[Federal Register: January 12, 2004 (Volume 69, Number 7)]
[Rules and Regulations]
[Page 1647-1654]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja04-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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[[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.
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(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.''
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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
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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
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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]