[Federal Register Volume 69, Number 7 (Monday, January 12, 2004)]
[Rules and Regulations]
[Pages 1647-1654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-403]



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 Rules and Regulations
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  Federal Register / Vol. 69, No. 7 / Monday, January 12, 2004 / Rules 
and Regulations  

[[Page 1647]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 592

Agricultural Marketing Service

7 CFR Part 55

[Docket No.01-031F]
RIN 0583-AC94


Transfer of Voluntary Inspection of Egg Products Regulations

AGENCY: Food Safety and Inspection Service and Agricultural Marketing 
Service, USDA.

ACTION: Final rule, with an opportunity to comment.

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

SUMMARY: The Food Safety and Inspection Service (FSIS) and the 
Agricultural Marketing Service (AMS) are transferring the regulations 
governing the voluntary inspection of egg products from 7 CFR part 55 
to 9 CFR part 592 to reflect that this program has been transferred to 
FSIS. This transfer occurred at the time the Secretary of Agriculture 
delegated all functions under the Egg Products Inspection Act to the 
Administrator of FSIS. FSIS is updating the regulations to better 
reflect current inspection practices. FSIS is providing the public with 
an opportunity to comment on the clarity and technical accuracy of the 
amended regulations.

DATES: This rule is effective January 12, 2004. Please submit comments 
by February 11, 2004.

ADDRESSES: Submit one original and two copies of written comments to 
the FSIS Docket Room, Docket 01-031F, U.S. Department of 
Agriculture, Food Safety and Inspection Service, Room 102, Cotton 
Annex, 300 12th Street, SW., Washington, DC 20250-3700. All comments 
submitted in response to this proposal will be available for public 
inspection in the Docket Room between 8:30 a.m. and 4:30 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For further information, contact Lynn 
Dickey, Ph.D., Director, Regulations and Petitions Policy Staff, Office 
of Policy and Program Development, FSIS, U.S. Department of 
Agriculture, Room 112, Cotton Annex, 300 12th Street, SW., Washington, 
DC 20250-3700, (202) 720-5627, fax number (202) 690-0486.

SUPPLEMENTARY INFORMATION:

Background

    FSIS and AMS are transferring the regulations governing the 
voluntary inspection of egg products from 7 CFR part 55 to 9 CFR part 
592. Several years ago, the Secretary of Agriculture delegated to the 
FSIS Administrator all functions under the Egg Products Inspection Act 
(21 U.S.C. 1041, et seq.). On December 31, 1998, the regulations 
governing the mandatory inspection of egg products were transferred 
from Title 7 to Title 9 of the CFR (63 FR 72352). The regulations 
governing the voluntary inspection of egg products were not transferred 
and remained in 7 CFR part 55. However, FSIS provides the voluntary 
inspection of egg products under the Agriculture Marketing Act of 1946, 
as amended (7 U.S.C. 1621 et. seq.). This rule transfers the 
regulations in 7 CFR part 55 to 9 CFR 592.
    Further, FSIS is updating the regulations to better reflect current 
inspection practices. The Agency is eliminating any references to 
grading, which the Agency does not perform, and deleting any mention of 
licensing.
    To improve the marketing of egg products, FSIS provides a voluntary 
egg products inspection program on a fee for service basis. Egg 
products may be certified as acceptable for identification with the 
inspection mark according to class, quality, quantity, and condition. 
Voluntary egg products inspection service is used for certification to 
Federal, State, and Commercial Item Specifications requirements. 
Examples of such specifications include those of the USDA Commodity 
Purchase Program (needy family and school lunch programs), the 
Department of Defense, exports, and of other government institutions 
(Veterans Administration hospitals and State hospitals and prisons). 
Voluntary inspection may also include certification of further 
processed egg products that are not amenable to the EPIA, e.g., fully 
cooked egg patties or omelets.

Final Rule With an Opportunity To Comment

    FSIS and AMS have determined that the notice and comment and 
delayed effective date requirements of the Administrative Procedure Act 
(5 U.S.C. 533(b) and (d)) do not apply to this final rule. The 
amendments made by this rule reflect FSIS'' responsibilities regarding 
voluntary egg products inspection and technical and minor changes made 
to the regulations. Therefore, FSIS and AMS conclude that good cause 
exists to find that notice and public procedure are unnecessary, and 
they are issuing these amendments as a final rule, effective upon 
publication.
    Because the transfer of the regulations has necessitated making a 
number of changes to the regulations, FSIS is providing the public with 
an opportunity to comment on the clarity and technical accuracy of the 
amended regulations. The Agency requests that those with comments 
submit them during the 30 days that follow publication of the rule.

Executive Order 12866 and Regulatory Flexibility Act

    Because this final rule has been determined to be not significant, 
the Office of Management and Budget (OMB) did not review it under 
Executive Order 12866.
    The Administrator, FSIS, has determined that this final rule will 
not have a significant economic impact, as defined by the Regulatory 
Flexibility Act (5 U.S.C. 601), on a substantial number of small 
entities.
    Small establishments and plants will not be affected adversely by 
the transfer of the voluntary inspection of egg products regulations 
because there are no costs or change in services associated with this 
rule.

Economic Effects

    The transfer of the Voluntary Egg Products Inspection regulations 
from Title 7 to Title 9 will not impose any costs to consumers, 
industry, or any Federal, State, or local government agency. FSIS has 
been conducting the voluntary inspection of egg products under 7 CFR 55 
for several years.

[[Page 1648]]

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final rule: (1) preempts State and local 
laws and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, in an effort to better ensure 
that minorities, women, and persons with disabilities are aware of this 
final rule, FSIS will announce it and make copies of this Federal 
Register publication available through the FSIS Constituent Update. 
FSIS provides a weekly Constituent Update, which is communicated via 
Listserv, a free e-mail subscription service. In addition, the update 
is available on-line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding 
FSIS policies, procedures, regulations, Federal Register notices, FSIS 
public meetings, recalls, and any other types of information that could 
affect or would be of interest to our constituents/stakeholders. The 
constituent Listserv consists of industry, trade, and farm groups, 
consumer interest groups, allied health professionals, scientific 
professionals, and other individuals that have requested to be 
included. Through the Listserv and web page, FSIS is able to provide 
information to a much broader, more diverse audience than would 
otherwise be possible.
    For more information contact the Congressional and Public Affairs 
Office, at (202) 720-9113. To be added to the free e-mail subscription 
service (Listserv) go to the ``Constituent Update'' page on the FSIS 
Web site at http://www.fsis.usda.gov/oa/update/update.htm. Click on the 
``Subscribe to the Constituent Update Listserv'' link, then fill out 
and submit the form.

List of Subjects

7 CFR Part 55

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

9 CFR Part 592

    Eggs and egg products, Exports, Food labeling, Imports, Reporting 
and recordkeeping requirements.

7 CFR CHAPTER I--AGRICULTURAL MARKETING SERVICE

Authority and Issuance

0
For the reasons set forth in the preamble and under authority of 7 
U.S.C. 1625, AMS is amending 7 CFR Chapter I as follows:

PART 55--[REMOVED]

0
1. Remove 7 CFR part 55.

    Done at Washington, DC, on: January 2, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.

9 CFR CHAPTER III--FOOD SAFETY AND INSPECTION SERVICE

0
For the reasons set forth in the preamble, FSIS amends 9 CFR Chapter 
III as follows:
0
2. Revise part 592 by removing Sec. Sec.  592.1 through 592.4 and by 
adding new Sec. Sec.  592.1 through 592.650. As revised, part 592 reads 
as follows:

PART 592--VOLUNTARY INSPECTION OF EGG PRODUCTS

Definition

Sec.
592.1 Meaning of words.
592.2 Terms defined.
592.5 Designation of official certificates, memoranda, marks, other 
identifications, and devices for purposes of the Agricultural 
Marketing Act.

Administration

592.10 Authority.

General

592.20 Kinds of services available.
592.22 Where service is offered.
592.24 Basis of service.

Performance of Services

592.70 Identification.
592.80 Political activity.
592.90 Authority and duties of inspection program personnel 
performing service.
592.95 Facilities and equipment to be furnished for use of 
inspection program personnel in performing service.
592.96 Schedule of operation of official plants.

Application for Service

592.100 Who may obtain service.
592.120 Authority of applicant.
592.130 How application for service may be made.
592.140 Application for inspection in official plants; approval.
592.150 When application may be rejected.
592.160 When application may be withdrawn.
592.170 Order of service.
592.180 Suspension of plant approval.

Denial of Service

592.200 Debarment.
592.220 Other applicable regulations.
592.240 Report of violations.
592.260 Reuse of containers bearing official identification 
prohibited.

Identifying and Marking Products

592.300 Approval of official identification.
592.310 Form of official identification symbol and inspection mark.
592.320 Products that may bear the inspection mark.
592.330 Unauthorized use or disposition of approved labels.
592.340 Supervision of marking and packaging.
592.350 Accessibility of product.
592.360 Certificates.
592.370 Certificate issuance.
592.380 Disposition of certificates.
592.390 Advance information.

Appeals

592.400 Who may request an appeal inspection or review of an 
inspection program employee's decision.
592.410 Where to file an appeal.
592.420 How to file an appeal.
592.430 When an application for an appeal inspection may be refused.
592.440 Who shall perform the appeal.
592.450 Procedures for selecting appeal samples.
592.460 Appeal certificates.

Fees and Charges

592.500 Payment of fees and charges.
592.510 Base Time Rate.
592.520 Overtime Inspection Service.
592.530 Holiday Inspection Service.

Sanitary and Processing Requirements

592.600 General.
592.650 Inspection.

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

Definitions


Sec.  592.1  Meaning of words.

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


Sec.  592.2  Terms defined.

    For the purpose of the regulations in this part, unless the context 
otherwise requires, the following terms shall be construed, 
respectively:
    Act means the applicable provisions of the Agricultural Marketing 
Act of 1946 (60 Stat. 1087; 7 U.S.C. 1621 et seq.), or any other Act of 
Congress conferring like authority.
    Administrator means the Administrator of the Food Safety and 
Inspection Service (FSIS) of the Department or any other officer or 
employee of the Department to whom there has been delegated, or to whom 
there may be delegated the authority to act in the Administrator's 
stead.
    Applicant means any interested party who requests any inspection 
service, or

[[Page 1649]]

appeal inspection, with respect to any product.
    Class means any subdivision of a product based on essential 
physical characteristics that differentiate between major groups of the 
same kind, species, or method of processing.
    Condition means any condition (including, but not being limited to, 
the state of preservation, cleanliness, soundness, wholesomeness, or 
fitness for human food) of any product which affects its 
merchantability; or any condition, including, but not being limited to, 
the processing, or packaging which affects such product.
    Department means the United States Department of Agriculture.
    District Manager means the manager in charge of a district, which 
is a designated geographical area.
    Eggs of Current Production means shell eggs that have moved through 
the usual marketing channels since the date of lay and are not in 
excess of 60 days old.
    Holiday or Legal holiday means the legal public holidays specified 
by the Congress in paragraph (a) of section 6103, Title 5, of the 
United States Code.
    Inspection means the act by inspection program personnel of:
    (1) Determining, according to these regulations, the class, 
quality, quantity, or condition of any product by examining each unit 
thereof or a representative sample drawn by inspection program 
personnel;
    (2) Issuing a certificate; or
    (3) Identifying, when requested by the applicant, any product by 
means of official identification pursuant to the Act and this part.
    Inspection certificate or certificate means a statement, either 
written or printed, issued by inspection program personnel pursuant to 
the Act and this part, relative to the class, quality, quantity, and 
condition of products.
    Inspection program personnel (employee) means employees of the 
Department authorized by the Secretary to investigate and certify, in 
accordance with the Act and this part, to shippers of products and 
other interested parties the class, quality, quantity, and condition of 
such products.
    Interested party means any person financially interested in a 
transaction involving any inspection or appeal inspection of any 
product.
    Official plant means any plant in which the facilities and methods 
of operation therein have been found by the Administrator to be 
suitable and adequate for inspection in accordance with this part and 
in which such service is carried on.
    Person means any individual, partnership, association, business 
trust, corporation, or any organized group of persons, whether 
incorporated or not.
    Product or products means eggs (whether liquid, frozen, or dried), 
egg products, and any food product that is prepared or manufactured and 
contains eggs as an ingredient.
    Program employee means any person 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.
    Quality means the inherent properties of any product that determine 
its relative degree of excellence.
    Regulations mean the provisions in this part.
    Sampling means the act of taking samples of any product for 
inspection.
    Secretary means the Secretary of the Department or any other 
officer or employee of the Department to whom there has heretofore been 
delegated, or to whom there may hereafter be delegated, the authority 
to act in the Secretary's stead.
    Service means: (1) Any inspection, in accordance with the 
Agriculture Marketing Act and the regulations in this part, of any 
product,
    (2) Supervision, in any official plant, of the processing, 
packaging and identification, or
    (3) Any appeal inspection of any previously inspected product.
    Shell eggs mean the shell eggs of the domesticated chicken, turkey, 
duck, goose, and guinea.


Sec.  592.5  Designation of official certificates, memoranda, marks, 
other identifications, and devices for purposes of the Agricultural 
Marketing Act.

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

Administration


Sec.  592.10  Authority.

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

General


Sec.  592.20  Kinds of services available.

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

[[Page 1650]]

Sec.  592.22  Where service is offered.

    Any product may be inspected wherever inspection program personnel 
are available and the facilities and the conditions are satisfactory 
for the conduct of the service.


Sec.  592.24  Basis of service.

    (a) Products shall be inspected in accordance with such standards, 
methods, and instructions as may be issued or approved by the 
Administrator. All service shall be subject to supervision at all times 
by the applicable FSIS designated supervisor. Whenever the supervisor 
of an inspection program person has evidence that such inspection 
program employee incorrectly inspected a product, such supervisor shall 
take such action as is necessary to correct the inspection and to cause 
any improper official identification that appears on the product or 
containers thereof to be corrected prior to shipment of the product 
from the place of the initial inspection.
    (b) Whenever service is performed on a sample basis, such sample 
shall be drawn in accordance with the instructions as issued by the 
Administrator.

Performance of Services


Sec.  592.70  Identification.

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


Sec.  592.80  Political activity.

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


Sec.  592.90  Authority and duties of inspection program personnel 
performing service.

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


Sec.  592.95  Facilities and equipment to be furnished for use of 
inspection program personnel in performing service.

    (a) Facilities and equipment for proper sampling, weighing, 
examination of products, and monitoring processing procedures shall be 
furnished by the official plant for use by inspection program 
personnel. Such facilities and equipment shall include but not be 
limited to a room or area suitable for sampling product and stationary 
or adequately secured storage box or cage (capable of being locked only 
by inspection program personnel) for holding official samples.
    (b) Acceptable furnished office space and equipment, including but 
not being limited to, a desk, lockers or cabinets (equipped with a 
satisfactory locking device) suitable for the protection and storage of 
supplies, and with facilities for inspection program personnel to 
change clothing.


Sec.  592.96  Schedule of operation of official plants.

    Inspection operating schedules for services performed pursuant to 
this part shall be requested in writing and approved by the appropriate 
District Office. Normal operating schedules for a full-week consist of 
a continuous 8-hour period per day (excluding but not to exceed 1 hour 
for lunch), 5 consecutive days per week, within the administrative 
workweek, Sunday through Saturday, for each shift required. Less than 
8-hour schedules may be requested and will be approved if inspection 
program personnel are available. Clock hours of daily operations need 
not be specified in the request, although as a condition of continued 
approval, the hours of operation shall consist of a continuous 10-hour 
period per day (excluding but not to exceed 1 hour for lunch), 4 
consecutive days per week, within the administrative workweek, Sunday 
through Saturday for each full shift required. Inspection program 
personnel are to be given reasonable advance notice by management of 
any change in the hours the inspection service is requested.

Application for Service


Sec.  592.100  Who may obtain service.

    (a) An application for service may be made by any interested 
person, including, but not being limited to, the United States, any 
State, county, municipality, or common carrier, and any authorized 
agent of the foregoing.
    (b) Where service is offered: Any product may be inspected, 
wherever an inspection program employee is available and the facilities 
and the conditions are satisfactory for the conduct of the service.
    (c) The applicant must have a tax identification number for billing 
purposes.


Sec.  592.120  Authority of applicant.

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


Sec.  592.130  How application for service may be made.

    (a) On a fee basis. An application for service may be made with any 
inspection program personnel at or nearest the place where the service 
is desired. Such application for service may be made orally (in person 
or by telephone), in writing or by transmission. If an application for 
inspection service is made orally, the inspection program personnel 
with whom such application is made, or the

[[Page 1651]]

Administrator, may require that the application be confirmed in 
writing.
    (b) Form of application. Each application for inspection of a 
specified lot of any product shall include such information as may be 
required by the Administrator in regard to the product and the premises 
where such product is to be inspected.


Sec.  592.140  Application for inspection in official plants; approval.

    Any person desiring to process products under inspection service 
must receive approval of such plant and facilities as an official plant 
prior to the installation of such service. The initial survey, 
drawings, and specifications to be submitted, changes and revisions in 
the official plant, and final survey and procedure for plant approval 
shall be in accordance with and conform to the applicable provisions of 
Part 590 of this chapter.


Sec.  592.150  When an application may be rejected.

    (a) Any application for service may be rejected by the 
Administrator:
    (1) Whenever the applicant fails to meet the requirements of the 
regulations in this part prescribing the conditions under which the 
service is made available;
    (2) Whenever the product is owned by or located on the premises of 
a person currently denied the benefits of the Act;
    (3) Where any individual holding office or a responsible position 
with or having a substantial financial interest or share in the 
applicant is currently denied the benefits of the Act or was 
responsible in whole or in part for the current denial of the benefits 
of the Act to any person;
    (4) Where the Administrator determines that the application is an 
attempt on the part of a person currently denied the benefits of the 
Act to obtain service;
    (5) Whenever the applicant, after an initial survey has been made 
in accordance with Part 590, fails to bring the plant, facilities, and 
operating procedures into compliance with the regulations in this part 
within a reasonable period of time;
    (6) Notwithstanding any prior approval whenever, before 
inauguration of service, the applicant fails to fulfill commitments 
concerning the inauguration of the service;
    (7) When it appears that to perform the services specified in this 
part would not be to the best interests of the public welfare or of the 
Government; or
    (8) When it appears to the Administrator that prior commitments of 
the Department necessitate rejection of the application.
    (b) Each such applicant shall be promptly notified by registered 
mail of the reasons for the rejection. A written petition for 
reconsideration of such rejection may be filed by the applicant with 
the Administrator if postmarked or delivered within 10 days after 
receipt of notice of the rejection. Such petition shall state 
specifically the errors alleged to have been made by the Administrator 
in rejecting the application. Within 20 days following the receipt of 
such a petition for reconsideration, the Administrator shall approve 
the application or notify the applicant by registered mail of the 
reasons for the rejection thereof.


Sec.  592.160  When an application may be withdrawn.

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


Sec.  592.170  Order of service.

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


Sec.  592.180  Suspension of plant approval.

    (a) Any plant approval pursuant to the regulations in this part may 
be suspended for:
    (1) Failure to maintain plant and equipment in a satisfactory state 
of repairs;
    (2) The use of operating procedures that are not in accordance with 
the regulations in this part; or
    (3) Alterations of buildings, facilities, or equipment that cannot 
be approved in accordance with the regulations in this part.
    (b) During such period of suspension, inspection service shall not 
be rendered. However, the other provisions of the regulations in this 
part pertaining to providing service will remain in effect unless 
service is terminated in accordance with the terms thereof. If the 
plant facilities or methods of operation are not brought into 
compliance within a reasonable period of time to be specified by the 
Administrator, the application and service shall be terminated. Upon 
termination of service in an official plant pursuant to the regulations 
in this part, the plant approval shall also become terminated, and all 
labels, seals, tags, or packaging material bearing official 
identification shall, under the supervision of a person designated by 
the Administrator, either be destroyed, or if to be used at another 
location, modified in a manner acceptable to the Agency.

Denial of Service


Sec.  592.200  Debarment.

    (a) The following acts or practices or the causing thereof may be 
deemed sufficient cause for the debarment by the Administrator of any 
person, including any agents, officers, subsidiaries, or affiliates of 
such person, from any or all benefits of the Act for a specified 
period.
    (1) Misrepresentation, or deceptive or fraudulent act or practice. 
Any willful misrepresentation or any deceptive or fraudulent act or 
practice found to be made or committed by any person in connection 
with:
    (i) The making or filing of an application for any service or 
appeal;
    (ii) The making of the product accessible for sampling or 
inspection;
    (iii) The making, issuing, or using, or attempting to issue or use, 
any certificate, symbol, stamp, label, seal, or identification 
authorized pursuant to the regulations in this part;
    (iv) The use of the terms ``United States,'' ``U.S.,'' ``U.S. 
Inspected,'' ``Government Inspected,'' or terms of similar import in 
the labeling or advertising of any product;
    (v) The use of any official stamp, symbol, label, seal, or 
identification in the labeling or advertising of any product.
    (2) Use of facsimile forms. Using or attempting to use a form that 
simulates in whole or in part any certificate, symbol, stamp, label, 
seal, or identification authorized to be issued or used under the 
regulations in this part.
    (3) Willful violation of the regulations. Any willful violation of 
the regulations in this part or of the Act.
    (4) Interfering with inspection program personnel or program 
employee of the Agency. Any interference with or obstruction or any 
attempted interference or obstruction of or assault upon any inspection 
program personnel or program employee of the Agency in the performance 
of their duties. The giving or offering, directly or indirectly, of any 
money, loan, gift, or anything of value to a program employee of the 
Agency, or the making or offering of any contribution to or in any way 
supplementing the salary, compensation or expenses of a program 
employee of the Agency, or the offering or entering into a private 
contract or agreement with a program employee of the Agency for any 
services to be rendered while employed by the Agency.
    (5) Miscellaneous. The existence of any of the conditions set forth 
in

[[Page 1652]]

Sec.  592.150 constituting the basis for the rejection of an 
application for inspection service.


Sec.  592.220  Other applicable regulations.

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


Sec.  592.240  Report of violations.

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


Sec.  592.260  Reuse of containers bearing official identification 
prohibited.

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

Identifying and Marking Products


Sec.  592.300  Approval of official identification.

    Labeling procedures, required information on labels, and method of 
label approval, shall be in accordance with and conform to the 
applicable provisions of part 590 of this chapter.


Sec.  592.310  Form of official identification symbol and inspection 
mark.

    (a) The shield set forth in Figure 1, containing the letters 
``USDA,'' shall be the official identification symbol for the purposes 
of this part and when used, imitated, or simulated in any manner in 
connection with a product shall be deemed to constitute a 
representation that the product has been officially inspected for the 
purpose of Sec.  592.5.
[GRAPHIC] [TIFF OMITTED] TR12JA04.049

    (b) The inspection marks that are permitted to be used on products 
shall be contained within the outline of a shield and with the wording 
and design set forth in Figure 2 of this section, except the plant 
number may be followed by the letter ``G'' in lieu of the word 
``plant.'' Alternatively, it may be omitted from the official shield if 
applied on the container's principal display panel or other prominent 
location and preceded by the word ``Plant'' or followed by the letter 
``G.''
[GRAPHIC] [TIFF OMITTED] TR12JA04.050

Sec.  592.320  Products that may bear the inspection mark.

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


Sec.  592.330  Unauthorized use or disposition of approved labels.

    (a) Containers or labels that bear official identification approved 
for use pursuant to Sec.  592.300 shall be used only for the purpose 
for which approved. Any unauthorized use or disposition of approved 
containers or labels that bear any official identification may result 
in cancellation of the approval and denial of the use of containers or 
labels bearing official identification or denial of the benefits of the 
Act pursuant to the provisions of Sec.  592.200;
    (b) The use of simulations or imitations of any official 
identification by any person is prohibited;
    (c) Upon termination of inspection service in an official plant 
pursuant to the regulations in this part, all labels or packaging 
material bearing official identification to be used to identify product 
packed by the plant shall either be destroyed, or have the official 
identification completely obliterated under the supervision of a USDA 
representative, or, if to be used at another location, modified in a 
manner acceptable to the Agency.


Sec.  592.340  Supervision of marking and packaging.

    (a) Evidence of label approval. Inspection program personnel shall 
authorize the use of official identification on any inspected product 
when they have evidence that such official identification or packaging 
material bearing such official identification has been approved in 
accordance with the provisions of Sec.  592.300.
    (b) Affixing of official identification. No official identification 
may be affixed to or placed on or caused to be affixed to or placed on 
any product or container thereof except by an inspection program 
employee or under the supervision of an inspection program employee or 
other person authorized by the Administrator. All such products shall 
have been inspected in accordance with the regulations in this part. 
Inspection program personnel shall have supervision over the use and 
handling of all material bearing any official identification.
    (c) Labels for products sold under Government contract. Inspectors-
in-charge may approve labels for containers of product sold under a 
contract specification to governmental agencies when such product is 
not offered for resale to the general public: Provided, that the 
contract specifications include complete specific requirements with 
respect to labeling, and are made available to inspection program 
personnel.


Sec.  592.350  Accessibility of product.

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


Sec.  592.360  Certificates.

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


Sec.  592.370  Certificate issuance.

    When performing inspection service at locations other than an 
official establishment, inspection program personnel shall issue a 
certificate covering each product inspected. An applicant may request 
issuance of a certificate for each production lot inspected.


Sec.  592.380  Disposition of certificates.

    The original and a copy of each certificate issued pursuant to 
Sec.  592.370, and not to exceed two additional copies

[[Page 1653]]

thereof if requested by the applicant prior to issuance, shall, 
immediately upon issuance, be delivered or mailed to the applicant or 
designee. Other copies shall be filed and retained in accordance with 
the disposition schedule for inspection program records.


Sec.  592.390  Advance information.

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

Appeals


Sec.  592.400  Who may request an appeal inspection or review of an 
inspection program employee's decision.

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


Sec.  592.410  Where to file an appeal.

    (a) Appeal of inspection program personnel decision in an official 
plant. Any interested party who is not satisfied with the determination 
of the class, quality, quantity, or condition of product that was 
inspected by inspection program personnel in an official plant and has 
not left such plant, and the operator of any official plant who is not 
satisfied with a decision by inspection program personnel on any other 
matter relating to inspection in such plant, may request an appeal 
inspection or review of the decision by the inspection program employee 
by filing such request with the inspection program employee's immediate 
supervisor.
    (b) All other appeal requests. Any interested party who is not 
satisfied with the determination of the class, quality, quantity, or 
condition of product that has left the official plant where it was 
inspected or inspected other than in an official plant may request an 
appeal inspection by filing such request with the District Manager in 
the district where the product is located.


Sec.  592.420  How to file an appeal.

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


Sec.  592.430  When an application for an appeal inspection may be 
refused.

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


Sec.  592.440  Who shall perform the appeal.

    (a) An appeal inspection or review of a decision requested under 
Sec.  592.410(a) shall be made by the inspection program employee's 
immediate supervisor or by an inspection program employee assigned by 
the immediate supervisor other than the inspection program employee 
whose inspection or decision is being appealed.
    (b) Appeal inspections requested under Sec.  592.410(b) shall be 
performed by an inspection program employee other than the inspection 
program employee who originally inspected the product.
    (c) Whenever practical, an appeal inspection shall be conducted 
jointly by two inspection program employees. The assignment of the 
inspection program personnel who will make the appeal inspection under 
Sec.  592.410(b) shall be made by the District Manager.


Sec.  592.450  Procedures for selecting appeal samples.

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


Sec.  592.460  Appeal certificates.

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

Fees and Charges


Sec.  592.500  Payment of fees and charges.

    (a) Fees and charges for voluntary base time rate, overtime 
inspection service, and holiday inspection service shall be paid by the 
interested party making the application for such service, in accordance 
with the applicable provisions of this section and Sec.  592.510 
through Sec.  592.530, both inclusive. If so required by the Inspection 
program personnel, such fees and charges shall be paid in advance.
    (b) Fees and charges for any service shall, unless otherwise 
required pursuant to paragraph (c) of this section, be paid by check, 
draft, or money order payable to the Food Safety Inspection Service and 
remitted promptly to FSIS.
    (c) Fees and charges for any service under a cooperative agreement 
with any State or person shall be paid in accordance with the terms of 
such cooperative agreement.


Sec.  592.510  Base time rate.

    The base time rate for voluntary inspection services of egg 
products is $43.64 per hour per program employee.


Sec.  592.520  Overtime inspection service.

    When operations in an official plant require the services of 
inspection personnel beyond their regularly

[[Page 1654]]

assigned tour of duty on any day or on a day outside the established 
schedule, such services are considered as overtime work. The official 
plant must give reasonable advance notice to the inspection program 
personnel of any overtime service necessary and must pay the Agency for 
such overtime at an hourly rate of $50.04.


Sec.  592.530  Holiday inspection service.

    When an official plant requires inspection service on a holiday or 
a day designated in lieu of a holiday, such service is considered 
holiday work. The official plant must, in advance of such holiday work, 
request the inspector in charge to furnish inspection service during 
such period and must pay the Agency for such holiday work at an hourly 
rate of $50.04.

Sanitary and Processing Requirements


Sec.  592.600  General.

    Except as otherwise approved by the Administrator, the sanitary, 
processing, and facility requirements, as applicable, shall be the same 
for the product processed under this part as for egg products processed 
under part 590 of this chapter.


Sec.  592.650  Inspection.

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

    Done at Washington, DC, on: December 23, 2003.
Garry L. McKee,
Administrator, Food Safety and Inspection Service.
[FR Doc. 04-403 Filed 1-9-04; 8:45 am]
BILLING CODE 3410-DM-P