[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  

[[Page 15104]]


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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

[[Page 15105]]

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