03-14553. Official Performance and Procedural Requirements for Grain Weighing Equipment and Related Grain Handling Systems

AGENCY:

Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION:

Direct final rule.

SUMMARY:

In accordance with a periodic review of existing regulations, the Federal Grain Inspection Service (FGIS) of the Grain Inspection, Packers and Stockyards Administration (GIPSA) is amending the regulations under the United States Grain Standards Act, as amended, entitled Performance and Procedural Requirements for Grain Weighing Equipment and Related Grain Handling Systems. FGIS is incorporating by reference the applicable requirements of the National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” 2002 edition (Handbook 44 issued November 2001) and continues to adopt all of the requirements of NIST Handbook 105-1, “Specifications and Tolerances for Reference Standard Weights and Measures,” 1990 revision (Handbook 105-1). Currently, the 1994 Edition of Handbook 44 and the 1990 edition of Handbook 105-1 are incorporated into Part 802 by reference.

DATES:

This rule is effective September 8, 2003 without further action, unless adverse comments or written notice of intent to submit adverse comments are received by July 10, 2003. If adverse comments are received, GIPSA will publish a timely withdrawal of the rule in the Federal Register. The incorporation by reference of certain publications in this rule is approved by the Director of the Federal Register as of September 8, 2003.

ADDRESSES:

Please send any adverse comments or written notice of intent to submit adverse comments to H. Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604, or fax to [phone]. Comments may also be sent by e-mail to: [e-mail]. All comments received will be made available for public inspection at the above address during business hours (7 CFR 1.27(b)).

FOR FURTHER INFORMATION CONTACT:

David Orr, Director, Field Management Division, at his e-mail address: [e-mail], or telephone him at [phone].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be not-significant for the purposes 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 United States Grain Standards Act 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.

Regulatory Flexibility Act Certification

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it has been determined that this rule will not have a significant economic impact on a substantial number of small entities. GIPSA has determined that most users of the official weighing service and those entities that perform these services do not meet the requirements for small entities. This rule will affect entities engaged in shipping grain to and from points within the United States and exporting grain from the United States. GIPSA estimates approximately 9,500 off-farm storage facilities and 57 export elevators in the United States could receive official weighing services by GIPSA, delegated States, or designated agencies. GIPSA also estimates this rule affects 18 scale manufacturing and 39 scale service companies who provide weighing equipment and service to these elevators and storage facilities. Twelve GIPSA field offices, 2 Federal/State offices, 7 GIPSA suboffices, 7 delegated States, and 11 designated agencies provide official weighing service. Under provisions of the Act, it is not mandatory for non-export grain to be officially weighed except for waterborne carriers into export port locations. Further, most users of the official weighing services and those entities that perform these services do not meet the requirements for small entities. Even though some users could be considered small entities, this rule only updates regulatory requirements and makes GIPSA weighing guidelines more like State weights and measures organizations' laws and regulations who automatically adopt Handbook 44 on a yearly basis. Updating these requirements will help manufacturers of weighing equipment and grain elevators avoid making, installing, and maintaining equipment to meet two sets of design and performance requirements for commercial and official weighing to meet old specifications and new. No additional cost or burden is expected to result from this action.

Information Collection and Recordkeeping Requirements

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection and recordkeeping requirements in Part 802 have been approved previously by OMB and assigned OMB No. 0580-0013.

Background

Part 802 of the regulations, Official Performance and Procedural Requirements for Grain Weighing Equipment and Related Grain Handling Systems (7 CFR 802.0-802.1), sets forth certain procedures, specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y weighing services. This review of the regulations includes a determination of continued need for and consequences of the regulations. An objective of the review is to ensure that the regulations are consistent with FGIS policy and authority and are up-to-date. FGIS has determined that, in general, these regulations are serving their intended purpose, are consistent with FGIS policy and authority, and should remain in effect. FGIS, therefore, will incorporate the 2002 edition of Handbook 44 by reference into Part 802 of the regulations, in order to update the regulations, and continues to adopt all of the requirements of NIST Handbook 105-1 “Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures,” 1990 edition.

Effective August 18, 1995, FGIS incorporated by reference into Part 802 of the regulations most provisions in NIST Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” 1994 edition (Handbook 44) (60 FR 31907). Those provisions in Handbook 44 that obviously did not pertain to FGIS services were not incorporated by reference. The provisions that were not incorporated are listed in section 802.0(b) of the regulations.

We are publishing this rule without a prior proposal because we regularly update this portion of the regulations and view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, 90 days after the date of publication in the Federal Register unless we receive 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 comments that suggest the rule should not be adopted or suggest the rule should be changed.

If we receive 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. We will then publish a proposed rule for public comment. Following the close of that comment period, the comments will be considered, and a final rule addressing the comments will be published.

As discussed above, if we receive no written adverse comments or written notice of intent to submit adverse comments within 30 days of publication of this direct final rule, this direct final rule will become effective 90 days following its publication.

Direct Final Action

In 1995, FGIS incorporated by reference the 1994 edition of Handbook 44. FGIS will continue to adopt this edition by reference in section 802.0(a) of the regulations.

The 1994 edition of Handbook 44 has been changed annually by NIST as new items are adopted, deleted, or revised by the National Conference on Weights and Measures. Many of these changes were for clarity. Further, most State weights and measures organizations automatically adopt each new edition of Handbook 44 and Handbook 105-1. FGIS will revise section 802.0(a) by incorporating by reference the 2002 edition of Handbook 44 including the following sections:

Section 1.10 General Code

Section 2.20 Scales

Section 2.22 Automatic Bulk Weighing Systems

Section 2.23 Weights

The following table lists those relevant codes and paragraphs, but not definitions, in which amendments and editorial changes were made in 1994 through 2001 by the 79th, 80th, 81st, 82nd, 83rd, 84th, 85th, and 86th National Conference on Weights and Measures (NCWM) as they appeared in the 1995 through 2002 editions of Handbook 44. The column headed “Action” indicates changes noted as “added”, “amended”, “deleted”, “renumbered”, or provides an explanation.

Code	Paragraph	Action
1994 Amendments
General	G-UR.4.6	Added.
Scales	S.2.5.1	Changed Electronic in title and lead sentence to Digital Indicating to be consistent with other references in code.
1995 Amendments
General	G-S.6.	Amended.
Scales	S.1.7.	Amended.
Scales	S.2.5.1.	Amended.
Scales	S.5.3.	Amended.
Scales	UR.1. Footnote	Added.
Scales	UR.1.5.	Added.
Scales	Table 7a	Amended.
Scales	S.5.1., S.5.2., S.5.3.	Added paragraph titles.
Scales	Table S.6.3.b.—Note 9	Added missing third line.
1996 Amendments
Scales	UR.3.2.1., Table UR.3.2.1.	Added.
Scales	S.5.4.	Amended.
Scales	UR.4.3.	Amended.
1997 Amendments
Scales	Table 3	Amended.
Scales	N.1.3.4. a. & b.	Amended.
Scales	T.N.9.	Amended.
Automatic Bulk Weighing Systems	S.3.3(b)	Added.
Scales	T.N.8.1.2. & Table	Added title of Table T.N.8.1.2. and added reference in paragraph for clarity.
Scales	T.N.9.	Revised Footnote.
1998 Amendments
Scales	S.2.1.6.	Amended.
Scales	N.1.2.1.	Amended.
Scales	N.1.2.2.	Amended.
Scales	Table 1.1.1., Footnote 3	Added Footnote.
1999 Amendments
General	G-S.1.	Amended.
Scales	S.1.2.2.1.	Amended.
Scales	S.1.2.2.2.	Amended.
Scales	Table 3	Amended Footnote #1.
Scales	Table S.6.3.a.	Amended.
Scales	Table S.6.3.b.	Amended Note #7.
Scales	Table S.3.6.a. and b.	Added Note 20 & 21.
Scales	S.6.1.	Amended.
Scales	S.6.1.	Amended.
Scales	N.1.3.6.1.	Amended.
Scales	T.N.3.8.	Amended.
Scales	UR.1.3.	Amended.
Scales	S.1.2.2.1., UR.1.3.1., and UR.3.10	Added.
Scales	Table UR.3.2.1.	Amended.
2000 Amendments
General	G-S.1.	Added new (c). Relettered d, e, and f.
Scales	S.1.4.3.(a)	Amended.
Scales	N.1.3.4.	Amended.
Scales	Tables S.6.3.(a) and (b) Note 1	Amended.
Scales	UR.3.9.	Amended.
2001 Amendments
General	G-S.1.1. G.S.1.(g) G.S.1.(c)	Added.
Scales	Table S.6.3.a. Table S.6.3.a. S.6.4. N.1.3.4.(a)	Amended Column Headings. Added footnote 1. Amended. Amended.
Automatic Bulk Weighing Systems	U.R.1.1.	Removed “and enforceable” for consistency with other nonretroactive statements.

List of Subjects in 7 CFR Part 802

• Administrative practice and procedure
• Export
• Grain
• Incorporation by reference
• Reporting and recordkeeping requirements

For reasons set out in the preamble, accordingly, 7 CFR part 802 is amended as follows:

PART 802—OFFICIAL PERFORMANCE AND PROCEDURAL REQUIREMENTS FOR GRAIN WEIGHING EQUIPMENT AND RELATED GRAIN HANDLING SYSTEMS

1. The authority citation for part 802 continues to read as follows:

Authority: Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C. 71 et seq.).

2. Section 802.0 is revised to read as follows:

§ 802.0

Applicability.

(a) The requirements set forth in this part 802 describe certain specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y weighing services, official inspection services, and commercial services under the Act. All scales used for official grain weight and inspection certification services provided by FGIS shall meet applicable requirements contained in the FGIS Weighing Handbook, the General Code, the Scales Code, the Automatic Bulk Weighing Systems Code, and the Weights Code of the 2002 edition of National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices” (Handbook 44); and NIST Handbook 105-1 (1990 Edition), “Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures,” (Handbook 105-1). These requirements are confirmed to be met by having National Type Evaluation Program or Federal Grain Inspection Service type approval. Scales used for commercial purposes will be required to meet only the applicable requirements of the 2002 edition of the NIST Handbook 44. Pursuant to the provisions of 5 U.S.C. 552(a), with the exception of the Handbook 44 requirements listed in paragraph (b) of this section, the materials in Handbooks 44 and 105-1 are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the Federal Register. 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. The NIST Handbooks are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20403. They can be downloaded without charge at http://ts.nist.gov/​ts/​htdocs/​230/​235owmhome.htm. They are also available for inspection at the Office of the Federal Register, 800 North Capital, Street, NW., Suite 700, Washington, DC.

(b) The following Handbook 44 requirements are not incorporated by reference:

Scales (2.20)

S.1.8. Computing Scales

S.1.8.2. Money-Value Computation

S.1.8.3. Customer's Indications

S.1.8.4. Recorded Representations, Point of Sale

S.2.5.2. Jeweler's, Prescription, & Class I & II Scales

S.3.3. Scoop Counterbalance

N.1.3.2. Dairy-Product Test Scales

N.1.5. Discrimination Test (Not adopted for Grain Test Scales only)

N.1.8. Material Tests

N.3.1.2. Interim Approval

N.3.1.3. Enforcement Action For Inaccuracy

N.4. Coupled-in-Motion Railroad Weighing Systems

N.6. Nominal Capacity of Prescription Scales

T.1.2. Postal and Parcel Post Scales

T.2.3. Prescription Scales

T.2.4. Jewelers' Scales (all sections)

T.2.5. Dairy—Product-Test Scales (all sections)

T.N.3.9. Materials Test on Customer-Operated Bulk-Weighing Systems for Recycled Materials

UR.1.4. Grain Test Scales: Value of Scale Divisions

UR.3.1. Recommended Minimum Load

UR.3.1.1. Minimum Load, Grain Dockage

Automatic Bulk Weighing Systems (2.22)

N.1.3. Decreasing-Load Test

Dated: June 4, 2003.

JoAnn Waterfield,

Acting Administrator.