[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]


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Part V





Department of Agriculture





_______________________________________________________________________



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.

-----------------------------------------------------------------------

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