[Title 9 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1999 Edition]
[From the U.S. Government Printing Office]
9
Animals and Animal Products
[[Page i]]
Part 200 TO END
Revised as of January 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 9:
Chapter II--Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs),
Department of Agriculture 3
Chapter III--Food Safety and Inspection Service,
Department of Agriculture 73
Finding Aids:
Material Approved for Incorporation by Reference........ 727
Table of CFR Titles and Chapters........................ 729
Alphabetical List of Agencies Appearing in the CFR...... 747
List of CFR Sections Affected........................... 757
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 9 CFR 201.1 refers
to title 9, part 201,
section 1.
----------------------------
[[Page v]]
EXPLANATION
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Each volume of the Code is revised at least once each calendar year
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[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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Properly approved incorporations by reference in this volume are
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What if the material incorporated by reference cannot be found? If
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[[Page vii]]
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Office of the Federal Register.
January 1, 1999.
[[Page ix]]
THIS TITLE
Title 9--Animals and Animal Products is composed of two volumes. The
first volume contains chapter I--Animal and Plant Health Inspection
Service, Department of Agriculture (parts 1-199). The second volume
contains chapter II--Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs), Department of
Agriculture and chapter III--Food Safety and Inspection Service,
Department of Agriculture (part 200-end). The contents of these volumes
represent all current regulations codified under this title of the CFR
as of January 1, 1999.
For this volume, Carol Conroy was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 9--ANIMALS AND ANIMAL PRODUCTS
(This book contains part 200 to end)
--------------------------------------------------------------------
Editorial Note: Other regulations issued by the Department of
Agriculture appear in title 7, title 36, chapter II, and title 41,
chapter 4.
Part
chapter ii--Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs),
Department of Agriculture................................. 201
chapter iii--Food Safety and Inspection Service, Department
of Agriculture............................................ 301
[[Page 3]]
CHAPTER II--GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION
(PACKERS AND STOCKYARDS PROGRAMS),
DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Part Page
200 [Reserved]
201 Regulations under the Packers and Stockyards
Act..................................... 5
202 Rules of practice governing proceedings
under the Packers and Stockyards Act.... 29
203 Statements of general policy under the
Packers and Stockyards Act.............. 48
204 Organization and functions.................. 58
205 Clear title--protection for purchasers of
farm products........................... 63
Editorial Note: Nomenclature changes to Chapter II appear at 60 FR
8465, Feb. 14, 1995.
[[Page 5]]
PART 200 [RESERVED]
PART 201--REGULATIONS UNDER THE PACKERS AND STOCKYARDS ACT--Table of Contents
Definitions
Sec.
201.1 Meaning of words.
201.2 Terms defined.
Administration
201.3 Authority.
Applicability of Industry Rules
201.4 Bylaws, rules and regulations, and requirements of exchanges,
associations, or other organizations; applicability,
establishment.
Registration
201.10 Requirements and procedures.
201.11 Suspended registrants; officers, agents, and employees.
Schedules of Rates and Charges
201.17 Requirements for filing tariffs.
General Bonding Provisions
201.27 Underwriter; equivalent in lieu of bonds; standard forms.
201.28 Duplicates of bonds or equivalents to be filed with Regional
Supervisors.
Market Agency, Dealer and Packer Bonds
201.29 Market agencies, packers and dealers required to file and
maintain bonds.
201.30 Amount of market agency, dealer and packer bonds.
201.31 Conditions in market agency, dealer and packer bonds.
201.32 Trustee in market agency, dealer and packer bonds.
201.33 Persons damaged may maintain suit; filing and notification of
claims; time limitations; legal expenses.
201.34 Termination of market agency, dealer and packer bonds.
Proceeds of Sale
201.39 Payment to be made to consignor or shipper by market agencies;
exceptions.
201.42 Custodial accounts for trust funds.
Accounts and Records
201.43 Payment and accounting for livestock and live poultry.
201.44 Market agencies to render prompt accounting for purchases on
order.
201.45 Market agencies to make records available for inspection by
owners, consignors, and purchasers.
201.49 Requirements regarding scale tickets evidencing weighing of
livestock and live poultry.
Trade Practices
201.53 Persons subject to the Act not to circulate misleading reports
about market conditions or prices.
201.55 Purchases, sales, acquisitions, and settlements to be made on
actual weights.
201.56 Market agencies selling on commission; purchases from
consignment.
201.61 Market agencies selling or purchasing livestock on commission;
relationships with dealers.
201.67 Packers not to own or finance selling agencies.
201.69 Furnishing information to competitor buyers.
201.70 Restriction or limitation of competition between packers and
dealers prohibited.
Services
201.71 Scales; accurate weights, repairs, adjustments or replacements
after inspection.
201.72 Scales; testing of.
201.73 Scale operators to be qualified.
201.73-1 Instructions for weighing livestock.
201.76 Reweighing.
201.81 Suspended registrants.
201.82 Care and promptness in weighing and handling livestock and live
poultry.
Inspection of Brands
201.86 Brand inspection: Application for authorization, registration
and filing of schedules, reciprocal arrangements, and
maintenance of identity of consignments.
General
201.94 Information as to business; furnishing of by packers, live
poultry dealers, stockyard owners, market agencies, and
dealers.
201.95 Inspection of business records and facilities.
201.96 Unauthorized disclosure of business information prohibited.
201.97 Annual reports.
201.98 Packers and dealers not to charge, demand, or collect
commission, yardage, or other service charges.
201.99 Purchase of livestock by packers on a carcass grade, carcass
weight, or carcass grade and weight basis.
Poultry--Packers and Live Poultry Dealers
201.100 Records to be furnished poultry growers and sellers.
201.108-1 Instructions for weighing live poultry.
[[Page 6]]
201.200 Sale of livestock to a packer on credit.
Authority: 7 U.S.C. 204, 228, 7 CFR 2.17(e), 2.56.
Definitions
Sec. 201.1 Meaning of words.
Words used in this part in the singular form shall be deemed to
import the plural, and vice versa, as the case may demand.
[19 FR 4524, July 22, 1954]
Sec. 201.2 Terms defined.
The definitions of terms contained in the Act shall apply to such
terms when used in the Regulations under the Packers and Stockyards Act,
9 CFR part 201; Rules of Practice Governing Proceedings under the
Packers and Stockyards Act, 9 CFR part 202; Statements of General Policy
under the Packers and Stockyards Act, 9 CFR part 203; and Organization
and Functions, 9 CFR part 204. In addition the following terms used in
these parts shall be construed to mean:
(a) Act means the Packers and Stockyards Act, 1921, as amended and
supplemented (7 U.S.C. 181 et seq.).
(b) Department means the United States Department of Agriculture.
(c) Secretary means the Secretary of Agriculture of the United
States, or any officer or employee of the Department authorized to act
for the Secretary.
(d) Administration or agency means the Grain Inspection, Packers and
Stockyards Administration (Packers and Stockyards Programs).
(e) Administrator or agency head means the Administrator of the
Administration or any person authorized to act for the Administrator.
(f) Regional Supervisor means the regional supervisor of the Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) for a given area or any person authorized to act
for the regional supervisor.
(g) Person means individuals, partnerships, corporations, and
associations.
(h) Registrant means any person registered pursuant to the
provisions of the Act and the regulations in this part.
(i) Stockyard means a livestock market which has received notice
under section 302(b) of the Act that it has been determined by the
Secretary to come within the definition of ``stockyard'' under section
302(a) of the Act.
(j) Schedule means a tariff of rates and charges filed by stockyard
owners and market agencies.
(k) Custom Feedlot means any facility which is used in its entirety
or in part for the purpose of feeding livestock for the accounts of
others, but does not include feeding incidental to the sale or
transportation of livestock.
[46 FR 50510, Oct. 14, 1981]
Administration
Sec. 201.3 Authority.
The Administrator shall perform such duties as the Secretary may
require in enforcing the provisions of the act and the regulations in
this part.
[19 FR 4524, July 22, 1954]
Applicability of Industry Rules
Sec. 201.4 Bylaws, rules and regulations, and requirements of exchanges, associations, or other organizations; applicability, establishment.
(a) The regulations in this part shall not prevent the legitimate
application or enforcement of any valid bylaw, rule or regulation, or
requirement of any exchange, association, or other organization, or any
other valid law, rule or regulation, or requirement to which any packer,
stockyard owner, market agency, or dealer shall be subject which is not
inconsistent or in conflict with the act and the regulations in this
part.
(b) Market agencies selling livestock on commission shall not, in
carrying out the statutory duty imposed upon them by section 307 of
title III of the act, permit dealers, packers, or others representing
interests which conflict with those of consignors, to participate,
directly or indirectly, in determination of the need for, or in the
establishment of, regulations governing, or practices relating to, the
responsibilities, duties, or obligations of such market agencies to
their consignors.
[[Page 7]]
(7 U.S.C. 181 et seq.)
[19 FR 4524, July 22, 1954, as amended at 44 FR 45361, Aug. 2, 1979]
Registration
Sec. 201.10 Requirements and procedures.
(a) Every person operating or desiring to operate as a market agency
or dealer as defined in section 301 of the Act shall apply for
registration under the Act. To apply for registration, such persons
shall file a properly executed application for registration, on forms
furnished by the Agency, and the bond as required in Secs. 201.27
through 201.34.
(b) Each application for registration shall be filed with the
regional supervisor for the region in which the applicant proposes to
operate. If the Administrator has reason to believe that the applicant
is unfit to engage in the activity for which application has been made,
a proceeding shall be promptly instituted in which the applicant will be
afforded opportunity for full hearing in accordance with the rules of
practice governing such proceedings, for the purpose of showing cause
why the application for registration should not be denied. In the event
it is determined that the application should be denied, the applicant
shall not be precluded, as soon as conditons warrant, from again
applying for registration.
(c) Any person regularly employed on salary, or other comparable
method of compensation, by a packer to buy livestock for such packer
shall be subject to the registration requirements of the Act and the
regulations. Such person shall be registered as a dealer to purchase
livestock for slaughter.
(d) Every person clearing or desiring to clear the buying operations
of other registrants shall apply for registration as a market agency
providing clearing services by filing a properly executed application,
on forms furnished by the Agency, and the bond as required in
Secs. 201.27 through 201.34.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 203, 204, 207, 217a, 222 and 228)
[49 FR 33003, Aug. 20, 1984, as amended at 54 FR 37094, Sept. 7, 1989;
56 FR 2127, Jan. 22, 1991]
Sec. 201.11 Suspended registrants; officers, agents, and employees.
Any person whose registration has been suspended, or any person who
was responsible for or participated in the violation on which the order
of suspension was based, may not register in his own name or in any
other manner within the period during which the order of suspension is
in effect, and no partnership or corporation in which any such person
has a substantial financial interest or exercises management
responsibility or control may be registered during such period.
(7 U.S.C. 203, 204, 207, 217a and 228)
[49 FR 33003, Aug. 20, 1984]
Schedules of Rates and Charges
Sec. 201.17 Requirements for filing tariffs.
(a) Schedules of rate changes for stockyard services. Each stockyard
owner and market agency operating at a posted stockyard shall file with
the regional supervisor for the region in which they operate a signed
copy of all schedules of rates and charges, supplements and amendments
thereto. The schedules, supplements and amendments must be conspicuously
posted for public inspection at the stockyard, and filed with the
regional supervisor, at least 10 days before their effective dates,
except as provided in paragraphs (b) and (c) of this section. Each
schedule, supplement and amendment shall set forth its effective date, a
description of the stockyard services rendered, the stockyard at which
it applies, the name and address of the stockyard owner or market
agency, the kind of livestock covered by it, and any rules or
regulations which affect any rate or charge contained therein. Each
schedule of rates and charges filed shall be designated by successive
numbers. Each supplement and amendment to such schedule shall be
numbered and shall designate the number of the schedule which it
supplements or amends.
(b) Feed charges. When the schedule in effect provides for feed
charges to be based on an average cost plus a specified margin, the 10-
day filing and notice provision contained in section 306(c) of the Act
is waived. A schedule
[[Page 8]]
of the current feed charges based on average feed cost and showing the
effective date shall be conspicuously posted at the stockyard at all
times. Changes in feed charges may become effctive 2 days after the
change is posted at the stockyard.
(c) Professional veterinary services. The 10-day filing and notice
provision contained in section 306(a) of the Act is waived for a
schedule of charges for professional veterinary services. A schedule of
charges for professional veterinary services rendered by a veterinarian
at a posted stockyard shall be conspicuously posted at the stockyard at
all times. The schedule of charges and any supplement or amendment
thereto may become effective 2 days after the schedule, supplement, or
amendment is posted at the stockyard.
(d) Joint schedules. If the same schedule is to be observed by more
than one market agency operating at any one stockyard, one schedule will
suffice for such market agencies. The names and business addresses of
those market agencies adhering to such schedule must appear on the
schedule.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 203, 204, 207, 217a, 222 and 228)
[49 FR 33003, Aug. 20, 1984]
General Bonding Provisions
Sec. 201.27 Underwriter; equivalent in lieu of bonds; standard forms.
(a) The surety on bonds maintained under the regulations in this
part shall be a surety company which is currently approved by the United
States Treasury Department for bonds executed to the United States; and
which has not failed or refused to satisfy its legal obligations under
bonds issued under said regulations.
(b) Any packer, market agency, or dealer required to maintain a
surety bond under these regulations may elect to maintain, in whole or
partial substitution for such surety bond, a bond equivalent as provided
below. The total amount of any such surety bond, equivalent, or
combination thereof, must be the total amount of the surety bond
otherwise required under these regulations. Any such bond equivalent
must be in the form of:
(1) A trust fund agreement governing funds actually deposited or
invested in fully negotiable obligations of the United States or
Federally-insured deposits or accounts in the name of and readily
convertible to currency by a trustee as provided in Sec. 201.32, or
(2) A trust agreement governing funds which may be drawn by a
trustee as provided in Sec. 201.32, under one or more irrevocable,
transferrable, standby letters of credit, issued by a Federally-insured
bank or institution and physically received and retained by such
trustee.
(c) The provisions of Secs. 201.27 through 201.34 shall be
applicable to the trust fund agreements, trust agreements and letters of
credit authorized in paragraph (b) of this section.
(d) Bonds, trust fund agreements, letters of credit and trust
agreements shall be filed on forms approved by the Administrator.
(Approved by the Office of Management and Budget under control number
0590-0001)
[56 FR 2128, Jan. 22, 1991, as amended at 61 FR 36279, July 10, 1996; 62
FR 11759, Mar. 13, 1997]
Sec. 201.28 Duplicates of bonds or equivalents to be filed with Regional Supervisors.
Fully executed duplicates of bonds, trust fund agreements, and trust
agreements maintained under the regulations in this part, and fully
executed duplicates of all endorsements, amendments, riders, indemnity
agreements, and other attachments thereto, and photographically
reproduced copies of any letter of credit or amendment thereto, shall be
filed with the Regional Supervisor for the region in which the
registrant, packer, or person applying for registration resides, or in
the case of a corporation, where the corporation has its home office:
Provided, that if such registrant, packer, or person does not engage in
business in such area, the foregoing documents shall be filed with the
Regional Supervisor for the region in which the place
[[Page 9]]
of business of the registrant or packer or person is located.
(Approved by the Office of Management and Budget under control number
0590-0001)
[56 FR 2128, Jan. 22, 1991]
Market Agency, Dealer and Packer Bonds
Sec. 201.29 Market agencies, packers and dealers required to file and maintain bonds.
(a) Every market agency, packer, and dealer, except as provided in
paragraph (d) of this section, and except packer buyers registered as
dealers to purchase livestock for slaughter only, shall execute and
maintain a reasonable bond on forms approved by the Administrator
containing the appropriate condition clauses, as set forth in
Sec. 201.31 of the regulations, applicable to the activity or activities
in which the person or persons propose to engage, to secure the
performance of obligations incurred by such market agency, packer, or
dealer. No market agency, packer, or dealer required to maintain a bond
shall conduct his operations unless there is on file and in effect a
bond complying with the regulations in this part.
(b) Every market agency buying on a commission basis and every
dealer buying for his own account or for the accounts of others shall
file and maintain a bond. If a registrant operates as both a market
agency buying on a commission basis and as a dealer, only one bond to
cover both buying operations need be filed. Any person operating as a
market agency selling on a commission basis and as a market agency
buying on a commission basis or as a dealer shall file and maintain
separate bonds to cover his selling and buying operations.
(c) Each market agency and dealer whose buying operations are
cleared by another market agency shall be named as clearee in the bond
filed and maintained by the market agency registered to provide clearing
services. Each market agency selling livestock on a commission basis
shall file and maintain its own bond.
(d) Every packer purchasing livestock, directly or through an
affiliate or employee or a wholly-owned subsidiary, except those packers
whose annual purchases do not exceed $500,000, shall file and maintain a
reasonable bond. In the event a packer maintains a wholly-owned
subsidiary or affiliate to conduct its livestock buying, the wholly-
owned subsidiary or affiliate shall be registered as a packer buyer for
its parent packer firm, and the required bond shall be maintained by the
parent packer firm.
(7 U.S.C. 204, 228(a))
[48 FR 8806, Mar. 2, 1983]
Sec. 201.30 Amount of market agency, dealer and packer bonds.
(a) Market agency selling livestock on commission. To compute the
required amount of bond coverage, divide the dollar value of livestock
sold during the preceding business year, or the substantial part of that
business year, in which the market agency did business, by the actual
number of days on which livestock was sold. The divisor (the number of
days on which livestock was sold) shall not exceed 130. The amount of
bond coverage must be the next multiple of $5,000 above the amount so
determined. When the computation exceeds $50,000, the amount of bond
coverage need not exceed $50,000 plus 10 percent of the excess over
$50,000, raised to the next $5,000 multiple. In no case shall the
aamount of bond coverage for a market agency selling on commission be
less than $10,000 or such higher amount as required to comply with any
State law.
(b) Market agency buying on commission or dealer. The amount of bond
coverage must be based on the average amount of livestock purchased by
the dealer or market agency during a period equivalent to 2 business
days. To compute the required amount of bond coverage, divide the total
dollar value of livestock purchased during the preceding business year,
or substantial part of that business year, in which the dealer or market
agency or both did business, by one-half the number of days on which
business was conducted. The number of days in any business year, for
purposes of this regulation, shall not exceed 260. Therefore, the
divisor (one-half the number of days on which business was conducted)
shall
[[Page 10]]
not exceed 130. The amount of the bond coverage must be the next
multiple of $5,000 above the amount so determined. When the computation
exceeds $75,000, the amount of bond coverage need not exceed $75,000
plus 10 percent of the excess over $75,000, raised to the next $5,000
multiple. In no case shall the amount of bond coverage be less than
$10,000 or such higher amount as required to comply with any State law.
(c) Market agency acting as clearing agency. The amount of bond
coverage must be based on the average amount of livestock purchased by
all persons for whom the market agency served as a clearor during a
period equivalent to 2 business days. To compute the required amount of
bond coverage, divide the total dollar value of livestock purchased by
all persons for whom the market agency served as a clearor during the
preceding business year, or substantial part of that business year, in
which the market agency acting as clearing agency did business, by one-
half the number of days on which business was conducted. The number of
days in any business year, for purposes of this regulation, shall not
exceed 260. Therefore, the divisor (one-half the number of days on which
business was conducted) shall not exceed 130. The amount of bond
coverage must be the next multiple of $5,000 above the amount so
determined. When the computation exceeds $75,000, the amount of bond
coverage need not exceed $75,000 plus 10 percent of the excess over
$75,000, raised to the next $5,000 multiple. In no case shall the amount
of bond coverage be less than $10,000 or such higher amount as required
to comply with any State law.
(d) Packer. The amount of bond coverage must be based on the average
amount of livestock purchased by the packer during a period equivalent
to 2 business days. To compute the required amount of bond coverage,
divide the total dollar value of livestock purchased during the
preceding business year, or substantial part of that business year, in
which the packer did business, by one-half the number of days on which
business was conducted. The number of days in any business year, for
purposes of this regulation, shall not exceed 260. Therefore, the
divisor (one-half the number of days on which business was conducted)
shall not exceed 130. The amount of the bond coverage must be the next
multiple of $5,000 above the amount so determined. In no case shall the
amount of bond coverage for a packer be less than $10,000.
(e) If a person applying for registration as a market agency or
dealer has been engaged in the business of handling livestock before the
date of the application, the value of the livestock handled, if
representative of future operations, must be used in computing the
required amount of bond coverage. If the applicant for registration is a
successor in business to a registrant formerly subject to these
regulations, the amount of bond coverage of the applicant must be at
least that amount required of the prior registrant, unless otherwise
determined by the Administrator. If a packer becomes subject to these
regulations, the value of livestock purchased, if representative of
future operations, must be used in computing the required amount of bond
coverage. If a packer is a successor in business to a packer formerly
subject to these regulations, the amount of bond coverage of the
successor must be at least that amount required of the prior packer,
unless otherwise determined by the Administrator.
(f) Whenever the Administrator has reason to believe that a bond is
inadequate to secure the performance of the obligations of the market
agency, dealer or packer covered thereby, the Administrator shall notify
such person to adjust the bond to meet the requirements the
Administrator determines to be reasonable.
(7 U.S.C. 204, 228(a))
[48 FR 8806, Mar. 2, 1983]
Sec. 201.31 Conditions in market agency, dealer and packer bonds.
Each market agency, dealer and packer bond shall contain conditions
applicable to the activity or activities in which the person or persons
named as principal or clearees in the bond propose to engage, which
conditions shall be as follows or in terms to provide equivalent
protection:
[[Page 11]]
(a) Condition Clause No. 1: When the principal sells livestock for
the accounts of others. If the said principal shall pay when due to the
person or persons entitled thereto the gross amount, less lawful
charges, for which all livestock is sold for the accounts of others by
said principal.
(b) Condition Clause No. 2: When the principal buys livestock for
his own account or for the accounts of others. If the said principal
shall pay when due to the person or persons entitled thereto the
purchase price of all livestock purchased by said principal for his own
account or for the accounts of others, and if the said principal shall
safely keep and properly disburse all funds, if any, which come into his
hands for the purpose of paying for livestock purchased for the accounts
of others.
(c) Condition Clause No. 3: When the principal clears other
registrants buying livestock and thus is responsible for the obligations
of such other registrants. If the said principal, acting as a clearing
agency responsible for the financial obligations of other registrants
engaged in buying livestock, viz: (Insert here the names of such other
registrants as they appear in the application for registration), or if
such other registrants, shall (1) pay when due to the person or persons
entitled thereto the purchase price of all livestock purchased by such
other registrants for their own account or for the accounts of others;
and (2) safely keep and properly disburse all funds coming into the
hands of such principal or such other registrants for the purpose of
paying for livestock purchased for the accounts of others.
(d) Condition Clause No. 4: When the principal buys livestock for
his own account as a packer. If the said principal shall pay when due to
the person or persons entitled thereto the purchase price of all
livestock purchased by said principal for his own account.
[47 FR 32695, July 29, 1982]
Sec. 201.32 Trustee in market agency, dealer and packer bonds.
Bonds may be in favor of a trustee who shall be a financially
responsible, disinterested person satisfactory to the Administrator.
State officials, secretaries or other officers of livestock exchanges or
of similar trade associations, attorneys at law, banks and trust
companies, or their officers, are deemed suitable trustees. If a trustee
is not designated in the bond and action is taken to recover damages for
breach of any condition thereof, the Administrator shall designate a
person to act as trustee. In those States in which a State official is
required by statute to act or has agreed to act as trustee, such
official shall be designated by the Administrator as trustee when a
designation by the Administrator becomes necessary.
[41 FR 53774, Dec. 9, 1976]
Sec. 201.33 Persons damaged may maintain suit; filing and notification of claims; time limitations; legal expenses.
Each bond and each bond equivalent filed pursuant to the regulations
in this part shall contain provisions that:
(a) Any person damaged by failure of the principal to comply with
any condition clause of the bond or bond equivalent may maintain suit to
recover on the bond or bond equivalent even though such person is not a
party named in the bond or bond equivalent;
(b) Any claim for recovery on the bond or bond equivalent must be
filed in writing with either the surety, if any, or the trustee, if any,
or the Administrator, and whichever of these parties receives such a
claim shall notify the other such party or parties at the earliest
practical date;
(c) The Administrator is authorized to designate a trustee pursuant
to Sec. 201.32;
(d) The surety on the bond, or the trustee on the bond equivalent,
as the case may be, shall not be liable to pay any claim if it is not
filed in writing within 60 days from the date of the transaction on
which the claim is based or if suit thereon is commenced less than 120
days or more than 547 days from the date of the transaction on which the
claim is based;
(e) The proceeds of the bond or bond equivalent, as the case may be,
shall not be used to pay fees, salaries, or expenses for legal
representation of the surety or the principal.
[56 FR 2128, Jan. 22, 1991]
[[Page 12]]
Sec. 201.34 Termination of market agency, dealer and packer bonds.
(a) Each bond shall contain a provision requiring that, prior to
terminating such bond, at least 30 days notice in writing shall be given
to the Administrator, Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs), U.S. Department of
Agriculture, Washington, DC 20250, by the party terminating the bond.
Such provision may state that in the event the surety named therein
writes a replacement bond for the same principal, the 30-day notice
requirement may be waived and the bond will be terminated as of the
effective date of the replacement bond.
(b) Each bond filed by a market agency who clears other registrants
who are named in the bond shall contain a provision requiring that,
prior to terminating the bond coverage of any clearee named therein, at
least 30 days notice in writing shall be given to the Administrator,
Grain Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs), U.S. Department of Agriculture, Washington, DC
20250, by the surety. Such written notice shall be in the form of a
rider or endorsement to be attached to the bond of the clearing agency.
(c) Each trust fund agreement and trust agreement shall contain a
provision requiring that, prior to terminating such agreement, at least
30 days notice in writing shall be given to the Administrator, Grain
Inspection, Packers and Stockyards Administration, U.S. Department of
Agriculture, Washington, DC 20250, by the party terminating the
agreement. Such provision shall state that in the event the principal
named therein files an acceptable bond or bond equivalent to replace the
agreement, the 30-day notice requirement may be waived and the agreement
will be terminated as of the effective date of the replacement bond or
bond equivalent.
(Approved by the Office of Management and Budget under control number
0590-0001)
[47 FR 32695, July 29, 1982, as amended at 54 FR 26349, June 23, 1989;
61 FR 36279, July 10, 1996]
Proceeds of Sale
Sec. 201.39 Payment to be made to consignor or shipper by market agencies; exceptions.
(a) No market agency shall, except as provided in paragraph (b) of
this section, pay the net proceeds or any part thereof, arising from the
sale of livestock consigned to it for sale, to any person other than the
consignor or shipper of such livestock except upon an order from the
Secretary or a court of competent jurisdiction, unless (1) such market
agency has reason to believe that such person is the owner of the
livestock, (2) such person holds a valid, unsatisfied mortgage or lien
upon the particular livestock, or (3) such person holds a written order
authorizing such payment executed by the owner at the time of or
immediately following the consignment of such livestock: Provided, That
this paragraph shall not apply to deductions made from sales proceeds
for the purpose of financing promotion and research activities,
including educational activities, relating to livestock, meat, and other
products covered by the Act, carried out by producer-sponsored
organizations.
(b) The net proceeds arising from the sale of livestock, the
ownership of which has been questioned by a market agency duly
authorized to inspect brands, marks, and other identifying
characteristics of livestock may be paid in accordance with the
directions of such brand inspection agency if the laws of the State from
which such livestock originated or was shipped to market make provision
for payment of the proceeds in the manner directed by the brand
inspection agency and if the market agency to which the livestock was
consigned, and the consignor or consignors concerned, are unable to
establish the ownership of the livestock within a reasonable period of
time, not to exceed 60 days after sale.
(7 U.S.C. 181 et seq.)
[19 FR 4528, July 22, 1954, as amended at 28 FR 7218, July 13, 1963; 44
FR 45361, Aug. 2, 1979]
[[Page 13]]
Sec. 201.42 Custodial accounts for trust funds.
(a) Payments for livestock are trust funds. Each payment that a
livestock buyer makes to a market agency selling on commission is a
trust fund. Funds deposited in custodial accounts are also trust funds.
(b) Custodial accounts for shippers' proceeds. Every market agency
engaged in selling livestock on a commission or agency basis shall
establish and maintain a separate bank account designated as ``Custodial
Account for Shippers' Proceeds,'' or some similar identifying
designation, to disclose that the depositor is acting as a fiduciary and
that the funds in the account are trust funds.
(c) Deposits in custodial accounts. The market agency shall deposit
in its custodial account before the close of the next business day (the
next day on which banks are customarily open for business whether or not
the market agency does business on that day) after livestock is sold (1)
the proceeds from the sale of livestock that have been collected, and
(2) an amount equal to the proceeds receivable from the sale of
livestock that are due from (i) the market agency, (ii) any owner,
officer, or employee of the market agency, and (iii) any buyer to whom
the market agency has extended credit. The market agency shall
thereafter deposit in the custodial account all proceeds collected until
the account has been reimbursed in full, and shall, before the close of
the seventh day following the sale of livestock, deposit an amount equal
to all the remaining proceeds receivable whether or not the proceeds
have been collected by the market agency.
(d) Withdrawals from custodial accounts. The custodial account for
shippers' proceeds shall be drawn on only for payment of (1) the net
proceeds to the consignor or shipper, or to any person that the market
agency knows is entitled to payment, (2) to pay lawful charges against
the consignment of livestock which the market agency shall, in its
capacity as agent, be required to pay, and (3) to obtain any sums due
the market agency as compensation for its services.
(e) Accounts and records. Each market agency shall keep such
accounts and records as will disclose at all times the handling of funds
in such custodial accounts for shippers' proceeds. Accounts and records
must at all times disclose the name of the consignors and the amount due
and payable to each from funds in the custodial account for shippers'
proceeds.
(f) Insured banks. Such custodial accounts for shippers' proceeds
must be established and maintained in banks whose deposits are insured
by the Federal Deposit Insurance Corporation.
(g) Certificates of deposit and/or savings accounts. Funds in a
custodial account for shippers' proceeds may be maintained in an
interest-bearing savings account and/or invested in one or more
certificates of deposit, to the extent that such deposit or investment
does not impair the ability of the market agency to meet its obligations
to its consignors. The savings account must be properly designated as a
party of the custodial account of the market agency in its fiduciary
capacity as trustee of the custodial funds and maintained in the same
bank as the custodial account. The certificates of deposit, as property
of the custodial account, must be issued by the bank in which the
custodial account is kept and must be made payable to the market agency
in its fiduciary capacity as trustee of the custodial funds.
(Approved by the Office of Management and Budget under control number
0590-0001)
[47 FR 32696, July 29, 1982, as amended at 54 FR 26349, June 23, 1989]
Accounts and Records
Sec. 201.43 Payment and accounting for livestock and live poultry.
(a) Market agencies to make prompt accounting and transmittal of net
proceeds. Each market agency shall, before the close of the next
business day following the sale of any livestock consigned to it for
sale, transmit or deliver to the consignor or shipper of the livestock,
or the duly authorized agent, in the absence of any knowledge that any
other person, or persons, has any interest in the livestock, the net
proceeds received
[[Page 14]]
from the sale and a true written account of such sale, showing the
number, weight, and price of each kind of animal sold, the date of sale,
the commission, yardage, and other lawful charges, and such other facts
as may be necessary to complete the account and show fully the true
nature of the transaction.
(b) Prompt payment for livestock and live poultry--terms and
conditions. (1) No packer, market agency, or dealer shall purchase
livestock for which payment is made by a draft which is not a check,
unless the seller expressly agrees in writing before the transaction
that payment may be made by such a draft. (In cases of packers whose
average annual purchases exceed $500,000, and market agencies and
dealers acting as agents for such packers, see also Sec. 201.200).
(2)(i) No packer, market agency, or dealer purchasing livestock for
cash and not on credit, whether for slaughter or not for slaughter,
shall mail a check in payment for the livestock unless the check is
placed in an envelope with proper first class postage prepaid and
properly addressed to the seller or such person as he may direct, in a
post office, letter box, or other receptacle regularly used for the
deposit of mail for delivery, from which such envelope is scheduled to
be collected (A) before the close of the next business day following the
purchase of livestock and transfer of possession thereof, or (B) in the
case of a purchase on a ``carcass'' or ``grade and yield'' basis, before
the close of the first business day following determination of the
purchase price.
(ii) No packer, market agency, or dealer purchasing livestock for
slaughter, shall mail a check in payment for the livestock unless (A)
the check is made available for actual delivery and the seller or his
duly authorized representative is not present to receive payment, at the
point of transfer of possession of such livestock, on or before the
close of the next business day following the purchase of the livestock
and transfer of possession thereof, or, in the case of a purchase on a
``carcass'' or ``grade and yield'' basis, on or before the close of the
first business day following determination of the purchase price; or
unless (B) the seller expressly agrees in writing before the transaction
that payment may be made by such mailing of a check.
(3) Any agreement referred to in paragraph (b) (1) or (2) of this
section shall be disclosed in the records of any market agency or dealer
selling such livestock, and in the records of the packer, market agency,
or dealer purchasing such livestock, and retained by such person for
such time as is required by any law, or by written notice served on such
person by the Administrator, but not less than two calendar years from
the date of expiration thereof.
(4) No packer, live poultry dealer, market agency, or livestock
dealer shall as a condition to its purchase of livestock or poultry,
impose, demand, compel or dictate the terms or manner of payment, or
attempt to obtain a payment agreement from a seller through any threat
of retaliation or other form of intimidation.
(c) Purchaser to promptly reimburse agents. Each packer, market
agency, or dealer who utilizes or employs an agent to purchase livestock
for him, shall, in transactions where such agent uses his own funds to
pay for livestock purchased on order, transmit or deliver to such agent
the full amount of the purchase price before the close of the next
business day following receipt of notification of the payment of such
purchase price, unless otherwise expressly agreed between the parties
before the purchase of the livestock. Any such agreement shall be
disclosed in the records of the principal and in the records of any
market agency or dealer acting as such agent.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 228, 7 U.S.C. 222, and 15 U.S.C. 46)
[49 FR 6083, Feb. 17, 1984, as amended at 49 FR 8235, Mar. 6, 1984; 54
FR 16355, Apr. 24, 1989]
Sec. 201.44 Market agencies to render prompt accounting for purchases on order.
Each market agency shall, promptly following the purchase of
livestock on a commission or agency basis, transmit or deliver to the
person for whose account such purchase was made, or the duly authorized
agent, a true written account of the purchase showing the
[[Page 15]]
number, weight, and price of each kind of animal purchased, the names of
the persons from whom purchased, the date of purchase, the commission
and other lawful charges, and such other facts as may be necessary to
complete the account and show fully the true nature of the transaction.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 181 et seq.)
[44 FR 45360, Aug. 2, 1979, as amended at 54 FR 26349, June 23, 1989]
Sec. 201.45 Market agencies to make records available for inspection by owners, consignors, and purchasers.
Each market agency engaged in the business of selling or buying
livestock on a commission or agency basis shall, on request from an
owner, consignor, or purchaser, make available copies of bills covering
charges paid by such market agency for and on behalf of the owner,
consignor, or purchaser which were deducted from the gross proceeds of
the sale of livestock or added to the purchase price thereof when
accounting for the sale or purchase.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 181 et seq.; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et
seq.))
[19 FR 4528, July 22, 1954, as amended at 44 FR 45361, Aug. 2, 1979; 47
FR 746, Jan. 7, 1982; 54 FR 26349, June 23, 1989]
Sec. 201.49 Requirements regarding scale tickets evidencing weighing of livestock and live poultry.
(a) Livestock. When livestock is weighed for the purpose of purchase
or sale, a scale ticket shall be issued which shall be serially numbered
and used in numerical sequence. Sufficient copies shall be executed to
provide a copy to all parties to the transaction. In instances where the
weight values are automatically recorded directly on the account of
purchase, account of sale or other basic record, this record may serve
in lieu of a scale ticket. When livestock is purchased on a carcass
weight or carcass grade and weight basis, the hot carcass weights shall
be recorded using a scale equipped with a printing device, and such
printed weights shall be retained as part of the person or firm's
business records to substantiate settlement on each transaction. Scale
tickets issued under this section shall show:
(1) The names and location of the agency performing the weighing
service,
(2) The date of the weighing;
(3) The name of the buyer and seller or consignor, or a designation
by which they may be readily identified;
(4) The number of head;
(5) Kind of livestock;
(6) Actual weight of each draft of livestock; and
(7) The name, initials, or number of the person who weighed the
livestock, or if required by State law, the signature of the weigher.
(b) Poultry. When live poultry is weighed for the purpose of
purchase, sale, acquisition, or settlement by a live poultry dealer, a
scale ticket shall be issued which shall show:
(1) The name of the agency performing the weighing service;
(2) The name of the live poultry dealer;
(3) The name and address of the grower, purchaser, or seller;
(4) The name or initials or number of the person who weighed the
poultry, or if required by State law, the signature of the weigher;
(5) The location of the scale;
(6) The gross weight, tare weight, and net weight;
(7) The date and time gross weight and tare weight are determined;
(8) The number of poultry weighed;
(9) The weather conditions;
(10) Whether the driver was on or off the truck at the time of
weighing; and
(11) The license number of the truck or the truck number; provided,
that when live poultry is weighed on a scale other than a vehicle scale,
the scale ticket need not show the information specified in paragraphs
(b)(9)-(11) of this section. Scale tickets issued under this paragraph
shall be at least in duplicate form and shall be serially numbered and
used in numerical sequence. One copy shall be furnished to the grower,
purchaser, or seller, and one
[[Page 16]]
copy shall be furnished to or retained by the live poultry dealer.
(Approved by the Office of Management and Budget under control number
0590-0001)
[61 FR 36281, July 10, 1996]
Trade Practices
Sec. 201.53 Persons subject to the Act not to circulate misleading reports about market conditions or prices.
No packer, live poultry dealer, stockyard owner, market agency, or
dealer shall knowingly make, issue, or circulate any false or misleading
reports, records, or representation concerning the market conditions or
the prices or sale of any livestock, meat, or live poultry.
[54 FR 16355, Apr. 24, 1989]
Sec. 201.55 Purchases, sales, acquisitions, and settlements to be made on actual weights.
When livestock or live poultry is bought, sold, acquired, or settled
on a weight basis, settlement therefor shall be on the basis of the
actual weight on the scale ticket. If the actual weight used is not
obtained on the date and at the place of transfer of possession, this
information shall be disclosed with the date and location of the
weighing on the accountings, bills, or statement issued. Any adjustment
to the actual weights shall be fully and accurately explained on the
accountings, bills, or statements issued and records shall be maintained
to support such adjustment.
(Approved by the Office of Management and Budget under control number
0590-0001)
[61 FR 36281, July 10, 1996]
Sec. 201.56 Market agencies selling on commission; purchases from consignment.
(a) Livestock to be sold openly at highest available bid. Every
market agency engaged in the business of selling livestock on a
commission or agency basis shall sell the livestock consigned to it
openly, at the highest available bid, and in such a manner as to best
promote the interest of each consignor.
(b) Purchases from consignment. No market agency engaged in the
business of selling livestock on a commission basis shall purchase
livestock from consignments, and no such market agency shall permit its
owners, officers, agents, employees or any firm in which such market
agency or its owners, officers, agents, or employees have an ownership
or financial interest to purchase livestock consigned to such market
agency, without first offering the livestock for sale in an open and
competitive manner to other available buyers, and then only at a price
higher than the highest available bid on such livestock.
(c) Key employees not to purchase livestock out of consignments. No
market agency engaged in selling livestock on commission shall permit
its auctioneers, weighmasters, or salesmen to purchase livestock out of
consignment for any purpose for their own account, either directly or
indirectly.
(d) Purchase from consignments; disclosure required. When a market
agency purchases consigned livestock or sells consigned livestock to any
owner, officer, agent, employee, or any business in which such market
agency, owner, officer, agent, or employee has an ownership or financial
interest, the market agency shall disclose on the account of sale the
name of the buyer and the nature of the relationship existing between
the market agency and the buyer.
(Approved by the Office of Management and Budget under control number
0590-0001.)
(7 U.S.C. 228, 7 U.S.C. 222, and 15 U.S.C. 46)
[49 FR 6084, Feb. 17, 1984, as amended at 49 FR 13003, Apr. 2, 1984; 58
FR 52886, Oct. 13, 1993]
Sec. 201.61 Market agencies selling or purchasing livestock on commission; relationships with dealers.
(a) Market agencies selling on commission. No market agency selling
consigned livestock shall enter into any agreement, relationship or
association with dealers or other buyers which has a tendency to lessen
the loyalty of the market agency to its consignors or impair the quality
of the market agency's selling services. No market agency selling
livestock on commission shall provide clearing services for any
independent dealer who purchases livestock from consignment to such
market
[[Page 17]]
agency without disclosing, on the account of sale to the consignor, the
name of the buyer and the nature of the financial relationship between
the buyer and the market agency.
(b) Market agencies buying on commission. No market agency
purchasing livestock on commission shall enter into any agreement,
relationship, or association with dealers or others which will impair
the quality of the buying services furnished to its principals. No
market agency purchasing livestock on commission shall, in filling
orders, purchase livestock from a dealer whose operations it clears or
finances without disclosing the relationship between the market agency
and dealer to its principals on the accountings furnished to the
principals.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 228, 7 U.S.C. 222, and 15 U.S.C. 46)
[49 FR 6085, Feb. 17, 1984, as amended at 60 FR 42779, Aug. 17, 1995]
Sec. 201.67 Packers not to own or finance selling agencies.
No packer subject to the Act shall have an ownership interest in,
finance, or participate in the management or operation of a market
agency selling livestock on a commission basis, nor shall such a market
agency permit a packer to have an ownership interest in, finance, or
participate in the management or operation of such market agency.
(7 U.S.C. 228, 228b, 222, 15 U.S.C. 46)
[49 FR 32844, Aug. 17, 1984]
Sec. 201.69 Furnishing information to competitor buyers.
No packer, dealer, or market agency, in connection with transactions
subject to the provisions of the act, shall, in person, or through
employed buyers, for the purpose of restricting or limiting competition,
manipulating livestock prices, or controlling the movement of livestock,
prior to, or during the conduct of, his buying operations: (a) Furnish
competitor packers, dealers, market agencies, or their buyers or
representatives, similarly engaged in buying livestock, with information
concerning his proposed buying operations, such as the species, classes,
volume of livestock to be purchased, or prices to be paid; or (b)
furnish any other buying information to competitor buyers.
[19 FR 4531, July 22, 1954, as amended at 24 FR 3183, Apr. 24, 1959]
Sec. 201.70 Restriction or limitation of competition between packers and dealers prohibited.
Each packer and dealer engaged in purchasing livestock, in person or
through employed buyers, shall conduct his buying operations in
competition with, and independently of, other packers and dealers
similarly engaged.
[24 FR 3183, Apr. 24, 1959]
Services
Sec. 201.71 Scales; accurate weights, repairs, adjustments or replacements after inspection.
(a) All scales used by stockyard owners, market agencies, dealers,
packers, and live poultry dealers to weigh livestock, livestock
carcasses, or live poultry for the purpose of purchase, sale,
acquisition, or settlement shall be installed, maintained, and operated
to insure accurate weights. Such scales shall meet applicable
requirements contained in the General Code, Scale Code, and Weights Code
of the 1996 edition of National Institute of Standards and Technology
Handbook 44, ``Specifications, Tolerances, and Other Technical
Requirements for Weighing and Measuring Devices,'' which is hereby
incorporated by reference. This incorporation by reference was approved
by the Director of the Federal Register on January 11, 1989. These
materials are incorporated as they exist on the date of approval and a
notice of any change in these materials will be published in the Federal
Register. This handbook is for sale by the Superintendent of Documents,
U.S. Government Printing Office, Washington, DC 20402. It is also
available for inspection at the Office of the Federal Register
Information Center, 800 North Capitol Street, NW., suite 700,
Washington, DC 20408.
(b) All scales used by stockyard owners, market agencies dealers,
packers, and live poultry dealers to weigh livestock or live poultry for
the purpose of
[[Page 18]]
purchase, sale, acquisition, or settlement and all scales used for the
purchase, sale, acquisition, or settlement of livestock on a carcass
weight basis shall be equipped with a printing device which shall be
used for recording weight values on a scale ticket or other document
used for this purpose.
(c) All vehicle scales used to weigh livestock or live poultry for
purposes of purchase, sale, acquisition or settlement shall be of
sufficient length and capacity to weigh the entire vehicle as a unit:
Provided, That a trailer may be uncoupled from the tractor and weighed
as a single unit.
(d) No scales shall be operated or used by any stockyard owner,
market agency, dealer, packer, or live poultry dealer to weigh
livestock, livestock carcasses or live poultry for purposes of purchase,
sale, acquisition or settlement unless it has been found upon test and
inspection, as specified in Sec. 201.72 of the regulations, to be in a
condition to give accurate weight. If a scale is inspected or tested and
found incorrect or inaccurate or if any repairs, adjustments or
replacements are made to a scale, it shall not be used until it has been
inspected and tested and met all accuracy requirements specified in the
regulations.
(7 U.S.C. 222 and 228 and 15 U.S.C. 46)
[49 FR 37374, Sept. 24, 1984, as amended at 61 FR 36282, July 10, 1996]
Sec. 201.72 Scales; testing of.
(a) Each stockyard owner, market agency, dealer, packer, or live
poultry dealer who weighs livestock or live poultry for purposes of
purchase, sale, acquisition or settlement, or who weighs livestock
carcasses for the purpose of purchase on a carcass weight basis, or who
furnishes scales for such purposes, shall cause such scales to be tested
by competent persons in accordance with the regulations at least twice
during each calendar year at intervals of approximately six months. More
frequent testing will be required in cases where the scale does not
maintain accuracy between tests.
(b) Each stockyard owner, market agency, dealer, packer or live
poultry dealer who weighs livestock, livestock carcasses or live poultry
for purposes of purchase, sale, acquisition or settlement shall furnish
reports of such tests and inspections on forms prescribed by the
Administrator. The stockyard owner, market agency, dealer, packer or
live poultry dealer shall retain one copy of the test and inspection
report and shall file one copy with the regional office for the region
in which the scale is located.
(c) When the scales used for weighing livestock, livestock carcasses
or live poultry are tested and inspected by an agency of a State or
municipality or other governmental subdivision, the forms ordinarily
used by such agency for reporting test and inspection of scales shall be
accepted in lieu of the forms prescribed for this purpose by the
Administrator if such forms contain substantially the same information.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 222 and 228 and 15 U.S.C. 46)
[49 FR 37374, Sept. 24, 1984, as amended at 54 FR 16355, Apr. 24, 1989]
Sec. 201.73 Scale operators to be qualified.
Stockyard owners, market agencies, dealers, packers and live poultry
dealers shall employ qualified persons to operate scales for weighing
livestock, livestock carcasses or live poultry for the purpose of
purchase, sale acquisition or settlement, and they shall require such
employees to operate the scales in accordance with the regulations.
[54 FR 16356, Apr. 24, 1989]
Sec. 201.73-1 Instructions for weighing livestock.
Stockyard operators, market agencies, dealers, and packers who
operate scales on which livestock is weighed in purchase or sales
transactions are responsible for the accurate weighing of such
livestock. They shall supply copies of the instructions in this section
to all persons who perform weighing operations for them and direct such
person to familiarize themselves with the instructions and to comply
with them at all times. This section shall also apply to any additional
weighers
[[Page 19]]
who are employed at any time. Weighers must acknowledge their receipt of
these instructions and agree to comply with them, by signing in
duplicate, P&SA Form 215 provided by the Packers and Stockyards
Programs. One copy of the form is to be filed with a regional office of
the Packers and Stockyards Programs and the other retained by the agency
employing the weighers.
(a) Balancing the empty scale. (1) The empty scale shall be balanced
each day before weighing begins, and maintained in correct balance which
weighing operations continue. The zero balance shall be verified at
intervals of not more than 15 drafts or 15 minutes, whichever is
completed first. In addition, the zero balance of the scale shall be
verified whenever a weigher resumes weighing duties after an absence
from the scale and also whenever a load exceeding half the scale
capacity or 10,000 pounds (whichever is less) has been weighed and is
followed by a load of less than 1,000 pounds, verification to occur
before the weighing of the load of less than 1,000 pounds.
(2) The time at which the empty scale is balanced or its zero
balance verified shall be recorded on scale tickets or other permanent
records. Balance tickets must be filed with other scale tickets issued
on that date.
(3) Before balancing the empty scale, the weigher shall assure
himself that the scale gates are closed and that no persons or animals
are on the scale platform or in contact with the stock rack, gates, or
platform. If the scale is balanced with persons on the scale platform,
the zero balance shall be verified whenever there is a change in such
persons. When the scale is properly balanced and ready for weighing, the
weigher shall so indicate by an appropriate signal.
(4) Weighbeam scales shall be balanced by first seating each poise
securely in its zero notch and then moving the balance ball to such
position that a correct zero balance is obtained. A scale equipped with
a balance indicator is correctly balanced when the pointer comes to rest
at zero. A scale not equipped with a balance indicator is correctly
balanced if the weighbeam, when released at the top or bottom of the
trig loop, swings freely in the trig loop in such manner that it will
come to rest at the center of the trig loop.
(5) Dial scales shall be balanced by releasing all drop weights and
operating the balance ball or other balancing device to obtain a correct
zero balance. The indicator must visually indicate zero on the dial and
the ticket printer must record a correct zero balance.
(6) Electronic digital scales should be properly warmed up before
use. In most cases, it is advisable to leave the electric power on
continuously. The zero load balance shall be verified by recording the
zero balance on a scale ticket. The main indicating element and the
remote visual weight display shall indicate zero when the balance is
verified. The proper procedure for balancing this type of scale will
vary according to the manufacturer. Refer to the operator's manual for
specific instructions.
(b) Weighing the load. (1) Before weighing a draft of livestock, the
weigher shall assure himself that the entire draft is on the scale
platform with the gates closed and that no persons or animals off the
scale are in contact with the platform, gates, or stock rack.
(i) On a weighbeam scale with a balance indicator, the weight of a
draft shall be determined by seating the poises at such positions that
the pointer will come to rest within the central target area or within
\1/4\ (0.25) inch of the zero mark.
(ii) On a weighbeam scale without a balance indicator, the weight
shall be determined by seating the poises at such positions that the
weighbeam, when released from the top or bottom of the trig loop, will
swing freely and come to rest at the approximate center of the trig
loop.
(iii) On a dial scale, the weight is indicated automatically when
the indicator moves around the dial face and comes to rest.
(iv) On an electronic digital scale, the weight of a draft is
indicated automatically when the weight value indicated stabilized.
(2) The correct weight of a livestock draft is the value in pounds
indicated
[[Page 20]]
when a correct load balance is obtained. The weigher should always
concentrate his attention upon the beam tip, balance indicator or dial
indicator while weighing and not concern himself with reading the
visible weight indications until correct load balance is obtained. On
electronic digital scales, the weigher should concentrate on the pulsing
or flickering of weight values to assure that the unit indicates a
stable weight before activating the print button.
(c) Recording the weight. (1) The weight of each draft shall be
recorded immediately after the load balance is obtained and before any
poises are moved or the load is removed from the scale platform. The
weigher shall make certain that the printed weight record agrees with
the weight value visually indicated when correct load balance is
obtained. He shall also assure himself that the printed weight value is
distinct and legible.
(2) The weight printing device on a scale shall be operated only to
produce a printed or impressed record of the weight value while the
livestock load is on the scale and correctly balanced. If the weight
value is not printed clearly and correctly, the ticket shall be marked
void and a new one printed before the livestock is removed from the
scale.
(d) Scale tickets. (1) Scale tickets used to record the weight
values of livestock in purchase or sales transactions shall be used, at
any given scale, in the order of their consecutive serial numbers unless
otherwise marked to show the order of their use. All tickets shall show
the date of the weighing and the name or initials of the weigher
performing the weighing service.
(2) No scale tickets shall be destroyed or otherwise disposed of
because they are soiled, damaged, incorrectly executed, or voided. They
shall be preserved and filed to comprise a complete serial number
sequence.
(3) No scale ticket shall be used to record the weight of a
livestock draft for ``catch-weight,'' inventory, transportation charge
or other nonsale purposes unless the ticket is clearly marked to show
why the weight was determined.
(4) When weight values are recorded by means of automatic recording
equipment directly on the accounts of sale or other basic records, such
record may serve in lieu of a scale ticket.
(e) Weigher's responsibilities. (1) The primary responsibility of a
weigher is to determine and accurately record the weight of livestock
drafts without prejudice or favor to any person or agency and without
regard for livestock ownership, price, condition, fill, shrink, or other
considerations. A weigher shall not permit the representations or
attitudes of any persons or agencies to influence his judgment or action
in performing his duties.
(2) Unused scale tickets, or those which are partially executed but
without a printed weight value, shall not be left exposed or accessible
to unauthorized personnel. All such tickets shall be kept under lock
when the weigher is not at his duty station.
(3) Accurate weighing and correct weight recording require that a
weigher shall not permit his operations to be hurried to the extent that
inaccurate weights or incorrect weight records may result. Each draft of
livestock must be weighed accurately to the nearest minimum weight value
that can be indicated or recorded. Manual operations connected with
balancing, weighing, and recording shall be performed with the care
necessary to prevent damage to the accurately machined and adjusted
parts of weighbeams, poises, and printing devices.
(4) Livestock owners, buyers, or others having legitimate interest
in a livestock draft must be permitted to observe the balancing,
weighing, and recording procedures, and a weigher shall not deny them
that right or withhold from them any information pertaining to the
weight of that draft. He shall check the zero balance of the scale or
reweigh a draft of livestock when requested by such parties.
(f) Sensitivity control. (1) A scale must be sensitive in response
to platform loading if it is to yield accurate weights. It, therefore,
is the duty of a weigher to assure himself that interferences, weighbeam
friction, or other factors do not impair sensitivity. He should satisfy
himself, at least twice
[[Page 21]]
each day, that the scale is sufficiently sensitive, and if the following
requirements are not met, he should report the facts to his superior or
employer immediately.
(2) A weighbeam scale with a balance indicator is sufficiently
sensitive if, when the scale is balanced with the pointer at the center
of the target, movement of the fractional poise one graduation will
change the indicator rest point \1/4\ inch (0.25) or the width of the
central target area, whichever is greater.
(3) A weighbeam scale without a balance indicator is sufficiently
sensitive if, when the scale is balanced with the weighbeam at the
center of the trig loop, movement of the fractional poise two
graduations will cause the weighbeam to come to rest at the bottom of
the trig loop.
(4) Adjustable damping devices are incorporated in balance
indicators and in dial scales to absorb the effects of load impact and
assist in bringing the indicator to rest. The weigher should be familiar
with the location and adjustment of these damping devices and should
keep them adjusted so that the pointer will oscillate freely through at
least one complete cycle of movement before coming to rest at its
original position.
(5) Friction at weighbeam bearings may reduce the sensitivity of the
scale, cause sluggish weighbeam action and affect weighing accuracy. A
weigher should inspect the weighbeam assembly daily to make certain that
there is clearance between the weighbeam and the pivot bearings.
(6) Interferences or binding of the scale platform, stock rack,
gates or other ``live'' parts of the scale are common causes of weighing
inaccuracy. A weigher should satisfy himself, at the beginning of each
weighing period, that all such ``live'' parts have sufficient clearance
to prevent interferences.
(g) General precautions. (1) The poises of weighbeam scales are
carefully adjusted and sealed to a definite weight at the factory and
any change in that weight seriously affects weighing accuracy. A
weigher, therefore, should be certain that poise parts do not become
broken, loose or lost and that no material is added to a poise.
Balancing or weighing shall not be performed while a scale ticket is in
the slot of a weighbeam poise.
(2) Stops are provided on scale weighbeams to prevent movement of
poises back of the zero graduation when balancing or weighing. When the
stops become worn or broken and allow a poise to be set behind the zero
position, this condition should be reported and corrected without delay.
(3) Foreign objects or loose material in the form of nuts, bolts,
washers or other material on any part of the weighbeam assembly,
including the counter-balance hanger or counter-balance weights, are
potential sources of weighing error. Loose balancing material must be
enclosed in the shot cup of the counter-balance hanger, and counter-
balance weights must not be of the slotted type which can readily be
removed.
(4) Whenever for any reason a weigher has reason to believe that a
scale is not functioning properly or not yielding correct weight values,
he shall discontinue weighing, report the facts to the parties
responsible for scale maintenance, and request inspection, test, or
repair of the scale.
(5) When a scale has been adjusted, modified, or repaired in any
manner which may affect the accuracy of weighing or weight recording,
the weigher shall not use the scale until it has been tested and
inspected and found to be accurate.
(6) Count-off men, gate men, or others assigned to open or close
scale gates or to drive livestock on or off the scale, shall perform
those functions as directed by the weigher's signals or spoken
instructions. They shall prevent persons or animals off the scale from
being in contact with any part of the scale platform, stock rack, or
gates while the scale is being balanced or used for weighing. They shall
not open gates or remove livestock from the scale until directed by the
weigher.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 222 and 228 and 15 U.S.C. 46)
[39 FR 40277, Nov. 15, 1974, as amended at 49 FR 39516, Oct. 9, 1984; 61
FR 36282, July 10, 1996]
[[Page 22]]
Sec. 201.76 Reweighing.
Stockyard owners, market agencies, dealers, packers and live poultry
dealers shall reweigh livestock, livestock carcasses or live poultry on
request of any authorized representative of the Secretary.
[54 FR 16356, Apr. 24, 1989]
Sec. 201.81 Suspended registrants.
No stockyard owner, packer, market agency, or dealer shall employ
any person who has been suspended as a registrant to perform activities
in connection with livestock transactions subject to the jurisdiction of
the Secretary under the Act during the period of such suspension:
Provided, That the provisions of this section shall not be construed to
prohibit the employment of any person who has been suspended as a
registrant until such time as the person demonstrates solvency or
obtains the bond required under the Act and regulations. No such person
shall be employed, however, until after the expiration of any specified
period of suspension contained in the order of suspension.
(7 U.S.C. 222 and 228 and 15 U.S.C. 46)
[49 FR 37374, Sept. 24, 1984]
Sec. 201.82 Care and promptness in weighing and handling livestock and live poultry.
(a) Each stockyard owner, market agency, dealer, packer and live
poultry dealer shall exercise reasonable care and promptness with
respect to loading, transporting, holding, yarding, feeding, watering,
weighing or otherwise handling livestock or live poultry to prevent
waste of feed, shrinkage, injury, death or other avoidable loss.
(b) Whenever live poultry is obtained under a poultry growing
arrangement, the poultry shall be transported promptly after loading and
the gross weight for grower payment purposes shall be determined
immediately upon arrival at the processing plant, holding yard, or other
scale normally used for such purpose.
[54 FR 16356, Apr. 24, 1989; 54 FR 18713, May 2, 1989]
Inspection of Brands
Sec. 201.86 Brand inspection: Application for authorization, registration and filing of schedules, reciprocal arrangements, and maintenance of identity of
consignments.
(a) Application for authorization. Any department or agency or duly-
organized livestock association of any State in which branding or
marking of livestock as a means of establishing ownership prevails by
custom or statute, which desires to obtain an authorization to charge
and collect a fee for the inspection of brands, marks, and other
identifying characteristics of livestock, as provided in section 317 of
the Act, shall file with the Administrator an application in writing for
such authorization. In case two or more applications for authorization
to collect a fee for the inspection of brands, marks, and other
identifying characteristics of livestock are received from the same
State, a hearing will be held to determine which applicant is best
qualified.
(b) Registration and filing of schedules. Upon the issuance of an
authorization to an agency or an association, said agency or association
shall register as a market agency in accordance with the provisions of
Sec. 201.10, except that no bond need be filed or maintained, and shall
file a schedule of its rates and charges for performing the service in
the manner and form prescribed by Sec. 201.17.
(c) Reciprocal arrangements. Any authorized agency or association
may make arrangements with an association or associations in the same or
in another State, where branding or marking livestock prevails by custom
or statute, to perform inspection service at stockyards on such terms
and conditions as may be approved by the Administrator: Provided, That
such arrangements will tend to further the purpose of the Act and will
not result in duplication of charges or services.
(d) Maintenance of identity of consignments. All persons having
custody at the stockyard of livestock subject to inspection shall
preserve the identity of the consignment until inspection has been
completed by the authorized inspection agency. Agencies authorized
[[Page 23]]
to conduct such inspection shall perform the work as soon after receipt
of the livestock as practicable and as rapidly as is reasonably possible
in order to prevent delay in marketing, shrinkage in weight, or other
avoidable losses.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 203, 204, 207, 217a, 222 and 228)
[49 FR 33005, Aug. 20, 1984]
General
Sec. 201.94 Information as to business; furnishing of by packers, live poultry dealers, stockyard owners, market agencies, and dealers.
Each packer, live poultry dealer, stockyard owner, market agency,
and dealer, upon proper request, shall give to the Secretary or his duly
authorized representatives in writing or otherwise, and under oath or
affirmation if requested by such representatives, any information
concerning the business of the packer, live poultry dealer, stockyard
owner, market agency, or dealer which may be required in order to carry
out the provisions of the Act and regulations in this part within such
reasonable time as may be specified in the request for such information.
(Approved by the Office of Management and Budget under control number
0590-0001)
[54 FR 16356, Apr. 24, 1989, as amended at 54 FR 26349, June 23, 1989]
Sec. 201.95 Inspection of business records and facilities.
Each stockyard owner, market agency, dealer, packer, and live
poultry dealer, upon proper request, shall permit authorized
representatives of the Secretary to enter its place of business during
normal business hours and to examine records pertaining to its business
subject to the Act, to make copies thereof and to inspect the facilities
of such persons subject to the Act. Reasonable accommodations shall be
made available to authorized representatives of the Secretary by the
stockyard owner, market agency, dealer, packer, or live poultry dealer
for such examination of records and inspection of facilities.
(Approved by the Office of Management and Budget under control number
0590-0001)
[54 FR 16356, Apr. 24, 1989, as amended at 54 FR 26349, June 23, 1989]
Sec. 201.96 Unauthorized disclosure of business information prohibited.
No agent or employee of the United States shall, without the consent
of the stockyard owner, market agency, dealer, packer or live poultry
dealer concerned, divulge or make known in any manner, any facts or
information regarding the business of such person acquired through any
examination or inspection of the business or records of the stockyard
owner, market agency, dealer, packer or live poultry dealer, or through
any information given by the stockyard owner, market agency, dealer,
packer, or live poultry dealer pursuant to the Act and regulations,
except to such other agents or employees of the United States as may be
required to have such knowledge in the regular course of their official
duties or except insofar as they may be directed by the Administrator or
by a court of competent jurisdiction, or except as they may be otherwise
required by law.
[54 FR 16356, Apr. 24, 1989]
Sec. 201.97 Annual reports.
Every packer, live poultry dealer, stockyard owner, market agency,
and dealer (except a packer buyer registered to purchase livestock for
slaughter only) shall file annually with the Administration a report on
prescribed forms not later than April 15 following the calendar year end
or, if the records are kept on a fiscal year basis, not later than 90
days after the close of his fiscal year. The Administrator on good cause
shown, or on his own motion, may grant a reasonable extension of the
filing date or may waive the filing of such reports in particular cases.
(Approved by the Office of Management and Budget under Control No. 0590-
0001)
[54 FR 16356, Apr. 24, 1989]
[[Page 24]]
Sec. 201.98 Packers and dealers not to charge, demand, or collect commission, yardage, or other service charges.
No packer or dealer shall, in connection with the purchase of
livestock in commerce, charge, demand, or collect from the seller of the
livestock any compensation in the form of commission, yardage, or other
service charge unless the charge is for services mandated by law or
statute and is not inconsistent with the provisions of the Act.
[61 FR 36282, July 10, 1996]
Sec. 201.99 Purchase of livestock by packers on a carcass grade, carcass weight, or carcass grade and weight basis.
(a) Each packer purchasing livestock on a carcass grade, carcass
weight, or carcass grade and weight basis shall, prior to such purchase,
make known to the seller, or to his duly authorized agent, the details
of the purchase contract. Such details shall include, when applicable,
expected date and place of slaughter, carcass price, condemnation terms,
description of the carcass trim, grading to be used, accounting, and any
special conditions.
(b) Each packer purchasing livestock on a carcass grade, carcass
weight, or carcass grade and weight basis, shall maintain the identity
of each seller's livestock and the carcasses therefrom and shall, after
determination of the amount of the purchase price, transmit or deliver
to the seller, or his duly authorized agent, a true written account of
such purchase showing the number, weight, and price of the carcasses of
each grade (identifying the grade) and of the ungraded carcasses, an
explanation of any condemnations, and any other information affecting
final accounting. Packers purchasing livestock on such a basis shall
maintain sufficient records to substantiate the settlement of each
transaction.
(c) When livestock are purchased by a packer on a carcass weight or
carcass grade and weight basis, purchase and settlement therefor shall
be on the basis of carcass price. This paragraph does not apply to
purchases of livestock by a packer on a guaranteed yield basis.
(d) Settlement and final payment for livestock purchased by a packer
on a carcass weight or carcass grade and weight basis shall be on actual
hot weights. The hooks, rollers, gambrels or other similar equipment
used at a packing establishment in connection with the weighing of
carcasses of the same species of livestock shall be uniform in weight.
The tare shall include only the weight of such equipment.
(e) Settlement and final payment for livestock purchased by a packer
on a USDA carcass grade shall be on an official (final--not preliminary)
grade. If settlement and final payment are based upon any grades other
than official USDA grades, such other grades shall be set forth in
detailed written specifications which shall be made available to the
seller or his duly authorized agent. For purposes of settlement and
final payment for livestock purchased on a grade or grade and weight
basis, carcasses shall be final graded before the close of the second
business day following the day the livestock are slaughtered.
(Approved by the Office of Management and Budget under control number
0590-0001)
(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.); 7 U.S.C. 222
and 228 and 15 U.S.C. 46)
[33 FR 2762, Feb. 9, 1968, as amended at 33 FR 5401, Apr. 5, 1968; 49 FR
37375, Sept. 24, 1984; 54 FR 37094, Sept. 7, 1989]
Poultry--Packers and Live Poultry Dealers
Sec. 201.100 Records to be furnished poultry growers and sellers.
(a) Contracts; contents. Each live poultry dealer who enters into a
growout (feeding) contract with a poultry grower shall furnish the
grower a true written copy of the contract, which shall clearly specify:
(1) The duration of the contract and conditions for the termination
of the contract by each of the parties; and
(2) All terms relating to the payment to be made to the poultry
grower, including among others, where applicable, the following:
(i) The party liable for condemnations, including those resulting
from plant errors;
(ii) The method for figuring feed conversion ratios;
[[Page 25]]
(iii) The formula or method used to convert condemnations to live
weight;
(iv) The per unit charges for feed and other inputs furnished by
each party; and
(v) The factors to be used when grouping or ranking poultry growers.
(b) Settlement sheets; contents; supporting documents. Each live
poultry dealer, who acquires poultry pursuant to a contract with a
poultry grower, shall prepare a true and accurate settlement sheet
(final accounting) and furnish a copy thereof to the poultry grower at
the time of settlement. The settlement sheet shall contain all
information necessary to compute the payment due the poultry grower. For
all such arrangements in which the weight of birds affects payment, the
settlement sheet shall show, among other things, the number of live
birds marketed, the total weight and the average weight of the birds,
and the payment per pound.
(c) Condemnation and grading certificates. Each live poultry dealer,
who acquires poultry pursuant to a contract with a poultry grower which
provides that official U.S. Department of Agriculture condemnations or
grades, or both, are a consideration affecting payment to the grower,
shall obtain an official U.S. Department of Agriculture condemnation or
grading certificate, or both, for the poultry and furnish a copy thereof
to the poultry grower prior to or at the time of settlement.
(d) Grouping or ranking sheets. Where the contract between the live
poultry dealer and the poultry grower provides for payment to the
poultry grower based upon a grouping or ranking of poultry growers
delivering poultry during a specified period, the live poultry dealer
shall furnish the poultry grower, at the time of settlement, a copy of a
grouping or ranking sheet which shows the grower's precise position in
the grouping or ranking sheet for that period. The grouping or ranking
sheet need not show the names of other growers, but shall show the
actual figures upon which the grouping or ranking is based for each
grower grouped or ranked during the specified period.
(e) Live poultry purchases. Each live poultry dealer who purchases
live poultry shall prepare and deliver a purchase invoice to the seller
at time of settlement. The purchase invoice shall contain all
information necessary to compute payment due the seller. When U.S.
Department of Agriculture condemnations or U.S. Department of
Agriculture grades, or both, of poultry purchased affect final payment,
copies of official U.S. Department of Agriculture condemnation
certificates or grading certificates, or both, shall be furnished to the
seller at or prior to the time of settlement.
(Approved by the Office of Management and Budget under control number
0590-0001)
[54 FR 16356, Apr. 24, 1989; 54 FR 18713, May 2, 1989]
Sec. 201.108-1 Instructions for weighing live poultry.
Live poultry dealers who operate scales on which live poultry is
weighed for purposes of purchase, sale, acquisition, or settlement are
responsible for the accurate weighing of such poultry. They shall supply
copies of the instructions in this section to all persons who perform
weighing operations for them and direct such persons to familiarize
themselves with the instructions and to comply with them at all times.
This section shall also apply to any additional weighers who are
employed at any time. Weighers must acknowledge their receipt of these
instructions and agree to comply with them by signing in duplicate, a
form provided by the Packers and Stockyards Programs, Grain Inspection,
Packers and Stockyards Administration. One copy of this form is to be
filed with a regional office of the Packers and Stockyards Programs,
Grain Inspection, Packers and Stockyards Administration and the other
copy retained by the Agency employing the weighers. The following
instructions shall be applicable to the weighing of live poultry on all
scales, except that paragraph (c)(1) of this section is only applicable
to the weighing of live poultry on vehicle scales.
(a) Balancing the empty scale. (1) The scale shall be maintained in
zero balance at all times. The empty scale shall be balanced each day
before weighing begins and thereafter its zero balance shall be verified
before any poultry is weighed. In addition, the
[[Page 26]]
zero balance of the scale shall be verified whenever a weigher resumes
weighing duties after an absence from the scale.
(2) Before balancing the empty scale, the weigher shall notify
parties outside the scale house of his/her intention and shall be
assured that no persons or vehicles are in contact with the platform.
When the empty scale is balanced and ready for weighing, the weigher
shall so indicate by appropriate signal.
(3) Weighbeam scales shall be balanced by first seating each poise
securely in its zero notch and then moving the balance ball to such
position that a correct zero balance is obtained. A scale equipped with
a balance indicator is correctly balanced when the indicator comes to
rest in the center of the target area. A scale not equipped with a
balance indicator is correctly balanced if the weighbeam, when released
at the top or bottom of the trig loop, swings freely in the trig loop in
such manner that it will come to rest at the center of the trig loop.
(4) Dial scales shall be balanced by releasing all drop weights and
operating the balance ball or other balancing device to obtain a correct
zero balance. The indicator must visibly indicate zero on the dial
reading face and the ticket printer must record a correct zero balance.
``Balance tickets'' shall be filed with other scale tickets issued on
that date.
(5) Electronic digital scales should be properly warmed up before
use. In most cases it is advisable to leave the electric power on
continuously. The zero balance shall be verified by recording the zero
balance on a scale ticket. The main indicating element and the remote
visual weight display shall indicate zero when the balance is verified.
The proper procedure for balancing this type of scale will vary
according to the manufacturer. Refer to the operator's manual for
specific instructions.
(6) A balance ball or other balancing device shall be operated only
when balancing the empty scale and shall not be operated at any time or
for any other purpose.
(7) The time at which the empty scale is balanced or its zero
balance verified shall be marked on scale tickets or other permanent
records.
(b) Sensitivity control. (1) A scale must be sensitive in response
to platform loading if it is to yield accurate weights. It, therefore,
is the duty of a weigher to assure himself that interferences, weighbeam
friction, or other factors do not impair sensitivity. He shall satisfy
himself, at least twice each day, that the scale is sufficiently
sensitive, and, if the following requirements are not met, he must
report the facts to his superior or employer immediately.
(2) A weighbeam scale with a balance indicator is sufficiently
sensitive if, when the scale is balanced with the indicator at the
center of the target, movement of the fractional poise one graduation
will change the indicator rest point (\1/4\) inch (0.25) or the width of
the central target area, whichever is greater.
(3) A weighbeam scale without a balance indicator is sufficiently
sensitive if, when the scale is balanced with the weighbeam at the
center of the trig loop, movement of the fractional poise two
graduations will cause the weighbeam to come to rest at the bottom of
the trig loop.
(4) Adjustable damping devices are incorporated in balance
indicators and in dial scales to absorb the effects of load impact and
to bring the indicator to rest. The weigher must be familiar with the
location and adjustment of these damping devices and keep them so
adjusted that when the indicator is displaced from a position of rest,
it will oscillate freely through at least one complete cycle of movement
before coming to rest at its original position.
(5) Friction at weighbeam bearings may reduce the sensitiveness of
the scale, cause sluggish weighbeam action and affect weighing accuracy.
A weigher must inspect the weighbeam assembly daily to make certain that
there is clearance between the weighbeam and the pivot bearings.
(6) Interferences or binding of the scale platform, or other
``live'' parts of the scale, are common causes of weighing inaccuracy. A
weigher shall satisfy himself, at the beginning of each weighing period,
that all such ``live'' parts have sufficient clearance to prevent
interference.
[[Page 27]]
(c) Weighing the load. (1) Vehicle scales used to weigh live poultry
shall be of sufficient length and capacity to weigh an entire vehicle as
a unit; provided, that a trailer may be uncoupled from a tractor and
weighed as a single unit. Before weighing a vehicle, either coupled or
uncoupled, the weigher shall be assured that the entire vehicle is on
the scale platform and that no persons are on the scale platform.
(i) On a weighbeam scale with a balance indicator the weight of a
vehicle shall be determined by moving the poises to such positions that
the indicator will come to rest within the central target area.
(ii) On a weighbeam scale without a balance indicator the weight
shall be determined by moving the poises to such positions that the
weighbeam, when released from the top or bottom of the trig loop, will
swing freely in the trig loop and come to rest at the approximate center
of the trig loop.
(iii) On a dial scale the weight of a vehicle is indicated
automatically when the indicator revolves around the dial face and comes
to rest.
(iv) On an electronic digital scale the weight of a vehicle is
indicated automatically when the weight value indicated is stable.
(2) The correct weight is the value in pounds indicated by a
weighbeam, dial or digital scale when a stable load balance is obtained.
In any case, the weigher should concentrate on the beam tip, balance
indicator, dial or digital indicator while weighing and not be concerned
with reading the visible weight indications until a stable load balance
is obtained. On electronic digital scales, the weigher should
concentrate on the pulsing or flickering of weight values to assure that
the unit indicates a stable weight before activating the print button.
(d) Recording the weight. (1) The gross or tare weight shall be
recorded immediately after the load balance is obtained and before any
poises are moved or load removed from the scale platform. The weigher
shall make certain that the printed weight record agrees with the weight
value visibly indicated on the weighbeam, dial or digital indicator when
correct load balance is obtained. The weigher shall also assure that the
printed weight value is sufficiently distinct and legible.
(2) The weight printing device on a scale shall be operated only to
produce a printed or impressed record of the weight while the load is on
the scale and correctly balanced. If the weight is not printed clearly
and correctly, the ticket shall be marked void and a new one printed
before the load is removed from the scale.
(e) Weigher's responsibilities. (1) The primary responsibility of a
weigher is to determine and record the true weight of live poultry
without prejudice or favor to any person or agency and without regard
for poultry ownership, price, condition, shrink, or other
considerations. A weigher shall not permit the representations or
attitudes of any persons or agencies to influence their judgment or
action in performing his/her duties.
(2) Scale tickets issued shall be serially numbered and used in
numerical sequence. Sufficient copies shall be executed to provide a
copy to all parties to the transaction. Unused scale tickets or those
which are partially executed shall not be left exposed or accessible to
other parties. All such tickets shall be kept under lock when the
weigher is not at his duty station.
(3) Accurate weighing and weight recording require that a weigher
shall not permit operations to be hurried to the extent that inaccurate
weights or incorrect weight records may result. The gross, tare and net
weights must be determined accurately to the nearest minimum graduation.
Manual operations connected with balancing, weighing, and recording
shall be performed with the care necessary to prevent damage to the
accurately machined and adjusted parts of weighbeams, poises, and
printing devices. Rough handling of these parts shall be avoided.
(4) Poultry growers, live poultry dealers, sellers, or others having
legitimate interest in a load of poultry are entitled to observe the
balancing, weighing, and recording procedures. A weigher shall not deny
such persons that right or withhold from them any information pertaining
to the weight. The weigher shall check the zero balance of the scale or
reweigh a load of
[[Page 28]]
poultry when requested by such parties or duly authorized
representatives of the administrator.
(f) General precautions. (1) The poises of weighbeam scales are
carefully adjusted and sealed to a definite weight at the factory and
any change in that weight seriously affects weighing accuracy. A
weigher, therefore, shall observe if poise parts are broken, loose or
lost or if material is added to a poise and shall report any such
condition to his/her superior or employer. Balancing or weighing shall
not be performed while a scale ticket is in the slot of a weighbeam
poise.
(2) Stops are provided on scale weighbeams to prevent movement of
poises back of the zero graduation when balancing or weighing. When the
stops become worn or broken and allow a poise to be set behind the zero
position, this condition must be reported by the weigher to their
superior or employer and corrected without delay.
(3) Motion detection circuits are a part of electronic scales. They
are designed to prevent the printing of weight values if the load has
not stabilized within prescribed limits. The weighmaster's duty is to
print the actual weight of the load within these limits. This requires
printing the actual weight of the load, not one of the other weights
that may be within the motion detection limits.
(4) Foreign objects or loose material in the form of nuts, bolts,
washers, or other material on any part of the weighbeam assembly,
including the counter-balance hanger or counter-balance weights, are
potential sources of weighing error. Loose balancing material must be
enclosed in the shot cup of the counter-balance hanger and counter-
balance weights must not be of the slotted type which can readily be
removed.
(5) Whenever, for any reason, a weigher has reason to believe that a
scale is not functioning properly or not yielding correct weight values,
the weigher shall discontinue weighing, report the facts to the parties
responsible for scale maintenance and request inspection, test or repair
of the scale.
(6) When a scale has been adjusted, modified, or repaired in any
manner which can affect the accuracy of weighing or weight recording,
the weigher shall not use the scale until it has been tested and
inspected and found to be accurate.
[37 FR 4955, Mar. 8, 1972, as amended at 61 FR 36282, July 10, 1996]
Sec. 201.200 Sale of livestock to a packer on credit.
(a) No packer whose average annual purchases of livestock exceed
$500,000 shall purchase livestock on credit, and no dealer or market
agency acting as an agent for such a packer shall purchase livestock on
credit, unless: (1) Before purchasing such livestock the packer obtains
from the seller a written acknowledgment as follows:
On this date I am entering into a written agreement for the sale of
livestock on credit to ----------------, a packer, and I understand that
in doing so I will have no rights under the trust provisions of section
206 of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 196,
Pub. L. 94-410), with respect to any such credit sale. The written
agreement for such selling on credit
Covers a single sale.
Provides that it will remain in effect until (date).
Provides that it will remain in effect until canceled in writing by
either party.
(Omit the provisions not applicable.)
Date____________________________________________________________________
Signature_______________________________________________________________
(2) Such packer retains such acknowledgment, together with all other
documents, if any, setting forth the terms of such credit sales on which
the purchaser and seller have agreed, and such dealer or market agency
retains a copy thereof, in his records for such time as is required by
any law, or by written notice served on such person by the
Administrator, but not less than two calendar years from the date of
expiration of the written agreement referred to in such acknowledgment;
and
(3) Such seller receives a copy of such acknowledgment.
(b) Purchasing livestock for which payment is to be made by a draft
which is not a check, shall constitute purchasing such livestock on
credit within the meaning of paragraph (a) of this section. (See also
Sec. 201.43(b)(1).)
(c) The provisions of this section shall not be construed to permit
any
[[Page 29]]
transaction prohibited by Sec. 201.61(a) relating to financing by market
agencies selling on a commission basis.
(Approved by the Office of Management and Budget under control number
0590-0001)
(Sec. 401, 42 Stat. 168 (7 U.S.C. 221); sec. 409, as added by sec. 7, 90
Stat. 1250 (7 U.S.C 228b); 7 CFR 2.17, 2.54; 42 FR 35625; Pub. L. 96-
511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.); 7 U.S.C. 222 and 228 and 15
U.S.C. 46)
[42 FR 49929, Sept. 8, 1977, as amended at 49 FR 39516, Oct. 9, 1984; 54
FR 37094, Sept. 7, 1989]
PART 202--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS AND STOCKYARDS ACT--Table of Contents
Rules of Practice Applicable to Rate Proceedings
Sec.
202.1 Applicability of other rules.
202.2 Definitions.
202.3 Institution of proceedings.
202.4 Answer and reply.
202.5 Hearing.
202.6 Taking no position on the merits.
202.7 Modification or vacation of final order.
Rules of Practice Applicable to Reparation Proceedings
202.101 Rule 1: Meaning of words.
202.102 Rule 2: Definitions.
202.103 Rule 3: Beginning a reparation proceeding.
202.104 Rule 4: Agency action.
202.105 Rule 5: Filing; time for filing; service.
202.106 Rule 6: Answer.
202.107 Rule 7: Reply.
202.108 Rule 8: Docketing of proceeding.
202.109 Rule 9: Depositions.
202.110 Rule 10: Prehearing conference.
202.111 Rule 11: Hearing, oral or written.
202.112 Rule 12: Oral hearing.
202.113 Rule 13: Written hearing.
202.114 Rule 14: Post-hearing procedure.
202.115 Rule 15: Submission for final consideration.
202.116 Rule 16: Issuance of order.
202.117 Rule 17: Petition to reopen a hearing; to rehear or reargue a
proceeding; to reconsider an order; or to set aside a default
order.
202.118 Rule 18: Presiding officer.
202.119 Rule 19: Fees of witnesses.
202.120 Rule 20: Official notice.
202.121 Rule 21: Intervention.
202.122 Rule 22: Ex parte communications.
202.123 Rule 23: Action by Secretary.
Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e), 2.56.
Source: 43 FR 30510, July 14, 1978, unless otherwise noted.
Rules of Practice Applicable to Rate Proceedings
Source: Sections 202.1 through 202.7 appear at 53 FR 51236, Dec. 21,
1988, unless otherwise noted.
Sec. 202.1 Applicability of other rules.
The Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary Under Various Statutes, 7 CFR part 1,
subpart H, are applicable to all rate proceedings under Sections 304,
305, 306, 307 and 310 of the Packers and Stockyards Act, 1921, as
amended, 7 U.S.C. 205, 206, 207, 208 and 211, except insofar as those
Rules are in conflict with any provision herein.
Sec. 202.2 Definitions.
As used in these rules:
(a) Rate proceeding means a proceeding involving the determination
and prescription of any rate or charge made or proposed to be made for
any stockyard service furnished at a stockyard by a stockyard owner or
market agency, or a proceeding involving any rule, regulation or
practice affecting any such rate or charge; and
(b) Administrator means the Administrator of the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
(GIPSA), or any officer or employee of GIPSA to whom authority has
heretofore been delegated, or to whom authority may hereafter be
delegated, to act for the Administrator.
Sec. 202.3 Institution of proceedings.
(a) Informal complaint. Any interested person desiring to complain
of the lawfulness of any rate or charge made or proposed to be made for
any stockyard service furnished at a stockyard by a stockyard owner or
market agency, or rule, regulation or practice affecting any such rate
or charge, may file an informal complaint with the Administrator.
(b) Investigation. If there appears to be any reasonable ground for
doing so, the Administrator will investigate the
[[Page 30]]
matter complained of. If the Administrator reasonably believes that
there are not sufficient facts to form the basis for further proceeding,
the matter may be dropped. If it is dropped, the person filing the
informal complaint will be informed.
(c) Status of person filing. A person filing an informal complaint
will be a party to a rate proceeding if the Administrator files such
person's informal complaint as a formal complaint, or if the Judge
permits such person to intervene upon written application.
(d) Formal complaint. A rate proceeding may be instituted only upon
filing of a formal complaint by the Administrator. A formal complaint
may be filed on the initiative of the Administrator, or on the basis of
an informal complaint, or by filing the informal complaint as a formal
complaint. A formal complaint filed by the Administrator, or a summary
thereof, will be published in the Federal Register, together with notice
of the time by which, and the place where, any interested person may
file a written request to be heard.
Sec. 202.4 Answer and reply.
Respondent is not required to file an answer. If an answer is filed,
complainant is not required to file a reply.
Sec. 202.5 Hearing.
The hearing will be oral unless all parties waive oral hearing. It
will be written if not oral. Notice of the date, time and place of oral
hearing, or of the date and place for filing of written submissions in a
written hearing, will be served on the Administrator and the respondent,
and on such other persons as have requested in writing to be heard.
Sec. 202.6 Taking no position on the merits.
The proceeding may be instituted by filing of the informal complaint
as a formal complaint, and the Administrator may take no position on the
merits of the case.
Sec. 202.7 Modification or vacation of final order.
(a) Informal petition. Any interested person may file an informal
petition to modify or vacate a final order at any time. Any such
petition must be filed with the Administrator, be based on matters
arising after the issuance of the final order, and set forth such
matters, and the reasons or conditions relied on, with such
particularity as is practicable. Any such informal petition will be
handled as otherwise provided for an informal complaint.
(b) Formal motion. A final order may be modified or vacated at any
time only upon filing of a formal motion by the Administrator. Such a
motion may be filed on the initiative of the Administrator, on the basis
of an informal petition, or by filing of an informal petition as a
formal motion.
(c) Publication. If the modification or vacation sought would
involve an increase of a rate or charge lawfully prescribed by the
Secretary, or involve a rate or charge in addition to what is specified
in the final order, or involve a regulation or practice so affecting
such a rate or charge, the formal motion, or a summary thereof, will be
published in the Federal Register, together with notice of the place,
and the time by which, any interested person may file a written request
to be heard.
(d) Proceedings. Proceedings upon such a formal motion will be as
otherwise provided for a formal complaint.
Rules of Practice Applicable to Reparation Proceedings
Sec. 202.101 Rule 1: Meaning of words.
In these rules, words in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 202.102 Rule 2: Definitions.
Terms defined in the Act shall mean the same in these rules as in
the Act. In addition, and except as may be provided otherwise in these
rules:
Act means the Packers and Stockyards Act, 1921, and legislation
supplementary thereto and amendatory thereof, 7 U.S.C. 181 et seq.;
Agency means those divisions and offices of the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
of the Department which are charged with administration of the Act;
[[Page 31]]
Agency Head means the Administrator, Grain Inspection, Packers and
Stockyards Administration (Packers and Stockyards Programs) of the
Department, or any officer or employee of the Agency to whom authority
is lawfully delegated to act for the Administrator;
Complainant means the party who files a complaint and claims
reparation, or on whose behalf a complaint is filed and reparation is
claimed, in a reparation proceeding;
Department means the United States Department of Agriculture;
Docketing of a reparation proceeding means transmittal of papers to
the Hearing Clerk and assignment of a docket number as provided in Rule
8, Sec. 202.108, of these rules;
Hearing means that part of a reparation proceeding which involves
the submission of evidence for the record and means either an oral or a
written hearing;
Hearing Clerk means the Hearing Clerk of the Department (see 7 CFR
2.25(a)(3));
Judicial Officer means the official of the Department delegated
authority by the Secretary, pursuant to the Act of April 4, 1940 (7
U.S.C. 450c-450g) and Reorganization Plan No. 2 of 1953, to perform the
function involved (see 7 CFR 2.35);
Mail means to deposit an item in the United States mail with postage
affixed and addressed as necessary to cause it to be delivered to the
address shown by ordinary mail, or by certified or registered mail if
specified.
Presiding Officer means any attorney who is employed in the Office
of the General Counsel of the Department and is assigned so to act in a
reparation proceeding;
Re-mail means to mail by ordinary mail to an address an item that
has been returned after being sent to the same address by certified or
registered mail.
Reparation proceeding or Proceeding means a proceeding under the Act
before the Secretary, in which an order for the payment of money is
claimed and in which the Secretary is not a party of record;
Report means the report to the Judicial Officer of the presiding
officer's recommended findings of fact and conclusions with respect to
all material issues of fact, law or discretion, as well as the reasons
or basis therefor, and order, in a reparation proceeding.
Respondent means the party against whom a complaint is filed and
reparation is claimed, in a reparation proceeding;
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the Department to whom authority is
lawfully delegated to act for the Secretary;
[43 FR 30510, July 14, 1978, as amended at 46 FR 60414, Dec. 10, 1981;
55 FR 41183, Oct. 10, 1990; 60 FR 8465, Feb. 14, 1995]
Sec. 202.103 Rule 3: Beginning a reparation proceeding.
(a) Filing. A reparation proceeding is begun by filing a complaint.
Any interested person (including any agency of a state or territory
having jurisdiction over persons subject to the Act in such state or
territory) desiring to complain of anything done or omitted to be done
by any stockyard owner, market agency, or dealer in violation of
sections 304, 305, 306, or 307, or of an order of the Secretary made
under title III, of the Act, may file a complaint to begin a reparation
proceeding.
(b) Form. The complaint must be in writing, state the facts of the
matter complained of, identify each person complained against
(respondent), and identify each person who complains against such
respondent and claims reparation from such respondent. It may be on a
printed form supplied by the Agency, or may be a formal document, or may
be a letter, mailgram, or telegram. It may be typewritten or
handwritten. If it is not on a printed form supplied by the Agency, the
Agency Head may, prior to docketing of the proceeding, recommend to the
complainant that an amended complaint be filed on such a printed form.
(c) Contents and attachments. So far as practicable, the complaint
should include the following items as applicable:
(1) Date and place where the alleged violation occurred;
(2) Quantity and quality of the livestock involved;
[[Page 32]]
(3) Whether a sale is involved and, if so, the date, sale price, and
amount actually paid and received;
(4) Whether a consignment is involved and, if so the date, reported
proceeds, gross, net;
(5) Amount of reparation claimed, and method of computation;
(6) Name and address of each partner or member, if a partnership or
joint venture is involved;
(7) Name and address of each person involved, including any agent
representing the complainant or the respondent in the transaction
involved;
(8) Other material facts, including terms of contract; and
(9) True copies of all available papers relating to the transaction
complained about, including shipping documents, letters, telegrams,
invoices, manifests, accounts of sales, and special contracts or
agreements, and checks and drafts. If it appears that any such item has
been omitted from the complaint, the Agency Head may, prior to docketing
of the proceeding, recommend to the complainant that such item be
supplied by written amendment to the complaint.
(d) Where to file. The complaint should be transmitted or delivered
to any area office of the Agency, or to the headquarters of the Agency
in Washington, DC, or delivered to any full time employee of the Agency.
(e) Time for filing. The complaint must be received by the
Department within 90 days after accrual of the cause of action alleged
in it. If a complaint is transmitted or delivered to an office of the
Department, it shall be deemed to be received by the Department when it
reaches such office. If a complaint is delivered to a full time employee
of the Agency, it shall be deemed to be received by the Department when
it is received by such employee.
(f) Amendment. The complaint may be amended at any time prior to the
close of an oral hearing or the filing of the last evidence in a written
hearing, except that:
(1) An amendment cannot add a respondent if it is filed more than 90
days after accrual of the cause of action against such respondent;
(2) An amendment cannot state a new and different cause of action if
it is filed more than 90 days after accrual of such new and different
cause of action; and
(3) After the first amendment, or after the filing of an answer by
the respondent, an amendment may not be filed without the written
consent of the respondent, or leave of the presiding officer, or, prior
to docketing of the proceeding, leave of the Agency Head. Any such
amendment must be filed in writing and signed by the complainant or the
attorney or representative of the complainant. If any such amendment is
filed before the initial service of the complaint on the respondent, it
shall be served on the respondent only if the complaint is served as
provided in Rule 4(b), Sec. 202.104(b). If any such amendment is filed
after such service, it shall be served on the respondent in any case.
(g) Withdrawal. At any time, a complainant may withdraw a complaint
filed by or on behalf of the same complainant, thus terminating the
reparation proceeding on such complaint unless a counterclaim or another
complaint is pending therein. If a complainant fails to cooperate with
the Secretary in the disposition of the matter complained of, such
complainant may be presumed to desire to withdraw the complaint filed by
or on behalf of such complainant, after service on the parties of
written notice of the facts of such failure and reasonable opportunity
for such complainant to state whether such presumption is correct.
[43 FR 30510, July 14, 1978, as amended at 60 FR 8465, Feb. 14, 1995]
Sec. 202.104 Rule 4: Agency action.
(a) Informal disposition. If there appears to be any reasonable
ground for doing so, the Agency Head shall investigate the matter
complained of. If the Agency Head reasonably believes that there are not
sufficient facts to form the basis for further proceeding, the matter
may be dropped, without prejudice to subsequent court action on the same
cause of action; if it is dropped, the person filing the complaint shall
be informed. If the statements in the complaint, and information
obtained in the
[[Page 33]]
investigation, seem to warrant such action, the Agency Head may make an
effort to obtain the consent of the parties to an amicable or informal
adjustment of the matter by communication with the parties or their
attorneys or representatives. Such communication may be written or oral
or both.
(b) Service of complaint. If the matter is not disposed of as
provided in paragraph (a), the complaint, together with any amendment
which has been filed, shall be served on the respondent with a notice
that an answer is required.
(c) Service of report of investigation. A report prepared by the
Agency, of its investigation of the matter complained of, and
supplements to such a report, may be served on the parties and made a
part of the record of the proceeding. Whether such a report or
supplement shall be prepared, and whether it shall be served on the
parties and made a part of the record, and its contents, shall be in the
discretion of the Agency Head. The Judicial Officer shall consider
information in such a report or supplement as part of the evidence in
the proceeding, to the extent that such information is relevant and
material to the proceeding. Any party may submit evidence in rebuttal of
such information as is provided generally in these rules for the
submission of evidence. Oral testimony, to the extent credible, shall be
given greater weight as evidence than such information.
Sec. 202.105 Rule 5: Filing; time for filing; service.
(a) Filing; number of copies. Prior to docketing of a proceeding
under these rules, all documents and papers other than the initial
complaint, filed in the proceeding, shall be filed with the Agency.
After such docketing of a proceeding, all such documents and papers
shall be filed with the hearing clerk, Provided, That all such documents
and papers, except a petition for disqualification of a presiding
officer, shall be filed with the presiding officer if the parties have
been served with written notice to do so. Each such document or paper
shall be filed in quadruplicate with an extra copy for each party in
excess of two, except as otherwise provided in these rules. Any document
or paper not filed in the required number of copies, except an initial
complaint, may be returned to the party filing it.
(b) Effective date of filing. Any document or paper other than an
initial complaint, filed in a proceeding under these rules, shall be
deemed to be filed at the time when it reaches the headquarters of the
Department in Washington DC, or, if authorized to be filed with an
officer or employee of the Department at any place outside the District
of Columbia, it shall be deemed to be filed at the time when it reaches
the office of such officer or employee.
(c) Additional time for filing. The time for the filing of any
document or paper other than an initial complaint, in a proceeding under
these rules, may upon request be extended as reasonable, by the agency
head prior to docketing of the proceeding, or by the presiding officer,
or by the judicial officer; notice of any extension of time shall be
served on all parties. After docketing of the proceeding, in all
instances in which time permits, notice of a request for extension of
time shall be given to parties other than the one filing such request,
with opportunity to submit views concerning the request.
(d) Computation of time. Saturdays, Sundays, and Federal holidays
shall be included in computing the time allowed for the filing of any
document or paper: Provided, That, when such time expires on a Saturday,
Sunday, or Federal holiday, such time shall be extended to include the
next following business day.
(e) Who shall make service. Copies of all documents or papers
required or authorized by the rules in this part to be filed with the
Agency shall be served on the parties by the Agency, and copies of all
documents or papers required or authorized by the rules in this part to
be filed with the Hearing Clerk shall be served on the parties by the
Hearing Clerk, unless any such document or paper is served by some other
employee of the Department, or by a U.S. marshal or deputy marshal, or
as otherwise provided herein, or as otherwise directed by the presiding
officer or Judicial Officer.
(f) Service on party. (1) Any complaint or other document initially
served on a person to make that person a party respondent in a
proceeding, a final order,
[[Page 34]]
or other document specifically ordered by the presiding officer or
Judicial Officer to be served by certified or registered mail, shall be
deemed to be received by any party to a proceeding on the date of
delivery by certified or registered mail to the last known principal
place of business of such party, last known principal place of business
of the attorney or representative of record of such party, or last known
residence of such party if an individual, provided that, if any such
document or paper is sent by certified on registered mail but is
returned marked by the postal service as unclaimed or refused, it shall
be deemed to be received by such party on the date of remailing by
ordinary mail to the same address.
(2) Any document or paper, other than one specified in paragraph
(f)(1) of this section or written questions for a deposition as provided
in Sec. 202.109(c)(3), shall be deemed to be received by any party to a
proceeding on the date of mailing by ordinary mail to the last known
principal place of business of such party, last known principal place of
business of the attorney or representative or record of such party, or
last known residence of such party if an individual.
(3) Any document or paper served other than by mail on any party to
a proceeding shall be deemed to be received by such party on the date
of:
(i) Delivery to any responsible individual at, or leaving in a
conspicuous place at, the last known principal place of business of such
party, last known principal place of business of the attorney or
representative of record of such party, or last known residence of such
party if an individual, or
(ii) Delivery to such party if an individual, to an officer or
director of such party if a corporation, or to a member of such party if
a partnership, at any location.
(g) Service on another. Any subpoena or other document or paper
served on any person other than a party to a proceeding shall be deemed
to be received by such person on the date of:
(1) Delivery by certified mail or registered mail to the last known
principal place of business of such person, last known principal place
of business of the attorney or representative of record of such person,
or last known residence of such person if an individual;
(2) Delivery other than by mail to any responsible individual at, or
leaving in a conspicuous place at, any such location; or
(3) Delivery to such party if an individual, to an officer or
director of such party if a partnership, at any location.
(h) Proof of service. Any of the following, in the possession of the
Department, showing such service, shall be deemed to be accurate:
(1) A certified or registered mail receipt returned by the postal
service with a signature;
(2) An official record of the postal service;
(3) An entry on a docket record or a copy placed in a docket file by
the Hearing Clerk of the Department or by an employee of the Hearing
Clerk in the ordinary course of business;
(4) A certificate of service, which need not be separate from and
may be incorporated in the document or paper of which it certifies
service, showing the method, place and date of service in writing and
signed by an individual with personal knowledge thereof, Provided that
such certificate must be verified by oath or declaration under penalty
of perjury if the individual certifying service is not a party to the
proceeding in which such document or paper is served, an attorney or
representative of record for such a party, or an official or employee of
the United States or of a State of political subdivision thereof.
[43 FR 30510, July 14, 1978, as amended at 55 FR 41183, Oct. 10, 1990;
60 FR 8465, Feb. 14, 1995]
Sec. 202.106 Rule 6: Answer.
(a) Filing and service. Within 20 days after service on a
respondent, of a complaint or amendment of a complaint, such person
shall file an answer in writing, signed by such person or by the
attorney or representative of such person. If a respondent desires an
oral hearing, a request for it should be included with the answer of
such person. If any answer or amended answer is filed, it shall be
served on the complainant.
[[Page 35]]
(b) Required contents. If a respondent desires to make a defense,
the answer of such person shall contain a precise statement of the facts
which constitute the grounds of defense, and shall specifically admit,
deny, or explain each of the allegations of the complaint, except that,
if the respondent is without knowledge, such answer shall state that. If
a respondent does not desire to make a defense, the answer of such
person shall contain an admission of all the allegations of the
complaint, or an admission of liability to the complainant in the full
amount claimed by the complainant as reparation, or both. An answer may
be stricken for failure to comply with these requirements; notice of an
order so striking an answer shall be served on the parties; within 20
days after service on a respondent of such a notice, such person shall
file an answer which complies with these requirements.
(c) Setoff, counterclaim or cross-claim. The answer may assert a
setoff, counterclaim, or cross-claim, or any combination thereof. No
counterclaim or cross-claim shall be considered unless it is based on a
violation for which the act authorizes reparation to be ordered to be
paid, and filed within 90 days after accrual of the cause of action
alleged therein: Provided, That a counterclaim not filed within such
time limit may be considered if based on a transaction complained of in
the complaint. Any cross-claim asserted against a co-respondent, based
on a violation for which the act authorizes reparation to be ordered to
be paid, and filed within 90 days after accrual of the cause of action
alleged therein, shall be served on such person as a complaint; within
20 days after such service, such person shall file an answer thereto in
compliance with the above requirements for an answer to a complaint.
(d) Failure to file. If a respondent fails to file an answer as
required above, such persons shall be deemed to have admitted all the
allegations of the complaint or cross-claim against such person, and to
have consented to the issuance of a final order in the proceeding, based
on all evidence in the record. For this purpose, the evidence in the
record may include information contained in a report of investigation
made a part of the record pursuant to rule 4(c), Sec. 202.104(c), and
evidence received in a hearing, oral or written, held subsequent to the
expiration of the time for filing such answer, but shall not be limited
to such information and evidence. Such a respondent shall not be
entitled to service provided in these rules, of any notice or document
except the final order in the proceeding.
Sec. 202.107 Rule 7: Reply.
(a) Filing and service. If the answer asserts a counterclaim or a
setoff, the complainant may file a reply in writing within 20 days after
service of the answer on such person. If any reply or amended reply is
filed, it shall be served on the respondent.
(b) Contents. The reply shall be confined strictly to the matters
alleged in the counterclaim or setoff asserted in the answer. It shall
contain a precise statement of the facts which constitute the grounds of
defense to the counterclaim or setoff and shall specifically admit,
deny, or explain each of the allegations of the answer constituting such
counterclaim or setoff, except that, if the complainant is without
knowledge, the reply shall state that.
(c) Failure to file. If no reply is filed, the allegations of the
answer shall be regarded as denied.
[43 FR 30510, July 14, 1978, as amended at 55 FR 41184, Oct. 10, 1990]
Sec. 202.108 Rule 8: Docketing of proceeding.
Promptly following receipt of the answer, or the reply (if the
answer asserts a counterclaim or a setoff), or following the expiration
of the period of time prescribed above for the filing of the answer or
of the reply, the agency head shall transmit all of the papers which
have been filed in the proceeding (including the investigation report if
any has been served on the parties) to the hearing clerk, who shall
assign a docket number to the proceeding. Thereafter the proceeding
shall be referred to by such number. The hearing clerk shall promptly
transmit all such papers to the Office of the General Counsel for
assignment of a presiding officer.
[[Page 36]]
Sec. 202.109 Rule 9: Depositions.
(a) Application. Any party may file an application for an order for
the taking of testimony by deposition, at any time after docketing of a
proceeding and before the close of an oral hearing or the filing of such
party's evidence in a written hearing therein. The application shall set
forth: (1) The name and address of the proposed deponent; (2) the name
and address of the person (referred to in this section as the
``officer'') before whom the proposed examination is to be made; (3) the
reasons why such deposition should be taken, which must show that it may
be able to be used as set forth in paragraph (i) of this section; (4)
whether the proposed examination is to be on interrogatories or oral;
and (5) if oral, a suggested time and place where the proposed
deposition is to be made and a suggested manner in which the proposed
deposition is to be conducted (telephone, audio-visual
telecommunication, or by personal attendance of the individuals who are
expected to participate in the deposition). The application for an order
for the taking of testimony by deposition shall be made in writing,
unless it is made orally on the record at an oral hearing.
(b) Response; service. If any such application is made orally on the
record at an oral hearing, each party other than the applicant, present
at such hearing, may respond to it orally. If any such application is in
writing it shall be served on each party other than the applicant, and
each such other party shall have not less than 20 days, from the date of
service on such party of the application, to file a written response to
it.
(c) Written questions (interrogatories). (1) If the examination will
be oral, parties who will not be present or represented at it may file
written questions with the officer prior to the time of the examination.
(2) The presiding officer may direct, or the parties may agree, that
the deposition, if taken, shall be taken by means of written questions.
If the presiding officer finds, upon the protest of a party to the
proceeding, that such party has a principal place of business or
residence more than 100 miles from the place of the examination and that
it would constitute an undue hardship on such party to be present or
represented at an oral examination at such place, the deposition, if
taken, shall be taken by means of written questions. In any such case,
the presiding officer shall state on the record at the oral hearing
that, or shall serve the parties with notice that, the deposition, if
taken, shall be taken by means of written questions.
(3) If the examination is conducted by means of written questions,
copies of the applicant's questions must be received by the other party
to the proceeding and the officer at least 10 days prior to the date set
for the examination unless otherwise agreed, and any cross questions of
a party other than the applicant must be received by the applicant and
the officer at any time prior to the time of the examination.
(d) Order. (1) The presiding officer, if satisfied that good cause
for taking the deposition is present, may order the taking of the
deposition.
(2) The order shall be served on the parties and shall include:
(i) The name and address of the officer before whom the deposition
is to be made;
(ii) The name of the deponent;
(iii) Whether the deposition will be oral or on written questions;
(iv) If the deposition is oral, the manner in which the deposition
is to be conducted (telephone, audio-visual telecommunication, or
personal attendance of those who are to participate in the deposition);
and
(v) The time, which shall not be less than 20 days after the
issuance of the order, and place.
(3) The officer, time, place, and manner of the deposition as stated
in the presiding officer's order need not be the same as the officer,
time, place, and manner suggested in the application.
(4) The deposition shall be conducted in the manner (telephone,
audio-visual telecommunication, or personal attendance of those who are
to participate in the deposition) agreed to by the parties.
(5) If the parties cannot agree on the manner in which the
deposition is to be conducted:
[[Page 37]]
(i) The deposition shall be conducted by telephone unless the
presiding officer determines that conducting the deposition by audio-
visual telecommunication:
(A) Is necessary to prevent prejudice to a party;
(B) Is necessary because of a disability of any individual expected
to participate in the deposition; or
(C) Would cost less than conducting the deposition by telephone.
(ii) If the deposition is not conducted by telephone, the deposition
shall be conducted by audio-visual telecommunication unless the
presiding officer determines that conducting the deposition by personal
attendance of any individual who is expected to participate in the
deposition:
(A) Is necessary to prevent prejudice to a party;
(B) Is necessary because of a disability of any individual expected
to participate in the deposition; or
(C) Would cost less than conducting the deposition by telephone or
audio-visual telecommunication.
(e) Qualifications of officer. No deposition shall be made except
before an officer authorized by the law of the United States or by the
law of the place of the examination to administer oaths, or before an
officer authorized by the Secretary to administer oaths, or before the
presiding officer. No deposition shall be made before an officer who is
a relative (within the third degree by blood or marriage), employee,
attorney, or representative of any party (or an employee of an attorney
or representative of any party), or who is financially interested in the
result of the proceeding.
(f) Procedure on examination. The deponent shall be examined under
oath or affirmation, and the testimony of the deponent shall be recorded
by the officer, or by some person under the direction and in the
presence of the officer. If the examination is on interrogatories, they
shall be propounded by the officer. If the examination is oral, the
deponent shall be examined first by the party at whose instance the
deposition is taken, or the representative of such party, and shall be
subject to cross-examination by any other party or the representative
thereof who is present at the examination; the officer shall propound
any interrogatories filed with the officer by parties not present or
represented at the examination.
(g) Certification and filing by officer. The officer shall certify
on the transcript or recording that the deponent was duly sworn by the
officer and that the transcript or recording is a true record of the
deponent's testimony, with such exceptions as the certificate shall
specify. The officer shall then securely seal the transcript or
recording, together with three copies of the transcript or recording,
with an extra copy for each party in excess of two, in an envelope, and
mail the same by registered or certified mail to the presiding officer.
(h) Service; correction. After the transcript or recording is
received by the presiding officer, it shall promptly be served on all
parties. Any party, within 20 days after such service, may file a
written motion proposing corrections to the transcript or recording. Any
such motion shall be served on each party other than the one filing it,
who shall have 10 days to file a written response to it. Any such
response shall be served on each party other than the one filing it.
Such documents, if filed, shall be a part of the record of the
proceeding if any portion of the transcript or recording is made a part
of the record. All portions of the transcript or recording which are not
referred to in any such motion shall be presumed to be accurate except
for obvious typographical errors.
(i) Use. If a written hearing is held, a transcript or recording, of
a deposition ordered and taken in accord with this section, may be made
a part of the record as evidence by any party, by written motion filed
with such party's evidence. If an oral hearing is held, except as
otherwise provided in these rules, such a transcript or recording may be
made a part of the record as evidence, on written motion filed by any
party, or oral motion of any party made at the oral hearing, if no party
objects after reasonable notice and opportunity to do so, or if the
presiding officer finds that the evidence is otherwise admissible and:
(1) That the witness is dead;
[[Page 38]]
(2) That the witness is unable to attend or testify for any good
reason including age, sickness, infirmity, or imprisonment;
(3) That the party offering the transcript or recording has tried
without success to procure the attendance of the witness by subpoena; or
(4) That such exceptional circumstances exist as to make it
desirable, in the interests of justice and with due regard to the
importance of presenting the testimony orally before the presiding
officer, to allow the transcript or recording to be used.
If any portion of a transcript or recording of a deposition is made a
part of the record as evidence on motion of any party, any other party
may make a part of the record as evidence the remainder, or any other
portion, of the transcript or recording.
(j) Expenses. Fees and reimbursements payable to an officer taking a
deposition, or other person recording the testimony in the deposition,
shall be paid by the party at whose instance the deposition is taken.
(k) Subpoenas. No subpoena can issue, to compel attendance,
testimony, or production of documentary evidence, at an examination
under this rule 9.
(l) Agreement of parties. In any case, any transcript or recording
of any deposition, or any part of such a transcript or recording, may be
made a part of the record as evidence by agreement of the parties other
than a party failing to file an answer as required in these rules.
[43 FR 30510, July 14, 1978, as amended at 55 FR 41184, Oct. 10, 1990;
60 FR 8465, Feb. 14, 1995]
Sec. 202.110 Rule 10: Prehearing conference.
(a) The presiding officer, at any time prior to the commencement of
the hearing, may request the parties or their counsel to appear at a
conference before the presiding officer to consider:
(1) The simplification of issues;
(2) The necessity of amendments to pleadings;
(3) The possibility of obtaining stipulations of fact and of the
authenticity, accuracy, and admissibility of documents, which will avoid
unnecessary proof;
(4) The limitation of the number of expert or other witnesses;
(5) The negotiation, compromise, or settlement of issues;
(6) The exchange of copies of proposed exhibits;
(7) The identification of documents or matters of which official
notice may be requested;
(8) A schedule to be followed by the parties for completion of the
actions decided at the conference; or
(9) Such other matters as may expedite and aid in the disposition of
the proceeding.
No transcript or recording of such a conference shall be made, but the
presiding officer shall prepare and file for the record a written
summary if any action is taken at the conference, which shall
incorporate any written stipulations or agreements made by the parties
at the conference or as a result of the conference.
(b) Manner of the prehearing conference. (1) The prehearing
conference shall be conducted by telephone or correspondence unless the
presiding officer determines that conducting the prehearing conference
by audio-visual telecommunication:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual expected
to participate in the prehearing conference; or
(iii) Would cost less than conducting the prehearing conference by
telephone or correspondence. If the presiding officer determines that a
prehearing conference conducted by audio-visual telecommunication would
measurably increase the United States Department of Agriculture's cost
of conducting the prehearing conference, the prehearing conference shall
be conducted by personal attendance of any individual who is expected to
participate in the prehearing conference, by telephone, or by
correspondence.
(2) If the prehearing conference is not conducted by telephone or
correspondence, the prehearing conference shall be conducted by audio-
visual telecommunication unless the presiding officer determines that
conducting the
[[Page 39]]
prehearing conference by personal attendance of any individual who is
expected to participate in the prehearing conference:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual expected
to participate in the prehearing conference; or
(iii) Would cost less than conducting the prehearing conference by
audio-visual telecommunication.
[43 FR 30510, July 14, 1978, as amended at 60 FR 8466, Feb. 14, 1995]
Sec. 202.111 Rule 11: Hearing, oral or written.
(a) When held. A hearing, oral or written, shall be held unless:
(1) Each respondent admits or is deemed to admit sufficient
allegations of the complaint to support the full amount claimed by the
complainant as reparation;
(2) Each respondent admits liability to the complainant in the full
amount claimed by the complainant as reparation;
(3) Before a hearing has been completed the parties agree in writing
that the proceeding may be decided on the basis of the record as it
stands at the time such agreement is filed; or
(4) Before a hearing has been completed the parties settle their
dispute or the complainant withdraws the complaint.
(b) Whether oral or written. The hearing provided for in paragraph
(a) of this section shall be oral if:
(1) $10,000 or more is in controversy and any respondent files a
written request for an oral hearing with such respondent's answer; or
(2) $10,000 or more is in controversy and any complainant files a
written request for an oral hearing on or before the 20th day after
service on such complainant of notice that no respondent has filed a
timely request for an oral hearing; or
(3) Less than $10,000 is in controversy and the presiding officer
determines, upon written request by any party thereto, that an oral
hearing is necessary to establish the facts and circumstances giving
rise to the controversy. The hearing shall be written if not oral.
(c) Withdrawal of request. If $10,000 or more is in controversy and
a party has timely filed a request for oral hearing, such party may
withdraw such request at any time prior to completion of an oral
hearing. If such a withdrawal leaves no pending request for oral hearing
in the proceeding, and if the presiding officer has not decided that the
hearing should be oral, each other party shall be served with notice of
this and shall be given 20 days to request an oral hearing. If any party
files a request for oral hearing in such time, the hearing shall be oral
in accordance with paragraph (b) of this section.
(d) Presiding Officer's recommendation. The presiding officer may
recommend voluntary withdrawal of a request for oral hearing, timely
filed. Declining to make such withdrawal shall not affect the rights or
interests of any party.
(e) Representation. Any party may appear in an oral hearing, or file
evidence in a written hearing, in person or by counsel or other
representative. For unethical or contumacious conduct in or in
connection with a proceeding, the presiding officer may preclude a
person from further acting as attorney or representative for any party
to the proceeding; any such order of the presiding officer shall be
served on the parties; an appeal to the Judicial Officer may be taken
from any such order immediately.
[51 FR 42083, Nov. 21, 1986, as amended at 55 FR 41184, Oct. 10, 1990]
Sec. 202.112 Rule 12: Oral hearing.
(a) Time, place, and manner. (1) If and when the proceeding has
reached the stage where an oral hearing is to be held, the presiding
officer shall set a time, place, and manner for oral hearing. The time
shall be set based upon careful consideration to the convenience of the
parties. The place shall be set in accordance with paragraph (a)(2) of
this section and careful consideration to the convenience of the
parties. The manner in which the hearing is to be conducted shall be
determined in accordance with paragraphs (a)(3) and (a)(4) of this
section.
[[Page 40]]
(2) The place shall be set in accordance with paragraphs (e) and (f)
of section 407 of the Act, if applicable. In essence, under paragraphs
(e) and (f) of section 407 of the Act, if the complainant and the
respondent, or all of the parties, if there are more than two, have
their principal places of business or residence within a single unit of
local government, a single geographical area within a State, or a single
State, the oral hearing is to be held as near as possible to such places
of business or residence, depending on the availability of an
appropriate location for conducting the hearing. If the parties have
such places of business or residence distant from each other, then
paragraphs (e) and (f) of section 407 of the Act are not applicable.
(3) The oral hearing shall be conducted by audio-visual
telecommunication unless the presiding officer determines that
conducting the oral hearing by personal attendance of any individual who
is expected to participate in the hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual expected
to participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication. If the presiding officer determines that a hearing
conducted by audio-visual telecommunication would measurably increase
the United States Department of Agriculture's cost of conducting the
hearing, the hearing shall be conducted by personal attendance of any
individual who is expected to participate in the hearing or by
telephone.
(4) The presiding officer may, in his or her sole discretion or in
response to a motion by a party to the proceeding, conduct the hearing
by telephone if the presiding officer finds that a hearing conducted by
telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
(b) Notice. (1) A notice stating the time, place, and manner of oral
hearing shall be served on each party prior to the time of the oral
hearing. The notice shall state whether the oral hearing will be
conducted by telephone, audio-visual telecommunication, or personal
attendance of any individual expected to participate in the hearing. If
any change is made in the time, place, or manner of the oral hearing, a
notice of the change shall be served on each party prior to the time of
the oral hearing as changed, unless the change is made during the course
of an oral hearing and shown in the transcript or on the recording. Any
party may waive such notice, in writing, or orally on the record at an
oral hearing and shown in the transcript or on the recording.
(2) If the presiding officer orders an oral hearing, any party may
move that the hearing be conducted by telephone or personal attendance
of any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by
telephone or personal attendance of any individual expected to attend
the hearing must be accompanied by a memorandum in support of the motion
stating the basis for the motion and the circumstances that require the
hearing to be conducted other than by audio-visual telecommunication.
(3) Within 10 days after the presiding officer issues a notice
stating the manner in which the hearing is to be conducted, any party
may move that the presiding officer reconsider the manner in which the
hearing is to be conducted. Any motion for reconsideration must be
accompanied by a memorandum in support of the motion stating the basis
for the motion and the circumstances that require the hearing to be
conducted other than in accordance with the presiding officer's notice.
(c) Failure to appear. If any party to the proceeding, after being
duly notified, fails to appear at the oral hearing in person or by
counsel or other representative, such party shall be deemed to have
waived the right to add any further evidence to the record in the
proceeding, or to object to the admission of any evidence; if the
parties who are present are all adverse to such
[[Page 41]]
party, they shall have an election to present evidence, in whole or in
part, in the form of oral testimony before the presiding officer,
affidavits, or depositions.
(d) Order of proceeding. Complainant shall proceed first, if present
at the commencement of the oral hearing.
(e) Written statements of direct testimony. (1) Except as provided
in paragraph (e)(2) of this section, each party must exchange with all
other parties a written narrative verified statement of the oral direct
testimony that the party will provide at any hearing to be conducted by
telephone; the direct testimony of each employee or agent of the party
that the party will call to provide oral direct testimony at any hearing
to be conducted by telephone; and the direct testimony of each expert
witness that the party will call to provide oral direct testimony at any
hearing to be conducted by telephone. The written direct testimony of
witnesses shall be exchanged by the parties at least 10 days prior to
the hearing. The oral direct testimony provided by a witness at a
hearing conducted by telephone will be limited to the presentation of
the written direct testimony, unless the presiding officer finds that
oral direct testimony which is supplemental to the written direct
testimony would further the public interest and would not constitute
surprise.
(2) The parties shall not be required to exchange testimony in
accordance with this paragraph if the hearing is scheduled to begin less
than 20 days after the presiding officer's notice stating the time of
the hearing.
(f) Evidence--(1) In general. The testimony of witnesses at an oral
hearing shall be on oath or affirmation and subject to cross-
examination. Any witness other than a party may be examined separately
and apart from all other witnesses, in the discretion of the presiding
officer. The presiding officer shall exclude evidence which is
immaterial, irrelevant, or unduly repetitious, or which is not of the
sort on which responsible persons are accustomed to rely, insofar as
practicable.
(2) Objections. If a party objects to the admission of any evidence
or to the limitation of the scope of any examination or cross-
examination or to any other ruling of the presiding officer, such party
shall state briefly the grounds of such objection, and the presiding
officer shall rule on it. The transcript or recording shall include
argument or debates on objections, except as ordered by the presiding
officer, and shall include the ruling of the presiding officer.
Objections not made before the presiding officer may not subsequently be
relied on in the proceeding.
(3) Offer of proof. Whenever evidence is excluded by the presiding
officer, the party offering such evidence may make an offer of proof.
The offer of proof shall consist of a brief statement, which shall be
included in the transcript or recording, describing the evidence
excluded. If the evidence consists of a brief oral statement, it shall
be included in full in the transcript or recording. If the evidence
consists of an exhibit, it shall be marked for identification and
inserted in the record. In either such event, if the judicial officer
decides that the presiding officer's ruling in excluding the evidence
was erroneous and prejudicial, such evidence shall be considered a part
of the record. If the taking of such evidence will consume a
considerable length of time at the hearing, the presiding officer shall
not allow the insertion of such evidence in full and, if the judicial
officer decides that the presiding officer's ruling in excluding the
evidence was erroneous and prejudicial, the hearing shall be reopened to
permit the taking of such evidence.
(4) Depositions and affidavits. Except as is otherwise provided in
these rules, admission of the deposition of any witness shall be subject
to the provisions of rule 9, Sec. 202.109, and affidavits, and
statements under penalty of perjury as provided in 28 U.S.C. 1746, Pub.
L. 94-550, may be admitted only if the evidence is otherwise admissible
and no party objects.
(5) Department records. A true copy of any written entry in any
record of the Department, made by an officer or employee of the
Department in the course of the official duty of such officer or
employee, and relevant to the issues involved in the hearing, shall be
admissible as prima facie evidence of the
[[Page 42]]
facts stated in the record of the Department, without the production of
such officer or employee.
(6) Exhibits. (i) For each exhibit offered by a party, copies in
addition to the original shall be filed with the presiding officer for
the use of all other parties to the proceeding, except where the
presiding officer finds that the furnishing of copies is impracticable.
The presiding officer shall tell the parties the number of copies
required to be filed, make the proper distribution of the copies, and
have this noted on the record.
(ii) If the testimony of a witness refers to any document, the
presiding officer shall determine whether it shall be produced at the
hearing and made a part of the record as an exhibit, or whether it shall
be incorporated in the record by reference.
(iii) If relevant and material matter is embraced in a document
containing irrelevant or immaterial matter, such irrelevant or
immaterial matter shall be designated by the party offering the document
in evidence, and shall be segregated and excluded, insofar as
practicable.
(g) Subpoenas--(1) Issuance. The attendance and testimony of
witnesses and the production of documentary evidence, from any place in
the United States, on behalf of any party to the proceeding, may be
required by subpoena at any designated place for oral hearing. Subpoenas
may be issued by the presiding officer, on a written application filed
by a party, showing the grounds and necessity thereof, and, with respect
to subpoenas for the production of documentary evidence, showing their
competency, relevancy, and materiality and the necessity for their
production. Subpoenas may be issued on the motion of the presiding
officer.
(2) Service; proof of service. A subpoena may be served by any
natural person over the age of 18 years. The party at whose instance a
subpoena is issued shall be responsible for serving it, however, at the
request of such party the Secretary will attempt to serve it.
(h) Oral argument. The presiding officer shall permit oral argument
by the parties or their counsel who are present at an oral hearing, but
may limit such argument to any extent that the presiding officer finds
necessary for the expeditious or proper disposition of the case.
(i) Transcript or recording. (1) Hearings to be conducted by
telephone shall be recorded verbatim by electronic recording device.
Hearings conducted by audio-visual telecommunication or the personal
attendance of any individual who is expected to participate in the
hearing shall be transcribed, unless the presiding officer finds that
recording the hearing verbatim would expedite the proceeding and the
presiding officer orders the hearing to be recorded verbatim. The
presiding officer shall certify that to the best of his or her knowledge
and belief any recording made pursuant to this paragraph with exhibits
that were accepted into evidence is the record of the hearing.
(2) If a hearing is recorded verbatim, a party requests the
transcript of a hearing or part of a hearing, and the presiding officer
determines that the disposition of the proceeding would be expedited by
a transcript of the hearing or part of a hearing, the presiding officer
shall order the verbatim transcription of the recording as requested by
the party.
(3) Parties to the proceeding who desire copies of the transcript or
recording of the oral hearing may make arrangements with the reporter,
who will furnish and deliver such copies direct to such parties, upon
receipt from such parties of payment for the transcript or recording, at
the rate provided by the contract between the reporter and the
Department for such reporting service.
(j) Filing, and presiding officer's certificate, of the transcript
or recording. As soon as practicable after the close of the oral
hearing, the reporter shall transmit to the presiding officer the
original transcript or recording of the testimony, and as many copies of
the transcript or recording as may be required by paragraph (j) of this
section for the area offices of the Agency and as may be required for
the Washington office of the Agency. At the same time the reporter shall
also transmit a copy of the transcript or recording to each party who
shall have arranged and paid for it, as provided in paragraph (h) of
[[Page 43]]
this section. Upon receipt of the transcript or recording, the presiding
officer shall attach to the original transcript or recording a
certificate stating that, to the best of the presiding officer's
knowledge and belief, the transcript or recording is a true, correct,
and complete transcript or recording of the testimony given at the
hearing and that the exhibits mentioned in it are all the exhibits
received in evidence at the hearing, with such exceptions as the
certificate shall specify. Such certificate shall be served on each
party and a copy thereof shall be attached to each copy of the
transcript or recording received by the presiding officer. In accordance
with such certificate the presiding officer shall note, on the original
transcript or recording, each correction detailed in such certificate by
adding or crossing out (but without obscuring the texts as orginally
transcribed or recorded) at the appropriate places any words necessary
to make the text conform to the correct meaning, as certified by the
presiding officer. The presiding officer shall send the copies of the
transcript or recording to the hearing clerk who shall send them to the
Agency.
(k) Keeping of copies of the transcript or recording. During the
period in which the proceeding has an active status in the Department, a
copy of the transcript or recording shall be kept at the area office of
the Agency most convenient to the respondent; however, if there are two
or more respondents and they are located in different regions, such copy
of the transcript or recording shall be kept at the area office of the
Agency nearest to the place where the hearing was held. In addition, a
copy of the transcript or recording shall be kept at the area office of
the Agency most convenient to the complainant. Any such copy shall be
available for examination during official hours of business at the area
office, but shall remain the property of the Department and shall not be
removed from such office.
[43 FR 30510, July 14, 1978, as amended at 55 FR 41184, Oct. 10, 1990;
60 FR 8466, Feb. 14, 1995]
Sec. 202.113 Rule 13: Written hearing.
(a) Evidence. As used in this section, the term ``evidence'' shall
mean depositions, affidavits, or statements under penalty of perjury as
provided in 28 U.S.C. 1746, Pub. L. 94-550, of persons having knowledge
of the facts, or documents properly identified by such deposition,
affidavit, or statement, or otherwise authenticated in such a manner
that they would be admissible in evidence at an oral hearing, except as
provided hereinafter. Testimony on deposition, to the extent credible,
shall be given greater weight as evidence, than such affidavits or
statements. In a case in which a party, entitled to oral hearing as
provided in rule 11, Sec. 202.111, withdraws such party's request for
oral hearing on condition that only depositions be used if a written
hearing is held, only depositions, and documents properly identified
therein, shall be made a part of the record as evidence by the parties
if a written hearing is held.
(b) Verification. Any facts must be verified, by oath or affirmation
before a person legally authorized to administer oaths or before a
person designated by the Secretary for the purpose (except in the case
of a statement under penalty of perjury as provided in 28 U.S.C. 1746,
Pub. L. 94-550), by a person who states, in the deposition, affidavit,
or statement, that such person has actual knowledge of the facts. Except
under unusual circumstances, which shall be set forth in the deposition,
affidavit, or statement, any such person shall be one who would appear
as a witness if an oral hearing were held.
(c) Complainant's evidence. The complainant shall be served with
notice of an opportunity to file evidence. Within 20 days after such
service, the complainant may file evidence. What the complainant files
in response to that notice shall be served promptly on the respondent.
(d) Respondent's evidence. After expiration of the time for the
filing of complainant's evidence, the respondent shall be served with
notice of an opportunity to file evidence. Within 20 days after such
service, the respondent may file evidence. What the respondent files
[[Page 44]]
in response to that notice shall be served promptly on the complainant.
(e) Complainant's rebuttal. If the respondent files anything
pursuant to paragraph (d) of this section, the complainant shall be
served with notice of an opportunity to file evidence in rebuttal of
what the respondent has filed. Within 20 days after such service, the
complainant may file such evidence, which shall be confined strictly to
rebuttal of what the respondent has filed. What the complainant files in
response to that notice shall be served promptly on the respondent.
(f) Failure to file. Failure to file any evidence authorized under
this section, within the time prescribed, shall constitute a waiver of
the right to file such evidence.
(g) Extension of time for depositions. If any party timely files an
application for an order for the taking of testimony by deposition
pursuant to rule 9, Sec. 202.109, time for the filing of such party's
evidence shall be extended as reasonable, to permit consideration of the
application, and taking of depositions if ordered.
(h) Investigation report. No provision of this rule 13 shall change
the status of an investigation report served on the parties and made a
part of the record pursuant to rule 4, Sec. 202.104.
[43 FR 30510, July 14, 1978, as amended at 55 FR 41184, Oct. 10, 1990]
Sec. 202.114 Rule 14: Post-hearing procedure.
(a) Oral hearing. Any party present or represented at an oral
hearing, desiring to file any written argument or brief, proposed
findings of fact, conclusions, and order, or statement of objections to
rulings made by the presiding officer, must so inform the presiding
officer at the oral hearing; upon being so informed, the presiding
officer shall set a reasonable time for the filing of such documents,
and state it on the record at the oral hearing.
(b) Written hearing. After filing of the last evidence in a written
hearing, notice shall be served on each party that such party may file,
within 20 days after such service on such party, written argument of
brief, proposed findings or fact, conclusions, and order.
(c) Service; delay in preparation of report. If any such document is
filed by any party, it shall be served on all other parties. The report
shall not be prepared before expiration of such time for filing.
[43 FR 30510, July 14, 1978, as amended at 55 FR 41184, Oct. 10, 1990]
Sec. 202.115 Rule 15: Submission for final consideration.
(a) Report. The presiding officer, with the assistance and
collaboration of such employees of the Department as may be assigned for
the purpose, shall prepare a report. The report shall be prepared on the
basis of the evidence in the record, including the investigation report
if one is prepared by the agency head and served on the parties, and any
allegations admitted or deemed to be admitted, and any stipulations. The
report shall be prepared in the form of a final order for signature by
the judicial officer, and shall be filed with the hearing clerk. The
report shall not be served on the parties unless and until it is signed
by the judicial officer.
(b) Record. At the same time as the report is filed with the hearing
clerk, the record shall also be filed with the hearing clerk. The record
shall include: Pleadings; motions and requests filed and rulings
thereon; the investigation report if one is prepared by the agency head
and served on the parties; the transcript or recording of an oral
hearing, and exhibits received, if an oral hearing was held; evidence
filed by the parties if a written hearing was held; documents filed in
connection with pre-hearing conferences; any proposed findings of fact,
conclusions and orders, statements of objections, and briefs; any
stipulations; and proof of service.
(c) Submission to judicial officer. Unless the hearing clerk
reasonably believes that the record is not complete and in proper order,
the record and the report shall be submitted to the judicial officer for
decision.
(d) Oral argument. There shall be no right to oral argument other
than that provided in rule 12(h), Sec. 202.112(h).
[43 FR 30510, July 14, 1978, as amended at 60 FR 8467, Feb. 14, 1995]
[[Page 45]]
Sec. 202.116 Rule 16: Issuance of order.
(a) As soon as practicable after the receipt of the record and
report from the hearing clerk, the judicial officer, on the basis of and
after due consideration of the record, shall issue an order in the
proceeding, which shall be served on the parties.
(b) If the judicial officer deems it advisable to do so, the order
may be made a tentative order. In such event, a presiding officer shall
be assigned and the tentative order shall be served on each party, and
each party shall have 20 days in which to file written exceptions to it,
and arguments or briefs in support of such exceptions. If no party
timely files exceptions, the tentative order shall automatically become
the final order in the proceeding, and notice of such fact shall be
served on the parties. If any party timely files such exceptions, they
shall be handled in the same manner as a petition filed under rule 17,
Sec. 202.117.
Sec. 202.117 Rule 17: Petition to reopen a hearing; to rehear or reargue a proceeding; to reconsider an order; or to set aside a default order.
(a) Filing of petition--(1) To reopen a hearing. Any party may file
a petition to reopen a hearing to take further evidence, at any time
prior to the issuance of the final order, or prior to a tentative order
becoming final. Such a petition must state the nature and purpose of the
evidence to be offered, show that it is not merely cumulative, and state
a good reason why it was not offered at the hearing if oral, or filed in
the hearing if written.
(2) To rehear or reargue a proceeding or reconsider an order. Any
party may file a petition to rehear or reargue a proceeding or
reconsider an order of the judicial officer, at any time within 20 days
after service on such party of such order. Such a petition must specify
the matters claimed to have been erroneously decided, and the basis for
the petitioner's claim that such matters were erroneously decided.
(3) To set aside a default order. Any respondent against whom an
order is issued by the judicial officer, upon failure to file an answer
as required, may file a petition to set aside such order, at any time
within 20 days after service on such respondent of such order. Such a
petition must state a good reason why an answer was not filed as
required.
(b) Brief or memorandum of law. If such a petitioner wishes to file
a brief or memorandum of law in support of such a petition, it must be
filed with such petition.
(c) Procedure. A presiding officer shall be assigned upon the filing
of any such petition, or upon notice to the hearing clerk (which may be
written or oral, or by telephone) that any party intends to file any
such petition. The party filing any such petition shall be referred to
as the complainant or respondent, depending on the original designation
of such party in the proceeding; such party shall have the burden of
establishing that such petition should be granted. If a petition to
reopen is timely filed, the order shall not be issued pending decision
whether to grant or deny the petition. If a petition to rehear or
reargue or reconsider, or to set aside a default order, is timely filed,
operation of the order shall be stayed automatically pending decision
whether to grant or deny it; if such a petition is not timely filed,
operation of the order shall not be stayed unless the Judicial Officer
shall determine otherwise.
(d) Service; answer. No such petition shall be granted unless it,
with the brief or memorandum of law in support of it, if any, is first
served on each party to the proceeding other than the one filing it.
Each such other party, within 20 days after such service on such party,
may file an answer to such petition. If any such party wishes to file a
brief or memorandum of law in support of such an answer, it must be
filed with such answer. Any such answer, with the brief or memorandum of
law in support of it, if any, shall be served on each party to the
proceeding other than the one filing it. Any such petition may be denied
without such service.
(e) Submission for decision; service of order. The presiding officer
shall prepare a recommendation with respect to the petition, and submit
it to the judicial officer for decision. Such a recommendation shall be
prepared in the form of a final order for signature by
[[Page 46]]
the judicial officer. It shall not be served on the parties unless and
until it is signed by the judicial officer. The order of the judicial
officer shall be served on the parties.
(f) Practice upon decision. If the judicial officer decides to
reopen a hearing, or to rehear or permit reargument of a proceeding, or
to set aside a default order, a presiding officer shall be assigned and
the rules of practice shall be followed thereafter as applicable.
Sec. 202.118 Rule 18: Presiding officer.
(a) Powers. Subject to review as provided elsewhere in these rules,
the presiding officer assigned to any proceeding shall have power to:
(1) Set the time, place, and manner of a prehearing conference and
an oral hearing, adjourn the oral hearing from time to time, and change
the time, place, and manner of oral hearing;
(2) Administer oaths and affirmations;
(3) Issue subpoenas requiring the attendance and testimony of
witnesses and the production of documentary evidence at an oral hearing;
(4) Summon and examine witnesses and receive evidence at an oral
hearing;
(5) Take or order the taking of depositions;
(6) Admit or exclude evidence;
(7) Hear oral argument on facts or law;
(8) Require each party to provide all other parties and the
presiding officer with a copy of any exhibit that the party intends to
introduce into evidence prior to any oral hearing to be conducted by
telephone or audio-visual telecommunication;
(9) Require each party to provide all other parties with a copy of
any document that the party intends to use to examine a deponent prior
to any deposition to be conducted by telephone or audio-visual
telecommunication;
(10) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties
and the presiding officer are able to transmit and receive documents
during the hearing;
(11) Require that any deposition to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties are able to transmit and receive documents during the
deposition; and
(12) Do all acts and take all measures necessary for the maintenance
of order and the efficient conduct of the proceeding, including the
exclusion of contumacious counsel or other persons.
(b) Motions and requests. The presiding officer is authorized to
rule on all motions and requests filed in the proceeding prior to
submission of the presiding officer's report to the judicial officer,
Provided, That a presiding officer is not authorized to dismiss a
complaint. Submission or certification of any question to the judicial
officer, prior to submission of the report, shall be in the discretion
of the presiding officer.
(c) Reassignment. For any good reason, including absence, illness,
resignation, death, or inability to act, of the attorney assigned to act
as a presiding officer in any proceeding under these rules, the powers
and duties of such attorney in the proceeding may be assigned to any
other attorney who is employed in the Office of the General Counsel of
the Department, without abatement of the proceeding.
(d) Disqualification. No person shall be assigned to act as a
presiding officer in any proceeding who (1) has any material pecuniary
interest in any matter or business involved in the proceeding; (2) is
related within the third degree by blood or marriage to any party to the
proceeding; or (3) has any conflict of interest which might impair such
person's objectivity in the proceeding. A person assigned to act as a
presiding officer shall ask to be replaced, in any proceeding in which
such person believes that reason exists for disqualification of such
person.
(e) Procedure on petition for disqualification. Any party may file a
petition for disqualification of the presiding officer, which shall set
forth with particularity the grounds of alleged disqualification. Any
such petition shall be filed with the hearing clerk, who shall
immediately transmit it to the judicial officer and inform the presiding
officer. The record of the proceeding also shall immediately be
transmitted to the judicial officer. After
[[Page 47]]
such investigation or hearing as the judicial officer deems necessary,
the judicial officer shall either deny the petition or direct that
another presiding officer be assigned to the proceeding. The petition,
and notice of the order of the judicial officer, shall be made a part of
the record and served on the parties; if any record is made on such a
petition, it shall be a part of the record of the proceeding.
[43 FR 30510, July 14, 1978, as amended at 60 FR 8467, Feb. 14, 1995]
Sec. 202.119 Rule 19: Fees of witnesses.
Witnesses subpoenaed before the presiding officer, and witnesses
whose depositions are taken, shall be entitled to the same fees and
mileage as are paid for like services in the courts of the United
States. Fees and mileage shall be paid by the party at whose instance
the witness appears or the deposition is taken.
Sec. 202.120 Rule 20: Official notice.
Official notice shall be taken of such matters as are judicially
noticed by the courts of the United States and of any other matter of
technical or scientific fact of established character: Provided, That
the parties shall be given notice of matters so noticed, and shall be
given adequate opportunity to show that such facts are erroneously
noticed.
Sec. 202.121 Rule 21: Intervention.
At any time after docketing of a proceeding and before commencement
of a hearing, oral or written, therein, the presiding officer may, upon
petition, and for good cause shown, permit any person to intervene
therein. The petition shall state with preciseness and particularity:
(a) The petitioner's relationship to the matters involved in the
proceeding; (b) the nature of the material the petitioner intends to
present in evidence; (c) the nature of the argument the petitioner
intends to make; and (d) the reasons why the petitioner should be
allowed to intervene. Any such petition, and notice of the order
thereon, shall be served on the parties and made a part of the record in
the proceeding.
Sec. 202.122 Rule 22: Ex parte communications.
(a) At no stage of the proceeding between its docketing and the
issuance of the final decision shall the presiding officer or judicial
officer discuss ex parte the merits of the proceeding with any party, or
attorney or representative of a party: Provided, That procedural matters
shall not be included within this limitation; and Provided further, That
the presiding officer or judicial officer may discuss the merits of the
case with such a person if all parties to the proceeding or their
attorneys or representatives have been served with notice and an
opportunity to participate. A memorandum of any such discussion shall be
included in the record.
(b) No party, or attorney or representative of a party, or other
person not an employee of the Department, shall make or knowingly cause
to be made to the presiding officer or judicial officer an ex parte
communication relevant to the merits of the proceeding.
(c) If the presiding officer or judicial officer receives an ex
parte communication in violation of this section, the one who receives
the communication shall place in the public record of the proceeding:
(1) Such communication if written, or a memorandum stating the
substance of such communication if oral; and
(2) A copy of any written response or a memorandum stating the
substance of any oral response thereto.
(d) Copies of all such items placed or included in the record, as
provided in this section, shall be served on all parties.
(e) For purposes of this section ``ex parte communication'' means an
oral or written communication not on the public record with respect to
which reasonable prior notice to all parties is not given, but it shall
not include a request for a status report on any matter or the
proceeding.
Sec. 202.123 Rule 23: Action by Secretary.
The Secretary may act in the place and stead of a presiding officer
or the
[[Page 48]]
judicial officer in any proceeding hereunder, or any matter in
connection therewith.
PART 203--STATEMENTS OF GENERAL POLICY UNDER THE PACKERS AND STOCKYARDS ACT--Table of Contents
Sec.
203.1 [Reserved]
203.2 Statement of general policy with respect to the giving by meat
packers of meat and other gifts to Government employees.
203.3 [Reserved]
203.4 Statement with respect to the disposition of records by packers,
live poultry dealers, stockyard owners, market agencies and
dealers.
203.5 Statement with respect to market agencies paying the expenses of
livestock buyers.
203.6 [Reserved]
203.7 Statement with respect to meat packer sales and purchase
contracts.
203.8--203.9 [Reserved]
203.10 Statement with respect to insolvency; definition of current
assets and current liabilities.
203.11 [Reserved]
203.12 Statement with respect to providing services and facilities at
stockyards on a reasonable and nondiscriminatory basis.
203.13 [Reserved]
203.14 Statement with respect to advertising allowances and other
merchandising payments and services.
203.15 Trust benefits under sections 206 and 207 of the Act.
203.16 Mailing of checks in payment for livestock purchased for
slaughter, for cash and not on credit.
203.17 Statement of general policy with respect to rates and charges at
posted stockyards.
203.18 Statement with respect to packers engaging in the business of
custom feeding livestock.
203.19 Statement with respect to packers engaging in the business of
livestock dealers or buying agencies.
Authority: 7 CFR 2.17(e), 2.56
Sec. 203.1 [Reserved]
Sec. 203.2 Statement of general policy with respect to the giving by meat packers of meat and other gifts to Government employees.
(a) In recent months, the Department has received information,
confirmed by investigation, that a number of packers subject to the
Packers and Stockyards Act have made gifts of meat to Government
employees responsible for conducting service activities of the
Department. Such gifts have the implications of fraud, even if not made
specifically for the purpose of influencing these employees in the
performance of their duties.
(b) It is a violation of the Meat Inspection Act for any person,
firm, or corporation to give to any employee of the Department
performing duties under such act anything of value with intent to
influence such employee in the discharge of his duties, or for such
employee to receive from any person, firm, or corporation engaged in
interstate or foreign commerce any gift given with any intent or purpose
whatsoever (21 U.S.C. 90). Under the Federal meat grading regulations,
the giving or attempting to give by a packer of anything of value to any
employee of the Department authorized to perform any function under such
regulations is a basis for the withdrawal of Federal meat grading
service (7 CFR 53.13). The receiving by an employee of the Department of
any gift from any person for whom grading, inspection, or other service
work is performed is specifically prohibited by Departmental
regulations.
(c) Upon the basis of paragraphs (a) and (b) of this section, it is
the view of the Department that it is an unfair and deceptive practice
in violation of section 202(a) of the Packers and Stockyards Act (7
U.S.C. 192(a)) for any person subject to the provisions of Title II of
said Act to give or offer to give meat, money, or anything of value to
any Government employee who performs inspection, grading, reporting, or
regulatory duties directly relating to the purchase or sale of livestock
or the preparation or distribution of meats, meat food products,
livestock products in unmanufactured form, poultry or poultry products.
(Sec. 407, 42 Stat. 169; 7 U.S.C. 228; 9 CFR 201.3)
[26 FR 710, Jan. 25, 1961; 29 FR 4081, Mar. 28, 1964]
[[Page 49]]
Sec. 203.3 [Reserved]
Sec. 203.4 Statement with respect to the disposition of records by packers, live poultry dealers, stockyard owners, market agencies and dealers.
(a) Records to be kept. Section 401 of the Packers and Stockyards
Act (7 U.S.C. 221) provides, in part, that every packer, live poultry
dealer, stockyard owner, market agency, and dealer shall keep such
accounts, records, and memoranda as fully and correctly disclose all
transactions involved in his business, including the true ownership of
such business by stockholding or otherwise. In order to properly
administer the P&S Act, it is necessary that records be retained for
such periods of time as may be required to permit the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
a reasonable opportunity to examine such records. Section 401 of the Act
does not, however, provide for the destruction or disposal of records.
Therefore, the Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) has formulated this policy statement
to provide guidance as to the periods of time after which records may be
disposed of or destroyed.
(b) Records may be disposed of after two years except as otherwise
provided. Except as provided in paragraph (c) of this section, each
packer, live poultry dealer, stockyard owner, market agency, and dealer
may destroy or dispose of accounts, records, and memoranda which
contain, explain, or modify transactions in its business subject to the
Act after such accounts, records, and memoranda have been retained for a
period of two full years; Provided, That the following records made or
kept by a packer may be disposed of after one year: cutting tests;
departmental transfers; buyers' estimates; drive sheets; scale tickets
received from others; inventory and products in storage; receiving
records; trial balances; departmental overhead or expense
recapitulations; bank statements, reconciliations and deposit slips;
production or sale tonnage reports (including recapitulations and
summaries of routes, branches, plants, etc.); buying or selling pricing
instructions and price lists; correspondence; telegrams; teletype
communications and memoranda relating to matters other than contracts,
agreements, purchase or sales invoices, or claims or credit memoranda;
and Provided further, That microfilm copies of records may be
substituted for and retained in lieu of the actual records.
(c) Retention for longer periods may be required. The periods
specified in paragraph (b) of this section shall be extended if the
packer, live poultry dealer, stockyard owner, market agency, or dealer
is notified in writing by the Administrator that specified records
should be retained for a longer period pending the completion of any
investigation or proceedings under the Act.
(d) Unauthorized disposal of records. If it is found that any person
subject to the Act has disposed of accounts, records, and memoranda
which are necessary to fully and correctly disclose all transactions in
its business prior to the periods specified in this statement,
consideration will be given to the issuance of a complaint charging a
violation of section 401 of the Act and seeking an appropriate order.
The administrative proceeding initiated will be conducted in accordance
with the Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary (7 CFR 1.130 et seq.).
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 228, 7 U.S.C. 222, and 15 U.S.C. 46)
[49 FR 6085, Feb. 17, 1984, as amended at 54 FR 16357, Apr. 24, 1989]
Sec. 203.5 Statement with respect to market agencies paying the expenses of livestock buyers.
It has become a practice in certain areas of the country for market
agencies, engaged in the business of selling consigned livestock on a
commission basis, to pay certain of the business or personal expenses
incurred by buyers attending livestock sales conducted by such market
agencies, such as, expenses for meals, lodging, travel, entertainment
and long distance telephone calls. Investigation by the Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards
[[Page 50]]
Programs), discloses that this practice tends to become a method of
competition between similarly engaged market agencies and results in
undue and unreasonable cost burdens on such market agencies and the
livestock producers who sell their livestock through such market
agencies.
It is the view of the Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs) that it constitutes
violations of the Packers and Stockyards Act, 1921, as amended (7 U.S.C.
181 et seq.), for any market agency engaged in the business of selling
consigned livestock on a commission basis, to pay, directly or
indirectly, any personal or business expenses of livestock buyers
attending sales conducted by such market agency. In the future, if any
market agency engages in such practice, consideration will be given by
the Grain Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) to the issuance of a complaint charging the market
agency with violation of the Act. In the formal administrative
proceeding initiated by any such complaint, the Judicial Officer of the
Department will determine, after full hearing, whether the market agency
has violated the Act and should be ordered to cease and desist from
continuing such violation, and whether the registration of such market
agency should be suspended for a reasonable period of time.
(Secs. 407, 4, 42 Stat. 169, 72 Stat. 1750; 7 U.S.C. 228. Interprets or
applies secs. 304, 307, 312, 42 Stat. 164, 165, 167; 7 U.S.C. 205, 208,
213)
[29 FR 311, Jan. 14, 1964; 29 FR 3304, Mar. 12, 1964, as amended at 32
FR 7700, May 26, 1967]
Sec. 203.6 [Reserved]
Sec. 203.7 Statement with respect to meat packer sales and purchase contracts.
(a) The Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) receives numerous complaints
concerning the failure or refusal of buyers to pay the full purchase
price for, or to accept delivery of, their purchases of meat and meat
food products and sellers failing to meet contractual specifications.
Most such complaints arise out of disputes concerning condition, grade,
weight, or shipping instructions.
(b) It is believed that both seller and buyer should take the
following points into consideration when selling and buying meat and
meat food products:
(1) Terms of shipment and time of arrival. Terms and conditions of
shipment and delivery should be specified in the contract and both
parties should understand fully all terms and conditions of the
contract. Any deviation from normal practices, such as a guaranty by the
shipper as to the date of arrival at destination, or a deviation from
the normal meaning of terms, should also be fully understood and made a
part of the contract.
(2) Quality and condition. (i) A seller has the responsibility of
making certain that the meat and meat food products shipped are in
accordance with the terms of the contract specifications.
(ii) When a buyer believes that the shipment does not meet the terms
of the contract, he should immediately contact the seller or the
seller's agent and advise him of the nature of the complaint. This
affords the seller an opportunity to renegotiate the contract, to
personally inspect the meat or meat food products, or to have an
impartial party inspect or examine the meat or meat food products.
Inspection and examination service of this type is available nationally
through the USDA meat grading service and locally through various
impartial persons or agencies.
(iii) All terms of a transaction should be made clear in the
contract, whether written or verbal. If there is any chance of
misunderstanding, a written confirmation should be exchanged between the
parties. In any case where a contract dispute cannot be settled between
the parties and either party intends to file a complaint, such complaint
should be brought to the attention of the nearest Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
area office as soon as possible. However, a concerted effort on the part
of both buyer and seller to negotiate clear and complete contracts will
greatly reduce misunderstandings which can result in the filing of
complaints with the Administration.
[[Page 51]]
(c) If the Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) has reason to believe that any packer
unjustifiably (1) has refused to pay the contractual price for meat or
meat food products purchased, (2) has refused to accept a shipment of
meat or meat food products, or (3) has failed to ship meat or meat food
products in accordance with the terms of the contract specifications,
consideration will be given to the issuance of a complaint charging the
packer with violation of section 202 of the Act. In the formal
administrative proceeding initiated by any such complaint, the Judicial
Officer of the Department will determine, upon the basis of the record
in the proceeding, whether the packer has violated the Act and should be
ordered to cease and desist from continuing such violation.
(Secs. 407(a), 4, 42 Stat. 169, 72 Stat. 1750; 7 U.S.C. 228(a).
Interprets or applies sec. 202, 42 Stat. 161 et seq., as amended; 7
U.S.C. 192)
[30 FR 14966, Dec. 3, 1965, as amended at 32 FR 7701, May 26, 1967]
Secs. 203.8--203.9 [Reserved]
Sec. 203.10 Statement with respect to insolvency; definition of current assets and current liabilities.
(a) Under the Packers and Stockyards Act, 1921, as amended and
supplemented (7 U.S.C. 181 et seq.), the principal test of insolvency is
to determine whether a person's current liabilities exceed his current
assets. This current ratio test of insolvency under the Act has been
reviewed and affirmed by a United States Court of Appeals. Bowman v.
United States Department of Agriculture, 363 F. 2d 81 (5th Cir. 1966).
(b) For the purposes of the administration of the Packers and
Stockyards Act, 1921, the following terms shall be construed,
respectively, to mean:
(1) Current assets means cash and other assets or resources commonly
identified as those which are reasonably expected to be realized in cash
or sold or consumed during the normal operating cycle of the business,
which is considered to be one year.
(2) Current liabilities means obligations whose liquidation is
reasonably expected to require the use of existing resources principally
classifiable as current assets or the creation of other current
liabilities during the one year operating cycle of the business.
(c) The term current assets generally includes: (1) Cash in bank or
on hand; (2) sums due a market agency from a custodial account for
shippers' proceeds; (3) accounts receivable, if collectable; (4) notes
receivable and portions of long-term notes receivable within one year
from date of balance sheet, if collectable; (5) inventories of livestock
acquired for purposes of resale or for purposes of market support; (6)
feed inventories and other inventories which are intended to be sold or
consumed in the normal operating cycle of the business; (7) accounts due
from employees, if collectable; (8) accounts due from officers of a
corporation, if collectable; (9) accounts due from affiliates and
subsidiaries of corporations if the financial position of such
subsidiaries and affiliates justifies such classification; (10)
marketable securities representing cash available for current operations
and not otherwise pledged as security; (11) accured interest receivable;
and (12) prepaid expenses.
(d) The term current assets generally excludes: (1) Cash and claims
to cash which are restricted as to withdrawal, such as custodial funds
for shippers' proceeds and current proceeds receivable from the sale of
livestock sold on a commission basis; (2) investments in securities
(whether marketable or not) or advances which have been made for the
purposes of control, affiliation, or other continuing business
advantage; (3) receivables which are not expected to be collected within
12 months; (4) cash surrender value of life insurance policies; (5) land
and other natural resources; and (6) depreciable assets.
(e) The term current liabilities generally includes: (1) Bank
overdrafts (per books); (2) amounts due a custodial account for
shippers' proceeds; (3) accounts payable within one year from date of
balance sheet; (4) notes payable or portions thereof due and payable
within one year from date of balance sheet; (5) accruals such as taxes,
wages, social security, unemployment compensation, etc., due and payable
as of the date of the balance sheet; and (6)
[[Page 52]]
all other liabilities whose regular and ordinary liquidation is expected
to occur within one year.
(Sec. 407(a), 42 Stat. 169, 72 Stat. 1750; 7 U.S.C. 228(a). Interprets
or applies secs. 202, 307, 312, 502, 505; 42 Stat. 161 et seq., as
amended; 7 U.S.C. 192, 208, 213, 218a, 218d)
[32 FR 6901, May 5, 1967]
Sec. 203.11 [Reserved]
Sec. 203.12 Statement with respect to providing services and facilities at stockyards on a reasonable and nondiscriminatory basis.
(a) Section 304 of the Packers and Stockyards Act (7 U.S.C. 205)
provides that: ``All stockyard services furnished pursuant to reasonable
request made to a stockyard owner or market agency at such stockyard
shall be reasonable and nondiscriminatory and stockyard services which
are furnished shall not be refused on any basis that is unreasonable or
unjustly discriminatory * * *.''
(b) Section 305 of the Act (7 U.S.C. 206) states that: ``All rates
or charges made for any stockyard services furnished at a stockyard by a
stockyard owner or market agency shall be just, reasonable, and
nondiscriminatory * * *.''
(c) Section 307 (7 U.S.C. 208) provides that: ``It shall be the duty
of every stockyard owner and market agency to establish, observe, and
enforce just, reasonable, and nondiscriminatory regulations and
practices in respect to the furnishing of stockyard services * * *.''
(d) Section 312(a) (7 U.S.C. 213(a)) provides that: ``It shall be
unlawful for any stockyard owner, market agency, or dealer to engage in
or use any unfair, unjustly discriminatory, or deceptive practice or
device in connection with determining whether persons should be
authorized to operate at the stockyards, or with the receiving,
marketing, buying, or selling on a commission basis or otherwise,
feeding, watering, holding, delivery, shipment, weighing or handling, in
commerce, of livestock.''
(e) Section 301(b) (7 U.S.C. 201(b)) defines ``stockyard services''
as any ``services or facilities furnished at a stockyard in connection
with the receiving, buying, or selling on a commission basis or
otherwise, marketing, feeding, watering, holding, delivery, shipment,
weighing, or handling, in commerce, of livestock.''
(f) It is the view of the Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs) that it is a violation
of sections 304, 307, and 312(a) of the Act for a stockyard owner or
market agency to discriminate, in the furnishing of stockyard services
or facilities or in establishing rules or regulations at the stockyard,
because of race, religion, color, or national origin of those persons
using the stockyard services or facilities. Such services and facilities
include, but are not limited to, the restaurant, restrooms, drinking
fountains, lounge accommodations, those furnished for the selling,
weighing, or other handling of the livestock, and facilities for
observing such services.
(g) If the Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) has reason to believe that any
stockyard owner or market agency has so discriminated in the furnishing
of stockyard services or facilities, consideration will be given to the
issuance of a complaint charging the stockyard or market agency with
violations of the Act.
(Sec. 407(a), 42 Stat. 159, 72 Stat. 1750; 7 U.S.C. 228(a). Interprets
or applies secs. 304, 307, 312, 42 Stat. 161 et seq., as amended, 7
U.S.C. 205, 208, 213)
[33 FR 17621, Nov. 26, 1968]
Sec. 203.13 [Reserved]
Sec. 203.14 Statement with respect to advertising allowances and other merchandising payments and services.
The Guidelines
1. Who is a customer? (a) A customer is a person who buys for resale
directly from the packer, or through the packer's agent or broker; and
in addition, a customer is any buyer of the packer's product for resale
who purchases from or through a wholesaler or other intermediate
reseller.
(Note: In determining whether a packer has fulfilled its obligations
toward its customers, the Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs) will recognize that
there may be some exceptions to this general definition of ``customer.''
For example, the
[[Page 53]]
purchaser of distress merchandise would not be considered a ``customer''
simply on the basis of such purchase. Similarly, a retailer who
purchases solely from other retailers or one who makes only sporadic
purchases, or one who does not regularly sell the packer's product or
who is a type of retail outlet not usually selling such products will
not be considered a ``customer'' of the packer unless the packer has
been put on notice that such retailer is selling its product.)
(b) Competing customers are all businesses that compete in the
resale of the packer's products of like grade and quality at the same
functional level of distribution, regardless of whether they purchase
direct from the packer or through some intermediary.
Example: A packer sells directly to some independent retailers,
sells to the headquarters of chains and of retailer-owned cooperatives,
and also sells to wholesalers. The direct-buying independent retailers,
the headquarters of chains and of retailer-owned cooperatives, and the
wholesalers' independent retailer customers are customers of the packer.
Individual retail outlets which are part of the chains or members of the
retailer-owned cooperatives are not customers of the packer.
2. Definition of services. Services are any kind of advertising or
promotion of a packer's product, including but not limited to,
cooperative advertising, handbills, window and floor displays,
demonstrators and demonstrations, customer coupons, and point of
purchase activity.
3. Need for a plan. If a packer makes payments or furnishes
services, it should do so under a plan that meets several requirements.
If there are many competing customers to be considered, or if the plan
is at all complex, the packer would be well advised to put its plan in
writing. The requirements are:
(a) Proportionally equal terms--The payments or services under the
plan should be made available to all competing customers on
proportionally equal terms. This means that payments or services should
be made proportionately on some basis that is fair to all customers who
compete in the resale of the packer's products. No single way to achieve
the proper proportion is prescribed, and any method that treats
competing customers on proportionally equal terms may be used.
Generally, this can best be done by basing the payments made or the
services furnished on the dollar volume or on the quantity of goods
purchased during a specified period. Other methods which are fair to all
competing customers are also acceptable.
Example 1: A packer may properly offer to pay a specified part (say
50 percent) of the cost of local advertising up to an amount equal to a
set percentage (such as 5 percent) of the dollar volume of such
purchases during a specified time.
Example 2: A packer may properly place in reserve for each customer
a specified amount of money for each unit purchased and use it to
reimburse those customers for the cost of advertising and promoting the
packer's product during a specified time.
Example 3: A packer's plan should not provide an allowance on a
basis that has rates graduated with the amount of goods purchased, as
for instance, 1 percent of the first $1,000 purchases per month, 2
percent on second $1,000 per month, and 3 percent on all over that.
(b) Packer's duty to inform--The packer should take reasonable
action, in good faith, to inform all its competing customers of the
availability of its promotional program. Such notification should
include all the relevant details of the offer in time to enable
customers to make an informed judgment whether to participate. Where
such one-step notification is impracticable, the packer may, in lieu
thereof, maintain a continuing program of first notifying all competing
customers of the types of promotions offered by the packer and a
specific source for the customer to contact in order to receive full and
timely notice of all relevant details of the packer's promotions. Such
notice should also inform all competing customers that the packer offers
advertising allowances and/or other promotional assistance that are
usable in a practical business sense by all retailers regardless of
size. When a customer indicates its desire to be put on the notification
list, the packer should keep that customer advised of all promotions
available in its area as long as the customer so desires. The packer may
make the required notification by any means it chooses; but in order to
show later that it gave notice to a certain customer, it is in a better
position to do so if it was given in writing or a record was prepared at
the time of notification showing date, person notified, and contents of
notification.
If more direct methods of notification are impracticable, a packer
may employ one or more of the following methods, the sufficiency of
which will depend upon the complexity of its own distribution system.
Different packers may find that different notification methods are most
effective for them:
(1) The packer may enter into contracts with its wholesaler,
distributors or other third parties which conform to the requirements of
item 5, infra.
(2) The packer may place appropriate announcements on product
containers or inside thereof with conspicuous notice of such enclosure
on the outside.
(3) The packer may publish notice of the availability and essential
features of a promotional plan in a publication of general distribution
in the trade.
[[Page 54]]
Example 1: A packer has a wholesaler-oriented plan directed to
wholesalers distributing its products to retailing customers. It should
notify all the competing wholesalers distributing its products of the
availability of this plan, but the packer is not required to notify
retailing customers.
Example 2: A packer who sells on a direct basis to some retailers in
an area, and to other retailers in the area through wholesalers, has a
plan for the promotion of its products at the retail level. If the
packer directly notifies not only all competing direct purchasing
retailers but also all competing retailers purchasing through the
wholesalers as to the availability, terms and conditions of the plan,
the packer is not required to notify its wholesalers.
Example 3: A packer regularly engages in promotional programs and
the competing customers include large direct purchasing retailers and
smaller customers who purchase through wholesalers. The packer may
encourage, but not coerce, the retailer purchasing through a wholesaler
to designate a wholesaler as its agent for receiving notice of,
collecting, and using promotional allowances for the customer. If a
wholesaler or other intermediary by written agreement with a retailer is
actually authorized to collect promotional payments from suppliers, the
packer may assume that notice of and payment under a promotional plan to
such wholesaler or intermediary constitutes notice and payment to the
retailer.
(A packer should not rely on a written agreement authorizing an
intermediary to receive notice of and/or payment under a promotional
plan for a retailer if the packer knows, or should know, that the
retailer was coerced into signing the agreement. In addition, a packer
should assume that an intermediary is not authorized to receive notice
of and/or payment under a promotional plan for a retailer unless there
is a written authorization signed by such retailer.)
(c) Availability to all competing customers--The plan should be such
that all types of competing customers may participate. It should not be
tailored to favor or discriminate against a particular customer or class
of customers but should, in its terms, be usable in a practical business
sense by all competing customers. This may require offering all such
customers more than one way to participate in the plan or offering
alternative terms and conditions to customers for whom the basic plan is
not usable and suitable. The packer should not, either expressly or by
the way the plan operates, eliminate some competing customers, although
it may offer alternative plans designed for different customer classes.
If it offers alternative plans, all of the plans offered should provide
the same proportionate equality and the packer should inform competing
customers of the various alternative plans.
When a packer, in good faith, offers a basic plan, including
alternatives, which is reasonably fair and nondiscriminatory and
refrains from taking any steps which would prevent any customer, or
class of customers, from participating in its program, it shall be
deemed to have satisfied its obligation to make its plan functionally
available to all customers, and the failure of any customer or customers
to participate in the program shall not be deemed to place the packer in
violation of the provisions of the Packers and Stockyards Act.
Example 1: A packer offers a plan of short term store displays of
varying sizes, including some which are suitable for each of its
competing customers and at the same time are small enough so that each
customer may make use of the promotion in a practical business sense.
The plan also calls for uniform, reasonable certification of performance
by the retailer. Because they are reluctant to process a reasonable
amount of paperwork, some small retailers do not participate. This fact
is not deemed to place a packer in violation of Item 3(c) and it is
under no obligation to provide additional alternatives.
Example 2: A packer offers a plan for cooperative advertising on
radio, television, or in newspapers of general circulation.\1\ Because
the purchases of some of its customers are too small, this offer is not
``functionally available'' to them. The packer should offer them
alternative(s) on proportionally equal terms that are usable by them and
suitable for their business.
---------------------------------------------------------------------------
\1\ In order to avoid the tailoring of promotional programs that
discriminate against particular customers or class of customers, the
packer in offering to pay allowances for newspaper advertising should
offer to pay the same percentage of the cost of newspaper advertising
for all competing customers in a newspaper of the customer's choice, or
at least in those newspapers that meet the requirements for second class
mail privileges.
---------------------------------------------------------------------------
(d) Need to understand terms--In informing customers of the details
of a plan, the packer should provide them sufficient information to give
a clear understanding of the exact terms of the offer, including all
alternatives, and the conditions upon which payment will be made or
services furnished.
(e) Checking customer's use of payments--The packer should take
reasonable precautions to see that services it is paying for are
furnished and also that it is not overpaying for them. Moreover, the
customer should expend the allowance solely for the purpose for which it
was given. If the packer knows or should know that what it pays or
furnishes is not being properly used by some
[[Page 55]]
customers, the improper payments or services should be discontinued.\2\
---------------------------------------------------------------------------
\2\ The granting of allowances or payments that have little or no
relationship to cost or approximate cost of the service provided by the
retailer may be considered a violation of section 202 of the Act.
---------------------------------------------------------------------------
A packer who, in good faith, takes reasonable and prudent measures
to verify the performance of its competing customers will be deemed to
have satisfied its obligations under the Act. Also, a packer who, in
good faith, concludes a promotional agreement with wholesalers or other
intermediaries and who otherwise conforms to the standards of Item 5
shall be deemed to have satisfied this obligation. If a packer has taken
such steps, the fact that a particular customer has retained an
allowance in excess of the cost, or approximate cost if the actual cost
is not known, of services performed by the customer shall not alone be
deemed to place a packer in violation of the Act.
(When customers may have different but closely related costs in
furnishing services that are difficult to determine such as the cost for
distributing coupons from a bulletin board or using a window banner, the
packer may furnish to each customer the same payment if it has a
reasonable relationship to the cost of providing the service or is not
grossly in excess thereof.)
4. Competing customers. The packer is required to provide in its
plan only for those customers who compete with each other in the resale
of the packer's products of like grade and quality. Therefore a packer
should make available to all competing wholesalers any plan providing
promotional payments or services to wholesalers, and similarly should
make available to all competing retailers any plan providing promotional
payments or services to retailers. With these requirements met, a packer
can limit the area of its promotion. However, this section is not
intended to deal with the question of a packer's liability for use of an
area promotion where the effect may be to injure the packer's
competition.
5. Wholesaler or third party performance of packer's obligations. A
packer may, in good faith, enter into written agreements with
intermediaries, such as wholesalers, distributors or other third
parties, including promoters of tripartite promotional plans, which
provide that such intermediaries will perform all or part of the
packer's obligations under this part. However, the interposition of
intermediaries between the packer and its customers does not relieve the
packer of its ultimate responsibility of compliance with the provisions
of the Packers and Stockyards Act. The packer, in order to demonstrate
its good faith effort to discharge its obligations under this part,
should include in any such agreement provisions that the intermediary
will:
(1) Give notice to the packer's customers in conformity with the
standards set forth in items 3(b) and (d), supra;
(2) Check customer performance in conformity with the standards set
forth in item 3(e), supra;
(3) Implement the plan in a manner which will insure its functional
availability to the packer's customers in conformity with the standards
set forth in item 3(c), supra (This must be done whether the plan is one
devised by the packer itself or by the intermediary for use by the
packer's customers.); and
(4) Provide certification in writing and at reasonable intervals
that the packer's customers have been and are being treated in
conformity with the agreement.
A packer who negotiates such agreements with its wholesalers,
distributors or third party promoters will be considered by the
Administration to have justified its ``good faith'' obligations under
this section only if it accompanies such agreements with the following
supplementary measures: At regular intervals the packer takes
affirmative steps to verify that its customers are receiving the
proportionally equal treatment to which they are entitled by making spot
checks designed to reach a representative cross section of its
customers. Whenever such spot checks indicate that the agreements are
not being implemented in such a way that its customers are receiving
such proportionally equal treatment, the packer takes immediate steps to
expand or to supplement such agreements in a manner reasonably designed
to eliminate the repetition or continuation of any such discriminations
in the future.
Intermediaries, subject to the Packers and Stockyards Act,
administering promotional assistance programs on behalf of a packer may
be in violation of the provisions of the Packers and Stockyards Act, if
they have agreed to perform the packer's obligations under the Act with
respect to a program which they have represented to be usable and
suitable for all the packer's competing customers if it should later
develop that the program was not offered to all or, if offered, was not
usable or suitable, or was otherwise administered in a discriminatory
manner.
6. Customer's liability. A customer, subject to the Packers and
Stockyards Act, who knows, or should know, that it is receiving payments
or services which are not available on proportionally equal terms to its
competitors engaged in the resale of the same packer's products may be
in violation of the provisions of the Act. Also, customers (subject to
the Packers and Stockyards Act) that make unauthorized deductions from
purchase invoices for alleged advertising or other promotional
allowances may be proceeded against under the provisions of the Act.
[[Page 56]]
Example: A customer subject to the Act should not induce or receive
an allowance in excess of that offered in the packer's advertising plan
by billing the packer at ``vendor rates'' or for any other amount in
excess of that authorized in the packer's promotion program.
7. Meeting competition. A packer charged with discrimination under
the provisions of the Packers and Stockyards Act may defend its actions
by showing that the payments were made or the services were furnished in
good faith to meet equally high payments made by a competing packer to
the particular customer, or to meet equivalent services furnished by a
competing packer to the particular customer. This defense, however, is
subject to important limitations. For instance, it is insufficient to
defend solely on the basis that competition in a particular market is
very keen, requiring that special allowances be given to some customers
if a packer is ``to be competitive.''
8. Cost justification. It is no defense to a charge of unlawful
discrimination in the payment of an allowance or the furnishing of a
service for a packer to show that such payment or service could be
justified through savings in the cost of manufacture, sale, or delivery.
(Approved by the Office of Management and Budget under control number
0590-0001)
[58 FR 52886, Oct. 13, 1993; 58 FR 58902, Nov. 4, 1993]
Sec. 203.15 Trust benefits under sections 206 and 207 of the Act.
(a) Within the times specified under sections 206(b) and 207(d) of
the Act, any livestock seller, live poultry seller or grower, to
preserve his interest in the statutory trust, must give written notice
to the appropriate packer or live poultry dealer and file such notice
with the Secretary. One of the ways to satisfy the notification
requirement under these provisions is to make certain that notice is
given to the packer or live poultry dealer within the prescribed time by
letter, mailgram, or telegram stating:
(1) Notification to preserve trust benefits:
(2) Identification of packer or live poultry dealer;
(3) Identification of seller or poultry grower;
(4) Date of the transaction;
(5) Date of seller's or poultry grower's receipt of notice that
payment instrument has been dishonored (if applicable); and
(6) Amount of money due; and to make certain that a copy of such
letter, mailgram, or telegram is filed with a GIPSA Regional Office or
with GIPSA, USDA, Washington, DC 20250, within the prescribed time.
(b) While the above information is desirable, any written notice
which informs the packer or live poultry dealer and the Secretary that
the packer or live poultry dealer has failed to pay is sufficient to
meet the above-mentioned statutory requirement if it is given within the
prescribed time.
(Approved by the Office of Management and Budget under control number
0590-0001)
[54 FR 16357, Apr. 24, 1989]
Sec. 203.16 Mailing of checks in payment for livestock purchased for slaughter, for cash and not on credit.
(a) The Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) recognizes that one who sells
livestock to a packer, market agency, or dealer, who is purchasing for
slaughter, may not intend to be present at the point of transfer of
possession of the livestock, to receive payment, at the time a check in
payment for such livestock may be delivered by the purchaser, and may
not wish to authorize a representative to receive such a check; or for
other reasons such a seller may prefer that such a purchaser make
payment by mailing a check within the time limit as prescribed in
section 409(a) of the Act. In cases when the seller does not intend to
be present, he may use the following form of notification to the
purchaser:
I do not intend to be present at the point of transfer of possession
of livestock sold by me to (name of packer, market agency, or dealer)
for the purpose of receiving a check in payment for such livestock.
I hereby direct (name of packer, market agency, or dealer) to make
payment for livestock purchased from me, by mailing a check for the full
amount of the purchase price before the close of the next business day
following the purchase of livestock and transfer of possession thereof
or, in the case of a purchase on a ``carcass'' or ``grade and yield''
basis, not later than the close of the first business day following
determination of the purchase price.
This does not constitute an extension of credit to (name of packer,
market agency or
[[Page 57]]
dealer). This is subject to cancellation by me at any time, and if not
cancelled by (date), it shall terminate on that date.
If the seller, for reasons other than not being present to receive
payment, prefers to have the packer, market agency, or dealer make
payment by mailing a check within the time limit as provided in section
409(a), he may use the above form but should not include the statement
in the first sentence that he does not intend to be present.
(b) The Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) believes that such an agreement would
not constitute an extension of credit within the meaning of section 206
of the Act because it would not give the purchaser any more time to
issue a check than is provided in section 409(a).
(Approved by the Office of Management and Budget under control number
0590-0001)
(Sec. 401, 42 Stat. 168 (7 U.S.C 221); sec. 407, 42 Stat. 169 (7 U.S.C.
228); sec. 409, as added by sec. 7, 90 Stat. 1250 (7 U.S.C. 228b); 7 CFR
2.17, 2.54; 42 FR 35625; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501
et seq.); 7 U.S.C. 222 and 228 and 15 U.S.C. 46)
[42 FR 49929, Sept. 28, 1977, as amended at 49 FR 39516, Oct. 9, 1984]
Sec. 203.17 Statement of general policy with respect to rates and charges at posted stockyards.
(a) Requests have been received from stockyard operators, market
agencies, and livestock producers urging a reduction of rate regulation
at posted stockyards. Their requests are based on the belief that
competition among markets will set a level of rates and charges fair to
both the market operator and to the livestock producer. Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) will accept for filing tariffs containing any level
of charges after 10 days' notice to the public and to the Secretary as
required by the Act.
(b) Grain Inspection, Packers and Stockyards Administration (Packers
and Stockyards Programs) will not investigate the level of rates and
charges established by stockyard owners and market agencies for
reasonableness except upon receipt of a valid complaint or under
compelling circumstances warranting such an investigation. Stockyard
owners and market agencies will have substantial flexibility in setting
their own rates and charges.
(c) Complaints filed about the reasonableness of rates and charges
will be investigated to determine the validity of such complaints and
appropriate action taken if warranted.
(d) Grain Inspection, Packers and Stockyards Administration (Packers
and Stockyards Programs) will continue to insure that the schedules of
rates and charges filed with the Department are applied uniformly and in
a nondiscriminatory manner.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 203, 204, 207, 217a, 222 and 228)
[49 FR 33004, Aug. 20, 1984]
Sec. 203.18 Statement with respect to packers engaging in the business of custom feeding livestock.
(a) In its administration of the Packers and Stockyards Act, the
Grain Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) has sought to promote and maintain open and fair
competition in the livestock and packing industries, and to prevent
unfair or anticompetitive practices when they are found to exist. It is
the opinion of the Administration that the ownership or operation of
custom feedlots by packers presents problems which may, under some
circumstances, result in violations of the Packers and Stockyards Act.
(b) Packers contemplating entering into such arrangements with
custom feedlots are encouraged to consult with the Administration prior
to the commencement of such activities. Custom feedlots are not only
places of production, but are also important marketing centers, and in
connection with the operation of a custom feedlot, it is customary for
the feedlot operator to assume responsibility for marketing fed
livestock for the accounts of feedlot customers. When a custom feedlot
is owned or operated by a packer, and when such packer purchases fed
livestock from the feedlot, this method of operation potentially gives
rise to a conflict of interest. In such situations,
[[Page 58]]
the packer's interest in the fed livestock as a buyer is in conflict
with its obligations to feedlot customers to market their livestock to
the customer's best advantage. Under these circumstances, the packer
should take appropriate measures to eliminate any conflict of interest.
At a minimum, such measures should insure:
(1) That feedlot customers are fully advised of the common ties
between the feedlot and the packer, and of their rights and options with
respect to the marketing of their livestock;
(2) That all feedlot customers are treated equally by the packer/
custom feedlot in connection with the marketing of fed livestock; and
(3) That marketing decisions rest solely with the feedlot customer
unless otherwise expressly agreed.
(c) Packer ownership or operation of custom feedlots may also give
rise to competitive problems in some situations. Packers contemplating
or engaging in the business of operating a custom feedlot should
carefully review their operations to assure that no restriction of
competition exists or is likely to occur.
(d) The Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) does not consider the existence of
packer/custom feedlot relationships, by itself, to constitute a
violation of the Act. In the event it appears that a packer/custom
feedlot arrangement gives rise to a violation of the Act, an
investigation will be made on a case-by-case basis, and, where
warranted, appropriate action will be taken.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 203, 204, 207, 217a, 222 and 228)
[49 FR 33004, Aug. 20, 1984]
Sec. 203.19 Statement with respect to packers engaging in the business of livestock dealers or buying agencies.
(a) In its administration of the Packers and Stockyards Act, the
Grain Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) has sought to prevent conflicts of interest and to
maintain open and fair competition in the livestock and meat packing
industries. The ownership or operation of livestock dealers or buying
agencies by packers, under some circumstances, may result in violations
of the Packers and Stockyards Act.
(b) Traditionally, livestock dealers and buying agencies purchase
livestock for resale or to fill orders for farmers, ranchers, producers,
other livestock firms and packers. When a livestock dealer or buying
agency is owned or operated by a packer, and when such packer is also
buying livestock for its own operational requirements, there is a
potential conflict of interest. Furthermore, the purchase and sale of
livestock by meat packers may result in control of markets and prices
which could adversely affect both livestock producers, competing
packers, and consumers.
(c) Arrangements between packers and dealers or buying agencies
which do not normally create a conflict of interest or result in a
restraint of competition include:
(1) Operations utilizing different species or classes of livestock;
(2) operations where the business activities are widely separated
geographically; and (3) operations where tie-in purchases or sales are
not involved. Packers contemplating engaging in the business of a
livestock dealer or a buying agency are encouraged to consult with the
Grain Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) prior to the commencement of such activities.
(d) In the event a packer/dealer or a packer/buying agency
arrangement appears to give rise to a violation of the Act, an
investigation will be made on a case-by-case basis and, where warranted,
appropriate action will be taken.
(Approved by the Office of Management and Budget under control number
0590-0001)
(7 U.S.C. 228, 228b, 222, 15 U.S.C. 46)
[49 FR 32845, Aug. 17, 1984; 54 FR 26349, June 23, 1989]
PART 204--ORGANIZATION AND FUNCTIONS--Table of Contents
Public Information
Sec.
[[Page 59]]
204.1 Introduction.
204.2 Organization.
204.3 Delegation of authority.
204.4 Public inspection and copying.
204.5 Indexes.
204.6 Requests for records.
204.7 Appeals.
Authority: 5 U.S.C. 552.
Source: 49 FR 46528, Nov. 27, 1984, unless otherwise noted.
Public Information
Sec. 204.1 Introduction.
The Grain Inspection, Packers and Stockyards Administration (Packers
and Stockyards Programs) hereby describes its central and field
organization; indicates the established places at which, and methods
whereby, the public may secure information; directs attention to the
general course and method by which its functions are channeled; and sets
forth the procedures governing the availability of opinions, orders, and
other records in the files of said Administration.
Sec. 204.2 Organization.
(a) The Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) consists of a headquarters office
located in the South Building of the U.S. Department of Agriculture in
Washington, DC, and 12 regional offices. The Washington headquarters
office is organized to include the Office of the Administrator and two
Divisions, the Packer and Poultry Division and the Livestock Marketing
Division.
(b) Office of the Administrator. This office has overall
responsibility for administering the provisions of the Packers and
Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et
seq.), for enforcement of the Truth-in-Lending Act (15 U.S.C. 1601-1665)
with respect to any activities subject to the Packers and Stockyards Act
and for executing assigned civil defense and defense mobilization
activities. These responsibilities include formulation of current and
long-range programs relating to assigned functions; execution of the
policies and programs administered by the Grain Inspection, Packers and
Stockyards Administration (Packers and Stockyards Programs); review and
evaluation of program operations for uniform, effective, and efficient
administration of the Packers and Stockyards Act; and maintenance of
relations and communications with producer and industry groups.
(1) Administrator. The Secretary of Agriculture has delegated
responsibility for administration of the Packers and Stockyards Act to
the Administrator who is responsible for the general direction and
supervision of programs and activities assigned to the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
except such activities as are reserved to the Judicial Officer (32 FR
7468). The Administrator reports to the Assistant Secretary for
Marketing and Inspection Services.
(2) Deputy Administrator. The Deputy Administrator assists the
Administrator in the overall responsibility for the general direction
and supervision of programs and activities assigned to the Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs).
(3) Assistant to the Administrator. The Assistant to the
Administrator participates with the Administrator and Deputy
Administrator in the development and analysis of policies and programs,
and directs the management support services and related activities of
the Grain Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs).
(4) Director, Industry Analysis Staff. The Director of the Industry
Analysis Staff participates with the Administrator and Deputy
Administrator in the development and analysis of policies and programs
and directs economic studies of structure and performance of the
livestock, meat, and poultry marketing, processing, and wholesaling
industries. The results of these studies are used to provide economic
advice to the Administrator in developing overall policy on antitrust
matters and effects of practices or impediments in the marketing system.
The Director works closely with the Directors of the Packer and Poultry
and the Livestock Marketing Divisions in connection with investigations
to provide economic advice and expert testimony in trials and
administrative
[[Page 60]]
hearings. The Director also coordinates activities and works closely
with the Federal Trade Commission and Justice Department in studying the
effects of mergers and antitrust matters in the livestock, meat packing
and poultry industries.
(c) Packer and Poultry Division. This Division carries out the
enforcement of the provisions of the Packers and Stockyards Act relating
to packers and live poultry dealers and handlers. The responsibilities
and functions include: Determination of applicability of the provisions
of the Act to individual packer and poultry operations; surveillance of
these operations; investigation of complaints; initiation of formal
proceedings, when warranted, to correct illegal practices; and
maintenance of working relationships with the meat packer and poultry
industries. These responsibilities and functions are accomplished with
programs and activities directed through the Livestock Procurement
Branch, Meat Merchandising Branch, and Poultry Branch. The Division
Director participates with the Administrator and Deputy Administrator in
the development and evaluation of policies and programs to fulfill the
Agency's responsibilities and functions. The Director implements and
directs the policies and programs pertaining to the Packer and Poultry
Division through the three branches.
(d) Livestock Marketing Division. This Division enforces those
provisions of the Packers and Stockyards Act relating to stockyard
owners, market agencies, and dealers. The responsibilities and functions
include: determination of the applicability of the jurisdiction,
bonding, financial and trade practice provisions of the Act to
individual operations; supervision of the installation, maintenance, and
testing of scales; surveillance and investigations of stockyards, market
agencies, and dealers; initiation of formal proceedings, when warranted,
to correct illegal practices; and maintenance of working relationships
with producer and industry groups. These responsibilities and functions
are accomplished with programs and activities directed through the
Financial Protection Branch, Marketing Practices Branch, and Scales and
Weighing Branch. The Division Director participates with the
Administrator and Deputy Administrator in the development and evaluation
of policies and programs to fulfill the Agency's responsibilities and
functions. The Director implements and directs the policies and programs
pertaining to the Livestock Marketing Division through the three
branches.
(e) Field Services. (1) The field services of the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
is divided into 12 regional offices. These offices are responsible for
supervision of operations of stockyard companies, market agencies,
dealers, packers and live poultry dealers and handlers to assure
compliance with the Act. They formulate recommendations relating to the
enforcement of the Act; receive and investigate complaints, including
reparation complaints; audit books, records, and reports of persons
subject to the Act; conduct investigations to determine the existence of
and develop evidence of unfair, deceptive, and discriminatory trade
practices; prepare investigative reports and recommend corrective
action; assist in the prosecution of cases; review applications for
registration and rate changes for accuracy and compliance; and maintain
relationships with producers, the trade, States and other groups
interested in the welfare of the livestock, meat packing, and poultry
industries concerning enforcement of the Act.
(2) The addresses and the States covered by these offices, which are
under regional supervisors, are as follows:
Atlanta--Room 338, 1720 Peachtree Street, NW., Atlanta, Georgia 30309
(Alabama, Florida, Georgia, South Carolina)
Bedford--Turnpike Road, Box 101E, Bedford, Virginia 25423 (District of
Columbia, Delaware, Maryland, North Carolina, Virginia, West Virginia)
Denver--208 Livestock Exchange Building, Denver, Colorado 80216
(Colorado, Montana, New Mexico, Utah, Wyoming)
Fort Worth--Room 8A36, Federal Building, 819 Taylor Street, Fort Worth,
Texas 76102 (Oklahoma, Texas)
Indianapolis--Room 434 Federal Building and U.S. Courthouse, 46 E. Ohio
Street, Indianapolis, Indiana 46204 (Illinois, Indiana, Kentucky,
Michigan, Ohio)
[[Page 61]]
Kansas City--828 Livestock Exchange Building, Kansas City, Missouri
64102 (Kansas, Missouri)
Lawndale--15000 Aviation Boulevard, Room 2W6, P.O. Box 6102, Lawndale,
California 90261 (Arizona, California, Hawaii, Nevada)
Memphis--Room 459, Federal Building, 167 Main Street, Memphis, Tennessee
38103 (Arkansas, Louisiana, Mississippi, Tennessee)
North Brunswick--825 Georges Road, Room 303, North Brunswick, New Jersey
08902 (Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New
York, Pennsylvania, Rhode Island, Vermont)
Omaha--909 Livestock Exchange Building, Omaha, Nebraska 68107 (Iowa,
Nebraska)
Portland--9370 S.W. Greenburg Road, Suite E, Portland, Oregon 97223
(Alaska, Idaho, Oregon, Washington)
South St. Paul--208 Post Office Building, Box 8, South St. Paul,
Minnesota 55075 (Minnesota, North Dakota, South Dakota, Wisconsin)
Sec. 204.3 Delegation of authority.
(a) Deputy Administrator. Under the direction of the Administrator,
the Deputy Administrator is hereby delegated authority to perform all
the duties and exercise all the functions and powers which are now or
which may hereafter be, vested in the Administrator (including the power
of redelegation).
(b) Division Directors. The Directors of the Industry Analysis
Staff, the Livestock Marketing Division, and the Packer and Poultry
Division, under administrative and technical direction of the
Administrator and the Deputy Administrator, are hereby individually
delegated authority, in connection with the respective functions
assigned to each of said organizational units in Sec. 204.2 to perform
all the duties and to exercise all the functions and powers which are
now, or which may hereafter be, vested in the Administrator (including
the power of redelegation) except such authority as is reserved to the
Administrator and Deputy Administrator under paragraph (g) of this
section.
(c) Regional Supervisors. (1) The Regional Supervisors of the Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs) are hereby individually delegated authority under
the provisions of section 402 of the Packers and Stockyards Act, 1921,
as amended (7 U.S.C. 222), to issue special orders pursuant to the
provisions of section 6(b) of the Federal Trade Commission Act (15
U.S.C. 46(b)), and, with respect thereto, to issue notices of default
provided for in section 10 of the Federal Trade Commission Act (15
U.S.C. 50); to notify persons deemed to be subject to the bonding
requirements in 7 U.S.C. 204 of their obligations to file bonds or trust
fund agreements in conformity with regulations issued under this chapter
including authority to determine that a bond is inadequate under
Sec. 201.30(f) of this chapter and to give notice to the person of the
amount of bond required; to notify persons deemed to be subject to the
reporting requirements in Sec. 201.97 of this chapter of their
obligations to file annual reports; and to grant reasonable requests for
extensions of 30 days or less for the filing of such annual reports.
(2) The Regional Supervisors are hereby individually delegated
authority, when there is reason to believe that there is a question as
to the true ownership of livestock sold by any person, to disclose
information relating to such questionable ownership to any interested
person.
(d) Investigative employees. All employees of the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
assigned to or responsible for investigations in the enforcement of the
Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), or
the enforcement of the Truth-in-Lending Act (15 U.S.C. 1601-1665), with
respect to any activities subject to the Packers and Stockyards Act, are
hereby individually delegated authority under the Act of January 31,
1925, 43 Stat. 803, 7 U.S.C. 2217, to administer to or take from any
person an oath, affirmation, or affidavit whenever such oath,
affirmation, or affidavit is for use in any prosecution or proceeding
under or in the enforcement of the aforementioned Acts. This authority
may not be redelegated and will automatically expire upon the
termination of the employment of such employees with the Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs).
[[Page 62]]
(e) Concurrent authority. No delegation prescribed herein shall
preclude the Administrator or Deputy Administrator from exercising any
of the powers or functions or from performing any of the duties
conferred upon them, and any such delegation is subject at all times to
withdrawal or amendment by the Administrator or Deputy Administrator or
the Division Director responsible for the function involved.
(f) Prior delegations. All prior delegations and redelegations of
authority relating to any function or activity covered by these
delegations of authority shall remain in effect except as they are
inconsistent herewith or are hereafter amended or revoked. Nothing
herein shall affect the validity of any action heretofore taken under
prior delegations or redelegations of authority or assignment of
functions.
(g) Reservations of authority. It is hereby reserved to the
Administrator and Deputy Administrator authority with respect to
proposed rulemaking and final action for the issuance of regulations
(Sec. 201.1 of this chapter et seq.), rules of practice governing
proceedings (Sec. 202.1 of this chapter et seq.), and statements of
general policy (Sec. 203.1 of this chapter et seq.), and the issuance of
moving papers as prescribed in the rules of practice governing formal
adjudicatory administrative proceedings instituted by the Secretary (7
CFR part 1, subpart H, Sec. 1.133); and the authority to make final
determinations in accordance with the provisions of 7 CFR part 1,
subpart A, as to the availability of official records and information
made or obtained in connection with the administration of the Packers
and Stockyards Act which are considered exempt from disclosure under
Sec. 204.7 of this part. Further, authority to issue subpoenas (7 U.S.C.
222 and 15 U.S.C. 49) is reserved to the Administrator and Deputy
Administrator.
Sec. 204.4 Public inspection and copying.
(a) Facilities for public inspection and copying of the indexes and
materials required to be made available under 7 CFR 1.2(a) will be
provided by the Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs) during normal hours of operation.
Requests for this information should be made to the Freedom of
Information Act Officer, Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs, United States
Department of Agriculture, Washington, DC 20250.
(b) Copies of such materials may be obtained in person or by mail.
Applicable fees for copies will be charged in accordance with the
regulations prescribed by the Director of Information, Office of
Governmental and Public Affairs, USDA.
Sec. 204.5 Indexes.
Pursuant to the regulations in 7 CFR 1.4(b), the Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs)
will maintain and make available for public inspection and copying
current indexes of all material required to be made available in 7 CFR
1.2(a). Notice is hereby given that publication of these indexes is
unnecessary and impractical, since the material is voluminous and does
not change often enough to justify the expense of publication.
Sec. 204.6 Requests for records.
(a) Requests for records under 5 U.S.C. 552(a)(3) shall be made in
accordance with 7 CFR 1.3(a). Authority to make determinations regarding
initial requests in accordance with 7 CFR 1.4(c) is delegated to the
Freedom of Information Act Officer of the Grain Inspection, Packers and
Stockyards Administration (Packers and Stockyards Programs). Requests
should be submitted to the FOIA Officer at the following address:
Freedom of Information Act Officer (FOIA Request), Grain Inspection,
Packers and Stockyards Administration (Packers and Stockyards Programs),
United States Department of Agriculture, Washington, DC 20250.
(b) The request shall identify each record with reasonable
specificity as prescribed in 7 CFR 1.3.
(c) The FOIA Officer is authorized to receive requests and to
exercise the authority to (1) make determination to grant requests or
deny initial requests; (2) extend the administrative deadline;
[[Page 63]]
(3) make discretionary release of exempt records; and (4) make
determinations regarding charges pursuant to the fee schedule.
Sec. 204.7 Appeals.
Any person whose request under Sec. 204.6 of this part is denied
shall have the right to appeal such denial in accordance with 7 CFR
1.3(e). Appeals shall be addressed to the Administrator, Grain
Inspection, Packers and Stockyards Administration (Packers and
Stockyards Programs), U.S. Department of Agriculture, Washington, DC
20250.
PART 205--CLEAR TITLE--PROTECTION FOR PURCHASERS OF FARM PRODUCTS--Table of Contents
Definitions
Sec.
205.1 Definitions.
Regulations
205.101 Certification--request and processing.
205.102 Name of person subjecting a farm product to a security
interest, on EFS and master list--format.
205.103 EFS--minimum information.
205.104 Registration of buyer, commission merchant, or selling agent--
minimum information.
205.105 Master list and portion thereof distributed to registrants--
format.
205.106 Farm products.
205.107 Crop year.
Interpretive Opinions
205.201 System operator.
205.202 ``Effective financing statement'' or EFS.
205.203 Place of filing EFS.
205.204 Filing ``notice'' of EFS.
205.205 Fees.
205.206 Farm products.
205.207 ``Amount'' and ``reasonable description of the property.''
205.208 Distribution of portions of master list--registration--
information to non-registrants on request.
205.209 Amendment or continuation of EFS.
205.210 Effect of EFS outside State in which filed.
205.211 Applicability of court decisions under the UCC.
205.212 ``Buyer in ordinary course of business'' and ``security
interest.''
205.213 Obligations subject--``person indebted''--``debtor.''
205.214 Litigation as to whether a system is operating in compliance
with the Section.
Authority: 7 U.S.C. 1631 and 7 CFR 2.22, 2.81.
Source: 51 FR 29451, Aug. 18, 1986, unless otherwise noted.
Definitions
Sec. 205.1 Definitions.
Terms defined in section 1324 of the Food Security Act of 1985, Pub.
L. 99-198, 99 Stat. 1535, 7 U.S.C. 1631, shall mean the same in this
part as therein. In addition, except as otherwise specified, as used in
this part:
(a) The Secretary means the Secretary of Agriculture of the United
States;
(b) The Section means section 1324 of the above-cited Act, and
``subsection'' means a subsection of that Section;
(c) System means central filing system as defined in subsection
(c)(2);
(d) EFS means effective financing statement as defined in subsection
(c)(4);
(e) System operator means Secretary of State or other person
designated by a State to operate a system;
(f) Registrant means any buyer of farm products, commission
merchant, or selling agent, as referred-to in the Section, registered
with a system under subsection (c)(2)(D);
(g) Master list means the accumulation of data in paper, electronic,
or other form, described in subsection (c)(2)(C);
(h) Portion means portion of the master list distributed to
registrants under subsection (c)(2)(E);
(i) UCC or Uniform Commercial Code means the Uniform Commercial Code
prepared under the joint sponsorship of the American Law Institute and
the National Conference of Commissioners on Uniform State Laws, and in
effect in most States of the United States at the time of enactment of
Pub. L. 99-198.
Regulations
Sec. 205.101 Certification--request and processing.
(a) To obtain certification of a system, a written request for
certification must be filed together with such documents as show that
the system complies with the Section. If such material is voluminous, a
summary, table of
[[Page 64]]
contents, and index must accompany it as necessary to facilitate review.
(b) The request must:
(1) Include an introductory explanation of how the system will
operate;
(2) Identify the information which will be required to be supplied
on an EFS;
(3) Identify where an EFS, amendment thereto, or continuation
thereof, will be filed and, if elsewhere than with the system operator,
explain how and in what form the system operator will receive
information needed to compile and update the master list;
(4) Explain the method for recording the date and hour of filing of
an EFS, amendment thereto, or continuation thereof;
(5) Explain how the master list will be compiled, including the
method and form of storage and arrangement of information, explain the
method and form of retrieval of information from the master list, the
method and form of distribution of portions of the master list to
registrants as required by subsection (c)(2)(E), and the method and form
of furnishing of information orally with written confirmation as
required by subsection (c)(2)(F) (details of computer hardware and
software need not be furnished but the results it will produce must be
explained);
(6) Explain how the list of registrants will be compiled, including
identification of where and how they will register, what information
they must supply in connection with registration, and the method and
form of storage and retrieval of such information (details of computer
hardware and software need not be furnished but the results it will
produce must be explained);
(7) Show how frequently portions of the master list will be
distributed regularly to registrants;
(8) Show the farm products according to which the master list will
be organized;
(9) Show how the system will interpret the term ``crop year'' and
how it will classify as to crop year an EFS not showing crop year;
(10) Show what fee will be charged and explain how the costs of the
system will be covered if not by such fee and the general revenue of the
State; and
(11) Include copies of:
(i) All State legislation or other legal authority under which the
system is created and operated, and the system operator is designated;
(ii) All regulations, rules and requirements issued under such
legislation or other legal authority and governing operation of the
system, designation of the system operator, and use of the system by
members of the public; and
(iii) All printed and electronic forms required to be used in
connection with the system.
(c) Any such request and attachments must be filed in triplicate
(one copy for public inspection, a second copy for use in GIPSA, and a
third copy for use in the Office of the General Counsel, USDA). All
three copies must be received in the headquarters of the Grain
Inspection, Packers and Stockyards Administration Packers and Stockyards
Programs), USDA, Washington, DC 20250.
(d) A refusal to certify such a system, if any, will be explained in
writing. Reconsideration of such a refusal must be requested in writing
with specification of errors believed to have been made.
(e) To make changes to an existing certified central filing system,
including changes necessitated or made possible by amendments to the
Act, a written request to amend the existing certified central filing
system must be filed together with such documents as are necessary to
show that the system complies with the Act. The request must contain
relevant new information consistent with the requirements specified
elsewhere in this section.
[51 FR 29451, Aug. 18, 1986, as amended at 61 FR 54728, Oct. 22, 1996]
Sec. 205.102 Name of person subjecting a farm product to a security interest, on EFS and master list--format.
On an EFS, and on a master list, the name of the person subjecting a
farm product to a security interest must appear as follows:
(a) In the case of a natural person, the surname (last name or
family name) must appear first;
(b) In the case of a corporation or other entity not a natural
person, the
[[Page 65]]
name must appear beginning with the first word or character not an
article or punctuation mark.
Sec. 205.103 EFS--minimum information.
(a) The minimum information necessary on an EFS is as follows:
(1) Crop year unless every crop of the farm product in question, for
the duration of the EFS, is to be subject to the particular security
interest;
(2) Farm product name (see Secs. 205.106, 205.206);
(3) Each county or parish in the same State where the farm product
is produced or to be produced;
(4) Name and address of each person subjecting the farm product to
the security interest, whether or not a debtor (see Sec. 205.102);
(5) Social security number or, if other than a natural person, IRS
taxpayer identification number, of each such person;
(6) Further details of the farm product subject to the security
interest if needed to distinguish it from other such product owned by
the same person or persons but not subject to the particular security
interest (see Sec. 205.207); and
(7) Secured party name and address.
(b) A requirement of additional information on an EFS is
discretionary with the State.
(c) Whether to permit one EFS to reflect multiple products, or
products in multiple counties, is discretionary with the State.
Sec. 205.104 Registration of buyer, commission merchant, or selling agent--minimum information.
(a) The minimum information necessary on a registration of a buyer,
commission merchant, or selling agent is as follows:
(1) Buyer, commission merchant, or selling agent name and address;
(2) Farm product or products (see Secs. 205.106, 205.206) in which
registrant is interested; and
(3) If registrant is interested only in such product or products
produced in a certain county or parish, or certain counties or parishes,
in the same State, the name of each such county or parish.
(b) A registrant, if not registered for any specified county or
parish, or counties or parishes, must be deemed to have registered for
all counties and parishes shown on the master list.
(c) A requirement of additional information on a registration form
is discretionary with the State.
Sec. 205.105 Master list and portion thereof distributed to registrants--format.
(a) The master list must contain all the information on all the
EFS's filed in the system, so arranged that it is possible to deliver to
any registrant all such information relating to any product, produced in
any county or parish (or all counties or parishes), for any crop year,
covered by the system. The system must be able to deliver all such
information to any registrant, either in alphabetical order by the word
appearing first in the name of each person subjecting a product to a
security interest (see Sec. 205.102), in numerical order by social
security number (or, if other than a natural person, IRS taxpayer
identification number) of each such person, or in both alphabetical and
numerical orders, as requested by the registrant.
(b) Section (c)(2)(E) requires the portion to be distributed in
``written or printed form.'' This means recording on paper by any
technology in a form that can be read by humans without special
equipment. The system may, however, honor requests from registrants to
substitute recordings on any medium by any technology including, but not
limited to, electronic recording on tapes or discs in machine-readable
form, and on photographic recording on microfiche. It also includes, if
requested by registrants, electronic transmissions whereby registrants
can print their own paper copies.
(c) After distribution of a portion of a master list, there can be
supplementary distribution of a portion showing only changes from the
previous one. However, if this is done, cumulative supplements must be
distributed often enough that readers can find all the information given
to them for
[[Page 66]]
any one crop year in no more than three distributions.
[51 FR 29451, Aug. 18, 1986, as amended at 61 FR 54728, Oct. 22, 1996]
Sec. 205.106 Farm products.
The farm products, according to which the master list must be
organized as required by subsection (c)(2), and which must be identified
on an EFS as required by subsection (c)(4)(D)(iv), must be specific
commodities, species of livestock, and specific products of crops or
livestock. The Section does not permit miscellaneous categories.
Sec. 205.107 Crop year.
(a) The crop year, according to which subsection (c)(2)(C)(ii)(IV)
requires the master list to be arranged ``within each such product,''
must be:
(1) For a crop grown in soil, the calendar year in which it is
harvested or to be harvested;
(2) For animals, the calendar year in which they are born or
acquired;
(3) For poultry or eggs, the calendar year in which they are sold or
to be sold.
(b) An EFS or notice thereof which does not show crop year (the
Section does not require it to do so) must be regarded as applicable to
the crop or product in question for every year for which subsection
(c)(4)(F) makes the EFS effective.
Interpretive opinions
Sec. 205.201 System operator.
The system operator can be the Secretary of State of a State, or any
designee of the State pursuant to its laws. Note that the provision in
subsection (c)(2) for a system refers to operation by the Secretary of
State of a State, but the definition in (c)(11) of ``Secretary of
State'' includes ``designee of the State.''
Sec. 205.202 ``Effective financing statement'' or EFS.
(a) An EFS under subsection (c)(4) need not be the same as a
financing statement or security agreement under the Uniform Commercial
Code (or equivalent document under future successor State law), but can
be an entirely separate document meeting the definition in (c)(4). Note
that (c)(4) contains a comprehensive definition of the term which does
not include any requirement that the EFS be the instrument by which a
security interest is created or perfected. Note also the House Committee
Report on Pub. L. 99-198, No. 99-271, Part 1, September 13, 1985, at
page 110: ``[T]he bill would not preempt basic state-law rules on the
creation, perfection, or priority of security interests.''
(b) An EFS may be filed electronically provided a State allows
electronic filing of financing statements without the signature of the
debtor under applicable State law under provisions of the Uniform
Commercial Code or may be a paper document. An electronically filed EFS
need not be a paper document and need not be signed. If an original or
reproduced paper document of an EFS is filed with the State, it must be
signed by both the secured party and the debtor, and be filed by the
secured party.
(c) Countermeasures against mishandling after filing, such as a
requirement that a copy be date stamped and returned to the secured
party, are discretionary with the State. If a State chooses to adopt
such countermeasures, it is responsible for establishing procedures for
recording the date and time when an EFS is received, and for meeting all
legal requirements associated with filing and distributing information
about security interests as required by Sec. 205.101.
[51 FR 29451, Aug. 18, 1986, as amended at 61 FR 54728, Oct. 22, 1996]
Sec. 205.203 Place of filing EFS.
The place of filing an EFS is wherever State law requires, which
need not be with the system operator so long as the system operator
receives the information needed for the master list, including the
information required in subsection (c)(4)(D). Note that the requirements
in subsection (c)(4) for an EFS include the requirement that it be
``filed with the Secretary of State,'' but the definition in (c)(11) of
``Secretary of State'' includes ''designee of the State,'' and the
requirements in (c)(2) for a system refer in (A) to filing with the
system operator of ``effective
[[Page 67]]
financing statements or notice of such financing statements.'' (emphasis
added)
Sec. 205.204 Filing ``notice'' of EFS.
(a) If an EFS is filed somewhere other than with the system
operator, and if notice of it is filed with the system operator, such
notice could be electronic filing, telephoned information, or any other
form of notice which gives the system operator the information needed
for the master list. Such notice need not be signed. Note that the
Section does not contain any requirement for such notice except the one
in subsection (c)(4)(B) that an EFS must be filed somewhere pursuant to
State law as discussed above.
(b) Countermeasures against falsifications, errors or omissions in
such notices or in the handling of them by the system operator, such as
requirements that the notices be on paper and signed, with copies date-
stamped and returned to the persons filing them, however advisable they
might be from other standpoints, are discretionary with the State and
not required by the Section.
Sec. 205.205 Fees.
The Section provides at subsection (c)(4)(H) for a fee for filing an
EFS. The fee can be set in any manner provided by the law of the State
in which such EFS is filed. The basis for this is that (c)(4)(H)
provides for the fee to be set by the ``Secretary of State'' but (c)(11)
defines the latter term to include ``designee of the State.'' The fee
structure is discretionary with the State.
Sec. 205.206 Farm products.
(a) The master list must be organized by farm product as required by
subsection (c)(2), and the farm product must be identified on an EFS as
required by subsection (c)(4)(D)(iv). The following is a list of such
farm products.
Rice, rye, wheat, other food grains (system must specify by name)
Barley, corn, hay, oats, sorghum grain, other feed crops (system
must specify by name)
Cotton
Tobacco
Flaxseed, peanuts, soybeans, sunflower seeds, other oil crops
(system must specify by name)
Dry beans, dry peas, potatoes, sweet potatoes, taro, other
vegetables (system must specify by name)
Artichokes, asparagus, beans lima, beans snap, beets, Brussels
sprouts, broccoli, cabbage, carrots, cauliflower, celery, corn sweet,
cucumbers, eggplant, escarole, garlic, lettuce, onions, peas green,
peppers, spinach, tomatoes, other truck crops (system must specify by
name)
Melons (system must specify by name)
Grapefruit, lemons, limes, oranges, tangelos, tangerines, other
citrus fruits (system must specify by name)
Apples, apricots, avocados, bananas, cherries, coffee, dates, figs,
grapes (& raisins), nectarines, olives, papayas, peaches, pears,
persimmons, pineapples, plums (& prunes), pomegranates, other noncitrus
fruits (system must specify by name)
Berries (system must specify by name)
Tree nuts (system must specify by name)
Bees wax, honey, maple syrup, sugar beets, sugar cane, other sugar
crops (system must specify by name)
Grass seeds, legume seeds, other seed crops (system must specify by
name)
Hops, mint, popcorn, other miscellaneous crops (system must specify
by name)
Greenhouse & nursery products produced on farms (system must specify
by name)
Mushrooms, trees, other forest products (system must specify by
name)
Chickens, ducks, eggs, geese, turkeys, other poultry or poultry
products (system must specify by name)
Cattle & calves, goats, horses, hogs, mules, sheep & lambs, other
livestock (system must specify by name)
Milk, other dairy products produced on farms (system must specify by
name)
Wool, mohair, other miscellaneous livestock products produced on
farms (system must specify by name)
Fish, shellfish
Other farm products (system must specify by name).
(b) Note the definition of the term ``farm product'' at subsection
(c)(5), and the Conference Report on Pub. L. 99-198, No. 99-447,
December 17, 1985, at page 486.
(c) A State may establish a system for specified products and not
for all. A State establishing a system for specified products and not
for all will be deemed to be ``a State that has established a central
filing system'' as to the specified products, and will be deemed not to
be such a State as to other products.
[[Page 68]]
Sec. 205.207 ``Amount'' and ``reasonable description of the property.''
(a) The ``amount'' of farm products and ``reasonable description of
the property including county or parish,'' on an EFS and on the master
list under subsections (c)(4)(D)(iv) and (2)(C)(iii), need not be shown
on every EFS and master list entry.
(b) Any EFS and master list entry will identify a product. If they
do not show an amount, this constitutes a representation that all of
such product owned by the person in question is subject to the security
interest in question.
(c) Any EFS and master list entry will identify each county or
parish in the same State where the product is or is to be produced. If
they do not show any further identification of the location of the
product, this constitutes a representation that all such product
produced in each such county or parish, owned by such person, is subject
to the security interest.
(d) The need to supply additional information arises only where some
of that product owned by that person is subject to the security interest
and some is not.
(e) The additional information about amount and property must be
sufficient to enable a reader of the information to identify what
product owned by that person is subject, as distinguished from what of
the same product owned by the same person is not subject. The precision
needed, in the description of the amount and location, would vary from
case to case.
(f) The basis for this is the purpose of the entire exercise, to
make information available as necessary to enable an identification of
what product is subject to a security interest as distinguished from
what is not.
Sec. 205.208 Distribution of portions of master list--registration--information to non-registrants on request.
(a) The provisions in the Section regarding registration of ``buyers
of farm products, commission merchants, and selling agents,''
``regular'' distribution of ``portions'' of the master list, furnishing
of ``oral confirmation * * * on request,'' and the effect of all this,
that is, subsections (c)(2) (D), (E) and (F), (e) (2) and (3), and
(g)(2) (C) and (D), must be read together.
(b) The Section does not require such persons to register. Not
registering with a particular system operator has the effect, under
subsections (e)(2) and (g)(2)(C), of making such persons, whether they
are inside or outside the State covered by that system, subject to
security interests shown on that system's master list whether or not
such persons know about them, so that such persons for their own
protection will need to query the system operator about any seller
``engaged in farming operations,'' of a farm product produced in the
State covered by that system, with whom they deal.
(c) The effect of registration by such persons with a particular
system is to get them on the list for regular distribution of portions
of that system's master list, the portions to be determined by the
registration. They are subject only to security interests shown on the
portions which they receive, and are not subject to such interests as
are shown on the master list but not shown on portions which they
receive. Also, if a particular security interest is shown on the master
list, but has been placed on it since the last regular distribution of
portions of that list to registrants, registrants would not be subject
to that security interest. These conclusions are based on the provisions
in subsections (e)(3)(A) and (g)(2)(D)(i) that such persons are subject
to a security interest only if they receive ``written notice * * * that
specifies both the seller and the farm product.''
(d) A question arises as to the length of time for which a
registration is effective, and whether a registrant, wishing to change
registration as to county or product, can amend an existing registration
or must file a new one. This is discretionary with the State since the
Section is silent about it.
(e) A question arises whether persons can register to receive only
portions of the list for products in which they do not deal, and thus
not be subject to security interests in products in which they deal
because they are registrants but do not receive written notice of them.
For example, can cattle dealers
[[Page 69]]
register to receive portions of the master list only for oranges, and
thus take cattle free and clear of security interests shown on the
master list, but as to which they do not receive written notice because
they have not registered to receive the portion for cattle? Registrants
will be deemed to be registered only as to those portions of the master
list for which they register, and will be deemed to have failed to
register as to those portions for which they do not register.
(f) The Section requires ``regular'' distribution, to registrants,
of portions of the master list as amended from time to time by the
filing of EFS's and amendments to EFS's. The requirement that the
distribution be ``regular'' necessarily refers to an interval specified
in advance. The interval may vary according to product and region. The
frequency of such distribution must be a consideration in review for
certification since distribution must be timely to serve its purpose.
While subsection (c)(2)(E) (providing that distribution be made
``regularly as prescribed by the State'') gives each State discretion to
choose the interval between distributions, whatever interval a State
chooses will inevitably make possible some transactions in which
security interests are filed in the system but registrants are not
subject to them.
(g) Legislative history of the Section shows that buyers, commission
merchants, and selling agents are not intended to be liable for errors
or other inaccuracies generated by the system. See Nov. 22, 1985 Cong.
Rec., Senate, pg. S16300, and Dec. 18, 1985 Cong. Rec., House, pg.
H12523.
(h) In furnishing to non-registrants ``oral confirmation within 24
hours of any [EFS] on request followed by written confirmation,'' by a
system operator pursuant to subsection (c)(2)(F), any failure in use of
a telephone caused by a ``busy signal'' could not be the basis of
liability of the system operator. The basis for this is that subsection
(c)(2)(F) does not mention telephones. Also, while it mentions
furnishing information orally, it does not contain any provision as to
how queries are to be received, that is, orally, in writing, or
otherwise.
(i) Of course it is to be expected that telephones would be used in
most cases, but use of them is not required by the legislation and is
discretionary with the State.
(j) In the matter of receiving queries and giving oral replies to
them, subsection (c)(2)(F) will be complied with if a system operator
maintains an office and staff where a query can be received on business
days and during business hours such as are regular in the State, and
where an oral reply will be available on the regular business day
following the day on which the query is received, at or before the time
of day when it was received.
(k) Written confirmation is required, by subsection (c)(2)(F), to be
given to any non-registered buyer, commission merchant, or selling
agent.
(l) Such a written confirmation pursuant to subsection (c)(2)(F)
does not alter the liability of the non-registrant querying the system
and receiving information about a security interest recorded in it. The
basis of this, as above, is that non-registrants are subject to security
interests recorded in a system whether or not they know about them, and
must query the system for their own protection.
(m) The Section does not specify when or how the written
confirmation must be furnished, but provides only that it must follow
the oral information. Thus the time and method of furnishing written
confirmation is discretionary with the State.
Sec. 205.209 Amendment or continuation of EFS.
(a) The ``material change,'' required by subsection (c)(4)(E) to be
reflected in an amendment to an EFS and master list entry, is whatever
change would render the master list entry no longer informative as to
what is subject to the security interest in question. That will vary
from case to case. The basis for this is the purpose for which the
information is supplied, that is, to make information available, to a
buyer, commission merchant, or selling agent who proposes to enter into
a transaction in a product, whether it is subject to a security
interest. The requirement to amend arises when the information already
made available no
[[Page 70]]
longer serves the purpose and other information is needed in order to do
so.
(b) Where an owner of a product makes a change, such as planting a
different crop or purchasing different animals from what was
represented, without informing the secured party, so that the master
list entry is rendered not informative, but the EFS and master list are
not amended through no fault of the secured party, the Section is silent
as to the consequences. However, see the legislative history cited in
Sec. 205.208(f).
(c) The amendment must be filed in the same manner as the original
filing. Note the requirement of section (c)(4)(E). The amendment may be
filed electronically provided a State allows electronic filing of
financing statements without the signature of the debtor under
applicable State law under provisions of the Uniform Commercial Code. An
electronically filed amendment need not be signed. However, if an
original or reproduced paper document is filed, the amendment must be
signed by the secured party and the debtor, and be filed by the secured
party.
(d) An effective financing statement remains effective for a period
of 5 years from the date of filing and may be continued in increments of
5-year periods beyond the initial 5-year filing period by refiling an
effective financing statement or by filing a continuation statement
within 6 months before expiration of the effective financing statement.
A continuation statement may be filed electronically or as a paper
document, and need not contain the signature of the debtor.
[51 FR 29451, Aug. 18, 1986, as amended at 61 FR 54728, Oct. 22, 1996;
63 FR 66721, Dec. 3, 1998]
Effective Date Note: At 63 FR 66721, Dec. 3, 1998, Sec. 205.209 was
amended by revising paragraph (d), effective Jan. 4, 1999. For the
convenience of the user, the superseded text follows:
Sec. 205.209 Amendment or continuation of EFS.
* * * * *
(d) A continuation of an EFS is subject to the same requirement as
an amendment. The EFS as first filed expires in a given time. A
continuation modifies it as to its expiration date and thus is an
amendment.
Sec. 205.210 Effect of EFS outside State in which filed.
(a) A question arises whether, if an EFS is filed in one State, a
notice of it can be filed in another State and shown on the master list
for the second State. There is nothing in the Section to prevent this,
but it would serve no purpose.
(b) The Section provides only for filing an EFS, covering a given
product, in the system for the State in which it is produced. Upon such
filing in such system, subsections (e)(2) and (g)(2)(C) make buyers,
commission merchants and selling agents not registered with that system
subject to the security interest in that product whether or not they
know about it, even if they are outside that State. Subsections (e)(3)
and (g)(2)(D) make persons registered with that system subject if they
receive written notice of it even if they are outside that State. All of
these provisions apply only where an EFS is filed in the system for the
State in which the product is produced. They do not apply to a filing in
another system.
(c) What constitutes ``receipt'' of notice is determined by the law
of the State in which the intended recipient of notice resides. This is
based on subsection (f) which follows provisions for notice to buyers,
and (g)(3) which follows provisions for notice to commission merchants
and selling agents. Each of those provisions uses the word ``buyer'' but
it means ``intended recipient of notice.''
Sec. 205.211 Applicability of court decisions under the UCC.
(a) Court decisions under the Uniform Commercial Code (UCC), about
the scope of the ``farm products'' exception in Section 9-307(1)
thereof, and interpreting the terms therein, particularly ``person
engaged in farming operations'' which is not defined in the Section, are
applicable to an extent in interpreting the Section. The basis of this
is the legislative intent of the Section to pre-empt State laws
reflecting that ``farm products'' exception, as shown in the House
Committee Report
[[Page 71]]
on Pub. L. 99-198, No. 99-271, Part 1, September 13, 1985, at pages 108
et seq.
(b) That UCC Section 9-307(1) reads as follows:
(1) A buyer in ordinary course of business (subsection (9) of
Section 1-201) other than a person buying farm products from a person
engaged in farming operations takes free of a security interest created
by his seller even though the security interest is perfected and even
though the buyer knows of its existence. (emphasis added)
Sec. 205.212 ``Buyer in ordinary course of business'' and ``security interest.''
The terms ``buyer in ordinary course of business'' and ``security
interest'' are defined in subsections (c) (1) and (7). There are
differences between those definitions and the UCC definitions of the
same terms. In interpreting those differences, the following would be
pertinent:
(a) The legislative intent discussed above in Sec. 205.211, to pre-
empt State laws reflecting the ``farm products'' exception; and
(b) The legislative intent shown in subsections (a) and (b) that
certain persons take free and clear of certain interests of a ``secured
lender'' ``when the seller fails to repay the lender,'' unless such
persons have information about such interests made available to them as
provided in the Section.
Sec. 205.213 Obligations subject--``person indebted''--``debtor.''
(a) A debt need not exist at the time of filing of an EFS. The basis
for this is that subsection (c)(4) does not require the EFS, and
subsection (c)(2)(C) does not require the master list, to show any
amount of debt.
(b) The Section does not provide for the transaction in which one
person subjects a product to a security interest for another's debt.
However the terms ``person indebted'' and ``debtor'' in the Section
refer to the person who owns a product and subjects it to a security
interest, whether or not that person owes a debt to the secured party.
The basis for this is the purpose for which the information is supplied.
Any buyer of a farm product, commission merchant, or selling agent
querying a master list or system operator about a prospective seller of
a farm product is interested in whether that seller has subjected that
product to a security interest, not in whether the debt is owed by that
seller or by another.
(c) Security interests existing prior to establishment of a system
can be filed in such a system and reflected in the master list if
documents are in existence or are created which meet the requirements of
subsection (c)(4) besides filing, if such documents are filed wherever
State law requires, and if the system operator receives the information
about them needed for the master list.
(d) A system can be in compliance with the Section, although it
reflects security interests not supported by EFS's as defined in the
legislation, and although it reflects security interests on items other
than farm products. However, subsections (e) (2) and (3), and (g)(2) (C)
and (D), will apply only as to entries reflecting farm products and
supported by EFS's as defined in the Section, and it must be possible to
distinguish the entries to which these provisions apply from the other
entries.
Sec. 205.214 Litigation as to whether a system is operating in compliance with the Section.
(a) The requirements for a system in subsection (c) are written as
the definition of the term ``central filing system,'' so that failure of
a system to meet any such requirement, either at the time of its
establishment or later, will mean that it is not a ``central filing
system'' as defined.
(b) The issue whether a system, after certification, is operating in
compliance, thus whether it is a ``central filing system'' as defined,
could be litigated and ruled on in a case involving only private
parties, such as a lender and a buyer of a farm product. The only
immediate effect of a finding in such a case, that a system is not a
``central filing system'' as defined, would be that the rights of the
secured party in the case would be as if the State had no system.
However, others would be in doubt as to whether they could safely rely
on the same system.
[[Page 73]]
CHAPTER III--FOOD SAFETY AND
INSPECTION SERVICE,
DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
SUBCHAPTER A--AGENCY ORGANIZATION AND TERMINOLOGY; MANDATORY MEAT AND
POULTRY PRODUCTS INSPECTION AND VOLUNTARY INSPECTION AND CERTIFICATION
Part Page
300 Agency mission and organization............. 75
301 Definitions................................. 76
302 Application of inspection and other
requirements............................ 83
303 Exemptions.................................. 83
304 Application for inspection; grant or refusal
of inspection........................... 92
305 Official numbers; inauguration of
inspection; withdrawal of inspection;
reports of violation.................... 93
306 Assignment and authorities of program
employees............................... 95
307 Facilities for inspection................... 96
308 Sanitation.................................. 100
309 Ante-mortem inspection...................... 106
310 Post-mortem inspection...................... 113
311 Disposal of diseased or otherwise
adulterated carcasses and parts......... 130
312 Official marks, devices and certificates.... 139
313 Humane slaughter of livestock............... 144
314 Handling and disposal of condemned or other
inedible products at official
establishments.......................... 150
315 Rendering or other disposal of carcasses and
parts passed for cooking................ 153
316 Marking products and their containers....... 154
317 Labeling, marking devices, and containers... 159
318 Entry into official establishments;
reinspection and preparation of products 234
319 Definitions and standards of identity or
composition............................. 318
320 Records, registration, and reports.......... 337
321 Cooperation with States and territories..... 340
322 Exports..................................... 340
325 Transportation.............................. 342
[[Page 74]]
327 Imported products........................... 353
329 Detention; seizure and condemnation;
criminal offenses....................... 371
331 Special provisions for designated States and
Territories; and for designation of
establishments which endanger public
health and for such designated
establishments.......................... 373
335 Rules of practice governing proceedings
under the Federal Meat Inspection Act... 379
350 Special services relating to meat and other
products................................ 383
351 Certification of technical animal fats for
export.................................. 386
352 Exotic animals; voluntary inspection........ 392
354 Voluntary inspection of rabbits and edible
products thereof........................ 400
355 Certified products for dogs, cats, and other
carnivora; inspection, certification,
and identification as to class, quality,
quantity, and condition................. 425
362 Voluntary poultry inspection regulations.... 436
381 Poultry products inspection regulations..... 440
SUBCHAPTERS B-C [RESERVED]
SUBCHAPTER D--FOOD SAFETY AND INSPECTION SERVICE ADMINISTRATIVE
PROVISIONS
390 Freedom of information...................... 668
391 Fees and charges for inspection services and
laboratory accreditation................ 670
SUBCHAPTER E--REGULATORY REQUIREMENTS UNDER THE FEDERAL MEAT INSPECTION
ACT AND THE POULTRY PRODUCTS INSPECTION ACT
416 Sanitation.................................. 671
417 Hazard Analysis and Critical Control Point
(HACCP) Systems......................... 672
SUBCHAPTER I--EGG PRODUCTS INSPECTION ACT
590 Inspection of eggs and egg products (Egg
Products Inspection Act)................ 677
[[Page 75]]
SUBCHAPTER A--AGENCY ORGANIZATION AND TERMINOLOGY; MANDATORY MEAT AND
POULTRY PRODUCTS INSPECTION AND VOLUNTARY INSPECTION AND CERTIFICATION
PART 300--AGENCY MISSION AND ORGANIZATION--Table of Contents
Sec.
300.1 Purpose.
300.2 FSIS responsibilities.
300.3 FSIS organization.
300.6 Access to establishments and other places of business.
Authority: 21 U.S.C. 451-470, 601-695, 1031-1056; 7 U.S.C. 138-138i,
450, 1621-1627, 1901-1906; 7 CFR 2.7, 2.18, 2.53.
Source: 63 FR 72354, Dec. 31, 1998, unless otherwise noted.
Sec. 300.1 Purpose.
This part describes the duties and organization of the Food Safety
and Inspection Service (FSIS), an agency of the United States Department
of Agriculture (USDA).
Sec. 300.2 FSIS responsibilities.
(a) [Reserved]
(b) Implementing regulations. This chapter of title 9 of the Code of
Federal Regulations (9 CFR chapter III) includes, in addition to
administrative rules, rules and regulations that implement provisions of
the following statutes:
(1) The Federal Meat Inspection Act, as amended (FMIA) (21 U.S.C.
601 et seq.), except provisions pertaining to the inspection and
certification of the condition of animals for export, and related
legislation;
(2) The Poultry Products Inspection Act, as amended (PPIA) (21
U.S.C. 451 et seq.);
(3) The Egg Products Inspection Act, as amended (EPIA) (21 U.S.C.
1031 et seq.), except for the shell egg surveillance program, voluntary
laboratory analyses of egg products, and the voluntary grading program;
(4) The Humane Slaughter Act (7 U.S.C. 1901-1906);
(5) The Talmadge-Aiken Act (7 U.S.C. 450), with respect to
cooperation with States in the administration of the Federal Meat
Inspection Act and the Poultry Products Inspection Act;
(6) The Agricultural Marketing Act of 1946, as amended (7 U.S.C.
1621-1627), relating to voluntary inspection of poultry and edible
products thereof; voluntary inspection and certification of technical
animal fat; certified products for dogs, cats, and other carnivora;
voluntary inspection of rabbits and edible products thereof; and
voluntary inspection and certification of edible meat and other
products; and
(7) The National Laboratory Accreditation Program (7 U.S.C. 138-
138i) with respect to laboratories accredited only for pesticide residue
analysis in meat and poultry products.
Sec. 300.3 FSIS organization.
(a) General. The organization of FSIS reflects the agency's primary
regulatory responsibilities: implementation of the FMIA, the PPIA, and
the EPIA.
(b) Headquarters. FSIS has four principal components or offices,
each of which is under the direction of a Deputy Administrator. The
Deputy Administrators, along with their staffs, and the Administrator,
along with the Office of the Administrator and three staff offices that
report to the Administrator, are located at U.S. Department of
Agriculture headquarters in Washington, DC.
(1) Program offices. FSIS's headquarters offices are the Office of
Public Health and Science, which provides scientific analysis, advice,
data, and recommendations on matters involving public health and
science; the Office of Management, which provides centralized
administrative and support services; the Office of Policy, Program
Development and Evaluation, which develops and recommends domestic and
international policy activities; and the Office of Field Operations,
which manages regulatory oversight and inspection (see paragraph (c) of
this section).
[[Page 76]]
(2) Staff offices. The Administrator's staff offices are the Food
Safety Executive Management and Coordination Staff, the Legislative
Liaison Staff, and the Food Safety Education and Communications Staff.
(c) Field. FSIS's field structure consists of eighteen district
offices and a technical center.
(1) District offices. Each district office, under the direction of a
District Manager, manages a farm-to-table food safety program of
regulatory oversight and inspection in a district consisting of a State
or several States and territories.
The locations of the district offices and the districts' geographic
boundaries are as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
Alameda, CA....................... California.
Salem, OR......................... Alaska, American Samoa, Guam,
Hawaii, Idaho, Northern Mariana
Islands, Oregon, and Washington.
Boulder, CO....................... Arizona, Colorado, Nevada, New
Mexico, Utah.
Minneapolis, MN................... Minnesota, Montana, North Dakota,
South Dakota, and Wyoming.
Des Moines, IA.................... Iowa and Nebraska.
Lawrence, KS...................... Kansas and Missouri.
Springdale, AR.................... Arkansas, Louisiana, and Oklahoma.
Dallas, TX........................ Texas.
Madison, WI....................... Michigan and Wisconsin.
Chicago, IL....................... Illinois and Indiana.
Pickerington, OH.................. Kentucky, Ohio, and West Virginia.
Philadelphia, PA.................. Pennsylvania.
Albany, NY........................ New Jersey and New York.
Boston, MA........................ Connecticut, Maine, Massachusetts,
New Hampshire, Puerto Rico, Rhode
Island, Vermont, and Virgin
Islands.
Greenbelt, MD..................... Delaware, District of Columbia,
Maryland, and Virginia.
Raleigh, NC....................... North Carolina and South Carolina.
Atlanta, GA....................... Florida and Georgia.
Jackson, MS....................... Alabama, Mississippi, and Tennessee.
------------------------------------------------------------------------
(2) Technical Service Center. The Technical Service Center, which is
located in Omaha, Nebraska, provides technical guidance, review, and
training on the interpretation and application of regulatory
requirements.
Sec. 300.6 Access to establishments and other places of business.
(a) General. Upon presentation of credentials--
(1) Persons subject to provisions of the FMIA or the PPIA must
afford representatives of the Secretary access to establishments that
slaughter or otherwise prepare livestock products or process poultry
products and to other places of business subject to regulation
thereunder; and
(2) Persons subject to provisions of the EPIA must afford
representatives of the Secretary access as specified in part 590 of this
chapter.
(b) [Reserved]
PART 301--DEFINITIONS--Table of Contents
Sec.
301.1 Meaning of terms.
301.2 Definitions.
Authority: 7 U.S.C. 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 2.17,
2.55.
Sec. 301.1 Meaning of terms.
As used in this subchapter, unless otherwise required by the
context, the singular form shall also import the plural and the
masculine form shall also import the feminine, and vice versa.
[35 FR 15554, Oct. 3, 1970]
Sec. 301.2 Definitions.
As used in this subchapter, unless otherwise required by the
context, the following terms shall be construed, respectively, to mean:
(a) The Act. The Federal Meat Inspection Act, as amended, (34 Stat.
1260, as amended, 81 Stat. 584, 84 Stat. 438, 92 Stat. 1069, 21 U.S.C.,
sec. 601 et seq.).
[[Page 77]]
(b) Administrator. The Administrator of the Food Safety and
Inspection Service or any officer or employee of the Department to whom
authority has heretofore been delegated or may hereafter be delegated to
act in his/her stead.
(c) Adulterated. This term applies to any carcass, part thereof,
meat or meat food product under one or more of the following
circumstances:
(1) If it bears or contains any such 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;
(2)(i) If it bears or contains (by reason of administration of any
substance to the live animal or otherwise) any added poisonous or added
deleterious substance (other than one which is:
(A) A pesticide chemical in or on a raw agricultural commodity;
(B) A food additive; or
(C) A color additive which may, in the judgment of the
Administrator, make such article unfit for human food;
(ii) 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;
(iii) 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;
(iv) 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 deemed adulterated
under paragraphs (aa)(2) (ii), (iii), or (iv) of this section shall
nevertheless be deemed adulterated if use of the pesticide chemical food
additive, or color additive in or on such article is prohibited by the
regulations in this subchapter in official establishments;
(3) If it consists in whole or in part of any filthy, putrid, or
decomposed substance or is for any other reason unsound, unhealthful,
unwholesome, or otherwise unfit for human food;
(4) If it has been prepared, packed, or held under unsanitary
conditions whereby it may have become contaminated with filth, or
whereby it may have been rendered injurious to health;
(5) If it is, in whole or in part, the product of an animal which
has died otherwise than by slaughter;
(6) If its container is composed, in whole or in part, of any
poisonous or deleterious substance which may render the contents
injurious to health;
(7) 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;
(8) 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; or,
(9) If it is margarine containing animal fat and any of the raw
material used therein consisted in whole or in part of any filthy,
putrid, or decomposed substance, or is otherwise adulterated.
(d) Anesthesia. Loss of sensation or feeling.
(e) Animal food. Any article intended for use as food for dogs,
cats, or other animals derived wholly, or in part, from the carcass or
parts or products of the carcass of any livestock, except that the term
animal food as used herein does not include:
(1) Processed dry animal food or
(2) Livestock or poultry feeds manufactured from processed livestock
byproducts (such as meatmeal tankage, meat and bonemeal, bloodmeal, and
feed grade animal fat).
(f) Animal food manufacturer. Any person engaged in the business of
manufacturing or processing animal food.
(g) Area. One or more circuits under the supervision of an area
supervisor.
[[Page 78]]
(h) Area Supervisor. The official in charge of an area.
(i) Artificial coloring. A coloring containing any dye or pigment,
which dye or pigment was manufactured by a process of synthesis or other
similar artifice, or a coloring which was manufactured by extracting a
natural dye or natural pigment from a plant or other material in which
such dye or pigment was naturally produced.
(j) Artificial flavoring. A flavoring containing any sapid or
aromatic constituent, which constituent was manufactured by a process of
synthesis or other similar artifice.
(k) Biological residue. Any substance, including metabolites,
remaining in livestock at time of slaughter or in any of its tissues
after slaughter as the result of treatment or exposure of the livestock
to a pesticide, organic or inorganic compound, hormone, hormone-like
substance, growth promoter, antibiotic, anthelmintic, tranquilizer, or
other therapeutic or prophylactic agent.
(l) Capable of use as human food. This term applies to any carcass,
or part or product of a carcass, of any livestock, unless it is
denatured or otherwise identified as required by the applicable
provisions of Secs. 314.3, 314.10, 325.11, and 325.13 of this subchapter
to deter its use as a human food, or it is naturally inedible by humans;
e.g., hoofs or horns in their natural state.
(m) Captive bolt. A stunning instrument which when activated drives
a bolt out of a barrel for a limited distance.
(n) Carbon dioxide. A gaseous form of the chemical formula
CO2.
(o) Carbon dioxide concentration. Ratio of carbon dioxide gas and
atmospheric air.
(p) Carcass. All parts, including viscera, of any slaughtered
livestock.
(q) Chemical preservative. Any chemical that, when added to a meat
or meat food product, tends to prevent or retard deterioration thereof,
but does not include common salt, sugars, vinegars, spices, or oils
extracted from spices or substances added to meat and meat food products
by exposure to wood smoke.
Other definitions, if any, that are applicable only for purposes of
a specific part of the regulations in this subchapter, are set forth in
such part.
(r) Circuit. One or more official establishments included under the
supervision of a circuit supervisor.
(s) Circuit supervisor. The supervisor of a circuit.
(t) Commerce. Commerce between any State, any Territory, or the
District of Columbia, and any place outside thereof; or within any
Territory not organized with a legislative body, or the District of
Columbia.
(u) Consciousness. Responsiveness of the brain to the impressions
made by the senses.
(v) Cutting up. Any division of any carcass or part thereof, except
that the trimming of carcasses or parts thereof to remove surface
contaminants is not considered as cutting up.
(w) Dead livestock. The body (cadaver) of livestock which has died
otherwise than by slaughter.
(x) The Department. The United States Department of Agriculture.
(y) Dying, diseased, or disabled livestock. Livestock which has or
displays symptoms of having any of the following:
(1) Central nervous system disorder;
(2) Abnormal temperature (high or low);
(3) Difficult breathing;
(4) Abnormal swellings;
(5) Lack of muscular coordination;
(6) Inability to walk normally or stand;
(7) Any of the conditions for which livestock is required to be
condemned on ante-mortem inspection in accordance with the regulations
in part 309 of this subchapter.
(z) Edible. Intended for use as human food.
(aa) Experimental animal. Any animal used in any research
investigation involving the feeding or other administration of, or
subjection to, an experimental biological product, drug, or chemical or
any nonexperimental biological product, drug, or chemical used in a
manner for which it was not intended.
(bb) Exposure time. The period of time an animal is exposed to an
anesthesia-producing carbon dioxide concentration.
[[Page 79]]
(cc) Federal Food, Drug, and Cosmetic Act. The Act so entitled,
approved June 25, 1938 (52 Stat. 1040), and Acts amendatory thereof or
supplementary thereto.
(dd) Firm. Any partnership, association, or other unincorporated
business organization.
(ee) Food Safety and Inspection Service. The Food Safety and
Inspection Service of the Department.
(ff) Further processing. Smoking, cooking, canning, curing,
refining, or rendering in an official establishment of product
previously prepared in official establishments.
(gg) Immediate container. The receptacle or other covering in which
any product is directly contained or wholly or partially enclosed.
(hh) Import Field Office (IFO). The office of the supervisor of
import inspection activities for a particular importing field area. The
areas are as follows:
IFO #1. Boston, MA--Covering the States of Massachusetts, New York
(excluding New York City), Connecticut, Rhode Island, Vermont, New
Hampshire and Maine.
IFO #2. New York, NY--Covering the areas of New York City and
northern New Jersey.
IFO #3. Philadelphia, PA--Covering the State of Pennsylvania and the
area of southern New Jersey.
IFO #4. Baltimore, MD--Covering the States of Maryland, Delaware,
West Virginia, Virginia and Kentucky.
IFO #5. Charleston, SC--Covering the States of Tennessee, North
Carolina, South Carolina, Georgia and Florida (excluding south Florida).
1IFO 6. Miami, FL--Covering the areas of southern Florida, Puerto
Rico and the Virgin Islands.
1IFO 7. New Orleans, LA--Covering the States of Louisiana,
Mississippi, Alabama, Arkansas, Texas, Oklahoma, Kansas, New Mexico and
Colorado.
1IFO 8. San Pedro, CA--Covering the States of Hawaii, Arizona,
Utah, Nevada, the area of southern California, American Samoa, Guam, and
the Northern Marianas.
1IFO 9. Tacoma, WA--Covering the States of Washington, Oregon,
Idaho, Montana, Wyoming, North Dakota, South Dakota, Alaska, and
Nebraska, and the area of northern California.
1IFO 10. Detroit, MI--Covering the States of Michigan, Wisconsin,
Minnesota, Iowa, Missouri, Illinois, Indiana and Ohio.
(ii) Import Supervisor. The official in charge of import inspection
activities within each of the import field offices.
(jj) Inedible. Adulterated, uninspected, or not intended for use as
human food.
(kk) Inhumane slaughter or handling in connection with slaughter.
Slaughter or handling in connection with slaughter not in accordance
with the Act of August 27, 1958 (72 Stat. 862; 7 U.S.C. 1901 through
1906, as amended by the Humane Methods of Slaughter Act of 1978, 92
Stat. 1069) and part 313 of this subchapter.
(ll) ``Inspected and passed'' or ``U.S. Inspected and Passed'' or
``U.S. Inspected and Passed by Department of Agriculture'' (or any
authorized abbreviation thereof). This term means that the product so
identified has been inspected and passed under the regulations in this
subchapter, and at the time it was inspected, passed, and identified, it
was found to be not adulterated.
(mm) Inspector. An inspector of the Program.
(nn) Inspector in charge. A designated program employee who is in
charge of one or more official establishments within a circuit and is
responsible to the circuit supervisor or his/her designee.
(oo) Label. A display of written, printed, or graphic matter upon
the immediate container (not including package liners) of any article.
(pp) Labeling. All labels and other written, printed, or graphic
matter:
(1) Upon any article or any of its containers or wrappers, or
(2) Accompanying such article.
(qq) Livestock. Cattle, sheep, swine, goat, horse, mule, or other
equine.
(rr) Meat. (1) The part of the muscle of any cattle, sheep, swine,
or goats, which is skeletal or which is found in the tongue, in the
diaphragm, in the heart, or in the esophagus, 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. It does not
include the muscle found in the lips, snout, or ears. This term, as
applied to products of equines, shall have a meaning comparable to that
provided in this paragraph with respect to cattle, sheep, swine, and
goats.
[[Page 80]]
(2) The product derived from the mechanical separation of the
skeletal muscle tissue from the bones of livestock using the advances in
mechanical meat/bone separation machinery and meat recovery systems that
do not crush, grind, or pulverize bones, and from which the bones emerge
comparable to those resulting from hand-deboning (i.e., essentially
intact and in natural physical conformation such that they are
recognizable, such as loin bones and rib bones, when they emerge from
the machinery) which meets the criteria of no more than 0.15 percent or
150 mg/100 gm of product for calcium (as a measure of bone solids
content) within a tolerance of 0.03 percent or 30 mg.
(ss) Meat broker. Any person engaged in the business of buying or
selling carcasses, parts of carcasses, meat or meat food products of
livestock on commission, or otherwise negotiating purchases or sales of
such articles other than for his/her own account or as an employee of
another person.
(tt) Meat byproduct. Any part capable of use as human food, other
than meat, which has been derived from one or more cattle, sheep, swine,
or goats. This term, as applied to products of equines, shall have a
meaning comparable to that provided in this paragraph with respect to
cattle, sheep, swine, and goats.
(uu) Meat food product. Any article capable of use as human food
which is made wholly or in part from any meat or other portion of the
carcass of any cattle, sheep, swine, or goats, except those exempted
from definition as a meat food product by the Administrator in specific
cases or by the regulations in part 317 of this subchapter, upon a
determination that they contain meat or other portions of such carcasses
only in a relatively small proportion or historically have not been
considered by consumers as products of the meat food industry, and
provided that they comply with any requirements that are imposed in such
cases or regulations as conditions of such exemptions to assure that the
meat or other portions of such carcasses contained in such articles are
not adulterated and that such articles are not represented as meat food
products. This term, as applied to food products of equines, shall have
a meaning comparable to that provided in this paragraph with respect to
cattle, sheep, swine, and goats.
(vv) Misbranded. This term applies to any carcass, part thereof,
meat or meat food product under one or more of the following
circumstances:
(1) If its labeling is false or misleading in any particular;
(2) If it is offered for sale under the name of another food;
(3) If it is an imitation of another food, unless its label bears,
in type of uniform size and prominence, the word ``imitation'' and
immediately thereafter, the name of the food imitated;
(4) If its container is so made, formed, or filled as to be
misleading;
(5) If in a package or other container unless it bears a label
showing:
(i) The name and place of business of the manufacturer, packer, or
distributor; and
(ii) An accurate statement of the quantity of the contents in terms
of weight, measure, or numerical count; except as otherwise provided in
part 317 of this subchapter with respect to the quantity of contents;
(6) If any word, statement, or other information required by or
under authority of the Act to appear on the label or other labeling is
not prominently placed thereon with such conspicuousness (as compared
with other words, statements, designs, or devices, in the labeling) and
in such terms as to render it likely to be read and understood by the
ordinary individual under customary conditions of purchase and use;
(7) If it purports to be or is represented as a food for which a
definition and standard of identity or composition has been prescribed
by the regulations in part 319 of this subchapter unless:
(i) It conforms to such definition and standard, and
(ii) Its label bears the name of the food specified in the
definition and standard and, insofar as may be required by such
regulations, the common names of optional ingredients (other than
spices, flavoring, and coloring) present in such food;
[[Page 81]]
(8) If it purports to be or is represented as a food for which a
standard or standards of fill of container have been prescribed by the
regulations in part 319 of this subchapter, and it falls below the
standard of fill of container applicable thereto, unless its label
bears, in such manner and form as such regulations specify, a statement
that it falls below such standard;
(9) If it is not subject to the provisions of paragraph (vv)(7)(ii)
of this section unless its label bears:
(i) The common or usual name of the food, if any there be, and
(ii) In case it is fabricated from two or more ingredients, the
common or usual name of each such ingredient, except as otherwise
provided in part 317 of this subchapter;
(10) If it purports to be or is represented for special dietary
uses, unless its label bears such information concerning its vitamin,
mineral, and other dietary properties as is required by the regulations
in part 317 of this subchapter.
(11) If it bears or contains any artificial flavoring, artificial
coloring, or chemical preservative, unless it bears a label stating that
fact; except as otherwise provided by the regulations in part 317 of
this subchapter; or
(12) If it fails to bear, directly thereon or on its containers,
when required by the regulations in part 316 or 317 of this subchapter,
the inspection legend and, unrestricted by any of the foregoing, such
other information as the Administrator may require in such regulations
to assure that it will not have false or misleading labeling and that
the public will be informed of the manner of handling required to
maintain the article in a wholesome condition.
(ww) Nonfood compound. Any substance proposed for use in official
establishments, the intended use of which will not result, directly or
indirectly, in the substance becoming a component or otherwise affecting
the characteristics of meat food and meat products, excluding labeling
and packaging materials as covered in part 317 of the subchapter.
(xx) Official certificate. Any certificate prescribed by the
regulations in this subchapter for issuance by an inspector or other
person performing official functions under the Act.
(yy) Official device. Any device prescribed by the regulations in
part 312 of this subchapter for use in applying any official mark.
(zz) Official establishment. Any slaughtering, cutting, boning, meat
canning, curing, smoking, salting, packing, rendering, or similar
establishment at which inspection is maintained under the regulations in
this subchapter.
(aaa) Official import inspection establishment. This term means any
establishment, other than an official establishment as defined in
paragraph (zz) of this section, where inspections are authorized to be
conducted as prescribed in Sec. 327.6 of this subchapter.
(bbb) Official inspection legend. Any symbol prescribed by the
regulations in this subchapter showing that an article was inspected and
passed in accordance with the Act.
(ccc) Official mark. The official inspection legend or any other
symbol prescribed by the regulations in this subchapter to identify the
status of any article or animal under the Act.
(ddd) Packaging material. Any cloth, paper, plastic, metal, or other
material used to form a container, wrapper, label, or cover for meat
products.
(eee) Person. Any individual, firm, or corporation.
(fff) Pesticide chemical, food additive, color additive, raw
agricultural commodity. These terms shall have the same meanings for
purposes of the Act and the regulations in this subchapter as under the
Federal Food, Drug, and Cosmetic Act.
(ggg) Prepared. Slaughtered, canned, salted, rendered, boned, cut
up, or otherwise manufactured or processed.
(hhh) Product. Any carcass, meat, meat byproduct, or meat food
product, capable of use as human food.
(iii) Program. The organizational unit within the Department having
the responsibility for carrying out the provisions of the Act.
(jjj) Program employee. Any inspector or other individual employed
by the Department or any cooperating agency who is authorized by the
Secretary to do any work or perform any duty in connection with the
Program.
[[Page 82]]
(kkk) Regional Director. The official \1\ in charge of the program
within each of the following regions:
---------------------------------------------------------------------------
\1\ The addresses of the Regional Directors are as follows:
Northeastern Region--Seventh Floor, 1421 Cherry Street,
Philadelphia, PA 19102.
Southeastern Region--Room 299 South, 1718 Peachtree Street, NW.,
Atlanta, GA 30309.
North Central Region--607 East Second Street, Des Moines, IA 50309.
Southwestern Region--Room 5-F41, 1100 Commerce Street, Dallas, TX
75201.
Western Region--Room 620 Central Avenue, Building 2C, Alameda, CA
94501.
Northeastern Region--Connecticut, Delaware, District of Columbia,
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, and Virginia (except for
Northwestern part).
Southeastern Region-- Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, Tennessee, Virginia
(Northwestern), West Virginia, Puerto Rico, and the Virgin Islands.
North Central Region-- Illinois, Indiana, Iowa, Michigan, Minnesota,
Ohio, and Wisconsin.
Southwestern Region-- Arkansas, Kansas, Louisiana, Missouri,
Nebraska, New Mexico, Oklahoma, and Texas.
Western Region-- Alaska, Arizona, California, Colorado, Hawaii,
Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah,
Washington, and Wyoming, American Samoa, Guam, and the Northern Mariana
Islands.
(lll) Renderer. Any person engaged in the business of rendering
carcasses or parts or products of the carcasses of any livestock except
rendering conducted under inspection or exemption under Title I of the
Act.
(mmm) Secretary. The Secretary of Agriculture of the United States
or his/her delegate.
(nnn) Shipping container. The outside container (box, bag, barrel,
crate, or other receptacle or covering) containing or wholly or partly
enclosing any product packed in one or more immediate containers.
(ooo) State. Any State of the United States or the Commonwealth of
Puerto Rico.
(ppp) Supervision. The controls, as prescribed in instructions to
Program employees, to be exercised by them over particular operations to
insure that such operations are conducted in compliance with the Act and
the regulations in this subchapter.
(qqq) Surgical anesthesia. A state of unconsciousness measured in
conformity with accepted surgical practices.
(rrr) Territory. Guam, the Virgin Islands of the United States,
American Samoa, and any other territory or possession of the United
States, excluding the Canal Zone.
(sss) U.S. Condemned. This term means that the livestock so
identified has been inspected and found to be in a dying condition, or
to be affected with any other condition or disease that would require
condemnation of its carcass.
(ttt) U.S. Inspected and Condemned (or any authorized abbreviation
thereof). This term means that the carcass, viscera, other part of
carcass, or other product so identified has been inspected, found to be
adulterated, and condemned under the regulations in this subchapter.
(uuu) U.S. Passed for Cooking. This term means that the meat or meat
byproduct so identified has been inspected and passed on condition that
it be cooked or rendered as prescribed by the regulations in part 315 of
this chapter.
(vvv) U.S. Passed for Refrigeration. This term means that the meat
or meat byproduct so identified has been inspected and passed on
condition that it be refrigerated or otherwise handled as prescribed by
the regulations in part 311 of this subchapter.
(www) U.S. Retained. This term means that the carcass, viscera,
other part of carcass, or other product, or article so identified is
held for further examination by an inspector to determine its disposal.
(xxx) U.S. Suspect. This term means that the livestock so identified
is suspected of being affected with a disease or condition which may
require its condemnation, in whole or in part, when slaughtered, and is
subject to further examination by an inspector to determine its
disposal.
(yyy) United States. The States, the District of Columbia, and the
Territories of the United States.
[35 FR 15554, Oct. 3, 1970]
[[Page 83]]
Editorial Note: For Federal Register citations affecting Sec. 301.2,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
PART 302--APPLICATION OF INSPECTION AND OTHER REQUIREMENTS--Table of Contents
Sec.
302.1 Establishments requiring inspection.
302.2 Application of requirements in designated States or Territories;
and to designated plants endangering public health.
302.3 Livestock and products entering official establishments.
Authority: 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
Sec. 302.1 Establishments requiring inspection.
(a) Inspection under the regulations in this subchapter is required
at:
(1) Every establishment, except as provided in Sec. 303.1 (a) and
(b), or (c) of this subchapter, in which any livestock are slaughtered
for transportation or sale as articles of commerce, or in which any
products of, or derived from, carcasses of livestock are, wholly or in
part, prepared for transportation or sale as articles of commerce, which
are intended for use as human food;
(2) Every establishment, except as provided in Sec. 303.1 (a) and
(b), or (d) of this subchapter, within any State or organized Territory
which is designated pursuant to paragraph 301(c) of the Act, at which
any livestock are slaughtered or any products of any livestock are
prepared, for use as human food solely for distribution within such
jurisdiction; and
(3) Every establishment, except as provided in Sec. 303.1 (a) and
(b) of this subchapter, that is designated by the Administrator pursuant
to paragraph 301(c) of the Act as one producing adulterated products
which would clearly endanger the public health.
[35 FR 15556, Oct. 3, 1970, as amended at 36 FR 12002, June 24, 1971]
Sec. 302.2 Application of requirements in designated States or Territories; and to designated plants endangering public health.
Special provisions with respect to establishments and their
operations and transactions by any persons in designated States and
Territories and with respect to establishments designated as producing
adulterated products which clearly endanger public health, and the
operators thereof, in any State or Territory appear in part 331 of this
subchapter, and apply to such establishments, operations and
transactions in lieu of the regulations elsewhere in this subchapter
except insofar as such regulations are made applicable by the provisions
in part 331 of this subchapter.
[35 FR 15556, Oct. 3, 1970, as amended at 51 FR 29909, Aug. 21, 1986]
Sec. 302.3 Livestock and products entering official establishments.
All livestock and all products entering any official establishment
and all products prepared, in whole or in part, therein, shall be
inspected, handled, stored, prepared, packaged, marked, and labeled as
required by the regulations in this subchapter.
[35 FR 15556, Oct. 3, 1970]
PART 303--EXEMPTIONS--Table of Contents
Sec.
303.1 Exemptions.
303.2 Experimentation: Intensity of inspection coverage.
Authority: 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
Sec. 303.1 Exemptions.
(a) The requirements of the Act and the regulations in this
subchapter for inspection of the preparation of products do not apply
to:
(1) The slaughtering by any individual of livestock of his own
raising, and the preparation by him and transportation in commerce of
the carcasses, parts thereof, meat and meat food products of such
livestock exclusively for use by him and members of his household and
his nonpaying guests and employees;
(2) The custom slaughter by any person of cattle, sheep, swine, or
goats delivered by the owner thereof for such slaughter, and the
preparation by such slaughterer and transportation in commerce of the
carcasses, parts thereof, meat and meat food products of such
[[Page 84]]
livestock, exclusively for use, in the household of such owner, by him
and members of his household and his nonpaying guests and employees; nor
to the custom preparation by any person of carcasses, parts thereof,
meat or meat food products derived from the slaughter by any individual
of cattle, sheep, swine, or goats of his own raising or from game
animals, delivered by the owner thereof for such custom preparation, and
transportation in commerce of such custom prepared articles, exclusively
for use in the household of such owner, by him and members of his
household and his nonpaying guests and employees: Provided, That the
following requirements are met by such custom operator;
(i) The establishment in which the custom operations are conducted
is maintained and operated in accordance with the provisions of
Secs. 308.4 through 308.11, 308.13, 308.14, and 308.3 (except
Sec. 308.3(d) (2) and (3), of this subchapter: Provided, That the
provisions of said sections relating to inspection or supervision of
specified activities or other action by a Program employee shall not
apply to the preparation and handling of such exempted products:
Provided, further, That the requirement of Sec. 308.4 for separate
facilities for men and women workers shall not apply to such
establishments when the majority of the workers in the establishment are
related by blood or marriage and this arrangement will not conflict with
municipal or State requirements, and the requirement of Sec. 308.4 for
separation of toilet soil lines from house drainage lines to a point
outside the buildings will not apply to such establishments when
positive acting backflow devices are installed: And provided, further,
That the requirements of Sec. 308.13 for paved driveways, approaches,
yards, pens, and alleys shall not apply to such establishments. However,
if custom operations are conducted in an official establishment, all of
the provisions of part 308 shall apply to such establishment.
(ii) If the custom operator prepares or handles any products for
sale, they are kept separate and apart from the custom prepared products
at all times while the latter are in his custody;
(iii) The custom prepared products are plainly marked ``Not for
Sale'' as provided in Sec. 316.16 of this subchapter, immediately after
being prepared and are kept so identified until delivered to the owner;
and
(iv) If exempted custom slaughtering or other preparation of
products is conducted in an official establishment, all facilities and
equipment in the official establishment used for such custom operations
shall be thoroughly cleaned and sanitized before they are used for
preparing any products for sale.
(b)(1) The exempted custom prepared products shall be prepared and
handled in accordance with the provisions of Secs. 318.5, 318.6, 318.7,
318.10, and 318.300 through 318.311 of this subchapter and shall not be
adulterated as defined in paragraph 1(m) of the Act: Provided, That the
provisions of Secs. 318.5, 318.6, 318.10, and 318.300 through 318.311
relating to inspection or supervision of specified activities or other
action by a Program inspector, and the provisions of Sec. 318.6(b)(9)
and (10), shall not apply to the preparation and handling of such
exempted products.
(2) The exempted custom prepared products shall comply with the
requirements of Secs. 316.16 and 317.16 of this subchapter.
(3) The custom operators claiming exemption under paragraph (a)(2)
of this section shall keep records, in addition to records otherwise
required by part 320 of this subchapter, showing the numbers and kinds
of livestock slaughtered on a custom basis, the quantities and types of
products prepared on a custom basis, and the names and addresses of the
owners of the livestock and products.
(4) Articles capable of use as human food, resulting from the
exempted custom slaughter or other preparation of products shall be
promptly denatured or otherwise identified in accordance with
Sec. 325.13 of this subchapter and not removed from the establishment
where the custom operations are conducted until so identified, unless
they are delivered to the owner of the articles for use in accordance
with paragraph (a)(2) of this section.
(c) It has been determined that it is impracticable to provide
inspection of
[[Page 85]]
the preparation of products at establishments in any unorganized
Territory at which livestock are slaughtered or their products are
prepared for distribution solely within such jurisdiction and that
exempting such establishments from requirements of the Act for such
inspections under the conditions stated in this section will otherwise
facilitate enforcement of the Act. Therefore, such inspection
requirements of the Act and of the regulations in this subchapter shall
not apply at such establishments if they are operated in accordance with
the regulations in part 308 of this subchapter, except Secs. 308.1,
308.2, and 308.15. However, the Administrator may refuse, withdraw, or
modify any exemption under this paragraph when he determines in any
specific case in accordance with the applicable rules of practice that
such action is necessary to effectuate the purposes of this Act.
(d)(1) The requirements of the Act and the regulations in this
subchapter for inspection of the preparation of products do not apply to
operations of types traditionally and usually conducted at retail stores
and restaurants, when conducted at any retail store or restaurant or
similar retail-type establishment for sale in normal retail quantities
or service of such articles to consumers at such establishments.
(2) For purposes of paragraph (d)(1) of this section:
(i) Operations of types traditionally and usually conducted at
retail stores and restaurants are the following:
(a) Cutting up, slicing, and trimming carcasses, halves, quarters,
or wholesale cuts into retail cuts such as steaks, chops, and roasts,
and freezing such cuts;
(b) Grinding and freezing products made from meat;
(c) Curing, cooking, smoking, rendering or refining of livestock
fat, or other preparation of products, except slaughtering or the retort
processing of canned products;
(d) Breaking bulk shipments of products;
(e) Wrapping or rewrapping products.
(ii) Any quantity or product purchased by a consumer from a
particular retail supplier shall be deemed to be a normal retail
quantity if the quantity so purchased does not in the aggregate exceed
one-half carcass. The following amounts of product will be accepted as
representing one-half carcass of the species identified:
------------------------------------------------------------------------
One-half
carcass
pounds
------------------------------------------------------------------------
Cattle...................................................... 300
Calves...................................................... 37.5
Sheep....................................................... 27.5
Swine....................................................... 100
Goats....................................................... 25
------------------------------------------------------------------------
(iii) A retail store is any place of business where:
(a) The sales of product are made to consumers only;
(b) At least 75 percent, in terms of dollar value, of total sales of
product represents sales to household consumers and the total dollar
value of sales of product to consumers other than household consumers
does not exceed the dollar limitation per calendar year set by the
Administrator. This dollar limitation is a figure which will
automatically be adjusted during the first quarter of each calendar
year, upward or downward, whenever the Consumer Price Index, published
by the Bureau of Labor Statistics, Department of Labor, indicates a
change in the price of this same volume of product which exceeds $500.
Notice of the adjusted dollar limitation will be published in the
Federal Register.1
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1 The dollar limitation currently in effect may be obtained by
contacting Director, Slaughter Inspection Standards and Procedures
Division, Technical Services, Food and Safety Inspection Service, U.S.
Department of Agriculture, Washington, DC 20250 (202) 447-3219.
---------------------------------------------------------------------------
(c) Only federally or State inspected and passed product is handled
or used in the preparation of any product, except that product resulting
from the custom slaughter or custom preparation of product may be
handled or used in accordance with paragraph (a)(2) and (b) of this
section but not for sale;
(d) No sale of product is made in excess of a normal retail quantity
as defined in paragraph (d)(2)(ii) of this section;
(e) The preparation of products for sale to household consumers is
limited to traditional and usual operations as
[[Page 86]]
defined in paragraph (d)(2)(i) of this section; and
(f) The preparation of products for sale to other than household
consumers is limited to traditional and usual operations as defined in
paragraph (d)(2)(i) (a), (b), (d), and (e) of this section. (A retail
store at which custom slaughtering or preparation of products is
conducted is not thereby disqualified from exemption as a retail store
under this paragraph (d).)
(iv) Restaurants. (a) A restaurant is any establishment where:
(1) Product is prepared only for sale or service in meals or as
entrees directly to individual consumers at such establishments;
(2) Only federally or State inspected and passed product or such
product prepared at a retail store exempted under paragraph (d)(2)(iii)
of this section is handled or used in the preparation of any product;
(3) No sale of product is made in excess of a normal retail quantity
as defined in paragraph (d)(2)(ii) of this section; and
(4) The preparation of product is limited to traditional and usual
operations as defined in paragraph (d)(2)(i) of this section.
(b) The definition of a restaurant includes a caterer which delivers
or serves product in meals, or as entrees, only to individual consumers
and otherwise meets the requirements of this paragraph.
(c) For purposes of this paragraph, operations conducted at a
restaurant central kitchen facility shall be considered as being
conducted at a restaurant if the restaurant central kitchen prepares
meat or meat food products that are ready to eat when they leave such
facility (i.e., no further cooking or other preparation is needed,
except that they may be reheated prior to serving if chilled during
transportation), transported directly to a receiving restaurant by its
own employees, without intervening transfer or storage, maintained in a
safe, unadulterated condition during transportation, and served in meals
or as entrees only to customers at restaurants, or through vending
machines, owned or operated by the same person that owns or operates
such facility, and which otherwise meets the requirements of this
paragraph: Provided, That the requirements of Secs. 320.1 through 320.4
of this subchapter apply to such facility. Provided further, That the
exempted facility may be subject to inspection requirements under the
Act for as long as the Administrator deems necessary, if the
Administrator determines that the sanitary conditions or practices of
the facility or the processing procedures or methods at the facility are
such that any of its meat or meat food products are rendered
adulterated. When the Administrator has made such determination and
subjected a restaurant central kitchen facility to such inspection
requirements, the operator of such facility shall be afforded an
opportunity to dispute the Administrator's determination in a hearing
pursuant to rules of practice which will be adopted for this proceeding.
(v) Similar retail-type establishment: Any establishment which is a
combination retail store and restaurant; any delicatessen which meets
the requirements for a retail store or restaurant as prescribed in
paragraphs (d)(2) (iii) or (iv) of this section; or other establishment
as determined by the Administrator in specific cases.
(vi) Consumer: Any household consumer, hotel, restaurant, or similar
institution as determined by the Administrator in specific cases.
(3) Whenever any complaint is received by the Administrator from any
person alleging that any retail store claiming exemption under this
paragraph (d), in any designated State or organized Territory that is
identified under section 205 of the Act (as one that does not have or is
not exercising adequate authority with respect to recordkeeping
requirements) has been operated in violation of the conditions
prescribed in this section for exemption, and the Administrator, upon
investigation of the complaint, has reason to believe that any such
violation has occurred, he shall so notify the operator of the retail
store and afford him reasonable opportunity to present his views
informally with respect to the matter. Thereafter, if the Administrator
still has reason to believe that such a violation has occurred, and that
[[Page 87]]
a requirement that the operator keep records concerning the operations
of the retail store would effectuate the purposes of the Act, the
Administrator shall order the operator to maintain complete, accurate,
and legible records of total monthly purchases and of total monthly
sales of meat, meat byproducts, and meat food products, in terms of
dollar values of the products involved. Such records shall separately
show total sales to household consumers and total sales to other
consumers and shall be maintained for the period prescribed in
Sec. 320.3 of this subchapter. If the operator maintains copies of bills
of lading, receiving and shipping invoices, warehouse receipts, or
similar documents which give the information required herein, additional
records are not required by this subparagraph.
(e)(1) The requirements of the Act and the regulations in this
subchapter for inspection of the preparation of products do not apply to
meat pizzas containing meat food product ingredients which were
prepared, inspected, and passed in a cured or cooked form as ready-to-
eat (i.e., no further cooking or other preparation is needed) in
compliance with the requirements of the Act and these regulations; and
the meat pizzas are to be served in public or private nonprofit
institutions, provided that the meat pizzas are ready-to-eat (i.e., no
further cooking or other preparation is needed, except that they may be
reheated prior to serving if chilled during transportation), transported
directly to the receiving institution by employees of the preparing
firm, receiving institution, or a food service management company
contracted to conduct food service at the public or private nonprofit
institution, without intervening transfer or storage.
(2) The definitions at Chapter 1, 1-102, except 1-102(z) and the
provisions of Chapters 2 through 8, except sections 2-102(a) and (b), 2-
302(d), 2-403(a), 2-403(c), 2-404, 2-405, 2-407, 2-502 through 2-506, 2-
508, 2-509, 4-105, 4-201(c), 4-208, 5-101(a), 5-103, 5-104, 5-202(c), 5-
203, and 6-105, part IV, of the Food and Drug Administration's Food
Service Sanitation Manual (1976 Recommendations), DHEW Publication No.
(FDA) 78-2081, which is incorporated by reference, shall apply to the
facilities and operations of businesses claiming this exemption. (These
materials are incorporated as they exist on the date of approval. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be purchased from the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402. It is also available for
inspection at the Office of the Federal Register Information Center,
suite 700, 800 North Capitol Street, NW., Washington, DC, or the FSIS
Hearing Clerk, room 3171, South Building, Food Safety and Inspection
Service, U.S. Department of Agriculture, Washington, DC 20250.)
(3) Facilities and operations of businesses claiming this exemption
shall also conform to the following requirements:
(i) Manual cleaning and sanitizing. (A) For manual washing, rinsing
and sanitizing of utensils and equipment, a sink with not fewer than
three compartments shall be provided and used. Sink compartments shall
be large enough to permit the accommodation of the equipment and
utensils, and each compartment of the sink shall be supplied with hot
and cold potable running water. Fixed equipment and utensils and
equipment too large to be cleaned in sink compartments shall be washed
manually or cleaned through pressure spray methods.
(B) Drain boards or easily movable dish tables of adequate size
shall be provided for proper handling of soiled utensils prior to
washing and for cleaned utensils following sanitizing and shall be
located so as not to interfere with the proper use of the dishwashing
facilities.
(C) Equipment and utensils shall be preflushed or prescraped and,
when necessary, presoaked to remove gross food particles and soil.
(D) Except for fixed equipment and utensils too large to be cleaned
in sink compartments, manual washing, rinsing and sanitizing shall be
conducted in the following sequence:
(1) Sinks shall be cleaned prior to use.
[[Page 88]]
(2) Equipment and utensils shall be thoroughly washed in the first
compartment with a hot detergent solution that is kept clean.
(3) Equipment and utensils shall be rinsed free of detergent and
abrasives with clean water in the second compartment.
(4) Equipment and utensils shall be sanitized in the third
compartment according to one of the methods prescribed in paragraph
(e)(3)(i)(E) (1) through (4) of this section.
(E) The food-contact surfaces of all equipment and utensils shall be
sanitized by:
(1) Immersion for at least \1/2\ minute in clean, hot water at a
temperature of at least 170 deg.F; or
(2) Immersion for at least 1 minute in a clean solution containing
at least 50 parts per million of available chlorine as a hypochlorite
and at a temperature of at least 75 deg.F; or
(3) Immersion for at least 1 minute in a clean solution containing
at least 12.5 parts per million of available iodine and having a pH not
higher than 5.0 and at a temperature of at least 75 deg.F; or
(4) Immersion in a clean solution containing any other chemical
sanitizing agent allowed under 21 CFR 178.1010 that will provide the
equivalent bactericidal effect of a solution containing at least 50
parts per million of available chlorine as a hypochlorite at a
temperature of at least 75 deg.F for 1 minute; or
(5) Treatment with steam free from materials or additives other than
those specified in 21 CFR 173.310 in the case of equipment too large to
sanitize by immersion, but in which steam can be confined; or
(6) Rinsing, spraying, or swabbing with a chemical sanitizing
solution of at least twice the strength required for that particular
sanitizing solution under paragraph (e)(3)(i)(E)(4) of this section in
the case of equipment too large to sanitize by immersion.
(F) When hot water is used for sanitizing, the following facilities
shall be provided and used:
(1) An integral heating device or fixture installed in, on, or under
the sanitizing compartment of the sink capable of maintaining the water
at a temperature of at least 170 deg.F; and
(2) A numerically scaled indicating thermometer, accurate to
3 deg.F, convenient to the sink for frequent checks of
water temperature; and
(3) Dish baskets of such size and design to permit complete
immersion of the tableware, kitchenware, and equipment in the hot water.
(G) When chemicals are used for sanitization, they shall not have
concentrations higher than the maximum permitted under 21 CFR 178.1010
and a test kit or other device that accurately measures the parts per
million concentration of the solution shall be provided and used.
(ii) Mechanical cleaning and sanitizing. (A) Cleaning and sanitizing
may be done by spray-type or immersion dishwashing machines or by any
other type of machine or device if it is demonstrated that it thoroughly
cleans and sanitizes equipment and utensils. These machines and devices
shall be properly installed and maintained in good repair.
Machines and devices shall be operated in accordance with
manufacturers' instructions, and utensils and equipment placed in the
machine shall be exposed to all dishwashing cycles. Automatic detergent
dispensers, wetting agent dispensers, and liquid sanitizer injectors, if
any, shall be properly installed and maintained.
(B) The pressure of final rinse water supplied to spray-type
dishwashing machines shall not be less than 15 nor more than 25 pounds
per square inch measured in the water line immediately adjacent to the
final rinse control valve. A \1/4\-inch IPS valve shall be provided
immediately up stream from the final rinse control valve to permit
checking the flow pressure of the final rinse water.
(C) Machine or water line mounted numerically scaled indicating
thermometers, accurate to 3 deg.F, shall be provided to
indicate the temperature of the water in each tank of the machine and
the temperature of the final rinse water as it enters the manifold.
(D) Rinse water tanks shall be protected by baffles, curtains, or
other effective means to minimize the entry of
[[Page 89]]
wash water into the rinse water. Conveyors in dishwashing machines shall
be accurately timed to assure proper exposure times in wash and rinse
cycles in accordance with manufacturers' specifications attached to the
machines.
(E) Drain boards shall be provided and be of adequate size for the
proper handling of soiled utensils prior to washing and of cleaned
utensils following sanitization and shall be so located and constructed
as not to interfere with the proper use of the dishwashing facilities.
This does not preclude the use of easily movable dish tables for the
storage of soiled utensils or the use of easily movable dishtables for
the storage of clean utensils following sanitization.
(F) Equipment and utensils shall be flushed or scraped and, when
necessary, soaked to remove gross food particles and soil prior to being
washed in a dishwashing machine unless a prewashcycle is a part of the
dishwashing machine operation. Equipment and utensils shall be placed in
racks, trays, or baskets, or on conveyors, in a way that food-contact
surfaces are exposed to the unobstructed application of detergent wash
and clean rinse waters and that permits free draining.
(G) Machines (single-tank, stationary-rack, door-type machines and
spray-type glass washers) using chemicals for sanitization may be used:
Provided, That,
(1) The temperature of the wash water shall not be less than 120
deg.F.
(2) The wash water shall be kept clean.
(3) Chemicals added for sanitization purposes shall be automatically
dispensed.
(4) Utensils and equipment shall be exposed to the final chemical
sanitizing rinse in accordance with manufacturers' specifications for
time and concentration.
(5) The chemical sanitizing rinse water temperature shall be not
less than 75 deg.F nor less than the temperature specified by the
machine's manufacturer.
(6) Chemical sanitizers used shall meet the requirements of 21 CFR
178.1010.
(7) A test kit or other device that accurately measures the parts
per million concentration of the solution shall be available and used.
(H) Machines using hot water for sanitizing may be used provided
that wash water and pumped rinse water shall be kept clean and water
shall be maintained at not less than the following temperatures:
(1) Single-tank, stationary-rack, dual-temperature machine:
Wash temperature..................................................150
deg.F
Final rinse temperature...........................................180
deg.F
(2) Single-tank, stationary-rack, single-temperature machine:
Wash temperature..................................................165
deg.F
Final rinse temperature...........................................165
deg.F
(3) Single-tank, conveyor machine:
Wash temperature..................................................160
deg.F
Final rinse temperature...........................................180
deg.F
(4) Multitank, conveyor machine:
Wash temperature..................................................150
deg.F
Pumped rinse temperature..........................................160
deg.F
Final rinse temperature...........................................180
deg.F
(5) Single-tank, pot, pan, and utensil washer (either stationary or
moving-rack):
Wash temperature..................................................140
deg.F
Final rinse temperature...........................................180
deg.F
(I) All dishwashing machines shall be thoroughly cleaned at least
once a day or more often when necessary to maintain them in a
satisfactory operating condition.
(iii) Steam. Steam used in contact with food or food-contact
surfaces shall be free from any materials or additives other than those
specified in 21 CFR 173.310.
(4) For purposes of this paragraph, the term ``private nonprofit
institution'' means ``a corporation, and any community chest, fund, or
foundation, organized and operated exclusively for religious,
charitable, scientific, testing for public safety, literary, or
educational purposes, or to foster national or international amateur
sports competition (but only if no part of its activities involve the
provision of athletic facilities or equipment), or for the prevention of
cruelty to children or animals, no part of the net earnings of
[[Page 90]]
which inures to the benefit of any private shareholder or individual, no
substantial part of the activities of which is carrying on propaganda,
or otherwise attempting, to influence legislation, and which does not
participate in, or intervene in (including the publishing or
distribution of statements), any political campaign on behalf of (or in
opposition to) any candidate for public office.''
(5) The Administrator may withdraw or modify the exemption set forth
in Sec. 303.1(e)(1) for a particular establishment when he or she
determines that such action is necessary to ensure food safety and
public health. Before such action is taken, the owner or operator of the
particular establishment shall be notified, in writing, of the reasons
for the proposed action and shall be given an opportunity to respond, in
writing, to the Administrator within 20 days after notification of the
proposed action. The written notification shall be served on the owner
or operator of the establishment in the manner prescribed in section
1.147(b) of the Department's Uniform Rules of Practice (7 CFR 1.147(b)).
In those instances where there is conflict of any material fact, the
owner or operator of the establishment, upon request, shall be afforded
an opportunity for a hearing with respect to the disputed fact, in
accordance with rules of practice which shall be adopted for the
proceeding. However, such withdrawal or modification shall become
effective pending final determination in the proceeding when the
Administrator determines that an imminent threat to food safety or
public health exists, and that such action is, therefore, necessary to
protect the public health, interest or safety. Such withdrawal or
modification shall be effective upon oral or written notification,
whichever is earlier, to the owner or operator of the particular
establishment as promptly as circumstances permit. In the event of oral
notification, written confirmation shall be given to the owner or
operator of the establishment as promptly as circumstances permit. This
withdrawal or modification shall continue in effect ending the
completion of the proceeding and any judicial review thereof, unless
otherwise ordered by the Administrator.
(f) The adulteration and misbranding provisions of the Act and the
regulations in this subchapter, other than the requirement of the
official inspection legend, apply to articles which are exempted from
inspection or not required to be inspected under this section. This
includes the requirement that any pork and any product containing pork
be prepared only in compliance with any applicable requirement for the
destruction of trichina as provided in Sec. 318.10 of this subchapter.
(g) The Administrator may extend the requirements of titles I and IV
of the Act to any establishment in any State or organized Territory at
which products are prepared for distribution solely within such
jurisdiction, if he determines in accordance with the provisions of
paragraph 301(c)(1) of the Act that it is producing adulterated products
which would clearly endanger the public health.
(h) The Administrator may in specific classes of cases waive for
limited periods any provisions of the regulations in this subchapter in
order to permit appropriate and necessary action in the event of a
public health emergency or to permit experimentation so that new
procedures, equipment, and/or processing techniques may be tested to
facilitate definite improvements: Provided, That such waivers of the
provisions of such regulations are not in conflict with the purposes or
provisions of the Act.
(Approved by the Office of Management and Budget under control number
0583-0015)
[35 FR 15558, Oct. 3, 1970, as amended at 36 FR 12002, 12004, June 24,
1971; 45 FR 27922, Apr. 25, 1980; 46 FR 46288, Sept. 18, 1981; 47 FR
746, Jan. 7, 1982; 51 FR 29909, Aug. 21, 1986; 52 FR 10032, Mar. 30,
1987; 52 FR 48091, Dec. 18, 1987; 53 FR 24679, June 30, 1988; 57 FR
34182, Aug. 3, 1992]
Sec. 303.2 Experimentation: Intensity of inspection coverage.
(a) Pursuant to the Processed Products Inspection Improvement Act of
1986, Title IV of the Futures Trading Act of 1986 (Pub. L. 99-641), in
establishments preparing products at which inspection under the Act and
regulations is required, the frequency with
[[Page 91]]
which and the manner in which meat food products made from livestock
previously slaughtered in official establishments are examined and
inspected by Program employees is to be based on considerations relevant
to effective regulation of meat food products and protection of the
health and welfare of consumers. In order to test procedures for use in
making such determinations and, in particular, for determining whether
and, is so, to what extent the intensity of inspection coverage exceeds
that which should be considered necessary pursuant to section 6 of the
Act, as amended by section 403(a) of the Futures Trading Act of 1986,
the Administrator is initiating experimentation of a new system of
inspection for reviewing the performance of establishments and for
designing the supervision and other conditions and methods of inspection
coverage. For the period of such experimentation, the Administrator
shall identify establishments for review, and the frequency and the
manner of inspection by Program employees shall be determined on the
basis of the results of those reviews and be otherwise in accordance
with this section.
(b) The determinations referred to in paragraph (a) of this section
shall be made by the program and shall reflect evaluations of the
performance and the characteristics and such establishments.
(1) In assessing the performance of an establishment, the following
factors are appropriate for consideration:
(i) The history of compliance with applicable regulatory
requirements by the person conducting operations at such establishment
or by anyone responsibly connected with the business conducting
operations at such establishment, as ``responsibly connected'' is
defined in section 401(g) of the Act,
(ii) The competence of the person conducting operations at such
establishment, as indicated by:
(A) Knowledge of appropriate manufacturing practices and applicable
regulatory requirements,
(B) Demonstrated ability to apply such knowlege in a timely and
consistent manner, and
(C) Commitment to correcting deficiencies noted by Program employees
and otherwise assuring compliance with applicable regulatory
requirements, and
(iii) The procedures used in such establishment to control the
production process, environment, and resulting product in order to
assure and monitor compliance with the requirements of the Act and the
rules and regulations promulgated thereunder.
(2) In assessing the characteristics of an establishment, the
following factors are appropriate for consideration:
(i) The complexity of the processing operation(s) conducted at such
establishment,
(ii) The frequency with which each such operation is conducted at
such establishment,
(iii) The volume of product resulting from each such operation at
such establishment,
(iv) Whether and to what extent slaughter operations also are
conducted at such establishment,
(v) What, if any, food products not regulated under this Act or the
Poultry Products Inspection Act also are prepared at such establishment,
and
(vi) The size of such establishment.
(c)(1) For the period of experimentation described in paragraph (a)
of this section, the frequency of inspection by Program employees of
operations other than slaughter may be reduced in an establishment in
which the procedures referred to therein are being tested if and only if
the evaluation of the performance of such establishment described in
paragraph (b)(1) indicates that there are:
(i) No instances, documented in records compiled no earlier than 10
years before, of substantial and recent noncompliance with applicable
regulatory requirements (taking into account both the nature and
frequency of any such noncompliance), and
(ii) The competence and control procedures needed to assure and
monitor compliance with applicable regulatory requirements.
(2)(i) The frequency of Federal inspection and other conditions and
methods of inspection coverage in any establishment in which the
frequency of Federal inspection is reduced shall be based on:
[[Page 92]]
(A) The evaluation of the characteristics of such establishment
described in paragraph (b)(2) of this section,\1\
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\1\ These evaluations will be based upon guidelines developed by
FSIS and the complexity categorization in FSIS Directive 1030.2
(Documentation of Processing and Combination Assignments, 4/22/85). The
guidelines and Directive will be available for public inspection and
copying in the Policy Office, Room 3168, South Agriculture Building,
14th Street and Independence Avenue, SW., Washington, DC.
---------------------------------------------------------------------------
(B) The significance of potential public health consequences of
noncompliance, and
(C) The availability of Program employees.
(ii) To the extent that such frequency of inspection or other
conditions and methods of inspection coverage are identified as
conflicting with provisions of the regulations in this subchapter, the
Administrator will waive such provisions for the period of
experimentation, in accordance with Sec. 303.1(g) of this subchapter.
[52 FR 10032, Mar. 30, 1987 and 52 FR 48091, Dec. 18, 1987]
PART 304--APPLICATION FOR INSPECTION; GRANT OR REFUSAL OF INSPECTION--Table of Contents
Sec.
304.1 Application for inspection.
304.2 Information to be furnished; grant or refusal of inspection.
304.3 Conditions for receiving inspection.
Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
Sec. 304.1 Application for inspection.
(a) Before the inspection is granted, each person conducting
operations at an establishment subject to the Act, whether tenant,
subsidiary, or landlord, shall make application therefor to the
Administrator as provided for in this part.
(b) Every application under this section shall be made on an
official form furnished by the Program, available from any Regional
Director identified in Sec. 301.2(kkk) of this subchapter, and shall be
completed to include all information requested. Trade names of the
applicant for labeling purposes, shall be inserted in the appropriate
blank in the application. Each applicant for inspection will be held
responsible for compliance with the Act and the regulations in this
subchapter if inspection is granted. Preparation of product and other
operations at the establishment for which inspection is granted may be
conducted only by the applicant named in the application.
(c) In cases of change of ownership or location, a new application
shall be made.
[40 FR 2575, Jan. 14, 1975, as amended at 53 FR 49848, Dec. 12, 1988]
Sec. 304.2 Information to be furnished; grant or refusal of inspection.
(a) FSIS shall give notice in writing to each applicant granted
inspection and shall specify in the notice the establishment, including
the limits of the establishment's premises, to which the grant pertains.
(b) The Administrator is authorized to grant inspection upon his
determination that the applicant and the establishment are eligible
therefor and to refuse to grant inspection at any establishment if he
determines that it does not meet the requirements of this part or the
regulations in parts 305, 307, and 308 of this subchapter or that the
applicant has not received approval of labeling and containers to be
used at the establishment as required by the regulations in parts 316
and 317 of this subchapter. When inspection is refused for any reason,
the applicant shall be informed of the action and the reasons therefor
and afforded an opportunity to present his views.
(c) Inspection may also be refused in accordance with section 401 of
the Act and the applicable rules of practice.
(d)(1) Any applicant for inspection at an establishment where the
operations thereof may result in any discharge into the navigable waters
in the United States is required by subsection 21(b) of the Federal
Water Pollution Control Act, as amended (84 Stat. 91), to provide the
Administrator with a certification as prescribed in said subsection that
there is reasonable assurance that such activity will be conducted in a
manner which will not violate the applicable water quality standards. No
grant of inspection can be issued after April 3, 1970 (the date of
enactment of
[[Page 93]]
the Water Quality Improvement Act), unless such certification has been
obtained, or is waived because of failure or refusal of the State,
interstate agency or the Secretary of the Interior to act on a request
for certification within a reasonable period (which shall not exceed 1
year after receipt of such request).
(2) However, certification is not initially required in connection
with an application for inspection granted after April 3, 1970, for
facilities existing or under construction on April 3, 1970, although
certification for such facilities is required to be obtained within the
3-year period immediately following April 3, 1970. Failure to obtain
such certification and meet the other requirements of subsection 21(b)
prior to April 3, 1973, will result in the termination of inspection at
such facilities on that date.
Further, any application for inspection pending on April 3, 1970, and
granted within 1 year thereafter shall not require certification for 1
year following the grant of inspection but such grant of inspection
shall terminate at the end of 1 year after its issuance unless prior
thereto such certification has been obtained and the other requirements
of subsection 21(b) are met.
(e) Inspection may be refused in accordance with humane slaughter
and handling provisions of the Act (21 U.S.C. 603(b)) and the applicable
rules of practice.
[35 FR 15558, Oct. 3, 1970, as amended at 41 FR 4889, Feb. 3, 1976; 44
FR 68813, Nov. 30, 1979; 62 FR 45024, Aug. 25, 1997]
Sec. 304.3 Conditions for receiving inspection.
(a) Before being granted Federal inspection, an establishment shall
have developed written sanitation Standard Operating Procedures, as
required by part 416 of this chapter.
(b) Before being granted Federal inspection, an establishment shall
have conducted a hazard analysis and developed and validated a HACCP
plan, as required by Secs. 417.2 and 417.4 of this chapter. A
conditional grant of inspection shall be issued for a period not to
exceed 90 days, during which period the establishment must validate its
HACCP plan.
(c) Before producing new product for distribution in commerce, an
establishment shall have conducted a hazard analysis and developed a
HACCP plan applicable to that product in accordance with Sec. 417.2 of
this chapter. During a period not to exceed 90 days after the date the
new product is produced for distribution in commerce, the establishment
shall validate its HACCP plan, in accordance with Sec. 417.4 of this
chapter.
[61 FR 38864, July 25, 1996]
PART 305--OFFICIAL NUMBERS; INAUGURATION OF INSPECTION; WITHDRAWAL OF INSPECTION; REPORTS OF VIOLATION--Table of Contents
Sec.
305.1 Official numbers; subsidiaries and tenants.
305.2 Separation of official establishments.
305.3 Sanitation and adequate facilities.
305.4 Inauguration of inspection.
305.5 Withdrawal of inspection; statement of policy.
305.6 Reports of violations.
Authority: 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
Source: 35 FR 15559, Oct. 3, 1970, unless otherwise noted.
Sec. 305.1 Official numbers; subsidiaries and tenants.
(a) An official number shall be assigned to each establishment
granted inspection. Such number shall be used to identify all inspected
and passed products prepared in the establishment. More than one number
shall not be assigned to an establishment.
(b) Two or more official establishments under the same ownership or
control may be granted the same official number, provided a serial
letter is added in each case to identify each establishment and the
products thereof.
(c) When inspection has been granted to any applicant at an
establishment, it shall not be granted to any other person at the same
establishment. However, persons operating as separate entities in the
same building or structure may operate separate establishments therein
only under their own grant of inspection. All such persons operating
separate establishments in the same building or structure shall be
[[Page 94]]
responsible for compliance with the Act and regulations in their own
establishments, which shall include common areas, e.g., hallways,
stairways, and elevators.
[35 FR 15559, Oct. 3, 1970, as amended at 40 FR 2576, Jan. 14, 1975]
Sec. 305.2 Separation of official establishments.
(a) Each official establishment shall be separate and distinct from
any unofficial establishment except a poultry products processing
establishment operated under Federal inspection under the Poultry
Products Inspection Act or under State inspection.
(b) The slaughter or other preparation of products of horses, mules,
or other equines required to be conducted under inspection pursuant to
the regulations in this subchapter shall be done in establishments
separate from any establishment in which cattle, sheep, swine, or goats
are slaughtered or their products are prepared.
(c) Inspection shall not be inaugurated in any building, any part of
which is used as living quarters, unless the part for which inspection
is requested is separated from such quarters by floors, walls, and
ceilings of solid concrete, brick, wood, or similar material, and the
floors, walls, and ceilings are without openings that directly or
indirectly communicate with any part of the building used as living
quarters.
Sec. 305.3 Sanitation and adequate facilities.
Inspection shall not be inaugurated if an establishment is not in a
sanitary condition nor unless the establishment agrees to maintain a
sanitary condition and provides adequate facilities for conducting such
inspection.
Sec. 305.4 Inauguration of inspection.
When inspection is granted, the circuit supervisor shall, at or
prior to the inauguration of inspection, inform the operator of the
establishment of the requirements of the regulations in this subchapter.
If the establishment, at the time inspection is inaugurated, contains
any product which has not theretofore been inspected, passed, and marked
in compliance with the regulations in this subchapter, the identity of
the same shall be maintained, and it shall not be distributed in
commerce, or otherwise subject to the requirements of such regulations,
or dealt with as inspected and passed under the regulations. The
establishment shall adopt and enforce all necessary measures and shall
comply with all such directions as the circuit supervisor may prescribe,
for carrying out the purposes of this section.
Sec. 305.5 Withdrawal of inspection; statement of policy.
(a) The Administrator is authorized to withdraw inspection from an
official establishment where the sanitary conditions are such that its
products are rendered adulterated, or for failure of the operator to
destroy condemned products as required by the Act and the regulations in
this subchapter. Inspection may be withdrawn in accordance with section
401 of the Act and the applicable rules of practice.
(b) The assignment of inspectors may be temporarily suspended, in
whole or in part, by the Administrator to the extent it is determined
necessary to avoid impairment of the effective conduct of the program
when the operator of any official establishment or any subsidiary
therein, or any officer, employee, or agent of any such operator or any
subsidiary therein, acting within the scope of his office, employment,
or agency, threatens to forcibly assault or forcibly assaults,
intimidates, or interferes with any program employee in or on account of
the performance of his official duties under the act, unless promptly
upon the incident being brought by an authorized supervisor of the
program employee to the attention of the operator of the establishment
the operator (1) satisfactorily justifies the incident, (2) takes
effective steps to prevent a recurrence, or (3) provides acceptable
assurance that there will not be any recurrences. Such suspension shall
remain in effect until one of such actions is taken by the operator:
Provided, That upon request of the operator he shall be afforded an
opportunity for an expedited hearing to show cause why the suspension
should be terminated.
[[Page 95]]
(c) Inspection service may be temporarily suspended, in whole or in
part, at an official establishment, by the Administrator, to the extent
that it is determined necessary to prevent in-humane slaughtering or
handling in connection with slaughter of livestock as defined in
Sec. 301.2(kk) (9 CFR 301.2(kk)). The Administrator shall notify the
operator of an establishment orally or in writing, as promptly as
circumstances permit, of such suspension and the reasons therefor. Such
suspension shall remain in effect until the operator of the
establishment takes effective steps to prevent a recurrence, or provides
other satisfactory assurances that there will not be any recurrences.
Upon request, the operator shall be afforded an opportunity for a
hearing to show cause why the suspension should be terminated.
[38 FR 9794, Apr. 20, 1973, as amended at 44 FR 68813, Nov. 30, 1979; 53
FR 49848, Dec. 12, 1988]
Sec. 305.6 Reports of violations.
Program employees shall report, in a manner prescribed by the
Administrator, all violations of the Act or regulations in this
subchapter of which they have information.
PART 306--ASSIGNMENT AND AUTHORITIES OF PROGRAM EMPLOYEES--Table of Contents
Sec.
306.1 Designation of circuit supervisor and assistants.
306.2 Program employees to have access to establishments.
306.3 Badge as identification of inspectors.
306.4 Assignment of Program employees where members of family employed;
soliciting employment; procuring product from official
establishments.
306.5 Appeals.
Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
Source: 35 FR 15559, Oct. 3, 1970, unless otherwise noted.
Sec. 306.1 Designation of circuit supervisor and assistants.
The Administrator shall designate a circuit supervisor of the
inspection in each circuit, and assign to said inspector such assistants
as may be necessary.
Sec. 306.2 Program employees to have access to establishments.
For the purpose of any examination or inspection necessary to
prevent the use in commerce of any adulterated product, Program
employees shall have access at all times, by day or night, whether the
establishment is operated or not, to every part of any official
establishment to which they are assigned. Access to establishments is
also authorized in accordance with section 202 of the Act and the
regulations in part 320 of this subchapter.
Sec. 306.3 Badge as identification of inspectors.
Each inspector will be furnished with a numbered official badge,
which he shall not allow to leave his possession, and which he shall
wear in such manner and at such times as the Administrator may
prescribe. This badge shall be sufficient identification to entitle him
to admittance at all regular entrances and to all parts of the
establishment and premises to which he is assigned.
Sec. 306.4 Assignment of Program employees where members of family employed; soliciting employment; procuring product from official establishments.
(a) Except as specifically authorized by the Administrator, no
Program employee shall be detailed for duty at an establishment where
any member of his family is employed by the operator of the
establishment, or any tenant or subsidiary of such operator nor shall
any circuit supervisor or other employee acting in a supervisory
capacity be continued on duty at a circuit where any member of his
family is so employed at any establishment under his jurisdiction.
Program employees are forbidden to solicit, for any person, employment
at any official establishment, or by any officer, manager, or employee
thereof.
(b) Program employees shall not procure product from any official
establishment or any other establishment if its operations or products
are inspected or regulated under the Poultry Products Inspection Act or
the Agricultural Marketing Act of 1946, as amended, or
[[Page 96]]
any other law administered by the Department unless the store or outlet
from which the purchase is made is open to the general public and the
price paid by such employee is the same as the price paid by the general
public. Program employees must pay, and obtain receipts for money paid
to such establishments for all such product and keep such receipts
subject to inspection by supervisory employees or other authorized
Department employees.
Sec. 306.5 Appeals.
Any appeal from a decision of any Program employee shall be made to
his/her immediate supervisor having jurisdiction over the subject matter
of the appeal, except as otherwise provided in the applicable rules of
practice.
[48 FR 11418, Mar. 18, 1983, as amended at 60 FR 67454, Dec. 29, 1995]
PART 307--FACILITIES FOR INSPECTION--Table of Contents
Sec.
307.1 Facilities for Program employees.
307.2 Other facilities and conditions to be provided by establishment.
307.3 Inspectors to furnish implements and maintain hands and
implements in sanitary condition.
307.4 Schedule of operations.
307.5 Overtime and holiday inspection service.
307.6 Basis of billing for overtime and holiday services.
307.7 Safety requirements for electrical stimulating (EST) equipment.
Authority: 7 U.S.C. 394, 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
Source: 35 FR 15560, Oct. 3, 1970, unless otherwise noted.
Sec. 307.1 Facilities for Program employees.
Office space, including necessary furnishings, light, heat, and
janitor service, shall be provided by official establishments, rent
free, for the exclusive use for official purposes of the inspector and
other Program employees assigned thereto. The space set aside for this
purpose shall meet with approval of the circuit supervisor and shall be
conveniently located, properly ventilated and provided with lockers
suitable for the protection and storage of Program supplies and with
facilities suitable for Program employees to change clothing if such
clothes changing facilities are deemed necessary by the circuit
supervisor. At the discretion of the Administrator, small plants
requiring the services of less than one full time inspector need not
furnish facilities for Program employees as prescribed in this section,
where adequate facilities exist in a nearby convenient location. Laundry
service for inspectors' outer work clothing shall be provided by each
establishment.
Sec. 307.2 Other facilities and conditions to be provided by establishment.
When required by the circuit supervisor, the following facilities
and conditions, and such others as may be found to be essential to
efficient conduct of inspection and maintenance of sanitary conditions,
shall be provided by each official establishment:
(a) Satisfactory pens, equipment, and assistants for conducting
ante-mortem inspection and for separating, marking and holding apart
from passed livestock those marked ``U.S. suspect'' and those marked
``U.S. condemned'' (pens, alleys, and runways shall be paved, drained,
and supplied with adequate hose connections for cleanup purposes);
(b) Sufficient light to be adequate for proper conduct of
inspection;
(c) Racks, receptacles, or other suitable devices for retaining such
parts as the head, tongue, tail, thymus gland, and viscera, and all
parts and blood to be used in the preparation of meat food products or
medical products, until after the post-mortem examination is completed,
in order that they may be identified in case of condemnation of the
carcass; equipment, trucks, and receptacles for the handling of viscera
of slaughtered animals so as to prevent contact with the floor; and
trucks, racks, marked receptacles, tables, and other necessary equipment
for the separate and sanitary handling of carcasses or parts passed for
cooking;
(d) Tables, benches, and other equipment on which inspection is to
be performed, of such design, material, and construction as to enable
Program employees to conduct their inspection in a ready, efficient and
clean manner;
[[Page 97]]
(e) Watertight metal trucks or receptacles for holding and handling
diseased carcasses and parts, so constructed as to be readily cleaned;
such trucks or receptacles to be marked in a conspicuous manner with the
phrase ``U.S. condemned'' in letters not less than 2 inches high, and,
when required by the circuit supervisor, to be equipped with facilities
for locking or sealing;
(f) Adequate arrangements, including liquid soap and cleansers, for
cleansing and disinfecting hands, for sterilizing all implements used in
dressing diseased carcasses, floors, and such other articles and places
as may be contaminated by diseased carcasses or otherwise;
(g) In establishments in which slaughtering is done, rooms,
compartments, or specially prepared open places, to be known as ``final
inspection places,'' at which the final inspection of retained carcasses
may be conducted (competent assistants for handling retained carcasses
and parts shall be provided by the establishment; final inspection
places shall be adequate in size and their rail arrangement and other
equipment shall be sufficient to prevent carcasses and parts passed for
food or cooking, from being contaminated by contact with condemned
carcasses or parts; they shall be equipped with hot water, lavatory,
sterilizer, tables, and other equipment required for ready, efficient,
and sanitary conduct of the inspection; the floors shall be of such
construction as to facilitate the maintenance of sanitary conditions and
shall have proper drainage connections, and when the final inspection
place is part of a larger floor, it shall be separated from the rest of
the floor by a curb, railing, or otherwise);
(h) Retention rooms, cages, or other compartments, and receptacles
in which carcasses and product may be held for further inspection (these
shall be in such number and in such locations as the needs of the
inspection in the establishment may require; they shall be equipped for
secure locking or sealing and shall be held under locks or official
seals furnished by the Department; the keys of such locks shall not
leave the custody of Program employees. Every such room, compartment, or
receptacle shall be marked conspicuously with the phrase ``U.S.
retained'' in letters not less than 2 inches high; rooms or compartments
for these purposes shall be secure and susceptible of being kept clean,
including a sanitary disposal of the floor liquids; establishment
employees shall not enter any retention rooms or compartments or open
any retention receptacles unless authorized by Program employees);
(i) Adequate facilities, including denaturing materials, for the
proper disposal of condemned articles in accordance with the regulations
in this subchapter (tanks or other rendering equipment which, under the
regulations in this subchapter, must be sealed, shall be properly
equipped for sealing as specified by the regulations in part 314 of this
subchapter or by the circuit supervisor in specific cases);
(j) Docks and receiving rooms, to be designated by the operator of
the official establishment, with the circuit supervisor, for the receipt
and inspection of all products as provided in Sec. 318.3 of this
subchapter.
(k) Suitable lockers in which brands bearing the official inspection
legend and other official devices (excluding labels) and official
certificates shall be kept when not in use (all such lockers shall be
equipped for sealing or locking with locks or seals to be supplied by
the Department; the keys of such locks shall not leave the custody of
Program employees);
(l) Sanitary facilities and accommodations as prescribed by
Sec. 308.4 of this subchapter.
(m) In addition to any facilities required to accomplish sanitary
dressing procedures, the following inspection station facilities for
cattle and swine slaughter lines described in Sec. 310.1(b) of this
subchapter are required:
(1) An inspection station consisting of 5 feet of unobstructed line
space for each head or carcass inspector and, for viscera table kills, 8
feet for each viscera inspector on the inspector's side of the table.
(2) A minimum of 50 foot candles of shadow-free lighting at the
inspection surfaces of the head, viscera, and carcass.
(3) A handwash lavatory (other than one which is hand operated),
furnished
[[Page 98]]
with soap, towels, and hot and cold water, and located adjacent to the
inspector's work area. In addition, for each head and viscera inspector
on cattle slaughter lines, and each head inspector on swine slaughter
lines, a sterilizer located adjacent to the inspector's work area.
(4) For mechanized operations, a line control switch located
adjacent to each inspection station.
(5) Facilities to position tally sheets or other recording devices,
such as digital counters, and facilities to contain condemned brands.
(6) For swine slaughter lines requiring three or more inspectors,
and for those one- and two-inspector configurations where the
establishment installs a mirror: At the carcass inspection station one
glass or plastic, distortion-free mirror, at least 5 feet x 5 feet,
mounted far enough away from the vertical axis of the moving line to
allow the carcass to be turned, but not over 3 feet away, and so mounted
that any inspector standing at the carcass inspection station can
readily view the back of the carcass.
[35 FR 15560, Oct. 3, 1970, as amended at 47 FR 33676, Aug. 4, 1982; 50
FR 19902, May 13, 1985]
Sec. 307.3 Inspectors to furnish implements and maintain hands and implements in sanitary condition.
Inspectors shall furnish their own work clothing and implements,
such as flashlights and triers, for conducting inspection and shall
cleanse their hands and implements as prescribed by Sec. 308.8 of this
subchapter.
Sec. 307.4 Schedule of operations.
(a) No operations requiring inspection shall be conducted except
under the supervision of a Program employee. All slaughtering of animals
and preparation of products shall be done with reasonable speed,
considering the official establishment's facilities.
(b) A shift is a regularly scheduled operating period, exclusive of
mealtime. One lunch period is the only official authorized interruption
in the inspector's tour of duty once it begins. Lunch periods may be 30
minutes, 45 minutes, or in any case may not exceed one hour in duration.
Once established, the lunch period must remain relatively constant as to
time and duration. Lunch periods for inspectors shall not, except as
provided herein, occur prior to 4 hours after the beginning of scheduled
operations nor later than 5 hours after operations begin. In plants
where a company rest break of not less than 30 minutes is regularly
observed, approximately midpoint between start of work and the lunch
period, and the inspector is allowed this time to meet his personal
needs, the lunch period may be scheduled as long as 5\1/2\ hours after
the beginning of scheduled operations.
(c) Official establishments, importers, and exporters shall be
provided inspection service, without charge, up to 8 consecutive hours
per shift during the basic workweek subject to the provisions of
Sec. 307.5: Provided, That any additional shifts meet requirements as
determined by the Administrator or his designee. The basic workweek
shall consist of 5 consecutive 8-hour days within the administrative
workweek Sunday through Saturday, excluding the lunch period; except
that, when possible, the Department shall schedule the basic workweek so
as to consist of 5 consecutive 8-hour days Monday through Friday,
excluding lunch period. The Department may depart from the basic
workweek in those cases where maintaining such a schedule would
seriously handicap the Department in carrying out its function. These
provisions are applicable to all official establishments except in
certain cases as provided in Sec. 318.4(h) of this subchapter.
(d)(1) Each official establishment shall submit a work schedule to
the area supervisor for approval. In consideration of whether the
approval of an establishment work schedule shall be given, the area
supervisor shall take into account the efficient and effective use of
inspection personnel. The work schedule must specify daily clock hours
of operation and lunch periods for all departments of the establishment
requiring inspection.
(2) Establishments shall maintain consistent work schedules. Any
request by an establishment for a change in its work schedule involving
an addition or elimination of shifts shall be submitted to the area
supervisor at least 2 weeks
[[Page 99]]
in advance of the proposed change. Frequent requests for change shall
not be approved: Provided, however, minor deviations from a daily
operating schedule may be approved by the inspector in charge, if such
request is received on the day preceding the day of change.
(3) Request for inspection service outside an approved work schedule
shall be made as early in the day as possible for overtime work to be
performed within that same workday; or made prior to the end of the
day's operation when such a request will result in overtime service at
the start of the following day: Provided, That an inspector may be
recalled to his assignment after completion of his daily tour of duty
under the provisions of Sec. 307.6(b).
[40 FR 45799, Oct. 3, 1975, as amended at 40 FR 50719, Oct. 31, 1975; 41
FR 15401, Apr. 13, 1976; 48 FR 6893, Feb. 16, 1983; 51 FR 32304, Sept.
11, 1986]
Sec. 307.5 Overtime and holiday inspection service.
(a) The management of an official establishment, an importer, or an
exporter shall reimburse the Program, at the rate specified in
Sec. 391.3, for the cost of the inspection service furnished on any
holiday as specified in paragraph (b) of this section; or for more than
8 hours on any day, or more than 40 hours in any administrative workweek
Sunday through Saturday.
(b) Holidays for Federal employees shall be New Year's Day, January
1; Birthday of Martin Luther King, Jr., the third Monday in January;
Washington's Birthday, the third Monday in February; Memorial Day, the
last Monday in May; Independence Day, July 4; Labor Day, the first
Monday in September; Columbus Day, the second Monday in October;
Veterans' Day, November 11; Thanksgiving Day, the fourth Thursday in
November; Christmas Day, December 25. When any of the above-listed
holidays falls outside the basic workweek, the nearest workday within
that week shall become a holiday.
[40 FR 45800, Oct. 3, 1975, as amended at 43 FR 51754, Nov. 7, 1978; 50
FR 724, Jan. 7, 1985; 50 FR 51513, Dec. 18, 1985; 52 FR 4, Jan. 2, 1987;
53 FR 13397, Apr. 22, 1988; 54 FR 6389, Feb. 10, 1989]
Sec. 307.6 Basis of billing for overtime and holiday services.
(a) Each recipient of overtime or holiday inspection service, or
both, shall be billed as provided for in Sec. 307.5(a) and at the rates
specified in Sec. 391.3, in increments of quarter hours. For billing
purposes, 8 or more minutes shall be considered a full quarter hour.
Billing will be for each quarter hour of service rendered by each
Program employee.
(b) Official establishments, importers, or exporters requesting and
receiving the services of a Program employee after he has completed his
day's assignment and left the premises, or called back to duty during
any overtime or holiday period, shall be billed for a minimum of 2 hours
overtime or holiday inspection service at the established rate.
(c) Bills are payable upon receipt and become delinquent 30 days
from the date of the bill. Overtime or holiday inspection will not be
performed for anyone having a delinquent account.
[40 FR 45800, Oct. 3, 1975, as amended at 54 FR 6389, Feb. 10, 1989]
Sec. 307.7 Safety requirements for electrical stimulating (EST) equipment.
(a) General. Electrical stimulating (EST) equipment is equipment
that provides electric shock treatment to carcasses for the purpose of
accelerating rigor mortis of facilitating blood removal. These
provisions do not apply to electrical equipment used to stun and/or
slaughter animals or to facilitate hide removal. Electrical stimulating
equipment consists of two separate pieces--the control system and the
applicator. The EST control system contains the circuitry to generate
pulsed DC or AC voltage for stimulation and is separate from the
equipment used to apply the voltage to the carcass. The voltage is
applied by inserting a probe that penetrates the carcass or is inserted
in the rectum, placing a clamp in the nose, a carcass rub-bar, a
conveyor with energized surfaces traveling with the carcass, or any
other method found to be acceptable by the Administrator. The
Administrator will evaluate EST equipment to determine its acceptability
for its proposed use before
[[Page 100]]
it is installed in an official establishment as set forth in Sec. 308.5
of this subchapter.
(b) Safety requirements--(1) Circuits, grounding. Either a bonded
grounding conductor shall lead from each section of the carcass rail
within the stimulating enclosure to the service ground, or the secondary
voltage (stimulating circuit) shall be insulated from the service
ground. If the stimulating section of the carcass rail and carcass drive
mechanisms are insulated from the service ground then the stimulating
rail or the return path shall be electrically bonded to the transformer
secondary to isolate the stimulation voltage.
(2) Enclosure. Electrical stimulation shall occur in an area that
will prevent persons from contacting an energized surface. If the area
is surrounded by physical barriers, the enclosure shall be either
electrically grounded or it shall be made of materials that do not
conduct electricity. The interior of the stimulating area shall be
visible from the start switch so the operator can be assured that there
is no person, equipment or material present that should not be there
prior to starting the stimulating sequence. If light or sound beam
sensors form the enclosure, the stimulating equipment shall be
automatically shut off when the sensor signals are broken.
(3) Mandatory Warning Devices and Signals. The following warning
devices or signals shall be installed at each opening to the stimulating
area through which a person would normally enter:
(i) A red light that flashes distinctly during the operating cycle
of the stimulating equipment.
(ii) An ANSI Z53.1-Color Code sign reading (a) ``Danger Electrical
Hazard'' for stimulating voltage below 50 or (b) ``Danger High Voltage''
for stimulating voltage above 50.
(iii) An emergency stop button.
(4) Optional Warning Device--Horn or Bell. If a warning horn or bell
is installed, the signal shall be audible above background noises in the
vicinity, and it shall sound for at least 1 second before each manual
stimulation or before the carcass chain is started in an automatic
system.
(c) Operation--
(1) Training. Only persons who have received safety instruction by
the equipment manufacturer or designee may operate electrical
stimulating equipment.
(2) Cleaning and Maintenance. To prevent an electrical shock to
personnel, the electricity supplied to the stimulating surfaces shall be
locked-off when cleaning, mechanical inspection, maintenance or testing
are performed.
(3) Water. To prevent an electrical shock, personnel shall not spray
streams of water on energized carcasses or on energized stimulating
surfaces.
(d) Special provisions for manually operated equipment.
(1) Stimulating probes or clamps shall be stored in a sanitary
container which is insulated with a material approved by the
Administrator.\1\
---------------------------------------------------------------------------
\1\ A list of approved insulation materials is available upon
request from the Facilities, Equipment and Sanitation Division,
Technical Services, Food Safety and Inspection Service, U.S. Department
of Agriculture, Washington, DC 20250.
---------------------------------------------------------------------------
(2) The electric wires attached to a clamp or probe shall not allow
for contact between the probe or clamp and an electrical ground and
shall not extend outside the enclosure.
[53 FR 46432, Nov. 17, 1988]
PART 308--SANITATION--Table of Contents
Sec.
308.1 Examination and specifications for equipment and sanitation prior
to granting inspection.
308.2 [Reserved]
308.3 Establishments; sanitary condition; requirements.
308.4 Sanitary facilities and accommodations; specific requirements.
308.5 Equipment and utensils to be easily cleaned; those for inedible
products to be so marked; PCB-containing equipment.
308.6 Scabbards for knives.
308.7 Rooms, compartments, etc., to be clean and sanitary.
308.8 Operations, procedures, rooms, clothing, utensils, etc., to be
clean and sanitary.
308.9 Protective handling of products.
308.10 Slack barrels and similar containers and means of conveyance
used for product; paper in contact with product.
308.11 Burlap wrapping for meat.
[[Page 101]]
308.12 Second-hand tubs, barrels, and other containers.
308.13 Inedible operating and storage rooms; outer premises, docks,
driveways, approaches, pens, alleys, etc.; flybreeding
material; other conditions.
308.14 Employment of diseased persons.
308.15 Tagging insanitary equipment, utensils, rooms or compartments.
308.16 Sanitation requirements for electrical stimulating (EST)
equipment.
Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
Source: 35 FR 15561, Oct. 3, 1970, unless otherwise noted.
Sec. 308.1 Examination and specifications for equipment and sanitation prior to granting inspection.
Prior to the inauguration of inspection, an examination of the
establishment and premises shall be made by a Program employee and the
requirements for sanitation and the necessary facilities for inspection
shall be specified by him in accordance with the regulations in this
part and part 307 of this subchapter.
Sec. 308.2 [Reserved]
Sec. 308.3 Establishments; sanitary condition; requirements.
(a) Official establishments shall be maintained in sanitary
condition, and to this end the requirements of this section shall be
complied with. The provisions of part 416 of this chapter apply to all
establishments, except establishments that are exempt in accordance with
Sec. 303.1 of this chapter.
(b) There shall be abundant light, of good quality and well
distributed, and sufficient ventilation for all rooms and compartments
to insure sanitary condition.
(c) There shall be an efficient drainage and plumbing system for the
establishment and premises, and all drains and gutters shall be properly
installed with traps and vents approved by the circuit supervisor.
(d)(1) The water supply shall be ample, clean, and potable, with
adequate facilities for its distribution in the plant and its protection
against contamination and pollution. Every establishment shall make
known and, whenever required by the circuit supervisor, shall afford
opportunity for inspection of the source of its water supply, the
storage facilities, and the distribution system. Equipment using potable
water shall be so installed as to prevent back-siphonage into the
potable water system. Nonpotable water is permitted only in those parts
of official establishments where no edible product is handled or
prepared, and then only for limited purposes such as on ammonia
condensers not connected with the potable water supply, in vapor lines
serving inedible product rendering tanks, in connection with equipment
used for hashing and washing inedible products preparatory to tanking,
and in sewer lines for moving heavy solids in the sewage. Nonpotable
water is not permitted for washing floors, areas, or equipment involved
in trucking materials to and from edible product departments nor is it
permitted in hog scalding vats, dehairing machines, or vapor lines
serving edible product rendering equipment, or for cleanup of shackling
pens, bleeding areas, or runways within the slaughtering department. In
all cases, nonpotable waterlines shall be clearly identified and shall
not be cross-connected with the potable water supply unless this is
necessary for fire protection and such connection is of a type with an
adequate break to assure against accidental contamination, and is
approved by local authorities and by the circuit supervisor.
(2) The circuit supervisor may permit the reuse of water in vapor
lines leading from deodorizers used in the preparation of lard and
similar edible product and in equipment where such water is used to
thermally process canned product packed in hermetically sealed
containers, provided:
(i) The reuse is for the identical original purpose.
(ii) All pipelines, reservoirs, tanks, cooling towers, and like
equipment employed in handling the reused water are so constructed and
installed so they can be cleaned and drained, and are kept clean.
(3) Approval for the reuse of water other than as specified in
paragraph (d)(2) of this section or in Sec. 318.305(h) shall be obtained
from the Administrator in specific cases.
[[Page 102]]
(4) An ample supply of water at not less than 180 deg.F. shall be
furnished and used for the cleaning of inspection equipment and other
equipment, floors, and walls which are subject to contamination by the
dressing or handling of diseased carcasses, their viscera, and other
parts. Whenever necessary to determine compliance with this requirement,
conveniently located thermometers shall be installed by the operator of
the official establishment to show the temperature of the water at the
point of use.
(5) Hot water for cleaning rooms and equipment other than those
mentioned in paragraph (d)(4) of this section shall be delivered under
pressure to sufficient convenient outlets and shall be of such
temperature as to accomplish a thorough cleanup.
(e) The floors, walls, ceilings, partitions, posts, doors, and other
parts of all structures shall be of such materials, construction, and
finish as will make them susceptible of being readily and thoroughly
cleaned. The floors shall be kept watertight. The rooms and compartments
used for edible product shall be separate and distinct from those used
for inedible product.
(f) Rails should be located and passageway space provided so that
exposed product does not come in contact with posts, walls, and other
fixed parts of the building, or with barrels, boxes, and other
containers trafficked through holding and operating areas. Exposed
product shall not be placed or stored beneath carcasses in coolers or
holding areas.
(g) The rooms and compartments in which any product is prepared or
handled shall be free from dust and from odors from dressing and toilet
rooms, catch basins, hide cellars, casing rooms, inedible tank and
fertilizer rooms, and livestock pens.
(h) Every practicable precaution shall be taken to exclude flies,
rats, mice, and other vermin from official establishments. The use of
poisons for any purpose in rooms or compartments where any unpacked
product is stored or handled is forbidden, except under such
restrictions and precautions as are prescribed by the regulations in
this part or by the circuit supervisor in specific cases. The use of
insecticides, rodenticides, and similar pest control substances in hide
cellars, inedible product departments, outbuildings, or similar places,
or in storerooms containing canned or tierced products is not forbidden
but only those approved by the Administrator may be used. 1
So-called rat viruses shall not be used in any part of an establishment
or the premises thereof.
---------------------------------------------------------------------------
1 A list of approved pest control substances is
available upon request to the Scientific Services, Meat and Poultry
Inspection, Food Safety and Inspection Service, U.S. Department of
Agriculture, Washington, DC 20250.
---------------------------------------------------------------------------
(i) Dogs and cats shall be excluded from the interior of official
establishments; however, dogs may be permitted on the outer premises for
guard purposes.
[35 FR 15561, Oct. 3, 1970, as amended at 51 FR 45619, Dec. 19, 1986; 61
FR 38864, July 25, 1996; 62 FR 26217, May 13, 1997]
Sec. 308.4 Sanitary facilities and accommodations; specific requirements.
Adequate sanitary facilities and accommodations shall be furnished
by every official establishment. Of these, the following are
specifically required:
(a) Dressing rooms, toilet rooms, and urinals shall be sufficient in
number, ample in size, and conveniently located. The rooms shall be
provided with facilities to provide abundant light of good quality and
well distributed. They shall be properly ventilated, and meet all
requirements of the regulations in this part as to sanitary construction
and equipment. They shall be separate from the rooms and compartments in
which products are prepared, stored, or handled. Where both sexes are
employed, separate facilities shall be provided.
(b) Acceptable lavatories, including running hot and cold water,
soap, and towels, shall be placed in or near toilet and urinal rooms and
also at such other places in the establishment as may be essential to
assure cleanliness of all persons handling any product.
(c) Toilet soil lines shall be separate from house drainage lines to
a point outside the building and drainage from toilet bowls and urinals
shall not be discharged into a grease catch basin.
[[Page 103]]
(d) Properly located facilities shall be provided for cleansing and
disinfecting utensils and hands of all persons handling any product.
Sec. 308.5 Equipment and utensils to be easily cleaned; those for inedible products to be so marked; PCB-containing equipment.
(a) Equipment and utensils used for preparing or otherwise handling
any edible product or ingredient thereof in any official establishment
shall be of such material and construction as will facilitate their
thorough cleaning and insure cleanliness in the preparation and handling
of all edible products and otherwise avoid adulteration and misbranding
of such products. In addition to these requirements, equipment and
utensils shall not in any way interfere with or impede inspection
procedures. Receptacles used for handling inedible material shall be of
such material and construction that their use will not result in
adulteration of any edible product or in insanitary conditions at the
establishment, and they shall bear conspicuous and distinctive marking
to identify them as only for such use and shall not be used for handling
any edible product.
(b) New or replacement equipment or machinery (including any
replacement parts) brought onto the premises of any official
establishment shall not contain liquid polychlorinated biphenyls (PCBs)
in concentrations above 50 parts per million by weight of the liquid
medium. This provision applies to both food processing and nonfood
processing equipment and machinery, and any replacement parts for such
equipment and machinery. Totally enclosed capacitors containing less
than 3 pounds of PCBs are exempted from this prohibition.
[40 FR 25439, June 16, 1975, as amended at 40 FR 60053, Dec. 31, 1975;
45 FR 68918, Oct. 17, 1980; 62 FR 45024, Aug. 25, 1997]
Sec. 308.6 Scabbards for knives.
Scabbards and similar devices for the temporary retention of knives,
steels, triers, etc., by workers and others at official establishments
shall be constructed of rust-resisting metal or other impervious
material, shall be of a type that may be readily cleaned, and shall be
kept clean.
Sec. 308.7 Rooms, compartments, etc., to be clean and sanitary.
Rooms, compartments, places, equipment, and utensils used for
preparing, storing, or otherwise handling any product, and all other
parts of the establishment, shall be kept clean and in sanitary
condition. There shall be no handling or storing of materials which
create an objectionable condition in rooms, compartments, or places
where any product is prepared, stored, or otherwise handled.
Sec. 308.8 Operations, procedures, rooms, clothing, utensils, etc., to be clean and sanitary.
(a) Operations and procedures involving the preparation, storing, or
handling of any product shall be strictly in accord with clean and
sanitary methods.
(b) Rooms and compartments in which inspections are made and those
in which livestock are slaughtered or any product is prepared shall be
kept sufficiently free of steam and vapors to enable Program employees
to make inspections and to insure clean operations. The walls, ceilings,
and overhead structure of rooms and compartments in which product is
prepared, handled, or stored shall be kept reasonably free from moisture
to prevent dripping and contamination of product.
(c) Butchers and others who dress or handle diseased carcasses or
parts shall, before handling or dressing other carcasses or parts,
cleanse their hands with liquid soap and hot water, and rinse them in
clean water. Implements used in dressing diseased carcasses shall be
thoroughly cleansed with hot water having a minimum temperature of 180
deg.F. or in a disinfectant 2 approved by the Administrator,
followed by rinsing in clean water. The employees of the establishment
who handle any product shall keep their hands clean, and in all cases
after visiting the toilet rooms or urinals shall wash their hands
[[Page 104]]
before handling any product or implements used in the preparation of
product.
---------------------------------------------------------------------------
2 A list of approved disinfectants is available upon
request to the Scientific Services, Meat and Poultry Inspection, Food
Safety and Inspection Service, U.S. Department of Agriculture,
Washington, DC 20250.
---------------------------------------------------------------------------
(d) Aprons, frocks, and other outer clothing worn by persons who
handle any product shall be of material that is readily cleansed. Clean
garments shall be worn at the start of each working day and the garments
shall be changed during the day when required by the inspector in
charge.
(e) Such practices as spitting on whetstones; spitting on the floor;
placing skewers, tags, or knives in the mouth; inflating lungs or
casings with air from the mouth; or testing with air from the mouth such
receptacles as tierces, kegs, or casks, containing or intended as
containers of any product, are prohibited. Only mechanical means may be
used for such testing. Care shall be taken to prevent the contamination
of product with perspiration, hair, cosmetics, medications, and similar
substances.
(f) Equipment or substances which generate gases or odors shall not
be used in official establishments except as permitted by the
regulations in this part or by the circuit supervisor in specific cases
in which he determines that such use will not result in adulteration of
any product.
Sec. 308.9 Protective handling of products.
Products shall be protected from contamination from any source such
as dust, dirt, or insects during storage, loading, or unloading at and
transportation from official establishments.
Sec. 308.10 Slack barrels and similar containers and means of conveyance used for product; paper in contact with product.
(a) When necessary to avoid contamination of product with wood
splinters or similar contaminants, slack barrels and similar containers
and the cargo space of trucks, railroad cars, or other means of
conveyance shall be lined with suitable material of good quality before
packing.
(b) Slack barrels and similar containers and trucks, railroad cars,
and other means of conveyance in which any product is transported shall
be kept in a clean and sanitary condition.
(c) Paper used for covering or lining slack barrels and similar
containers and the cargo space of trucks, railroad cars, or other means
of conveyance shall be of a kind which does not tear during use but
remains intact when moistened by the product and does not disintegrate.
Sec. 308.11 Burlap wrapping for meat.
Since burlap used without any other material as a wrapping for meat
deposits lint on the meat and does not sufficiently protect it from
outside contamination, the use of burlap as a wrapping for meat will not
be permitted unless the meat is first wrapped with a good grade of paper
or cloth of a kind which will prevent contamination with lint or other
foreign matter.
Sec. 308.12 Second-hand tubs, barrels, and other containers.
Second-hand tubs, barrels, and boxes intended for use as containers
of any product shall be inspected when received at the official
establishment and before they are cleaned. Those showing evidence of
misuse rendering them unfit to serve as containers for food products
shall be rejected. The use of those showing no evidence of previous
misuse may be allowed after they have been thoroughly and properly
cleaned. Steaming, after thorough scrubbing and rinsing, is essential to
cleaning tubs and barrels.
[35 FR 15561, Oct. 3, 1970, as amended at 38 FR 29214, Oct. 23, 1973; 41
FR 23700, June 11, 1976]
Sec. 308.13 Inedible operating and storage rooms; outer premises, docks, driveways, approaches, pens, alleys, etc.; flybreeding material; other conditions.
All operating and storage rooms and departments of official
establishments used for inedible materials shall be maintained in
acceptably clean condition. The outer premises of every official
establishment, including docks and areas where cars and vehicles are
loaded, and the driveways, approaches, yards, pens, and alleys, shall be
properly paved and drained and kept in clean and orderly condition. All
catch basins on the premises shall be of such construction and location
and shall be given such attention as will insure
[[Page 105]]
their being kept in acceptable condition as regards odors and
cleanliness. Catch basins shall not be located in departments where any
product is prepared, handled, or stored. The accumulation on the
premises of official establishments of any material in which flies may
breed, such as hog hair, bones, paunch contents, or manure, is
forbidden. No other conditions that may result in adulteration of
product or interfere with inspection shall be allowed in any official
establishment or on its premises.
Sec. 308.14 Employment of diseased persons.
No operator of an official establishment or other person preparing
product in an official establishment shall employ, in any department
where any product is handled or prepared, any person showing evidence of
a communicable disease in a transmissible stage, or known to be a
carrier of such a disease, or while affected with boils, sores, infected
wounds, or other abnormal sources of microbiological contaminants.
Sec. 308.15 Tagging insanitary equipment, utensils, rooms or compartments.
When, in the opinion of a Program employee, any equipment, utensil,
room, or compartment at an official establishment is unclean or its use
would be in violation of any of the regulations in this subchapter, he
will attach a ``U.S. Rejected'' tag thereto. No equipment, utensil,
room, or compartment so tagged shall again be used until made
acceptable. Such tag so attached shall not be removed by anyone other
than a Program employee.
Sec. 308.16 Sanitation requirements for electrical stimulating (EST) equipment.
(a) Hide-on stimulation. Automatic and manually operated equipment
may be used to apply electrical stimualtion to the hide-on surface of
slaughtered carcasses provided no opening cuts other than the stick
wound or foot removal have been made in the carcass. If the hide is
penetrated by electrodes, the penetrated tissue shall be trimmed.
Disinfection of electrodes between each hide-on carcass stimulation is
not necessary.
(b) Hide-off stimulation. (1) Automatic or manually operated
equipment may be used to apply electrical stimulation to carcasses after
complete hide removal. Partially skinned carcasses shall not be
stimulated.
(2) If stimulation is applied before the carcass has been inspected,
the carcass contact surfaces of the equipment shall be disinfected with
a disinfectant approved by the Administrator \1\ before stimulation of
the next carcass. In the event that carcass contact surfaces of the
equipment cannot be cleaned and disinfected between carcass
stimulations, those surfaces shall be immediately removed from contact
with the exposed carcass and cleaned and disinfected before carcass
contact is resumed.
---------------------------------------------------------------------------
\1\ A list of approved disinfectants is available upon request from
the Facilities, Equipment and Sanitation Division, Technical Services,
Food Safety and Inspection Service, U.S. Department of Agriculture,
Washington, DC 20250.
---------------------------------------------------------------------------
(3) If stimulation is applied after the carcass has been inspected,
carcass contact surfaces of the equipment need not be disinfected with a
disinfectant approved by the Administrator before stimulation of the
next carcass. Carcass contact surfaces shall be maintained in a clean
and sanitary condition.
(c) Preventing product contamination. Carcass contamination of
edible tissue by stomach contents, feces and/or urine is unacceptable.
To prevent such occurrences, any of the following optional procedures
may be used before stimulation to prevent this contamination:
(1) Leave the sphincter muscles intact;
(2) Cut the rectum and the urethra free from surrounding tissue and
securely tie each off;
(3) Partially open the mid-line and/or saw the brisket to reduce
pressure on the visceral organs; or
(4) Any other pressure-relieving or discharge-restricting
alternative acceptable to the Administrator. Alternatives should be
presented in writing, through the inspector-in-charge, to the Program
for approval.
[[Page 106]]
(d) Cleaning. All equipment must be thoroughly cleaned at least
daily.
[53 FR 46433, Nov. 17, 1988]
PART 309--ANTE-MORTEM INSPECTION--Table of Contents
Sec.
309.1 Ante-mortem inspection in pens of official establishments.
309.2 Livestock suspected of being diseased or affected with certain
conditions; identifying suspects; disposition on post-mortem
inspection or otherwise.
309.3 Dead, dying, disabled, or diseased and similar livestock.
309.4 Livestock showing symptoms of certain metabolic, toxic, nervous,
or circulatory disturbances, nutritional imbalances, or
infectious or parasitic diseases.
309.5 Swine; disposal because of hog cholera.
309.6 Epithelioma of the eye.
309.7 Livestock affected with anthrax; cleaning and disinfection of
infected livestock pens and driveways.
309.8 Cattle affected with anasarca and generalized edema.
309.9 Swine erysipelas.
309.10 Onset of parturition.
309.11 Vaccine livestock.
309.12 Emergency slaughter; inspection prior to.
309.13 Disposition of condemned livestock.
309.14 Brucellosis-reactor goats.
309.15 Vesicular diseases.
309.16 Livestock suspected of having biological residues.
309.17 Livestock used for research.
309.18 Official marks and devices for purposes of ante-mortem
inspection.
Authority: 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
Source: 35 FR 15563, Oct. 3, 1970, unless otherwise noted.
Sec. 309.1 Ante-mortem inspection in pens of official establishments.
(a) All livestock offered for slaughter in an official establishment
shall be examined and inspected on the day of and before slaughter
unless, because of unusual circumstances, prior arrangements acceptable
to the Administrator have been made in specific cases by the circuit
supervisor for such examination and inspection to be made on a different
day before slaughter.
(b) Such ante-mortem inspection shall be made in pens on the
premises of the establishment at which the livestock are offered for
slaughter before the livestock shall be allowed to enter into any
department of the establishment where they are to be slaughtered or
dressed or in which edible products are handled. When the holding pens
of an official establishment are located in a public stockyard and are
reserved for the exclusive use of the establishment, such pens shall be
regarded as part of the premises of that establishment and the operator
of the establishment shall be responsible for compliance with all
requirements of the regulations in this subchapter with respect to such
pens.
Sec. 309.2 Livestock suspected of being diseased or affected with certain conditions; identifying suspects; disposition on post-mortem inspection or otherwise.
(a) Any livestock which, on ante-mortem inspection, do not clearly
show, but are suspected of being affected with any disease or condition
that, under part 311 of this subchapter, may cause condemnation of the
carcass on post-mortem inspection, and any livestock which show, on
ante-mortem inspection, any disease or condition that, under part 311 of
this subchapter would cause condemnation of only part of the carcass on
post-mortem inspection, shall be so handled as to retain its identity as
a suspect until it is given final post-mortem inspection, when the
carcass shall be marked and disposed of as provided in parts 310 and 311
of this subchapter, or until it is disposed of as otherwise provided in
this part.
(b) All seriously crippled animals and animals commonly termed
``downers,'' shall be identified as U.S. Suspects and disposed of as
provided in Sec. 311.1 of this subchapter unless they are required to be
classed as condemned under Sec. 309.3.
(c) Livestock which have reacted to a test for leptospirosis, or
anaplasmosis, but which show no symptoms of the disease, shall be
identified as U.S. Suspects and disposed of as provided in Sec. 311.10
of this subchapter.
(d) Livestock which are known to have reacted to the tuberculin test
shall be identified as U.S. Suspects and disposed of as provided in
Sec. 311.2 of this subchapter, except that livestock bearing an official
``USDA Reactor'' or similar State reactor tag shall not be tagged as
U.S. Suspects.
[[Page 107]]
(e) Any cattle found on ante-mortem inspection to be affected with
epithelioma of the eye or of the orbital region to a lesser extent than
as described in Sec. 309.6 shall be identified as a U.S. Suspect and
disposed of as provided in Sec. 311.12 of this subchapter.
(f) Cattle found on ante-mortem inspection to be affected with
anasarca to a lesser extent than as described in Sec. 309.8 shall be
identified as U.S. Suspects and disposed of as provided in Sec. 311.8 of
this subchapter or paragraph (g) of this section.
(g) Any livestock suspected of being affected with anasarca may be
set apart and held for treatment under Program or other responsible
official supervision approved by the area supervisor. If at the
expiration of the treatment period the livestock upon examination is
found to be free from disease, it may be released for any purpose.
Otherwise, it shall be identified as U.S. Suspect and disposed of as
provided in Sec. 311.8 of this subchapter or condemned and disposed of
as provided in Sec. 309.8, whichever is appropriate.
(h) All hogs suspected on ante-mortem inspection of being affected
with swine erysipelas shall be identified as U.S. Suspects and disposed
of as provided in Sec. 311.5 of this subchapter or paragraph (i) of this
section.
(i) A hog suspected of being affected with swine erysipelas may be
set apart and held for treatment under Program or other responsible
official supervision approved by the area supervisor. If at the
expiration of the treatment period the animal upon examination is found
to be free from disease, it may be released for any purpose. Otherwise,
it shall be identified as U.S. Suspect and disposed of as provided in
Sec. 311.5 of this subchapter, or condemned and disposed of as provided
in Sec. 309.13, whichever is appropriate.
(j) Any livestock which is affected with vesicular exanthema or
vesicular stomatitis, but which has recovered to the extent that the
lesions are in process of healing, the temperature is within normal
range, and the livestock shows a return to normal appetite and activity,
shall be identified as U.S. Suspect and disposed of as provided in
Sec. 311.32 of this subchapter, except that if desired, such livestock
may be set apart and held under supervision of a Program employee or
other official designated by the area supervisor for treatment. If the
livestock is set aside for treatment, the U.S. Suspect identification
device will be removed by a Program employee, following such treatment,
if the livestock is found to be free from any such disease. Such
livestock found to be free from any such disease may be released for
slaughter or for purposes other than slaughter, provided that in the
latter instance, the operator of the official establishment or the owner
of the animal shall first obtain permission from the local, State, or
Federal livestock sanitary official having jurisdiction over the
movement of such livestock.
(k) Livestock which are offered for ante-mortem inspection under
this part, and which are regarded by the inspector as immature, shall be
identified as U.S. Suspects and, if slaughtered, the disposition of
their carcasses shall be determined by the post-mortem findings in
connection with the ante-mortem conditions. If not slaughtered as
suspects, such livestock shall be held under supervision of a Program
employee or other official designated by the area supervisor, and after
sufficient development may be released for slaughter or may be released
for any other purpose, provided they have not been exposed to any
infectious or contagious disease. If such exposure occurs, permission
should be obtained from the nearest Veterinary Services unit of the
Animal and Plant Health Inspection Service prior to release of such
livestock.
(l) Livestock previously condemned for listeriosis, if released for
slaughter under Sec. 309.13(b) shall be identified as a U.S. Suspect in
accordance with Sec. 309.13(c).
(m) Each animal required by this part to be treated as a U.S.
Suspect shall be identified as such by or under the supervision of a
Program employee with an official device in accordance with Sec. 309.18.
No such device shall be removed except by a Program employee.
(n) Each animal identified as a U.S. Suspect on ante-mortem
inspection shall be set apart and shall be slaughtered separately from
other livestock
[[Page 108]]
at that establishment unless disposed of as otherwise provided in this
part.
(o) Each animal identified as a U.S. Suspect on ante-mortem
inspection, when presented for slaughter shall be accompanied with a
form MP 402-2 on which the inspector at the establishment shall record
the U.S. Suspect identification number and any other identifying tag
numbers present and a brief description of the animal and of the disease
or condition for which the animal was classed as a suspect, including
its temperature when the temperature of such animal might have a bearing
on the disposition of the carcass on post-mortem inspection.
(p) When any animal identified as a U.S. Suspect is released for any
purpose or reason, as provided in this part, the official identification
device shall be removed only by a Program employee and he shall report
his action to the area supervisor. When a suspect is to be released
under the provisions of this part for a purpose other than slaughter,
the operator of the official establishment or the owner of the animal
shall first obtain permission for the removal of such animal from the
local, State or Federal livestock sanitary official having jurisdiction.
[35 FR 15563, Oct. 3, 1970, as amended at 38 FR 29214, Oct. 23, 1973; 39
FR 36000, Oct. 17, 1974]
Sec. 309.3 Dead, dying, disabled, or diseased and similar livestock.
(a) Livestock found to be dead or in a dying condition on the
premises of an official establishment shall be identified as U.S.
Condemned and disposed of in accordance with Sec. 309.13.
(b) Livestock plainly showing on ante-mortem inspection any disease
or condition that, under part 311 of this subchapter, would cause
condemnation of their carcasses on post-mortem inspection shall be
identified as U.S. Condemned and disposed of in accordance with
Sec. 309.13.
(c) Any swine having a temperature of 106 deg.F. or higher and any
cattle, sheep, goats, horses, mules, or other equines having a
temperature of 105 deg.F. or higher shall be identified as U.S.
Condemned. In case of doubt as to the cause of the high temperature, or
when for other reasons a Program employee deems such action warranted,
any such livestock may be held for a reasonable time under the
supervision of a Program employee for further observation and taking of
temperature before final disposition of such livestock is determined.
Any livestock so held shall be reinspected on the day it is slaughtered.
If, upon such reinspection, or when not held for further observation and
taking of temperature, then on the original inspection, the animal has a
temperature of 106 deg.F. or higher in the case of swine, or 105
deg.F. or higher in the case of other livestock, it shall be condemned
and disposed of in accordance with Sec. 309.13.
(d) Any livestock found in a comatose or semicomatose condition or
affected with any condition not otherwise covered in this part, which
would preclude release of the animal for slaughter for human food, shall
be identified ``U.S. Condemned'' and disposed of in accordance with
Sec. 309.13, except that such animal may be set apart and held for
further observation or treatment under supervision of a Program employee
or other official designated by the area supervisor and for final
disposition in accordance with this part.
Sec. 309.4 Livestock showing symptoms of certain metabolic, toxic, nervous, or circulatory disturbances, nutritional imbalances, or infectious or parasitic
diseases.
(a) All livestock showing, on ante-mortem inspection, symptoms of
anaplasmosis, ketosis, leptospirosis, listeriosis, parturient paresis,
pseudorabies, rabies, scrapie, tetanus, grass tetany, transport tetany,
strangles, purpura hemorrhagica, azoturia, infectious equine
encephalomyelitis, toxic encephalomyelitis (forage poisoning), dourine,
acute influenza, generalized osteoporosis, glanders (farcy), acute
inflammatory lameness or extensive fistula shall be identified as U.S.
Condemned and disposed of in accordance with Sec. 309.13.
(b) If any equine is suspected on ante-mortem inspection of being
infected with glanders or dourine, the nearest Veterinary Services unit
of the Animal and Plant Health Inspection Service shall be so informed
by a Program employee. Tests shall be performed by
[[Page 109]]
said unit to determine whether the animal is, in fact, infected with
such disease. If it is found on such tests to be infected, the animal
shall be disposed of in accordance with paragraph (a) of this section.
Otherwise, the animal shall be identified as a U.S. Suspect and disposed
of as provided in Sec. 311.10 of this subchapter.
[35 FR 15563, Oct. 3, 1970 as amended at 38 FR 29214, Oct. 23, 1973]
Sec. 309.5 Swine; disposal because of hog cholera.
(a) All swine found by an inspector to be affected with hog cholera
shall be identified as U.S. Condemned and disposed of in accordance with
Sec. 309.13. Immediate notification shall be given by the inspector to
the official in the Veterinary Services unit of the Animal and Plant
Health Inspection Service who has responsibility for the control of
swine diseases in the State where the swine are located.
(b) All swine, even though not themselves identified as U.S.
Suspects, which are of lots in which one or more animals have been
condemned or identified as U.S. Suspect for hog cholera, shall, as far
as possible, be slaughtered separately and apart from all other
livestock passed on ante-mortem inspection.
[40 FR 27225, June 27, 1975]
Sec. 309.6 Epithelioma of the eye.
Any animal found on ante-mortem inspection to be affected with
epithelioma of the eye and the orbital region in which the eye has been
destroyed or obscured by neoplastic tissue and which shows extensive
infection, suppuration, and necrosis, usually accompanied with foul
odor, or any animal affected with epithelioma of the eye or of the
orbital region which, regardless of extent, is accompanied with cachexia
shall be identified as U.S. Condemned and disposed of in accordance with
Sec. 309.13.
Sec. 309.7 Livestock affected with anthrax; cleaning and disinfection of infected livestock pens and driveways.
(a) Any livestock found on ante-mortem inspection to be affected
with anthrax shall be identified as U.S. Condemned and disposed of in
accordance with Sec. 309.13.
(b) No other livestock of a lot in which anthrax is found on ante-
mortem inspection shall be slaughtered and presented for post-mortem
inspection until it has been determined by a careful ante-mortem
inspection that no anthrax infected livestock remains in the lot.
(c) Apparently healthy livestock (other than hogs) from a lot in
which anthrax is detected, and any apparently healthy livestock which
have been treated with anthrax biologicals which do not contain living
anthrax organisms, may be slaughtered and presented for post-mortem
inspection if they have been held not less than 21 days following the
last treatment or the last death of any livestock in the lot.
Alternatively, if desired, all apparently healthy livestock of the lot
may be segregated and held for treatment by a State licensed
veterinarian under supervision of a Program employee or other official
designated by the area supervisor. No anthrax vaccine (live organisms)
shall be used on the premises of an official establishment.
(d) Livestock which have been injected with anthrax vaccines (live
organisms) within 6 weeks, and those bearing evidence of reaction to
such treatment, such as inflammation, tumefaction, or edema at the site
of the injection, shall be condemned on ante-mortem inspection, or such
animals may be held under supervision of a Program employee or other
official designated by the area supervisor until the expiration of the
6-week period and the disappearance of any evidence of reaction to the
treatment.
(e) When livestock are found on ante-mortem inspection to be
affected with anthrax, all exposed livestock pens and driveways of the
official establishment shall be cleaned and disinfected by promptly and
thoroughly removing and burning all straw, litter, and manure. This
shall be followed immediately by a thorough disinfection of the exposed
premises by soaking the ground, fences, gates, and all exposed material
with a 5 percent solution of sodium hydroxide or commercial lye prepared
as outlined in Sec. 310.9(e)(1) of this subchapter, or other
disinfectant that may
[[Page 110]]
be approved in specific cases by the Administrator specifically for this
purpose.
Sec. 309.8 Cattle affected with anasarca and generalized edema.
All cattle found on ante-mortem inspection to be affected with
anasarca in advanced stages and characterized by an extensive and
generalized edema shall be identified as U.S. Condemned and disposed of
in accordance with Sec. 309.13.
Sec. 309.9 Swine erysipelas.
All hogs plainly showing on ante-mortem inspection that they are
affected with acute swine erysipelas shall be identified as U.S.
Condemned and disposed of in accordance with Sec. 309.13.
Sec. 309.10 Onset of parturition.
Any livestock showing signs of the onset of parturition shall be
withheld from slaughter until after parturition and passage of the
placenta. Slaughter or other disposition may then be permitted if the
animal is otherwise acceptable.
Sec. 309.11 Vaccine livestock.
Vaccine livestock with unhealed lesions of vaccinia, accompanied
with fever, which have not been exposed to any other infectious or
contagious disease, are not required to be slaughtered and may be
released for removal from the premises.
Sec. 309.12 Emergency slaughter; inspection prior to.
In all cases of emergency slaughter, except as provided in
Sec. 311.27 of this subchapter, the animals shall be inspected
immediately before slaughter, whether theretofore inspected or not. When
the necessity for emergency slaughter exists, the establishment shall
notify the inspector in charge so that such inspection may be made.
Sec. 309.13 Disposition of condemned livestock.
(a) Except as otherwise provided in this part, livestock identified
as U.S. Condemned shall be killed by the official establishment, if not
already dead. Such animals shall not be taken into the official
establishment to be slaughtered or dressed; nor shall they be conveyed
into any department of the establishment used for edible products; but
they shall be disposed of in the manner provided for condemned carcasses
in part 314 of this subchapter. The official U.S. Condemned tag shall
not be removed from, but shall remain on the carcass until it goes into
the tank, or is otherwise disposed of as prescribed in part 314 of this
subchapter, at which time such tag may be removed by a Program employee
only. The number of such tag shall be reported to the veterinary medical
officer by the inspector who affixed it, and also by the inspector who
supervised the tanking of the carcass.
(b) Any livestock condemned on account of ketosis, swine erysipelas,
vesicular diseases, grass tetany, transport tetany, parturient paresis,
anasarca, anaplasmosis, leptospirosis, listeriosis, or inflammatory
condition including pneumonia, enteritis, and peritonitis may be set
apart and held for treatment under supervision of a Program employee or
official designated by the area supervisor. The U.S. Condemned
identification tag will be removed by a Program employee following
treatment under such supervision if the animal is found to be free from
any such disease.
(c) Livestock previously affected with listeriosis, including those
released for slaughter after treatment under paragraph (b) of this
section, shall be identified as U.S. Suspect.
(d) When livestock under the provisions of this section is to be
released for a purpose other than slaughter, the operator of the
official establishment or the owner of the livestock shall first obtain
permission for the movement of such livestock from the local, State, or
Federal livestock sanitary official having jurisdiction.
Sec. 309.14 Brucellosis-reactor goats.
Goats which have reacted to a test for brucellosis shall not be
slaughtered in an official establishment.
Sec. 309.15 Vesicular diseases.
(a) Immediate notification shall be given by the inspector to the
local, State, and Federal livestock sanitary officials having
jurisdiction when any
[[Page 111]]
livestock is found to be affected with a vesicular disease.
(b) No livestock under quarantine by State or Federal livestock
sanitary officials on account of a vesicular disease will be given ante-
mortem inspection. If no quarantine is invoked, or if quarantine is
invoked and later removed, upon ante-mortem inspection, any animal found
to be affected with vesicular exanthema or vesicular stomatitis in the
acute stages, as evidenced by acute and active lesions or an elevated
temperature, shall be identified as U.S. Condemned and disposed of in
accordance with Sec. 309.13.
Sec. 309.16 Livestock suspected of having biological residues.
(a) Except as provided by paragraph (d) of this section, livestock
suspected of having been treated with or exposed to any substance that
may impart a biological residue which would make the edible tissues
unfit for human food or otherwise adulterated shall be handled in
compliance with the provisions of this paragraph. They shall be
identified at official establishments as ``U.S. Condemned.'' These
livestock may be held under the custody of a Program employee, or other
official designated by the Administrator, until metabolic processes have
reduced the residue sufficiently to make the tissues fit for human food
and otherwise not adulterated. When the required time has elapsed, the
livestock, if returned for slaughter, must be re-examined on ante-mortem
inspection. To aid in determining the amount of residue present in the
tissues, officials of the Program may permit the slaughter of any such
livestock for the purpose of collecting tissues for analysis for the
residue. Such analysis may include the use of inplant screening
procedures designed to detect the presence of antimicrobial residues in
any species of livestock.
(b) All carcasses and edible organs and other parts thereof, in
which are found any biological residues which render such articles
adulterated, shall be marked as ``U.S. Condemned'' and disposed of in
accordance with Sec. 314.1 or Sec. 314.3 of this chapter.
(c) [Reserved]
(d) Calves shall not be presented for ante-mortem inspection in an
official establishment except under the provisions of this paragraph.
(1) Definitions. For purposes of this paragraph, the following
definitions shall apply:
(i) Calf. A calf up to 3 weeks of age or up to 150 pounds.
(ii) Certified calf. A calf that the producer and all other
subsequent custodians of the calf certify in writing has not been
treated with any animal drug while in his or her custody or has been
treated with one or more drugs in accordance with FDA approved label
directions while in his or her custody and has been withheld from
slaughter for the period(s) of time specified by those label directions.
(iii) Healthy calf. A calf that an inspector determines shows no
visual signs of disease or treatment of disease at ante-mortem
inspection.
(iv) Producer. The owner of the calf at the time of its birth.
(v) Sick calf. A calf that an inspector on ante-mortem inspection
determines has either signs of treatment or signs of disease.
(vi) Veterinary medical officer. An inspector of the Program that
has obtained a Doctor of Veterinary Medicine degree which is recognized
by the Program.
(2) General requirements. (i) The identity of the producer of each
calf presented for ante-mortem inspection shall be made available by the
official establishment to the inspection prior to the animal being
presented for ante-mortem inspection.
(ii) The inspector shall segregate the calves presented for ante-
mortem inspection at the establishment and identify each calf as one of
the following: (a) Certified, (B) noncertified, or (C) previous residue
condemnation.
(3) Certified group. (i) For a calf to be considered certified, the
producer and all other subsequent custodians of the calf must certify in
writing that while the calf was in his or her custody, the calf was not
treated with animal drugs or was treated with one or more drugs in
accordance with FDA approved label directions and was withheld from
slaughter for the period(s) of time specified by those label directions.
All prior
[[Page 112]]
certifications must be presented with the animal at the time of
slaughter. The certifications shall contain a list of the calves with
accompanying identification numbers, as required by paragraph (d)(3)(ii)
of this section, followed by the following language:
I hereby certify that, while in my custody, from ________ to
________ (time period of custody), the above-listed calf or calves have
not been treated with drugs, or have been treated with one or more drugs
in accordance with FDA approved label directions and have been withheld
from slaughter for the period(s) of time specified by those label
directions. I certify that, to the best of my knowledge and belief, all
information contained herein is true, that the information may be relied
upon at the official establishment, and that I understand that any
willful falsification of this certification is a felony and may result
in a fine of up to $250,000 for an individual or up to $500,000 for an
organization, or imprisonment for not more than 5 years, or both (21
U.S.C. 677, 18 U.S.C. 1001 and 3571).
Executed on_____________________________________________________________
(date of certification)
_______________________________________________________________________
(signature of certifier)
_______________________________________________________________________
(typed or printed name and address of certifier)
_______________________________________________________________________
(business of certifier)
(ii) Each calf must be identified by use of backtag, eartag, or
other type of secure identification which displays a number which shall
be recorded on all written certifications.
(iii) The inspector shall have segregated for veterinary medical
officer examination any certified calf which he or she determines to
show any sign of disease or which is not identified individually. Such
animal will be tagged as ``U.S. Suspect'' and its carcass will be
retained on post-mortem inspection and handled in accordance with
Sec. 310.21 (c) and (d).
(iv) The inspector shall handle the remaining carcasses of healthy
animals in accordance with Sec. 310.21(c) and (d).
(4) Noncertified group. On ante-mortem inspection, the inspector
shall have segregated for veterinary medical officer examination any
calf which he or she determines to show any sign of disease. Such animal
will be tagged as ``U.S. Suspect'' and its carcass will be retained on
post-mortem inspection and handled in accordance with Sec. 310.21(c).
The inspector shall handle the remaining carcasses of healthy animals in
accordance with Sec. 310.21(c).
(5) Calves from producers with previous residue condemnation. On
ante-mortem inspection, the inspector shall have segregated for
veterinary medical officer examination any calf which he or she
determines to show any sign of disease. Such animal will be tagged as
``U.S. Suspect'' and its carcass will be retained on post-mortem
inspection and handled in accordance with Sec. 310.21(e). The inspector
shall handle the remaining carcasses of healthy animals in accordance
with Sec. 310.21(e).
(e) The name of each and all person(s) who sold or consigned each
swine to the establishment shall be made available by the establishment
to any Program employee or other authorized employee of the United
States Department of Agriculture upon that employee's request and
presentation of his or her official credentials. Swine identification,
by means approved by the Animal and Plant Health Inspection Service,
USDA, under part 71 of this title, must be maintained throughout post-
mortem inspection, in accordance with Sec. 310.23(a) of this subchapter.
(Recordkeeping requirements approved by the Office of Management and
Budget under control number 0583-0053)
[36 FR 24928, Dec. 24, 1971, as amended at 44 FR 45606, Aug. 3, 1979; 44
FR 59499, Oct. 16, 1979; 47 FR 746, Jan. 7, 1982; 47 FR 41336, Sept. 20,
1982; 50 FR 32164, Aug. 9, 1985; 50 FR 53127, Dec. 30, 1985; 52 FR 2104,
Jan. 20, 1987; 53 FR 40387, Oct. 14, 1988; 55 FR 7474, Mar. 2, 1990]
Sec. 309.17 Livestock used for research.
(a) No livestock used in any research investigation involving an
experimental biological product, drug, or chemical shall be eligible for
slaughter at an official establishment unless:
(1) The operator of such establishment, the sponsor of the
investigation, or the investigator has submitted to the Program, or the
Veterinary Services unit of the Animal and Plant Health Inspection
Service of the Department of Agriculture or to the Environmental
Protection Agency or to the Food and Drug Administration of the
Department of Health, Education, and
[[Page 113]]
Welfare, data or a summary evaluation of the data which demonstrates
that the use of such biological product, drug, or chemical will not
result in the products of such livestock being adulterated, and a
Program employee has approved such slaughter;
(2) Written approval by the Deputy Administrator, Meat and Poultry
Inspection Field Operations is furnished the area supervisor prior to
the time of slaughter;
(3) In the case of an animal administered any unlicensed,
experimental veterinary biologic product regulated under the Virus-Serum
Toxin Act (21 U.S.C. 151 et seq.), the product was prepared and
distributed in compliance with Part 103 of the regulations issued under
said Act (part 103 of this title), and used in accordance with the
labeling approved under said regulations;
(4) In the case of an animal administered any investigational drug
regulated under the Federal Food, Drug, and Cosmetic Act, as amended (21
U.S.C. 301 et seq.), the drug was prepared and distributed in compliance
with the applicable provisions of part 135 of the regulations issued
under said Act (21 CFR part 135), and used in accordance with the
labeling approved under said regulations;
(5) In the case of an animal subjected to any experimental economic
poison under section 2(a) of the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended (7 U.S.C. 135 et seq.), the product was
prepared and distributed in accordance with Sec. 362.17 of the
regulations issued under said Act (7 CFR 362.17), and used in accordance
with the labeling approved under said regulations.
(6) In the case of an animal administered or subjected to any
substance that is a food additive or pesticide chemical under the
Federal Food, Drug, and Cosmetic Act, supra, there has been compliance
with all tolerance limitations established by said Act and the
regulations promulgated thereunder (21 CFR 1.1 et seq.), and all other
restrictions and requirements imposed by said Act and said regulations
will be complied with at the time of slaughter.
(b) The inspector in charge may deny or withdraw the approval for
slaughter of any livestock subject to the provision of this section when
he deems it necessary to assure that all products prepared at the
official establishment are free from adulteration.
Sec. 309.18 Official marks and devices for purposes of ante-mortem inspection.
(a) All livestock required by this part to be identified as U.S.
Suspects shall be tagged with a serially numbered metal ear tag bearing
the term ``U.S. Suspect,'' except as provided in Sec. 309.2(d) and
except that cattle affected with epithelioma of the eye, antinomycosis,
or actinobacillosis to such an extent that the lesions would be readily
detected on post-mortem inspection, need not be individually tagged on
ante-mortem inspection with the U.S. Suspect tag, provided that such
cattle are segregated and otherwise handled as U.S. Suspects.
(b) In addition, identification of U.S. Suspect swine must include
the use of tattoos specified by the inspector to maintain the identity
of the animals through the dehairing equipment when such equipment is
used.
(c) All livestock required by this part to be identified as U.S.
Condemned shall be tagged with a serially numbered metal ear tag bearing
the term ``U.S. Condemned.''
(d) The devices described in paragraphs (a), (b), and (c) of this
section shall be the official devices for identification of livestock
required to be identified as U.S. Suspect or U.S. Condemned as provided
in this part.
PART 310--POST-MORTEM INSPECTION--Table of Contents
Sec.
310.1 Extent and time of post-mortem inspection; post-mortem inspection
staffing standards.
310.2 Identification of carcass with certain severed parts thereof and
with animal from which derived.
310.3 Carcasses and parts in certain instances to be retained.
310.4 Identification of carcasses and parts; tagging.
310.5 Condemned carcasses and parts to be so marked; tanking;
separation.
310.6 Carcasses and parts passed for cooking; marking.
310.7 Removal of spermatic cords, pizzles and preputial diverticuli.
[[Page 114]]
310.8 Passing and marking of carcasses and parts.
310.9 Anthrax; carcasses not to be eviscerated; disposition of affected
carcasses; hides, hoofs, horns, hair, viscera and contents,
and fat; handling of blood and scalding vat water; general
cleanup and disinfection.
310.10 Carcasses with skin or hide on; cleaning before evisceration;
removal of larvae of Hypodermae, external parasites and other
pathological skin conditions.
310.11 Cleaning of hog carcasses before incising.
310.12 Sternum to be split; abdominal and thoracic viscera to be
removed.
310.13 Inflating carcasses or parts thereof; transferring caul or other
fat.
310.14 Handling of bruised parts.
310.15 Disposition of thyroid glands and laryngeal muscle tissue.
310.16 Disposition of lungs.
310.17 Inspection of mammary glands.
310.18 Contamination of carcasses, organs, or other parts.
310.19 Inspection of kidneys.
310.20 Saving of blood from livestock as an edible product.
310.21 Carcasses suspected of containing sulfa and antibiotic residues;
sampling frequency; disposition of affected carcasses and
parts.
310.22 [Reserved]
310.23 Identification of carcasses and parts of swine.
310.24 [Reserved]
310.25 Contamination with microorganisms; pathogen reduction
performance standards for Salmonella.
Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
Source: 35 FR 15567, Oct. 3, 1970, unless otherwise noted.
Sec. 310.1 Extent and time of post-mortem inspection; post-mortem inspection staffing standards.
(a) A careful post-mortem examination and inspection shall be made
of the carcasses and parts thereof of all livestock slaughtered at
official establishments. Such inspection and examination shall be made
at the time of slaughter unless, because of unusual circumstances, prior
arrangements acceptable to the Administrator have been made in specific
cases by the circuit supervisor for making such inspection and
examination at a later time.
(b)(1) The staffing standards on the basis of the number of
carcasses to be inspected per hour are outlined in the following tables.
Standards for multiple inspector lines are based on inspectors rotating
through the different types of inspection stations during each shift to
equalize the workload. The inspector in charge shall have the authority
to require the establishment to reduce slaughter line speeds where, in
his judgment, the inspection procedure cannot be adequately performed at
the current line speed because of particular deficiencies in carcass
preparation and presentation by the plant at the higher speed, or
because the health condition of the particular animals indicates a need
for more extensive inspection.
(2) Cattle inspection. For all cattle staffing standards, an ``a''
in the ``Number of Inspectors by Stations'' column means that one
inspector performs the entire inspection procedure and a ``b'' means
that one inspector performs the head and lower carcass inspection and a
second inspector performs the viscera and upper carcass
inspection.1
---------------------------------------------------------------------------
1 The ``Maximum Slaughter Rates'' figures listed in paragraph
(b)(2)(i) of this section for one (a) and two (b) inspector kills are
overstated because the time required to walk from one inspection station
to another is not included. To determine the proper adjusted maximum
slaughter line speed, paragraph (b)(2)(i)(A) of this section for one
inspector kills or paragraph (b)(2)(i)(B) of this section for two
inspector kills must be used along with their accompanying rules.
---------------------------------------------------------------------------
(i) Inspection Using the Viscera Truck.
Steers and Heifers
------------------------------------------------------------------------
Number of inspectors by
stations
Maximum slaughter rates (head per hour) ------------------------
Head Viscera Carcass
------------------------------------------------------------------------
1 to 27........................................ a a a
28 to 56....................................... b b b
57 to 84....................................... 1 1 1
85 to 86....................................... 1 2 1
87 to 143...................................... 2 2 1
------------------------------------------------------------------------
Cows and Bulls
------------------------------------------------------------------------
Number of inspectors by
stations
Maximum slaughter rates (head per hour) ------------------------
Head Viscera Carcass
------------------------------------------------------------------------
1 to 27........................................ a a a
28 to 55....................................... b b b
56 to 77....................................... 1 1 1
[[Page 115]]
78 to 81....................................... 1 2 1
82 to 134...................................... 2 2 1
------------------------------------------------------------------------
(A) Rules for determining adjusted maximum slaughter rates for
single-inspector kills considering walking distance according to the
table in this subdivision: Determine the distances the inspector
actually walks between the points shown in columns 2 through 14 of the
following table. For each column, determine the deduction figure
opposite the appropriate number of feet in column 1. Compute the total
of the deduction figures for columns 2 through 14. The adjusted maximum
rate is the maximum rate in paragraph (b)(2)(i) of this section minus
total of the deduction figures. If the resultant number is not a whole
number, it must be rounded off to the next lowest whole number.
[[Page 116]]
One-Inspector Cattle Kill--Viscera Truck
[Table of deductions from maximum slaughter rates for each 2 feet between points (in tenths of cattle per hour)]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2 Head rack 3 Viscera 4 Low rail 5 Head rack 6 Carcass 7 Tags-- 8 Viscera 9 Viscera 10 Low rail 11 Head 12 13 Head rack 14 Viscera
1 and high rail and low rail and head and carcass \2\ and brands and and and high and high rack and Washbasin and washbasin and tags--
Number ----------------------------- rack \2\ washbasin low rail washbasin rail rail closest and high \1\ brands
of feet ---------------------------- -------------------------------------------------------- washbasin rail \1\ ----------------------------
between Strs. Cows Strs. Cows -------------- ----------------------------
points Hfrs. Bulls Hfrs. Bulls Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows
Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1....... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
3....... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.1 0
5....... 0 0 0.1 0 0 0 0 0 0 0 0 0 0 0.1 0.1 0.1 0 0 0 0 0 0 0 0 0.2 0.1
7....... 0 0 0.1 0.1 0.1 0.1 0 0 0 0 0.1 0.1 0.1 0.2 0.2 0.2 0.1 0.1 0 0 0 0 0 0 0.3 0.3
9....... 0 0 0.2 0.1 0.1 0.1 0 0 0 0 0.1 0.1 0.1 0.3 0.3 0.3 0.1 0.1 0 0 0.1 0.1 0.1 0.1 0.4 0.4
11...... 0.1 0.1 0.2 0.2 0.2 0.2 0 0 0 0 0.1 0.2 0.2 0.4 0.4 0.4 0.2 0.2 0 0 0.1 0.1 0.1 0.1 0.5 0.6
13...... 0.1 0.1 0.3 0.2 0.2 0.2 0 0 0 0 0.2 0.2 0.2 0.5 0.5 0.5 0.2 0.2 0 0 0.1 0.1 0.1 0.1 0.6 0.7
15...... 0.1 0.1 0.4 0.3 0.3 0.3 0 0 0 0 0.2 0.3 0.3 0.5 0.6 0.6 0.3 0.3 0 0 0.2 0.2 0.2 0.2 0.7 0.9
17...... 0.1 0.1 0.4 0.3 0.3 0.3 0 0 0 0 0.3 0.3 0.3 0.6 0.7 0.7 0.3 0.3 0 0.1 0.2 0.2 0.2 0.2 0.9 1.0
19...... 0.1 0.1 0.5 0.4 0.4 0.4 0 0 0 0 0.3 0.4 0.4 0.7 0.8 0.8 0.4 0.4 0 0.1 0.2 0.2 0.2 0.2 1.0 1.1
21...... 0.2 0.2 0.5 0.4 0.4 0.4 0 0 0 0 0.3 0.4 0.4 0.8 0.9 0.8 0.4 0.4 0 0.1 0.3 0.2 0.3 0.2 1.1 1.3
23...... 0.2 0.2 0.6 0.5 0.5 0.5 0 0 0 0 0.4 0.5 0.5 0.9 1.0 0.9 0.5 0.5 0 0.1 0.3 0.3 0.3 0.3 1.2 1.4
25...... 0.2 0.2 0.7 0.5 0.5 0.5 0 0 0 0 0.4 0.5 0.5 1.0 1.1 1.0 0.5 0.5 0 0.1 0.3 0.3 0.3 0.3 1.3 1.5
27...... 0.2 0.2 0.7 0.5 0.6 0.5 0 0 0 0 0.4 0.5 0.6 1.1 1.2 1.1 0.6 0.6 0 0.1 0.3 0.3 0.3 0.3 1.4 1.7
29...... 0.2 0.2 0.8 0.6 0.6 0.6 0 0 0 0 0.5 0.6 0.6 1.2 1.3 1.2 0.6 0.6 0 0.1 0.4 0.3 0.4 0.3 1.5 1.8
31...... 0.3 0.2 0.8 0.6 0.7 0.6 0 0 0 0 0.5 0.6 0.7 1.3 1.3 1.4 0.7 0.7 0 0.1 0.4 0.4 0.4 0.4 1.6 1.9
33...... 0.3 0.3 0.9 0.7 0.7 0.7 0 0 0 0 0.6 0.7 0.7 1.3 1.4 1.4 0.7 0.7 0 0.1 0.4 0.4 0.4 0.4 1.7 2.1
35...... 0.3 0.3 1.0 0.7 0.8 0.7 0 0 0 0 0.6 0.7 0.8 1.4 1.5 1.5 0.8 0.8 0 0.2 0.5 0.4 0.5 0.4 1.8 2.2
37...... 0.3 0.3 1.0 0.8 0.8 0.8 0 0 0 0 0.6 0.8 0.8 1.5 1.6 1.6 .0.8 0.8 0 0.2 0.5 0.5 0.5 0.5 1.9 2.3
39...... 0.3 0.3 1.1 0.8 0.9 0.8 0 0 0 0 0.7 0.8 0.9 1.6 1.7 1.7 0.9 0.9 0 0.2 0.5 0.5 0.5 0.5 2.0 2.4
41...... 0.4 0.3 1.1 0.9 0.9 0.9 0 0.1 0 0.1 0.7 0.9 0.9 1.7 1.7 1.8 0.9 0.9 0 0.2 0.6 0.5 0.6 0.5 2.1 2.6
43...... 0.4 0.4 1.2 0.9 1.0 0.9 0 0.1 0 0.1 0.7 0.9 1.0 1.8 1.8 1.9 1.0 1.0 0.1 0.2 0.6 0.5 0.6 0.5 2.2 2.7
45...... 0.4 0.4 1.2 0.9 1.0 0.9 0 0.1 0 0.1 0.8 0.9 1.0 1.8 1.9 2.0 1.0 1.0 0.1 0.2 0.6 0.6 0.6 0.6 2.3 2.8
47...... 0.4 0.4 1.3 1.0 1.1 1.0 0 0.1 0 0.1 0.8 1.0 1.1 1.9 2.0 2.1 1.1 1.1 0.1 0.2 0.6 0.6 0.6 0.6 2.4 2.9
49...... 0.4 0.4 1.4 1.0 1.1 1.0 0 0.1 0 0.1 0.8 1.0 1.1 2.0 2.1 2.2 1.1 1.1 0.1 0.2 0.7 0.6 0.7 0.6 2.5 3.1
51...... 0.5 0.5 1.4 1.1 1.2 1.1 0 0.1 0 0.1 0.9 1.1 1.2 2.1 2.2 2.2 1.2 1.2 0.1 0.3 0.7 0.7 0.7 0.7 2.6 3.2
53...... 0.5 0.5 1.5 1.1 1.2 1.1 0 0.1 0 0.1 0.9 1.1 1.2 2.2 2.3 2.3 1.2 1.2 0.1 0.3 0.7 0.7 0.7 0.7 2.7 3.3
55...... 0.5 0.5 1.5 1.2 1.2 1.2 0 0.1 0 0.1 1.0 1.2 1.2 2.3 2.3 2.4 1.3 1.3 0.1 0.3 0.8 0.7 0.8 0.7 2.8 3.4
57...... 0.5 0.5 1.6 1.2 1.3 1.2 0 0.1 0 0.1 1.0 1.2 1.3 2.3 2.4 2.5 1.3 1.3 0.1 0.3 0.8 0.7 0.8 0.7 2.9 3.5
59...... 0.5 0.5 1.6 1.3 1.3 1.3 0 0.1 0 0.1 1.0 1.3 1.3 2.4 2.5 2.6 1.4 1.4 0.1 0.3 0.8 0.8 0.8 0.8 3.0 3.6
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The washbasin referred to here is the one the inspector uses while enroute from the head rack to high rail inspection.
\2\ This refers to the carcass in the bleeding area.
[[Page 117]]
(B) Rules for determining adjusted maximum slaughter rates for two-
inspector kills considering walking distance according to the table in
this subdivision: Determine the distances the inspectors actually walk
between the points shown in columns 2 through 9 of the following table.
Column 9 is used only if the condemned brands and tags the viscera
inspector uses are kept at a location other than at the washbasin-
sterilizer. For each column, determine the deduction figure opposite the
appropriate number of feet in column 1. Compute the total of the
deduction figures for columns 2 through 9. Divide this total by 2. The
adjusted maximum rate is the maximum rate in paragraph (b)(2)(i) of this
section minus the number calculated above. If the resultant number is
not a whole number, it must be rounded off to the next lowest whole
number.
[[Page 118]]
Two-Inspector Cattle Kill--Viscera Truck
[Table of deductions from maximum slaughter rates for each 2 feet between points (in tenths of cattle per hour)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Heads and low rail inspection Viscera and high rail inspection
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Head rack and Head rack and Washbasin and Head rack and Viscera and Viscera and high High rail and Viscera and
Number washbasin carcasses\2\ low rail low rail brands tags rail washbasin washbasin
of feet ------------------------------------------------------------------------ (washbasin) -----------------------------------------------------
between ------------------
points Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows Strs. Cows
Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls Hfrs. Bulls
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
3....... 0.1 0 0.1 0 0.1 0 0 0 0 0 0 0 0 0 0.1 0.2
5....... 0.1 0.1 0.1 0.1 0.1 0.1 0.8 0.7 0.4 0.5 0.5 0.5 0.1 0.2 0.2 0.3
7....... 0.1 0.2 0.1 0.1 0.1 0.1 1.5 1.4 0.7 0.9 1.0 0.9 0.3 0.3 0.3 0.4
9....... 0.2 0.2 0.1 0.2 0.1 0.2 2.2 2.0 1.1 1.3 1.5 1.3 0.4 0.5 0.4 0.5
11...... 0.2 0.3 0.1 0.2 0.2 0.2 2.8 2.7 1.4 1.7 1.9 1.8 0.5 0.6 0.4 0.6
13...... 0.2 0.4 0.1 0.3 0.2 0.2 3.5 3.3 1.7 2.1 2.4 2.2 0.6 0.7 0.5 0.8
15...... 0.3 0.4 0.1 0.3 0.2 0.3 4.1 3.9 2.0 2.5 2.9 2.6 0.7 0.9 0.6 0.9
17...... 0.3 0.5 0.1 0.4 0.2 0.3 4.8 4.5 2.4 2.9 3.3 3.0 0.8 1.0 0.7 1.0
19...... 0.3 0.6 0.2 0.4 0.3 0.4 5.4 5.1 2.7 3.3 3.7 3.4 0.9 1.2 0.7 1.2
21...... 0.3 0.6 0.2 0.4 0.3 0.4 6.0 5.7 3.0 3.7 4.2 3.7 1.0 1.3 0.8 1.3
23...... 0.4 0.7 0.2 0.5 0.3 0.5 6.6 6.3 3.3 4.0 4.6 4.1 1.2 1.4 0.9 1.4
25...... 0.4 0.7 0.2 0.5 0.3 0.5 7.2 6.8 3.6 4.4 5.0 4.5 1.3 1.6 1.0 1.6
27...... 0.4 0.8 0.2 0.6 0.4 0.5 7.8 7.4 3.9 4.7 5.4 4.9 1.4 1.7 1.0 1.7
29...... 0.5 0.9 0.2 0.6 0.4 0.6 8.3 7.9 4.2 5.1 5.8 5.2 1.5 1.8 1.1 1.8
31...... 0.5 0.9 0.2 0.7 0.4 0.6 8.9 8.5 4.5 5.4 6.2 5.6 1.6 2.0 1.2 2.0
33...... 0.5 1.0 0.2 0.7 0.4 0.7 9.4 9.0 4.8 5.8 6.5 5.9 1.7 2.1 1.3 2.1
35...... 0.6 1.1 0.3 0.8 0.5 0.7 10.0 9.5 5.0 6.1 6.9 6.3 1.8 2.2 1.3 2.3
37...... 0.6 1.1 0.3 0.8 0.5 0.7 10.5 10.0 5.3 6.4 7.3 6.6 1.9 2.4 1.4 2.4
39...... 0.6 1.2 0.3 0.9 0.5 0.8 11.0 10.5 5.6 6.8 7.6 6.9 2.0 2.5 1.5 2.5
41...... 0.7 1.2 0.3 0.9 0.6 0.8 11.5 11.0 5.9 7.1 8.0 7.2 2.1 2.6 1.5 2.6
43...... 0.7 1.3 0.3 0.9 0.6 0.9 12.0 11.4 6.1 7.4 8.3 7.6 2.2 2.8 1.6 2.8
45...... 0.7 1.4 0.3 1.0 0.6 0.9 12.5 11.9 6.4 7.7 8.7 7.9 2.4 2.9 1.7 2.9
47...... 0.8 1.4 0.3 1.0 0.6 1.0 13.0 12.4 6.7 8.0 9.0 8.2 2.5 3.0 1.8 3.0
49...... 0.8 1.5 0.3 1.1 0.7 1.0 13.4 12.8 6.9 8.3 9.4 8.5 2.6 3.2 1.8 3.1
51...... 0.8 1.6 0.3 1.1 0.7 1.0 13.9 13.3 7.2 8.6 9.7 8.8 2.7 3.3 1.9 3.3
53...... 0.9 1.6 0.4 1.2 0.7 1.1 14.4 13.7 7.4 8.9 10.0 9.1 2.8 3.4 2.0 3.4
55...... 0.9 1.7 0.4 1.2 0.7 1.1 14.8 14.1 7.7 9.2 10.3 9.4 2.9 3.5 2.0 3.5
57...... 0.9 1.7 0.4 1.3 0.8 1.2 15.2 14.6 7.9 9.5 10.6 9.7 3.0 3.7 2.1 3.6
59...... 0.9 1.8 0.4 1.3 0.8 1.2 15.7 15.0 8.2 9.7 10.9 9.9 3.1 3.8 2.2 3.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This column to be used only if brands and tags are not located at the washbasin.
\2\ This refers to the carcasses in the bleeding area.
[[Page 119]]
(ii) Inspection Using Viscera Table, Tongue-In Presentation of
Heads.
Steers and Heifers
------------------------------------------------------------------------
Number of inspectors by
stations
Maximum slaughter rates (head per hour) ------------------------
Head Viscera Carcass
------------------------------------------------------------------------
1 to 32........................................ a a a
33 to 58....................................... b b b
59 to 84....................................... 1 1 1
85 to 86....................................... 1 2 1
87 to 143...................................... 2 2 1
144 to 171..................................... 3 2 1
172 to 198..................................... 3 3 1
199 to 226..................................... 3 3 2
227 to 253..................................... 4 3 2
254 to 280..................................... 4 4 2
281 to 306..................................... 5 4 2
307 to 333..................................... 5 5 2
------------------------------------------------------------------------
Cows and Bulls
------------------------------------------------------------------------
Number of inspectors by
stations
Maximum slaughter rates (head per hour) ------------------------
Head Viscera Carcass
------------------------------------------------------------------------
1 to 29........................................ a a a
30 to 56....................................... b b b
57 to 77....................................... 1 1 1
78 to 81....................................... 1 2 1
82 to 134...................................... 2 2 1
135 to 159..................................... 2 3 1
160 to 187..................................... 3 3 1
188 to 213..................................... 3 4 1
214 to 234..................................... 3 4 2
235 to 264..................................... 4 4 2
265 to 289..................................... 5 4 2
290 to 314..................................... 5 5 2
------------------------------------------------------------------------
(iii) Inspection Using Viscera Table, Tongue-Out Presentation of
Heads.
Steers and Heifers
------------------------------------------------------------------------
Number of inspectors by
stations
Maximum slaughter rates (head per hour) ------------------------
Head Viscera Carcass
------------------------------------------------------------------------
1 to 32........................................ a a a
33 to 58....................................... b b b
59 to 86....................................... 1 1 1
87 to 103...................................... 1 2 1
104 to 156..................................... 2 2 1
157 to 186..................................... 2 3 1
187 to 216..................................... 3 3 1
217 to 246..................................... 3 3 2
247 to 275..................................... 3 4 2
276 to 304..................................... 4 4 2
305 to 333..................................... 4 5 2
334 to 362..................................... 5 5 2
363 to 390..................................... 5 6 2
------------------------------------------------------------------------
Cows and Bulls
------------------------------------------------------------------------
Number of inspectors by
stations
Maximum slaughter rates (head per hour) ------------------------
Head Viscera Carcass
------------------------------------------------------------------------
1 to 29........................................ a a a
30 to 56....................................... b b b
57 to 79....................................... 1 1 1
80 to 98....................................... 1 2 1
99 to 147...................................... 2 2 1
148 to 174..................................... 2 3 1
175 to 205..................................... 3 3 1
206 to 233..................................... 3 4 1
234 to 256..................................... 3 4 2
257 to 288..................................... 4 4 2
289 to 316..................................... 5 4 2
317 to 343..................................... 5 5 2
------------------------------------------------------------------------
(3) Swine Inspection. The following inspection staffing standards
are applicable to swine slaughter configurations. The inspection
standards for all slaughter lines are based upon the observation rather
than palpation, at the viscera inspection station, of the spleen, liver,
heart, lungs, and mediastinal lymph nodes. In addition, for one- and
two-inspector lines, the standards are based upon the distance walked
(in feet) by the inspector between work stations; and for three or more
inspector slaughter lines, upon the use of a mirror, as described in
Sec. 307.2(m)(6), at the carcass inspection station. Although not
required in a one- or two-inspector slaughter configuration, except in
certain cases as determined by the inspection service, if a mirror is
used, it must comply with the requirements of Sec. 307.2(m)(6).
Table 1.--One Inspector--Staffing Standards for Swine
------------------------------------------------------------------------
Maximum inspection rates (head per
hour)
-----------------------------------
Market hogs Sows and boars
Distance walked\1\ in feet is-- (heads attached (heads detached)
or detached) -----------------
------------------
Without With Without With
mirror mirror mirror mirror
------------------------------------------------------------------------
0 to 5.............................. 140 150 131 143
6 to 10............................. 134 144 126 137
11 to 15............................ 129 137 122 132
16 to 20............................ 124 132 117 127
21 to 35............................ 120 127 113 122
26 to 30............................ 116 122 110 118
31 to 35............................ 112 118 106 114
36 to 40............................ 108 114 103 110
41 to 45............................ 105 110 100 106
46 to 50............................ 101 107 97 103
51 to 55............................ 98 103 94 100
56 to 60............................ 96 100 91 97
61 to 65............................ 93 97 89 94
66 to 70............................ 90 95 87 92
[[Page 120]]
71 to 75............................ 88 92 85 89
76 to 80............................ 86 89 82 87
81 to 85............................ 84 87 80 85
86 to 90............................ 82 85 79 83
91 to 95............................ 80 83 77 81
96 to 100........................... 78 81 75 79
------------------------------------------------------------------------
\1\ Distance walked is the total distance that the inspector will have
to walk between work stations during one inspection cycle (e.g.,
between viscera, carcass, head, and wash-basin).
Table 2.--Two Inspectors--Staffing Standards for Market Hogs
------------------------------------------------------------------------
Maximum inspection rates (head per
hour with heads attached or
detached)
-------------------------------------
Distance walked\1\ in feet by Line configuration
inspector B is-- -------------------------------------
Carcass,\2\ Viscera,\2\ Head,\2\
head head viscera
viscera\3\ carcass\3\ carcass\3\
------------------------------------------------------------------------
Without Mirror
------------------------------------------------------------------------
0 to 5............................ 151-253 151-271 151-296
6 to 10........................... 151-239 151-255 151-277
11 to 15.......................... 151-226 151-240 151-260
16 to 20.......................... 151-214 151-227 151-244
21 to 25.......................... 151-204 151-215 151-231
------------------------------------------------------------------------
With Mirror
------------------------------------------------------------------------
0 to 5............................ 151-253 151-303 151-318
6 to 10........................... 151-239 151-283 151-304
11 to 15.......................... 151-226 151-265 151-289
16 to 20.......................... 151-214 151-249 151-270
21 to 25.......................... 151-204 151-235 151-254
------------------------------------------------------------------------
\1\ Distance walked is the total distance that Inspector B will have to
walk between work stations during one inspection cycle (e.g., between
viscera, carcass, and washbasin).
\2\ Inspector A.
\3\ Inspector B.
Note: In multiple-inspector plants, the inspectors must rotate
between all inspection positions during each shift to equalize the
workload.
Table 3.--Two Inspectors--Staffing Standards for Sows and Boars
----------------------------------------------------------------------------------------------------------------
Maximum inspection rates (head per hour)
---------------------------------------------------
Line Configuration
---------------------------------------------------
Distance walked \1\ in feet by inspector B is-- Carcass,\2\ Viscera,\2\ Head,\2\ Head,\2\
head head viscera viscera
viscera,\3\ carcass,\3\ carcass,\3\ carcass,\3\
heads heads heads heads
detached detached detached attached
----------------------------------------------------------------------------------------------------------------
Without Mirror
----------------------------------------------------------------------------------------------------------------
0 to 5...................................................... 144-248 144-254 144-267 144-267
6 to 10..................................................... 144-235 144-240 144-253 144-253
11 to 15.................................................... 144-222 144-227 144-239 144-239
16 to 20.................................................... 144-211 144-215 144-226 144-226
21 to 25.................................................... 144-201 144-205 144-214 144-214
With Mirror
----------------------------------------------------------------------------------------------------------------
0 to 5...................................................... 144-248 144-292 144-305 144-292
6 to 10..................................................... 144-235 144-273 144-291 144-280
11 to 15.................................................... 144-222 144-256 144-272 144-268
16 to 20.................................................... 144-211 144-241 144-255 144-255
21 to 25.................................................... 144-201 144-228 144-240 144-240
----------------------------------------------------------------------------------------------------------------
\1\ Distance walked is the total distance that Inspector B will have to walk between work stations during one
inspection cycle (e.g., between viscera, carcass, and washbasin).
\2\ Inspector A.
\3\ Inspector B.
Note: In multiple-inspector plants, the inspectors must rotate
between all inspection positions during each shift to equalize the
workload.
Table 4.--Three Inspectors or More--Staffing Standards for Swine
------------------------------------------------------------------------
Number of inspectors by station
Maximum inspection rates (head per -----------------------------------
hour with heads attached) Head Viscera Carcass Total
------------------------------------------------------------------------
Market hogs:
319 to 506........................ 1 1 1 3
507 to 540........................ 1 2 1 4
541 to 859........................ 2 2 1 5
860 to 1,022...................... 2 3 1 6
1,023 to 1,106.................... 3 3 1 7
Sows and boars:
306 to 439........................ 1 1 1 3
306 to 462 \1\.................... 1 1 1 3
440 to 475........................ 2 1 1 4
476 to 752........................ 2 2 1 5
753 to 895........................ 3 2 1 6
896 to 964........................ 3 3 1 7
------------------------------------------------------------------------
\1\ This rate applies if the heads of sows and boars are detached from
the carcasses at the time of inspection.
Note: In multiple-inspector plants, the inspectors must rotate
between all inspection positions during each shift to equalize the
workload.
[35 FR 15567, Oct. 3, 1970, as amended at 47 FR 33676, Aug. 4, 1982; 50
FR 19903, May 13, 1985]
[[Page 121]]
Sec. 310.2 Identification of carcass with certain severed parts thereof and with animal from which derived.
(a) The head, tail, tongue, thymus gland, and all viscera of each
slaughtered animal, and all blood and other parts of such animal to be
used in the preparation of meat food products or medical products, shall
be handled in such a manner as to identify them with the rest of the
carcass and as being derived from the particular animal involved, until
the post-mortem examination of the carcass and parts thereof has been
completed. Such handling shall include the retention of ear tags,
backtags, implants, and other identifying devices affixed to the animal,
in such a way to relate them to the carcass until the post-mortem
examination has been completed.
(b) The official State-Federal Department backtag on any carcass
shall:
(1)(i) Be removed from the hide of the animal by an establishment
employee and placed in a clear plastic bag. The bag containing the tag
shall be affixed to the corresponding carcass.
(ii) The bag containing the tag shall be removed from the carcass by
an establishment employee and presented with the viscera to the Program
inspector at the point where such inspector conducts the viscera
inspection.
(2)(i) Brucellosis and tuberculosis ear tags, herd identification
ear tags, sales tags, ear bangles, and similar identification devices
shall be removed from the animal's hide or ear by an establishment
employee and shall be placed in a clear plastic bag and affixed to the
corresponding carcass.
(ii) The bag containing the tag shall be removed from the carcass by
an establishment employee and presented with the viscera to the Program
inspector at the point where such inspector conducts the viscera
inspection.
(3) In cases where both types of devices described in paragraphs
(b)(1) and (2) of this section are present on the same animal, both
types may be placed in the same plastic bag or in two separate bags.
(4) The circuit supervisor may allow the use of any alternate method
proposed by the operator of an official establishment for handling the
type of devices described in paragraph (b)(2) of this section if such
alternate method would provide a ready means of identifying a specific
carcass with the corresponding devices by a Program inspector during the
post-mortem inspection.
(5) Disposition and use of identifying devices.
(i) The official State-Federal Department backtags will be collected
by a Program inspector and used to obtain traceback information
necessary for proper disposition of the animal or carcass and otherwise
handled according to instructions issued to the inspectors.
(ii) The devices described in paragraph (b)(2) of this section shall
be collected by the Program inspector when required to obtain traceback
information necessary for proper disposition of the animal or carcass
and for controlling the slaughter of reactor animals. Devices not
collected for these purposes shall be discarded after the post-mortem
examination is complete.
(6) Plastic bags used by the establishment for collecting
identifying devices will be furnished by the Department.
[35 FR 15567, Oct. 3, 1970; 36 FR 12004, June 24, 1971]
Sec. 310.3 Carcasses and parts in certain instances to be retained.
Each carcass, including all detached organs and other parts, in
which any lesion or other condition is found that might render the meat
or any part unfit for food purposes, or otherwise adulterated, and which
for that reason would require a subsequent inspection, shall be retained
by the Program employee at the time of inspection. The identity of every
such retained carcass, detached organ, or other part shall be maintained
until the final inspection has been completed. Retained carcasses shall
not be washed or trimmed unless authorized by the Program employee.
Sec. 310.4 Identification of carcasses and parts; tagging.
Such devices and methods as may be approved by the Administrator may
be used for the temporary identification of retained carcasses, organs,
and other parts. In all cases, the identification shall be further
established by affixing
[[Page 122]]
``U.S. Retained'' tags as soon as practicable and before final
inspection. These tags shall not be removed except by a Program
employee.
Sec. 310.5 Condemned carcasses and parts to be so marked; tanking; separation.
Each carcass or part which is found on final inspection to be
unsound, unhealthful, unwholesome, or otherwise adulterated shall be
conspicuously marked, on the surface tissues thereof, by a Program
employee at the time of inspection, as ``U.S. Inspected and Condemned.''
Condemned detached organs and other parts of such character that they
cannot be so marked shall be placed immediately in trucks or receptacles
which shall be kept plainly marked ``U.S. Condemned,'' in letters not
less than 2 inches high. All condemned carcasses and parts shall remain
in the custody of a Program employee and shall be disposed of as
required in the regulations in part 314 of this subchapter at or before
the close of the day on which they are condemned.
Sec. 310.6 Carcasses and parts passed for cooking; marking.
Carcasses and parts passed for cooking shall be marked conspicuously
on the surface tissues thereof by a Program employee at the time of
inspection, ``U.S. Passed for Cooking.'' All such carcasses and parts
shall be cooked in accordance with part 315 of this subchapter, and
until so cooked shall remain in the custody of a Program employee.
Sec. 310.7 Removal of spermatic cords, pizzles and preputial diverticuli.
Spermatic cords and pizzles shall be removed from all carcasses.
Preputial diverticuli shall be removed from hog carcasses.
Sec. 310.8 Passing and marking of carcasses and parts.
Carcasses and parts found to be sound, healthful, wholesome, and
otherwise not adulterated shall be passed and marked as provided in part
316 of this subchapter. In all cases where carcasses showing localized
lesions are passed for food or for cooking and ``U.S. Retained'' tags
are attached to the carcasses, the affected tissues shall be removed and
condemned before the tags are removed. ``U.S. Retained'' tags shall be
removed only by a Program employee.
Sec. 310.9 Anthrax; carcasses not to be eviscerated; disposition of affected carcasses; hides, hoofs, horns, hair, viscera and contents, and fat; handling of
blood and scalding vat water; general cleanup and
disinfection.
(a) Carcasses found before evisceration to be affected with anthrax
shall not be eviscerated but shall be retained, condemned, and
immediately tanked or otherwise disposed of as provided in part 314 of
this subchapter.
(b) All carcasses and all parts, including hides, hoofs, horns,
hair, viscera and contents, blood, and fat of any livestock found to be
affected with anthrax shall be condemned and immediately disposed of as
provided in part 314 of this subchapter, except that the blood may be
handled through the usual blood cooking and drying equipment.
(c) Any part of any carcass that is contaminated with anthrax-
infected material through contact with soiled instruments or otherwise
shall be immediately condemned and disposed of as provided in part 314
of this subchapter.
(d) The scalding vat water through which hog carcasses affected with
anthrax have passed shall be immediately drained into the sewer and all
parts of the scalding vat shall be cleaned and disinfected as provided
in paragraph (e) of this section.
(e)(1) That portion of the slaughtering department, including the
bleeding area, scalding vat, gambrelling bench, floors, walls, posts,
platforms, saws, cleavers, knives, and hooks, as well as employees'
boots and aprons, contaminated through contact with anthrax-infected
material, shall, except as provided in paragraph (e)(2) of this section
be cleaned immediately and disinfected with one of the following
disinfectants
[[Page 123]]
or other disinfectant 1approved specifically for this purpose
by the Administrator:
---------------------------------------------------------------------------
1 A list of disinfectants approved for this purpose is
available upon request to the Scientific Services, Meat and Poultry
Inspection, Food Safety and Inspection Service, U.S. Department of
Agriculture, Washington, DC 20250.
---------------------------------------------------------------------------
(i) A 5 percent solution of sodium hydroxide or commercial lye
containing at least 94 percent of sodium hydroxide. The solution shall
be freshly prepared immediately before use by dissolving 2\1/2\ pounds
of sodium hydroxide or lye in 5\1/2\ gallons of hot water and shall be
applied as near scalding hot as possible to be most effective. (Owing to
the extremely caustic nature of sodium hydroxide solution, precautionary
measures such as the wearing of rubber gloves and boots to protect the
hands and feet, and goggles to protect the eyes, should be taken by
those engaged in the disinfection process. It is also advisable to have
an acid solution, such as vinegar, in readiness in case any of the
sodium hydroxide solution should come in contact with any part of the
body.)
(ii) A solution of sodium hypochlorite containing approximately one-
half of 1 percent (5,000 parts per million) of available chlorine. The
solution shall be freshly prepared.
(iii) When a disinfectant solution has been applied to equipment
which will afterwards contact product, the equipment shall be rinsed
with clean water before such contact.
(2) In case anthrax infection is found in the hog slaughtering
department, an immediate preliminary disinfection shall be made from the
head-dropper's station to the point where the disease is detected and
the affected carcasses shall be cut down from the rail and removed from
the room. Upon completion of the slaughtering of the lot of hogs of
which the anthrax-infected animals were a part, slaughtering operations
shall cease, and a thorough cleanup and disinfection shall be made, as
provided in paragraph (e)(1) of this section. If the slaughter of the
lot has not been completed by the close of the day on which anthrax was
detected, the cleanup and disinfection shall not be deferred beyond the
close of that day.
(3) The first and indispensable precautionary step for persons who
have handled anthrax material is thorough cleansing of the hands and
arms with liquid soap and running hot water. It is important that this
step be taken immediately after exposure, before vegetative anthrax
organisms have had time to form spores. In the cleansing, a brush or
other appropriate appliance shall be used to insure the removal of all
contaminating material from under and about the fingernails. This
process of cleansing is most effective when performed in repeated cycles
of lathering and rinsing rather than in spending the same amount of time
in scrubbing with a single lathering. After the hands have been cleansed
thoroughly and rinsed free of soap, they may, if desired, be immersed
for about 1 minute in a 1:1,000 solution of bichloride of mercury,
followed by thorough rinsing in clean running water. Supplies of
bichloride of mercury for the purpose must be held in the custody of the
veterinary medical officer. (As a precautionary measure, all persons
exposed to anthrax infection should report promptly any suspicious
condition (sore or carbuncle) or symptom to a physician, in order that
anti-anthrax serum or other treatment may be administered as indicated.)
[35 FR 15567, Oct. 3, 1970; 36 FR 11903, June 23, 1971]
Sec. 310.10 Carcasses with skin or hide on; cleaning before evisceration; removal of larvae of Hypodermae, external parasites and other pathological skin
conditions.
When a carcass is to be dressed with the skin or hide left on, the
skin or hide shall be thoroughly washed and cleaned before any incision
is made for the purpose of removing any part thereof or evisceration,
except that where calves are slaughtered by the kosher method, the heads
shall be removed from the carcasses, before washing of the carcasses.
The skin shall be removed at the time of post-mortem inspection from any
calf carcass infested with the larvae of the ``oxwarble'' fly (Hypoderma
lineata and Hypoderma bovis), or external parasites, or affected with
other pathological skin conditions.
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Sec. 310.11 Cleaning of hog carcasses before incising.
All hair, scurf, dirt, hoofs and claws shall be removed from hog
carcasses, and the carcasses shall be thoroughly washed and cleaned
before any incision is made for inspection or evisceration.
Sec. 310.12 Sternum to be split; abdominal and thoracic viscera to be removed.
The sternum of each carcass shall be split and the abdominal and
thoracic viscera shall be removed at the time of slaughter in order to
allow proper inspection.
Sec. 310.13 Inflating carcasses or parts thereof; transferring caul or other fat.
(a)(1) Establishments shall not inflate carcasses or parts of
carcasses with air, except as set forth in paragraph (a)(2) of this
section.
(2)(i) Any establishment slaughtering livestock that wishes to
inflate carcasses or parts thereof with air, using procedures other than
the approved methods listed below, shall submit a request for approval
for experimental testing to the Administrator. Such a request shall
include the purpose of the use of air, a detailed description of the
procedure for injecting the air and evidence that the procedure can be
performed in a sanitary manner.
(ii) The Administrator shall evaluate newly submitted procedures for
the use of air. If the Administrator determines that any such procedure
will likely result in wholesome, unadulterated meat product, then the
Administrator shall approve experimental testing of the new procedure.
In any situation where the Administrator finds a submitted procedure to
be unlikely to result in wholesome, unadulterated meat product, the
Administrator shall send written notification to the establishment of
the denial of such approval. The establishment may re-submit for
evaluation a testing procedure that has been denied, provided that
modifications have been made to address the original reason for denial.
The establishment also shall be afforded an opportunity to submit a
written statement in response to the notification of denial. In those
instances where there is a conflict of facts, a hearing, under
applicable rules of practice, will be held to resolve the conflict.
(iii) Final approval of an acceptable new proposed method shall be
effectuated by modifying, through rulemaking procedures, the Federal
regulations to include the new method.
(iv) Uses for which approval is granted are:
(A) Compressed air injection of cattle feet to facilitate removal of
hair from feet intended for human consumption;
(B) Compressed air injection under the skin of cattle heads to
facilitate head skinning;
(C) Compressed air injection into the skull in conjunction with a
captive bolt stunner to hold the animal still for dressing operations;
or
(D) Compressed air injected into the abdominal cavity of swine to
facilitate the skinning operation and to minimize the loss of body fat.
The method of compressed air injection shall be a sanitary procedure
that includes air filtration and injection needle disinfection. Air
filtration shall consist of not less than two stages. An initial stage
of filtration shall occur at or near the use point and shall consist of
an aerosol or coalescing filter, capable of filtration to not more than
0.75 micron, for the removal of oil and water. A subsequent stage of
filtration shall occur at or near the point of needle hose attachment to
the air line and shall be a particulate filter, capable of filtration to
not more than 0.3 micron. The filters shall be maintained by inspecting
regularly to assure they are working properly, and cleaned or replaced
when necessary. The injection needle shall be disinfected by placement
in water that is not less than 180 deg.F. for at least 10 seconds
immediately prior to each injection.
(b) Transferring the caul or other fat from a fat to a lean carcass
is prohibited.
(Approved by the Office of Management and Budget under control number
0583-0015)
[54 FR 36756, Sept. 5, 1989, as amended at 55 FR 29565, July 20, 1990]
Sec. 310.14 Handling of bruised parts.
When only a portion of a carcass is to be condemned on account of
slight
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bruises, either the bruised portion shall be removed immediately and
disposed of in accordance with part 314 of this subchapter, or the
carcass shall be promptly placed in a retaining room and kept until
chilled and the bruised portion shall then be removed and disposed of as
provided in part 314 of this subchapter.
Sec. 310.15 Disposition of thyroid glands and laryngeal muscle tissue.
(a) Livestock thyroid glands and laryngeal muscle tissue shall not
be used for human food.
(b) Livestock thyroid glands and laryngeal muscle tissue may be
distributed to pharmaceutical manufacturers for pharmaceutical use in
accordance with Sec. 314.9 or Sec. 325.19(c) of this subchapter, if they
are labeled in accordance with Sec. 316.13(f) of this subchapter.
Otherwise, they shall be disposed of at the official establishment in
accordance with Sec. 314.1 or Sec. 314.3 of this subchapter.
[53 FR 45890, Nov. 15, 1988]
Sec. 310.16 Disposition of lungs.
(a) Livestock lungs shall not be saved for use as human food.
(b) Lungs found to be affected with disease or pathology and lungs
found to be adulterated with chemical or biological residue shall be
condemned and identified as ``U.S. Inspected and Condemned.'' Condemned
lungs may not be saved for pet food or other nonhuman food purposes.
They shall be maintained under inspectional control and disposed of in
accordance with Secs. 314.1 and 314.3 of this subchapter.
(c) Lungs not condemned under paragraph (b) of this section may be
used in the preparation of pet food or for other nonhuman food purposes
at the official establishment, provided they are handled in the manner
prescribed in Sec. 318.12 of this subchapter, or they may be distributed
from the establishment in commerce, or otherwise, in accordance with the
conditions prescribed in Sec. 325.8 of this subchapter for nonhuman food
purposes or they may be so distributed to pharmaceutical manufacturers
for pharmaceutical use in accordance with Secs. 314.9 and 325.19(b) of
this subchapter, if they are labeled as ``Inedible [SPECIES] Lungs--for
Pharmaceutical Use Only.'' Otherwise, they shall be disposed of at the
official establishment, in accordance with Secs. 314.1 and 314.3 of this
subchapter.
[36 FR 11639, June 17, 1971]
Sec. 310.17 Inspection of mammary glands.
(a) Lactating mammary glands and diseased mammary glands of cattle,
sheep, swine, and goats shall be removed without opening the milk ducts
or sinuses. If pus or other objectionable material is permitted to come
in contact with the carcass, the parts of the carcass thus contaminated
shall be removed and condemned.
(b) Nonlactating cow udders may be saved for food purposes provided
suitable facilities for handling and inspecting them are provided.
Examination of udders by palpation shall be done by a Program employee.
When necessary, in the judgment of the Program employee for adequate
inspection, the official establishment employees shall incise udders in
sections no greater than 2 inches in thickness. All udders showing
disease lesions shall be condemned by a Program employee. Each udder
shall be properly identified with its respective carcass and kept
separate and apart from other udders until its disposal has been
accomplished in accordance with the provisions of part 311 of this
subchapter.
(c) Lactating mammary glands of cattle, sheep, swine, and goats
shall not be saved for edible purposes.
(d) The udders from cows officially designated as ``Brucellosis
reactors'' or as ``Mastitis elimination cows'' shall be condemned.
Sec. 310.18 Contamination of carcasses, organs, or other parts.
(a) Carcasses, organs, and other parts shall be handled in a
sanitary manner to prevent contamination with fecal material, urine,
bile, hair, dirt, or foreign matter; however, if contamination occurs,
it shall be promptly removed in a manner satisfactory to the inspector.
(b) Brains, cheek meat, and head trimmings from animals stunned by
lead, sponge iron, or frangible bullets shall not be saved for use as
human food but shall be handled as described in Sec. 314.1 or Sec. 314.3
of this subchapter.
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