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.

Proposed Rules Federal Register

35857

Vol. 65, No. 109

Tuesday, June 6, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 54

[Docket No. LS–98–09]

RIN 0581–AB69

Regulations Governing the

Certification of Sanitary Design and

Fabrication of Equipment Used in the

Slaughter, Processing, and Packaging

of Livestock and Poultry Products

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: The Agricultural Marketing

Service (AMS) is proposing to develop

a voluntary, user-fee funded program

under the authority of the Agricultural

Marketing Act of 1946 to inspect and

certify equipment and utensils used to

process livestock and poultry products.

Livestock and poultry processing

equipment and utensils inspected and

certified by AMS to voluntary

consensus standards for sanitary design

will provide a third party assurance that

they meet minimum requirements for

cleanability, suitability of materials

used in construction, durability and

inspectability. Development of this

program is required under the

provisions of the 1999 Agricultural

Appropriations Bill.

DATES: Comments must be received by

August 7, 2000.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this program. Send two

copies of comments to Barry L.

Carpenter, Deputy Administrator,

Livestock and Seed Program, Docket No.

LS–99–12, Room 2092 South

Agriculture Building, 1400

Independence Ave., SW, Washington,

DC 20250–0249.

All comments received in response to

this notice will be considered part of the

public record and will be available for

viewing in Room 2092 South

Agriculture Building, 1400

Independence Ave., SW, Washington,

DC 20250–0249 between 8:30 a.m. and

4:30 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Barry Carpenter, Deputy Administrator,

Livestock and Seed Program, by

telephone at (202) 720–5705 or by Fax

at (202) 720–3499.

SUPPLEMENTARY INFORMATION:

Background

The 1999 Agricultural Appropriations

Bill, (Pub. L. 105–277, sec. 747),

requires AMS to develop a voluntary,

user-fee funded program to inspect and

certify equipment and utensils used to

process livestock and poultry products.

From 1975 to 1997, a similar function

was carried out by USDA on a

mandatory prior approval basis by

USDA’s Food Safety and Inspection

Service (FSIS) as a prerequisite for

equipment use in federally inspected

meat and poultry packing and

processing establishments. The FSIS

Equipment Branch formally evaluated

equipment and utensils proposed by

manufacturers or suppliers before they

could be used in official establishments

to assure they could be maintained in a

sanitary condition. The program focused

on identifying and correcting problems

during the initial development of

equipment and utensils, instead of

resolving problems after equipment and

utensils were put into widespread use.

FSIS’s acceptance of new, modified,

or reconditioned equipment and

utensils for use in federally inspected

meat and poultry establishments was a

two-step process. First, FSIS Equipment

Branch personnel evaluated the design

and construction of equipment by

reviewing assembly-type drawings and

corresponding parts and material lists

submitted to the Branch by the

equipment manufacturer. Then, if

necessary, FSIS inspectors reviewed the

in-establishment operation of the

equipment and reported their findings

to the Equipment Branch. Commercially

available equipment was accepted and

listed in an FSIS reference guide,

‘‘Accepted Meat and Poultry

Equipment.’’ Once equipment was listed

in this reference as acceptable, no

further approval was needed on an

establishment basis.

FSIS continues to ensure that

equipment and utensils used in

federally inspected facilities are of such

material and construction as will

facilitate their thorough cleaning and

operational cleanliness, and not

adulterate edible product. Also, FSIS

still requires that equipment and

utensils used in federally inspected

establishments are constructed,

maintained, and used in a manner that

does not interfere with inspection.

However, in an effort to remove

‘‘command and control’’ regulations that

were contrary to FSIS’ commitment to

the Hazard Analysis and Critical Control

Point approach to Federal meat

inspection, and to provide federally

inspected establishments with the

flexibility to use equipment and utensils

designed in the manner they deem to

best maintain a sanitary environment for

food production without having to seek

prior approval, FSIS discontinued the

mandatory prior approval program for

equipment and utensils on September

24, 1997 (62 FR 45016).

At the time FSIS announced that it

was discontinuing its prior approval

program, equipment and utensil

manufacturers and processors of

livestock and poultry products

expressed their desire to either continue

the FSIS program or develop a new

program through AMS on a voluntary,

user-fee funded basis to inspect and

certify equipment and utensils used to

process livestock and poultry products

to a sanitary standard. Subsequently,

passage of the 1999 Omnibus

Appropriations Bill required

development of such a program under

the Agricultural Marketing Act of 1946

(AMA) (7 U.S.C. 1621–1627).

Accordingly, on July 16, 1999, AMS

published in the Federal Register (64

FR 38315) an advance notice of

proposed rulemaking (ANPRM) and

notice of public meeting to assist the

Agency in the development of a

complete inspection and certification

program for equipment and utensils

used to process livestock and poultry

products.

Through the ANPRM and the public

meeting, AMS sought information

which would enable the Agency to

develop an efficient and cost-effective

program for inspecting and certifying

equipment and utensils used to process

livestock and poultry products.

Specifically, AMS requested comments

concerning: initiatives underway in the

industry to develop a voluntary,

consensus sanitary standard for the

design and manufacture of equipment

35858 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules

and utensils used to process livestock

and poultry products; the validity and

usability of standards presented to AMS

for consideration for adoption; criteria

to be used by AMS to select a sanitary

standard; and any other information

which would aid AMS in administering

the program.

The ANPRM solicited comments on

the issue for a 60-day period ending

September 14, 1999. The public meeting

was held on August 10, 1999, in Room

107–A at the USDA Jamie L. Whitten

Building, 12th and Jefferson Drive, SW,

Washington, DC.

To assist interested parties in

obtaining information on the proposed

program and in reviewing comments as

AMS received them, the Agency

launched a website at

www.ams.usda.gov/lsg/equip.htm/.

Contained on this website were

electronic versions of the AMS press

releases related to the development of

the program, the ANPRM, complete

transcripts of the August 10, 1999,

public meeting, and all comments

received.

The public meeting was attended by

42 representatives of the meat and

poultry packing and processing

industry, equipment and utensil

manufacturing industry, trade and

professional associations, standards

developers, and other interested parties.

Twelve individuals provided prepared

remarks at the meeting.

AMS received 51 comments during

the comment period. One commenter

submitted two comments requesting an

extension of the comment period on the

ANPRM until December 31, 1999. The

agency believes that the 60-day

comment period on the ANPRM and the

public meeting that was held on August

10, 1999, gave interested persons

sufficient opportunity to comment on

the ANPRM. Furthermore, interested

persons would have an opportunity to

submit comments on AMS’ proposed

equipment and utensil certification

program during the 60-day comment

period for this proposed rule.

Nine commenters supported the

development of the program. These

commenters wanted a Government

certification program for equipment and

utensil design as an assurance of quality

for buyers. While no commenters

specifically stated opposition to the

development of a equipment and utensil

certification program, several

commenters did provide differing

recommendations on specific

characteristics of such a program.

Several commenters recommended

criteria that AMS should use in

selecting standards to use as the basis of

its certification program for equipment

and utensils used to process livestock

and poultry products. These criteria

were (1) compatibility with current

regulations, (2) compatibility with

current industry practices, (3) ability to

be understood and used by all interested

parties, and (4) ability to be revised in

a timely manner as regulatory

requirements and industry practices

change. AMS agrees that these criteria

are important for evaluating proposed

standards for equipment and utensil

certification and has considered them in

the development of this proposal.

Several commenters recommended

that government employees administer

the proposed equipment and utensil

inspection and certification program.

AMS agrees. AMS is proposing that

Agency employees would perform the

inspection and certification of

equipment and utensils.

Three commenters recommended

AMS offer an accreditation service for

third parties to administer inspections

and certifications of equipment and

utensils on behalf of the Agency. In

complying with the 1999 Agricultural

Appropriations Bill which requires the

Secretary of Agriculture to develop a

program to inspect and certify

agricultural processing equipment, and

impose a fee for the inspection and

certification, in a manner that is similar

to the inspection and certification of

agricultural products under the AMA,

AMS would administer the certification

program by using government

employees.

One commenter provided criteria they

believed should be a part of the

administration of any certification

program involving food safety. It is

important to note that the purpose of

this program is to provide a third-party

inspection and certification program

that equipment and utensils used to

process livestock and poultry products

meet the requirements of an identified

sanitary standard. It is not to ensure

food safety per se. Rather, the proposed

program is designed to inspect and

certify that equipment and utensils are

capable of producing food products in a

sanitary manner. The hygienic

standards are developed with food

safety as a primary focus. Hygienically

designed equipment and utensils are

capable of producing safe food.

However, equipment and utensils

meeting any sanitary standard, if not

properly cleaned, maintained or used

can result in the production of unsafe

products. Equipment and utensil

sanitation is only one aspect of food

safety. FSIS is responsible for ensuring

all Federally inspected meat and poultry

establishments produce safe and

wholesome products, regardless of

whether the equipment and utensils

used to process the products was

certified by AMS under this proposed

program.

Several commenters recommended

that the proposed rule also address

preventing conflicts of interest,

employing staff with adequate

qualifications and training, reevaluation of equipment and utensils,

appeals processes, providing a process

for investigating reports of noncompliance, and control of certification

marks. Most of these concerns are

addressed in this proposed rule. The

remaining concerns regarding employee

conduct and ethics are dealt with in

existing AMS and USDA instructions,

policy and regulations.

Several commenters stated that any

proposed program should be costeffective. AMS agrees. The 1999

Agricultural Appropriations Bill directs

the Secretary of Agriculture to develop

this inspection and certification

program, and impose a fee for the

inspection and certification, in a

manner that similar to the inspection

and certification of agricultural products

under the Agricultural Marketing Act of

1946, as amended (AMA). Under the

AMA, AMS is required to collect

reasonable fees for providing official

services under 7 CFR part 54, including

services provided under this proposed

equipment and utensil certification

program, to cover as nearly as

practicable AMS costs for performing

the service including related

administrative and supervisory costs.

Since the procedures used to inspect

and certify equipment and utensils used

to process livestock and poultry

products are similar to those used to

inspect and certify dairy processing

equipment, AMS has decided to charge

the same hourly fees for inspecting and

certifying equipment and utensils used

to process livestock and poultry

products. Inspection and certification

services are based on the hourly rate for

applicants who request services on an

hourly basis and appear at 7 CFR part

58 as published in the Federal Register

at 62 FR 66258 on December 18, 1997.

The current base hourly rate for such

service is $56 per hour for service

performed between 6:00 a.m. and 6:00

p.m. and $61.60 for service performed

between 6:00 p.m. and 6:00 a.m., for the

time required to perform the service

calculated to the nearest 15-minute

period, including the time required for

preparation of certificates and reports

and the travel time of the equipment

review specialist in connection with the

performance of the service. A minimum

charge of one-half hour would be made

for the service pursuant to each request

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules 35859

or certificate issued. If an applicant

requests that certification service be

performed on a holiday, Saturday, or

Sunday or in excess of each 8-hour shift

Monday through Friday, the applicant

would be charged such service at a rate

of 1 1⁄2 times the rate which would be

applicable for such service if performed

during normal working hours.

Each applicant should determine if

there is a economic advantage of using

the service that outweighs the user-fees

associated with receiving certification.

One commenter recommended that

equipment that had prior approval from

FSIS and was listed in the discontinued

FSIS Directive 11220.1, ‘‘Acceptable

Meat and Poultry Equipment,’’ be

automatically certified as meeting the

requirements of the proposed AMS

program. AMS does not agree. The

equipment and utensil certification

program proposed herein would be

based on a new set of sanitary

standards, the requirements of which

differ from the standards used in the

former prior approval program

administered by FSIS. To have

equipment and utensils certified by

AMS, manufacturers would have to

resubmit their design of equipment and

utensils previously approved by FSIS to

AMS for evaluation.

One commenter requested that AMS

work with FSIS to educate local FSIS

inspectors about the proposed program

when it begins. This suggestion has

merit. AMS worked with FSIS during

preparation of the advance notice of

proposed rulemaking, the public

meeting, and in the development of this

proposed rule. AMS would continue to

work with FSIS as this program

develops to ensure FSIS is aware of

components of the program as it

develops.

Several commenters recommended

that the proposed program adopt a

standard or group of standards which

are in harmony with other international

standards and thus would aid

equipment and utensil manufacturers in

marketing their products

internationally. Although the

international marketing of equipment

and utensils could be an allied benefit

of this program, the primary purpose of

this proposed program is to provide a

third-party certification that equipment

and utensils meet specified standards.

International harmonization was one

factor considered by AMS in selecting

standards to inspect and certify

equipment and utensils. However, AMS

recognizes that international standards

and foreign buyer requirements can

change over time.

Two voluntary consensus standards

bodies transmitted draft standards to

AMS for consideration as examples of

the types of standards AMS would

inspect and certify to. These voluntary

consensus standards bodies were the

Technical Committee for Underwriters

Laboratories 2128—the Standard for

Meat and Poultry Plant Equipment

(Underwriters Laboratories, North

Brook, Illinois) and the NSF/3–A Joint

Committee on Food Processing

Equipment (a group jointly

administered by NSF International

(formerly the National Sanitation

Foundation), Ann Arbor, Michigan, and

the 3–A Sanitary Standards Committees,

a standards development group

supported by the International

Association of Food Industry Suppliers,

McLean, Virginia).

One group representing a consortium

of equipment manufacturing

associations submitted a draft standard

to AMS for consideration as a basis for

a standard AMS would develop and use

as a government-unique standard.

Additionally, several commenters stated

AMS should apply the guidelines used

by FSIS in its former Equipment

Acceptance Program as a governmentunique standard.

When considering the comments

pertaining to the selection of standards

for AMS to inspect and certify to,

careful attention was paid to Circular

A–119 of the Office of Management and

Budget; Federal Participation in the

Development and Use of Voluntary

Consensus Standards and in Conformity

Assessment Activities (63 FR 8546).

Circular A–119 directs Federal agencies

to use voluntary consensus standards in

regulatory activities in lieu of

government-unique standards except

where inconsistent with law or

otherwise impractical.

Voluntary consensus standards bodies

are defined by Circular A–119 as

domestic or international organizations

which plan, develop, establish, or

coordinate voluntary consensus

standards using agreed-upon

procedures. A voluntary consensus

standards body is further defined by the

following attributes: (1) Openness, (2)

balance of interest, (3) due process, (4)

an appeals process, and (5) consensus.

Other types of standards, which are

distinct from voluntary consensus

standards, include: (1) Industry

standards which are developed by the

private sector but not in the full

consensus process, (2) government

unique standards which are developed

by the government for its own uses, and

(3) standards mandated by law.

After reviewing the comments

received, AMS believes that two

standards presented by voluntary

consensus standards bodies are

consistent with Circular A–119.

Standards presented or supported by

other commenters, including the FSIS

guidelines and the request that AMS

develop its own standard were not

further pursued. Further, after

considering the comments received,

AMS concluded that there is more

support for standards developed by the

NSF/3–A Joint Committee on Food

Processing Equipment than those

developed by the Technical Committee

for Underwriters Laboratories 2128—the

Standard for Meat and Poultry Plant

Equipment. Also, commenters stated

that the NSF/3–A Joint Committee on

Food Processing Equipment maintained

better participation and consensus, and

developed standards that contain more

fully developed criteria necessary for

AMS to use in providing an inspection

and certification program. AMS also has

extensive experience in working with

the voluntary consensus standards for

equipment used to process dairy

products that are developed by the 3–A

Sanitary Standards Committees through

the AMS Dairy Equipment Acceptance

Program.

Therefore, AMS is proposing to

inspect and certify equipment and

utensils to standards developed by the

NSF/3–A Joint Committee on Food

Processing Equipment. This group

submitted a proposed generic standard

titled NSF/3–A 14159–1, ‘‘Hygiene

Requirements for the Design of Meat

and Poultry Processing Equipment.’’

AMS believes the selection of

standards developed by the NSF/3–A

Joint Committee on Food Processing

Equipment best meet the stated

objectives commenters submitted to the

Agency for it to use to select a standard.

AMS believes the broad-based

representation on the NSF/3–A Joint

Committee on Food Processing

Equipment will ensure the development

of standards that are compatible with

applicable FSIS regulations that apply

to federally inspected meat and poultry

packing and processing establishments,

current industry practices, transparent

and objective requirements, and be able

to be revised over time.

The standards developed by the NSF/

3–A Joint Committee on Food

Processing Equipment, which AMS

proposes to adopt as the basis for the

certification program, would establish

minimum hygienic design requirements.

The requirements are to be applied by

designers and manufacturers of

equipment and utensils. The standards

will incorporate the following features.

—A scope that clearly defines the

intended limits and application of the

standards;

35860 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules

—Normative references to other national

or international standards that are

germane to the scope of the standards;

—Definitions to define the terms used

within the standards;

—A listing of potential hazards that may

arise;

—Hygiene requirements including

strategies used by the manufacturer to

identify hygiene measures, risk

assessment, materials of construction,

design and fabrication requirements

for product contact and non-product

contact surfaces; and

—Information to the users.

One commenter stated that any

sanitary standard adopted by AMS

should allow all of the options for

establishing that equipment, utensils

and their components have a

satisfactory regulatory status for

materials of construction under the laws

and regulations administered by the

Food and Drug Administration (FDA).

The objective of this program is to offer

a voluntary, user-fee funded service to

provide a third-party assurance that

equipment and utensils meet the

requirements of a voluntary consensus

standard. Because the objective

requirements of the standard itself are

developed and maintained by the NSF/

3–A Joint Committee on Food

Processing Equipment, the commenter’s

concerns pertaining to FDA compliance

of food-contact materials are more

appropriately directed to the NSF/3–A

Joint Committee.

The Proposed Regulation

The equipment and utensil inspection

and certification proposed herein would

be conducted by AMS on a voluntary,

fee-for-service basis. Manufacturers of

new, modified, or reconditioned

equipment and utensils designed to

process livestock and poultry products

who want to have the equipment and

utensils they manufacture officially

inspected and accepted by AMS as

meeting the NSF/3–A standards which

outline minimum requirements for

cleanability, suitability of materials

used in construction, inspectability and

durability would apply to AMS. Copies

of the NSF/3–A standards may be

obtained by contacting the NSF/3–A

Joint Committee on Food Processing

Equipment at: 3475 Plymouth Road,

Ann Arbor, Michigan 48105, Phone

(734) 769–9060 or Fax (734) 769–9064.

AMS will also have copies of the NSF/

3–A standards available for inspection

at: USDA, AMS Dairy Programs, 1400

Independence Ave, SW, Washington,

DC 20250, Phone (202) 720–3171 or Fax

(202) 720–2643.

To have equipment and utensils

accepted under this program, equipment

and utensil manufacturers would

submit an application to AMS

requesting evaluation of equipment and

utensils. Manufacturers would apply by

submitting an application and be

required to indicate whether the

evaluation is to be performed on a

prototype, manufactured equipment and

utensils, or drawing and materials list.

AMS does not require the drawings,

blueprints and a material list, however

such blueprints and lists are encouraged

as they may facilitate evaluation of

equipment complex in design against

the standard. It may be necessary for

AMS to conduct an on-site review of the

actual equipment at the point of

fabrication or installed and operating in

an establishment to fully evaluate the

design and construction and execute

final acceptance.

The cost for evaluation of equipment

or utensils would depend on the

complexity of design, location of the

equipment or utensil to be evaluated onsite, and whether the manufacturer has

provided resource materials that would

facilitate inspection of the equipment or

utensils by AMS to determine

acceptance. Collectively, AMS estimates

the average total costs to process and inplant review a piece of equipment or a

utensil to be $1,120 plus added travel

costs for the required on-site review.

Assuming all equipment and utensil

manufacturers would use an AMS

equipment and utensil certification

program to the extent they used the

FSIS program, it is estimated that the

total cost to the industry under an AMS

program would be about $2,800,000

plus travel costs for on-site reviews

annually.

Manufacturers whose equipment and

utensils receive AMS acceptance may,

upon request, be issued an official

certificate as proof that the equipment

or utensil meets NSF/3–A standards and

is therefore accepted. Upon written

application, manufacturers of accepted

equipment and utensils may receive

permission to display the official mark

of acceptance on equipment and

utensils or in promotional literature as

illustrated in the regulatory text (Figure

1).

Manufacturers whose equipment or

utensil does not meet the design and

fabrication requirements of the NSF/3–

A standards and does not receive

acceptance by AMS may appeal AMS’

determination. The manufacturers

would make a request for appeal service

with the Chief, Dairy Grading Branch by

completing and submitting a request for

service to have equipment or utensils

reevaluated. The appeal process is set

forth in § 54.1020 through 54.1027 of

the proposed regulations.

Any manufacturer whose equipment

or utensil has been accepted shall

resubmit the design and fabrication

details of the accepted equipment or

utensils whenever a change of design or

fabrication has occurred. Acceptance of

equipment or utensils that have not

changed remains in effect for a period

of four years. If no changes in

equipment or utensil design or

fabrication have occurred over the four

year period since the last acceptance

was made, manufacturers must submit a

certificate of conformance signed by the

chief engineering officer and chief

executive officer of the company stating

that no design changes have been made

to receive acceptance renewal.

As was stated in the May 10, 1999,

AMS News Release, this proposed

equipment and utensil certification

program will be operated by the AMS

Dairy Programs. This decision was made

because the AMS Dairy Programs has

extensive technical expertise and many

years of experience in working with

domestic and international standards

organizations and equipment

manufacturers for the acceptance of

dairy processing equipment.

Executive Order 12866 and the

Regulatory Flexibility Act

This proposed rule has been reviewed

under Executive Order 12866. The rule

has been 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.

Pursuant to the requirements set forth

in the Regulatory Flexibility Act (RFA)

(5 U.S.C. 601 et seq.), AMS has

considered the economic impact of this

proposed rule on small entities. The

purpose of the RFA is to fit regulatory

actions to the scale of businesses subject

to such action so that small businesses

would not be disproportionally

burdened. Accordingly, we have

prepared an initial regulatory flexibility

analysis.

Development of this proposed

program was authorized by the 1999

Agricultural Appropriations Bill (Pub.

L. 105–277, sec. 747) and under the

authority of the Agricultural Marketing

Act of 1946 (AMA) (7 U.S.C. 1621–

1627).

AMS is proposing to conduct a

voluntary, user-fee funded inspection

and certification program for equipment

and utensils that are used to process

livestock and poultry products that is

similar to the inspection and

certification of agricultural products

under the AMA. Under this proposed

program, manufacturers of new,

modified, or reconditioned equipment

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules 35861

and utensils designed to process

livestock and poultry products who

want to have the equipment and

utensils they manufacture officially

inspected and accepted by AMS as

meeting the NSF/3–A standards which

outline minimum requirements for

cleanability, suitability of materials

used in construction, inspectability and

durability would apply to AMS.

Alternatively, AMS could establish

through rulemaking a process to

approve private parties who could then

perform inspection and acceptance on

behalf of AMS. However it was

determined that in complying with the

authorizing legislation for this program

which requires the Secretary to develop

a program to inspect and certify

agricultural processing equipment, and

impose a fee for the inspection and

certification, in a manner similar to the

inspection and certification of

agricultural products under the

Agricultural Marketing Act of 1946,

AMS would administer this proposed

program by using government

employees.

Additionally, AMS considered

proposing alternative standards as the

basis of its inspection and certification

program. However, AMS believes that

the standards proposed herein represent

the best alternative taking into account

the program’s requirements.

Under this proposed equipment and

utensil acceptance program, equipment

and utensil manufacturers seeking AMS

acceptance and certification would

apply to AMS for an evaluation of their

equipment and utensils. Although AMS

does not require the drawings,

blueprints and a material list upon

application, AMS encourages applicants

to submit such blueprints and lists to

facilitate evaluation of complex

equipment and utensils. Additionally,

some equipment and utensils will

require AMS to conduct an on-site

review at the point of fabrication or

installed and operating in an

establishment to fully evaluate the

design and construction and execute

final acceptance.

To maintain acceptance and

certification, these regulations would

require any manufacturer whose

equipment or utensil has been accepted

to resubmit the design and fabrication

details of the accepted equipment or

utensils whenever a change of design or

fabrication occurs. Barring changes in

equipment or utensil design and

fabrication, acceptance is granted for a

four year period. When equipment or

utensil acceptance nears expiration at

the end of the four year period,

manufacturers may send a letter stating

that no design changes have been made

to receive an additional four year

acceptance renewal.

This action will benefit manufacturers

of equipment and utensils used for

processing meat and poultry products

and the purchasers of such equipment

and utensils by providing AMS

certification that the equipment and

utensils meet the minimum

requirements of voluntary consensus

standards for sanitary design.

Acceptance by AMS will provide

manufacturers and buyers assurance

that equipment and utensils can be

cleaned, are constructed of suitable

materials, are durable, and can be

inspected.

This proposed equipment and utensil

inspection and certification program

affects manufacturers or other vendors

of equipment and utensils. The

equipment and utensil manufacturers

range in size from small to large

concerns. According to the Standard

Industrial Classification (SIC) (13 CFR

121.201) which are used by the Small

Business Administration to identify

small businesses, a small business

equipment and utensil manufacturer is

defined a firm with less than 500

employees (SIC Division D. Major Group

20). According to the most complete

data available to AMS, it is estimated

that there are about 2000 equipment and

utensil manufacturers, about 90 percent

of these can be classified as small

entities.

Previously, FSIS maintained a

mandatory prior approval program for

equipment and utensil inspection as a

prerequisite for use in Federally

inspected meat and poultry packing and

processing establishments that affected

these same entities. Under FSIS’ former

mandatory prior approval program for

equipment, an estimated 2,500

applications for equipment approval

were received each year. Evaluation and

certification of equipment and utensils

is based on the complexity and

sophistication of the design and

fabrication of the equipment or utensil

being evaluated.

The paperwork burden that may be

imposed on equipment and utensil

manufacturers by this proposed action

is further discussed in the section

entitled Paperwork Reduction Act that

follows.

In addition, we have not identified

any relevant Federal rules that are

currently in effect that duplicate,

overlap, or conflict with this rule.

Further, as discussed below, this

program will be operated by the AMS

Dairy Programs using its relevant fee

structure.

The 1999 Agricultural Appropriations

Bill directed the Secretary of

Agriculture to develop this inspection

and certification program for equipment

used to process livestock and poultry

products in a manner similar to other

inspection and certification programs

administered by AMS under the

authority of the Agricultural Marketing

Act of 1946. Under the Agricultural

Marketing Act of 1946, AMS is required

to collect reasonable fees for providing

official services provided under this

proposed equipment and utensil

certification program, to cover as nearly

as practicable AMS costs for performing

the service including related

administrative and supervisory costs.

Since the procedures used to inspect

and certify equipment and utensils used

to process livestock and poultry

products are similar to those used to

inspect and certify dairy processing

equipment, AMS has decided to charge

the same hourly fees for inspecting and

certifying equipment used to process

livestock and poultry products.

Inspection and certification services are

based on the hourly rate for applicants

who request services on an hourly basis

and appear at 7 CFR part 58 as

published in the Federal Register at 62

FR 66258 on December 18, 1997. The

current base hourly rate for such service

is $56 per hour for service performed

between 6:00 a.m. and 6:00 p.m. and

$61.60 for service performed between

6:00 p.m. and 6:00 a.m., for the time

required to perform the service

calculated to the nearest 15-minute

period, including the time required for

preparation of certificates and reports

and the travel time of the equipment

review specialist in connection with the

performance of the service. A minimum

charge of one-half hour will be made for

the service pursuant to each request or

certificate issued. If an applicant

requests that certification service be

performed on a holiday, Saturday, or

Sunday or in excess of each 8-hour shift

Monday through Friday, the applicant

would be charged such service at a rate

of 11⁄2 times the rate which would be

applicable for such service if performed

during normal working hours.

AMS estimates that the time required

to review and accept an initial

submission for simple designs would be

1 hour. For complex designs, AMS

estimates that the time required to

review and accept an initial submission

would be 8 hours. Based on the

proposed AMS base hourly fee for

service of $56 per hour, an initial

submission of assembly type drawings

and corresponding parts and material

lists should range from $56 to $448.

However, the final cost for equipment or

utensil inspection and certification

35862 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules

would be contingent on a final on-site

review of the equipment or utensil at

the point of fabrication or under

conditions of actual use. The cost of this

on-site review would include associated

travel and per diem costs in addition to

the hourly fee for service. AMS

estimates the average time to perform a

on-site review for a piece of equipment

or utensil to be 12 hours.

The cost for evaluation of equipment

or utensils would depend on the

complexity of design, location of the

equipment or utensil to be evaluated onsite, and whether the manufacturer has

provided resource materials that would

facilitate inspection of the equipment or

utensil by AMS to determine

acceptance. AMS estimates the average

total costs to process and in-plant

review a piece of equipment or utensil

to be $1,120 plus added travel costs for

the required on-site review. Assuming

all equipment and utensil

manufacturers would use an AMS

equipment and utensil certification

program to the extent they used the

FSIS program, it is estimated that the

total cost to the industry under an AMS

program would be about $2,800,000

plus travel costs for on-site reviews

annually. Since approximately 90

percent of equipment and utensil

manufacturers are small businesses, the

estimated share of the total annual

industry burden directly affecting small

businesses would be $2,520,000.

In assessing alternatives to the scheme

provided for in these proposed

regulations, we believe that the

provisions contained herein would best

accomplish its purpose and at the same

time minimize any burden that might be

placed upon affected parties.

Nonetheless, we invite comments

concerning the potential effects of this

proposed regulation on affected parties,

including more information on the

benefits or burden that small entities

may incur as a result of implementation

of this proposal.

Executive Order 12988

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform and is not intended to have a

retroactive effect. This rule would not

preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule. Further, section 747 of the

1999 Agricultural Appropriations Bill

states that the provision does not affect

the authority of the Secretary to carry

out the Federal Meat Inspection Act (21

U.S.C. 601 et seq.); the Poultry Products

Inspection Act (21 U.S.C. 451 et seq.); or

the Egg Products Inspection Act (21

U.S.C. 1031 et seq.). There are no

administrative procedures that must be

exhausted prior to any judicial

challenge to the provisions of this

proposed rule.

Paperwork Reduction Act

Requirements

This proposed rule contains

paperwork submission requirements

that are subject to public comment and

to review by the Office of Management

and Budget under the Paperwork

Reduction Act of 1995 (PRA) (44 U.S.C.

Chapter 35). In accordance with 5 CFR

part 1320, we included the description

of the reporting requirements and an

estimate of the annual burden on

manufacturers of equipment and

utensils used to process livestock and

poultry products. As identified in

§ 54.1004 of these proposed regulations,

the Certification of Sanitary Design and

Fabrication of Equipment Used in the

Slaughter, Processing, and Packaging of

Livestock and Poultry Products service

would be administered by the Dairy

Programs of AMS. During the

administration of the service, Dairy

Programs will expand the use of existing

Dairy Programs forms currently

approved by OMB under 7 CFR part 58,

subpart A, Regulations Governing the

Inspection and Grading of Manufactured

or Processed Dairy Products. The

Agency published a Federal Register

Notice 65 FR 2370, dated January 14,

2000, that expanded the use of these

forms and allowed for a 60-day

comment period. The following is

provided in this proposed action to

allow for an additional opportunity for

public comment on the specified burden

that would be placed on those entities

affected by this rule.

OMB Number: 0581–0126.

Expiration Date of Approval: July 31,

2001.

Abstract: The dairy grading program

is a voluntary, user-fee funded program.

In order for a voluntary inspection

program to perform satisfactorily with a

minimum of confusion, there must be

written requirements and rules for both

Government and industry. The

information collections are essential to

carry out and administer the inspection

and grading program. The information

requested is used to identify the product

offered for grading, to identify a request

from an equipment manufacturer of

equipment used in the dairy, meat or

poultry industries for evaluation for

sanitary design and construction, to

identify and contact the party

responsible for payment of the

inspection, grading or equipment

evaluation fee and expense, to identify

applicants who wish to be authorized

for the display of official identification

on product packaging materials,

equipment, utensils, or on descriptive or

promotional materials.

The equipment and utensil inspection

and certification proposed herein would

use the forms described above in a

program that would be conducted by

AMS on a voluntary, fee-for-service

basis. Manufacturers of new, modified,

or reconditioned equipment and

utensils designed to process livestock

and poultry products who want to have

the equipment or utensils they

manufacture officially inspected and

accepted by AMS as meeting the NSF/

3–A standards which outline minimum

requirements for cleanability, suitability

of materials used in construction,

inspectability and durability would

apply to AMS.

For the purposes of this burden

estimate, AMS estimates that the hourly

wage for those submitting information

would be $20 per hour. To have

equipment and utensils accepted under

this program, equipment and utensil

manufacturers would submit an

application to AMS requesting

evaluation of equipment or utensils

(Form DA–162). AMS estimates that of

the 2000 livestock and poultry

equipment and utensil manufacturers,

AMS will receive approximately 2500

applications per year or, on average,

1.25 applications from each

manufacturer. Form DA–162 requires

0.038 hours to complete. The total

annual burden on the industry for this

proposed collection of information

would be 95 hours or $1,900 annually.

Since AMS does not require the

drawings, blueprints and a material list

to be submitted, they have not been

included in this burden estimate.

Manufacturers whose equipment or

utensil receives AMS acceptance may,

upon request, be issued an official

certificate as proof that the equipment

or utensil meets NSF/3–A standards and

is therefore accepted. Since completion

of this certificate is performed by AMS,

it has also not been included in this

burden estimate. Upon written

application (Form DA–155 and Form

DA–156), manufacturers of accepted

equipment or utensils may receive

permission to display the official mark

of acceptance on equipment and

utensils, or in promotional literature as

illustrated in the regulatory text (Figure

1). Form DA–155 is a one-time

application from each manufacturer,

and therefore has been estimated to only

be sent by a respondent once in every

four-year cycle of equipment and utensil

approval. The estimate of the total

annual burden of this collection of

information is 10.5 hours or $210

annually. Form DA–156 is submitted by

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules 35863

a manufacturer each time there is a

request to use the symbol on a piece of

equipment or utensil, or in promotional

literature. AMS estimates that it would

receive one request each year to use the

symbol on equipment or utensils, or in

promotional material for each piece of

equipment or utensil accepted.

Therefore, AMS estimates that the total

annual burden for this collection of

information would be 42.5 hours or

$850 annually.

Manufacturers whose equipment or

utensil does not meet the design and

fabrication requirements of the NSF/3–

A standards and does not receive

acceptance by AMS may appeal AMS’

determination. The manufacturers

would make a request for appeal service

with the Chief, Dairy Grading Branch by

completing and submitting a request for

service (Form DA–162) to have

equipment or utensils reevaluated. The

appeal process is set forth in sections

§ 54.1020 through § 54.1027 of the

proposed regulations. As the AMS Dairy

Program has never received an appeal

for service under its current equipment

acceptance program, AMS has estimated

that 1% of applicants will appeal

service in this estimate of the burden of

the collection of information.

Accordingly, with 2500 applications per

year and Form DA–162 requiring 0.038

hours to complete and an estimate of

only 1 percent of applicants requiring

an appeal, the total annual burden on

the industry for this proposed collection

of information would be 0.95 hours or

$19 annually.

Any manufacturer whose equipment

or utensil has been certified shall

resubmit the design and fabrication

details of the certified equipment or

utensil whenever a change of design or

fabrication has occurred. Certification of

equipment or utensils that have not

changed remains in effect for a period

of four years. If no changes in

equipment or utensil design or

fabrication have occurred over the four

year period since the last certification

was made, manufacturers must submit a

certificate of conformance signed by the

chief engineering officer and chief

executive officer of the company stating

that no design changes have been made

to receive certification renewal. AMS

estimates that it would receive one such

request every four years for each piece

of equipment or utensil accepted. AMS

estimates that the total annual burden

for this collection of information would

be 52 hours or $1,040 annually.

Collectively, AMS estimates that the

total annual burden for the collection of

information would be 200.95 hours or

$4019 annually.

1. Equipment Review Request—Form

DA–162.

Estimate of Burden: Public reporting

burden for this collection of information

is estimated to average 0.038 hours per

response.

Respondents: Manufacturers of

equipment and utensils used to process

livestock and poultry products.

Estimated Number of Respondents:

2000.

Estimated Number of Responses per

Respondent: 1.25.

Estimated Total Annual Burden on

Respondents: 95 hours.

Total Cost: $1,900.

2. Application to use official ID—

Form DA–155.

Estimate of Burden: Public reporting

burden for this collection of information

is estimated to average 0.021 hours per

response.

Estimated number of respondents:

2000.

Estimated Number of Responses per

Respondent: 0.250.

Estimated Total Annual Burden on

Respondents: 10.5 hours.

Total Cost: $210.

3. Request to Display Official ID—

Form DA–156.

Estimate of Burden: Public reporting

burden for this collection of information

is estimated to average 0.017 hours per

response.

Estimated number of respondents:

2000.

Estimated Number of Responses per

Respondent: 1.25.

Estimated Total Annual Burden on

Respondents: 42.5 hours.

Total Cost: $850.

4. Appeal—Equipment Review

Request—Form DA–162.

Estimate of Burden: Public reporting

burden for this collection of information

is estimated to average 0.038 hours per

response.

Respondents: Manufacturers of

equipment and utensils used to process

livestock and poultry products.

Estimated Number of Respondents:

2000.

Estimated Number of Responses per

Respondent: 0.0125.

Estimated Total Annual Burden on

Respondents: 0.95 hours.

Total Cost: $19.

5. Letter requesting renewal of

acceptance.

Estimate of Burden: Public reporting

burden for this collection of information

is estimated to average 0.083 hours per

response.

Estimated number of respondents:

2000.

Estimated Number of Responses per

Respondent: 0.313.

Estimated Total Annual Burden on

Respondents: 52 hours.

Total Cost: $1,040.

Estimated Total Annual Burden on

Respondents: 200.95 hours total or 0.1

hours per respondent.

Estimated Total Annual Costs: $4,019

or $2 per respondent.

AMS is soliciting comments from all

interested parties concerning the

information collection requirements

contained in this proposed rule.

Comments are specifically invited on

the following: (1) The accuracy of the

agency’s burden estimate of the

proposed collection of information

including the validity of the

methodology and assumptions used; (2)

ways to minimize the burden of the

collection of information on those who

would respond, including through the

use of appropriate electronic collection

methods; (3) whether the proposed

collection of information is sufficient or

necessary for the proper performance of

the functions of the agency to perform

this program; and (4) ways to enhance

the quality, utility, and clarity of the

information to be collected.

Send two copies of comments

concerning the collection requirements

of this proposed rule to Barry L.

Carpenter, Deputy Administrator,

Livestock and Seed Program, Docket No.

LS–99–12, Room 2092 South

Agriculture Building, 1400

Independence Ave., SW, Washington,

DC 20250–0249.

All comments received in response to

this notice will be considered part of the

public record and will be available for

viewing in Room 2092 South

Agriculture Building, 1400

Independence Ave., SW, Washington,

DC 20250–0249 between 8:30 a.m. and

4:30 p.m., Monday through Friday.

Comments concerning the

information collection under the PRA

should also be sent to the Desk Officer

for Agriculture, Office of Information

and Regulatory Affairs, Office of

Management and Budget, Washington,

DC 20503.

List of Subjects in 7 CFR Part 54

Food grades and standards, Food

labeling, Meat and meat products.

For the reasons set forth in the

preamble 7 CFR part 54 is proposed to

be amended as follows:

PART 54—MEATS, PREPARED

MEATS, AND MEAT PRODUCTS

(GRADING, CERTIFICATION, AND

STANDARDS)

1. The authority citation for part 54 is

revised to read as follows:

Authority: 7 U.S.C. 1621–1627; Pub. L.

105–277, sec. 747)

35864 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules

2. In part 54 a new subpart C

consisting of §§ 54.1001 through

54.1034 is added to read as follows:

Subpart C—Regulations Governing the

Certification of Sanitary Design and

Fabrication of Equipment Used in the

Slaughter, Processing, and Packaging

of Livestock and Poultry Products

Sec.

54.1001 Meaning of words.

54.1002 Terms defined.

54.1003 Designation of official certificates,

memoranda, marks, and other

identifications for purposes of the

Agricultural Marketing Act of 1946.

54.1004 Administration and

implementation.

54.1005 Basis of service.

54.1006 Kind of service.

54.1007 Availability of service.

54.1008 How to obtain service.

54.1009 Order of furnishing service.

54.1010 When request for service deemed

made.

54.1011 Withdrawal of application or

request for service.

54.1012 Authority of agent.

54.1013 When an application may be

rejected.

54.1014 Accessibility of equipment and

utensils; access to establishments.

54.1015 Official reports, forms, and

certificates.

54.1016 Advance information concerning

service rendered.

54.1017 Authority to use official

identification.

54.1018 Form of official identification and

approval for use.

54.1019 Renewal of Acceptance

Certification.

54.1020 Appeal service; marking products

or appeal; requirements for appeal;

certain determinations not appealable.

54.1021 Request for appeal service.

54.1022 When request for appeal service

may be withdrawn.

54.1023 Denial or withdrawal of appeal

service.

54.1024 Who shall perform appeal service.

54.1025 Appeal reports.

54.1026 Superseded reports.

54.1027 Application of other regulations to

appeal service.

54.1028 Fees and other charges for service.

54.1029 Payment of fees and other charges.

54.1030 Identification.

54.1031 Errors in service.

54.1032 Denial or withdrawal of service.

54.1033 Confidential treatment.

54.1034 OMB control numbers assigned

pursuant to the Paperwork Reduction

Act.

Subpart C—Regulations Governing the

Certification of Sanitary Design and

Fabrication of Equipment Used in the

Slaughter, Processing, and Packaging

of Livestock and Poultry Products

§ 54.1001 Meaning of words.

For the purposes of the regulations in

this subpart, words in the singular form

shall be deemed to impart the plural

and vice versa, as the case may demand.

§ 54.1002 Terms defined.

Act. The Agricultural Marketing Act

of 1946, as amended (7 U.S.C. 1621–

1627).

Administrator. The Administrator of

the Agricultural Marketing Service

(AMS), United States Department of

Agriculture, or the representative to

whom authority has been delegated to

act in the stead of the Administrator.

Agricultural Marketing Service (AMS).

The Agricultural Marketing Service of

the United States Department of

Agriculture.

Applicant. Any person who applies

for service under the regulations in this

subpart.

Branch. The Dairy Grading Branch,

Dairy Programs, Agricultural Marketing

Service.

Chief. The Chief of the Dairy Grading

Branch, Dairy Programs, Agricultural

Marketing Service, or the representative

to whom authority has been delegated to

act in the stead of the Chief.

Compliance. Conformity of a

processing system, piece of processing

equipment, or a utensil to identified

specifications or standards.

Department. The United States

Department of Agriculture.

Deputy Administrator. The Deputy

Administrator of the Dairy Programs of

the Agricultural Marketing Service or

any officer or employee of the Dairy

Programs to whom authority has

heretofore been delegated, or to whom

authority may hereafter be delegated to

act in the stead of the Deputy

Administrator.

Design Review Specialist. An

employee of the Branch to determine

and certify or otherwise evaluate the

compliance of equipment or utensils

under the regulations.

Design Evaluation and Certification

Service. The service established and

conducted under the regulations for the

evaluation and certification or other

identification of the compliance of

equipment or utensils used for the

slaughter, processing or packaging of

livestock and poultry products (Referred

to hereinafter as ‘‘equipment’’ or

‘‘utensils’’) with sanitary specifications

or standards.

Fabricator. Commercial entity

engaged in the manufacture or assembly

of equipment or utensils.

Financially interested person. Any

person having a financial interest in the

equipment or utensils involved,

including but not limited to the

designer, fabricator, or user of the

equipment or utensils.

Legal Holiday. Those days designated

as legal public holidays in Title 5,

United States Code, section 6103(a).

Person. Any individual, partnership,

corporation, or other legal entity, or

Government agency.

Processing. Cooking, baking, curing,

heating, drying, mixing, grinding,

churning, separating, extracting, cutting,

fermenting, eviscerating, preserving,

dehydrating, freezing, or otherwise

manufacturing, and includes the

packaging, canning, jarring, or otherwise

enclosing in a container.

Program. The Dairy Programs of the

Agricultural Marketing Service.

Standards. The most recent version of

standards for equipment and utensils

formulated by the NSF/3–A Joint

Committee on Food Processing

Equipment (Referred to hereinafter as

‘‘NSF/3–A’’).

The regulations. The regulations in

this Subpart.

§ 54.1003 Designation of official

certificates, memoranda, marks, and other

identifications, for purposes of the

Agricultural Marketing Act of 1946.

Subsection 203(h) of the Agricultural

Marketing Act of 1946, as amended

provides criminal penalties for various

specified offenses relating to official

certificates, memoranda, and marks or

other identifications, issued or

authorized under section 203 of said

Act, and certain misrepresentations

concerning the inspection or grading of

agricultural products under said section.

For the purposes of said subsection and

the provisions in this subpart, the terms

listed in paragraphs (a) through (c) of

this section shall have the respective

meanings specified:

(a) Official certificate means any form

of certification, either written or

printed, used under the regulations to

certify with respect to the evaluation,

review, condition, or acceptance of

equipment or utensils (including the

compliance of equipment or utensils

with applicable standards).

(b) Official memorandum means any

initial record of findings made by an

authorized employee of the Dairy

Grading Branch in the process of

determining compliance, evaluating, or

reviewing equipment or utensils

pursuant to the regulations, any

processing or in plant-operation report

made by an authorized Dairy Grading

Branch employee in connection with

determining compliance, evaluating, or

reviewing equipment or utensils under

the regulations, and any report made by

an authorized employee of the Dairy

Grading Branch of any other services

performed pursuant to the regulations.

(c) Official mark or other official

identification means any form of mark

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules 35865

or other identification, including those

prescribed in § 54.1018; used under the

regulations in marking any equipment

or utensils or displayed as an indication

that the equipment or utensils has been

evaluated by AMS (including the

compliance of the equipment or utensils

with applicable standards).

§ 54.1004 Administration and

implementation.

The Administrator designates the

administration and implementation of

the Certification of Sanitary Design and

Fabrication of Equipment Used in the

Slaughter, Processing, and Packaging of

Livestock and Poultry Products service

to the Dairy Grading Branch, Dairy

Programs, Agricultural Marketing

Service. The Chief is charged with the

administration, under the general

supervision and direction of the Deputy

Administrator, of the regulations and

the Act insofar as they relate to

equipment or utensils used to process

livestock and poultry products.

§ 54.1005 Basis of service.

(a) Certification of Sanitary Design

and Fabrication of Equipment Used in

the Slaughter, Processing, and

Packaging of Livestock and Poultry

Products service shall be performed in

accordance with the provisions of this

subpart, the instructions, guidelines and

procedures issued or approved by the

Chief and the applicable standards

developed by the NSF/3–A.

(b) Copies of standards developed by

NSF/3–A that AMS will inspect and

certify to are available, for a nominal

fee, from NSF International, 3475

Plymouth Road, Ann Arbor, MI 48105;

www.nsf.org; Phone (800) 673–6275;

Fax (734) 769–9064. Copies of all other

instructions, guidelines and procedures

can be obtained from, and copies of

standards developed by NSF/3–A may

be inspected at, the U.S. Department of

Agriculture, Agricultural Marketing

Service, Dairy Programs, Dairy Grading

Branch; Room 2750–S; 1400

Independence Ave., SW., Washington,

DC 20250–6456.

(c) All services provided in

accordance with the regulations shall be

rendered without discrimination on the

basis of race, color, national origin,

gender, religion, age, disability, political

beliefs, sexual orientation, or marital or

family status.

§ 54.1006 Kind of service.

Certification of Sanitary Design and

Fabrication of Equipment Used in the

Slaughter, Processing, and Packaging of

Livestock and Poultry Products service

under the regulations shall consist of

the evaluation, certification and/or

identification, upon request by the

applicant, of the adherence of the design

and fabrication of equipment and

utensils to sanitary principles and

criteria under applicable standards

identified in this subpart. Determination

as to equipment or utensils compliance

with standards for materials of

fabrication or method of fabrication may

be based upon information received

from the fabricator.

§ 54.1007 Availability of service.

Service under these regulations may

be made available to the designers,

fabricators, users, or other interested

person or party, of the equipment or

utensils. Subject to the provisions of

this subpart, services shall be performed

only when a qualified design review

specialist is available, and when the

location of the equipment or utensils,

evaluation facilities and conditions, as

determined by the Chief, are suitable for

conducting such service.

§ 54.1008 How to obtain service.

(a) Application. Any person may

apply to the Chief for service under the

regulations with respect to equipment or

utensils in which the applicant is

financially interested. The application

shall be made on a form approved by

the Chief. In any case in which the

service is intended to be furnished at an

establishment not operated by the

applicant, the applicant shall be

responsible for obtaining approval for

accessibility of the equipment or utensil

from the operator of such establishment

and such approval shall constitute an

authorization for any employees of the

Department to enter the establishment

for the purpose of performing their

functions under the regulations. The

application shall state:

(1) The name and address of the

establishment at which service is

desired;

(2) The name and post office address

of the applicant;

(3) Identification of the party that will

be responsible for payment of all

services rendered in response to the

request;

(4) The type of equipment or utensil

presented for evaluation;

(5) The date(s) on which service is

requested to be performed; and

(6) The signature of the applicant (or

the signature and title of the applicant’s

representative) and date of the request.

(b) Notice of eligibility for service. The

applicant for service will be notified

whether the applicant’s application is

approved.

§ 54.1009 Order of furnishing service.

Service under the regulations shall be

furnished to applicants, insofar as

practicable and subject to the

availability of qualified design review

specialist, in the order in which

requests therefor are received, insofar as

consistent with good management,

efficiency and economy. Precedence

will be given, when necessary, to

requests made by any government

agency and to requests for appeal

service under § 54.1021.

§ 54.1010 When request for service

deemed made.

A request for service under the

regulations shall be deemed to be made

when received by the Branch. Records

showing the date and time of the request

shall be maintained.

§ 54.1011 Withdrawal of application or

request for service.

An application or a request for service

under the regulations may be

withdrawn by the applicant at any time

before the application is approved or

prior to performance of service. The

applicant shall be responsible for

payment, in accordance with §§ 54.1028

and 54.1029, of any expenses already

incurred by the Agricultural Marketing

Service in connection therewith.

§ 54.1012 Authority of agent.

Proof of the authority of any person

making an application or a request for

service under the regulations on behalf

of any other person may be required at

the discretion of the Deputy

Administrator or Chief or other

employee receiving the application or

request under § 54.1008.

§ 54.1013 When an application may be

rejected.

(a) An application or a request for

service may be denied by the design

review specialist, with the concurrence

of the Deputy Administrator or Chief:

(1) For administrative reasons such as

the non-availability of personnel to

perform the service;

(2) In case the application or request

relates to equipment or utensils which

are not eligible for service under

§ 54.1006;

(3) The applicant fails to meet either

the application requirements prescribed

in this subpart or the conditions for

receiving such service;

(4) The equipment or utensil is owned

by, or located on the premises of, a

person currently denied the benefits of

the Act;

(5) The applicant has substantial

financial ties to a person who is

currently denied the benefits of the Act,

or who has been adjudged, in an

administrative or judicial proceeding,

responsible in any way for a current

35866 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules

denial of benefits of the Act to any other

person.

(6) The applicant is currently denied

services under the Act.

(7) Any fees billed to the applicant are

not paid within 30 days; or

(8) The applicant has failed to comply

with the Act or this subpart or with the

instructions, guidelines or procedures

issued hereunder.

(b) The Chief shall provide notice to

an applicant whose application is

rejected, and shall explain the reason(s)

for the rejection. If such notification is

made verbally, written confirmation

may be provided.

§ 54.1014 Accessibility of equipment and

utensils; access to establishments.

(a) The applicant shall cause

equipment and utensils to be made

easily accessible for examination and to

be so placed, with adequate

illumination to facilitate evaluation for

compliance. The applicant shall furnish

or make available any necessary tools;

such as boroscope, profilometer,

disassembly tools, ladders, radius

gauges, and the like; necessary to

complete the evaluation.

(b) Supervisors of USDA design

review specialists responsible for

maintaining uniformity and accuracy of

service under the regulations shall have

access to all parts of establishments

covered by approved applications for

service under the regulations, for the

purpose of examining all equipment or

utensils in the establishments which

have been or are to be evaluated for

compliance with standards or which

bear any marks of compliance.

§ 54.1015 Official reports, forms, and

certificates.

(a) Report. The design review

specialist shall prepare, sign, and issue

a narrative report covering the

observations, comments and

recommendations based on the

evaluation for conformance with

standards of equipment and utensils as

provided for in § 54.1005 and indicate

the fees and other charges incurred for

the services rendered.

(b) Forms. Form DA–161 is the official

certificate for equipment or utensils

evaluated and is accepted under the

regulations. Issuance of this certificate is

optional at the request of the applicant.

(c) Distribution. The original report

and official certificate (if requested)

shall be delivered or mailed to the

applicant or other persons designated by

the applicant. Other copies shall be

forwarded as required by agency,

program, and branch instructions.

Additional copies will be furnished to

any person financially interested in the

equipment or utensil involved with the

concurrence of the applicant and upon

payment of fees, as provided in

§§ 54.1028 and 54.1029.

§ 54.1016 Advance information concerning

service rendered.

Upon request of any applicant, all or

any part of the contents of any report

issued to the applicant under the

regulations, or other notification

concerning the determination of

compliance of equipment or utensils for

such applicant may be transmitted by

facsimile transmission to the applicant,

or to any person designated by the

applicant at the applicant’s expense.

§ 54.1017 Authority to use official

identification.

The Chief may authorize an applicant

or any persons designated by the

applicant to use the official

identification symbol to mark

equipment or utensils, or for display in

descriptive or promotional materials

providing the equipment or utensils is

evaluated pursuant to this subpart and

found to be in compliance.

§ 54.1018 Form of official identification

and approval for use.

(a) The official identification symbol

approved for use on equipment,

utensils, or descriptive or promotional

materials shall appear in the form and

design shown in Figure 1.

(b) The official identification symbol

on equipment or utensils shall be

displayed by etching or the placement

of a non-removable sticker located in

close proximity to the equipment

identification plate.

(c) The official identification symbol

shall be sufficiently large to be

identifiable and legible.

(d) The official identification symbol

shall not be used in descriptive and

promotional materials without prior

approval by the Chief. The official

identification symbol, if used, on the

descriptive or promotional materials

shall be printed as part of the text or

format.

(e) An applicant shall submit to the

Chief of the Dairy Grading Branch, Dairy

Programs, Agricultural Marketing

Service, U.S. Department of Agriculture,

PO Box 96456, Washington, DC 20090–

6456, an application, if one is not on

file, requesting approval to use the

official identification symbol on

officially accepted equipment and in

descriptive or promotional materials.

BILLING CODE 3410–02–P

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules 35867

BILLING CODE 3410–02–C

§ 54.1019 Renewal of acceptance

certification.

Any equipment and utensil which has

been issued a report or certification

stating acceptance of compliance, or

approval to display official

identification shall resubmit the design

and fabrication details of the equipment

or utensil whenever a change of design

or fabrication has occurred but in no

case longer than four years after the date

of the most recent report stating

acceptance of compliance. If no design

or fabrication changes have been made,

the applicant may submit a certificate of

conformance signed by the chief

engineering officer and the chief

executive officer of the company stating

that no design changes have been made

to the specified equipment or utensil.

§ 54.1020 Appeal service; marking

equipment or utensils on appeal;

requirements for appeal; certain

determinations not appealable.

(a) Appeal service is a re-evaluation of

the compliance of a piece of equipment,

portion of a piece of equipment, or

utensil to design or fabrication criteria

according to the standards prescribed by

this subpart.

(b) Only the original applicant or their

representative may request appeal

service requesting a reevaluation on the

original determination of the design and

fabrication of the equipment or utensil

for compliance with the standards

specified in this subpart.

(c) Appeal service will not be

furnished for:

(1) A piece of equipment, portion of

a piece of equipment, or utensil which

has been altered or has undergone a

material change since the original

service.

(2) For the purpose of obtaining an

up-to-date report or certificate which

does not involve a question as to the

correctness of the original service for the

piece of equipment, portion of a piece

of equipment, or utensil.

35868 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules

§ 54.1021 Request for appeal service.

(a) Except as otherwise provided in

§ 54.1020, an applicant or other persons

who have a financial interest in a piece

of equipment, portion of a piece of

equipment, or utensil under the

regulations may request appeal service

when the applicant or other persons

who have a financial interest in a piece

of equipment, portion of a piece of

equipment, or utensil disagree with the

determination as to compliance with the

standard of the piece of equipment,

portion of a piece of equipment, or

utensil as documented in the applicable

report.

(b) A request for appeal service shall

be filed with the Chief, directly or

through the design review specialist

who performed the original service. The

request shall state the reasons for the

disagreement with the original

determination and may be accompanied

by a copy of any previous certificate or

report, or any other information which

the applicant may have received

regarding the piece of equipment,

portion of a piece of equipment, or

utensil at the time of the original

service. Such request may be made

orally (including by telephone) or in

writing (including by facsimile

transmission). If made orally, the Dairy

Grading Branch employee receiving the

request may require that it be confirmed

in writing.

§ 54.1022 When request for appeal service

may be withdrawn.

A request for appeal service may be

withdrawn by the applicant at any time

before the appeal service has been

performed, upon payment of any

expenses already incurred under the

regulations by the Branch in connection

therewith.

§ 54.1023 Denial or withdrawal of appeal

service.

A request for appeal service may be

rejected or such service may be

otherwise denied to or withdrawn from

any person in accordance with the

procedure set forth in § 54.1013(a), if it

appears that the person or product

involved is not eligible for appeal

service under § 54.1020, or that the

identity of the piece of equipment,

portion of a piece of equipment, or

utensil has been lost; or for any of the

causes set forth in § 54.1013(a).

§ 54.1024 Who shall perform appeal

service.

Appeal service for equipment or

utensils shall be performed by the Chief

or a design review specialist designated

by the Chief. No design review

specialist may perform appeal service

for any piece of equipment, portion of

a piece of equipment or utensil for

which the original design review

specialist performed the initial

evaluation service.

§ 54.1025 Appeal reports.

After appeal service has been

performed for any piece of equipment,

portion of a piece of equipment or

utensils, an official report shall be

prepared, signed, and issued referring

specifically to the original report and

stating the determination of the reevaluation of compliance of the piece of

equipment, portion of a piece of

equipment or utensil.

§ 54.1026 Superseded reports.

The appeal report shall supersede the

original report which, thereupon, shall

become null and void for that portion of

the report pertaining to the appeal

service and shall not thereafter be

deemed to show the compliance of the

equipment or utensils described therein.

However, the fees charged for the

original service shall not be remitted to

the applicant who filed the appeal.

§ 54.1027 Application of other regulations

to appeal service.

The regulations in § 54.1001 through

54.1019 and § 54.1028 through 54.1034

shall apply to appeal service except

insofar as they are inapplicable.

§ 54.1028 Fees and other charges for

service.

Fees and other charges equal as nearly

as may be to the cost of the services

rendered shall be assessed and collected

from applicants in accordance with the

provisions for Fees and Charges set forth

in 7 CFR Part 58, Subpart A,—

Regulations Governing the Inspection

and Grading Services of Manufactured

or Processed Dairy Products, § 58.38,

§ 58.39, § 58.41, § 58.42, and § 58.43, as

appropriate.

§ 54.1029 Payment of fees and other

charges.

Fees and other charges for service

shall be paid upon receipt of billing for

fees and other charges for service. The

applicant shall remit by check, draft, or

money order, made payable to the

Agricultural Marketing Service, USDA,

payment for the service in accordance

with directions on the billing, and such

fees and charges shall be paid in

advance if required by the official

design review specialist or other

authorized official.

§ 54.1030 Identification.

All official design review specialists

and supervisors shall have their

Agricultural Marketing Service

identification cards in their possession

at all times while they are performing

any function under the regulations and

shall identify themselves by such cards

upon request.

§ 54.1031 Errors in service.

When a design review specialist,

supervisor, or other responsible

employee of the Branch has evidence of

inaccurate evaluation, or of incorrect

certification or other incorrect

determination or identification as to the

compliance of a piece of equipment or

utensil, such person shall report the

matter to the Chief. The Chief will

investigate the matter and, if deemed

advisable, will report any material

errors to the owner or the owner’s agent.

The Chief shall take appropriate action

to correct errors found in the

determination of compliance of

equipment or utensils, and the Chief

shall take adequate measures to prevent

the recurrence of such errors.

§ 54.1032 Denial or withdrawal of service.

(a) For misconduct—(1) Bases for

denial or withdrawal. An application or

a request for service may be rejected, or

the benefits of the service may be

otherwise denied to, or withdrawn from,

any person who, or whose employee or

agent in the scope of the person’s

employment or agency:

(i) Has wilfully made any

misrepresentation or has committed any

other fraudulent or deceptive practice in

connection with any application or

request for service under the

regulations;

(ii) Has given or attempted to give, as

a loan or for any other purpose, any

money, favor, or other thing of value, to

any employee of the Department

authorized to perform any function

under the regulations;

(iii) Has interfered with or obstructed,

or attempted to interfere with or to

obstruct, any employee of the

Department in the performance of duties

under the regulations by intimidation,

threats, assaults, abuse, or any other

improper means;

(iv) Has knowingly falsely made,

issued, altered, forged, or counterfeited

any official certificate, memorandum,

mark, or other identification;

(v) Has knowingly uttered, published,

or used as true any such falsely made,

issued, altered, forged, or counterfeited

certificate, memorandum, mark or

identification;

(vi) Has knowingly obtained or

retained possession of any such falsely

made, issued, altered, forged, or

counterfeited certificate, memorandum,

mark or identification, or of any

equipment or utensil bearing any such

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Proposed Rules 35869

falsely made, issued, altered, forged, or

counterfeited mark or identification;

(vii) Has applied the designation

‘‘USDA Accepted Equipment’’, ‘‘AMS

Accepted Equipment’’, ‘‘USDA

Approved Equipment’’, ‘‘AMS

Approved Equipment’’, ‘‘Approved By

USDA’’, ‘‘Approved By AMS’’,

‘‘Accepted By USDA’’, ‘‘Accepted By

AMS’’, ‘‘USDA Approved’’, ‘‘USDA

Accepted’’, ‘‘AMS Approved’’, ‘‘AMS

Accepted’’, or any other variation of

wording which states or implies official

sanction by the United States

Department of Agriculture by stamp, or

brand directly on any equipment or

utensil, or used as part of any

promotional materials which has not

been inspected and deemed in

compliance with this subpart; or,

(viii) Has in any manner not specified

in this paragraph violated subsection

203(h) of the AMA: Provided, That

paragraph (a)(1)(vi) of this section shall

not be deemed to be violated if the

person in possession of any item

mentioned therein notifies the Deputy

Administrator or Chief without such

delay that such person has possession of

such item and, in the case of an official

identification, surrenders it to the Chief,

and, in the case of any other item,

surrenders it to the Deputy

Administrator or Chief or destroys it or

brings it into compliance with the

regulations by obliterating or removing

the violative features under supervision

of the Deputy Administrator or Chief:

And provided further, That paragraphs

(a)(1) (ii) through (vii) of this section

shall not be deemed to be violated by

any act committed by any person prior

to the making of an application of

service under the regulations by the

principal person. An application or a

request for service may be rejected or

the benefits of the service may be

otherwise denied to, or withdrawn from,

any person who operates an

establishment for which such person

has made application for service if, with

the knowledge of such operator, any

other person conducting any operations

in such establishment has committed

any of the offenses specified in

paragraphs (a)(1) (i) through (vii) of this

section after such application was made.

Moreover, an application or a request

for service made in the name of a person

otherwise eligible for service under the

regulations may be rejected, or the

benefits of the service may be otherwise

denied to, or withdrawn from, such a

person.

(A) In case the service is or would be

performed at an establishment operated:

(1) By a corporation, partnership, or

other person from whom the benefits of

the service are currently being withheld

under this paragraph, or

(2) By a corporation, partnership, or

other person having an officer, director,

partner, or substantial investor from

whom the benefits of the service are

currently being withheld and who has

any authority with respect to the

establishment where service is or would

be performed; or

(B) In case the service is or would be

performed with respect to any product

in which any corporation, partnership,

or other person within paragraph

(a)(1)(viii)(A)(1) of this section has a

contract or other financial interest.

(2) Procedure. All cases arising under

this paragraph shall be conducted in

accordance with the Rules of Practice

Governing Formal Adjudicatory

Proceedings Instituted by the Secretary

Under Various Statutes set forth in 7

CFR §§ 1.130 through 1.151 and the

Supplemental Rules of Practice in part

50, 7 CFR § 50.1 et seq.

(b) Filing of records. The final orders

in formal proceedings under paragraph

(a) of this section to deny or withdraw

the service under the regulations (except

orders required for good cause to be

held confidential and not cited as

precedents) and other records in such

proceedings (except those required for

good cause to be held confidential) shall

be filed with the Hearing Clerk and shall

be available for inspection by persons

having a proper interest therein.

§ 54.1033 Confidential treatment.

Every design review specialist

providing service under these

regulations shall keep confidential all

information secured and not disclose

such information to any person except

an authorized representative of the

Department.

§ 54.1034 OMB control numbers assigned

pursuant to the Paperwork Reduction Act.

The following control number has

been assigned to the information

collection requirements in 7 CFR Part

54, Subpart C, by the Office of

Management and Budget pursuant to the

Paperwork Reduction Act of 1995 (44

U.S.C. Chapter 35).

7 CFR section where requirements are described

Current

OMB

control No.

54.1008(a) ............................ 0581–0126

54.1017 ................................. 0581–0126

54.1018(e) ............................ 0581–0126

54.1019 ................................. 0581–0126

54.1020 ................................. 0581–0126

54.1021 ................................. 0581–0126

Dated: June 1, 2000.

Barry L. Carpenter,

Deputy Administrator, Livestock and Seed

Program.

[FR Doc. 00–14113 Filed 6–5–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 2000–SW–03–AD]

Airworthiness Directives; MD

Helicopters, Inc. Model MD–900

Helicopters

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes the

adoption of a new airworthiness

directive (AD) for MD Helicopters, Inc.

(MDHI) Model MD–900 helicopters. The

AD would require modifying the nonrotating swashplate assembly and reidentifying it and the swashplate

assembly with a new part number (P/N).

The AD would also require creating a

component history card or equivalent

record to track the life of the newly

identified non-rotating swashplate

assembly and establishing a life limit of

1800 hours time-in-service (TIS). In

addition, the AD would require

inspecting and modifying, if necessary,

the longitudinal drive link assembly.

This proposal is prompted by reports of

damage to the longitudinal drive link

assembly caused by the sharp inner

edge of the bushing in the non-rotating

swashplate assembly. The actions

specified by the proposed AD are

intended to prevent damage to the

longitudinal drive link, loss of control of

the main rotor system, and subsequent

loss of control of the helicopter.

DATES: Comments must be received on

or before August 7, 2000.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Office of the

Regional Counsel, Southwest Region,

Attention: Rules Docket No. 2000–SW–

03–AD, 2601 Meacham Blvd., Room

663, Fort Worth, Texas 76137. You may

also send comments electronically to

the Rules Docket at the following

address: 9-asw-adcomments@faa.gov.

Comments may be inspected at the

Office of the Regional Counsel between

9 a.m. and 3 p.m., Monday through

Friday, except Federal holidays.