This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

50149 

Vol. 70, No. 165 

Friday, August 26, 2005 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Part 1207 

Enforcement of Nondiscrimination on 

the Basis of Disability in Programs or 

Activities 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or ‘‘the Board’’) is 

publishing final regulations that adopt 

previously published interim 

regulations revising 5 CFR part 1207. 

These final regulations are necessary to 

reconcile the Board’s regulations with 

Section 504 of the Rehabilitation Act of 

1973, as amended, 29 U.S.C. 794, and to 

clarify the procedures for processing 

those complaints filed against the Board 

that allege discrimination on the basis of 

disability during the Board’s 

adjudication of a related employee 

appeal. 

DATES: This rule is effective August 26, 

2005. 

FOR FURTHER INFORMATION CONTACT: 

Bentley M. Roberts, Jr., Clerk of the 

Board, Merit Systems Protection Board, 

1615 M Street, NW., Washington, DC 

20419; (202) 653–7200; fax: (202) 653– 

7130; or e-mail: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: On May 9, 

2005, the Board published amendments 

to 5 CFR part 1207 as an interim rule 

with request for comments (70 FR 

24293). The Board received no 

comments during the 60 days allowed 

for receipt of public comments. This 

final rule makes no changes to the 

previously published interim rule. See 

70 FR 24293 for additional information 

concerning the Board’s revision of 5 

CFR 1207. 

Accordingly, the Board adopts the 

interim rule published at 70 FR 24293 

on May 9, 2005, as a final rule effective 

August 26, 2005. 

Bentley M. Roberts, Jr., 

Clerk of the Board. 

[FR Doc. 05–17050 Filed 8–25–05; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF AGRICULTURE 

Grain Inspection, Packers and 

Stockyards Administration 

7 CFR Part 800 

RIN 0580–AA88 

Fees Assessed by the Service 

AGENCY: Grain Inspection, Packers and 

Stockyards Administration, USDA. 

ACTION: Final rule. 

SUMMARY: The Federal Grain Inspection 

Service (FGIS), of the Grain Inspection, 

Packers and Stockyards Administration 

(GIPSA), is amending the regulation 

regarding fees assessed to delegated 

States and designated official agencies, 

hereafter known as official agencies, 

authorized by GIPSA to provide official 

inspection and weighing services to the 

U.S. grain industry. The fee adjustment 

is necessary to collect sufficient revenue 

to cover the current and future cost of 

supervising the performance of the 

official agencies. 

Current supervision fees are charged 

to official agencies on a unit basis and 

represent an average rate of 

approximately 0.8 cent per metric ton of 

grain inspected or weighed by the 

official agencies. The final supervision 

fee increases the rate to a 1.1 cents per 

metric ton charge. Official agencies 

include the cost of GIPSA’s supervision 

fee as part of the fee they charge their 

customers for grain services. The 

current average cost for services 

provided by official agencies is 21 cents 

per metric ton. Increasing the 

supervision fee by approximately 0.3 

cent per metric ton will minimally 

increase the total cost of inspection and 

weighing services to the grain industry. 

DATES: Effective October 1, 2005. 

FOR FURTHER INFORMATION CONTACT: 

David Orr, Director, Field Management 

Division, telephone (202) 720–0228 at 

USDA, GIPSA, Room 2409, 1400 

Independence Avenue, SW., 

Washington, DC 20250–3630; Fax 

Number (202) 720–1015; E-mail address 

David.M.Orr@usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The United States Grain Standards 

Act (USGSA) (7 U.S.C. 71 et seq.) 

authorizes GIPSA to supervise grain 

inspection and weighing services 

provided by official agencies and to 

charge and collect reasonable fees to 

cover the cost of such supervision. 

These fees are charged by official 

agencies to their customers (grain 

industry) as part of the overall fee 

charged for inspection and weighing 

services. Supervision fees collected by 

GIPSA cover, as nearly as practicable, 

the program and administrative costs of 

supervising official agencies. The 

current supervision fees were published 

in the Federal Register on May 13, 2004 

(69 FR 26476), and became effective 

June 14, 2004. This action adjusted only 

the supervision fee charged to delegated 

States for the inspection and weighing 

of export grain shipments. All other 

supervision fees remained unchanged. 

The fee for export grain shipments was 

changed from a unit fee of $49.20 per 

inspection to 1.6 cents per metric ton. 

The fees unchanged by the June 14, 

2004, action were last amended in 

September 23, 1985, as published in the 

Federal Register (50 FR 38503) and 

became effective on October 1, 1985. At 

that time, supervision fees were lowered 

an average 40 percent due to the 

accumulation of a $4.5 million reserve 

in retained earnings. The fee rates 

established on October 1, 1985, were set 

at a level so that the program operated 

at a net loss in order to reduce the 

operating reserves on a planned gradual 

basis. During the 19 year span from 

1985 to 2004, GIPSA has gradually 

reduced the retained earnings in this 

program and has reached a point where 

an adjustment is needed to cover 

current and future program costs. In FY 

2004, the official agency supervision 

program operating costs totaled 

$2,606,826, while revenue amounted to 

$1,527,713, a negative margin of 

$1,079,113. The retained earnings 

balance was $867,191 at the end of FY 

2004. GIPSA projects the official agency 

supervision program deficit to continue 

at a comparable rate, and estimates that 

at the end of FY 2006, the program’s 

retained earnings will be negative $1.1 

million. 

50150 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

GIPSA regularly reviews its user-feefinanced programs under the USGSA (7 

U.S.C. 71 et seq.) to determine if the fees 

are adequate. GIPSA recognizes the 

need to reduce inspection and weighing 

supervision costs as much as possible 

before increasing fees and therefore has 

taken action through the years to 

minimize costs. GIPSA plans to reduce 

costs by initiating a transition to a 

central monitoring program. This action, 

scheduled for implementation in FY 

2008, should reduce overall operating 

expenses an estimated $1.2 million or 

43 percent. Implementing the central 

monitoring process, coupled with a new 

supervision fee, will assist GIPSA in 

reaching an adequate 3-month retained 

earnings balance. 

GIPSA completed a review of the 

official agency inspection and weighing 

programs and determined it was 

necessary to propose a change in the 

manner in which it collects user fees 

and to increase fees in order to recover 

the retained earnings to their desired 3- 

month level. On March 21, 2005, GIPSA 

proposed in the Federal Register (70 FR 

13411) to amend the fees to recover the 

costs associated with administering the 

official agency supervision program. 

This action would maintain GIPSA’s 

financial stability to assure continued 

inspection and weighing services to the 

grain industry, which will further 

facilitate the sound and orderly 

marketing of grain in domestic and 

export markets. 

The current supervision fee is 

assessed on a unit or carrier basis and 

does not necessarily reflect the amount 

of grain inspected and weighed. GIPSA 

believes assessing supervision fees 

proportionate to the weight of grain 

inspected and/or weighed is a 

reasonable approach. This process was 

implemented for the supervision of 

export grain inspected and weighed by 

Delegated States in the changes effective 

June 14, 2004 (69 FR 26476). Therefore, 

GIPSA proposed charging all 

supervision fees based on a per metric 

ton basis. 

In FY 2004, customers of official 

agencies, the grain industry, paid an 

estimated $39 million or 21 cents per 

metric ton for official inspection and 

weighing services on an estimated 187 

million metric tons of grain. Of the $39 

million paid for services, $1,527,713 

(3.92 percent or 0.82 cents per metric 

ton) represented GIPSA collected 

supervision fees. GIPSA’s actual 

program costs for FY 2004 were 

$2,606,826 or 1.39 cents per metric ton 

which resulted in a net loss of 

approximately 0.57 cents per metric ton. 

To minimize the impact of a fee 

increase, GIPSA proposed supervision 

fee rates that would collect sufficient 

revenue over time to cover operating 

expenses, while striving to create a 3- 

month operating reserve by FY 2014. 

The cost of living projections used in 

calculating future salary, benefits, and 

all other non-salary expenses out to FY 

2014 were supplied by the Office of 

Management and Budget (OMB) as set 

forth in their Federal Register 

publication (69 FR 26900) on May 14, 

2004. In projecting revenue to FY 2014, 

GIPSA used a 5 year average of the total 

tons inspected and/or weighed by 

official agencies. GIPSA will evaluate 

the financial status of the supervision of 

the grain inspection and weighing 

program on a continuous basis to 

determine if it is meeting the goal of 

obtaining a 3-month operating reserve 

by FY 2014, and to determine if other 

adjustments are necessary. 

GIPSA proposed to gradually 

replenish the reserve rather than sharply 

increase supervision fees in the short 

term to immediately replenish the 

retained earnings. GIPSA proposed a 

change in the supervision fees and a 

change in the methodology for assessing 

supervision fees to official agencies. 

Section 800.71 of the regulations 

provides that the fees shown in 

Schedule C apply to official inspection 

and weighing services performed by 

delegated States and designated 

agencies in the United States, except for 

those State agencies that are delegated 

additional responsibilities by GIPSA. 

These States are assessed annual 

charges as noted in the State’s 

Delegation of Authority document. 

GIPSA has a long-standing agreement 

with the State of Washington whereby 

the State pays GIPSA for direct local 

costs along with their portion of the 

national administrative costs. The 

financial data and information used to 

develop the fees for Schedule C did not 

include the costs and tonnage associated 

with the State of Washington since the 

State is charged for their direct local 

costs and their share of the national 

administrative costs as established by 

the agreement. 

GIPSA projected that the new fees 

should be implemented no later than FY 

2007 and projected costs to FY 2014 to 

develop the new fees for Schedule C. 

GIPSA projections are based on an 

average total inspection and weighing 

tonnage of 170 million metric tons per 

year. 

GIPSA determined that if the new fees 

are implemented by FY 2007 and the 

goal is to replenish the retained earnings 

and 3-month operating reserve by FY 

2014, then GIPSA will need to collect 

approximately $1.9 million per year 

from FY 2007 through FY 2014 to 

achieve this goal. GIPSA concluded that 

a 1.1 cents per metric ton fee would 

generate approximately $1.9 million per 

year based on an average annual service 

volume of 170 million metric tons. This 

new fee would generate sufficient funds 

to rebuild the retained earnings to its 

desired 3-month level by FY 2014. 

GIPSA will continue to monitor and 

evaluate the program to ensure the goal 

is achieved. 

GIPSA also proposed to change the 

method to assess supervision fees to the 

official agencies. GIPSA has historically 

charged supervision fees based on the 

type of carrier serviced and further 

charged supervision fees based on the 

kinds and levels of services received. 

GIPSA proposed to charge the 1.1 cents 

per metric ton supervision fees based on 

the total tonnage of grain officially 

inspected and/or weighed by official 

agencies. GIPSA proposed to utilize a 

standard metric ton conversion rate for 

submitted samples and specific carriers 

serviced in order to calculate and assess 

the supervision fees to the official 

agencies. The following table illustrates 

the standard metric ton conversion rate 

that GIPSA will use to assess the total 

tons serviced by the official agencies. 

Carrier/service Estimated 

metric tons 

Truck ......................................... 19.39 

Submitted Sample .................... 19.39 

Container .................................. 20.04 

Railcar ....................................... 103.42 

Midwest Barge .......................... 1,292.74 

Pacific Northwest Barge ........... 2,267.96 

GIPSA determined that ships will be 

assessed the 1.1 cents per metric ton 

supervision fee based on the actual 

certified weight for the ship. 

The change in supervision fees would 

increase the average current fee rate by 

approximately 0.3 cent per metric ton. 

This additional increase should 

minimally affect the amount an 

applicant (grain industry) pays for 

service. 

Comment Review 

GIPSA received comments in 

response to the proposed rulemaking 

published March 21, 2005, in the 

Federal Register (70 FR 13411). One 

comment indicated that GIPSA should 

streamline its operations and reduce 

staff before imposing a fee increase. As 

discussed earlier in this document, 

GIPSA recognizes the need to reduce 

inspection and weighing costs as much 

as possible before increasing fees and 

has taken action through the years to 

minimize costs. However, the fee 

adjustment is necessary to collect 

sufficient revenue to cover the current 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50151 

and future costs of supervising the 

performance of official agencies. A 

second response did not respond to the 

proposed action. Consequently, GIPSA 

is implementing the fee changes as they 

were proposed. 

Executive Orders 12866 and 12988 

This rule has been determined to be 

non-significant for the purposes of 

Executive Order 12866 and therefore 

has not been reviewed by the OMB. This 

rule has been reviewed under Executive 

Order 12988, Civil Justice Reform. This 

action is not intended to have a 

retroactive effect. The USGSA provides 

in Sec. 87g that no subdivision may 

require or impose any requirements or 

restrictions concerning the inspection, 

weighing, or description of grain under 

the Act. Otherwise, this rule will not 

preempt any State or local laws, 

regulations, or policies unless they 

present irreconcilable conflict with this 

rule. There are no administrative 

procedures that must be exhausted prior 

to any judicial challenge to the 

provisions of this rule. 

Paperwork Reduction Act and 

Government Paperwork Elimination Act 

In compliance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the information collection 

and recordkeeping requirements 

included in this rule has been approved 

by the OMB under control number 

0580–0013. 

GIPSA is committed to compliance 

with the Government Paperwork 

Elimination Act, which requires 

Government agencies, in general, to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. 

Regulatory Flexibility Act Certification 

GIPSA has determined that this rule 

does not have a significant economic 

impact on a substantial number of small 

entities, as defined in the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.), 

because the majority of applicants (grain 

industry) that apply for these official 

services, and are subjected to GIPSA 

supervision fees, do not meet the 

requirements for small entities. This 

rule will affect entities engaged in 

shipping grain to and from points 

within the United States and exporting 

grain from the United States. GIPSA 

estimates there are approximately 9,500 

off-farm storage facilities and 18 export 

elevators in the United States that could 

receive services from delegated States or 

designated agencies. Official services 

are available from 7 delegated States 

and 49 designated agencies. For 

clarification, any and all grain that is 

exported from the U.S. export port 

locations must, as required by the 

USGSA, be inspected and/or weighed. 

These services are either performed by 

GIPSA or delegated States. Further, 

some grain exported from interior 

locations may also require inspection 

and/or weighing services unless the 

services are waived as provided in 

section 800.18 of the regulations. These 

services are provided by designated 

agencies. The USGSA does not require 

inspection or weighing services for grain 

marketed within the U.S. Consequently, 

these services are permissive and may 

be performed by official agencies. The 

USGSA (7 U.S.C. 71 et seq.) authorizes 

GIPSA to provide supervision of official 

grain inspection and weighing services, 

and to charge and collect reasonable 

fees for performing these services. The 

fees collected are to cover, as nearly as 

practicable, GIPSA’s costs for 

performing these services, including 

related administrative and supervisory 

costs. 

GIPSA realizes that any increase in 

supervision fees will be charged by 

official agencies to the users (grain 

industry) of the official grain inspection 

and weighing system. 

Although, the overall effect of this 

rule will be passed on to the users of 

official grain inspection and weighing 

services, mostly large corporations, 

David R. Shipman, Acting 

Administrator, GIPSA, has determined 

that this rule will not have a significant 

impact on a substantial number of small 

entities as defined in the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

List of Subjects in 7 CFR Part 800 

Administrative practice and 

procedure; Grain. 

■ For the reasons set out in the 

preamble, 7 CFR part 800 is amended as 

follows: 

PART 800—GENERAL REGULATIONS 

■ 1. The authority citation for part 800 

continues to read as follows: 

Authority: Pub. L. 94–582, 90 Stat. 2867, 

as amended (7 U.S.C. 71 et seq.) 

■ 2. In § 800.71, paragraph(a), Schedule 

C is amended by removing Tables 1 and 

2 and adding introductory text in their 

place to read as follows: 

§ 800.71 Fees assesses by the Service. 

(a) * * * 

SCHEDULE C—FEES FOR FGIS 

SUPERVISION OF OFFICIAL 

INSPECTION AND WEIGHING 

SERVICES PERFORMED BY 

DELEGATED STATES AND/OR 

DESIGNATED AGENCIES IN THE 

UNITED STATES. 

The supervision fee is charged at 

$0.011 per metric ton inspected and/or 

weighed. 

* * * * * 

David R. Shipman, 

Acting Administrator, Grain Inspection, 

Packers and Stockyards Administration. 

[FR Doc. 05–16952 Filed 8–25–05; 8:45 am] 

BILLING CODE 3410–EN–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 984 

[Docket No. FV05–984–1 IFR] 

Walnuts Grown in California; 

Suspension of Provision Regarding 

Eligibility of Walnut Marketing Board 

Members 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: This rule suspends a 

provision of the walnut marketing order 

(order) pertaining to eligibility of 

members to serve on the Walnut 

Marketing Board (Board). The order 

regulates the handling of walnuts grown 

in California, and the Board is 

responsible for local administration of 

the order. This action is an interim 

measure to address a change in industry 

structure affecting cooperative 

marketing association related positions. 

This will allow the Board to continue to 

represent the industry’s interests while 

the order is amended to reflect the 

change in industry structure. The Board 

unanimously recommended a 

suspension action by mail balloting in 

early July, 2005. 

DATES: Effective August 29, 2005; 

comments received by October 25, 2005 

will be considered prior to issuance of 

a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning the proposal to: 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, Email: 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 Federal Register and will 

be made available for public inspection 

in the Office of the Docket Clerk during