[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Rules and Regulations]
[Pages 45676-45677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22953]



[[Page 45676]]

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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: Final rule.

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SUMMARY: The Grain Inspection, Packers and Stockyards Administration 
(GIPSA) is amending the General Regulations under the Untied 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.

EFFECTIVE DATE: August 28, 1998.

FOR FURTHER INFORMATION CONTACT:
George Wollam, GIPSA, USDA, STOP 3649, 1400 Independence Avenue, SW, 
Washington, DC 20250, (202) 720-0292 or FAX (202) 720-4628.

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 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 rule 
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 rule will 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 62 agencies designated by GIPSA. Of the 62 agencies, 15 are 
designated to perform official weighing services; 7 of the 15 are State 
agencies. The remaining 47 official agencies could provide unofficial 
weighing services.
    Nine official agencies 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 will 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 can 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 this rule will have a 
beneficial effect on these agencies and the grain industry as a whole.

Information Collection and Recordkeeping 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

    On March 30, 1998, GIPSA published a proposed rule in the Federal 
Register (60 FR 15104) which would 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.
    Prior to the March 30, 1998, proposal, a direct final rule was 
published on August 2, 1995 (60 FR 39242), 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 commenter 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 
whether there was a lack of supervising agencies in the weighing area. 
The other commenter 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.
    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. GIPSA reevaluated this policy 
as it applies to weighing and evaluated the case-by-case situations 
where it has been allowed and found that confusion has not been a 
factor 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. This action merely allows 
the users to choose what service they may need at any given time.
    Although GIPSA, for the above reasons, disagreed with the adverse 
comments received as a result of the direct final rule, the direct 
final rule was inadvertently not withdrawn prior to its effective date 
as required by the direct final rule process. Consequently, 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.

[[Page 45677]]

    Designated agencies are agencies granted authority under the USGSA 
to provide official inspection service, or 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 many 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. If allowed to provide both types of 
service, many more agencies who are now designated for inspection only 
could also provide official weighing service. Generally, designated 
agencies can provide Class X and Class Y weighing at a lower cost than 
GIPSA field offices due to their proximity to the grain facilities. 
Since 1991, after receiving official weighing requests in several 
areas, GIPSA's Administrator (under Sec. 800.2 of the regulations) has 
experimentally allowed designated official agencies to provide both 
official and unofficial weighing.

Comment Review

    GIPSA received one comment in response to its proposal in the March 
30, 1998 Federal Register (60 FR 15104) 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. The commenter, a national association representing 
grain, feed and processing companies, supports the proposed change to 
allow official and unofficial weighing within their assigned areas but 
not on the same mode of conveyance at the same facility. The commenter 
believed that providing both types of service would not lead to 
confusion in the marketplace because: (1) official agencies should have 
little difficulty distinguishing between official and unofficial 
weighing, and (2) GIPSA oversight conducted by the field offices and 
appropriate headquarters units should be able to detect any problems 
arising from the change.
    It is found that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register (5 U.S.C. 533) because: (1) Implementation could be beneficial 
to the agencies and the grain industry as a whole; (2) the effective 
date will allow the agencies to be able to provide this service to 
their customers at the beginning of any local harvest seasons.

Final Action

    FGIS is amending the regulations to allow the official agencies to 
provide official and unofficial weighing services in their assigned 
areas of responsibility, but not on the same mode of conveyance at the 
same location. This will allow the official agencies the flexibility in 
delivering the weighing services needed by the domestic grain market.

List of Subjects in 7 CFR Part 800

    Administrative practice and procedure, Conflict of interests, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements.

    For reasons set forth in the preamble, 7 CFR Part 800 is 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: August 20, 1998.
James R. Baker,
Administrator.
[FR Doc. 98-22953 Filed 8-26-98; 8:45 am]
BILLING CODE 3410-EN-M