Fresh Fruits, Vegetables and Other Products (Inspection, Certification, and Standards)

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 51

[Docket Number FV-93-302]

RIN 0581-ABO3

Fresh Fruits, Vegetables and Other Products (Inspection,

Certification, and Standards)

AGENCY: Agricultural\1\ Marketing Service, USDA.

\1\Among such other products are the following: Raw nuts;

Christmas trees and evergreens; flowers and flower bulbs; and onion

sets.

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ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise the regulations governing

inspection and certification for fresh fruits, vegetables and other

products by revising the fees charged for the inspection of these

products at destination markets and by clarifying other charge-related

regulations. The proposed fee increases are needed to offset the costs

of developing and maintaining U.S. grade standards for fresh fruits and

vegetables and to recover the costs of providing Federal fruit and

vegetable inspection service at destination markets. Regulations

regarding fees for inspection of small lots (fifty packages or less)

would be added to provide a fee commensurate with the level of effort

typically required to conduct such inspections. Finally, regulations

regarding charges for waiting time would be added and conditions

governing the applicability of dock-side inspection fees would be

clarified.

DATES: Comments must be postmarked or courier dated on or before March

28, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposal. Comments must be sent in duplicate to the

Office of the Branch Chief, Fresh Products Branch, Fruit and Vegetable

Division, Agricultural Marketing Service, U.S. Department of

Agriculture, P.O. Box 96456, room 2056 South Building, Washington, D.C.

20090-6456. Comments should make reference to the date and page number

of this issue of the Federal Register and will be made available for

public inspection in the above office during regular business hours.

FOR FURTHER INFORMATION CONTACT: Mr. Douglas Bailey, 202-720-5870.

SUPPLEMENTARY INFORMATION:

The Department is issuing this rule in conformance with Executive

Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. It is not intended to have a retroactive effect.

This rule would 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.

Pursuant to the requirements set forth in the Regulatory

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

Agricultural Marketing Service (AMS) has determined that this action

would not have a significant economic impact on a substantial number of

small entities. This proposed rule for the revision of the Regulations

governing inspection, certification and standards for fresh fruits,

vegetables and other products will not impose substantial direct

economic cost, recordkeeping, or personnel workload changes on small

entities, and will not alter the market share or competitive position

of these entities relative to large businesses.

The regulations were last revised in November 1992. The proposed

rule reflects fees needed to offset the cost of developing and

maintaining U.S. grade standards for fresh fruits and vegetables

previously funded through an appropriation and to recover the costs of

Federal fruit and vegetable inspection service at destination markets

rendered in accordance with the AMA of 1946.

In the Agriculture Appropriations Bill for fiscal year 1994,

Congress directed AMS to establish a user fee program, pursuant to 31

U.S.C. 9701, to recover the cost of developing, reviewing, and

maintaining agricultural commodity standards that describe product

quality attributes. This proposal would amend the schedule for fees and

charges for services rendered to users at destination markets to

recover the portion of the cost for fresh fruit and vegetable

standardization that is applicable to these users.

The AMA authorizes voluntary official inspection, grading, and

certification on a user-fee basis, of fresh fruits, vegetables, and

other products such as raw nuts, Christmas trees, and flowers. The AMA

provides that reasonable fees be collected from the user of the program

services to cover as nearly as practicable the costs of services

rendered. The program seeks to maintain an unobligated balance that is

at least equal to 4 months of operating expense. The unobligated

balance for the Federal inspection service at destination markets at

the end of fiscal year 1993 was 1.1 months of operating expense.

Approximately $240,000 in increases are expected in the cost the

service pays for General Services Administration office rent and

Federal Telecommunications Service, and a $120,000 increase is expected

for the cost of implementing a locality-based pay system in January

1994. The service plans to implement cost-cutting actions during fiscal

year 1994 that are expected to save approximately $350,000 each fiscal

year beginning in fiscal year 1995. These cost-cutting actions will

offset some of the expected increases in service costs; however,

further action is necessary to meet all rising costs and for the

program's unobligated balance to grow to the 4 month level necessary to

provide contingency funding.

AMS regularly reviews this program to determine if fees are

adequate. The last fee change was effective on November 12, 1992 (57 FR

48929). With the planned cost-cutting actions, but without a fee

increase, the unobligated balance of this program is expected to

decrease to seven-tenths of a month by the end of fiscal year 1994 and

to two-tenths of a month by the end of fiscal year 1995.

Based on the program's need to offset various rising expenses, to

increase its unobligated balance, and to incorporate user-fee funding

for standardization activities, AMS proposes to increase the fees for

destination market inspection services. Additionally, regulations would

be added or clarified to (1) establish a new inspection fee for 50

packages or less of the same product; (2) reflect the lower level of

effort typically required to inspect small lots compared to that

required for half carlot equivalent lots with 500 to 1,000 packages;

(3) charge for waiting time at the prevailing hourly rate when an

inspection is delayed because product is not available or readily

accessible; and (4) apply dock-side inspection fees to cases where the

applicant offers the product to AMS for inspection at the dock-side

facility but AMS chooses to inspect the product at another location.

The following table compares current fees and charges with proposed

fees and charges for fresh fruit and vegetable inspection as found in 7

CFR 51.38. Unless otherwise provided for by regulation or written

agreement between the applicant and the Administrator, the charges in

the schedule of fees as found in Sec. 51.38 are:

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Service Current Proposed

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Quality and condition inspections of one to four products each in

quantities of 51 or more packages and unloaded from the same land

or air conveyance:

Over a half carlot equivalent of each product................... $68................. $74

Half carlot equivalent or less of each product.................. 57.................. 62

For each additional lot of the same product..................... 11.................. 12

Condition inspections of one to four products each in quantities of

51 or more packages and unloaded from the same land or air

conveyance:

Over a half carlot equivalent of each product................... 57.................. 62

Half carlot equivalent or less of each product.................. 52.................. 57

For each additional lot of the same product..................... 11.................. 12

Inspections of five or more products each in quantities of 51 or

more packages and unloaded from the same land or air conveyance:

For the first five products..................................... 242................. 264

For each additional product..................................... 11.................. 37

For each additional lot of any product.......................... 11.................. 12

Inspections of products each in quantities of 50 or less packages

unloaded from the same land or air conveyance:

For each product................................................ 57 (52 for condition 37

only).

For each additional lot of any product.......................... 11.................. 12

Dock-side inspections of an individual product unloaded directly

from the same ship:

For each package weighing less than 15 pounds................... 1 cent.............. 1.1 cents

For each package weighing 15 to 29 pounds....................... 2 cents............. 2.2 cents

For each package weighing 30 or more pounds..................... 3 cents............. 3.3 cents

Minimum charge per individual product........................... 68.................. 74

Inspections performed for other purposes during the grader's 34.00 per hour...... 37.00 per hour

regularly scheduled work week.

Overtime or holiday premium rate for all inspections performed 17.00 per hour...... 18.50 per hour

outside the grader's regularly scheduled work week.

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List of Subjects in 7 CFR Part 51

Agricultural commodities, Food grades and standards, Fruits, Nuts,

Reporting and recordkeeping requirements, Vegetables.

For the reasons set forth in the preamble, 7 CFR part 51 is

proposed to be amended as follows:

PART 51--[AMENDED]

1. The authority citation for 7 CFR part 51 is revised to read as

follows:

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

2. Section 51.38 is revised to read as follows:

Sec. 51.38 Basis for fees and rates.

(a) When performing inspections of product unloaded directly from

land or air transportation, charges shall be determined on the

following basis:

(1) For products in quantities of 51 or more packages:

(i) Quality and condition inspection of 1 to 4 products unloaded

from the same conveyance:

(A) $74 for over a half carlot equivalent of an individual product.

(B) $62 for a half carlot equivalent or less of an individual

product.

(C) $12 for each additional lot identified on an inspection

certificate for the same product.

(ii) Condition only inspection of 1 to 4 products unloaded from the

same conveyance:

(A) $62 for over a half carlot equivalent of an individual product.

(B) $57 for a half carlot equivalent or less of an individual

product.

(C) $12 for each additional lot identified on an inspection

certificate for the same product.

(iii) Quality and condition inspection and/or condition only

inspection of 5 or more products unloaded from the same conveyance:

(A) $264 for the first 5 products.

(B) $37 for each additional product.

(C) $12 for each additional lot identified on an inspection

certificate for any of the products.

(2) For quality and condition inspection and/or condition only

inspection of products in quantities of 50 or less packages unloaded

from the same conveyance:

(i) $37 for each individual product.

(ii) $12 for each additional lot identified on an inspection

certificate for any product.

(b) When performing inspections of palletized products unloaded

directly from sea transportation or when palletized product is first

offered for inspection before being transported from the dock-side

facility, charges shall be determined on the following basis:

(1) On a package basis, with a minimum charge of $74 for each

product inspected, according to the following rates:

(i) 1.1 cents per package weighing less than 15 pounds;

(ii) 2.2 cents per package weighing 15 to 29 pounds; and

(iii) 3.3 cents per package weighing 30 or more pounds.

(2) On a carlot basis in accordance with Sec. 51.38(a) for products

in sea containers, or when product is first offered for inspection

after being transported from the dock-side facility. If palletized

products are not offered for inspection at dock-side, the carlot fees

in Sec. 51.38(a) shall apply.

(c) When performing inspections for Government agencies, or for

purposes other than those prescribed in the preceding paragraphs

including weight-only and freezing-only inspections, fees for

inspection shall be based on the time consumed by the grader in

connection with such inspections, computed at a rate of $37.00 an hour:

Provided, That:

(1) Charges for time shall be rounded to the nearest half hour;

(2) The minimum fee shall be two hours for weight-only inspections,

and one-half hour for other inspections;

(3) When weight certification is provided in addition to quality

and/or condition inspection, a one-hour charge shall be added to the

carlot fee.

(4) When inspections are performed to certify product compliance

for Defense Personnel Support Centers, the daily or weekly charge shall

be determined by multiplying the total hours consumed to conduct

inspections by the hourly rate. The daily or weekly charge shall be

prorated among applicants by multiplying the daily or weekly charge by

the percentage of product passed and/or failed for each applicant

during that day or week. Waiting time and overtime charges shall be

charged directly to the applicant responsible for their incurrence.

(d) When performing inspections at the request of the applicant

during periods which are outside the grader's regularly scheduled work

week, a charge for overtime or holiday work shall be made at the rate

of $18.50 per hour or portion thereof in addition to the carlot

equivalent fee, package charge, or hourly charge specified in this

subpart. Overtime or holiday charges for time shall be rounded to the

nearest half hour.

(e) When an inspection is delayed because product is not available

or readily accessible, a charge for waiting time shall be made at the

prevailing hourly rate in addition to the carlot equivalent fee,

package charge, or hourly charge specified in this subpart. Waiting

time shall be rounded to the nearest half hour.

Dated: February 15, 1994.

Lon Hatamiya,

Administrator.

[FR Doc. 94-4121 Filed 2-23-94; 8:45 am]

BILLING CODE 3410-02-P