[Federal Register Volume 83, Number 247 (Thursday, December 27, 2018)]
[Rules and Regulations]
[Pages 66583-66585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27787]


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DEPARTMENT OF AGRICULTURE

7 CFR Part 800

[Doc. No. AMS-FGIS-18-0063]


Removal of Specific Fee Reference

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Direct final rule.

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SUMMARY: The United States Grain Standards Act (USGSA) provides the 
Secretary with the authority to charge and collect reasonable fees to 
cover the costs of performing official services and the costs 
associated with managing the program. The USDA, on behalf of the 
Agricultural Marketing Service (AMS), is eliminating the published 
table of fees in the Code of Federal Regulations (CFR). Notice of 
changes to Schedule A Fees will be published in the Federal Register 
and AMS will make the fee schedule available on the Agency's public 
website.

DATES: This rule is effective February 11, 2019, unless we receive 
written adverse comments or written notices of intent to submit adverse 
comments on or before January 28, 2019. If we receive such comments or 
notices, we will publish a timely document in the Federal Register 
withdrawing the direct final rule.

ADDRESSES: Submit comments by any of the following methods:
     Postal Mail: Please send your comment addressed to Kendra 
Kline, AMS, USDA, 1400 Independence Avenue SW, Room 2043-S, Washington, 
DC 20250-3614.
     Hand Delivery or Courier: Kendra Kline, AMS, USDA, 1400 
Independence Avenue SW, Room 2043-S, Washington, DC 20250-3614.
     internet: Go to http://www.regulations.gov. Follow the on-
line instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Denise Ruggles, FGIS Executive Program 
Analyst, USDA AMS; Telephone: (816)

[[Page 66584]]

659-8406; Email: [email protected].

SUPPLEMENTARY INFORMATION: The USDA, on behalf of AMS, is removing the 
fee tables from the CFR. AMS calculates the tonnage fees according to 
the regulatory formula in Sec.  800.71(b)(1). In 2015 Congress required 
Grain Inspection, Packers and Stockyards Administration (GIPSA) to 
adopt a method of calculation of export tonnage fees based upon ``the 
rolling 5-year average of export tonnage volumes.'' And, ``[i]n order 
to maintain an operating reserve of not less than 3 and not more than 6 
months, the Secretary shall adjust the fees described . . . not less 
frequently than annually.'' Since 2016, the Federal Grain Inspection 
Service (FGIS)--currently a division of AMS--conducts a ministerial 
review of the amount of funds in the operating reserve at the end of 
the fiscal year to ensure that it has 4\1/2\ months of operating 
expenses as required by Sec.  800.71(b)(2) of the regulations. If the 
operating reserve has more or less than 4\1/2\ months of operating 
expenses, then FGIS must adjust all its fees. For each $1,000,000, 
rounded down, that the operating reserve varies from the target of 4\1/
2\ months, FGIS adjusts all those fees by 2 percent. FGIS reduces the 
fees if the operating reserve exceeds the target and it increases the 
fees if the operating reserve does not meet target. The maximum annual 
increase or decrease in fees is 5 percent (7 CFR 800.71(b)(2)(i)-(ii)).
    However, when creating the formula for fees FGIS administers, FGIS 
did not remove the published table of fees in the CFR. Under the prior 
fee publication and adjustment scheme, the agency allowed notice and 
comment on the fee table because it established the fees, and the fee 
table provided the ultimate public notice of the fees themselves.
    Since the change to 7 CFR 800.71, FGIS no longer establishes fees 
through publication of the table in the CFR. The current method uses 
the regulatory formula in Sec.  800.71(b)(1). Comment on the 
publication of the table in the Federal Register, therefore, does not 
have any impact on the statutorily mandated formula which is the basis 
of all the fees in the table. For this reason, annual publication of 
changes to the CFR of the fee table is unnecessary, because the 
adjustment of fees in 7 CFR 800.71 occurs by formula.
    Also, the publication of the table in the Federal Register has 
provided the public with annual notice of the fees. While the 
publication of the table does provide this important function, FGIS 
believes there are less expensive but no less effective methods to 
provide public notice of the formula's required changes to the fees 
themselves. Annual publication changes to the table in the CFR 
unnecessarily increases the cost of administering the fees, and is 
inconsistent with administration priorities to be prudent and 
financially responsible in the expenditure of funds.
    Accordingly, this table is being eliminated from the CFR. AMS will 
provide public notice of the change in fees through its publication of 
a notice in the Federal Register and posting the fees on its public 
website by January 1 of each year (7 CFR 800.71(b)(a)(1)). The agency 
expect that this method of notice of the ultimate fees is a non-
controversial change in the manner that the agency publishes notice of 
the fees and therefore the agency does not expect adverse comment.

GIPSA/AMS Merger

    GIPSA formerly fell within the mission area overseen by the Under 
Secretary for Marketing and Regulatory Programs (MRP), along with AMS. 
The Under Secretary for MRP's authority over GIPSA is further 
demonstrated by the published delegations of authority in part 2 of 
title 7 of the CFR. In 7 CFR 2.22(a)(3), the Secretary of Agriculture 
delegated to the Under Secretary for MRP authorities ``related to grain 
inspection, packers and stockyards.'' In 7 CFR 2.81, the Under 
Secretary for MRP further delegated these authorities to the 
Administrator of GIPSA.
    In a November 14, 2017 Secretary's Memorandum, the Secretary 
directed that the authorities at 7 CFR 2.81 be re-delegated to the 
Administrator of AMS, and that the delegations to the Administrator of 
GIPSA be revoked. These changes did not affect the existing delegations 
to the Under Secretary of MRP related to grain inspection, packers and 
stockyards at 7 CFR 2.22(a)(3).

Executive Orders 12866 and 13563

    The Office of Management and Budget (OMB) has reviewed this 
regulatory action in accordance with the provisions of Executive Order 
12866, Regulatory Planning and Review, and has determined that it does 
not meet the criteria for significant regulatory action. Additionally, 
because this rule does not meet the definition of a significant 
regulatory action, it does not trigger the requirements contained in 
Executive Order 13771. See OMB's Memorandum titled ``Guidance 
Implementing Executive Order 13771, Titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (April 5, 2017).

Direct Final Rule

    No adverse comments are anticipated on the changes in this rule. 
Adverse comments suggest that the rule should not be adopted or that a 
change should be made to the rule. Unless an adverse comment is 
received within 30 days from the date of publication, this rule will be 
effective 45 days from the date of publication. If FGIS receives one or 
more written adverse comments within 30 days from the date of 
publication, a document withdrawing the direct final rule prior to its 
effective date will be published in the Federal Register stating that 
adverse comments were received.

Regulatory Flexibility Act

    Since grain export volume can vary significantly from year to year, 
estimating the impact in any future fee changes can be difficult. AMS 
recognizes the need to provide predictability to the industry for 
inspection and weighing fees. AMS collects fees for performing official 
inspection and weighing services adequately cover the cost of providing 
those services. While not required by the Reauthorization Act, this 
rulemaking limits the impact of a large annual change in fees by 
setting an annual cap of 5 percent for increases or decreases in 
inspection and weighing fees. The statutory requirement to maintain an 
operating reserve between 3 and 6 months of operating expenses ensures 
that AMS can adequately cover its costs without imposing an undue 
burden on its customers.
    Currently, AMS regularly reviews its user-fee financed programs and 
adjusts the user-fees according to the equations stated in 7 CFR 
800.71(b)(2)(ii). The regulations (7 CFR 800.71(a)(1)) also require AMS 
to publish the adjusted fees by January 1 of each year. These 
regulations remain unchanged in this rulemaking. AMS will continue to 
seek out cost saving measures and implement appropriate changes to 
reduce its costs to provide alternatives to fee increases.
    This rulemaking is unlikely to have an annual effect of $100 
million or more or adversely affect the economy. Also, under the 
requirements set forth in the Regulatory Flexibility Act (RFA) (5 
U.S.C. 601-12), AMS has considered the economic impact of this 
rulemaking on small entities. The purpose of the Regulatory Flexibility 
Act is to fit regulatory actions to the scale of businesses subject to 
such actions. This ensures that small businesses will not be unduly or 
disproportionately burdened. This rulemaking is being issued to ensure 
that the annual fee

[[Page 66585]]

adjustments are published by January 1st and are not hindered by the 
rulemaking process. AMS will annually publish a Notice in the Federal 
Register on the fee adjustment and publish all fees on the public 
website.
    The Small Business Administration (SBA) defines small businesses by 
their North American Industry Classification System Codes (NAICS). This 
rulemaking affects customers of AMS's official inspection and weighing 
services in the domestic and export grain markets (NAICS code 115114).
    Under the USGSA, all grain exported from the United States must be 
officially inspected and weighed. AMS provides mandatory inspection and 
weighing services at 43 export facilities in the United States and 7 
facilities for U.S. grain transshipped through Canadian ports. Five 
delegated State agencies provide mandatory inspection and weighing 
services at 13 facilities. All of these facilities are owned by multi-
national corporations, large cooperatives, or public entities that do 
not meet the requirements for small entities established by the SBA. 
Further, the provisions of this rulemaking apply equally to all 
entities. The USGSA requires the registration of all persons engaged in 
the business of buying grain for sale in foreign commerce. In addition, 
those persons who handle, weigh, or transport grain for sale in foreign 
commerce must also register. The regulations found at 7 CFR 800.30 
define a foreign commerce grain business as persons who regularly 
engage in buying for sale, handling, weighing, or transporting grain 
totaling 15,000 metric tons or more during the preceding or current 
calendar year. Currently, there are 97 businesses registered to export 
grain, most of which are not small businesses.
    Most users of the official inspection and weighing services do not 
meet the SBA requirements for small entities. Further, AMS is required 
by statute to make services available to all applicants and to recover 
the costs of providing such services as nearly as practicable, while 
maintaining a 3 to 6 month operating reserve. There are no additional 
reporting, record keeping, or other compliance requirements imposed 
upon small entities as a result of this rulemaking. AMS has not 
identified any other federal rules which may duplicate, overlap, or 
conflict with this rulemaking. Because this rulemaking does not have a 
significant economic impact on a substantial number of small entities, 
an initial regulatory flexibility analysis is not provided.

Paperwork Reduction Act

    This final rule imposes no new reporting or recordkeeping 
requirements necessitating clearance by OMB.

List of Subjects in 7 CFR Part 800

    Administrative practice and procedure, Exports, Grains, Reporting 
and recordkeeping requirements.

    For the reasons set out in the preamble, FGIS amends 7 CFR part 800 
as follows:

PART 800--GENERAL REGULATIONS

0
1. The authority citation for part 800 continues to read as follows:

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


0
2. Section 800.71(a)(1) is revised to read as follows:


Sec.  800.71   Fees assessed by the Service.

    (a) * * *
    (1) Schedule A--Fees for official inspection and weighing services 
performed in the United States and Canada. For each calendar year, FGIS 
will calculate Schedule A fees as defined in paragraph (b) of this 
section. FGIS will publish a notice in the Federal Register and post 
Schedule A fees on the Agency's public website.
* * * * *

    Dated: December 18, 2018.
Greg Ibach,
Under Secretary, Marketing and Regulatory Programs.
[FR Doc. 2018-27787 Filed 12-26-18; 8:45 am]
 BILLING CODE 3410-02-P