[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          

          Title 7


          Parts 53 to 209

                         Revised as of January 1, 2011


          Agriculture
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register
                    A Special Edition of the Federal Register

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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:
      Table of CFR Titles and Chapters........................     443
      Alphabetical List of Agencies Appearing in the CFR......     463
      List of CFR Sections Affected...........................     473

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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.

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

[[Page v]]



                               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

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    To determine whether a Code volume has been amended since its 
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OMB CONTROL NUMBERS

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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 
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OBSOLETE PROVISIONS

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that volume.

[[Page vii]]

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2011.







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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, 1600-1759, 1760-1939, 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, 2011.

    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.

    For this volume, Robert J. Sheehan, III was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

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                          TITLE 7--AGRICULTURE




                  (This book contains parts 53 to 209)

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

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

                                                                    Part

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 (Standards, Inspections, 
       Marketing Practices), DEPARTMENT OF AGRICULTURE (CONTINUED)




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

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
56              Voluntary grading of shell eggs.............          41
57              Inspection of eggs (Egg Products Inspection 
                    Act)....................................          64
58              Grading and inspection, general 
                    specifications for approved plants and 
                    standards for grades of dairy products..          79
59              Livestock mandatory reporting...............         155
60              Country of origin labeling for fish and 
                    shellfish...............................         169
61              Cottonseed sold or offered for sale for 
                    crushing purposes (inspection, sampling 
                    and certification)......................         174
62              Livestock, meat, and other agricultural 
                    commodities (quality systems 
                    verification programs)..................         180
63              national Sheep Industry Improvement Center..         185
65              Country of origin labeling of beef, pork, 
                    lamb, chicken, goat meat, perishable 
                    agricultural commodities, macadamia 
                    nuts, pecans, peanuts, and ginseng......         191
70              Voluntary grading of poultry products and 
                    rabbit products.........................         197
75              Regulations for inspection and certification 
                    of quality of agricultural and vegetable 
                    seeds...................................         217
         SUBCHAPTER D--EXPORT AND DOMESTIC CONSUMPTION PROGRAMS
80              Fresh Russet Potato Diversion Program.......         225
81              Prune/Dried Plum Diversion Program..........         225

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82              Clingstone Peach Diversion Program..........         229
           SUBCHAPTER E--COMMODITY LABORATORY TESTING PROGRAMS
90              Introduction................................         234
91              Services and general information............         236
93              Processed fruits and vegetables.............         250
94              Poultry and egg products....................         253
95-96

[Reserved]

97              Plant variety and protection................         257
98              Meals, Ready-to-Eat (MRE's), meats, and meat 
                    products................................         275
99-109

[Reserved]

110             Recordkeeping on restricted use pesticides 
                    by certified applicators; surveys and 
                    reports.................................         279
111-159

[Reserved]

                       SUBCHAPTER F--NAVAL STORES
160             Regulations and standards for naval stores..         290
 SUBCHAPTER G--MISCELLANEOUS MARKETING PRACTICES UNDER THE AGRICULTURAL 
                          MARKETING ACT OF 1946
170             USDA Farmers market.........................         308
                         SUBCHAPTER H [RESERVED]
                     SUBCHAPTER K--FEDERAL SEED ACT
201             Federal Seed Act regulations................         312
202             Federal Seed Act rules of practice..........         385
203-204

[Reserved]

       SUBCHAPTER L--REQUIREMENTS RELATING TO PURCHASES [RESERVED]
          SUBCHAPTER M--ORGANIC FOODS PRODUCTION ACT PROVISIONS
205             National Organic Program....................         389
206-209

Reserved

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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.

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    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 Sec. Sec. 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 Sec. Sec. 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

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.
54.1023 Denial or withdrawal of appeal service.

[[Page 14]]

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 of a product based on certain definite and preference 
determining factors,

[[Page 15]]

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.
    Shipping container. The receptacle or covering in which one or more 
immediate containers of products are packed for transportation.

[[Page 16]]

    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.

    (a) 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 products 
under applicable standards. Class, grade, and other quality may be 
determined under said standards for

[[Page 17]]

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.
    (b) 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.
    (c) 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.
    (d) 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.

[63 FR 72102, Dec. 31, 1998, as amended at 70 FR 58971, Oct. 11, 2005]



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 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

[[Page 18]]

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 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 Sec. Sec. 54.27

[[Page 19]]

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 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

[[Page 20]]

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 Sec. Sec. 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.



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

[[Page 21]]

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 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.

[[Page 25]]

[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 Sec. Sec. 54.1 through 54.18 and Sec. Sec. 
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 $71 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; $78 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 $122 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 $61 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; $78 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 $122 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]

    Editorial Note: For Federal Register citations affecting Sec. 
54.27, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



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 Agriculture, or the 
representative to

[[Page 33]]

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 
Sec. Sec. 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 Sec. Sec. 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 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.

                                 General

56.3 Administration.
56.4 Basis of grading service.
56.5 Accessibility of product.
56.6 Supervision.
56.7 Nondiscrimination.
56.8 Other applicable regulations.
56.9 OMB control number.

                     Licensed and Authorized Graders

56.10 Who may be licensed and authorized.
56.11 Financial interest of graders.
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 Equipment and facilities for graders.
56.18 Schedule of operation of official plants.
56.19 Prerequisites to grading.

                     Application for Grading Service

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 Rejection of application.
56.25 Withdrawal of application.
56.26 Authority of applicant.
56.27 Order of service.
56.28 Types of service.
56.29 Suspension or withdrawal of plant approval for correctable cause.
56.30 Application for grading service in official plants; approval.

                                 Reports

56.31 Report of grading work.
56.32 Information to be furnished to graders.
56.33 Report of violations

                    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 shell eggs.
56.38 Retention authorities.

    Prerequisites to Packaging Shell Eggs Identified With Grademarks

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

                            Fees and Charges

56.45 Payment of 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 Charges for 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 Forms.
56.56 Issuance.
56.57 Disposition.
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.

                            Denial of Service

56.68 Debarment.

[[Page 42]]

56.69 Misrepresentation, deceptive, or fraudulent act or practice.
56.70 Use of facsimile forms.
56.71 Willful violation of the regulations.
56.72 Interfering with a grader or employee of the AMS.
56.73 Misleading labeling.
56.74 Miscellaneous.

                          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. Unless the context otherwise requires, the terms shall 
have the following meaning:
    Acceptable means suitable for the purpose intended by the AMS.
    Act means the applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087, as amended; 7 U.S.C. 1621 et seq.), or any 
other act of Congress conferring like authority.
    Administrator means the Administrator of the AMS 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 the Administrator's stead.
    Agricultural Marketing Service or AMS means the Agricultural 
Marketing Service of the Department.
    Ambient temperature means the air temperature maintained in an egg 
storage facility or transport vehicle.
    Applicant means any interested person who requests any grading 
service.
    Auditing services means the act of providing independent 
verification of written quality assurance and value added standards for 
production, processing and distribution of shell eggs. Auditing services 
are performed by graders authorized by the Secretary to perform such 
audits and the service provided will be in accordance with the 
provisions of this part for grading services, as appropriate.
    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.
    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 Grading Branch, 
Poultry Programs, AMS.
    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.
    Consumer grades means U.S. Grade AA, A, and B.
    Department means the United States Department of Agriculture (USDA).
    Eggs of current production means shell eggs that are no more than 21 
days old.
    Grademark means the official identification symbol (shield) used to 
identify eggs officially graded according to U.S. consumer grade 
standards.
    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: (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 AMS; (2) the act whereby the grader 
identifies, according to the

[[Page 43]]

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 the regulations in this part, 
relative to the class, quantity, quality, or condition of products.
    Holiday or legal holiday means 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.
    Interested party means any person financially interested in a 
transaction involving any grading, appeal grading, or regrading of any 
product.
    National supervisor means (a) the officer in charge of the shell egg 
grading service of the AMS, and (b) other employees of the Department 
designated by the national supervisor.
    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 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.
    Official standards means the official U.S. standards grades, and 
weight classes for shell eggs maintained by and available from Poultry 
Programs, AMS.
    Officially identified means eggs that have official marks applied to 
the product under the authority of the AMS in accordance with the act 
and its regulations.
    Origin grading means a grading made on a lot of eggs at a plant 
where the eggs are graded and packed.
    Packaging means the primary or immediate container in which eggs are 
packaged and which serves to protect, preserve, and maintain the 
condition of the eggs.
    Packing means the secondary container in which the primary or 
immediate container is placed to protect, preserve, and maintain the 
condition of the eggs during transit or storage.
    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 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 entire part and such United 
States standards, grades, and weight classes as may be in effect at the 
time grading is performed.
    Sampling means the act of taking samples of any product for grading 
or certification.
    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 the Secretary's stead.
    Shell egg grading service means the personnel who are actively 
engaged in

[[Page 44]]

the administration, application, and direction of shell egg grading 
programs and services pursuant to the regulations in this part.
    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.
    Shipped for retail sale means shell eggs that are forwarded from the 
processing facility for distribution to the ultimate consumer.
    State supervisor or Federal-State supervisor means any authorized 
and designated individual who is in charge of the shell egg grading 
service in a State.
    United States Standards for Quality of Individual Shell Eggs means 
the official U.S. Standards, Grades, and Weight Classes for Shell Eggs 
(AMS 56) that are maintained by and available from Poultry Programs, 
AMS.
    United States Standards, Grades, and Weight Classes for Shell Eggs 
(AMS 56) means the official U.S. standards, grades, and weight classes 
for shell eggs that are maintained by and available from Poultry 
Programs, AMS.
    Washed ungraded eggs means eggs which have been washed and that are 
either sized or unsized, but not 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 at www.fdsys.gov.



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 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]

[[Page 45]]

                                 General



Sec. 56.3  Administration.

    The Administrator shall perform, for and under the supervision of 
the Secretary, such duties as the Secretary may require in the 
enforcement or administration of the provisions of the Act and the 
regulations in this part. The Administrator is authorized to waive for 
limited periods any particular provisions of the regulations in this 
part to permit experimentation so that new procedures, equipment, and 
processing techniques may be tested to facilitate definite improvements 
and at the same time to determine full compliance with the spirit and 
intent of the regulations in this part. The AMS and its officers and 
employees shall not be liable in damages through acts of commission or 
omission in the administration of this part.

[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; 71 FR 42007, July 24, 2006]



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 for Egg Shells.'' 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, as amended at 71 FR 42007, July 24, 2006]



Sec. 56.5  Accessibility 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 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 the 
containers thereof to be corrected prior

[[Page 46]]

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, as amended at 71 FR 42008, July 24, 2006]



Sec. 56.7  Nondiscrimination.

    The conduct of all services and the licensing of graders under these 
regulations shall be accomplished without discrimination as to race, 
color, national origin, sex, religion, age, disability, political 
beliefs, sexual orientation, or marital or family status.

[71 FR 42008, July 24, 2006]



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 number.

    (a) Purpose. The collecting of information requirements in this part 
has been approved by the Office of Management and Budget (OMB) and 
assigned OMB control number 0581-0128.
    (b) Display.

  Sections Where Information Collection Requirements Are Identified and
                                Described
------------------------------------------------------------------------
 
------------------------------------------------------------------------
56.3(a)                  56.24                    56.52(b)(3)(ii)
56.4(a)                  56.25                    56.54(b)(1)
56.10(a)                 56.26                    56.54(b)(3)(ii)
56.11                    56.30                    56.56(a)
56.12                    56.31(a)                 56.57
56.17(b)                 56.35(b)                 56.58
56.18                    56.35(c)                 56.60
56.21(a)                 56.37                    56.62
56.21(b)                 56.52(a)(1)              56.76(f)(7)
56.21(c)                 56.52(a)(4)              56.76(h)
56.23                    56.52(b)(1)
------------------------------------------------------------------------


[71 FR 42008, July 24, 2006; 71 FR 47564, Aug. 17, 2006]

                     Licensed and Authorized Graders



Sec. 56.10  Who may be licensed and authorized.

    (a) Any person who is a Federal or State employee, the employee of a 
local jurisdiction, or the employee of a cooperating agency possessing 
proper qualifications as determined by an examination for competency and 
who is to perform grading service under this part, may be licensed by 
the Secretary as a grader.
    (b) All licenses issued by the Secretary shall be countersigned by 
the officer in charge of the shell egg grading service of the AMS or any 
other designated officer.
    (c) Any person, who is employed at any official plant and possesses 
proper qualifications, as determined by the Administrator, may be 
authorized to candle and grade eggs on the basis of the ``U.S. Standards 
for Quality of Individual Shell Eggs,'' with respect to eggs purchased 
from producers or eggs to be packaged with official identification. In 
addition, such authorization may be granted to any qualified person to 
act as a ``quality assurance inspector'' in the packaging and grade 
labeling of products. No person to whom such authorization is granted 
shall have authority to issue any grading certificates, grading 
memoranda, or other official documents; and all eggs which are graded by 
any such person shall thereafter be check graded by a grader.

[71 FR 42008, July 24, 2006]



Sec. 56.11   Financial interest of graders.

    Graders shall not render service on any product in which they are 
financially interested.

[71 FR 42008, July 24, 2006]



Sec. 56.12  Suspension of license; revocation.

    Pending final action by the Secretary, any person authorized to 
countersign a license to perform grading service may, whenever such 
action is deemed necessary to assure that any grading service is 
properly performed, suspend any license to perform grading service 
issued pursuant to this part, by

[[Page 47]]

giving notice of such suspension or revocation to the respective 
licensee, accompanied by a statement of the reasons therefor. Within 7 
days after the receipt of the aforesaid notice and statement of reasons, 
the licensee may file an appeal in writing with the Secretary, supported 
by any argument or evidence that the licensee may wish to offer as to 
why their license should not be further suspended or revoked. After the 
expiration of the aforesaid 7-day period and consideration of such 
argument and evidence, the Secretary will take such action as deemed 
appropriate with respect to such suspension or revocation. When no 
appeal is filed within the prescribed 7 days, the license to perform 
grading service is revoked.

[71 FR 42008, July 24, 2006]



Sec. 56.13  Cancellation of license.

    Upon termination of the services of a licensed grader, the grader's 
license shall be immediately surrendered for cancellation.

[71 FR 42008, July 24, 2006]



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 the licensee 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, as amended at 71 
FR 42008, July 24, 2006]



Sec. 56.15  Political activity.

    Federal graders may participate in certain political activities, 
including management of and participation in political campaigns, in 
accordance with AMS policy. Graders are subject to these rules while 
they are on leave with or without pay, including furlough; however the 
rules do not apply to cooperative employees not under Federal 
supervision and intermittent employees on the days they perform no 
service. Willful violations of the political activity rules will 
constitute grounds for removal from the AMS.

[71 FR 42008, July 24, 2006]



Sec. 56.16  Identification.

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

[71 FR 42008, July 24, 2006]



Sec. 56.17  Equipment and facilities for graders.

    Equipment and facilities to be furnished by the applicant for use of 
graders in performing service on a resident basis shall include, but not 
be limited to, the following:
    (a)(1) An accurate metal stem thermometer;
    (2) 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 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) Two candling lights that provide a sufficient combined 
illumination through both the aperture and downward through the bottom 
to facilitate accurate interior and exterior quality determinations.
    (6) A candling booth adequately darkened and located in close 
proximity to the work area that is reasonably free of excessive noise. 
The booth must be sufficient in size to accommodate two graders, two 
candling lights, and other necessary grading equipment.
    (b) Furnished office space, a desk, and file or storage cabinets 
(equipped with a satisfactory locking device) suitable for the security 
and storage of official supplies, and other facilities and equipment as 
may otherwise be required. Such space and equipment must

[[Page 48]]

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; 69 FR 76375, Dec. 21, 2004; 71 FR 42008, July 24, 2006]



Sec. 56.18  Schedule of operation of official plants.

    Grading operating schedules for services performed pursuant to 
Sec. Sec. 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]



Sec. 56.19  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.

[71 FR 42008, July 24, 2006]

                     Application for Grading Service



Sec. 56.20  Who may obtain grading service.

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

[71 FR 42009, July 24, 2006]



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 shall 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 other electronic means.
    (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, or at the 
AMS Web site. 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.
    (c) Temporary grading service on a fee basis. An application for 
grading service on a temporary 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 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

[[Page 49]]

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, as amended at 69 
FR 76375, Dec. 21, 2004; 71 FR 42009, July 24, 2006]



Sec. 56.22  Filing of application.

    An application for grading service shall be regarded as filed only 
when made pursuant to the regulations in this part.

[71 FR 42009, July 24, 2006]



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  Rejection of application

    (a) An application for grading service may be rejected by the 
Administrator:
    (1) Whenever the applicant fails to meet the requirements of the 
regulations prescribing the conditions under which the service is made 
available;
    (2) Whenever the product is owned by or located on the premises of a 
person currently denied the benefits of the Act;
    (3) Where any individual holding office or a responsible position 
with or having a substantial financial interest or share in the 
applicant is currently denied the benefits of the Act or was responsible 
in whole or in part for the current denial of the benefits of the Act to 
any person;
    (4) Where the Administrator determines that the application is an 
attempt on the part of a person currently denied the benefits of the Act 
to obtain grading services;
    (5) Whenever the applicant, after an initial survey has been made in 
accordance with the regulations, fails to bring the grading facilities 
and equipment into compliance with the regulations within a reasonable 
period of time;
    (6) Notwithstanding any prior approval whenever, before inauguration 
of service, the applicant fails to fulfill commitments concerning the 
inauguration of the service;
    (7) When it appears that to perform the services specified in this 
part would not be to the best interests of the public welfare or of the 
Government; or
    (8) When it appears to the Administrator that prior commitments of 
the Department necessitate rejection of the application.
    (b) Each such applicant shall be promptly notified by registered 
mail of the reasons for the rejection. A written petition for 
reconsideration of such rejection may be filed by the applicant with the 
Administrator if postmarked or delivered within 10 days after the 
receipt of notice of the rejection. Such petition shall state 
specifically the errors alleged to have been made by the Administrator 
in rejecting the application. Within 20 days following the receipt of 
such a petition for reconsideration, the Administrator shall approve the 
application or notify the applicant by registered mail of the reasons 
for the rejection thereof.

[71 FR 42009, July 24, 2006]



Sec. 56.25  Withdrawal of Application.

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

[71 FR 42009, July 24, 2006]



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 and 
subject to the availability of qualified graders, in the order in which 
applications therefore are made except that precedence

[[Page 50]]

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 as amended at 71 FR 
42009, July 24, 2006]



Sec. 56.28  Types of service.

    (a) Noncontinuous grading service. This type of service is performed 
when an applicant requests grading of a particular lot of shell eggs. 
Requests are made not on a regular basis. Charges or fees are based on 
the time, travel, and expenses needed to perform the work. This service 
also may be called the fee grading service. Shell eggs graded under fee 
grading service are not eligible to be identified with the official 
grademarks shown in Sec. 56.36.
    (b) Continuous grading service on a resident basis and continuous 
grading service on a nonresident basis. Service on a resident basis has 
a scheduled tour of duty, while service on a nonresident basis has a 
nonscheduled tour of duty. Both of these services are performed when an 
applicant requests that a USDA licensed grader be stationed in the 
applicant's processing plant and grade shell eggs in accordance with 
U.S. Standards. The applicant agrees to comply with the facility, 
operating, and sanitary requirements of resident service. The charges 
for resident grading services are based on the hours of the regular tour 
of duty and the volume of shell eggs received into the plant, while 
nonscheduled service is based on the cumulative time required to perform 
the work and an administrative service charge. Shell eggs graded under 
resident grading service are only eligible to be identified with the 
official grademarks shown in Sec. 56.36 when processed and graded under 
the supervision of a grader or quality assurance inspector as provided 
in Sec. 56.39.
    (c) Temporary grading service. This type of service is performed 
when an applicant requests resident grading on a fee basis. The 
applicant must meet all of the facility, operating, and sanitary 
requirements of resident service. Charges or fees are based on the time 
and expenses needed to perform the work. Shell eggs graded under 
temporary grading service are only eligible to be identified with the 
official grademarks when they are processed and graded under the 
supervision of a grader or quality assurance inspector as provided in 
Sec. 56.39.
    (d) Auditing service. This type of service is performed when an 
applicant requests independent verification of written quality assurance 
and value added standards for production, processing, and distribution 
of shell eggs. Charges or fees are based on time, travel, and expenses 
needed to perform the work.

[69 FR 76375, Dec. 21, 2004, as amended at 72 FR 11775, Mar. 14, 2007]



Sec. 56.29  Suspension or withdrawal of plant approval for correctable cause.

    (a) Any plant approval given pursuant to the regulations in this 
part may be suspended by the Administrator for:
    (1) Failure to maintain grading facilities and equipment in a 
satisfactory state of repair, sanitation, or cleanliness;
    (2) The use of operating procedures which are not in accordance with 
the regulations in this part; or
    (3) Alterations of grading facilities or equipment which have not 
been approved in accordance with the regulations in this part.
    (b) Whenever it is feasible to do so, written notice in advance of a 
suspension shall be given to the person concerned and shall specify a 
reasonable period of time in which corrective action must be taken. If 
advance written notice is not given, the suspension action shall be 
promptly confirmed in writing and the reasons therefor shall be stated, 
except in instances where the person has already corrected the 
deficiency. Such service, after appropriate corrective action is taken, 
will be restored immediately, or as soon thereafter as a grader can be 
made available. During such period of suspension, grading service shall 
not be rendered. However, the other provisions of the regulations 
pertaining to providing grading service on a resident basis will remain 
in effect unless such service is terminated in accordance with the 
provisions of this part.
    (c) If the grading facilities or methods of operation are not 
brought into compliance within a reasonable period

[[Page 51]]

of time as specified by the Administrator, the Administrator shall 
initiate withdrawal action pursuant to the Rules of Practice Governing 
Formal Adjudicatory Proceedings (7 CFR part 1, subpart H), and the 
operator shall be afforded an opportunity for an oral hearing upon 
written request in accordance with such Rules of Practice, with respect 
to the merits or validity of the withdrawal action, but any suspension 
shall continue in effect pending the outcome of such hearing unless 
otherwise ordered by the Administrator. Upon withdrawal of grading 
service in an official plant, the plant approval shall also become 
terminated and all labels, seals, tags, or packaging material bearing 
official identification shall, under the supervision of a person 
designated by the AMS, either be destroyed or the official 
identification completely obliterated or sealed in a manner acceptable 
to the AMS.
    (d) In any case where grading service is withdrawn under this 
section, the person concerned may thereafter apply for grading service 
as provided in Sec. Sec. 56.20 through 56.29 of these regulations.

[71 FR 42009, July 24, 2006]



Sec. 56.30  Application for grading service in official plants; approval.

    Any person desiring to process and pack products in a plant under 
grading service must receive approval of such plant and facilities as an 
official plant prior to the rendition of such service. An application 
for grading service to be rendered in an official plant shall be 
approved according to the following procedure: When application has been 
filed for grading service, as aforesaid, the State supervisor or the 
supervisor's assistant shall examine the grading office, facilities, and 
equipment and specify any facility or equipment modifications needed for 
the service. When the plant survey has been completed and approved in 
accordance with the regulations in this part, service may be installed.

[71 FR 42009, July 24, 2006]

                                 Reports



Sec. 56.31  Report of grading work.

    Reports of grading work performed within official plants shall be 
forwarded to the Administrator by the grader in a manner as may be 
specified by the Administrator.

[71 FR 42010, July 24, 2006]



Sec. 56.32  Information to be furnished to graders.

    The applicant for grading service shall furnish to the grader 
rendering such service such information as may be required for the 
purposes of this part.

[71 FR 42010, July 24, 2006]



Sec. 56.33  Report of violations

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

[71 FR 42010, July 24, 2006]

                    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 Sec. Sec. 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

[[Page 52]]

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 on 
the labeling of 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; 71 FR 42010, July 24, 2006]



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.
    (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) 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

[[Page 53]]

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

[GRAPHIC] [TIFF OMITTED] TR19MR98.015


[63 FR 13330, Mar. 19, 1998, as amended at 68 FR 25485, May 13, 2003]



Sec. 56.37  Lot marking of officially identified shell eggs.

    Shell eggs identified with the grademarks shown in Sec. 56.36 shall 
be legibly lot numbered on either the individual egg, 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; 69 FR 76376, Dec. 21, 2004]



Sec. 56.38  Retention authorities.

    A grader may use retention tags or other devices and methods as 
approved

[[Page 54]]

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. Redesignated at 
71 FR 42010, July 24, 2006]

    Prerequisites to Packaging Shell Eggs Identified With Grademarks



Sec. 56.39  Quality assurance inspector required.

    The official identification with the grademark of any product as 
provided in Sec. Sec. 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; 69 FR 76376, Dec. 21, 2004]



Sec. 56.40  Grading requirements of shell eggs identified with 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) In order to be officially identified with a USDA consumer 
grademark, shell eggs shall:
    (1) Be eggs of current production;
    (2) Not possess any undesirable odors or flavors; and
    (3) Not have previously been shipped for retail sale.

[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; 69 FR 76376, 
Dec. 21, 2004; 71 FR 20292, Apr. 19, 2006]



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]



Sec. Sec. 56.42-56.43  [Reserved]

                            Fees and Charges



Sec. 56.45  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 grading service, in 
accordance with the applicable provisions of this section and Sec. Sec. 
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 pursuant to paragraph (c) of this section, be paid by check, 
draft, or money order payable to the Agricultural Marketing Service and 
remitted promptly to the AMS.
    (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, as amended at 71 FR 42010, July 24, 2006]

[[Page 55]]



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 $74.08, beginning March 
30, 2008, and $77.28 on or after January 25, 2009, 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 $86.68 per hour, beginning 
March 30, 2008, and $93.24 per hour on or after January 25, 2009. 
Information on legal holidays is available from the supervisor.
    (d) Fees for audit services will be based on the time and expenses 
required to perform the audit. The hourly charge shall be $87.56 
beginning March 30, 2008, and $89.20 on or after January 25, 2009, and 
shall include the time actually required to perform the audit, waiting 
time, travel time, travel expenses and any clerical costs involved in 
issuing an audit report.
    (e) Audit services rendered on Saturdays, Sundays, or legal holidays 
shall be charged for at the rate of $112.00 per hour beginning March 30, 
2008, and $116.08 per hour on or after January 25, 2009. Information on 
legal holidays is available from the Supervisor.

[70 FR 42256, July 22, 2005, as amended at 71 FR 42010, July 24, 2006; 
72 FR 11775, Mar. 14, 2007; 73 FR 11519, Mar. 4, 2008]



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 AMS 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, as amended at 71 FR 42010, July 24, 2006]



Sec. 56.52  Charges for 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 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) When a signed application for service has been received, the 
State supervisor or the supervisor's assistant shall complete a plant 
survey pursuant to Sec. 56.30. The costs for completing the plant 
survey shall be borne by the applicant on a fee basis at rates set forth 
in Sec. 56.46 (a) through(c), plus any travel and additional expenses. 
No charges will be assessed 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

[[Page 56]]

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 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 $0.055 beginning March 30, 2008, and $0.058 on or 
after January 25, 2009, except that the minimum charge per billing 
period shall be $275 and the maximum charge shall be $3,150 beginning 
March 30, 2008, and $3,225 on or after January 25, 2009. 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

[[Page 57]]

    (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 at www.fdsys.gov.



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 Sec. Sec. 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 
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

[[Page 58]]

salary costs. A minimum charge of $275 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. 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 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 at www.fdsys.gov.

                          Grading Certificates



Sec. 56.55  Forms.

    Grading certificates and sampling report forms (including appeal 
grading certificates and regrading certificates) shall be issued on 
forms approved by the Administrator.

[71 FR 42010, July 24, 2006]



Sec. 56.56  Issuance.

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

[71 FR 42010, July 24, 2006]



Sec. 56.57  Disposition.

    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 the applicant's 
designee. 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; 71 FR 42010, July 
24, 2006]

[[Page 59]]



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 
electronically transmitted to the applicant, or to the applicant's 
designee, at the applicant's expense.

[69 FR 76376, Dec. 21, 2004]

                     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 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.

[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 71 
FR 42010, July 24, 2006]



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 one 
or more licensed graders assigned by the immediate supervisor.
    (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

[[Page 60]]

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; 71 FR 42010, July 24, 2006]



Sec. 56.65  Procedures for appeal gradings.

    (a) The appeal sample shall consist of product taken from the 
original sample container plus an equal number of samples selected at 
random.
    (b) When the original samples are not available or have been 
altered, such as the removal of undergrades, the appeal sample size for 
the lot shall consist of double the samples required in Sec. 56.4(b).
    (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; 69 FR 76376, Dec. 
21, 2004; 71 FR 42010, July 24, 2006]



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 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.

[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 71 
FR 42010, July 24, 2006]

                            Denial of Service



Sec. 56.68  Debarment.

    The acts or practices set forth in Sec. Sec. 56.69 through 56.74, 
or the causing thereof, may be deemed sufficient cause for the debarment 
by the Administrator of any person, including any agents, officers, 
subsidiaries, or affiliates of such person, from all benefits of the act 
for a specified period. The Rules of Practice Governing Formal 
Adjudicatory Proceedings (7 CFR part 1, subpart H) shall be applicable 
to such debarment action.

[71 FR 42011, July 24, 2006]



Sec. 56.69  Misrepresentation, deceptive, or fraudulent act or practice.

    Any willful misrepresentation or any deceptive or fraudulent act or 
practice found to be made or committed by any person in connection with:
    (a) The making or filing of an application for any grading service, 
appeal, or regrading service;
    (b) The making of the product accessible for sampling or grading;
    (c) The making, issuing, or using or attempting to issue or use any 
grading certificate, symbol, stamp, label, seal, or identification 
authorized pursuant to the regulations in this part;
    (d) The use of the terms ``United States'' or ``U.S.'' in 
conjunction with the grade of the product;
    (e) The use of any of the aforesaid terms or any official stamp, 
symbol, label, seal, or identification in the labeling or advertising of 
any product.

[71 FR 42011, July 24, 2006]



Sec. 56.70  Use of facsimile forms.

    Using or attempting to use a form which simulates in whole or in 
part any certificate, symbol, stamp, label, seal or identification 
authorized to be issued or used under the regulations in this part.

[71 FR 42011, July 24, 2006]



Sec. 56.71  Willful violation of the regulations.

    Any willful violation of the regulations in this part or the Act.

[71 FR 42011, July 24, 2006]

[[Page 61]]



Sec. 56.72  Interfering with a grader or employee of the AMS.

    Any interference with or obstruction or any attempted interference 
or obstruction of or assault upon any graders, licensees, or employees 
of the AMS in the performance of their duties. The giving or offering, 
directly or indirectly, of any money, loan, gift, or anything of value 
to an employee of the AMS or the making or offering of any contribution 
to or in any way supplementing the salary, compensation or expenses of 
an employee of the AMS or the offering or entering into a private 
contract or agreement with an employee of the AMS for any services to be 
rendered while employed by the AMS.

[71 FR 42011, July 24, 2006]



Sec. 56.73  Misleading labeling.

    The use of the terms ``Government Graded'', ``Federal-State 
Graded'', or terms of similar import in the labeling or advertising of 
any product without stating in the label or advertisement the U.S. grade 
of the product as determined by an authorized grader.

[71 FR 42011, July 24, 2006]



Sec. 56.74  Miscellaneous.

    The existence of any of the conditions set forth in Sec. 56.24 
constituting the basis for the rejection of an application for grading 
service.

[71 FR 42011, July 24, 2006]

                          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 or temporary basis.

[69 FR 76376, Dec. 21, 2004]



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

    (a) Applicants must comply with all applicable Federal, State and 
local government occupational safety and health regulations.
    (b) General requirements for premises, buildings and plant 
facilities. (1) The outside premises shall be free from refuse, rubbish, 
waste, unused equipment, and other materials and conditions which 
constitute a source of odors or a harbor for insects, rodents, and other 
vermin.
    (2) The outside premises adjacent to grading, packing, cooler, and 
storage rooms must be properly graded and well drained to prevent 
conditions that may constitute a source of odors or propagate insects or 
rodents.
    (3) Buildings shall be of sound construction so as to prevent, 
insofar as practicable, the entrance or harboring of vermin.
    (4) Grading and packing rooms shall be of sufficient size to permit 
installation of necessary equipment and conduct 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.
    (5) The floors, walls, ceilings, partitions, and other parts of the 
grading and packing rooms including benches and platforms shall be 
constructed of materials that are readily cleanable, maintained in a 
sanitary condition, and impervious to moisture in areas exposed to 
cleaning solutions or moist conditions. The floors shall be constructed 
as to provide proper drainage.
    (6) Adequate toilet accommodations which are conveniently located 
and separated from the grading and packing rooms are to be provided. 
Handwashing facilities shall be provided with hot and cold running 
water, an acceptable handwashing detergent, and a sanitary method for 
drying hands. Toilet rooms shall be ventilated to the outside of the 
building and be maintained in a clean and sanitary condition. Signs 
shall be posted in the toilet rooms instructing employees to wash their 
hands before returning to work. In new or remodeled construction, toilet 
rooms shall be located in areas that do not open directly into 
processing rooms.
    (7) 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.

[[Page 62]]

    (8) Adequate packing and packaging storage areas are to be provided 
that protect packaging materials and are dry and maintained in a clean 
and sanitary condition.
    (c) Grading and packing 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 reflection of light that interfere with, or 
prohibit the accurate quality determination of eggs in the grading or 
candling areas.
    (2) The grading and candling equipment shall provide adequate light 
to facilitate quality determinations. When needed, 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) The grading and candling equipment must be sanitarily designed 
and constructed to facilitate cleaning. Such equipment shall be kept 
reasonably clean during grading and packing operations and be thoroughly 
cleaned at the end of each operating day.
    (4) Egg weighing equipment shall be constructed of materials to 
permit cleaning; operated in a clean, sanitary manner; and shall be 
capable of ready adjustment.
    (5) Adequate ventilation, heating, and cooling shall be provided 
where needed.
    (d) Cooler room requirements. (1) Cooler rooms holding shell eggs 
that are identified with a consumer grade shall be refrigerated and 
capable of maintaining an ambient temperature no greater than 45 [deg]F 
(7.2 [deg]C) and equipped with humidifying equipment capable of 
maintaining a relative humidity which will minimize shrinkage.
    (2) Accurate thermometers and hygrometers shall be provided for 
monitoring cooler room temperatures and relative humidity.
    (3) Cooler rooms shall be free from objectionable odors and from 
mold, and shall be maintained in a sanitary condition.
    (e) Shell egg protecting operations. (1) Shell egg protecting (oil 
application) operations shall be conducted in a manner to avoid 
contamination of the product and maximize conservation of its quality.
    (2) Component equipment within the shell egg protecting system, 
including holding tanks and containers, must be sanitarily designed and 
maintained in a clean and sanitary manner, and the application equipment 
must provide an adequate amount of oil for shell coverage of the volume 
of eggs processed.
    (3) Eggs with excess moisture on the shell shall not be shell 
protected.
    (4) Oil having any off odor, or that is obviously contaminated, 
shall not be used in shell egg protection operations. Oil is to be 
filtered prior to application.
    (5) The component equipment of the application system shall be 
washed, rinsed, and treated with a bactericidal agent each time the oil 
is removed.
    (6) Adequate coverage and protection against dust and dirt shall be 
provided when the equipment is not in use.
    (f) Shell egg cleaning operations. (1) Shell egg washing equipment 
must be sanitarily designed, maintained in a clean and sanitary manner, 
and thoroughly cleaned at the end of each operating day.
    (2) Shell egg drying equipment must be sanitarily designed and 
maintained in a clean and sanitary manner. Air used for drying purposes 
must be filtered. These filters shall be cleaned or replaced as needed 
to maintain a sanitary process.
    (3) The temperature of the wash water shall be maintained at 90 
[deg]F (32.2 [deg]C) or higher, and shall be at least 20 [deg]F (6.7 
[deg]C) warmer than the internal temperature of the eggs to be washed. 
These temperatures shall be maintained throughout the cleaning cycle. 
Accurate thermometers shall be provided for monitoring wash water 
temperatures.
    (4) Approved cleaning compounds shall be used in the wash water.
    (5) 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.
    (6) Replacement water shall be added continuously to the wash water 
of

[[Page 63]]

washers. Chlorine or quaternary sanitizing rinse water may be used as 
part of the replacement water, provided, they are compatible with the 
washing compound. Iodine sanitizing rinse water may not be used as part 
of the replacement water.
    (7) 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 
reduce the iron content below the maximum allowed level. Frequency of 
testing for potability and iron content shall be determined by the 
Administrator. When the water source is changed, new tests are required.
    (8) Waste water from the egg washing operation shall be piped 
directly to drains.
    (9) The washing, rinsing, and drying operations shall be continuous 
and shall be completed as rapidly as possible to maximize conservation 
of the egg's quality and to prevent sweating of eggs. Eggs shall not be 
allowed to stand or soak in water. Immersion-type washers shall not be 
used.
    (10) 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.
    (11) Washed eggs shall be spray-rinsed with water having a 
temperature equal to, or warmer than, the temperature of the wash water. 
The spray-rinse water shall contain a sanitizer that has been determined 
acceptable for the intended use by the national supervisor and of not 
less than 100 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.
    (12) Test kits shall be provided and used to determine the strength 
of the sanitizing solution.
    (13) During non-processing periods, 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 that may diminish the quality of the 
egg.
    (14) Washed eggs shall be reasonably dry before packaging and 
packing.
    (15) Steam, vapors, or odors originating from the washing and 
rinsing operation shall be continuously and directly exhausted to the 
outside of the building.
    (g) Requirements for eggs officially identified with a grademark. 
(1) Shell eggs that are officially identified with a grademark shall be 
placed under refrigeration at an ambient temperature no greater than 45 
[deg]F (7.2 [deg]C) promptly after packaging.
    (2) Eggs that are to be officially identified with the grademark 
shall be packed only in new or good used packing material and new 
packaging materials that are clean, free of mold, mustiness and off 
odors, and must be of sufficient strength and durability to adequately 
protect the eggs during normal distribution. When packed in other than 
fiber packing material, the containers must be of sound construction and 
maintained in a reasonably clean manner.
    (h) Use of approved chemicals and compounds. (1) All egg washing and 
equipment cleaning compounds, defoamers, destainers, sanitizers, inks, 
oils, lubricants, or any other compound that comes into contact with the 
shell eggs shall be approved by the national supervisor for their 
specified use and handled in accordance with the manufacturer's 
instructions.
    (2) All pesticides, insecticides, and rodenticides shall be approved 
for their specified use and handled in accordance with the 
manufacturer's instructions.

[69 FR 76376, Dec. 21, 2004]



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]

[[Page 64]]



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



         Subpart A_Regulations Governing the Inspection of Eggs

                                 General

Sec.
57.1 Definitions.
57.10 Administration.
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 Inspections.

                      Relation to Other Authorities

57.35 Eggs in commerce.

                    Eggs Not Intended for Human Food

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

                               Exemptions

57.100 Specific exemptions.
57.105 Suspension or termination of exemptions.

                         Performance of Services

57.110 Licensed inspectors.
57.112 Suspension of license or authority; revocation.
57.114 Surrender of license.
57.119 Political activity.
57.120 Financial interest of inspectors.
57.130 Identification.
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

57.300 Who may request an appeal inspection.
57.310 Where to file an appeal.
57.320 How to file an appeal.
57.330 When an application for an appeal 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.

                                Retention

57.426 Retention.

                   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.

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.

[[Page 65]]


    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.



         Subpart A_Regulations Governing the Inspection of Eggs

                                 General



Sec. 57.1  Definitions.

    For the purpose of the regulations in this part, words in the 
singular shall be deemed to import the plural and vice versa, as the 
case may demand. Unless the context otherwise requires, the following 
terms shall have the following meaning:
    Acceptable means suitable for the purpose intended by the 
Agricultural Marketing Service.
    Act means the applicable provisions of the Egg Products Inspection 
Act, as amended, (Pub. L. 91-597, 84 Stat. 1620 et seq.).
    Administrator means the Administrator of 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 the Administrator's stead.
    Adulterated means any egg 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 a pesticide chemical in 
or on a raw agricultural commodity; a food additive; or 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.

[[Page 66]]

    Agricultural Marketing Service or AMS mean the Agricultural 
Marketing Service of the Department.
    Applicant means any interested party who requests any inspection 
service.
    Capable of use as human food means any egg, 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 Grading Branch, 
Poultry Programs, AMS.
    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.
    Commerce means interstate, foreign, or intrastate commerce.
    Condition means any characteristic affecting a products 
merchantability including, but not being limited to, the following: The 
state of preservation, cleanliness, soundness, wholesomeness, or fitness 
for human food of any product; or the processing, handling, or packaging 
which affects such product.
    Container or Package mean for shell eggs, any carton, basket, case, 
cart, pallet, or other receptacle.
    (a) Immediate container means any package or other container in 
which 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 United States Department of Agriculture.
    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 an unbroken shell 
with adhering dirt, or foreign material.
    (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 or blood spot, 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 household consumer, who 
engages in any business in commerce that involves buying or selling any 
eggs or processing any egg products, or otherwise using any eggs in the 
preparation of human food.
    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.
    Inedible egg products means dried, frozen, or liquid inedible egg 
products that are unfit for human consumption.
    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.
    Interested party means any person financially interested in a 
transaction involving any surveillance inspection service.
    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, or accompanying such product.

[[Page 67]]

    National supervisor means:
    (a) The officer-in-charge of the surveillance inspection service; 
and
    (b) Other employee of the Department designated by the national 
supervisor.
    Nest-run eggs means eggs that have been 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 inspection means the office of any inspector.
    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 egg products processing plant means one or more buildings 
or parts thereof comprising a single plant in which the plant facilities 
and methods of operation therein have been approved by the Administrator 
of the Food Safety Inspection Service as suitable and adequate for the 
continuous inspection of egg products and in which inspection service is 
carried on.
    Official standards means the official U.S. standards of quality, 
grades, and weight classes for shell eggs maintained by and available 
from Poultry Programs, AMS.
    Person means any individual, partnership, association, business 
trust, corporation, or any organized group of persons, whether 
incorporated or not.
    Pesticide chemical, Food additive, Color additive, and Raw 
agricultural commodity mean the same for purposes of this part as under 
the Federal Food, Drug, and Cosmetic Act.
    Plant means any place of business where eggs are processed.
    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 surveillance inspection service in a designated geographical area.
    Regulations means the provisions in this entire part and such U.S. 
Standards, Grades, and Weight Classes for Shell Eggs as may be in effect 
at the time grading is performed.
    Regulatory inspector or Inspector means any Federal employee or the 
employee of a cooperating agency to whom a license has been issued by 
the Secretary to make such inspections as required in Sec. 57.28 of 
these regulations.
    Regulatory officer or staff officer means staff assistants to 
regional directors who assist the regional director in administering the 
surveillance inspection service.
    Sampling means the act of taking samples of any product for 
inspection.
    Secretary means the Secretary of Agriculture or any other officer or 
employee of the Department to whom the authority to act in the 
Secretary's stead has been delegated.
    Service means the personnel who are actively engaged in the 
administration, application, and direction of the surveillance 
inspection service pursuant to the regulations in this part.
    Shell egg packer means any person engaged in the sorting of eggs 
into their various qualities.
    (a) Producer-packer means any person engaged in the sorting of eggs 
from their own production into their various qualities, either 
mechanically or by other means.
    (b) Grading station means any person engaged in the sorting of eggs 
from their own production and sources other than their own production 
into their various qualities, either mechanically or by other means.
    State means any State of the United States of America, the 
Commonwealth of Puerto Rico, the Virgin Islands of the United States, 
and the District of Columbia.
    State supervisor or Federal-State supervisor means any authorized 
and delegated individual who is in charge of the surveillance inspection 
program in a state.
    Surveillance inspection service means the official service within 
the Department having the responsibility for carrying out the provisions 
of the Egg Products Inspection Act under this part.
    Ultimate consumer means any household consumer, restaurant, 
institution, or any other party who has purchased or received shell eggs 
for consumption.

[[Page 68]]

    Unclassified eggs means eggs that have been washed or are unwashed 
and show evidence of segregating or sizing.
    United States Standards, Grades, and Weight Classes for Shell Eggs 
(AMS 56) means the official U.S. standards, grades, and weight classes 
for shell eggs that are maintained by and available from Poultry 
Programs, AMS.
    Washed ungraded eggs means eggs which have been washed and that are 
either sized or unsized, but not segregated for quality.

[69 FR 57164, Sept. 24, 2004, as amended at 71 FR 12614, Mar. 13, 2006]



Sec. 57.10  Administration.

    The Administrator shall perform, for and under the supervision of 
the Secretary such duties as the Secretary may require in the 
enforcement or administration of the provisions of the act and the 
regulations in this part. The Administrator is authorized to waive for 
limited periods any particular provisions of the regulations in this 
part to permit experimentation so that new procedures, equipment, 
grading, inspection, and processing techniques may be tested to 
facilitate definite improvements and at the same time to determine full 
compliance with the spirit and intent of the regulations in this part. 
The AMS and its officers and employees shall not be liable in damages 
through acts of commission or omission in the administration of this 
part.

[69 FR 57166, Sept. 24, 2004]



Sec. 57.13  Federal and State cooperation

    The Secretary shall, whenever determined necessary to effectuate the 
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 this part. In carrying 
out the provisions of the Act and the regulations in this part, the 
Secretary may conduct such examinations, investigations, and inspections 
as the Secretary determines practicable through any officer or employee 
of any such agency commissioned by the Secretary for such purpose. The 
Secretary shall reimburse the States and other agencies for the services 
rendered by them stated in the cooperative agreements signed by the 
Administrator and the duly authorized agent of the State or other 
agency.

[69 FR 57166, Sept. 24, 2004]



Sec. 57.17  Nondiscrimination.

    The conduct of all services and the licensing of inspectors under 
these regulations shall be accomplished without discrimination as to 
race, color, national origin, sex, religion, age, disability, political 
beliefs, sexual orientation, or marital or family status.

[69 FR 57166, Sept. 24, 2004]



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.

    This part provides for inspection services pursuant to the Egg 
Products Inspection Act, as amended. Eggs 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, staff officer, regulatory officer, regional director, and 
national supervisor.

[69 FR 57166, Sept. 24, 2004]



Sec. 57.28  Inspections.

    (a) Periodic inspections shall be made of business premises, 
facilities, inventories, operations, transport vehicles, and records of 
egg handlers, and the records of all persons engaged in

[[Page 69]]

the business of transporting, shipping, or receiving any eggs. 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, as amended at 69 FR 57166, Sept. 24, 
2004]

                      Relation to Other Authorities



Sec. 57.35  Eggs in commerce.

    (a)(1) For eggs that moved or are moving in interstate or foreign 
commerce, no State or local jurisdiction:
    (i) 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
    (ii) Other than states in noncontiguous areas of the United States, 
may require labeling to show the State or other geographical area of 
production or origin.
    (2) 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 for 
the purpose of preventing the distribution of eggs for human food 
purposes that are in violation of this part or any other Federal acts or 
State or local laws consistent therewith.

[69 FR 57166, Sept. 24, 2004]

                    Eggs Not Intended for Human Food



Sec. 57.45  Prohibition on eggs 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 that 
are not intended for use as human food, unless they are denatured or 
decharacterized, unless shipped under seal as authorized in Sec. 
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, as amended at 69 FR 57166, Sept. 24, 
2004]

                               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 that 
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

[[Page 70]]

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 producer from 
eggs of the producer's own flock when sold directly to a household 
consumer exclusively for use by such consumer and members of the 
consumer's household and the consumer's 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 the consumer's household and the consumer's 
nonpaying guests and employees, and the transportation, possession, 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 Sec. Sec. 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, as amended at 69 FR 57166, Sept. 24, 
2004]



Sec. 57.105  Suspension or termination of exemptions.

    (a) 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.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57166, Sept. 24, 2004]

                         Performance of Services



Sec. 57.110  Licensed inspectors.

    (a) Any person who is a Federal employee or the employee of a 
cooperating agency who possesses proper qualifications as determined by 
an examination for competency, and who is to perform surveillance 
inspection services, may be licensed by the Secretary as an inspector.
    (b) All licenses issued by the Secretary shall be countersigned by 
the Administrator or by any other designated official of the service.

[69 FR 67166, Sept. 24, 2004]



Sec. 57.112  Suspension of license or authority; revocation.

    Pending final action by the Secretary, any person authorized to 
countersign a license to perform surveillance inspection services may, 
whenever such action is necessary to assure that any inspection service 
is properly performed, suspend or revoke any license to perform 
inspection services issued pursuant to this part by giving notice of 
such action to the respective licensee, accompanied by a statement of 
the reasons. Within 7 days after the receipt of the suspension or 
revocation notice and statement of reasons, the licensee may file an 
appeal in writing to 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.

[[Page 71]]

After the expiration of the 7-day period and consideration of such 
argument and evidence, the Secretary will take appropriate action 
regarding the suspension or revocation. When no appeal is filed within 
the prescribed 7 days, the license is revoked or suspended.

[69 FR 57166, Sept. 24, 2004]



Sec. 57.114  Surrender of license.

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

[69 FR 57167, Sept. 24, 2004]



Sec. 57.119  Political activity.

    Federal inspectors may participate in certain political activities, 
including management and participation in political campaigns as allowed 
by Federal regulation and AMS directives. Inspectors are subject to 
these rules while they are on leave with or without pay, including 
furlough; however the rules do not apply to cooperative employees not 
under Federal supervision and intermittent employees on the days they 
perform no service. Willfull violations of the political activity rules 
constitute grounds for removal from the service.

[69 FR 57167, Sept. 24, 2004]



Sec. 57.120  Financial interest of inspectors.

    An inspector shall not inspect any product in which the inspector is 
financially interested.

[69 FR 57167, Sept. 24, 2004]



Sec. 57.130  Identification.

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

[69 FR 57167, Sept. 24, 2004]



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 
identification furnished by the Department.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57166, Sept. 24, 2004]



Sec. 57.134  Accessibility of product.

    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.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57167, Sept. 24, 2004]

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 for 2 years 
records showing the receipt, delivery, sale, movement, and disposition 
of all eggs handled by them, and upon the request of an authorized 
representative of the Secretary, shall permit the representative, at 
reasonable times, to have access to and to copy all such records.
    (b) All egg handlers shall maintain production records as approved 
by the Administrator. The records (bills of sale, inventories, receipts) 
shall show the name and address of the shipper and receiver, the date of 
the transaction, the quality of the eggs (graded eggs, nest-run eggs, 
dirties, checks, leakers, loss, inedible eggs), and the quantity of the 
eggs (amount). 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.

[69 FR 57167, Sept. 24, 2004]



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

    When surveillance inspection service is performed at any plant, the 
plant operator shall furnish the inspector such information and 
assistance as may be

[[Page 72]]

required for the performance of inspection functions, preparing 
certificates, reports, and for other official duties.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57167, Sept. 24, 2004]

                        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



Sec. 57.300  Who may request an appeal inspection.

    An appeal inspection may be requested by any interested party who is 
dissatisfied with the determination by an inspector of the class, 
quality, quantity, or condition of any product.

[69 FR 57167, Sept. 24, 2004]



Sec. 57.310  Where to file an appeal.

    Any interested party that is not satisfied with the determination of 
the class, quality, quantity, or condition of product which was 
inspected 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, as amended at 69 FR 57167, Sept. 24, 2004]



Sec. 57.320  How to file an appeal.

    The request for an appeal inspection 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 
that is questioned, and the reason(s) for requesting the appeal service.

[69 FR 57167, Sept. 24, 2004]



Sec. 57.330  When an application for an appeal 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 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.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57167, Sept. 24, 2004]



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.

[63 FR 69968, 69971, Dec. 17, 1998, as amended at 69 FR 57167, Sept. 24, 
2004]



Sec. 57.350  Procedures for selecting appeal samples.

    (a) Products shall not have been moved from the place where the 
inspection being appealed was performed and must have been maintained 
under adequate refrigeration when applicable.
    (b) The appeal sample shall consist of product taken from the 
original sample containers plus an equal number of

[[Page 73]]

containers selected at random. When the original samples are not 
available or have been altered, such as removing the undergrades, the 
sample size shall be double the number of samples required in 7 CFR 
56.4.

[63 FR 69968, 69971, Dec. 17, 1998, as amended at 69 FR 57167, Sept. 24, 
2004]



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.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57167, Sept. 24, 2004]



Sec. 57.370  Cost of appeals.

    The costs of an appeal inspection shall be borne by the appellant on 
a fee basis at rates set forth in 7 CFR 56.46, plus any travel and 
additional expenses. If the appeal inspection or review of an 
inspector's decision discloses that a material error was made in the 
original determination, no fee or expense will be charged.

[69 FR 57157, Sept. 24, 2004]

                                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. No product, shall be released for use until it 
has been made acceptable. Such identification shall not be removed by 
anyone other than an inspector.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57168, Sept. 24, 2004]

                   Registration of Shell Egg Handlers



Sec. 57.690  Person required to register.

    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 Department by furnishing their name, place of business, and such 
other information requested on the registration form available from the 
Department. Completed forms shall be sent to the addressee indicated on 
the form. Persons above who are establishing a business will be required 
to register before they start operations.

[69 FR 571688, Sept. 24, 2004]

              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 Sec. Sec. 57.100 and 
57.720.
    (b) No egg handler shall possess any restricted eggs, except as 
authorized in Sec. Sec. 57.100 and 57.720.
    (c) No egg handler shall use any restricted eggs in the preparation 
of human food, except as provided in Sec. Sec. 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, as amended 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) By shipping directly or indirectly to an official egg products 
processing plant for segregation and processing, if a check or dirty and 
if labeled in accordance with Sec. 57.800. Inedible and loss eggs shall 
not be intermingled in the same container with checks and dirties.
    (2) By destruction and identification in a manner approved by the 
Administrator.
    (i) Loss and inedible eggs shall be crushed and shall be placed in a 
container 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. The approved denaturant or

[[Page 74]]

decharacterant substance shall be dispersed through the product in 
amounts sufficient to give the product a distinctive appearance or odor.
    (ii) The denatured and decharacterized product shall be labeled as 
required in Sec. Sec. 57.840 and 57.860.
    (3) By processing for industrial use or for animal food. Such 
product shall be denatured or decharacterized in accordance with Sec. 
57.720(a)(2) and identified as provided in Sec. Sec. 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 
processing 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 Products Plants.''
    (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 Sec. Sec. 57.800 and 57.860 and shall be shipped directly 
or indirectly:
    (1) To an official egg products processing plant for proper 
segregation and processing; or
    (2) Be regraded so that they comply with the official standards; or
    (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, as amended at 69 FR 57168, Sept. 24, 2004]

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 Processing Plant,'' for 
checks or dirties, or ``Restricted Eggs--Not To Be Used As Human Food,'' 
for inedibles, loss, and incubator rejects, or ``Unclassified 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.

[63 FR 69968, Dec. 17, 1998, as amended at 69 FR 57168, Sept. 24, 2004]



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

[[Page 75]]

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.
    (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, as amended at 69 FR 57168, Sept. 24, 
2004]



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 Processing 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 processing 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.

[63 FR 69968, 69971, Dec. 17, 1998, as amended at 69 FR 57168, Sept. 24, 
2004]



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, 
that, unless otherwise approved by the Administrator contains the 
following information:
    (1) Name of 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

[[Page 76]]

    (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, as amended at 69 FR 57168, Sept. 24, 
2004]



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, Grading Branch, Poultry 
Programs, AMS, U.S. Department of Agriculture, Washington, DC 20250, or 
to the Poultry Programs, Grading Branch office nearest the port where 
the product is to be offered for importation. Application shall be made 
as far in advance as possible prior to the arrival of the 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, and the point of first arrival in the United States.

[69 FR 57168, Sept. 24, 2004]



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 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 that is subject to 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, as amended at 69 FR 57168, Sept. 24, 
2004]



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 Department 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:

[[Page 77]]

                     (Name of Truck Line or Carrier)

                                 Notice

    This package of ---------- must be delivered intact to an inspector 
of the Poultry Programs, 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 Department, 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 Department, 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 Department 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 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, as amended at 69 FR 57168, Sept. 24 
2004]



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 that 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 Department, 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 that 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, as amended at 69 FR 57168, Sept. 24, 
2004]



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;

[[Page 78]]

    (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 processing 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, as amended at 69 FR 57168, Sept. 24, 
2004]



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

    (a) Shipping containers of foreign product offered for importation 
shall bear a label, printed in English, showing:
    (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.
    (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, as amended at 69 FR 57168, Sept. 24, 
2004]



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

    Any eggs that 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, as amended at 69 FR 57168, Sept. 24, 
2004]



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

    Products that have been inspected by the Department 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.

[63 FR 69968, 69971, Dec. 17, 1998, as amended at 69 FR 57168, Sept. 24, 
2004]



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 that 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.

[63 FR 69968, 69971, Dec. 17, 1998, as amended at 69 FR 57168, Sept. 24, 
2004]

[[Page 79]]



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, 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.
    (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.

[64 FR 40738, July 28, 1999, as amended at 69 FR 57168, Sept. 24, 2004]



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.

[[Page 80]]

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.

                               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.

[[Page 81]]

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.
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.

[[Page 82]]

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.
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.

[[Page 83]]

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.
58.651 [Reserved]
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.
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.

[[Page 84]]

  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.
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.

[[Page 85]]

    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 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.

[[Page 86]]

    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).
    (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 
Sec. Sec. 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

[[Page 87]]

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.



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

[[Page 88]]

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 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

[[Page 89]]

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 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

[[Page 90]]

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 Sec. Sec. 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; 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 Sec. Sec. 
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

[[Page 91]]

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 
Sec. Sec. 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 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

[[Page 92]]

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 Sec. Sec. 58.38 through 58.46, 
charges shall be made for inspection, grading, and sampling service at 
the hourly rate of $68.00 for service performed between 6:00 a.m. and 
6:00 p.m. and $74.80 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, as amended at 69 FR 8798, Feb. 28, 2004; 71 
FR 60807, Oct. 17, 2006]



Sec. 58.45  Fees for continuous resident services.

    Irrespective of the fees and charges provided in Sec. Sec. 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 $63.00 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, as amended at 69 FR 8798, Feb. 28, 2004; 71 
FR 60807, Oct. 17, 2006]



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 Sec. Sec. 
58.49 through 58.57, will 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


[[Page 93]]


[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 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 Sec. Sec. 58.50 through 58.52, this section, and Sec. Sec. 
58.54 through 58.57, shall be done

[[Page 94]]

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 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.

[[Page 95]]

    (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.



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.

[[Page 96]]

                               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 
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,

[[Page 97]]

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.
    (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

[[Page 98]]

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.
    (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.

[[Page 99]]

                             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, as amended at 67 
FR 48974, July 29, 2002]

         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.

[[Page 100]]

    (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 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

[[Page 101]]

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 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

[[Page 102]]

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 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

[[Page 103]]

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.
    (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

[[Page 104]]

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 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.

[[Page 105]]

    (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).
    (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.

[[Page 106]]

    (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.



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.

[[Page 107]]

    (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 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]

[[Page 108]]



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 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).
    (6) An additional sample shall be taken after a lapse of 3 days but 
within 21 days of the notice required in paragraph (b)(5)(ii) of this 
section. If this sample also exceeds 750,000 per ml. (1,000,000 per ml. 
for goat milk), subsequent milkings shall not be accepted for market 
until satisfactory compliance is obtained. Shipment may be resumed and a 
temporary status assigned to the producer by the appropriate State 
regulatory agency when an additional sample of herd milk is tested and 
found satisfactory. The producer may be assigned a full reinstatement 
status when three out of four consecutive somatic cell count tests do 
not exceed 750,000 per ml. (1,000,000 per ml. for goat milk). The 
samples shall be taken at a rate of not more than two per week on 
separate days within a 3-week period.
    (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

[[Page 109]]

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 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

[[Page 110]]

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]



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 (Sec. Sec. 58.133, 58.134 and 58.135). The buyer

[[Page 111]]

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 Sec. Sec. 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 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

[[Page 112]]

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 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

[[Page 113]]

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 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

[[Page 114]]

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, Sec. Sec. 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 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.

[[Page 115]]



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, Sec. Sec. 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.

 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,

[[Page 116]]

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 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

[[Page 117]]

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 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

[[Page 118]]

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 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,

[[Page 119]]

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 Sec. Sec. 
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.



Sec. 58.233  Skim milk.

    The skim milk shall be separated from whole milk meeting the 
requirements as outlined in Sec. Sec. 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 Sec. Sec. 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

[[Page 120]]

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 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

[[Page 121]]

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 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

[[Page 122]]

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 Sec. Sec. 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.
    (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,

[[Page 123]]

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 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.

[[Page 124]]



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.



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 Sec. Sec. 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

[[Page 125]]

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 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.

[[Page 126]]



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 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.

[[Page 127]]

    (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 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

[[Page 128]]

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 Sec. Sec. 
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 Sec. Sec. 
58.336 and 58.337:

------------------------------------------------------------------------
                                       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 Sec. Sec. 
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.

[[Page 129]]



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 Sec. Sec. 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 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.

[[Page 130]]



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 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

[[Page 131]]

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 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.

[[Page 132]]



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 Sec. Sec. 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 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 Sec. Sec. 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.

[[Page 133]]



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 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

[[Page 134]]

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 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).

[[Page 135]]

    (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.
    (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.

[[Page 136]]



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 Sec. Sec. 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 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.

[[Page 137]]

                   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 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.

[[Page 138]]

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 (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.

[[Page 139]]

    (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 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.

[[Page 140]]



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.



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 Sec. Sec. 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.

[[Page 141]]

                   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 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.

[[Page 142]]



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.



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. 58.651  [Reserved]



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

[[Page 143]]

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, as 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 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

[[Page 144]]

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.



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 Sec. Sec. 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,

[[Page 145]]

body and texture characteristics permitted in Sec. Sec. 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.



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

[[Page 146]]

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 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

[[Page 147]]

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 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 Sec. Sec. 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.

[[Page 148]]



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 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

[[Page 149]]

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.
    (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 Sec. Sec. 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 Sec. Sec. 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 
Sec. Sec. 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.

[[Page 150]]

                   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 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 Sec. Sec. 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

[[Page 151]]

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, as 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.



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

[[Page 152]]

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 
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

[[Page 153]]

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.
    (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 Sec. Sec. 
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 Sec. Sec. 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.

[[Page 154]]

    (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.
    (f) Keeping quality. Samples incubated at 90-100 [deg]F shall show 
no physical evidence of deterioration after seven days.
    (g) Composition. Shall meet the minimum requirements of the Food and 
Drug Administration for sweetened condensed milk (21 CFR 131.120). In 
addition, the quantity of refined sugar used shall be sufficient to give 
a sugar-in-water ratio of not less than 61.5 percent.
    (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, as 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

[[Page 155]]

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.



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 steers and heifers.
59.102 Mandatory daily reporting for cows and bulls.
59.103 Mandatory weekly reporting for steers and heifers.
59.104 Mandatory reporting of boxed beef sales.

                        Subpart C_Swine Reporting

59.200 Definitions.
59.201 General reporting provisions.
59.202 Mandatory daily reporting for barrows and gilts.
59.203 Mandatory daily reporting for sows and boars.
59.204 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. 1635-1636i.

    Source: 73 FR 28633, May 16, 2008, 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

[[Page 156]]

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 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, shall evidence time 
and date the sale occurred:
    (1) Before 2 p.m. central time; or
    (2) After 2 p.m. central time.

A record of sale by an importer of lamb cuts shall evidence the date the 
sale occurred.
    (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.

[[Page 157]]



Sec. 59.30  Definitions.

    The following definitions apply to this part.
    Act. The term ``Act'' means Subtitle B of the Agricultural Marketing 
Act of 1946, as amended; 7 U.S.C. 1635-1636h.
    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, dressing percentage, or other characteristic.
    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., Washington, DC 20250. Phone (202) 
720-4486 or Fax (202) 720-1112. Copies may also be obtained over the 
Internet at: http://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 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 grid purchase. The term ``negotiated grid purchase'' in 
reference to cattle means the negotiation of a base price, from which 
premiums are added and discounts are subtracted, 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

[[Page 158]]

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.
    Percent lean. The term ``percent lean'' means the value equal to the 
average percentage of the carcass weight comprised of lean meat.
    Person. The term ``person'' means any individual, group of 
individuals, partnership, corporation, association, or other entity.
    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 and frozen 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), thin meats (e.g. inside and outside 
skirts, pectoral meat, cap and wedge meat, and blade meat), and fresh 
and frozen ground beef, beef trimmings, and boneless processing beef.
    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. When used in 
reference to cow and bull boxed beef items, the term ``carlot-based'' 
means any transaction between a buyer and seller consisting of 2,000 
pounds or more of one or more individual 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.

[[Page 159]]

    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 contract'' 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 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 steers and heifers for slaughter:
    (1) Whether a packer provided any financing agreement or arrangement 
with regard to the steers and heifers;
    (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 steers and heifers purchased by a packer as a 
negotiated purchase that are scheduled to be delivered to the plant for 
slaughter not later than 14 days and the percentage of slaughter steers 
and heifers purchased by a packer as a negotiated purchase that are 
scheduled to be delivered to the plant for slaughter more than 14 days, 
but fewer than 30 days.
    Type of purchase. The term ``type of purchase'' with respect to 
cattle, means a negotiated purchase, negotiated grid

[[Page 160]]

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.
    White cow. Cow on a ration that tends to produce white fat.



Sec. 59.101  Mandatory daily reporting for steers and heifers.

    (a) In general. The corporate officers or officially designated 
representatives of each steer and heifer packer processing plant shall 
report to the Secretary at least two times each reporting day not later 
than 10 a.m. central time and not later than 2 p.m. central time the 
following information, 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) The estimated 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, yield grade, or other characteristic 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 daily reporting for cows and bulls.

    (a) In General. The corporate officers or officially designated 
representatives of each cow and bull packer processing plant shall 
report to the Secretary each reporting day 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 base bid price (per hundredweight) intended to be paid for 
slaughter cow and bull carcasses on that day not later than 10 a.m. 
central time categorized by:
    (i) Weight; and
    (ii) For slaughter cows, percent lean (e.g., breaker, boner, cutter 
(lean)).
    (2) The prices for cattle (per hundredweight) purchased during the 
previous day not later than 2 p.m. central time 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) The estimated weight of the cattle purchased;
    (v) The quality classification; and
    (vi) Any premiums or discounts associated with weight or quality 
expressed in dollars per hundredweight on a dressed basis.
    (3) The volume of cows and bulls slaughtered the previous day.
    (b) Publication. The Secretary shall make the information available 
to the public within one hour of the required reporting time on the 
reporting day on which the information is received from the packer.



Sec. 59.103  Mandatory weekly reporting for steers and heifers.

    (a) In general. The corporate officers or officially designated 
representatives of each steer and heifer packer processing plant shall 
report to the Secretary on the first reporting day of each week, not 
later than 9 a.m. central time, the following information

[[Page 161]]

applicable to the prior slaughter week, categorized to clearly delineate 
domestic from imported market purchases:
    (1) The quantity of cattle purchased through a negotiated basis that 
were slaughtered;
    (2) The quantity of cattle purchased through a negotiated grid basis 
that were slaughtered;
    (3) The quantity of cattle purchased through forward contracts that 
were slaughtered;
    (4) The quantity of cattle delivered under a formula marketing 
arrangement that were slaughtered;
    (5) The quantity and carcass characteristics of packer-owned cattle 
that were slaughtered;
    (6) The quantity, basis level, basis level month, and delivery month 
and year for all cattle purchased through forward contracts;
    (7) 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.
    (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 a.m. central 
time.



Sec. 59.104  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, Cutters (lean));
    (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.

[[Page 162]]

    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 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 barrow or gilt 
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.
    Hog Class. The term ``hog class'' means, as applicable, barrows or 
gilts; sows; or boars or stags.
    Inferior swine. The term ``inferior swine'' means swine that are 
discounted in the market place due to light-weight, health, or physical 
conditions that affects their value.
    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.
    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 carcass, if the actual amount of the

[[Page 163]]

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 and a person that slaughtered an 
average of 200,000 head of sows, boars, or combination thereof per year 
during the immediately preceding 5 calendar years. Additionally, in the 
case of a swine processing plant or person 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 or 
person 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.

[[Page 164]]



Sec. 59.201  General reporting provisions.

    (a) Packer-owned swine. Information required under this section for 
packer-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 barrows and gilts.

    (a) Prior day report. The corporate officers or officially 
designated representatives of each packer that processes barrows and 
gilts shall report to the Secretary for each business day of the packer 
not later than 7 a.m. central time on each reporting day information 
regarding all barrows and gilts purchased or priced, during the prior 
business day of the packer, and not later than 9 a.m. central time on 
each reporting day information regarding all barrows and gilts 
slaughtered, excluding inferior swine, as specified in Sec. 59.10(b):
    (1) All purchase data, reported by lot, including:
    (i) The total number of barrows and gilts purchased;
    (ii) The total number of barrows and gilts scheduled for delivery to 
a packer for slaughter;
    (iii) The base price and weight for all barrows and gilts purchased 
on a live weight basis; and
    (iv) The base price and premiums and discounts paid for carcass 
characteristics for all barrows and gilts purchased on a carcass basis 
for which a price has been established. For barrows and gilts 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 barrows and 
gilts slaughtered:
    (i) The average net price;
    (ii) The average carcass weight;
    (iii) The average sort loss;
    (iv) The average backfat;
    (v) The average loin depth;
    (vi) The average lean percentage; and
    (vii) Total quantity slaughtered.
    (3) Packer purchase commitments, which shall be equal to the number 
of barrows and gilts scheduled for delivery to a packer for slaughter 
for each of the next 14 calendar days.
    (4) The Secretary shall publish the information obtained in 
paragraph (a) of this section in a prior day report not later than 8 
a.m. central time for all barrows and gilts purchased and 10 a.m. 
central time for all barrows and gilts slaughtered on the reporting day 
on which the information is received from the packer. In addition, the 
Secretary shall publish a net price distribution for all barrows and 
gilts slaughtered on the previous day not later than 3 p.m. central 
time.
    (b) Morning report. The corporate officers or officially designated 
representatives of each packer processing plant that processes barrows 
and gilts shall report to the Secretary not later than 10 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 barrows and 
gilts, and barrows and gilts that qualify as packer-owned swine, 
expected to be purchased throughout the reporting day through each type 
of purchase;
    (2) The total number of barrows and gilts, and barrows and gilts 
that qualify as 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) The Secretary shall publish the information obtained in 
paragraph (b) of this section in the morning report as soon as 
practicable, but not later than 11 a.m. central time, on each reporting 
day.

[[Page 165]]

    (c) Afternoon report. The corporate officers or officially 
designated representatives of each packer processing plant that 
processes barrows and gilts shall report to the Secretary not later than 
2 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 barrows and 
gilts, and barrows and gilts that qualify as packer-owned swine expected 
to be purchased throughout the reporting day through each type of 
purchase;
    (2) The total number of barrows and gilts, and barrows and gilts 
that qualify as packer-owned swine, purchased up to that time of the 
reporting day through each type of purchase;
    (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) The Secretary shall publish the information obtained in 
paragraph (c) of this section in the afternoon report as soon as 
practicable, but not later than 3 p.m. central time, on each reporting 
day.



Sec. 59.203  Mandatory daily reporting for sows and boars.

    (a) Prior day report. The corporate officers or officially 
designated representatives of each packer of sows and boars shall report 
to the Secretary for each business day of the packer not later than 7 
a.m. central time on each reporting day information regarding all sows 
and boars purchased or priced, excluding inferior swine, during the 
prior business day of the packer all purchase data, reported by lot, 
including:
    (1) The total number of sows and boars purchased divided into at 
least three weight groups as specified by the Secretary;
    (2) The average price paid by each purchase type for all sows in 
each weight class specified by the Secretary; and
    (3) The average price paid by each purchase type for all boars in 
each weight class specified by the Secretary.
    (4) The packer is required to report only the volume of sows and 
boars that qualify as packer owned swine and shall omit packer owned 
sows and boars from all average price calculations.
    (b) Publication. The Secretary shall publish the information 
obtained in paragraph (a) of this section as soon as practicable, but 
not later than 8 a.m. central time, on the reporting day on which the 
information is received from the packer.



Sec. 59.204  Mandatory weekly reporting for swine.

    (a) Weekly noncarcass merit premium report. Not later than 4 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 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

[[Page 166]]

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 any combination of carcass weights. When used in reference 
to boxed lamb cuts the term ``carlot-based'' means any transaction 
between a buyer and seller consisting of 1,000 pounds or more of one or 
more individual boxed lamb items.
    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 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 2,500 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 2,500 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.
    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

[[Page 167]]

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.
    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.
    Yield grade lamb carcass reporting. The term ``yield grade lamb 
carcass reporting'' means if the lot includes 80 percent or more of one 
yield grade, the lot will be considered a single yield grade lot. If the 
lot contains less than 80 percent of one yield grade, the lot will be 
considered a mixed grade lot and all yield grades comprising 10 percent 
or more will be used to describe the lot.



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 p.m. central 
time the prices for lambs (per hundredweight) established on that day as 
F.O.B. feedlot or delivered at the plant, categorized to clearly 
delineate domestic from imported market purchases as described in Sec. 
59.10(b) and categorized by:
    (1) The type of purchase;
    (2) The class of lamb;
    (3) The quantity of lambs purchased on a live weight basis;
    (4) The quantity of lambs purchased on a dressed weight basis;
    (5) A range and average of estimated live weights of lambs 
purchased;
    (6) An estimate of the percentage of the lambs purchased that were 
of a quality grade of Choice or better;
    (7) Any premiums or discounts associated with weight, quality grade, 
yield grade, or any type of purchase;
    (8) Lamb state of origin;
    (9) The pelt type; and
    (10) The estimated lamb dressing percentage.
    (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)(5) and (a)(7) 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)(6) of this 
section not later than 9 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 a negotiated purchase 
that were slaughtered;
    (2) The quantity of lambs purchased through forward contracts that 
were slaughtered;
    (3) The quantity of lambs delivered under a formula marketing 
arrangement that were slaughtered;
    (4) The quantity and carcass characteristics of packer-owned lambs 
that were slaughtered;
    (5) The quantity, basis level, and delivery month for all lambs 
purchased through forward contracts;
    (6) 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
    (7) The following information for lambs purchased through a formula 
marketing arrangement and slaughtered during the prior slaughter week,

[[Page 168]]

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; and
    (v) The range of prices paid.
    (b) Publication. The Secretary shall make available to the public 
the information obtained in paragraphs (a)(1) through (a)(5) and (a)(7) 
of this section on the second reporting day of the current slaughter 
week and information obtained in paragraph (a)(6) 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 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 purchased; and
    (3) The following information regarding the characteristics of each 
transaction:
    (i) The type of transaction;
    (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 USDA quality grade of lamb;
    (iv) The cut of lamb, referencing the most recent version of the 
Institutional Meat Purchase Specifications (IMPS), when applicable;
    (v) USDA 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.

[[Page 169]]



                      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 the provisions of 44 U.S.C. Chapter 35 and have been assigned OMB 
Control Number 0581-0186.



PART 60_COUNTRY OF ORIGIN LABELING FOR FISH AND SHELLFISH--Table of Contents



                      Subpart A_General Provisions

                               Definitions

Sec.
60.101 Act.
60.102 AMS.
60.103 Commingled covered commodities.
60.104 Consumer package.
60.105 Covered commodity.
60.106 Farm-raised fish.
60.107 Food service establishment.
60.108-60.110 [Reserved]
60.111 Hatched.
60.112 Ingredient.
60.113 [Reserved]
60.114 Legible.
60.115 [Reserved]
60.116 Person.
60.117 [Reserved]
60.118 Pre-labeled.
60.119 Processed food item.
60.120-60.121 [Reserved]
60.122 Production step.
60.123 Raised.
60.124 Retailer.
60.125 Secretary.
60.126 [Reserved]
60.127 United States.
60.128 United States country of origin.
60.129 USDA.
60.130 U.S. flagged vessel.
60.131 Vessel flag.
60.132 Waters of the United States.
60.133 Wild fish and shellfish.

                     Country of Origin Notification

60.200 Country of origin notification.
60.300 Labeling.

                              Recordkeeping

60.400 Recordkeeping requirements.

Subpart B [Reserved]

    Authority: 7 U.S.C. 1621 et seq.

    Source: 74 FR 2701, Jan. 15, 2009, unless otherwise noted



                      Subpart A_General Provisions

                               Definitions



Sec. 60.101  Act.

    Act means the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et 
seq.).



Sec. 60.102  AMS.

    AMS means the Agricultural Marketing Service, United States 
Department of Agriculture.



Sec. 60.103  Commingled covered commodities.

    Commingled covered commodities means covered commodities (of the 
same type) presented for retail sale in a consumer package that have 
been prepared from raw material sources having different origins.



Sec. 60.104  Consumer package.

    Consumer package means any container or wrapping in which a covered 
commodity is enclosed for the delivery and/or display of such commodity 
to retail purchasers.



Sec. 60.105  Covered commodity.

    (a) Covered commodity means:
    (1)-(2) [Reserved]
    (3) Farm-raised fish and shellfish (including fillets, steaks, 
nuggets, and any other flesh);
    (4) Wild fish and shellfish (including fillets, steaks, nuggets, and 
any other flesh);
    (5)-(6) [Reserved]
    (b) Covered commodities are excluded from this part if the commodity 
is an ingredient in a processed food item as defined in Sec. 60.119.



Sec. 60.106  Farm-raised fish.

    Farm-raised fish means fish or shellfish that have been harvested in 
controlled environments, including ocean-ranched (e.g., penned) fish and 
including shellfish harvested from leased beds that have been subjected 
to production enhancements such as providing protection from predators, 
the addition of artificial structures, or providing nutrients; and 
fillets, steaks, nuggets, and any other flesh from a farm-raised fish or 
shellfish.

[[Page 170]]



Sec. 60.107  Food service establishment.

    Food service establishment means a restaurant, cafeteria, lunch 
room, food stand, saloon, tavern, bar, lounge, or other similar facility 
operated as an enterprise engaged in the business of selling food to the 
public. Similar food service facilities include salad bars, 
delicatessens, and other food enterprises located within retail 
establishments that provide ready-to-eat foods that are consumed either 
on or outside of the retailer's premises.



Sec. Sec. 60.108-60.110  [Reserved]



Sec. 60.111  Hatched.

    Hatched means emerged from the egg.



Sec. 60.112  Ingredient.

    Ingredient means a component either in part or in full, of a 
finished retail food product.



Sec. 60.113  [Reserved]



Sec. 60.114  Legible.

    Legible means text that can be easily read.



Sec. 60.115  [Reserved]



Sec. 60.116  Person.

    Person means any individual, partnership, corporation, association, 
or other legal entity.



Sec. 60.117  [Reserved]



Sec. 60.118  Pre-labeled.

    Pre-labeled means a covered commodity that has the commodity's 
country of origin and method of production and the name and place of 
business of the manufacturer, packer, or distributor on the covered 
commodity itself, on the package in which it is sold to the consumer, or 
on the master shipping container. The place of business information must 
include at a minimum the city and state or other acceptable locale 
designation.



Sec. 60.119  Processed food item.

    Processed food item means a retail item derived from fish or 
shellfish that has undergone specific processing resulting in a change 
in the character of the covered commodity, or that has been combined 
with at least one other covered commodity or other substantive food 
component (e.g., breading, tomato sauce), except that the addition of a 
component (such as water, salt, or sugar) that enhances or represents a 
further step in the preparation of the product for consumption, would 
not in itself result in a processed food item. Specific processing that 
results in a change in the character of the covered commodity includes 
cooking (e.g., frying, broiling, grilling, boiling, steaming, baking, 
roasting), curing (e.g., salt curing, sugar curing, drying), smoking 
(hot or cold), and restructuring (e.g., emulsifying and extruding, 
compressing into blocks and cutting into portions). Examples of items 
excluded include fish sticks, surimi, mussels in tomato sauce, seafood 
medley, coconut shrimp, soups, stews, and chowders, sauces, pates, 
smoked salmon, marinated fish fillets, canned tuna, canned sardines, 
canned salmon, crab salad, shrimp cocktail, gefilte fish, sushi, and 
breaded shrimp.



Sec. Sec. 60.120-60.121  [Reserved]



Sec. 60.122  Production step.

    Production step means in the case of:
    (a) [Reserved]
    (b) Farm-raised Fish and Shellfish: Hatched, raised, harvested, and 
processed.
    (c) Wild Fish and Shellfish: Harvested and processed.



Sec. 60.123  Raised.

    Raised means in the case of:
    (a) [Reserved]
    (b) Farm-raised fish and shellfish as it relates to the production 
steps defined in Sec. 60.122: The period of time from hatched to 
harvested.



Sec. 60.124  Retailer.

    Retailer means any person licensed as a retailer under the 
Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499a(b)).



Sec. 60.125  Secretary.

    Secretary means the Secretary of Agriculture of the United States or 
any person to whom the Secretary's authority has been delegated.

[[Page 171]]



Sec. 60.126  [Reserved]



Sec. 60.127  United States.

    United States means the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the U.S. Virgin Islands, American Samoa, 
Guam, the Northern Mariana Islands, and any other Commonwealth, 
territory, or possession of the United States, and the waters of the 
United States as defined in Sec. 60.132.



Sec. 60.128  United States country of origin.

    United States country of origin means in the case of:
    (a)-(b) [Reserved]
    (c) Farm-raised Fish and Shellfish: From fish or shellfish hatched, 
raised, harvested, and processed in the United States, and that has not 
undergone a substantial transformation (as established by U.S. Customs 
and Border Protection) outside of the United States.
    (d) Wild-fish and Shellfish: From fish or shellfish harvested in the 
waters of the United States or by a U.S. flagged vessel and processed in 
the United States or aboard a U.S. flagged vessel, and that has not 
undergone a substantial transformation (as established by U.S. Customs 
and Border Protection) outside of the United States.
    (e)-(f) [Reserved]



Sec. 60.129  USDA.

    USDA means the United States Department of Agriculture.



Sec. 60.130  U.S. flagged vessel.

    U.S. flagged vessel means:
    (a) Any vessel documented under chapter 121 of title 46, United 
States Code; or
    (b) Any vessel numbered in accordance with chapter 123 of title 46, 
United States Code.



Sec. 60.131  Vessel flag.

    Vessel flag means the country of registry for a vessel, ship, or 
boat.



Sec. 60.132  Waters of the United States.

    Waters of the United States means those fresh and ocean waters 
contained within the outer limit of the Exclusive Economic Zone (EEZ) of 
the United States as described by the Department of State Public Notice 
2237 published in the Federal Register volume 60, No. 163, August 23, 
1995, pages 43825-43829. The Department of State notice is republished 
in appendix A to this subpart.



Sec. 60.133  Wild fish and shellfish.

    Wild fish and shellfish means naturally-born or hatchery-originated 
fish or shellfish released in the wild, and caught, taken, or harvested 
from non-controlled waters or beds; and fillets, steaks, nuggets, and 
any other flesh from a wild fish or shellfish.

                     Country of Origin Notification



Sec. 60.200  Country of origin notification.

    In providing notice of the country of origin as required by the Act, 
the following requirements shall be followed by retailers:
    (a) General. Labeling of covered commodities offered for sale 
whether individually, in a bulk bin, display case, carton, crate, 
barrel, cluster, or consumer package must contain country of origin and 
method of production information (wild and/or farm-raised) as set forth 
in this regulation.
    (b) Exemptions. Food service establishments as defined in Sec. 
60.107 are exempt from labeling under this subpart.
    (c) Exclusions. A covered commodity is excluded from this subpart if 
it is an ingredient in a processed food item as defined in Sec. 60.119.
    (d) Designation of Method of Production (Wild and/or Farm-Raised). 
Fish and shellfish covered commodities shall also be labeled to indicate 
whether they are wild and/or farm-raised as those terms are defined in 
this regulation.
    (e) Labeling Covered Commodities of United States Origin. A covered 
commodity may only bear the declaration of ``Product of the U.S.'' at 
retail if it meets the definition of United States Country of Origin as 
defined in Sec. 60.128.
    (f) Labeling Imported Products That Have Not Undergone Substantial 
Transformation in the United States. An imported covered commodity shall 
retain its origin as declared to U.S. Customs and Border Protection at 
the time the product entered the United States, through retail sale, 
provided that it

[[Page 172]]

has not undergone a substantial transformation (as established by U.S. 
Customs and Border Protection) in the United States.
    (g) Labeling Imported Products That Have Subsequently Been 
Substantially Transformed in the United States.
    (1) [Reserved]
    (2) Wild and Farm-Raised Fish and Shellfish: If a covered commodity 
was imported from country X and subsequently substantially transformed 
(as established by U.S. Customs and Border Protection) in the United 
States or aboard a U.S. flagged vessel, such product shall be labeled at 
retail as ``From country X, processed in the United States.'' 
Alternatively, the product may be labeled as ``Product of country X and 
the United States''.
    (h) Labeling Commingled Covered Commodities. (1) For imported 
covered commodities that have not subsequently been substantially 
transformed in the United States that are commingled with other imported 
covered commodities that have not been substantially transformed in the 
United States, and/or covered commodities of U.S. origin and/or covered 
commodities as described in Sec. 60.200(g), the declaration shall 
indicate the countries of origin for covered commodities in accordance 
with existing Federal legal requirements.
    (2) For imported covered commodities that have subsequently 
undergone substantial transformation in the United States that are 
commingled with other imported covered commodities that have 
subsequently undergone substantial transformation in the United States 
(either prior to or following substantial transformation in the United 
States) and/or U.S. origin covered commodities, the declaration shall 
indicate the countries of origin contained therein or that may be 
contained therein.
    (i) Remotely Purchased Products. For sales of a covered commodity in 
which the customer purchases a covered commodity prior to having an 
opportunity to observe the final package (e.g., Internet sales, home 
delivery sales, etc.), the retailer may provide the country of origin 
notification and method of production (wild and/or farm-raised) 
designation either on the sales vehicle or at the time the product is 
delivered to the consumer.



Sec. 60.300  Labeling.

    (a) Country of origin declarations and method of production (wild 
and/or farm-raised) designations can either be in the form of a placard, 
sign, label, sticker, band, twist tie, pin tag, or other format that 
provides country of origin and method of production information. The 
country of origin declaration and method of production (wild and/or 
farm-raised) designation may be combined or made separately. Except as 
provided in Sec. 60.200(g) and 60.200(h) of this regulation, the 
declaration of the country(ies) of origin of a product shall be listed 
according to applicable Federal legal requirements. Country of origin 
declarations may be in the form of a check box provided it is in 
conformance with other Federal legal requirements. Various forms of the 
production designation are acceptable, including ``wild caught'', 
``wild'', ``farm-raised'', ``farmed'', or a combination of these terms 
for blended products that contain both wild and farm-raised fish or 
shellfish, provided it can be readily understood by the consumer and is 
in conformance with other Federal labeling laws. Designations such as 
``ocean caught'', ``caught at sea'', ``line caught'', ``cultivated'', or 
``cultured'' are not acceptable substitutes. Alternatively, method of 
production (wild and/or farm-raised) designations may be in the form of 
a check box.
    (b) The declaration of the country(ies) of origin and method(s) of 
production (wild and/or farm-raised) (e.g., placard, sign, label, 
sticker, band, twist tie, pin tag, or other display) must be placed in a 
conspicuous location, so as to render it likely to be read and 
understood by a customer under normal conditions of purchase.
    (c) The declaration of the country(ies) of origin and the method(s) 
of production (wild and/or farm-raised) may be typed, printed, or 
handwritten provided it is in conformance with other Federal labeling 
laws and does not obscure other labeling information required by other 
Federal regulations.
    (d) A bulk container (e.g., display case, shipper, bin, carton, and 
barrel),

[[Page 173]]

used at the retail level to present product to consumers, may contain a 
covered commodity from more than one country of origin and/or more than 
one method of production (wild and farm-raised) provided all possible 
origins and/or methods of production are listed.
    (e) In general, country abbreviations are not acceptable. Only those 
abbreviations approved for use under CBP rules, regulations, and 
policies, such as ``U.K.'' for ``The United Kingdom of Great Britain and 
Northern Ireland'', ``Luxemb'' for Luxembourg, and ``U.S. or USA'' for 
the ``United States'' are acceptable. The adjectival form of the name of 
a country may be used as proper notification of the country(ies) of 
origin of imported commodities provided the adjectival form of the name 
does not appear with other words so as to refer to a kind or species of 
product. Symbols or flags alone may not be used to denote country of 
origin.
    (f) State or regional label designations are not acceptable in lieu 
of country of origin labeling.

                              Recordkeeping



Sec. 60.400  Recordkeeping requirements.

    (a) General. (1) All records must be legible and may be maintained 
in either electronic or hard copy formats. Due to the variation in 
inventory and accounting documentary systems, various forms of 
documentation and records will be acceptable.
    (2) Upon request by USDA representatives, suppliers and retailers 
subject to this subpart shall make available to USDA representatives, 
records maintained in the normal course of business that verify an 
origin claim and method of production (wild and/or farm-raised). Such 
records shall be provided within 5 business days of the request and may 
be maintained in any location.
    (b) Responsibilities of suppliers. (1) Any person engaged in the 
business of supplying a covered commodity to a retailer, whether 
directly or indirectly, must make available information to the buyer 
about the country(ies) of origin and method(s) of production (wild and/
or farm-raised), of the covered commodity. This information may be 
provided either on the product itself, on the master shipping container, 
or in a document that accompanies the product through retail sale 
provided that it identifies the product and its country(ies) of origin 
and method(s) of production. In addition, the supplier of a covered 
commodity that is responsible for initiating a country(ies) of origin 
and method(s) of production (wild and/or farm-raised) claim must possess 
records that are necessary to substantiate that claim for a period of 1 
year from the date of the transaction. Producer affidavits shall also be 
considered acceptable records that suppliers may utilize to initiate 
origin claims, provided it is made by someone having first-hand 
knowledge of the origin of the covered commodity and identifies the 
covered commodity unique to the transaction.
    (2) Any intermediary supplier handling a covered commodity that is 
found to be designated incorrectly as to the country of origin and/or 
method of production (wild and/or farm-raised) shall not be held liable 
for a violation of the Act by reason of the conduct of another if the 
intermediary supplier relied on the designation provided by the 
initiating supplier or other intermediary supplier, unless the 
intermediary supplier willfully disregarded information establishing 
that the country of origin and/or method of production (wild and/or 
farm-raised) declaration was false.
    (3) Any person engaged in the business of supplying a covered 
commodity to a retailer, whether directly or indirectly (i.e., including 
but not limited to harvesters, producers, distributors, handlers, and 
processors), must maintain records to establish and identify the 
immediate previous source (if applicable) and immediate subsequent 
recipient of a covered commodity for a period of 1 year from the date of 
the transaction.
    (4) For an imported covered commodity (as defined in Sec. 
60.200(f)), the importer of record as determined by U.S. Customs and 
Border Protection, must ensure that records: provide clear product 
tracking from the port of entry into the United States to the immediate 
subsequent recipient and accurately reflect the country of origin and 
method of production (wild and/or

[[Page 174]]

farm-raised) of the item as identified in relevant CBP entry documents 
and information systems; and must maintain such records for a period of 
1 year from the date of the transaction.
    (c) Responsibilities of retailers. (1) In providing the country of 
origin and method of production (wild and/or farm-raised) notification 
for a covered commodity, in general, retailers are to convey the origin 
and method of production information provided to them by their 
suppliers. Only if the retailer physically commingles a covered 
commodity of different origins and/or methods of production in 
preparation for retail sale, whether in a consumer-ready package or in a 
bulk display (and not discretely packaged) (i.e., full service fish 
case), can the retailer initiate a multiple country of origin and/or 
method of production designation that reflects the actual countries of 
origin and method of production for the resulting covered commodity.
    (2) Records and other documentary evidence relied upon at the point 
of sale to establish a covered commodity's country(ies) of origin and 
designation of wild and/or farm-raised must either be maintained at the 
retail facility or at another location for as long as the product is on 
hand and provided to any duly authorized representative of USDA in 
accordance with Sec. 60.400(a)(2). For pre-labeled products, the label 
itself is sufficient information on which the retailer may rely to 
establish the product's origin and method(s) of production (wild and/or 
farm-raised) and no additional records documenting origin and method of 
production information are necessary.
    (3) Records that identify the covered commodity, the retail 
supplier, and for products that are not pre-labeled, the country of 
origin information and the method(s) of production (wild and/or farm-
raised) must be maintained for a period of 1 year from the date the 
declaration is made at retail.
    (4) Any retailer handling a covered commodity that is found to be 
designated incorrectly as to the country of origin and/or the method of 
production (wild and/or farm-raised) shall not be held liable for a 
violation of the Act by reason of the conduct of another if the retailer 
relied on the designation provided by the supplier, unless the retailer 
willfully disregarded information establishing that the country of 
origin and/or method of production declaration was false.

Subpart B [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.

[[Page 175]]

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.
    (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.

[[Page 176]]

    (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.
    (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

[[Page 177]]

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 
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

[[Page 178]]

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 Sec. Sec. 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.



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.

[[Page 179]]



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.



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.

[[Page 180]]



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 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 62_LIVESTOCK, MEAT, AND OTHER AGRICULTURAL COMMODITIES 

(QUALITY SYSTEMS VERIFICATION PROGRAMS)--Table of Contents



       Subpart A_Quality Systems Verification Programs Definitions

Sec.
62.000 Meaning of terms.

[[Page 181]]

                             Administration

62.100 Administrator.

                                 Service

62.200 Services.
62.201 Availability of service.
62.202 How to apply for service.
62.203 How to withdraw service.
62.204 Authority to request service.
62.205 Conflict of interest.
62.206 Access to program documents and activities.
62.207 Official assessment.
62.208 Publication of QSVP assessment status.
62.209 Reassessment.
62.210 Denial, suspension, or cancellation of service.
62.211 Appeals.
62.212 Official assessment reports.
62.213 Official identification.

                           Charges for Service

62.300 Fees and other costs for service.
62.301 Payment of fees and other charges.

                              Miscellaneous

                           OMB Control Number

62.400 OMB control number assigned pursuant to the Paperwork Reduction 
          Act.

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

    Source: 70 FR 58791, Oct. 11, 2005, unless otherwise noted.



       Subpart A_Quality Systems Verification Programs Definitions



Sec. 62.000  Meaning of terms.

    Words used in this subpart in the singular form shall be deemed to 
impart 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 (AMS), or any officer or employee of AMS to whom authority has 
heretofore been delegated or to whom authority may hereafter be 
delegated, to act in the Administrator's stead.
    Agricultural Marketing Service. The Agricultural Marketing Service 
of the U.S. Department of Agriculture.
    Applicant. Any individual or business with financial interest in 
QSVP services who has applied for service under this part.
    Assessment. A systematic review of the adequacy of program or system 
documentation, or the review of the completeness of implementation of a 
documented program or system.
    Auditor. Person authorized by the Livestock and Seed Program to 
conduct official assessments.
    Branch. The Audit, Review, and Compliance Branch of the Livestock 
and Seed Program.
    Chief. The Chief of the ARC 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 the Chief's stead.
    Conformance. A user's quality manual and supporting documentation.
    Deputy Administrator. The Deputy Administrator of the Livestock and 
Seed Program, or any officer or employee of the Livestock and Seed 
Program to whom authority has heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in the Deputy 
Administrator's stead.
    Financially interested person. Any individual, partnership, 
corporation, other legal entity, or Government agency having a financial 
interest in the involved product or service.
    Livestock. Bovine, ovine, porcine, caprine, bison or class of 
Osteichthyes.
    Official mark. Official mark or other official identification means 
any form of mark or other identification, used under the regulations to 
show the conformance of products with applicable program requirements, 
or to maintain the identity of products for which service is provided 
under the regulations.
    Official memoranda or assessment reports. Official memorandum means 
any assessment report of initial or final record of findings made by an 
authorized person of services performed pursuant to the regulations.
    Products. Includes all agricultural commodities and services within 
the scope of the Livestock and Seed Program This includes livestock, 
meat, meat products, seed, feedstuffs, as well as processes involving 
the production of these products, agricultural product data storage, 
product traceability and identification.
    QSVP Procedures. Audit rules and guidelines set forth by the 
Agricultural

[[Page 182]]

Marketing Service regarding the development, documentation, and 
implementation of QSVP.
    Quality Manual. A collection of documents that describe the 
applicant's quality management system, as it applies to the requested 
service.
    Quality Systems Verification Programs (QSVP). A collection of 
voluntary, audit-based, user-fee programs that allow applicants to have 
program documentation and program processes assessed by AMS auditor(s) 
and other USDA officials under this part.
    Regulations. The regulations in this part.
    USDA. The U.S. Department of Agriculture.

                             Administration



Sec. 62.100  Administrator.

    The LS Program Deputy Administrator is charged with the 
administration of official assessments conducted according to the 
regulations in this part and approved LS Program QSVP procedures.

                                 Service



Sec. 62.200  Services.

    QSVP, under this regulation, provide applicants, the ability to have 
USDA assess documented processes or systems.
    (a) Assessment services provided under the regulations shall consist 
of:
    (1) A review of the adequacy of an applicant's quality manual 
against LS Program QSVP procedures, internationally recognized 
guidelines, or other requirements as approved by the LS Program;
    (2) An onsite assessment of the applicant's program to ensure 
implementation of provisions within the quality manual and the 
applicant's conformance with applicable program requirements and LS 
Program QSVP procedures; and
    (3) A reassessment of the applicant's program to ensure continued 
implementation of provisions within the quality manual and the 
applicant's conformance with program requirements and applicable LS 
Program QSVP procedures;
    (b) Developmental assistance in the form of training to explain LS 
Program QSVP procedures is available upon request.



Sec. 62.201  Availability of service.

    QSVP services under these regulations are available to international 
and domestic government agencies, private agricultural businesses and 
any finically interested person.



Sec. 62.202  How to apply for service.

    Applicants may apply for QSVP services by submitting the following 
information to the ARC Branch headquarters office at USDA, AMS, LSP, ARC 
Branch, 1400 Independence Avenue, SW., STOP 0294, Room 2627-S, 
Washington, DC 20250-0294; by fax to: (202) 690-1038, or e-mail to: 
ARCBranch@usda.gov.
    (a) The original completed form LS-313, Application for Service;
    (b) A letter requesting QSVP services; and
    (c) A complete copy of the applicant's program documentation, as 
described in the LS Program QSVP procedures.



Sec. 62.203  How to withdraw service.

    Service may be withdrawn by the applicant at any time; provided 
that, the applicant notifies the ARC Branch in writing of his/her desire 
to withdraw the application for service and pays any expenses the 
Department has incurred in connection with such application.



Sec. 62.204  Authority to request service.

    Any person requesting service may be required to prove his/her 
financial interest in the product or service at the discretion of the 
Deputy Administrator.



Sec. 62.205  Conflict of interest.

    No USDA official shall review any program documentation or determine 
conformance of any documented process or system in which the USDA 
official has financial holdings.



Sec. 62.206  Access to program documents and activities.

    (a) The applicant shall make its products and program documentation 
available and easily accessible for assessment, with respect to the 
requested

[[Page 183]]

service. Auditors and other USDA officials responsible for maintaining 
uniformity and accuracy of service under the regulations shall have 
access to all parts of facilities covered by approved applications for 
service under the regulations, during normal business hours or during 
periods of production, for the purpose of evaluating products or 
processes. This includes products in facilities which have been or are 
to be examined for program conformance or which bear any official marks 
of conformance. This further includes any facilities or operation that 
is part of an approved program.
    (b) Documentation and records relating to an applicant's program 
must be retained for at least one calendar year following the calendar 
year during which the record was created.



Sec. 62.207  Official assessment.

    Official assessment of an applicant's program shall include:
    (a) Documentation assessment. Auditors and other USDA officials 
shall review the applicant's program documentation and issue finding of 
the review to the applicant.
    (b) Program assessment. Auditors and USDA officials shall conduct an 
onsite assessment of the applicant's program to ensure provisions of the 
applicant's program documentation have been implemented and conform to 
LS Program QSVP procedures.
    (c) Program Determination. Applicant's determined to meet or not 
meet LS Program QSVP procedures or the applicant's program requirements 
shall be notified of their program's approval or disapproval.
    (d) Corrective and/or preventative actions. Applicants may be 
required to implement corrective and/or preventative actions upon 
completion of assessment. After implementation of corrective and/or 
preventative actions, the applicant may request another assessment.



Sec. 62.208  Publication of QSVP assessment status.

    Approved programs shall be posted for public reference on the ARC 
Branch Web site: http://www.ams.usda.gov/lsg/arc/audit.htm. Such 
postings shall include:
    (a) Program name and contact information,
    (b) Products or services covered under the scope of approval,
    (c) Effective dates of approval, and
    (d) Control numbers of official assessments, as appropriate, and
    (e) Any other information deemed necessary by the Branch Chief.



Sec. 62.209  Reassessment.

    Approved programs are subject to periodic reassessments to ensure 
ongoing conformance with the LS Program QSVP procedures covered under 
the scope of approval. The frequency of reassessments shall be based on 
the LS Program QSVP procedures, or as determined by the Deputy 
Administrator.



Sec. 62.210  Denial, suspension, or cancellation of service.

    (a) QSVP services may be denied if an applicant fails to meet its 
program requirements, or conform to LS Program QSVP procedures, such as:
    (1) Adequately address any program requirement resulting in a major 
non-conformance or an accumulation of minor non-conformances that result 
in the assignment of a major non-conformance for the program.
    (2) Demonstrate capability to meet any program requirement resulting 
in a major non-conformance.
    (3) Present truthful and accurate information to any auditor or 
other USDA official; or
    (4) Allow access to facilities and records within the scope of the 
program.
    (b) QSVP services may be suspended if the applicant fails to meet 
its program requirements, or conform to LS Program QSVP procedures; such 
as failure to:
    (1) Adequately address any program requirement resulting in a major 
non-conformance;
    (2) Demonstrate capability to meet any program requirement resulting 
in a major non-conformance;
    (3) Follow and maintain it's approved program or QSVP procedures;
    (4) Provide corrective actions and correction as applicable in the 
timeframe specified;
    (5) Submit significant changes to and seek approval from the Chief 
prior to

[[Page 184]]

implementation of significant changes to an approved program;
    (6) Allow access to facilities and records within the scope of the 
approved program;
    (7) Accurately represent the eligibility of agricultural products or 
services distributed under an approved program;
    (8) Remit payment for QSVP services;
    (9) Abstain from any fraudulent or deceptive practice in connection 
with any application or request for service under the rule; or
    (10) Allow any auditor or other USDA official to perform their 
duties under the regulations of this part.
    (c) QSVP services maybe be cancelled, an application may be 
rejected, or program assessment may be terminated if the Deputy 
Administrator or his designee determines that a nonconformance has 
remained uncorrected beyond a reasonable amount of time.



Sec. 62.211  Appeals.

    Appeals of adverse decisions under this part, may be made in writing 
to the Livestock and Seed Program Deputy Administrator at STOP 0249, 
Room 2092-South, 1400 Independence Avenue, SW., Washington, DC 20250-
0249. Appeals must be made within 30 days of receipt of adverse 
decision.
    (a) Procedure for Appeals. Actions under this subparagraph 
concerning decision of appeals of the Deputy Administrator shall be 
conducted in accordance with the Rule of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth at 7 CFR Sec. 1.130 through Sec. 1.151 and the 
Supplemental Rules of Practice in 7 CFR part 50.
    (b) [Reserved]



Sec. 62.212  Official assessment reports.

    Official QSVP assessment reports shall be generated by the auditor 
at the conclusion of each assessment and a copy shall be provided to the 
applicant.



Sec. 62.213  Official identification.

    The following, as shown in figure 1, constitutes official 
identification to show product or services produced under an approved 
USDA, Process Verified Program (PVP):
    Figure 1.
    [GRAPHIC] [TIFF OMITTED] TR11OC05.174
    
    (a) Products or services produced under an approved USDA, PVP may 
use the ``USDA Process Verified'' statement and the ``USDA Process 
Verified'' shield, so long as, both the statement and shield are used in 
direct association with a clear description of the process verified 
points that have been approved by the Branch.
    (b) Use of the ``USDA Process Verified'' statement and the ``USDA 
Process Verified'' shield shall be approved in writing by Chief prior to 
use by an applicant.

                           Charges for Service



Sec. 62.300  Fees and other costs for service.

    Fees and other charges will be levied based on the following 
provisions:
    (a) Fees for service. Fees for QSVP services shall be based on the 
time required to provide service calculated to the nearest quarter hour 
period, including, but not limited to, official assessment time, travel 
time, and time required to prepare assessment reports. The hourly fee 
rate shall be $108 per hour.
    (b) Transportation costs. Applicants are responsible for paying 
actual travel costs incurred to provide QSVP services including but not 
limited to: Mileage charges for use of privately owned vehicles, rental 
vehicles and gas, parking, tolls, and public transportation costs such 
as airfare, train, and taxi service.
    (c) Per diem costs. The applicant is responsible for paying per diem 
costs incurred to provide QSVP services away from the auditor's or USDA 
officials' official duty station(s). Per diem costs

[[Page 185]]

shall be calculated in accordance with existing travel regulations (41 
CFR, subtitle F--Federal Travel Regulation System, chapter 301).
    (d) Other costs. When costs, other than those costs specified in 
paragraphs (a), (b), and (c) of this section, are involved in providing 
the QSVP services, the applicant shall be responsible for these costs. 
The amount of these costs shall be determined administratively by the 
Chief. However, the applicant will be notified of these costs before the 
service is rendered.



Sec. 62.301  Payment of fees and other charges.

    Fees and other charges for QSVP services shall be paid in accordance 
with the following provisions. Upon receipt of billing for fees and 
other charges, the applicant shall remit payment within 10 business days 
by check, electronic funds transfer, draft, or money order made payable 
to USDA, AMS, in accordance with directions on the billing. Fees and 
charges shall be paid in advance if required by the auditor or other 
authorized USDA official.

                              Miscellaneous



OMB Control Number--Table of Contents





Sec. 62.400  OMB control number assigned pursuant to the Paperwork Reduction Act.

    The information collection and recordkeeping requirements of this 
part have been approved by OMB under 44 U.S.C. Chapter 35 and have been 
assigned OMB Control Number 0581-0124.



PART 63_NATIONAL SHEEP INDUSTRY IMPROVEMENT CENTER--Table of Contents



                      Subpart A	General Provisions

                               Definitions

Sec.
63.1 Act.
63.2 Board.
63.3 Department or USDA.
63.4 Eligible entity.
63.5 Eligible organization.
63.6 Fiscal year.
63.7 Fund.
63.8 NSIIC.
63.9 Part.
63.10 Secretary.
63.11 Under Secretary for Rural Development.
63.12 Under Secretary for Research, Education, and Economics.
63.13 United States.

                           Board of Directors

63.100 Establishment and membership.
63.101 Nominations.
63.102 Nominee's agreement to serve.
63.103 Appointment.
63.104 Vacancies.
63.105 Nominating organizations.
63.106 Term of office.
63.107 Compensation.
63.108 Removal.
63.109 Procedure.
63.110 Powers and duties of the Board.
63.111 Prohibited activities.
63.112 Conflict of interest.

               National Sheep Industry Improvement Center

63.200 NSIIC establishment and purpose.

                             Revolving Fund

63.300 Establishment.
63.301 Use of fund.

                       Reports, Books, and Records

63.400 Books and records.
63.401 Use of information.
63.402 Confidentiality.

                              Miscellaneous

63.500 Compliance.
63.501 Patents, copyrights, inventions, trademarks, information, 
          publications, and product formulations.
63.502 Personal liability.
63.503 Separability.
63.504 Amendments.
63.505 OMB control number.

Subpart B [Reserved]

    Authority: 7 U.S.C. 2008j.

    Source: 75 FR 43034, July 23, 2010, unless otherwise noted.



                      Subpart A	General Provisions

                               Definitions



Sec. 63.1  Act.

    Act means section 375 of the Consolidated Farm and Rural Development 
Act, 7 U.S.C. 2008j, as amended by section 11009 of the Food, 
Conservation, and Energy Act of 2008 (Pub. L. 110-246).

[[Page 186]]



Sec. 63.2  Board.

    Board means National Sheep Industry Improvement Center Board of 
Directors established under Sec. 63.100.



Sec. 63.3  Department or USDA.

    Department or USDA means the United States Department of 
Agriculture.



Sec. 63.4  Eligible entity.

    Eligible entity means an entity that promotes the betterment of the 
United States sheep or goat industries and that is a public, private, or 
cooperative organization; an association, including a corporation not 
operated for profit; a federally recognized Indian Tribe; or a public or 
quasi-public agency.



Sec. 63.5  Eligible organization.

    Eligible organization means any national organization that meets the 
criteria provided for in Sec. 63.105 as being eligible to submit 
nominations for membership on the Board.



Sec. 63.6  Fiscal year.

    Fiscal year means a calendar year or any other 12 month period as 
determined by the Board.



Sec. 63.7  Fund.

    Fund means the NSIIC Revolving Fund established in the United States 
Department of the Treasury that is available to the NSIIC without fiscal 
year limitation, to carry out the programs and activities authorized 
under the Act.



Sec. 63.8  NSIIC.

    NSIIC or Center means the National Sheep Industry Improvement Center 
established under Sec. 63.200.



Sec. 63.9  Part.

    Part means the rules and regulations issued pursuant to the Act that 
appear in part 63 of title 7 of the Code of Federal Regulations.



Sec. 63.10  Secretary.

    Secretary means the Secretary of Agriculture of the United States or 
any other officer or employee of the Department to whom authority has 
heretofore been delegated, or to whom authority may hereafter be 
delegated, to act in the Secretary's stead.



Sec. 63.11  Under Secretary for Rural Development.

    Under Secretary for Rural Development means the Under Secretary for 
Rural Development of the U.S. Department of Agriculture, or any other 
officer or employee of the Department designated by the Under Secretary 
to act in the Under Secretary's stead.



Sec. 63.12  Under Secretary for Research, Education, and Economics.

    Under Secretary for Research, Education, and Economics means the 
Under Secretary for Research, Education, and Economics of the U.S. 
Department of Agriculture, or any other officer or employee of the 
Department designated by the Under Secretary to act in the Under 
Secretary's stead.



Sec. 63.13  United States.

    United States means collectively the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, and the territories and 
possessions of the United States.

                           Board of Directors



Sec. 63.100  Establishment and membership.

    There is hereby established a National Sheep Industry Improvement 
Center Board. The Board is composed of seven voting members and two non-
voting members. Voting members of the Board shall be appointed by the 
Secretary from nominations submitted in accordance with this part. The 
Board shall consist of the following:
    (a) Voting members. (1) Four members shall be active producers of 
sheep or goats in the United States;
    (2) Two members shall have expertise in finance and management; and
    (3) One member shall have expertise in lamb, wool, goat, or goat 
product marketing.
    (b) Non-voting members. (1) One member shall be the Under Secretary 
of Agriculture for Rural Development, USDA; and
    (2) One member shall be the Under Secretary for Research, Education, 
and Economics, USDA.

[[Page 187]]



Sec. 63.101  Nominations.

    All nominations authorized under this section shall be made in the 
following manner:
    (a) Nominations shall be obtained by the Secretary from national 
organizations eligible under Sec. 63.105. An eligible organization 
shall submit to the Secretary for consideration at least two nominations 
for one or more voting member seats on the Board. If two nominations for 
each voting member seat are not submitted by such organization(s), then 
the Secretary may solicit nominations from other sources.
    (b) After the establishment of the initial Board, USDA shall 
announce when a vacancy does or will exist. Nomination for subsequent 
Board members shall be submitted to the Secretary not less than sixty 
(60) days prior to the expiration of the terms of the members whose 
terms are expiring, in the manner as described in this section. In the 
case of vacancies due to reasons other than the expiration of a term of 
office, successor Board members shall be appointed pursuant to Sec. 
63.104.
    (c) If more than one eligible organization exists, they may caucus 
and jointly nominate at least two qualified persons for each position. 
If joint agreement is not reached with respect to any such nominations, 
or if no caucus is held, each eligible organization may submit to the 
Secretary at least two nominees for each appointment to be made.



Sec. 63.102  Nominee's agreement to serve.

    Any person nominated to serve on the Board shall file with the 
Secretary at the time of the nomination a written agreement to:
    (a) Serve on the Board if appointed;
    (b) Disclose any relationship that may create a conflict of interest 
under Sec. 63.112; and
    (c) Withdraw from participation in deliberations, decision-making, 
or voting on matters which concern any relationship disclosed under 
paragraph (b) of this section.



Sec. 63.103  Appointment.

    From the nominations made pursuant to Sec. 63.101, the Secretary 
shall appoint the members of the Board.



Sec. 63.104  Vacancies.

    To fill any vacancy occasioned by the death, removal, resignation, 
or disqualification of any member of the Board, the Secretary shall 
appoint a successor from the most recent list of nominations for the 
position or the Secretary shall request nominations for a successor 
pursuant to Sec. 63.101 and such successor shall be appointed pursuant 
to Sec. 63.103.



Sec. 63.105  Nominating organizations.

    (a) In general. Nominations for voting members of the Board may be 
submitted by any national organization that the Secretary determines 
meets the eligibility criteria established under paragraph (b) of this 
section.
    (b) Basis for eligibility. A national organization is eligible to 
submit nominations for voting members on the Board if:
    (1) The membership of the organization consists primarily of active 
sheep or goat producers in the United States; and
    (2) The primary interest of the organization is the production of 
sheep or goats in the United States.



Sec. 63.106  Term of office.

    (a) The voting members of the Board shall serve for a term of three 
years; except that persons (other than the chairperson) appointed to the 
initial Board shall serve staggered terms of one, two, and three years, 
as determined by the Secretary.
    (b) No member may serve more than two consecutive full terms.



Sec. 63.107  Compensation.

    Board members shall serve without compensation, but shall be 
reimbursed for their reasonable travel, subsistence, and other necessary 
expenses incurred in performing their duties as members of the Board.



Sec. 63.108  Removal.

    If the Secretary determines that any person appointed under this 
part fails or refuses to perform his or her duties properly or engages 
in acts of dishonesty or willful misconduct, the Secretary shall remove 
the person from office. A person appointed under this

[[Page 188]]

part or any employee of the Board may be removed by the Secretary if the 
Secretary determines that the person's continued service would be 
detrimental to the purposes of the Act.



Sec. 63.109  Procedure.

    (a) At a Board meeting, it will be considered a quorum when a simple 
majority of the voting representatives are present.
    (b) A decision of the Board shall be made by a majority of the 
voting members of the board.
    (c) The Board shall meet not less than once each fiscal year at the 
call of the chairperson or at the request of the executive director.
    (d) The location of the meeting shall be established by the Board.
    (e) A chairperson shall be selected from among the voting members of 
the Board and all serve a term of office of two years.
    (f) All Board members and the Secretary will be notified at least 30 
days in advance of all Board meetings, unless an emergency meeting is 
declared.
    (g) In lieu of voting at a properly convened meeting and, when in 
the opinion of the chairperson of the Board such action is necessary, 
the Board may take action if supported by a simple majority of the Board 
representatives by mail, telephone, electronic mail, facsimile, or any 
other means of communication. In that event, all representatives must be 
notified and provided the opportunity to vote. Any action so taken shall 
have the same force and effect as though such action had been taken at a 
properly convened meeting of the Board. All telephone votes shall be 
confirmed promptly in writing. All votes shall be recorded in Board 
minutes.
    (h) There shall be no voting by proxy.
    (i) The organization of the Board and the procedures for conducting 
meetings of the Board shall be in accordance with its bylaws, which 
shall be established by the Board and approved by the Secretary.



Sec. 63.110  Powers and duties of the Board.

    The management of the NSIIC shall be vested in the Board of 
Directors. The Board shall have the following powers and duties:
    (a) Be responsible for the general supervision of the NSIIC;
    (b) Review any grant or contract agreement to be made or entered 
into by the NSIIC and any financial assistance provided to the NSIIC;
    (c) Make the final decision, by majority vote, on whether or not to 
provide grants to an eligible entity in accordance with the strategic 
plan;
    (d) Develop and establish a budget plan and long-term operating plan 
to carry out the goals of the NSIIC;
    (e) Adopt, and amend as appropriate, bylaws as necessary for the 
proper management and functioning of the NSIIC;
    (f) Provide a system of organization to fix responsibility and 
promote efficiency in carrying out the functions of the NSIIC;
    (g) Appoint and establish compensation for an executive director, 
who will serve at the pleasure of the Board, to be the chief executive 
officer of the NSIIC;
    (h) Appoint other officers, attorneys, employees, and agents as 
necessary and set forth their respective duties and powers;
    (i) Delegate, by resolution, to the chairperson, the executive 
director, or any other officer or employee any function, power, or duty 
of the Board--other than voting on a grant, contract, agreement, budget, 
or annual strategic plan; and
    (j) Consult with the following entities to carry out this part:
    (1) State departments of agriculture;
    (2) Federal departments and agencies;
    (3) Nonprofit development corporations;
    (4) Colleges and universities;
    (5) Banking and other credit-related agencies;
    (6) Agriculture and agribusiness organizations, and
    (7) Regional planning and development organizations.



Sec. 63.111  Prohibited activities.

    The Board may not engage in, and shall prohibit the employees and 
agents of the Board from engaging in:
    (a) Any action that is a conflict of interest under Sec. 63.112;

[[Page 189]]

    (b) Using funds to undertake any action for the purpose of 
influencing legislation or governmental action or policy, by local, 
State, national, and foreign governments, other than recommending to the 
Secretary amendments to the Order; and
    (c) Any activity that is false, misleading, or disparaging to 
another agricultural commodity.



Sec. 63.112  Conflict of interest.

    (a) In general. Members of the Board shall not vote on any 
particular matter pending before the Board in which, to the knowledge of 
the member, an interest is held by the member, any spouse of the member, 
any child of the member, any partner of the member, any organization in 
which the member is serving as an officer, director, trustee, partner, 
or employee; or any person with whom the member is negotiating or has 
any arrangement concerning prospective employment or with whom the 
member has a financial interest, except as provided in paragraph (c) of 
this section.
    (b) Validity of action. An action by a member of the Board that 
violates Sec. 63.112 (a) shall not impair or otherwise affect the 
validity of any otherwise lawful action by the Board.
    (c) Disclosure. If a member of the Board makes full disclosure of an 
interest and, prior to any participation by the member, the Board 
determines, by majority vote, that the interest is too remote or too 
inconsequential to affect the integrity of any participation by the 
member, the member may participate in the matter relating to the 
interest, except as provided in paragraph (d) of this section. A member 
that discloses an interest under section Sec. 63.112(a) shall not vote 
on a determination of whether the member may participate in the matter 
relating to the interest.
    (d) Remands. The Secretary may vacate and remand to the Board for 
reconsideration any decision made if the Secretary determines that there 
has been a violation of this section or any conflict of interest 
provision of the bylaws of the Board with respect to the decision.
    (1) In the case of any violation and remand of a funding decision to 
the Board, the Secretary shall inform the Board of the reasons for the 
remand.
    (2) If a decision with respect to the matter is remanded to the 
Board by reason of a conflict of interest faced by a Board member, the 
member may not participate in any subsequent decision with respect to 
the matter.

               National Sheep Industry Improvement Center



Sec. 63.200  NSIIC establishment and purpose.

    (a) There is hereby established a National Sheep Industry 
Improvement Center. The purpose of the Center shall be to:
    (1) Promote strategic development activities and collaborative 
efforts by private and State entities to maximize the impact of Federal 
assistance to strengthen and enhance production and marketing of sheep 
or goat products in the United States;
    (2) Optimize the use of available human capital and resources within 
the sheep or goat industries;
    (3) Provide assistance to meet the needs of the sheep or goat 
industry for infrastructure development, business development, 
production, resource development, and market and environmental research;
    (4) Advance activities that empower and build the capacity of the 
U.S. sheep or goat industry to design unique responses to the special 
needs of the sheep or goat industries on both a regional and national 
basis; and
    (5) Adopt flexible and innovative approaches to solving the long-
term needs of the United States sheep and goat industry.
    (b) The NSIIC shall submit to the Secretary an annual strategic plan 
for the delivery of financial assistance provided by the NSIIC. A 
strategic plan shall identify:
    (1) Goals, methods, and a benchmark for measuring the success of 
carrying out the plan and how the plan relates to the national and 
regional goals of the NSIIC;
    (2) The amount and sources of Federal and non-Federal funds that are 
available for carrying out the plan;
    (3) Funding priorities;
    (4) Selection criteria for funding; and
    (5) A method of distributing funding.

[[Page 190]]

                             Revolving Fund



Sec. 63.300  Establishment.

    The NSIIC Revolving Fund established in the Treasury shall be 
available to the NSIIC, without fiscal year limitation, to carry out the 
authorized programs and activities of the NSIIC under this part. There 
shall be deposited in the Fund:
    (a) Such amounts as may be appropriated, transferred, or otherwise 
made available to support programs and activities of the NSIIC;
    (b) Payments received from any source for products, services, or 
property furnished in connection with the activities of the NSIIC;
    (c) Fees and royalties collected by the NSIIC from licensing or 
other arrangements relating to commercialization of products developed 
through projects funded, in whole or part, by grants or contracts 
executed by the NSIIC;
    (d) Donations or contributions accepted by the NSIIC to support 
authorized programs and activities. Such contributions shall be free 
from any encumbrance by the donor and the NSIIC shall retain complete 
control of their use; and
    (e) Any other funds acquired by the NSIIC.



Sec. 63.301  Use of fund.

    The NSIIC shall use the Fund to:
    (a) Make grants to eligible entities in accordance with a strategic 
plan submitted under Sec. 63.310 of this part. Specifically, amounts in 
the Fund may be used to:
    (1) Participate with Federal and State agencies in financing 
activities that are in accordance with the strategic plan, including 
participation with several States in a regional effort;
    (2) Participate with other public and private funding sources in 
financing activities that are in accordance with the strategic plan, 
including participation in a regional effort;
    (3) Accrue interest;
    (4) Serve broad geographic areas and regions of diverse production, 
to the maximum extent practicable;
    (5) Only to supplement and not supplant Federal, State, and private 
funds expended for rural development;
    (6) For administration purposes, with a maximum 3 percent of the 
NSIIC Fund balance at the beginning of each fiscal year for the 
administration of the NSIIC; and
    (b) Provide funds to eligible entities contingent upon that entity 
agreeing to account for the amounts using generally accepted accounting 
principles and to provide access to the Secretary for inspection and 
audit of such records.

                       Reports, Books, and Records



Sec. 63.400  Books and records.

    The Board and NSIIC shall:
    (a) Maintain such books and records, which shall be made available 
to the Secretary for inspection and audit as is appropriate for the 
administration or enforcement of the Act or rules and regulations issued 
thereunder;
    (b) Prepare and submit to the Secretary, from time to time, such 
reports as the Secretary may prescribe; and
    (c) Account for the receipt and disbursement of all funds entrusted 
to it. The NSIIC shall cause its books and records to be audited by an 
independent auditor at the end of each fiscal year, and a report of such 
audit to be submitted to the Secretary.



Sec. 63.401  Use of information.

    Information from records or reports required pursuant to this part 
shall be made available to the Secretary as is appropriate for the 
administration or enforcement of the Act or rules and regulation issued 
thereunder.



Sec. 63.402  Confidentiality.

    All information obtained from books, records, reports, or any other 
material obtained under the Act and this part, shall be kept 
confidential by all persons, including employees and former employees of 
the NSIIC. Nothing in this section shall be deemed to prohibit the 
issuance of general statements based upon the reports or the statistical 
data, which statements do not identify the information furnished by any 
entity.

[[Page 191]]

                              Miscellaneous



Sec. 63.500  Compliance.

    The Secretary shall review and monitor compliance by the Board and 
the NSIIC with the Act and this part.



Sec. 63.501  Patents, copyrights, inventions, trademarks, 

information, publications, and product formulations.

    Any patents, copyrights, inventions, trademarks, information, 
publications, or product formulations developed through the use of funds 
collected by the Board under the provisions of this subpart shall be the 
property of the U.S. Government, as represented by the Board, and shall, 
along with any rents, royalties, residual payments, or other income from 
the rental, sales, leasing, franchising, or other uses of such patents, 
copyrights, inventions, trademarks, information, publications, or 
product formulations, inure to the benefit of the Board; shall be 
considered income subject to the same fiscal, budget, and audit controls 
as other funds of the Board; and may be licensed subject to approval by 
the Secretary. Should patents, copyrights, inventions, trademarks, 
information, publications, or product formulations be developed through 
the use of funds collected by the Board under this part and funds 
contributed by another organization or person, ownership and related 
rights to such patents, copyrights, inventions, trademarks, information, 
publications, or product formulations shall be determined by agreement 
between the Board and the party contributing funds towards the 
development of such patents, copyrights, inventions, trademarks, 
information, publications, or product formulations in a manner 
consistent with this paragraph.



Sec. 63.502  Personal liability.

    No member or employee of the Board shall be held personally 
responsible, either individually or jointly, in any way whatsoever to 
any person for errors in judgment, mistakes, or other acts, either of 
commission or omission, as such member or employee, except for acts of 
dishonesty or willful misconduct.



Sec. 63.503  Separability.

    If any provision of the part is declared invalid or the 
applicability thereof to any person or circumstance is held invalid, the 
validity of the remainder of this subpart, or the applicability thereof 
to other persons or circumstances shall not be affected thereby.



Sec. 63.504  Amendments.

    Amendments to this part may be proposed, from time to time, by the 
Board or by any interested persons affected by the provisions of the 
Act, including the Secretary.



Sec. 63.505  OMB control number.

    The control number assigned to the information collection 
requirements of this part by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, 
is OMB control number 0505-new.

Subpart B [Reserved]



PART 65_COUNTRY OF ORIGIN LABELING OF BEEF, PORK, LAMB, CHICKEN, GOAT 

MEAT, PERISHABLE AGRICULTURAL COMMODITIES, MACADAMIA NUTS, PECANS, PEANUTS, AND GINSENG--Table of Contents



                      Subpart A_General Provisions

                               Definitions

Sec.
65.100 Act.
65.105 AMS.
65.110 Beef.
65.115 Born.
65.120 Chicken.
65.125 Commingled covered commodities.
65.130 Consumer package.
65.135 Covered commodity.
65.140 Food service establishment.
65.145 Ginseng.
65.150 Goat.
65.155 Ground beef.
65.160 Ground chicken.
65.165 Ground goat.
65.170 Ground lamb.
65.175 Ground pork.
65.180 Imported for immediate slaughter.
65.185 Ingredient.
65.190 Lamb.
65.195 Legible.
65.205 Perishable agricultural commodity.

[[Page 192]]

65.210 Person.
65.215 Pork.
65.218 Pre-labeled.
65.220 Processed food item.
65.225 Produced.
65.230 Production step.
65.235 Raised.
65.240 Retailer.
65.245 Secretary.
65.250 Slaughter.
65.255 United States.
65.260 United States country of origin.
65.265 USDA.

                     Country of Origin Notification

65.300 Country of origin notification.
65.400 Labeling.

                              Recordkeeping

65.500 Recordkeeping requirements.

Subpart B [Reserved]

    Authority: 7 U.S.C. 1621 et seq.

    Source: 74 FR 2704, Jan. 15, 2009, unless otherwise noted.



                      Subpart A_General Provisions

                               Definitions



Sec. 65.100  Act.

    Act means the Agricultural Marketing Act of 1946, (7 U.S.C. 1621 et 
seq.).



Sec. 65.105  AMS.

    AMS means the Agricultural Marketing Service, United States 
Department of Agriculture.



Sec. 65.110  Beef.

    Beef means meat produced from cattle, including veal.



Sec. 65.115  Born.

    Born in the case of chicken means hatched from the egg.



Sec. 65.120  Chicken.

    Chicken has the meaning given the term in 9 CFR 381.170(a)(1).



Sec. 65.125  Commingled covered commodities.

    Commingled covered commodities means covered commodities (of the 
same type) presented for retail sale in a consumer package that have 
been prepared from raw material sources having different origins.



Sec. 65.130  Consumer package.

    Consumer package means any container or wrapping in which a covered 
commodity is enclosed for the delivery and/or display of such commodity 
to retail purchasers.



Sec. 65.135  Covered commodity.

    (a) Covered commodity means:
    (1) Muscle cuts of beef, lamb, chicken, goat, and pork;
    (2) Ground beef, ground lamb, ground chicken, ground goat, and 
ground pork;
    (3) Perishable agricultural commodities;
    (4) Peanuts;
    (5) Macadamia nuts;
    (6) Pecans; and
    (7) Ginseng.
    (b) Covered commodities are excluded from this part if the commodity 
is an ingredient in a processed food item as defined in Sec. 65.220.



Sec. 65.140  Food service establishment.

    Food service establishment means a restaurant, cafeteria, lunch 
room, food stand, saloon, tavern, bar, lounge, or other similar facility 
operated as an enterprise engaged in the business of selling food to the 
public. Similar food service facilities include salad bars, 
delicatessens, and other food enterprises located within retail 
establishments that provide ready-to-eat foods that are consumed either 
on or outside of the retailer's premises.



Sec. 65.145  Ginseng.

    Ginseng means ginseng root of the genus Panax.



Sec. 65.150  Goat.

    Goat means meat produced from goats.



Sec. 65.155  Ground beef.

    Ground beef has the meaning given that term in 9 CFR 319.15(a), 
i.e., chopped fresh and/or frozen beef with or without seasoning and 
without the addition of beef fat as such, and containing no more than 30 
percent fat, and containing no added water, phosphates, binders, or 
extenders, and also includes products defined by the term ``hamburger'' 
in 9 CFR 319.15(b).

[[Page 193]]



Sec. 65.160  Ground chicken.

    Ground chicken means comminuted chicken of skeletal origin that is 
produced in conformance with all applicable Food Safety and Inspection 
Service labeling guidelines.



Sec. 65.165  Ground goat.

    Ground goat means comminuted goat of skeletal origin that is 
produced in conformance with all applicable Food Safety and Inspection 
Service labeling guidelines.



Sec. 65.170  Ground lamb.

    Ground lamb means comminuted lamb of skeletal origin that is 
produced in conformance with all applicable Food Safety and Inspection 
Service labeling guidelines.



Sec. 65.175  Ground pork.

    Ground pork means comminuted pork of skeletal origin that is 
produced in conformance with all applicable Food Safety and Inspection 
Service labeling guidelines.



Sec. 65.180  Imported for immediate slaughter.

    Imported for immediate slaughter means imported into the United 
States for ``immediate slaughter'' as that term is defined in 9 CFR 
93.400, i.e., consignment directly from the port of entry to a 
recognized slaughtering establishment and slaughtered within 2 weeks 
from the date of entry.



Sec. 65.185  Ingredient.

    Ingredient means a component either in part or in full, of a 
finished retail food product.



Sec. 65.190  Lamb.

    Lamb means meat produced from sheep.



Sec. 65.195  Legible.

    Legible means text that can be easily read.



Sec. 65.205  Perishable agricultural commodity.

    Perishable agricultural commodity means fresh and frozen fruits and 
vegetables of every kind and character that have not been manufactured 
into articles of a different kind or character and includes cherries in 
brine as defined by the Secretary in accordance with trade usages.



Sec. 65.210  Person.

    Person means any individual, partnership, corporation, association, 
or other legal entity.



Sec. 65.215  Pork.

    Pork means meat produced from hogs.



Sec. 65.218  Pre-labeled.

    Pre-labeled means a covered commodity that has the commodity's 
country of origin and the name and place of business of the 
manufacturer, packer, or distributor on the covered commodity itself, on 
the package in which it is sold to the consumer, or on the master 
shipping container. The place of business information must include at a 
minimum the city and state or other acceptable locale designation.



Sec. 65.220  Processed food item.

    Processed food item means a retail item derived from a covered 
commodity that has undergone specific processing resulting in a change 
in the character of the covered commodity, or that has been combined 
with at least one other covered commodity or other substantive food 
component (e.g., chocolate, breading, tomato sauce), except that the 
addition of a component (such as water, salt, or sugar) that enhances or 
represents a further step in the preparation of the product for 
consumption, would not in itself result in a processed food item. 
Specific processing that results in a change in the character of the 
covered commodity includes cooking (e.g., frying, broiling, grilling, 
boiling, steaming, baking, roasting), curing (e.g., salt curing, sugar 
curing, drying), smoking (hot or cold), and restructuring (e.g., 
emulsifying and extruding). Examples of items excluded include teriyaki 
flavored pork loin, roasted peanuts, breaded chicken tenders, and fruit 
medley.

[[Page 194]]



Sec. 65.225  Produced.

    Produced in the case of a perishable agricultural commodity, 
peanuts, ginseng, pecans, and macadamia nuts means harvested.



Sec. 65.230  Production step.

    Production step means, in the case of beef, pork, goat, chicken, and 
lamb, born, raised, or slaughtered.



Sec. 65.235  Raised.

    Raised means, in the case of beef, pork, chicken, goat, and lamb, 
the period of time from birth until slaughter or in the case of animals 
imported for immediate slaughter as defined in Sec. 65.180, the period 
of time from birth until date of entry into the United States.



Sec. 65.240  Retailer.

    Retailer means any person licensed as a retailer under the 
Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499a(b)).



Sec. 65.245  Secretary.

    Secretary means the Secretary of Agriculture of the United States or 
any person to whom the Secretary's authority has been delegated.



Sec. 65.250  Slaughter.

    Slaughter means the point in which a livestock animal (including 
chicken) is prepared into meat products (covered commodities) for human 
consumption. For purposes of labeling under this part, the word 
harvested may be used in lieu of slaughtered.



Sec. 65.255  United States.

    United States means the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the U.S. Virgin Islands, American Samoa, 
Guam, the Northern Mariana Islands, and any other Commonwealth, 
territory, or possession of the United States.



Sec. 65.260  United States country of origin.

    United States country of origin means in the case of:
    (a) Beef, pork, lamb, chicken, and goat:
    (1) From animals exclusively born, raised, and slaughtered in the 
United States;
    (2) From animals born and raised in Alaska or Hawaii and transported 
for a period of not more than 60 days through Canada to the United 
States and slaughtered in the United States; or
    (3) From animals present in the United States on or before July 15, 
2008, and once present in the United States, remained continuously in 
the United States.
    (b) Perishable agricultural commodities, peanuts, ginseng, pecans, 
and macadamia nuts: from products produced in the United States.



Sec. 65.265  USDA.

    USDA means the United States Department of Agriculture.

                     Country of Origin Notification



Sec. 65.300  Country of origin notification.

    In providing notice of the country of origin as required by the Act, 
the following requirements shall be followed by retailers:
    (a) General. Labeling of covered commodities offered for sale 
whether individually, in a bulk bin, carton, crate, barrel, cluster, or 
consumer package must contain country of origin as set forth in this 
regulation.
    (b) Exemptions. Food service establishments as defined in Sec. 
65.135 are exempt from labeling under this subpart.
    (c) Exclusions. A covered commodity is excluded from this subpart if 
it is an ingredient in a processed food item as defined in Sec. 65.220.
    (d) Labeling Covered Commodities of United States Origin. A covered 
commodity may bear a declaration that identifies the United States as 
the sole country of origin at retail only if it meets the definition of 
United States country of origin as defined in Sec. 65.260.
    (e) Labeling Muscle Cut Covered Commodities of Multiple Countries of 
Origin that include the United States. (1) For muscle cut covered 
commodities derived from animals that were born in Country X or (as 
applicable) Country Y, raised and slaughtered in the United States, and 
were not derived from animals imported for immediate slaughter

[[Page 195]]

as defined in Sec. 65.180, the origin may be designated as Product of 
the United States, Country X, and (as applicable) Country Y.
    (2) For muscle cut covered commodities derived from animals born, 
raised, and slaughtered in the U.S. that are commingled during a 
production day with muscle cut covered commodities described in Sec. 
65.300(e)(1), the origin may be designated as Product of the United 
States, Country X, and (as applicable) Country Y.
    (3) If an animal was imported into the United States for immediate 
slaughter as defined in Sec. 65.180, the origin of the resulting meat 
products derived from that animal shall be designated as Product of 
Country X and the United States.
    (4) For muscle cut covered commodities derived from animals that are 
born in Country X or Country Y, raised and slaughtered in the United 
States, that are commingled during a production day with muscle cut 
covered commodities that are derived from animals that are imported into 
the United States for immediate slaughter as defined in Sec. 65.180, 
the origin may be designated as Product of the United States, Country X, 
and (as applicable) Country Y. In each case of paragraphs (e)(1), 
(e)(2), and (e)(4) of this section, the countries may be listed in any 
order. In addition, the origin declaration may include more specific 
information related to production steps provided records to substantiate 
the claims are maintained and the claim is consistent with other 
applicable Federal legal requirements.
    (f) Labeling Imported Covered Commodities. Imported covered 
commodities for which origin has already been established as defined by 
this law (e.g., born, raised, and slaughtered or produced) and for which 
no production steps have occurred in the United States, shall retain 
their origin, as declared to U.S. Customs and Border Protection at the 
time the product entered the United States, through retail sale.
    (g) Labeling Commingled Covered Commodities. In the case of 
perishable agricultural commodities; peanuts; pecans; ginseng; and 
macadamia nuts: For imported covered commodities that have not 
subsequently been substantially transformed in the United States that 
are commingled with covered commodities sourced from a different origin 
that have not been substantially transformed (as established by CBP) in 
the United States, and/or covered commodities of United States origin, 
the declaration shall indicate the countries of origin in accordance 
with existing Federal legal requirements.
    (h) Labeling Ground Beef, Ground Pork, Ground Lamb, Ground Goat, and 
Ground Chicken. The declaration for ground beef, ground pork, ground 
lamb, ground goat, and ground chicken covered commodities shall list all 
countries of origin contained therein or that may be reasonably 
contained therein. In determining what is considered reasonable, when a 
raw material from a specific origin is not in a processor's inventory 
for more than 60 days, that country shall no longer be included as a 
possible country of origin.
    (i) Remotely Purchased Products. For sales of a covered commodity in 
which the customer purchases a covered commodity prior to having an 
opportunity to observe the final package (e.g., Internet sales, home 
delivery sales, etc.), the retailer may provide the country of origin 
notification either on the sales vehicle or at the time the product is 
delivered to the consumer.



Sec. 65.400  Labeling.

    (a) Country of origin declarations can either be in the form of a 
placard, sign, label, sticker, band, twist tie, pin tag, or other format 
that allows consumers to identify the country of origin. The declaration 
of the country of origin of a product may be in the form of a statement 
such as ``Product of USA,'' ``Produce of the USA'', or ``Grown in 
Mexico,'' may only contain the name of the country such as ``USA'' or 
``Mexico,'' or may be in the form of a check box provided it is in 
conformance with other Federal labeling laws.
    (b) The declaration of the country of origin (e.g., placard, sign, 
label, sticker, band, twist tie, pin tag, or other display) must be 
legible and placed in a conspicuous location, so as to render it likely 
to be read and understood by a customer under normal conditions of 
purchase.

[[Page 196]]

    (c) The declaration of country of origin may be typed, printed, or 
handwritten provided it is in conformance with other Federal labeling 
laws and does not obscure other labeling information required by other 
Federal regulations.
    (d) A bulk container (e.g., display case, shipper, bin, carton, and 
barrel) used at the retail level to present product to consumers, may 
contain a covered commodity from more than one country of origin 
provided all possible origins are listed.
    (e) In general, country abbreviations are not acceptable. Only those 
abbreviations approved for use under Customs and Border Protection 
rules, regulations, and policies, such as ``U.K.'' for ``The United 
Kingdom of Great Britain and Northern Ireland'', ``Luxemb'' for 
Luxembourg, and ``U.S. or USA'' for the ``United States of America'' are 
acceptable. The adjectival form of the name of a country may be used as 
proper notification of the country of origin of imported commodities 
provided the adjectival form of the name does not appear with other 
words so as to refer to a kind or species of product. Symbols or flags 
alone may not be used to denote country of origin.
    (f) Domestic and imported perishable agricultural commodities, 
peanuts, pecans, macadamia nuts, and ginseng may use State, regional, or 
locality label designations in lieu of country of origin labeling. 
Abbreviations may be used for state, regional, or locality label 
designations for these commodities whether domestically harvested or 
imported using official United States Postal Service abbreviations or 
other abbreviations approved by CBP.

                              Recordkeeping



Sec. 65.500  Recordkeeping requirements.

    (a) General. (1) All records must be legible and may be maintained 
in either electronic or hard copy formats. Due to the variation in 
inventory and accounting documentary systems, various forms of 
documentation and records will be acceptable.
    (2) Upon request by USDA representatives, suppliers and retailers 
subject to this subpart shall make available to USDA representatives, 
records maintained in the normal course of business that verify an 
origin claim. Such records shall be provided within 5 business days of 
the request and may be maintained in any location.
    (b) Responsibilities of suppliers. (1) Any person engaged in the 
business of supplying a covered commodity to a retailer, whether 
directly or indirectly, must make available information to the buyer 
about the country(ies) of origin of the covered commodity. This 
information may be provided either on the product itself, on the master 
shipping container, or in a document that accompanies the product 
through retail sale. In addition, the supplier of a covered commodity 
that is responsible for initiating a country(ies) of origin claim, which 
in the case of beef, lamb, chicken, goat, and pork is the slaughter 
facility, must possess records that are necessary to substantiate that 
claim for a period of 1 year from the date of the transaction. For that 
purpose, packers that slaughter animals that are tagged with an 840 
Animal Identification Number device without the presence of any 
additional accompanying marking (i.e., ``CAN'' or ``M'') may use that 
information as a basis for a U.S. origin claim. Packers that slaughter 
animals that are part of another country's recognized official system 
(e.g., Canadian official system, Mexico official system) may also rely 
on the presence of an official ear tag or other approved device on which 
to base their origin claims. Producer affidavits shall also be 
considered acceptable records that suppliers may utilize to initiate 
origin claims, provided it is made by someone having first-hand 
knowledge of the origin of the covered commodity and identifies the 
covered commodity unique to the transaction. In the case of cattle, 
producer affidavits may be based on a visual inspection of the animal to 
verify its origin. If no markings are found that would indicate that the 
animal is of foreign origin (i.e., ``CAN'' or ``M''), the animal may be 
considered to be of U.S. origin.
    (2) Any intermediary supplier handling a covered commodity that is 
found to be designated incorrectly as to the country of origin shall not 
be held liable for a violation of the Act by reason of the conduct of 
another if the

[[Page 197]]

intermediary supplier relied on the designation provided by the 
initiating supplier or other intermediary supplier, unless the 
intermediary supplier willfully disregarded information establishing 
that the country of origin declaration was false.
    (3) Any person engaged in the business of supplying a covered 
commodity to a retailer, whether directly or indirectly (i.e., including 
but not limited to growers, distributors, handlers, packers, and 
processors), must maintain records to establish and identify the 
immediate previous source (if applicable) and immediate subsequent 
recipient of a covered commodity for a period of 1 year from the date of 
the transaction.
    (4) For an imported covered commodity (as defined in Sec. 
65.300(f)), the importer of record as determined by CBP, must ensure 
that records: provide clear product tracking from the port of entry into 
the United States to the immediate subsequent recipient and accurately 
reflect the country of origin of the item as identified in relevant CBP 
entry documents and information systems; and must maintain such records 
for a period of 1 year from the date of the transaction.
    (c) Responsibilities of retailers. (1) In providing the country of 
origin notification for a covered commodity, in general, retailers are 
to convey the origin information provided by their suppliers. Only if 
the retailer physically commingles a covered commodity of different 
origins in preparation for retail sale, whether in a consumer-ready 
package or in a bulk display (and not discretely packaged) (i.e., full 
service meat case), can the retailer initiate a multiple country of 
origin designation that reflects the actual countries of origin for the 
resulting covered commodity.
    (2) Records and other documentary evidence relied upon at the point 
of sale to establish a covered commodity's country(ies) of origin must 
either be maintained at the retail facility or at another location for 
as long as the product is on hand and provided to any duly authorized 
representative of USDA in accordance with Sec. 65.500(a)(2). For pre-
labeled products, the label itself is sufficient information on which 
the retailer may rely to establish the product's origin and no 
additional records documenting origin information are necessary.
    (3) Any retailer handling a covered commodity that is found to be 
designated incorrectly as to the country of origin shall not be held 
liable for a violation of the Act by reason of the conduct of another if 
the retailer relied on the designation provided by the supplier, unless 
the retailer willfully disregarded information establishing that the 
country of origin declaration was false.
    (4) Records that identify the covered commodity, the retail 
supplier, and for products that are not pre-labeled, the country of 
origin information must be maintained for a period of 1 year from the 
date the origin declaration is made at retail.

Subpart B [Reserved]



PART 70_VOLUNTARY GRADING OF POULTRY PRODUCTS AND RABBIT PRODUCTS--Table of Contents



        Subpart A_Grading of Poultry Products and Rabbit Products

                               Definitions

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

                                 General

70.3 Administration.
70.4 Services available.
70.5 Nondiscrimination.
70.6 OMB control number.
70.8 Other applicable regulations.
70.10 Basis of grading service.
70.11 [Reserved]
70.12 Supervision.
70.13 Ready-to-cook poultry and rabbits and specified poultry food 
          products.
70.14 Squabs and domesticated game birds; eligibility.
70.15 Equipment and facilities for graders.
70.16 Prerequisites to grading.
70.17 Accessibility of products.
70.18 Schedule of operation of official plants.

                     Licensed and Authorized Graders

70.20 Who may be licensed and authorized.

[[Page 198]]

70.21 Suspension of license; revocation.
70.22 Surrender of license.
70.23 Identification.
70.24 Financial interest of graders.
70.25 Political activity.
70.26 Cancellation of license.

                     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.
70.39 Form of application.

                            Denial of Service

70.40 Debarment.
70.41 Misrepresentation, deceptive, or fraudulent act or practice.
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.
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.
70.56 Grading requirements of poultry and rabbits identified with 
          official identification.

                                 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 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 Certificates

70.90 Forms.
70.91 Issuance.
70.92 Disposition.
70.93 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

                               Definitions



Sec. 70.1  Definitions.

    For the purpose of the regulations in this part, words in the 
singular shall be deemed to import the plural and vice versa, as the 
case may demand. Unless the context otherwise requires, the terms shall 
have the following meaning:
    Acceptable means suitable for the purpose intended by the AMS.
    Act means the applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087, as amended; 7 U.S.C. 1621 et seq.) or any 
other act of Congress conferring like authority.
    Administrator means the Administrator of the AMS 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 the Administrator's stead.

[[Page 199]]

    Agricultural Marketing Service or AMS means the Agricultural 
Marketing Service of the Department.
    Applicant means any interested person who requests any grading 
service.
    Auditing services means the act of providing independent 
verification of written quality assurance and value added standards for 
production, processing and distribution of poultry and rabbits. Auditing 
services are performed by graders authorized by the Secretary to perform 
such audits and the service provided will be in accordance with the 
provisions of this part for grading services, as appropriate.
    Carcass means any poultry or rabbit carcass.
    Chief of the Grading Branch means Chief of the Grading Branch, 
Poultry Programs, AMS.
    Class means any subdivision of a product based on essential physical 
characteristics that differentiate between major groups of the same kind 
or species.
    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 (USDA).
    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 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 Act and the regulations in this 
part, relative to the class, quality, quantity, or condition of a 
product.
    Holiday or legal holiday means 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.
    Interested party means any person financially interested in a 
transaction involving any grading service.
    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

[[Page 200]]

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 the officer in charge of the poultry 
grading service of the AMS, and other employees of the Department as may 
be designated by the national supervisor.
    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.
    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.
    Sampling means the act of taking samples of any product for grading 
or certification.
    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 the Secretary's stead.
    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.
    United States Classes, Standards, and Grades for Poultry means the 
official U.S. Classes, Standards, and Grades for Poultry (AMS 70.200 et 
seq.) that are maintained by and available from Poultry Programs, AMS.

[[Page 201]]

    United States Classes, Standards, and Grades for Rabbits means the 
official U.S. Classes, Standards, and Grades for Rabbits (AMS 70.300 et 
seq.) that are maintained by and available from Poultry Programs, AMS.

[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; 71 FR 42011, July 24, 
2006; 72 FR 11775, Mar. 14, 2007]



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 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.

[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 71 
FR 42011, July 24, 2006]

                                 General



Sec. 70.3  Administration.

    The Administrator shall perform, for and under the supervision of 
the Secretary, such duties as the Secretary may require in the 
enforcement or administration of the provisions of the Act and the 
regulations in this part. The Administrator is authorized to waive for 
limited periods any particular provisions of the regulations in this 
part to permit experimentation so that new procedures, equipment, 
grading, and processing techniques may be tested to facilitate definite 
improvements and at the same time to determine full compliance with the 
spirit and intent of the regulations in this part. The AMS and its 
officers and employees shall not be liable in damages through acts of 
commission or omission in the administration of this part.

[71 FR 42011, July 24, 2006]

[[Page 202]]



Sec. 70.4  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.
    (c) Auditing service. This type of service is performed when an 
applicant requests independent verification of written quality assurance 
and value added standards for production, processing, and distribution 
of poultry and rabbits. Charges or fees are based on time, travel, and 
expenses needed to perform the work.

[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 72 
FR 11775, Mar. 14, 2007]



Sec. 70.5  Nondiscrimination.

    The conduct of all services and the licensing of graders under these 
regulations shall be accomplished without regard to race, color, 
national origin, religion, age, sex, disability, political beliefs, 
sexual orientation, or marital or family status.

[71 FR 42012, July 24, 2006]



Sec. 70.6  OMB control number.

    (a) Purpose. The collecting of information requirements in this part 
has been approved by the Office of Management and Budget (OMB) and 
assigned OMB control number 0581-0127.
    (b) Display.

  Sections Where Information Collection Requirements Are Identified and
                                Described
------------------------------------------------------------------------
 
------------------------------------------------------------------------
70.3                     70.36                    70.76(b)(3)(ii)
70.4(a)                  70.38(c)                 70.77(a)(1)
70.5                     70.38(d)                 70.77(a)(4)
70.18                    70.39                    70.77(b)(1)
70.20(a)                 70.40                    70.77(b)(3)(ii)
70.22                    70.50                    70.91(a)
70.31(a)                 70.61                    70.91(c)
70.31(b)                 70.62                    70.92
70.34                    70.73                    70.101
70.35                    70.76(b)(1)              70.102
------------------------------------------------------------------------


[71 FR 42012, July 24, 2006]



Sec. 70.8  Other applicable regulations.

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

[71 FR 42012, July 24, 2006]



Sec. 70.10  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 determination of 
quality of products shall be on the basis of United States Classes, 
Standards, and Grades for Poultry and Rabbits. 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.
    (b) 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.
------------------------------------------------------------------------


[[Page 203]]


[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 71 
FR 42012, 42014, July 24, 2006]



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.

    (a) Ready-to-cook poultry or rabbit carcasses or parts or specified 
poultry food products may be graded only if they have been inspected and 
certified by the poultry inspection service of the Department, or 
inspected and passed by any other inspection system which is acceptable 
to the Department.
    (b) Only when ready-to-cook poultry carcasses, parts, poultry food 
products, including those used in preparing raw poultry food products, 
have been graded on an individual basis by a grader or by an authorized 
person pursuant to Sec. 70.20(c) and thereafter checkgraded by a 
grader, and when poultry food products have been prepared under the 
supervision of a grader, when necessary the individual container, 
carcass, part, or poultry food product be identified with the 
appropriate official letter grademark. Checkgrading shall be 
accomplished in accordance with a statistical sampling plan prescribed 
by the Administrator. Grading with respect to quality factors for 
freezing defects and appearance of the finished products, when 
necessary, shall be done on a sample basis in accordance with a plan 
prescribed by the Administrator.
    (c) Only when ready-to-cook rabbit carcasses or parts have been 
graded on an individual basis by a grader or by an authorized person 
pursuant to Sec. 70.20(c) and thereafter checkgraded by a grader, may 
the container or the individual carcass or part be identified with the 
appropriate official letter grademark. Checkgrading shall be 
accomplished in accordance with a statistical sampling plan prescribed 
by the Administrator. Grading with respect to quality factors for 
freezing defects and appearance of the finished products may be done on 
a sample basis in accordance with a plan prescribed by the 
Administrator.

[71 FR 42012, July 24, 2006]



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 Department or have been inspected by any other official inspection 
system acceptable to the Department.

[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 71 
FR 42012, July 24, 2006]



Sec. 70.15  Equipment and facilities for graders.

    Equipment and facilities to be furnished by the applicant for use of 
graders in performing service on a resident basis shall include, but not 
be limited to, the following:
    (a)(1) An accurate metal stem thermometer.
    (2) A drill with a steel bit to drill holes in frozen product for 
inserting the metal thermometer stem to determine temperature.
    (3) Scales graduated in tenths of a pound or less for weighing 
carcasses, parts, or products individually in containers up to 100 
pounds, and test weights for such scales.
    (4) Scales graduated in one-pound graduation or less for weighing 
bulk

[[Page 204]]

containers of poultry and test weights for such scales.
    (b) Furnished office space, a desk, and file or storage cabinets 
(equipped with a satisfactory locking device) suitable for the security 
and storage of official supplies, and other facilities and equipment as 
may otherwise be required. Such space and equipment must meet the 
approval of the national supervisor.

[71 FR 42012, July 24, 2006]



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.



Sec. 70.18  Schedule of operation of official plants.

    Grading operation schedules for services performed pursuant to 
Sec. Sec. 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]

                     Licensed and Authorized Graders



Sec. 70.20  Who may be licensed and authorized.

    (a) Any person who is a Federal or State employee, the employee of a 
local jurisdiction, or the employee of a cooperating agency possessing 
proper qualifications as determined by an examination for competency and 
who is to perform grading service under this part may be licensed by the 
Secretary as a grader.
    (b) All licenses issued by the Secretary shall be countersigned by 
the officer in charge of the poultry grading service of the AMS 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.

[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 71 
FR 42012, July 24, 2006]



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 such 
action is deemed 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 the licensee may wish to 
offer as to why the license should not be further suspended or revoked. 
After the expiration of the aforesaid 7-day

[[Page 205]]

period and consideration of such argument and evidence, the Secretary 
will take such action as deemed appropriate with respect to such 
suspension or revocation. When no appeal is filed within the prescribed 
7 days, the license to perform grading service is revoked.

[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 71 
FR 42012, July 24, 2006]



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 servicing the area 
in which the license is located.

[71 FR 42012, July 24, 2006]



Sec. 70.23  Identification.

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

[71 FR 42013, July 24, 2006]



Sec. 70.24  Financial interest of graders.

    Graders shall not render service on any product in which they are 
financially interested.

[71 FR 42013, July 24, 2006]



Sec. 70.25  Political activity.

    Federal graders may participate in certain political activities, 
including management and participation in political campaigns in 
accordance with AMS policy. Graders are subject to these rules while 
they are on leave with or without pay, including furlough; however, the 
rules do not apply to cooperative employees not under Federal 
supervision and intermittent employees on the days they perform no 
service. Willful violations of the political activity rules will 
constitute grounds for removal from the AMS.

[71 FR 42013, July 24, 2006]



Sec. 70.26  Cancellation of license.

    Upon termination of the services of a licensed grader, the grader's 
license shall be immediately surrendered for cancellation.

[71 FR 42013, July 24, 2006]

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

[71 FR 42013, July 24, 2006]



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 shall 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 any electronic means. 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

[[Page 206]]

may arise from such service unless derived through service rendered a 
corporation for its general benefit.

[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 71 
FR 42013, July 24, 2006]



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 the supervisor's 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.

[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 71 
FR 42013, July 24, 2006]



Sec. 70.35  Rejection of application.

    (a) Any application for grading service may be rejected by the 
Administrator:
    (1) Whenever the applicant fails to meet the requirements of the 
regulations prescribing the conditions under which the service is made 
available;
    (2) Whenever the product is owned by or located on the premises of a 
person currently denied the benefits of the Act;
    (3) Where any individual holding office or a responsible position 
with or having a substantial financial interest or share in the 
applicant, is currently denied the benefits of the Act, or was 
responsible in whole or in part for the current denial of the benefits 
of the Act to any person;
    (4) Where the Administrator determines that the application is an 
attempt on the part of a person currently denied the benefits of the Act 
to obtain grading service;
    (5) Whenever the applicant, after an initial survey has been made in 
accordance with Sec. 70.34, fails to bring the grading facilities and 
equipment into compliance with the regulations within a reasonable 
period of time; or
    (6) Notwithstanding any prior approval whenever, before inauguration 
of service, the applicant fails to fulfill commitments concerning the 
inauguration of the service.
    (7) When it appears that to perform the services specified in this 
part would not be to the best interests of the public welfare or of the 
Government;
    (8) When it appears to the Administrator that prior commitments of 
the Department necessitate rejection of the application.
    (b) Each such applicant shall be promptly notified by registered 
mail of the reasons for the rejection. A written petition for 
reconsideration of such rejection may be filed by the applicant with the 
Administrator if postmarked or delivered within 10 days after receipt of 
notice of the rejection. Such petition shall state specifically the 
errors alleged to have been made by the Administrator in rejecting the 
application. Within 20 days following the receipt of such a petition for 
reconsideration, the Administrator shall approve the application or 
notify the applicant by registered mail of the reasons for the rejection 
thereof.

[71 FR 42013, July 24, 2006]



Sec. 70.36  Withdrawal of application.

    An application for grading service may be withdrawn by the applicant 
at any time before the service is performed upon payment by the 
applicant,

[[Page 207]]

of all expenses incurred by the AMS in connection with such application.

[71 FR 42013, July 24, 2006]



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, the Administrator shall initiate withdrawal action 
pursuant to the Rules of Practice Governing Formal Adjudicatory 
Proceedings and Grading Service (7 CFR part 1, subpart H), and the 
operator shall be afforded an opportunity for an oral hearing upon the 
operator's written request in accordance with such Rules of Practice, 
with respect to the merits or validity of the withdrawal action, but any 
suspension shall continue in effect pending the outcome of such hearing 
unless otherwise ordered by the Administrator. Upon withdrawal of 
grading service in an official plant, the plant approval shall also 
become terminated, and all labels, seals, tags, or packaging material 
bearing official identification shall, under the supervision of a person 
designated by the AMS, either be destroyed, or the official 
identification completely obliterated, or sealed in a manner acceptable 
to the AMS.
    (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 Sec. Sec. 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, as amended at 71 FR 42013, July 24, 2006]



Sec. 70.39  Form of application.

    Each application for grading or sampling a specified lot of any 
product shall include such information as may be required by the 
Administrator in regard to the product and the premises where such 
product is to be graded or sampled.

[71 FR 42013, July 24, 2006]

                            Denial of Service



Sec. 70.40  Debarment.

    The acts or practices set forth in Sec. Sec. 70.41 through 70.46, 
or the causing thereof, may be deemed sufficient cause for the debarment 
by the Administrator of any person, including any agents, officers, 
subsidiaries, or affiliates of such person, from all benefits of the act 
for a specified period. The Rules of Practice Governing Formal 
Adjudicatory Proceedings (7 CFR part 1, subpart H) shall be applicable 
to such debarment action.

[71 FR 42013, July 24, 2006]

[[Page 208]]



Sec. 70.41  Misrepresentation, deceptive, or fraudulent act or practice.

    Any willful misrepresentation or any deceptive or fraudulent act or 
practice found to be made or committed by any person in connection with:
    (a) The making or filing of any application for any grading service, 
appeal or regrading service;
    (b) The making of the product accessible for sampling or grading;
    (c) The making, issuing, or using, or attempting to issue or use any 
grading certificate, symbol, stamp, label, seal, or identification, 
authorized pursuant to the regulations in this part;
    (d) The use of the terms ``United States'' or ``U.S.'' in 
conjunction with the grade of the product;
    (e) The use of any of the aforesaid terms or any official stamp, 
symbol, label, seal, or identification in the labeling or advertising of 
any product.

[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, as amended at 71 FR 42014, July 24, 2006]



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 such employee's 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.

[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, as amended at 71 FR 42014, July 24, 2006]



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.

                    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 Sec. Sec. 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

[[Page 209]]

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 210]]

[GRAPHIC] [TIFF OMITTED] TR30JY98.000


[[Page 211]]



[63 FR 40628, July 30, 1998]



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 
Sec. Sec. 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.



Sec. 70.56  Grading requirements of poultry and rabbits identified with official identification.

    (a) Poultry and rabbit products to be identified with the grademarks 
illustrated in Sec. 70.51 must be individually graded by a grader or by 
authorized personnel pursuant to Sec. 70.20 and thereafter checkgraded 
by a grader.
    (b) Poultry and rabbit products not graded in accordance with 
paragraph (a) of this section may be officially graded on a sample basis 
and the shipping containers may be identified with grademarks which 
contain the words ``Sample Graded'' and which are approved by the 
Administrator.

[71 FR 42014, July 24, 2006]

                                 Reports



Sec. 70.60  Report of grading work.

    Reports of grading work performed within official plants shall be 
forwarded to the Administrator by the grader in a manner as may be 
specified by the Administrator.

[71 FR 42014, July 24, 2006]



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  Report of violations.

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

[71 FR 42014, July 24, 2006]

                            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 Sec. Sec. 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 AMS and remitted promptly to the 
AMS.
    (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.

[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, as amended at 71 FR 42014, July 24, 2006]

[[Page 212]]



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 
$74.08 beginning March 30, 2008, and $77.28 on or after January 25, 
2009, 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 $86.68 per hour beginning 
March 30, 2008, and $93.24 per hour on or after January 25, 2009. 
Information on legal holidays is available from the supervisor.
    (d) Fees for audit services will be based on the time and expenses 
required to perform the audit. The hourly charge shall be $87.56 
beginning March 30, 2008, and $89.20 on or after January 25, 2009, and 
shall include the time actually required to perform the audit, waiting 
time, travel time, travel expenses and any clerical costs involved in 
issuing a certificate.
    (e) Audit services rendered on Saturdays, Sundays, or legal holidays 
shall be charged for at the rate of $112.00 per hour beginning March 30, 
2008, and $116.08 per hour on or after January 25, 2009. Information on 
legal holidays is available from the Supervisor.

[70 FR 42256, July 22, 2005, as amended at 71 FR 42014, July 24, 2006; 
72 FR 11775, Mar. 14, 2007; 73 FR 11519, Mar. 4, 2008]



Sec. 70.72  Fees for appeal grading or review of a grader's decision.

    The costs 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. 70.71, 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, as amended at 71 FR 42014, July 24, 2006]



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 AMS 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, as amended at 71 FR 42014, July 24, 2006]



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 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

[[Page 213]]

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.
    (2) An administrative service charge equal to 25 percent of the 
grader's total salary costs. A minimum charge of $275 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 at www.fdsys.gov.



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.

[[Page 214]]

    (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 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) When a signed application for service has been received, the 
State supervisor or the supervisor's assistant shall complete a plant 
survey pursuant to Sec. 70.34. The costs for completing the plant 
survey shall be borne by the applicant on a fee basis at rates set forth 
in Sec. 70.71 (a) through (c), plus any travel and additional expenses. 
No charges will be assessed 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 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

[[Page 215]]

multiplied by $0.00045 beginning March 30, 2008, and $0.00047 on or 
after January 25, 2009, except that the minimum charge per billing 
period shall be $275 and the maximum charge shall be $3,150 beginning 
March 30, 2008, and $3,225 on or after January 25, 2009. 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 $275 
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.
    (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 at www.fdsys.gov.



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 Sec. Sec. 70.70 through 70.77, shall 
be provided for by a cooperative agreement.

                          Grading Certificates



Sec. 70.90  Forms.

    Grading certificates and sampling report forms (including appeal 
grading certificates and regrading certificates) shall be issued on 
forms approved by the Administrator.

[71 FR 42014, July 24, 2006]



Sec. 70.91  Issuance.

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

[71 FR 42014, July 24, 2006]

[[Page 216]]



Sec. 70.92  Disposition.

    The original and a copy of each grading certificate, issued pursuant 
to Sec. Sec. 70.90 through 70.93, and not to exceed two additional 
copies thereof if requested by the applicant prior to issuance shall, 
immediately upon issuance, be delivered or mailed to the applicant or 
the applicant's designee. Other copies shall be filed and retained in 
accordance with the disposition schedule for grading program records.

[71 FR 42014, July 24, 2006]



Sec. 70.93  Advance information.

    Upon request of an applicant, all or part of the contents of any 
grading certificate issued to such applicant may be telephoned or 
transmitted by any electronic means to the applicant, or to the 
applicant's designee, at the applicant's expense.

[71 FR 42014, July 24, 2006]

                     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 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 one 
or more licensed graders assigned by the immediate supervisor.
    (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

[[Page 217]]

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.

[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, as amended at 71 FR 42014, July 24, 2006]



Sec. 70.105  Procedures for appeal gradings.

    (a) The appeal sample shall consist of product taken from the 
original sample container plus an equal number of containers selected at 
random.
    (b) When the original samples are not available or have been 
altered, such as the removal of undergrades, the appeal sample size for 
the lot shall consist of double the samples required in Sec. 70.80.
    (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.

[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, as amended at 71 FR 42014, July 24, 2006]



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 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.

[[Page 218]]

                               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.
    (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

[[Page 219]]

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, 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

[[Page 220]]

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 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

[[Page 221]]

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.



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

[[Page 222]]

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 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

[[Page 223]]

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.
    (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

[[Page 224]]

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 225]]



          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.

Subpart B [Reserved]



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

[[Page 226]]

Marketing Committee (Committee). 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

[[Page 227]]

under this program to any eligible producer of prune/plums who complies 
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

[[Page 228]]

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.



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

[[Page 229]]

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 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.



PART 82_CLINGSTONE PEACH DIVERSION PROGRAM--Table of Contents



Sec.
82.1 Applicability.
82.2 Administration.
82.3 Definitions.
82.4 Length of program.
82.5 General requirements.
82.6 Rate of payment; total payments.
82.7 Eligibility for payment.
82.8 Application and approval for participation.
82.9 Inspection and certification of diversion.
82.10 Claim for payment.
82.11 Compliance with program provisions.
82.12 Inspection of premises.
82.13 Records and accounts.
82.14 Offset, assignment, and prompt payment.
82.15 Appeals.
82.16 Refunds; joint and several liability.
82.17 Death, incompetency or disappearance.

    Authority: 7 U.S.C. 612c.

[[Page 230]]


    Source: 70 FR 67312, Nov. 4, 2005, unless otherwise noted.



Sec. 82.1  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 
Agricultural Marketing Service (AMS) will make payment to California 
growers who divert clingstone peaches by removing trees on which the 
fruit is produced in accordance with the terms and conditions set forth 
herein.



Sec. 82.2  Administration.

    The program will be administered under the general direction and 
supervision of the Deputy Administrator, Fruit and Vegetable Programs, 
AMS, United States Department of Agriculture (USDA), and will be 
implemented by the California Canning Peach Association (CCPA). The 
CCPA, or its authorized representatives, does not have authority to 
modify or waive any of the provisions of this subpart. The Administrator 
or delegatee, in the Administrator's or delegatee's sole discretion can 
modify deadlines to serve the goals of the program. In all cases, 
payments under this part are subject to the availability of funds.



Sec. 82.3  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 Clingstone Peach Tree 
Removal Program.''
    (d) Calendar year means the 12-month period beginning January 1 and 
ending the following December 31.
    (e) CCPA means the California Canning Peach Association, a grower-
owned marketing and bargaining cooperative representing the clingstone 
peach industry in California.
    (f) Diversion means the removal of clingstone peach trees after 
approval of applications by the CCPA.
    (g) Grower means an individual, partnership, association, or 
corporation in the State of California who grows clingstone peaches for 
canning.
    (h) Removal or removed means that the clingstone peach trees are no 
longer standing and capable of producing a crop, and the roots of the 
trees have been removed. The grower can accomplish removal by any means 
the grower desires. Grafting another type of tree to the rootstock 
remaining after removing the clingstone peach tree will not qualify as 
removal under this program.



Sec. 82.4  Length of program.

    This program is effective November 5, 2005, through November 9, 
2015. Growers diverting clingstone peaches by removing clingstone peach 
trees must complete the diversion no later than June 1, 2006.



Sec. 82.5  General requirements.

    (a) To be eligible for this program, the trees to be removed must be 
fruit-bearing and have been planted after the 1987 and before the 2003 
calendar years. Abandoned orchards and dead trees will not qualify. The 
block of trees for removal must be easily definable by separations from 
other blocks of eligible trees and contain at least 1,000 eligible trees 
or an entire orchard. Clingstone peach tree removal shall not take place 
until the grower has been informed in writing that the grower's 
application has been approved.
    (b) Any grower participating in this program must agree not to 
replant clingstone peach trees on the land cleared under this program 
through June 1, 2016. Participants bear responsibility for ensuring that 
trees are not replanted, whether by themselves, by successors to the 
land, or by any other person, until after June 1, 2016. If trees are 
replanted before June 1, 2016, by any persons, participants must refund 
all USDA payments, with interest, made in connection with this tree 
removal program.



Sec. 82.6  Rate of payment; total payments.

    (a) Applications will be processed on a first-come, first-served 
basis. Growers will be paid $100 per ton based on their actual 2005 
deliveries of clingstone peaches to processors from those acres of 
clingstone peach trees removed under this program, except

[[Page 231]]

that, regardless of actual 2005 deliveries, growers will receive a 
minimum of $500 per acre and a maximum of $1,700 per acre.
    (b) Payment under paragraph (a) of this section will only be made 
after tree removal has been verified by the staff of the CCPA.
    (c) The $100 per ton payment is intended to cover the costs of tree 
removal. USDA will not make any other payment with respect to such 
removals. The grower will be responsible for arranging, requesting, and 
paying for the tree removal in the specified acreage.
    (d) Total payments under this program are limited to not more than 
$5,000,000 of Section 32 funds. No additional expenditures shall be made 
unless the Administrator or delegatee in their sole and exclusive 
discretion shall, in writing, declare otherwise.



Sec. 82.7  Eligibility for payment.

    (a) If total applications for payment do not exceed $5,000,000, less 
administration costs, payments, as set forth in Sec. 82.6, will be made 
under this program to any grower of clingstone peaches who complies with 
the requirements in Sec. 82.8 and all other terms and conditions in 
this part.
    (b) If applications for participation in the program authorized by 
this part exceed $5,000,000, less administration costs, the CCPA will 
approve the applications (subject to the requirements in Sec. 82.8) in 
the order in which the completed applications are received in the CCPA 
office to the extent that funds are available. Applications received 
after total outlays exceed the amount of money available will be denied.



Sec. 82.8  Application and approval for participation.

    (a) Applications will be reviewed for program compliance and 
approved or disapproved by CCPA office personnel.
    (b) Applications for participation in the Clingstone Peach Diversion 
Program can be obtained from the CCPA office at 2300 River Plaza Drive, 
Suite 110, Sacramento, CA 95833; Telephone: (916) 925-9131; Fax: (916) 
925-9030; at 335 Teegarden Avenue, Suite A, Yuba City, CA 95991; 
Telephone: (530) 673-8526; Fax: (530) 673-2673; or at 1704 Herndon Road, 
Ceres, CA 95307; Telephone: (209) 537-0715; Fax: (209) 537-1043.
    (c) Any grower desiring to participate in the Clingstone Peach 
Diversion Program must file an application with the CCPA prior to 
November 30, 2005. The application shall be accompanied by a copy of any 
two of the following four documents: Plot 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 or social security number of the grower;
    (2) The location and amount of acreage to be diverted;
    (3) The 2005 clingstone peach production from the acreage to be 
diverted;
    (4) If the land with respect to which the clingstone peach trees 
will be destroyed is subject to a mortgage, statutory lien, or other 
equity interest, the grower must obtain from the holder of such interest 
a written statement that such party agrees to the enrollment of such 
land in this program to the extent determined necessary by AMS. 
Obtaining such assent shall be the responsibility of the applicant who 
shall alone bear any responsibilities which may extend to such third 
parties;
    (5) A statement that the applicant agrees to comply with all of the 
regulations established for the clingstone peach diversion program;
    (6) The applicant shall sign the application certifying that the 
information contained in the application is true and correct;
    (7) The year that the clingstone peach acreage to be diverted was 
planted;
    (8) The names of the processors who received the clingstone peaches 
from the grower in 2005.
    (d) After the CCPA receives the applications, it shall review them 
to determine whether all the required information has been provided and 
that the information is correct.
    (e) If the deliveries off the acreage to be removed in such 
applications, multiplied by $100 per ton (for actual 2005 deliveries on 
these acres, but within the

[[Page 232]]

constraints of a minimum payment of $500 per acre and a maximum payment 
of $1,700 per acre), exceed 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 CCPA offices.
    (f) After the application reviews and confirmation of eligible trees 
are completed, the CCPA shall notify the applicant, in writing, as to 
whether or not the application has been approved and the tonnage 
approved for payment after removal. If an application is not approved, 
the notification shall specify the reason(s) for disapproval.



Sec. 82.9  Inspection and certification of diversion.

    When the removal of the clingstone peach trees is complete, the 
grower will notify the CCPA on a form provided by the CCPA. The CCPA 
will certify that the trees approved for removal from the acreage have 
been removed, and notify AMS.



Sec. 82.10  Claim for payment.

    To obtain payment for the trees removed, the grower must submit to 
the CCPA by July 31, 2006, a completed form provided by the CCPA. Such 
form shall include the CCPA's certification that the qualifying trees 
from the acreage have been removed. AMS will then issue a check to the 
grower in the amount of $100 per eligible ton removed consistent with 
the minimum and maximum payments per acre earlier specified in this 
part.



Sec. 82.11  Compliance with program provisions.

    If USDA or the CCPA determines that any provision of this part have 
not been complied with by the grower, the grower will not be entitled to 
diversion payments in connection with tree removal. If a grower does not 
comply with all the terms of this part, including the requirement 
specified in Sec. 82.5(b), the grower must refund any payment made in 
connection with this program, and will also be liable for any other 
damages incurred as a result of such failure. The USDA may deny any 
grower the right to participate in this program or the right to receive 
payments in connection with any diversion previously made under this 
program, or both, if the USDA determines that:
    (a) The grower has failed to properly remove the clingstone peach 
trees from the applicable acreage, regardless of whether such failure 
was caused directly by the grower or by any other person or persons;
    (b) The grower has not acted in good faith, or has engaged in a 
scheme, fraud, or device, in connection with any activity under this 
program; or
    (c) The grower has failed to discharge fully any obligation assumed 
by him or her under this program.



Sec. 82.12  Inspection of premises.

    The grower must permit authorized representatives of USDA or the 
CCPA, at any reasonable time, to have access to their premises to 
inspect and examine the acreage where the trees were removed as well as 
any records pertaining to that acreage to determine compliance with the 
provisions of this part.



Sec. 82.13  Records and accounts.

    (a) The growers participating in this program must keep accurate 
records and accounts showing the details relative to the clingstone 
peach tree removal, including the contract entered into with any firm 
removing the trees, as well as the invoices.
    (b) The growers must permit authorized representatives of USDA, the 
CCPA, and the Government Accountability Office 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 ten years after the date of payment to the 
grower under the program, or for ten years after the date of any audit 
of records by USDA, whichever is later. Any destruction of records by 
the grower at any time will be at the risk of the grower when there is 
reason to know, believe, or suspect that matters may be or could be in 
dispute or remain in dispute.



Sec. 82.14  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

[[Page 233]]

title under State law, and without regard to any claim or lien against 
the crop proceeds thereof in favor of the grower or any other creditors 
except agencies of the U.S. Government.
    (b) Payments which are earned by a grower under this program may be 
assigned in the same manner as allowed under the provisions of 7 CFR 
part 1404.



Sec. 82.15  Appeals.

    Any grower 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. 82.16  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 grower shall be refunded to AMS together with 
interest.
    (b) All growers 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 grower 
under this part if AMS determines that payments or other assistance were 
provided to a grower 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 to such grower. 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 determines that the cause of the erroneous 
determination was not due to any action of the grower.
    (d) Interest determined in accordance with paragraph (c) of this 
section may be waived on refunds required of the grower when there was 
no intentional noncompliance on the part of the grower, 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 14 CFR part 1403.
    (f) Growers must refund to AMS any excess payments, as determined by 
AMS, with respect to such application. Such determinations shall be made 
by the Administrator or delegatee.
    (g) In the event that a benefit under this part was provided as the 
result of erroneous information provided by the grower, or was 
erroneously or improperly paid for any other reason, the benefit must be 
repaid with any applicable interest, subject to paragraphs (c) and (d) 
of Sec. 82.6.



Sec. 82.17  Death, incompetency, or disappearance.

    In the case of death, incompetency, disappearance, or dissolution of 
a clingstone peach grower that is eligible to receive benefits in 
accordance with this part, any person or persons who will, under 7 CFR 
part 707 of this title, be eligible for payments and benefits covered by 
this part, may receive such benefits otherwise due the actual producer, 
as determined appropriate by AMS.

[[Page 234]]



           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 235]]

    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]
Sec. Sec. 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 236]]

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.
Sec. Sec. 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 237]]

                       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 rates 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.

    Subpart J_Designation of Approved Symbols for Identification of 
                  Commodities Officially Tested By AMS

91.100 Scope.
91.101 Definitions.
91.102 Form of official identification symbols.

    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 a particular Science 
and Technology program administers examinations and licenses analysts in 
laboratories for competency in performing commodity testing services.
    (c) Quality assurance reviews. The Science and Technology 
representative

[[Page 238]]

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 are provided by 
the representatives for the Science and Technology programs for domestic 
and foreign laboratories.

[65 FR 64309, Oct. 26, 2000, as amended at 68 FR 69946, Dec. 16, 2003]



Sec. 91.5  Where services are offered.

    (a) Services are offered to applicants at the Science and Technology 
laboratories and facilities as listed below.
    (1) Science and Technology Programs National Science Laboratory. A 
variety of proximate for composition, chemical, physical, 
microbiological and biomolecular (DNA-based) tests and laboratory 
analyses performed on fruits and vegetables, poultry, dairy and dairy 
products, juices, fish, vegetative seed and oilseed, honey, meat and 
meat products, fiber products and processed foods are performed at the 
Science and Technology Programs (S&T) laboratory located at: USDA, AMS, 
Science and Technology Programs, National Science Laboratory (NSL), 801 
Summit Crossing Place, Suite B, Gastonia, North Carolina 28054-2193.
    (2) Science and Technology (S&T) Programs Science Specialty 
Laboratories. The Science specialty laboratories performing aflatoxin 
and other testing on peanuts, peanut products, dried fruits, grains, 
edible seeds, tree nuts, shelled corn products, oilseed products, olive 
oil, vegetable oils, juices, citrus products, and other commodities are 
located as follows:
    (i) USDA, AMS, Science & Technology, Citrus Laboratory, 98 Third 
Street, SW., Winter Haven, Florida 33880-2905.
    (ii) USDA, AMS, Science & Technology, Science Specialty Laboratory, 
6567 Chancey Mill Road, Blakely, Georgia 39823-2785.
    (3) 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.
    (4) Other alternative laboratories. Laboratory analyses may be 
conducted at alternative Science and Technology Programs laboratories 
and can be reached from any commodity market in which a laboratory 
facility is located to the extent laboratory personnel are available.
    (5) 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 Programs, Plant Variety Protection Office, 
National Agricultural Library Building, Room 401, 10301 Baltimore 
Boulevard, Beltsville, MD 20705-2351.
    (6) Science and Technology Programs headquarters offices. The 
examination, licensure, quality assurance reviews, laboratory approval/
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 Programs, Office of the 
Deputy Administrator, Room 1092 South Agriculture Bldg., Mail Stop 0270, 
1400 Independence Ave., SW., Washington, DC 20250-0270.
    (7) Statistics Branch Office. The Statistics Branch office of 
Science and Technology Programs (S&T) provides statistical services to 
the Agency and other agencies within the USDA. In addition, the 
Statistics Branch office generates 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 Statistics Branch 
office is located as follows: USDA, AMS, S&T Statistics Branch, Room 
0603 South Agriculture Bldg., Mail Stop 0223, 1400 Independence Ave., 
SW., Washington, DC 20250-0223.

[[Page 239]]

    (8) Technical Services Branch Office. The Technical Services Branch 
office of Science and Technology (S&T) provides technical support 
services to all Agency programs and other agencies within the USDA. In 
addition, the Technical Services Branch office provides certification 
and approval services of private and State government laboratories as 
well as oversees quality assurance programs; import and export 
certification of laboratory tested commodities. The Technical Services 
Branch mailing address is as follows: USDA, AMS, S&T Technical Services 
Branch, South Agriculture Bldg., Mail Stop 0272, 1400 Independence Ave., 
SW., Washington, DC 20250-0272. The Technical Services Branch office is 
located as follows: USDA, AMS, Science and Technology Technical Services 
Branch, Room 0604 South Agriculture Bldg., 1400 Independence Ave., SW., 
Washington, DC 20250.
    (9) Monitoring Programs Office. Services afforded by the Pesticide 
Data Program (PDP) and Microbiological Data Program (MDP) are provided 
by USDA, AMS, Science and Technology Monitoring Programs Office, 8609 
Sudley Road, Suite 206, Manassas, VA 20110-8411.
    (10) Pesticide Records Branch Office. Services afforded by the 
Federal Pesticide Record Keeping Program for restricted-use pesticides 
by private certified applicators are provided by USDA, AMS, Science and 
Technology, Pesticide Records Branch, 8609 Sudley Road, Suite 203, 
Manassas, VA 20110-8411.
    (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 Programs laboratories, offices, and facilities by 
addressing an inquiry to the Administrative Officer, Science and 
Technology Programs, Agricultural Marketing Service, United States 
Department of Agriculture (USDA), 1400 Independence Ave., SW., Room 0725 
South Agriculture Building, Mail Stop 0271, Washington, DC 20250-0271.

[75 FR 17287, Apr. 6, 2010]



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

[[Page 240]]

by contacting an inspector or grader who is involved with the program.

[65 FR 64310, Oct. 26, 2000]



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.

[[Page 241]]



                      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 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.

[[Page 242]]



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.



                        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

[[Page 243]]

(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.
    (b) Results of test analyses and laboratory determinations provided 
by AMS laboratory services only apply to the submitted samples and do 
not represent the quality, condition or disposition of the lot from 
which each sample was taken.
    (c) 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.
    (d) 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.

[75 FR 17288, Apr. 6, 2010]



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 Sec. Sec. 91.26 through 
91.29; and
    (f) Show only such other information and statements of fact as are 
provided in the instructions authorized by the Deputy Administrator.

[75 FR 17288, Apr. 6, 2010]



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

[[Page 244]]

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
    (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

[[Page 245]]

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 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

[[Page 246]]

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;
    (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 
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 commodity and processed commodity products. The new fiscal 
year for Science and Technology Programs commences on October 1 of each 
calendar year. The rate for laboratory services is $78.00 per hour in 
fiscal year 2010, $81.00 per hour in fiscal year 2011, and $83.00 per 
hour in fiscal year 2012.
    (b) 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 to Science and Technology's 
constituents and stakeholders by the individual Laboratory Directors of 
Science and Technology laboratories listed in Sec. 91.5. These single 
test laboratory fee schedules are based upon the applicable hourly fee 
rate stated in paragraph (a) of this section.
    (c) Except as otherwise provided in this section, charges will be 
made at the applicable hourly rate stated in paragraph (a) of this 
section for the time required to perform the service. A

[[Page 247]]

charge will be made for service pursuant to each request or certificate 
issued.
    (d) 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.
    (e) When Science and Technology staff provides applied and 
developmental research and training activities for microbiological, 
physical, chemical, and biomolecular analyses on agricultural 
commodities the applicant will be charged a fee on a reimbursable cost 
to AMS basis.

[75 FR 17288, Apr. 6, 2010]



Sec. 91.38  Additional fees for appeal of analysis.

    (a) The applicant for appeal sample testing will be charged a fee at 
the hourly rate for laboratory service that appears in this paragraph. 
The new fiscal year for Science and Technology Programs commences on 
October 1 of each calendar year. The appeal rate for laboratory service 
is $93.00 per hour in fiscal year 2010, $96.00 per hour in fiscal year 
2011, and $99.00 per hour in fiscal year 2012.
    (b) The appeal fee will not be waived for any reason if analytical 
testing was completed in addition to the original analysis.

[75 FR 17288, Apr. 6, 2010]



Sec. 91.39  Premium hourly fee rates for overtime and legal holiday service.

    (a) When analytical testing in a Science and Technology facility 
requires the services of laboratory personnel beyond their regularly 
assigned tour of duty on any day or on a day outside the established 
schedule, such services are considered as overtime work. When analytical 
testing in a Science and Technology facility requires the services of 
laboratory personnel on a Federal holiday or a day designated in lieu of 
such a holiday, such services are considered holiday work. Laboratory 
analyses initiated at the request of the applicant to be rendered on 
Federal holidays, and on an overtime basis will be charged fees at 
hourly rates for laboratory service that appear in this paragraph. The 
new fiscal year for Science and Technology Programs commences on October 
1 of each calendar year. The laboratory analysis rate for overtime 
service is $93.00 per hour in fiscal year 2010, $96.00 per hour in 
fiscal year 2011, and $99.00 per hour in fiscal year 2012. The 
laboratory analysis rate for Federal holiday or designed holiday service 
is $108.00 per hour in fiscal year 2010, $111.00 per hour in fiscal year 
2011, and $115.00 per hour in fiscal year 2012.
    (b) Information on legal holidays or what constitutes overtime 
service at a particular Science and Technology laboratory is available 
from the Laboratory Director or facility manager.

[75 FR 17288, Apr. 6, 2010]



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

[[Page 248]]

be billed by the National Finance Center (NFC) using the Foundation 
Financial Information System (FFIS) 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 
or office.
    (b) The total charge or fee shall normally be stated directly on the 
analysis report or on a standardized official certificate form for the 
laboratory analysis 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.

[72 FR 15021, Mar. 30, 2007]



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 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

[[Page 249]]

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]



    Subpart J_Designation of Approved Symbols for Identification of 
                  Commodities Officially Tested By AMS

    Source: 68 FR 69946, Dec. 16, 2003, unless otherwise noted.



Sec. 91.100  Scope.

    Two approved information symbols in the form of AMS shields are 
available to indicate official testing by an AMS laboratory. The two 
approved AMS shields with the words ``USDA AMS TESTED'' and ``USDA 
LABORATORY TESTED FOR EXPORT'' are added to the USDA symbol inventory to 
enhance the acceptance of AMS tested agricultural commodities on a 
national or international basis.



Sec. 91.101  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:
    AMS. The abbreviation for the Agricultural Marketing Service (AMS) 
agency of the United States Department of Agriculture.
    Export. To send or transport a product originally created or 
manufactured in the United States of America to another country in the 
course of trade.
    Laboratory. An AMS Science and Technology (S&T) laboratory listed in 
Sec. 91.5 that performs the official analyses.
    Test. To perform chemical, microbiological, or physical analyses on 
a sample to determine presence and levels or amounts of a substance or 
living organism of interest.
    USDA. The abbreviation for the United States Department of 
Agriculture.



Sec. 91.102  Form of official identification symbols.

    Two information symbols in the form of AMS shields indicate 
commodity testing at an AMS laboratory listed in Sec. 91.5 of this 
part. The AMS shield set forth in figure 1 of this section, containing 
the words ``USDA AMS TESTED'', and the shield set forth in figure 2, 
containing the words ``USDA LABORATORY TESTED FOR EXPORT'' have been 
approved by the USDA Office of Communications to be added to the USDA/
AMS inventory of symbols. Each example of an AMS shield has a black and 
white background; however the standard red, white and blue colors are 
approved for the shields. They are approved for use with AMS materials. 
Shields with the same wording that are similar in form and design to the 
examples in figures 1 and 2 of this section may also be used.

[[Page 250]]

[GRAPHIC] [TIFF OMITTED] TR16DE03.000



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

[[Page 251]]

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, 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.

[[Page 252]]



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, 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

[[Page 253]]

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 
(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.

[[Page 254]]

           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.

    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

[[Page 255]]

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 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

[[Page 256]]

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.



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).

[[Page 257]]



           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:
    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.

                         PARTS 95	96 [RESERVED]



PART 97_PLANT VARIETY AND PROTECTION--Table of Contents



                                  Scope

Sec.
97.1 General.

                               Definitions

97.2 Meaning of words.

[[Page 258]]

                             Administration

97.3 Plant Variety Protection Board.

                             The Application

97.5 General requirements.
97.6 Application for certificate.
97.7 Deposit of Voucher Specimen.
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.
97.156 Addresses.
97.157 Professional conduct.

                            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.

                         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.

    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

[[Page 259]]

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 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 Programs, AMS, USDA.
    Official Journal. The ``Official Journal of the Plant Variety 
Protection Office.''
    Owner. A breeder who developed or discovered and developed 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

[[Page 260]]

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; 70 FR 28785, May 19, 2005]

                             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
    (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

[[Page 261]]

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, National Agricultural Library, Room 401, 
10301 Baltimore Avenue, Beltsville, MD 20705-2351).
    (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 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; 70 FR 28785, May 19, 2005]



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 Sec. Sec. 
97.175 through 97.178.
    (d) The applicant shall submit with the application:
    (1) A declaration that at least 3,000 seeds of the viable basic seed 
required to reproduce the variety will be deposited in a public 
depository approved by the Commissioner and will be maintained for the 
duration of the certificate; or
    (2) With the application for a tuber propagated variety, a 
declaration that a viable cell culture will be 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, a declaration that a plot of vegetative material for each 
parent will be 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; 70 FR 28785, May 19, 2005; 70 FR 54611, Sept. 19, 
2005]



Sec. 97.7  Deposit of Voucher Specimen.

    (a) Voucher specimen types. As regards the deposit of voucher 
specimen material for purposes of plant variety protection applications 
under 7 U.S.C. 2321 et seq., the term voucher specimen shall include 
material that is capable of self-replication either directly or 
indirectly. Representative examples include seeds, plant tissue cells, 
cell lines, and plots of vegetative material of self-incompatible 
parental lines of hybrids. Seed samples should not be treated with 
chemicals or coatings.
    (b) Need to make a deposit. Applications for plant variety 
protection require deposit of a voucher specimen of the variety. The 
deposit shall be acceptable if made in accordance with these 
regulations. Sample packages shall meet the packaging and deposit 
requirements of the depository. Samples and correspondence about samples 
shall be identified, minimally, by:
    (1) The application number assigned by the Office;
    (2) The crop kind, genus and species, and variety denomination; and
    (3) The name and address of the depositor.
    (c) Acceptable depository. A deposit shall be recognized for the 
purposes of these regulations if made in:
    (1) The National Center for Genetic Resources Preservation, ARS, 
USDA, 1111 South Mason Street, Fort Collins, CO 80521-4500, or

[[Page 262]]

    (2) Any other depository recognized to be suitable by the Office. 
Suitability will be determined by the Commissioner on the basis of the 
administrative and technical competence, and agreement of the depository 
to comply with the terms and conditions applicable to deposits for plant 
variety protection purposes. The Commissioner may seek the advice of 
impartial consultants on the suitability of a depository. The depository 
must:
    (i) Have a continuous existence;
    (ii) Exist independent of the control of the depositor;
    (iii) Possess the staff and facilities sufficient to examine the 
viability and quantity of a deposit, and store the deposit in a manner 
which ensures that it is kept viable and uncontaminated;
    (iv) Provide for sufficient safety measures to minimize the risk of 
losing biological material deposited with it;
    (v) Be impartial and objective;
    (vi) Refrain from distributing samples while the application is 
being examined and during the term of protection but, after control of 
the sample is transferred by the Office to the depository, furnish 
samples of the deposited material in an expeditious and proper manner;
    (vii) Have the capability to destroy samples or return samples to 
the Office when requested by the Office; and
    (viii) Promptly notify the Office of low viability or low quantity 
of the sample.
    (3) A depository seeking status under paragraph (c)(2) of this 
section must direct a communication to the Commissioner which shall:
    (i) Indicate the name and address of the depository to which the 
communication relates;
    (ii) Contain detailed information as to the capacity of the 
depository to comply with the requirements of paragraph (c)(2) of this 
section, including information on its legal status, scientific standing, 
staff, and facilities;
    (iii) Indicate that the depository intends to be available, for the 
purposes of deposit, to any depositor under these same conditions;
    (iv) Where the depository intends to accept for deposit only certain 
kinds of biological material, specify such kinds; and
    (v) Indicate the amount of any fees that the depository will, upon 
acquiring the status of suitable depository under paragraph (c)(2) of 
this section, charge for storage, viability statements and furnishings 
of samples of the deposit.
    (4) A depository having status under paragraph (c)(2) of this 
section limited to certain kinds of biological material may extend such 
status to additional kinds of biological material by directing a 
communication to the Commissioner in accordance with paragraph (c)(3) of 
this section. If a previous communication under paragraph (c)(3) of this 
section is of record, items in common with the previous communication 
may be incorporated by reference.
    (5) Once a depository is recognized to be suitable by the 
Commissioner or has defaulted or discontinued its performance under this 
section, notice thereof will be published in the Official Journal of the 
Plant Variety Protection Office or by other methods typically used for 
dissemination of information related to the procedures of the Office.
    (d) Time of making an original deposit. An original deposit of 
materials for seed-reproduced plants shall be made within three months 
of the filing date of the application or prior to issuance of the 
certificate, whichever occurs first. A waiver may be granted for good 
cause, such as delays in obtaining a phytosanitary certificate for the 
importation of voucher sample materials. When the original deposit is 
made, the applicant must promptly submit a statement from a person in a 
position to corroborate the fact, stating that the voucher specimen 
material which is deposited is the variety specifically identified in 
the application as filed. Such statement must be filed in the 
application and must contain the identifying information listed in 
paragraph (b) of this section and:
    (1) The name and address of the depository;
    (2) The date of deposit;
    (3) The accession number given by the depository; and
    (4) A statement that the deposit is capable of reproduction.

[[Page 263]]

    (e) Replacement or supplement of deposit. If the depository 
possessing a deposit determines either that the sample viability is low 
or that the sample quantity is low, and if this finding is made during 
the pendency of an application or during the term of protection of the 
certificate, the Office shall notify the depositor of the need for 
making a replacement or supplemental deposit. Such deposits will be 
governed by the same considerations governing the need for making an 
original deposit under the provisions set forth in Sec. 97.7(d). 
Notification to the Office concerning deposit of the replacement or 
supplemental sample shall contain a statement from a person in a 
position to corroborate the fact, stating that the replacement or 
supplemental deposit is of a biological material which is identical to 
that originally deposited.
    (f) Term of deposit. A voucher specimen deposit made in support of 
an application for plant variety protection shall be made for a term of 
at least twenty (20) years. In any case, samples must be stored under 
agreements that would make them available to the Office during the 
enforceable life of the certificate for which the deposit was made.
    (g) Viability of deposit. A deposit of biological material that is 
capable of self-replication either directly or indirectly must be viable 
at the time of deposit and during the term of deposit. Viability may be 
tested by the depository periodically. The test must conclude only that 
the deposited material is capable of reproduction. No evidence 
necessarily is required regarding the ability of the deposited material 
to perform any function described in the application. If a viability 
test indicates that the deposit is not viable upon receipt or that the 
quantity of material is insufficient, the examiner shall proceed as if 
no deposit was made. The examiner will accept the conclusion set forth 
in a viability statement issued by a depository recognized under 
paragraph 97.7(c).
    (h) Furnishing of samples. A deposit must be made under conditions 
that assure that:
    (1) Public access to the deposit will not be available during 
pendency of the application or during the term of protection, and
    (2) All restrictions on the availability to the public of the 
deposited material will be irrevocably removed upon the abandonment, 
cancellation, expiration, or withdrawal of the certificate.
    (i) Examination procedures. The examiner shall determine, prior to 
issuance of the certificate, in each application if a voucher sample 
deposit actually made is acceptable for plant variety protection 
purposes.

[70 FR 54611, Sept. 16, 2005]



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

[[Page 264]]

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 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

[[Page 265]]

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 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

[[Page 266]]

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 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.

[[Page 267]]

                  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 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 and shall pay the handling fee for 
replenishment. 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; 70 
FR 28785, May 19, 2005]

[[Page 268]]



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.
    (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. 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.

[58 FR 42435, Aug. 9, 1993, as amended at 70 FR 28785, May 19, 2005]



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

[[Page 269]]

can only be made in accordance with the decision.

[58 FR 42435, Aug. 9, 1993, as amended at 70 FR 28785, May 19, 2005]

                   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 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. 97.130  Recording of assignments.

    (a) Any assignment of an application for a certificate, or of a 
certificate of plant variety protection, or of any interest in a 
variety, or any license or grant and conveyance of any right to use of 
the variety, may be submitted for recording in the Office in accordance 
with section 101 of the Act (7 U.S.C. 2531).
    (b) No instrument shall be recorded which is not in the English 
language or which does not identify the certificate or application to 
which it relates.
    (c) An instrument relating to title of a certificate shall identify 
the certificate by number and date, the name of the owner, and the name 
of the variety as stated in the certificate. An instrument relating to 
title of an application shall identify an application by number and date 
of filing, the name of the owner, and the name of the variety as stated 
in the application.
    (d) If an assignment is executed concurrently or subsequent to the 
filing of an application, but before its number and filing date are 
ascertained, the assignment shall identify the application by the date 
of the application, the name of the owner, and the name of the variety.

[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995]



Sec. 97.131  Conditional assignments.

    Assignments recorded in the Office are regarded as absolute 
assignments for Office purposes until canceled in writing by both 
parties to the assignment or by a decree of a court of competent 
jurisdiction. The Office shall not determine whether conditions 
precedent to the assignment, such as the payment of money, have been 
fulfilled.



Sec. 97.132  Assignment records open to public inspection.

    (a) Assignment records relating to original or amended certificates 
shall be open to public inspection and copies of any recorded document 
may be obtained upon payment of the prescribed fee.
    (b) Assignment records relating to any pending or abandoned 
application shall not be available for inspection except to the extent 
that pending applications are published as provided in section 57 of the 
Act and Sec. 97.19, or where necessary to carry out the provisions of 
any Act of Congress. Copies of assignment records and information on 
pending or abandoned applications

[[Page 270]]

shall be obtainable only upon written authority of the applicant or his 
or her assignee, or attorney or agent of record, or where necessary to 
carry out the provisions of any Act of Congress. An order for a copy of 
an assignment shall give the proper identification of the assignment.

                     Marking or Labeling Provisions



Sec. 97.140  After filing.

    Upon filing an application for protection of a variety and payment 
of the prescribed fee, the owner, or his or her designee, may label the 
variety or containers of the seed of the variety or pla