This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

54920 

Vol. 74, No. 205 

Monday, October 26, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 91 

[Document Number AMS–ST–09–0016] 

Changes in Hourly Fee Rates for 

Science and Technology Laboratory 

Services—Fiscal Years 2010–2012 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The Agricultural Marketing 

Service (AMS) proposes changes in 

annual standard, appeal, overtime, and 

holiday hourly fee rates for fiscal years 

2010–2012 for Science and Technology 

(S&T) Laboratory Services in order to 

recover anticipated laboratory program 

costs. 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, 

equipment maintenance costs, and 

program and agency administrative 

overhead costs. This action also 

proposes miscellaneous changes for 

clarity. 

Comments: Comments must be 

received on or before November 25, 

2009. 

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 Internet: http:// 

www.regulations.gov or e-mail: 

James.falk@ams.usda.gov. Comments 

should reference the document number 

and the date and page number of this 

issue of the Federal Register. 

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 or can be 

viewed at: http://www.regulations.gov. 

All comments submitted in response to 

this proposed rule will be included in 

the record and will be made available to 

the public. Please be advised that the 

identity of the individuals or entities 

submitting the comments will be made 

public on the Internet at the address 

provided above. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Robert L. Epstein, Deputy 

Administrator, 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@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Science and Technology (S&T) 

Programs has been performing voluntary 

laboratory services under the 

Agricultural Marketing Act of 1946 

(AMA), as amended (7 U.S.C. 1621– 

1627), for the AMS commodity 

programs (Fruit and Vegetable, Cotton 

and Tobacco, Livestock and Seed, 

Poultry, and Dairy) and applicable 

stakeholders in these industries since its 

inception on August 17, 1988. Before 

that time, voluntary laboratory testing 

was provided for on a separate user fee 

basis under the various AMS 

commodity programs. The current 

standard hourly rate of $67.00, the 

appeal or overtime hourly rate of $78.00 

and the holiday hourly rate of $89.00 

have been in effect since the March 30, 

2007 final rule (72 FR 15011) was 

published. The standard fee rate for 

laboratory services is proposed to be 

increased to $78.00 per hour in fiscal 

year 2010, $81.00 per hour in fiscal year 

2011, and $83.00 per hour in fiscal year 

2012. The appeal and overtime hourly 

fee rate for laboratory services outside 

the normal business hours are proposed 

to increase to $93 in FY 2010, to $96 in 

FY 2011, and to $99 in FY 2012. The 

holiday hourly fee rate for laboratory 

services during designated federal 

holidays are proposed to increase to 

$108 in FY 2010, to $111 in FY 2011, 

and to $115 in FY 2012. An increase in 

the premium hourly rates over the three 

fiscal years for laboratory services 

performed on appeal samples, overtime 

basis, and holidays 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 

on legal holidays to accommodate 

clients. This is due to 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 devices on 

several sample process equipment and 

analytical instruments. 

The Agency proposes to recover the 

actual cost of services for multiple fiscal 

years (FY 2010 through FY 2012) 

covered by this proposed rule. This 

proposed rule updates S&T Programs’ 

facility addresses. It clarifies that results 

of analyses and laboratory 

determinations provided by AMS 

laboratory services apply to the 

submitted samples only and do not 

represent the quality, condition or 

disposition of the lot from which the 

sample was derived. 

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 

examinations, safety equipment, sample 

preparation equipment, training, trash 

and hazardous waste disposal, travel 

and transportation costs. There have 

been certain large capital improvement 

expenditures in the laboratories in 

recent years due to unfunded legal 

mandates. These expenditures include 

costs for the counter-terrorism 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 13423 of January 24, 

2007, Strengthening Federal 

Environmental, Energy, and 

Transportation Management (72 FR 

3919). 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, hazardous waste 

removal, and a Laboratory Information 

Management System (LIMS). 

Infrastructure costs are mainly 


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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. Agency overhead 

is the pro-rated share, attributable to a 

particular service, of the agency’s 

management and support costs. 

Overhead expenditures are allocated 

across the Agency for each direct hour 

of laboratory service. 

There are essentially three standard 

hourly fee rate increases being proposed 

for the basic laboratory services—$67 to 

$78 per hour or 16.4 percent in fiscal 

year 2010, $78 to $81 per hour or 3.8 

percent in fiscal year 2011 and $81 to 

$83 per hour or 2.5 percent in fiscal year 

2012. The rate increases for overtime 

and appeals are $78 to $93 per hour or 

19.2 percent, $93 to $96 per hour or 3.2 

percent, and $96 to $99 per hour or 3.1 

percent in fiscal years 2010, 2011, and 

2012, respectively. The rate increases 

for legal holiday service are $89 to $108 

per hour or 21.3 percent, $108 to $111 

per hour or 2.8 percent, and $111 to 

$115 per hour or 3.6 percent in fiscal 

years 2010, 2011, and 2012, 

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 but will 

not support any new budgetary 

initiative. The revised hourly fee rates 

will apply to voluntary laboratory 

services that are provided for five types 

of analytical testing: microbiological, 

physical, residue chemistry, proximate 

analysis for composition, and 

biomolecular (DNA-based) testing. A 

user fee system, using set hourly rates 

for three fiscal years, is proposed by this 

rulemaking to ensure that AMS properly 

recovers its full costs for providing 

voluntary laboratory services in a timely 

manner, and that all stakeholders have 

advance notice of their estimated 

laboratory fees so that they can make 

reasonable cost assumptions when 

formulating their annual budgets. 

The largest cost of operations for the 

AMS laboratory programs is payroll and 

employee benefits. This obligation is 

projected to amount to $3,848,000 or 

57.6 percent of the total laboratory costs 

for FY 2010. Recent cross-training of the 

employees in the laboratories has 

resulted in the reduction of staff from 67 

individuals in FY 2007 to 50 current 

individuals in FY 2009 as ongoing 

efforts to limit program costs are 

implemented. AMS calculated its 

projected increases in salaries and 

inflation in fiscal years 2010 through 

2012. The estimate for increases in 

salaries for fiscal year 2009 as the base 

year and the succeeding years are from 

the Office of Management and Budget’s 

(OMB) ‘‘Federal Pay Raise 

Assumptions’’ table. The fiscal year pay 

adjustments are increased by 3 percent 

in the following tables of calculated 

proposed new hourly fee rates for 

laboratory program services for FY 2010 

through FY 2012. The OMB Federal pay 

raise assumptions (including 

geographical pay differentials) state that 

in the development of civilian 

government personnel costs a yearly 

percentage (3%) increase shall be used. 

This information comes from the table, 

‘‘Federal Pay Raise Assumptions’’, of 

the Office of Management and Budget’s 

Fiscal Year 2007 Budget and beyond 

which is available at http:// 

www.whitehouse.gov/omb/memoranda/ 

fy2007/m07-02.pdf. 

Inflation for FY 2009 and subsequent 

years is estimated to be 3.5 percent. In 

Tables 2 through 10 below a yearly 3.5 

percent inflation rate is used in the 

calculations for hourly fee rate 

determinations for laboratory program 

services because the 2007 annual 

average for the base Consumer Price 

Index for all Urban Consumers (CPI–U): 

U.S. city average for service costs is 

listed as 246.848 in Table 3A. of the 

referenced Web site and there is a most 

recent annual average increase of 3.5% 

to 255.498 for the CPI–U provided for 

the change in service costs. This 

estimate for inflation percent (3.5%) can 

be obtained from Table 3A, ‘‘Consumer 

Price Index for all Urban Consumers 

(CPI–U): U.S. city average, detailed 

expenditure categories’’, which is 

available at http://www.bls.gov/cpi/ 

cpid08av.pdf. 

The Agency will initiate, when 

necessary, 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 not explicit overhead 

costs. Direct costs include the cost of 

salaries, employee benefits, operation 

costs, equipment service and 

replacements, security, training needs, 

and infrastructure cost. The Agency is 

able to estimate the employee benefits 

attributable to overtime work and has 

included these in the fee rate 

calculations. 

The current and proposed fees for 

standard, appeal, overtime and legal 

holiday voluntary laboratory services 

are listed by type of service in Table 1 

below. The first increases ranging from 

16.4 to 21.3 percent, from the current 

rates to the fiscal year 2010 rates, are 

larger than the subsequent 2011 and 

2012 fiscal year increases (2.5 to 3.8 

percent range) because these are the first 

hourly rate increases proposed since last 

set on March 30, 2007. Therefore, it 

includes the actual increases in salaries 

and inflation that have occurred since 

that date. It also includes changes in 

personnel numbers and the promotions 

and within-grade pay step increases for 

General Schedule (GS) salaries granted 

worthy employees, and new employee 

position pay costs. 

With this proposed action, the AMS 

would amend its regulations to provide 

for three annual differing fee increases 

in one action. Table 1 shows the 

summary of the current rates and the 

proposed hourly fee rates for fiscal years 

2010 through 2012 for the four different 

types of services (regular laboratory, 

appeal, overtime, and legal holiday 

work) that Science and Technology 

Programs employees perform. 

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

Service Current rate FY 2010 rate 1 FY 2011 rate 2 FY 2012 rate 3

Laboratory ........................................................................................................ $67.00 $78.00 $81.00 $83.00 

Appeal .............................................................................................................. 78.00 93.00 96.00 99.00 

Overtime .......................................................................................................... 78.00 93.00 96.00 99.00 

Legal Holiday ................................................................................................... 89.00 108.00 111.00 115.00 

123 Hourly values for FY 2010–FY 2012 are rounded off to nearest whole dollar. 


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54922 Federal Register / Vol. 74, No. 205 / Monday, October 26, 2009 / Proposed Rules 

With this proposed action, the AMS 

would amend its regulations to provide 

for three annual fee increases in one 

action. In AMS’s analysis of projected 

costs set forth in Tables 2 through 10 

below, AMS has identified the basis for 

the increases in the cost of voluntary 

hourly fee rates for laboratory services 

for fiscal year 2010 through fiscal year 

2012. 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 2 through 10 for fiscal year 2010, 

fiscal year 2011 and fiscal year 2012, a 

description is provided of each fee 

charge category. 

TABLE 2—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2010 

Laboratory services Apportioned 

fee rate 

Base Time: 

Actual FY 2009 Salaries 1 @ $3,029,744 .................................................................................................................................... $29.13 

FY 2010 Pay Adjustment 2 = [Actual FY 2009 Salaries ($29.13)] × 0.03 (3%) ........................................................................... 0.87 

Benefits 3 ....................................................................................................................................................................................... 6.99 

Operational Costs 4 ....................................................................................................................................................................... 22.38 

Infrastructure Cost 5 ...................................................................................................................................................................... 13.08 

Agency Overhead 6 ....................................................................................................................................................................... 4.81 

FY 2010 Inflation 7 (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ...................................................... 1.20 

Total Rate Per Hour—Base Time ......................................................................................................................................... 78.46 

1Actual cost of FY 2009 salaries ($3,029,744) ÷ (2,080 program hours times 50 program employees) = $29.13 unit cost. 2Actual cost of FY 2010 pay adjustment ($90,892) ÷ (2,080 program hours times 50 program employees) = $0.87 unit cost 3Actual cost of benefits ($727,364) ÷ (2,080 program hours times 50 program employees) = $6.99 unit cost. 4Actual cost of operational costs ($2,328,000) ÷ (2,080 program hours times 50 program employees) = $22.38 unit cost. 5Actual cost of infrastructure ($1,360,000) ÷ (2,080 program hours times 50 program employees) = $13.08 unit cost. 6Actual cost of Agency overhead ($500,000) ÷ (2,080 program hours times 50 program employees) = $4.81 unit cost. 7 Cost of FY 2010 Inflation ($125,000) ÷ (2,080 program hours times 50 program employees) = $1.20 unit cost. 

In order to project the hourly fee rates 

for the laboratory program services for 

fiscal years 2010 through 2012, the 

current fiscal year 2009 is used as a 

base. The total base time hourly fee rate 

calculation (Table 2) for fiscal year 2010 

begins with the actual salaries for fiscal 

year 2009 ($3,029,744) and adds the 

fiscal year 2010 projected pay 

adjustments (3 percent) and the fiscal 

year 2010 cost of employee benefits 

($727, 364). 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 2010. 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 (2,080 hours) and further 

divided by the number of laboratory 

service program employees (50 people). 

The formula derives the apportioned fee 

rate for each fee charge category 

(salaries with pay adjustment, benefits, 

operational costs, infrastructure cost, 

agency overhead and inflation factor at 

3.5 percent rate). 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. See Table 3 through Table 10 

below for additional proposed hourly 

fee rate calculations for laboratory 

program services for fiscal years 2010 

through 2012 to be rounded off to whole 

number dollar amounts. 

Table 3 through Table 4 shows the 

calculations of the total standard hourly 

fee rates to be rounded off to $81 and 

$83 for fiscal years 2011 through 2012, 

respectively. 

TABLE 3—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2011 

Laboratory services Apportioned 

fee rate 

Base Time: 

Projected FY 2010 Salaries = Actual FY 2009 ($29.13) + FY 2010 Pay Adjustment ($0.87) .................................................... $30.00 

FY 2011 Pay Adjustment = [FY 2010 Salaries ($30.00)] × 0.03 (3%) ........................................................................................ 0.90 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

FY 2011 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Base Time ......................................................................................................................................... 80.56 

TABLE 4—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2012 

Laboratory services Apportioned 

fee rate 

Base Time: 

Projected FY 2011 Salaries = FY 2010 ($30.00) + FY 2011 Pay Adjustment ($0.90) ............................................................... $30.90 

FY 2012 Pay Adjustment = [FY 2011 Salaries ($30.90)] × 0.03 (3%) ........................................................................................ 0.93 


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TABLE 4—CALCULATIONS FOR THE STANDARD HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 2012— 

Continued 

Laboratory services Apportioned 

fee rate 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

FY 2011 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

FY 2012 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Base Time ......................................................................................................................................... 82.69 

Table 5 through Table 7 show the 

calculations of the total appeal and total 

overtime hourly fee rates to be rounded 

off to whole dollar amounts for fiscal 

years 2010 through 2012. 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. Federal employee rates 

of premium pay are described in part 

551 of Title 5 of the Code of Federal 

Regulations (CFR) for the Office of 

Personnel Management (OPM). Section 

551.512(a) specifies that Federal 

employees are entitled to receive 

overtime premium pay, when overtime 

work is performed, at one and one-half 

times the employee’s hourly rate of 

basic pay. 

TABLE 5—CALCULATIONS FOR THE APPEAL AND OVERTIME HOURLY RATES FOR LABORATORY PROGRAM SERVICES FOR

FY 2010 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Projected Salaries @ 1.5 (time and a half) FY 2009 Salaries @ 1.5 = [Actual 2009 Salaries 

($29.13)] × 1.5 .................................................................................................................................................................................. $43.70 

FY 2010 Pay Adjustment = FY 2009 Salaries @ 1.5 ($43.70) × 0.03 (3%) ............................................................................... 1.31 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Appeal and Overtime ............................................................................................................................... 93.47 

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

FY 2011 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Projected Salaries @ 1.5 (time and a half) FY 2010 Salaries @ 1.5 = [Actual FY 2009 Salaries 

($29.13) + FY 2010 Pay Adjustment ($0.87)] × 1.5 ........................................................................................................................ $45.00 

FY 2011 Pay Adjustment = FY 2010 Salaries @ 1.5 ($45.00) × 0.03 (3%) ............................................................................... 1.35 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) .............................................................................................................................................................. 1.20 

FY 2011 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Appeal and Overtime ............................................................................................................................... 96.01 

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

FY 2012 

Laboratory services Apportioned 

fee rate 

Appeal and Overtime Rates: Projected Salaries @ 1.5 (time and a half) FY 2011 Salaries @ 1.5 = [Projected FY 2010 Salaries 

($30.00) + FY 2011 Pay Adjustment ($0.90)] × 1.5 ........................................................................................................................ $46.35 

FY 2012 Pay Adjustment = FY 2011 Salaries @ 1.5 ($46.35) × 0.03 (3%) ............................................................................... 1.39 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 


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54924 Federal Register / Vol. 74, No. 205 / Monday, October 26, 2009 / Proposed Rules 

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

FY 2012—Continued 

Laboratory services Apportioned 

fee rate 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) .............................................................................................................................................................. 1.20 

FY 2011 Inflation (3.5%) .............................................................................................................................................................. 1.20 

FY 2012 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Appeal and Overtime ............................................................................................................................... 98.60 

Table 8 through Table 10 shows the 

calculations of the total legal holiday 

hourly fee rates to be rounded off to 

whole dollar amounts for fiscal years 

2010 through 2012. 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. Accordingly, 5 

CFR, part 532, section 532.507 (a) 

specifies that Federal employees are 

entitled to receive holiday premium 

pay, which is not overtime work, at 

double the employee’s hourly rate of 

basic pay. 

TABLE 8—CALCULATIONS FOR THE FEDERAL HOLIDAY HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 

2010 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Projected Salaries @ 2.0 (double time).

FY 2009 Salaries @ 2.0 = [Actual 2009 Salaries ($29.13)] × 2.0 ............................................................................................... $58.26 

FY 2010 Pay Adjustment = FY 2009 Salaries @ 2.0 ($58.26) × 0.03 (3%) ............................................................................... 1.75 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Holidays .................................................................................................................................................... 108.47 

TABLE 9—CALCULATIONS FOR THE FEDERAL HOLIDAY HOURLY RATE FOR LABORATORY PROGRAM SERVICES FOR FY 

2011 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Projected Salaries @ 2.0 (double time).

FY 2010 Salaries @ 2.0 = [Actual FY 2009 Salaries ($29.13) + FY 2010 Pay Adjustment ($0.87)] × 2.0 ................................ $60.00 

FY 2011 Pay Adjustment = FY 2010 Salaries @ 2.0 ($60.00) × 0.03 (3%) ............................................................................... 1.80 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) .............................................................................................................................................................. 1.20 

FY 2011 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 

Total Rate Per Hour—Holidays .................................................................................................................................................... 111.46 

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

2012 

Laboratory services Apportioned 

fee rate 

Holiday Rate: Projected Salaries @ 2.0 (double time).

FY 2011 Salaries @ 2.0 = [Projected FY 2010 Salaries ($30.00) + FY 2011 Pay Adjustment ($0.90)] × 2.0 .......................... $61.80 

FY 2012 Pay Adjustment = FY 2011 Salaries @ 2.0 ($61.80) × 0.03 (3%) ............................................................................... 1.85 

Benefits ......................................................................................................................................................................................... 6.99 

Operational Costs ......................................................................................................................................................................... 22.38 

Infrastructure Cost ........................................................................................................................................................................ 13.08 

Agency Overhead ......................................................................................................................................................................... 4.81 

FY 2010 Inflation (3.5%) .............................................................................................................................................................. 1.20 

FY 2011 Inflation (3.5%) .............................................................................................................................................................. 1.20 

FY 2012 Inflation (3.5%) = [Costs excluding infrastructure and payroll = $34.18] × 0.035 ........................................................ 1.20 


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

2012—Continued 

Laboratory services Apportioned 

fee rate 

Total Rate Per Hour—Holidays .................................................................................................................................................... 114.51 

Executive Order 12866 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866; and, 

therefore, has not been reviewed by the 

Office of Management and Budget 

(OMB). 

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. There are no 

administrative procedures which must 

be exhausted prior to any judicial 

challenge to this rule or the application 

of its provisions. 

Regulatory Flexibility Act 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601–612) AMS has considered 

the economic impact of this action on 

small entities and has determined that 

its implementation will not have a 

significant economic impact on a 

substantial number of small businesses. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such actions so 

that small businesses will not be 

disproportionately burdened. There are 

499 current stakeholders who 

voluntarily use the AMS laboratory 

services annually. Such users of services 

include food processors, handlers, 

growers, government agencies, and 

exporters. The majority of these firms, 

organizations, and individuals are small 

businesses under the criteria established 

by the Small Business Administration 

(13 CFR 121.201). The increases in 

annual hourly fee rates as stated will not 

significantly affect these small 

businesses as defined in the RFA 

because this is a voluntary program and 

the costs to each user would be 

proportional to their use of laboratory 

services each year. Any decision by the 

current stakeholders to discontinue the 

use of the AMS laboratory services 

because of increased fees would not 

hinder the food processors or industry 

members from marketing their products, 

since stakeholders may contract for 

services with other government agencies 

or private laboratories. The AMS 

laboratory testing programs are 

voluntary, user fee services, conducted 

under the authority of the AMA. 

The AMA authorizes the Secretary of 

Agriculture to provide Federal 

analytical testing services that facilitate 

marketing and trade with the financial 

necessity 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-fee-supported 

laboratory service programs to 

determine if the voluntary fees are 

adequate and reasonable to cover 

expenses. The most recent review 

determined that the existing hourly fee 

rates, which have been in place since 

March 30, 2007, will not generate 

sufficient revenue to recover annual 

operating costs of laboratory programs 

and will not maintain adequate end-ofyear operating reserve balances in FY 

2010, FY 2011, and FY 2012. This 

decline in revenues is due to lower 

numbers of samples and a reduction in 

the number of clients by 312 that is 

attributable mainly to a shift in usage 

patterns on the part of applicants for 

testing services and change to 

government programs. For example, 

several federal commodity purchasing 

programs are now relying heavily on 

vendor certification rather than 

government laboratory testing; a larger 

percentage of aflatoxin analyses and 

microbiological testing are performed by 

approved or designated private 

laboratories; and food and fiber product 

testing is decreasing due to changing 

importer country requirements. For 

analytical purposes, projected 

collections are based on calculations 

using an effective date of October 1, 

2009 for the proposed fiscal year 2010 

user fees. Without a fee increase, FY 

2010 revenues are projected at 

$6,421,000; obligations are projected at 

$6,676,000, for a fiscal year loss of 

$256,000 and a depleted trust fund to an 

8.0 month end-of-year reserve balance of 

$4,449,000. In fiscal years 2011 and 

2012 additional operating losses for the 

laboratories are projected. If there are no 

proposed hourly rate changes agreed 

upon, the FY 2011 and FY 2012 end-ofyear reserve balances will decline from 

$4,449,000 to $3,984,000 (6.9 months 

operating reserve), and $3,568,000 (6.0 

months operating reserve), respectively. 

However, a minimum operating reserve 

of 11.1 months or an end-of-year trust 

fund balance amount of $6,173,000 is 

needed for FY 2010 based on the current 

shut down analysis and prior 

experiences, including the permanent 

closing of the S&T Midwestern 

Laboratory in Chicago, Illinois on June 

30, 2000. The AMS estimates that the 

raised hourly fee rates in this proposed 

rule will yield $1,228,000 overall in 

additional laboratory testing program 

revenues during FY 2010. This will 

increase the end-of-year available 

capital assets in the trust fund from 

$4,704,000 or 8.8 months of permitted 

operations in FY 2009 to $5,677,000 or 

10.2 months of permitted operations in 

FY 2010. By forgoing the purchase of 

new models of analytical equipment 

and instruments employing up to date 

technology to replace aging ones in the 

laboratories, a $500,000 savings in the 

costs of operations could take place in 

FY 2010. This will enable AMS to 

replenish program reserves to an 11 

month level, $6,177,000, for FY 2010 

that is called for by Agency policy and 

prudent financial management. With 

increased revenue from the hourly rate 

changes, program reserves can be 

maintained at this level in subsequent 

fiscal years 2011 and 2012. 

This proposed action will raise the 

fees charged to users of AMS laboratory 

program services. The Agency expects 

this rule will yield revised revenues at 

an estimated $7,649,000 in FY 2010, 

$7,986,000 in FY 2011, and $8,211,000 

in FY 2012 attributable to the increased 

fee changes to cover the full cost of 

routine laboratory services, appeal 

requests, overtime, and legal holiday 

services for Science and Technology 

customers and other program 

stakeholders. This proposal would 

allow AMS to 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 stakeholders by delivering 

scientific and analytical support 

services to the diversified agricultural 

and food processing community and 

provides a valuable resource for those 


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54926 Federal Register / Vol. 74, No. 205 / Monday, October 26, 2009 / Proposed Rules 

businesses and industries that wish to 

use a USDA shield. By proposing a three 

year fee increase over FYs 2010, 2011, 

and 2012 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. 

Finally, this proposed rule updates 

S&T Programs’ facility addresses. It 

provides clarification that results of 

analyses and laboratory determinations 

provided by AMS laboratory services 

apply to the submitted sample only and 

do not represent the quality, condition 

or disposition of the lot from which the 

sample was derived. 

Paperwork Reduction Act 

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 any one 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 any one year. 

Thus, this rule is not subject to the 

requirements of section 202 and 205 of 

UMRA. 

Comments 

A thirty day comment period is 

provided for interested persons to 

comment on this proposed action. All 

comments received by November 25, 

2009 will be considered. Thirty days is 

deemed appropriate because it’s 

preferable to have any fee increase, if 

adopted, to be in place as close as 

possible to the beginning of the 2010 

fiscal year, October 1, 2009. 

List of Subjects in 7 CFR Part 91 

Administrative practice and 

procedure, Agricultural commodities, 

Laboratories, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, the Agricultural Marketing 

Service proposes to amend part 91 of 

Title 7, chapter I, subchapter E, of the 

Code of Federal Regulations as follows: 

PART 91—SERVICES AND GENERAL 

INFORMATION 

1. The authority citation 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 for composition, chemical, 

physical, microbiological and 

biomolecular (DNA-based) tests and 

laboratory analyses performed on fruits 

and vegetables, poultry, dairy and dairy 

products, juices, fish, vegetative seed 

and oilseed, honey, 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 Specialty 

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, olive oil, 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, Science Specialty 

Laboratory, 6567 Chancey Mill Road, 

Blakely, Georgia 39823–2785. 

(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) 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 


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Federal Register / Vol. 74, No. 205 / Monday, October 26, 2009 / Proposed Rules 54927 

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. 

(8) 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 0604 South Agriculture 

Bldg., 1400 Independence Ave., SW., 

Washington, DC 20250. 

(9) 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. 

(10) 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. Section 91.24 is revised to read as 

follows: 

§ 91.24 Reports of test results. 

(a) Results of analyses are provided, 

in writing, by facsimile, by e-mail or 

other electronic means to the applicant. 

(b) Results of analyses and laboratory 

determinations provided by AMS 

laboratory services apply to the 

submitted sample only and do not 

represent the quality, condition or 

disposition of the lot from which the 

sample was derived. 

(c) Applicants may call the 

appropriate Science and Technology 

laboratory for interim or final results 

prior to issuance of the formal report. 

The advance results may be telegraphed, 

e-mailed, telephoned, or sent by 

facsimile to the applicant. Any 

additional expense for advance 

information shall be borne by the 

requesting party. 

(d) A letter report in lieu of an official 

certificate of analysis may be issued by 

a laboratory representative when such 

action appears to be more suitable than 

a certificate: Provided, that, issuance of 

such report is approved by the Deputy 

Administrator. 

4. Section 91.25 is revised to read as 

follows: 

§ 91.25 Certificate requirements. 

Certificates of analysis and other 

memoranda concerning laboratory 

service and the reporting of results 

should have the following requirements: 

(a) Certificates of analysis shall be on 

standard printed forms approved by the 

Deputy Administrator; 

(b) Shall be printed in English; 

(c) Shall have results typewritten, 

computer generated, or handwritten in 

ink and shall be clearly legible; 

(d) Shall show the results of 

laboratory tests in a uniform, accurate, 

and concise manner with abbreviations 

identified on the form; 

(e) Shall show the information 

required by §§ 91.26–91.29; and 

(f) Show only such other information 

and statements of fact as are provided in 

the instructions authorized by the 

Deputy Administrator. 

5. Section 91.37 is 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 $78.00 per hour in 

fiscal year 2010, $81.00 per hour in 

fiscal year 2011, and $83.00 per hour in 

fiscal year 2012. 

(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 Directors 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. 

6. Section 91.38 is revised to read as 

follows: 

§ 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 $93.00 per hour in 

fiscal year 2010, $96.00 per hour in 

fiscal year 2011, and $99.00 per hour in 

fiscal year 2012. 

(b) The appeal fee will not be waived 

for any reason if analytical testing was 

completed in addition to the original 

analysis. 


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54928 Federal Register / Vol. 74, No. 205 / Monday, October 26, 2009 / Proposed Rules 

7. Section 91.39 is revised to read as 

follows: 

§ 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 

$93.00 per hour in fiscal year 2010, 

$96.00 per hour in fiscal year 2011, and 

$99.00 per hour in fiscal year 2012. The 

laboratory analysis rate for Federal 

holiday or designed holiday service is 

$108.00 per hour in fiscal year 2010, 

$111.00 per hour in fiscal year 2011, 

and $115.00 per hour in fiscal year 

2012. 

(b) Information on legal holidays or 

what constitutes overtime service at a 

particular Science and Technology 

laboratory is available from the 

Laboratory Director or facility manager. 

Dated: October 20, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–25632 Filed 10–23–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Grain Inspection, Packers and 

Stockyards Administration 

9 CFR Part 206 

RIN 0580–AB06 

Swine Contract Library 

AGENCY: Grain Inspection, Packers and 

Stockyards Administration, USDA. 

ACTION: Proposed rule. 

SUMMARY: On August 11, 2003, the Grain 

Inspection, Packers and Stockyards 

Administration (GIPSA) implemented 

new Subtitle B of Title II of the Packers 

and Stockyards Act which was added by 

the Livestock Mandatory Reporting Act 

of 1999 (1999 Act), by establishing the 

Swine Contract Library (SCL). The 

statutory authority for the library lapsed 

on September 30, 2005. On October 5, 

2006, the Livestock Mandatory 

Reporting Reauthorization Act 

(Reauthorization Act) reauthorized the 

1999 Act until September 30, 2010, and 

also amended the swine reporting 

requirements of the 1999 Act. This 

proposed rulemaking would re-establish 

the regulatory authority for the library’s 

continued operation and incorporate 

certain changes contained within the 

Reauthorization Act that impact the 

SCL, as well as make other changes to 

enhance the library’s overall 

effectiveness and efficiency in response 

to input from regulated entities and the 

public. We also intend to request a 3- 

year extension of and revision to the 

currently approved information 

collection in support of the reporting 

and recordkeeping requirements for the 

SCL program. This approval is required 

under the Paperwork Reduction Act. 

DATES: We will consider comments we 

receive by December 28, 2009. 

ADDRESSES: We invite you to submit 

comments on this proposed rule. You 

may submit comments by any of the 

following methods: 

• E-Mail: comments.gipsa@usda.gov. 

• Mail: Tess Butler, GIPSA, USDA, 

1400 Independence Avenue, SW., Room 

1643–S, Washington, DC 20250–3604. 

• Fax: (202) 690–2173. 

• Hand Deliver or Courier: Tess 

Butler, GIPSA, USDA, 1400 

Independence Avenue, SW., Room 

1643–S, Washington, DC 20250–3604. 

• Internet: Go to http:// 

www.regulation.gov and follow the online instructions. 

Instructions: All comments should 

make reference to the date and page 

number of this issue of the Federal 

Register. Regulatory analyses and other 

documents relating to this action will be 

available for public inspection in Room 

1643–S, 1400 Independence Avenue, 

SW., Washington, DC 20250–3604, 

during regular business hours (7 CFR 

1.27(b)). Please call a member of the 

GIPSA Management Support Staff at 

(202) 720–7486 to view the comments 

reviewed. 

FOR FURTHER INFORMATION CONTACT: S. 

Brett Offutt, Director, Policy and 

Litigation Division, P&SP, GIPSA, 1400 

Independence Ave., SW., Washington, 

DC 20250, (202) 720–7363, or via E-mail 

at s.brett.offutt@usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

GIPSA is responsible for the 

enforcement of the Packers and 

Stockyards Act of 1921 (7 U.S.C. 181 et 

seq.) (P&S Act or Act). Under authority 

delegated to GIPSA by the Secretary of 

Agriculture (Secretary) in Section 407(a) 

of the P&S Act (7 U.S.C. 228), we are 

authorized to create regulations 

necessary to carry out the provisions of 

the Act. 

The 1999 Act (Pub. L. 106–78) 

amended Title II of the P&S Act to 

include Subtitle B—Swine Packer 

Marketing Contracts. The 1999 Act 

mandated the creation and maintenance 

of a library of marketing contracts 

offered by certain packers to producers 

for the purchase of swine. To implement 

this legislation, GIPSA established the 

SCL and promulgated SCL regulations 

(9 CFR Part 206) requiring that packers, 

as defined in Subtitle B, Title II, of the 

P&S Act, file example marketing 

contracts with GIPSA along with 

monthly estimates of the number of 

swine to be delivered under contract. 

GIPSA compiles this information and 

makes summary reports available to the 

public. 

On October 22, 2004, the 1999 Act 

expired and was not reauthorized until 

December 3, 2004 (Pub. L. 108–444). 

Authority for the 1999 Act was 

extended, however, to September 30, 

2005. The 1999 Act lapsed again in 2005 

and was reauthorized and amended on 

October 5, 2006, when the 

Reauthorization Act (Pub. L. 109–296) 

was signed into law. The 1999 Act is 

scheduled to once again expire on 

September 30, 2010. 

When the 1999 Act expired in 

October 2004, GIPSA asked swine 

packers to continue to comply with the 

SCL regulations voluntarily. With the 

information submitted voluntarily by 

packers, GIPSA has continued to make 

summary reports available to the public. 

This proposed rule would re-establish 

authority for the SCL regulations (9 CFR 

Part 206) by amending the regulations’ 

authority citation to include Subtitle B 

of Title II of the P&S Act (7 U.S.C. 198– 

198b). In addition to amending the SCL 

regulations to make them consistent 

with the Reauthorization Act, we would 

also amend the SCL regulations to 

incorporate suggestions received from 

the public and regulated entities. 

Specifically, we propose to: 

(1) Revise the definition of ‘‘packer’’ 

to be consistent with the 

Reauthorization Act; 

(2) Revise the definitions of several 

contract types; 

(3) Add definitions of terms used in 

several contract types to describe the 


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