[Federal Register Volume 67, Number 150 (Monday, August 5, 2002)]
[Rules and Regulations]
[Pages 50778-50790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19617]



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Part III





Department of Agriculture





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Farm Service Agency



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7 CFR Parts 735, 736, 737, 738, 739, 740, 741, and 742



Implementation of the United States Warehouse Act; Final Rule

  Federal Register / Vol. 67, No. 150 / Monday, August 5, 2002 / Rules 
and Regulations  

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DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Parts 735, 736, 737, 738, 739, 740, 741 and 742

RIN 0560-AG45


Implementation of the United States Warehouse Act

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations administering the 
United States Warehouse Act (USWA) to implement the provisions of the 
Grain Standards and Warehouse Improvement Act of 2000 (the 2000 Act). 
The 2000 Act amended the USWA in its entirety. The 2000 Act updates 
Federal warehouse licensing operations, authorizes electronic warehouse 
receipts (EWR) for all commodities, and authorizes the Secretary of 
Agriculture (Secretary) to establish regulations for voluntary systems 
for other electronic documents (OED) related to sales and transfers of 
agricultural products. The USWA is administered by the Farm Service 
Agency (FSA).

EFFECTIVE DATE: August 5, 2002.

FOR FURTHER INFORMATION CONTACT: Roger Hinkle, Chief, Licensing 
Authority Branch, Warehouse and Inventory Division, FSA, USDA, Room 
5971, STOP 0553, 1400 Independence Avenue, SW., Washington, DC 20250-
0553, telephone (202) 720-2121, FAX (202) 690-3123, e-mail address, 
[email protected], or the USWA Internet Web page at http://www.fsa.usda.gov/daco/uswa.htm. Persons with disabilities who require 
alternative means for communication of regulatory information (braille, 
large print, audiotape, etc.) should contact USDA's TARGET Center at 
(202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule is issued in conformance with Executive Order 12866 and 
has been determined to be significant and has been reviewed by the 
Office of Management and Budget (OMB).
    A Regulatory Impact Analysis (RIA) was prepared. The use of 
electronic systems will expedite and facilitate the timely receipt and 
acceptance of documents at export or cross-border points in trade of 
agriculture products. The cost to operate the USWA is paid for by users 
of the program. Therefore, governmental cost of implementing the 2000 
Act for the current and future fiscal years is budget neutral, meaning 
expenses must approximate equal collections. Using total grain 
movements as an example of a closed marketing system, and using 
knowledge garnered from cotton industry participants of existing 
electronic systems, FSA's analysis indicates a potential benefit of $74 
million available to the marketplace. While $74 million is a relatively 
small amount in absolute terms for the multi-billion dollar grain 
industry, the industry operates on low margins, and the benefits are 
not insignificant.
    Copies of the RIA are available upon request at the address shown 
above.

Regulatory Flexibility Act

    FSA finds that the Regulatory Flexibility Act does not apply to 
this final rule because the rule does not have a significant economic 
impact on a substantial number of small entities.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988. The provisions of this rule preempt State laws to the extent 
such laws are inconsistent with the provisions of this rule. Before any 
judicial action may be brought concerning the provisions of this rule, 
the Administrative remedies must be exhausted.

Environmental Evaluation

    It has been determined by an environmental evaluation that this 
action will have no significant impact on the quality of the human 
environment. Therefore, neither an environmental assessment nor an 
Environmental Impact Statement is needed.

Executive Order 12372

    The provisions and activities of this Act are not subject to the 
provisions of Executive Order 12372, which require intergovernmental 
consultation with State and local officials. See the notice related to 
7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

Unfunded Mandates Reform Act of 1995

    The provisions of Title II of the Unfunded Mandates Reform Act of 
1995 are not applicable to this rule because the rule does not mandate 
expenditures by State, local or tribal governments, in the aggregate, 
or by the private sector, of the threshold amount, $100 million.

Executive Order 12612

    It has been determined that this rule/activity does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism Assessment. The provisions contained in this final rule will 
not have a substantial direct effect on States or their political 
subdivisions or on the distribution of power and responsibilities among 
the various levels of government.

Paperwork Reduction Act

    This final rule requires only minor changes to the information 
collection requirements that are currently approved by OMB under 
control number 0560-0120. A proposed rule containing an estimate of the 
information collection burden of these regulations was published on 
September 4, 2001, in the Federal Register [66 FR 46310] for public 
comment. FSA received comments concerning the use of acronyms to 
identify when an information block or data field is intentionally 
unused. FSA addresses this issue in the background of the final rule. A 
new request for approval of the information collections has been 
submitted to OMB.

Background

    The 2000 Act, enacted on November 9, 2000, revises the USWA. The 
2000 Act provides for licensing and inspection of warehouses used to 
store and handle agricultural products, issuance of warehouse receipts, 
including EWR's, for agricultural products, and for other purposes.
    The USWA, originally enacted in 1916, authorized the Secretary to 
license warehouse operators who stored agricultural products and 
persons to sample, weigh, inspect and grade agricultural products. The 
USWA licensing program has always been voluntary and regulated 
licensees in order to protect depositors.
    The 2000 Act includes several provisions that thoroughly modernize 
the program and reflect the current technology advancements within the 
agricultural marketing systems. The new provisions make U.S. 
agriculture more competitive in both domestic and foreign markets 
through efficiencies and cost savings provided by today's computer 
technology and information management systems. These new provisions 
include: (1) Extending the USWA's authority to all agricultural 
products, including a processed product of an agricultural commodity; 
(2) granting the Secretary the power to establish regulations governing 
one or more electronic systems under which EWR's or OED's related to 
the shipment, payment and financing of domestic and foreign 
agricultural products may be issued or transferred; (3) allowing

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licensees or providers to provide a bond or other financial assurance 
as the Secretary determines appropriate; (4) allowing warehouse 
operators to allocate storage space to a depositor; (5) requiring 
warehouse operators to issue warehouse receipts only when requested by 
the depositor; and (6) allowing for arbitration.
    The operation of the licensing program for warehouse operators, 
inspectors, samplers, classifiers, and weighers is not substantially 
changed by the final rule. The general licensing program requirements 
are furnished in subparts B and C, with the more specific requirements 
stated in the licensing agreements.
    Section 3(h) of the 2000 Act allows the Secretary to issue 
regulations governing one or more electronic systems under which EWR's 
may be issued and transferred and OED's relating to the shipment, 
payment, and financing of the sale of agricultural products. 
Previously, EWR's were only authorized for cotton. The authority for 
electronic conveyance of other business documents (such as grade and 
weight certificates, phytosanitary certificates, bills of lading, 
export evidence certificates or letters of credit) is a new authority. 
The final rule provides for a system where FSA will establish 
regulatory guidelines for systems for the electronic conveyance of 
these and OED's that will allow their transfer from buyer to seller 
across state and international boundaries.
    The structure will mirror the structure established for cotton 
EWR's consisting of independent providers who have signed an agreement 
with FSA. Section 735.300 provides the general warehouse requirements 
applicable to all warehouse receipts, whether paper or electronic, for 
any agricultural product. Requirements specific to EWR's are found in 
Sec. 735.303.
    The final rule establishes two provider agreements, one for EWRs 
and electronic USWA documents and one for OEDs. The EWR provider 
agreement for EWR's and electronic USWA documents will cover all 
approved agricultural products. Separate addenda will be developed to 
cover the commodity-specific EWR's. The second provider agreement will 
cover all OED's. Separate addenda may be developed for each specific 
document.
    Section 11(e)(4) of the 2000 Act provides that ``an electronic 
receipt issued or other electronic document transferred, in accordance 
with this Act shall not be denied legal effect, validity, or 
enforceability on the ground that the information is generated, sent, 
received, or stored by electronic or similar means.'' Accordingly, this 
final rule sets forth in subpart E the manner in which FSA may approve 
a private person to establish a system that accomplishes these 
functions. Under the provider agreement for these functions, in 
addition to other activities, a party can take a paper document 
relating to the shipment, payment, and financing of the sale of an 
agricultural product to an approved provider and the provider may 
generate an identical electronic document for electronic transmission. 
This aspect of the USWA will allow parties to conduct all aspects of 
these agricultural transactions in an electronic manner, whereas 
currently, in many instances, necessary documents are in a paper format 
and must be physically delivered to another party.
    The 2000 Act authorizes the Secretary to assess and collect fees 
from Federally-licensed warehouse operators, approved providers and 
other users of the USWA. The fees are intended to offset the cost of 
operating the revised USWA. The fee schedule is included as an addendum 
to the licensing and provider agreement and is available from the 
Deputy Administrator for Commodity Operations, in Washington, DC.

Discussion of Public Comments and Changes from the Proposed Rule

    FSA published a proposed rule requesting public comments in the 
Federal Register on September 4, 2001 [66 FR 46310-46343], with a 30-
day comment period.
    FSA received a total of 83 comments from seven trade associations 
(representing the overall cotton industry, grain and feed industry, 
cotton warehousing, terminal grain merchants, community bankers, 
warehouse control officials, and fire protection), five cotton 
warehouse operators, two EWR providers, one grain warehouse operator, 
one e-commerce company, one electronic cotton marketing service 
company, one board of trade clearing corporation, one FSA warehouse 
examiner, and one FSA retiree.
    Most of the comments received supported the changes proposed by 
FSA. Some comments and suggestions were of an administrative nature 
that do not impact the final rule and will be addressed in either FSA 
internal procedures or in the applicable licensing or provider 
agreements. And, while FSA did adopt some of the recommendations and 
understands the concerns and opinions expressed by the respondents, FSA 
did not adopt all of them. The final rule gives FSA necessary 
flexibility and is consistent with statutory requirements. Therefore, 
in consideration of comments and suggestions received, FSA adopts the 
proposed rule as final, with the changes discussed below. Changes made 
in response to public comments are noted.

Changes to Part 735 in General

    Three respondents requested that the language be more specific and 
found the term ``program requirements'' confusing. In response, FSA 
removed all references to ``program'' throughout the final rule and 
detailed the extent of authority in Sec. 735.1, Applicability. The word 
``activities'' was substituted for ``program'' throughout part 735. 
Also, in the interest of clarity, FSA replaced the term ``approval'' 
with the term ``authority'' throughout part 735. Also, all references 
to a ``license'' that referred to a piece of paper were changed to 
``certificate of license'' in order to separate references to a paper 
document from the concept of an electronic ``license.'' Similarly, all 
references to ``authorization'' that referred to a piece of paper were 
changed to ``certificate of authorization'' in order to separate the 
paper documents from the electronic ``authorization.''

Changes to Specific Sections

Subpart A--General Provisions

Section 735.1  Applicability

    One comment was received addressing situations in which State 
agencies advise USWA-licensed warehouses that the warehouse operator 
``* * * must obtain State weigher, grader and/or handler licenses'' and 
suggested that FSA should ``clarify that a Federal Service License 
precludes the need for State licensing in this area.'' In Rice v. Santa 
Fe Elevator Corp., 331 U.S. 218, 234-236 (1947) the U.S. Supreme Court 
found that the USWA preempted State law with respect to State laws when 
it was clear that Congress had intended to regulate the activities of 
USWA-licensed warehouses: ``The test, therefore, is whether the matter 
on which the State asserts the right to act is in any way regulated by 
the Federal Act. If it is, the federal scheme prevails though it is a 
more modest, less pervasive regulatory plan than that of the State.'' 
Among other provisions of the USWA, section 3(g) provides that: 
``Subject to the other provisions of this Act, the Secretary may 
prescribe the duties of a warehouse operator operating a warehouse 
licensed under this Act with respect to the warehouse operator's care 
of and responsibility for agricultural products stored or handled by 
the warehouse operator.'' Accordingly, a USWA-licensed warehouse 
operator must meet the

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conditions set forth in 7 CFR part 735 and the accompanying licensing 
agreements. Such a warehouse operator does not have to meet State 
imposed requirements relating to warehousing, grading, weighing, 
storing, merchandising or other similar activities otherwise applicable 
to State-licensed warehouses in order to operate a USWA-licensed 
facility.
    But, to the extent a person engages in these types of activities 
and they do not relate to the activities of the USWA-licensed facility 
(for example, if a USWA-licensed warehouse is operated with respect to 
oilseeds in the western part of a State and a separate facility not 
covered by the USWA license is operated in the eastern part of a State 
with respect to dry edible beans) then the activities in the non-USWA 
licensed facility would be solely a matter of State jurisdiction. In 
order to provide greater clarity on this matter, the regulations, as 
opposed to the single agreement referenced by the respondent, is 
revised at 7 CFR 735.1 by adding a new subsection (c) to read as 
follows: ``(c) Compliance with State laws relating to the warehousing, 
grading, weighing, storing, merchandising or other similar activities 
is not required with respect to activities engaged in by a warehouse 
operator in a warehouse subject to a license issued in accordance with 
this part.''

Section 735.2  Administration

    Two respondents suggested that FSA provide advance notice of 
changes to the regulations to licensees and other affected persons. In 
consideration of the suggestions, FSA added paragraphs (c) and (d) 
describing methods for notifying licensees and authorized providers of 
changes to the various agreements.

Section 735.3  Definitions

    (1) FSA deleted the definition and use of ``approval'' in the final 
rule to prevent confusion with Commodity Credit Corporation and other 
USDA programs.
    (2) A respondent expressed confusion about the definition of 
``central filing system,'' with respect to the contextual meaning of 
the terms ``transparent'' and ``anonymous.'' FSA has revised the 
definition for clarity. The applicable licensing and provider 
agreements will be revised accordingly.
    (3) A definition for the term ``certificate'' was added to clarify 
the definition of ``license.''
    (4) In response to the suggestion of one respondent that FSA insert 
the term ``XML'' into the definition of ``electronic document,'' the 
term ``advanced communication methods'' was inserted.
    (5) At the suggestion of one respondent, FSA amended the definition 
of ``other electronic documents'' to exclude USWA electronic documents.
    (6) A respondent suggested modifying the definition of ``schedule 
of fees'' to include those fees ``FSA assesses for licensing and 
provider agreement services.'' In addition to adopting the suggestion, 
FSA added a new definition ``schedule of charges'' that refers to the 
rates of charges assessed by warehouse operators. This differentiates 
what warehouse operators or providers charge their customers from the 
fees assessed warehouse operators or providers by FSA.
    (7) At the suggestion of one respondent, FSA added a definition of 
``USWA electronic document.''
    (8) At the suggestion of one respondent FSA inserted the phrase 
``for the purpose of interstate or foreign commerce'' into the 
definition of ``warehouse.''
    (9) A definition of the term ``warehousing activities'' was added 
to clarify the definitions of both ``license'' and the duties of 
warehouse operators.
    (10) Definitions of the terms ``examiner,'' ``holder,'' ``provider 
agreement'' and ``service license'' were revised for clarity.

Section 735.4  Fees

    At the suggestion of one respondent and to conform to the language 
in the enabling legislation, FSA included a statement that the 
assessing of fees is intended to offset the costs of administering the 
USWA.

Section 735.6   Suspension, Revocation and Liquidation

    FSA expanded the section to include liquidation of stocks and to 
specify additional reasons for a suspension, revocation or liquidation 
and to further clarify FSA's jurisdiction in a suspension or revocation 
of a license or liquidation of stocks.

Section 735.8 Appeals

    FSA changed all references to deadlines for seeking review of 
actions from 21 business days to 28 calendar days in order to simplify 
business practices.

Section 735.9  Dispute Resolution and Arbitration of Private Parties

    A number of respondents objected to binding arbitration, which they 
interpreted as a requirement in the proposed rule. In response, FSA 
clarified the language to make it clear that arbitration is an 
acceptable but not a mandatory method of dispute resolution and that 
FSA will provide no assistance or representation to any of the parties 
in such disputes.

Section 735.14(d)  Bonding and Other Financial Assurance Requirements

    The term ``approved'' was changed to ``accepted'' to correct an 
operational error.

Subpart A--General Provisions--Comments Not Adopted

    (1) One respondent was concerned that FSA has had to resort to a 
single, broad set of regulations because of the labor- and resource-
intensive process of amending regulations.
    FSA has determined to remove the eight commodity-specific 
regulations and replace them with one general regulation. The final 
rule updates and modifies the regulatory language, merges all similar 
language from the specific commodity regulations and removes 
redundancies, but does not substantially change the program operations. 
The commodity-specific requirements have been moved to the applicable 
licensing or provider agreements.
    As a result of the merger of all the specific-commodity warehouse 
regulations into one generic regulation, the cotton flow standard 
previously codified at 7 CFR 735.201, is not included in the final 
rule. The cotton flow standard has been included in the cotton 
licensing and EWR provider agreements.
    (2) A suggestion that the term ``agricultural product'' be 
redefined to refer to ``commodity'' was not adopted because the term as 
used in this final rule was defined in the enabling legislation.
    (3) A suggestion that FSA should not be in the business of 
regulating shipping orders because they are non-title documents and 
therefore, should not be part of this process was not adopted because 
the enabling legislation does not make a distinction between title and 
non-title documents. Further, FSA is not regulating shipping orders or 
similar documents. FSA is establishing the framework by which such 
documents may be electronically generated and transmitted by interested 
parties.
    (4) A suggestion that FSA should use the National Fire Protection 
Association's published standards for the storage of records was not 
adopted because the publication had not received USDA clearance and 
approval.

Subpart B--Warehouse Licensing

Section 735.100  Application

    FSA reworded the required documentation for a corporation to

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correct an error and to present the information in a more usable 
format.

Section 735.106  Excess Storage and Transferring of Agricultural 
Products

    In response to a suggestion, FSA clarified the rule to specify DACO 
as the authority for allowing the transfer of stored agricultural 
products to another warehouse.

Section 735.107  Warehouse Charges and Tariffs

    The schedule of charges and rates language was revised for clarity.

Section 735.108  Inspections and Examinations of Warehouses

    (1) In response to several comments, the section was expanded to 
specify additional conditions in the examination of warehouses.
    (2) In response to several comments about the nature of 
examinations, FSA added paragraphs (b), (c), (d) and (e) to further 
clarify the warehouse examination process.

Section 735.110  Conditions for Delivery of Agricultural Products

    In response to several comments, FSA modified this section to 
clarify the timely cancellation of warehouse receipts.

Subpart B--Warehouse Licensing--Comments Not Adopted

    One respondent commented that irrevocable letters of credit were 
expensive and often not issued for more than one year. FSA has chosen 
to offer this as one of several acceptable, but not mandatory, forms of 
financial assurance that warehouse operators may offer to FSA to meet 
their financial requirement.

Subpart C--Inspectors, Samplers, Classifiers and Weighers--Comments Not 
Adopted

    One respondent interpreted Sec. 735.200, Service licenses, to 
include a requirement for competency testing by warehouse operators of 
all service licensing applicants. FSA revised the language to conform 
to the enabling legislation.

Subpart C--Inspectors, Samplers, Classifiers and Weighers--Changes 
Requested but Not Adopted

    One respondent commented that service licenses should not be a 
function of the USWA. FSA has determined that issuing service licenses 
for activities described in this subpart is an appropriate role for the 
Federal government. Accordingly, the requested change is not adopted.

Subpart D--Warehouse Receipts

Section 735.300  Warehouse Receipt Requirements

    (1) In response to many questions and comments, FSA added 
instructions on filling blank areas in the required data fields of the 
warehouse receipt.
    (2) Several respondents expressed concerns about the language 
concerning the issuance of warehouse receipts and the language required 
in the various data sections of the warehouse receipt. FSA revised the 
section to provide that those who are subject to this rule, are to 
refer to the applicable licensing or provider agreement for individual 
specifications of the required data required for warehouse receipts. 
FSA also expanded upon the language dealing with the issuance of 
duplicate warehouse receipts to make clear the prohibition on issuing 
duplicate warehouse receipts. The term ``grade'' replaces ``quality'' 
to agree with the enabling legislation.

Section 735.302  Electronic Warehouse Receipts

    Several respondents expressed concerns regarding the differences 
between paper warehouse receipts and EWR's. FSA split this section into 
two sections, Sec. 735.302, Paper warehouse receipts, and Sec. 735.303, 
Electronic warehouse receipts, to clarify the distinction. A number of 
suggestions were considered and adopted in modifying and clarifying the 
language of the new sections. Also, FSA revised language now in the new 
Sec. 735.303(b)(6) to correct an error concerning correcting 
information on EWR's.

Subpart E--Electronic Providers--Comments Adopted

Section 735.401  Electronic Warehouse Receipt and USWA Electronic 
Document Providers

    (1) Several respondents expressed opinions concerning financial 
standards, required financial assurance instruments and insurance 
requirements. After careful consideration of the comments received FSA 
has determined to increase the net worth and the insurance requirement 
for providers of EWR's. The net worth requirement was increased from 
$25,000 to $100,000 and the insurance coverage required was increased 
to $4 million. The specific requirements were moved from the 
regulations to the EWR provider agreement and addenda.

Section 735.402  Providers of Other Electronic Documents

    (2) Several respondents expressed opinions concerning financial 
standards, required financial assurance instruments and insurance 
requirements. After careful consideration of the comments received FSA 
has determined to move the specific requirements from the regulations 
to the OED provider agreement and addenda.
    (3) Several respondents suggested that the ``conflict of interest'' 
statement set forth in the provider agreements also be included in the 
final rule. FSA concurs and has included the ``conflict of interest'' 
statement in paragraph (5) of the applicable sections in addition to 
the provider agreements.
    (4) Two respondents expressed opinions concerning the use of 
documentation approved by FSA when applying for a provider agreement. 
FSA has specified the required documentation necessary when applying to 
be a provider of EWR's and USWA electronic documents or providers of 
OEDs.
    (5) FSA revised the language in Sec. 735.404, Schedule of charges 
and rates, to comply with the new definitions for the various schedules 
of fees.

Subpart E--Electronic Providers--Comments Not Adopted

    (1) One respondent expressed concern that the USWA was involved 
with other than electronic title documents. The enabling legislation 
includes the authorization to utilize any electronic document relating 
to the sale and financing of agricultural products. Accordingly, FSA 
has determined to include all such documents specified in Sec. 735.400, 
Administration.
    (2) Several respondents wanted more flexibility for providers to 
change rates and charges more often than once a year. FSA has chosen to 
keep the limit at once a year to provide certainty to all users.

Section 735.402  Providers of Other Electronic Documents

    (3) FSA received five comments with respect to the proposed 
requirement specified in Sec. 735.402, Providers of other electronic 
documents, that an entity that desires to be approved by FSA as an 
approved provider of electronic documents have a minimum net worth of 
$10 million. One respondent suggested a $1 million requirement would 
allow for a larger number of firms to be approved to be such a 
provider. One respondent requested that FSA review the proposed level 
and ``tie it more closely to the type of electronic document, and 
corresponding risks, that are to be undertaken by the system 
provider.''

[[Page 50782]]

One respondent stated that the level should be lowered to ``* * * 
levels shown in Sec. 735.401(a). Alternatively, some maximum (not to 
exceed) amounts (these amounts should still be lower than the $10 
million and $25 million) could be put in Sec. 735.402(a) and the actual 
(even lower) amounts should be included in the Provider Agreement where 
the figures can be modified as justified over time.'' Later, the same 
respondent noted that ``* * * The figure should be reduced perhaps to 
$500,000 * * *'' One respondent suggested that the level should be 
$100,000 and disagreed with FSA's rationale that the higher level was 
warranted due to the increased risks that these providers have as 
compared with a provider of only electronic warehouse receipts. The 
respondent suggested that if there was a concern about the potential 
risk that these providers may have, that the regulations should be 
revised to provide that such providers not be allowed to generate 
electronic documents from a paper document and that letters of credits 
not be included in the types of documents that such a provider could 
transmit. One respondent recommended a $1 million without any further 
elaboration. Another respondent agreed with FSA's assessment that there 
were increased risks associated with being a provider for all 
electronic documents as compared with only those providers who issue an 
electronic warehouse receipt.
    In proposing a minimum net worth requirement of $10 million, FSA 
took into consideration the potential benefits that could be attained 
by allowing a provider of electronic documents to handle all types of 
documents relating to agricultural commodity transactions. FSA intends 
to implement sections 3(h) and 11(e) of the USWA, as it relates to 
those providers who intend to engage in transactions that are not 
limited to only electronic warehouse receipts, in a manner that 
encompasses as wide a range of transactions as possible. It is not 
FSA's intention to exclude or exert economic hardship on current or 
future providers with these requirements. Nonetheless, the evolution of 
regulating OEDs and OED providers is new and untested, FSA wants to 
assure the public and users of these systems that FSA has properly 
protected them should a failure or loss occur. However, FSA will 
monitor and evaluate these requirements over the next year and make 
adjustments as warranted.
    FSA does not believe that limiting the provider to handling only 
certain types of documents in order to lessen the liability potential 
of a provider is in the best interests of those numerous entities that 
will utilize the system and also believes that such a restraint will 
diminish the ability of entities to reduce costs thus decreasing the 
competitive advantage of U.S. agricultural products sold in export 
markets. Excluding letters of credit and those documents referred to in 
the letter of credit, for example, would mean that there would be no 
savings in time for the completion of financial transactions involving 
virtually all export shipments since those financial institutions 
involved in the transaction would have to wait for physical delivery of 
some documents even though other documents had been transmitted 
electronically. Participants in the transaction may then have incurred 
increased borrowing costs and possibly increased berthing charges with 
respect to the vessel because the vessel would not be authorized to 
leave the port until the financial transaction had been completed.
    In determining which entities FSA should approve to be responsible 
for handling these types of documents, FSA must analyze, at a minimum, 
the risks to participants and to the Federal government by looking at 
the volume of transactions that they will handle, the monetary value of 
individual transactions and the aggregate value of the transactions. 
The total value of agricultural production in the U.S. annually will 
exceed $200 billion and the total value of U.S. agricultural exports 
annually will exceed $50 billion. Individual export shipments of 
soybeans and rice, for example, can exceed $10 million and individual 
shipments of value-added products can be well in excess of this amount. 
FSA anticipates that the total value of transactions that may flow 
through a provider at any one time may exceed $100 million and, 
therefore, has determined that a provider should have a sufficient 
financial net worth in order to handle the liability that accompanies 
the handling of the transactions. For example, if the provider has 
erroneously entered data in the generation of an electronic document 
that relates to the purchase of an entire shipment of an exported 
agricultural commodity, FSA intends that the parties to the transaction 
will have adequate recourse against the provider for any damage that 
may result. Accordingly, FSA has determined that the minimum net worth 
requirement should be at least $10 million and that the provider should 
maintain two insurance policies, one for errors and omissions and one 
for fraud and dishonesty. Each policy must have a minimum coverage of 
$25 million. These requirements are set forth in the OED provider 
agreement.

Section 735.403  Audits

    (4) In response to several comments about limiting examinations to 
be at the provider's invitation and convenience, FSA will not change 
the language in Sec. 735.403, Audits, concerning the examination 
process because such changes would hinder the ability for FSA to 
conduct meaningful examinations.

Section 735.405  Choice of Law

    (5) Three comments were received with respect to the proposed 
requirement that all disputes arising under the electronic document 
provider system, but not those systems dealing only with EWRs, would be 
resolved by using the laws of the State of New York. One respondent 
requested that ``FSA should ensure the conflicting state law are not 
preempted.'' One respondent expressed concern that ``* * * USDA is in 
no position to determine that the laws of one sovereign state are 
better than those of another.'' Another respondent thought that the 
choice of New York ``* * * may be confusing to companies throughout the 
United States that are familiar with their own commercial laws.''
    In proposing to use the law of one jurisdiction to resolve disputes 
arising under the electronic provider system, FSA is attempting to 
interject uniformity among the providers in terms of data required for 
entry into the system and in terms of dispute resolution. FSA is 
concerned that uncertainty in which laws will be applied in multi-State 
and multi-national transactions involving multi-million dollar 
transactions may diminish the viability of this system. Because when a 
person uses the FSA-approved system it is purely voluntary and there is 
no preemption of State law with respect to any transaction conducted in 
any other system established by a private or public entity, any party 
may avoid application of this requirement, and other requirements 
relating to their use of the FSA approved systems, by conducting their 
transactions as they currently do. If this provision were removed, 
conceivably a provider approved by FSA could mandate the use of a given 
State law for use in resolving claims and disputes arising as a result 
of the use of their system. In such a case, if there were several 
providers operating in several different States, different results 
could occur simply because of the selection of an applicable body of 
law by a provider. This problem would be made worse in

[[Page 50783]]

those transactions that initiate in one FSA-approved system and end in 
another FSA-approved system. However, the respondents expressed several 
opinions concerning the proposed requirement that all disputes arising 
under the other electronic document provider system would be resolved 
using the laws of the State of New York. Accordingly, to further 
evaluate these issues, FSA has determined to remove the proposed 
requirement as set forth in Sec. 735.405.

Final Rule

List of Subjects in 7 CFR Part 735

    Administrative practice and procedure, Agricultural commodities, 
Beans, Cotton, Cottonseed, Grain, Nuts, Sugar, Surety Bonds, Tobacco, 
Warehouses, Wool.


    For the reasons stated in the preamble, FSA amends 7 CFR Chapter 
VII as follows:

PART 735--COTTON WAREHOUSES

    1. Part 735 is revised to read as follows:

PART 735--REGULATIONS FOR THE UNITED STATES WAREHOUSE ACT

Subpart A--General Provisions
Sec.
735.1   Applicability.
735.2   Administration.
735.3   Definitions.
735.4   Fees.
735.5   Penalties.
735.6   Suspension, revocation and liquidation.
735.7   Return of suspended or revoked certificates of licensing or 
certificates of authorization.
735.8   Appeals.
735.9   Dispute resolution and arbitration of private parties.
735.10   Posting of certificates of licensing, certificates of 
authorization or other USWA documents.
735.11   Lost or destroyed certificates of licensing, authorization 
or agreements.
735.12   Safe keeping of records.
735.13   Information of violations.
735.14   Bonding and other financial assurance requirements.
Subpart B--Warehouse Licensing
735.100   Application.
735.101   Financial records and reporting requirements.
735.102   Financial assurance requirements.
735.103   Amendments to license.
735.104   Insurance requirements.
735.105   Care of agricultural products.
735.106   Excess storage and transferring of agricultural products.
735.107   Warehouse charges and tariffs.
735.108   Inspections and examinations of warehouses.
735.109   Disaster loss to be reported.
735.110   Conditions for delivery of agricultural products.
735.111   Fair treatment.
735.112   Terminal and futures contract markets
Subpart C--Inspectors, Samplers, Classifiers, and Weighers
735.200   Service licenses.
735.201   Agricultural product certificates; format.
735.202   Standards of grades for other agricultural products.
Subpart D--Warehouse Receipts
735.300   Warehouse receipt requirements.
735.301   Notification requirements.
735.302   Paper warehouse receipts.
735.303   Electronic warehouse receipts.
Subpart E--Electronic Providers
735.400   Administration.
735.401   Electronic warehouse receipt and USWA electronic document 
providers.
735.402   Providers of other electronic documents.
735.403   Audits.
735.404   Schedule of charges and rates.

    Authority: 7 U.S.C. 241 et seq.

Subpart A--General Provisions


Sec. 735.1  Applicability.

    (a) The regulations of this part set forth the terms and conditions 
under which the Secretary of Agriculture through the Farm Service 
Agency (FSA) will administer the United States Warehouse Act (USWA or 
the Act) and sets forth the standards and the terms and conditions a 
participant must meet for eligibility to act under the USWA. The extent 
the provisions of this part are more restrictive, or more lenient, with 
respect to the same activities governed by State law, the provisions of 
this part shall prevail.
    (b) Additional terms and conditions may be set forth in applicable 
licensing agreements, provider agreements and other documents.
    (c) Compliance with State laws relating to the warehousing, 
grading, weighing, storing, merchandising or other similar activities 
is not required with respect to activities engaged in by a warehouse 
operator in a warehouse subject to a license issued in accordance with 
this part.


Sec. 735.2  Administration.

    (a) FSA will administer all provisions and activities regulated 
under the Act under the general direction and supervision of the FSA's 
Deputy Administrator, Commodity Operations (DACO), or a designee.
    (b) DACO may waive or modify the licensing or authorization 
requirements or deadlines in cases where lateness or failure to meet 
such requirements does not adversely affect the licensing or 
authorizations operated under the Act.
    (c) DACO will provide affected licensees or authorized providers 
with changes to their licensing or provider agreements before the 
effective date.
    (d) Licensing and authorization agreement updates will be available 
at:
    (1) DACO's USWA website, and
    (2) The following address: Deputy Administrator, Commodity 
Operations, Farm Service Agency, United States Department of 
Agriculture, STOP 0550, 1400 Independence Avenue, SW, Washington, DC 
20250-0550.


Sec. 735.3  Definitions.

    Words used in this part will be applicable to the activities 
authorized by this part and will be used in all aspects of 
administering the Act.
    Access means the ability, when authorized, to read, change, and 
transfer warehouse receipts or other applicable document information 
retained in a central filing system.
    Agricultural product means an agriculturally-produced product 
stored or handled for the purposes of interstate or foreign commerce, 
including a processed product of such agricultural product, as 
determined by DACO.
    Central filing system (CFS) means an electronic system operated and 
maintained by a provider, as a disinterested third party, authorized by 
DACO where information relating to warehouse receipts, USWA documents 
and other electronic documents is recorded and maintained in a 
confidential and secure fashion independent of any outside influence or 
bias in action or appearance.
    Certificate means a USWA document that bears specific assurances 
under the Act or warrants a person to operate or perform in a certain 
manner and sets forth specific responsibilities, rights, and privileges 
granted to the person under the Act.
    Control of the facility means ultimate responsibility for the 
operation and integrity of a facility by ownership, lease, or operating 
agreement.
    Department means the Department of Agriculture.
    Electronic document means any document that is generated, sent, 
received, or stored by electronic, optical, or similar means, 
including, but not limited to, electronic data interchange, advanced 
communication methods, electronic mail, telegram, telex, or telecopy.
    Electronic warehouse receipt (EWR) means a warehouse receipt that 
is authorized by DACO to be issued or transmitted under the Act in the 
form of an electronic document.

[[Page 50784]]

    Examiner means an individual designated by DACO for the purpose of 
examining warehouses or for any other activities authorized under the 
Act.
    Financial assurance means the surety or other financial obligation 
authorized by DACO that is a condition of receiving a license or 
authorization under the Act.
    Force majeure means severe weather conditions, fire, explosion, 
flood, earthquake, insurrection, riot, strike, labor dispute, act of 
civil or military, non-availability of transportation facilities, or 
any other cause beyond the control of the warehouse operator or 
provider that renders performance impossible.
    Holder means a person that has possession in fact or by operation 
of law of a warehouse receipt, USWA electronic document, or any 
electronic document.
    License means a license issued under the Act by DACO.
    Licensing agreement means the document and any amendment or addenda 
to such agreement executed by the warehouse operator and FSA specifying 
licensing terms and conditions specific to the warehouse operator and 
the agricultural product licensed to be stored.
    Non-storage agricultural product means an agricultural product 
received temporarily into a warehouse for conditioning, transferring or 
assembling for shipment, or lots of an agricultural product moving 
through a warehouse for current merchandising or milling use, against 
which no warehouse receipts are issued and no storage charges assessed.
    Official Standards of the United States means the standards of the 
quality or condition for an agricultural product, fixed and established 
under (7 U.S.C. 51) the United States Cotton Standards Act, (7 U.S.C. 
71) the United States Grain Standards Act, (7 U.S.C. 1622) the 
Agricultural Marketing Act of 1946, or other applicable official United 
States Standards.
    Other electronic documents (OED) means those electronic documents, 
other than an EWR or USWA electronic document, that may be issued or 
transferred, related to the shipment, payment or financing of 
agricultural products that DACO has authorized for inclusion in a 
provider's CFS.
    Person means a person as set forth in 1 U.S.C. 1, a State; or a 
political subdivision of a State.
    Provider means a person authorized by DACO, as a disinterested 
third party, which maintains one or more confidential and secure 
electronic systems independent of any outside influence or bias in 
action or appearance.
    Provider agreement means the document and any amendment or addenda 
to such agreement executed by the provider and FSA that sets forth the 
provider's responsibilities concerning the provider's operation or 
maintenance of a CFS.
    Receipt means a warehouse receipt issued in accordance with the 
Act, including an electronic warehouse receipt.
    Schedule of charges means the tariff or uniform rate or amount 
charged by an authorized person for specific services offered or 
rendered under the Act.
    Schedule of fees means the fees charged and assessed by FSA for 
licensing, provider agreements or services furnished under the Act to 
help defray the costs of administering the Act, and as such are shown 
in a schedule of fees attached to the licensing or provider agreement.
    Service license means the document and any amendment to such 
document, issued under the Act by DACO to individuals certified 
competent by the licensed warehouse operator to perform inspection, 
sampling, grading classifying, or weighing services according to 
established standards and procedures, set forth in Sec. 735.202, at the 
specific warehouse license.
    Stored agricultural products means all agricultural products 
received into, stored within, or delivered out of the warehouse that 
are not classified as a non-storage agricultural product under this 
part.
    User means a person that uses a provider's CFS.
    USWA electronic document means a USWA electronic document initiated 
by DACO to be issued, transferred or transmitted that is not identified 
as an EWR or OED in the appropriate licensing or provider agreement or 
as determined by DACO.
    Warehouse means a structure or other authorized storage facility, 
as determined by DACO, in which any agricultural product may be stored 
or handled for the purpose of interstate or foreign commerce.
    Warehouse capacity means the maximum quantity of an agricultural 
product that the warehouse will accommodate when stored in a manner 
customary to the warehouse as determined by DACO.
    Warehouse operator means a person lawfully engaged in the business 
of storing or handling agricultural products.
    Warehousing activities and practices means any legal, operational, 
managerial or financial duty that a warehouse operator has regarding an 
agricultural product.


Sec. 735.4  Fees.

    (a) FSA will assess persons covered by the Act fees to cover the 
costs of administering the Act.
    (b) Warehouse operators, licensees, applicants, or providers must 
pay:
    (1) An annual fee as provided in the applicable licensing or 
provider agreement; and
    (2) Fees that FSA assesses for specific services, examinations and 
audits, or as provided in the applicable licensing or provider 
agreement.
    (c) The schedule of fees showing the current fees or any annual fee 
changes will be provided as an addendum to the applicable licensing or 
provider agreement or/and:
    (1) Will be available at DACO's USWA Web site, or
    (2) May be requested at the following address: Deputy 
Administrator, Commodity Operations, Farm Service Agency, United States 
Department of Agriculture, STOP 0550, 1400 Independence Avenue, SW., 
Washington, DC 20250-0550.
    (d) At the sole discretion of DACO, these fees may be waived.


Sec. 735.5  Penalties.

    If a person fails to comply with any requirement of the Act, the 
regulations set forth in this part or any applicable licensing or 
provider agreement, DACO may assess, after an opportunity for a hearing 
as provided in Sec. 735.8, a civil penalty:
    (a) Of not more than $25,000 per violation, if an agricultural 
product is not involved in the violation; or
    (b) Of not more than 100 percent of the value of the agricultural 
product, if an agricultural product is involved in the violation.


Sec. 735.6  Suspension, revocation and liquidation.

    (a) DACO may, after an opportunity for a hearing as provided in 
Sec. 735.8, suspend, revoke or liquidate any license or agreement 
issued under the Act, for any violation of or failure to comply with 
any provision of the Act, regulations or any applicable licensing or 
provider agreement.
    (b) The reasons for a suspension, revocation or liquidation under 
this part include, but are not limited to:
    (1) Failure to perform licensed or authorized services as provided 
in this part or in the applicable licensing or provider agreement;
    (2) Failure to maintain minimum financial requirements as provided 
in the applicable licensing or provider agreement;

[[Page 50785]]

    (3) Failure to submit a proper annual financial statement within 
the established time period as provided in the applicable licensing or 
provider agreement.
    (4) Failure to maintain control of the warehouse or provider 
system.
    (5) The warehouse operator or provider requests closure, 
cancellation or liquidation. and
    (6) Commission of fraud against FSA, any depositor, EWR or OED 
holder or user, or any other function or operation under this part.
    (c) FSA retains USWA's full authority over a warehouse operator or 
provider for one year after such license revocation or provider 
agreement termination or until satisfaction of any claims filed against 
such warehouse operator or provider are resolved, whichever is later.
    (d) Upon DACO's determination that continued operation of a 
warehouse by a warehouse operator or an electronic provider system by a 
provider is likely to result in probable loss of assets to storage 
depositors, or loss of data integrity to EWR or OED holders and users. 
DACO may immediately suspend, close, or take control and begin an 
orderly liquidation of such warehouse inventory or provider system data 
as provided in this part or in the applicable licensing or provider 
agreement.
    (e) Any disputes involving probable loss of assets to storage 
depositors, or loss of data integrity to EWR or OED holders and users 
will be determined by DACO for the benefit of the depositors, or EWR or 
OED holders and users and such determinations shall be final.


Sec. 735.7  Return of suspended or revoked certificates of licensing or 
certificates of authorization.

    (a) When a license issued to a warehouse operator or service 
license ends or is suspended or revoked by DACO, such certificates of 
licensing and applicable licensing agreement and certificates of 
authorization must be immediately surrendered and returned to DACO.
    (b) When an agreement with a provider ends or is suspended or 
revoked by DACO, such certificates of authorization and applicable 
provider agreement must be immediately surrendered to DACO


Sec. 735.8  Appeals.

    (a) Any person who is subject to an adverse determination made 
under the Act may appeal the determination by filing a written request 
with DACO at the following address: Deputy Administrator, Commodity 
Operations, Farm Service Agency, United States Department of 
Agriculture, STOP 0550, 1400 Independence Avenue, SW., Washington, DC 
20250-0550.
    (b) Any person who believes that they have been adversely affected 
by a determination under this part must seek review by DACO within 
twenty-eight calendar days of such determination, unless provided with 
notice by DACO of a different deadline.
    (c) The appeal process set forth in this part is applicable to all 
licensees and providers under any provision of the Act, regulations or 
any applicable licensing agreement as follows:
    (1) DACO will notify the person in writing of the nature of the 
suspension, revocation or liquidation action;
    (2) The person must notify DACO of any appeal of its action within 
twenty-eight calendar days;
    (3) The appeal and request must state whether:
    (i) A hearing is requested,
    (ii) The person will appear in person at such hearing, or
    (iii) Such hearing will be held by telephone;
    (4) DACO will provide the person a written acknowledgment of their 
request to pursue an appeal;
    (5) When a person requests an appeal and does not request a hearing 
DACO will allow that person:
    (i) To submit in writing the reasons why they believe DACO's 
determination to be in error,
    (ii) Twenty-eight calendar days from the receipt of the 
acknowledgment to file any statements and documents in support of their 
appeal, unless provided with notice by DACO of a different deadline, 
and
    (iii) An additional fourteen calendar days to respond to any new 
issues raised by DACO in response to the person's initial submission, 
unless provided with notice by DACO of a different deadline;
    (6) If the person requests to pursue an appeal and requests a 
hearing, DACO will:
    (i) Notify the person of the date of the hearing,
    (ii) Determine the location of the hearing, when the person asks to 
appear in person,
    (iii) Notify the person of the location of the hearing,
    (iv) Afford the person twenty-eight calendar days from the receipt 
of the notification of the scheduling of the hearing to submit any 
statements and documents in support of the appeal, unless provided with 
notice by DACO of a different deadline, and
    (v) Allow the person an additional fourteen calendar days from the 
date of the hearing to submit any additional material, unless provided 
with notice by DACO of a different deadline;
    (7) Determinations of DACO will be final and no further appeal 
within USDA will be available except as may be specified in the final 
determination of DACO; and
    (8) A person may not initiate an action in any court of competent 
jurisdiction concerning a determination made under the Act prior to the 
exhaustion of the appeal process set forth in this section.


Sec. 735.9  Dispute resolution and arbitration of private parties.

    (a) A person may initiate legal action in any court of competent 
jurisdiction concerning a claim for noncompliance or an unresolved 
dispute with respect to activities authorized under the Act.
    (b) Any claim for noncompliance or an unresolved dispute between a 
warehouse operator or provider and another party with respect to 
activities authorized under the Act may be resolved by the parties 
through mutually agreed-upon arbitration procedures or as may be 
prescribed in the applicable licensing or provider agreement. No 
arbitration determination or award will affect DACO's authority under 
the Act.
    (c) In no case will USDA provide assistance or representation to 
parties involved in an arbitration proceeding arising with respect to 
activities authorized under the Act.


Sec. 735.10  Posting of certificates of licensing, certificates of 
authorization or other USWA documents.

    (a) The warehouse operator must post, in a conspicuous place in the 
principal place where warehouse receipts are issued, any applicable 
certificate furnished by DACO that the warehouse operator is an 
authorized licensee under the Act.
    (b) Immediately upon receipt of their certificate of service 
licensing or any modification or extension thereof under the Act, the 
licensee and warehouse operator must jointly post the same, and 
thereafter, except as otherwise provided in the regulations in this 
part or as prescribed in the applicable licensing agreement, keep such 
certificate of licensing conspicuously posted in the office where all 
or most of the services are done, or in such place as may be designated 
by DACO.
    (c) The provider must post, in a conspicuous place in the principal 
place of business, any applicable certificate of authorization 
furnished by DACO that the provider is authorized to offer and provide 
specific services under the Act.

[[Page 50786]]

Sec. 735.11  Lost or destroyed certificates of licensing, authorization 
or agreements.

    FSA will replace lost or destroyed certificates of licensing, 
certificate of authorization or applicable agreement upon satisfactory 
proof of loss or destruction. FSA will mark such certificates or 
agreements as duplicates.


Sec. 735.12  Safe keeping of records.

    Each warehouse operator or provider must take necessary precautions 
to safeguard all records, either paper or electronic format, from 
destruction.


Sec. 735.13  Information of violations.

    Every person licensed or authorized under the Act must immediately 
furnish DACO any information they may have indicating that any 
provision of the Act or the regulations in this part has been violated.


Sec. 735.14  Bonding and other financial assurance requirements.

    (a) As a condition of receiving a license or authorization under 
the Act, the person applying for the license or authorization must 
execute and file with DACO a bond or provide such other financial 
assurance as DACO determines appropriate to secure the person's 
compliance with the Act.
    (b) Such bond or assurance must be for a period of not less than 
one year and in such amount as required by DACO.
    (c) Failure to provide for, or renew, a bond or a financial 
assurance instrument will result in the immediate and automatic 
revocation of the warehouse operator's license or provider's agreement.
    (d) If DACO determines that a previously accepted bond or other 
financial assurance is insufficient, DACO may immediately suspend or 
revoke the license or authorization covered by the bond or other 
financial assurance if the person that filed the bond or other 
financial assurance does not provide such additional bond or other 
financial assurance as DACO determines appropriate.
    (e) To qualify as a suitable bond or other financial assurance, the 
entity issuing the bond or other financial assurance must be subject to 
service of process in lawsuits or legal actions on the bond or other 
financial assurance in the State in which the warehouse is located.

Subpart B--Warehouse Licensing


Sec. 735.100  Application.

    (a) An applicant for a license must submit to DACO information and 
documents determined by DACO to be sufficient to conclude that the 
applicant can comply with the provisions of the Act. Such documents 
must include a current review or an audit-level financial statement 
prepared according to generally accepted accounting standards as 
defined by the American Institute of Certified Public Accountants. For 
any entity that is not an individual, a document that establishes proof 
of the existence of the entity, such as:
    (1) For a partnership, an executed partnership agreement; and
    (2) For a corporation:
    (i) Articles of incorporation certified by the Secretary of State 
of the applicable State of incorporation;
    (ii) Bylaws; and
    (iii) Permits to do business; and
    (3) For a limited partnership, an executed limited partnership 
agreement; and
    (4) For a limited liability company:
    (i) Articles of organization or similar documents; and
    (ii) Operating agreement or similar agreement.
    (b) The warehouse facilities of an operator licensed under the Act 
must, as determined by DACO, be:
    (1) Physically and operationally suitable for proper storage of the 
applicable agricultural product or agricultural products specified in 
the license;
    (2) Operated according to generally accepted warehousing activities 
and practices in the industry for the applicable agricultural product 
or agricultural products stored in the facility; and
    (3) Subject to the warehouse operator's control of the facility 
including all contiguous storage space with respect to such facilities.
    (c) As specified in individual licensing agreements, a warehouse 
operator must:
    (1) Meet the basic financial requirements determined by DACO; and
    (2) Meet the net worth requirements determined by DACO;
    (d) In order to obtain a license, the warehouse operator must 
correct any exceptions made by the warehouse examiner at the time of 
the original warehouse examination.
    (e) DACO may issue a license for the storage of two or more 
agricultural products in a single warehouse as provided in the 
applicable licensing agreements. The amount of the bond or financial 
assurance, net worth, and inspection and license fees will be 
determined by DACO in accordance with the licensing agreements 
applicable to the specific agricultural product, based upon the 
warehouses' total capacity for storing such product, that would 
require:
    (1) The largest bond or financial assurance;
    (2) The greatest amount of net worth; and
    (3) The greatest amount of fees.


Sec. 735.101  Financial records and reporting requirements.

    (a) Warehouse operators must maintain complete, accurate, and 
current financial records that must be available to DACO for review or 
audit at DACO's request as may be prescribed in the applicable 
licensing agreement.
    (b) Warehouse operators must, annually, present a financial 
statement as may be prescribed in the applicable licensing agreement to 
DACO.


Sec. 735.102  Financial assurance requirements.

    (a) Warehouse operators must file with DACO financial assurances 
approved by DACO consisting of:
    (1) A warehouse operator's bond; or
    (2) Obligations that are unconditionally guaranteed as to both 
interest and principal by the United States, in a sum equal at their 
par value to the amount of the bond otherwise required to be furnished, 
together with an irrevocable power of attorney authorizing DACO to 
collect, sell, assign and transfer such obligations in case of any 
default in the performance of any of the conditions required in the 
licensing agreement; or
    (3) An irrevocable letter of credit issued in the favor of DACO 
with a term of not less than two years; or
    (4) A certificate of participation in, and coverage by, an 
indemnity or insurance fund as approved by DACO, established and 
maintained by a State, backed by the full faith and credit of the 
applicable State, which guarantees depositors of the licensed warehouse 
full indemnification for the breach of any obligation of the licensed 
warehouse operator under the terms of the Act. If a warehouse operator 
files a bond or financial assurance in the form of a certification of 
participation in an indemnity or insurance fund, the certification may 
only be used to satisfy any deficiencies in assets above the minimum 
net worth requirement as prescribed in the applicable licensing 
agreement. A certificate of participation and coverage in this fund 
must be furnished to DACO annually; or
    (5) Other alternative instruments and forms of financial assurance 
approved by DACO as may be prescribed in the applicable licensing 
agreement.
    (b) The warehouse operator may not withdraw obligations required 
under this section until one year after license termination or until 
satisfaction of any

[[Page 50787]]

claims against the obligations, whichever is later.


Sec. 735.103  Amendments to license.

    FSA will issue an amended license upon:
    (a) Receipt of forms prescribed and furnished by DACO outlining the 
requested changes to the license;
    (b) Payment of applicable licensing and examination fees;
    (c) Receipt of bonding or other financial assurance if required in 
the applicable licensing agreement; and
    (d) Receipt of a report on the examination of the proposed 
facilities pending inclusion or exclusion, if determined necessary by 
DACO.


Sec. 735.104  Insurance requirements.

    Each warehouse operator must comply fully with the terms of 
insurance policies or contracts covering their licensed warehouse and 
all products stored therein, and must not commit any acts, nor permit 
others to do anything, that might impair or invalidate such insurance.


Sec. 735.105  Care of agricultural products.

    Each warehouse operator must at all times, including during any 
period of suspension of their license, exercise such care in regard to 
stored and non-storage agricultural products in their custody as 
required in the applicable licensing agreement.


Sec. 735.106  Excess storage and transferring of agricultural products.

    (a) If at any time a warehouse operator stores an agricultural 
product in a warehouse subject to a license issued under the Act in 
excess of the warehouse capacity for which it is licensed, such 
warehouse operator must immediately notify DACO of such excess storage 
and the reason for the storage.
    (b) A warehouse operator who desires to transfer stored 
agricultural products to another warehouse may do so either by physical 
movement, by other methods as may be provided in the applicable 
licensing agreement, or as authorized by DACO.


Sec. 735.107  Warehouse charges and tariffs.

    (a) A warehouse operator must not make any unreasonable or 
exorbitant charge for services rendered.
    (b) A warehouse operator must follow the terms and conditions for 
each new or revised warehouse tariff or schedule of charges and rates 
as prescribed in the applicable licensing agreement.


Sec. 735.108  Inspections and examinations of warehouses.

    (a) Warehouse operators must permit any agent of the Department to 
enter and inspect or examine, on any business day during the usual 
hours of business, any licensed warehouse, the offices of the warehouse 
operator, the books, records, papers, and accounts.
    (b) Routine and special inspections and examinations will be 
unannounced.
    (c) Warehouse operators must provide safe access to all storage 
facilities.
    (d) Warehouse operators must inform any agent of the Department, 
upon arrival, of any hazard.
    (e) Agents of the Department must accomplish inspections and 
examinations of warehouses in a manner that is efficient and cost-
effective without jeopardizing any inspection and examination 
integrity.


Sec. 735.109  Disaster loss to be reported.

    If at any time a disaster or loss occurs at or within any licensed 
warehouse, the warehouse operator must report immediately the 
occurrence of the disaster or loss and the extent of damage, to DACO.


Sec. 735.110  Conditions for delivery of agricultural products.

    (a) In the absence of a lawful excuse, a warehouse operator will, 
without unnecessary delay, deliver the agricultural product stored or 
handled in the warehouse on a demand made by:
    (1) The holder of the warehouse receipt for the agricultural 
product; or
    (2) The person that deposited the agricultural product, if no 
warehouse receipt has been issued.
    (b) Prior to delivery of the agricultural product, payment of the 
accrued charges associated with the storage or handling of the 
agricultural product, including satisfaction of the warehouse 
operator's lien, must be made if requested by the warehouse operator.
    (c) When the holder of a warehouse receipt requests delivery of an 
agricultural product covered by the warehouse receipt, the holder must 
surrender the warehouse receipt to the warehouse operator before 
obtaining the agricultural product.
    (d) A warehouse operator must cancel each warehouse receipt 
surrendered to the warehouse operator upon the delivery of the 
agricultural product for which the warehouse receipt was issued and in 
accordance with the applicable licensing agreement.
    (e) For the purpose of this part, unless prevented from doing so by 
force majeure, a warehouse operator will deliver or ship such 
agricultural products stored or handled in their warehouse as 
prescribed in the applicable licensing agreement.


Sec. 735.111  Fair treatment.

    (a) Contingent upon the capacity of a warehouse, a warehouse 
operator will deal in a fair and reasonable manner with persons 
storing, or seeking to store, an agricultural product in the warehouse 
if the agricultural product is:
    (1) Of the kind, type, and quality customarily stored or handled in 
the area in which the warehouse is located;
    (2) Tendered to the warehouse operator in a suitable condition for 
warehousing; and
    (3) Tendered in a manner that is consistent with the ordinary and 
usual course of business.
    (b) Nothing in this section will prohibit a warehouse operator from 
entering into an agreement with a depositor of an agricultural product 
to allocate available storage space.


Sec. 735.112  Terminal and futures contract markets.

    (a) DACO may issue service licenses to weigh-masters or their 
deputies to perform services relating to warehouse receipts that are 
deliverable in satisfaction of futures contracts in such contract 
markets or as may be prescribed in any applicable licensing agreement.
    (b) DACO may authorize a registrar of warehouse receipts issued for 
an agricultural product in a warehouse licensed under the Act that 
operates in any terminal market or in any futures contract market the 
official designated by officials of the State in which such market is 
located if such individual is not:
    (1) An owner or employee of the licensed warehouse;
    (2) The owner of, or an employee of the owner of, such agricultural 
product deposited in any such licensed warehouse; or
    (3) As may be prescribed in any applicable licensing or provider 
agreement.

Subpart C--Inspectors, Samplers, Classifiers, and Weighers


Sec. 735.200  Service licenses.

    (a) FSA may issue to a person a license for:
    (1) Inspection of any agricultural product stored or handled in a 
warehouse subject to the Act;
    (2) Sampling of such an agricultural product;
    (3) Classification of such an agricultural product according to 
condition, grade, or other class and certify the condition, grade, or 
other class of the agricultural product;
    (4) Weighing of such an agricultural product and certify the weight 
of the agricultural product; or

[[Page 50788]]

    (5) Performing two or more services specified in paragraphs (a)(1), 
(a)(2), (a)(3) or (a)(4) of this section.
    (b) Each person seeking a license to perform activities described 
in this section must submit an application on forms furnished by DACO 
that contain, at a minimum, the following information:
    (1) The name, location and license number of the warehouses where 
the applicant would perform such activities;
    (2) A statement from the warehouse operator that the applicant is 
competent and authorized to perform such activities at specific 
locations; and
    (3) Evidence that the applicant is competent to inspect, sample, 
classify, according to grade or weigh the agricultural product.
    (c) The warehouse operator will promptly notify DACO in writing of 
any changes with respect to persons authorized to perform such 
activities at the licensed warehouse.


Sec. 735.201  Agricultural product certificates; format.

    Each inspection, grade, class, weight or combination certificate 
issued under the Act by a licensee to perform such services must be:
    (a) In a format prescribed by DACO;
    (b) Issued and maintained in a consecutive order; and
    (c) As prescribed in the applicable licensing or provider agreement 
and authorized by DACO.


Sec. 735.202  Standards of grades for other agricultural products.

    Official Standards of the United States for any kind, class or 
grade of an agricultural product to be inspected must be used if such 
standards exist. Until Official Standards of the United States are 
fixed and established for the kind of agricultural product to be 
inspected, the kind, class and grade of the agricultural product must 
be stated, subject to the approval of DACO. If such standards do not 
exist for such an agricultural product, the following will be used:
    (a) State standards established in the State in which the warehouse 
is located, (b) In the absence of any State standards, in accordance 
with the standards, if any, adopted by the local board of trade, 
chamber of commerce, or by the agricultural product trade generally in 
the locality in which the warehouse is located, or
    (c) In the absence of the standards set forth in paragraphs (a) and 
(b) of this section, in accordance with any standards approved for the 
purpose by DACO.

Subpart D--Warehouse Receipts


Sec. 735.300  Warehouse receipt requirements.

    (a) Warehouse receipts may be:
    (1) Negotiable or non-negotiable;
    (2) For a single unit, multiple units, identity preserved or 
commingled lot; and
    (3) In a paper or electronic format that, besides complying with 
the requirements of the Act, must be in a format as prescribed in the 
applicable licensing or provider agreement and authorized by DACO.
    (b) The warehouse operator must:
    (1) At the request of a depositor of an agricultural product stored 
or handled in a warehouse licensed under the Act, issue a warehouse 
receipt to the depositor;
    (2) Not issue a warehouse receipt for an agricultural product 
unless the agricultural product is actually stored in their warehouse 
at the time of issuance;
    (3) Not issue a warehouse receipt until the quality, condition and 
weight of such an agricultural product is ascertained by a licensed 
inspector and weigher;
    (4) Not directly or indirectly compel or attempt to compel the 
depositor to request the issuance of a warehouse receipt omitting the 
statement of quality or condition;
    (5) Not issue an additional warehouse receipt under the Act for a 
specific identity-preserved or commingled agricultural product lot (or 
any portion thereof) if another warehouse receipt representing the same 
specific identity-preserved or commingled lot of the agricultural 
product is outstanding. No two warehouse receipts issued by a warehouse 
operator may have the same warehouse receipt number or represent the 
same agricultural product lot;
    (6) When issuing a warehouse receipt and purposefully omitting any 
information, notate the blank to show such intent;
    (7) Not deliver any portion of an agricultural product for which 
they have issued a negotiable warehouse receipt until the warehouse 
receipt has been surrendered to them and canceled as prescribed in the 
applicable licensing agreement;
    (8) Not deliver more than 90% of the receipted quantity of an 
agricultural product for which they have issued a non-negotiable 
warehouse receipt until such warehouse receipt has been surrendered or 
the depositor or the depositor's agent has provided a written order for 
the agricultural product and the warehouse receipt surrendered upon 
final delivery; and
    (9) Deliver, upon proper presentation of a warehouse receipt for 
any agricultural product, and payment or tender of all advances and 
charges, to the depositor or lawful holder of such warehouse receipt 
the agricultural product of such identity, quantity, grade and 
condition as set forth in such warehouse receipt.
    (c) In the case of a lost or destroyed warehouse receipt, a new 
warehouse receipt upon the same terms, subject to the same conditions, 
and bearing on its face the number and the date of the original 
warehouse receipt may be issued.


Sec. 735.301  Notification requirements.

    Warehouse operators must file with DACO the name and genuine 
signature of each person authorized to sign warehouse receipts for the 
licensed warehouse operator, and will promptly notify DACO of any 
changes with respect to persons authorized to sign.


Sec. 735.302  Paper warehouse receipts.

    Paper warehouse receipts must be issued as follows:
    (a) On distinctive paper specified by DACO;
    (b) Printed by a printer authorized by DACO; and
    (c) Issued, identified and maintained in a consecutive order.


Sec. 735.303  Electronic warehouse receipts.

    (a) Warehouse operators issuing EWR under the Act may issue EWR's 
for the agricultural product stored in their warehouse. Warehouse 
operators issuing EWR's under the Act must:
    (1) Only issue EWR's through one FSA-authorized provider annually;
    (2) Inform DACO of the identity of their provider, when they are a 
first time user of EWR's, 60 calendar days in advance of issuing an EWR 
through that provider. DACO may waive or modify this 60-day requirement 
as set forth in Sec. 735.2(b);
    (3) Before issuing an EWR, request and receive from FSA a range of 
consecutive warehouse receipt numbers that the warehouse will use 
consecutively for issuing their EWR's;
    (4) When using an authorized provider, issue and cancel all 
warehouse receipts as EWR's;
    (5) Cancel an EWR only when they are the holder of the warehouse 
receipt;
    (6) Be the holder of an EWR to correct information contained within 
any required data field;
    (7) Receive written authorization from FSA at least 30 calendar 
days before changing providers. Upon authorization, they may request 
their current provider to transfer their EWR data from its Central 
Filing System (CFS) to the CFS of the authorized provider whom they 
select; and

[[Page 50789]]

    (8) Notify all holders of EWR's by inclusion in the CFS at least 30 
calendar days before changing providers, unless otherwise required or 
allowed by FSA.
    (b) An EWR establishes the same rights and obligations with respect 
to an agricultural product as a paper warehouse receipt and possesses 
the following attributes:
    (1) The holder of an EWR will be entitled to the same rights and 
privileges as the holder of a paper warehouse receipt.
    (2) Only the current holder of the EWR may transfer the EWR to a 
new holder.
    (3) The identity of the holder must be confidential and included as 
information for every EWR.
    (4) Only one person may be designated as the holder of an EWR at 
any one time.
    (5) A warehouse operator may not issue an EWR on a specific 
identity-preserved or commingled lot of agricultural product or any 
portion thereof while another valid warehouse receipt representing the 
same specific identity-preserved or commingled lot of agricultural 
product remains not canceled. No two warehouse receipts issued by a 
warehouse operator may have the same warehouse receipt number or 
represent the same agricultural product lot.
    (6) An EWR may only be issued to replace a paper warehouse receipt 
if requested by the current holder of the paper warehouse receipt.
    (7) Holders and warehouse operators may authorize any other user of 
their provider or the provider itself to act on their behalf with 
respect to their activities with this provider. This authorization must 
be in writing, and acknowledged and retained by the warehouse operator 
and provider.
    (c) A warehouse operator not licensed under the Act may, at the 
option of the warehouse operator, issue EWRs in accordance with this 
subpart, except this option does not apply to a warehouse operator that 
is licensed under State law to store agricultural products in a 
warehouse if the warehouse operator elects to issue an EWR under State 
law.

Subpart E--Electronic Providers


Sec. 735.400  Administration.

    This subpart sets forth the regulations under which DACO may 
authorize one or more electronic systems under which:
    (a) Electronic documents relating to the shipment, payment, and 
financing of the sale of agricultural products may be issued or 
transferred; or
    (b) Electronic receipts may be issued and transferred.


Sec. 735.401  Electronic warehouse receipt and USWA electronic document 
providers.

    (a) To establish a USWA-authorized system to issue and transfer 
EWR's and USWA electronic documents, each applicant must submit to DACO 
information and documents determined by DACO to be sufficient to 
determine that the applicant can comply with the provisions of the Act. 
Each provider operating pursuant to this section must meet the 
following requirements:
    (1) Have and maintain a net worth as specified in the applicable 
provider agreement;
    (2) Maintain two insurance policies; one for ``errors and 
omissions'' and another for ``fraud and dishonesty.'' Each policy's 
minimum coverage and maximum deductible amounts and applicability of 
other forms of financial assurances as set forth in Sec. 735.14 will be 
prescribed in the applicable provider agreement. Each policy must 
contain a clause requiring written notification to FSA 30 days prior to 
cancellation or as prescribed by FSA;
    (3) Submit a current review or an audit level financial statement 
prepared according to generally accepted accounting standards as 
defined by the American Institute of Certified Public Accountants;
    (4) For any entity that is not an individual, a document that 
establishes proof of the existence, such as:
    (i) For a partnership, an executed partnership agreement; and
    (ii) For a corporation:
    (A) Articles of incorporation certified by the Secretary of State 
of the applicable State of incorporation;
    (B) Bylaws; and
    (C) Permits to do business; and
    (iii) For a limited partnership, an executed limited partnership 
agreement; and
    (iv) For a limited liability company:
    (A) Articles of organization or similar documents; and
    (B) Operating agreement or similar agreement.
    (5) Meet any additional financial requirements as set forth in the 
applicable provider agreement;
    (6) Pay user fees annually to FSA, as set and announced annually by 
FSA prior to April 1 of each calendar year; and
    (7) Operate a CFS as a neutral third party in a confidential and 
secure fashion independent of any outside influence or bias in action 
or appearance.
    (b) The provider agreement will contain, but not be limited to, 
these basic elements:
    (1) Scope of authority;
    (2) Minimum document and warehouse receipt requirements;
    (3) Liability;
    (4) Transfer of records protocol;
    (5) Records;
    (6) Conflict of interest requirements;
    (7) USDA common electronic information requirements;
    (8) Financial requirements
    (9) Terms of insurance policies or assurances;
    (10) Provider's integrity statement;
    (11) Security audits; and
    (12) Submission, authorization, approval, use and retention of 
documents.
    (c) DACO may suspend or terminate a provider's agreement for cause 
at any time.
    (1) Hearings and appeals will be conducted in accordance with 
procedures as set forth in Secs. 735.6 and 735.8.
    (2) Suspended or terminated providers may not execute any function 
pertaining to USDA, USWA documents, or USWA or State EWR's during the 
pendency of any appeal or subsequent to this appeal if the appeal is 
denied, except as authorized by DACO.
    (3) The provider or DACO may terminate the provider agreement 
without cause solely by giving the other party written notice 60 
calendar days prior to termination.
    (d) Each provider agreement will be automatically renewed annually 
on April 30th as long as the provider complies with the terms contained 
in the provider agreement, the regulations in this subpart, and the 
Act.


Sec. 735.402  Providers of other electronic documents.

    (a) To establish a USWA-authorized system to issue and transfer 
OED, each applicant must submit to DACO information and documents 
determined by DACO to be sufficient to determine that the applicant can 
comply with the provisions of the Act. Each provider operating pursuant 
to this section must meet the following requirements:
    (1) Have and maintain a net worth as specified in the applicable 
provider agreement;
    (2) Maintain two insurance policies; one for 'errors and omissions' 
and another for 'fraud and dishonesty'. Each policy's minimum coverage 
and maximum deductible amounts and applicability of other forms of 
financial assurances as set forth in Sec. 735.14 will be prescribed in 
the applicable provider agreement. Each policy must contain a clause 
requiring written notification to FSA 30 days prior to cancellation or 
as prescribed by FSA;

[[Page 50790]]

    (3) Submit a current review or an audit level financial statement 
prepared according to generally accepted accounting standards as 
defined by the American Institute of Certified Public Accountants;
    (4) For any entity that is not an individual, a document that 
establishes proof of the existence, such as:
    (i) For a partnership, an executed partnership agreement; and
    (ii) For a corporation:
    (A) Articles of incorporation certified by the Secretary of State 
of the applicable State of incorporation;
    (B) Bylaws; and
    (C) Permits to do business; and
    (iii) For a limited partnership, an executed limited partnership 
agreement; and
    (iv) For a limited liability company:
    (A) Articles of organization or similar documents; and
    (B) Operating agreement or similar agreement.
    (5) Meet any additional financial requirements as set forth in the 
applicable provider agreement;
    (6) Pay user fees annually to FSA, as set and announced annually by 
FSA prior to April 1 of each calendar year; and
    (7) Operate a CFS as a neutral third party in a confidential and 
secure fashion independent of any outside influence or bias in action 
or appearance.
    (b) The provider agreement will contain, but not be limited to, 
these basic elements:
    (1) Scope of authority;
    (2) Minimum document and warehouse receipt requirements;
    (3) Liability;
    (4) Transfer of records protocol;
    (5) Records;
    (6) Conflict of interest requirements;
    (7) USDA common electronic information requirements;
    (8) Financial requirements;
    (9) Terms of insurance policies or assurances;
    (10) Provider's integrity statement;
    (11) Security audits; and
    (12) Submission, authorization, approval, use and retention of 
documents.
    (c) DACO may suspend or terminate a provider's agreement for cause 
at any time.
    (1) Hearings and appeals will be conducted in accordance with 
procedures as set forth in Secs. 735.6 and 735.8.
    (2) Suspended or terminated providers may not execute any function 
pertaining to USDA, USWA documents, USWA or State EWR's or OED's during 
the pendency of any appeal or subsequent to this appeal if the appeal 
is denied, except as authorized by DACO.
    (d) Each provider agreement will be automatically renewed annually 
on April 30th as long as the provider complies with the terms contained 
in the provider agreement, the regulations in this subpart, and the 
Act.
    (e) In addition to audits prescribed in this section the provider 
must submit a copy of any audit, examination or investigative report 
prepared by any Federal regulatory agency with respect to the provider 
including agencies such as, but not limited to, the Comptroller of the 
Currency, Department of the Treasury, the Federal Trade Commission, and 
the Commodity Futures Trading Commission.


Sec. 735.403  Audits.

    (a) No later than 120 calendar days following the end of the 
provider's fiscal year, the provider authorized under Secs. 735.401 and 
735.402 must submit to FSA an annual audit level financial statement 
and an electronic data processing audit that meets the minimum 
requirements as provided in the applicable provider agreement. The 
electronic data processing audit will be used by DACO to evaluate 
current computer operations, security, disaster recovery capabilities 
of the system, and compatibility with other systems authorized by DACO.
    (b) Each provider will grant the Department unlimited, free access 
at any time to all records under the provider's control relating to 
activities conducted under this part and as specified in the applicable 
provider agreement.


Sec. 735.404  Schedule of charges and rates.

    (a) A provider authorized under Secs. 735.401 or 735.402 must 
furnish FSA with copies of its current schedule of charges and rates 
for all services as they become effective.
    (b) Charges and rates assessed any user by the provider must be in 
effect for a minimum period of one year.
    (c) Providers must furnish FSA and all users a 60-calendar day 
advance notice of their intent to change any charges and rates.

PARTS 736 THROUGH 742 [Removed]

    2. Parts 736 through 742 are removed and reserved.

    Signed at Washington, DC, on July 29, 2002.
James R. Little,
Administrator, Farm Service Agency.
[FR Doc. 02-19617 Filed 8-2-02; 8:45 am]
BILLING CODE 3410-05-P