[Federal Register Volume 71, Number 9 (Friday, January 13, 2006)]
[Proposed Rules]
[Pages 2168-2176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-258]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 9 / Friday, January 13, 2006 / 
Proposed Rules  

[[Page 2168]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 56 and 70

[Docket No. PY-02-003]
RIN 0581-AC25


Updating Administrative Requirements for Voluntary Shell Egg, 
Poultry, and Rabbit Grading

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: The Agricultural Marketing Service (AMS) proposes to amend 
administrative requirements in the regulations governing the voluntary 
shell egg, poultry, and rabbit grading programs. The amendments would 
update the administrative requirements and make minor, nonsubstantive 
changes for clarity and uniformity of style. This would improve 
operational efficiency of the grading programs by making the 
administrative requirements more accurate, clear, consistent, and 
easier to use.

DATES: Comments must be received on or before February 13, 2006.

ADDRESSES: Send written comments to David Bowden, Jr., Chief, 
Standardization Branch, Poultry Programs, Agricultural Marketing 
Service, U.S. Department of Agriculture, STOP 0259, Room 3944-South, 
1400 Independence Avenue, SW., Washington, DC 20250-0259. Also, 
comments may be faxed to (202) 690-0941 or by Internet to http://www.regulations.gov.
    State that your comments refer to Docket No. PY-02-003 and note the 
date and page number of this issue of the Federal Register.
    Comments may be inspected at the above location between 8 a.m. and 
4:30 p.m. Eastern Time, Monday through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: Charles Johnson, Chief, Grading 
Branch, (202) 720-3271.

SUPPLEMENTARY INFORMATION:

Background and Proposed Changes

    Voluntary shell egg, poultry, and rabbit grading programs are 
provided for under the Agricultural Marketing Act of 1946, as amended, 
and are offered on a fee-for-service basis. The programs operate under 
the regulations in 7 CFR part 56 (Voluntary Grading of Shell Eggs) and 
7 CFR part 70 (Voluntary Grading of Poultry Products and Rabbit 
Products).
    Supervisory personnel at national, regional, and State levels are 
responsible for overall operation of these grading programs and 
implementation of the regulations. Historically, graders were licensed 
in either shell egg grading or poultry grading, some also in rabbit 
grading, and they would use only one of the regulations. Today, graders 
are increasingly cross-utilized for both shell egg and poultry grading, 
and use both 7 CFR parts 56 and 70.
    Both regulations have been in effect since the 1950s and have been 
amended from time to time as requirements have changed.
    While each regulation has its own commodity-specific requirements, 
both regulations have the same or similar administrative requirements. 
A recent review of the administrative requirements identified general 
editorial or housekeeping changes that were needed. These changes would 
enable program staff at all levels to implement the administrative 
requirements of both regulations consistently, uniformly, easily, and 
fairly. The amendments would not change how the administrative 
requirements are administered, how the commodity-specific requirements 
are implemented, or the responsibilities of program users.
    The amendments would make the administrative requirements more 
accurate, easier to implement, and easier to follow. For example:

--References to the official U.S. Standards, Grades, and Weight Classes 
for Shell Eggs and the official U.S. Classes, Standards, and Grades for 
Poultry and Rabbits would be updated to reflect that they are no longer 
in the Code of Federal Regulations.
--Punctuation, grammar, capitalization, abbreviations, legal phrases, 
terms, format, and style would be updated for consistency with current 
regulatory documents, the U.S. Government Printing Office Style Manual, 
and the Federal Register Document Drafting Handbook. Also, gender-
specific pronouns would be changed to gender-neutral pronouns 
consistent with current writing style.
--Sections would be redesignated to make requirements easier to locate 
in the regulations.
--Sections about nondiscrimination and political activity for Federal 
employees would be updated to reflect current requirements.
--The displays of control numbers assigned to information collection 
requirements by the Office of Management and Budget would be 
reformatted and Agency names would be changed to their letter symbols 
to save space and to avoid the repetitive use of certain numbers and 
words.
--``Poultry Division'' would be changed to ``Poultry Programs'' to 
conform with organizational changes.
--``Telegraph'' would be changed to ``electronic means'' to reflect 
current technology.
--A definition for the term ``Agricultural Marketing Service or AMS'' 
would be added for consistency with other Agency regulations.
--Duplicate sections would be removed.
--Inconsistencies in the wording of headings and sections common to 
both regulations would be harmonized, where feasible and practical, to 
assist program staff at all levels.
--Administrative requirements that have historically been implemented 
in both grading programs, but are found in only one of the regulations, 
would be added to the regulation where they are not specified.

Executive Order 12866

    This proposed 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.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This action 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

[[Page 2169]]

this rule. There are no administrative procedures that must be 
exhausted prior to any judicial challenge to the provisions of this 
rule.

Effect on Small Entities

    The purpose of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 
et seq.) 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 (SBA) (13 CFR 121.201) defines small entities that 
produce and process poultry as those whose annual number of employees 
is less than 500 and defines small entities that produce and process 
chicken eggs as those whose annual receipts are less than $9,000,000. 
Approximately 625,500 egg laying hens are needed to produce enough eggs 
to gross $9,000,000.
    There are about 376 users of Poultry Programs' grading services. 
These official plants can pack eggs, poultry, and rabbits in packages 
bearing the USDA grade shield when AMS graders are present to certify 
that the products meet the grade requirements as labeled. Many of these 
users are small entities under the criteria established by the SBA. 
These entities are under no obligation to use grading services as 
authorized under the Agricultural Marketing Act of 1946.
    Pursuant to requirements set forth in the RFA, the AMS has 
considered the economic impact of this rule on small entities. This 
rule is editorial and housekeeping in nature. It would affect 
administrative requirements by updating language and references that 
are outdated. It would harmonize the administrative content of both 
regulations. It would not change how the administrative requirements 
are administered, how commodity-specific requirements are implemented, 
or the responsibilities of program users. Accordingly, AMS has 
determined that provisions of this rule would not have a significant 
economic impact on a substantial number of small entities.

Paperwork Reduction

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the Office of Management and Budget (OMB) has previously 
approved the information collection and recordkeeping requirements 
included in this rule, and there are no new requirements. The assigned 
OMB control numbers are 0581-0127 and 0581-0128.

List of Subjects

7 CFR Part 56

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

7 CFR Part 70

    Food grades and standards, Food labeling, Poultry and poultry 
products, Rabbits and rabbit products, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR parts 56 and 70 
are proposed to be 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.

Sec.  56.1  [Amended]

    2. Section 56.1 is amended by:
    A. Revising the introductory text.
    B. Adding Acceptable.
    C. Amending Act by adding the words ``, as amended'' immediately 
following the number ``1087''.
    D. Amending Administrator by removing the words ``Agricultural 
Marketing Service of the Department'' and adding the word ``AMS'' in 
their place and removing the word ``his'' and adding the words ``the 
Administrator's'' in its place.
    E. Revising Applicant.
    F. Amending Department by adding the word ``(USDA)'' immediately 
following the word ``Agriculture''.
    G. Revising Grader.
    H. Amending Grading or grading service by removing the word 
``Service'' and adding the word ``AMS'' in its place.
    I. Amending Grading certificate by removing the words ``and this'' 
and adding the words ``and the regulations in this'' in their place.
    J. Amending Holiday or legal holiday by removing the words ``shall 
mean'' and adding the word ``means'' in their place.
    K. Adding Identify.
    L. Revising Official plant.
    M. Amending Origin grading by removing the word ``is'' and adding 
the word ``means'' in its place.
    N. Revising Regulations.
    O. Amending Sampling by adding the words ``or certification'' 
following the word ``grading.''
    P. Amending Secretary by removing the word ``his'' and adding the 
words ``the Secretary's'' in its place.
    Q. Removing Service.
    R. Adding Shell egg grading service.
    S. Adding State supervisor or Federal-State supervisor.
    T. Adding United States Standards for Quality of Individual Shell 
Eggs.
    The revisions and additions read as follows:


Sec.  56.1  Meaning of words and terms defined.

    For the purpose of the regulations in this part, words in the 
singular shall be deemed to import the plural and vice versa, as the 
case may demand. Unless the context otherwise requires, the terms shall 
have the following meaning:
    Acceptable means suitable for the purpose intended by the AMS.
* * * * *
    Applicant means any interested person who requests any grading 
service.
* * * * *
    Grader means any Federal or State employee or the employee of a 
local jurisdiction or cooperating agency to whom a license has been 
issued by the Secretary to investigate and certify in accordance with 
the regulations in this part, the class, quality, quantity, or 
condition of products.
* * * * *
    Identify means to apply official identification to products or the 
containers thereof.
* * * * *
    Official plant or official establishment means one or more 
buildings or parts thereof comprising a single plant in which the 
facilities and methods of operation therein have been approved by the 
Administrator as suitable and adequate for grading service and in which 
grading is carried on in accordance with the regulations in this part.
* * * * *
    Regulations means the provisions in this entire part and such 
United States standards, grades, and weight classes as may be in effect 
at the time grading is performed.
* * * * *
    Shell egg grading service means the personnel who are actively 
engaged in the administration, application, and direction of shell egg 
grading programs and services pursuant to the regulations in this part.
* * * * *
    State supervisor or Federal-State supervisor means any authorized 
and designated individual who is in charge of the shell egg grading 
service in a State.
    United States Standards for Quality of Individual Shell Eggs means 
the official U.S. standards contained in the U.S. Standards, Grades, 
and Weight Classes for Shell Eggs (AMS 56).
* * * * *

[[Page 2170]]

    3. The undesignated center heading preceding Sec.  56.3 is revised 
to read as follows:

General


Sec.  56.3  [Amended]

    4. Section 56.3 is amended by:
    A. Removing paragraph (b).
    B. Removing paragraph designation ``(a).''
    C. Removing the words ``Agricultural Marketing Service'' and adding 
the word ``AMS''.
    5. The undesignated center heading preceding Sec.  56.4 is removed.


Sec.  56.4  [Amended]

    6. In Sec.  56.4, paragraph (a) is amended by adding the words 
``for Shell Eggs'' immediately following the words ``and Weight 
classes'' and removing the words ``as contained in subpart C of this 
part.''
    7. The section heading for Sec.  56.5 is revised to read as 
follows:


Sec.  56.5  Accessibility of product.

* * * * *
    8. Section 56.6 is amended by removing the word ``applicable'' and 
adding the word ``responsible'' in its place and adding the words ``in 
accordance with instructions issued by the Administrator'' following 
the word ``rendered''.
    9. A new Sec.  56.7 is added to read as follows:


Sec.  56.7  Nondiscrimination.

    The conduct of all services and the licensing of graders under 
these regulations shall be accomplished without discrimination as to 
race, color, national origin, sex, religion, age, disability, political 
beliefs, sexual orientation, or marital or family status.
    10. Section 56.9 is revised to read as follows:


Sec.  56.9  OMB control number.

    (a) Purpose. The collecting of information requirements in this 
part have been approved by the Office of Management and Budget (OMB) 
and assigned OMB control number 0581-0128.
    (b) Display.
    Sections where information collection requirements are identified 
and described:

 
 
 
56.3(a)                56.25                 56.52(b)(3)(ii)
56.4(a)                56.26                 56.53
56.10(a)               56.30                 56.54(b)(1)
56.11                  56.31(a)              56.54(b)(3)(ii)
56.12                  56.35(b)              56.56(a)
56.17(b)               56.35(c)              56.57
56.18                  56.35(d)              56.58
56.21(a)               56.37                 56.60
56.21(b)               56.52(a)(1)           56.62
56.21(c)               56.52(a)(4)           56.76(f)(7)
56.23                  56.52(b)(1)           56.76(h)
56.24                  ....................  ...........................
 

    11. The undesignated center heading preceding Sec.  56.10 is 
revised to read as follows:

Licensed and Authorized Graders

    12. Section 56.10 is revised to read as follows:


Sec.  56.10  Who may be licensed and authorized.

    (a) Any person who is a Federal or State employee, the employee of 
a local jurisdiction, or the employee of a cooperating agency 
possessing proper qualifications as determined by an examination for 
competency and who is to perform grading service under this part, may 
be licensed by the Secretary as a grader.
    (b) All licenses issued by the Secretary shall be countersigned by 
the officer in charge of the shell egg grading service of the AMS or 
any other designated officer.
    (c) Any person who is employed at any official plant and possesses 
proper qualifications, as determined by the Administrator, may be 
authorized to candle and grade eggs on the basis of the ``U.S. 
Standards for Quality of Individual Shell Eggs,'' with respect to eggs 
purchased from producers or eggs to be packaged with official 
identification. In addition, such authorization may be granted to any 
qualified person to act as a ``quality assurance inspector'' in the 
packaging and grade labeling of products. No person to whom such 
authorization is granted shall have authority to issue any grading 
certificates, grading memoranda, or other official documents; and all 
eggs which are graded by any such person shall thereafter be check 
graded by a grader.
    13. Section 56.11 is revised to read as follows:


Sec.  56.11  Financial interest of graders.

    Graders shall not render service on any product in which they are 
financially interested.
    14. Section 56.12 is revised to read as follows:


Sec.  56.12  Suspension of license; revocation.

    Pending final action by the Secretary, any person authorized to 
countersign a license to perform grading service may, whenever such 
action is deemed necessary to assure that any grading service is 
properly performed, suspend any license to perform grading service 
issued pursuant to this part, by giving notice of such suspension or 
revocation to the respective licensee, accompanied by a statement of 
the reasons therefor. Within 7 days after the receipt of the aforesaid 
notice and statement of reasons, the licensee may file an appeal in 
writing with the Secretary, supported by any argument or evidence that 
the licensee may wish to offer as to why their license should not be 
further suspended or revoked. After the expiration of the aforesaid 7-
day period and consideration of such argument and evidence, the 
Secretary will take such action as deemed appropriate with respect to 
such suspension or revocation. When no appeal is filed within the 
prescribed 7 days, the license to perform grading service is revoked.
    15. Section 56.13 is revised to read as follows:


Sec.  56.13  Cancellation of license.

    Upon termination of the services of a licensed grader, the licensee 
shall surrender their license immediately for cancellation.


Sec.  56.14  [Amended]

    16. Section 56.14 is amended by removing the word ``he'' and adding 
the words ``the licensee'' in its place.
    17. Section 56.15 is revised to read as follows:


Sec.  56.15  Political activity.

    Federal graders may participate in certain political activities, 
including management of and participation in political campaigns, in 
accordance with AMS policy. Graders are subject to these rules while 
they are on leave with or without pay, including furlough; however the 
rules do not apply to cooperative employees not under Federal 
supervision and intermittent employees on the days they perform no 
service. Willful violations of the political activity rules will 
constitute grounds for removal from the AMS.
    18. Section 56.16 is revised to read as follows:


Sec.  56.16  Identification.

    Each grader shall have in their possession at all times, and 
present upon request while on duty, the means of identification 
furnished to them by the Department.
    19. A new Sec.  56.19 is added to read as follows:


Sec.  56.19  Prerequisites to grading.

    Grading of products shall be rendered pursuant to the regulations 
in this part and under such conditions and in accordance with such 
methods as may be prescribed or approved by the Administrator.
    20. The undesignated center heading preceding Sec.  56.20 is 
revised to read as follows:

[[Page 2171]]

Application for Grading Service

* * * * *
    21. Section 56.20 is revised to read as follows:


Sec.  56.20  Who may obtain grading service.

    An application for grading service may be made by any interested 
person, including, but not being limited to any authorized agent of the 
United States, any State, county, municipality, or common carrier.
    22. Section 56.22 is revised to read as follows:


Sec.  56.22  Filing of application.

    An application for grading service shall be regarded as filed only 
when made pursuant to the regulations in this part.
    23. In Sec.  56.24, the section heading and paragraph (e) are 
revised to read as follows:


Sec.  56.24  Rejection of application.

    * * * (e) whenever the applicant, after an initial survey has been 
made in accordance with the regulations, fails to bring the grading 
facilities and equipment into compliance with the regulations within a 
reasonable period of time;
* * * * *
    24. The section heading for Sec.  56.25 is revised and the word 
``Service'' is removed and the word ``AMS'' is added in its place to 
read as follows:


Sec.  56.25  Withdrawal of application.

* * * * *


Sec.  56.27  [Amended]

    25. In Sec.  56.27, immediately following the word ``practicable'' 
the words ``and subject to the availability of qualified graders'' are 
added.
    26. Section 56.29 is added to read as follows:


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

    (a) Any plant approval given pursuant to the regulations in this 
part may be suspended by the Administrator for:
    (1) Failure to maintain grading facilities and equipment in a 
satisfactory state of repair, sanitation, or cleanliness;
    (2) The use of operating procedures which are not in accordance 
with the regulations in this part; or
    (3) Alterations of grading facilities or equipment which have not 
been approved in accordance with the regulations in this part.
    (b) Whenever it is feasible to do so, written notice in advance of 
a suspension shall be given to the person concerned and shall specify a 
reasonable period of time in which corrective action must be taken. If 
advance written notice is not given, the suspension action shall be 
promptly confirmed in writing and the reasons therefor shall be stated, 
except in instances where the person has already corrected the 
deficiency. Such service, after appropriate corrective action is taken, 
will be restored immediately, or as soon thereafter as a grader can be 
made available. During such period of suspension, grading service shall 
not be rendered. However, the other provisions of the regulations 
pertaining to providing grading service on a resident basis will remain 
in effect unless such service is terminated in accordance with the 
provisions of this part.
    (c) If the grading facilities or methods of operation are not 
brought into compliance within a reasonable period of time as specified 
by the Administrator, the Administrator shall initiate withdrawal 
action pursuant to the Rules of Practice Governing Formal Adjudicatory 
Proceedings (7 CFR part 1, subpart H), and the operator shall be 
afforded an opportunity for an oral hearing upon written request in 
accordance with such Rules of Practice, with respect to the merits or 
validity of the withdrawal action, but any suspension shall continue in 
effect pending the outcome of such hearing unless otherwise ordered by 
the Administrator. Upon withdrawal of grading service in an official 
plant, the plant approval shall also become terminated and all labels, 
seals, tags, or packaging material bearing official identification 
shall, under the supervision of a person designated by the AMS, either 
be destroyed or the official identification completely obliterated or 
sealed in a manner acceptable to the AMS.
    (d) In any case where grading service is withdrawn under this 
section, the person concerned may thereafter apply for grading service 
as provided in Sec. Sec.  56.20 through 56.29 of these regulations.
    27. The undesignated center heading preceding Sec.  56.30 is 
removed.


Sec.  56.30  [Redesignated as Sec.  56.33]

    28. Section 56.30 is redesignated as Sec.  56.33.
    29. A new Sec.  56.30 is added to read as follows.


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

    Any person desiring to process and pack products in a plant under 
grading service must receive approval of such plant and facilities as 
an official plant prior to the rendition of such service. An 
application for grading service to be rendered in an official plant 
shall be approved according to the following procedure: When 
application has been filed for grading service, as aforesaid, the State 
supervisor or the supervisor's assistant shall examine the grading 
office, facilities, and equipment and specify any facility or equipment 
modifications needed for the service. When the plant survey has been 
completed and approved in accordance with the regulations in this part, 
service may be installed.
    30. The undesignated center heading preceding Sec.  56.31 is 
revised to read as follows:

Reports

* * * * *


Sec.  56.31  [Redesignated as Sec.  56.68]

    31. Section 56.31 is redesignated as Sec.  56.68.
    32. A new Sec.  56.31 is added to read as follows:


Sec.  56.31.  Report of grading work.

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


Sec.  56.32  [Redesignated as Sec.  56.38]

    33. Section 56.32 is redesignated as Sec.  56.38.
    34. A new Sec.  56.32 is added to read as follows:


Sec.  56.32  Information to be furnished to graders.

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


Sec.  56.35  [Amended]

    35. In Sec.  56.35, paragraph (c) is amended by removing the words 
``with the labeling on'' and adding the words ``on the labeling of'' in 
their place.
    36. The section heading for Sec.  56.36 is revised to read as 
follows:


Sec.  56.36  Form of grademark and information required.

* * * * *
    37. The section heading for Sec.  56.45 is revised to read as 
follows:


Sec.  56.45  Payment of fees and charges.

* * * * *


Sec.  56.45  [Amended]

    38. In Sec.  56.45, paragraph (b) is amended by removing the word 
``Service'' and adding the word ``AMS'' in its place.

[[Page 2172]]

Sec.  56.46  [Amended]

    39. In Sec.  56.46, paragraph (c) the word ``Supervisor'' is 
revised to read ``supervisor.''


Sec.  56.49  [Amended]

    40. In Sec.  56.49, the first sentence is amended by removing the 
word ``service'' the first time it appears and adding the word ``AMS'' 
in its place.
    41. The section heading for Sec.  56.52 is revised to read as 
follows:


Sec.  56.52  Charges for continuous grading performed on a resident 
basis.

* * * * *


Sec.  56.52  [Amended]

    42. Section 56.52 is amended by removing the words ``Agricultural 
Marketing Service, U.S. Department of Agriculture (hereinafter referred 
to as ``the AMS'')'' in paragraph (a) and adding the word ``AMS'' in 
their place.


Sec.  56.54  [Amended]

    43. In Sec.  56.54, paragraph (a) is amended by removing the words 
``Agricultural Marketing Service, U.S. Department of Agriculture 
(hereinafter referred to as ``AMS'')'' and adding the word ``AMS'' in 
its place and removing the words ``part 55 or'' in paragraph (b)(5).
    44. Section 56.55 is revised to read as follows:


Sec.  56.55  Forms.

    Grading certificates and sampling report forms (including appeal 
grading certificates and regrading certificates) shall be issued on 
forms approved by the Administrator.
    45. The section heading for Sec.  56.56 is revised to read as 
follows:


Sec.  56.56  Issuance.

* * * * *


Sec.  56.56  [Amended]

    46. Section 56.56 is amended by:
    A. Revising the word ``Service'' to read ``AMS'' in paragraph (a) 
the first sentence.
    B. Revising the word ``him'' to read ``such grader'' in paragraph 
(a) second sentence.
    C. Revising the word ``his'' to read ``their'' and the word ``him'' 
to read ``such grader'' in paragraph (b) first sentence.
    D. Revising the words ``National Supervisor'' to read ``national 
supervisor'' in paragraph (b) second sentence.
    E. Revising the words ``both his own'' to read ``the applicant's 
designee'' in paragraph (b) last sentence.
    47. The section heading for Sec.  56.57 is revised to read as 
follows:


Sec.  56.57  Disposition.

* * * * *


Sec.  56.57  [Amended]

    48. In Sec.  56.57, the words ``person designated by him'' are 
removed and the words ``the applicant's designee'' are added in their 
place.


Sec.  56.61  [Amended]

    49. In Sec.  56.61, paragraph (b) is amended by adding the words 
``determination of the'' following the words ``with the'' and adding 
the words ``with the regional director'' following the word ``request''
    50. Sec.  56.64, paragraph (a) is revised to read as follows:


Sec.  56.64  Who shall perform the appeal.

    (a) An appeal grading or review of a decision requested under Sec.  
56.61(a) shall be made by the grader's immediate supervisor, or by one 
or more licensed graders assigned by the immediate supervisor.
* * * * *
    51. A new undesignated center heading is added following Sec.  
56.66 to read as follows:

Denial of Service


Sec.  56.66  [Amended]

    52. In Sec.  56.66, the word ``grade mark'' is revised to read 
``grademark''
    53. Newly designated Sec.  56.68 is revised to read as follows:


Sec.  56.68  Debarment.

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


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

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


Sec.  56.70  Use of facsimile forms.

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


Sec.  56.71  Willful violation of the regulations.

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


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

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


Sec.  56.73  Misleading labeling.

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


Sec.  56.74  Miscellaneous.

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

PART 70--VOLUNTARY GRADING OF POULTRY PRODUCTS AND RABBIT PRODUCT

    55. The authority citation for part 70 continues to read as 
follows:

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

    56. The undesignated center heading preceding Sec.  70.1 is revised 
to read as follows:

Definitions


Sec.  70.1  [Amended]

    57. Section 70.1 is amended by:
    A. Revising the section heading and the introductory text.

[[Page 2173]]

    B. Amending Acceptable by removing the words ``and acceptable to 
the Service'' and adding the words ``by the AMS'' in their place.
    C. Amending Administrator by removing the words ``Agricultural 
Marketing Service of the Department'' and the word ``AMS'' in their 
place and removing the word ``his'' and adding the words ``the 
Administrator's'' in its place.
    D. Adding Agricultural Marketing Service.
    E. Revising Chief of the Grading Branch.
    F. Amending Class by adding the words ``or species'' after the word 
``kind''.
    G. Amending Department by adding the word ``(USDA)'' after the word 
``Agriculture''.
    H. Amending Grading certificate by removing the words ``pursuant to 
the regulations'' and adding the words ``pursuant to the Act and the 
regulations''.
    I. Amending Holiday or Legal Holiday by removing the words ``Legal 
Holiday,'' and adding the words ``legal holiday'' in their place and by 
removing the words ``shall mean'' and adding the word ``means'' in 
their place.
    J. Adding Interested party.
    K. Revising National supervisor;
    L. Adding Sampling;
    M. Amending Secretary by removing the word ``his'' and adding the 
words ``the Secretary's'' in its place.
    N. Removing Service.
    O. Adding United States Classes, Standards, and Grades for Poultry.
    P. Adding United States Classes, Standards, and Grades for Rabbits.
    The revisions and additions read as follows:


Sec.  70.1  Meaning of words and terms defined.

    For the purpose of the regulations in this part, words in the 
singular shall be deemed to import the plural and vice versa, as the 
case may demand. Unless the context otherwise requires, the terms shall 
have the following meaning:
* * * * *
    Agricultural Marketing Service or AMS means the Agricultural 
Marketing Service of the Department.
* * * * *
    Chief of the Grading Branch means Chief of the Grading Branch, 
Poultry Programs, AMS.
* * * * *
    Interested party means any person financially interested in a 
transaction involving any grading service.
* * * * *
    National supervisor means the officer in charge of the poultry 
grading service of the AMS, and other employees of the Department as 
may be designated by the national supervisor.
* * * * *
    Sampling means the act of taking samples of any product for grading 
or certification.
* * * * *
    United States Classes, Standards, and Grades for Poultry (AMS 
70.200 et seq.) means the official U.S. classes, standards, and grades 
for poultry that are maintained by and available from Poultry Programs, 
AMS.
    United States Classes, Standards, and Grades for Rabbits (AMS 
70.300 et seq.) means the official U.S. classes, standards, and grades 
for rabbits that are maintained by and available from Poultry Programs, 
AMS.


Sec.  70.2  [Amended]

    58. In Sec.  70.2, paragraph (c) is amended by revising the word 
``Grade'' to read ``grade''.
    59. An undesignated center heading is added preceding Sec.  70.3 to 
read as follows:

General

    60. Section 70.3 is revised to read as follows:


Sec.  70.3  Administration.

    The Administrator shall perform, for and under the supervision of 
the Secretary, such duties as the Secretary may require in the 
enforcement or administration of the provisions of the act and the 
regulations in this part. The Administrator is authorized to waive for 
limited periods any particular provisions of the regulations in this 
part to permit experimentation so that new procedures, equipment, 
grading, and processing, techniques may be tested to facilitate 
definite improvements and at the same time to determine full compliance 
with the spirit and intent of the regulations in this part. The AMS and 
its officers and employees shall not be liable in damages through acts 
of commission or omission in the administration of this part.
    61. Section 70.5 is revised to read as follows:


Sec.  70.5  Nondiscrimination.

    The conduct of all services and the licensing of graders under 
these regulations shall be accomplished without regard to race, color, 
national origin, religion, age, sex, disability, political beliefs, 
sexual orientation, or marital or family status.
    62. Section 70.6 is revised to read as follows:


Sec.  70.6  OMB control number.

    (a) Purpose. The collecting of information requirements in this 
part have been approved by the Office of Management and Budget (OMB) 
and assigned OMB control number 0581-0127.
    (b) Display.
    Sections where information collection requirements are identified 
and described:

 
 
 
70.3                   70.36                 70.76(b)(3)(ii)
70.4(a)                70.38(c)              70.77(a)(1)
70.5                   70.38(d)              70.77(a)(4)
70.18                  70.39                 70.77(b)(1)
70.20(a)               70.40                 70.77(b)(3)(ii)
70.22                  70.50                 70.91(a)
70.31(a)               70.61                 70.91(c)
70.31(b)               70.62                 70.92
70.34                  70.73                 70.101
70.35                  70.76(b)(1)           70.102
 

    63. A new Sec.  70.8 is added to read as follows:


Sec.  70.8  Other applicable regulations.

    Compliance with the regulations in this part shall not excuse 
failure to comply with any other Federal, or any State, or municipal 
applicable laws or regulations.
    64. The undesignated center heading preceding Sec.  70.10 is 
removed.
    65. The section heading for Sec.  70.10 is revised to read as 
follows:


Sec.  70.10  Basis of grading service.

* * * * *
    66. Section 70.10 is amended by:
    A. Designating the undesignated text as paragraph (a).
    B. Revising the words ``classes'', ``standards'' and ``grades'' to 
read ``Classes'', ``Standards'' and ``Grades'', respectfully.
    C. Removing the words ``as contained in subparts B and C of this 
part'' and adding the words ``for Poultry and Rabbits'' in their place.
    67. Section 70.13 is revised to read as follows:


Sec.  70.13  Ready-to-cook poultry and rabbits and specified poultry 
food products.

    (a) Ready-to-cook poultry or rabbit carcasses or parts or specified 
poultry food products may be graded only if they have been inspected 
and certified by the poultry inspection service of the Department, or 
inspected and passed by any other inspection system which is acceptable 
to the Department.
    (b) Only when ready-to-cook poultry carcasses, parts, poultry food 
products, including those used in preparing raw poultry food products, 
have been graded on an individual basis by a grader or by an authorized 
person pursuant to Sec.  70.20(c) and thereafter checkgraded by a 
grader, and when poultry food products have been prepared under the

[[Page 2174]]

supervision of a grader, when necessary the individual container, 
carcass, part, or poultry food product be identified with the 
appropriate official letter grademark. Checkgrading shall be 
accomplished in accordance with a statistical sampling plan prescribed 
by the Administrator. Grading with respect to quality factors for 
freezing defects and appearance of the finished products may be done on 
a sample basis in accordance with a plan prescribed by the 
Administrator.
    (c) Only when ready-to-cook rabbit carcasses or parts have been 
graded on an individual basis by a grader or by an authorized person 
pursuant to Sec.  70.20(c) and thereafter checkgraded by a grader, may 
the container or the individual carcass or part be identified with the 
appropriate official letter grademark. Checkgrading shall be 
accomplished in accordance with a statistical sampling plan prescribed 
by the Administrator. Grading with respect to quality factors for 
freezing defects and appearance of the finished products may be done on 
a sample basis in accordance with a plan prescribed by the 
Administrator.


Sec.  70.14  [Amended]

    68. In Sec.  70.14, the words ``U.S. Department of Agriculture'' 
are removed and the word ``Department'' is added in their place.
    69. Section 70.15 is revised to read as follows:


Sec.  70.15  Equipment and facilities for graders.

    Equipment and facilities to be furnished by the applicant for use 
of graders in performing service on a resident basis shall include, but 
not be limited to, the following:
    (a)(1) An accurate metal stem thermometer.
    (2) A drill with a steel bit to drill holes in frozen product for 
inserting the metal thermometer stem to determine temperature.
    (3) Scales graduated in tenths of a pound or less for weighing 
carcasses, parts, or products individually in containers up to 100 
pounds, and test weights for such scales.
    (4) Scales graduated in one-pound graduation or less for weighing 
bulk containers of poultry and test weights for such scales.
    (b) Furnished office space, a desk and file or storage cabinets 
(equipped with a satisfactory locking device), suitable for the 
security and storage of official supplies, and other facilities and 
equipment as may otherwise be required. Such space and equipment must 
meet the approval of the national supervisor.
    70. The undesignated center heading preceding Sec.  70.20 is 
revised to read as follows:

Licensed and Authorized Graders

    71. The section heading for Sec.  70.20 is revised to read as 
follows:


Sec.  70.20  Who may be licensed and authorized.

* * * * *
    72. In Sec.  70.20, ``paragraph (b) the words ``Agricultural 
Marketing Service'' are removed and the word ``AMS'' is added in their 
place.


Sec.  70.21  [Amended]

    73. Section 70.21 is amended by:
    A. Removing the words ``he deems such action'' and adding the words 
``such action is deemed'' in their place.
    B. Removing the words ``he may wish to offer as to why his'' and 
adding the words ``the licensee may wish to offer as to why their'' in 
their place.
    C. Removing the words ``he deems such action'' and adding the words 
``such action is deemed'' in their place.
    74. Section 70.22 is revised to read as follows:


Sec.  70.22  Surrender of license.

    Each license which is suspended or revoked shall immediately be 
surrendered by the licensee to the office of grading servicing the area 
in which the license is located.
    75. Section 70.23 is revised to read as follows:


Sec.  70.23  Identification.

    Each grader shall have in their possession at all times, and 
present upon request while on duty, the means of identification 
furnished to them by the Department.
    76. Section 70.24 is revised to read as follows:


Sec.  70.24  Financial interest of graders.

    Graders shall not render service on any product in which they are 
financially interested.
    77. Section 70.25 is revised to read as follows:


Sec.  70.25  Political activity.

    Federal graders may participate in certain political activities, 
including management and participation in political campaigns in 
accordance with AMS policy. Graders are subject to these rules while 
they are on leave with or without pay, including furlough; however, the 
rules do not apply to cooperative employees not under Federal 
supervision and intermittent employees on the days they perform no 
service. Willful violations of the political activity rules will 
constitute grounds for removal from the AMS.
    78. A new Sec.  70.26 is added to read as follows:


Sec.  70.26  Cancellation of license.

    Upon termination of the services of a licensed grader, the licensee 
shall surrender their license immediately for cancellation.
    79. Section 70.30 is revised to read as follows:


Sec.  70.30  Who may obtain grading service.

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


Sec.  70.31  [Amended]

    80. In Sec.  70.31, paragraph (a) is amended by removing the words 
``basis may'' and the words ``basis shall'' in their place and removing 
the word ``telegraph'' and adding the words ``any electronic means'' in 
its place.


Sec.  70.34  [Amended]

    81. Section 70.34 is amended by removing the word ``his'' and 
adding the words ``the supervisor's'' in its place.


Sec.  70.35  [Amended]

    82. Section 70.35 is amended by:
    A. Removing the word ``or'' in paragraph (e).
    B. Adding new paragraphs (g) and (h) to read as follows:


Sec.  70.35  Rejection of application.

    * * * (g) 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 (h) when it appears to the Administrator that 
prior commitments of the Department necessitate rejection of the 
application.
* * * * *
    83. In Sec.  70.38, paragraph (c) is revised to read as follows:


Sec.  70.38  Suspension or withdrawal of plant approval for correctable 
cause.

* * * * *
    (c) If the grading facilities or methods of operation are not 
brought into compliance within a reasonable period of time as specified 
by the Administrator, the Administrator shall initiate withdrawal 
action pursuant to the Rules of Practice Governing Formal Adjudicatory 
Proceedings and Grading Service (7 CFR part 1, subpart H), and the 
operator shall be afforded an opportunity for an oral hearing upon the 
operator's written request in accordance with such Rules of Practice, 
with respect to the merits or validity of the withdrawal action, but 
any suspension

[[Page 2175]]

shall continue in effect pending the outcome of such hearing unless 
otherwise ordered by the Administrator. Upon withdrawal of grading 
service in an official plan, the plant approval shall also become 
terminated, and all labels, seals, tags, or packaging material bearing 
official identification shall, under the supervision of a person 
designated by the AMS, either be destroyed, or the official 
identification completely obliterated, or sealed in a manner acceptable 
to the AMS.
* * * * *
    84. A new Sec.  70.39 is added to read as follows:


Sec.  70.39  Form of application.

    Each application for grading or sampling a specified lot of any 
product shall include such information as may be required by the 
Administrator in regard to the product and the premises where such 
product is to be graded or sampled.
    85. Section 70.40 is revised to read as follows:


Sec.  70.40  Debarment.

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


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

* * * * *


Sec.  70.41  [Amended]

    87. In Sec.  70.41, paragraph (b) is amended by adding the words 
``sampling or'' after the word ``for'' and adding the word ``or'' after 
the word ``product''.


Sec.  70.44  [Amended]

    88. In Sec.  70.44, the word ``his'' is revised to read ``their''.
    89. A new Sec.  70.56 is added to read as follows:


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

    (a) Poultry and rabbit products to be identified with the 
grademarks illustrated in Sec.  70.51 must be individually graded by a 
grader or by authorized personnel pursuant to Sec.  70.20 and 
thereafter check graded by a grader.
    (b) Poultry and rabbit products not graded in accordance with 
paragraph (a) of this section may be officially graded on a sample 
basis and the shipping containers may be identified with grademarks 
which contain the words ``Sample Graded'' and which are approved by the 
Administrator.
    90. Section 70.60 is revised to read as follows:


Sec.  70.60  Report of grading work.

    Reports of grading work performed within official plants shall be 
forwarded to the Administrator by the grader in a manner as may be 
specified by the Administrator.
    91. Section 70.62 is revised to read as follows:


Sec.  70.62  Report of violations.

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


Sec.  70.70  [Amended]

    92. In Sec.  70.70, paragraph (b) is amended by removing the words 
``Agricultural Marketing Service'' and adding the word ``AMS'' in their 
place.


Sec.  70.71  [Amended]

    93. In Sec.  70.71, the word ``Supervisor'' is revised to read 
``supervisor'' in paragraph (c).
    94. The section heading for Sec.  70.72 is revised to read as 
follows:


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

* * * * *


Sec.  70.72  [Amended]

    95. In Sec.  70.72, the words ``or examination'' are removed each 
time they appear, and removing the words ``will be borne'' and adding 
the words ``shall be borne'' in their place.


Sec.  70.76  [Amended]

    96. In Sec.  70.76, paragraph (a) is amended by removing the words 
``the Agricultural Marketing Service, U.S. Department of Agriculture 
(hereinafter referred to as ``AMS'')'' and adding the word ``AMS'' in 
their place.


Sec.  70.77  [Amended]

    97. In Sec.  70.77, paragraph (a) is amended by removing the words 
``Agricultural Marketing Service, U.S. Department of Agriculture 
(hereinafter referred to as ``AMS'')'' and adding the word ``AMS'' in 
their place.
    98. The undesignated center heading preceding Sec.  70.80 is 
removed.


Sec.  70.80  [Amended]

    99. The section heading for Sec.  70.80 is removed and the 
undesignated text is designated as Sec.  70.10, paragraph (b).


Sec.  70.81  [Removed]

    100. Section 70.81 is removed.


Sec.  70. 90  [Amended]

    101. Section 70.90 is amended by adding the words ``and sampling 
report forms'' after the words ``Grading certificates''.


Sec.  70.92  [Removed]

    102. Section 70.92 is removed.
    103. The section heading for Sec.  70.91 is revised to read as 
follows:


Sec.  70.91  Issuance.

* * * * *


Sec.  70.91  [Amended]

    104. In Sec.  70.91:
    A. Paragraph (a) is amended by removing the word ``him'' and adding 
the words ``such grader'' in its place.
    B. Paragraph (b) is revised.
    C. Paragraph (c) is redesignated as Sec.  70.92.
    The revision reads as follows:


Sec.  70.91  Issuance.

* * * * *
    (b) Other than resident grading. Each grader shall, in person or by 
an authorized agent, issue a grading certificate covering each product 
graded by such grader. A grader's name may be signed on a grading 
certificate by a person other than the grader if such person has been 
designated as the authorized agent of such grader by the national 
supervisor: Provided, That the certificate is prepared from an official 
memorandum of grading signed by the grader: And provided further, That 
a notarized power of attorney authorizing such signature has been 
issued to such person by the grader and is on file in the office of 
grading. In such case, the authorized agent shall sign their own name 
and the grader's name, e.g., ``John Doe by Richard Roe.''
* * * * *


Sec.  70.92  [Amended]

    105. Newly designated Sec.  70.92 is amended by adding a new 
section heading titled ``Disposition.'' and removing the paragraph 
designation (c).
    106. Section 70.93 is revised to read as follows:


Sec.  70.93  Advance information.

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

[[Page 2176]]

the applicant's designee, at the applicant's expense.


Sec.  70.104  [Amended]

    107. In Sec.  70.104, paragraph (a) is amended by removing the 
words ``a licensed grader'' and adding the words ``one or more licensed 
graders'' in their place and removing the words ``other than the grader 
whose grading or decision is being appealed''.
    108. In Sec.  70.105, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  70.105  Procedures for appeal gradings.

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

    Dated: January 9, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E6-258 Filed 1-12-06; 8:45 am]
BILLING CODE 3410-02-P