2014-09655. Scales; Accurate Weights, Repairs, Adjustments or Replacements After Inspection

AGENCY:

Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION:

Direct final rule.

SUMMARY:

The Grain Inspection, Packers and Stockyards Administration (GIPSA) Packers and Stockyards Program (PSP) is incorporating by reference “2013 edition of the NIST Handbook 44” and to require that the scales used by stockyard owner, market agencies, dealers, packers, and live poultry dealers to weigh livestock, livestock carcasses, live poultry, or feed for the purpose of purchase, sales acquisitions, payment, or settlement meet applicable requirements of the 2013 edition of the NIST Handbook 44.

DATES:

This rule is effective June 30, 2014. The incorporation by reference of certain publications in this rule is approved by the Director of the Federal Register as of June 30, 2014. Comments are due May 29, 2014. If adverse comments are received, GIPSA will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES:

We invite you to submit comments on this direct final rule by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: Send hardcopy written comments to Irene Omade, GIPSA, USDA, 1400 Independence Avenue SW., Room 2530-S, Washington, DC 20250.
• Hand Delivery or Courier: Deliver comments to Irene Omade, GIPSA, USDA, 1400 Independence Avenue SW., Room 2530-S, Washington, DC 20250.
• Fax: Send comments by facsimile transmission to: [phone].

Instructions: All comments will become a matter of public record and should be identified as “NIST Handbook 44 IBF Comments,” making reference to the date and page number of this issue of the Federal Register. Comments will be available for public inspection at http://www.regulations.gov and in the above office during regular business hours (7 CFR 1.27(b)). Please contact the GIPSA Management and Budget Services at [phone] to make an appointment to read the comments received.

FOR FURTHER INFORMATION CONTACT:

S. Brett Offutt, Director, Policy and Litigation Division by Email at [e-mail], or by telephone at [phone].

SUPPLEMENTARY INFORMATION:

Background

The Grain Inspection, Packers and Stockyards Administration (GIPSA) enforces the Packers and Stockyards Act (P&S Act) and those regulations necessary to carry out provisions of the P&S Act. The regulated entities are stockyard owners, swine contractors, market agencies, dealers, packers, and live poultry dealers. GIPSA issued regulations covering devices that regulated entities use for weighing and grading livestock and poultry. The purpose for these regulations is to ensure fairness and accuracy in the determination of prices the regulated entities pay for livestock and poultry.

Title 9, CFR 201.71(a) incorporates by reference the National Institute of Standards and Technology (NIST) Handbook 44 to regulate devices used by regulated entities to weigh or grade livestock or poultry. Currently, 9 CFR 201.71(a) incorporates by reference the 2009 edition of NIST Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices.” The 2009 edition included the “tentative” status of code to regulate the weighing and measuring devices used by regulated entities. In July 2012, the National Conference on Weights and Measures took action to change the “tentative” code to “permanent”. Since the “tentative” code has become “permanent” in the 2013 edition of Handbook 44, effective January 1, 2013, GIPSA is amending 9 CFR 201.71(a) to incorporate by reference the 2013 edition of Handbook 44.

Direct Final Action

Pursuant to 5 U.S.C 553, it is found and determined upon good cause that it is impracticable, unnecessary, and contrary to public interest to give preliminary notice prior to putting this direct final rule in effect because GIPSA regularly updates this section of the P&S Act regulations to incorporate by reference NIST Handbook 44. Further, GIPSA views this action as noncontroversial and anticipates no adverse public comment. This rule will be effective, as published in this document, 30 days after the date of publication in the Federal Register, unless GIPSA receives written adverse comments or written notice of intent to submit adverse comments within 30 days of the date of publication of this rule in the Federal Register. Adverse comments are considered to be those comments that suggest the rule should not be adopted or suggest the rule should be changed.

If GIPSA receives written adverse comments or written notice of intent to submit adverse comments, we will publish a notice in the Federal Register withdrawing this rule before the effective date. GIPSA will then publish a proposed rule for public comment. Following the close of that comment period, the comments will be considered thoughtfully, and a final rule addressing the comments will be published.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601-612), GIPSA has determined that this rule will not have a significant economic impact on a substantial number of small entities. GIPSA has determined that most regulated entities are complying with the current 2013 edition of Handbook 44 since State weights and measures departments already impose the standards. Since regulated entities are required under States law to comply with NIST Handbook 44, there are no new costs or burden to comply with those standards.

Executive Order 12988

This direct final rule has been reviewed under Executive Order 12988, Civil Justice Reform. These actions are not intended to have retroactive effect. This direct final rule would not preempt any State or local laws, or 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 direct final rule.

Paperwork Reduction Act

This rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). It does not involve collection of new or additional information by the federal government.

E-Government Act Compliance

GIPSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

List of Subjects in 7 CFR Part 201

• Swine
• Hogs
• Incorporation by reference
• Livestock
• Measurement standards

For reasons set forth in the preamble, 9 CFR part 201 is amended as follows:

PART 201—REGULATIONS UNDER THE PACKERS AND STOCKYARDS ACT

1. The authority citation for part 201 continues to read as follows:

Authority: 7 U.S.C. 181-229c.

2. In § 201.71, paragraph (a) is revised to read as follows:

§ 201.71

Scales; accurate weights, repairs, adjustments or replacements after inspection.

(a) All scales used by stockyard owners, swine contractors, market agencies, dealers, packers, and live poultry dealers to weigh livestock, livestock carcasses, live poultry, or feed for the purpose of purchase, sale acquisition, payment, or settlement shall be installed, maintained, and operated to ensure accurate weights. Such scales shall meet applicable requirements contained in section 5.59, Electronic Livestock, Meat, and Poultry Evaluation Systems and/or Devices, pages 5-85 and 5-86 of the “U.S. Department of Commerce, National Institute of Standards and Technology, Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices (NIST Handbook 44), 2013 edition” which is hereby incorporated by reference. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as they exist on the date of approval and a notice of any change in these materials will be published in the Federal Register. All approved material is available for inspection at USDA, GIPSA, P&SP, 1400 Independence Ave. SW., Washington, DC 20250, 202-720-7363 and is for sale by the National Conference of Weights and Measures (NCWM), 1135 M Street, Suite 110, Lincoln, Nebraska, 68508. Information on this material may be obtained from NCWM by calling 402-434-4880, by emailing [e-mail], or on the Internet at http://www.nist.gov/​owm. It is also available for inspection at the National Archives and Records Administration (NARA). For more information on the availability of this material at NARA, call 202-741-6030 or go to http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

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Larry Mitchell,

Administrator, Grain Inspection, Packers and Stockyards Administration.