[Federal Register Volume 64, Number 63 (Friday, April 2, 1999)]
[Proposed Rules]
[Pages 15938-15942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8068]
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DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
9 CFR Part 201
RIN 0580-AA64
Regulations Issued Under the Packers and Stockyards Act
AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.
ACTION: Proposed Rule.
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SUMMARY: The Grain Inspection, Packers and Stockyards Administration
(GIPSA) is proposing to amend existing scales and weighing regulations
under the Packers and Stockyards (P&S) Act to include requirements
regarding the weighing of feed whenever the weight of feed is a factor
in determining payment or settlement to a livestock grower or poultry
grower when livestock or poultry is produced under a livestock or
poultry growing arrangement. The current regulations do not contain any
requirements regarding the weighing of feed although, in some
circumstances, feed weight affects payment or settlement to livestock
growers and poultry growers. The proposed amendment to the current
regulations will provide livestock growers and poultry growers with a
measure of assurance that feed is accurately weighed or reasonably
determined and feed weight is properly documented whenever feed weight
affects payment or settlement to livestock growers or poultry growers.
DATES: Comments must be received on or before June 1, 1999.
ADDRESSES: Comments may be mailed to the U.S. Department of
Agriculture, Deputy Administrator, Grain Inspection, Packers and
Stockyards Administration, Packers and Stockyards Programs, Stop 3641,
1400 Independence Avenue, SW, Washington, DC 20250-3641; Fax: 202-205-
3941; E-mail: [email protected]. Comments received may be inspected
during normal business hours in the Office of the Deputy Administrator,
Packers and Stockyards Programs.
FOR FURTHER INFORMATION CONTACT: Michael Caughlin, Director, Office of
Policy/Litigation Support, (202) 720-6951.
SUPPLEMENTARY INFORMATION: GIPSA is proposing to amend existing scales
and weighing regulations under the P&S Act to include requirements
regarding the weighing of feed when the weight of feed is a factor in
determining payment or settlement to livestock growers and
[[Page 15939]]
poultry growers when livestock or poultry is produced under a livestock
or poultry growing arrangement.
In February 1997, GIPSA issued an Advance Notice of Proposed
Rulemaking (ANPRM) (62 FR 5935-37) soliciting comments from poultry
growers, integrators, and other interested parties on the need for and
the possible wording of regulations regarding comparison contracts,
feed weighing procedures, and live poultry weighing.1 GIPSA
received 3,415 comments, of which 1,129 expressed concerns regarding
feed weighing procedures including concerns that feed is not properly
weighed; the weight should be printed electronically and not
handwritten; the truck delivering the feed should be sealed to secure
each individual lot of feed; and excess feed that is returned should be
reasonably determined and properly documented to credit the grower for
the unused feed.
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\1\ Comments on the other two issues addressed by the ANPRM
(comparison contracts and live poultry weighing) are still being
analyzed by GIPSA.
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Many of those comments also suggested that feed scales should be
better regulated by requiring semiannual testing by competent testing
agencies or companies as is currently required for scales used to weigh
live poultry. In addition, GIPSA received comments prior to initiating
this rulemaking process from livestock growers and continues to receive
complaints that indicate that these same concerns exist in the
livestock industry. Furthermore, GIPSA continues to receive complaints
from individual livestock growers and poultry growers concerning feed
weights both with respect to feed deliveries and excess feed picked up
or returned at the end of the growing cycle.
This proposed rulemaking would address the concerns of livestock
growers and poultry growers by requiring those firms supplying feed to
growers, either directly or indirectly, to weigh feed accurately,
reasonably determine the weight of excess feed and properly account for
feed weight when the weight of the feed is a factor in determining
payment or settlement to livestock growers or poultry growers when
livestock or poultry is produced under a livestock or poultry growing
arrangement. ``Growing arrangements'' with respect to poultry means
``growing arrangements'' as defined in section 2(a)(9) of the Act (7
U.S.C. 183(a)(9)). The term ``livestock growing arrangement'' means any
growing or feeding arrangement under which a livestock grower raises
and cares for livestock for delivery, in accord with a market agency,
dealer, or packer's instructions. Feed weight is reasonably determined
when the manner of determining the feed weight is mutually acceptable
to both the feed provider and the livestock grower or poultry grower.
Extending existing regulations governing weighing practices and
technical requirements for scales to include weighing feed will result
in uniform requirements for weighing that affect payment and settlement
to livestock growers and poultry growers. Since feed weights are an
integral part of the payment or settlement calculation in many
livestock and poultry growing arrangements, basic scale requirements
and weighing procedures are critical to assure payment or settlement
based on accurate weights. Most States do not consider feed scales as
commercial devices unless the feed is sold directly to the general
public. Therefore, feed scales that would fall under the purview of
this proposed rule, which are not generally used to sell feed directly
to the general public, are usually not required to be tested by State
weights and measures officials. Thus, State regulatory oversight of the
weighing of feed delivered to livestock growers or poultry growers is
not adequate to address the concerns of these industries.
This proposed rule would modify Secs. 201.49, 201.71, 201.72, and
201.73 of the regulations to include requirements regarding the
weighing of feed whenever feed weight is used as a factor in
determining payment or settlement to a livestock grower or poultry
grower when livestock or poultry is produced under a livestock or
poultry growing arrangement. The proposed modifications in these
sections will make the requirements for feed weighing consistent with
the requirements for the weighing of livestock and live poultry.
Specifically, Sec. 201.49 would be amended to include a paragraph
(c) which would require a scale ticket be issued with specified
information pertaining to the weight and identification of the lot of
feed consistent with the other scale ticket requirements included in
this section. Section 201.71 would be amended to require that scales
weighing feed: (1) Be installed, maintained, operated and tested in
accordance with the National Institute of Standards and Technology
(NIST) Handbook 44, 1996 edition, entitled ``Specifications,
Tolerances, and Other Technical Requirements for Weighing and Measuring
Devices'; (2) be equipped with a printing device used for recording
weight; (3) be of sufficient length and capacity to weigh an entire
load when feed is weighed on a vehicle scale; and (4) be found, upon
test and inspection, to be in a condition to provide accurate weight.
Section 201.72 would be amended to include scales used to weigh feed in
the requirement that scales be tested twice during each calendar year
at intervals of approximately 6 months by competent persons and that
copies of test reports be furnished to the P&S Programs regional
office. Section 201.73 would be amended to require that scales used to
weigh feed be operated by qualified persons in accordance with the
regulations.
Section 201.55 would be amended to require that the actual weight
of feed be shown on scale tickets or otherwise be explained and that
the weight of picked up or returned excess feed be reasonably
determined, documented and credited back to the livestock grower or
poultry grower. Feed weight is reasonably determined when the manner of
determining the feed weight is mutually acceptable to both the feed
provider and the livestock grower or poultry grower.
The proposed rulemaking should not impose any significant
additional regulatory burden on the affected industries since the feed
scales of many subject firms are routinely tested, whether by State
weights and measures organizations or by private scale companies as a
normal business practice. Recordkeeping under the proposed regulations
would impose little burden upon subject firms since a majority of the
affected entities utilize adequate weighing and documentation
procedures. Under current regulations, firms subject to the P&S Act are
not required to file copies of their feed scale test reports with P&S,
although the proposed regulations will require firms subject to the P&S
Act to file copies of the scale test reports with the appropriate P&S
regional office.
Executive Order 12866
This rule has been determined to be significant for the purpose of
E.O. 12866 and, therefore, has been reviewed by the Office of
Management and Budget.
Executive Order 12988
This rule has been reviewed under E.O. 12988, Civil Justice Reform,
and is not intended to have retroactive effect. This amendment will not
pre-empt State or local laws, regulations, or policies unless they
present an irreconcilable conflict with this rule.
Effects on Small Entities
GIPSA proposes to amend Secs. 201.49, 201.55, 201.71, 201.72, and
201.73 to include feed weighing when the weight of feed is a factor in
determining payment or settlement to livestock
[[Page 15940]]
growers or poultry growers. The additional information collection is
required to provide such growers assurance that feed scales are being
tested and maintained properly, that feed is accurately weighed or
reasonably determined, and that recipients of feed are receiving proper
and adequate documentation of the feed weight.
The economic impact of the proposed regulations will be minimal.
Approximately 260 poultry integrators currently supply feed to poultry
growers and an estimated 50 additional entities operating subject to
the P&S Act currently supply feed to livestock growers where the weight
of feed is an integral factor in determining payment or settlement to
livestock growers or poultry growers. Most subject firms deliver feed
directly from their own feed mills, but a few order feed from
independent feed mills for delivery to livestock growers or poultry
growers. In each case, subject firms would be responsible for ensuring
that scales used to determine the weights of feed have a printing
device and conform to the specifications of the NIST Handbook 44 (H-
44), 1996 edition. Currently, most feed scales have a weight printing
device and conform with H-44 requirements. Scale installation companies
usually do not install a scale system that is not approved or
appropriate for weighing feed under the proposed amended regulations.
Therefore, we do not anticipate any significant economic impact.
Under the proposed regulation, subject firms would be required to
test their scales twice a year and submit a copy of the test reports to
the appropriate P&S regional office. Most entities currently have their
scales tested at least twice a year either by State weights and
measures officials or by private scale companies which would satisfy
the semiannual testing requirement. Those entities not conducting two
scale tests a year would be required to employ a scale company to test
the scale a second time during the year or request a second test from
the State. Feed manufacturers, as is customary in most industries
dealing in bulk commodities, have their scales tested frequently to
ensure accurate weights, prevent system malfunction, and avoid down
time.
There would be a minimal recordkeeping burden on the industry to
submit a copy of the scale test report, on a semiannual basis, to the
P&S regional office. This burden would entail obtaining a copy of the
scale test report, which is completed by either the State or private
scale company as a matter of routine documentation, and mailing it to
the P&S regional office. Many States and scale companies mail the
copies of the scale test reports to the P&S regional office for the
customer.
Compliance with the requirements for scale tickets is projected to
cause minimal burden on the industry. Those companies that do not print
a scale ticket for feed or that print scale tickets that do not include
all the information proposed in the amendment would have to change
their procedures to include the required information. However, the
additional time to add the required information, such as truck or
trailer numbers, grower's name, and whether the truck driver was on or
off at the time of weighing, is insignificant.
In addition, subject firms would be required to retain weight
records in accordance with the provisions of the proposed regulatory
amendment. In general, this does not entail any retention burden beyond
that of normal and customary business practices.
GIPSA has determined that this proposed 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.).
The proposed rule will affect entities in contractual relationships
with livestock growers or poultry growers when those entities supply
feed, either directly or indirectly, to livestock growers or poultry
growers and the weight of the feed is a factor in payment or settlement
to growers. Presently, most of the entities that will be affected by
this proposed rule are poultry slaughterers and processors of chickens
with more than 500 employees and thus do not meet the requirements for
small entities as defined in Section 3 the Small Business Act (13 CFR
part 121(3)). Even though there may be some affected entities that
could be considered small entities, the proposed rule, in most cases,
would not require any substantial incurrence of expense or change in
the routine operations for entities of any size.
Information Collection and Recordkeeping Requirements
The reporting and recordkeeping requirements in Part 201 have been
previously approved by the Office of Management and Budget under
control number 0580-0015. Currently, Secs. 201.49 and 201.72 require,
in brief, that: (1) Scale tickets with certain required information be
retained with the accounting files, and (2) scale test reports be sent
to the P&S regional office. The additional requirements proposed herein
would require persons subject to the P&S Act, where the weight of the
feed is a factor in determining payment or settlement to livestock
growers or poultry growers, to produce scale tickets in accordance with
the same requirements that are imposed on those operating livestock,
poultry, and monorail scales and to provide copies of scale test
reports to the P&S regional office.
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection and
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for GIPSA, Washington
, DC 20503. Please state that your comments refer to Regulations issued
under the Packers and Stockyards Act, RIN 0580-AA64. Please send a copy
of your comments to (1) Deputy Administrator, Packers and stockyards
Programs, GIPSA, USDA, Stop 3641, 1400 Independence Avenue, SW,
Washington, DC 20250-3641; and (2) Clearance Officer, OCIO, USDA, Room
404-W, 1400 Independence Avenue, SW, Washington, DC 20250. A comment to
OMB is best assured of having its full effect if OMB receives it within
30 days of publication of this proposed rule. All comments will become
a matter of public record.
The estimated 300 firms that will be affected by this proposed
amendment are expected to spend an estimated 10 additional hours per
year complying with the semiannual scale testing requirements and the
routine completion of scale tickets, resulting in a total increase of
3,000 hours per year in the reporting burden of these firms. These
estimates were derived from previously approved burden hours for the
same regulatory report and recordkeeping requirements for weighing
livestock and live poultry.
Comments are invited on: (a) Whether the collection of information
is necessary for the proper performance of the functions of the Agency,
including whether the information will have practical utility; (b) the
accuracy of the Agency's estimate of the burden of the proposed
collection of information including the validity of the methodology and
assumptions used; (c) ways to enhance the quality, utility, and clarity
of the information to be collected; and (d) ways to minimize the burden
of the collection of information on those who are required to comply,
including through the use of appropriate automated, electronic,
mechanical, or other technological collection
[[Page 15941]]
techniques or forms of information technology.
Implementing this proposed rule would change burdens in the
currently approved collection of information to:
Estimate of burden: Public reporting and recordkeeping burden for
this collection of information is estimated to average 8.5 hours per
response.
Respondents: Livestock auction markets, livestock dealers, packer
buyers, meat packers, and live poultry dealers.
Estimated annual number of responses per respondent: 3.2.
Estimated annual number of responses: 24,815.
Estimated total annual burden on respondents: 304,106.
The hours above (304,106) reflect the total burden hours for the
current information collection in conjunction with the proposed
amendment to the weighing regulations. The amended weighing regulation
is calculated to add only an additional 3,000 burden hours.
Copies of this information collection can be obtained from
Clearance Officer, OCIO, USDA, room 404-W, 1400 Independence Avenue,
Washington, DC 20250.
List of Subjects in 9 CFR Part 201
Reporting and recordkeeping requirements, Trade practices
For the reasons set forth in the preamble, 9 CFR part 201 is
amended to read as follows:
PART 201--[Amended]
1. The authority citation for Part 201 would be revised to read as
follows:
Authority: 7 U.S.C. 204, 228; 7 CFR 2.22, 2.81.
2. Section 201.49 would be amended by revising the heading and
adding paragraph (c) to read as follows:
Sec. 201.49 Requirements regarding scale tickets evidencing weighing
of livestock, live poultry, and feed.
* * * * *
(c) Feed. (1) Whenever feed is weighed by or on behalf of a
stockyard owner, market agency, dealer, packer, or live poultry dealer
where the weight of feed is a factor in determining payment or
settlement to a livestock grower or poultry grower, a scale ticket
shall be issued which shall show:
(i) The name of the agency performing the weighing service or the
name and location of the firm responsible for supplying the feed;
(ii) The name and address of the livestock grower or poultry
grower;
(ii) The name or initials or number of the person who weighed the
feed, or if required by State law, the signature of the weigher;
(iv) The location of the scale;
(v) The gross weight, tare weight, and net weight of each lot
assigned to an individual grower, if applicable;
(vi) The date and time gross weight and tare weight, if tare weight
is applicable, are determined;
(vii) The identification of each lot assigned to an individual
grower by vehicle or trailer compartment number and seal numbers, if
applicable;
(viii) Whether the driver was on or off the truck at the time of
weighing, if applicable; and
(ix) The license number or other identification numbers of the
truck and trailer, if weighed together, or trailer if only the trailer
is weighed, if applicable.
(2) 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 retained by the person subject to the P&S
Act, and a second copy shall be furnished to the livestock grower or
poultry grower.
(Approved by the Office of Management and Budget under control
number 0580-0015)
3. Section 201.55 would be revised to read as follows:
Sec. 201.55 Purchases, sales, acquisitions, payments and settlements
to be made on actual weights.
(a) Except as provided in paragraph (b) of this section, whenever
livestock or live poultry is bought, sold, acquired, paid, or settled
on a weight basis, or whenever the weight of feed is a factor in
determining payment or settlement to a livestock grower or poultry
grower by a stockyard owner, market agency, dealer, packer, or live
poultry dealer, payment or settlement shall be on the basis of the
actual weight of the livestock, live poultry, and/or feed shown on the
scale ticket. If the actual weight used is not obtained on the date and
at the place of transfer of possession, this information shall be
disclosed with the date and location of the weighing on the
accountings, bills, or statements 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.
(b) Every stockyard owner, market agency, dealer, packer, and live
poultry dealer shall reasonably determine, document, and account for
the weight of any feed that is picked up from or returned by a
livestock grower or poultry grower whenever the weight of the feed is a
factor in determining the payment or settlement due to such livestock
grower or poultry grower.
(Approved by the Office of Management and Budget under control
number 0580-0015)
4. Section 201.71 would be 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, live poultry, or feed for the purposes of purchase, sale,
acquisition, payment, or settlement shall be installed, maintained, and
operated to ensure 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 (NIST) 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, DC 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, DC 20408.
(b) All scales used by stockyard owners, market agencies, dealers,
packers, and live poultry dealers to weigh livestock, livestock
carcasses, live poultry or feed for the purpose of purchase, sale,
acquisition, payment, or settlement of livestock or live poultry and
all scales used for the purchase, sale, acquisition, payment, or
settlement of livestock on a carcass weight basis shall be equipped
with a printing device which shall record weight values on a scale
ticket or other document.
(c) All vehicle scales used to weigh livestock, live poultry or
feed for purposes of purchase, sale, acquisition, payment, or
settlement of livestock or live poultry shall be of sufficient length
and capacity to weigh the entire vehicle as a unit: Provided, That a
trailer may be uncoupled from the tractor and weighed as a single unit.
(d) No scale shall be operated or used by any stockyard owner,
market agency, dealer, packer, or live poultry dealer to
[[Page 15942]]
weigh livestock, livestock carcasses, live poultry, or feed for
purposes of purchase, sale, acquisition, payment, or settlement of
livestock, livestock carcasses or live poultry unless it has been found
upon test and inspection, as specified in Sec. 201.72, to be in a
condition to give accurate weight. If a scale is inspected or tested
and found to be in a condition to give incorrect or inaccurate weights
or if any repairs, adjustments or replacements are made to a scale, it
shall not be used until it has been inspected and tested and determined
to meet all accuracy requirements specified in the regulations.
5. Section 201.72 would be revised to read as follows:
Sec. 201.72 Scales; testing of.
(a) Each stockyard owner, market agency, dealer, packer, or live
poultry dealer who weighs livestock, live poultry, or feed for purposes
of purchase, sale, acquisition, payment, or settlement of livestock or
live poultry, or who weighs livestock carcasses for the purpose of
purchase on a carcass weight basis, or who furnishes scales for such
purposes, shall cause such scales to be tested by competent persons in
accordance with the regulations at least twice during each calendar
year at intervals of approximately 6 months. More frequent testing will
be required in cases where the scale does not maintain accuracy between
tests.
(b) Each stockyard owner, market agency, dealer, packer, or live
poultry dealer who weighs livestock, livestock carcasses, live poultry
or feed for purposes of purchase, sale, acquisition, payment, or
settlement of livestock, livestock carcasses or live poultry shall
furnish reports of such tests and inspections on forms prescribed by
the Administrator. The stockyard owner, market agency, dealer, packer
or live poultry dealer shall retain one copy of the test and inspection
report and shall file one copy with the P&S regional office for the
region in which the scale is located.
(c) When scales used for weighing livestock, livestock carcasses,
live poultry, or feed are tested and inspected by an agency of a State
or municipality or other governmental subdivision, the forms ordinarily
used by such agency for reporting test and inspection of scales shall
be accepted in lieu of the forms prescribed for this purpose by the
Deputy Administrator if such forms contain substantially the same
information.
(Approved by the Office of Management and Budget under control
number 0580-0015)
6. Section 201.73 would be revised to read as follows:
Sec. 201.73 Scale operators to be qualified.
Stockyard owners, market agencies, dealers, packers, and live
poultry dealers shall employ qualified persons to operate scales for
weighing livestock, livestock carcasses, live poultry, or feed for the
purposes of purchase, sale, acquisition, payment, or settlement of
livestock, livestock carcasses, or live poultry and they shall require
such employees to operate the scales in accordance with the
regulations.
Done at Washington, DC, this March 26, 1999.
Harold W. Davis,
Acting Administrator, Grain Inspection, Packers and Stockyards
Administration.
[FR Doc. 99-8068 Filed 4-1-99; 8:45 am]
BILLING CODE 3410-EN-P