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49882

Proposed Rules Federal Register


Vol. 70, No. 164

Thursday, August 25, 2005

This section of the FEDERAL REGISTER Executive Order 12866 and Regulatory This proposed fee increase should
contains notices to the public of the proposed Flexibility Act result in an estimated $1.8 million in
issuance of rules and regulations. The additional revenues per year (effective
purpose of these notices is to give interested This rule has been determined to be in FY–2006, if the fees are implemented
persons an opportunity to participate in the ‘‘non-significant’’ for the purposes of by October 1, 2005). This will not cover
rule making prior to the adoption of the final Executive Order 12866, and therefore, all of FPB’s costs. FPB will need to
rules. has not been reviewed by the Office of continue to increase fees in order to
Management and Budget. cover the program’s operating cost and
Also, pursuant to the requirement set maintain the required reserve balance.
DEPARTMENT OF AGRICULTURE
forth in the Regulatory Flexibility Act FPB believes that increasing fees
Agricultural Marketing Service (RFA), AMS has considered the incrementally is appropriate at this
economic impact of this action on small time. Additional fee increases beyond
7 CFR Part 51 entities. Accordingly, AMS proposes FY–2006 will be needed to sustain the
this initial regulatory flexibility program in the future.
[Docket Number FV–04–310] analysis. Employee salaries and benefits are
RIN# 0581–AC46 The purpose of the RFA is to fit major program costs that account for
regulatory actions to the scale of approximately 80 percent of FPB’s total
Revision of Fees for the Fresh Fruit businesses subject to such actions in operating budget. A general and locality
and Vegetable Terminal Market order that small businesses will not be salary increase for Federal employees,
Inspection Services unduly or disproportionately burdened. ranging from 3.71 to 4.87 percent
AGENCY: Agricultural Marketing Service, The proposed action described herein is depending on locality, effective January
USDA. being taken for several reasons, 2005, has significantly increased
including that additional user fee program costs. In addition, general and
ACTION: Proposed rule. revenues are needed to cover the costs locality salary increases for Federal
SUMMARY: This proposed rule revises or: (1) Providing current program employees ranging from 3.90% to 4.92%
regulations governing the inspection operations and services: (2) improving depending on locality, effective from
and certification for fresh fruits, the timeliness in which inspection January 2004, also significantly
vegetables and other products by services are provided; and (3) improving increased program costs. This salary
increasing by approximately 15 percent the work environment. adjustment will increase FPB’s costs by
certain fees charged for the inspection of AMS regularly reviews its user-fee over $700,000 per year. Increases in
these products at destination markets. financed programs to determine if the health and life insurance premiums,
These revisions are necessary in order to fees are adequate. The Fresh Products along with workers compensation will
recover, as nearly as practicable, the Branch (FPB) has and will continue to also increase program costs. In addition,
costs of performing inspection services seek out cost saving opportunities and inflation also impacts FPB’s non-salary
at destination markets. implement appropriate changes to costs. These factors have increased
DATES: Comments must be postmarked, reduce its costs. Such actions can FPB’s costs of operating this program by
courier dated, or sent via the Internet on provide alternatives to fee increases. over $600,000 per year.
or before September 26, 2005. However, even with these efforts, FPB’s Additional funds of approximately
existing fee schedule will not generate $155,000 are necessary in order for FPB
ADDRESSES: Interested persons are
sufficient revenue to cover program to continue to cover the costs associated
invited to submit written comments
costs while maintaining the Agency with additional staff and to maintain
concerning this proposal. Comments
mandated reserve balance. Current office space and equipment. Additional
can be sent to: (1) U.S. Department of
revenue projections for FPB’s revenues are also necessary to improve
Agriculture, Agricultural Marketing
destination market inspection work the work environment by providing
Service, Fruit and Vegetable Programs,
during FY 2005 are $14.6 million with training and purchasing needed
Fresh Products Branch, 1400
costs projected at $20.9 million and an equipment. In addition, FPB began in
Independence Ave., SW., Room 0640–S,
end-of-year reserve balance of $16.4 2001, developing (with appropriated
Washington, DC 20250–0295; (2) faxed
million. However, this reserve balance funds) the Fresh Electronic Inspection
to (202) 720–5136; (3) via e-mail to
is due to appropriated funding received Reporting/Resource System (FEIRS) to
FPB.DocketClerk@usda.gov.; or (4)
in October 2001, for infrastructure, replace its manual paper and pen
Internet: http://www.regulations.gov.
workplace, and technological inspection reporting process. FEIRS was
Comments should make reference to the
improvements. FPB’s costs of operating implemented in 2004. This system has
date and page number of this issue of
the destination market program are been put in place to enhance and
the Federal Register and will be made
expected to increase to approximately streamline FPB’s fruit and vegetable
available for public inspection in the
$22.4 million during FY–06 and $23.1 inspection process, however additional
above office during regular business
million during FY–07. The current fee revenue is required to maintain FEIRS.
hours.
structure with the infusion of the This proposed rule should increase
FOR FURTHER INFORMATION CONTACT: Rita appropriated funding is expected to user fee revenue generated under the
Bibbs-Booth, USDA, 1400 Independence fund the terminal market inspection destination market program by
Ave., SW., Room 0640–S, Washington, program until FY–2008, when FPB will approximately 15 percent. This action is
DC 20250–0295, or call (202) 720–0391. fall below the Agency’s mandated four- authorized under the Agricultural
SUPPLEMENTARY INFORMATION: month reserve level. Marketing Act of 1946 (AMA of 1946)

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Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49883

(See 7 U.S.C. 1622(h)), which provides Proposed Action increased inspection demands, and the
that the Secretary of Agriculture may The AMA of 1946 authorizes official acquisition and maintenance of
assess and collect ‘‘such fees as will be inspection, grading, and certification, on computer technology (i.e. FEIRS).
reasonable and as nearly as may be to a user-fee basis, of fresh fruits, Employee salaries and benefits are
cover the costs of services rendered vegetables and other products such as major program costs that account for
* * *’’ There are more than 2,000 users raw nuts, Christmas trees and flowers. approximately 80 percent of FPB’s total
of FPB’s destination market grading The AMA of 1946 provides that operating budget. A general and locality
services (including applicants who must reasonable fees be collected from the salary increase for Federal employees,
meet import requirements 1— users of the services to cover, as nearly ranging from 3.71 to 4.87 percent
inspections which amount to under 2.5 as practicable, the cost of the services depending on locality, effective January
percent of all lot inspections rendered. This proposed rule would 2005, has significantly increased
performed). A small portion of these amend the schedule for fees and charges program costs. In addition, general and
users are small entities under the for inspection services rendered to the
criteria established by the Small locality salary increases for Federal
fresh fruit and vegetable industry to employees ranging from 3.90% to 4.92%
Business Administration (13 CFR reflect the costs necessary to operate the
121.201). There would be no additional depending on locality, effective from
program. January 2004, also significantly
reporting, recordkeeping, or other The Agricultural Marketing Service
compliance requirements imposed upon increased program costs. This salary
(AMS) regularly reviews its user-fee adjustment will increase FPB’s costs by
small entities as a result of this programs to determine if the fees are
proposed rule. In compliance with the over $700,000 per year. Increases in
adequate. While the Fresh Products health and life insurance premiums,
Paperwork Reduction Act of 1995 (44 Branch (FPB) of the Fruit and Vegetable
U.S.C. Chapter 35), the information along with workers compensation will
Programs, AMS, continues to search for also increase program costs. In addition,
collection and recordkeeping opportunities to reduce its costs, the
requirements in part 51 have been inflation also impacts FPB’s non-costs.
existing fee schedule will not generate These factors have increased FPB’s costs
approved previously by OMB and sufficient revenues to cover program
assigned OMB No. 0581–0125. FPB has of operating this program by over
costs while maintaining the Agency $600,000 per year.
not identified any other Federal rules
mandated reserve balance. Current
which may duplicate, overlap or Additional revenues (approximately
revenue projections for destination
conflict with this proposed rule. $155,000) are necessary in order for FPB
The destination market grading market inspection work during FY–05
are $14.6 million with costs projected at to continue to cover the costs associated
services are voluntary (except when with additional staff and to maintain
required for imported commodities) and $20.9 million and an end-of-year reserve
of $17.9 million. However, this reserve office space and equipment. Additional
the fees charged to users of these revenues are also necessary to continue
services vary with usage. However, the balance is due to appropriated funding
received from Congress in October of to improve the work environment by
impact on all businesses, including providing training and purchasing
small entities, is very similar. Further, 2001. These funds were established to
build up the terminal market inspection needed equipment. In addition, FPB
even though fees will be raised, the began in 2001, developing (with
increase is not excessive and should not reserve fund and for infrastructure
improvements including development appropriate funds) an automated system
significantly affect these entities. known as FEIRS, to replace its manual
Finally, except for those persons who and maintenance of the inspector
training center, workplace and paper and pen inspection reporting
are required to obtain inspections, most process. Approximately $10,000 in
of these businesses are typically under technological improvements, including
digital imaging and automation of the additional revenue per month will be
no obligation to use these inspection needed to maintain the system. This
services, and, therefore, any decision on inspection process. However, by FY–08,
without increasing fees, FPB’s trust fund system has been put in place to enhance
their part to discontinue the use of the FPB’s fruit and vegetable inspection
services should not prevent them from balance for this program will be below
the agency mandated four-months of processes.
marketing their products.
operating reserve (approximately $4.6 Based on the aforementioned analysis
Executive Order 12988 million) deemed necessary to provide of this program’s increasing costs, AMS
This proposed rule has been reviewed an adequate reserve balance in light of proposes to increase the fees for
under Executive Order 12988, Civil increasing program costs. Further, FPB’s destination market inspection services.
Justice Reform. This action is not costs of operating the destination market The following table compares current
intended to have retroactive effect. This program are expected to increase to fees and charges with the proposed fees
rule will not preempt any state or local approximately $22 million in FY–06 and charges for fresh fruit and vegetable
laws, regulations or policies, unless they and to approximately $22.8 million inspection as found in 7 CFR 51.38.
present an irreconcilable conflict with during FY–07. These cost increases Unless otherwise provided for by
this rule. There are no administrative (which are outlined below) will result regulation or written agreement between
procedures which must be exhausted from inflationary increases with regard the applicant and the Administrator, the
prior to any judicial challenge to the to current FPB operations and services charge in the schedule of fees as found
provisions of this rule. (primarily salaries and benefit), in § 51.38 are:

1 Section 8e of the Agriculture Marketing commodities must be issued. Import regulations Currently, there are 14 commodities subject to 8e
Agreement Act of 1937, as amended (7 U.S.C. 601– apply during those periods when domestic import regulations: avocados, dates (other than
674), requires that whatever the Secretary of marketing order regulations are in effect. Section dates for processing), filberts, grapefruits, kiwifruit,
Agriculture issues grade, size, quality or maturity 1308 of the Farm Security and Rural Investment Act olives (other than Spanish-style green olives),
regulations under domestic marketing orders for
of 2002 (Pub. L. 107–171), 7 U.S.C. 7958, requires onions, oranges, potatoes, prunes, raisins, table
certain commodities, the same or comparable
regulations on imports of those commodities must USDA among other things to develop new peanut grapes, tomatoes and walnuts. A current listing of
be issued. Import regulations apply during those quality and handling standards for imported the regulated commodities can be found under 7
periods when domestic marketing order peanuts marketing in the United States. CFR parts 944, 980, 996, and 999.

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49884 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules

Service Current Proposed

Quality and condition inspections of products each in quantities of 51 or more packages and unloaded from
the same land or air conveyance:
—Over a half carlot equivalent of each product .......................................................................................... $99.00 $114.00
—Half carlot equivalent or less of each product .......................................................................................... 83.00 95.00
—For each additional lot of the same product ............................................................................................. 45.00 52.00
Condition only inspections of products each in quantities of 51 or more packages and unloaded from the
same land or air conveyance:
—Over a half carlot equivalent of each product .......................................................................................... 83.00 95.00
—Half carlot equivalent or less of each product .......................................................................................... 76.00 87.00
—For each additional lot of the same product ............................................................................................. 45.00 52.00
Quality and condition and condition only inspections of products each in quantities of 50 or less packages
unloaded from the same land or air conveyance:
—For each product ....................................................................................................................................... 45.00 52.00
—For each additional lot of any of the same product ................................................................................. 45.00 52.00
—Lots in excess of carlot equivalents will be charged proportionally by the quarter carlot ....................... .......................... ..........................
Dock side inspections of an individual product unloaded directly from the same ship:
—For each package weighing less than 30 pounds .................................................................................... 1 2.5 1 2.9

—For each package weighing 30 or more pounds ...................................................................................... 1 3.8 1 4.4

—Minimum charge per individual product .................................................................................................... 99.00 114.00


—Minimum charge for each additional lot of the same product .................................................................. 45.00 52.00
Hourly rate for inspections performed for other purposes during the grader’s regularly scheduled work week 49.00 56.00
—Hourly rate for other work performed during the grader’s regular scheduled work week will be
charged at a reasonable rate ................................................................................................................... .......................... ..........................
Audit based services ........................................................................................................................................... .......................... 75.00
Overtime or holiday premium rate (per hour additional) for all inspections performed outside the grader’s
regularly scheduled work week ........................................................................................................................ 25.00 29.00
Hourly rate for inspections performed under 40 hour contracts during the grader’s regularly scheduled work
week ................................................................................................................................................................. 49.00 56.00
Rate for billable mileage ...................................................................................................................................... 1.00 1.00
1 Cents.

A thirty day comment period is (ii) $95 for a half carlot equivalent or (iii) Minimum charge of $114 per
provided for interested persons to less of an individual product; individual product;
comment on this proposed action. (iii) $52 for each additional lot of the (iv) Minimum charge of $52 for each
Thirty days is deemed appropriate same product. additional lot of the same product.
because it is preferable to have any fee (2) Condition only inspection of (2) [Reserved].
increase, if adopted, to be in place as products each in quantities of 51 or (c) When performing inspections of
close as possible to the beginning of the more packages and unloaded from the products from sea containers unloaded
fiscal year, October 1, 2005. same land or air conveyance: directly from sea transportation or when
(i) $95 for over a half carlot equivalent palletized products unloaded directly
List of Subjects in 7 CFR Part 51 of an individual product; from sea transportation are not offered
Agricultural commodities, Food (ii) $87 for a half carlot equivalent or for inspection at dock-side, the carlot
grades and standards, Fruits, Nuts, less of an individual product; fees in paragraph (a) of this section shall
Reporting and record keeping (iii) $52 for each additional lot of the apply.
requirements, Trees, Vegetables. same product. (d) When performing inspections for
(3) For quality and condition
For reasons set forth in the preamble, Government agencies, or for purposes
inspection and condition only
7 CFR part 51 is proposed to be other than those prescribed in
inspection of products in quantities of
amended as follows: paragraphs (a) through (c) of this
50 or less packages unloaded from the
section, including weight-only and
PART 51—[AMENDED] same conveyance:
(i) $52 for each individual product; freezing-only inspections, fees for
1. The authority citation for 7 CFR (ii) $52 for each additional lot of any inspections shall be based on the time
part 51 continues to read as follows: of the same product. Lots in excess of consumed by the grader in connection
carlot equivalents will be charged with such inspections, computed at a
Authority: 7 U.S.C. 1621–1627. rate of $56 per hour: Provided, That:
proportionally by the quarter carlot.
2. Section 51.38 is revised to read as (b) When performing inspections of (1) Charges for time shall be rounded
follows: palletized products unloaded directly to the nearest half hour.
from sea transportation or when (2) The minimum fee shall be two
§ 51.38 Basis for fees and rates. hours for weight-only inspections, and
palletized product is first offered for
(a) When performing inspections of inspection before being transported one-half hour for other inspections.
product unloaded directly from land or from the dock-side facility, charges shall (3) When weight certification is
air transportation, the charges shall be be determined on the following basis: provided in addition to quality and/or
determined on the following basis: (1) Dock side inspections of an condition inspection, a one hour charge
(1) Quality and condition inspections individual product unloaded directly shall be added to the carlot fee.
of products in quantities of 51 or more from the same ship: (4) When inspections are performed to
packages and unloaded from the same (i) 2.9 cents per package weighing less certify product compliance for Defense
air or land conveyance: than 30 pounds; Personnel Support Centers, the daily or
(i) $114 for over a half carlot (ii) 4.4 cents per package weighing 30 weekly charge shall be determined by
equivalent of an individual product; or more pounds; multiplying the total hours consumed to

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Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49885

conduct inspections by the hourly rate. quality, and size requirements. This Justice Reform. This rule is not intended
The daily or weekly charge shall be action is expected to assure the quality to have retroactive effect. This proposal
prorated among applicants by of pistachios, improve the marketability will not preempt any State or local laws,
multiplying the daily or weekly charge of pistachios, and provide handlers regulations, or policies, unless they
by the percentage of product passed more marketing flexibility. The benefits present an irreconcilable conflict with
and/or failed for each applicant during of this action are expected to offset the this rule.
that day or week. Waiting time and increased inspection costs. The Act provides that administrative
overtime charges shall be charged DATES: Comments must be received by proceedings must be exhausted before
directly to the applicant responsible for September 1, 2005. parties may file suit in court. Under
their incurrence. ADDRESSES: Interested persons are section 608c(15)(A) of the Act, any
(e) When performing inspections at invited to submit written comments handler subject to an order may file
the request of the applicant during concerning this proposal. Comments with USDA a petition stating that the
periods which are outside the grader’s must be sent to the Docket Clerk, order, any provision of the order, or any
regularly scheduled work week, a Marketing Order Administration obligation imposed in connection with
charge for overtime or holiday work Branch, Fruit and Vegetable Programs, the order is not in accordance with law
shall be made at the rate of $29.00 per AMS, USDA, 1400 Independence and request a modification of the order
hour or portion thereof in addition to Avenue SW, STOP 0237, Washington, or to be exempted therefrom. A handler
the carlot equivalent fee, package DC 20250–0237; Fax: (202) 720–8938, or is afforded the opportunity for a hearing
charge, or hourly charge specified in E-mail: moab.docketclerk@usda.gov, or on the petition. After the hearing USDA
this subpart. Overtime or holiday Internet: http://www.regulations.gov. All would rule on the petition. The Act
charges for time shall be rounded to the comments should reference the docket provides that the district court of the
nearest half hour. number and the date and page number United States in any district in which
(f) When an inspection is delayed of this issue of the Federal Register and the handler is an inhabitant, or has his
because product is not available or will be made available for public or her principal place of business, has
readily accessible, a charge for waiting inspection in the Office of the Docket jurisdiction to review USDA’s ruling on
time shall be made at the prevailing Clerk during regular business hours, or the petition, provided an action is filed
hourly rate in addition to the carlot can be viewed at: http:// not later than 20 days after the date of
equivalent fee, package charge, or www.ams.usda.gov/fv/moab.html. the entry of the ruling.
hourly charge specified in this subpart. This rule would modify sampling
FOR FURTHER INFORMATION CONTACT: Rose
Waiting time shall be rounded to the procedures for dark-stained pistachios
Aguayo or Terry Vawter, Marketing
nearest half hour. which are intended to be dyed or color-
Specialists, California Marketing Field
Dated: August 18, 2005. coated. It would also establish
Office, Marketing Order Administration
Kenneth C. Clayton, reinspection requirements for lots of
Branch, Fruit and Vegetable Programs,
pistachios, which are materially
Associate Administrator, Agricultural AMS, USDA; Telephone: (559) 487–
Marketing Service. changed after meeting initial aflatoxin,
5901, Fax: (559) 487–5906; or George
quality, and size requirements. This
[FR Doc. 05–16863 Filed 8–24–05; 8:45 am] Kelhart, Technical Advisor, Marketing
action is expected to assure the quality
BILLING CODE 3410–02–P Order Administration Branch, Fruit and
of pistachios, provide handlers more
Vegetable Programs, AMS, USDA, 1400
marketing flexibility, and improve the
Independence Avenue SW, STOP 0237,
DEPARTMENT OF AGRICULTURE marketability of pistachios. The benefits
Washington, DC 20250–0237;
of this action are expected to offset the
Telephone: (202) 720–2491, Fax: (202)
Agricultural Marketing Service increased inspection costs. For the
720–8938.
Small businesses may request purposes of this proposed rule, the
7 CFR Part 983 information on complying with this terms ‘‘marketing year’’ and
regulation by contacting Jay Guerber, ‘‘production year’’ are synonymous.
[Docket No. FV05–983–2 PR]
Section 983.46 of the order authorizes
Marketing Order Administration
Pistachios Grown in California; the Committee to recommend that the
Branch, Fruit and Vegetable Programs,
Establishment of Additional Inspection Secretary modify or suspend the order
AMS, USDA, 1400 Independence
Requirements provisions contained in §§ 983.38
Avenue SW, STOP 0237, Washington,
through 983.45. These sections took
AGENCY: Agricultural Marketing Service, DC 20250–0237; Telephone: (202) 720–
effect August 1, 2005.
USDA. 2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov. Sampling Procedures
ACTION: Proposed rule.
SUPPLEMENTARY INFORMATION: This Sections 983.38 and 983.39 of the
SUMMARY: This rule invites comments proposal is issued under Marketing order specify maximum aflatoxin,
on the establishment of additional Order No. 983 (7 CFR part 983), minimum quality and minimum size
inspection requirements authorized regulating the handling of pistachios requirements, respectively, that must be
under the California pistachio marketing grown in California, hereinafter referred met prior to the shipment of pistachios.
order (order). The order regulates the to as the ‘‘order.’’ The order is effective Sections 983.38(d)(1) and 983.39(e)(1)
handling of pistachios grown in under the Agricultural Marketing of the order specify that a sample must
California and is administered locally Agreement Act of 1937, as amended (7 be drawn from each lot, and that this lot
by the Administrative Committee for U.S.C. 601–674), hereinafter referred to sample must be divided into two
Pistachios (Committee). This rule would as the ‘‘Act.’’ samples—one portion for aflatoxin
modify sampling procedures for dark- The Department of Agriculture testing and one for minimum quality
stained pistachios which are intended to (USDA) is issuing this rule in and size testing.
be dyed or color-coated. It would also conformance with Executive Order Section 983.39(b)(3)(iv) of the order
establish reinspection requirements for 12866. currently defines dark stain and
lots of pistachios, which are materially This proposal has been reviewed specifies that pistachios that are dyed or
changed after meeting initial aflatoxin, under Executive Order 12988, Civil color-coated to improve their marketing

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