[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Proposed Rules]
[Pages 55426-55428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17052]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 58

[Doc. No. AMS-DA-22-0064]
RIN 0581-AE20


Plant Records To Include Grade Label Butterfat Testing

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This document invites comments on a proposed amendment to the 
plant records requirement for the Agricultural Marketing Service (AMS) 
Dairy Grading and Inspection program. The proposal would allow 
butterfat tests to be performed at an in-house or approved third party 
laboratory and add a requirement for plants to maintain and make such 
records available for examination by a United States Department of 
Agriculture (USDA) inspector. This amendment would increase efficiency 
by conforming to current industry practice.

DATES: Comments on proposed amendments must be received by October 16, 
2023 to be assured of consideration. Comments on the proposed 
information collection and the associated burden must also be received 
by October 16, 2023.

ADDRESSES: Interested persons are invited to submit comments on this 
proposed rule. Comments may be submitted through the Federal e-
rulemaking portal at https://www.regulations.gov and should reference 
the document number, date, and page number of this issue of the Federal 
Register. Written comments may be submitted via mail to USDA/AMS/Dairy 
Programs, Stop 0225-Room 2530, 1400 Independence Avenue SW, Washington, 
DC 20250-0225. All comments submitted in response to this proposed rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting comments will be made public on the internet at the 
address provided above.

FOR FURTHER INFORMATION CONTACT: Matthew M. Siedschlaw, Grading and 
Standardization Division, Dairy Program, Agricultural Marketing 
Service, U.S. Department of Agriculture, Room 2756--South Building, 
1400 Independence Avenue SW, Washington, DC 20250-0230: Telephone: 
(202) 937-4901; Email: [email protected].

SUPPLEMENTARY INFORMATION: The Secretary of Agriculture is authorized 
by the Agricultural Marketing Act (AMA) of 1946, as amended (7 U.S.C. 
1621, et seq.), to provide voluntary Federal dairy inspection and 
grading services to facilitate the orderly marketing of and enable 
consumers to purchase high quality dairy products. Plants participating 
in the voluntary, fee-based AMS Dairy Grading and Inspection Program 
process milk into dairy foods that enter commerce as retail products, 
ingredients for further processing, purchases for Federal food 
assistance programs, and exports to other countries. Services provided 
by the program enhance the marketability and add value to dairy and 
foods that contain dairy. Dairy products manufactured in facilities 
complying with the USDA inspection requirements are eligible to be 
graded against official quality standards and specifications 
established by AMS. Dairy products tested and graded by AMS have 
certificates issued describing the product's quality and condition.
    Historically, when the Grading and Inspection Program was 
implemented, the quality of butter was inconsistent, and quality-
control testing by USDA was necessary to ensure a consistent product 
for the market. Today, plants more consistently manufacture high-
quality butter products and maintain the butterfat standard necessary 
to be granted a USDA grade label for butter.
    Currently, USDA inspectors or designated plant personnel perform 
tests of butter samples that have been selected by a USDA inspector for 
quality control on randomized batches of finished product pursuant to 7 
CFR 58.338. Testing frequency varies by the volume of butter processed 
and whether a batch is randomly selected. Typically, USDA conducts 
monthly or weekly testing depending on the volume of butter processed. 
It is also current industry practice for plants to perform routine 
internal tests on their butter products to ensure quality and 
compliance with composition standards. Specific requirements for these 
tests are outlined in 7 CFR 58.336.
    During manufacturing it is normal to have fluctuations in butterfat 
composition at different stages in butter making, and consequently test 
results may not be consistent throughout the process. Therefore, butter 
processing facilities continually monitor butterfat composition 
throughout production and make necessary adjustments to maintain the 
80% butterfat required for butter (7 CFR 58.305). The facility 
maintains these monitoring records as part of its internal quality 
program and testing requirements.
    Under the current Dairy Grading and Inspection program, USDA 
conducts a single butterfat test at the time of grading, which provides 
a limited perspective on overall butterfat composition of butter 
manufactured by the plant.
    The proposed amendments would exempt plants from butterfat testing 
administered by a USDA inspector and allow in-plant quality control 
testing to satisfy butterfat testing requirements. The proposal would 
replace testing performed by a USDA inspector at the time of grading 
with a review of a plant's testing records. A records review of a 
plant's routine testing rather than a single-point test would provide a 
more accurate picture of whether the plant's butter products meet 
quality standards. It would also reduce costs to a facility by 
eliminating duplicate butterfat testing by a USDA inspector that it 
currently must pay for. As explained in the Regulatory Flexibility 
Analysis below, AMS estimates adopting a records review would save 
participating plants $4,560 to $31,450 annually.
    Currently, the final butter product must contain a minimum of 80% 
butterfat by weight for it to comply with the regulations. That would 
not change as a result of the proposed amendment. However, under the 
proposal, AMS would annually review each plant's

[[Page 55427]]

butterfat test records to gauge the facility's compliance with the 
regulations. Butterfat tests are already conducted as a normal, 
standard business operating procedure by plants engaged in the 
manufacture of butter. If a facility is out of compliance, AMS would 
perform more frequent reviews to see what preventative and corrective 
actions are being taken. Failure to rectify the problem could result in 
ineligibility to use the USDA Grade Label shield on products produced 
by the facility.
    Records inspected would include plant records of butterfat tests 
performed as required under 7 CFR 58.336, and analysis of records. The 
change to the recordkeeping requirements would apply to records kept in 
the regular course of business by the plant. As records would be 
reviewed on-site by USDA inspectors, plants would not be required to 
submit information to the agency.
    Finally, AMS is proposing a revision of an administrative nature to 
correct a misspelling in the regulations. A proposed revision to Sec.  
58.336(a) would replace the word ``insure'' with ``ensure.''

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 
U.S.C. Chapter 35), AMS has requested approval of new information 
collection and recordkeeping requirements for the Dairy Grading and 
Inspection Program and comments are invited on this new information 
collection. All comments received on this information collection will 
be summarized and included in the final request for Office of 
Management and Budget (OMB) approval.
    Title: Regulations Governing the Review of Butterfat Testing 
Records for the Dairy Grading and Inspection Butter Program.
    OMB Number: 0581-NEW.
    Expiration Date of Approval: This is a NEW collection.
    Type of Request: Approval of New Information Collection.
    Abstract: The Dairy Grading and Inspection program is a voluntary, 
fee-based program authorized under the Agricultural Marketing Act (AMA) 
of 1946 (7 U.S.C. 1621-1627). The regulations governing inspection and 
grading services of manufactured or processed dairy products are 
contained in 7 CFR part 58. Under the program, a plant can submit to 
grading and inspection of its butter products by a USDA grader 
following the U.S. Grade Standards to ensure each product meet the U.S. 
grade requirements. This program provides uniform quality of dairy 
products in the marketplace. The information collection requirements in 
this request are essential to carry out the intent of the AMA--to 
ensure that dairy products are produced under sanitary conditions and 
buyers are purchasing a quality product.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 2.5 hours per year.
    Recordkeepers: Butter manufacturers.
    Estimated Number of Recordkeepers: 17.
    Estimated Number of Hours per Recordkeeper: 2.5 hours.
    Estimated Total Annual Burden on Recordkeepers: 42.5 hours.
    The information collection seeks to replace testing by USDA 
inspectors with an annual review of a plant's butterfat testing 
records. The review encompasses plant records of butterfat tests 
performed as required under 7 CFR 58.336, and analysis of records. 
Plants seeking USDA inspection for butter grading conduct their own 
routine, audited, butterfat tests to ensure quality and compliance with 
composition standards. The information sought in this collection is 
contained in records kept in the regular course of business by the 
inspected facility. Records would be reviewed on-site by a USDA 
inspector. The facility would not be required to submit information to 
the agency.

E-Government Act

    USDA is committed to complying with the E-Government Act (44 U.S.C. 
3601, et seq.) by promoting 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.

Executive Orders 12866 and 13563

    USDA is issuing this proposed rule in conformance with Executive 
Orders 12866 and 13563, which direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health, and safety 
effects; distributive impacts; and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. 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 (OMB).

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have a 
retroactive effect. If adopted, this proposed rule would not preempt 
any State or local laws, regulations, or policies unless they present 
an irreconcilable conflict with this rule.

Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (5 U.S.C. 601-612), AMS has considered the economic 
impact of the action on small entities. Accordingly, AMS has prepared 
this Regulatory Flexibility Analysis (RFA).
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so that small businesses will not be 
unduly or disproportionately burdened. The Small Business 
Administration's definition (13 CFR 121.201) of small agricultural 
service firms, which includes dairy processors, varies based on the 
type of dairy product manufactured. Small butter manufacturers 
processors are defined as having 750 or fewer employees. Seventeen 
plants producing grade label butter in the U.S. participate in the 
Grade Label Program. According to AMS calculations, about 12, or 
approximately two-thirds, are operated by dairy farmer cooperatives, 
while the remaining 5 are independently owned. AMS estimates that six 
of 17 the participating butter processors would be considered small 
businesses.
    AMS has determined that establishment of this proposal would not 
have a significant economic impact on small entities. The Dairy Grading 
and Inspection Program is a voluntary program. Small businesses have 
the option to participate. The proposed change would not unduly or 
disproportionately burden small butter processing entities. It would 
reduce costs to small businesses by eliminating a redundant butterfat 
test currently performed by USDA. AMS estimates the cost to plants for 
meeting USDA butterfat testing requirements ranges from $5,000 to 
$32,000 annually. The significant cost difference depends on whether 
the plant has an approved onsite laboratory or must ship samples to an 
outside AMS laboratory, and the frequency of butterfat samples 
submitted for testing.
    The change would replace the USDA-inspector's test with a review of 
records of butterfat tests that manufacturers currently conduct in the 
normal course

[[Page 55428]]

of business to ensure quality and compliance with composition 
standards. The plants would be charged for the inspectors' time to 
conduct the records review, estimated to take four hours annually. At 
an hourly rate of $110, a records review would cost the plant 
approximately $440. This results in annual net saving to plants ranging 
from $4,560 to $31,560.
    Program provisions would be applied uniformly to both large and 
small businesses and would not be expected to burden small entities 
unduly or disproportionately.

Executive Order 13175

    This proposed rule has been reviewed under E.O. 13175--Consultation 
and Coordination with Indian Tribal Governments, which requires 
agencies to consider whether their rulemaking actions would have Tribal 
implications. AMS has determined that this proposed rule is unlikely to 
have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.

List of Subjects in 7 CFR Part 58

    Dairy product, Food grades and standards, Food labeling, Reporting 
and recordkeeping requirements.

    For reasons set forth in the preamble, the Agricultural Marketing 
Service proposes to amend 7 CFR part 58 as follows:

PART 58--GRADING AND INSPECTION, GENERAL SPECIFICATIONS FOR 
APPROVED PLANTS AND STANDARDS FOR GRADES OF DAIRY PRODUCTS

0
1. The authority for part 58 continues to read as follows:

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

0
2. Amend Sec.  58.148 by adding paragraph (h) to read as follows:


Sec.  58.148  Plant records.

* * * * *
    (h) Butterfat test records. Retain for 12 months.
0
3. Amend Sec.  58.336 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  58.336  Frequency of sampling for quality control of cream, 
butter and related products.

    (a) Microbiological. Samples shall be taken from churnings or 
batches and should be taken as often as is necessary to ensure 
microbiological control.
    (b) Sampling and testing. (1) Composition. Sampling and testing for 
product composition shall be made on churns or batches as often as is 
necessary to insure adequate composition control. For in-plant control, 
the Kohman or modified Kohman test may be used.
    (2) Sampling. Butterfat sampling may be performed as part of an in-
plant quality program.
* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-17052 Filed 8-14-23; 8:45 am]
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