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

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REGISTER issue of each week.

Rules and Regulations Federal Register

34569

Vol. 65, No. 105

Wednesday, May 31, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 56

[Docket No. PY–99–002]

RIN 0581–AB60

Refrigeration Requirements for Shell

Eggs

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: We are adopting as a final

rule, without change, an interim final

rule that amended the voluntary shell

egg grading program regulations by

adding a definition of the term ‘‘ambient

temperature,’’ by amending the

refrigeration requirements, and by

adding a labeling requirement.

Mandatory amendments to the Egg

Products Inspection Act (EPIA) in 1991

and USDA Food Safety and Inspection

Service (FSIS) regulations in 9 CFR part

590 implementing those amendments

involved refrigeration and labeling

requirements. We made changes to 7

CFR part 56 to conform to the FSIS

requirements.

EFFECTIVE DATE: June 30, 2000.

FOR FURTHER INFORMATION CONTACT:

Douglas C. Bailey, Chief,

Standardization Branch, 202/720–3506.

SUPPLEMENTARY INFORMATION:

Background

An interim final rule effective October

25, 1999, was published in the Federal

Register on October 22, 1999 (64 FR

56945–56947, Docket No. PY–99–002).

We amended 7 CFR part 56 (the

regulations) by adding a definition of

the term ‘‘ambient temperature,’’ by

amending the refrigeration

requirements, and by adding a labeling

requirement.

Comments

Comments on the interim final rule

were required to be received on or

before December 21, 1999. We received

five comments. They were from a

research firm, an organization

representing State department of

agriculture officials, a consumer

organization, and two industry

associations.

In the interim final rule, we explained

that new FSIS temperature and labeling

requirements in 9 CFR part 590 became

effective August 27, 1999. These new

requirements implemented mandatory

1991 amendments to the EPIA. The

interim changes made by the

Agricultural Marketing Service (AMS) to

7 CFR part 56 are deemed necessary to

avoid a conflict between the

temperature and labeling requirements

published by FSIS and regulations of

the AMS voluntary shell egg grading

program.

The research firm that commented

agreed with the temperature

requirement, added a note of caution

concerning storage temperature changes

that can cause eggs to sweat, and

recommended that this issue be

addressed in the regulations. The

regulations already contain the

requirement that every reasonable

precaution be exercised to prevent the

‘‘sweating’’ of eggs (§ 56.76(f)(2)).

The organization representing State

department of agriculture officials

supported the temperature requirement.

The amendatory language states that

eggs should be placed under

refrigeration ‘‘promptly after

packaging.’’ This organization suggested

that the meaning of ‘‘promptly’’ be

clarified in either the regulations or the

instructions to the graders. The Agency

provides detailed information and

explanation concerning technical

aspects of the grading program in its

Shell Egg Graders Handbook, where this

issue will be addressed.

The consumer organization, while

supporting the temperature and labeling

requirements, felt that they did not go

far enough. In response to food safety

concerns, this organization

recommended that the temperature

requirement should be 41 °F instead of

45 °F, that only one specific labeling

statement should be allowed, and that

the statement’s size and placement

should be mandated. As we explained

in our interim final rule, FSIS has

already finalized its rule concerning

refrigeration in order to comply with the

legislative amendment. This

amendment, dealing with voluntary

grading of shell eggs, is intended to

conform to the FSIS requirements of

refrigeration and labeling found in 9

CFR part 590. The organization also

commented that AMS should set a

specific time limit for processors to

move packaged eggs into coolers. AMS

will address this issue in its Shell Egg

Graders Handbook.

One industry association expressed

concern about the industry’s ability to

comply with the temperature

requirements established by FSIS

regulations. Those regulations have

been in effect since August 27, 1999.

Any questions concerning them should

be addressed to FSIS. The main purpose

of this rule is to conform to those

regulations.

The other industry association

supported the refrigeration and labeling

requirements, but wanted them to cover

all shell eggs regulated under the EPIA

and monitored under the shell egg

surveillance program, not just those

under the voluntary shell egg grading

program. Shell eggs regulated under the

EPIA are already covered by FSIS

refrigeration and labeling requirements

mandated in 9 CFR part 590, and the

changes made by the interim final rule

to 7 CFR part 56 does not alter that

coverage.

Regulatory Flexibility Act

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.), the AMS has

considered the economic impact of this

rule on small entities. The purpose of

the RFA 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 defines small entities

that produce and process chicken eggs

as those whose annual receipts are less

than $9,000,000 (13 CFR 121.201).

Approximately 550,000 egg laying hens

are needed to produce enough eggs to

gross $9,000,000. Thus, entities with

less than 550,000 laying hens would

meet the small business definition.

The Agricultural Marketing Act of

1946, as amended, authorizes a

voluntary grading program for shell

eggs, with implementing regulations in

7 CFR part 56. Shell egg processors that

34570 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

apply for service must pay for the

services rendered. These user fees are

proportional to the volume of shell eggs

graded, so that costs are shared by all

users. Shell egg processors who meet

the facility and operating requirements

are entitled to pack their eggs in

packages bearing official USDA grade

identification when AMS graders are

present to certify that the eggs meet the

requirements as labeled. Plants in which

these grading services are performed are

called official plants. There are about

700 shell egg processors registered with

the Department that have 3,000 or more

laying hens. Of these, 159 are official

plants that use USDA’s grading service

and would be subject to this rule. Of

these 159 official plants, the AMS

believes approximately 25 would meet

the small business definition.

The EPIA, enacted in 1970, authorizes

the mandatory inspection of egg

products operations and the mandatory

surveillance of the disposition of shell

eggs that are undesirable for human

consumption, with implementing

regulations in 7 CFR part 59. Congress

amended the refrigeration and labeling

requirements of the EPIA as part of the

Food, Agriculture, Conservation and

Trade Act Amendments of 1991.

In 1992, the AMS proposed changes

to 7 CFR part 59 to implement the 1991

EPIA amendments and to 7 CFR part 56

to make its temperature and labeling

requirements consistent with part 59.

Before AMS published the final rule,

however, the Department consolidated

food safety responsibilities under FSIS.

Egg products inspection functions under

the EPIA were delegated to FSIS, while

shell egg surveillance and grading

functions continued to be administered

by AMS. FSIS promulgated a final rule

with request for comments to

implement the 1991 EPIA amendments

in 7 CFR part 59, later redesignated as

9 CFR part 590, which became effective

August 27, 1999. Among other changes,

the amendments require a storage

temperature at no greater than 45 °F (7.2

°C) for eggs after they have been packed

into containers destined for the ultimate

consumer.

Since the proposed changes to the

shell egg grading regulations were not

finalized, AMS is revising 7 CFR part 56

to conform to the FSIS temperature and

labeling requirements mandated by the

1991 EPIA amendments. Because the

proposed rule was published some years

ago, AMS published this rule as an

interim final rule with request for

comments. We are only making changes

deemed necessary to avoid conflict

between the requirements of the final

rule published by FSIS and the AMS

shell egg grading program.

All shell egg processors that currently

use or are likely to use USDA grading

service typically have over 3,000 layers

and are therefore required to comply

with the provisions of the EPIA.

Accordingly, all eggs these processors

pack into consumer containers for the

ultimate consumer must comply with

EPIA refrigeration and labeling

requirements. Additionally, industry

practice is to refrigerate all processed

and graded eggs the same way, whether

packed into containers destined for the

ultimate consumer, or only officially

identified as U.S. Grade AA, A, or B.

Therefore, AMS has determined that

the provisions of this rule will not

impose any additional requirements on

small or large egg handlers.

Accordingly, it will not have a

significant economic impact on a

substantial number of small entities that

use USDA’s voluntary shell egg grading

service. In addition, FSIS discussed its

RFA analysis when it published its final

rule for 7 CFR part 59, and determined

that it would not have a significant

economic impact on a substantial

number of all small entities that

produce and process chicken eggs.

Executive Order 12866

This 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 rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. It 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

this rule. There are no administrative

procedures that must be exhausted prior

to any judicial challenge to the

provisions of this rule.

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.), the information collection and

recordkeeping requirements that appear

in part 56 have been previously

approved by the Office of Management

and Budget (OMB) under OMB control

number 0581–0128. There are no new

requirements provided for in this

rulemaking action.

After consideration of all relevant

material presented, including the

comments received, we are finalizing

the interim rule without change.

List of Subjects in 7 CFR Part 56

Eggs and egg products, Food grades

and standards, Food labeling, Reporting

and recordkeeping requirements.

PART 56—VOLUNTARY GRADING OF

SHELL EGGS

Accordingly, the interim rule

amending 7 CFR part 56 which was

published at 64 FR 56945 on October

22, 1999, is adopted as a final rule

without change.

Dated: May 24, 2000.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing

Service.

[FR Doc. 00–13481 Filed 5–30–00; 8:45 am]

BILLING CODE 3410–02–P

NORTHEAST DAIRY COMPACT

COMMISSION

7 CFR Parts 1306, 1307 and 1309

Over-Order Price Regulation

AGENCY: Northeast Dairy Compact

Commission.

ACTION: Final rule.

SUMMARY: The Northeast Dairy Compact

Commission amends the over-order

price regulation to establish a milk

supply management plan. This new

program addresses the requirement in

the Northeast Interstate Dairy Compact

that the Commission take such action as

necessary and feasible to ensure that the

over-order price regulation does not

create an incentive for milk producers to

generate additional supplies of milk.

This rule establishes an assessment/

refund plan under which the

Commission will withhold 7.5 cents

from the per hundredweight producer

price in each month there is a Compact

payment, so long as the resultant

Compact producer price is at least 25

cents per hundredweight. The

Commission will, on an annual basis,

return the withheld funds to only those

Compact eligible producers who

increased their milk production at a rate

of one percent or less, as compared to

the prior year’s milk production. The

refund will be paid to eligible producers

by distributing one-half of the assessed

funds on an equal payment to each

eligible producer and one-half on a per

hundredweight basis of the total milk

production for the program year, up to

a maximum per hundredweight refund

of $12,000. The program year will be

from July 1 through June 30. This

supply management plan is intended to

ensure that the over-order price

regulation does not create an incentive