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the Administrator determines that the application is an attempt on the part of a person currently denied the benefits of the Act to obtain service; (e) whenever the applicant, after an initial survey has been made in accordance with § 55.140 (a), fails to bring the plant, facilities, and operating procedures into compliance with the regulations in this part within a reasonable period of time; (f) notwithstanding any prior approval whenever, before inauguration of service, the applicant fails to fulfill commitments concerning the inauguration of the service; (g) when it appears that to perform the services specified in this part would not be to the best interests of the public welfare or of the Government; or (h) when it appears to the Administrator that prior commitments of the Department necessitate rejection of the application. Each such applicant shall be promptly notified by registered mail of the reasons for the rejection. A written petition for reconsideration of such rejection may be filed by the applicant with the Administrator if postmarked or delivered within 10 days after receipt of notice of the rejection. Such petition shall state specifically the errors alleged to have been made by the Administrator in rejecting the application. Within 20 days following the receipt of such a petition for reconsideration, the Administrator shall approve the application or notify the applicant by registered mail of the reasons for the rejection thereof.

§ 55.160 When application may be withdrawn.

An application for service may be withdrawn by the applicant at any time before the service is performed upon payment, by the applicant, of all expenses incurred by AMS in connection with such application.

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suspended for (1) failure to maintain plant and equipment in a satisfactory state of repairs; (2) the use of operating procedures which are not in accordance with the regulations in this part; or (3) alterations of buildings, facilities, or equipment which cannot be approved in accordance with the regulations in this part.

(b) During such period of suspension, inspection service shall not be rendered. However, the other provisions of the regulations in this part pertaining to providing service on a resident basis will remain in effect unless service is terminated in accordance with the terms thereof. If the plant facilities or methods of operation are not brought into compliance within a reasonable period of time to be specifiled by the Administrator, the application and service shall be terminated. Upon termination of service in an official plant pursuant to the regulations in this part, the plant approval shall also become terminated and all labels, seals, tags, or packaging material bearing official identification shall, under the supervision of a person designated by the Administrator, either be destroyed, or the official identification completely obliterated, or sealed in acceptable to the Department. DENIAL OF SERVICE Debarment.

§ 55.200

a manner

(a) The following acts or practices or the causing thereof may be deemed sufficient cause for the debarment by the Administrator, of any person, including any agents, officers, subsidiaries, or affiliates of such person, from any or all benefits of the Act for a specified period. The rules of practice governing withdrawal of inspection and grading services set forth in Part 50 of this chapter shall be applicable to such a debarment action:

(1) Misrepresentation, deceptive, or fraudulent act or practice. Any willful misrepresentation or any deceptive or fraudulent act or practice found to be made or committed by any person in connection with:

(i) The making or filing of an application for any service or appeal;

(ii) The making of the product accessible for sampling, grading or inspection;

(iii) The making, issuing or using or attempting to issue or use any certificate,

symbol, stamp, label, seal, or identification authorized pursuant to the regulations in this part;

(iv) The use of the terms "United States," "U.S.," "Government Graded," "Federal-State Graded," "U.S. Inspected," "Government Inspected," or terms of similar import in the labeling or advertising of any product;

(v) The use of any official stamp, symbol, label, seal, or identification in the labeling or advertising of any product.

(2) Use of facsimile forms. Using or attempting to use a form which simulates in whole or in part any certificate, symbol, stamp, label, seal, or identification authorized to be issued or used under the regulations in this part.

(3) Willful violation of the regulations. Any willful violation of the regulations in this part or the Act.

(4) Interfering with a grader, inspector, or employee of AMS. Any interference with or obstruction or any attempted interference or obstruction of or assault upon any grader, licensee, inspector or employee of AMS in the performance of his duties. The giving or offering, directly or indirectly, of any money, loan, gift, or anything of value to an employee of AMS, or the making or offering of any contribution to or in any way supplementing the salary, compensation or expenses of an employee of AMS, or the offering or entering into a private contract or agreement with an employee of AMS for any services to be rendered while employed by AMS.

(5) Miscellaneous. The existence of any of the conditions set forth in § 55.150 constituting the basis for the rejection of an application for grading or inspection service.

§ 55.220 Other applicable regulations.

Compliance with the regulations in this part shall not excuse failure to comply with any other Federal or any State or municipal applicable laws or regulations.

§ 55.240 Report of violations.

Each grader and inspector shall report, in the manner prescribed by the Administrator, all violations and noncompliance under the Act and this part of which such grader or inspector has knowledge.

§ 55.260 Reuse of containers bearing official identification prohibited. The reuse, by any person, of containers bearing official identification is prohib

ited unless such identification is applicable in all respects to product being packed therein. In such instances, the container and label may be used provided the packaging is accomplished under the supervision of an inspector or grader and the container is in clean, sound condition and lined with a suitable inner liner.

IDENTIFYING AND MARKING PRODUCTS § 55.300 Approval of official identification.

Labeling procedures, required information on labels, and method of label approval, shall be in accordance with and conform with the applicable provisions of § 59.411 of this chapter, regulations governing the inspection of eggs and egg products, except where "egg product(s) is used in § 59.411, the word "product (s)" shall be substituted and used for this Part 55.

[40 FR 20055, May 8, 1975]

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§ 55.310 Form of official identification symbol and inspection mark.

(a) The shield set forth in Figure 1, containing the letters "USDA," shall be the official identification symbol for the purposes of this part and when used, imitated, or simulated in any manner in connection with a product shall be deemed to constitute a representation that the product has been officially inspected for the purpose of § 55.5.

(b) The inspection marks which are permitted to be used on products shall be contained within the outline of a shield and with the wording and design set forth in Figure 2 of this section, except the plant number may be omitted from the official identification if applied elsewhere on the container.

USDA

FIGURE 1.

USDA

INSPECTED

EGG PRODUCTS

PLANT 42

FIGURE 2.

[36 FR 11795, June 19, 1971, as amended at 40 FR 20055, May 8, 1975]

§ 55.320 Products that may bear the inspection mark.

Products which are permitted to bear the inspection mark shall be processed in an official plant from edible shell eggs or other edible egg products eligible to bear the inspection mark and may contain other edible ingredients. The official mark, when used, shall be printed or lithographed and applied as a part of the principal display panel of the container, but shall not be applied to a detachable

cover.

§ 55.330

Unauthorized use or disposi

tion of approved labels.

(a) Containers or labels which bear official identification approved for use pursuant to § 55.300 shall be used only for the purpose for which approved. Any unauthorized use or disposition of approved containers or labels which bear any official identification may result in cancellation of the approval and denial of the use of containers or labels bearing official identification or denial of the benefits of the Act pursuant to the provisions of § 55.200;

(b) The use of simulations or imitations of any official identification by any person is prohibited;

(c) Once a year or more often, if requested, each applicant shall submit to the Administrator a list of approved labels which bear any official identification that have become obsolete, accompanied with a statement that such approvals are no longer desired. The approvals shall be identified by the date of approval, approval number, and the name of the product.

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(d) Upon termination of inspection service in an official plant pursuant to the regulations in this part, all labels, seals, tags, or packaging material bearing official identification shall, under the supervision of a person designated by the Regional Director, either be destroyed, or the official identification completely obliterated, or sealed in a manner acceptable to the Department.

[36 FR 11795, June 19, 1971, as amended at 40 FR 20055, May 8, 1975]

§ 55.340 Supervision of marking and packaging.

(a) Evidence of label approval. No grader or inspector shall authorize the use of official identification on any inspected product unless he has on file evidence that such official identification or packaging material bearing such official identification has been approved in accordance with the provisions of § 55.300.

(b) Affixing of official identification. No official identification may be affixed to or placed on or caused to be affixed to or placed on any product or container thereof except by a grader or inspector or under the supervision of a grader or inspector or other person authorized by the Administrator. All such products shall have been inspected in accordance with the regulations in this part. The grader or inspector shall have supervision over the use and handling of all material bearing any official identification.

(c) Labels for products sold under Government contract. The grader or inspector-in-charge may approve labels for containers of product sold under a contract specification to governmental agencies when such product is not offered for resale to the general public: Provided, That the contract specifications include complete specific requirements with respect to labeling, and are made available to the grader or inspector. § 55.350

Accessibility of product.

Each product for which service is requested shall be so placed as to disclose fully its class, quality, quantity, and condition as the circumstances may warrant.

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§ 55.370 Certificate issuance.

(a) Resident service. Certificates will be issued only upon a request therefor by the applicant or AMS. When requested, an inspector shall issue a certificate covering product inspected by him. In addition, an inspector may issue a certificate covering product inspected in whole or in part by another inspector when the inspector has knowledge that the product is eligible for certification based on personal examination of the product or official inspection records.

(b) Other than resident service. Each inspector shall, in person or by his authorized agent, issue a certificate covering each product inspected by him. An inspector's name may be signed on a certificate by a person other than the inspector, if such person has been designated as the authorized agent of such inspector by the National Supervisor: Provided, That the certificate is prepared from an official memorandum of inspection signed by the inspector: And provided further, That a notarized power of attorney authorizing such signature has been issued to such person by the inspector and is on file in the office of the service. In such case, the authorized agent shall sign both his own and the inspector's name, e.g., "John Doe by Richard Roe."

§ 55.380 Disposition of certificates.

The original and a copy of each certificate, issued pursuant to § 55.370 and not to exceed two additional copies thereof if requested by the applicant prior to issuance, shall, immediately upon issuance, be delivered or mailed to the applicant or person designated by him. Other copies shall be filed and retained in accordance with the disposition schedule for inspection program records. Additional copies of any such certificate may be supplied to any interested party as provided in § 55.520. § 55.390 Advance information.

Upon request of an applicant, all or part of the contents of any certificate issued to such applicant may be telephoned or telegraphed to him, or to any person designated by him, at his expense.

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is dissatisfied with the determination by a grader or inspector of the class, quality, quantity, or condition of any product, as evidenced by the USDA inspection mark and accompanying label, or as stated on a certificate and a review may be requested by the operator of an official plant with respect to a grader's or inspector's decision or on any other matter related to grading or inspection in the official plant.

§ 55.410 Where to file an appeal.

(a) Appeal from resident grader's of inspector's grading or decision in an official plant. Any interested party who is not satisfied with the determination of the class, quality, quantity, or condition of product which was graded or inspected by a grader or inspector in an official plant and has not left such plant, and the operator of any official plant who is not satisfied with a decision by a grader or inspector on any other matter relating to grading or inspection in such plant may request an appeal grading or inspection or review of the decision by the grader or inspector by filing such request with the grader's or inspector's immediate supervisor.

(b) All other appeal requests. Any interested party who is not satisfied with the determination of the class, quality, quantity, or condition of product which has left the official plant where it was graded or inspected or which was graded or inspected other than in an official plant may request an appeal grading or inspection by filing such request in the regional office where the product is located or with the Chief of the Grading Branch.

§ 55.420

How to file an appeal.

Any request for an appeal grading or inspection or review of a grader's or inspector's decision may be made orally or in writing. If made orally, written confirmation may be required. The applicant shall clearly state the reasons for requesting the appeal service and a description of the product, or the decision which is questioned. If such appeal request is based on the results stated on an official certificate, the original and all available copies of the certificate shall be returned to the appeal grader or inspector assigned to make the appeal grading or inspection.

§ 55.430

When an application for an appeal grading or inspection may be refused.

When it appears to the official with whom an appeal request is filled that the reasons given in the request are frivolous or not substantial, or that the condition of the product has undergone a material change since the original grading or inspection, or that the original lot has changed in some manner, or the Act or the regulations in this part have not been complied with, the applicant's request for the appeal grading or inspection may be refused. In such case, the applicant shall be promptly notified of the reason(s) for such refusal.

§ 55.440 Who shall perform the appeal. (a) An appeal grading or inspection or review of a decision requested under § 55.410 (a) shall be made by the grader's or inspector's immediate supervisor or by a licensed grader or inspector assigned by the immediate supervisor other than the grader or inspector whose grading or inspection or decision is being appealed.

(b) Appeal gradings or inspections requested under § 55.410 (b) shall be performed by a grader or inspector other than the grader or inspector who originally graded or inspected the product.

(c) Whenever practical, an appeal grading or inspection shall be conducted jointly by two graders or inspectors. The assignment of the grader(s) or inspector(s) who will make the appeal grading or inspection under § 55.410(b) shall be made by the Regional Director or the Chief of the Grading Branch.

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(a) Laboratory analyses. The appeal sample shall consist of product taken from the original sample containers plus an equal number of containers selected at random. When the original sample containers cannot be located, the appeal sample shall consist of product taken at random from double the number of original sample containers.

(b) Condition inspection. The appeal sample shall consist of product taken from the original sample containers plus an equal number of containers selected at random. A condition appeal cannot be made unless all originally sampled containers are available.

§ 55.460 Appeal certificates.

Immediately after an appeal grading or inspection is completed, an appeal cer

tificate shall be issued to show that the original grading or inspection was sustained or was not sustained. Such certificate shall supersede any previously issued certificate for the product involved and shall clearly identify the number and date of the superseded certificate. The issuance of the appeal certificate may be withheld until any previously issued certificate and all copies have been returned when such action is deemed necessary to protect the interest of the Government. When the appeal grader or inspector assigns a different class or quantity designation to the lot, the labeling shall be corrected.

FEES AND CHARGES

§ 55.500 Payment of fees and charges. (a) Fees and charges for any service shall be paid by the interested party making the application for such service, in accordance with the applicable provisions of this section and §§ 55.510 to 55.560, both inclusive. If so required by the grader, inspector, or sampler, such fees and charges shall be paid in advance.

(b) Fees and charges for any service shall, unless otherwise required pursuant to paragraph (c) of this section, be paid by check, draft, or money order payable to the Agricultural Marketing Service and remitted promptly to AMS.

(c) Fees and charges for any service under a cooperative agreement with any State or person shall be paid in accordance with the terms of such cooperative agreement.

$ 55.510 Fees and charges for services other than on a continuous resident basis.

(a) Unless otherwise provided in this part, the fees to be charged and collected for any service (other than for an appeal) performed, in accordance with this part on a fee basis shall be based on the applicable rates specified in §§ 55.510 to 55.560, both inclusive.

(b) Fees for product inspection and sampling for laboratory analysis and appeals will be based on the time required to perform the services. The hourly charge shall be $14 and shall include the time actually required to perform the sampling and inspection, waiting time, travel time, and any clerical costs involved in issuing a certificate.

(c) Services rendered on Saturdays, Sundays, or legal holidays shall be charged for at the rate of $18.48 per hour. Information on legal holidays is available from the Supervisor.

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