[Federal Register Volume 67, Number 128 (Wednesday, July 3, 2002)]
[Proposed Rules]
[Pages 44571-44573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16639]


 ========================================================================
 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. 67, No. 128 / Wednesday, July 3, 2002 / 
Proposed Rules  

[[Page 44571]]



DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Part 800

[Docket Number FGIS 2002-003]
RIN 0580-AA76


Exceptions to Geographic Areas for Official Agencies Under the 
USGSA

AGENCY: Grain Inspection, Packers and Stockyards Administration 
(GIPSA), USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would revise regulations issued under the 
United States Grain Standards Act (USGSA) to establish criteria to 
allow more than one designated official agency to inspect or weigh 
grain within a single geographic area. This proposal would enhance the 
orderly marketing of grain by providing segments of the grain industry 
with more cost-effective and responsive official grain inspection and 
weighing services without undermining the integrity of the official 
system.

DATES: Written comments must be submitted on or before September 3, 
2002.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Written comments must be submitted to Tess 
Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, 
Washington, DC 20250-3604, or faxed to (202) 690-2755. Comments may 
also be sent by electronic mail: [email protected]. Please state 
that your comments refer to Docket Number FGIS 2002-003. All comments 
will be available for public inspection in the above office during 
regular business hours (7 CFR 1.27 (b)).

FOR FURTHER INFORMATION CONTACT: Neil Porter, Director, Compliance 
Division at 202-720-8262

SUPPLEMENTARY INFORMATION:

Executive Order 12866, Executive Order 12988, Regulatory Flexibility 
Act, and the Paperwork Reduction Act

    This proposed rule has been determined to be nonsignificant for the 
purpose of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This action is not intended to have a retroactive 
effect. The U.S. Grain Standards Act (USGSA) (7 U.S.C. 71 et seq.) 
provides in Sec. 87g that no subdivision may require or impose any 
requirements or restrictions concerning the inspection, weighing, or 
description of grain under the USGSA. Otherwise, this proposed rule 
would not preempt any State or local laws, regulations, or policies 
unless they present irreconcilable conflict with this proposed rule. 
There are no administrative procedures that must be exhausted prior to 
any judicial challenge to the provisions of this proposed rule.
    Also, pursuant to the requirements set forth in the Regulatory 
Flexibility Act, the Administrator of Grain Inspection, Packers and 
Stockyards Administration (GIPSA) has determined that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities as defined pursuant to the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). GIPSA conducted a 6-year 
voluntary pilot program. The pilot program permitted more than one 
official agency to operate in the same geographic area. There are 58 
official agencies (15 States and 43 private agencies) designated under 
the USGSA. Thirty-six agencies (7 States and 29 private agencies) or 61 
percent participated in the pilot program. All 43 private agencies are 
classified as business services, and all are ``small business 
entities'' under the guidelines of the Small Business Administration 
(SBA). The SBA does not classify States as small or large business 
entities. Volumes were down for state agencies. Of the 43 private 
agencies, 29 or 67 percent participated in the pilot program. Fourteen 
of the 29 saw an increase in service requests and 15 saw a decrease in 
service requests due to the greater flexibility provided by the pilot 
program. All increases and decreases in service requests represented 
inspections of railcars or barges. A 5-year average of official railcar 
and barge inspections is about 850,000 railcars per year, and about 
28,000 barges per year. Less than 2 percent of the total number of 
railcars and less than 3 percent of the total number of barges were 
inspected under the pilot program by designated official agencies.
    The customers (grain elevators) of the official agencies that 
requested service under the pilot program represented a mix of both 
large and small entities as defined for the grain industry by the SBA. 
GIPSA expects that this would remain the case. Approximately 70 percent 
of the 128 grain elevators that participated in the pilot program were 
small entities under the SBA guidelines, and accounted for 82 percent 
of the service volume for railcars. The 128 elevators that participated 
in the pilot program represent less than two percent of the estimated 
9,695 off-farm storage facilities in the United States that could 
receive official inspection services.
    Fifty-six percent of the volume of railcar inspection services 
during the pilot program was performed at grain elevators that had not 
used official services for more than a year. GIPSA believes that the 
pilot program has enhanced the orderly marketing of grain by providing 
grain elevators with improved services without undermining the 
integrity of the USGSA and the official system. At the same time, there 
has been no significant economic impact on small entity official 
agencies or grain elevators.
    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the information collection and recordkeeping requirements 
in Part 800 have been previously approved by the Office of Management 
and Budget under control number 0580-0013. There would be no additional 
reporting or recordkeeping requirements imposed by this action. The 
request to GIPSA for approval can be done by telephone. GIPSA has not 
identified any other Federal rules which may duplicate, overlap, or 
conflict with this proposed rule.

Background

    In 1976, the USGSA specified exclusive geographic boundaries for 
each designated entity performing official inspections. In later years, 
some grain firms reported delays in getting service due to the distance 
from the inspection laboratories serving them.

[[Page 44572]]

Others had difficulty getting service during harvest or other peak 
demand periods. In April 1993, the General Accounting Office released a 
study, entitled ``Grain Inspection Industry Views on the Decline in 
Official Inspections and Inspection Costs,'' which questioned 
maintaining exclusivity of boundaries.
    On November 1, 1995, GIPSA, under the authority of the 1993 
Amendments to the USGSA, initiated a pilot program to study the effect 
of permitting more than one designated agency to inspect or weigh grain 
in a single geographic area. GIPSA concluded, based on information 
gathered from the pilot program, that less restrictive geographic 
service area requirements on designated official agencies would improve 
the quality of service provided to the American grain industry and 
facilitate the marketing of grain without undermining the integrity of 
the USGSA and the official system. Legislative authority was requested 
to permit more than one designated official agency to provide official 
services within a single geographic area.
    Congress amended the USGSA in 2000 to give the Department 
discretion, under certain circumstances, to allow more than one 
designated official agency to provide official inspection services 
within a single geographic area. GIPSA is now proposing to implement 
this authority by revising the regulations under the USGSA. This 
proposed rule would allow, under certain circumstances, more than one 
designated official agency to provide official inspection services 
within a single geographic area. This proposal would provide segments 
of the grain industry with more cost-effective and responsive official 
grain inspection and weighing services.

Proposed Action

    We propose to revise the following: 7 CFR 800.81, 800.99, 800.116, 
800.117, 800.118, 800.185, and 800.196 to implement changes in the 
USGSA. The proposed changes would allow sampling for official sample-
lots, and weighing of sacked grain outside the geographical boundaries 
assigned to the designated official agency. Program criteria for nonuse 
of service, timely service, and barge probing would be provided. 
Requests for original services would allow qualified applicants to use 
another agency to provide service. Official personnel may operate 
outside of the area of responsibility assigned to them. The proposed 
action would allow exceptions to the designated areas of 
responsibility. The sections regarding certification would be combined 
for a more logical sequence.

List of Subjects in 7 CFR Part 800

    Administrative practice and procedure, Grain.

    For the reasons set out 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 800.81 is amended by revising paragraphs (a)(1) and (d) 
and the information collection parenthetical to read as follows:


Sec. 800.81  Sample requirements; general.

    (a) Samples for official sample-lot inspection service. (1) 
Original official sample-lot inspection service. For original sample-
lot inspection purposes, an official sample shall be obtained by 
official personnel; representative of the grain in the lot; and 
protected from manipulation, substitution, and improper or careless 
handling.
* * * * *
    (d) Restriction on sampling. Official personnel shall not perform 
an original inspection or a reinspection service on an official sample 
or a warehouseman's sample unless the grain from which the sample was 
obtained was located within the area of responsibility assigned to the 
agency or field office at the time of sampling, except as provided for 
in Sec. 800.117, or on a case-by-case basis as determined by the 
Administrator.
* * * * *
(Approved by the Office of Management and Budget under control 
number 0580-0013)

    3. Section 800.99 is amended by revising paragraph (d) to read as 
follows:


Sec. 800.99  Checkweighing sacked grain.

* * * * *
    (d) Restriction on weighing. No agency shall weigh any lot of 
sacked grain unless at the time of obtaining the official weight sample 
the grain from which the sample was obtained was located within the 
area of responsibility assigned to the agency, except as otherwise 
provided for in Sec. 800.117, or on a case-by-case basis as determined 
by the Administrator.
* * * * *
    4. Section 800.116 is revised to read as follows:


Sec. 800.116  How to request original services.

    (a) General. Except as otherwise provided for in Sec. 800.117, 
requests for original services shall be filed with an agency or field 
office authorized to operate in the area in which the original service 
is to be performed. All requests shall include the information 
specified in Sec. 800.46. Verbal requests shall be confirmed in writing 
when requested by official personnel, as specified in Sec. 800.46. 
Copies of request forms may be obtained from the agency or field office 
upon request. If the information specified by Sec. 800.46 is not 
available at the time the request is filed, official personnel may, at 
their discretion, withhold service pending receipt of the required 
information. An official certificate shall not be issued unless the 
information as required by Sec. 800.46 has been submitted, or official 
personnel determine that sufficient information has been made available 
so as to perform the requested service. A record that sufficient 
information was made available must be included in the record of the 
official service.
    (b) Request requirements. Except as provided for in Sec. 800.117, 
requests for original services, other than submitted sample 
inspections, must be made to the agency or field office responsible for 
the area in which the service will be provided. Requests for submitted 
sample inspections may be made with any agency, or any field office 
that provides original inspection service. Requests for inspection or 
Class X weighing of grain during loading, unloading, or handling must 
be received in advance of loading so official personnel can be present. 
All requests will be considered filed when official personnel receive 
the request. A record shall be maintained for all requests. All 
requests for service that is to be performed outside normal business 
hours must be received by 2 p.m. the preceding day.

(Approved by Office of Management and Budget under control number 
0580-0013.)

    5. Section 800.117 is revised to read as follows:


Sec. 800.117  Who shall perform original services.

    (a) General. Original services shall be performed by the agency or 
field office assigned the area in which the service will be provided, 
except as provided in paragraph (b) of this section.
    (b) Exceptions for official agencies to provide service. (1) Timely 
service. If the assigned official agency cannot provide service within 
6 hours of a request, the service may be provided by another official 
agency upon approval from the Service.
    (2) Nonuse of service. If the assigned official agency has not 
provided official services to an applicant for 90 consecutive days, due 
to reasons other

[[Page 44573]]

than seasonal shipping fluctuations, service may be provided by another 
official agency upon approval from the Service.
    (3) Barge probe service. Any official agency may provide probe 
sampling and inspection service for barge-lots of grain with no 
restrictions due to geographical locations.
    (c) Interim service at other than export port locations. If the 
assigned official agency is not available on a regular basis to provide 
original services, and no official agency within a reasonable proximity 
is willing to provide such services on an interim basis, the services 
shall be provided by authorized employees of the Secretary, or other 
persons licensed by the Secretary, until the services can be provided 
on a regular basis by an official agency, as provided in Sec. 800.196.
    6. Section 800.118 is revised to read as follows:


Sec. 800.118  Certification.

    Official certificates shall be issued according to Sec. 800.160. 
Upon request, a combination inspection and Class X weighing certificate 
may be issued when both services are performed in a reasonably 
continuous operation at the same location by the same agency or field 
office. An official certificate shall not be issued unless the 
information as required by Sec. 800.46 has been submitted, or official 
personnel determine that sufficient information has been made available 
so as to perform the requested service. A record that sufficient 
information was made available must be included in the record of the 
official service.

(Approved by Office of Management and Budget under control number 
0580-0013.)

    7. Section 800.185 is amended by revising paragraph (d) and the 
informational parenthetical to read as follows:


Sec. 800.185  Duties of official personnel and warehouse samplers.

* * * * *
    (d) Scope of operations. Official personnel and warehouse samplers 
shall operate only within the scope of their license or authorization 
and except as otherwise provided in Sec. 800.117, operate only within 
the area of responsibility assigned to the official agency, field 
office, or contractor which employs them. Official personnel and 
warehouse samplers may perform official inspection or weighing services 
in a different area of responsibility with the specific consent of the 
Service.
* * * * *

(Approved by the Office of Management and Budget under control 
number 0580-0013)

    8. Section 800.196 is amended by revising paragraph (f)(1) and the 
information collection parenthetical to read as follows:


Sec. 800.196  Designations.

* * * * *
    (f) Area of responsibility. (1) General. Each agency shall be 
assigned an area of responsibility by the Service. Each area shall be 
identified by geographical boundaries and, in the case of a State or 
local government, shall not exceed the jurisdictional boundaries of the 
State or the local government, unless otherwise approved by the 
Service. The area of responsibility may not include any export 
elevators at export port locations or any portion of an area of 
responsibility assigned to another agency that is performing the same 
functions, except as otherwise provided in Sec. 800.117. A designated 
agency may perform official services at locations outside its assigned 
area of responsibility only after obtaining approval from the Service, 
or in accordance with provisions set forth in Sec. 800.117.
* * * * *

(Approved by the Office of Management and Budget under control 
number 0580-0013)

    Dated: June 27, 2002.
Donna Reifschneider,
Administrator.
[FR Doc. 02-16639 Filed 7-2-02; 8:45 am]
BILLING CODE 3410-EN-P