[Federal Register Volume 65, Number 105 (Wednesday, May 31, 2000)]
[Rules and Regulations]
[Pages 34569-34570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13481]



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 Rules and Regulations
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  Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules 
and Regulations  

[[Page 34569]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 56

[Docket No. PY-99-002]
RIN 0581-AB60


Refrigeration Requirements for Shell Eggs

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
final rule that amended the voluntary shell egg grading program 
regulations by adding a definition of the term ``ambient temperature,'' 
by amending the refrigeration requirements, and by adding a labeling 
requirement. Mandatory amendments to the Egg Products Inspection Act 
(EPIA) in 1991 and USDA Food Safety and Inspection Service (FSIS) 
regulations in 9 CFR part 590 implementing those amendments involved 
refrigeration and labeling requirements. We made changes to 7 CFR part 
56 to conform to the FSIS requirements.

EFFECTIVE DATE: June 30, 2000.

FOR FURTHER INFORMATION CONTACT: Douglas C. Bailey, Chief, 
Standardization Branch, 202/720-3506.

SUPPLEMENTARY INFORMATION:   

Background

    An interim final rule effective October 25, 1999, was published in 
the Federal Register on October 22, 1999 (64 FR 56945-56947, Docket No. 
PY-99-002). We amended 7 CFR part 56 (the regulations) by adding a 
definition of the term ``ambient temperature,'' by amending the 
refrigeration requirements, and by adding a labeling requirement.

Comments

    Comments on the interim final rule were required to be received on 
or before December 21, 1999. We received five comments. They were from 
a research firm, an organization representing State department of 
agriculture officials, a consumer organization, and two industry 
associations.
    In the interim final rule, we explained that new FSIS temperature 
and labeling requirements in 9 CFR part 590 became effective August 27, 
1999. These new requirements implemented mandatory 1991 amendments to 
the EPIA. The interim changes made by the Agricultural Marketing 
Service (AMS) to 7 CFR part 56 are deemed necessary to avoid a conflict 
between the temperature and labeling requirements published by FSIS and 
regulations of the AMS voluntary shell egg grading program.
    The research firm that commented agreed with the temperature 
requirement, added a note of caution concerning storage temperature 
changes that can cause eggs to sweat, and recommended that this issue 
be addressed in the regulations. The regulations already contain the 
requirement that every reasonable precaution be exercised to prevent 
the ``sweating'' of eggs (Sec. 56.76(f)(2)).
    The organization representing State department of agriculture 
officials supported the temperature requirement. The amendatory 
language states that eggs should be placed under refrigeration 
``promptly after packaging.'' This organization suggested that the 
meaning of ``promptly'' be clarified in either the regulations or the 
instructions to the graders. The Agency provides detailed information 
and explanation concerning technical aspects of the grading program in 
its Shell Egg Graders Handbook, where this issue will be addressed.
    The consumer organization, while supporting the temperature and 
labeling requirements, felt that they did not go far enough. In 
response to food safety concerns, this organization recommended that 
the temperature requirement should be 41  deg.F instead of 45  deg.F, 
that only one specific labeling statement should be allowed, and that 
the statement's size and placement should be mandated. As we explained 
in our interim final rule, FSIS has already finalized its rule 
concerning refrigeration in order to comply with the legislative 
amendment. This amendment, dealing with voluntary grading of shell 
eggs, is intended to conform to the FSIS requirements of refrigeration 
and labeling found in 9 CFR part 590. The organization also commented 
that AMS should set a specific time limit for processors to move 
packaged eggs into coolers. AMS will address this issue in its Shell 
Egg Graders Handbook.
    One industry association expressed concern about the industry's 
ability to comply with the temperature requirements established by FSIS 
regulations. Those regulations have been in effect since August 27, 
1999. Any questions concerning them should be addressed to FSIS. The 
main purpose of this rule is to conform to those regulations.
    The other industry association supported the refrigeration and 
labeling requirements, but wanted them to cover all shell eggs 
regulated under the EPIA and monitored under the shell egg surveillance 
program, not just those under the voluntary shell egg grading program. 
Shell eggs regulated under the EPIA are already covered by FSIS 
refrigeration and labeling requirements mandated in 9 CFR part 590, and 
the changes made by the interim final rule to 7 CFR part 56 does not 
alter that coverage.

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

[[Page 34570]]

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.
    In 1992, 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 
published 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 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.

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.
    After consideration of all relevant material presented, including 
the comments received, we are finalizing the interim rule without 
change.

List of Subjects in 7 CFR Part 56

    Eggs and egg products, Food grades and standards, Food labeling, 
Reporting and recordkeeping requirements.

PART 56--VOLUNTARY GRADING OF SHELL EGGS

    Accordingly, the interim rule amending 7 CFR part 56 which was 
published at 64 FR 56945 on October 22, 1999, is adopted as a final 
rule without change.

    Dated: May 24, 2000.
Kathleen A. Merrigan,
Administrator, Agricultural Marketing Service.
[FR Doc. 00-13481 Filed 5-30-00; 8:45 am]
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