Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 55369 

Subpart—United States Standards for 

Grades of Table Grapes (European or 

Vinifera Type) 

§ 51.886 Tolerances. 

* * * * * 

(b) * * * 

TABLE II.—TOLERANCES EN ROUTE OR AT DESTINATION

Factor U.S. extra 

fancy table 

U.S. fancy 

table 

U.S. No. 1 

table 

(A) For bunches failing to meet color requirements .................................................................... 10 10 10 

(B) For bunches failing to meet requirements for minimum diameter of berries ........................ 10 10 10 

(C) For bunches failing to meet stem color requirements .......................................................... 10 

(D) For offsize bunches and for bunches and berries failing to meet the remaining requirements for the grade .................................................................................................................. 12 12 12 

(E) For shattered berries in consumer size packages an allowance of 10 percent is provided. 

Any percent of shattered berries exceeding the allowance of 10 percent shall be scored as 

berries failing to meet the requirements of the grade. 

Including in (D): 

(a) For permanent defects .................................................................................................... 8 8 8 

(b) For serious damage ........................................................................................................ 4 4 4 

And, including in (b): 

(i) For serious damage by permanent defects ..................................................................... 2 2 2 

(ii) For decay ........................................................................................................................ 1 1 1 

Dated: September 15, 2006. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 06–7869 Filed 9–21–06; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 91 and 92 

[Docket Number ST–05–01] 

RIN 0581–AC48 

Changes in Hourly Fee Rates for 

Science and Technology Laboratory 

Services—Fiscal Years 2007–2009 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The Agricultural Marketing 

Service (AMS) is proposing to change 

the hourly fee rates for Science and 

Technology (S&T) Laboratory Services. 

The agency is proposing to raise these 

rates to reflect, among other factors, 

national and locality pay increases for 

Federal employees and inflation, 

operating costs, instrumentation and 

training, and program and agency 

administrative overhead costs. In the 

past, AMS has amended its regulations 

on an as needed basis in order to 

recover laboratory program costs. With 

this proposed regulation, AMS is 

providing for three annual standard 

hourly fee rate increases for fiscal years 

2007–2009. This would provide the 

agricultural commodity industries and 

other stakeholders with more timely and 

relevant information regarding 

voluntary user fees for laboratory testing 

services. The agency is also proposing to 

remove tables and schedules with 

listings of individual tests and services. 

Three annual hourly fee rate 

adjustments are proposed for appeals, 

holiday, and overtime services to reflect 

the anticipated increase in cost of 

providing these laboratory services each 

fiscal year. The regulations also are 

updated to identify current facility 

addresses. Part 92 is obsolete and 

therefore has been removed. 

DATES: Comments must be received on 

or before October 23, 2006. 

ADDRESSES: Send comments to James V. 

Falk, Docket Manager, USDA, AMS, 

Science and Technology Programs, 1400 

Independence Avenue, SW., Mail Stop 

0272, Washington, DC 20250–0272; 

telephone (202) 690–4089; fax (202) 

720–4631, or e-mail: 

James.falk@usda.gov. State that your 

comments refer to Docket No. ST–05–

01. Comments may also be submitted 

electronically through http:// 

www.regulations.gov. Submitted 

comments will be available for public 

inspection during regular business 

hours in Room 1090 South Building, 

U.S. Department of Agriculture, 1400 

Independence Avenue, SW., 

Washington, DC. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Robert L. Epstein, Science and 

Technology Programs, Agricultural 

Marketing Service, United States 

Department of Agriculture, Mail Stop 

0270, 1400 Independence Avenue, SW., 

Washington, DC 20250–0270, telephone 

number (202) 720–5231; fax (202) 720–

6496, and e-mail: 

Robert.epstein@usda.gov. 

SUPPLEMENTARY INFORMATION:

Background 

Science and Technology (S&T) 

Programs has been performing voluntary 

laboratory services under the 

Agricultural Marketing Act of 1946, as 

amended, for the AMS commodity 

programs (Fruit and Vegetable, Cotton, 

Livestock and Seed, Poultry, Dairy, and 

Tobacco) and applicable customers in 

these industries since its inception on 

August 17, 1988. Before that, voluntary 

laboratory testing was provided for a 

user fee by AMS under the various 

commodity programs. The current 

standard hourly rate of $45.00 and the 

premium hourly rate of $67.50 have 

been in effect since publication in the 

Federal Register on October 27, 2000 

(65 FR 64302). The standard fee rate for 

laboratory services is proposed to be 

increased to $60.00 per hour in fiscal 

year 2007, $63.00 per hour in fiscal year 

2008, and $67.00 per hour in fiscal year 

2009. The premium hourly fee rates 

would also be adjusted for fiscal years 

2007 through 2009. An increase in the 

premium hourly rates over the three 

fiscal years for laboratory services 

performed on holidays, appeal samples, 

and overtime basis is also needed since 

Science and Technology laboratory 

personnel may be required to work 

extended hours of service at the time 

and a half pay or the double hourly pay 

to accommodate clients. This is due to 


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55370 Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 

stakeholder demand for immediate test 

results. Generally, the processing of all 

laboratory samples is continuous over a 

24/7 timeframe due to the recent 

introduction of automated equipment. 

The AMS laboratory testing programs 

are voluntary, user fee services, 

conducted under the authority of the 

Agricultural Marketing Act of 1946 

(AMA), as amended (7 U.S.C. 1621, et 

seq.). The AMA authorizes the Secretary 

of Agriculture to provide Federal 

analytical testing services that facilitate 

marketing and trade. In addition, 

consumers may be able to determine the 

quality and wholesomeness 

characteristics of a commodity or 

product through laboratory testing. This 

allows agricultural products to be 

assigned official AMS grade 

designations or to meet specifications. 

The AMA also requires that reasonable 

fees be collected from the users of the 

services to cover as nearly as possible 

the costs of maintaining the programs. 

AMS regularly reviews its user-feesupported laboratory service programs 

to determine if the voluntary fees are 

adequate to cover expenses. The most 

recent review determined that the 

existing fee schedules and tables of 

individual tests or services, which have 

been in place since October 27, 2000, 

will not generate sufficient revenues to 

recover operating costs. 

A more flexible user fee system, using 

set hourly rates for multiple fiscal years, 

is proposed by this rulemaking to 

ensure that AMS properly recovers its 

full costs for providing laboratory 

services, and that all stakeholders are 

charged reasonable fees. By enacting a 

three year fee increase instead of a 

single year fee increase, AMS would 

help ensure that the fee increases are 

effective at the beginning of each fiscal 

year (October 1). 

In addition, the existing fee schedules 

and tables in 7 CFR, part 91, § 91.37 

would be removed. The analytical tests 

listed in the tables are not specific to 

individual commodity testing 

requirements or stakeholder needs. The 

current tables do not represent the 

actual operational costs to perform 

single tests and newer methodologies. 

Laboratory services are provided for five 

types of analytical testing: 

Microbiological, physical, residue 

chemistry, proximate analysis for 

composition, and biomolecular testing. 

AMS must recover the costs of 

providing these services. The proposed 

hourly fee rates would recover these 

costs. 

AMS calculated its actual costs for 

fiscal years 2001 through 2005 and its 

projected increases in salaries and 

inflation in fiscal years 2006 through 

2009. The estimates for increases in 

salaries for fiscal year 2006 as the base 

year and the succeeding out years are 

from the Office of Management and 

Budget’s (OMB) multi-year ‘‘Economic 

Assumptions’’ tables. The Federal pay 

raise for calendar years 2002, 2003, and 

2004 were 4.6 percent, 4.1 percent and 

4.1 percent, respectively. This 

information comes from Table 11–1, 

‘‘Economic Assumptions’’, of the Office 

of Management and Budget’s Fiscal Year 

2005 Budget which is available at 

http://www.whitehouse.gov/omb/ 

budget/fy2005/econ.html. The average 

fiscal year pay raise for Federal 

employees in calendar years 2005 and 

2006 was 3.5 percent effective January 

2005 and 3.1 percent effective January 

2006. The average combined national 

and locality pay raise is estimated to be 

2.2 percent for fiscal years 2007, 2008, 

and 2009. Inflation for fiscal year 2006 

is estimated to be 2.1 percent. Inflation 

for fiscal year 2007 is estimated to be 2.2 

percent. Inflation for fiscal year 2008 is 

estimated to be 2.1 percent. Inflation for 

fiscal year 2009 is estimated to be 2.1 

percent. These estimates for inflation 

percent can be obtained from Table 12–

1, ‘‘Economic Assumptions’’, of the 

OMB’s Fiscal Year 2007 Budget which 

is available at 

http://www.whitehouse.gov/omb/ 

budget/fy2007/econ.html. 

The Agency will initiate another 

rulemaking to adjust any fee 

established, if estimated increases for 

pay and inflation do not adequately 

cover the Agency’s costs of providing 

the services. The cost of providing 

laboratory services includes both direct 

and overhead costs. Direct costs include 

the cost of salaries, employee benefits, 

operation cost and infrastructure cost. 

The Agency is able to estimate the 

employee benefits attributable to 

overtime work and has included these 

in the fee calculations. 

TABLE 1.—CURRENT AND PROPOSED HOURLY FEE RATES (PER HOUR) BY TYPE OF SERVICE

Service Current rate FY 2007 

rate 1

FY 2008 

rate 2

FY 2009 

rate 3

Laboratory ........................................................................................................................ $ 45.00 $ 60.00 $ 63.00 $ 67.00 

Appeal .............................................................................................................................. 67.50 71.00 74.00 78.00 

Overtime .......................................................................................................................... 67.50 71.00 74.00 78.00 

Legal Holiday ................................................................................................................... 67.50 82.00 85.00 89.00 

123 Hourly values for FY 2007–FY 2009 are rounded off to nearest whole dollar. 

With this proposed action, the AMS 

would amend its regulations to provide 

for three annual fee increases in one 

action. Table 1 shows the summary of 

the current rates and the proposed 

hourly fee rates for fiscal years 2007 

through 2009 for the four different types 

of services (regular laboratory, appeal, 

overtime, and legal holiday work) that 

Science and Technology Programs 

employees perform. 

TABLE 2.—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2006 

Laboratory services Apportioned 

fee rate 

Base Time: 

Actual FY 2005 Salaries 1 @ $2,787,474 .................................................................................................................................... $20.00 

FY 2006 Pay Adjustment 2 = [Actual FY 2005 Salaries ($20.00)] x 0.031 + $0.86 (weighted portion @ $119,500 increase 

for the FY 2006 period changes with payroll for within-grade pay step increases for General Schedule salaries, promotion 

pay costs and new employee position pay costs) .................................................................................................................... 1.48 

Benefits 3 ....................................................................................................................................................................................... 6.90 

Operational Costs 4 ....................................................................................................................................................................... 11.60 

Infrastructure Costs 5 .................................................................................................................................................................... 8.78 


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TABLE 2.—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2006—

Continued 

Laboratory services Apportioned 

fee rate 

Program Overhead 6 ..................................................................................................................................................................... 3.44 

Agency Overhead 7 ....................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1 %) = [Costs excluding infrastructure and payroll] x .021. ........................................................................ 0.53 

Total Rate Per Hour—Base Time ......................................................................................................................................... 56.01 

1Actual cost of FY 2005 salaries ($2,787,474) ÷ (2,080 program hours times 67 program employees) = $20.00 unit cost. 2Actual cost of FY 2006 pay adjustment ($205,911) ÷ (2,080 program hours times 67 program employees) = $1.48 unit cost. 3Actual cost of benefits ($961,668) ÷ (2,080 program hours times 67 program employees) = $6.90 unit cost. 4Actual cost of operational costs ($1,616,645) ÷ (2,080 program hours times 67 program employees) = $11.60 unit cost. 5Actual cost of infrastructure ($1,223,570) ÷ (2,080 program hours times 67 program employees) = $8.78 unit cost. 6Actual cost of Program overhead ($479,000) ÷ (2,080 program hours times 67 program employees) = $3.44 unit cost. 7Actual cost of Agency overhead ($457,000) ÷ (2,080 program hours times 67 program employees) = $3.28 unit cost. 

TABLE 3.—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2007 

Laboratory services Apportioned 

fee rate 

Base Time: 

FY 2006 Salaries = Actual FY 2005 Salaries ($20.00) + FY 2006 Pay Adjustment ($1.48) ...................................................... $21.48 

FY 2007 Pay Adjustment = FY 2006 Salaries × 0.022 ............................................................................................................... 0.47 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 11.75 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × 022 ........................................................................... 0.57 

Total Rate Per Hour—Base Time ......................................................................................................................................... 60.02 

TABLE 4.—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2008 

Laboratory services Apportioned 

fee rate 

Base Time: 

FY 2007 Salaries = FY 2006 Salaries ($21.48) + FY 2007 Pay Adjustment ($0.47) ................................................................. $21.95 

FY 2008 Pay Adjustment = FY 2007 Salaries × 0.022 ............................................................................................................... 0.48 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 13.47 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

FY 2008 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.55 

Total Rate Per Hour—Base Time ......................................................................................................................................... 62.77 

TABLE 5.—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2009 

Laboratory services Apportioned 

fee rate 

Base Time: 

FY 2008 Salaries = FY 2007 Salaries ($21.95) + FY 2008 Pay Adjustment ($0.48) ................................................................. $22.43 

FY 2009 Pay Adjustment = FY 2008 Salaries × 0.022 ............................................................................................................... 0.49 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 16.15 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

FY 2008 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.55 

FY 2009 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.56 


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TABLE 5.—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2009—

Continued 

Laboratory services Apportioned 

fee rate 

Total Rate Per Hour—Base Time ......................................................................................................................................... 66.50 

In order to project the hourly fee rates 

for the laboratory program services for 

fiscal years 2007 through 2009, the 

current fiscal year 2006 is used as a 

base. The total base time hourly fee rate 

calculation (Table 2) for fiscal year 2006 

begins with the actual salaries for fiscal 

year 2005 ($2,787,474) and adds the 

fiscal year 2006 pay raises (3.1 percent) 

and add other fiscal year 2006 pay 

adjustments ($119,500) for within-grade 

pay step increases for General Schedule 

(GS) salaries, promotion pay costs, and 

new employee position pay costs. Table 

2 contains footnotes 1–7 that provide 

the common mathematical formula used 

to calculate the apportioned rate for 

each fee charge category for fiscal year 

2006. The formula uses the actual cost 

or projected cost in dollars for the 

applicable fiscal year for each 

individual fee charge category divided 

by the available program hours and 

further divided by the number of 

laboratory service program employees. 

The formula derives the apportioned fee 

rate for each fee charge category 

(salaries with pay adjustment, benefits, 

operational costs, infrastructure cost, 

program administrative overhead and 

agency overhead). The same formula 

that is used in Table 2 and that is 

indicated in its footnotes is also applied 

in the other tables to derive each 

category unit rate with the different 

actual costs or variable projected costs 

to be inserted in the formula equation 

for the applicable fiscal year. 

Table 3 through Table 5 show the 

calculation of the total standard hourly 

fee rates to be rounded off for fiscal 

years 2007 through 2009. 

TABLE 6.—CALCULATIONS FOR THE APPEAL AND OVERTIME HOURLY RATES FOR LABORATORY PROGRAM SERVICES FOR

FY 2006 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Actual Salaries @ 1.5 (time and a half): 

FY 2005 Salaries @ 1.5 = [Actual 2005 Salaries ($20.00)] × 1.5 ............................................................................................... $30.00 

FY 2006 Pay Adjustment = [Actual FY 2005 Salaries ($20.00) × 0.031 + $0.86 (weighted portion @ $119,500 increase for 

the FY 2006 period changes with payroll for within-grade pay step increases for General Schedule salaries, promotion 

pay costs, and new employee position pay costs)] × 1.5 ........................................................................................................ 2.22 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 8.78 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

Total Rate Per Hour—Appeal and Overtime ........................................................................................................................ 66.75 

TABLE 7.—CALCULATIONS FOR THE APPEAL AND OVERTIME HOURLY RATES FOR LABORATORY PROGRAM SERVICES FOR

FY 2007 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Actual Salaries @ 1.5 (time and a half): 

FY 2006 Salaries @ 1.5 = [Actual 2005 Salaries ($20.00) + 2006 Pay Adjustment ($1.48)] × 1.5 ........................................... $32.22 

FY 2007 Pay Adjustment = FY 2006 Salaries @ 1.5 × 0.022 .................................................................................................... 0.71 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 11.75 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

Total Rate Per Hour—Appeal and Overtime ........................................................................................................................ 71.00 

TABLE 8.—CALCULATIONS FOR THE APPEAL AND OVERTIME HOURLY RATES FOR LABORATORY PROGRAM SERVICES FOR

FY 2008 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Actual Salaries @ 1.5 (time and a half): 

FY 2007 Salaries @ 1.5 = [FY 2006 Salaries ($21.48) + FY 2007 Pay Adjustment ($0.47)] × 1.5 ........................................... $32.93 


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Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 55373 

TABLE 8.—CALCULATIONS FOR THE APPEAL AND OVERTIME HOURLY RATES FOR LABORATORY PROGRAM SERVICES FOR

FY 2008—Continued 

Laboratory services Apportioned 

fee rate 

FY 2008 Pay Adjustment = FY 2007 Salaries @ 1.5 × 0.022 .................................................................................................... 0.72 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 13.47 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

FY 2008 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.55 

Total Rate Per Hour—Appeal and Overtime ........................................................................................................................ 73.99 

TABLE 9.—CALCULATIONS FOR THE APPEAL AND OVERTIME HOURLY RATES FOR LABORATORY PROGRAM SERVICES FOR

FY 2009 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Actual Salaries @ 1.5 (time and a half): 

FY 2008 Salaries @ 1.5 = [FY 2007 Salaries ($21.95) + FY 2008 Pay Adjustment ($0.48)] × 1.5 .................................................. $33.65 

FY 2009 Pay Adjustment = FY 2008 Salaries @ 1.5 × 0.022 ............................................................................................................ 0.74 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 16.15 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

FY 2008 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.55 

FY 2009 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.56 

Total Rate Per Hour—Appeal and Overtime ........................................................................................................................ 77.97 

Table 6 through Table 9 show the 

calculation of the total appeal and total 

overtime hourly fee rates to be rounded 

off for fiscal years 2006 through 2009. 

These tables incorporate the 

differentials in costs associated with the 

necessity of laboratory personnel to 

work extended hours of service at the 

time and a half pay doing either 

overtime or appeal sample testing. 

TABLE 10.—CALCULATIONS FOR THE FEDERAL HOLIDAY HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 

2006 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Actual Salaries @ 2.0 (double time): 

FY 2005 Salaries @ 2.0 [Actual 2005 Salaries ($20.00)] × 2.0 .................................................................................................. $40.00 

FY 2006 Pay Adjustment = [Actual FY 2005 Salaries ($20.00) × 0.031 + $0.86 (weighted portion @ $119,500 increase for 

the FY 2006 period changes with payroll for within-grade pay step increases for General Schedule salaries, promotion 

pay costs, and new employee position pay costs)] × 2.0 ........................................................................................................ 2.96 

Benefits ......................................................................................................................................................................................... 6.96 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 8.78 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

Total Rate Per Hour—Holidays ............................................................................................................................................. 77.49 


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TABLE 11.—CALCULATIONS FOR THE FEDERAL HOLIDAY HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 

2007 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Actual Salaries @ 2.0 (double time): 

FY 2006 Salaries @ 2.0 = [Actual 2005 Salaries ($20.00) + 2006 Pay Adjustment ($1.48)] × 2.0 ........................................... $42.96 

FY 2007 Pay Adjustment = FY 2006 Salaries @ 2.0 × 0.022 .................................................................................................... 0.95 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 11.75 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

Total Rate Per Hour—Holidays ............................................................................................................................................. 81.98 

TABLE 12.—CALCULATIONS FOR THE FEDERAL HOLIDAY HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 

2008 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Actual Salaries @ 2.0 (double time): 

FY 2007 Salaries @ 2.0 = [FY 2006 Salaries ($21.48) + FY 2007 Pay Adjustment ($0.47)] × 2.0 ........................................... $43.90 

FY 2008 Pay Adjustment = FY 2007 Salaries @ 2.0 × 0.022 .................................................................................................... 0.97 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 13.47 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

FY 2008 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.55 

Total Rate Per Hour—Holidays ............................................................................................................................................. 85.21 

TABLE 13.—CALCULATIONS FOR THE FEDERAL HOLIDAY HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 

2009 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Actual Salaries @ 2.0 (double time): 

FY 2008 Salaries @ 2.0 = [FY 2007 Salaries ($21.95) + FY 2008 Pay Adjustment ($0.48)] × 2.0 ........................................... $44.86 

FY 2009 Pay Adjustment = FY 2008 Salaries @ 2.0 × 0.022 .................................................................................................... 0.99 

Benefits ......................................................................................................................................................................................... 6.90 

Operational Costs ......................................................................................................................................................................... 11.60 

Infrastructure Cost ........................................................................................................................................................................ 16.15 

Program Overhead ....................................................................................................................................................................... 3.44 

Agency Overhead ......................................................................................................................................................................... 3.28 

FY 2006 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.53 

FY 2007 Inflation (2.2%) = [Costs excluding infrastructure and payroll] × .022 .......................................................................... 0.57 

FY 2008 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.55 

FY 2009 Inflation (2.1%) = [Costs excluding infrastructure and payroll] × .021 .......................................................................... 0.56 

Total Rate Per Hour—Holidays ............................................................................................................................................. 89.43 

Table 10 through Table 13 show the 

calculation of the total legal holiday 

hourly fee rates to be rounded off for 

fiscal years 2006 through 2009. These 

tables incorporate the differentials in 

costs associated with the necessity of 

laboratory personnel to work extended 

hours of service at the double hourly 

pay rate doing sample testing on a 

Federal holiday or a designated day for 

the Federal holiday. 

The Agency proposes to recover the 

actual cost of services for multiple fiscal 

years covered by this rule. These fee 

increases are essential for the continued 

sound financial management of the 

Agency’s budget. In order to enhance 

the transparency of the hourly fee rates 

in the aforementioned Tables 3 through 

13 for fiscal year 2007, fiscal year 2008 

and fiscal year 2009, a description is 

provided of each fee charge category. 

Federal salaries with national and 

locality pay adjustments and choices in 

benefits are made available on an 

annual basis by the Office of Personnel 

Management (OPM). Operational costs 

include expenses for rents, 

communications, utilities, medical 


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examinations, safety equipment, sample 

preparation equipment, training, trash 

and hazardous waste disposal, travel 

and transportation costs. 

Communication expenditures include 

costs for photocopying, printing, emailing, Internet services, telephone, 

and faxing equipment. There have been 

large capital improvement expenditures 

in the laboratories in recent years. These 

expenditures include costs for the Food 

Emergency Response Network (FERN) 

and the capital improvements for the 

Environmental Management Systems 

(EMS) in accordance with the applicable 

mandates for Federal laboratories of 

Executive Order 13148 of April 21, 

2000, Greening the Government 

Through Leadership in Environmental 

Management (65 FR 24593). These 

capital improvement costs are included 

in the normal operations of the Science 

and Technology field service 

laboratories. In addition, operational 

costs include expenses for office and 

laboratory supplies, chemicals, reagents, 

security and guard services, waste 

removal, robots, cleaning and internal 

building maintenance, billing and 

collection services, and a Laboratory 

Information Management System 

(LIMS). Infrastructure costs are mainly 

laboratory instruments and capital 

equipment with service and 

maintenance contracts and replacement 

spare parts. Infrastructure expenses 

include consumable supply costs 

associated directly with the proper 

operation of analytical instruments and 

laboratory equipment. Stakeholders 

demand that AMS provide cost effective 

and timely product testing requiring 

modern and sometimes automated 

instrumentation. These instruments are 

expensive and undergo equipment 

capitalization for determining costs. 

Equipment capitalization is the 

determined cost per year to replace the 

equipment after its useful service life 

has been established. Infrastructure 

costs include database acquisitions and 

maintenance for e-business. 

Infrastructure costs include large 

computer hardware and software 

expenses. Agency and Program 

overhead is the pro-rated share, 

attributable to a particular service, of the 

agency’s management and support costs. 

Management and administrative support 

costs include the costs of providing 

budget and accounting services, 

regulatory services, investigative and 

enforcement services, debt-management 

services, personnel services, public 

information services, legal services, 

statistical services, and other general 

program and agency management 

services of support activities above the 

local laboratory level. Overhead 

expenditures are allocated across the 

Agency for each direct hour of 

laboratory service. 

AMS no longer uses the Billings and 

Collections System (BLCO) for billings 

and collections through the National 

Finance Center (NFC) in New Orleans, 

LA. The Agency now uses the ‘‘accounts 

receivable’’ functions in Foundation 

Financial Information System (FFIS) as 

the document feeder system for 

customer billings and the collections 

now come through our lockbox. 

Accordingly, § 91.42 would be updated 

to reflect these changes. The regulations 

also are updated to identify current 

facility addresses. 

This proposed rule would also 

remove and reserve 7 CFR part 92. Part 

92 is obsolete because it relates to the 

mandatory testing of imported tobacco 

for prohibited pesticide residues and the 

statutory requirement for such testing 

has been removed by the Fair and 

Equitable Tobacco Reform Act of 2004 

(7 U.S.C. 518). The tests had been 

conducted by Science and Technology 

(S&T) Programs for the AMS Tobacco 

Program, which sampled imported 

tobacco and administered the program 

for imported tobacco. 

Executive Order 12866, Regulatory 

Flexibility Act, and Paperwork 

Reduction Act 

This proposed rule has been reviewed 

under Executive Order 12866. Although 

not economically significant, this rule 

has been determined to be significant 

for the purposes of Executive Order 

12866 and, therefore, has been reviewed 

by the Office of Management and 

Budget (OMB). 

An economic analysis follows to 

review the impacts on laboratory 

customers of the proposed revisions in 

AMS voluntary user fees for laboratory 

services. The economic analysis 

provides a cost-benefit analysis as 

required by Executive Order 12866 and 

an analysis of the potential economic 

effects on small entities as required by 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601 et seq.). In accordance with 

5 U.S.C. 603, AMS has performed an 

Initial Regulatory Flexibility Analysis 

for this proposed rule. AMS is inviting 

comments about this proposed rule as it 

relates to small entities. In particular, 

AMS is interested in obtaining 

information concerning the number and 

kind of small entities who may incur 

benefits or costs from implementation of 

this proposed rule and the impact of 

those benefits or costs on decisions to 

utilize AMS voluntary testing services. 

Regulations must be designed in the 

most cost-effective manner possible to 

obtain the objective of a sustainable cost 

recovery program while imposing the 

least burden on society. AMS has 

prepared a Regulatory Impact 

Assessment (RIA) consisting of a 

statement of the need for the proposed 

action, an examination of alternative 

approaches, and an economic analysis 

of the benefits and costs. 

Need for Proposed Action. 

The AMS laboratory testing programs 

are voluntary, user fee services 

conducted under the authority of the 

Agricultural Marketing Act of 1946 

(AMA), as amended (7 U.S.C. 1621, et 

seq.). The AMA authorizes the Secretary 

of Agriculture to provide Federal 

analytical testing services that facilitate 

marketing and trade. The AMA also 

requires that reasonable fees be 

collected from the users of the services 

to cover as nearly as practicable the 

costs of maintaining the programs. 

Science and Technology (S&T) 

Programs of AMS regularly reviews its 

user-fee-financed laboratory service 

programs to determine if the fee levels 

are adequate. The most recent review 

determined that the existing fee 

schedule, effective October 27, 2000 (65 

FR 64302) does not generate sufficient 

revenues to recover operating costs. For 

fiscal year 2005 the Science and 

Technology program reported a 

$702,000 deficit at the current fee levels. 

The Science and Technology program 

costs and revenues for fiscal year 2005 

were $6,393,000 and $5,691,000, 

respectively. Program obligations for 

fiscal year 2006 are projected at 

$6,602,000 and revenues are projected 

at $5,834,000 for an estimated deficit of 

$768,000. With this proposed action, the 

Agency expects to collect an estimated 

$6,521,000, $7,186,000, and $7,553,000 

in fiscal years 2007 through 2009 

respectively, to cover the cost of routine 

laboratory services, appeal requests, 

overtime, and holiday services for 

Science and Technology customers and 

other program stakeholders. 

Alternatives 

Alternatives to the proposed rate 

increase were considered by the 

Agency. One alternative to this 

proposed rule would be to make no 

changes to the current user fees. As a 

result, AMS would not recover the full 

cost of program activities and services 

would have to be reduced or terminated. 

Were this to happen, the users of AMS 

laboratory services would be unable to 

meet certain AMS program 

requirements, would find it more 

difficult to meet foreign government or 

importer testing requirements, and 

would lose the opportunity to support 


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their marketing efforts with what they 

believe to be preferred government 

laboratory test results. Consequently, 

AMS does not consider this alternative 

to be reasonable. 

Another alternative considered would 

be to calculate the fee increases needed 

over the next three year period and then 

spread this overall increase evenly in 

annual increments. Because the 

increases are necessary to cover ongoing costs, e.g., rent, salaries and 

benefits, and equipment replacement, 

and financial stability needs to be 

maintained for this program, adequate 

funds must be generated immediately, 

rather than spread over a three year 

period. Thus, AMS does not consider 

this alternative to be reasonable. 

To ensure full costs are being covered 

as they are incurred, the preferred 

alternative is to match fee increases 

with expected costs on an annual basis 

over the next three years. This 

alternative will assure costs are 

appropriately covered and that 

laboratory testing services remain 

available as program customers request 

them. With this proposed action, the 

Agency expects to collect an estimated 

$6,521,000, $7,186,000, and $7,553,000 

in fiscal years 2007 through 2009, 

respectively, to cover the cost of routine 

laboratory services, appeal requests, 

overtime, and holiday services. 

Summary of Impacts 

Under this proposal AMS would 

continue to offer laboratory testing 

services under the Agricultural 

Marketing Act of 1946 as amended, to 

facilitate marketing and allow products 

to obtain grade designations or meet 

marketing standards. As such, the 

program provides a viable option for a 

wide variety of clients by delivering 

scientific and analytical support 

services to the agricultural community 

and provides a valuable resource for 

those businesses and industries that 

wish to use a USDA shield. 

Further, by proposing a three year fee 

increase instead of a single year fee 

increase, the Agency would help ensure 

that the fee increases are effective at the 

beginning of each fiscal year on October 

1. An increase over three fiscal years 

would permit customers and other 

program stakeholders an opportunity to 

plan for annual changes in costs of 

laboratory service and to incorporate 

them into their budgetary plans. 

For analytical purposes, projected 

collections are based on calculations 

using an effective date of October 1, 

2006 for the proposed fiscal year 2007 

user fees. There are essentially three rate 

increases being proposed for the basic 

laboratory services—$45 to $60 or 33.3 

percent in fiscal year 2007, $60 to $63 

or 5.0 percent in fiscal year 2008 and 

$63 to $67 or 6.4 percent in fiscal year 

2009. The rate increases for overtime 

and appeals are $67.50 to $71 or 5.2 

percent, $71 to $74 or 4.2 percent, and 

$74 to $78 or 5.4 percent in fiscal years 

2007, 2008, and 2009, respectively. The 

rate increases for holiday service are 

$67.50 to $82 or 21.5 percent, $82 to $85 

or 3.7 percent, and $85 to $89 or 4.7 

percent in fiscal years 2007, 2008, and 

2009, respectively. This is a voluntary 

program and the costs to each user 

would be proportional to their use of 

laboratory services each year. The 

increased fees will cover inflation and 

national and locality pay raises and 

replacement of equipment and other 

infrastructure improvements. 

Under the Regulatory Flexibility Act, 

the impact ofthis proposed rule on small 

businesses must be analyzed. There are 

811 current users of AMS laboratory 

testing services. Such users of services 

include food processors, handlers, 

growers, Federal and State government 

agencies, and exporters. Many of these 

users are small entities under the 

criteria established by the Small 

Business Administration (13 CFR 

121.201). Any decision by stakeholders 

and customers to discontinue the use of 

the laboratory services because of 

increased fees would not hinder food 

processors or other industry members 

from marketing their products. 

For the following cost analysis, 

certain assumptions are used. First, base 

year data is actual fiscal year 2005 

amount billed for voluntary services 

performed for the public. Second, seven 

percent of the total amount billed 

represents overtime costs and five 

percent represents costs related to 

appeals. Third, the calculated amounts 

in fiscal year 2007 are using the base 

year data as if the base year was fiscal 

year 2006. Fourth, each of the 811 

customers had the exact same tests, 

using the same amount of time, and thus 

were billed the exact same amount. This 

customer is the ‘‘average’’ laboratory 

customer. 

Table 14 sets the total levels for the 

dollar ($) amounts billed in the base 

year (Fiscal Year 2006). 

TABLE 14.—BASE YEAR DATA (FISCAL

YEAR 2006) 

Total Billed ............................ $1,536,688 

Basic Laboratory Services .... 1,352,285 

Overtime Costs (7%) ............ 107,568 

Appeal Costs (5%) ............... 76,834 

Table 15 presents the base year costs 

and estimates costs in fiscal year 2007, 

fiscal year 2008, and fiscal year 2009 for 

the ‘‘average’’ laboratory customer. The 

base year values are derived by dividing 

basic laboratory services, overtime costs, 

and appeal costs by 811. The values for 

fiscal years 2007, 2008, and 2009 are 

derived multiplying each year by the 

appropriate percentage rate. 

TABLE 15.—COSTS ($) FOR THE ‘‘AVERAGE’’ CUSTOMER, BASE YEAR THROUGH FISCAL YEAR 2009 

Base year FY 2007 FY 2008 FY 2009 Total Diff.1

Lab Services ............................................................................................ 1,667 2,223 2,334 2,483 816 

Overtime .................................................................................................. 133 140 146 154 21 

Appeals .................................................................................................... 95 100 104 110 15 

Total .................................................................................................. 1,895 2,463 2,584 2,747 852 

1 Net difference calculated between costs in dollars ($) between base year and Fiscal Year 2009. 

After the third increase, the customer 

will pay an additional average of $852 

for all laboratory services. This is a 

44.96 percent increase over the base 

year. The percentage increase for the 

basic laboratory services is 49.0 percent, 

overtime is 15.8 percent, and an appeal 

sample is 15.8 percent. 


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TABLE 16.—COSTS ($) FOR A ‘‘LARGE BUSINESS’’ CUSTOMER, BASE YEAR THROUGH FISCAL YEAR (FY) 2009 

Base year FY 2007 FY 2008 FY 2009 Total 

diff.1

Lab Services ............................................................................................ 704,000 938,432 985,354 1,048,417 344,417 

Overtime .................................................................................................. 56,000 58,912 61,386 64,701 8,701 

Appeals .................................................................................................... 40,000 42,080 43,847 46,215 6,215 

Total .................................................................................................. 800,000 1,039,424 1,090,587 1,159,333 359,333 

1 Net difference calculated between costs in dollars ($) between base year and Fiscal Year 2009. 

Table 16 presents the base year costs 

and estimates costs in fiscal years 2007, 

2008, and 2009 for a ‘‘large business’’

laboratory customer. While the 

numerical values increase significantly, 

the percentages are the same. Even 

though the ‘‘large business’’ customer is 

paying $359,333 more then what was 

paid for the same services in the base 

year, the increase is still approximately 

44.9 percent above what was billed in 

the base year. 

The same is true for a ‘‘small 

business’’ customer. Table 17 presents 

the costs associated with a customer 

billed $29,000. Again the total 

difference between the billing in fiscal 

year 2009 and the base year is 

significantly smaller than the billing of 

an ‘‘average’’ customer, but the 

percentage increase is still near 44.9 

percent. 

TABLE 17.—COSTS ($) FOR A ‘‘SMALL BUSINESS’’ CUSTOMER, BASE YEAR THROUGH FISCAL YEAR (FY) 2009 

Base year FY 2007 FY 2008 FY 2009 Total diff.l

Lab Services ............................................................................................ 25,520 34,018 35,719 38,005 12,485 

Overtime .................................................................................................. 2,030 2,136 2,226 2,346 316 

Appeals .................................................................................................... 1,450 1,525 1,589 1,675 225 

Total .................................................................................................. 29,000 37,679 39,534 42,026 13,026 

1 Net difference calculated between costs in dollars ($) between base year and FY 2009. 

Under the Regulatory Flexibility Act, 

the impact of this proposed rule on 

small businesses must be considered. 

The Agency estimates that 25 percent of 

the laboratory fees billed in fiscal year 

2005 was to small businesses. Thus, a 

total of $384,172 was billed to small 

businesses. If the entire proposed fee 

increase had been implemented, small 

businesses would have been billed 

$556,665, a 44.9 percent increase. 

One question is how each of these 

customers including small businesses 

will react to cost increases at these 

amounts. The increases are spread over 

a three year period which will mitigate 

some of the impact. But the focus 

should be on the reaction to the increase 

occurring in fiscal year 2007 which is a 

one third increase over the base year. 

The answer is dependent on the 

customer’s business, and is proportional 

to the number of samples involved. The 

lower the cost per unit of product being 

sampled, the higher the probability the 

customer will continue to use AMS 

laboratory services and pass on some or 

all of the additional costs, the exact 

amount of which is not known. Also, 

use of AMS laboratory services is 

voluntary and other private or public 

laboratory options are available. 

This proposed rule contains no 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. 3501–

3520). AMS is committed to 

implementation of the Government 

Paperwork Elimination Act which 

provides for the use of information 

resources to improve the efficiency and 

effectiveness of governmental 

operations, including providing the 

public with the option of submitting 

information or transacting business 

electronically to the extent practicable. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

Unfunded Mandate Analysis 

Title II of the Unfunded Mandate 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of UMRA, the 

Department generally must prepare a 

written statement, including a cost 

benefit analysis, for proposed and final 

rules with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, or 

tribal governments, in the aggregate, or 

to the private sector, of $100 million or 

more in anyone year. When such a 

statement is needed for a rule, section 

205 of UMRA generally requires that the 

Department identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

more cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. 

This rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) that 

impose costs on State, local, or tribal 

governments or to the private sector of 

$100 million or more in anyone year. 

Thus, this rule is not subject to the 

requirements of sections 202 and 205 of 

UMRA. 

Civil Justice Reform (Executive Order 

12988) 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. This proposed 

rule would not preempt any State or 

local laws, regulation, 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. 

Civil Rights Review 

AMS has considered the potential 

civil rights implications of this rule on 

minorities, women, or persons with 

disabilities to ensure that no person or 

group shall be discriminated against on 

the basis of race, color, national origin, 


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gender, religion, age, disability, sexual 

orientation, marital or family status, 

political beliefs, parental status, or 

protected genetic information. AMS has 

included at § 91.7 the provision in the 

regulation under part 91 to describe in 

detail the requirements for 

nondiscrimination when reviewing or 

granting any person or entity the 

benefits of Science and Technology 

Programs laboratory service. This 

regulation is consistent with USDA 

regulations which prohibit 

discrimination in its programs and 

activities. 

This proposed rule would not require 

affected entities to relocate or alter their 

operations in ways that could adversely 

affect such persons or groups. Further, 

this proposed rule would not deny any 

persons or groups the benefits of the 

program or subject any persons or 

groups to discrimination. 

AMS has reviewed this proposed rule 

in accordance with the Department 

Regulation 4300–4, ‘‘Civil Rights Impact 

Analysis.’’ AMS has determined this 

proposed action ensures the civil rights 

of all Science and Technology Programs 

applicants and customers. They 

represent minorities (24.4%), women 

(51.1%), and persons with disabilities 

(14.5%) in the same percent proportions 

to the entire customer base as their 

compositions are represented in the 

total approximate general population 

(299 million) of the United States of 

America available in descriptive tables 

at http://www.census.gov/. In addition, 

each and every customer would receive 

the same user fee for each identical 

service. 

Comments 

A thirty day comment period is 

provided for interested persons to 

comment on this proposed action. All 

comments received by October 23, 2006 

will be considered. A thirty day period 

for public comment is justified in order 

to allow the agency to recover the full 

cost of operating a voluntary user fee 

laboratory testing program. The existing 

fee schedules have been in place since 

October 2000. AMS regularly reviews its 

user-fee-supported programs to 

determine if the voluntary fees are 

adequate to cover expenses. Due to the 

length of the rulemaking process, the 

fiscal year has partially elapsed by the 

time the agency publishes a final rule to 

amend its fees. As a result the agency is 

unable to recover the full cost of its 

services in a timely manner. Therefore, 

a thirty day comment period is 

reasonable. 

List of Subiects 

7 CFR Part 91 

Administrative practice and 

procedure, Agricultural commodities, 

Laboratories, Reporting and 

recordkeeping requirements. 

7 CFR Part 92 

Agricultural commodities, 

Laboratories, Pesticides and pests, 

Tobacco. 

Under the authority of 7 U.S.C. 1622 

and 1624, the Agricultural Marketing 

Service proposes to amend parts 91 and 

92 of Title 7, chapter I, subchapter E, of 

the Code of Federal Regulations as 

follows: 

PART 91—SERVICES AND GENERAL 

INFORMATION [AMENDED] 

1. The authority citation for part 91 

continues to read as follows: 

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

2. Section 91.5 is revised to read as 

follows: 

§ 91.5 Where services are offered. 

(a) Services are offered to applicants 

at the Science and Technology 

laboratories and facilities as listed 

below. 

(1) Science and Technology Programs 

National Science Laboratory. A variety 

of proximate, chemical, microbiological 

and biomolecular tests and laboratory 

analyses performed on fruits and 

vegetables, poultry, meat and meat 

products, fiber products and processed 

foods are performed at the Science and 

Technology Programs (S&T) laboratory 

located at: USDA, AMS, Science and 

Technology Programs, National Science 

Laboratory (NSL), 801 Summit Crossing 

Place, Suite B, Gastonia, North Carolina 

28054–2193. 

(2) Science and Technology (S&T) 

Programs Science Satellite Laboratories. 

The specialty satellite laboratories 

performing aflatoxin and other testing 

on peanuts, peanut products, dried 

fruits, grains, edible seeds, tree nuts, 

shelled corn products, oilseed products, 

vegetable oils, juices, citrus products, 

and other commodities are located as 

follows: 

(i) USDA, AMS, Science & 

Technology, Citrus Laboratory, 98 Third 

Street, SW., Winter Haven, Florida 

33880–2905. 

(ii) USDA, AMS, Science & 

Technology, 6567 Chancey Mill Road, 

Blakley, Georgia 39823–2785. 

(iii) USDA, AMS, Science & 

Technology, c/o Golden Peanut 

Company LLC, (Mail: P.O. Box 272), 715 

Martin Luther King Drive, Dawson, 

Georgia 39842–1002. 

(iv) USDA, AMS, Science & 

Technology, 107 South Fourth Street, 

Madill, Oklahoma 73446–3431. 

(v) USDA, AMS, Science & 

Technology, (Mail: P.O. Box 1130), 308 

Culloden Street, Suffolk, VA 23434–

4706. 

(3) Program laboratories. Laboratory 

services are available in all areas 

covered by cooperative agreements 

providing for this laboratory work and 

entered 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. 

(4) Other alternative laboratories. 

Laboratory analyses may be conducted 

at alternative Science and Technology 

Programs laboratories and can be 

reached from any commodity market in 

which a laboratory facility is located to 

the extent laboratory personnel are 

available. 

(5) The Plant Variety Protection (PVP) 

Office. The PVP office and plant 

examination facility of the Science and 

Technology programs issues certificates 

of protection to developers of novel 

varieties of plants which reproduce 

sexually. The PVP office is located as 

follows: USDA, AMS, Science & 

Technology Programs, Plant Variety 

Protection Office, National Agricultural 

Library Building, Room 401, 10301 

Baltimore Boulevard, Beltsville, MD 

20705–2351. 

(6) Science and Technology Programs 

headquarters offices. The examination, 

licensure, quality assurance reviews, 

laboratory approval/certification and 

consultation services are provided by 

headquarters staff located in 

Washington, DC. The main headquarters 

office is located as follow: USDA, AMS, 

Science and Technology Programs, 

Office of the Deputy Administrator, 

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 


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0204, 1400 Independence Ave., SW., 

Washington, DC 20250–0204. 

(8) Statistics Branch Office. The 

Statistics Branch office of Science and 

Technology Programs (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 approval 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 mailing address is as follows: 

USDA, AMS, S&T Technical Services 

Branch, South Agriculture Bldg., Mail 

Stop 0272, 1400 Independence Ave., 

SW., Washington, DC 20250–0272. The 

Technical Services Branch office is 

located as follows: USDA, AMS, Science 

and Technology Technical Services 

Branch, Room 306, Cotton Annex Bldg., 

300 12th Street, SW., Washington, DC 

20250. 

(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, 8609 

Sudley Road, Suite 206, Manassas, VA 

20110–8411. 

(11) Pesticide Records Branch 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. 

(b) 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 Programs laboratories, 

offices, and facilities by addressing an 

inquiry to the Administrative Officer, 

Science and Technology Programs, 

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. 

3. Sections 91.37 through 91.39 are 

revised to read as follows: 

§ 91.37 Standard hourly fee rate for 

laboratory testing, analysis, and other 

services. 

(a) The standard hourly fee rate in this 

section for the individual laboratory 

analyses cover the costs of Science and 

Technology laboratory services, 

including issuance of certificates and 

personnel and overhead costs other than 

the commodity inspection fees referred 

to in 7 CFR 52.42 through 52.46, 52.48 

through 52.51, 55.510 through 55.530, 

55.560 through 55.570, 58.38 through 

58.43, 58.45 through 58.46, 70.71 

through 70.72, and 70.75 through 70.78. 

The hourly fee rates in this part 91 

apply to all commodity and processed 

commodity products. The new fiscal 

year for Science and Technology 

Programs commences on October 1 of 

each calendar year. The rate for 

laboratory services is $60.00 per hour in 

fiscal year 2007, $63.00 per hour in 

fiscal year 2008, and $67.00 per hour in 

fiscal year 2009. 

(b) Printed updated schedules of the 

laboratory testing fees for processed 

fruits and vegetables (7 CFR part 93), 

poultry and egg products (7 CFR part 

94), and meat and meat products (7 CFR 

part 98) will be available for distribution 

to Science and Technology’s 

constituents and stakeholders by the 

individual Laboratory Managers of 

Science and Technology laboratories 

listed in § 91.5. These single test 

laboratory fee schedules are based upon 

the applicable hourly fee rate stated in 

§ 91.37(a). 

(c) Except as otherwise provided in 

this section, charges will be made at the 

applicable hourly rate stated in 

§ 91.37(a) for the time required to 

perform the service. A charge will be 

made for service pursuant to each 

request or certificate issued. 

(d) When a laboratory test service is 

provided for AMS by a commercial or 

State government laboratory, the 

applicant will be assessed a fee which 

covers the costs to the Science and 

Technology program for the service 

provided. 

(e) When Science and Technology 

staff provides applied and 

developmental research and training 

activities for microbiological, physical, 

chemical, and biomolecular analyses on 

agricultural commodities the applicant 

will be charged a fee on a reimbursable 

cost to AMS basis. 

§ 91.38 Additional fees for appeal of 

analysis. 

(a) The applicant for appeal sample 

testing will be charged a fee at the 

hourly rate for laboratory service that 

appears in this paragraph. The new 

fiscal year for Science and Technology 

Programs commences on October 1 of 

each calendar year. The appeal rate for 

laboratory service is $71.00 per hour in 

fiscal year 2007, $74.00 per hour in 

fiscal year 2008, and $78.00 per hour in 

fiscal year 2009. 

(b) The appeal fee will not be waived 

for any reason if analytical testing was 

completed in addition to the original 

analysis. 

§ 91.39 Premium hourly fee rates for 

overtime and legal holiday service. 

(a) When analytical testing in a 

Science and Technology facility 

requires the services of laboratory 

personnel beyond their regularly 

assigned tour of duty on any day or on 

a day outside the established schedule, 

such services are considered as overtime 

work. When analytical testing in a 

Science and Technology facility 

requires the services of laboratory 

personnel on a Federal holiday or a day 

designated in lieu of such a holiday, 

such services are considered holiday 

work. Laboratory analyses initiated at 

the request of the applicant to be 

rendered on Federal holidays, and on an 

overtime basis will be charged fees at 

hourly rates for laboratory service that 

appear in this paragraph. The new fiscal 

year for Science and Technology 

Programs commences on October 1 of 

each calendar year. The laboratory 

analysis rate for overtime service is 

$71.00 per hour in fiscal year 2007, 

$74.00 per hour in fiscal year 2008, and 

$78.00 per hour in fiscal year 2009. The 

laboratory analysis rate for Federal 

holiday or designed holiday service is 

$82.00 per hour in fiscal year 2007, 

$85.00 per hour in fiscal year 2008, and 

$89.00 per hour in fiscal year 2009. 

(b) Information on legal holidays or 

what constitutes overtime service at a 

particular Science and Technology 

laboratory is available from the 

Laboratory Manager or facility 

supervisor. 

4. Section 91.42 is revised to read as 

follows: 

§ 91.42 Billing. 

(a) Each billing cycle will end on the 

25th of the month. The applicant will be 

billed by the National Finance Center 

(NFC) using the Foundation Financial 

Information System (FFIS) on the 1st 


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55380 Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 

day, following the end of the billing 

cycle in which voluntary laboratory 

services and other services were 

rendered at a particular Science and 

Technology laboratory or office. 

(b) The total charge or fee shall 

normally be stated directly on the 

analysis report or on a standardized 

official certificate form for the 

laboratory analysis of a specific 

agricultural commodity and related 

commodity products. 

(c) The actual bill for collection will 

be issued by the USDA, National 

Finance Center Billings and Collection 

Branch, (Mail: P.O. Box 60075), 13800 

Old Gentilly Road, New Orleans, 

Louisiana 70160–0001. 

PART 92—[REMOVED AND 

RESERVED] 

5. Part 92 is removed in its entirety 

and reserved. 

Dated: September 14, 2006. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 06–7821 Filed 9–21–06; 8:45 am] 

BILLING CODE 3410–02–M 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 993 

[Docket No. FV06–993–1 PR] 

Dried Prunes Produced in California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would decrease the 

assessment rate established for the 

Prune Marketing Committee 

(committee) under Marketing Order No. 

993 for the 2006–07 and subsequent 

crop years from $0.65 to $0.40 per ton 

of salable dried prunes. The committee 

locally administers the marketing order 

which regulates the handling of dried 

prunes grown in California. 

Assessments upon dried prune handlers 

are used by the committee to fund 

reasonable and necessary expenses of 

the program. The crop year began 

August 1 and ends July 31. The 

assessment rate would remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Comments must be received by 

October 23, 2006. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or E-mail: 

moab.docketclerk@usda.gov, or Internet: 

http://www.regulations.gov. Comments 

should reference the docket number and 

the date and page number of this issue 

of the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours, or can be viewed at: 

http://www.ams.usda.gov/fv/moab.html. 

FOR FURTHER INFORMATION CONTACT: Toni 

Sasselli, Program Analyst, or Terry 

Vawter, Marketing Specialist, California 

Marketing Field Office, Fruit and 

Vegetable Programs, AMS, USDA; 

Telephone: (559) 487–5901; Fax (559) 

487–5906, or E-mail: 

Toni.Sasselli@usda.gov or 

Terry.Vawter@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720–

2491, Fax: (202) 720–8938, or E-mail: 

Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 110 and Marketing Order No. 993, 

both as amended (7 CFR part 993), 

regulating the handling of dried prunes 

grown in California, hereinafter referred 

to as the ‘‘order.’’ The marketing 

agreement and order are effective under 

the Agricultural Marketing Agreement 

Act of 1937, as amended (7 U.S.C. 601–

674), hereinafter referred to as the 

‘‘Act.’’

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, California dried prune 

handlers are subject to assessments. 

Funds to administer the order are 

derived from such assessments. It is 

intended that the assessment rate as 

proposed herein would be applicable to 

all assessable dried prunes beginning 

August 1, 2006, and continue until 

amended, suspended, or terminated. 

This rule will not preempt any State or 

local laws, regulations, or policies, 

unless they present an irreconcilable 

conflict with this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has his or her principal 

place of business, has jurisdiction to 

review USDA’s ruling on the petition, 

provided an action is filed not later than 

20 days after the date of the entry of the 

ruling. 

This rule would decrease the 

assessment rate established for the 

committee for the 2006–07 and 

subsequent crop years from $0.65 to 

$0.40 per ton of salable dried prunes 

handled. 

The California dried prune marketing 

order provides authority for the 

committee, with the approval of USDA, 

to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

members of the committee are 

producers and handlers of California 

dried prunes. They are familiar with the 

committee’s needs and with the costs 

for goods and services in their local 

area; and are, thus, in a position to 

formulate an appropriate budget and 

assessment rate. The assessment rate is 

formulated and discussed in at least one 

public meeting. Thus, all directly 

affected persons have an opportunity to 

participate and provide input. 

For the 2005–06 and subsequent crop 

years, the committee recommended, and 

USDA approved, an assessment rate that 

would continue in effect from crop year 

to crop year unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the committee or other 

information available to USDA. 

The committee met on June 29, 2006, 

and unanimously recommended a 

decreased assessment rate of $0.40 per 

ton of salable dried prunes and 

expenditures totaling $77,215 for the 

2006–07 crop year. In comparison, last 

year’s approved expenses were $89,090. 

The proposed assessment rate of $0.40 

per ton of salable dried prunes is $0.25 

lower than the rate currently in effect. 

The committee recommended a lower 

assessment rate based on an estimated 

production of 145,000 tons of salable 

dried prunes. At the proposed 

assessment rate, the assessment income 


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