[Federal Register Volume 71, Number 216 (Wednesday, November 8, 2006)]
[Rules and Regulations]
[Pages 65371-65373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18860]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 216 / Wednesday, November 8, 2006 / 
Rules and Regulations  

[[Page 65371]]



DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Parts 800 and 801

RIN 0580-AA95


Official Fees and Tolerances for Barley Protein Testing

AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION: Interim rule with request for comment.

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

SUMMARY: The Grain Inspection, Packers and Stockyards Administration 
(GIPSA) previously extended its official inspection program to include 
testing of barley protein. Testing is provided using near-infrared 
spectroscopy analyzers that were previously approved for different 
grains. GIPSA is establishing in the fee schedule a generic fee for all 
near-infrared measurements (NIR) and nuclear magnetic resonance (NMR) 
analyses, which is identical to existing fees. The fee for barley 
protein testing is included in this fee and is identical to the fees 
already established for other measurements (wheat protein; soybean oil 
and protein; and corn oil, protein, and starch). Also, GIPSA is 
amending regulations under the United States Grain Standards Act 
(USGSA) to establish performance tolerances for protein analyzers used 
to predict the percentage of protein in barley.

DATES: Effective Date: November 9, 2006.
    Comment Date: Comments must be received on or before January 8, 
2007.

ADDRESSES: We invite you to submit comments on this interim rule. You 
may submit comments by any of the following methods:
     E-mail: Send comments via electronic mail to 
[email protected].
     Mail: Send hardcopy written comments to Tess Butler, 
GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 
20250-3604.
     Fax: Send comments by facsimile transmission to (202) 690-
2755.
     Hand Deliver or Courier: Deliver comments to: Tess Butler, 
GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 
20250-3604.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All comments should make reference to the date and 
page number of this issue of the Federal Register.
    Read Comments: All comments will be available for public inspection 
in the above office during regular business hours (7 CFR 1.27(b)).

FOR FURTHER INFORMATION CONTACT: John C. Giler, Acting Director, Field 
Management Division, at his e-mail address: [email protected] or 
telephone him at (202) 720-0228.

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 and Regulatory Flexibility Act

    This interim rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget (OMB).
    The Administrator of GIPSA has determined that this rule will not 
have a significant impact on a substantial number of small entities as 
defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    Currently, near-infrared spectroscopy analyzers are being used to 
determine wheat protein; soybean oil and protein; and corn oil, 
protein, and starch in both domestic and export markets. This rule 
establishes tolerances to expand the use of currently approved near-
infrared spectroscopy analyzers to test barley protein and establishes 
a generic fee for all NIR and NMR testing that is identical to current 
fees. Testing for barley protein is included in this fee. There are 58 
official agencies (46 private entities, 12 States) that are designated 
and/or delegated by GIPSA to perform official grain inspection 
services. Most of the agencies could be considered small entities under 
Small Business Administration criteria.
    The extent to which these agencies will choose to provide this 
service is difficult to quantify because GIPSA is offering this service 
on a request basis, and locations where service is requested 
infrequently may make arrangements with neighboring agencies to provide 
the service (7 CFR 800.196(g)(1)). GIPSA believes that offering this 
service would have a beneficial effect on those agencies electing to 
provide the service.
    For the 2006/2007 Market Year (June to May), USDA's Economic 
Research Service estimated the U.S. Barley Supply to be 303,000,000 
bushels. Between June 2006 and September 2006 (the months for which we 
have data), 20,010,000 bushels of barley were tested for protein. Of 
the Official Agencies, 10 performed barley protein tests in the first 
11 months of fiscal year 2006. There were 5,176 barley protein tests 
performed; of those 2,624 were tests performed for trucks and rail 
cars, 2,546 were tests performed on submitted samples, and 6 were 
performed locally, such as within a grain elevator.
    According to USDA's National Agricultural Statistics Service, there 
are 24,747 farms (producers) in the barley for grain category. We do 
not have estimates for the number of grain handlers, exporters, and 
feedlot operators that may be involved in submitting barley for protein 
testing. In general, many producers, grain handlers, exporters, and 
feedlot operators may be considered small entities under Small Business 
Administration criteria. Further, grain handlers and exporters often 
use testing results to determine value and premiums. The extent to 
which these entities will request the official barley protein or the 
impact of offering this service is difficult to quantify. GIPSA 
believes that barley producers, feedlot operators, grain handlers, and 
exporters will rely on the official system to provide reliable testing 
procedures and accurate results that the market can rely on to 
negotiate price, value, and premiums.
    Fees currently are charged for NIR testing. The fees charged by 
GIPSA are $2.25 per test when the service is performed at an 
applicant's facility in an onsite FGIS laboratory, and when an 
inspection service is performed at a location other than an applicant's 
facility in an FGIS laboratory the fees are $10.00 per test for an 
original

[[Page 65372]]

inspection service and $17.70 for an appeal inspection service. The 
generic fee is the same as fees charged for current individual tests 
and their impact on applicants for services will vary depending upon 
usage since these tests are on a request basis.

Executive Order 12988

    Executive Order 12988, Civil Justice Reform, instructs each 
executive agency to adhere to certain requirements in the development 
of new and revised regulations in order to avoid unduly burdening the 
court system. This interim rule has been reviewed under this Executive 
Order. This interim rule is not intended to have a retroactive effect. 
The United States Grain Standards Act provides in Section 87g that no 
State or subdivision may require or impose any requirements or 
restrictions concerning the inspection, weighing, or description of 
grain under the Act. Otherwise, this interim rule will not preempt any 
State or local laws, regulations, or policies unless they present 
irreconcilable conflict with this rule. There are no administrative 
procedures which must be exhausted prior to any judicial challenge to 
the provisions of this interim rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the 
recordkeeping and reporting burden imposed by Parts 800 and 801 were 
previously approved by OMB under control number 0580-0013 and will not 
be affected by this rule.
    GIPSA is committed to compliance with the Government Paperwork 
Elimination Act, which requires Government agencies, in general, to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible.

Background

    On November 4, 2004, GIPSA issued a Federal Register notice (69 FR 
64269-64270), announcing an intent to implement barley protein 
measurement as official criteria under the United States Grain 
Standards Act (USGSA) effective July 1, 2005. The Federal Register 
notice is available on the GIPSA Web site at http://www.gipsa.usda.gov.
    This provides the barley industry with accurate results for protein 
that the market can rely on to negotiate price, value, and premium.

Fees

    GIPSA collects fees for providing official testing services to 
cover, as nearly as practicable, GIPSA's costs for performing the 
service, including related administrative and supervisory costs. 
Testing procedures and time necessary to determine protein in barley 
using the approved near-infrared transmittance (NIRT) analyzers are the 
same as those required for NIRT wheat protein; soybean oil and protein; 
and corn oil, protein, and starch determinations. Accordingly, the fee 
to test barley is the same as for tests for the above cited 
commodities. The fee is $2.25 per test when the service is performed at 
an applicant's facility in an onsite FGIS laboratory, and for services 
performed at a location other than an applicant's facility in an FGIS 
laboratory the fees will be $10.00 per test for an original inspection 
service and $17.70 per test for an appeal inspection service.
    Further, since the fees for near-infrared (NIR) analysis are the 
same as the fees for nuclear magnetic resonance (NMR) analysis, these 
fees are included in a generic NIR and NMR analysis fee. This should 
simplify the fee schedule and will not require a regulatory fee change 
when new NIR and NMR analysis are available for other grain products. 
Specifically, in 7 CFR 800.71, in tables 1 and 2, we will add a single 
new fee for ``NIR and NMR analysis (protein, oil, starch, etc.)'' to 
replace the individual fees currently listed for the following 4 
categories: (1) Corn oil, protein, and starch (one of any combination), 
(2) soybean protein and oil (one or both), (3) wheat protein (per 
test), and (4) sunflower (per test). We will renumber the remaining 
fees listed in table 1, section 2 and table 2, sections 1 and 2. We are 
not making any other changes to the remaining fee amounts or categories 
at this time.

Tolerances

    We run standard reference samples through the equipment to evaluate 
the accuracy of the equipment; for barley, the standard reference 
samples sets typically weigh between 650 and 750 grams. Due to the 
natural variation in individual kernels of barley and other sources of 
variability, each time we test the barley the testing equipment is 
likely to produce slightly different results. Therefore, we determine 
the allowable amount of differences between the test results from the 
standard reference sample and the expected outcome. We refer to this 
amount as the tolerance, which is the variation we allow for the 
equipment to produce accurate results.
    We determined that, based upon the performance of the instruments 
and calibration, the maintenance tolerance will be 0.20 percent mean 
deviation from the national standard NIRS instruments for the NIRS 
analyzers used in performing official inspections. We determined that 
this level of accuracy will provide reliable testing procedures and 
accurate results to meet prospective official customer needs and that 
the market can rely on to negotiate price, value, and premium. We will 
apply this tolerance according to testing instructions found in the 
GIPSA Near-Infrared Transmittance (NIRT) Handbook.
    We are adding this tolerance as a new paragraph (b)(4) in 9 CFR 
801.7. Currently, 7 CFR 801.7 includes tolerances for (1) NIRS wheat 
protein analyzers, (2) NIRS soybean oil and protein analyzers, and (3) 
NIRS corn oil, protein, and starch analyzers.
    As with other commodities for which NIRS analyzers are used, we 
will use the chemical reference protein determinations to reference and 
calibrate official NIRS instruments in accordance with the Combustion 
Method, AOAC International Method 992.23, which we previously 
incorporated by reference into 7 CFR 801.7. No change to the 
incorporation is required for barley protein testing.

Immediate Action

    Immediate action is necessary for good cause under 5 U.S.C. 553. 
The Administrator has determined that it is impracticable, unnecessary, 
and contrary to the public interest to give preliminary notice prior to 
putting this rule in effect and good cause exists for not postponing 
the effective date of this rule until 30 days after publication in the 
Federal Register because (1) the rule simplifies the current fee 
schedule by establishing a generic fee for all NIR and NMR testing that 
is the same as fee charged for individual tests and (2) includes in 
Part 801 maintenance tolerances for NIRS barley protein analyzers.
    We will consider all comments we receive during the comment period 
for this interim rule (see DATES above). After the comment period 
closes, we will publish another document in the Federal Register. The 
document will include a discussion of any comments we received and any 
amendments we are making to the rule.

List of Subjects

7 CFR Part 800

    Administrative practice and procedure, Conflict of interests, 
Exports, Freedom of information, Grains, Intergovernmental relations, 
Penalties,

[[Page 65373]]

Reporting and recordkeeping requirements.

7 CFR Part 801

    Exports, Grains, Scientific equipment.


0
For the reasons set out in the preamble, we are amending 7 CFR parts 
800 and 801 as follows:

PART 800--GENERAL REGULATIONS

0
1. Revise the authority citation for part 800 to read as follows:

    Authority: 7 U.S.C. 71-87k.

0
2. Amend Sec.  800.71 by revising Table 1(2) (i through xi) and 
revising Table 2(1)(v) and (2)(ii) in Schedule A of paragraph (a) to 
read as follows:


Sec.  800.71  Fees Assessed by the Service.

    (a) * * *

    Table 1.--Fees for Official Services Performed at an Applicant's
                Facility in an Onsite FGIS Laboratory \1\
     Schedule A.--Fees for Official Inspection and Weighing Services
                     Performed in the United States
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                              * * * * * * *
(2) Additional Tests (cost per test, assessed in addition
 to the hourly rate): \3\
    (i) Aflatoxin (rapid test kit method)..................       $10.00
    (ii) NIR or NMR Analysis (protein, oil, starch, etc.)..         2.25
    (iii) Vomitoxin (qualitative)..........................        12.50
    (iv) Vomitoxin (quantitative)..........................        18.50
    (v) Waxy corn (per test)...............................         2.25
    (vi) Fees for other tests not listed above will be       ...........
     based on the lowest noncontract hourly rate...........
    (vii) Other services...................................  ...........
         (a) Class Y Weighing (per carrier)                  ...........
            (1) Truck/container............................         0.30
            (2) Railcar....................................         1.25
            (3) Barge......................................         2.50
                              * * * * * * *
------------------------------------------------------------------------


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 * *
 *
    (v) Additional tests (excludes sampling):                ...........
        (a) Aflatoxin (rapid test kit method)..............       $30.00
        (b) NIR or NMR Analysis (protein, oil, starch,             10.00
         etc.).............................................
        (c) Vomitoxin (qualitative)........................        31.00
        (d) Vomitoxin (quantitative).......................        38.50
        (e) Waxy corn (per test)...........................        10.00
        (f) Canola (per test--00 dip test).................        10.00
        (g) Pesticide Residue Testing: \3\                   ...........
            (1) Routine Compounds (per sample).............       216.00
            (2) Special Compounds (per hour per service           115.00
             representative)...............................
        (h) 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\ *
 * *
    (ii) Additional tests (assessed in addition to all       ...........
     other applicable tests):
        (a) Aflatoxin (rapid test kit method)..............       $30.00
        (b) NIR or NMR Analysis (protein, oil, starch,             17.70
         etc.).............................................
        (c) Vomitoxin (per test-qualitative)...............        41.00
        (d) Vomitoxin (per test-quantitative)..............        47.00
        (e) Vomitoxin (per test-HPLC Board Appeal).........       141.00
        (f) Pesticide Residue Testing: \3\                   ...........
            (1) Routine Compounds (per sample).............       216.00
            (2) Special Compounds (per hour per service           115.00
             representative)...............................
        (g) Fees for other tests not listed above will be
         based on the lowest noncontract hourly rate from
         Table 1.
                              * * * * * * *
------------------------------------------------------------------------

PART 801--[AMENDED]

0
3. Revise the authority for part 801 to read as follows:

    Authority: 7 U.S.C. 71-87k

0
4. Amend Sec.  801.7 by adding a new paragraph (b)(4) to read as 
follows:


Sec.  801.7  Reference methods and tolerances for near-infrared 
spectroscopy (NIRS) analyzers.

* * * * *
    (b) * * *
    (4) NIRS barley protein analyzers. The maintenance tolerances for 
the NIRS analyzers used in performing official inspections for 
determination of barley protein content are 0.20 percent mean deviation 
from the national standard NIRS instruments, which are referenced and 
calibrated to the Combustion method, AOAC International Method 992.23.

Pat Donohue-Galvin,
Acting Administrator, Grain Inspection, Packers and Stockyards 
Administration.
 [FR Doc. E6-18860 Filed 11-7-06; 8:45 am]
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