Refrigeration Requirements for Shell Eggs

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 56

[Docket No. PY-99-002]

Refrigeration Requirements for Shell Eggs

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Agricultural Marketing Service (AMS) is revising its

regulations governing the voluntary shell egg grading program by adding

a definition of the term ``ambient temperature,'' by amending the

refrigeration requirements, and by adding a labeling requirement.

Amendments to the Egg Products Inspection Act (EPIA) in 1991 involved

refrigeration and labeling requirements to enhance the safety of table

eggs nationwide and to protect the health and welfare of the consuming

public. AMS is amending 7 CFR part 56 to conform to the FSIS

temperature and labeling requirements.

DATES: Effective Date: October 25, 1999.

Comment Date: Comments are due on or before December 21, 1999.

ADDRESSES: Send written comments to Douglas C. Bailey, Chief,

Standardization Branch, Poultry Programs, Agricultural Marketing

Service, U.S. Department of Agriculture, STOP 0259, 1400 Independence

Avenue, SW, Washington, DC 20250-0259. Comments may be faxed to 202/

690-0941.

State that your comments refer to Docket No. PY-99-002 and note the

date and page number of this issue of the Federal Register.

Comments may be inspected at the above location during regular

business hours.

FOR FURTHER INFORMATION CONTACT: Rex A. Barnes, Chief, Grading Branch,

202/720-3271.

SUPPLEMENTARY INFORMATION:

Background

AMS administers a voluntary grading program for shell eggs under

the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621 et

seq.), with implementing regulations in 7 CFR part 56. Any interested

person, commercial firm, or government agency that applies for service

must comply with the terms and conditions of the regulations and must

pay for the services rendered. AMS graders monitor processing

operations and verify the quality, quantity, and condition of eggs

packed into packages bearing official USDA identification. AMS also has

facility and operating requirements for the official plants in which

these services are performed. Currently, about one-third of the

nation's table eggs are marketed under the voluntary grading program.

The EPIA (21 U.S.C. 1031 et seq.) provides for the mandatory

inspection of egg products operations and the mandatory surveillance of

the disposition of shell eggs that are undesirable for human

consumption. From its enactment in 1970, AMS administered the EPIA and

the regulations implementing it in 7 CFR part 59.

Congress amended the EPIA as part of the Food, Agriculture,

Conservation and Trade Act Amendments of 1991 (Pub.L. 102-

237)(hereafter referred to as ``the 1991 EPIA amendments''). The 1991

EPIA amendments require that egg handlers store and transport shell

eggs destined for the ultimate consumer under refrigeration at an

ambient temperature of no greater than 45 deg.F (7.2 deg.C) (21

U.S.C. 1034(e)(1)(A), see also 21 U.S.C. 1037(c)). These refrigeration

requirements apply to shell eggs after they have been packed into a

container destined for the ultimate consumer. Egg handlers are also

required to label shell egg containers to indicate that refrigeration

is required (21 U.S.C. 1034(e)(1)(B)).

The AMS proposed changes to 7 CFR parts 56 and 59 (57 FR 48569,

October 27, 1992). Changes to part 59 would implement the mandatory

1991 EPIA amendments. Changes to part 56 would make conforming changes

to the voluntary shell egg grading regulations.

Before AMS published the final rule, however, the Department

consolidated food safety responsibilities under FSIS following

enactment of the Federal Crop Insurance Reform and Department of

Agriculture Reorganization Act of 1994 (Pub.L. 103-354; 7 U.S.C.

2204e). Responsibility for egg products inspection functions under the

EPIA was 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 (63 FR 45663,

August 27, 1998; effective August 27, 1999). AMS duplicated those

portions of 7 CFR part 59 pertinent to shell egg surveillance and

redesignated them as a new 7 CFR part 57 (63 FR 69968, December 17,

1998; effective December 18, 1998). FSIS redesignated and transferred

the remaining portions of 7 CFR part 59 to 9 CFR part 590 (63 FR 72351,

December 31, 1998; effective December 31, 1998).

The new FSIS temperature and labeling requirements in 9 CFR part

590 became effective August 27, 1999. The proposed changes to 7 CFR

part 56 (shell egg grading) were not finalized when FSIS published its

final rule amending 7 CFR part 59. Therefore, since the proposed rule

was published some years ago, AMS is publishing this rule as an interim

final rule with request for comment, and is only making changes deemed

necessary to avoid a conflict between the requirements of the final

rule published by FSIS and the AMS shell egg grading program.

Comments

One hundred and fifty-nine comments were submitted in response to

the proposed rule amending 7 CFR parts 56 and 59 (57 FR 48569, October

27, 1992). Thirty-one commenters, including private citizens, State

departments of agriculture, several trade associations, and several

members of the egg industry, supported the proposal. The remaining

commenters opposed the proposed rule or suggested alternatives to it.

There were no comments related to the grading of eggs or the

official identification of graded eggs. Rather, most of the opposing

comments covered three primary issues: Labeling, exemption of small

producers, and cost to comply with the regulations. A full discussion

and analysis of these

[[Page 56946]]

comments is found in FSIS' final rule (63 FR 45663, August 27, 1998)

amending 7 CFR part 59 (now 9 CFR part 590).

Summary of Revisions

AMS is revising the regulations in 7 CFR part 56 to conform to the

FSIS temperature and labeling requirements, and is making several minor

technical and editorial changes.

A new term is added to Sec. 56.1 to define ``ambient temperature.''

This term means the air temperature maintained in an egg storage

facility or transport vehicle. This term is revised from that proposed

to conform to regulations promulgated by FSIS to implement the EPIA

amendments.

A new labeling requirement is added to the authority to use

official identification in Sec. 56.35. It requires that consumer

packages bearing official U.S. Grade AA, A, or B identification be

labeled with the words ``Keep Refrigerated'' or words of similar

meaning. This requirement is added to provide graders the authority to

ensure that officially graded eggs are packed into containers that are

properly labeled. AMS' description of containers holding shell eggs

that must bear the refrigeration label (those bearing official grade

marks) is consistent with the type of containers covered by FSIS

regulation. The FSIS regulation pertains to containers destined for the

ultimate consumer.

The temperature requirements specified in Sec. 56.76 (c)(1) and

(f)(1) are changed to conform to the FSIS requirements.

The revision to Sec. 56.76 (c)(1) specifically requires cooler

rooms to be refrigerated and capable of maintaining an ambient

temperature no greater than 45 deg.F (7.2 deg.C). Currently, this

section requires cooler rooms to be capable of reducing within 24 hours

and holding the maximum volume of eggs handled to 60 deg.F (15.6

deg.C) or lower. Text regarding the provision of thermometers is also

revised to clarify that the thermometers would be used to monitor

cooler room temperatures.

The revision to Sec. 56.76 (f)(1) specifically requires that shell

eggs to be officially identified as U.S. Grade AA, A, or B shall be

refrigerated at an ambient temperature no greater than 45 deg.F (7.2

deg.C) promptly after packaging. These eggs, when shipped between

official plants, are also to be transported at an ambient temperature

no greater than 45 deg.F (7.2 deg.C). This, again, is to be

consistent with the FSIS regulation in that shell eggs subject to the

new FSIS temperature requirement are also subject to the revised

temperature requirement under the grading program. Currently, this

section requires that eggs held in the official plant be placed under

refrigeration of 60 deg.F (15.6 deg.C) or lower promptly after

packaging. It also requires officially identified eggs with an internal

temperature of 70 deg.F (21.1 deg.C) or higher to be transported at a

temperature of 60 deg.F (15.6 deg.C) or less when shipped from an

official plant.

AMS is responsible for the voluntary grading of shell eggs for

quality and the official identification of eggs as U.S. Consumer Grades

AA, A, or B. The grades are defined in the official U.S. Standards,

Grades, and Weight Classes for Shell Eggs (AMS-56) that are maintained

by AMS. Once eggs have been officially graded, and are packed into

containers that are officially identified and destined for the ultimate

consumer, they are subject to FSIS' refrigeration requirements.

Occasions can arise, however, where eggs have been officially graded,

but are not yet packed into containers for the ultimate consumer. For

example, during wholesale trading one official plant could grade eggs

and pack them into cases using open trays called flats for shipping to

a second official plant. In AMS' view, these eggs should also be

subject to refrigeration. Therefore, all eggs that are officially

identified as U.S. Consumer Grade AA, A, or B, regardless of the

container type in which they are placed, are covered by this rule.

Finally, the heading for Sec. 56.76 (f) and the text of paragraph

(f)(1) are revised for clarity.

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 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.

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 deg.F

(7.2 deg.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

is publishing 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

[[Page 56947]]

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.

Alternatives to the Rule

AMS considered leaving the current temperature requirements in 7

CFR part 56 unchanged. However, those requirements would then be

different from the FSIS requirements in 9 CFR part 590 mandated by the

1991 EPIA amendments. Because this would create confusion among users

of the regulations by suggesting that storage and transport

temperatures above 45 deg.F (7.2 deg.C) would be permissible, AMS

determined this alternative to be unacceptable. Moreover, by revising

grading program storage and transport temperature requirements to be

consistent with FSIS, AMS can better preserve the quality of officially

identified eggs and better accomplish the program's objective of

providing consumers with high quality shell eggs.

AMS also considered leaving unchanged the proposed phrase

``containers destined for the ultimate consumer'' in Secs. 56.76 (c)(1)

and (f)(1). This phrase does conform to FSIS requirements in 9 CFR part

590. However, occasions can arise where eggs have been officially

graded, but are not yet packed into containers for the ultimate

consumer. AMS therefore chose to make all shell eggs that are to be

officially identified as U.S. Grade AA, A, or B subject to these

regulations.

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.

Pursuant to 5 U.S.C. 535, it is also found and determined upon good

cause that it is impractical, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect, and that good cause exists for not postponing the effective

date of this rule until 30 days after publication in the Federal

Register. This action is necessary to conform AMS temperature and

labeling requirements in 7 CFR part 56 with recent changes to FSIS

requirements in 90 CFR part 590. The FSIS changes became effective on

August 27, 1999. Accordingly, the changes made in this action should be

implemented as soon as possible to eliminate any confusion in the

industry. Furthermore, industry use of this program is voluntary.

List of Subjects in 7 CFR Part 56

Eggs and egg products, Food grades and standards, Food labeling,

Reporting and recordkeeping requirements.

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

follows:

PART 56--VOLUNTARY GRADING OF SHELL EGGS

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

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

2. Section 56.1 is amended by adding alphabetically a new term

ambient temperature to read as follows:

Sec. 56.1 Meaning of words and terms defined.

* * * * *

Ambient temperature means the air temperature maintained in an egg

storage facility or transport vehicle.

* * * * *

3. In Sec. 56.35, paragraph (d) is added to read as follows:

Sec. 56.35 Authority to use, and approval of official identification.

* * * * *

(d) Refrigeration labeling. All containers bearing official U.S.

Grade AA, A, or B identification shall be labeled to indicate that

refrigeration is required, e.g., ``Keep Refrigerated,'' or words of

similar meaning.

4. Section 56.76 is amended by revising paragraphs (c)(1), (f)(1),

(f)(3) and the heading of paragraph (f), to read as follows:

Sec. 56.76 Minimum facility and operating requirements for shell egg

grading and packing plants.

* * * * *

(c) Cooler room requirements. (1) Cooler rooms shall be

refrigerated and capable of maintaining an ambient temperature no

greater than 45 deg.F (7.2 deg.C). Accurate thermometers shall be

provided for monitoring cooler room temperatures.

* * * * *

(f) Requirements for eggs that are to be officially identified. (1)

Shell eggs that are to be officially identified as U.S. Grade AA, A, or

B shall be placed under refrigeration at an ambient temperature no

greater than 45 deg.F (7.2 deg.C) promptly after packaging. Shell

eggs officially identified as U.S. Grade AA, A, or B, when shipped

between official plants, shall be transported at an ambient temperature

no greater than 45 deg.F (7.2 deg.C).

(2) * * *

(3) Eggs that are to be officially identified as U.S. Grade AA, A,

or B shall be packaged only in new or good used cases and packing

materials. Cases and packing materials must be reasonably clean, free

of mold, mustiness, and off odors, and must be of sufficient strength

and durability to adequately protect the eggs during normal

distribution.

* * * * *

Dated: October 15, 1999.

Kathleen A. Merrigan,

Administrator,

Agricultural Marketing Service.

[FR Doc. 99-27546 Filed 10-21-99; 8:45 am]

BILLING CODE 3410-02-P