[Federal Register Volume 64, Number 204 (Friday, October 22, 1999)]
[Rules and Regulations]
[Pages 56945-56947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27546]



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  Federal Register / Vol. 64, No. 204 / Friday, October 22, 1999 / 
Rules and Regulations  

[[Page 56945]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 56

[Docket No. PY-99-002]


Refrigeration Requirements for Shell Eggs

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Agricultural Marketing Service (AMS) is revising its 
regulations governing the voluntary shell egg grading program by adding 
a definition of the term ``ambient temperature,'' by amending the 
refrigeration requirements, and by adding a labeling requirement. 
Amendments to the Egg Products Inspection Act (EPIA) in 1991 involved 
refrigeration and labeling requirements to enhance the safety of table 
eggs nationwide and to protect the health and welfare of the consuming 
public. AMS is amending 7 CFR part 56 to conform to the FSIS 
temperature and labeling requirements.

DATES: Effective Date: October 25, 1999.
    Comment Date: Comments are due on or before December 21, 1999.

ADDRESSES: Send written comments to Douglas C. Bailey, Chief, 
Standardization Branch, Poultry Programs, Agricultural Marketing 
Service, U.S. Department of Agriculture, STOP 0259, 1400 Independence 
Avenue, SW, Washington, DC 20250-0259. Comments may be faxed to 202/
690-0941.
    State that your comments refer to Docket No. PY-99-002 and note the 
date and page number of this issue of the Federal Register.
    Comments may be inspected at the above location during regular 
business hours.

FOR FURTHER INFORMATION CONTACT: Rex A. Barnes, Chief, Grading Branch, 
202/720-3271.

SUPPLEMENTARY INFORMATION:

Background

    AMS administers a voluntary grading program for shell eggs under 
the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621 et 
seq.), with implementing regulations in 7 CFR part 56. Any interested 
person, commercial firm, or government agency that applies for service 
must comply with the terms and conditions of the regulations and must 
pay for the services rendered. AMS graders monitor processing 
operations and verify the quality, quantity, and condition of eggs 
packed into packages bearing official USDA identification. AMS also has 
facility and operating requirements for the official plants in which 
these services are performed. Currently, about one-third of the 
nation's table eggs are marketed under the voluntary grading program.
    The EPIA (21 U.S.C. 1031 et seq.) provides for the mandatory 
inspection of egg products operations and the mandatory surveillance of 
the disposition of shell eggs that are undesirable for human 
consumption. From its enactment in 1970, AMS administered the EPIA and 
the regulations implementing it in 7 CFR part 59.
    Congress amended the EPIA as part of the Food, Agriculture, 
Conservation and Trade Act Amendments of 1991 (Pub.L. 102-
237)(hereafter referred to as ``the 1991 EPIA amendments''). The 1991 
EPIA amendments require that egg handlers store and transport shell 
eggs destined for the ultimate consumer under refrigeration at an 
ambient temperature of no greater than 45  deg.F (7.2  deg.C) (21 
U.S.C. 1034(e)(1)(A), see also 21 U.S.C. 1037(c)). These refrigeration 
requirements apply to shell eggs after they have been packed into a 
container destined for the ultimate consumer. Egg handlers are also 
required to label shell egg containers to indicate that refrigeration 
is required (21 U.S.C. 1034(e)(1)(B)).
    The AMS proposed changes to 7 CFR parts 56 and 59 (57 FR 48569, 
October 27, 1992). Changes to part 59 would implement the mandatory 
1991 EPIA amendments. Changes to part 56 would make conforming changes 
to the voluntary shell egg grading regulations.
    Before AMS published the final rule, however, the Department 
consolidated food safety responsibilities under FSIS following 
enactment of the Federal Crop Insurance Reform and Department of 
Agriculture Reorganization Act of 1994 (Pub.L. 103-354; 7 U.S.C. 
2204e). Responsibility for egg products inspection functions under the 
EPIA was delegated to FSIS, while shell egg surveillance and grading 
functions continued to be administered by AMS.
    FSIS promulgated a final rule with request for comments to 
implement the 1991 EPIA amendments in 7 CFR part 59 (63 FR 45663, 
August 27, 1998; effective August 27, 1999). AMS duplicated those 
portions of 7 CFR part 59 pertinent to shell egg surveillance and 
redesignated them as a new 7 CFR part 57 (63 FR 69968, December 17, 
1998; effective December 18, 1998). FSIS redesignated and transferred 
the remaining portions of 7 CFR part 59 to 9 CFR part 590 (63 FR 72351, 
December 31, 1998; effective December 31, 1998).
    The new FSIS temperature and labeling requirements in 9 CFR part 
590 became effective August 27, 1999. The proposed changes to 7 CFR 
part 56 (shell egg grading) were not finalized when FSIS published its 
final rule amending 7 CFR part 59. Therefore, since the proposed rule 
was published some years ago, AMS is publishing this rule as an interim 
final rule with request for comment, and is only making changes deemed 
necessary to avoid a conflict between the requirements of the final 
rule published by FSIS and the AMS shell egg grading program.

Comments

    One hundred and fifty-nine comments were submitted in response to 
the proposed rule amending 7 CFR parts 56 and 59 (57 FR 48569, October 
27, 1992). Thirty-one commenters, including private citizens, State 
departments of agriculture, several trade associations, and several 
members of the egg industry, supported the proposal. The remaining 
commenters opposed the proposed rule or suggested alternatives to it.
    There were no comments related to the grading of eggs or the 
official identification of graded eggs. Rather, most of the opposing 
comments covered three primary issues: Labeling, exemption of small 
producers, and cost to comply with the regulations. A full discussion 
and analysis of these

[[Page 56946]]

comments is found in FSIS' final rule (63 FR 45663, August 27, 1998) 
amending 7 CFR part 59 (now 9 CFR part 590).

Summary of Revisions

    AMS is revising the regulations in 7 CFR part 56 to conform to the 
FSIS temperature and labeling requirements, and is making several minor 
technical and editorial changes.
    A new term is added to Sec. 56.1 to define ``ambient temperature.'' 
This term means the air temperature maintained in an egg storage 
facility or transport vehicle. This term is revised from that proposed 
to conform to regulations promulgated by FSIS to implement the EPIA 
amendments.
    A new labeling requirement is added to the authority to use 
official identification in Sec. 56.35. It requires that consumer 
packages bearing official U.S. Grade AA, A, or B identification be 
labeled with the words ``Keep Refrigerated'' or words of similar 
meaning. This requirement is added to provide graders the authority to 
ensure that officially graded eggs are packed into containers that are 
properly labeled. AMS' description of containers holding shell eggs 
that must bear the refrigeration label (those bearing official grade 
marks) is consistent with the type of containers covered by FSIS 
regulation. The FSIS regulation pertains to containers destined for the 
ultimate consumer.
    The temperature requirements specified in Sec. 56.76 (c)(1) and 
(f)(1) are changed to conform to the FSIS requirements.
    The revision to Sec. 56.76 (c)(1) specifically requires cooler 
rooms to be refrigerated and capable of maintaining an ambient 
temperature no greater than 45  deg.F (7.2  deg.C). Currently, this 
section requires cooler rooms to be capable of reducing within 24 hours 
and holding the maximum volume of eggs handled to 60  deg.F (15.6 
deg.C) or lower. Text regarding the provision of thermometers is also 
revised to clarify that the thermometers would be used to monitor 
cooler room temperatures.
    The revision to Sec. 56.76 (f)(1) specifically requires that shell 
eggs to be officially identified as U.S. Grade AA, A, or B shall be 
refrigerated at an ambient temperature no greater than 45  deg.F (7.2 
deg.C) promptly after packaging. These eggs, when shipped between 
official plants, are also to be transported at an ambient temperature 
no greater than 45  deg.F (7.2  deg.C). This, again, is to be 
consistent with the FSIS regulation in that shell eggs subject to the 
new FSIS temperature requirement are also subject to the revised 
temperature requirement under the grading program. Currently, this 
section requires that eggs held in the official plant be placed under 
refrigeration of 60  deg.F (15.6  deg.C) or lower promptly after 
packaging. It also requires officially identified eggs with an internal 
temperature of 70  deg.F (21.1  deg.C) or higher to be transported at a 
temperature of 60  deg.F (15.6  deg.C) or less when shipped from an 
official plant.
    AMS is responsible for the voluntary grading of shell eggs for 
quality and the official identification of eggs as U.S. Consumer Grades 
AA, A, or B. The grades are defined in the official U.S. Standards, 
Grades, and Weight Classes for Shell Eggs (AMS-56) that are maintained 
by AMS. Once eggs have been officially graded, and are packed into 
containers that are officially identified and destined for the ultimate 
consumer, they are subject to FSIS' refrigeration requirements. 
Occasions can arise, however, where eggs have been officially graded, 
but are not yet packed into containers for the ultimate consumer. For 
example, during wholesale trading one official plant could grade eggs 
and pack them into cases using open trays called flats for shipping to 
a second official plant. In AMS' view, these eggs should also be 
subject to refrigeration. Therefore, all eggs that are officially 
identified as U.S. Consumer Grade AA, A, or B, regardless of the 
container type in which they are placed, are covered by this rule.
    Finally, the heading for Sec. 56.76 (f) and the text of paragraph 
(f)(1) are revised for clarity.

Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), the AMS has considered the economic 
impact of this rule on small entities. The purpose of the RFA is to fit 
regulatory actions to the scale of businesses subject to such actions 
in order that small businesses will not be unduly or disproportionately 
burdened. The Small Business Administration defines small entities that 
produce and process chicken eggs as those whose annual receipts are 
less than $9,000,000 (13 CFR 121.201). Approximately 550,000 egg laying 
hens are needed to produce enough eggs to gross $9,000,000. Thus, 
entities with less than 550,000 laying hens would meet the small 
business definition.
    The Agricultural Marketing Act of 1946, as amended, authorizes a 
voluntary grading program for shell eggs, with implementing regulations 
in 7 CFR part 56. Shell egg processors that apply for service must pay 
for the services rendered. These user fees are proportional to the 
volume of shell eggs graded, so that costs are shared by all users. 
Shell egg processors who meet the facility and operating requirements 
are entitled to pack their eggs in packages bearing official USDA grade 
identification when AMS graders are present to certify that the eggs 
meet the requirements as labeled. Plants in which these grading 
services are performed are called official plants. There are about 700 
shell egg processors registered with the Department that have 3,000 or 
more laying hens. Of these, 159 are official plants that use USDA's 
grading service and would be subject to this rule. Of these 159 
official plants, the AMS believes approximately 25 would meet the small 
business definition.
    The EPIA, enacted in 1970, authorizes the mandatory inspection of 
egg products operations and the mandatory surveillance of the 
disposition of shell eggs that are undesirable for human consumption, 
with implementing regulations in 7 CFR part 59. Congress amended the 
refrigeration and labeling requirements of the EPIA as part of the 
Food, Agriculture, Conservation and Trade Act Amendments of 1991.
    The AMS proposed changes to 7 CFR part 59 to implement the 1991 
EPIA amendments and to 7 CFR part 56 to make its temperature and 
labeling requirements consistent with part 59. Before AMS published the 
final rule, however, the Department consolidated food safety 
responsibilities under FSIS. Egg products inspection functions under 
the EPIA were delegated to FSIS, while shell egg surveillance and 
grading functions continued to be administered by AMS. FSIS promulgated 
a final rule with request for comments to implement the 1991 EPIA 
amendments in 7 CFR part 59, later redesignated as 9 CFR part 590, 
which became effective August 27, 1999. Among other changes, the 
amendments require a storage temperature at no greater than 45  deg.F 
(7.2  deg.C) for eggs after they have been packed into containers 
destined for the ultimate consumer.
    Since the proposed changes to the shell egg grading regulations 
were not finalized, AMS is revising 7 CFR part 56 to conform to the 
FSIS temperature and labeling requirements mandated by the 1991 EPIA 
amendments. Because the proposed rule was published some years ago, AMS 
is publishing this rule as an interim final rule with request for 
comments. We are only making changes deemed necessary to avoid conflict 
between the requirements of the final rule published by FSIS and the 
AMS shell egg grading program.
    All shell egg processors that currently use or are likely to use 
USDA grading service typically have over 3,000 layers

[[Page 56947]]

and are therefore required to comply with the provisions of the EPIA. 
Accordingly, all eggs these processors pack into consumer containers 
for the ultimate consumer must comply with EPIA refrigeration and 
labeling requirements. Additionally, industry practice is to 
refrigerate all processed and graded eggs the same way, whether packed 
into containers destined for the ultimate consumer, or only officially 
identified as U.S. Grade AA, A, or B.
    Therefore, AMS has determined that the provisions of this rule will 
not impose any additional requirements on small or large egg handlers. 
Accordingly, it will not have a significant economic impact on a 
substantial number of small entities that use USDA's voluntary shell 
egg grading service. In addition, FSIS discussed its RFA analysis when 
it published its final rule for 7 CFR part 59, and determined that it 
would not have a significant economic impact on a substantial number of 
all small entities that produce and process chicken eggs.

Alternatives to the Rule

    AMS considered leaving the current temperature requirements in 7 
CFR part 56 unchanged. However, those requirements would then be 
different from the FSIS requirements in 9 CFR part 590 mandated by the 
1991 EPIA amendments. Because this would create confusion among users 
of the regulations by suggesting that storage and transport 
temperatures above 45  deg.F (7.2  deg.C) would be permissible, AMS 
determined this alternative to be unacceptable. Moreover, by revising 
grading program storage and transport temperature requirements to be 
consistent with FSIS, AMS can better preserve the quality of officially 
identified eggs and better accomplish the program's objective of 
providing consumers with high quality shell eggs.
    AMS also considered leaving unchanged the proposed phrase 
``containers destined for the ultimate consumer'' in Secs. 56.76 (c)(1) 
and (f)(1). This phrase does conform to FSIS requirements in 9 CFR part 
590. However, occasions can arise where eggs have been officially 
graded, but are not yet packed into containers for the ultimate 
consumer. AMS therefore chose to make all shell eggs that are to be 
officially identified as U.S. Grade AA, A, or B subject to these 
regulations.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget (OMB).

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. This 
rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule. There are no administrative procedures that must be exhausted 
prior to any judicial challenge to the provisions of this rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection and recordkeeping 
requirements that appear in part 56 have been previously approved by 
the Office of Management and Budget (OMB) under OMB control number 
0581-0128. There are no new requirements provided for in this 
rulemaking action.
    Pursuant to 5 U.S.C. 535, it is also found and determined upon good 
cause that it is impractical, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register. This action is necessary to conform AMS temperature and 
labeling requirements in 7 CFR part 56 with recent changes to FSIS 
requirements in 90 CFR part 590. The FSIS changes became effective on 
August 27, 1999. Accordingly, the changes made in this action should be 
implemented as soon as possible to eliminate any confusion in the 
industry. Furthermore, industry use of this program is voluntary.

List of Subjects in 7 CFR Part 56

    Eggs and egg products, Food grades and standards, Food labeling, 
Reporting and recordkeeping requirements.
    For reasons set forth in the preamble, 7 CFR part 56 is amended as 
follows:

PART 56--VOLUNTARY GRADING OF SHELL EGGS

    1. The authority citation for part 56 continues to read as follows:

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

    2. Section 56.1 is amended by adding alphabetically a new term 
ambient temperature to read as follows:


Sec. 56.1  Meaning of words and terms defined.

* * * * *
    Ambient temperature means the air temperature maintained in an egg 
storage facility or transport vehicle.
* * * * *
    3. In Sec. 56.35, paragraph (d) is added to read as follows:


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

* * * * *
    (d) Refrigeration labeling. All containers bearing official U.S. 
Grade AA, A, or B identification shall be labeled to indicate that 
refrigeration is required, e.g., ``Keep Refrigerated,'' or words of 
similar meaning.
    4. Section 56.76 is amended by revising paragraphs (c)(1), (f)(1), 
(f)(3) and the heading of paragraph (f), to read as follows:


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

* * * * *
    (c) Cooler room requirements. (1) Cooler rooms shall be 
refrigerated and capable of maintaining an ambient temperature no 
greater than 45  deg.F (7.2  deg.C). Accurate thermometers shall be 
provided for monitoring cooler room temperatures.
* * * * *
    (f) Requirements for eggs that are to be officially identified. (1) 
Shell eggs that are to be officially identified as U.S. Grade AA, A, or 
B shall be placed under refrigeration at an ambient temperature no 
greater than 45  deg.F (7.2  deg.C) promptly after packaging. Shell 
eggs officially identified as U.S. Grade AA, A, or B, when shipped 
between official plants, shall be transported at an ambient temperature 
no greater than 45  deg.F (7.2  deg.C).
    (2) * * *
    (3) Eggs that are to be officially identified as U.S. Grade AA, A, 
or B shall be packaged only in new or good used cases and packing 
materials. Cases and packing materials must be reasonably clean, free 
of mold, mustiness, and off odors, and must be of sufficient strength 
and durability to adequately protect the eggs during normal 
distribution.
* * * * *

    Dated: October 15, 1999.
Kathleen A. Merrigan,
Administrator,
Agricultural Marketing Service.
[FR Doc. 99-27546 Filed 10-21-99; 8:45 am]
BILLING CODE 3410-02-P