[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Rules and Regulations]
[Pages 45676-45677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22953]
[[Page 45676]]
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DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
7 CFR Part 800
RIN 0580-AA55
Official/Unofficial Weighing Service
AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.
ACTION: Final rule.
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SUMMARY: The Grain Inspection, Packers and Stockyards Administration
(GIPSA) is amending the General Regulations under the Untied States
Grain Standards Act, as amended (USGSA), to allow official agencies to
provide both official and unofficial weighing within their assigned
area of responsibility, but not on the same mode of conveyance at the
same facility. This will provide agencies with more flexibility in
providing the weighing services needed by the grain industry.
Currently, agencies designated by GIPSA to provide official weighing
services cannot provide similar unofficial services.
EFFECTIVE DATE: August 28, 1998.
FOR FURTHER INFORMATION CONTACT:
George Wollam, GIPSA, USDA, STOP 3649, 1400 Independence Avenue, SW,
Washington, DC 20250, (202) 720-0292 or FAX (202) 720-4628.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be not significant for the purpose
of Executive Order 12866 and, therefore, has not been reviewed by OMB.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This action is not intended to have a retroactive
effect. The USGSA provides in 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. Otherwise,
this rule will not preempt any State or local laws, regulations, or
policies unless they present irreconcilable conflict with this rule.
There are no administrative procedures which must be exhausted prior to
any judicial challenge to the provisions of this rule.
Effect on Small Entities
James R. Baker, Administrator, GIPSA, has determined that this 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.). This rule will allow official agencies to provide both
official and unofficial weighing services within their assigned area of
responsibility, but not on the same mode of conveyance at the same
facility. Currently, official agencies designated to provide official
weighing services cannot provide similar unofficial services. There are
presently 62 agencies designated by GIPSA. Of the 62 agencies, 15 are
designated to perform official weighing services; 7 of the 15 are State
agencies. The remaining 47 official agencies could provide unofficial
weighing services.
Nine official agencies have been allowed by GIPSA to perform both
official weighing and unofficial weighing in addition to providing
official inspection services. Most of these agencies would be
considered small entities under Small Business Administration criteria.
Agencies designated to provide official services will be afforded more
flexibility in delivering the weighing services needed by the domestic
grain market. Existing official agencies not designated to perform
official weighing services can continue to provide unofficial weighing
services. While the extent to which official agencies will choose to
provide unofficial services is difficult to quantify and may depend
upon many variables, it is believed that this rule will have a
beneficial effect on these agencies and the grain industry as a whole.
Information Collection and Recordkeeping Requirements
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection and record keeping requirements
in Part 800 have been approved previously by OMB and assigned OMB No.
0580-0013.
Background
On March 30, 1998, GIPSA published a proposed rule in the Federal
Register (60 FR 15104) which would allow official agencies to provide
both official and unofficial weighing within their assigned area of
responsibility, but not on the same mode of conveyance at the same
facility.
Prior to the March 30, 1998, proposal, a direct final rule was
published on August 2, 1995 (60 FR 39242), which notified the public of
amendments to those regulations that prohibit official agencies from
providing official weighing service when they provide similar
unofficial service. GIPSA had planned to allow agencies to do both
official and unofficial weighing within their assigned areas, but not
at the same facility. Two written adverse comments in response to the
direct final rule were received. One commenter noted that GIPSA did not
allow official agencies designated to perform both official weighing
services and unofficial weighing because of possible confusion between
the two; that the proposed rule was an attempt by a Federal agency to
be in direct competition with the private sector; and questioned
whether there was a lack of supervising agencies in the weighing area.
The other commenter also disagreed that there was a decrease in the
availability of unofficial weighing supervision services and expressed
concern regarding intrusion by a Federal agency into the private
sector.
Initially, GIPSA did not allow agencies to provide both types of
service because confusion might result on the part of the grain
industry and the official agencies themselves as to which type of
service an official agency was providing. GIPSA reevaluated this policy
as it applies to weighing and evaluated the case-by-case situations
where it has been allowed and found that confusion has not been a
factor when GIPSA has separated official and unofficial weighing by not
allowing agencies to provide both types of service at the same
facility. The requirements for performing official weighing are easily
distinguishable from unofficial weighing. Official weighing requires
that: (1) Scales be tested by GIPSA; (2) designated agencies follow
GIPSA-prescribed procedures to maintain proper operation and accurate
weighing; and (3) designated agencies issue GIPSA-approved official
grain weight certificates certifying the accuracy of weighing. Since
official and unofficial weighing services have distinct requirements,
designated agencies should have little problem in maintaining the
separation of official and unofficial weighing, as long as it is not on
the same mode of conveyance. In addition, GIPSA oversight conducted by
the field offices and appropriate headquarters units should be able to
detect any problems arising from the change. This action merely allows
the users to choose what service they may need at any given time.
Although GIPSA, for the above reasons, disagreed with the adverse
comments received as a result of the direct final rule, the direct
final rule was inadvertently not withdrawn prior to its effective date
as required by the direct final rule process. Consequently, a final
rule was published (60 FR 65236) on December 19, 1995, which reinstated
the regulations that were in effect prior to the effective date of the
direct final rule.
[[Page 45677]]
Designated agencies are agencies granted authority under the USGSA
to provide official inspection service, or Class X or Class Y weighing
services or both, at locations other than export port locations. Most
(88 percent) of these agencies are designated for inspection services
only. The reason is that before 1976, most grain inspection agencies
were already providing weighing as an additional service to grain
inspection. These agencies were affiliated with and supervised by the
then existing weighing and inspection bureaus under the direction of
the Association of American Railroads, local grain exchanges, boards of
trade, and various State programs. After the 1976 amendment to the
USGSA, weighing performed by the grain inspection agencies became
unofficial weighing. Most agencies continued their unofficial weighing
and applied for inspection designations only.
However, since 1976, many inspection and weighing bureaus, boards
of trade, and the Association of American Railroads have ceased
providing supervision of the unofficial weighing services. Unofficial
weighing services are currently still available from a variety of
industry sources, including many of the agencies already designated by
GIPSA for inspection services only.
However, we believe that there is a need for more access to Class X
or Class Y weighing services. If allowed to provide both types of
service, many more agencies who are now designated for inspection only
could also provide official weighing service. Generally, designated
agencies can provide Class X and Class Y weighing at a lower cost than
GIPSA field offices due to their proximity to the grain facilities.
Since 1991, after receiving official weighing requests in several
areas, GIPSA's Administrator (under Sec. 800.2 of the regulations) has
experimentally allowed designated official agencies to provide both
official and unofficial weighing.
Comment Review
GIPSA received one comment in response to its proposal in the March
30, 1998 Federal Register (60 FR 15104) to allow official agencies to
provide both official and unofficial weighing within their assigned
area of responsibility, but not on the same mode of conveyance at the
same facility. The commenter, a national association representing
grain, feed and processing companies, supports the proposed change to
allow official and unofficial weighing within their assigned areas but
not on the same mode of conveyance at the same facility. The commenter
believed that providing both types of service would not lead to
confusion in the marketplace because: (1) official agencies should have
little difficulty distinguishing between official and unofficial
weighing, and (2) GIPSA oversight conducted by the field offices and
appropriate headquarters units should be able to detect any problems
arising from the change.
It is found that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register (5 U.S.C. 533) because: (1) Implementation could be beneficial
to the agencies and the grain industry as a whole; (2) the effective
date will allow the agencies to be able to provide this service to
their customers at the beginning of any local harvest seasons.
Final Action
FGIS is amending the regulations to allow the official agencies to
provide official and unofficial weighing services in their assigned
areas of responsibility, but not on the same mode of conveyance at the
same location. This will allow the official agencies the flexibility in
delivering the weighing services needed by the domestic grain market.
List of Subjects in 7 CFR Part 800
Administrative practice and procedure, Conflict of interests,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements.
For reasons set forth in the preamble, 7 CFR Part 800 is amended as
follows:
Part 800 General Regulations
1. The authority citation for Part 800 continues to read as
follows:
Authority: Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C.
71 et seq.)
2. Section 800.76(a) is revised to read as follows:
Sec. 800.76 Prohibited services; restricted services.
(a) Prohibited services. No agency shall perform any inspection
function or provide any inspection service on the basis of unofficial
standards, procedures, factors, or criteria if the agency is designated
or authorized to perform the service or provide the service on an
official basis under the Act. No agency shall perform official and
unofficial weighing on the same mode of conveyance at the same
facility.
* * * * *
3. Section 800.186(c)(3) introductory text is revised to read as
follows:
Sec. 800.186 Standards of conduct.
* * * * *
(c) * * *
(3) Except as provided in Sec. 800.76(a), engage in any outside
(unofficial) work or activity that:
* * * * *
4. Section 800.196(g)(6)(ii) is revised to read as follows:
Sec. 800.196 Designations.
* * * * *
(g)* * *
(6)* * *
(ii) Unofficial activities. Except as provided in Sec. 800.76(a),
the agency or personnel employed by the agency shall not perform any
unofficial service that is the same as the official services covered by
the designation.
* * * * *
Dated: August 20, 1998.
James R. Baker,
Administrator.
[FR Doc. 98-22953 Filed 8-26-98; 8:45 am]
BILLING CODE 3410-EN-M
