[Federal Register Volume 63, Number 60 (Monday, March 30, 1998)]
[Proposed Rules]
[Pages 15104-15105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7940]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 60 / Monday, March 30, 1998 /
Proposed Rules
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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: Proposed rule.
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SUMMARY: The Grain Inspection, Packers and Stockyards Administration
(GIPSA) proposes to amend portions of the General Regulations under the
United 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.
DATES: Comments must be submitted on or before May 29, 1998.
ADDRESSES: All comments concerning this proposed regulation should be
addressed to George Wollam, GIPSA-FGIS, USDA, STOP 3649, 1400
Independence Avenue, SW, Washington, D.C. 20250, or FAX (202) 720-4628.
All comments received will be made available for public inspection
during business hours in Room 0623-South Building, 1400 Independence
Avenue, SW, Washington, D.C. 20250 (7 CFR 1.27(b)).
FOR FURTHER INFORMATION CONTACT: George Wollam (202) 720-0292, at the
above address.
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 amended 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
proposal 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 proposed rule would 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 65 agencies designated by
GIPSA, 57 private entities and 8 State agencies. Of the 65 official
agencies, 14 are designated to perform official weighing services. It
is estimated that 59 agencies perform official inspection and
unofficial weighing while 8 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 would 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 would 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 the proposed rule would
have a beneficial effect on these agencies and the grain industry as a
whole.
Information Collection and Record keeping 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
A direct final rule (60 FR 39242) was published on August 2, 1995,
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
comment 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 GIPSA's belief that there was a lack of
available supervising agencies in the weighing area. The other comment
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. The
concerns raised by these comments are discussed in the following
paragraphs.
The direct final rule was inadvertently not withdrawn prior to its
effective date. 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. Therefore, GIPSA is now
requesting public comment on allowing agencies and grain elevators to
perform both official and unofficial weighing services, except at the
same facility.
Designated agencies are agencies granted authority under the USGSA
to provide official inspection service, or
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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 51 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 that are provided for under the authority
of the USGSA. To that end, since 1991, after receiving official
weighing requests in several areas, GIPSA's Administrator (under
Sec. 800.2 of the regulations) has allowed 8 designated official
agencies to provide both official and unofficial weighing. If allowed
to provide both types of service, many more agencies that are now
designated for official inspection only could also provide official
weighing service. Further, designated agencies can generally provide
Class X and Class Y weighing at a lower cost than GIPSA field offices
due to their proximity to the grain facilities.
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. However, in reevaluating this
policy as it applies to weighing and evaluating the case-by-case
situations where it has been allowed since 1991, GIPSA has found that
such confusion has not been a factor, especially 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.
Accordingly, GIPSA disagrees with the comments received as a result
of the direct final rule. GIPSA proposes to change the weighing
provisions of the regulations. This proposed rule does not change the
requirements for inspection services. Following the close of the
comment period, the comments will be considered and a final action
addressing the comments will be published in the Federal Register.
List of Subjects in 7 CFR Part 800
Administrative practice and procedure, Conflict of interests,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements.
Proposed Action
For reasons set forth in the preamble, 7 CFR Part 800 is proposed
to be 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: March 20, 1998.
James R. Baker,
Administrator.
[FR Doc. 98-7940 Filed 3-27-98; 8:45 am]
BILLING CODE 3410-EN-P