[Federal Register Volume 81, Number 180 (Friday, September 16, 2016)]
[Rules and Regulations]
[Pages 63675-63676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22246]



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 Rules and Regulations
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  Federal Register / Vol. 81, No. 180 / Friday, September 16, 2016 / 
Rules and Regulations  

[[Page 63675]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 56

[Doc. No. AMS-LPS-15-0044]


Amendment to the Definition of ``Condition'' and Prerequisite 
Requirement for Shell Eggs Eligible for Grading and Certification 
Stated in the Regulations Governing the Voluntary Grading of Shell Eggs

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Agricultural Marketing Service (AMS) will amend the 
Regulations Governing the Voluntary Grading of Shell Eggs to clarify 
the definition of ``condition'' and revise the prerequisite requirement 
for shell eggs eligible for voluntary USDA grading and certification.

DATES: This final rule is effective September 16, 2016.

FOR FURTHER INFORMATION CONTACT: David Bowden, Chief, Standardization 
Branch, Quality Assessment Division; Livestock, Poultry, and Seed 
Program, Agricultural Marketing Service, U.S. Department of 
Agriculture; 1400 Independence Avenue SW.; Room 3932-S, STOP 0258; 
Washington, DC 20250, by facsimile to (202) 690-2746; or via email to 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Section 203(c) of the Agricultural Marketing Act of 1946 (AMA) (7 
U.S.C. 1621-1627) directs and authorizes the Secretary of Agriculture 
``to develop and improve standards of quality, condition, quantity, 
grade and packaging, and recommend and demonstrate such standards in 
order to encourage uniformity and consistency in commercial 
practices.'' The U.S. Department of Agriculture (USDA) is committed to 
carrying out this authority in a manner that facilitates the marketing 
of agricultural products while maintaining the integrity of the USDA 
grademark. Shell egg grading is a voluntary program provided under AMA 
and offered on a fee-for-service basis. It is designed to assist in the 
orderly marketing of shell eggs by providing the official certification 
of egg quality, size, condition, and other factors.
    This amendment is in accordance with recommendations stated in the 
2012 Audit Report, USDA Controls Over Shell Egg Inspections, issued by 
the USDA Office of Inspector General (OIG). In that report, OIG stated 
the regulatory definition of ``condition'' for shell eggs was confusing 
as it relates to quality and food safety. OIG also stated the integrity 
of the USDA grademark for quality was not adequately protected from 
adulterated shell eggs.
    AMS will revise the definition of ``condition'' to remove any food 
safety implications resulting from the use of the term 
``wholesomeness'' and clarify that AMS' role in grading and 
certification of shell eggs is solely for a quality determination. The 
revised definition will remove the term ``wholesomeness'' and state 
that ``condition'' is a characteristic detected by a sensory 
examination. The presence of microorganisms, specifically Salmonella 
Enteritidis (SE) or other pathogens, in the content of an egg cannot be 
detected during such an examination. The Food and Drug Administration 
(FDA) and the USDA Food Safety and Inspection Service not AMS, maintain 
jurisdiction for food safety related issues associated with shell eggs.
    AMS will also revise the prerequisite requirement of shell eggs 
eligible for USDA grading and certification. The revision will prohibit 
the use of SE-adulterated or recalled shell eggs from being presented 
to USDA for grading and certification. This action protects the 
integrity of the USDA grademark for quality and is consistent with 
current AMS policy implemented subsequent to the referenced 2012 OIG 
audit.

Comments

    A proposed rule to amend the definition of ``condition'' and 
prerequisite requirements for shell eggs eligible for grading and 
certification stated in the Regulations Governing the Voluntary Grading 
of Shell Eggs was published in the Federal Register (81 FR 23188) on 
April 20, 2016. Comments on the proposed rule were solicited from 
interested parties until June 20, 2016. One comment was received from a 
representative of an egg farmer's organization. The comment received 
was in support of amending the definition of ``condition'' and the 
prerequisite requirements for shell eggs eligible for grading and 
certification. No changes were made to the proposed rule based on the 
comment received.

Executive Order 12866, 13175 and 13563

    USDA is issuing this final rule in conformance with Executive 
Orders 12866, 13175 and 13563. This rule has been reviewed under 
Executive Orders 12866, 13175 and 13563. The rule has determined to be 
not significant for the purposes of Executive Order 12866 and, 
therefore, has not been reviewed by the Office of Management and 
Budget. The rule does not promote policies with tribal implications. 
Consistent with the requirements of Executive Order 13563, the public 
has had the opportunity to review and comment on the rule; and, the 
rule also incorporates existing AMS policy on shell eggs eligible for 
USDA grading and certification.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-
602, AMS has performed an initial regulatory flexibility analysis 
regarding economic effects of this final rule on small entities.
    AMS is amending the Regulations Governing the Voluntary Grading of 
Shell Eggs, 7 CFR part 56, to revise the definition of the term 
``condition'' to clarify that it relates solely to a quality 
determination and not food safety. The current regulation definition 
for ``condition'' includes the term ``wholesomeness'' which denotes a 
food safety connotation. AMS' role in grading and certification of 
shell eggs is for a quality determination only. By removing any food 
safety related terms from the current definition of ``condition,'' AMS 
will remove confusion or misunderstanding over use of the term.

[[Page 63676]]

    Since this change is a technical correction and editorial in 
nature, and will not result in a change to the way service is provided 
to our customers, AMS has determined it will not have a financial 
impact on small entities that utilize our services.
    AMS will also revise the prerequisite requirement of shell eggs 
eligible for USDA grading and certification. The revision will prohibit 
the use of SE-adulterated shell eggs or recalled shell eggs from being 
presented to USDA for grading and certification.
    The FDA prohibits the use of SE-adulterated shell eggs from being 
sold to consumers. When shell eggs are suspected of being adulterated 
with SE, the packing facility is obligated to test the shell eggs to 
assure only safe product is distributed to consumers. If shell eggs are 
found to be adulterated with SE, the FDA will issue a request to the 
packing facility to voluntarily recall the product, or will exercise 
its mandatory recall authority to return the product to the origin 
facility. The product must either be destroyed or reconditioned under 
FDA supervision.
    Since SE-adulterated shell eggs or shell eggs that have been 
recalled are no longer eligible for distribution to consumers, but are 
either destroyed or reconditioned under the direction of the FDA, 
changing the AMS regulation will not have an impact on small entities 
since those shell eggs are deemed unfit for human consumption.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. When this final rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with the rule will 
be preempted; (2) no retroactive effect will be given to this rule; and 
(3) administrative proceedings will not be required before parties may 
file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), OMB has approved the information collection and 
recordkeeping requirements included in this final rule, and there are 
no new requirements. The assigned OMB control number is 0581-0128, as 
approved on July 8, 2014.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act, which requires government agencies in general to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible.

E-Government Act

    AMS is committed to complying with the E-Government Act of 2002 to 
promote the use of the Internet and other information technologies to 
provide increased opportunities for citizen access to government 
information and services, and for other purposes.

List of Subjects in 7 CFR Part 56

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

    For the reasons set forth in the preamble, 7 CFR part 56 is amended 
as follows:

PART 56--VOLUNTARY GRADING OF SHELL EGGS

0
1. The authority citation for 7 CFR part 56 continues to read as 
follows:

    Authority:  7 U.S.C. 1621 et seq.


0
2. Amend Sec.  56.1 by revising the definition of Condition to read as 
follows:


Sec.  56.1  Meaning of words and terms defined.

* * * * *
    Condition means any characteristic detected by sensory examination 
(visual, touch, or odor), including the state of preservation, 
cleanliness, soundness, or fitness for human food that affects the 
marketing of the product.
* * * * *

0
 3. Amend Sec.  56.40 by revising paragraphs (c)(2) and (3) and adding 
paragraphs (c)(4) and (5) to read as follows:


Sec.  56.40  Grading requirements of shell eggs identified with 
grademarks.

* * * * *
    (c) * * *
    (2) Not possess any undesirable odors or flavors;
    (3) Not have previously been shipped for retail sale;
    (4) Not originate from a layer house environment determined 
positive for the presence of Salmonella Enteritidis (SE), unless the 
eggs from the layer house have been sampled and have tested negative 
for the presence of SE in the eggs; and
    (5) Not originate from eggs testing positive for SE, or not have 
been subject to a product recall.

    Dated: September 12, 2016.
Elanor Starmer,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2016-22246 Filed 9-15-16; 8:45 am]
 BILLING CODE 3410-02-P