[Federal Register: June 2, 2003 (Volume 68, Number 105)]
[Rules and Regulations]
[Page 32623-32627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn03-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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[[Page 32623]]
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
7 CFR Part 800
RIN 0580-AA81
Fees for Official Inspection and Official Weighing Services
AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.
ACTION: Final rule.
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SUMMARY: The Federal Grain Inspection Service (FGIS) of the Grain
Inspection, Packers and Stockyards Administration (GIPSA) is increasing
certain fees by approximately 4.1 percent; i.e., contract and
noncontract hourly rates, certain unit rates, and the administrative
tonnage fee increases. These fees apply only to official inspection and
weighing services performed in the United States under the United
States Grain Standards Act (USGSA), as amended. These increases are
needed to cover increased operational costs resulting from the
approximate 4.1 percent January 2003 Federal pay increase. GIPSA
anticipates the increase in the user fees will generate approximately
$685,000 in additional revenue.
EFFECTIVE DATE: July 2, 2003.
FOR FURTHER INFORMATION CONTACT: David Orr, Director, Field Management
Division, at his e-mail address: David.M.Orr@usda.gov, or telephone him
at (202) 720-0228.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, Regulatory Flexibility Act, and the Paperwork
Reduction Act
This rule has been determined to be nonsignificant for the purpose
of Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
Also, pursuant to the requirements set forth in the Regulatory
Flexibility Act, it has been determined that this final rule will not
have a significant economic impact on a substantial number of small
entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
GIPSA regularly reviews its user-fee-financed programs under the
United States Grain Standards Act (7 U.S.C. 71 et seq.) to determine if
the fees are adequate. GIPSA has and will continue to seek out cost-
saving opportunities and implement appropriate changes to reduce costs.
Such actions can provide alternatives to fee increases. However, even
with these efforts, GIPSA's existing fee schedule will not generate
sufficient revenues to cover program costs while maintaining an
adequate reserve balance. Retained earnings balances are adjusted to
reflect prior year revenue and obligations realized in the year
reported. In Fiscal Year (FY) 2000, GIPSA's operating costs were
$24,146,428 with revenue of $23,150,188 that resulted in a negative
margin of $996,240 and a negative reserve balance of $938,147. In FY
2001, GIPSA's operating costs were $25,670,126 with revenue of
$23,977,240 that resulted in a negative margin of $1,692,886 and a
negative reserve balance of $2,572,080. In FY 2002, GIPSA's operating
costs were $25,898,341 with revenue of $25,317,296 that resulted in a
negative margin of $581,045 and a negative reserve balance of
$3,339,097. The current reserve negative balance of $3,339,097 is well
below the desired 3-month reserve of approximately $6 million. GIPSA
recognizes the fact that retained earnings are well below the desired
level. This final action will not have a major impact on improving
GIPSA's financial position. GIPSA has been reviewing the fees and will
propose changes that will address this deficit in the near future.
Employee salaries and benefits are major program costs that account
for approximately 84 percent of GIPSA's total operating budget. The
general and locality salary increase that averages 4.1 percent for
GIPSA employees, effective January 2003, will increase GIPSA's costs by
approximately $685,000.
GIPSA has reviewed the financial position of the inspection and
weighing program based on the anticipated increased salary and benefit
costs, along with the projected FY 2003 workload of 78 million metric
tons. Based on the review, GIPSA has concluded that an approximate 4.1
percent salary increase will have to be recovered through increases in
fees.
This fee increase primarily applies to entities engaged in the
export of grain. Under the provisions of the USGSA, grain exported from
the United States must be officially inspected and weighed. Mandatory
inspection and weighing services are provided by GIPSA on a fee basis
at 33 export facilities. All of these facilities are owned and managed
by multi-national corporations, large cooperatives, or public entities
that do not meet the criteria for small entities established by the
Small Business Administration.
Some entities that request nonmandatory official inspection and
weighing services at other than export locations could be considered
small entities. The impact on these small businesses is similar to any
other business; that is, an average 4.1 percent increase in the cost of
official inspection and weighing services. This increase should not
significantly affect any business requesting official inspection and
weighing services. Furthermore, any of these small businesses that wish
to avoid the fee increase may elect to do so by using an alternative
source for inspection and weighing services. Such a decision should not
prevent the business from marketing its products.
There would be no additional reporting or recordkeeping
requirements imposed by this action. In compliance with the Paperwork
Reduction Act of 1995 (44 U.S.C. Chapter 35), the information
collection and recordkeeping requirements in Part 800 have been
previously approved by the Office of Management and Budget under
control number 0580-0013. GIPSA has not identified any other Federal
rules which may duplicate, overlap, or conflict with this final rule.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This action is not intended to have a retroactive
effect. The USGSA provides in Sec. 87g that no subdivision may require
or impose any requirements or restrictions concerning the inspection,
weighing, or description of grain under the Act. Otherwise, this
[[Page 32624]]
final rule will not preempt any State or local laws, regulations, or
policies unless they present irreconcilable conflict with this final
rule. There are no administrative procedures that must be exhausted
prior to any judicial challenge to the provisions of this final rule.
Background
On February 28, 2003, GIPSA proposed in the Federal Register (68 FR
9589) to increase fees for official inspection and weighing services
performed under the USGSA (7 U.S.C. 71 et seq.) by approximately 4.1
percent. The USGSA authorizes GIPSA to provide official grain
inspection and weighing services and to charge and collect reasonable
fees for performing these services. The fees collected are to cover, as
nearly as practicable, GIPSA's costs for performing these services,
including related administrative and supervisory costs. The current
USGSA fees were published in the Federal Register on March 21, 2002 (67
FR 13084), and became effective on April 22, 2002.
GIPSA regularly reviews its user-fee-financed programs to determine
if the fees are adequate. GIPSA has and will continue to seek out cost-
saving opportunities and implement appropriate changes to reduce costs.
Such actions can provide alternatives to fee increases. However, even
with these efforts, GIPSA's existing fee schedule will not generate
sufficient revenues to cover program costs while maintaining an
adequate reserve balance. Retained earnings balances are adjusted to
reflect prior year revenue and obligations realized in the year
reported. In FY 2000, GIPSA's operating costs were $24,146,428 with
revenue of $23,150,188 that resulted in a negative margin of $996,240
and a negative reserve balance of $938,147. In FY 2001, GIPSA's
operating costs were $25,670,126 with revenue of $23,977,240 that
resulted in a negative margin of $1,692,886 and a negative reserve
balance of $2,572,080. In FY 2002, GIPSA's operating costs were
$25,898,341 with revenue of $25,317,296 that resulted in a negative
margin of $581,045 and a negative reserve balance of $3,339,097. The
current reserve negative balance of $3,339,097 is well below the
desired 3-month reserve of approximately $6 million. Employee salaries
and benefits are major program costs that account for approximately 84
percent of GIPSA's total operating budget. The salary increase that
became effective in January 2003 averages 4.1 percent for GIPSA
employees. Overall, program costs are estimated to increase by
approximately $685,000. GIPSA recognizes that retained earnings are
well below the desired level and that this final action will not have a
major impact on improving its financial position. As a result, GIPSA
has been reviewing its overall fee structure. Changes that will address
this structure will be considered in the near future and will be
proposed as appropriate. GIPSA remains committed to providing the most
cost-effective services possible to the grain industry while
maintaining program quality and integrity.
GIPSA has reviewed the financial position of the inspection and
weighing program based on the increased salary and benefit costs, along
with the projected FY 2003 workload of 78 million metric tons. Based on
the review, GIPSA has concluded that an approximate 4.1 percent salary
increase will have to be recovered through increases in fees.
The current hourly fees are:
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Monday to Monday to Saturday,
Friday (6 a.m. Friday (6 p.m. Sunday, and Holidays
to 6 p.m.) to 6 a.m.) overtime
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1-year contract................................. $28.60 $31.20 $40.40 $48.60
6-month contract................................ 31.60 33.40 42.80 56.00
3-month contract................................ 36.00 37.20 46.60 58.00
Noncontract..................................... 41.80 44.00 53.40 65.40
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GIPSA has also identified certain unit fees, for services not
performed at an applicant's facility, that contain direct labor costs
and would require a fee increase. Further, GIPSA has identified those
costs associated with salaries and benefits that are covered by the
administrative metric tonnage fee. The 4.1 percent cost-of-living
increase to salaries and benefits covered by the administrative tonnage
fee results in an overall increase of an average of 4.1 percent to the
administrative tonnage fee.
Comment Review
GIPSA received a comment from two grain trade associations in
response to the proposed rulemaking published February 28, 2003, in the
Federal Register at (68 FR 9589). The trade associations stated that
they consist of 1,000 grain, feed, processing, and grain-related
companies, 70 percent of which are small entities. The commentors did
not support the proposed rule. A summary of the comments and GIPSA's
response is as follows:
The commentors opposed the fee increase and suggested that the
Agency scale back the amount of the increase substantially; that the
true cost of living has not increased nearly as much as the proposed
fee increase nor is the proposed fee increase in line with the economic
realities in the private sector. The commentors further stated that
over the past few years, the Agency implemented a series of fee
increases to recoup costs and stave off more significant difficulties.
However, despite these infusions of cash, the Agency's financial
condition continues to deteriorate. In addition, the fee increases have
become problematic for many users, particularly those engaged in export
trade. They urged GIPSA to develop a multi-year budget for the next
three to five years that would forecast anticipated changes in agency
fees for official services, based upon: (1) OMB's projected Federal
personnel and non-pay cost increases through 2008 as published in the
March 14, 2003, Federal Register; (2) anticipated revenue to replenish
each Trust Fund account, along with implemented cost controls, to
achieve the Agency's stated objective of a three-month operating
reserve in each account; and (3) projected changes in the method of
assessing fees, e.g., local, GIPSA specific, and national tonnage fees.
Finally, the commentors stated that the multi-year budget for the
next three to five years should describe management efforts to control
costs and improve operating efficiencies, along with a critical
evaluation of each program funded by user fees to determine which
should be continued, scaled back, or terminated.
GIPSA offers the following response: Federal pay increases
represent a significant part of FGIS user fee costs. GIPSA, over the
past several years, proposed and finalized fee increases, on an annual
basis, to reflect the costs of
[[Page 32625]]
Federal pay increases. It is common practice for user fee programs in
the Department to adjust their user fees to reflect these increases.
Adjusting fees in this manner is consistent with the provisions of the
United States Grain Standards Act and is reasonable, given the current
state of reserve balances for FGIS programs. However, over the past
several years, GIPSA has been discussing with the grain industry a
number of changes to the fee schedules, including restructuring them,
to better address the financial condition of the agency. Such
discussions have included, to one extent or another, the
recommendations offered by the trade associations in their comments or
other alternatives. While GIPSA continues to purse this process, it is
important that the agency finalize the proposed fees as soon as
possible to cover the costs of the 2003 Federal pay increase on the
FGIS user fee program.
Final Action
Accordingly, GIPSA is increasing, by approximately 4.1 percent,
certain hourly rates, certain unit rates, and the administrative
tonnage fee in 7 CFR 800.71, Table 1--Fees for Official Services
Performed at an Applicant's Facility in an Onsite FGIS Laboratory;
Table 2--Services Performed at Other Than an Applicant's Facility in an
FGIS Laboratory; and Table 3--Miscellaneous Services.
List of Subjects in 7 CFR Part 800
Administrative practice and procedure; Grain.
0
For the reasons set out in the preamble, 7 CFR part 800 is amended as
follows:
PART 800--GENERAL REGULATIONS
0
1. The authority citation for part 800 continues to read as follows:
Authority: Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C.
71 et seq.)
0
2. Section 800.71 is amended by revising Schedule A in paragraph (a) to
read as follows:
Sec. 800.71 Fees assessed by the Service.
(a) * * *
Schedule A.--Fees for Official Inspection and Weighing Services
Performed in the United States
Table 1.--Fees for Official Services Performed at an Applicant's Facility in an Onsite FGIS Laboratory \1\
[(1) Inspection and Weighing Services Hourly Rates (per service representative)]
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Monday to Monday to Saturday,
Friday (6 a.m. Friday (6 p.m. Sunday, and Holidays
to 6 p.m.) to 6 a.m.) overtime \2\
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1-year contract................................. $29.80 $32.60 $42.00 $50.60
6-month contract................................ 33.00 34.80 44.60 58.40
3-month contract................................ 37.00 38.80 48.60 60.40
Noncontract..................................... 43.60 45.80 55.60 68.00
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(2) Additional Tests (cost per test, assessed in addition to
the hourly rate) \3\
(i) Aflatoxin (other than Thin Layer Chromatography)..... $8.50
(ii) Aflatoxin (Thin Layer Chromatography method)........ 20.00
(iii) Corn oil, protein, and starch (one or any 1.50
combination)............................................
(iv) Soybean protein and oil (one or both)............... 1.50
(v) Wheat protein (per test)............................. 1.50
(vi) Sunflower oil (per test)............................ 1.50
(vii) Vomitoxin (qualitative)............................ 12.50
(viii) Vomitoxin (quantitative).......................... 18.50
(ix) Waxy corn (per test)................................ 1.50
(x) Fees for other tests not listed above will be based
on the lowest noncontract hourly rate
(xi) Other services:
(a) Class Y Weighing (per carrier):
(1) Truck/container.............................. .30
(2) Railcar...................................... 1.25
(3) Barge........................................ 2.50
(3) Administrative Fee (assessed in addition to all other
applicable fees, only one administrative fee will be
assessed when inspection and weighing services are performed
on the same carrier)
(i) All outbound carriers (per-metric-ton) \4\;
(a) 1-1,000,000...................................... $0.1199
(b) 1,000,001-1,500,000.............................. 0.1094
(c) 1,500,001-2,000,000.............................. 0.0591
(d) 2,000,001-5,000,000.............................. 0.0437
(e) 5,000,001-7,000,000.............................. 0.0239
(f) 7,000,001+....................................... 0.0109
------------------------------------------------------------------------
\1\ Fees apply to original inspection and weighing, reinspection, and
appeal inspection service and include, but are not limited to,
sampling, grading, weighing, prior to loading stowage examinations,
and certifying results performed within 25 miles of an employee's
assigned duty station. Travel and related expenses will be charged for
service outside 25 miles as found in Sec. 800.72(a).
\2\ Overtime rates will be assessed for all hours in excess of 8
consecutive hours that result from an applicant scheduling or
requesting service beyond 8 hours, or if requests for additional
shifts exceed existing staffing.
\3\ Appeal and reinspection services will be assessed the same fee as
the original inspection service.
\4\ The administrative fee is assessed on an accumulated basis beginning
at the start of the Service's fiscal year (October 1 each year).
Table 2.--Services Performed at Other Than an Applicant's Facility in an
FGIS Laboratory \1\ \2\
------------------------------------------------------------------------
------------------------------------------------------------------------
(1) Original Inspection and Weighing (Class X) Services:
(i) Sampling only (use hourly rates from Table 1)
(ii) Stationary lots (sampling, grade/factor, &
checkloading):
(a) Truck/trailer/container (per carrier)............ $19.80
[[Page 32626]]
(b) Railcar (per carrier)............................ 29.50
(c) Barge (per carrier).............................. 187.50
(d) Sacked grain (per hour per service representative 0.02
plus an administrative fee per hundredweight) (CWT).
(iii) Lots sampled online during loading (sampling charge
under (i) above, plus):
(a) Truck/trailer container (per carrier)............ 9.95
(b) Railcar (per carrier)............................ 19.25
(c) Barge (per carrier).............................. 110.00
(d) Sacked grain (per hour per service representative 0.02
plus an administrative fee per hundredweight) (CWT).
(iv) Other services:
(a) Submitted sample (per sample--grade and factor).. 11.80
(b) Warehouseman inspection (per sample)............. 20.00
(c) Factor only (per factor--maximum 2 factors)...... 5.30
(d) Checkloading/condition examination (use hourly 0.02
rates from Table 1, plus an administrative fee per
hundredweight if not previously assessed) (CWT).....
(e) Reinspection (grade and factor only. Sampling 13.00
service additional, item (i) above).................
(f) Class X Weighing (per hour per service 57.40
representative).....................................
(v) Additional tests (excludes sampling):
(a) Aflatoxin (per test--other than TLC method)...... 29.80
(b) Aflatoxin (per test--TLC method)................. 113.00
(c) Corn oil, protein, and starch (one or any 9.00
combination)........................................
(d) Soybean protein and oil (one or both)............ 9.00
(e) Wheat protein (per test)......................... 9.00
(f) Sunflower oil (per test)......................... 9.00
(g) Vomitoxin (qualitative).......................... 31.00
(h) Vomitoxin (quantitative)......................... 38.50
(i) Waxy corn (per test)............................. 10.30
(j) Canola (per test--00 dip test)................... 10.30
(k) Pesticide Residue Testing: \3\
(1) Routine Compounds (per sample)............... 216.00
(2) Special Compounds (per service 114.00
representative).................................
(l) Fees for other tests not listed above will be .........
based on the lowest noncontract hourly rate from
Table 1.............................................
(2) Appeal inspection and review of weighing service \4\
(i) Board Appeals and Appeals (grade and factor)
(a) Factor only (per factor--max 2 factors).......... 82.00
(b) Sampling service for Appeals additional (hourly 43.00
rates from Table 1)
(ii) Additional tests (assessed in addition to all other
applicable fees)
(a) Aflatoxin (per test, other than TLC)............. 30.00
(b) Aflatoxin (TLC).................................. 120.00
(c) Corn oil, protein, and starch (one or any 17.20
combination)........................................
(d) Soybean protein and oil (one or both)............ 17.20
(e) Wheat protein (per test)......................... 17.20
(f) Sunflower oil (per test)......................... 17.20
(g) Vomitoxin (per test--qualitative)................ 41.00
(h) Vomitoxin (per test--quantitative)............... 46.00
(i) Vomitoxin (per test--HPLC Board Appeal).......... 140.00
(j) Pesticide Residue Testing \3\
(1) Routine Compounds (per sample)............... 216.00
(2) Special Compounds (per service 114.00
representative).................................
(k) Fees for other tests not listed above will be
based on the lowest noncontract hourly rate from
Table 1.............................................
(iii) Review of weighing (per hour per service 82.60
representative).........................................
(3) Stowage examination (service-on-request) \3\
(i) Ship (per stowage space) (Minimum $255.00 per ship).. 51.00
(ii) Subsequent ship examinations (same as original)
(Minimum $153.00 per ship)
(iii) Barge (per examination)............................ 41.00
(iv) All other carriers (per examination)................ 16.00
------------------------------------------------------------------------
\1\ Fees apply to original inspection and weighing, reinspection, and
appeal inspection service and include, but are not limited to,
sampling, grading, weighing, prior to loading stowage examinations,
and certifying results performed within 25 miles of an employee's
assigned duty station. Travel and related expenses will be charged for
service outside 25 miles as found in Sec. 800.72(a).
\2\ An additional charge will be assessed when the revenue from the
services in Schedule A, Table 2, does not cover what would have been
collected at the applicable hourly rate as provided in Sec.
800.72(b).
\3\ If performed outside of normal business, 1\1/2\ times the applicable
unit fee will be charged.
\4\ If, at the request of the Service, a file sample is located and
forwarded by the Agency for an official agency, the Agency may, upon
request, be reimbursed at the rate of $2.65 per sample by the Service.
Table 3.--Miscellaneous Services \1\
------------------------------------------------------------------------
------------------------------------------------------------------------
(1) Grain grading seminars (per hour per service $57.40
representative) \2\.........................................
(2) Certification of diverter-type mechanical samplers (per 57.40
hour per service representative) \2\........................
(3) Special weighing services (per hour per service
representative) \2\
(i) Scale testing and certification...................... 57.40
(ii) Evaluation of weighing and material handling systems 57.40
(iii) NTEP Prototype evaluation (other than Railroad 57.40
Track Scales)...........................................
(iv) NTEP Prototype evaluation of Railroad Track Scales 57.40
(plus usage fee per day for test car)................... 110.00
[[Page 32627]]
(v) Mass standards calibration and reverification........ 57.40
(vi) Special projects.................................... 57.40
(4) Foreign travel (per day per service representative)...... 510.00
(5) Online customized data EGIS service:.....................
(i) One data file per week for 1 year.................... 500.00
(ii) One data file per month for 1 year.................. 300.00
(6) Samples provided to interested parties (per sample)...... 2.65
(7) Divided-lot certificates (per certificate)............... 1.50
(8) Extra copies of certificates (per certificate)........... 1.50
(9) Faxing (per page)........................................ 1.50
(10) Special mailing (actual cost)...........................
(11) Preparing certificates onsite or during other than
normal business hours (use hourly rates from Table 1) ......
------------------------------------------------------------------------
\1\ Any requested service that is not listed will be performed at $57.40
per hour.
\2\ Regular business hours-Monday through Friday-service provided at
other than regular hours charged at the applicable overtime hourly
rate.
Dated: May 28, 2003.
Donna Reifschneider,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 03-13679 Filed 5-30-03; 8:45 am]