[Federal Register Volume 68, Number 156 (Wednesday, August 13, 2003)]
[Proposed Rules]
[Pages 48322-48326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20563]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 68, No. 156 / Wednesday, August 13, 2003 / 
Proposed Rules  

[[Page 48322]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 91 and 96

[Docket Number ST02-03]
RIN 0581-AC18


Removal of Cottonseed Chemist Licensing Program, Updating of 
Commodity Laboratory and Office Addresses, and Adoption of Information 
Symbols

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule with request for comments.

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

SUMMARY: The Agricultural Marketing Service (AMS) proposes to remove 
the cottonseed chemist licensing program and the related official 
grading program. This proposed regulation would update various 
commodity testing laboratory addresses and would adopt two information 
symbols in the form of approved AMS shields to indicate that products 
have been tested by AMS.

DATES: Comments must be received on or before September 12, 2003.

ADDRESSES: Interested persons are invited to submit comments concerning 
this proposed rule. The Agency particularly invites ideas for adequate 
funding so that this 67-year-old USDA user fee program may become 
operational again if the cottonseed products industry shows renewed 
interest. Comments should be sent in triplicate to James V. Falk, 
Docket Manager, USDA, AMS, Science and Technology, 1400 Independence 
Avenue, SW., Room 3521 South Agriculture Building, Mail Stop 0272, 
Washington, DC 20250-0272; telephone (202) 690-4089; fax (202) 720-
4631, or e-mail: [email protected] and should refer to the docket 
title and number located in the heading of this document. Comments 
received will be available for public inspection in Room 3507, South 
Agriculture Building, 1400 Independence Avenue, SW., between the hours 
of 10 a.m. and 4 p.m., Eastern Time, Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: James V. Falk, Docket Manager, USDA, 
AMS, Science and Technology, 1400 Independence Avenue, SW., Room 3521 
South Agriculture Building, Mail Stop 0272, Washington, DC 20250-0272; 
telephone (202) 690-4089; fax (202) 720-4631, or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Executive Order 12866 and Executive Order 12988

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866, and therefore, has not been 
reviewed by the Office of Management and Budget (OMB).
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. This 
rule does 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 this rule or the application of its 
provisions.

Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), the Administrator of the Agricultural 
Marketing Service (AMS) has considered the economic impact of this 
action on small entities. Even though an official cottonseed grading 
certificate has not been issued since June 3, 1999, there are some 
potential users available that may use the cottonseed chemist licensing 
program services. Such possible users of program services include 35 
oil mills, 1,400 U.S. cottonseed gins, 11 private laboratories, and 
exporters. Many of these users are small entities under the criteria 
established by the Small Business Administration (13 CFR 121.601).
    USDA licensed cottonseed chemist program service and official 
cottonseed grade determinations are provided to all businesses on a 
voluntary basis and user fees to administer the program are listed in 7 
CFR part 96. Any decision to discontinue the use of the official 
cottonseed grading services (with a unit certificate fee) at private 
laboratories and obtain new contracts with their customers based upon 
unofficial grade of seed (without a fee) would not hinder the 
cottonseed industry members from marketing their products. Monthly 
published Marketing News reports for cottonseed are based entirely on 
summary information of the quality and quantity factors and grades 
obtained from all official certificates issued by licensed chemists. 
There has been no official cottonseed grade certificate issued from a 
licensed chemist since June 3, 1999. All cottonseed business since that 
date has been based on an unofficial cottonseed grade. User fee costs 
to entities would be proportional to their use of program services, so 
that costs are shared equitably by all users.
    The last fee increases for the USDA Cottonseed Chemist Licensing 
Program services became effective on May 4, 1998 (63 FR 16370-16375). 
Since June 1999, no revenue has been available to administer the 
program and there has been a yearly increase in cost of living for the 
Federal employee salaries and benefits that comprise 72 percent of 
total program expenses. No program revenue is generated because there 
has been a shift in usage patterns on the part of the cottonseed 
industry for testing and grading services by chemists. The industry is 
now relying entirely on an unofficial cottonseed grade certification 
for their purchase and trade decisions.
    Other miscellaneous and unsubstantial changes which would be made 
by the proposed rule will not adversely affect users of the program 
services. The addition of two information symbols in the form of 
approved AMS shields and their inclusion in the regulations would not 
add further costs to users of the variety of AMS Science and Technology 
laboratory testing services.
    Accordingly, the Administrator has determined that this rule would 
not have a significant economic impact on a substantial number of small 
entities.

Paperwork Reduction Act

    This rule does not contain any new information collection or 
recordkeeping requirements that are subject to the Office of Management 
and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 
U.S.C. Chapter 35).

[[Page 48323]]

Background and Analysis of Proposal

    On August 9, 1993, AMS published a rule in the Federal Register (58 
FR 42408-42448) to combine AMS regulations concerning laboratory 
services. The goal was to consolidate and to transfer existing 
laboratory testing programs operating independently under the various 
commodity programs into the Science and Technology (S&T) program, 
formerly the Science Division and the Science and Technology Division 
(S&TD). All divisions in the Agricultural Marketing Service (AMS) were 
designated as programs by the Administrator on September 18, 1997.
    The description of examination and licensure services provided in 
section 91.4 needs to be broadened to include other laboratory and 
testing licenses provided by the Science & Technology programs. In 
addition, if the proposed rule to remove the Cottonseed Chemist 
Licensing Program becomes finalized then the limited description of 
services would no longer be applicable. Science & Technology Program 
laboratories and facilities have undergone modernization and 
consolidation since May 1998. In many instances the addresses of the 
locations changed in section 91.5. A major change was the October 2002 
opening of the National Science Laboratory in Gastonia, North Carolina 
which now has biotechnology testing facilities
    On November 1, 1999 the USDA Office of Communications approved two 
information symbols in the form of AMS shields to be added to the USDA/
AMS inventory and they are acceptable for use with AMS materials. The 
two approved AMS shields with the words ``USDA AMS TESTED'' and ``USDA 
LABORATORY TESTED FOR EXPORT'' are proposed to be added to the 
regulations in 7 CFR part 91. A major role of the Science and 
Technology program for the Agency is to perform analytical testing 
services of commodities. The approved AMS shields are designed to 
enhance the acceptance of AMS tested agricultural commodities on a 
national or international basis.
    The licensed cottonseed chemist program and official grade 
certification are voluntary, user fee-funded services, conducted under 
the authority of the Agricultural Marketing Act of 1946, as amended (7 
U.S.C. 1622, 1624). Under the current USDA program, chemists in private 
laboratories are licensed to analyze cottonseed in order to certify its 
quality, to access its lot potential for oil yield at seed crushing 
mills, and to determine the grade of official samples of cottonseed 
produced at cotton gins according to the rules, regulations and By-Laws 
of the National Cottonseed Products Association (NCPA). A 
representative lot of cottonseed for official grade determination is 
generally limited to a maximum of 150 tons for quality concerns. An 
official certificate is issued by the licensed chemist for each 
official cottonseed sample at a current unit fee of $3.18 to cover the 
costs of the USDA program.
    The USDA licensed cottonseed chemist program originated on July 31, 
1937 when a Bureau of the United States Department of Agriculture 
published a rule in the Federal Register (2 FR 1348-1353) and provided 
the details for the program. On August 14, 1937 the first user fee 
increase for the program occurred when the issuance cost for each 
certificate of the official grade of cottonseed increased from 10 cents 
to 25 cents (2 FR 1400).
    The regulations in 7 CFR part 96 include in subpart A the details 
of the USDA cottonseed chemist licensing program (under the AMS Cotton 
Division's supervision for the last time in 1988) and the applicable 
user fees. In subpart B the method used to calculate official 
cottonseed grade was provided.
    The current fees have been in effect since May 4, 1998 (63 FR 
16370-16375). The fees include $1,166 for a chemist's license 
examination, $292 for a chemist's license renewal, a $3.18 fee per 
official cottonseed grade certificate issued, and a $60 fee for the 
review of the grading of an official lot of cottonseed. The number of 
official cottonseed grade certificates issued by licensed chemists 
dropped from 36,565 in fiscal year 1992 to 5,718 in early fiscal year 
1999. The large decline in official cottonseed grade certificates was 
due to the 40 percent divergence of cottonseed usage from human food to 
dairy animal feed. In addition, many large oil mills have setup their 
own laboratories to perform cottonseed quality testing and have 
established trade relations with their customers based on an unofficial 
grade of seed.
    The S&T programs are mainly voluntary, user fee services, conducted 
under the authority of the Agricultural Marketing Act of 1946, as 
amended. The Act authorizes the Department to provide analytical 
testing services that facilitate marketing and allow commodity products 
to obtain grade designations or meet marketing standards. In addition, 
the laboratory tests establish quality standards for the agricultural 
commodities. The Act also requires that reasonable and reimbursable 
fees be collected from users of the program services to cover, as 
nearly as practicable, the costs of the services rendered to maintain 
the program. At a May 1999 annual meeting, the National Cottonseed 
Products Association was provided an analysis of the services the 
Agency provides for the official cottonseed grade determination, and 
the revisions of fees that are needed to continue services to the 
extent commensurate with the actual costs. The industry expressed 
strong resistance to paying the increased costs needed to provide the 
official cottonseed grading service that includes official sampling 
expenses. It was their recommendation to eliminate the cottonseed 
chemist licensing program. In June 1999 the last official cottonseed 
grade certificate was issued and no revenue has been obtained from the 
USDA cottonseed chemist licensing program since that time to the 
present. The program has become a financial burden to AMS. The total 
obligatory cost to Science and Technology to carry the program forward 
to the full completion of fiscal year (FY) 2003 would be $65,939. The 
estimated cost of the program for FY 2004 would remain at $65,939. This 
cost consists of $47,786 for salaries and benefits, $2,480 for USDA 
blind check sample preparation, $7,101 for travel, $3,575 for rent/
utilities/communications, and $4,997 for administrative overhead. The 
Agency has no projected revenue to continue the program operation using 
the current user fee schedule. Hence, this rule proposes to terminate 
the cottonseed chemist licensing program and to remove related official 
cottonseed grading and associated fees from the regulations. This rule 
proposes to remove 7 CFR part 96 in its entirety. Private or non-
government laboratories would no longer be eligible to hold USDA 
cottonseed chemist licenses. There will be no need for persons to 
possess official cottonseed sampler licenses or similar designations. 
Marketing News for official grade cottonseed would no longer be 
available.
    This proposed rule would also update various commodity testing 
laboratory addresses and would adopt approved AMS shields to indicate 
that products have been tested by AMS. The new shields would be placed 
in a new subpart together with appropriate definitions.
    This proposed rule provides for a 30-day comment period. This 
period is deemed appropriate in view of the need to make changes to the 
regulations as soon as possible. All comments which are received during 
the comment period will be considered before making any

[[Page 48324]]

final decision about the continuance or the discontinuance of official 
cottonseed grading and the related USDA Cottonseed Chemist Licensing 
Program.

List of Subjects

7 CFR Part 91

    Administrative practice and procedure, Agricultural commodities, 
Laboratories, Reporting and recordkeeping requirements.

7 CFR Part 96

    Administrative practice and procedure, Agricultural commodities, 
Laboratories, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 91 is amended 
as follows:

PART 91--[AMENDED]

    1. The authority citation for part 91 continues to read as follows:

    Authority: 7 U.S.C. 1622, 1624.

    2. In Sec.  91.4, paragraph (b) is revised to read as follows:


Sec.  91.4  Kinds of services.

* * * * *
    (b) Examination and licensure. The manager of a particular Science 
and Technology program administers examinations and licenses analysts 
in laboratories for competency in performing commodity testing 
services.
* * * * *
    3. Section 91.5 is revised to read as follows:


Sec.  91.5  Where services are offered.

    (a) Services are offered to applicants at the Science and 
Technology field service laboratories and facilities in the following 
list:
    (1) Science and Technology regional laboratory. A variety of tests 
and laboratory analyses are available in one regional multi-
disciplinary Science and Technology (S&T) laboratory, and is located as 
follows: USDA, AMS, Science and Technology, National Science 
Laboratory, 801 Summit Crossing Place, Suite B, Gastonia, NC 28054-
2193.
    (2) Science and Technology (S&T) satellite laboratories. The 
specialty laboratories performing mycotoxin and other chemical testing 
on peanuts, peanut products, dried fruits, grains, edible seeds, tree 
nuts, shelled corn products, oilseed products and other commodities as 
well as proximate analyses on foods are:
    (i) USDA, AMS, Science & Technology, 959 North Main Street, 
Blakely, GA 39823-2030.
    (ii) USDA, AMS, Science & Technology, 107 South Fourth Street, 
Madill, OK 73446-3431.
    (iii) USDA, AMS, Science & Technology, c/o Golden Peanut Company 
LLC, (Mail: P.O. Box 272; Dawson, GA 31742-0272), 715 Martin Luther 
King Jr. Drive, Dawson, GA 39842-1002.
    (iv) USDA, AMS, S&T, Mail: P.O. Box 1130, 308 Culloden Street, 
Suffolk, VA 23434-4706.
    (3) Citrus laboratory. The Science and Technology's citrus 
laboratory specializes in testing citrus juices and other citrus 
products and is located as follows: USDA, AMS, Science & Technology 
Citrus Laboratory, 98 Third Street, SW., Winter Haven, FL 33880-2905.
    (4) Program laboratories. Laboratory services are available in all 
areas covered by cooperative agreements providing for this laboratory 
work and entered into on behalf of the Department with cooperating 
Federal or State laboratory agencies pursuant to authority contained in 
Act(s) of Congress. Also, services may be provided in other areas not 
covered by a cooperative agreement if the Administrator determines that 
it is possible to provide such laboratory services.
    (5) Other alternative laboratories. Laboratory analyses may be 
conducted at alternative Science and Technology laboratories and can be 
reached from any commodity market in which a laboratory facility is 
located to the extent laboratory personnel are available.
    (6) Science and Technology headquarters offices. The examination, 
licensure, quality assurance reviews, laboratory accreditation/
certification and consultation services are provided by headquarters 
staff located in Washington, DC. The main headquarters office is 
located as follows: USDA, AMS, Science and Technology, Office of the 
Deputy Administrator, Room 3507 South Agriculture Bldg., Mail Stop 
0270, 1400 Independence Ave., SW., Washington, DC 20250-0270.
    (7) The Information Technology (IT) Group. The IT office of the 
Science and Technology programs is headed by the Associate Deputy 
Administrator for Technology/Chief Information Officer and provides 
information technology services and management systems to the Agency 
and other agencies within the USDA. The main IT office is located as 
follows: USDA, AMS, Science and Technology, Office of the Associate 
Deputy Administrator for Technology, 1752 South Agriculture Bldg., Mail 
Stop 0204, 1400 Independence Ave., SW., Washington, DC 20250-0204.
    (8) Statistics Branch Office. The Statistics Branch office of 
Science and Technology (S&T) provides statistical services to the 
Agency and other agencies within the USDA. In addition, the Statistics 
Branch office generates sample plans and performs consulting services 
for research studies in joint efforts with or in a leading role with 
other program areas of AMS or of the USDA. The Statistics Branch office 
is located as follows: USDA, AMS, S&T Statistics Branch, 0603 South 
Agriculture Bldg., Mail Stop 0223, 1400 Independence Ave., SW., 
Washington, DC 20250-0223.
    (9) Technical Services Branch Office. The Technical Services Branch 
office of Science and Technology (S&T) provides technical support 
services to all Agency programs and other agencies within the USDA. In 
addition, the Technical Services Branch office provides certification 
and accreditation services of private and State government laboratories 
as well as oversees quality assurance programs; import and export 
certification of laboratory tested commodities. The Technical Services 
Branch office is located as follows: USDA, AMS, S&T Technical Services 
Branch, 3521 South Agriculture Bldg., Mail Stop 0272, 1400 Independence 
Ave., SW., Washington, DC 20250-0272.
    (10) Monitoring Programs Office. Services afforded by the Pesticide 
Data Program (PDP) and Microbiological Data Program (MDP) are provided 
by USDA, AMS, Science and Technology Monitoring Programs Office (MDP 
and PDP), 8609 Sudley Road, Suite 206, Manassas, VA 20119-8411.
    (11) Federal Pesticide Record Keeping Program Office. Services 
afforded by the Federal Pesticide Record Keeping Program for 
restricted-use pesticides by private certified applicators are provided 
by USDA, AMS, Science and Technology, Pesticide Records Branch, 8609 
Sudley Road, Suite 203, Manassas, VA 20110-8411. The addresses of the 
various laboratories and offices appear in the pertinent parts of this 
subchapter. A prospective applicant may obtain a current listing of 
addresses and telephone numbers of Science and Technology laboratories, 
offices, and facilities by addressing an inquiry to the Administrative 
Officer, Science and Technology, Agricultural Marketing Service, United 
States Department of Agriculture (USDA), 1400 Independence Ave., SW., 
Room 0725 South Agriculture Building, Mail Stop 0271, Washington, DC 
20250-0271.
    4. A new subpart J is added to read as follows:

[[Page 48325]]

Subpart J--Designation of Approved Symbols for Identification of 
Commodities Officially Tested by AMS

Sec.
91.100 Scope.
91.101 Definitions.
91.102 Form of official identification symbols.


Sec.  91.100  Scope.

    Two approved information symbols in the form of AMS shields are 
available to indicate official testing by an AMS laboratory. The two 
approved AMS shields with the words ``USDA AMS TESTED'' and ``USDA 
LABORATORY TESTED FOR EXPORT'' are added to the USDA symbol inventory 
to enhance the acceptance of AMS tested agricultural commodities on a 
national or international basis.


Sec.  91.101  Definitions.

    Words used in the regulations in this part in the singular form 
will import the plural, and vice versa, as the case may demand. As used 
throughout the regulations in this part, unless the context requires 
otherwise, the following terms will be construed to mean:

AMS. The abbreviation for the Agricultural Marketing Service (AMS) 
agency of the United States Department of Agriculture.
Export. To send or transport a product originally created or 
manufactured in the United States of America to another country in the 
course of trade.
Laboratory. An AMS Science and Technology (S&T) laboratory listed in 
Sec.  91.5 that performs the official analyses.
Test. To perform chemical, microbiological, or physical analyses on a 
sample to determine presence and levels or amounts of a substance or 
living organism of interest.
USDA. The abbreviation for the United States Department of Agriculture.


Sec.  91.102  Form of official identification symbols.

    Two information symbols in the form of AMS shields indicate 
commodity testing at an AMS laboratory listed in Sec.  91.5 of this 
part. The AMS shield set forth in figure 1 of this section, containing 
the words ``USDA AMS TESTED'', and the shield set forth in figure 2, 
containing the words ``USDA LABORATORY TESTED FOR EXPORT'' have been 
approved by the USDA Office of Communications to be added to the USDA/
AMS inventory of symbols. Each example of an AMS shield has a black and 
white background; however the standard red, white and blue colors are 
approved for the shields. They are approved for use with AMS materials. 
Shields with the same wording that are similar in form and design to 
the examples in figures 1 and 2 of this section may also be used.
[GRAPHIC] [TIFF OMITTED] TP13AU03.000

[GRAPHIC] [TIFF OMITTED] TP13AU03.001


[[Page 48326]]



PART 96--[REMOVED AND RESERVED]

    4. Part 96 is removed and reserved.

    Dated: August 7, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-20563 Filed 8-12-03; 8:45 am]
BILLING CODE 3410-02-P