system acceptable to the Department.



Sec. 70.15  Equipment and facilities to be furnished for use of graders in performing service on a resident basis.

    Such equipment and facilities shall include but not be limited to:
    (a) An accurate metal stem thermometer.
    (b) A drill with a steel bit to drill holes in frozen product for 
inserting the metal thermometer stem to determine temperature.
    (c) Scales graduated in tenths of a pound or less for weighing 
carcasses, parts, or products individually or in containers up to 100 
pounds, and test weights for such scales.
    (d) Scales graduated in one-pound graduation or less for weighing 
bulk containers of poultry and test weights for such scales.
    (e) Furnished adequate office space, a desk equipped with a 
satisfactory locking device, lockers or cabinets suitable for the 
protection and storage of official supplies and facilities suitable for 
graders to change clothing.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 51 
FR 17280, May 9, 1986; 60 FR 6640, Feb. 2, 1995]



Sec. 70.16  Prerequisites to grading.

    Grading of products shall be rendered pursuant to the regulations in 
this part and under such conditions and in accordance with such methods 
as may be prescribed or approved by the Administrator.



Sec. 70.17  Accessibility of products.

    Each product for which grading service is requested shall be so 
placed as to disclose fully its class, quality, quantity, and condition 
as the circumstances may warrant.

[[Page 195]]



Sec. 70.18  Schedule of operation of official plants.

    Grading operation schedules for services performed pursuant to 
Secs. 70.76 and 70.77 shall be requested in writing and be approved by 
the Administrator. Normal operating schedules for a full week consist of 
a continuous 8-hour period per day (excluding not to exceed 1 hour for 
lunch), 5 consecutive days per week, within the administrative workweek, 
Sunday through Saturday, for each shift required. Less than 8-hour 
schedules may be requested and will be approved if a grader is 
available. Clock hours of daily operations need not be specified in the 
request, although as a condition of continued approval, the hours of 
operation shall be reasonably uniform from day to day. Graders are to be 
notified by management 1 day in advance of any change in the hours 
grading service is requested.

[48 FR 20683, May 9, 1983]

                         Performance of Services



Sec. 70.20  Licensed or authorized graders.

    (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 poultry grading service of the Agricultural 
Marketing Service or any other designated officer of such Service.
    (c) Any person who is employed by any official plant and possesses 
proper qualifications as determined by the Administrator may be 
authorized to grade poultry and/or rabbits on the basis of the U.S. 
classes, standards, and grades under the supervision of a grader. No 
person to whom such authorization is granted shall have authority to 
issue any grading certificates, grading memoranda, or other official 
documents; and all products graded by any such person shall thereafter 
be check graded by a grader.



Sec. 70.21  Suspension of license; revocation.

    Pending final action by the Secretary, any person authorized to 
countersign a license to perform grading service may, whenever he deems 
such action necessary to assure that any grading services are properly 
performed, suspend any license to perform grading service issued 
pursuant to this part, by giving notice of such suspension 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 he may wish to offer as to 
why his 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 he deems 
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.



Sec. 70.22  Surrender of license.

    Each license which is suspended or revoked shall immediately be 
surrendered by the licensee to the office of grading serving the area in 
which he is located. Upon termination of the services of a licensed 
grader, the licensee shall surrender his license immediately for 
cancellation.



Sec. 70.23  Identification.

    Each grader shall have in his possession at all times, and present 
upon request while on duty, the means of identification furnished by the 
Department to such person.



Sec. 70.24  Financial interest of graders.

    No grader shall render service on any product in which he is 
financially interested.



Sec. 70.25  Political activity.

    All graders are forbidden, during the period of their respective 
appointments or licenses, to take an active part in political management 
or in political campaigns. Political activity in city,

[[Page 196]]

county, State, or national elections, whether primary or regular, or in 
behalf of any party or candidate, or any measure to be voted upon, is 
prohibited. This applies to all appointees, including, but not being 
limited to, temporary and cooperative employees and employees on leave 
of absence with or without pay. Willful violation of this section will 
constitute grounds for dismissal in the case of appointees and 
revocation of licenses in the case of licensees.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 48 
FR 20683, May 9, 1983]

                     Application for Grading Service



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, the United States, any 
State, county, municipality, or common carrier, and any authorized agent 
of the foregoing.



Sec. 70.31  How application for service may be made; conditions of service.

    (a) Noncontinuous grading service on a fee basis. An application for 
any noncontinuous grading service on a fee basis may be made in any 
office of grading or with any grader at or nearest the place where the 
service is desired. Such application may be made orally (in person or by 
telephone), in writing, or by telegraph. If the application for grading 
service is made orally, the office of grading or the grader with whom 
such application is made or the Administrator may require that the 
application be confirmed in writing.
    (b) Continuous grading service on a resident basis or continuous 
grading service on a nonresident basis. An application for continuous 
grading service on a resident basis or for continuous grading service on 
a nonresident basis must be made in writing on forms approved by the 
Administrator and filed with the Administrator. Such forms may be 
obtained at the national, regional, or State grading office. In making 
application, the applicant agrees to comply with the terms and 
conditions of the regulations (including, but not being limited to, such 
instructions governing grading of products as may be issued from time to 
time by the Administrator). No member of or Delegate to Congress or 
Resident Commissioner shall be admitted to any benefit that may arise 
from such service unless derived through service rendered a corporation 
for its general benefit.



Sec. 70.32  Filing of application.

    An application for grading service shall be regarded as filed only 
when made pursuant to the regulations in this part.



Sec. 70.33  Authority of applicant.

    Proof of the authority of any person applying for grading service 
may be required at the discretion of the Administrator.



Sec. 70.34  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 
approved according to the following procedure: Survey. When application 
has been filed for grading service, as aforesaid, the State supervisor 
or his assistant shall examine the grading office, facilities, and 
equipment and specify any additional facilities or equipment needed for 
the service. When the plant survey for poultry or rabbit grading has 
been completed and approved in accordance with the regulations in this 
part, service may be installed.



Sec. 70.35  Rejection of application.

    Any application for grading service may be rejected by the 
Administrator (a) whenever the applicant fails to meet the requirements 
of the regulations prescribing the conditions under which the service is 
made available; (b) whenever the product is owned by or located on the 
premises of a person currently denied the benefits of the Act; (c) where 
any individual holding office or a responsible position with or having a 
substantial financial interest or share in the applicant, is currently

[[Page 197]]

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; (d) 
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; (e) 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 (f) notwithstanding any prior approval 
whenever, before inauguration of service, the applicant fails to fulfill 
commitments concerning the inauguration of the service. 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.



Sec. 70.36  Withdrawal of application.

    Any 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 Service in connection 
with such application.



Sec. 70.37  Order of service.

    Grading service shall be performed, insofar as practicable and 
subject to the availability of qualified graders, in the order in which 
applications therefor are made, except that precedence may be given to 
any application for an appeal grading.



Sec. 70.38  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 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, he shall initiate withdrawal action pursuant to 
the Rules of Practice Governing Withdrawal of Inspection and Grading 
Service (7 CFR part 1, subpart H), and the operator shall be afforded an 
opportunity for an oral hearing upon his 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 service, either be 
destroyed, or the official identification

[[Page 198]]

completely obliterated, or sealed in a manner acceptable to the service.
    (d) In any case where grading service is withdrawn under this 
Sec. 70.38, the person concerned may thereafter apply for grading 
service as provided in Secs. 70.30 through 70.37 of these regulations.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 43 FR 60139, Dec. 26, 1978. Redesignated at 46 FR 63203, 
Dec. 31, 1981]

                            Denial of Service



Sec. 70.40  Debarment.

    The acts or practices set forth in Secs. 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 any or all benefits of 
the Act for a specified period. The rules of practice governing 
withdrawal of grading services in formal adjudicatory proceedings 
instituted by the Secretary (7 CFR, part 1, subpart H) shall be 
applicable to such debarment action.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 43 FR 60139, Dec. 26, 1978. Redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 70.41  Misrepresentation, deceptive, or fraudulent acts or practices.

    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 any application for any grading service, 
appeal or regrading service;
    (b) The making of the product accessible for 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.

[41 FR 23681, June 11, 1976; 41 FR 24693, June 18, 1976. Redesignated at 
42 FR 32514, June 27, 1977, and further redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 70.42  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. 70.43  Willful violation of the regulations.

    Any willful violation of the regulations in this part or the Act.



Sec. 70.44  Interfering with a grader or employee of Service.

    Any interference with or obstruction or any attempted interference 
or obstruction of, or assault upon any grader, licensee, or employee of 
the Service in the performance of his duties. The giving or offering, 
directly or indirectly, of any money, loan, gift, or anything of value 
to an employee of the Service, or the making or offering of any 
contribution to or in any way supplementing the salary, compensation, or 
expenses of an employee of the Service, or the offering or entering into 
a private contract or agreement with an employee of the Service for any 
services to be rendered while employed by the Service.



Sec. 70.45  Misleading labeling.

    The use of the terms ``Government Graded'' and ``Federal-State 
Graded'' or terms of similar import in the labeling or advertising of 
any product without stating in the labeling or advertisement the U.S. 
grade of the product as determined by an authorized grader.



Sec. 70.46  Miscellaneous.

    The existence of any of the conditions set forth in Sec. 70.35 
constituting a basis for the rejection of an application for grading 
service.

[[Page 199]]

                    Identifying and Marking Products



Sec. 70.50  Approval of official identification and wording on labels.

    Any label or packaging material which bears any official grade 
identification shall be used only in such a manner as the Administrator 
may prescribe, and such labeling or packaging materials, including the 
wording used on such materials, shall be approved in accordance with and 
conform with the provisions of this part 70 and the applicable 
provisions of Secs. 381.115 through 381.141 of 9 CFR part 381. Poultry 
Products Inspection Regulations. Labeling requirements for ready-to-cook 
rabbits, except for the product name, shall be the same as for ready-to-
cook poultry. For ready-to-cook rabbits the class name shall be shown on 
the label. The appropriate designation, ``young,'' ``mature,'' or 
``old,'' may be used as a prefix to the word ``rabbit'' in lieu of the 
class name.

[41 FR 23681, June 11, 1976; 41 FR 24694, June 18, 1976. Redesignated at 
42 FR 32514, June 27, 1977, and further redesignated at 46 FR 63203, 
Dec. 31, 1981]



Sec. 70.51  Form of grademark and information required.

    (a) Form of official identification symbol and grademark. (1) The 
shield set forth in Figure 1 of this section shall be the official 
identification symbol for purposes of this part and when used, imitated, 
or simulated in any manner in connection with poultry or rabbits, shall 
be deemed prima facia to constitute a representation that the product 
has been officially graded for the purposes of Sec. 70.2.
    (2) Except as otherwise authorized, the grademark permitted to be 
used to officially identify USDA consumer-graded poultry and rabbit 
products shall be of the form and design indicated in Figures 2 through 
4 of this section. The shield shall be of sufficient size so that the 
printing and other information contained therein is legible and in 
approximately the same proportion as shown in these figures.
    (3) The ``Prepared From'' grademark in Figure 5 of this section may 
be used to identify specialized poultry products for which there are no 
official U.S. grade standards, provided that these products are approved 
by the Agency and are prepared from U.S. Consumer Grade A poultry 
carcasses, parts, or other products that comply with the requirements of 
AMS Sec. 70.220. All poultry products shall be processed and labeled in 
accordance with 9 CFR part 381.
    (b) Information required on grademark. (1) Except as otherwise 
authorized by the Administrator, each grademark used shall include the 
letters ``USDA'' and the U.S. grade of the product it identifies, such 
as ``A Grade,'' as shown in Figure 2 of this section. Such information 
shall be printed with the shield and the wording within the shield in 
contrasting colors in a manner such that the design is legible and 
conspicuous on the material upon which it is printed.
    (2) Except as otherwise authorized, the bands of the shield in 
Figure 4 of this section shall be displayed in three colors, with the 
color of the top, middle, and bottom bands being blue, white, and red, 
respectively.
    (3) The ``Prepared From'' grademark in Figure 5 of this section may 
be any one of the designs shown in Figures 2 through 4 of this section. 
The text outside the shield shall be conspicuous, legible, and in 
approximately the same proportion and close proximity to the shield as 
shown in Figure 5 of this section.
    (c) Products that may be individually grademarked. The grademarks 
set forth in Figures 2 through 4 of this section may be applied 
individually to ready-to-cook poultry, rabbits, and specified poultry 
food products for which consumer grades are provided in the U.S. 
Classes, Standards, and Grades for Poultry and Rabbits, AMS 70.200 and 
70.300 et seq., respectively, or to the containers in which such 
products are enclosed for the purpose of display and sale to household 
consumers, only when such products qualify for the particular grade 
indicated in accordance with the consumer grades.

[[Page 200]]

[GRAPHIC] [TIFF OMITTED] TR30JY98.000


[63 FR 40628, July 30, 1998]

[[Page 201]]



Sec. 70.52  Prerequisites to packaging ready-to-cook poultry or rabbits identified with consumer grademarks.

    The official identification of any graded product as provided in 
Secs. 70.50 and 70.51 shall be done only under the supervision of a 
grader. The grader shall have supervision over the use and handling of 
all material bearing any official identification.



Sec. 70.54  Retention authorities.

    A grader may use retention tags or other devices and methods as 
approved by the Administrator for the identification and control of 
poultry or rabbit products which are not in compliance with the 
regulations or are held for further examination. Any such item shall not 
be released until in compliance with the regulations and retention 
identification shall not be removed by anyone other than a grader.



Sec. 70.55  Check grading officially identified product.

    Officially identified poultry or rabbit products may be subject to 
final check grading prior to their shipment. Such product found not to 
be in compliance with the assigned official grade shall be placed under 
a retention tag until it is regraded to comply with the grade assigned 
or until the official identification is removed.

                                 Reports



Sec. 70.60  Report of grading work.

    Reports of the work of grading carried on within official plants 
shall be forwarded to the Administrator by the grader in such manner as 
may be specified by the Administrator.



Sec. 70.61  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.

[47 FR 46071, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982]



Sec. 70.62  Reports 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 he has knowledge.

                            Fees and Charges



Sec. 70.70  Payment of fees and charges.

    (a) Fees and charges for any grading service shall be paid by the 
interested party making the application for such service in accordance 
with the applicable provisions of this section and Secs. 70.71 through 
70.78 inclusive. If so required by the grader, such fees and charges 
shall be paid in advance.
    (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 Service.
    (c) Fees and charges for any grading under a cooperative agreement 
with any State or person shall be paid in accordance with the terms of 
such cooperative agreement.



Sec. 70.71  On a fee basis.

    (a) Unless otherwise provided in this part, the fees to be charged 
and collected for any service performed, in accordance with this part, 
on a fee basis shall be based on the applicable rates specified in this 
section.
    (b) Fees for grading services will be based on the time required to 
perform such services for class, quality, quantity (weight test), or 
condition, whether ready-to-cook poultry, ready-to-cook rabbits, or 
specified poultry food products are involved. The hourly charge shall be 
$57.68 and shall include the time actually required to perform the work, 
waiting time, travel time, and any clerical costs involved in issuing a 
certificate.
    (c) Grading services rendered on Saturdays, Sundays, or legal 
holidays shall be charged for at the rate of $66.64 per hour. 
Information on legal holidays is available from the Supervisor.

[67 FR 78666, Dec. 26, 2002]

[[Page 202]]



Sec. 70.72  Fees for appeal grading, or examination or review of a grader's decision.

    The costs of an appeal grading, or examination or review of a 
grader's decision, will be borne by the appellant on a fee basis at 
rates set forth in Sec. 70.71, plus any travel and additional expenses. 
If the appeal grading, or examination or review of a grader's decision 
discloses that a material error was made in the original determination, 
no fee or expenses will be charged.

[63 FR 52133, Sept. 30, 1998]



Sec. 70.75  Travel expenses and other charges.

    Charges are to be made to cover the cost of travel and other 
expenses incurred by the Service in connection with rendering grading 
service. Such charges shall include the cost of transportation, per 
diem, and any other expenses.

[42 FR 2971, Jan. 14, 1977. Redesignated at 42 FR 32514, June 27, 1977, 
as amended at 46 FR 9, Jan. 2, 1981. Redesignated at 46 FR 63203, Dec. 
31, 1981]



Sec. 70.76  Charges for continuous poultry grading performed on a nonresident basis.

    Fees to be charged and collected for grading service on a 
nonresident grading basis shall be those provided in this section. The 
fees to be charged for any appeal grading shall be as provided in 
Sec. 70.72.
    (a) Charges. The charges for the grading of poultry and edible 
products thereof shall be paid by the applicant for the service and 
shall include items listed in this section as are applicable. Payment 
for the full cost of the grading service rendered to the applicant shall 
be made by the applicant to the Agricultural Marketing Service, U.S. 
Department of Agriculture (hereinafter referred to as ``AMS''). Such 
full costs shall comprise such of the items listed in this section as 
are due and included in the bill or bills covering the period or periods 
during which the grading service was rendered. Bills will be rendered by 
the 10th day following the end of the billing period in which the 
service was rendered and are payable upon receipt.
    (1) A charge for the salary and other costs, as specified in this 
paragraph, for each grader while assigned to a plant, except that no 
charge will be made when the assigned grader is temporarily reassigned 
by AMS to perform grading service for other than the applicant. Base 
salary rates will be determined on a national average for all official 
plants operating in States under a Federal Trust Fund Agreement where 
Federal graders, State graders, or a combination of Federal and State 
graders are used, by averaging the salary rates paid to each Federal or 
State grader assigned to such plants. Charges to plants are as follows:
    (i) For all regular hours of work scheduled and approved as an 
established tour of duty for a plant, the regular rate charge will be 
made. The regular rate charge will be determined by adding an amount to 
the base salary rate to cover the costs to AMS for such items as the 
Employer's Tax imposed under the U.S. Internal Revenue Code (26 U.S.C.) 
for Old Age and Survivor's Benefits under the Social Security System, 
retirement benefits, group life insurance, severance pay, sick leave, 
annual leave, additional salary and travel costs for relief grading 
service, accident payments, certain moving costs, and related servicing 
costs.
    (ii) All hours worked by an assigned grader or another grader in 
excess of the approved tour of duty, or worked on a nonscheduled 
workday, or actually worked on a holiday in excess of the tour of duty, 
will be considered as overtime. The charge for such overtime will be 150 
percent of the grader's base salary rate.
    (iii) For work performed on a holiday which is within the 
established tour of duty approved for a plant, the added charge will be 
the same as the grader's base rate.
    (iv) For work performed between 6 p.m. and 6 a.m., night 
differential charges (for regular, overtime, or holiday hours worked 
during this period) will be at the applicable rates established plus 10 
percent of the base rate.
    (v) For work performed on Sunday, Sunday differential charges (for 
regular, overtime, or holiday hours

[[Page 203]]

worked on Sunday) will be at the applicable rates established plus 25 
percent of the base rate.
    (vi) For all hours of work performed in a plant without an approved 
tour of duty, the charge will be one of the applicable hourly rates in 
Sec. 70.71.
    (2) An administrative service charge equal to 25 percent of the 
grader's total salary costs. A minimum charge of $260 will be made each 
billing period. The minimum charge also applies where an approved 
application is in effect and no product is handled.
    (b) Other provisions. (1) The applicant shall designate in writing 
the employees of the applicant who will be required and authorized to 
furnish each grader with such information as may be necessary for the 
performance of the grading service.
    (2) AMS will provide, as available, an adequate number of graders to 
perform the grading service. The number of graders required will be 
determined by AMS based on the expected demand for service.
    (3) The grading service shall be provided at designated locations 
and shall be continued until the service is suspended, withdrawn, or 
terminated by:
    (i) Mutual consent;
    (ii) Thirty (30) days' written notice by either the applicant or AMS 
specifying the date of suspension, withdrawal or termination;
    (iii) One (1) day's written notice by AMS to the applicant if the 
applicant fails to honor any invoice within thirty (30) days after date 
of invoice covering the cost of the grading service; or
    (iv) Action taken by AMS pursuant to the provisions of Sec. 70.38 or 
Sec. 70.40.
    (4) Graders will be required to confine their activities to those 
duties necessary in the rendering of grading service and such closely 
related activities as may be approved by AMS: Provided, That in no 
instance may the graders assume the duties of management.
    (5) When similar nonresident grading services are furnished to the 
same applicant under part 55 or part 56 of this chapter, the charges 
listed in this section shall not be repeated.

[41 FR 23681, June 11, 1976]

    Editorial Note: For Federal Register citations affecting Sec. 70.76, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 70.77  Charges for continuous poultry or rabbit grading performed on a resident basis.

    Fees to be charged and collected for any grading service, other than 
for an appeal grading, on a resident grading basis, shall be those 
provided in this section. The fees to be charged for any appeal grading 
shall be as provided in Sec. 70.72.
    (a) Charges. The charges for the grading of poultry and rabbits and 
edible products thereof shall be paid by the applicant for the service 
and shall include items listed in this section as are applicable. 
Payment for the full cost of the grading service rendered to the 
applicant shall be made by the applicant to the Agricultural Marketing 
Service U.S. Department of Agriculture (hereinafter referred to as 
``AMS''). Such full costs shall comprise such of the items listed in 
this section as are due and included in the bill or bills covering the 
period or periods during which the grading service was rendered. Bills 
will be rendered by the 10th day following the end of the billing period 
in which the service was rendered and are payable upon receipt.
    (1) An inauguration charge of $310 will be made at the time an 
application for service is signed, except when the application is 
required because of a change in name or ownership. If service is not 
installed within 6 months from the date the application is filed, or if 
service is inactive due to an approved request for removal of a 
grader(s) for a period of 6 months, the application will be considered 
terminated, but a new application may be filed at any time. In addition, 
there will be a charge of $300 if the application is terminated at the 
request of the applicant for reasons other than for a change in location 
within 12 months from the date of the inauguration of service.
    (2) A charge for the salary and other costs, as specified in this 
paragraph, for each grader while assigned to a plant, except that no 
charge will be made when the assigned grader is temporarily reassigned 
by AMS to perform

[[Page 204]]

grading service for other than the applicant. Base salary rates will be 
determined on a national average for all official plants operating in 
States under a Federal Trust Fund Agreement where Federal graders, State 
graders, or a combination of Federal and State graders are used, by 
averaging the salary rates paid to each Federal or State grader assigned 
to such plants. Charges to plants are as follows:
    (i) For all regular hours of work scheduled and approved as an 
established tour of duty for a plant, the regular rate charge will be 
made. The regular rate charge will be determined by adding an amount to 
the base salary rate to cover the costs to AMS for such items as the 
Employer's Tax imposed under the U.S. Internal Revenue Code (26 U.S.C.) 
for Old Age and Survivor's Benefits under the Social Security System, 
retirement benefits, group life insurance, severance pay, sick leave, 
annual leave, additional salary and travel costs for relief grading 
service, accident payments, certain moving costs, and related servicing 
costs.
    (ii) All hours worked by an assigned grader or another grader in 
excess of the approved tour of duty, or worked on a nonscheduled 
workday, or actually worked on a holiday in excess of the tour of duty 
will be considered as overtime. The charge for such overtime will be 150 
percent of the grader's base salary rate.
    (iii) For work performed on a holiday which is within the 
established tour of duty approved for a plant, the added charge will be 
the same as the grader's base rate.
    (iv) For work performed between 6 p.m. and 6 a.m., night 
differential charges (for regular, overtime, or holiday hours worked 
during this period) will be at the applicable rates established plus 10 
percent of the base rate.
    (v) For work performed on Sunday, Sunday differential charges (for 
regular, overtime, or holiday hours worked on Sunday) will be at the 
applicable rates established plus 25 percent of the base rate.
    (vi) For all hours of work performed in a plant without an approved 
tour of duty, the charge will be one of the applicable hourly rates in 
Sec. 70.71.
    (3) A charge at the hourly rates specified in Sec. 70.71, plus 
actual travel expenses incurred by AMS for intermediate surveys to firms 
without grading service in effect.
    (4) For poultry grading: An administrative service charge based upon 
the aggregate weight of the total volume of all live and ready-to-cook 
poultry handled in the plant per billing period computed in accordance 
with the following: Total pounds per billing period multiplied by 
$0.00037, except that the minimum charge per billing period shall be 
$260 and the maximum charge shall be $2,675. The minimum charge also 
applies where an approved application is in effect and no product is 
handled.
    (5) For rabbit grading: An administrative service charge equal to 25 
percent of the grader's total salary costs. A minimum charge of $260 
will be made each billing period. The minimum charge also applies where 
an approved application is in effect and no product is handled.
    (b) Other provisions. (1) The applicant shall designate in writing 
the employees of the applicant who will be required and authorized to 
furnish each grader with such information as may be necessary for the 
performance of the grading service.
    (2) AMS will provide, as available, an adequate number of graders to 
perform the grading service. The number of graders required will be 
determined by AMS based on the expected demand for service.
    (3) The grading service shall be provided at the designated plant 
and shall be continued until the service is suspended, withdrawn, or 
terminated by:
    (i) Mutual consent;
    (ii) Thirty (30) days' written notice by either the applicant or AMS 
specifying the date of suspension, withdrawal, or termination;
    (iii) One (1) day's written notice by AMS to the applicant if the 
applicant fails to honor any invoice within thirty (30) days after date 
of invoice covering the cost of the grading service; or
    (iv) Action taken by AMS pursuant to the provisions of Sec. 70.38 
through Sec. 70.40.

[[Page 205]]

    (4) Graders will be required to confine their activities to those 
duties necessary in the rendering of grading service and such closely 
related activities as may be approved by AMS: Provided, That in no 
instance may the graders assume the duties of management.

[41 FR 23681, June 11, 1976]

    Editorial Note: For Federal Register citations affecting Sec. 70.77, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 70.78  Fees or charges for grading service performed under cooperative agreement.

    Fees or charges to be made to an applicant for any grading service 
which differ from those listed in Secs. 70.70 through 70.77, shall be 
provided for by a cooperative agreement.

                                 Grading



Sec. 70.80  General.

    Whenever grading service is provided for examination of quality, 
condition, or for test weighing on a representative sample basis, such 
sample shall be drawn and consist of not less than the minimum number of 
containers indicated in the following table. The number of 
representative samples for large bulk containers (combo bins, tanks, 
etc.) may be reduced by one-half. For quality or condition, all of the 
poultry and rabbits in each representative sample shall be examined 
except for individual ready-to-cook carcasses weighing under 6 pounds in 
large bulk containers. For individual carcasses weighing under 6 pounds 
in large bulk containers, 100 carcasses shall be examined for quality or 
condition. Procedures for test weighing shall be in accordance with 
those prescribed by the Administrator.

------------------------------------------------------------------------
             Containers in lot                  Containers in sample
------------------------------------------------------------------------
1-4.......................................  All.
5-50......................................  4.
51-100....................................  5.
101-200...................................  6.
201-400...................................  7.
401-600...................................  8.
For each additional 100 containers, or      Include one additional
 fraction thereof, in excess of 600          container.
 containers.
------------------------------------------------------------------------


[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 51 
FR 17280, May 9, 1986; 63 FR 40630, July 30, 1998]



Sec. 70.81  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 U.S. Department of 
Agriculture, 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, may the individual container, carcass, part, or poultry 
food product be identified with the appropriate official letter 
grademark. Checkgrading will 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.
    (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 will 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.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 51 
FR 17281, May 9, 1986]

[[Page 206]]

                          Grading Certificates



Sec. 70.90  Forms.

    Grading certificates (including appeal grading certificates and 
regrading certificates) shall be issued on forms approved by the 
Administrator.



Sec. 70.91  Issuance and disposition.

    (a) Resident grading basis. Certificates will be issued only upon a 
request therefor by the applicant or the Service. When requested, a 
grader shall issue a certificate covering product graded by him. 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 
his authorized agent, issue a grading certificate covering each product 
graded by him. 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.
    (c) The original and a copy of each grading certificate, issued 
pursuant to Secs. 70.90 through 70.92, 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 
person designated by him. Other copies shall be filed and retained in 
accordance with the disposition schedule for grading program records.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 30514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 47 
FR 46071, Oct. 15, 1982; 47 FR 54421, Dec. 3, 1982; 51 FR 17281, May 9, 
1986]



Sec. 70.92  Advance information.

    Upon the request of an applicant, all or part of the contents of any 
grading certificate issued to such applicant may be telephoned or 
telegraphed to him, or to any person designated by him, at his expense.

                     Appeal of a Grading or Decision



Sec. 70.100  Who may request an appeal grading or review of a grader's decision.

    An appeal grading may be requested by any interested party who is 
dissatisfied with the determination by a grader of the class, quality, 
quantity, or condition of any product as evidenced by the USDA grademark 
and accompanying label, or as stated on a grading certificate, and a 
review may be requested by the operator of an official plant with 
respect to a grader's decision on any other matter relating to grading 
in an official plant.



Sec. 70.101  Where to file an appeal.

    (a) Appeal from resident grader's grading or decision in an official 
plant. Any interested party who is not satisfied with the determination 
of the class, quality, quantity, or condition of product which was 
graded by a grader in an official plant and has not left such plant, and 
the operator of any official plant who is not satisfied with a decision 
made by a grader or any other matter relating to grading in such plant, 
may request an appeal grading or review of the decision by filing such 
request with the grader's immediate supervisor.
    (b) All other appeal requests. Any interested party who is not 
satisfied with the determination of the class, quality, quantity, or 
condition of product which has left the official plant where it was 
graded, or which was graded other than in an official plant, may request 
an appeal grading by filing such request with the regional director in 
the area where the product is located or with the Chief of the Grading 
Branch.



Sec. 70.102  How to file an appeal.

    Any request for an appeal grading or review of a grader's decision 
may be made orally or in writing. If made orally, written confirmation 
may be required. The applicant shall clearly state the reasons for 
requesting the appeal service, and a description of the product or the 
decision which is questioned. If such appeal request is based on the 
results stated on an official certificate, the original and all 
available

[[Page 207]]

copies of the certificate shall be returned to the appeal grader 
assigned to make the appeal grading.



Sec. 70.103  When an application for an appeal grading may be refused.

    When it appears to the official with whom an appeal request is filed 
that the reasons given in the request for an appeal grading are 
frivolous or not substantial, or that the quality or condition of the 
product has undergone a material change since the original grading, or 
that the original lot has changed in some manner, or the Act or the 
regulations in this part have not been complied with, the applicant's 
request for the appeal grading may be refused. In such case, the 
applicant shall be promptly notified of the reason(s) for such refusal.



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 
a licensed grader assigned by the immediate supervisor other than the 
grader whose grading or decision is being appealed.
    (b) Appeal gradings requested under Sec. 70.101(b) shall be 
performed by a grader other than the grader who originally graded the 
product.
    (c) Whenever practical, an appeal grading shall be conducted jointly 
by two graders. The assignment of the grader(s) who will make the appeal 
grading requested under Sec. 70.101(b) shall be made by the regional 
director or the Chief of the Grading Branch.



Sec. 70.105  Procedures for appeal gradings.

    (a) When all of the originally graded and identified samples are 
available, the appeal sample shall consist of such samples plus an equal 
number of samples.
    (b) When the original samples are not available, the appeal sample 
size for the lot shall consist of double the samples required in 
Sec. 70.80.
    (c) Poultry or rabbits in an unfrozen state must be adequately 
protected and kept in good condition until the appeal grading is 
performed.
    (d) Overwraps on frozen poultry or rabbits shall be removed from all 
birds or rabbits in the sample prior to appeal grading for quality or to 
determine the class.
    (e) When the appeal is based on grading or class determination 
factors, each frozen carcass shall be defrosted prior to conducting the 
appeal grading. Whether defrosting poultry or rabbit carcasses for other 
types of appeals will be required by the appeal grader, will depend upon 
the reason for the appeal.



Sec. 70.106  Appeal grading certificates.

    Immediately after an appeal grading is completed, an appeal 
certificate shall be issued to show that the original grading was 
sustained or was not sustained. Such certificate shall supersede any 
previously issued certificate for the product involved and shall clearly 
identify the number and date of the superseded certificate. The issuance 
of the appeal certificate may be withheld until any previously issued 
certificate and all copies have been returned when such action is deemed 
necessary to protect the interest of the Government. When the appeal 
grader assigns a different grade to the lot, the existing grademark 
shall be changed or obliterated as necessary. When the appeal grader 
assigns a different class or quantity designation to the lot, the 
labeling shall be corrected.

       Sanitary Requirements, Facilities, and Operating Procedures



Sec. 70.110  Requirements for sanitation, facilities, and operating procedures in official plants.

    (a) The requirements for sanitation, facilities, and operating 
procedures in official plants shall be the applicable provisions stated 
in 9 CFR part 381 for poultry, and for rabbits the requirements shall be 
the applicable provisions stated in 9 CFR part 354.
    (b) With respect to grading services, there shall be a minimum of 
100-foot candles of light intensity at grading stations; and acceptable 
means, when necessary, of maintaining control and identity of products 
segregated for quality, class, condition, weight, lot, or any other 
factor which may be used to

[[Page 208]]

distinguish one type of product from another.

[41 FR 23681, June 11, 1976. Redesignated at 42 FR 32514, June 27, 1977, 
and further redesignated at 46 FR 63203, Dec. 31, 1981, as amended at 51 
FR 17281, May 9, 1986; 63 FR 40630, July 30, 1998]

Subparts B-C [Reserved]



PART 75--REGULATIONS FOR INSPECTION AND CERTIFICATION OF QUALITY OF AGRICULTURAL AND VEGETABLE SEEDS--Table of Contents




                               Definitions

Sec.
75.1  Meaning of words.
75.2  Terms defined.

                             Administration

75.3  Authority.
75.4  Federal and State cooperation.
75.5  Regulations not applicable for certain purposes.
75.6  Nondiscrimination.

                               Inspection

75.7  Inspection in accordance with methods prescribed or approved.
75.8  Basis of service.
75.9  Who may obtain service.
75.10  How to make application.
75.11  Content of application.
75.12  When application deemed filed.
75.13  When application may be rejected.
75.14  When application may be withdrawn.
75.15  Authority of agent.
75.16  Accessibility of seeds.
75.17  Testing.
75.18  Sampling.
75.19  Seed lot inspection.
75.20  Submitted sample inspection.
75.21  Grain sample inspection.
75.22  Form of inspection certificate.
75.23  Issuance of inspection certificate.
75.24  Disposition of inspection certificate.
75.25  Issuance of corrected certificate.

                            Appeal Inspection

75.26  When appeal inspection may be requested.
75.27  How to file an appeal.
75.28  When a request for an appeal inspection may be withdrawn.
75.29  When an appeal may be refused.
75.30  Who shall perform appeal inspection.
75.31  Appeal inspection certificate.

                         Licensing of Inspectors

75.32  Who may become licensed inspector.
75.33  Suspension or revocation of license of inspector.
75.34  Surrender of license.

                  Sampling Provisions and Requirements

75.35  Obtaining samples for lot inspections.
75.36  Representative sample.
75.37  Submitted samples.
75.38  Lot inspections.
75.39  Use of file samples.
75.40  Protecting samples.

                            Fees and Charges

75.41  General.
75.42  Sampling and sealing.
75.43  Laboratory testing.
75.44  When application rejected or withdrawn.
75.45  Charge for appeals.
75.46  When appeal refused or withdrawn.
75.47  For certificates.

                              Miscellaneous

75.48  Identification number.
75.49  OMB control numbers.

    Authority: 7 U.S.C. 1622 and 1624.

    Source: 49 FR 18724, May 2, 1984, unless otherwise noted.

                               Definitions



Sec. 75.1  Meaning of words.

    Words used in the regulations in this part in the singular form 
shall be deemed to import the plural and vice versa, as the case may 
demand.



Sec. 75.2  Terms defined.

    For the purpose of these regulations unless the context otherwise 
requires, the following terms shall be construed, respectively, as 
follows:
    (a) Act means the Agricultural Marketing Act of 1946, as amended (7 
U.S.C. 1621 et seq.).
    (b) Regulations means the regulations in this part.
    (c) Department means the United States Department of Agriculture 
(USDA).
    (d) Secretary means the Secretary of the United States Department of 
Agriculture, or any officer or employee of the Department to whom 
authority has been delegated to act in the Secretary's stead.
    (e) Administrator means the Administrator of the Agricultural 
Marketing Service (AMS) of the Department, or any other officer or 
employee of AMS to whom authority has been delegated to act in the 
Administrator's stead.

[[Page 209]]

    (f) Division means the Warehouse and Seed Division (WSD), AMS.
    (g) Director means the Director of the Division or any other officer 
or employee of the Division to whom authority has been delegated to act 
in the Director's stead.
    (h) Person means any individual, partnership, association, business 
trust, corporation, entity, or any other organized group of persons, 
whether incorporated or not.
    (i) Seed means any agricultural or vegetable seed.
    (j) Interested Party means any person financially interested in a 
transaction involving seed.
    (k) Applicant means an interested party who requests any inspection 
service with respect to seed.
    (l) Authorized agent means an agent to whom authority to represent a 
person or government agency has been given by that person or government 
agency through delegation, contract or cooperative agreement, or other 
means.
    (m) Memorandum of Understanding means a written plan between AMS and 
a State for carrying out their separate activities in a project of 
mutual interest to the parties involved.
    (n) Inspector means a licensed employee of a State authorized 
pursuant to a Memorandum of Understanding or an employee of the 
Department authorized by the Director, to draw samples of seeds, seal 
containers, inspect records, test seeds for quality, issue certificates 
and reports, and bill for services.
    (o) Inspection means sampling seeds, sealing containers, testing 
seeds for quality and reviewing records.
    (p) Appeal inspector means an inspector or other person designated 
or authorized by the Division to perform appeal inspections under the 
Act and regulations in this subpart.
    (q) Certificate means a certificate issued under the Act and the 
regulations in this subpart.

                             Administration



Sec. 75.3  Authority.

    The Director is charged with the administration of the provisions of 
the regulations and the Act insofar as they relate to the subject matter 
of the regulations, under the supervision of the Secretary and the 
Administrator.



Sec. 75.4  Federal and State cooperation.

    Pursuant to the Act, the Administrator is authorized to cooperate 
with the appropriate State agencies in carrying out provisions of the 
Act and these regulations through Memoranda of Understanding. The 
Memorandum of Understanding shall specify the duties to be performed by 
the parties concerned with each party directing its own activities and 
utilizing its own resources.



Sec. 75.5  Regulations not applicable for certain purposes.

    The regulations do not apply to the inspection of grain in the 
United States under the U.S. Grain Standards Act, as amended (7 U.S.C. 
71 et seq.), except to the extent that official grain samples received 
from the Federal Grain Inspection Service (FGIS) shall be examined for 
the presence of specified weed and crop seeds upon the request of FGIS.



Sec. 75.6  Nondiscrimination.

    The conduct of all services under these regulations shall be 
accomplished without discrimination as to race, color, religion, sex, or 
national origin.

                               Inspection



Sec. 75.7  Inspection in accordance with methods prescribed or approved.

    Inspection of seed shall be rendered pursuant to these regulations 
and under such conditions and in accordance with the methods of either 
the Association of Official Seed Analysts (AOSA) or the International 
Seed Testing Association (ISTA).



Sec. 75.8  Basis of service.

    The regulations provide for inspection services pursuant to the Act. 
Seeds shall be inspected in accordance with the methods of either the 
Association of Official Seed Analysts (AOSA) or the International Seed 
Testing Association (ISTA); provided, that limitations in these rules 
respecting maximum lot size will not be observed and,

[[Page 210]]

provided further, that certification as to origin may be based on 
examination of records and certification of other seed certifying 
agencies.



Sec. 75.9  Who may obtain service.

    An application for inspection service may be made by any interested 
party or his authorized agent.



Sec. 75.10  How to make application.

    An application for service shall be confirmed in writing and 
addressed to the Federal Seed Laboratory, WSD, AMS, USDA, Beltsville, 
Maryland 20705.



Sec. 75.11  Content of application.

    An application for service shall include the following information; 
(a) The date of application; (b) the kind and quantity of seed, and 
test(s) to be performed; (c) the methods and instructions for the 
inspection of the seed (either Association of Official Seed Analysts 
(AOSA) or International Seed Testing Association (ISTA) rules); (d) the 
name and address of the applicant and, if made by an authorized agent; 
and (e) such further information relating to the inspection as may be 
required.



Sec. 75.12  When application deemed filed.

    An application shall be deemed filed when received by the Division 
or the Federal Seed Laboratory.



Sec. 75.13  When application may be rejected.

    Any application for service may be rejected by the Director (a) for 
noncompliance with the Act or the regulations relating to applications 
for service in this subpart, or (b) when it is not practicable to 
provide the service. Each such applicant shall be promptly notified in 
writing.



Sec. 75.14  When application may be withdrawn.

    An application may be withdrawn at any time before the requested 
service is rendered. The applicant will remain responsible for payment 
of expenses incurred in connection therewith as provided in Sec. 75.44.



Sec. 75.15  Authority of agent.

    Proof of authority of any person making an application as an agent 
may be required in the discretion of the official receiving the 
application.



Sec. 75.16  Accessibility of seeds.

    Each lot of seed for which a lot inspection is requested shall be 
placed by the applicant so as to permit the entire lot to be sampled and 
a representative sample to be obtained as required.



Sec. 75.17  Testing.

    Upon request by the applicant, tests may be made for kind, variety, 
germination, purity, weed seeds, disease pathogens, treatment, moisture, 
and other special tests, or any combination thereof for which prescribed 
methods of testing are established. The tests shall be in accordance 
with the methods of either the Association of Official Seed Analysts 
(AOSA) or the International Seed Testing Association (ISTA) as requested 
by the applicant.



Sec. 75.18  Sampling.

    Sampling, when requested by the applicant, shall be in accordance 
with the methods of either the Association of Official Seed Analysts 
(AOSA) or the International Seed Testing Association (ISTA), depending 
upon the test method requested by the applicant.



Sec. 75.19  Seed lot inspection.

    A lot inspection shall be made by obtaining a representative sample 
from a specified quantity of seed identified with a distinguishing mark 
or number to appear on all containers in the lot, and performing such 
test(s) as may be requested by the applicant. The identification mark or 
number must be approved by the inspector and will appear on the 
certificate to be issued.



Sec. 75.20  Submitted sample inspection.

    A sample inspection shall be made by testing a sample of seed 
submitted by an applicant for inspection.



Sec. 75.21  Grain sample inspection.

    A sample inspection shall be performed by examining official grain 
samples received from FGIS to identify

[[Page 211]]

specified weed and crop seeds upon the request of FGIS.



Sec. 75.22  Form of inspection certificate.

    Inspection certificates shall be approved by the Director as to 
their form. No correction, erasure, or other change shall be made in the 
information on a certificate.



Sec. 75.23  Issuance of inspection certificate.

    After an inspection has been completed, an inspection certificate 
shall be issued showing the results of the inspection in accordance with 
paragraph (a) or (b) of this section.
    (a) Lot inspection certificate. A lot inspection certificate shall 
be issued to include the name of the inspector sampling and sealing the 
seed lot, the analysis results from testing the sample, the identifying 
mark or number which has been approved by the inspector to appear on 
each container in the seed lot, and any other factual information 
pertinent to the inspection.
    (b) Sample inspection certificate. A sample inspection certificate 
shall be issued to show the results of the inspection of a sample of 
seed or grain submitted by an interested party. Each sample inspection 
certificate shall state the results of the inspection that applies only 
to the sample described in the certificate.
    (c) General authorization to issue certificates. Certificates for 
inspections may be issued by any inspector authorized by the Director to 
perform the inspection covered by the certificate.
    (d) Name requirements. The name and signature of the person who 
issued the inspection certificate shall be shown on the certificate. The 
original certificate must be signed, and the signature or a stamped 
facsimile shall be shown on each copy.



Sec. 75.24  Disposition of inspection certificate.

    Upon issuance, the original and one copy of each inspection 
certificate shall be delivered or mailed to the applicant or otherwise 
delivered or mailed in accordance with the applicant's instructions. One 
copy of each inspection certificate shall be filed in the Federal Seed 
Laboratory. In case of a lost or destroyed certificate, a duplicate 
thereof labeled as such may be issued under the same number, date, and 
name.



Sec. 75.25  Issuance of corrected certificate.

    (a) If any error is made in an inspection, a corrected inspection 
certificate may be issued.
    (b) The original and copies of the corrected certificate shall be 
issued as promptly as possible to the same interested persons who 
received the incorrect certificate.
    (c) The corrected certificate shall supersede the incorrect 
inspection certificate previously issued. The corrected certificate 
shall clearly identify, by certificate number and date, the incorrect 
certificate which it supersedes.
    (d) The original and all copies of the superseded incorrect 
certificate shall be obtained by the Director, if possible. If it is not 
possible to obtain the original and all copies of the superseded 
certificate, to the extent possible, all parties involved will be 
notified to prevent misuse of the superseded certificate and the 
corrected certificate so marked as to the outstanding certificate.

                            Appeal Inspection



Sec. 75.26  When appeal inspection may be requested.

    A request for an appeal inspection may be made by any interested 
party regarding the results of an inspection as stated on an inspection 
certificate. Such request shall be made within thirty (30) days 
following the day on which an inspection certificate was issued.



Sec. 75.27  How to file an appeal.

    Any request for an appeal inspection may be made orally or in 
writing to the Federal Seed Laboratory. If made orally, written 
confirmation is required. The applicant shall clearly state the reasons 
for requesting the appeal service. The original and all available copies 
of the certificate shall be returned to the appeal inspector assigned to 
make the appeal inspection.

[[Page 212]]



Sec. 75.28  When a request for an appeal inspection may be withdrawn

    A request for an appeal inspection may be withdrawn by the applicant 
at any time before the appeal inspection is performed: Provided, that, 
the appellant shall pay any expenses incurred in connection with the 
appeal as provided in Sec. 75.46.



Sec. 75.29  When an appeal may be refused.

    A request for an appeal inspection may be refused if:
    (a) The reasons for an appeal inspection are frivolous or not 
substantial;
    (b) The quality or condition of the seed has been altered since the 
inspection covering the seed on which the appeal inspection is 
requested;
    (c) The lot in question in a lot inspection is not or cannot be made 
accessible for sampling;
    (d) The lot relative to which appeal inspection is requested cannot 
be positively identified by the inspection as the lot from which drawn 
samples were previously inspected in a lot inspection; or
    (e) The application is not in compliance with the regulations; and
    (f) Such applicant shall be notified promptly of the reason for such 
refusal.



Sec. 75.30  Who shall perform appeal inspection.

    An appeal inspection shall be performed by an inspector (other than 
the one from whose inspection the appeal is requested) authorized for 
this purpose by the Director.



Sec. 75.31  Appeal inspection certificate.

    After an appeal inspection has been completed, an appeal inspection 
certificate shall be issued showing the results of such appeal 
inspection; and such certificate shall supersede the inspection 
certificate previously issued for the seed involved. Each appeal 
inspection certificate shall clearly identify the number and date of the 
inspection certificate which it supersedes. The superseded certificate 
shall become null and void upon the issuance of the appeal inspection 
certificate and shall no longer represent the quality or condition of 
the seed described therein. The inspector issuing an appeal inspection 
certificate shall forward notice of such issuance to such persons as 
considered necessary to prevent misuse of the superseded certificate if 
the original and all copies of such superseded certificate have not 
previously been delivered to the inspector issuing the appeal inspection 
certificate. The appeal inspection certificate shall be marked as to the 
existence of the outstanding certificate. The provisions in the 
regulations concerning forms of certificates and disposition of 
certificates shall apply to appeal inspection certificates, except that 
copies of such appeal inspection certificates shall be furnished to all 
interested parties who received copies of the superseded certificate.

                         Licensing of Inspectors



Sec. 75.32  Who may become licensed inspector.

    Any person nominated by a cooperating State and who is found to have 
the necessary qualifications may be licensed by the Director as an 
inspector to perform such duties of inspection as specified by the 
Memorandum of Understanding. Such a license shall bear the signature of 
an authorized employee of the Department. A licensed inspector shall 
perform duties pursuant to the regulations in accordance with 
instructions issued or approved by the Director.



Sec. 75.33  Suspension or revocation of license of inspector.

    Pending final action by the Administrator, the Director may suspend, 
whenever it is deemed that such action is necessary to assure that any 
service provided is performed properly, the license of any inspector, 
issued pursuant to the regulations by giving notice of such suspension 
to the respective licensee, accompanied by a statement of the reasons 
therefore. Within 7 days after receipt of notice and statement of 
reasons by a licensee, an appeal may be filed in writing with the 
Administrator supported by any argument or evidence as to why the 
license should not be suspended. After expiration of the 7-day period 
and consideration of such argument and evidence, the Administrator

[[Page 213]]

shall take such action as deemed appropriate with respect to a 
suspension or revocation.



Sec. 75.34  Surrender of license.

    Upon termination of service as an inspector or suspension or 
revocation of such license, such licensee shall surrender the license 
immediately to the Federal Seed Laboratory.

                  Sampling Provisions and Requirements



Sec. 75.35  Obtaining samples for lot inspections.

    Samples of seed for lot inspections may be obtained by licensed 
inspectors or authorized employees of the Department.



Sec. 75.36  Representative sample.

    No lot inspection sample shall be deemed representative of a lot of 
seed unless the sample (a) has been obtained by a licensed inspector or 
an authorized employee of the Department; (b) is of the size prescribed 
in the instructions; and (c) has been obtained, handled, and submitted 
in accordance with the Association of Official Seed Analysts (AOSA) or 
the International Seed Testing Association (ISTA) procedures.



Sec. 75.37  Submitted samples.

    Submitted samples may be obtained by or for any interested person. 
(Instructions for sampling seed may be obtained upon request to the 
Director or the Federal Seed Laboratory.)



Sec. 75.38  Lot inspections.

    Each lot inspection shall be made on the basis of a representative 
sample obtained from that lot of seed by a licensed inspector or an 
authorized employee of the Department. Each lot of seed which is offered 
for lot inspection shall be sealed at the time of sampling in accordance 
with methods and procedures of the Association of Official Seed Analysts 
(AOSA) or the International Seed Testing Association (ISTA).



Sec. 75.39  Use of file samples.

    (a) File samples which are retained by inspection personnel in 
accordance with the regulations may be deemed representative for appeal 
inspections: Provided, that (1) the samples have remained in the custody 
of the inspection personnel who certificated the inspection; and (2) the 
inspection personnel who performed the inspection and the inspection 
personnel who are to perform the appeal inspection determine that the 
sample was representative of the seed at the time of the inspection and 
that the quality or condition of the seed in the sample and in the lot 
has not changed since the time of the inspection.
    (b) Upon request of the applicant, and if practicable, a new sample 
may be obtained and examined as a part of an appeal inspection.



Sec. 75.40  Protecting samples.

    Inspection personnel shall protect each sample from manipulation, 
substitution, and improper or careless handling which would deprive the 
sample of its representative character from the time of collection until 
the inspection is completed and the file sample has been discarded.

                            Fees and Charges



Sec. 75.41  General.

    Fees and charges for inspection services performed by Federal 
employees shall cover the cost of performing the service. Fees shall be 
for actual time required to render the service, calculated to the 
nearest 15-minute period except that a minimum of 1 hour shall apply for 
testing and a 2-hour minimum shall apply for sampling and sealing. Fees 
and charges shall be at the rate of $52.00 per hour. (Cost estimates may 
be obtained upon request to the Director or the Federal Seed 
Laboratory.)

[49 FR 18724, May 2, 1984, as amended at 56 FR 51320, Oct. 11, 1991; 58 
FR 64101, Dec. 6, 1993; 60 FR 21035, May 1, 1995; 65 FR 15832, Mar. 24, 
2000; 67 FR 11384, Mar. 14, 2002]



Sec. 75.42  Sampling and sealing.

    (a) Fees for inspection services provided by licensed inspectors may 
be charged by States participating in the program at rates established 
by the individual States.

[[Page 214]]

    (b) When onsite inspection services are performed by Federal 
employees at the request of the applicant:
    (1) Fees for onsite inspections for sampling and sealing shall 
include the time for actual sampling and sealing, standby at the service 
site, travel time and actual travel costs to and from the site, and a 
per diem charge if the employee performing the service is paid per diem 
in accordance with existing travel regulations as appear in Agricultural 
Travel Regulations, including the Federal Travel Regulations, DM 2300-1.
    (2) Hourly rates shall begin when the inspector begins travel to the 
service site and end when the inspector arrives back at his official 
station or residence, computed to the nearest quarter hour, less meal 
time, if any.
    (3) A 2-hour minimum shall be charged for each onsite inspection.



Sec. 75.43  Laboratory testing.

    Fees for testing each sample shall include the time required for 
actual testing, preparation of test records, issuing the certificate, 
and filing of samples and documents, with:
    (a) Charges billed at the hourly rate in increments of 15 minutes.
    (b) A minimum fee of 1 hour per sample for testing shall be charged.
    (c) The charge for a preliminary report issued prior to completion 
of testing shall be $13.00 and billed in accordance with paragraph (a) 
of this section.

[49 FR 18724, May 2, 1984, as amended at 67 FR 11384, Mar. 14, 2002]



Sec. 75.44  When application rejected or withdrawn.

    When an application for inspection is rejected in accordance with 
Sec. 75.13 or withdrawn in accordance with Sec. 75.14, the applicant 
will be required to pay applicable fees for the time used by an 
inspector and other expenses incurred in connection with such 
application prior to its rejection or withdrawal.



Sec. 75.45  Charge for appeals.

    A charge of 1 hour shall be made for each appeal filed under 
Sec. 75.26, and the fee for an appeal inspection shall equal the fee for 
the original inspection from which the appeal is taken, plus any charges 
for travel or other expenses incurred in performing the appeal: 
Provided, That when a material error in the certificate or sample from 
which the appeal is taken is found by the appeal inspector the charge 
and fee shall be waived.



Sec. 75.46  When appeal refused or withdrawn.

    When an appeal is refused in accordance with Sec. 75.29 or withdrawn 
in accordance with Sec. 75.28, the applicant will be required to pay for 
the time used by the appeal inspector and other expenses incurred in 
connection with such appeal prior to its denial, dismissal, or 
withdrawal.



Sec. 75.47  For certificates.

    A charge of $13.00 per certificate will be made for copies of 
certificates other than those required to be distributed in Sec. 75.23 
and for the issuance of a duplicate certificate in accordance with 
Sec. 75.24 and an appeal certificate in Sec. 75.31.

[49 FR 18724, May 2, 1984, as amended at 56 FR 51320, Oct. 11, 1991; 58 
FR 64101, Dec. 6, 1993; 60 FR 21035, May 1, 1995; 65 FR 15832, Mar. 24, 
2000; 67 FR 11384, Mar. 14, 2002]

                              Miscellaneous



Sec. 75.48  Identification number.

    The Director may require the use of official identification numbers 
in connection with seed certificated or sampled under the Act. When 
identification numbers are required, they shall be specified by the 
Director and shall be attached to, or stamped, printed, or stenciled on 
the lot of seed certificated or sampled in a manner specified by the 
Director.



Sec. 75.49  OMB control numbers.

    The control number assigned to the information collection 
requirements by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 is as follows: OMB Control No. 0581-
0140.

[56 FR 51320, Oct. 11, 1991]

[[Page 215]]



         SUBCHAPTER D--EXPORT AND DOMESTIC CONSUMPTION PROGRAMS





PART 80--FRESH RUSSET POTATO DIVERSION PROGRAM--Table of Contents




            Subpart A--Fresh Russet Potato Diversion Program

Sec.
80.1  Applicability and payments.
80.2  Administration and disputes.

Subpart B [Reserved]

    Authority: 7 U.S.C. 612c.

    Source: 66 FR 58349, Nov. 21, 2001, unless otherwise noted.



            Subpart A--Fresh Russet Potato Diversion Program



Sec. 80.1  Applicability and payments.

    Payment be received or retained with respect to diversions of 2001 
Fresh Russet potatoes as allowed by the Administrator of the 
Agricultural Marketing Service (AMS), of the Department of Agriculture 
(USDA) using standards set out for consideration in the relevant Federal 
Register notice published on April 13, 2001 (66 FR 19099) except that 
total funding for the program may be an amount up to $12 million. If a 
person has or will receive such a payment and there is a failure to 
comply with the conditions for payment or any condition for payment set 
out in the application, or that otherwise applies, all sums received by 
a person shall be returned with interest. No other claims for payment by 
producers or other persons under this part based upon their diversion of 
potatoes, shall be allowed except as approved by the Administrator of 
the Agricultural Marketing Service (AMS), of the Department of 
Agriculture (USDA). In all cases, the Administrator may set such other 
conditions for payment as may be allowable and serve the accomplishment 
of the goals of the program.



Sec. 80.2  Administration and disputes.

    Administration of this part shall be under the supervision of the 
Deputy Administrator, Fruit and Vegetable Programs, AMS, and implemented 
for AMS through the Farm Service Agency (FSA) of USDA. Disputes shall be 
resolved by FSA by using regulations found in 7 CFR part 780.



PART 81--PRUNE/DRIED PLUM DIVERSION PROGRAM--Table of Contents




Sec.
81.1  Applicability.
81.2  Administration.
81.3  Definitions.
81.4  Length of program.
81.5  General requirements.
81.6  Rate of payment; total payments.
81.7  Eligibility for payment.
81.8  Application and approval for participation.
81.9  Inspection and certification of diversion.
81.10  Claim for payment.
81.11  Compliance with program provisions.
81.12  Inspection of premises.
81.13  Records and accounts.
81.14  Offset, assignment, and prompt payment.
81.15  Appeals.
81.16  Refunds; joint and several liability.
81.17  Death, incompetency, or disappearance.

    Authority: 7 U.S.C. 612c.

    Source: 67 FR 11391, Mar. 14, 2002, unless otherwise noted.



Sec. 81.1  Applicability.

    Pursuant to the authority conferred by Section 32 of the Act of 
August 24, 1935, as amended (7 U.S.C. 612c) (Section 32), the Secretary 
of Agriculture will make payment to California producers who divert 
prune/plums by removing trees on which the fruit is produced in 
accordance with the terms and conditions set forth herein.



Sec. 81.2  Administration.

    The program will be administered under the direction and supervision 
of the Deputy Administrator, Fruit and Vegetable Programs, Agricultural 
Marketing Service (AMS), United States Department of Agriculture (USDA), 
and will be implemented by the Prune Marketing Committee (Committee).

[[Page 216]]

The Committee, or its authorized representatives, does not have 
authority to modify or waive any of the provisions of this subpart. Such 
power shall rest solely with the Administrator of AMS, or delegatee. The 
Administator or delegatee, in the Administrator's or delegatee's sole 
discretion can modify deadlines or other conditions, as needed or 
appropriate to serve the goals of the program. In all cases, payments 
under this part are subject to the availability of funds.



Sec. 81.3  Definitions.

    (a) Administrator means the Administrator of AMS.
    (b) AMS means the Agricultural Marketing Service of the U.S. 
Department of Agriculture.
    (c) Application means ``Application for Prune Tree Removal 
Program.''
    (d) Committee means the Prune Marketing Committee established by the 
Secretary of Agriculture to locally administer Federal Marketing Order 
No. 993 (7 CFR Part 993), regulating the handling of dried prunes 
produced in California.
    (e) Diversion means the removal of prune-plum trees after approval 
of applications by the Committee through June 30, 2002.
    (f) Producer means an individual, partnership, association, or 
corporation in the State of California who grows prune/plums that are 
dehydrated into dried plums for market.
    (g) Removal means that the prune-plum trees are no longer standing 
and capable of producing a crop, and the roots of the trees have been 
removed. The producer can accomplish removal by any means the producer 
desires. Grafting another type of tree to the rootstock remaining after 
removing the prune/plum tree would not qualify as removal under this 
program.



Sec. 81.4  Length of program.

    Producers diverting prune/plums by removing prune-plum trees must 
complete the diversion no later than June 30, 2002.



Sec. 81.5  General requirements.

    (a) To be eligible for this program, the trees to be removed must 
have yielded at least 1.5 tons of dried prune/plums per net-planted acre 
during the 1999 or 2000 crop year. A net-planted acre is the actual 
acreage planted with prune-plum trees. Abandoned orchards and dead trees 
will not qualify. In new orchards diverted, qualifying trees must be at 
least 5 years of age (6th leaf), contain at least two scaffolds, and be 
capable of producing at least 1.5 tons per net-planted acre. The block 
of trees for removal must be easily definable by separations from other 
blocks and contain at least 1,000 eligible trees or comprise an entire 
orchard.
    (b) Any grower participating in this program must agree not to 
replant prune-plum trees on the land cleared under this program through 
June 30, 2004. Participants bear responsibility for ensuring that trees 
are not replanted, whether by themselves, or by successors to the land, 
or by others, until after June 30, 2004. If trees are replanted before 
June 30, 2004, by any persons, participants must refund any USDA 
payment, with interest, made in connection with this tree removal 
program.



Sec. 81.6  Rate of payment; total payments.

    (a) The rate of payment for each eligible prune-plum tree removed 
will be $8.50 per tree.
    (b) Payment under paragraph (a) of this section will be made after 
tree removal has been verified by the staff of the Committee.
    (c) The $8.50 per tree payment shall be the total payment. USDA will 
make no other payment with respect to such removals. The producer will 
be responsible for arranging, requesting, and paying for the tree 
removal in the specified orchard blocks or orchard(s), as the case may 
be.
    (d) Total payments under this program are limited to no more than 
$17,000,000. No additional expenditures shall be made, unless the 
Administrator or delegatee in their sole and exclusive discretion shall, 
in writing, declare otherwise.



Sec. 81.7  Eligibility for payment.

    (a) If total applications for payment do not exceed $17,000,000, 
less administration costs, payments will be made under this program to 
any eligible producer of prune/plums who complies

[[Page 217]]

with the requirements in Sec. 81.8 and all other terms and conditions in 
this part.
    (b) If applications for participation in the program authorized by 
this part exceed $17,000,000, less administration costs, the Committee 
will approve the applications (subject to the requirements in Sec. 81.8) 
in the order in which the completed applications are received in the 
Committee office up to the funding limit of $17,000,000, less 
administration costs, for the program. Any additional applications will 
be denied.
    (c) The Administrator or his delegatee may set other conditions for 
payment, in addition to those provided for in this part, to the extent 
necessary to accomplish the goals of the program.



Sec. 81.8  Application and approval for participation.

    (a) Applications will be reviewed for program compliance and 
approved or disapproved by Committee office personnel.
    (b) Applications for participation in the Prune-Plum Diversion 
Program can be obtained from the Committee office at 3841 North Freeway 
Boulevard, Suite 120, Sacramento, California 95834; telephone (916) 565-
6235.
    (c) Any producer desiring to participate in the prune-plum diversion 
program must have filed an application with the Committee by January 31, 
2002. The application shall be accompanied by a copy of any two of the 
following four documents: Plat Map from the County Hall of Records; 
Irrigation Tax Bill; County Property Tax Bill; or any other documents 
containing an Assessor's Parcel Number. Such application shall include 
at least the following information:
    (1) The name, address, telephone number and tax identification 
number/social security number of the producer;
    (2) The location and size of the production unit to be diverted;
    (3) The prune/plum production from the orchard or portion of the 
orchard to be diverted during the 1999-2000 and 2000-2001 seasons;
    (4) A statement that all persons with an equity interest in the 
prune/plums in the production unit to be diverted consent to the filing 
of the application. That is, the statement must show that the applicant 
has clear title to the property in question, and/or as needed, the 
statement must show an agreement to participate in the tree removal 
program from all lien or mortgage holders, and/or land owners, lessors, 
or similar parties with an interest in the property to the extent 
demanded by AMS or to the extent that such persons could object to the 
tree removal. However, obtaining such assent shall be the responsibility 
of the applicant who shall alone bear any responsibilities which may 
extend to third parties;
    (5) A statement that the applicant agrees to comply with all of the 
regulations established for the prune/plum diversion program;
    (6) A certification that the information contained in the 
application is true and correct;
    (7) The year that the unit of prune/plums was planted;
    (8) An identification of the handler(s) who received the prune/plums 
from the producer in the last two years.
    (d) After the Committee receives the producer applications, it shall 
review them to determine whether all the required information has been 
provided and that the information appears reliable.
    (e) As previously indicated, if the number of trees to be removed in 
such applications, multiplied by $8.50 per tree, exceeds the amount of 
funds available for the diversion program, each grower's application 
will be considered in the order in which they are received at the 
Committee office. AMS may reject any application for any reason, and its 
decisions are final.
    (f) After the application reviews and confirmation of eligible trees 
are completed, the Committee shall notify the applicant, in writing, as 
to whether or not the application has been approved and the number of 
trees approved for payment after removal. If an application is not 
approved, the notification shall specify the reason(s) for disapproval. 
AMS shall be the final arbiter of which applications may be approved or 
rejected, and the final arbiter of any appeal.

[[Page 218]]



Sec. 81.9  Inspection and certification of diversion.

    When the removal of the prune-plum trees is complete, the 
producer(s) will notify the Committee on a form provided by the 
Committee. The Committee will certify that the trees approved for 
removal from the block or orchard, as the case may be, have been 
removed, and notify AMS.



Sec. 81.10  Claim for payment.

    (a) To obtain payment for the trees removed, the producer must 
submit to the Committee by June 30, 2002, a completed form provided by 
the Committee. Such form shall include the Committee's certification 
that the qualifying trees from the blocks or orchards have been removed. 
If all other conditions for payment are met, AMS will then issue a check 
to the producer in the amount of $8.50 per eligible tree removed.
    (b) [Reserved]



Sec. 81.11  Compliance with program provisions.

    If USDA on its own, or on the advice of the Committee, determines 
that any provision of this part have not been complied with by the 
producer, the producer will not be entitled to diversion payments in 
connection with tree removal. If a producer does not comply with the 
terms of this part, including the requirement specified in Sec. 81.5(b), 
the producer must refund, with interest, any USDA payment made in 
connection with such tree removal, and will also be liable to USDA for 
any other damages incurred as a result of such failure. The Committee or 
USDA may deny any producer the right to participate in this program or 
the right to receive or retain payments in connection with any diversion 
previously made under this program, or both, if the Committee or USDA 
determines that:
    (a) The producer has failed to properly remove the prune/plum trees 
from the applicable block or the whole orchard regardless of whether 
such failure was caused directly by the producer or by any other person 
or persons;
    (b) The producer has not acted in good faith in connection with any 
activity under this program; or
    (c) The producer has failed to discharge fully any obligation 
assumed by, or charged to, him or her under this program.



Sec. 81.12  Inspection of premises.

    The producer must permit authorized representatives of USDA or the 
Committee, at any reasonable time, to have access to their premises to 
inspect and examine the orchard block where trees were removed and 
records pertaining to the orchard to determine compliance with the 
provisions of this part.



Sec. 81.13  Records and accounts.

    (a) The producers participating in this program must keep accurate 
records and accounts showing the details relative to the prune/plum tree 
removal, including the contract entered into with the firm or person 
removing the trees, as well as the invoices.
    (b) The producers must permit authorized representatives of USDA, 
the Committee, and the General Accounting Office, or their delegatees, 
at any reasonable time to inspect, examine, and make copies of such 
records and accounts to determine compliance with provisions of this 
part. Such records and accounts must be retained for two years after the 
date of payment to the producer under the program, or for two years 
after the date of any audit of records by USDA, whichever is later. Any 
destruction of records by the producer at any time will be at the risk 
of the producer when there is reason to know, believe, or suspect that 
matters may be or could be in dispute or remain in dispute.



Sec. 81.14  Offset, assignment, and prompt payment.

    (a) Any payment or portion thereof due any person under this part 
shall be allowed without regard to questions of title under State law, 
and without regard to any claim or lien against the crop proceeds 
thereof in favor of the producer or any other creditors except agencies 
of the U.S. Government.
    (b) Payments which are earned by a producer under this program may 
be

[[Page 219]]

assigned in the same manner as allowed under the provisions of 7 CFR 
part 1404.
    (c) Prompt payment interest from AMS will not be applicable.



Sec. 81.15  Appeals.

    Any producer who is dissatisfied with a determination made pursuant 
to this part may make a request for reconsideration or appeal of such 
determination. The Deputy Administrator of Fruit and Vegetable Programs 
shall establish the procedure for such appeals.



Sec. 81.16  Refunds; joint and several liability.

    (a) In the event there is a failure to comply with any term, 
requirement, or condition for payment arising under the application of 
this part, and if any refund of a payment to AMS shall otherwise become 
due in connection with the application of this part, all payments made 
under this part to any producer shall be refunded to AMS together with 
interest.
    (b) All producers signing an application for payment as having an 
interest in such payment shall be jointly and severally liable for any 
refund, including related charges, that is determined to be due for any 
reason under the terms and conditions of the application of this part.
    (c) Interest shall be applicable to refunds required of any producer 
under this part if AMS determines that payments or other assistance were 
provided to a producer who was not eligible for such assistance. Such 
interest shall be charged at the rate of interest that the United States 
Treasury charges the Commodity Credit Corporation (CCC) for funds, as of 
the date AMS made benefits available. Such interest shall accrue from 
the date of repayment or the date interest increases as determined in 
accordance with applicable regulations. AMS may waive the accrual of 
interest if AMS was at fault for the overpayment.
    (d) Interest allowable in favor of AMS in accordance with paragraph 
(c) of this section may be waived when there was no intentional 
noncompliance on the part of the producer, as determined by AMS. Such 
decision to waive or not waive the interest shall be at the discretion 
of the Administrator or delegatee.
    (e) Late payment interest shall be assessed on all refunds in 
accordance with the provisions of, and subject to the rates prescribed 
for those claims which are addressed in 7 CFR part 792.
    (f) Producers must refund to AMS any excess payments, as determined 
by AMS, with respect to such application.
    (g) In the event that a benefit under this part was provided as the 
result of erroneous information provided by the producer, or was 
erroneously or improperly paid for any other reason, the benefit must be 
repaid with any applicable interest.



Sec. 81.17  Death, incompetency, or disappearance.

    In the case of death, incompetency, disappearance, or dissolution of 
a prune/plum producer that is eligible to receive benefits in accordance 
with this part, such person or persons who would, under 7 CFR part 707 
be eligible for payments and benefits covered by that part, may receive 
the tree-removal benefits otherwise due the actual producer.

Subpart B [Reserved]

[[Page 220]]



           SUBCHAPTER E--COMMODITY LABORATORY TESTING PROGRAMS





PART 90--INTRODUCTION--Table of Contents




                     Subpart A--Scope of Subchapter

Sec.
90.1  General.

                    Subpart B--Subchapter Definitions

90.2  General terms defined.

 Subpart C--Good Laboratory Practices for Commodity Laboratory Analyses

90.3  General.
90.4-90.100  [Reserved]

                      Subpart D--Quality Assurance

90.101  General.
90.102  Quality assurance review.
90.103  Maintenance of quality control records.
90.104-90.200  [Reserved]

    Authority: 7 U.S.C. 1622, 1624.

    Source: 58 FR 42414, Aug. 9, 1993, unless otherwise noted.



                     Subpart A--Scope of Subchapter



Sec. 90.1  General.

    This subchapter sets forth the functions and responsibilities of the 
Science and Technology (S&T) of the Agricultural Marketing Service (AMS) 
relating to:
    (a) The performance of comprehensive analytical tests and laboratory 
determinations of agricultural commodities and processed products.
    (b) The conduct of experiments and collaborative studies to validate 
new analytical procedures and improved methodologies in order to promote 
faster, more precise, or safer laboratory testing for agricultural 
commodities and processed products.
    (c) The supervised issuance of external quality control or 
proficiency check samples to laboratories under the Science and 
Technology's direction or performance review in order to regularly spot 
check and assess that analytical or test data produced by each 
laboratory is reproducible, precise, and reliable for a specific test 
program.
    (d) The granting of laboratory program accreditation or 
certification or approval for specialty testing of agricultural 
commodities and products.
    (e) The licensing of chemists to analyze cottonseed in order to 
certify its quality and grade.
    (f) The granting of certification to non-federal laboratories for 
testing for trichinae in horsemeat for export to the European Community 
(EC).
    (g) The granting of acceptance of standardized methodology or new 
procedures for commodity testing.
    (h) The auditing of the facilities, equipment, quality control 
procedures, standard methodologies, and good laboratory practices for a 
commodity testing program of a laboratory.
    (i) The examination of plants for novelty and distinctiveness in 
order to grant certificates of protection for new varieties of sexually 
reproduced plants, and the provision of other fee based services 
authorized by the Plant Variety Protection Act.
    (j) The extension or coordination of research for the determination 
of a new chemical analyte or microorganism in a commodity product or 
food.
    (k) The analysis of imported flue-cured and burley tobacco for 
pesticide residues.
    (l) The supervision and implementation of the State enforcement of 
the recordkeeping requirements for private applicators of restricted-use 
pesticides for agricultural production.

[58 FR 42414, Aug. 9, 1993, as amended at 61 FR 51350, Oct. 2, 1996; 65 
FR 64309, Oct. 26, 2000]



                    Subpart B--Subchapter Definitions



Sec. 90.2  General terms defined.

    Words used in the regulations in this subchapter in the singular 
form will import the plural, and vice versa, as the case may demand. As 
used throughout the regulations in this subchapter and unless the 
context requires otherwise, the following terms will be construed to 
mean:

[[Page 221]]

    Act. The Agricultural Marketing Act of 1946 (Title II of the act of 
Congress approved August 14, 1946, 60 Stat. 1087-1091, as amended; 7 
U.S.C. 1621-1627).
    Administrator. The Administrator of the Agricultural Marketing 
Service, or any officer or employee of the Service, to whom authority 
has been delegated, or to whom authority may be delegated, to act in his 
or her stead.
    Cooperative agreement. An agreement between the Agricultural 
Marketing Service and another Federal agency or a State agency, or other 
agency, organization or person that defines in the general terms the 
basis on which the parties concerned will cooperate to serve a mutual 
interest on an agricultural service project. The responsibilities for 
AMS and each cooperator are stated in the document along with the 
conditions as applicable.
    Department. The United States Department of Agriculture.
    Deputy Administrator. The Deputy Administrator of the Science and 
Technology program of the Agricultural Marketing Service agency, or any 
officer or employee of this agency to whom authority has heretofore been 
delegated, or to whom authority may hereafter be delegated, to act.
    Laboratories. Science and Technology laboratories performing the 
official analyses described in this subchapter.
    Program. The Science and Technology (S&T) program of the 
Agricultural Marketing Service (AMS) which performs official analytical 
testing services, issues licenses for cottonseed chemists, and conducts 
quality assurance reviews and grants accreditation or certification for 
commodity testing programs of laboratories.
    Quality assurance. The assurance that there is accuracy of 
analytical data using proficiency check sample or analyte recovery 
techniques. In addition, the certainty that there is strict adherence by 
the analysts in following the quality control details in the recommended 
or official methods for reagents, laboratory apparatus and procedures. 
The overall objective of quality assurance, as a comprehensive program, 
is to ensure that all analytical data produced by the laboratory meets 
certain quality criteria and that all data produced is reproducible, 
precise, and accurate.
    Quality control. The system of close examination of the critical 
details of an analytical procedure in order to have the proper equipment 
parameters, techniques, supplies and reagents to achieve a predetermined 
level of quality data, with the performance of a particular laboratory 
analysis.
    Secretary. The Secretary of Agriculture of the United States, or any 
officer or employee of the Department to whom authority has heretofore 
been delegated, or to whom authority may hereafter be delegated, to act 
in his or her stead.
    Service. The Agricultural Marketing Service of the United States 
Department of Agriculture.

[58 FR 42414, Aug. 9, 1993, as amended at 61 FR 51350, Oct. 2, 1996; 65 
FR 64309, Oct. 26, 2000]



 Subpart C--Good Laboratory Practices for Commodity Laboratory Analyses



Sec. 90.3  General.

    Laboratory service programs of laboratories certified and approved 
by the Science and Technology shall have good laboratory practice (GLP) 
requirements that are generalized in this subpart.

[58 FR 42414, Aug. 9, 1993, as amended at 61 FR 51350, Oct. 2, 1996; 65 
FR 64309, Oct. 26, 2000]
Secs. 90.4-90.100  [Reserved]



                      Subpart D--Quality Assurance



Sec. 90.101  General.

    Laboratory service programs of laboratories certified and approved 
by the Science and Technology shall have quality assurance requirements 
that are generalized in this subpart.

[58 FR 42414, Aug. 9, 1993, as amended at 61 FR 51350, Oct. 2, 1996; 65 
FR 64309, Oct. 26, 2000]



Sec. 90.102  Quality assurance review.

    (a) Each laboratory performing tests and analysis under this 
subchapter will be subject to a quality assurance program evaluation at 
least annually, and more often if deemed necessary by the

[[Page 222]]

Deputy Administrator. Such evaluation will include:
    (1) A review of the adequacy of quality control measures taken by 
the laboratory for the standardized method of analysis for a commodity 
and its related products;
    (2) A review of the laboratory methodologies and procedures;
    (3) A review of records for the calibration and maintenance of 
equipment;
    (4) A review of records documenting sample handling;
    (5) The evidence of quality control records;
    (6) The evidence of correct reporting and determination of 
analytical data.
    (b) A laboratory will receive a quality assurance report following 
the review. This evaluation will address any necessary improvements to 
the laboratory program(s) being examined.

[58 FR 42414, Aug. 9, 1993, as amended at 65 FR 64309, Oct. 26, 2000]



Sec. 90.103  Maintenance of quality control records.

    Quality control records pertaining, but not limited to the following 
areas, shall be retained by the laboratory for at least the 3 most 
recent years:
    (a) Prepared solution standardizations;
    (b) Recovery studies by known analyte additions;
    (c) The purity checks of reagents and test materials;
    (d) Apparatus and equipment calibrations;
    (e) The quality examination and testing of materials;
    (f) The mandatory participation in proficiency check sample testing 
or collaborative studies;
    (g) Daily critical parameter checks of equipment, such as 
temperature readings;
    (h) The equivalency tests of new procedures with standard 
methodologies.
Secs. 90.104-90.200  [Reserved]



PART 91--SERVICES AND GENERAL INFORMATION--Table of Contents




                        Subpart A--Administration

Sec.
91.1  General.
91.2  Definitions.
91.3  Authority.

                       Subpart B--General Services

91.4  Kinds of services.
91.5  Where services are offered.
91.6  Availability of services.

                   Subpart C--Application for Services

91.7  Nondiscrimination.
91.8  Who may apply.
91.9  How to make an application.
91.10  Information required in connection with an application.
91.11  Filing of an application.
91.12  Record of filing time and laboratory tests.
91.13  When an application may be rejected.
91.14  When an application may be withdrawn.

                      Subpart D--Laboratory Service

91.15  Basis of a laboratory service.
91.16  Order of a laboratory service.
91.17  Postponing a laboratory service.
91.18  Financial interest of a scientist.

                           Subpart E--Samples

91.19  General requirements of suitable samples.
91.20  Shipping.
91.21  Protecting samples.
91.22  Disposition of analyzed sample.

                        Subpart F--Method Manuals

91.23  Analytical methods.

                          Subpart G--Reporting

91.24  Reports of test results.
91.25  Certificate requirements.
91.26  Issuance of certificates.
91.27  Corrections to certificates prior to issuance.
91.28  Issuance of corrected certificates or amendments for analysis 
          reports.
91.29  Issuance of duplicate certificates or reissuance of an analysis 
          report.
91.30  Maintenance and retention of copies of certificates or analysis 
          reports.

                Subpart H--Appeal of Laboratory Services

91.31  When an appeal of a laboratory service may be requested.
91.32  Where to file for an appeal of a laboratory service and 
          information required.
91.33  When an application for an appeal of a laboratory service may be 
          withdrawn.
91.34  When an appeal of a laboratory service may be refused.
91.35  Who shall perform an appealed laboratory service.
91.36  Appeal laboratory certificate.

[[Page 223]]

                       Subpart I--Fees and Charges

91.37  Standard hourly fee rate for laboratory testing, analysis, and 
          other services.
91.38  Additional fees for appeal of analysis.
91.39  Premium hourly fee rate for overtime and legal holiday service.
91.40  Fees for courier service and facsimile of the analysis report.
91.41  Charges for demonstrations and courses of instruction.
91.42  Billing.
91.43  Payment of fees and charges.
91.44  Charges on overdue accounts and issuance of delinquency notices.
91.45  Charges for laboratory services on a contract basis.

    Authority: 7 U.S.C. 1622, 1624.

    Source: 58 FR 42415, Aug. 9, 1993, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 91 appear at 61 FR 
51350, Oct. 2 1996.



                        Subpart A--Administration



Sec. 91.1  General.

    This part consolidates the procedural and administrative rules of 
the Science and Technology of the Agricultural Marketing Service for 
conducting the analytical testing and laboratory audits with quality 
assurance reviews. It also contains the fees, charges and laboratories 
applicable to such services.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64309, Oct. 26, 2000]



Sec. 91.2  Definitions.

    Words used in the regulations in this part in the singular form will 
import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this part, unless the context requires 
otherwise, the following terms will be construed to mean:
    Agency. The Agricultural Marketing Service agency of the United 
States Department of Agriculture.
    Analyses. Microbiological, chemical, or physical tests performed on 
a commodity.
    Applicant. Any person or organization requesting services provided 
by the Science and Technology (S&T) programs.
    Legal holidays. Those days designated as legal public holidays 
specified by Congress in paragraph (a) of section 6103, title 5 of the 
United States Code and any other day declared to be a holiday by Federal 
Statute or Executive Order. Under section 6103 and Executive Order 
10357, as amended, if the specified legal public holiday falls on a 
Saturday, the preceding Friday shall be considered the holiday, or if 
the specified legal holiday falls on a Sunday, the following Monday 
shall be considered to be the holiday.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64309, Oct. 26, 2000]



Sec. 91.3  Authority.

    The Deputy Administrator is charged with the administration of this 
subchapter.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64309, Oct. 26, 2000]



                       Subpart B--General Services



Sec. 91.4  Kinds of services.

    (a) Analytical tests. Analytical laboratory testing services under 
the regulations in this subchapter consist of microbiological, chemical, 
and certain other analyses, requested by the applicant and performed on 
tobacco, seed, dairy, egg, fruit and vegetable, meat and poultry 
products, and related processed products. Analyses are performed to 
determine if products meet Federal specifications or specifications 
defined in purchase contracts and cooperative agreements. Laboratory 
analyses are also performed on egg products as part of the mandatory Egg 
Products Inspection Program under the management of USDA's Food Safety 
and Inspection Service (FSIS) as detailed in 9 CFR 590.580.
    (b) Examination and licensure. The manager of the Science and 
Technology's Cottonseed Chemist Licensing Program administers 
examinations and licenses chemists to certify the official grade of 
cottonseed.
    (c) Quality assurance reviews. The Science and Technology 
representative performs on-site laboratory quality assurance reviews 
(both required and voluntary) to ensure that appropriate technical 
methods, equipment maintenance, and quality control procedures are being 
observed.
    (d) Consultation. Technical advice, statistical science 
consultation, and quality assurance program assistance

[[Page 224]]

are provided by the representatives for the Science and Technology 
programs for domestic and foreign laboratories.

[65 FR 64309, Oct. 26, 2000]



Sec. 91.5  Where services are offered.

    (a) Services are offered to applicants at the Science and Technology 
laboratories and facilities in the following list:
    (1) Science and Technology regional laboratories. A variety of tests 
and laboratory analyses are available in two regional multi-disciplinary 
Science and Technology (S&T) laboratories, and are located as follows:

(i) USDA, AMS, S&T
    Eastern Laboratory (Microbiology), 2311-B Aberdeen Boulevard, 
Gastonia, NC 28054-0614.
(ii) USDA, AMS, S&T
    Eastern Laboratory (Chemistry), 645 Cox Road, Gastonia, NC 28054-
0614.

    (2) Science and Technology (S&T) aflatoxin laboratories. The 
specialty laboratories performing aflatoxin testing on peanuts, peanut 
products, dried fruits, grains, edible seeds, tree nuts, shelled corn 
products, oilseed products and other commodities are located as follows:

(i) USDA, AMS, S&T
    1211 Schley Avenue, Albany, GA 31707.
(ii) USDA, AMS, S&T
    c/o Golden Peanut Company, Mail: P.O. Box 279, 301 West Pearl 
Street, Aulander, NC 27805.
(iii) USDA, AMS, S&T
    610 North Main Street, Blakely, GA 31723.
(iv) USDA, AMS, S&T
    107 South Fourth Street, Madill, OK 73446.
(v) USDA, AMS, S&T
    c/o Cargill Peanut Products, Mail: P.O. Box 272, 715 North Main 
Street, Dawson, GA 31742-0272.
(vi) USDA, AMS, S&T
    Mail: P.O. Box 1130, 308 Culloden Street, Suffolk, VA 23434.

    (3) Citrus laboratory. The Science and Technology's citrus 
laboratory specializes in testing citrus juices and other citrus 
products and is located as follows: USDA, AMS, S&T Eastern Laboratory 
(Citrus), 98 Third Street, S.W., Winter Haven, FL 33880.
    (4) Program laboratories. Laboratory services are available in all 
areas covered by cooperative agreements providing for this laboratory 
work and entered on behalf of the Department with cooperating Federal or 
State laboratory agencies pursuant to authority contained in Act(s) of 
Congress. Also, services may be provided in other areas not covered by a 
cooperative agreement if the Administrator determines that it is 
possible to provide such laboratory services.
    (5) Other alternative laboratories. Laboratory analyses may be 
conducted at alternative Science and Technology laboratories and can be 
reached from any commodity market in which a laboratory facility is 
located to the extent laboratory personnel are available.
    (6) The Plant Variety Protection (PVP) Office. The PVP office and 
plant examination facility of the Science and Technology programs issues 
certificates of protection to developers of novel varieties of plants 
which reproduce sexually. The PVP office is located as follows: USDA, 
AMS, Science & Technology, Plant Variety Protection Office, National 
Agricultural Library Building, Room 500, 10301 Baltimore Boulevard, 
Beltsville, MD 20705-2351.
    (7) Science and Technology headquarters offices. The examination, 
licensure, quality assurance reviews, laboratory accreditation/
certification and consultation services are provided by headquarters 
staff located in Washington, DC. The main headquarters office is located 
as follow: USDA, AMS, Science and Technology, Office of the Deputy 
Administrator, Room 3507 South Agriculture Bldg., Mail Stop 0222, 1400 
Independence Ave., S.W., Washington, DC 20250.
    (8) The Information Technology (IT) Office. The IT office of the 
Science and Technology programs is headed by AMS's Chief Information 
Officer (CIO) and provides information technology services and 
management systems to the Agency and other agencies within the USDA. The 
main IT office is located as follow: USDA, AMS, Science and Technology, 
Office of the Chief Information Officer, 1752 South Agriculture Bldg., 
1400 Independence Ave., SW., Washington, DC 20250.

[[Page 225]]

    (9) Statistical Branch office. The Statistical Branch office of 
Science and Technology (S&T) provides statistical services to the Agency 
and other agencies within the USDA. In addition, the Statistical Branch 
office devices sample plans and performs consulting services for 
research studies in joint efforts with or in a leading role with other 
program areas of AMS or of the USDA. The main Statistical Branch office 
is located as follow: USDA, AMS, S&T Statistical Branch, 0611 South 
Agriculture Bldg., 1400 Independence Ave., S.W., Washington, DC 20250.
    (10) Offices for Pesticide Residue Programs. Services afforded by 
the Federal Pesticide Record Keeping Program for restricted-use 
pesticides by certified applicators and services afforded by the 
Pesticide Data Program (PDP) are provided by offices located as follows:

(i) USDA, AMS, Science and Technology
    Pesticide Data Branch, 8700 Centreville Road, Suite 200, Manassas, 
VA 20110-8411
(ii) USDA, AMS, Science and Technology
    Pesticide Records Branch, 8700 Centreville Road, Suite 202, 
Manassas, VA 20110-8411
(iii) USDA, AMS, Science and Technology
    Office of Deputy Administrator, Room 3507 South Agriculture Bldg., 
1400 Independence Ave., SW., Washington, DC 20250.

    (b) The addresses of the various laboratories and offices appear in 
the pertinent parts of this subchapter. A prospective applicant may 
obtain a current listing of addresses and telephone numbers of Science 
and Technology laboratories, offices, and facilities by addressing an 
inquiry to the Administrative Officer, Science and Technology, 
Agricultural Marketing Service, United States Department of Agriculture 
(USDA), P.O. Box 96456, Room 0727 South Building, Mail Stop 0271, 
Washington, D.C. 20090-6456.

[65 FR 64310, Oct. 26, 2000]



Sec. 91.6  Availability of services.

    (a) Services may be furnished whenever a Science and Technology 
staff is available and the facilities and conditions are satisfactory 
for the conduct of such service.
    (b) Laboratories may provide limited service on Saturdays and 
Sundays at a premium fee. Weekend service may be obtained by contacting 
the laboratory director or supervisor.
    (c) Holiday and overtime laboratory service may be obtained with a 
minimum 24 hour advance notice, at a premium fee, by any prospective 
applicant through the laboratory director or supervisor.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64310, Oct. 26, 2000]



                   Subpart C--Application for Services



Sec. 91.7  Nondiscrimination.

    All services under these regulations are provided to applicants 
without discrimination as to race, color, handicapped or disabled 
condition, religion, sex, age, or national origin.



Sec. 91.8  Who may apply.

    An application for service may be made by any individual or 
interested party including, but not limited to, the United States and 
any instrumentality or agency thereof, any State, county, municipality, 
or common carrier, and any authorized agent on behalf of the foregoing.



Sec. 91.9  How to make an application.

    (a) Voluntary. An application for analysis and testing may be made 
by contacting the director or supervisor of the Science and Technology 
laboratory where the service is provided, or by contacting the Technical 
Services Branch Chief at Science and Technology Headquarters, 
Washington, DC. A list of the Science and Technology laboratories is 
included in Sec. 91.5.
    (b) Mandatory. In the case of mandatory analyses, such as those 
required to be performed on eggs and egg products, application for 
services may be submitted to the office or USDA agency which administers 
the program, or by contacting an inspector or grader who is involved 
with the program.

[65 FR 64310, Oct. 26, 2000]

[[Page 226]]



Sec. 91.10  Information required in connection with an application.

    (a) An application for laboratory service shall be made in the 
English language and may be made orally (in person or by telephone), in 
writing, or by facsimile. If an application for laboratory service is 
made orally, written confirmation may be required by the laboratory 
involved.
    (b) In connection with each application for a laboratory service, 
information that may be necessary to perform analyses on the processed 
product(s) shall also be furnished. The information shall include, but 
is not limited to, the name of the product, name and address of the 
packer or plant where such product was packed, the location of the 
product, its lot or load number, codes or other identification marks, 
the number of containers, the type and size of the containers, the 
analytical test requested, and the size of the sample. In addition, 
information regarding analysis of the lot by any federal agency previous 
to the application and the purpose of the desired laboratory service may 
be requested.



Sec. 91.11  Filing of an application.

    An application for a laboratory service shall be regarded as filed 
only when made in accordance with the regulations in this part.



Sec. 91.12  Record of filing time and laboratory tests.

    A record showing the date of receipt for each application for a 
laboratory service or an appeal of a laboratory service shall be 
maintained. In addition, the requested laboratory analyses shall be 
recorded at the time of sample receipt.



Sec. 91.13  When an application may be rejected.

    (a) An application for a laboratory service may be rejected by the 
Administrator when deemed appropriate as follows:
    (1) For non-compliance by the applicant with the regulations in this 
part,
    (2) For non-payment of previous laboratory services rendered,
    (3) When the sample is not properly identified by a code or other 
marks,
    (4) When the samples are received in an unsatisfactory condition and 
are rejected for analysis,
    (5) When there is evidence or knowledge of tampering with the 
sample,
    (6) When it appears that to perform the analytical testing or 
laboratory service specified in this part would not be to the best 
interests of the public welfare or of the Government, or
    (7) 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.
    (c) 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.



Sec. 91.14  When an application may be withdrawn.

    An application for a laboratory service may be withdrawn by the 
applicant at any time before the analytical testing is performed; 
Provided, That, the applicant shall pay, at the hourly rate prescribed 
in Sec. 91.37, for the time incurred by the scientist or laboratory 
technician, in connection with such application and any travel expenses, 
telephone, facsimile, mailing, telegraph or other expenses, which have 
been incurred by the laboratory servicing office, in connection with 
such application.



                      Subpart D--Laboratory Service



Sec. 91.15  Basis of a laboratory service.

    Analytical testing and laboratory determination for analyte or 
quality constituent shall be based upon the appropriate standards 
promulgated by the U.S. Department of Agriculture, applicable standards 
prescribed by the laws

[[Page 227]]

of the State where the particular product was produced, specifications 
of any governmental agency, written buyer and seller contract 
specifications, or any written specifications by an applicant which is 
approved by the Administrator; Provided, That, if such product is 
regulated pursuant to the Agricultural Marketing Agreement Act of 1937, 
as amended (7 U.S.C. 601 et seq.), or the comparable laws of any State, 
such testing and determination shall be on the basis of the standards, 
if any, prescribed in, or pursuant to, the marketing order and/or 
agreement effective thereunder.



Sec. 91.16  Order of a laboratory service.

    Laboratory service shall be performed, insofar as possible, in the 
order in which applications are made except that precedence may be given 
to any such applications which are made by the United States (including, 
but not being limited to, any instrumentality or agency thereof) and to 
any application for an appeal inspection.



Sec. 91.17  Postponing a laboratory service.

    If the scientist determines that it is not possible to accurately 
analyze or make a laboratory determination of a sample immediately after 
receipt because standard materials, laboratory equipment and supplies 
need replacement, or for any other substantial reason, the scientist may 
postpone laboratory service for such period as may be necessary.



Sec. 91.18  Financial interest of a scientist.

    No scientist shall perform a laboratory analysis on any product in 
which he is directly or indirectly financially interested.



                           Subpart E--Samples



Sec. 91.19  General requirements of suitable samples.

    (a) Samples must be representative of the product tested and 
provided in sufficient quantity for the analyses requested.
    (b) Each sample must be identified with the following information:
    (1) Product type (specific description);
    (2) Lot number or production date;
    (3) Analyses desired;
    (4) Date/time collected;
    (5) Storage conditions prior to shipping;
    (6) Name of applicant;
    (7) Name of sampler;
    (8) Any other information which is required by the specific program 
under which analysis or test is performed.



Sec. 91.20  Shipping.

    (a) Samples must be submitted to the laboratory in a condition 
(including temperature) that does not compromise the quality and 
validity of analytical results.
    (b) All samples must be submitted in sealed, leakproof containers.
    (c) Containers for perishable refrigerated samples should contain 
ice or ice packs to maintain temperatures of 0 deg. to 5  deg.C, unless 
a different temperature is required for the sample to be tested.
    (d) Containers for frozen samples should contain dry ice or other 
effective methods of maintaining samples in a frozen state.
    (e) The applicant is responsible for providing shipping containers 
and paying shipping costs for fee basis tests.
    (f) A courier charge may apply for the shipment of some samples.



Sec. 91.21  Protecting samples.

    Laboratory personnel shall protect each sample from manipulation, 
substitution, and improper or careless handling which would deprive the 
sample of its representative character from the time of receipt in the 
laboratory until the analysis is completed and the sample has been 
discarded.



Sec. 91.22  Disposition of analyzed sample.

    (a) Excess samples not used in analyses will be placed in proper 
storage for a maximum period of 30 days after reporting results of 
tests.
    (b) Any sample of a processed commodity that has been used for a 
laboratory service may be returned to the applicant at his or her 
request and expense; otherwise, it shall be destroyed or disposed of to 
a charitable institution.

[[Page 228]]



                        Subpart F--Method Manuals



Sec. 91.23  Analytical methods.

    Most analyses are performed according to approved procedures 
described in manuals of standardized methodology. These standard methods 
are the specific methods used. Alternatively, equivalent methods 
prescribed in cooperative agreements are used. The manuals of standard 
methods most often used by the Science and Technology laboratories are 
listed as follows:
    (a) Approved Methods of the American Association of Cereal Chemists 
(AACC), American Association of Cereal Chemists/Eagan Press, 3340 Pilot 
Knob Road, St. Paul, Minnesota 55121-2097.
    (b) ASTA's Analytical Methods Manual, American Spice Trade 
Association (ASTA), 560 Sylvan Avenue, P.O. Box 1267, Englewood Cliffs, 
New Jersey 07632.
    (c) Compendium Methods for the Microbiological Examination of Foods, 
Carl Vanderzant and Don Splittstoesser (Editors), American Public Health 
Association, 1015 Fifteenth Street, NW., Washington, DC 20005.
    (d) Edwards, P.R. and W.H. Ewing, Edwards and Ewing's Identification 
of Enterobacteriaceae, Elsevier Science, Inc., Regional Sales Office, 
655 Avenue of the Americas, P.O. Box 945, New York, NY 10159-0945.
    (e) FDA Bacteriological Analytical Manual (BAM), AOAC INTERNATIONAL, 
481 North Frederick Avenue, Suite 500, Gaithersburg, MD 20877-2417.
    (f) Manual of Analytical Methods for the Analysis of Pesticide 
Residues in Human and Environmental Samples, EPA 600/9-80-038, U.S. 
Environmental Protection Agency (EPA) Chemical Exposure Research Branch, 
EPA Office of Research and Development (ORD), 26 West Martin Luther King 
Drive, Cincinnati, Ohio 45268.
    (g) Official Methods and Recommended Practices of the American Oil 
Chemists' Society (AOCS), American Oil Chemists' Society, P.O. Box 3489, 
2211 West Bradley Avenue, Champaign, Illinois 61821-1827.
    (h) Official Methods of Analysis of AOAC INTERNATIONAL, Volumes I & 
II, AOAC INTERNATIONAL, 481 North Frederick Avenue, Suite 500, 
Gaithersburg, MD 20877-2417.
    (i) Standard Analytical Methods of the Member Companies of Corn 
Industries Research Foundation, Corn Refiners Association (CRA), 1701 
Pennsylvania Avenue, NW., Washington, DC 20006.
    (j) Standard Methods for the Examination of Dairy Products, American 
Public Health Association, 1015 Fifteenth Street, NW., Washington, DC 
20005.
    (k) Standard Methods for the Examination of Water and Wastewater, 
American Public Health Association (APHA), the American Water Works 
Association (AWWA) and the Water Pollution Control Federation, AWWA 
Bookstore, 6666 West Quincy Avenue, Denver, CO 80235.
    (l) Test Methods for Evaluating Solid Waste Physical/Chemical 
Methods, Environmental Protection Agency, Office of Solid Waste, SW-846 
Integrated Manual (available from National Technical Information Service 
(NTIS), U.S. Department of Commerce, 5285 Port Royal Road, Springfield, 
VA 22161).
    (m) U.S. Army Natick Research, Development and Engineering Center's 
Military Specifications, approved analytical test methods noted therein, 
Code NPP-9, Department of Defense Single Stock Point (DODSSP) for 
Military Specifications, Standards, Building 4/D, 700 Robbins Avenue, 
Philadelphia, PA 19111-5094.
    (n) U.S. Food and Drug Administration, Pesticide Analytical Manuals 
(PAM), Volumes I and II, Food and Drug Administration, Center for Food 
Safety and Applied Nutrition (CFSAN), 200 C Street, SW., Washington, DC 
20204 (available from National Technical Information Service (NTIS), 
U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 
22161).

[65 FR 64310, Oct. 26, 2000]



                          Subpart G--Reporting



Sec. 91.24  Reports of test results.

    (a) Results of analyses are provided, in writing, by facsimile, by 
e-mail or other electronic means to the applicant.

[[Page 229]]

    (b) Applicants may call the appropriate Science and Technology 
laboratory for interim or final results prior to issuance of the formal 
report. The advance results may be telegraphed, e-mailed, telephoned, or 
sent by facsimile to the applicant. Any additional expense for advance 
information shall be borne by the requesting party.
    (c) A letter report in lieu of an official certificate of analysis 
may be issued by a laboratory representative when such action appears to 
be more suitable than a certificate: Provided, that, issuance of such 
report is approved by the Deputy Administrator.

[65 FR 64311, Oct. 26, 2000]



Sec. 91.25  Certificate requirements.

    Certificates of analysis and other memoranda concerning laboratory 
service and the reporting of results should have the following 
requirements:
    (a) Certificates of analysis shall be on standard printed forms 
approved by the Deputy Administrator;
    (b) Shall be printed in English;
    (c) Shall have results typewritten, computer generated, or 
handwritten in ink and shall be clearly legible;
    (d) Shall show the results of laboratory tests in a uniform, 
accurate, and concise manner with abbreviations identified on the form;
    (e) Shall show the information required by Secs. 91.25-91.29; and
    (f) Show only such other information and statements of fact as are 
provided in the instructions authorized by the Deputy Administrator.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64311, Oct. 26, 2000]



Sec. 91.26  Issuance of certificates.

    (a) The person signing and issuing the certificate of analysis shall 
be one of the following:
    (1) The scientist who performed the analysis;
    (2) Another technician of the laboratory facility, who has been 
given power of attorney by the scientist who performed the analytical 
testing and been authorized by the Deputy Administrator to affix the 
scientist's signature to a certificate. The power of attorney shall be 
on file with the employing office or laboratory of the Science and 
Technology program;
    (3) A person designated as the ``laboratory director in charge,'' 
when the certificate represents composite analyses by several 
technicians.
    (b) The laboratory certificate shall be prepared in accordance with 
the facts set forth in the official memoranda made by the scientist or 
technicians in connection with the analysis.
    (c) Whenever a certificate is signed by a person under a power of 
attorney, the certificate should so indicate. The signature of the 
holder of power shall appear under the name of the scientist who 
personally analyzed the sample, and whenever a certificate issued is 
signed by a scientist in charge, that title must appear in connection 
with the signature.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64311, Oct. 26, 2000]



Sec. 91.27  Corrections to certificates prior to issuance.

    (a) The accuracy of the statements and information shown on 
certificates of analysis must be verified by the individual whose name 
or signature, or both, is shown on the certificate or by the authorized 
agent who affixed the name or signature, or both. When a name or 
signature, or both, is affixed by an authorized agent, the initials of 
the agent shall appear directly below or following the name, or 
signature of the person. Errors found during this process shall be 
corrected according to this section.
    (b) Only official personnel or their authorized agents may make 
corrections, additions, or other changes to certificates.
    (c) No corrections, additions, or other changes shall be made which 
involve identification, quality, or quantity. If such errors are found, 
a new certificate shall be prepared and issued and the incorrect 
certificate marked ``Void.'' Otherwise, errors may be corrected, 
provided there is evidence of satisfactory correction procedures as 
follows:
    (1) The corrections are neat and legible;
    (2) Each correction is initialed by the individual who corrects the 
certificate; and

[[Page 230]]

    (3) The corrections and initials are shown on the original and all 
copies.



Sec. 91.28  Issuance of corrected certificates or amendments for analysis reports.

    (a) A corrected certificate of analysis or an amended letter report 
may be issued by the laboratory representative who issued the original 
certificate or report after distribution of the form if errors, such as 
incorrect dates, analytical results, or test determination statements, 
lot numbers, or errors in any other pertinent information require the 
issuance of a corrected certificate or an amended report.
    (b) Whenever a corrected certificate or amended report is issued, 
such certificate or report shall supersede the original form which was 
issued in error. The superseded certificate or incorrect report shall 
become null and void after the issuance of the corrected certificate or 
the amended analysis report.
    (c) The corrected certificates or amended reports shall show the 
following:
    (1) The terms ``Corrected Original'' and ``Corrected Copy;''
    (2) A statement identifying the superseded certificate or incorrect 
letter report and the corrections;
    (3) A new serial number or new date of issuance; and
    (4) The same statements and information, including permissive 
statements, that were shown on the incorrect certificate or the 
incorrect report, along with the correct statement or information, shall 
be shown on the corrected form.
    (d) If all copies of the incorrect certificate or incorrect report 
can be obtained, then the superseded form shall be marked ``Void'' when 
submitted.
    (e) Corrected certificates or amended letter reports cannot be 
issued for a certificate that has been superseded by another 
certificate, or superseded on the basis of a subsequent analysis or an 
additional laboratory test determination.



Sec. 91.29  Issuance of duplicate certificates or reissuance of an analysis report.

    (a) Upon request by an applicant, a duplicate certificate or an 
additional report may be issued for a lost, destroyed, or otherwise not 
obtainable original form.
    (b) The duplicate certificate or the reissuance of an analysis 
report shall be at the expense of the applicant.
    (c) Requests for duplicate certificates or additional analysis 
reports shall be filed as follows:
    (1) In writing;
    (2) By the applicant who requested the service covered by the lost, 
destroyed, or otherwise not obtainable original form; and
    (3) With the office that issued the initial certificate or original 
laboratory analysis report.
    (d) The duplicate certificates or reissued analysis reports shall 
show the following:
    (1) The terms ``Duplicate Original,'' and the copies shall show 
``Duplicate Copy,''
    (2) A statement that the certificate or letter report was issued in 
lieu of a lost or destroyed or otherwise not obtainable certificate or 
laboratory analysis report; and
    (3) The same statements and information, including permissive 
statements, that were shown on the original certificate or the initial 
analysis report shall be shown on the duplicate form.
    (e) Duplicate certificates or duplicate analysis reports shall be 
issued as promptly as possible and distributed as the original 
certificates or original analysis reports and their copies.
    (f) Duplicate certificates shall not be issued for certificates that 
have been superseded.



Sec. 91.30  Maintenance and retention of copies of certificates or analysis reports.

    (a) At least one copy of each certificate or analysis report shall 
be filed in the laboratory for a period of not less than 3 years either 
from the date of issuance of the document, from the date of voiding a 
certificate, or from

[[Page 231]]

the date last payment is made by the applicant for a reported laboratory 
determination, whichever is later.
    (b) Whenever any document, because of its condition, becomes 
unsuitable for its intended or continued use, the laboratory personnel 
shall make a copy of the original document.
    (c) True copies shall be retained as photocopies, microfilm, 
microfiche, or other accurate reproductions and durable forms of the 
original document. Where reduction techniques, such as microfilming are 
used, suitable reader and photocopying equipment shall be readily 
available. Such reproductions shall be treated and considered for all 
purposes as though they were the original documents.
    (d) All documents required to be maintained under this part shall be 
kept confidential and shall be disclosed only to the applicants or other 
persons with the applicants' knowledge and permission. Only such 
information as the Administrator deems relevant shall be disclosed to 
the public without the applicants' permission, and then, only in a suit 
or administrative hearing brought at the direction, or on the request, 
of the Administrator, or to which the Administrator or any other officer 
of the United States is a party.



                Subpart H--Appeal of Laboratory Services



Sec. 91.31  When an appeal of a laboratory service may be requested.

    (a) An application for an appeal of a laboratory service may be made 
by any interested party who is dissatisfied with the results of an 
analysis as stated in a certificate or laboratory report, if the lot of 
the commodity can be positively identified by the laboratory service as 
the lot from which originally drawn samples were previously analyzed.
    (b) An application for an appeal of a laboratory service shall be 
made within thirty (30) days following the day on which the previous 
analysis was performed. However, upon approval by the Deputy 
Administrator, the filing time for an appeal application may be 
extended.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64311, Oct. 26, 2000]



Sec. 91.32  Where to file for an appeal of a laboratory service and information required.

    (a) Application for an appeal of a laboratory service may be filed 
with the supervisor in the office or the director of the laboratory 
facility that issued the certificate or laboratory report on which the 
appeal analysis covering the commodity product is requested.
    (b) The application for an appeal of a laboratory service shall 
state the location of the lot of the commodity product and the reasons 
for the appeal; and date and serial number of the certificate covering 
the laboratory service of the commodity product on which the appeal is 
requested. In addition, such application shall be accompanied by the 
original and all available copies of the certificate or laboratory 
report.
    (c) Application for an appeal of a laboratory service may be made 
orally (in person or by telephone), in writing, by e-mail, by facsimile, 
or by telegraph. If made orally, written confirmation shall be made 
promptly.

[65 FR 64311, Oct. 26, 2000]



Sec. 91.33  When an application for an appeal of a laboratory service may be withdrawn.

    An application for an appeal of a laboratory service may be 
withdrawn by the applicant at any time before the appealed laboratory 
service is performed; Provided, That, the applicant shall pay, at the 
hourly rate prescribed in Sec. 91.37, for the time incurred by the 
laboratory personnel, any travel, telephone, telegraph, or other 
expenses which have been incurred by the laboratory service in 
connection with such application.



Sec. 91.34  When an appeal of a laboratory service may be refused.

    An application for an appeal of a laboratory service may be refused 
if:
    (a) The reasons for the appealed laboratory service are frivolous or 
not substantial;
    (b) The quality or condition of the commodity product has undergone 
a material change since the laboratory service covering the commodity 
product on which the appealed laboratory service is requested;

[[Page 232]]

    (c) The lot in question is not, or cannot be made accessible for 
sampling;
    (d) The lot relative to which the appealed laboratory service is 
requested cannot be positively identified as the lot from which samples 
were previously drawn and originally analyzed; or
    (e) There is noncompliance with the regulations in this part. Such 
applicant shall be notified promptly of the reason for such refusal.



Sec. 91.35  Who shall perform an appealed laboratory service.

    An appealed laboratory service shall be performed, whenever 
possible, by another individual or other individuals than the 
scientist(s) or the technician(s) that performed the original analytical 
determination.



Sec. 91.36  Appeal laboratory certificate.

    (a) An appeal laboratory certificate shall be issued showing the 
results of such appealed analysis. This certificate shall supersede the 
laboratory certificate previously issued for the commodity product 
involved.
    (b) Each appeal laboratory certificate shall clearly identify the 
number and date of the laboratory certificate which it supersedes. The 
superseded certificate shall become null and void upon the issuance of 
the appealed laboratory certificate and shall no longer represent the 
analytical results of the commodity product.
    (c) The individual issuing an appeal laboratory certificate shall 
forward notice of such issuance to such persons as he or she considers 
necessary to prevent misuse of the superseded certificate if the 
original and all copies of such superseded certificate have not 
previously been delivered to the individual issuing the appeal 
certificate.
    (d) The provisions in the regulations in this part concerning forms 
and certificates, issuance of certificates, and retention and 
disposition of certificates shall apply to appeal laboratory 
certificates, except that copies of such appeal certificates shall be 
furnished to all interested parties who received copies of the 
superseded certificate.



                       Subpart I--Fees and Charges



Sec. 91.37  Standard hourly fee rate for laboratory testing, analysis, and other services.

    (a) The standard hourly fee rate in this section for the individual 
laboratory analyses cover the costs of Science and Technology laboratory 
services, including issuance of certificates and personnel and overhead 
costs other than the commodity inspection fees referred to in 7 CFR 
Secs. 52.42 through 52.46, 52.48 through 52.51, 55.510 through 55.530, 
55.560 through 55.570, 58.38 through 58.43, 58.45 through 58.46, 70.71 
through 70.72, and 70.75 through 70.78. The hourly fee rates in this 
part 91 apply to all processed commodity products, except flue-cured and 
burley tobacco, and exclude aflatoxin analyses, citrus juices and 
certain citrus products. The printed updated schedules of the laboratory 
testing fees for processed fruits and vegetables (7 CFR part 93), 
poultry and egg products (7 CFR part 94), and meat and meat products (7 
CFR part 98) will be available for distribution by the individual 
Laboratory Directors of Science and Technology laboratories listed in 
Sec. 91.5. The updated schedules of the laboratory testing fees are also 
available for electronic access on the world wide web (www) site at: 
http://ams.usda.gov/science. The fees for chemical analysis of 
cottonseed associated with grading and novel variety seed certification 
under the Plant Variety Protection Act are specified in 7 CFR parts 96 
and 97, respectively. Except as otherwise provided in this section, 
charges will be made for laboratory analysis at the standard hourly rate 
of $45.00 for the time required to perform the service. A minimum charge 
of one-quarter hour at $11.25 will be made for service pursuant to each 
request or certificate issued.
    (b) When a laboratory test service is provided for AMS by a 
commercial or State government laboratory, the applicant will be 
assessed a fee which covers the costs to the Science and Technology 
program for the service provided.

[[Page 233]]

    (c) When Science and Technology staff provides applied and 
developmental research and training activities for microbiological, 
physical and chemical analyses on agricultural commodities the applicant 
will be charged a fee on a reimbursable cost basis.

    General Schedules of Fees for Official Laboratory Test Services 
 Performed at the AMS Science and Technology Laboratories for Processed 
                           Commodity Products

       Table 1--Single Test Laboratory Fees for Proximate Analyses
------------------------------------------------------------------------
                       Type of analysis                         List fee
------------------------------------------------------------------------
Ammonia, Ion Selective Electrode.............................    $101.25
Ash, Total...................................................      45.00
Chloride, Salt Titration (Dairy).............................      22.50
Fat, Acid Hydrolysis (Cheese)................................      45.00
Fat, Acid Hydrolysis (Mojonnier).............................      45.00
Fat (Dairy Products except Cheese)...........................      22.50
Fat (Dry Basis)..............................................      67.50
Fat, Ether Extraction (Soxhlet)..............................      45.00
Fat (Kohman Analysis)........................................      45.00
Fat, Microwave--Solvent Extraction...........................      45.00
Moisture, Distillation.......................................      45.00
Moisture, Oven...............................................      22.50
Moisture (Kohman Analysis)...................................      11.25
Protein, Combustion..........................................      90.00
Protein, Kjeldahl............................................      90.00
Salt, Back Titration.........................................      33.75
Salt, Potentiometric.........................................      22.50
Salt (Rapid).................................................      33.75
------------------------------------------------------------------------


     Table 2--Single Test Laboratory Fees for Lipid Related Analyses
------------------------------------------------------------------------
                       Type of analysis                         List fee
------------------------------------------------------------------------
Acid Degree Value (Dairy)....................................     $45.00
Acidity, Titratable..........................................      22.50
Density (Specific Gravity)...................................      11.25
Dispersibility (Instant Dry Whole Milk)......................      67.50
Dispersibility (Moates-Dabbah Method)........................      22.50
Fat Stability,\1\ AOM........................................      45.00
Fatty Acid Profile (AOAC-GC method)..........................     180.00
Flash Point Test only........................................      90.00
Free Fatty Acids.............................................      22.50
Meltability (Process Cheese).................................      22.50
Peanut Oil Analyses (Oil, Moisture, Free Fatty Acids,              45.00
 Ammonia, and Foreign Matter)................................
Any One of the Oilseed Oil Analyses..........................      22.50
Peroxide Value...............................................      33.75
Smoke Point Test only........................................      90.00
Smoke Point and Flash Point..................................     157.50
Solids, Total (Oven Drying)..................................      22.50
Soluble Solids, Refractometer................................     22.50
------------------------------------------------------------------------
\1\ Peroxide value analysis is required as a prerequisite to the fat
  stability test at the additional fee.


   Table 3--Single Test Laboratory Fees for Food Additives (Direct and
                                Indirect)
------------------------------------------------------------------------
                       Type of analysis                         List fee
------------------------------------------------------------------------
Amitraz Residue, GLC.........................................    $112.50
Antibiotic, Qualitative (Dairy)..............................      22.50
Antibiotic, Quantitative \1\N................................     393.75
Ascorbates (Qualitative--Meats)..............................      22.50
Ascorbic Acid, Titration.....................................      45.00
Ascorbic Acid, Spectrophotometric............................      45.00
Brix, Direct Percent Sucrose.................................      22.50
Brix, Dilution...............................................      22.50
Butylated Hydroxyanisole (BHA)...............................      67.50
Butylated Hydroxytoluene (BHT)...............................      67.50
Caffeine, Micro Bailey-Andrew................................      67.50
Caffeine, Spectrophotometric.................................      78.75
Citric Acid, GLC or HPLC.....................................      67.50
Chlorinated Hydrocarbons:
  Pesticides and Industrial Chemicals--
    Initial Screen...........................................     180.00
    Second Column Confirmation of Analyte....................      45.00
    Confirmation on Mass Spectrometer (Per Residue)..........     $90.00
Dextrin (Qualitative)........................................      22.50
Dextrin (Quantitative).......................................     135.00
Filth, Heavy (Dairy).........................................     112.50
Filth, Heavy (Eggs)..........................................     180.00
Filth, Light (Eggs)..........................................     112.50
Filth, Light & Heavy (Eggs Extraneous).......................     270.00
Fines........................................................      22.50
Flavor (Dairy)...............................................      11.25
Flavor (Products except Dairy)...............................      33.75
Fumigants:
  Initial Screen--
    Dibromochloropropane (DBCP)..............................      45.00
    Ethylene Dibromide.......................................      45.00
    Methyl Bromide...........................................      45.00
  Confirmation on Mass Spectrometer--
    Each individual fumigant residue.........................     $90.00
Glucose (Qualitative)........................................      33.75
Glucose (Quantitative).......................................      78.75
Glycerol (Quantitative)......................................     135.00
Gums.........................................................     135.00
Heavy Metal Screen \2\.......................................     326.25
Mercury, Cold Vapor AA.......................................     135.00
Monosodium Dihydrogen Phosphate..............................     180.00
Monosodium Glutamate.........................................     180.00
Niacin.......................................................      90.00
Ochratoxin A.................................................      67.50
Odor.........................................................      11.25
Organic Acids (in Eggs)......................................     180.00
Oxygen.......................................................      22.50
Palatability and Odor: Each Sample...........................      22.50
Penicillin...................................................      67.50
Pyrethrin Residue (Dairy)....................................     180.00
Scorched Particles...........................................      22.50
Sodium, Potentiometric.......................................      45.00
Sodium Benzoate, HPLC........................................      67.50
Sodium Lauryl Sulfate (SLS)..................................     360.00
Sodium Silicoaluminate (Zeolex)..............................      90.00
Solubility Index.............................................      11.25
Starch, Direct Acid Hydrolysis...............................      90.00
Starch (in Dry Milk).........................................      22.50
Sugar, Polarimetric Methods..................................      33.75
Sugar Profile, HPLC-- \3\
  One type sugar from HPLC profile...........................     135.00
  Each additional type sugar.................................      22.50
Sugars, Non-Reducing.........................................     135.00
Sulfur Dioxide, Direct Titration.............................      45.00
Toluene, Residual............................................      90.00
Vitamin A, Carr-Price (Dairy)................................     112.50
Vitamin A, HPLC..............................................      90.00
Vitamin B1 (Thiamin).........................................      90.00
Vitamin B2 (Riboflavin)......................................      90.00
Vitamin D, HPLC (Vitamins D2 and D3), Dairy..................     382.50

[[Page 234]]

 
Whey Protein Nitrogen........................................      33.75
Whey Protein Nitrogen, Kjeldahl..............................     112.50
Xanthydrol Test For Urea.....................................      67.50
  This is an optional test to the extraneous materials
   isolation test.
------------------------------------------------------------------------
\1\ Antibiotic testing includes tests for chlorotetracycline,
  oxytetracycline, and tetracycline.
\2\ Heavy metal screen includes tests for cadmium, lead, and mercury.
\3\ This profile includes the following components: Dextrose, Fructose,
  Lactose, Maltose and Sucrose.


  Table 4--Single Test Laboratory Fees for Other Chemical and Physical
                           Component Analyses
------------------------------------------------------------------------
                       Type of analysis                         List fee
------------------------------------------------------------------------
Cheese(Fines)................................................     $11.25
Color, Apparent-Visual.......................................      11.25
Complete Kohman Analysis (Dairy).............................      45.00
Hot Water Insolubles.........................................     $67.50
Linolenic Acid...............................................      90.00
Net Weight (Per Can).........................................      11.25
Non-Volatile Methylene Chloride Extract......................     112.50
Overrun for Whipped Topping..................................      33.75
Particle Size (Ether Wash)...................................      22.50
pH...........................................................      11.25
pH--Quinhydrone (Cheese).....................................      22.50
Potassium Iodide (Table Salt)................................      67.50
Protein Reducing Substances..................................      45.00
Quinic Acid (Cranberry Juice)................................      78.75
Serum Drainage for Whipped Topping...........................      22.50
Sieve or Particle Size.......................................      22.50
Rate of Wetting (Nondairy Creamer)...........................      22.50
Reducing Sugars..............................................      90.00
Water Activity...............................................      22.50
Water Insoluble Inorganic Residues (WIIR)....................      90.00
------------------------------------------------------------------------


    Table 5--Single Test Laboratory Fees for Microbiological Analyses
------------------------------------------------------------------------
                       Type of analysis                         List fee
------------------------------------------------------------------------
Aerobic (Standard) Plate Count...............................     $22.50
Anaerobic Bacterial Plate Count..............................      33.75
Bacillus cereus..............................................      90.00
Bacterial Direct Microscopic Count...........................      45.00
Coliform Plate Count (Dairy Products)........................      22.50
Coliform Plate Count, Violet Red Bile Agar (Presumptive            33.75
 Coliform Plate Count).......................................
Coliforms, Most Probable Number (MPN) \1\:
  Step 1.....................................................      33.75
  Step 2.....................................................      22.50
Direct Microscopic Clump Count--(Field Submitted Smears, Less      11.25
 Than or Equal To 75 Million Count)..........................
Direct Microscopic Clump Count--(Field Submitted Smears,           45.00
 Greater Than 75 Million Count)..............................
Direct Microscopic Clump Count--(Lab Prepared Smears)........      45.00
E. coli, Presumptive MPN (Additional) \2\....................     $45.00
E. coli (MUG \3\)............................................      33.75
Enterococci Count............................................     135.00
Howard Mold Count \4\........................................      56.25
Lactobacillus Count \5\......................................      56.25
Lactic Acid Tolerant Microbes................................      22.50
Listeria monocytogenes Confirmation Analysis \6\:
  Step 1.....................................................      67.50
  Step 2.....................................................      56.25
  Step 3 (Confirmation)......................................     112.50
Parasite Identification......................................     180.00
Psychrotrophic Bacterial Plate Count.........................      45.00
Salmonella (USDA Culture Method) \7\:
  Step 1.....................................................      78.75
  Step 2.....................................................      33.75
  Step 3 (Confirmation)......................................      56.25
Salmonella Enumeration (Complete Test).......................     135.00
Salmonella (Rapid Methods) \8\:
  Step 1.....................................................      78.75
  Step 2.....................................................      33.75
  Step 3 (Confirmation)......................................      56.25
Salmonella typhi (Meat Products) \9\.........................      45.00
Staphylococcus aureus, Direct Plating........................      67.50
Staphylococcus aureus, MPN: With Coagulase Positive                78.75
 Confirmation................................................
Thermoduric Bacterial Plate Count............................      33.75
Yeast and Mold Count.........................................      22.50
Yeast and Mold Differential Confirmation.....................      22.50
Yeast and Mold Differential Plate Count......................      33.75
Yeast or Mold Confirmation...................................     22.50
------------------------------------------------------------------------
\1\ Coliform MPN analysis may be in two steps as follows: Step 1--
  presumptive test through lauryl sulfate tryptose broth; Step 2--
  confirmatory test through brilliant green lactose bile broth.
\2\ Step 1 of the coliform MPN analysis is a prerequisite for the
  performance of the presumptive E. coli test. Prior enrichment in
  lauryl sulfate tryptose broth is required for optical recovery of
  E.coli from inoculated and incubated EC broth (Escherichia coli
  broth). The E. coli test is performed through growth on eosin
  methylene blue agar. The fee stated for E. coli analysis is a
  supplementary charge to step 1 of coliform test.
\3\ In the presence of the substrate 4-methylumbelliferone-[beta]-D-
  glucuronide (MUG), the enzyme [beta]-glucuronidase, which is found in
  the majority of E. coli strains, produces a fluorogenic end product
  which is visible under ultraviolet (UV) light.
\4\ Howard Mold Count involves counting mold filaments in commodity
  products.
\5\ Determination of bacterial plate count of different species of
  Lactobacillus.
\6\ Listeria monocytogenes test using the USDA method may be in three
  steps as follows: Step 1--isolation by University of Vermont modified
  (UVM) broth and Fraser's broth enrichments and selective plating with
  Modified Oxford (MOX) agar; Presumptive Step 2--typical colonies
  inoculated from Horse Blood into brain heart infusion (BHI) broth and
  check for characteristic motility; Confirmatory Step 3--culture from
  BHI broth with typical motility is inoculated into the seven
  biochemical medias, BHI agar for oxidase and catalase tests, Motility
  test medium, and Christie-Atkins-Munch-Peterson (CAMP) test.
Listeria monocytogenes test using the FDA method may be in three steps
  as follows: Step 1--isolation by trypticase soy broth with 0.6% yeast
  extract (TSB-YE) broth enrichment and selective plating with Modified
  McBrides agar and Lithium chloride Phenylethanol Moxalactam (LPM)
  agar; Presumptive Step 2--typical colonies inoculated to trypticase
  soy agar with yeast extract (TSA-YE) with sheep blood plates to check
  for hemolysis followed by inoculations to BHI broth and TSA-YE plates
  to check for characteristic motility, gram stain and catalase test;
  Confirmatory Step 3--culture from BHI broth with typical motility for
  wet mount is inoculated into the required 10 biochemical medias,
  Sulfide-Indole-Motility (SIM) medium, and the CAMP test. Serology is
  checked using growth from TSA-YE plates.
Both methods for Listeria determination have the equivalent time needed
  for each step.
\7\ Salmonella test may be in three steps as follows: Step 1-- growth
  through differential agars; Step 2--growth and testing through triple
  sugar iron and lysine iron agars; Step 3-- confirmatory test through
  biochemicals, and polyvalent serological testing with Poly ``O'' and
  Poly ``H'' antiserums. The serological typing of Salmonella is
  requested on occasion.

[[Page 235]]

 
\8\ Salmonella test may be in three steps as follows: Step 1--growth in
  enrichment broths and ELISA test or DNA hybridization system assay;
  Step 2--growth and testing through triple sugar iron and lysine iron
  agars; Step 3--confirmatory test through biochemicals, and polyvalent
  serological testing with Poly ``O'' and Poly ``H'' antiserums.
\9\ Salmonella typhi determination in mechanically deboned meat.


             Table 6--Laboratory Fees for Aflatoxin Analyses
------------------------------------------------------------------------
                                                  Single        Pair
         Aflatoxin test by commodity             analysis   analyses \1\
------------------------------------------------------------------------
Peanut Butter (TLC-CB, HPLC, Affinity Column)       $45.00        \2\ NA
Corn (TLC-CB, HPLC, Affinity Column).........        45.00            NA
Roasted Peanuts (TLC-BF).....................        45.00            NA
Brazil Nuts (TLC-BF).........................        90.00            NA
Pistachio Nuts (TLC-BF, HPLC)................        90.00            NA
Shelled Peanuts (TLC, Affinity Column).......        45.00        $38.00
Shelled Peanuts (HPLC).......................        45.00         70.00
Tree Nuts (TLC)..............................        45.00            NA
Oilseed Meals (TLC, HPLC, Affinity Column)...       $45.00            NA
Edible Seeds (TLC)...........................        45.00            NA
Dried Fruit (TLC)............................        45.00            NA
Small Grains (TLC)...........................        45.00            NA
In-Shell Peanuts Affinity Column (TLC).......        45.00         38.00
In-Shell Peanuts (HPLC)......................        45.00         70.00
Silage; Other Grains (TLC)...................        45.00            NA
Submitted Samples (TLC, HPLC, Affinity               45.00            NA
 Column).....................................
Aflatoxin (Dairy, Eggs)......................       157.50           NA
------------------------------------------------------------------------
\1\ Aflatoxin testing of raw peanuts under Peanut Marketing Agreement
  for subsamples 1-AB, 2-AB, 3-AB, and 1-CD for single or pair of
  analyses is $19.00 or $38.00, respectively using Thin-Layer
  Chromatography (TLC) and Best Foods (BF) extraction or immunoaffinity
  column assay with fluorometric quantitation. The BF method has been
  modified to incorporate a water slurry extraction procedure. The
  Contaminants Branch (CB) method is used on occasion as an alternative
  method for peanuts and peanut meal when doubt exists as to the
  effectiveness of the Best Foods method in extracting aflatoxin from
  the sample or when background interferences exist that might mask TLC
  quantitation of aflatoxin. The cost per single or pair of analyses
  using High Pressure Liquid Chromatography (HPLC) is $35.00 and $70.00,
  respectively. Other aflatoxin for fruits and vegetables are listed at
  Science and Technology's current hourly rate of $45.00.
\2\ NA denotes not applicable.


     Table 7--Miscellaneous Charges Supplemental to the Science and
                  Technology's Laboratory Analysis Fees
------------------------------------------------------------------------
       Laboratory service description                  List fee
------------------------------------------------------------------------
Sample Grinding by Vertical Cutter Mixer     $22.50
 (VCM).
Sample Grinding Canned Boned Poultry.......  $11.25 per can.
Sample Grinding by Dickens Hammer Mill.....  $11.25.
Sample Grinding (Meats, Meat Products,
 Meals, Ready-to-Eat):
    Per pouch or raw sample................  $11.25.
    Per tray pack..........................  $22.50.
Composting Multiple Subsamples for an        Varies--Preparation fee
 Individual Test Sample Unit per subsample.   based on $45.00 per hour.
------------------------------------------------------------------------


    Table 8--Additional Charges Applicable to the Sample Receipt and
                             Analysis Report
------------------------------------------------------------------------
            Service description                      List charge
------------------------------------------------------------------------
Courier Expense at Other AMS Laboratories:   Varies (based on total
 Mileage Charge Set at 32.5[cent] Per Mile    mileage).
 Round Trip from Laboratory to Delivery
 Site.
Facsimile Charge (Per Analysis Report).....  $3.20 minimum up to first 3
                                              pages, then $1.50 per
                                              page.
Additional Analysis Report or Extra          $22.50 per report or
 Certificate (\1/2\ hour charge).             certificate reissued.
------------------------------------------------------------------------


[65 FR 64311, Oct. 26, 2000]



Sec. 91.38  Additional fees for appeal of analysis.

    (a) The appellant will be charged an additional fee at a rate of 1.5 
times the standard rate stated in Sec. 91.37 (a) if, as a result of an 
authorized appeal analysis, it is determined that the original test 
results are correct. The appeal laboratory rate is $67.50 per analysis 
hour.
    (b) The appeal fee will be waived if the appeal laboratory test 
discloses

[[Page 236]]

that an inadvertent error was made in the original analysis.

[65 FR 64314, Oct. 26, 2000]



Sec. 91.39  Premium hourly fee rate for overtime and legal holiday service.

    (a) Laboratory analyses initiated at the special request of the 
applicant to be rendered on Saturdays, Sundays, Federal holidays, and on 
an overtime basis will be charged at a rate of 1.5 times the standard 
rate stated in Sec. 91.37 (a). The premium laboratory rate for holiday 
and overtime service will be $67.50 per analysis hour.
    (b) Information on legal holidays or what constitutes overtime 
service at a particular S&T laboratory is available from the Laboratory 
Director or facility supervisor.

[65 FR 64314, Oct. 26, 2000]



Sec. 91.40  Fees for courier service and facsimile of the analysis report.

    (a) The Science and Technology laboratories have a courier charge 
per trip to retrieve the sample package. The courier service charge is 
determined from the established single standard mileage rate and from 
the total authorized distance based on the shortest round trip route 
from laboratory to sample retrieval site. Pursuant to the requirements 
of paragraph (a) (1) of Sec. 5704 of Title 5, United States Code 
(U.S.C.), the automobile reimbursement rate cannot exceed the single 
standard mileage rate established by the Internal Revenue Service (IRS).
    (b) The faxing of laboratory analysis reports or certificates is an 
optional service for each S&T facility offered at a fee specified in 
table 8 in Sec. 91.37.

[65 FR 64314, Oct. 26, 2000]



Sec. 91.41  Charges for demonstrations and courses of instruction.

    Charges, not in excess of the cost thereof and as approved by the 
Deputy Administrator, may be made for demonstrations, samples, or 
courses of instruction when such are furnished upon request.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64314, Oct. 26, 2000]



Sec. 91.42  Billing.

    (a) Each billing cycle will end on the 25th of the month. The 
applicant will be billed by the National Finance Center using the 
Billings and Collections System (BLCO) on the 1st day, following the end 
of the billing cycle in which voluntary laboratory services and other 
services were rendered at a particular Science and Technology 
laboratory.
    (b) The total charge shall normally be stated directly on the 
analysis report or on a standardized official certificate form for the 
laboratory analyses of a specific agricultural commodity and related 
commodity products.
    (c) The actual bill for collection will be issued by the USDA, 
National Finance Center Billings and Collection Branch, (Mail: P.O. Box 
60075), 13800 Old Gentilly Road, New Orleans, Louisiana 70160-0001.

[65 FR 64314, Oct. 26, 2000]



Sec. 91.43  Payment of fees and charges.

    (a) Fees and charges for services shall be paid by the applicant, by 
check or money order payable, to the ``Agricultural Marketing Service, 
USDA'' and sent to the office indicated on the bill.
    (b) Fees and charges for services under a cooperative agreement with 
a State or other AMS programs or other governmental agency will be paid 
in accordance with the terms of the cooperative agreement.
    (c) As necessary, the Deputy Administrator may require that fees 
shall be paid in advance of the performance of the requested service. 
Any fees paid in excess of the amount due shall be used to offset future 
billings, unless a request for a refund is made by applicant.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64315, Oct. 26, 2000]



Sec. 91.44  Charges on overdue accounts and issuance of delinquency notices.

    (a) Accounts are considered overdue if payment is late with the 
National Finance Center (NFC). The timeliness of a payment will be based 
on the postmark date of the payment or the date of receipt by the NFC if 
no postmark

[[Page 237]]

date is present or legible. Bills are payable upon receipt and become 
delinquent 30 days from date of billing.
    (b) Any amount due not paid by the due date will be increased by a 
late payment charge. The actual assessed rate applied to overdue 
accounts is set quarterly by the Department of the Treasury. This amount 
is one-twelfth of one year's late penalty interest rate computed at the 
prescribed rate.
    (c) Overtime or holiday laboratory service will not be performed for 
any applicant with a notice of delinquency.
    (d) Applicants with three notices of delinquency will be reviewed 
for possible termination of services. A deposit in advance sufficient to 
cover the fees and expenses for any subsequent service may be required 
of any person failing to pay in claim after issuance of such notice of 
delinquency.
    (e) The Deputy Administrator of S&T program and personnel of the 
USDA, NFC Billings and Collections Branch (address as listed in 
Sec. 91.42) will take such actions as may be necessary to collect any 
delinquent amounts due for accounts in claim status.

[58 FR 42415, Aug. 9, 1993, as amended at 65 FR 64315, Oct. 26, 2000]



Sec. 91.45  Charges for laboratory services on a contract basis.

    (a) Irrespective of hourly fee rates and charges prescribed in 
Sec. 91.37, or in other sections of this subchapter E, the Deputy 
Administrator may enter into contracts with applicants to perform 
continuous laboratory services or other types of laboratory services 
pursuant to the regulations in this part and other requirements, as 
prescribed by the Deputy Administrator in such contract. In addition, 
the charges for such laboratory services, provided in such contracts, 
shall be on such basis as will reimburse the Agricultural Marketing 
Service of the Department for the full cost of rendering such laboratory 
services, including an appropriate overhead charge to cover 
administrative overhead expenses as may be determined by the 
Administrator.
    (b) Irrespective of hourly fee rates and charges prescribed in this 
subpart I, or in other parts of this subchapter E, the Deputy 
Administrator may enter into a written Memorandum of Understanding (MOU) 
or agreement with any administrative agency or governing party for the 
performance of laboratory services pursuant to said agreement or order 
on a basis that will reimburse the Agricultural Marketing Service of the 
Department for the full cost of rendering such laboratory service, 
including an appropriate overhead administrative overhead charge.
    (c) The conditions and terms for renewal of such Memorandum of 
Understanding or agreement shall be specified in the contract.

[65 FR 64315, Oct. 26, 2000]



PART 92--TOBACCO--Table of Contents




Sec.
92.1  General.
92.2  Definitions.
92.3  Location for laboratory testing and kind of services available.
92.4  Approved forms for reporting analytical results.
92.5  Analytical methods.
92.6  Cost for pesticide analysis set by cooperative agreement.

    Authority: 7 U.S.C. 511m, 511r.

    Source: 58 FR 42424, Aug. 9, 1993, unless otherwise noted.



Sec. 92.1  General.

    Analytical testing of imported flue-cured and burley tobacco is 
performed for maximum allowable pesticide residue levels. Domestic grown 
tobacco may also be analyzed for pesticide residues at the Science and 
Technology's Eastern Laboratory facility.

[58 FR 42424, Aug. 9, 1993, as amended at 61 FR 51350, Oct. 2, 1996, 61 
FR 55840, Oct. 29, 1996; 65 FR 64315, Oct. 26, 2000]



Sec. 92.2  Definitions.

    Words used in the regulations in this part in the singular form will 
import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this part, unless the context requires 
otherwise, the following terms will be construed to mean:
    Air-cured. Tobacco cured under natural atmospheric conditions. 
Artificial heat is sometimes used to control excess humidity during the 
curing period to prevent house-burn, barn-burn and pole-burn in damp 
weather. Air-cured tobacco should not carry the odor of

[[Page 238]]

smoke or fumes resulting from the application of artificial heat.
    AMS. The abbreviations for the Agricultural Marketing Service (AMS) 
agency of the United States Department of Agriculture.
    Burley. A thin to medium-bodied tobacco, usually a light tan to 
reddish-brown in color.
    Burley, Type 93. That type of air-cured tobacco commonly known as 
foreign-grown Burley, produced in countries other than the United 
States.
    Certificate of Analysis (Form TB-92). A legal document on which the 
confirmed test results for official samples will be testified to be 
correct by a Science and Technology chemist in charge of testing.
    Cured. Tobacco dried of its sap by either natural or artificial 
processes.
    2,4-D. The common abbreviation for the acid herbicide 2,4-
Dichlorophenoxyacetic acid.
    DBCP. The common abbreviation for the volatile fumigant pesticide 
1,2-Dibromo-3-chloropropane.
    DDE. The common abbreviation for the chlorinated pesticide 
Dichlorodiphenyldichloroethylene. Degradation product of DDT by loss of 
one molecule of hydrochloric acid or referred to as a 
dehydrohalogenation process.
    DDT. The common abbreviation for Dichloro diphenyl trichloroethane 
or the common name for the chlorinated insecticide or contact poison 
1,1-Bis(p-chlorophenyl)-2,2,2-trichloroethane.
    Dicamba. The common name for the acid herbicide 2-Methoxy-3,6-
dichlorobenzoic acid.
    EDB. The common abbreviation for Ethylene dibromide or the common 
name for the volatile fumigant pesticide 1,2-Dibromoethane.
    Flue-cured. Tobacco cured under artificial atmospheric conditions by 
a process of regulating the heat and ventilation without allowing smoke 
or fumes from the fuel to come in contact with the tobacco; or tobacco 
cured by some other process which accomplishes the same results.
    Flue-cured, Type 92. That type of flue-cured tobacco commonly known 
as Foreign-grown Flue-cured, produced in countries other than the United 
States.
    Formothion. The common name for the organophosphorus pesticide S-(2-
(Formylmethylamino)-2-oxoethyl) O-O-dimethyl phosphorodithioate.
    HCB. The common abbreviation for the organochlorine pesticide 
Hexachlorobenzene.
    Lot. A unit of shipment of tobacco encompassed by a single invoice. 
The lot may represent a pile, basket, bulk, hack, burden, or more than 
one bale, case, hogshead, tierce, package, or other definite package 
unit.
    Maximum pesticide residue level. The maximum concentration of 
residue allowable for a specific pesticide or combination of pesticides, 
as set forth in 7 CFR 29.427 by the AMS Deputy Administrator of the 
Tobacco Programs.
    Pesticide. Any substance or mixture of substances intended for 
preventing, destroying, repelling, or mitigating any pest, and any 
substance or mixture of substances intended for use as a plant 
regulator, defoliant, or desiccant.
    Pesticide certification. A document issued by the Tobacco Programs 
in a form approved by its AMS Deputy Administrator, containing a 
certification by the importer that flue-cured and burley tobacco offered 
for importation does not exceed the maximum allowable residue levels of 
any pesticide that has been canceled, suspended, revoked, or otherwise 
prohibited under the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA).
    Pesticide test sample. An official sample or samples, collected from 
a lot of tobacco by the AMS Tobacco Programs inspector for analysis by a 
certified chemist to ascertain the residue levels of pesticides that 
have been canceled, suspended, revoked, or otherwise prohibited under 
the FIFRA.
    Sample Identification Form (Form TB-89). A document titled 
``Imported Tobacco Pesticide Residue Analysis'' that is approved by the 
AMS Deputy Administrator of the Tobacco Programs that identifies and 
accompanies the sample to the testing facility.
    2,4,5-T. The common abbreviation for the acid herbicide 2,4,5-
Trichlorophenoxyacetic acid.
    TDE. DDD or the common abbreviation for the chlorinated insecticide 
1,1-Dichloro-2,2-bis(p-chlorophenyl)ethane (CAS number 72-54-8).

[[Page 239]]

    Testing. The chemical analysis of a pesticide test sample to 
determine the presence and levels of pesticide residues.
    Tobacco. Tobacco as it appears between the time it is cured and 
stripped from the stalk, or primed and cured, in whole leaf or strip 
form, and the time it enters into the different manufacturing processes. 
Conditioning, sweating, stemming, and threshing are not regarded as 
manufacturing processes. Tobacco, as used in this part, does not include 
manufactured or semi-manufactured products, stems, cuttings, clippings, 
trimmings, siftings, or dust.

[58 FR 42424, Aug. 9, 1993, as amended at 65 FR 64315, Oct. 26, 2000]



Sec. 92.3  Location for laboratory testing and kind of services available.

    (a) The analytical testing of imported Type 92 flue-cured tobacco 
samples and imported Type 93 burley tobacco samples for maximum 
pesticide residue level determinations is performed at the AMS Science 
and Technology's Eastern Laboratory, and is located at: USDA, AMS, 
Science and Technology, Eastern Laboratory (Chemistry), 645 Cox Road, 
Gastonia, NC 28054-0614.
    (b) Domestic-grown tobacco and tobacco products may be analyzed for 
acid herbicides, chlorinated hydrocarbons, fumigants, and 
organophosphates at the Science and Technology facility in this section.
    (c) The Science and Technology facility performs for the AMS Tobacco 
Programs the quantitative and confirmatory chemical residue analyses on 
pesticide test samples of imported tobacco for the following specific 
pesticides:
    (1) Organochlorine pesticides such as Dichloro-
diphenyldichloroethylene (DDE), Dichloro Diphenyl Trichloroethane (DDT), 
1,1-Dichloro-2,2-bis(p-chlorophenyl)ethane (TDE), Toxaphene, Endrin, 
Aldrin, Dieldrin, Heptachlor, Methoxychlor, Chlordane, Heptachlor 
Epoxide, Hexachlorobenzene (HCB), Cypermethrin, and Permethrin. (2) 
Organophosphorus pesticides such as Formothion. (3) Fumigants such as 
Ethylene Dibromide (EDB) and Dibromochloropropane (DBCP). (4) Acid 
herbicides such as 2,4-D, 2,4,5-T, and Dicamba.

[65 FR 64315, Oct. 26, 2000]



Sec. 92.4  Approved forms for reporting analytical results.

    (a) Form TB-89, ``Imported Tobacco Pesticide Residue Analysis'' 
certificate, is enclosed with and identifies the sample submitted to the 
laboratory.
    (b) Test results of the pesticide analyses for tobacco shall be 
recorded on ``Certificate of Analysis For Official Samples'', Form TB-
92, and shall be expressed as parts by weight of the residue per one 
million parts by weight of the tobacco sample (parts per million or 
ppm), which concentration is representative for each particular 
pesticide residue found in the lot of tobacco. Form TB-92 is attached to 
Form TB-89 that is returned to the AMS Tobacco Programs. The analytical 
data on Form TB-92 substantiates the information placed on Form TB-89.

[58 FR 42424, Aug. 9, 1993, as amended at 65 FR 64316, Oct. 26, 2000]



Sec. 92.5  Analytical methods.

    Every chemist certified to analyze tobacco samples for pesticide 
residue contamination shall follow precisely the USDA developed 
analytical test methods and all successive official method updates, as 
approved by the AMS Deputy Administrator, Science and Technology. Many 
of the official analyses for tobacco are found in the following manuals:
    (a) Manual of Analytical Methods for the Analysis of Pesticide 
Residues in Human and Environmental Samples, EPA 600/9-80-038, U.S. 
Environmental Protection Agency (EPA) Chemical Exposure Research Branch, 
EPA Office of Research and Development (ORD), 26 West Martin Luther King 
Drive, Cincinnati, Ohio 45268.
    (b) Official Methods of Analysis of AOAC INTERNATIONAL, Volumes I & 
II, AOAC INTERNATIONAL, 481 North Frederick Avenue, Suite 500, 
Gaithersburg, MD 20877-2417.
    (c) U.S. Food and Drug Administration, Pesticide Analytical Manuals 
(PAM), Volumes I and II, Food and Drug Administration, Center for Food 
Safety and Applied Nutrition (CFSAN),

[[Page 240]]

200 C Street, SW, Washington, DC 20204 (available from National 
Technical Information Service (NTIS), U.S. Department of Commerce, 5285 
Port Royal Road, Springfield, VA 22161).

[65 FR 64316, Oct. 26, 2000]



Sec. 92.6  Cost for pesticide analysis set by cooperative agreement.

    The fee for the pesticide analysis of tobacco is set by the AMS 
Tobacco Programs, in conjunction with the AMS Science and Technology 
program, and appears at 7 CFR 29.500 as part of Tobacco Programs' fees 
for sampling and certification of imported flue-cured and burley 
tobacco. A Memorandum of Understanding (MOU) exists between the Tobacco 
Programs and the Science and Technology (S&T) for the testing of 
imported tobacco samples for pesticide residue contamination, and the 
corresponding agreement on the cost of analyses is specified in the MOU.

[65 FR 64316, Oct. 26, 2000]



PART 93--PROCESSED FRUITS AND VEGETABLES--Table of Contents




          Subpart A--Citrus Juices and Certain Citrus Products

Sec.
93.1  General.
93.2  Definitions.
93.3  Analyses available and location of laboratory.
93.4  Analytical methods.
93.5  Fees for citrus product analyses set by cooperative agreement.

         Subpart B--Peanuts, Tree Nuts, Corn and Other Oilseeds

93.10  General.
93.11  Definitions.
93.12  Analyses available and locations of laboratories.
93.13  Analytical methods.
93.14  Fees for aflatoxin analysis and fees for testing of other 
          mycotoxins.
93.15  Fees for analytical testing of oilseeds.

    Authority: 7 U.S.C. 1622, 1624.

    Source: 61 FR 51351, Oct. 2, 1996, unless otherwise noted.



          Subpart A--Citrus Juices and Certain Citrus Products



Sec. 93.1  General.

    Domestic and imported citrus products are tested to determine 
whether quality and grade standards are satisfied as set forth in the 
Florida Citrus Code.



Sec. 93.2  Definitions.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this subpart, unless the context requires 
otherwise, the following terms will be construed to mean:
    Acid. The grams of total acidity, calculated as anhydrous citric 
acid, per 100 grams of juice or citrus product. Total acidity is 
determined by titration with standard sodium hydroxide solution, using 
phenolphthalein as indicator.
    Brix or degrees Brix. The percent by weight concentration of the 
total soluble solids of the juice or citrus product when tested with a 
Brix hydrometer calibrated at 20  deg.C (68  deg.F) and to which any 
applicable temperature correction has been made. The Brix or degrees 
Brix may be determined by any other method which gives equivalent 
results.
    Brix value. The pure sucrose or soluble solids value of the juice or 
citrus product determined by using the refractometer along with the 
``International Scale of Refractive Indices of Sucrose Solutions'' and 
to which the applicable correction for acidity is added. The Brix value 
is determined in accordance with the refractometer method outlined in 
the Official Methods of Analysis of AOAC INTERNATIONAL, Volumes I & II.
    Brix value/acid ratio. The ratio of the Brix value of the juice or 
citrus product, in degrees Brix, to the grams of anhydrous citric acid 
per 100 grams of juice or citrus product.
    Brix/acid ratio. The ratio of the degrees Brix of the juice to the 
grams of anhydrous citric acid per 100 grams of the juice.
    Citrus. All plants, edible parts and commodity products thereof, 
including pulp and juice of any orange, lemon,

[[Page 241]]

lime, grapefruit, mandarin, tangerine, kumquat or other tree or shrub in 
the genera Citrus, Fortunella, or Poncirus of the plant family Rutaceae.
    Recoverable oil. The percent of oil by volume, determined by the 
bromate titration method after distillation and acidification as 
described in the current edition of the Official Methods of Analysis of 
AOAC INTERNATIONAL, Volumes I & II.

[61 FR 51351, Oct. 2, 1996, as amended at 65 FR 64316, Oct. 26, 2000]



Sec. 93.3  Analyses available and location of laboratory.

    (a) Laboratory analyses of citrus juice and other citrus products 
are being performed at the following Science and Technology location: 
USDA, AMS, S&T Eastern Laboratory (Citrus), 98 Third Street, SW., Winter 
Haven, FL 33880.
    (b) Laboratory analyses of citrus fruit and products in Florida are 
available in order to determine if such commodities satisfy the quality 
and grade standards set forth in the Florida Citrus Code (Florida 
Statutes Pursuant to Chapter 601). Such analyses include tests for acid 
as anhydrous citric acid, Brix, Brix/acid ratio, recoverable oil, and 
artificial coloring matter additive, as turmeric. The Fruit and 
Vegetable Inspectors of the Division of Fruit and Vegetable of the 
Florida Department of Agriculture and Consumer Services may also request 
analyses for arsenic metal, pulp wash (ultraviolet and fluorescence), 
standard plate count, yeast with mold count, and nutritive sweetening 
ingredients as sugars.
    (c) There are additional laboratory tests available upon request at 
the Science and Technology Eastern (Citrus) Laboratory at Winter Haven, 
Florida. Such analyses include tests for vitamins, naringin, sodium 
benzoate, Salmonella, protein, salt, pesticide residues, sodium metal, 
ash, potassium metal, and coliforms for citrus products.

[65 FR 64316, Oct. 26, 2000]



Sec. 93.4  Analytical methods.

    (a) The majority of analytical methods for citrus products are found 
in the Official Methods of Analysis of AOAC INTERNATIONAL, Volumes I & 
II, AOAC INTERNATIONAL, 481 North Frederick Avenue, Suite 500, 
Gaithersburg, MD 20877-2417.
    (b) Other analytical methods for citrus products may be used as 
approved by the AMS Deputy Administrator, Science and Technology (S&T).

[65 FR 64317, Oct. 26, 2000]



Sec. 93.5  Fees for citrus product analyses set by cooperative agreement.

    The fees for the analyses of fresh citrus juices and other citrus 
products shall be set by mutual agreement between the applicant, the 
State of Florida, and the AMS Deputy Administrator, Science and 
Technology programs. A Memorandum of Understanding (MOU) or cooperative 
agreement exists presently with the AMS Science and Technology and the 
State of Florida, regarding the set hourly rate and the costs to perform 
individual analytical tests on Florida citrus products, for the State.

[65 FR 64317, Oct. 26, 2000]



         Subpart B--Peanuts, Tree Nuts, Corn and Other Oilseeds



Sec. 93.10  General.

    Chemical analyses are performed to detect the presence of aflatoxin 
in lots of shelled peanuts and peanut products, as well as in other nuts 
and agricultural products. In addition, proximate chemical analyses for 
quality determination are performed on oilseeds.



Sec. 93.11  Definitions.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this subpart, unless the context requires 
otherwise, the following terms will be construed to mean:
    Aflatoxin. A toxic metabolite produced by the molds Aspergillus 
flavus, Aspergillus parasiticus, and Aspergillus nomius. The aflatoxin 
compounds fluoresce when viewed under UV light as follows: aflatoxin 
B1 and derivatives with a blue fluorescence, aflatoxin 
B2 with a blue-violet fluorescence, aflatoxin G1 
with a green fluorescence,

[[Page 242]]

aflatoxin G2 with a green-blue fluorescence, aflatoxin 
M1 with a blue-violet fluorescence, and aflatoxin 
M2 with a violet fluorescence. These closely related 
molecular structures are referred to as aflatoxin B1, 
B2, G1, G2, M1, 
M2, GM1, B2a, 
G2a, R0, B3, 1-
OCH3B2, and 1-CH3G2.
    Peanut Administrative Committee (PAC). The committee established 
under the United States Department of Agriculture Marketing Agreement 
for Peanuts, 7 CFR part 998, which administers the terms and provisions 
of this Agreement, including the aflatoxin control program for 
domestically produced raw peanuts, for peanut shellers. The Peanut 
Administrative Committee (PAC) headquarters are at 2537 Lafayette Plaza 
Drive Suite A; Albany, Georgia 31707.
    Peanut Marketing Agreement. The agreement concerning the regulations 
and instructions set forth since July 12, 1965, by the Peanut 
Administrative Committee for the marketing of peanuts entered into by 
handlers of domestically produced peanuts under the authority of the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 
et seq.).
    Peanuts. The seeds of the legume Arachis hypogaea, and includes both 
inshell and shelled nuts.
    Seed. Any vegetable or other agricultural plant ovule having an 
embryo that is capable of germinating to produce a plant.

[61 FR 51351, Oct. 2, 1996, as amended at 63 FR 16375, Apr. 2, 1998; 65 
FR 64317, Oct. 26, 2000]



Sec. 93.12  Analyses available and locations of laboratories.

    (a) Aflatoxin testing services. The aflatoxin analyses for peanuts, 
peanut products, dried fruits, grains, edible seeds, tree nuts, shelled 
corn products, cottonseed, oilseed products and other commodities are 
performed at the following 6 locations for AMS Science and Technology 
(S&T) Aflatoxin Laboratories:

(1) USDA, AMS, S&T
    1211 Schley Avenue, Albany, GA 31707.
(2) USDA, AMS, S&T
    c/o Golden Peanut Company, Mail: P.O. Box 279, 301 West Pearl 
Street, Aulander, NC 27805.
(3) USDA, AMS, S&T
    610 North Main Street, Blakely, GA 31723.
(4) USDA, AMS, S&T
    107 South Fourth Street, Madill, OK 73446.
(5) USDA, AMS, S&T
    c/o Cargill Peanut Products, Mail: P.O. Box 272, 715 North Main 
Street, Dawson, GA 31742-0272.
(6) USDA, AMS, S&T
    Mail: P.O. Box 1130, 308 Culloden Street, Suffolk, VA 23434.

    (b) Peanuts, peanut products, and oilseed testing services.
    (1) The Science and Technology (S&T) Aflatoxin Laboratories at 
Madill, Oklahoma and Blakely, Georgia will perform other analyses for 
peanuts, peanut products, and a variety of oilseeds. The analyses for 
oilseeds include testing for free fatty acids, ammonia, nitrogen or 
protein, moisture and volatile matter, foreign matter, and oil (fat) 
content.
    (2) All of the analyses described in paragraph (b)(1) of this 
section performed on a single seed sample are billed at the rate of one 
hour per sample. Any single seed analysis performed on a single sample 
is billed at the rate of one-half hour per sample. The standard hourly 
rate shall be as specified in Sec. 91.37(a) of this subchapter.
    (c) Vegetable oil testing services. The analyses for vegetable oils 
are performed at the USDA, AMS, Science and Technology (S&T) Midwestern 
Laboratory, 3570 North Avondale Avenue, Chicago, IL 60618-5391. The 
analyses for vegetable oils will include the flash point test, smoke 
point test, acid value, peroxide value, phosphorus in oil, and specific 
gravity. The fee charged for any single laboratory analysis for 
vegetable oils shall be obtained from the Midwestern Laboratory Director 
and it is based on the hourly fee rates and charges as specified in 7 
CFR part 91, subpart I.

[65 FR 64317, Oct. 26, 2000]



Sec. 93.13  Analytical methods.

    Official analyses for peanuts, nuts, corn, oilseeds, and related 
vegetable oils are found in the following manuals:
    (a) Approved Methods of the American Association of Cereal Chemists

[[Page 243]]

(AACC), American Association of Cereal Chemists/Eagan Press, 3340 Pilot 
Knob Road, St. Paul, Minnesota 55121-2097.
    (b) ASTA's Analytical Methods Manual, American Spice Trade 
Association (ASTA), 560 Sylvan Avenue, P.O. Box 1267, Englewood Cliffs, 
New Jersey 07632.
    (c) Analyst's Instruction for Aflatoxin (August 1994), S&T 
Instruction No. 1, USDA, Agricultural Marketing Service, Science and 
Technology, 3521 South Agriculture Building, 1400 Independence Avenue, 
SW., P.O. Box 96456, Washington, DC 20090-6456.
    (d) Official Methods and Recommended Practices of the American Oil 
Chemists' Society (AOCS), American Oil Chemists' Society, P.O. Box 3489, 
2211 West Bradley Avenue, Champaign, Illinois 61821-1827.
    (e) Official Methods of Analysis of AOAC INTERNATIONAL, Volumes I & 
II, AOAC INTERNATIONAL, 481 North Frederick Avenue, Suite 500, 
Gaithersburg, MD 20877-2417.
    (f) Standard Analytical Methods of the Member Companies of Corn 
Industries Research Foundation, Corn Refiners Association (CRA), 1701 
Pennsylvania Avenue, NW., Washington, DC 20006.
    (g) U.S. Army Natick Research, Development and Engineering Center's 
Military Specifications, approved analytical test methods noted therein, 
Code NPP-9, Department of Defense Single Stock Point (DODSSP) for 
Military Specifications, Standards, Building 4/D, 700 Robbins Avenue, 
Philadelphia, PA 19111-5094.

[65 FR 64317, Oct. 26, 2000]



Sec. 93.14  Fees for aflatoxin analysis and fees for testing of other mycotoxins.

    (a) The fee charged for any laboratory analysis for aflatoxins and 
other mycotoxins shall be obtained from the Laboratory Director for 
aflatoxin laboratories at the Dothan administrative office as follows: 
USDA, AMS, Science & Technology, 3119 Wesley Way, Suite 6, Dothan, 
Alabama 36305, Voice Phone: 334-794-5070, Facsimile: 334-792-1432.
    (b) The charge for the aflatoxin testing of raw peanuts under the 
Peanut Marketing Agreement for subsamples 1-AB, 2-AB, 3-AB, and 1-CD is 
a set cost per pair of analyses and shall be set by cooperative 
agreement between the Peanut Administrative Committee and AMS Science 
and Technology program.

[65 FR 64317, Oct. 26, 2000]



Sec. 93.15  Fees for analytical testing of oilseeds.

    The fee charged for any laboratory analysis for oilseeds shall be 
obtained from the Laboratory Director for aflatoxin laboratories at the 
Dothan administrative office as listed in 7 CFR 93.14(a).

[65 FR 64318, Oct. 26, 2000]



PART 94--POULTRY AND EGG PRODUCTS--Table of Contents




              Subpart A--Mandatory Analyses of Egg Products

Sec.
94.1  General.
94.2  Definitions.
94.3  Analyses performed and locations of laboratories.
94.4  Analytical methods.
94.5  Charges for laboratory service.

              Subpart B--Voluntary Analyses of Egg Products

94.100  General.
94.101  Definitions.
94.102  Analyses available.
94.103  Analytical methods.
94.104  Fees and charges.

          Subpart C--Salmonella Laboratory Recognition Program

94.200  [Reserved]

                  Subpart D--Processed Poultry Products

94.300  General.
94.301  Definitions.
94.302  Analyses available and locations of laboratories.
94.303  Analytical methods.
94.304  Fees and charges.

    Authority: Secs. 2-28 of the Egg Products Inspection Act (84 Stat. 
1620-1635; 21 U.S.C. 1031-1056), Agricultural Marketing Act of 1946, 
Secs. 202-208 as amended (60 Stat. 1087-1091; 7 U.S.C. 1621-1627).

    Source: 58 FR 42428, Aug. 9, 1993, unless otherwise noted.

[[Page 244]]


    Editorial Note: Nomenclature changes to part 94 appear at 61 FR 
51352, Oct. 2 1996.



              Subpart A--Mandatory Analyses of Egg Products



Sec. 94.1  General.

    Microbiological, chemical, and physical analysis of liquid, frozen, 
and dried egg products is performed under authority of the Egg Products 
Inspection Act (21 U.S.C. 1031-1056).



Sec. 94.2  Definitions.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this subpart, unless the context requires 
otherwise, the following terms will be construed to mean:
    Egg. The shell egg of the domesticated chicken, turkey, duck, goose, 
or guinea. Some of the terms applicable to shell eggs are defined by the 
AMS Poultry Programs in 7 CFR 57.5.
    Egg product. Any dried, frozen, or liquid eggs, with or without 
added ingredients. However, products which contain eggs only in a 
relatively small proportion or historically have not been, in the 
judgment of the Secretary, considered by consumers as products of the 
egg food industry may be exempted by the Secretary under such conditions 
as may be prescribed to assure that the egg ingredients are not 
adulterated and such products are not represented as egg products. Some 
of the products exempted as not being egg products are specified by the 
AMS Poultry Programs in 7 CFR 57.5.
    Mandatory sample. An official sample of egg product(s) taken for 
testing under authority of the Egg Products Inspection Act (21 U.S.C. 
1031-1056) for analysis by a United States Department of Agriculture, 
Agricultural Marketing Service, Science and Technology laboratory at 
government expense. A mandatory sample shall include an egg product 
sample to be analyzed for microbiological, chemical, or physical 
attributes. A mandatory egg product sample analyzed for the presence of 
Salmonella is also referred to as a confirmation sample as specified by 
the Food Safety and Inspection Service agency of USDA in 9 CFR 590.580, 
paragraph (d).
    Official plant. Any plant, as determined by the Secretary, at which 
the U.S. Department of Agriculture maintains inspection of the 
processing of egg products under the authority of the Egg Products 
Inspection Act.
    Pasteurize. The subjecting of each particle of egg products to heat 
or other treatments to destroy harmful viable microorganisms by such 
processes as may be prescribed by the regulations in the EPIA.
    Pesticide chemical, food additive, color additive, and raw 
agricultural commodity. These terms shall have the same meaning for 
purposes of this subpart as under sections 408, 409, and 706 of the 
Federal Food, Drug, and Cosmetic Act.
    Plant. Any place of business where egg products are processed.
    Processing. Manufacturing of egg products, including breaking eggs 
or filtering, mixing, blending, pasteurizing, stabilizing, cooling, 
freezing, drying, or packaging egg products at official plants.

[58 FR 42428, Aug. 9, 1993, as amended at 65 FR 64318, Oct. 26, 2000]



Sec. 94.3  Analyses performed and locations of laboratories.

    (a) Samples drawn by a USDA egg products inspector will be analyzed 
by AMS Science and Technology (S&T) personnel for microbiological, 
chemical, and physical attributes. The analytical results of these 
samples will be reported to the resident egg products inspector at the 
applicable plant on the official certificate.
    (b) Mandatory egg product samples for Salmonella are required and 
are analyzed in S&T laboratories to spot check and confirm the adequacy 
of USDA approved and recognized laboratories for analyzing routine egg 
product samples for Salmonella.
    (c) Mandatory egg product samples for chlorinated hydrocarbons are 
required and are submitted by the plant inspectors on a random basis. 
These samples screen for pesticide residues and industrial chemical 
contaminants in egg products.
    (d) Samples are drawn by a USDA egg products inspector to determine 
potential adulteration. These egg product

[[Page 245]]

samples may be analyzed for extraneous material, color, color additive, 
pesticide, heavy metal, microorganism, dextrin, or other substance.
    (e) The AMS Science and Technology's Eastern Laboratory shall 
conduct the majority of laboratory analyses for egg products. The 
analyses for mandatory egg product samples are performed at the 
following USDA location: USDA, AMS, Science & Technology, Eastern 
Laboratory (Microbiology), 2311-B Aberdeen Boulevard, Gastonia, NC 
28054-0614.

[58 FR 42428, Aug. 9, 1993, as amended at 59 FR 24325, May 10, 1994; 59 
FR 50121, Sept. 30, 1994; 65 FR 64318, Oct. 26, 2000]



Sec. 94.4  Analytical methods.

    The majority of analytical methods used by the USDA laboratories to 
perform mandatory analyses for egg products are listed as follows:
    (a) Compendium Methods for the Microbiological Examination of Foods, 
Carl Vanderzant and Don Splittstoesser (Editors), American Public Health 
Association, 1015 Fifteenth Street, NW, Washington, DC 20005.
    (b) Edwards, P.R. and W.H. Ewing, Edwards and Ewing's Identification 
of Enterobacteriaceae, Elsevier Science, Inc., Regional Sales Office, 
655 Avenue of the Americas, P.O. Box 945, New York, NY 10159-0945.
    (c) FDA Bacteriological Analytical Manual (BAM), AOAC INTERNATIONAL, 
481 North Frederick Avenue, Suite 500, Gaithersburg, MD 20877-2417.
    (d) Manual of Analytical Methods for the Analysis of Pesticide 
Residues in Human and Environmental Samples, EPA 600/9-80-038, U.S. 
Environmental Protection Agency (EPA) Chemical Exposure Research Branch, 
EPA Office of Research and Development (ORD), 26 West Martin Luther King 
Drive, Cincinnati, Ohio 45268.
    (e) Official Methods of Analysis of AOAC INTERNATIONAL, Volumes I & 
II, AOAC INTERNATIONAL, 481 North Frederick Avenue, Suite 500, 
Gaithersburg, MD 20877-2417.
    (f) Standard Methods for the Examination of Dairy Products, American 
Public Health Association, 1015 Fifteenth Street, NW, Washington, DC 
20005.
    (g) Standard Methods for the Examination of Water and Wastewater, 
American Public Health Association (APHA), the American Water Works 
Association (AWWA) and the Water Pollution Control Federation, AWWA 
Bookstore, 6666 West Quincy Avenue, Denver, CO 80235.
    (h) Test Methods for Evaluating Solid Waste Physical/Chemical 
Methods, Environmental Protection Agency, Office of Solid Waste, SW-846 
Integrated Manual (available from National Technical Information Service 
(NTIS), U.S. Department of Commerce, 5285 Port Royal Road, Springfield, 
VA 22161).
    (i) U.S. Food and Drug Administration, Pesticide Analytical Manuals 
(PAM), Volumes I and II, Food and Drug Administration, Center for Food 
Safety and Applied Nutrition (CFSAN), 200 C Street, SW, Washington, DC 
20204 (available from National Technical Information Service (NTIS), 
U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 
22161).

[65 FR 64318, Oct. 26, 2000]



Sec. 94.5  Charges for laboratory service.

    The costs for analysis of mandatory egg product samples at Science 
and Technology Division laboratories shall be paid by annually 
appropriated and designated funds allocated to the egg products 
inspection program. The costs for any other mandatory laboratory 
analyses and testing of an egg product's identity and condition, 
necessitated by the Egg Products Inspection Act, shall also be paid by 
such program funding.



              Subpart B--Voluntary Analyses of Egg Products



Sec. 94.100  General.

    Analyses for voluntary egg product samples may be requested to 
certify that specifications regarding stated identity, quality, and 
wholesomeness are met; to test routinely for the presence of Salmonella; 
and to ensure laboratory quality control with testing activities.

[[Page 246]]



Sec. 94.101  Definitions.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this part, unless the context requires 
otherwise, the following terms will be construed to mean:
    Certification sample. An egg product sample submitted by an 
applicant for chemical, physical, or microbiological analyses and tests 
at a Science and Technology Division laboratory. This voluntary sample 
is analyzed or tested by the Division's analyst or scientist to certify 
that an egg product lot meets applicable specifications for identity, 
quality, and wholesomeness.
    Surveillance sample. This is a 100 gram sample for Salmonella 
analysis that is drawn by the USDA egg product inspector from each lot 
of egg product processed at an official plant. This sample may be 
analyzed by a Science and Technology Division laboratory, or by a 
laboratory approved and recognized by the Division to analyze for 
Salmonella in egg products.
    Unofficial sample. These samples of egg products are drawn by plant 
personnel upon the request of plant management. Analyses of these 
samples are usually conducted for the plant's refractometer correlation, 
bacteriological evaluation of production techniques, or quality control 
of procedures. Official plant or Science and Technology Division 
laboratories can analyze these samples.



Sec. 94.102  Analyses available.

    A wide array of analyses for voluntary egg product samples is 
available. Voluntary egg product samples include surveillance, 
certification, and unofficial samples. The physical and chemical tests 
for voluntary egg products include analyses for total ash, fat by acid 
hydrolysis, moisture, salt, protein, beta-carotene, catalase, 
cholesterol, NEPA color, density, total solids, aflatoxin, daminozide 
and amitraz residues, BHA, BHT, alcohol, chlorinated hydrocarbon and 
fumigant residues, dextrin, heavy and light filth, glucose, glycerol and 
gums. In addition, egg products can be analyzed for high sucrose 
content, pH, heavy metals and minerals, monosodium dihydrogen phosphate, 
monosodium glutamate, nitrites, oxygen, palatability and odor, 
phosphorus, propylene glycol, SLS, and zeolex. There are also be tests 
for starch, total sugars, sugar profile, whey, standard plate count, 
direct microscopic count, Campylobacter, coliforms, presumptive 
Escherichia coli, Listeria monocytogenes, proteolytic count, 
psychrotrophic bacteria, Salmonella, Staphylococcus, thermoduric 
bacteria, and yeast with mold count.



Sec. 94.103  Analytical methods.

    The analytical methods used by the Science and Technology Division 
laboratories to perform voluntary analyses for egg products shall be the 
same as listed in Sec. 94.4.



Sec. 94.104  Fees and charges.

    (a) The fee charged for any single laboratory analysis of voluntary 
egg product samples shall be obtained from the schedules of charges in 
paragraph (a) of Sec. 91.37 of this subchapter.
    (b) The charge for any requested laboratory analysis not listed 
shall be based on the standard hourly rate specified in Sec. 91.37, 
paragraph (b).



          Subpart C--Salmonella Laboratory Recognition Program



Sec. 94.200  [Reserved]



                  Subpart D--Processed Poultry Products



Sec. 94.300  General.

    Laboratory services of processed poultry products are conducted to 
derive their analytical attributes used to determine the compliance of 
the product with applicable specifications.



Sec. 94.301  Definitions.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this subpart, unless the context requires 
otherwise, the following terms will be construed to mean:

[[Page 247]]

    Dark meat. Refers to the skinless and deboned drumstick, thigh, and 
back portions of poultry.
    Light meat. Refers to the skinless and deboned breast and wing 
portions of poultry.
    Poultry. Any kind of domesticated bird, including, but not limited 
to, chicken, turkey, duck, goose, pigeon, and guinea.
    Poultry product. Any ready-to-cook poultry carcass or part therefrom 
or any specified poultry food product.



Sec. 94.302  Analyses available and locations of laboratories.

    (a) The Science and Technology Division laboratories will analyze 
processed poultry products for moisture, fat, salt, protein, nitrites, 
and added citric acid.
    (b) Deboned poultry for roasting will have the individual dark meat, 
light meat, and skin portions tumbled separately in the natural juices 
prior to grinding. The skin, light meat, and dark meat portion weight 
percentages of the total product are determined. The ground skin, ground 
dark meat, and ground light meat portions will be analyzed separately 
for moisture, protein, salt, and fat. Moisture to protein ratios will be 
reported also for the individual portions of poultry.
    (c) Canned boned poultry for a variety of USDA programs will be 
tested as a total can composite of the canned product for moisture, fat, 
salt, and protein analyses. Additional poultry commodities and related 
products for specific USDA sponsored programs will be tested for 
different chemical and physical attributes.
    (d) Microbiological analyses, as the Salmonella determination, are 
available for poultry products.
    (e) The majority of analyses for processed poultry products shall be 
performed at the Science and technology Division Eastern Laboratory, as 
indicated in paragraph (e) of Sec. 94.3.



Sec. 94.303  Analytical methods.

    The analytical methods used by the USDA laboratories to perform 
analyses for processed poultry products are found in the latest edition 
of the Official Methods of Analysis of AOAC INTERNATIONAL, Suite 500, 
481 North Frederick Avenue, Gaithersburg, MD 20877-2417.

[61 FR 51352, Oct. 2, 1996]



Sec. 94.304  Fees and charges.

    (a) The fee charged for any single laboratory analysis of processed 
poultry products shall be obtained from the schedules of charges in 
paragraph (a) of Sec. 91.37 of this subchapter.
    (b) The laboratory analyses for processed poultry products shall 
result in an additional fee, found in Table 7 of Sec. 91.37 of this 
subchapter, for sample preparation or grinding.
    (c) The charge for any requested laboratory analysis of processed 
poultry products not listed shall be based on the standard hourly rate 
specified in Sec. 91.37 (b) of this subchapter.

                           PART 95 [RESERVED]



PART 96--COTTONSEED SOLD OR OFFERED FOR SALE FOR CRUSHING PURPOSES (CHEMICAL ANALYSIS AND UNITED STATES OFFICIAL GRADE CERTIFICATION)--Table of Contents




          Subpart A--Cottonseed Chemists--Licensing Regulations

                                  Scope

Sec.
96.1  General.

                               Definitions

96.2  Terms defined.

                      Licensed Cottonseed Chemists

96.3  Application for license as cottonseed chemist; form.
96.4  Examination of applicant.
96.5  Period of license; renewals.
96.6  Conditions in licensing.
96.7  Sustained proficiency; suspension of license of cottonseed 
          chemist.
96.8  Annual review of licensed chemist.
96.9  Fees for grading and certification.
96.10  Records of analyses; inspection of certificate recordkeeping.
96.11  Official and unofficial samples; analyses; certificate.
96.12  Unlicensed persons shall not analyze and certify the grade of 
          official samples.
96.13  Grade certificate; form.
96.14  Reports of licensed chemists.
96.15  Information of violations.

[[Page 248]]

96.16  Licensed chemists; suspension or revocation of license.
96.17  Revoked license to be returned to Division.
96.18  Duplicate license.
96.19  Information on grading to be kept confidential.

                            Fees and Charges

96.20  Fee for chemist's license.
96.21  Fee for certificates to be paid by licensee to Service.
96.22  Fees for the review of grading of cottonseed.

            Subpart B--Official Cottonseed Grade Calculations

96.23  General.
96.24  Definitions, cottonseed quality analysis terms.
96.25  Determination of grade.
96.26  Determination of quantity index.
96.27  Determination of quality index.
96.28  Calculation of grades of official samples.
96.29  Analysis and certification of samples and grades.

    Authority: 7 U.S.C. 1622, 1624.

    Source: 58 FR 42431, Aug. 9, 1993, unless otherwise noted.



          Subpart A--Cottonseed Chemists--Licensing Regulations

                                  Scope



Sec. 96.1  General.

    Licenses are issued to chemists of laboratories involved in the 
grading of cottonseed. A chemist that has passed examinations for 
analyst proficiency and for official standards used for grading shall be 
issued a license to perform quality analyses for grade determinations of 
cottonseed.

                               Definitions



Sec. 96.2  Terms defined.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this subpart, unless the context requires 
otherwise, the following terms will be construed to mean:
    Blind check sample. A sample designated to check the routine 
analytical testing performance of the licensed USDA cottonseed chemist. 
The cottonseed is originally mixed in bulk quantities at a Division 
laboratory and packaged so that it is a representative portion for the 
samples forwarded to all chemists in a region under a certain number 
code. An oil mill representative and official cottonseed sampler 
repackage and identify the cottonseed as an official sample so that it 
would be blind or unknown as a check sample to the analyst.
    Commercial laboratory. A chemical laboratory operated by an 
individual, firm, or corporation in which one or more persons are 
engaged in the chemical analysis of materials for the public.
    Cotton gin. The machine or device used to separate the cotton fiber 
from the cottonseed.
    Cottonseed. The word ``cottonseed'' as used in this part means the 
seed, after having been put through the usual and customary process 
known as cotton ginning, of any cotton produced within the continental 
United States.
    Dispute. A disagreement between parties as to the true grade of a 
sample of cottonseed analyzed and graded by a licensed chemist.
    License. A license issued under the Act by the Secretary.
    Licensed cottonseed chemist. A person licensed under the Act by the 
Secretary to make quantitative and qualitative chemical analyses of 
official samples of cottonseed, according to the methods prescribed by 
the Director of the Division, and to certify the grade according to the 
official cottonseed standards of the United States.
    Licensed cottonseed sampler. A person licensed by the Secretary to 
draw and to certify the authenticity of samples of cottonseed in 
accordance with the regulations in this subpart.
    Lot. That parcel or quantity of cottonseed, offered for sale or 
tendered for delivery, or delivered on a sale or contract of sale, in 
freight cars, trucks, wagons, or otherwise in the quantities and within 
the time limits, prescribed from time to time by the Director of the AMS 
Cotton Division, for the drawing and preparation of official samples by 
licensed cottonseed samplers.
    Official cottonseed standards. The official standards of the United 
States for the grading, sampling, and analyzing of

[[Page 249]]

cottonseed sold or offered for sale for crushing purposes, established 
May 23, 1932, and amendments thereto.
    Official sample. A specimen of not less than 2 pounds of cottonseed, 
drawn and prepared by a licensed cottonseed sampler and certified as 
representative of a certain identified lot, in accordance with the 
regulations in this subpart.
    Owner. A person who through financial interest owns or controls, or 
has the disposition of either cottonseed or of samples of cottonseed.
    Society. The American Oil Chemists' Society (AOCS), P.O. Box 3489, 
1608 Broadmoor Drive, Champaign, IL 61826-3489.
    Supervisor of cottonseed chemists. An officer of the Science and 
Technology Division designated as such by the Director.

[58 FR 42431, Aug. 9, 1993, as amended at 61 FR 51352, Oct. 2, 1996]

                      Licensed Cottonseed Chemists



Sec. 96.3  Application for license as cottonseed chemist; form.

    (a) Application for a license to analyze and grade cottonseed shall 
be made to the Director on a form furnished for the purpose by the 
Science and Technology Division.
    (b) Each application shall be in English, shall be signed by the 
applicant, and shall contain or be accompanied by satisfactory evidence:
    (1) That the applicant is at least 25 years of age and that the 
applicant is an actual resident of the continental United States;
    (2) That the applicant holds a degree in chemistry or chemical 
engineering from a recognized college or university, and has had not 
less than 3 years practical experience in laboratory work, in which the 
applicant shall have analyzed quantitatively and qualitatively samples 
of cottonseed; or in the absence of a degree from a recognized college 
or university, that the applicant has had at least 5 years practical 
laboratory experience, 3 years of which shall have been devoted chiefly 
to the analysis of samples of cottonseed;
    (3) That the applicant has no financial interest, or is in the 
employ of anyone having a financial interest in any cottonseed oil mill 
or cotton ginning establishment;
    (4) That the applicant agrees to comply with and abide by the terms 
of the Act and these regulations so far as they may relate to him or 
her;
    (5) That the applicant is an independent analytical chemist or an 
employee of a commercial analytical laboratory; and
    (6) That the applicant owns or will have the use of all of the 
apparatus specified in the regulations, established hereunder for the 
analysis and grading of cottonseed.
    (c) Every chemist licensed hereunder to analyze cottonseed and to 
certify the grade thereof shall comply with the Society's official 
analytical test methods and other methods of analysis approved by the 
Director.
    (d) The applicant shall furnish such additional information, as the 
Director shall at any time find to be necessary, to the consideration of 
the submitted application.
    (e) Upon receipt of an incomplete or improperly executed 
application, the applicant will be notified of the deficiency in the 
application. If the application is not corrected and returned within 30 
days following the date of notification, the application will be 
considered as having been abandoned.

[58 FR 42431, Aug. 9, 1993, as amended at 61 FR 51352, Oct. 2, 1996]



Sec. 96.4  Examination of applicant.

    Each applicant for a license as a chemist and each licensed chemist 
shall, when requested, submit to a practical examination and written 
test, to show an ability to analyze and grade cottonseed. These 
examinations can only be administered by the supervisor of cottonseed 
chemists. The chemist's failure to pass such tests may be considered 
sufficient ground for withholding the issuance of a license or of a 
renewal of a license.



Sec. 96.5  Period of license; renewals.

    The period for which a license may be issued shall be from the first 
day of August, until, and including the 31st day of July, following. 
Renewals shall be for not more than 1 year beginning with the first day 
of August of each year, provided that licenses issued on

[[Page 250]]

and after June 1 of any year shall be for the period ending on July 31 
of the following year.



Sec. 96.6  Conditions in licensing.

    (a) It shall be a condition of the licensing of any person and of 
the retention by him or her of a license, that during the active cotton 
season each year, the licensee shall be engaged in or in connection with 
the grading of cottonseed; that each cottonseed sample offered for 
grading shall be analyzed and grade certified by the licensee, in 
accordance with the official cottonseed standards of the United States; 
and that the USDA license of the cottonseed chemist shall not be used or 
be allowed to be used for any improper purpose.
    (b) A USDA licensed cottonseed chemist shall be required to 
participate in each quality assurance program and each collaborative 
study for the analytical testing of cottonseed as follows:
    (1) The licensed chemist must participate in the American Oil 
Chemists' Society (AOCS) cottonseed series which requires the testing of 
10 known cottonseed samples per year for foreign matter, moisture, free 
fatty acids, oil, and ammonia.
    (2) The licensed chemist must analyze and issue a grade for 10 blind 
cottonseed check samples per year from the Science and Technology 
Division. These blind check samples will be submitted as ``official'' 
samples.
    (3) The chemist shall participate in all collaborative cottonseed 
analytical method validation studies, initiated by the Division 
Director.
    (c) Each licensed chemist shall keep his or her license 
conspicuously posted at the place where he or she functions as a 
chemist, or in such other place as may be approved by the Division 
Director.
    (d) Each licensed chemist must pay in a timely manner an annual 
licensing renewal fee and other charges and fees assessed by the 
Division, as listed in Secs. 96.20 and 96.21. In the event the chemist 
fails to pay the annual license renewal fee by the 31st day of August, 
the chemist will be sent a written notice of a 7-day review by the 
Director for the suspension of his or her license.

[58 FR 42431, Aug. 9, 1993, as amended at 61 FR 51352, Oct. 2, 1996]



Sec. 96.7  Sustained proficiency; suspension of license of cottonseed chemist.

    (a) Sustained proficiency in the analysis of the two check sample 
series is required to maintain a license. If a licensed chemist fails to 
perform satisfactorily during a 1 year period on either the AOCS or the 
USDA check cottonseed series, the chemist shall be placed on probation 
for 1 year, providing that the person achieves a passing score (90 or 
higher) on a retake of the proficiency examination. In the event that 
the chemist fails the examination, he or she may be subject to an 
immediate suspension of the license.
    (b) Failure to perform satisfactorily with either quality assurance 
program during a 1 year probationary period may also result in 
suspension of the license.
    (c) Pending final action by the Director to suspend a license of a 
cottonseed chemist, a written notice of such suspension shall be given 
to the respective licensee, accompanied by a statement of the reasons 
therefore. Within 7 days after receipt of notice and statement of 
reasons by a licensee, an appeal may be filed in writing with the 
Director supported by any argument or evidence as to why the license 
should not be suspended. After expiration of the 7-day period and 
consideration of such argument and evidence, the Director shall take 
such action, as deemed appropriate, with respect to a suspension.
    (d) Upon termination of service as a cottonseed chemist or 
suspension of such license, such licensee shall surrender the license 
immediately to the supervisor of the cottonseed chemists.
    (e) The minimum period of license suspension for a cottonseed 
chemist shall be 1 year, after which the chemist may reapply and be 
reexamined for a USDA license.
    (f) At the expiration of any period of suspension of such license, 
unless in the meantime it be revoked, the dates

[[Page 251]]

of the suspension period shall be endorsed thereon and returned to the 
licensed chemist to whom it was originally issued.



Sec. 96.8  Annual review of licensed chemist.

    Each licensed chemist shall be subject to an annual on-site review, 
by the supervisor of the cottonseed chemists, to assess the chemist's 
continued conformance with procedure and equipment requirements of 
official analytical test methods.



Sec. 96.9  Fees for grading and certification.

    Whenever any licensed chemist shall grade and/or certify any 
cottonseed or samples for a fee, the fee charged shall be reasonable, 
unconditional, nondiscriminatory, and shall be in accordance with a 
schedule previously submitted to and approved by the Division. The 
schedule shall include the certificate fee provided for in Sec. 96.21.



Sec. 96.10  Records of analyses; inspection of certificate recordkeeping.

    (a) Certificate recordkeeping responsibilities. The laboratory shall 
have an adequate system for the numbering and accounting of issued 
official cottonseed certificates. Provisions shall be made for 
consecutively numbering all cottonseed grade certificates issued and 
listing in a separate journal certificate numbers with the sample 
identification for accurate billing.
    (b) Retention of records for inspection. Each licensed chemist, 
shall keep, or shall cause to be kept for him or her, for a period of at 
least 3 years after date of analysis, a record of the analysis of each 
individual sample of cottonseed graded by the licensee.
    (c) Each licensed chemist shall permit any authorized officer or 
agent of the Department to inspect or examine, on any business day 
during normal business hours, books and records relating to analyses of 
cottonseed samples and issuance of cottonseed grade certificates under 
the Act and the regulations in this subpart.



Sec. 96.11  Official and unofficial samples; analyses; certificate.

    (a) Each licensed cottonseed chemist shall designate a certificate 
number from a series of assigned numbers to each official sample of 
cottonseed as received and shall analyze and certify over his or her 
signature the grade of each sample or lot of cottonseed in the order of 
its receipt.
    (b) Each such sample which is in proper condition for analysis under 
these regulations and which is accompanied by the certificate of a 
licensed cottonseed sampler certifying it to be an official sample that 
represents an identified lot of cottonseed shall be considered an 
official sample. In any case where the original sample is lost or 
destroyed before analysis, the duplicate thereof, retained by the 
licensed cottonseed sampler, as provided in Sec. 61.34 of this 
subchapter, shall become the official sample. Each licensed chemist 
shall retain for at least 2 weeks a portion of each official sample 
first analyzed; and in any case where a review is requested under 
Sec. 61.8 of this subchapter, such retained portion shall be considered 
an official sample for purposes of review analysis.
    (c) Each such sample which is: (1) Not sufficient for proper 
analysis as an official sample under these regulations, or
    (2) Not accompanied by a certificate of a licensed cottonseed 
sampler, or
    (3) Not believed to be samples of the same seed represented by an 
official sample (except duplicates or lost or destroyed official 
samples) shall be considered an unofficial sample and the licensed 
cottonseed chemist's certificate of the grade thereof shall be plainly 
marked: ``Sample not official; grade applies to sample only.'' This 
paragraph shall not apply to mill control or crush samples.



Sec. 96.12  Unlicensed persons shall not analyze and certify the grade of official samples.

    (a) No person shall in any way represent that he or she is a chemist 
licensed under the Act, unless that person holds a license issued under 
the Act. Title 18 U.S.C. 1001, Crimes and

[[Page 252]]

Criminal Procedures, makes it a criminal offense to knowingly and 
willfully make such false representations.
    (b) Only licensed chemists shall analyze and certify the grade of 
official cottonseed samples.



Sec. 96.13  Grade certificate; form.

    Each grade certificate issued under the Act by a licensed chemist 
shall be in a form, approved for the purpose by the Director and shall 
embody within its written or printed terms:
    (a) The caption ``Cottonseed Grade Certificate.''
    (b) The serial number assigned to it.
    (c) The date and place of issuance.
    (d) A statement certifying that the analysis of the cottonseed 
sample was made according to the methods approved by the Director of the 
Division and that the grade given is according to the official standards 
of the United States.
    (e) A statement of the condition of the lot of cottonseed as 
reported by the sampler, and in cases where the sample was submitted by 
a licensed sampler, the name and license number of the sampler.
    (f) The identification of each lot of cottonseed by the marks and 
notations by which the seed was identified at the time the sample was 
taken, and the origin of the cottonseed by county and State.
    (g) All analytical data required by the Director.
    (h) The signature and license number of the chemist. In addition, 
the grade certificate may include any other matter consistent with the 
Act or the regulations in this part. Two copies of the grade certificate 
form shall be submitted to and approved by the Division, before use by a 
licensed chemist. A copy of each certificate shall be mailed to a 
designated office of the Division within 36 hours after its issuance.



Sec. 96.14  Reports of licensed chemists.

    Each licensed chemist shall periodically, when requested by the 
Director, make reports on forms furnished for the purpose by the 
Division, concerning the activities as such licensed chemist.



Sec. 96.15  Information of violations.

    Whenever any person licensed under this part becomes aware of 
information relating to the violation of the Act or these regulations, 
such person shall inform the Director of the Division of the alleged 
violations.



Sec. 96.16  Licensed chemists; suspension or revocation of license.

    The Director may, without a hearing, suspend or revoke the license 
issued to a licensed chemist upon written request and a satisfactory 
statement of reasons submitted by such licensed chemist. Pending final 
action by the Secretary, the Director may, whenever such action is 
deemed necessary, suspend or revoke the license of any licensed chemist 
when such licensed chemist:
    (a) Has ceased to perform services as such chemist;
    (b) Has knowingly or carelessly analyzed cottonseed improperly;
    (c) Has violated or evaded any provision of the Act or the 
regulations so far as they relate to the licensee;
    (d) Has used the license or allowed it to be used for any fraudulent 
or improper purposes; or
    (e) Has in any manner become incompetent or incapacitated to perform 
the duties of a licensed chemist.

In such cases the Director shall give written notice of the suspension 
or revocation to the licensed chemist, accompanied by a statement of the 
reasons therefor. Within 10 days after the receipt of the aforesaid 
notice and statement of reasons by such licensee, the individual 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 the 
license should not be suspended or revoked. After the expiration of the 
aforesaid 10-day period and consideration of such argument and evidence, 
the Secretary will take such action as is deemed appropriate with 
respect to such suspension or revocation. When no appeal is filed within 
the prescribed 10 days, the license shall be automatically suspended or 
revoked.

[[Page 253]]



Sec. 96.17  Revoked license to be returned to Division.

    If a license issued to a licensed chemist is revoked, such license 
shall be returned to the Division.



Sec. 96.18  Duplicate license.

    Upon satisfactory proof of the loss or destruction of a license 
issued to a licensed chemist, a duplicate thereof may be issued under 
the same or a new number.



Sec. 96.19  Information on grading to be kept confidential.

    Every person licensed under the Act as a licensed chemist shall keep 
confidential all information secured by the licensee, relative to 
cottonseed analyzed and graded by the licensee. The licensee shall not 
disclose such information to any person, except to the owner or 
custodian of the seed in question, or to an authorized agent of the 
Department.

                            Fees and Charges



Sec. 96.20  Fee for chemist's license.

    (a) The fee for the examination of an applicant for a license as a 
chemist to analyze and certify the grade of cottonseed shall be 
$1,166.00.
    (b) The examination fee shall be paid at the time the application is 
filed or at a time prior to the administration of the examinations. This 
fee shall be paid regardless of the outcome of the licensing 
examinations. The examination fee shall be nonrefundable to the 
applicant; however, in the event of death of the applicant prior to the 
examination, full payment of the fee may be returned to the applicant's 
beneficiary. If an application is filed with an insufficient fee, the 
application and fee submitted will be returned to the applicant.
    (c) For each renewal of a chemist's license, the fee shall be 
$292.00.

[63 FR 16375, Apr. 2, 1998]



Sec. 96.21  Fee for certificates to be paid by licensee to Service.

    (a) To cover the cost of administering the regulations in this part, 
each licensed cottonseed chemist shall pay to the Service $3.18 for each 
certificate of the grade of cottonseed issued by the licensee.
    (b) Upon receipt of a statement from the Service each month, showing 
the number of certificates issued by the licensee, such licensee will 
forward the appropriate remittance in the form of a check, draft, or 
money order payable to the ``Agricultural Marketing Service, USDA.''

[58 FR 42431, Aug. 9, 1993, as amended at 63 FR 16375, Apr. 2, 1998]



Sec. 96.22  Fees for the review of grading of cottonseed.

    For the review of the grading of any lot of cottonseed, the fee 
shall be $60.00. Remittance to cover such fee, in the form of a check, 
draft, or money order payable to the ``Agricultural Marketing Service, 
USDA'' shall accompany each application for review. For each such fee 
collected, $20.00 shall be disbursed to each of the two licensed 
chemists designated to make reanalysis of such seed.



            Subpart B--Official Cottonseed Grade Calculations



Sec. 96.23  General.

    Using methods prescribed by the Science and Technology Division, the 
licensed cottonseed chemist makes quantitative and qualitative chemical 
analyses, certificating the grade according to the official cottonseed 
standards of the United States.



Sec. 96.24  Definitions, cottonseed quality analysis terms.

    Words used in the regulations in this subpart in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this subpart, unless the context requires 
otherwise, the following terms will be construed to mean:
    Cottonseed quality analysis. In determining the quality of 
cottonseed, testing is performed by licensed chemists for total 
composition of oil, ammonia, moisture, free fatty acids, and foreign 
matter. These individual analytical factors of cottonseed samples are 
combined to form indexes of quantity and

[[Page 254]]

quality, which in turn are used to determine the official grade of 
cottonseed, in accordance with the United States Official Standards for 
Grades.
    Foreign matter. The foreign matter in cottonseed includes boll 
portions, sand, dirt, stones or gravel, hulls, leaves, stems, unginned 
locks of cotton, lint cotton, immature seeds, and any noncotton 
extraneous material.
    Official grade. The official grade is the product of the quantity 
index times the quality index, and it is determined by a representative 
official sample of cottonseed, graded by a licensed chemist under the 
supervision of the United States Department of Agriculture. The base 
grade for cottonseed is 100.0.
    Quality index. The quality index measures the deterioration of 
cottonseed in oil and meal and takes into account the excesses of 
moisture, foreign matter and free fatty acids.
    Quantity index. The quantity index measures the oil and cake or meal 
in the cottonseed and takes into account variations in the quantity of 
oil and ammonia.



Sec. 96.25  Determination of grade.

    The grade of cottonseed shall be determined from the analysis of 
samples, and it shall be the result, stated in the nearest whole or half 
numbers, obtained by multiplying a quantity index by a quality index and 
dividing the result by 100. The quantity index and the quality index 
shall be determined as hereinafter provided.
    (a) The basis grade of cottonseed shall be grade 100.
    (b) High grades of cottonseed shall be those grades above 100.
    (c) Low grades of cottonseed shall be those grades below 100.
    (d) Grades for American Pima cottonseed shall be suffixed by the 
designation ``American Pima'' or by the symbol ``AP.''



Sec. 96.26  Determination of quantity index.

    The quantity index of cottonseed shall be determined as follows:
    (a) For Upland cottonseed, the quantity index shall equal four times 
the percentage of oil, plus six times the percentage of ammonia, plus 
five.
    (b) For American Pima cottonseed, the quantity index shall equal 
four times the percentage of oil, plus six times the percentage of 
ammonia, minus ten.



Sec. 96.27  Determination of quality index.

    The quality index of cottonseed shall be an index of purity and 
soundness, and shall be determined as follows:
    (a) Prime quality cottonseed. Cottonseed, that by analysis, contains 
not more than 1.0 percent of foreign matter, not more than 12.0 percent 
of moisture, and not more than 1.8 percent of free fatty acids in the 
oil in the seed, shall be known as prime quality cottonseed and shall 
have a quality index of 100.
    (b) Below prime quality cottonseed. The quality index of cottonseed 
that, by analysis, contains foreign matter, moisture, or free fatty 
acids in the oil in the seed, in excess of the percentages prescribed in 
paragraph (a) of this section, shall be found by reducing the quality 
index of prime quality cottonseed as follows:
    (1) Four-tenths of a unit for each 0.1 percent of free fatty acids 
in the oil, in the seed, in excess of 1.8 percent.
    (2) One-tenth of a unit for each 0.1 percent of foreign matter in 
excess of 1.0 percent.
    (3) One-tenth of a unit for each 0.1 percent of moisture in excess 
of 12.0 percent.
    (c) Off quality cottonseed. Cottonseed that has been treated by 
either mechanical or chemical process other than the usual cleaning, 
drying, and ginning (except sterilization required by the United States 
Department of Agriculture for quarantine purposes) or that are fermented 
or hot, or that upon analysis are found to contain 12.5 percent or more 
of free fatty acids, in the oil, in the seed, or more than 10.0 percent 
of foreign matter, or more than 20.0 percent of moisture, or more than 
25.0 percent of moisture and foreign matter combined, shall be 
designated as ``off quality cottonseed.''
    (d) Below grade cottonseed. Cottonseed, the grade of which, when 
calculated according to Sec. 96.25 is below grade 40.0, shall be 
designated as ``below grade cottonseed,'' and a numerical grade shall 
not be indicated.

[[Page 255]]



Sec. 96.28  Calculation of grades of official samples.

    (a) Data on certificates of official cottonseed analyses shall be 
expressed as follows:
Foreign Matter to--0.1 percent
Oil to--0.1 percent
Ammonia to--0.01 percent
Free Fatty Acid, when 5% or under, to--0.1 percent
Free Fatty Acid, when over 5%, to--0.5 percent
Quantity Index to--0.01 percent
Quality Index to--0.1 percent
    (b) Grade to whole or half units, whichever actual calculation is 
nearest shall be determined as follows:
    (1) The calculation of grades shall be made by the method of 
disregarding the figures to the right of the second decimal place.
    (2) Calculated grades ending with .2500 through .7499 will be 
considered to be in the .25 through .74 range, and will be reported to 
the nearest half grade.
    (3) Calculated grades ending with .7500 through .2499 will be 
considered to be in the .75 through .24 range, and will be reported to 
the nearest whole grade.



Sec. 96.29  Analysis and certification of samples and grades.

    The certification of samples of cottonseed, and the analysis and 
certification of grades of cottonseed shall be performed in accordance 
with methods, approved from time to time for the purposes by the 
Director, or a designated representative.



PART 97--PLANT VARIETY AND PROTECTION--Table of Contents




                                  Scope

Sec.
97.1  General.

                               Definitions

97.2  Meaning of words.

                             Administration

97.3  Plant Variety Protection Board.

                             The Application

97.5  General requirements.
97.6  Application for certificate.
97.7  [Reserved]
97.8  Specimen requirements.
97.9  Drawings and photographs.
97.10  Parts of an application to be filed together.
97.11  Application accepted and filed when received.
97.12  Number and filing date of an application.
97.13  When the owner is deceased or legally incapacitated.
97.14  Joint applicants.
97.15  Assigned varieties and certificates.
97.16  Amendment by applicant.
97.17  Papers of completed application to be retained.
97.18  Applications handled in confidence.
97.19  Publication of pending applications.
97.20  Abandonment for failure to respond within the time limit.
97.21  Extension of time for a reply.
97.22  Revival of an application abandoned for failure to reply.
97.23  Voluntary withdrawal and abandonment of an application.
97.24  Assignee.

                  Examinations, Allowances, and Denials

97.100  Examination of applications.
97.101  Notice of allowance.
97.102  Amendments after allowance.
97.103  Issuance of a certificate.
97.104  Application or certificate abandoned.
97.105  Denial of an application.
97.106  Reply by applicant; request for reconsideration.
97.107  Reconsideration and final action.
97.108  Amendments after final action.

                   Correction of Errors in Certificate

97.120  Corrected certificate--office mistake.
97.121  Corrected certificate--applicant's mistake.

                        Reissuance of Certificate

97.122  Certified seed only election.

                        Assignments and Recording

97.130  Recording of assignments.
97.131  Conditional assignments.
97.132  Assignment records open to public inspection.

                     Marking or Labeling Provisions

97.140  After filing.
97.141  After issuance.
97.142  For testing or increase.
97.143  Certified seed only.
97.144  Additional marking or labeling.

                          Attorneys and Agents

97.150  Right to be represented.
97.151  Authorization.
97.152  Revocation of authorization; withdrawal.
97.153  Persons recognized.
97.154  Government employees.
97.155  Signatures.

[[Page 256]]

97.156  Addresses.
97.157  Professional conduct.
97.158  Advertising.

                            Fees and charges

97.175  Fees and charges.
97.176  Fees payable in advance.
97.177  Method of payment.
97.178  Refunds.
97.179  Copies and certified copies.

                     Availability of Office Records

97.190  When open records are available.

                           Protest Proceedings

97.200  Protests to the grant of a certificate.
97.201  Protest proceedings.

                            Priority Contest

97.205  Definition; when declared.
97.206  Preparation for priority contest between applicants.
97.207  Preparation of priority papers and declaration of priority 
          contest.
97.208  Burden of proof.
97.209  Preliminary statement on novel variety developed in the United 
          States.
97.210  Preliminary statement on novel variety developed in a foreign 
          country.
97.211  Statements sealed before filing.
97.212  Correction of a statement on motion.
97.213  Failure to file statements.
97.214  Access to preliminary statements.
97.215  Dissolution at the request of the Commissioner.
97.216  Concession; abandonment.
97.217  Affidavits and exhibits.
97.218  Matters considered in determining a priority.
97.219  Recommendation by the Commissioner.
97.220  Decision by the Commissioner.
97.221  Status of claims of defeated applicant.
97.222  Second priority contest.

                         Appeal to the Secretary

97.300  Petition to the Secretary.
97.301  Commissioner's answer.
97.302  Decision by the Secretary.
97.303  Action following the decision.

     General Procedures in Priority, Protest, or Appeal Proceedings

97.400  Extensions of time.
97.401  Miscellaneous provisions.
97.402  Service of papers.
97.403  Manner of service.

                      Review of Decisions by Court

97.500  Appeal to U.S. Courts.

                      Cease and Desist Proceedings

97.600  Rules of practice.

                         Public Use Declaration

97.700  Public interest in wide usage.

                               Publication

97.800  Publication of public variety descriptions.
97.900  Form of official identification symbol.

    Authority: Plant Variety Protection Act, as amended, 7 U.S.C. 2321 
et seq.; and Sec. 14, Plant Variety Protection Act amendments of 1994, 7 
U.S.C. 2401 note.

    Source: 58 FR 42435, Aug. 9, 1993, unless otherwise noted.

                                  Scope



Sec. 97.1  General.

    Certificates of protection are issued by the Plant Variety 
Protection office for new, distinct, uniform, and stable varieties of 
sexually reproduced or tubor propagated plants. Each certificate of 
plant variety protection certifies that the breeder has the right, 
during the term of the protection, to prevent others from selling the 
variety, offering it for sale, reproducing it, importing or exporting 
it, conditioning it, stocking it, or using it in producing a hybrid or 
different variety from it, as provided by the Act.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]

                               Definitions



Sec. 97.2  Meaning of words.

    Words used in the regulations in this part in the singular form will 
import the plural, and vice versa, as the case may demand. The 
definitions of terms contained in the Act shall apply to such terms when 
used in this part. As used throughout the regulations in this part, 
unless the context requires otherwise, the following terms will be 
construed to mean:
    Abandoned application. An application which has not been pursued to 
completion within the time allowed by the Office or has been voluntarily 
abandoned.
    Act. The Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
    Administrator. The Administrator of the Agricultural Marketing 
Service of the U.S. Department of Agriculture, or any other officer or 
employee of the Department of Agriculture to whom

[[Page 257]]

authority has heretofore been delegated, or to whom authority may 
hereafter be delegated, to act in his or her stead.
    Applicant. The person who applied for a certificate of plant variety 
protection.
    Application. An application for plant variety protection under the 
Act.
    Assignee. A person to whom an owner assigns his/her rights in whole 
or in part.
    Board. The Plant Variety Protection Board appointed by the 
Secretary.
    Certificate. A certificate of plant variety protection issued under 
the Act by the Office.
    Certified seed. Seed which has been determined by an official seed 
certifying agency to conform to standards of genetic purity and identity 
as to variety, which standards have been approved by the Secretary.
    Commissioner. The Examiner in Chief of the Office.
    Decision and order. Includes the Secretary's findings of fact; 
conclusions with respect to all material issues of fact and law, as well 
as the reasons or basis therefor; and order.
    Examiner. An employee of the Plant Variety Protection Office who 
determines whether a certificate is entitled to be issued. The term 
shall, in all cases, include the Commissioner.
    Foreign application. An application for plant variety protection 
filed in a foreign country.
    Hearing Clerk. The Hearing Clerk, U.S. Department of Agriculture, 
Washington, DC.
    Hearing Officer. An Administrative Law Judge, U.S. Department of 
Agriculture, or other officer or employee of the Department of 
Agriculture, duly assigned to preside at a hearing held pursuant to the 
rules of this part.
    Office or Plant Variety Protection Office. The Plant Variety 
Protection Office, Science and Technology Division, AMS, USDA.
    Official Journal. The ``Official Journal of the Plant Variety 
Protection Office.''
    Owner. A breeder who developed or discovered a variety for which 
plant variety protection may be applied for under the Act, or a person 
to whom the rights to such variety have been assigned or transferred.
    Person. An individual, partnership, corporation, association, 
government agency, or other business or governmental entity.
    Secretary. The Secretary of Agriculture of the United States or any 
other officer or employee of the U.S. Department of Agriculture, to whom 
authority has heretofore been delegated, or to whom authority may 
hereafter be delegated to act in his or her stead.
    Seed certifying agency. It shall be defined as set forth in the 
Federal Seed Act (53 Stat. 1275).
    Sale for other than seed purposes. The transfer of title to and 
possession of the seed by the owner to a grower or other person, for 
reproduction for the owner, for testing, or for experimental use, and 
not for commercial sale of the seed or the reproduced seed for planting 
purposes.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 
FR 248, Jan. 4, 1996]

                             Administration



Sec. 97.3  Plant Variety Protection Board.

    (a) The Plant Variety Protection Board shall consist of 14 members 
appointed for a 2-year term. The Board shall be appointed every 2 years 
and shall consist of individuals who are experts in various areas of 
varietal development. The membership of the Board, which shall include 
farmer representation, shall be drawn approximately equally from the 
private or seed industry sector and from the government or public 
sector. No member shall be eligible to act on any matter involving any 
appeal or questions under section 44 of the Act, in which the member or 
his or her employer has a direct financial interest.
    (b) The functions of the Board are to:
    (1) Advise the Secretary concerning adoption of rules and 
regulations to facilitate the proper administration of the Act;
    (2) Make advisory decisions on all appeals from the examiner or 
Commissioner;
    (3) Advise the Secretary on the declaration of a protected variety 
open to use in the public interest; and

[[Page 258]]

    (4) Advise the Secretary on any other matters under the regulations 
in this part.
    (c) The proceedings of the Board shall be conducted in accordance 
with the Federal Advisory Committee Act, Administrative Regulations of 
the U.S. Department of Agriculture (7 CFR part 25), and such additional 
operating procedures as are adopted by members of the Board.

[58 FR 42435, Aug. 9, 1993, as amended at 61 FR 248, Jan. 4, 1996]

                             The Application



Sec. 97.5  General requirements.

    (a) Protection under the Act shall be afforded only as follows:
    (1) Nationals and residents of the United States shall be eligible 
to receive all of the protection under the Act.
    (2) Nationals and residents of Member States of the International 
Union for the Protection of New Varieties of Plants (including states 
which are members of an intergovernmental organization which is a UPOV 
member) shall be eligible to receive the same protection under the Act 
as is provided to nationals of the United States.
    (3) Persons who are not entitled to protection under paragraph 
(a)(1) or (2) of this section, and who are nationals of a foreign state 
which is not a member of the International Union for the Protection of 
New Varieties of Plants, shall be entitled to only so much of the 
protection provided under the Act, as is afforded by such foreign state 
to nationals of the United States, for the same genus and species under 
the laws of such foreign state in effect at the time that the 
application for protection under the Act is filed, except where further 
protection under the Act must be provided in order to avoid the 
violation of a treaty to which the United States is a party.
    (b) Applications for certificates shall be made to the Plant Variety 
Protection Office. An application shall consist of:
    (1) A completed application form, except that the section specifying 
that seed of the variety shall be sold by variety name only, as a class 
of certified seed, need not be completed at the time of application.
    (2) A completed set of the exhibits, as specified in the application 
form, unless the examiner waives submission of certain exhibits as 
unnecessary, based on other claims and evidence presented in connection 
with the application.
    (3) Language and legibility: (i) Applications and exhibits must be 
in the English language and legibly written, typed or printed.
    (ii) Any interlineation, erasure, cancellation, or other alteration 
must be made in permanent ink before the application is signed and shall 
be clearly initialed and dated by the applicant to indicate knowledge of 
such fact at the time of signing.
    (4) To determine the extent of reciprocity of the protection to be 
provided under the Act, persons filing an application for plant variety 
protection in the United States under the provisions of paragraph (a)(3) 
of this section shall, upon request \1\, furnish the Plant Variety 
Protection Office with a copy of the current plant variety protection 
laws and regulations for the country of which the applicant is a 
national, and an accurate English translation of such laws and 
regulations.
---------------------------------------------------------------------------

    \1\ Copies and translations of foreign laws and regulations will be 
requested only if they are not in the files of the Plant Variety 
Protection Office. Applicants may learn whether such a request will be 
made by writing to the address given in paragraph (c) of this section.
---------------------------------------------------------------------------

    (c) Application and exhibit forms shall be issued by the 
Commissioner. (Copies of the forms may be obtained from the Plant 
Variety Protection Office, Science and Technology Division, AMS, USDA, 
room 500, National Agricultural Library Building, Beltsville, Maryland 
20705.)
    (d) Effective the date of these regulations and rules of practice, 
the signature of the applicant, or his or her agent or attorney on any 
affidavit or other statement filed pursuant to these regulations and 
rules constitutes a certification by the applicant. The signature 
certifies that all information relied on in any affidavit or statement 
filed in the course of the proceeding is

[[Page 259]]

knowingly correct and false claims have not been made to mislead.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 
FR 248, Jan. 4, 1996]



Sec. 97.6  Application for certificate.

    (a) An application for a plant variety protection certificate shall 
be signed by, or on behalf, of the applicant.
    (b) The application shall state the full name, including the full 
first name and the middle initial or name, if any, and the capacity of 
the person executing it.
    (c) The fees for filing an application, and search or examination, 
shall be submitted with the application in accordance with Secs. 97.175 
through 97.178.
    (d) The applicant shall submit with the application:
    (1) At least 2,500 seeds of the viable basic seed required to 
reproduce the variety;
    (2) With the application for a tuber propagated variety, 
verification that a viable cell culture has been deposited in a public 
depository approved by the Commissioner and will be maintained for the 
duration of the certificate; or
    (3) With the application for a hybrid from self-incompatible 
parents, verification that a plot of vegetative material for each parent 
has been established in a public depository approved by the Commissioner 
and will be maintained for the duration of the certificate.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 
FR 248, Jan. 4, 1996]



Sec. 97.7  [Reserved]



Sec. 97.8  Specimen requirements.

    (a) The applicant may be required by the examiner to furnish 
representative specimens of the variety, or its flower, fruit, or seeds, 
in a quantity and at a specified stage of growth, as may be necessary to 
verify the statements in the application. Such specimens shall be packed 
and forwarded in conformity with instructions furnished by the examiner. 
If the applicant requests the examiner to inspect plants in the field 
before a final decision is made, all such inspection costs shall be 
borne by the applicant by payment of fees sufficient to reimburse the 
Office for all costs, including travel, per diem or subsistence, and 
salary.
    (b) Plant specimens submitted in support of an application shall not 
be removed from the Office except by an employee of the Office or other 
person authorized by the Secretary.
    (c) Plant specimens submitted to the Office shall, except as 
provided below, and upon request, be returned to the applicant at his or 
her expense after the specimens have served their intended purpose. The 
Commissioner, upon a finding of good cause, may require that certain 
specimens be retained in the Office for indefinite periods of time. 
Specimens which are not returned or not retained as provided above shall 
be destroyed.



Sec. 97.9  Drawings and photographs.

    (a) Drawings or photographs submitted with an application shall 
disclose the distinctive characteristics of the variety.
    (b) Drawings or photographs shall be in color when color is a 
distinguishing characteristic of the variety, and the color shall be 
described by use of Nickerson's or other recognized color chart.
    (c) Drawings should be sent flat, or may be sent in a suitable 
mailing tube, in accordance with instructions furnished by the 
Commissioner.
    (d) Drawings or photographs submitted with an application shall be 
retained by the Office as part of the application file.



Sec. 97.10  Parts of an application to be filed together.

    All parts of an application, including exhibits, should be submitted 
to the Office together, otherwise, each part shall be accurately and 
clearly referenced to the application.



Sec. 97.11  Application accepted and filed when received.

    (a) An application, if materially complete when initially submitted, 
shall be accepted and filed to await examination.
    (b) If any part of an application is so incomplete, or so defective 
that it cannot be handled as a completed application for examination, as 
determined by the Commissioner, the applicant will be notified. The 
application will be

[[Page 260]]

held a maximum of 3 months for completion. Applications not completed at 
the end of the prescribed period will be considered abandoned. The 
application fee in such cases will not be refunded.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.12  Number and filing date of an application.

    (a) Applications shall be numbered and dated in sequence in the 
order received in the Office. Applicants will be informed in writing as 
soon as practicable of the number and effective filing date of the 
application.
    (b) An applicant may claim the benefit of the filing date of a prior 
foreign application in accordance with section 55 of the Act. A 
certified copy of the foreign application shall be filed upon request 
made by the examiner. If a foreign application is not in the English 
language, an English translation, certified as accurate by a sworn or 
official translator, shall be submitted with the application.



Sec. 97.13  When the owner is deceased or legally incapacitated.

    In case of the death of the owner or if the owner is legally 
incapacitated, the legal representative (executor, administrator, or 
guardian) or heir or assignee of the deceased owner may sign as the 
applicant. If an applicant dies between the filing of his or her 
application and the granting of a certificate thereon, the certificate 
may be issued to the legal representative, heir, or assignee, upon 
proper intervention.



Sec. 97.14  Joint applicants.

    (a) Joint owners shall file a joint application by signing as joint 
applicants.
    (b) If an application for certificate is made by two or more persons 
as joint owners, when they were not in fact joint owners, the 
application shall be amended prior to issuance of a certificate by 
filing a corrected application, together with a written explanation 
signed by the original applicants. Such statement shall also be signed 
by the assignee, if any.
    (c) If an application has been made by less than all the actual 
joint owners, the application shall be amended by filing a corrected 
application, together with a written explanation, signed by all of the 
joint owners. Such statement shall also be signed by the assignee, if 
any.
    (d) If a joint owner refuses to join in an application or cannot be 
found after diligent effort, the remaining owner may file an application 
on behalf of him or herself and the missing owner. Such application 
shall be accompanied by a written explanation and shall state the last 
known address of the missing owner. Notice of the filing of the 
application shall be forwarded by the Office to the missing owner at the 
last known address. If such notice is returned to the Office 
undelivered, or if the address of the missing owner is unknown, notice 
of the filing of the application shall be published once in the Official 
Journal. Prior to the issuance of the certificate, a missing owner may 
join in an application by filing a written explanation. A certificate 
obtained by less than all of the joint owners under this paragraph 
conveys the same rights and privileges to said owners as though all of 
the original owners had joined in an application.



Sec. 97.15  Assigned varieties and certificates.

    In case the whole or a part interest in a variety is assigned, the 
application shall be made by the owner or one of the persons identified 
in Sec. 97.13. However, the certificate may be issued to the assignee, 
or jointly to the owner and the assignee, when a part interest in a 
variety is assigned.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.16  Amendment by applicant.

    An application may be amended before or after the first examination 
and action by the Office, after the second or subsequent examination or 
reconsideration as specified in Sec. 97.107, or when and as specifically 
required by the examiner. Such amendment may include a specification 
that seed of the variety be sold by variety name only as a class of 
certified seed, if not previously specified or if previously declined. 
Once an affirmative specification is made, no

[[Page 261]]

amendment to reverse such a specification will be permitted unless the 
variety has not been sold and labeled or publication made in any manner 
that the variety is to be sold by variety name, only as a class of 
certified seed.



Sec. 97.17  Papers of completed application to be retained.

    The papers submitted with a completed application shall be retained 
by the Office except as provided in Sec. 97.23(c). After issuance of a 
certificate of protection the Office will furnish copies of the 
application and related papers to any person upon payment of the 
specified fee.



Sec. 97.18  Applications handled in confidence.

    (a) Pending applications shall be handled in confidence. Except as 
provided below, no information may be given by the Office respecting the 
filing of an application, the pendency of any particular application, or 
the subject matter of any particular application. Also, nor will access 
be given to or copies furnished of any pending application or papers 
relating thereto, without written authority of the applicant, or his or 
her assignee or attorney or agent. Exceptions to the above may be made 
by the Commissioner in accordance with 5 U.S.C. 552 and Sec. 1.4 of this 
title, and upon a finding that such action is necessary to the proper 
conduct of the affairs of the Office, or to carry out the provisions of 
any Act of Congress, or as provided in sections 56 or 57 of the Act and 
Sec. 97.19.
    (b) Abandoned applications shall not be open to public inspection. 
However, if an abandoned application is directly referred to in an 
issued certificate and is available, it may be inspected or copies 
obtained by any person on written request, and with written authority 
received from the applicant. Abandoned applications shall not be 
returned.
    (c) Decisions of the Commissioner on abandoned applications not 
otherwise open to public inspection (see paragraph (b) of this section) 
may be published or made available for publication at the Commissioner's 
discretion. When it is proposed to release such a decision, the 
applicant shall be notified directly or through the attorney or agent of 
record, and a time, not less than 30 days, shall be set for presenting 
objections.



Sec. 97.19  Publication of pending applications.

    Information relating to pending applications shall be published in 
the Official Journal periodically as determined by the Commissioner to 
be necessary in the public interest. With respect to each application, 
the Official Journal shall show:
    (a) Application number and date of filing;
    (b) The name of the variety or temporary designation;
    (c) The name of the kind of seed; and
    (d) Whether the applicant specified that the variety is to be sold 
by variety name only as a class of certified seed, together with a 
limitation in the number of generations that it can be certified.

Additional information, such as the name and address of the applicant or 
a brief description of the distinctive features of the variety, may be 
published only upon request or approval received from the applicant, at 
the time the application is filed or at any time before the notice of 
allowance of a certificate is issued.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 
FR 248, Jan. 4, 1996]



Sec. 97.20  Abandonment for failure to respond within the time limit.

    (a) Except as otherwise provided in Sec. 97.104, if an applicant 
fails to advance actively his or her application within 30 days after 
the date when the last request for action was mailed to the applicant by 
the Office, or within such longer time as may be fixed by the 
Commissioner, the application shall be deemed abandoned. The application 
fee in such cases will not be refunded.
    (b) The submission of an amendment to the application, not 
responsive to the last request by the Office for action, and any 
proceedings relative thereto, shall not operate to save the application 
from abandonment.
    (c) When the applicant makes a bona fide attempt to advance the 
application, and is in substantial compliance

[[Page 262]]

with the request for action, but has inadvertently failed to comply with 
some procedural requirement, opportunity to comply with the procedural 
requirement shall be given to the applicant before the application shall 
be deemed abandoned. The Commissioner may set a period, not less than 30 
days, to correct any deficiency in the application.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.21  Extension of time for a reply.

    The time for reply by an applicant to a request by the Office for 
certain action, shall be extended by the Commissioner only for good and 
sufficient cause, and for a specified reasonable time. A request for 
extension and appropriate fee shall be filed on or before the specified 
time for reply. In no case shall the mere filing of a request for 
extension require the granting of an extension or state the time for 
reply.

[58 FR 42435, Aug. 9, 1993, as amended at 61 FR 248, Jan. 4, 1996]



Sec. 97.22  Revival of an application abandoned for failure to reply.

    An application abandoned for failure on the part of the applicant to 
advance actively his or her application to its completion, in accordance 
with the regulations in this part, may be revived as a pending 
application within 3 months of such abandonment, upon a finding by the 
Commissioner that the failure was inadvertent or unavoidable and without 
fraudulent intent. A request to revive an abandoned application shall be 
accompanied by a written statement showing the cause of the failure to 
respond, a response to the last request for action, and by the specified 
fee.



Sec. 97.23  Voluntary withdrawal and abandonment of an application.

    (a) An application may be voluntarily withdrawn or abandoned by 
submitting to the Office a written request for withdrawal or 
abandonment, signed by the applicant or his or her attorney or agent of 
record, if any, or the assignee of record, if any.
    (b) An application which has been voluntarily abandoned may be 
revived within 3 months of such abandonment by the payment of the 
prescribed fee and a showing that the abandonment occurred without 
fraudulent intent.
    (c) An original application which has been voluntarily withdrawn 
shall be returned to the applicant and may be reconsidered only by 
refiling and payment of a new application fee.
    (d) Transitional provision. An applicant whose application is 
pending on April 4, 1995, may notify the Plant Variety Protection Office 
in writing that he or she wishes to withdraw the application and refile 
it under the Plant Variety Protection Act as amended in 1994. Payment of 
the current application fee is required but no other formalities are 
necessary.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.24  Assignee.

    The assignee of record of the entire interest in an application is 
entitled to advance actively or abandon the application to the exclusion 
of the applicant.

                  Examinations, Allowances, and Denials



Sec. 97.100  Examination of applications.

    (a) [Reserved]
    (b) Examinations of applications shall include a review of all 
available documents, publications, or other material relating to 
varieties of the species involved in the application, except that if 
there are fundamental defects in the application, as determined by the 
examiner, the examination may be limited to an identification of such 
defects and notification to the applicant of needed corrective action. 
However, matters of form or procedure need not, but may, be raised by an 
examiner until a variety is found to be new, distinct, uniform, and 
stable and entitled to protection.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.101  Notice of allowance.

    If, on examination, it shall appear that the applicant is entitled 
to a certificate, a notice of allowance shall be

[[Page 263]]

sent to the applicant or his or her attorney or agent of record, if any, 
calling for the payment of the prescribed fee, which fee shall be paid 
within 1 month from the date of the notice of allowance. Thereafter, a 
fee for delayed payment shall be made as required under Sec. 97.175.



Sec. 97.102  Amendments after allowance.

    Amendments to the application, after the notice of allowance is 
issued, may be made, if the certificate has not been issued.



Sec. 97.103  Issuance of a certificate.

    (a) After the notice of allowance has been issued, the prescribed 
fee is received by the Office, and the applicant has clearly specified 
whether or not the variety shall be sold by variety name only as a class 
of certified seed, the certificate shall be promptly issued. Once an 
election is made and a certificate issued specifying that seed of the 
variety shall be sold by variety name only as a class of certified seed, 
no waiver of such rights shall be permitted by amendment of the 
certificate.
    (b) The certificate shall be delivered or mailed to the owner.



Sec. 97.104  Application or certificate abandoned.

    (a) Except as provided in paragraph (c) of this section, if the fee 
specified in the notice of allowance is not paid within 1 month from the 
date of the notice, the application shall be considered abandoned.
    (b) Upon request by the Office, the owner shall replenish the viable 
basic seed sample of the variety. Upon request, the sample of seed which 
has been replaced shall be returned to the owner, otherwise it shall be 
destroyed. Failure to replenish viable basic seed within 3 months from 
the date of request shall result in the certificate being regarded as 
abandoned. No sooner than 1 year after the date of such request, notices 
of abandoned certificates shall be published in the Official Journal, 
indicating that the variety has become open for use by the public and, 
if previously specified to be sold by variety name as ``certified seed 
only,'' that such restriction no longer applies.
    (c) If the allowance fee, the viable basic seed sample or the fee 
for delayed payment are submitted within 9 months of the final due date, 
it may be accepted by the Commissioner as though no abandonment had 
occurred. For good cause, the Commissioner may extend for a reasonable 
time the period for submitting a viable basic seed sample before 
declaring the certificate abandoned.
    (d) A certificate may be voluntarily abandoned by the applicant or 
his or her attorney or agent of record or the assignee of record by 
notifying the Commissioner in writing. Upon receipt of such notice, the 
Commissioner shall publish a notice in the Official Journal that the 
variety has become open for use by the public, and if previously 
specified to be sold by variety name as ``certified seed only,'' that 
such restriction no longer applies.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.105  Denial of an application.

    (a) If the variety is found by the examiner to be not new, distinct, 
uniform, and stable, the application shall be denied.
    (b) In denying an application, the examiner shall cite the reasons 
the application was denied. When a reason involves the citation of 
certain material which is complex, the particular part of the material 
relied on shall be designated as nearly as practicable. The pertinence 
of each reason, if not obvious, shall be clearly explained.
    (c) If prior domestic certificates are cited as a reason for denial, 
their numbers and dates and the names of the owners shall be stated. If 
prior foreign certificates or rights are cited, as a reason for denial, 
their nationality or country, numbers and dates, and the names of the 
owners shall be stated, and such other data shall be furnished, as may 
be necessary to enable the applicant to identify the cited certificates 
or rights.
    (d) If printed publications are cited as a reason for denial, the 
author (if any), title, date, pages or plates, and places of 
publication, or place where a copy can be found shall be given.

[[Page 264]]

    (e) When a denial is based on facts known to the examiner, and upon 
request by the applicant, the denial shall be supported by the affidavit 
of the examiner. Such affidavit shall be subject to contradiction or 
explanation by the affidavits of the applicant and other persons.
    (f) Abandoned applications may not be cited as reasons for denial.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]



Sec. 97.106  Reply by applicant; request for reconsideration.

    (a) After an adverse action by the examiner, the applicant may 
respond to the denial and may request a reconsideration, with or without 
amendment of his or her application. Any amendment shall be responsive 
to the reason or reasons for denial specified by the examiner.
    (b) To obtain a reconsideration, the applicant shall submit a 
request for reconsideration in writing and shall specifically point out 
the alleged errors in the examiner's action. The applicant shall respond 
to each reason cited by the examiner as the basis for the adverse 
action. A request for reconsideration of a denial based on a faulty form 
or procedure may be held in abeyance by the Commissioner until the 
question of the variety being new, distinct, uniform, and stable is 
settled.
    (c) An applicant's request for a reconsideration must be a bona fide 
attempt to advance the case to final action. A general allegation by the 
applicant that certain language which he or she cites in the application 
or amendment thereto establishes the variety is new, distinct, uniform, 
and stable without specifically explaining how the language 
distinguishes the alleged new, distinct, uniform, and stable variety 
from the material cited by the examiner shall not be grounds for a 
reconsideration.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995]



Sec. 97.107  Reconsideration and final action.

    If, upon reconsideration, the application is denied by the 
Commissioner, the applicant shall be notified by the Commissioner of the 
reason or reasons for denial in the same manner as after the first 
examination. Any such denial shall be final unless appealed by the 
applicant to the Secretary within 60 days from the date of denial, in 
accordance with Secs. 97.300-97.303. If the denial is sustained by the 
Secretary on appeal, the denial shall be final subject to appeal to the 
courts, as provided in Sec. 97.500.



Sec. 97.108  Amendments after final action.

    (a) After a final denial by the Commissioner, amendments to the 
application may be made to overcome the reason or reasons for denial. 
The acceptance or refusal of any such amendment by the Office and any 
proceedings relative thereto shall not relieve the applicant from the 
time limit set for an appeal or an abandonment for failure to reply.
    (b) No amendment of the application can be made in an appeal 
proceeding. After decision on appeal, amendments can only be made to 
carry into effect a recommendation under Sec. 97.302(b).

                   Correction of Errors in Certificate



Sec. 97.120  Corrected certificate--office mistake.

    When a certificate is incorrect because of a mistake in the Office, 
the Commissioner may issue a corrected certificate stating the fact and 
nature of such mistake, under seal, without charge, to be issued to the 
owner and recorded in the records at the Office.



Sec. 97.121  Corrected certificate--applicant's mistake.

    When a certificate is incorrect because of a mistake by the 
applicant of a clerical or typographical nature, or of minor character, 
or in the description of the variety (including, but not limited to, the 
use of a misleading variety name or a name assigned to a different 
variety of the same species), and the mistake is found by the 
Commissioner to have occurred in good faith and does not require a 
further examination, the Commissioner may, upon payment of the required 
fee and return of the original certificate, correct the certificate by 
issuing a corrected certificate, in accordance with section 85

[[Page 265]]

of the Act. If the mistake requires a reexamination, a correction of the 
certificate shall be dependent on the results of the reexamination.

                        Reissuance of Certificate



Sec. 97.122  Certified seed only election.

    When an owner elects after a certificate is issued to sell the 
protected variety by variety name only as a class of certified seed, a 
new certificate may be issued upon return of the original certificate to 
the Office and payment of the appropriate fee.

                        Assignments and Recording



Sec.