[Federal Register Volume 61, Number 133 (Wednesday, July 10, 1996)]
[Rules and Regulations]
[Pages 36279-36283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17359]
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DEPARTMENT OF AGRICULTURE
9 CFR Part 201
RIN 0580-AA44
Regulations and Statements of General Policy Issued Under the
Packers and Stockyards Act
AGENCY: Grain Inspection, Packers and Stockyards Administration
(GIPSA), USDA.
ACTION: Final rule.
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SUMMARY: As part of GIPSA's efforts to review and streamline its
regulations, proposed amendments to rules issued under the Packers and
Stockyards Act (7 U.S.C. 181 et seq.) were published in the Federal
Register (60 FR 29506) on June 5, 1995, and identified as Group II.
This document adopts proposed changes which modify six trade practice
regulations and retains seven regulations and seven statements of
general policy in their present form.
EFFECTIVE DATE: August 9, 1996.
FOR FURTHER INFORMATION CONTACT: Daniel Van Ackeren, Director,
Livestock Marketing Division, 202-720-6951, or Tommy Morris, Director,
Packer and Poultry Division, 202-720-7363.
SUPPLEMENTARY INFORMATION: In response to the proposed rule published
in the Federal Register (60 FR 29506), the Agency received comments
from four organizations and two companies.
Although the Agency did not propose any changes to Sec. 201.43, a
poultry growers association suggested that a new paragraph be added to
Sec. 201.43 to require live poultry dealers to maintain certain records
for flock placements. After considering the comment, the Agency has
concluded that this regulation will be retained in its present form.
The Agency believes that Sec. 401 of the P&S Act adequately addresses
the issue of record maintenance.
The Agency received three comments regarding Sec. 201.49. A
livestock trade association agrees with the proposed amendment. A major
hog slaughterer suggests that records be retained for lot summaries
instead of individual
[[Page 36280]]
weights. They feel that the volume of the records for the individual
weights would be too impractical to maintain. A cattle producers
association stated that this regulation is consistent with its policy.
As proposed, Sec. 201.49 (a) will be amended to specifically state
that all scales used to purchase livestock on a dressed weight basis be
equipped with printing devices. The Agency will amend subsection (b) of
Sec. 201.49 to require weighmaster identification on executed poultry
scale tickets that is uniform with identification required by livestock
weighers.
The cattle producers association suggested that the Agency closely
monitor Sec. 201.53 and help to ensure that information released to the
beef industry is accurate and timely. After considering the comment,
the Agency has concluded that this regulation will be retained in its
present form. The Agency believes this regulation adequately addresses
the importance of accurate information.
No comments were received regarding the proposed amendment to
Sec. 201.55 to include the purchase, sale, acquisition and settlement
of live poultry.
The Agency received two comments regarding Sec. 201.71. One
livestock trade association and a livestock producers association
agreed with the proposed amendment. As proposed, Sec. 201.71(a) will be
amended to incorporate by reference the 1996 edition of the National
Institute of Standards and Technology (NIST) Handbook 44. Section
201.71(b) will be amended to require that scales used to purchase
livestock on a carcass weight basis be equipped with printing devices.
The Agency received a comment regarding Sec. 201.73-1 from a
livestock trade association agreeing with the technical change to this
section. The Agency will change Sec. 201.73-1 to more accurately
reflect where forms are available and where they are to be filed.
One hog slaughterer suggested that Sec. 201.76 be clarified to
state that any reweighing of livestock be requested immediately. They
also pointed out that the reweighing of dressed livestock would be
impossible after carcasses have cleared the hot scale and entered the
cooler. After considering the comment, the Agency has concluded that
this regulation will be retained in its present form. The Agency
believes immediate reweighing can be accomplished using other packer-
owned monorail scales installed before, after or in rail-around areas
near the kill floor scale. Where other scales are not available,
reweighing can be accomplished by using an Agency-owned portable
monorail scale.
The Agency received a comment from a livestock trade association
regarding Sec. 201.98 agreeing with the proposed amendment. As
proposed, Sec. 201.98 will be amended by adding the wording, ``unless
the charge is for services mandated by law or statute.''
The Agency received two comments regarding Sec. 201.100. A poultry
growers association suggested that paragraph (d) be amended by adding a
clause prohibiting persons who are employees and raise poultry under a
poultry growing arrangement for the same live poultry dealer that
employs them from being included in a grouping or ranking of non-
employee growers. A farm association commented that this section is
badly needed to make contract growing fair for all growers. After
considering the comments, the Agency concluded that this regulation
will be retained in its present form. Inclusion of employee growers in
a grouping or ranking of all growers is not a violation of the P&S Act
unless they are treated favorably over non-employee growers. The Agency
has authority to address preferential or discriminatory treatment under
section 202 of the P&S Act.
No comments were received regarding the proposed amendment to
Sec. 201.108-1. As proposed, Sec. 201.108-1 will be amended by
incorporating instructions for weighing live poultry on electronic
scales with digital readouts.
As proposed, each of the following regulations and statements of
general policy will be retained in its present form:
Sec.
201.53 Persons subject to the Act not to circulate misleading
reports about market conditions or prices.
201.69 Furishing information to competitor buyers.
201.70 Restriction or limitation of competition between packers and
dealers prohibited.
201.73 Scale operators to be qualified.
201.76 Reweighing.
201.100 Records to be furnished poultry growers and sellers.
201.200 Sale of livestock to a packer on credit.
203.2 Statement of general policy with respect to the giving by
meat packers of meat and other gifts to Government employees.
203.4 Statement with respect to the disposition of records by
packers, live poultry dealers, stockyard owners, market agencies and
dealers.
203.7 Statement with respect to meat packer sales and purchase
contracts.
203.15 Trust benefits under sections 206 and 207 of the Act.
203.16 Mailing of checks in payment for livestock purchased for
slaughter, for cash and not on credit.
203.18 Statement with respect to packers engaging in the business
of custom feeding livestock.
203.19 Statement with respect to packers engaging in the business
of livestock dealers or buying agencies.
In the process of reviewing these regulations, it was determined
that they were necessary for the efficient and effective enforcement of
the P&S Act and for the orderly conduct of the marketing system. The
absence of any of the regulations would be detrimental to the industry
and could result in increased litigation.
The Agency received a comment from a farm association regarding
Sec. 203.4. This policy statement notifies persons subject to the P&S
Act that certain records may be disposed of after a specific period of
time. It also states that the Deputy Administrator may require that
records be retained for a longer period pending completion of an
investigation. The policy statement advises that if records are
disposed of before the specified periods, the Agency will consider
taking formal action. The farm association suggested that records be
retained for three (3) years or more. After considering the comment,
the Agency has concluded that this policy will be retained in its
present form. The two year retention schedule provided in this section
has not caused problems in administering the provisions of the P&S Act.
Further, the Agency has the authority to require that records be
retained for longer periods when deemed necessary.
The Agency received a comment from a cattle producers association
regarding Sec. 203.18. This policy statement notifies packers that
ownership or operation of custom feedlots may, under certain
circumstances, result in a conflict of interest or anticompetitive
violations. It suggests packers consult with the Agency before
commencing such activity. The association urges the Agency to closely
scrutinize this policy statement. Current authority under the P&S Act
is sufficient to allow the Agency to review any arrangement that may
result in an unfair practice or advantage. A per se prohibition of
these type of arrangements can only be achieved by legislative action
to amend the P&S Act. For these reasons, no changes are being made in
Sec. 203.18. The Agency will continue to evaluate these types of
arrangements on a case-by-case basis.
The Agency received a comment regarding Sec. 203.19 from a
livestock trade association. The association proposed
[[Page 36281]]
that this section be amended to prohibit packers and their employees or
agents engaged in the business of a buying agency from purchasing and
reselling classes or species of livestock which are not part of their
main business activity as a packer. The Agency will not make changes to
Sec. 203.19 at this time, but will continue to evaluate each such
arrangement on a case-by-case basis. As a practical matter, most
packers consult with the Agency before entering into such arrangements.
Amending this rule to require such consultation does not appear
necessary. Attempting to shift the burden of proof that the arrangement
does not restrain trade would not relieve the Agency of the
responsibility to investigate and make a factual determination.
The changes in Secs. 201.49, 201.55, 201.71, 201.73-1, 201.98, and
201.108-1 do not impose or change any recordkeeping or information
collection requirements. Existing requirements in these regulations
have been previously approved by OMB under Control No. 0590-0001.
As provided by the Regulatory Flexibility Act, it is hereby
certified that these amended rules will not have a significant economic
impact on a substantial number of small entities and a statement
explaining the reasons for the certification is set forth in the
following paragraph and is being provided to the Chief Counsel for
Advocacy of the Small Business Administration.
While these amended rules impact small entities, they will not have
a significant economic impact on any entity, large or small. The
primary effect of the changes in Secs. 201.49 and 201.71 is to require
that when livestock is purchased on the basis of carcass weight, the
scale used on such purchases be equipped with a printer. The primary
effect of the change in Sec. 201.55 is to require that when poultry is
bought, sold, acquired, or settled on a weight basis, the actual weight
on the scale ticket be used for such purposes, as is currently required
for livestock. The primary effect of the change in Sec. 201.73-1 is to
make a technical change in the name of the Agency pursuant to Public
Law 103-354, the Federal Crop Insurance Reform and the Department of
Agriculture's Reorganization Act of 1994. The primary effect of the
change in Sec. 201.98 is to allow packers and dealers to charge for
services that are mandated by law or statute. The primary effect of the
change in Sec. 201.108-1 is to update the regulation.
This rule has been determined to be not significant for purposes of
Executive Order 12866 and, therefore, has not been reviewed by OMB.
These amendments do not impose any new paperwork requirements and do
not have implications of Federalism under the criteria of E.O. 12612.
These amendments have been reviewed under E.O. 12778, Civil Justice
Reform, and are not intended to have retroactive effect. These
amendments will not pre-empt State or local laws, regulations, or
policies unless they present an irreconcilable conflict with this
amendment. Prior to judicial challenge of the amendment to rule, a
party must first be found by the Secretary to be in violation of the
P&S Act and in violation of the accompanying regulations. Second, the
party must appeal that finding and the validity of the regulation to
the Secretary in the course of the administrative proceeding. Only
after taking these steps, may the party challenge the regulation in a
court of competent jurisdiction.
List of Subjects in 9 CFR Part 201
Reporting and recordkeeping requirements, Stockyards, Trade
practices, Incorporation by reference.
Done at Washington, D.C., this 1st day of July 1996.
James R. Baker,
Administrator, Grain Inspection, Packers and Stockyards Administration.
For the reasons set forth in the preamble, 9 CFR Part 201 is
amended to read as follows:
1. The authority citation for Part 201 continues to read as
follows:
Authority: 7 U.S.C. 204, 228; 7 CFR 2.17(e), 2.56.
2. Section 201.49 is revised to read as follows:
Sec. 201.49 Requirements regarding scale tickets evidencing weighing
of livestock and live poultry.
(a) Livestock. When livestock is weighed for the purpose of
purchase or sale, a scale ticket shall be issued which shall be
serially numbered and used in numerical sequence. Sufficient copies
shall be executed to provide a copy to all parties to the transaction.
In instances where the weight values are automatically recorded
directly on the account of purchase, account of sale or other basic
record, this record may serve in lieu of a scale ticket. When livestock
is purchased on a carcass weight or carcass grade and weight basis, the
hot carcass weights shall be recorded using a scale equipped with a
printing device, and such printed weights shall be retained as part of
the person or firm's business records to substantiate settlement on
each transaction. Scale tickets issued under this section shall show:
(1) The names and location of the agency performing the weighing
service,
(2) The date of the weighing;
(3) The name of the buyer and seller or consignor, or a designation
by which they may be readily identified;
(4) The number of head;
(5) Kind of livestock;
(6) Actual weight of each draft of livestock; and
(7) The name, initials, or number of the person who weighed the
livestock, or if required by State law, the signature of the weigher.
(b) Poultry. When live poultry is weighed for the purpose of
purchase, sale, acquisition, or settlement by a live poultry dealer, a
scale ticket shall be issued which shall show:
(1) The name of the agency performing the weighing service;
(2) The name of the live poultry dealer;
(3) The name and address of the grower, purchaser, or seller;
(4) The name or initials or number of the person who weighed the
poultry, or if required by State law, the signature of the weigher;
(5) The location of the scale;
(6) The gross weight, tare weight, and net weight;
(7) The date and time gross weight and tare weight are determined;
(8) The number of poultry weighed;
(9) The weather conditions;
(10) Whether the driver was on or off the truck at the time of
weighing; and
(11) The license number of the truck or the truck number; provided,
that when live poultry is weighed on a scale other than a vehicle
scale, the scale ticket need not show the information specified in
paragraphs (b)(9)-(11) of this section. Scale tickets issued under this
paragraph shall be at least in duplicate form and shall be serially
numbered and used in numerical sequence. One copy shall be furnished to
the grower, purchaser, or seller, and one copy shall be furnished to or
retained by the live poultry dealer.
(Approved by the Office of Management and Budget under control
number 0590-0001.)
3. Section 201.55 is revised to read as follows:
Sec. 201.55 Purchases, sales, acquisitions, and settlements to be made
on actual weights.
When livestock or live poultry is bought, sold, acquired, or
settled on a weight basis, settlement therefor shall be on the basis of
the actual weight on the scale ticket. If the actual weight used is not
obtained on the date and at the
[[Page 36282]]
place of transfer of possession, this information shall be disclosed
with the date and location of the weighing on the accountings, bills,
or statement issued. Any adjustment to the actual weights shall be
fully and accurately explained on the accountings, bills, or statements
issued and records shall be maintained to support such adjustment.
(Approved by the Office of Management and Budget under control
number 0590-0001.)
4. Section Sec. 201.71 (a) and (b) is revised to read as follows:
Sec. 201.71 Scales, accurate weights, repairs, adjustments or
replacements after inspection.
(a) All scales used by stockyard owners, market agencies, dealers,
packers, and live poultry dealers to weigh livestock, livestock
carcasses, or live poultry for the purpose of purchase, sale,
acquisition, or settlement shall be installed, maintained, and operated
to insure accurate weights. Such scales shall meet applicable
requirements contained in the General Code, Scale Code, and Weights
Code of the 1996 edition of National Institute of Standards and
Technology Handbook 44, ``Specifications, Tolerances, and Other
Technical Requirements for Weighing and Measuring Devices,'' which is
hereby incorporated by reference. This incorporation by reference was
approved by the Director of the Federal Register on January 11, 1989.
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. This handbook is for sale by the Superintendent of
Documents, U.S. Government Printing Office, Washington, D.C. 20402. It
is also available for inspection at the Office of the Federal Register
Information Center, 800 North Capitol Street, N.W., suite 700,
Washington, D.C. 20408.
(b) All scales used by stockyard owners, market agencies dealers,
packers, and live poultry dealers to weigh livestock or live poultry
for the purpose of purchase, sale, acquisition, or settlement and all
scales used for the purchase, sale, acquisition, or settlement of
livestock on a carcass weight basis shall be equipped with a printing
device which shall be used for recording weight values on a scale
ticket or other document used for this purpose.
5. Section Sec. 201.73-1 introductory text is revised to read as
follows:
Sec. 201.73-1 Instructions for weighing livestock.
Stockyard operators, market agencies, dealers, and packers who
operate scales on which livestock is weighed in purchase or sales
transactions are responsible for the accurate weighing of such
livestock. They shall supply copies of the instructions in this section
to all persons who perform weighing operations for them and direct such
person to familiarize themselves with the instructions and to comply
with them at all times. This section shall also apply to any additional
weighers who are employed at any time. Weighers must acknowledge their
receipt of these instructions and agree to comply with them, by signing
in duplicate, P&SA Form 215 provided by the Packers and Stockyards
Programs. One copy of the form is to be filed with a regional office of
the Packers and Stockyards Programs and the other retained by the
agency employing the weighers.
6. Section Sec. 201.98 is revised to read as follows:
Sec. 201.98 Packers and dealers not to charge, demand, or collect
commission, yardage, or other service charges.
No packer or dealer shall, in connection with the purchase of
livestock in commerce, charge, demand, or collect from the seller of
the livestock any compensation in the form of commission, yardage, or
other service charge unless the charge is for services mandated by law
or statute and is not inconsistent with the provisions of the Act.
7. Section Sec. 201.108-1 introductory paragraph and paragraphs,
(a) and (c)-(f) are revised to read as follows:
Sec. 201.108-1 Instructions for weighing live poultry.
Live poultry dealers who operate scales on which live poultry is
weighed for purposes of purchase, sale, acquisition, or settlement are
responsible for the accurate weighing of such poultry. They shall
supply copies of the instructions in this section to all persons who
perform weighing operations for them and direct such persons to
familiarize themselves with the instructions and to comply with them at
all times. This section shall also apply to any additional weighers who
are employed at any time. Weighers must acknowledge their receipt of
these instructions and agree to comply with them by signing in
duplicate, a form provided by the Packers and Stockyards Programs,
Grain Inspection, Packers and Stockyards Administration. One copy of
this form is to be filed with a regional office of the Packers and
Stockyards Programs, Grain Inspection, Packers and Stockyards
Administration and the other copy retained by the Agency employing the
weighers. The following instructions shall be applicable to the
weighing of live poultry on all scales, except that paragraph (c)(1) of
this section is only applicable to the weighing of live poultry on
vehicle scales.
(a) Balancing the empty scale. (1) The scale shall be maintained in
zero balance at all times. The empty scale shall be balanced each day
before weighing begins and thereafter its zero balance shall be
verified before any poultry is weighed. In addition, the zero balance
of the scale shall be verified whenever a weigher resumes weighing
duties after an absence from the scale.
(2) Before balancing the empty scale, the weigher shall notify
parties outside the scale house of his/her intention and shall be
assured that no persons or vehicles are in contact with the platform.
When the empty scale is balanced and ready for weighing, the weigher
shall so indicate by appropriate signal.
(3) Weighbeam scales shall be balanced by first seating each poise
securely in its zero notch and then moving the balance ball to such
position that a correct zero balance is obtained. A scale equipped with
a balance indicator is correctly balanced when the indicator comes to
rest in the center of the target area. A scale not equipped with a
balance indicator is correctly balanced if the weighbeam, when released
at the top or bottom of the trig loop, swings freely in the trig loop
in such manner that it will come to rest at the center of the trig
loop.
(4) Dial scales shall be balanced by releasing all drop weights and
operating the balance ball or other balancing device to obtain a
correct zero balance. The indicator must visibly indicate zero on the
dial reading face and the ticket printer must record a correct zero
balance. ``Balance tickets'' shall be filed with other scale tickets
issued on that date.
(5) Electronic digital scales should be properly warmed up before
use. In most cases it is advisable to leave the electric power on
continuously. The zero balance shall be verified by recording the zero
balance on a scale ticket. The main indicating element and the remote
visual weight display shall indicate zero when the balance is verified.
The proper procedure for balancing this type of scale will vary
according to the manufacturer. Refer to the operator's manual for
specific instructions.
(6) A balance ball or other balancing device shall be operated only
when balancing the empty scale and shall not be operated at any time or
for any other purpose.
[[Page 36283]]
(7) The time at which the empty scale is balanced or its zero
balance verified shall be marked on scale tickets or other permanent
records.
* * * * *
(c) Weighing the load. (1) Vehicle scales used to weigh live
poultry shall be of sufficient length and capacity to weigh an entire
vehicle as a unit; provided, that a trailer may be uncoupled from a
tractor and weighed as a single unit. Before weighing a vehicle, either
coupled or uncoupled, the weigher shall be assured that the entire
vehicle is on the scale platform and that no persons are on the scale
platform.
(i) On a weighbeam scale with a balance indicator the weight of a
vehicle shall be determined by moving the poises to such positions that
the indicator will come to rest within the central target area.
(ii) On a weighbeam scale without a balance indicator the weight
shall be determined by moving the poises to such positions that the
weighbeam, when released from the top or bottom of the trig loop, will
swing freely in the trig loop and come to rest at the approximate
center of the trig loop.
(iii) On a dial scale the weight of a vehicle is indicated
automatically when the indicator revolves around the dial face and
comes to rest.
(iv) On an electronic digital scale the weight of a vehicle is
indicated automatically when the weight value indicated is stable.
(2) The correct weight is the value in pounds indicated by a
weighbeam, dial or digital scale when a stable load balance is
obtained. In any case, the weigher should concentrate on the beam tip,
balance indicator, dial or digital indicator while weighing and not be
concerned with reading the visible weight indications until a stable
load balance is obtained. On electronic digital scales, the weigher
should concentrate on the pulsing or flickering of weight values to
assure that the unit indicates a stable weight before activating the
print button.
(d) Recording the weight. (1) The gross or tare weight shall be
recorded immediately after the load balance is obtained and before any
poises are moved or load removed from the scale platform. The weigher
shall make certain that the printed weight record agrees with the
weight value visibly indicated on the weighbeam, dial or digital
indicator when correct load balance is obtained. The weigher shall also
assure that the printed weight value is sufficiently distinct and
legible.
(2) The weight printing device on a scale shall be operated only to
produce a printed or impressed record of the weight while the load is
on the scale and correctly balanced. If the weight is not printed
clearly and correctly, the ticket shall be marked void and a new one
printed before the load is removed from the scale.
(e) Weigher's responsibilities. (1) The primary responsibility of a
weigher is to determine and record the true weight of live poultry
without prejudice or favor to any person or agency and without regard
for poultry ownership, price, condition, shrink, or other
considerations. A weigher shall not permit the representations or
attitudes of any persons or agencies to influence their judgment or
action in performing his/her duties.
(2) Scale tickets issued shall be serially numbered and used in
numerical sequence. Sufficient copies shall be executed to provide a
copy to all parties to the transaction. Unused scale tickets or those
which are partially executed shall not be left exposed or accessible to
other parties. All such tickets shall be kept under lock when the
weigher is not at his duty station.
(3) Accurate weighing and weight recording require that a weigher
shall not permit operations to be hurried to the extent that inaccurate
weights or incorrect weight records may result. The gross, tare and net
weights must be determined accurately to the nearest minimum
graduation. Manual operations connected with balancing, weighing, and
recording shall be performed with the care necessary to prevent damage
to the accurately machined and adjusted parts of weighbeams, poises,
and printing devices. Rough handling of these parts shall be avoided.
(4) Poultry growers, live poultry dealers, sellers, or others
having legitimate interest in a load of poultry are entitled to observe
the balancing, weighing, and recording procedures. A weigher shall not
deny such persons that right or withhold from them any information
pertaining to the weight. The weigher shall check the zero balance of
the scale or reweigh a load of poultry when requested by such parties
or duly authorized representatives of the administrator.
(f) General precautions. (1) The poises of weighbeam scales are
carefully adjusted and sealed to a definite weight at the factory and
any change in that weight seriously affects weighing accuracy. A
weigher, therefore, shall observe if poise parts are broken, loose or
lost or if material is added to a poise and shall report any such
condition to his/her superior or employer. Balancing or weighing shall
not be performed while a scale ticket is in the slot of a weighbeam
poise.
(2) Stops are provided on scale weighbeams to prevent movement of
poises back of the zero graduation when balancing or weighing. When the
stops become worn or broken and allow a poise to be set behind the zero
position, this condition must be reported by the weigher to their
superior or employer and corrected without delay.
(3) Motion detection circuits are a part of electronic scales. They
are designed to prevent the printing of weight values if the load has
not stabilized within prescribed limits. The weighmaster's duty is to
print the actual weight of the load within these limits. This requires
printing the actual weight of the load, not one of the other weights
that may be within the motion detection limits.
(4) Foreign objects or loose material in the form of nuts, bolts,
washers, or other material on any part of the weighbeam assembly,
including the counter-balance hanger or counter-balance weights, are
potential sources of weighing error. Loose balancing material must be
enclosed in the shot cup of the counter-balance hanger and counter-
balance weights must not be of the slotted type which can readily be
removed.
(5) Whenever, for any reason, a weigher has reason to believe that
a scale is not functioning properly or not yielding correct weight
values, the weigher shall discontinue weighing, report the facts to the
parties responsible for scale maintenance and request inspection, test
or repair of the scale.
(6) When a scale has been adjusted, modified, or repaired in any
manner which can affect the accuracy of weighing or weight recording,
the weigher shall not use the scale until it has been tested and
inspected and found to be accurate.
[FR Doc. 96-17359 Filed 7-9-96; 8:45 am]
BILLING CODE 3410-EN-P
