FGIS To Offer Official Pesticide Residue Testing

SUMMARY: This rule revises the regulations under the United States

Grain Standards Act (USGSA), as amended, and establishes the fee for a

new service offered by the Federal Grain Inspection Service (FGIS).

This service will provide for an official pesticide residue testing

program for 29 pesticides in wheat.

EFFECTIVE DATE: This regulation is effective November 18, 1994.

FOR FURTHER INFORMATION CONTACT: George Wollam, FGIS, USDA, Room 0623

South Building, (202) 720-0292.

Executive Order 12866

This rule has been determined to be significant for purposes of

Executive Order 12866 and, therefore, has been reviewed by OMB.

Major importers of U.S. wheat such as Japan, China, Mexico, and

Korea have indicated a strong interest in having U.S. grain officially

tested for the presence of specific pesticide residues. FGIS will be

offering certification of these specific pesticide levels for export

and domestic wheat. The anticipated volume of requests for this service

is 500 samples per year or 10 per week. This represents approximately

$100,000 per year, which will reimburse the costs of providing the

service.

FGIS has provided official pesticide residue testing under the

Agricultural Marketing Act since the early 1980's. Producers, grain

handlers, processors, and foreign buyers of U.S. grain expect FGIS to

provide an impartial assessment of grain quality as required by its

legislative authority. FGIS, in turn, responds to industry requests by

developing testing procedures and soliciting comments regarding the

specific action before implementation. It is participants in the grain

industry who determine who should conduct the analysis based on the

documentation needed to fulfill contract requirements established by

the grain market.

Under these circumstances, the Administrator of the Federal Grain

Inspection Service has determined that this proposed action will not

have a significant economic impact on a substantial number of small

entities.

Executive Order 12778

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This action is not intended to have retroactive

effect. The USGSA provides in Section 87g that no State or subdivision

may require or impose any requirements or restrictions concerning the

inspection, weighing, or description of grain under the Act. This final

rule will not preempt any State or local laws, regulations, 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 the provisions of this rule.

Regulatory Flexibility Act Certification

David Shipman, Acting Administrator, FGIS, has determined that this

final rule will 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 most users of the official inspection

and weighing services and those entities that perform these services do

not meet the requirements for small entities.

Information Collection Requirements

In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.

chapter 35), the information collection requirements contained in part

800 have been previously approved by OMB under control number 0580-

0013.

Background

On February 28, 1994, FGIS published in the Federal Register (59 FR

9424) a proposed rule entitled ``Fees for Official Pesticide Residue

Testing.'' These fees were established for a new service to provide

official pesticide residue determinations for 29 pesticides in wheat.

Since the early 1980's, FGIS has provided official service under

the Agricultural Marketing Act (AMA) to test grain and processed grain

products for three pesticide residues: carbon tetrachloride, methyl

bromide, and ethylene dibromide. This service is available upon request

from the FGIS Commodity Testing Laboratory in Beltsville, MD.

FGIS is expanding its pesticide residue testing program to include

testing wheat for 29 additional pesticides under the authority of the

USGSA. The service will be performed on a request basis; it will not be

required for either domestic or export shipments. All samples will be

tested at the FGIS Technical Center in Kansas City, MO. A minimum of

500 grams of wheat will be required for testing. The residues (routine

compounds) that will be certified are as follows: aldrin; azinphos-

methyl; alpha-BHC; beta-BHC; delta-BHC; carbofuran; chlorpyrifos;

chlorothalonil; chlorpyrifos-methyl; p,p'-DDD; p,p'-DDE; 3-p,p'-DDT;

diclofop-methyl; dieldrin; dimethoate; endosulfan; endrin;

esfenvalerate; fenitrothion; fenthion; folpet; lindane; malathion;

methidathion; methoxychlor; parathion; parathion-methyl; pirimiphos-

methyl; and triallate. These compounds will be analyzed by gas

chromatography/mass spectrometry. Laboratory analytical results will be

provided to the applicant as soon as practicable. Generally, the

testing requires a minimum of 48 hours.

The fees will be set forth in Section 800.71(a), Schedule A. The

proposed fee is $200 for each sample tested during a regular workday

and $300 for each sample tested during a nonregular workday. The USGSA,

as amended, (7 U.S.C. 71 et seq.) provides that FGIS charge and collect

reasonable fees that cover its estimated cost of performing official

inspection, weighing, reinspection, and appeal services. The fees are

to cover, as nearly as practicable, the FGIS costs for performance of

these official services, including related administrative and

supervisory costs. The testing fee does not include charges for

sampling. Sampling service fees, if required, will be assessed in

accordance with the sampling rates in Section 800.71(a), Schedule A.

Testing for additional residues (special compounds) within FGIS

capabilities will be charged at a proposed rate of $100 per hour during

a regular workday and $150 per hour during a non regular workday.

Testing of residues in other grains, oilseeds, and commodities may be

provided as a service at a later date.

Major importers of U.S. wheat such as Japan, China, Mexico, and

Korea have indicated a strong interest in having U.S. grain officially

tested for the presence of specific pesticide residues. FGIS will be

offering certification of these specific pesticide levels for export

and domestic wheat. The anticipated volume of requests for this service

is 500 samples per year or 10 per week. This represents approximately

$100,000 per year, which will reimburse the costs of providing the

service.

Comment Review

During the 30-day comment period, three comments were filed in

response to the proposal. The two comments in support of the proposal

were received from a grain industry association and a state department

of agriculture. A third comment in opposition to the proposal was filed

by an independent (private) laboratory association and was received

after the close of the comment period.

One comment in support of the proposal encouraged FGIS to use

statistically valid quality control methods in offering pesticide

testing. The commentor also requested that the testing not be

mandatory. In addition, the commentor asked about the memorandum of

understanding between FGIS and the Food and Drug Administration (FDA).

In response to the comment, the testing service will be performed on a

request basis; it will not be required for either domestic or export

wheat shipments. Grain samples that have been officially sampled and

determined to contain violative levels of pesticide residues will be

reported to the FDA.

Another comment in support of the proposal stated that the service

would help to strengthen the marketing of U.S. wheat abroad and the

service would meet importers' needs for more thorough testing for

pesticide residues. The commentor also pointed out that importers often

request official testing rather than what is offered by private

laboratories and that only FGIS would be able to provide a chain-of-

custody for the tested products from sampling to analysis.

The third comment was received after the 30-day comment period.

This comment objected to FGIS testing on the grounds that the

government would be competing with private laboratories. FGIS has

provided official pesticide residue testing under the AMA on pesticide

residue since the early 1980's. Producers, grain handlers, processors,

and foreign buyers of U.S. grain expect FGIS to provide impartial

assessment of grain quality as required by its legislative authority.

FGIS, is turn, responds to industry requests by developing testing

procedures and soliciting comments regarding the specific action before

implementation. It is participants in the grain industry who ultimately

determine who will conduct the analysis (FGIS or independent lab) based

on documentation needed to fulfill contract requirements established by

the grain market.

Final Action

Accordingly, FGIS is revising part 800.71(a), Schedule A, of the

regulations to establish new fees for testing pesticide residues in

wheat.

List of Subjects in 7 CFR Part 800

Administrative practice and procedure, Grain. For reasons set out

in the preamble, 7 CFR part 800 is amended as follows:

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. Section 800.71(a), Schedule A, is revised to read as follows:

Sec. 800.71 Fees assessed by the Service.

(a) * * *

Schedule A.--Fees for Official Inspection, Weighing, and Appeal

Inspection Services Performed in the United States\1\

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

Regular Non regular

Inspection and weighing service (bulk or workday workday

sacked grain) (Monday to (Sunday and

Saturday) Holiday)

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

(1) Original inspection and official

weighing:\2\

(i) Contract (per hour per service

representative).......................... $31.50 $43.10

(ii) Noncontract (per hour per service

representative).......................... 41.90 57.00

(2) Reinspection, appeal inspection, Board

appeal inspection, and review of weighing

services:\3\\4\

(i) Grading service:

(A) Grade and factors (per sample).... 61.10 79.50

(B) Protein test (per sample)......... 15.30 19.90

(C) Factor determination (per factor). 30.60 39.75

(D) Vomitoxin test (per test):

Qualitative....................... 35.00 44.00

Quantitative...................... 40.00 50.00

(ii) Sampling services (per hour per

service representative).................. 61.10 79.50

(iii) Review of weighing service (per hour

per service representative).............. 61.10 79.50

(3) Extra copies of certificates (per copy)... 3.00 3.00

(4) Official track scale testing service...... 44.00 59.90

(5) Pesticide residue testing:\5\

(A) Routine compounds (per sample).... 200.00 300.00

(B) Special compounds (per hour per

service representative).................. 100.00 150.00

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

\1\Official inspection and weighing services include but are not limited

to: grading, weighing, sampling, stowage examination, equipment

testing, scale testing and certification, test weight reverification,

evaluation of inspection and weighing equipment, demonstrating

official inspection and weighing functions, furnishing standard

illustrations, and certifying inspection and weighing results.

\2\For vomitoxin tests, a charge of $7.50 per qualitative test and a

charge of $12.00 per quantitative test will be assessed in addition to

the applicable hourly rate for original inspection service.

\3\Fees for reinspection and appeal inspection services performed at

locations where FGIS is providing original inspection service shall be

assessed at the applicable contract or noncontract hourly rate as the

original inspection, except that for vomitoxin tests, a charge of

$7.50 per qualitative test and a charge of $12.00 per quantitative

test will be assessed in addition to the applicable hourly rate. If

additional personnel are required to perform the reinspection or

appeal inspection service, the applicant will be assessed the

noncontract original inspection hourly fee.

\4\If at the request of FGIS a file sample is located and forwarded by

an agency for an official appeal, the agency may, upon request, be

reimbursed at the rate of $2.50 per sample by the FGIS.

\5\Testing fees are applicable to any level of service (original

inspection, reinspection, appeal inspection, or Board appeal

inspection) and do not include a sampling service fee which, if

applicable, will be assessed separately in accordance with the fees in

this schedule.

* * * * *

Patricia A. Jensen,

Acting Assistant Secretary, Marketing and Inspection Services.

[FR Doc. 94-25748 Filed 10-18-94; 8:45 am]

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