[Federal Register Volume 59, Number 189 (Friday, September 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24174]
[[Page Unknown]]
[Federal Register: September 30, 1994]
_______________________________________________________________________
Part V
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 58, et al.
Agency Reorganization of Analytical Testing Services; Final Rule
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 58, 91, 93, 94, 95, and 98
[SD-94-002]
RIN 0581-AB24
Agency Reorganization of Analytical Testing Services
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Agricultural Marketing Service (AMS) commodity laboratory
testing programs under the AMS Science Division were established in
August 1993. In order to implement the testing programs under the new
regulations, AMS codified the agency reorganization of analytical
testing services by consolidating and transferring functions from other
Title 7 CFR parts related to testing to the AMS Science Division. An
interim final rule to amend the regulations was published in the
Federal Register on May 10, 1994, and received one comment. The interim
final rule provided for reduced laboratory testing fees for certain
dairy products based on various factors such as a decrease in minimum
test times for certain products from one-half hour to one-quarter hour,
a decrease in expenditures for making some test preparations, and a
decreased number of procedural steps required for performing certain
laboratory analyses. This final rule adopts as final the interim final
rule with one additional fee change.
EFFECTIVE DATE: September 30, 1994.
FOR FURTHER INFORMATION CONTACT: William J. Franks, Jr., Director,
Science Division, Agricultural Marketing Service, U.S. Department of
Agriculture, P.O. Box 96456, Room 3507 South Agriculture Building,
Washington, D.C. 20090-6456. Telephone (202) 720-5231.
SUPPLEMENTARY INFORMATION:
I. Executive Order 12866 and Executive Order 12778
The Department has determined that this rule is not significant for
purposes of Executive Order 12866 and it therefore has not been
reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This action 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 which must be exhausted
prior to any judicial challenge to the provisions of this rule.
II. Effect on Small Entities
The Administrator, Agricultural Marketing Service, has determined
that this action will not have a significant economic impact on a
substantial number of small entities as defined by the Regulatory
Flexibility Act (U.S.C. 601-612). The fees provided for in this rule
reflect a minimal change in the costs currently borne by those entities
which utilize certain laboratory services. The rule is designed to
provide usual and reasonable fees for laboratory testing that are
consistent with costs in time and resources to ensure adequate funding
of the laboratory operations of the Science Division.
III. Background
On August 9, 1993, the agency reorganization of analytical testing
under the Science Division and schedules of laboratory fees were
published as a final rule in the Federal Register (58 FR 42408-42448)
after receiving only one comment on the proposal. The fee schedules
became effective immediately and were devised to have a single fee for
the same test rather than assessing separate laboratory fees for
different commodities and their products.
The dairy product laboratory fees for 35 tests or combinations of
tests that were listed in former regulations at 7 CFR 58.44 were
increased by large percentages in the August 9, 1993 final rule. As a
consequence, the dairy industry indicated that it is burdened with
testing fees that cannot be assimilated into current purchasing
contracts.
The single test laboratory fees for other commodity products did
not change as significantly as test fees for dairy products. Prior to
the final rule implementation, the dairy testing fees had been revised
only slightly since November 2, 1977 (42 FR 57301). The heavy volume of
laboratory testing of dairy products in the early 1980's associated
with Commodity Credit Corporation purchases diminished the need for
periodic fee increases. However, the workload for laboratory testing of
dairy products was reduced greatly beginning in 1986. In addition, the
dairy testing fees were carried over and not revised from 1988 to 1993
while the Agency prepared a consolidated regulation for laboratory
services within the Science Division and updated fees. Consequently,
when the new fees were placed in effect, the dairy industry faced
substantial increases in testing fees. In response to the various
objections generated among dairy processors, and after further
consideration of the matter, the agency temporarily restored the dairy
testing fees to the applicable charges and hourly rate in effect on
April 17, 1989. An interim final rule reducing testing fees was
published and effective on May 10, 1994 (59 FR 24318). That rule
amended 7 CFR parts 58, 91, 93, 94, 95 and 98. It provided a 30-day
comment period which ended June 9, 1994. Only one comment was received
recommending that the flavor fee be adjusted and made specific to dairy
products.
IV. Provisions of the Interim Final Rule
The minimum laboratory testing fee was reduced from $17.10 to
$8.55. The original minimum fee published on August 9, 1993, was based
on current commodity product grading and inspection fees which specify
a minimum one-half hour charge. However, some laboratory analyses
applying to dairy product grading can be performed within a one-quarter
hour and therefore would incur a corresponding $8.55 fee. The
laboratory tests with a revised one-quarter hour charge are listed as
follows: (1) Titratable acidity, (2) density or specific gravity, (3)
scorched particles, (4) net weight per can, and (5) flavor. Analysis
time includes the allotted periods for sample tracking, reagent and
standard solution preparation, sample preparation and laboratory bench
analysis, cleanup, analytical result determination and interpretation
with supervisory review, and the time for issuing a test report. The
individual laboratory test fee determinations in this rule must
necessarily include the length of time spent on tests performed for
quality control, quality assurance, and proficiency testing.
The schedules of consolidated fees and charges for the single
analyte testings were established in the rule published on August 9,
1993, based on the reasoning that there is, in general, comparable
complexity of procedures and similar methodology for different
commodities and their products. However, some standard methods or tests
for the examination of dairy products have a dissimilar process for
testing a given analyte, shorter procedures, decreased complexity of
reagent and materials preparation, reduced analyst manipulations with
samples and their derivatives, fewer measurements, and/or a lower
degree of interpretation required. Consequently, these dairy tests are
less complex and would justify a reduction of the fee. The laboratory
fees for dairy products that were lowered in the interim final rule
because the tests are less complex are as follows: (1) Fat (cheese),
(2) fat (dairy products except cheese), (3) salt titration, (4)
peroxide value, (5) free fatty acid, (6) solubility index, (7) whey
protein nitrogen, (8) vitamin A (dry milk products), (9) alkalinity of
ash, (10) antibiotic, (11) complete Kohman, (12) direct microscopic
clump count, (13) proteolytic count, (14) coliform, and (15) Salmonella
Step 1.
V. Discussion of Comment
Since the issuance of the interim final rule on May 10, 1994, only
one response was received from another agency within the Department
(the Agricultural Stabilization and Conservation Service). That
response persuaded the Agricultural Marketing Service to reconsider its
fee for flavor in the fee schedule in Table 3 of the earlier rule (58
FR 42408-42448) of August 9, 1993. The response stated that the flavor
test fee is too high for testing flavors in dairy products and that a
reduction of the flavor analysis fee for dairy products from a three-
quarter hour charge to a one-quarter hour charge or lower be
considered.
The flavor test charge of three-quarter hour or $25.65 was not
specifically directed to dairy products nor modified with the interim
final rule issuance. Our records show that 8,900 flavor tests of dairy
products were conducted in the Science Division Midwestern Laboratory
during Fiscal Year 1993. There was only a limited number of additional
flavor testings of dairy products by the Resident Dairy Graders.
The Agency agrees with the respondent's recommendation regarding
the dairy flavor test fee. Therefore, the flavor test for dairy
products in Table 3 is set at the recommended minimum one-quarter hour
charge or corresponding $8.55 fee. Flavor tests for other products will
remain at the three-quarter hour charge or $25.65. The one-quarter hour
charge is adequate for the dairy flavor test since a battery of other
laboratory tests are usually performed in conjunction with this sensory
analysis which involve the same preliminary sample preparation steps.
VI. Effective Date of Rule
It is found that good cause that exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register because:
(1) The interim final rule provided a comment period, and the only
comment received was from an agency within the Department.
(2) That comment persuaded the Science Division to lower the dairy
flavor test fee.
(3) For the benefit of those using the test, the lower fee should
become effective immediately.
Lists of Subjects
7 CFR Part 58
Food grades and standards, Dairy products, Food labeling, Reporting
and recordkeeping requirements.
7 CFR Part 91
Administrative practice and procedure, Agricultural commodities,
Fees and charges, Laboratories.
7 CFR Part 93
Citrus fruits, Fruit juices, Fruits, Laboratories, Nuts, Vegetable.
7 CFR Part 94
Eggs and egg products, Laboratories, Poultry and poultry products.
7 CFR Part 95
Dairy products, Laboratories, Milk.
7 CFR Part 98
Meat and meat products, Laboratories.
Accordingly, the interim final rule amending 7 CFR parts 58, 91,
93, 94, 95 and 98 which was published at 59 FR 24318-24325 on May 10,
1994, is adopted as a final rule with the following change:
PART 91--SERVICES AND GENERAL INFORMATION
1. The authority citation for part 91 is revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624.
2. In Sec. 91.37(a), Table 3 is revised to read as follows:
Sec. 91.37 Fees for laboratory testing, analysis, and other services.
(a) * * *
Table 3.--Single Test Times and Laboratory Fees for Food Additives
(Direct and Indirect)
------------------------------------------------------------------------
Hours for
Type of analysis single List fee
test
------------------------------------------------------------------------
Aflatoxin, (Dairy, Eggs)........................ 3.5 $119.70
Alar or Daminozide Residue...................... 6 205.20
Amitraz Residue, GLC............................ 6 205.20
Alcohol (Qualitative)........................... 2 68.40
Alkalinity of Ash............................... 1.5 51.30
Antibiotic, Qualitative (Dairy)................. 0.5 17.10
Antibiotic, Quantitative........................ 4 136.80
Ascorbates (Qualitative--Meats)................. 0.5 17.10
Ascorbic Acid, Titration........................ 1 34.20
Ascorbic Acid, Spectrophotometric............... 1 34.20
Benzene, Residual............................... 2 68.40
Brix, Direct Percent Sucrose.................... 0.5 17.10
Brix, Dilution.................................. 0.5 17.10
Butylated Hydroxyanisole (BHA).................. 1.5 51.30
Butylated Hydroxytoluene (BHT).................. 1.5 51.30
Caffeine, Micro Bailey-Andrew................... 1.5 51.30
Caffeine, Spectrophotometric.................... 1 34.20
Calcium......................................... 1.5 51.30
Citric Acid, GLC or HPLC........................ 1.5 51.30
Chlorinated Hydrocarbons:
Pesticides and Industrial Chemicals--
Initial Screen.............................. 4 136.80
Second Column Confirmation of Analyte....... 1 34.20
Confirmation on Mass Spectrometer........... 2 68.40
Dextrin (Qualitative)........................... 0.5 17.10
Dextrin (Quantitative).......................... 3 102.60
Filth, Heavy (Dairy)............................ 2.5 85.50
Filth, Heavy (Eggs)............................. 4 136.80
Filth, Light (Eggs)............................. 2.5 85.50
Filth, Light and Heavy (Eggs Extraneous)........ 6 205.20
Flavor (Dairy).................................. 0.25 8.55
Flavor (Products except Dairy).................. 0.75 25.65
Fumigants:
Initial Screen--
Dibromochloropropane (DBCP)................. 1 34.20
Ethylene Dibromide.......................... 1 34.20
Methyl Bromide.............................. 1 34.20
Confirmation on Mass Spectrometer--
Each individual fumigant residue............ 2 68.40
Glucose (Qualitative)........................... 0.75 25.65
Glucose (Quantitative).......................... 1.75 59.85
Glycerol (Quantitative)......................... 3 102.60
Gums............................................ 3 102.60
High Sucrose Content or Avasucrol--Percent
Sucrose (Holland Eggs)......................... 4 136.80
Hydrogen Ion Activity, pH....................... 0.5 17.10
Mercury, Cold Vapor AA.......................... 2.5 85.50
Metals--Other Than Mercury, Each Metal.......... 2 68.40
Monosodium Dihydrogen Phosphate................. 4 136.80
Monosodium Glutamate............................ 4 136.80
Nitrites (Qualitative).......................... 0.5 17.10
Nitrites (Quantitative)......................... 3 102.60
Oxygen.......................................... 0.5 17.10
Palatability and Odor:
First Sample.................................. 0.75 25.65
Each Additional Sample........................ 0.5 17.10
Phosphatase, Residual........................... 1 34.20
Phosphorus...................................... 2 68.40
Propylene Glycol, Codistillation: (Qualitative). 2 68.40
Pyrethrin Residue (Dairy)....................... 4 136.80
Scorched Particles.............................. 0.25 8.55
Sodium, Potentiometric.......................... 1 34.20
Sodium Benzoate, HPLC........................... 1.5 51.30
Sodium Lauryl Sulfate (SLS)..................... 8 273.60
Sodium Silicoaluminate (Zeolex)................. 2 68.40
Solubility Index................................ 0.5 17.10
Starch, Direct Acid Hydrolysis.................. 3 102.60
Sugar, Polarimetric Methods..................... 1 34.20
Sugar Profile, HPLC--This profile includes the
following components: Dextrose, Fructose,
Lactose, Maltose and Sucrose:
One type sugar from HPLC profile.............. 3 102.60
Each additional type sugar.................... 0.5 17.10
Sugars, Non-Reducing............................ 3 102.60
Sugars, Total as Invert......................... 2 68.40
Sulfites (Qualitative).......................... 0.75 25.65
Sulfur Dioxide, Direct Titration................ 1 34.20
Sulfur Dioxide, Monier-Williams................. 1.5 51.30
Toluene, Residual............................... 2 68.40
Triethyl Citrate, GC (Quantitative)............. 1 34.20
Vitamin A....................................... 2.5 85.50
Vitamin A, Carr-Price (Dry Milk)................ 1.25 42.75
Vitamin D, HPLC (Vitamins D2 and D3)............ 8.5 290.70
Whey Protein Nitrogen........................... 0.75 25.65
Xanthydrol Test For Urea........................ 1.5 51.30
This is an optional test to the extraneous
materials isolation test.
------------------------------------------------------------------------
* * * * *
Dated: September 26, 1994.
Lon Hatamiya,
Administrator.
[FR Doc. 94-24174 Filed 9-29-94; 8:45 am]
BILLING CODE 3410-02-P
