[Federal Register Volume 73, Number 28 (Monday, February 11, 2008)]
[Proposed Rules]
[Pages 7686-7690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-577]


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DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

9 CFR Part 201

RIN 0580-AA99


Weighing, Feed, and Swine Contractors

AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION: Proposed rule.

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SUMMARY: We propose to amend four existing scales and weighing 
regulations issued under the Packers and Stockyards Act (P&S Act) to 
ensure that payments by live poultry dealers and swine contractors to 
poultry and swine production contract growers are based on accurate 
weighing of both inputs and outputs. We propose to amend a regulation 
on scale tickets to reduce redundant wording and clarify weighing 
procedures. We propose to amend a regulation on reweighing to add swine 
contractors to the list of firms that must comply, and to add feed to 
the list of items for which reweighing may be requested. We propose to 
amend two regulations on weighing livestock and poultry to add weighing 
processes for feed, to add a specific time limit for weighing poultry, 
and to add swine contractors to the list of firms that must comply with 
care and promptness requirements.

DATES: We will consider comments we receive by April 11, 2008.

ADDRESSES: We invite you to submit comments on this proposed rule. You 
may submit comments by any of the following methods:
     E-Mail: Send comments via electronic mail to 
[email protected].
     Mail: Send hardcopy written comments to Tess Butler, 
GIPSA, USDA, 1400 Independence Avenue, SW., Room 1643-S, Washington, DC 
20250-3604.
     Fax: Send comments by facsimile transmission to: (202) 
690-2755.
     Hand Delivery or Courier: Deliver comments to: Tess 
Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1643-S, 
Washington, DC 20250-3604.
     Federal e-Rulemaking Portal: Go to http://www.regulation.gov. Follow the on-line instruction for submitting 
comments.
    Instructions: All comments should refer to the date and page number 
of this issue of the Federal Register.
    Background Documents: Regulatory analyses and other documents 
relating to this action will be available for public inspection in the 
above office during regular business hours.
    Read Comments: All comments will be available for public inspection 
in the above office during regular business hours (7 CFR 1.27(b)). 
Please call GIPSA Management Support Services staff at (202) 720-7486 
to arrange a public inspection of comments.

FOR FURTHER INFORMATION CONTACT: S. Brett Offutt, Director, Policy and 
Litigation Division, P&SP, GIPSA, 1400 Independence Ave., SW., 
Washington, DC 20250, (202) 720-7363, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Grain Inspection, Packers and Stockyards Administration (GIPSA) 
is responsible for enforcement of the P&S Act. Under authority 
delegated to us by the Secretary of Agriculture, we are authorized (7 
U.S.C. 228) to make those regulations necessary to carry out the 
provisions of the P&S Act. We propose to amend the following 
regulations:
     Section 201.49--Requirements regarding scale tickets 
evidencing weighing of livestock, live poultry and feed,
     Section 201.76--Reweighing,
     Section 201.82--Care and promptness in weighing and 
handling livestock and live poultry, and
     Section 201.108-1--Instructions for weighing live poultry.
    Violations of these sections of the regulations are deemed to be 
unfair or deceptive practices and constitute violations of Sec.  202 (7 
U.S.C. 192) or Sec.  312 (7 U.S.C. 213) of the P&S Act. Packers and 
swine contractors may be assessed civil penalties of up to $11,000 (7 
U.S.C. 193) for each violation of Sec.  202. Market agencies and 
dealers may be assessed civil penalties of as much as $11,000 (7 U.S.C. 
213) for each violation of Sec.  312. Given the consequences for 
violating these regulations, it is important that these regulations be 
clear. Therefore, we propose to amend Sec.  201.49 and Sec.  201.108-1 
to remove redundant language.
    We also propose to revise Sec.  201.82 and Sec.  201.108-1 to 
prohibit practices

[[Page 7687]]

that we consider to be unfair and deceptive. Specifically, the 
practices of
     delaying the weighing of livestock and poultry,
     loading poultry from multiple growers into one trailer 
load,
     failing to use scales correctly, and
     failing to accurately weigh unused feed at the time it is 
collected could result in incorrect settlement payments to poultry and 
livestock growers. The proposed rule would specifically prohibit these 
unfair and deceptive practices. We also propose to amend paragraphs of 
Sec.  201.76, 201.82, and 201.108-1 that currently apply only to 
weighing poultry and/or livestock to also include feed. The intended 
purpose of all the proposed amendments is to ensure that the weighing 
process is fair and accurate for all growers. Since growers are paid 
based on their efficiency in converting feed to livestock and poultry, 
it is important that both the input (feed) and the output (poultry and 
livestock) be weighed accurately.
    A delay in the weighing of poultry or livestock at the slaughter 
facility can result in a lower payout to the grower because the delay 
increases the likelihood of ``shrinkage'' of the live poultry or 
livestock due to death, injury, and other avoidable losses. Loading 
poultry from several growers onto a single trailer load (a ``split 
load'') is one cause of such delays and the resulting avoidable losses. 
We therefore propose to prohibit loading live poultry from multiple 
growers onto a single trailer load. There is a related issue involving 
potentially inaccurate weighing when live poultry dealers and swine 
contractors pick up unused feed from multiple growers and do not weigh 
the feed on a certified scale at the time of pick up before combining 
the feed into a single load. We propose that feed for each grower be 
weighed on a certified scale and that a scale ticket be generated at 
the time the feed is picked up from each grower, before proceeding to 
another grower to pick up unused feed. We also propose new requirements 
for the correct use of on-board weighing systems to ensure that unused 
feed is weighed accurately at the time of pickup, although we are not 
requiring that on-board weighing systems be used. The purpose of these 
requirements is to ensure that growers are compensated based on an 
accurate accounting of inputs. Without these new requirements for 
accurate weighing of unused feed, growers could be compensated 
incorrectly based on an inaccurate accounting of feed used.

Description of Proposed Amendments

    We are proposing amendments that both clarify language in current 
requirements and that add new requirements to ensure fair and accurate 
weighing of live poultry, swine, and feed.
    The proposed amendments that clarify existing requirements involve 
scale tickets and live poultry weighing. The current Sec.  201.49, 
``Requirements regarding scale tickets evidencing weighing of 
livestock, live poultry, and feed'', contains redundant wording 
regarding scale tickets issued when weighing livestock, live poultry 
and feed. The requirements for numbering scale tickets and executing 
sufficient copies are largely the same for livestock, live poultry, and 
feed, so we propose to consolidate the general requirements into one 
new paragraph, Sec.  201.49(a), followed by separate paragraphs 
containing the specific requirements for livestock, live poultry, and 
feed. We propose to require that a zero balance be recorded and that 
the time the zero balance was determined be printed on the scale 
ticket, consistent with other weighing regulations involving scale 
tickets. We propose to remove language in Sec.  201.108-1, 
``Instructions for weighing live poultry,'' regarding scale tickets 
that duplicates language in Sec.  201.49. These proposed amendments 
would avoid potential confusion caused by redundant language and make 
more clear the requirements that are unique to each commodity.
    We also propose to clarify language requiring the number of the 
person who performed the weighing service to make it clear we mean the 
identification number of that individual, rather than the telephone 
number. We propose to clarify language regarding the requirement to 
record the license number of the truck and trailer, to clarify that 
this requirement applies to situations involving weighing just the 
truck, or just the trailer, or both together. We also propose to make 
language requiring the license number or other identification number of 
the truck and/or trailer consistent throughout this section.
    The other amendments we propose will impose new requirements on 
live poultry dealers and swine contractors to ensure more accurate 
weighing for all growers. The proposed amendments that involve new 
requirements are as follows:
    We propose to amend Sec.  201.76, ``Reweighing'' to add ``swine 
contractors'', to the list of firms required to comply with this 
regulation. As defined in the Packers and Stockyards Act, as amended, a 
swine contractor means any person engaged in the business of obtaining 
swine under a swine production contract for the purpose of slaughtering 
the swine or selling the swine for slaughter, if the swine is obtained 
by the person in commerce; or the swine (including products from the 
swine) obtained by the person is sold or shipped in commerce (7 U.S.C. 
182(a)(12)). We also propose to add ``feed'' to the list of items for 
which reweighing is required on request of any authorized 
representative of the Secretary.
    We propose to amend paragraph (a) of Sec.  201.82, ``Care and 
Promptness in Weighing and Handling Livestock and Live Poultry'', to 
include ``swine contractors'' in the list of firms required to comply 
with this regulation. Presently, paragraph (b) of Sec.  201.82 requires 
that live poultry dealers purchasing poultry under growout contracts 
obtain the gross weight for each load of poultry immediately upon 
arrival at the processing plant. We propose to add a sentence at the 
end of this paragraph to require that the weighing process begin 
without delay and to establish the time period within which live 
poultry dealers must complete the weighing process. Finally, we propose 
to add a new paragraph (c) to Sec.  201.82 to prohibit the use of split 
transport trailer loads by live poultry dealers. Split loads of live 
poultry are loads containing flocks from more than one grower. We 
believe prohibiting split loads will eliminate the likelihood of live 
poultry dealers failing to weigh each grower's flock promptly. Failure 
to weigh poultry promptly can result in weight loss, injury, death or 
other avoidable loss. We also propose minor clarifying language changes 
to Sec.  201.82, including noting that this section applies whenever 
the weight of live poultry is a factor in calculating payment to the 
grower.
    We propose to modify Sec.  201.108-1, ``Instructions for Weighing 
Live Poultry'', to require additional procedures to ensure accurate 
weighing. We also propose to add ``feed'' to the title of this section. 
We propose to modify Sec.  201.108-1 to add language to specifically 
address the weighing of feed at the time of pickup; Sec.  201.108-1 
currently addresses only the weighing of live poultry at the time of 
pickup. The proposed changes add new procedures for weighing unused 
feed picked up from one or more poultry growers in a single load, 
including requirements for operating and maintaining onboard weighing 
systems and requirements for onboard weighing tickets. The proposed 
changes will ensure that unused feed is

[[Page 7688]]

accurately weighed at the time it is picked up from the grower. Failure 
to weigh unused feed at the time of pickup, or failure to use 
appropriately calibrated equipment, can result in inaccurate estimates 
of weight and inaccurate payment to the grower. Both feed (inputs) and 
live poultry (outputs) need to be weighed accurately in order to ensure 
that growers are compensated fairly.
    These proposed amendments all have the same purpose, which is to 
ensure fair and accurate weighing of feed, poultry, and livestock. We 
believe that without these amendments, there is significant potential 
for live poultry dealers and swine contractors to engage in unfair and 
deceptive practices by delaying the weighing of livestock, using scales 
incorrectly or inaccurately, and denying requests for reweighing.

Options Considered

    The only alternative we considered was to make no changes. We 
believe these amendments are necessary to make Sec. Sec.  201.49, 
201.76, 201.82 and 201.108-1 consistent with other existing regulations 
and to carry out provisions of the P&S Act.

Effects on Regulated Entities

    There should be little to no additional cost incurred by live 
poultry dealers because of these amendments. Eliminating split loads 
may increase to a small extent the number of trips that live poultry 
dealers make to and from growers' facilities. However, split loads can 
increase processing inefficiencies at the plant, offsetting any 
transportation cost savings from split loads. Therefore, the 
prohibition on split loads should have little or no net monetary 
consequence for live poultry dealers.
    Swine contractors may incur some additional cost to comply with 
these requirements but we expect the costs to be minor and to be 
outweighed by the benefits of helping ensure proper weighing and, 
ultimately, accurate payment for the livestock.
    Other changes resulting from these proposed amendments should be 
inconsequential from a monetary standpoint.

Executive Order 12866 and Regulatory Flexibility Act

    The Office of Management and Budget designated this rule as not 
significant for the purposes of Executive Order 12866.
    We have determined that these proposed amendments would not have a 
significant economic impact on a substantial number of small entities 
as defined in the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). 
An initial regulatory flexibility analysis as described in 5 U.S.C. 605 
of the Regulatory Flexibility Act is not required or provided here. The 
proposed amendments would directly affect companies in contractual 
relationships with swine production contract growers and poultry 
growers. Most of these entities are slaughterers and processors of 
swine or poultry with more than 500 employees and do not meet the 
applicable size standards for small entities presented in the Small 
Business Administration regulations (13 CFR 121.201). To the extent the 
proposed amendments do affect small entities, the amendments will not 
impose substantial new expenses or changes to routine operations.
    Small swine production contract growers and poultry growers should 
benefit indirectly from the proposed amendments, which should provide 
accurate and fair weighing of their inputs and outputs.
    We have considered the effects of this rulemaking action under the 
Regulatory Flexibility Act and we believe that it will not have a 
significant impact on a substantial number of small entities. We 
welcome comments on the cost of compliance with this rule, and 
particularly on the impact of this proposed rule on small entities. We 
also welcome comments on alternatives to the proposed rule that could 
achieve the same purpose with less cost or burden.

Executive Order 12988

    These proposed amendments have been reviewed under Executive Order 
12988, Civil Justice Reform. These actions are not intended to have a 
retroactive effect. This rule will not pre-empt State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with the amendments. The provisions of these amendments will 
not require administrative procedures be exhausted prior to judicial 
challenges.

Paperwork Reduction Act

    These proposed amendments do not contain new information collection 
requirements or changes to existing information collection requirements 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.).

E-Government Act Compliance

    GIPSA is committed to complying with the E-Government Act, to 
promote the use of the Internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes.

List of Subjects in 9 CFR Part 201

    Reporting and recordkeeping requirements, Poultry and poultry 
products, Trade practices.

    For the reasons set forth in the preamble, we propose to amend 9 
CFR part 201 to read as follows:

PART 201--[AMENDED]

    1. The authority citation for part 201 continues to read as 
follows:

    Authority: 7 U.S.C. 222 and 228; 7 CFR 2.22 and 2.81.

    2. Revise Sec.  201.49 to read as follows:


Sec.  201.49  Requirements regarding scale tickets evidencing weighing 
of livestock, live poultry, and feed.

    (a) When livestock, poultry or feed is weighed for the purpose of 
purchase, sale, acquisition, or settlement, a scale ticket must be 
issued which must be serially numbered and used in numerical sequence. 
Sufficient copies must be executed to provide a copy to all parties to 
the transaction. Unused and partially executed scale tickets must not 
be left exposed or accessible to other parties and must be kept under 
lock when the weigher is not at the scale. In instances where the 
weight values are automatically recorded directly on the account of 
purchase, account of sale, or other basic transaction record, this 
record may serve in place of a scale ticket.
    (b) Livestock. When livestock is weighed for the purpose of 
purchase or sale, or when livestock is purchased on a carcass weight or 
carcass grade and weight basis, the hot carcass weights must be 
recorded using a scale equipped with a printing device, and such 
printed weights must be retained as part of the person or firm's 
business records to substantiate settlement on each transaction. In 
instances where the weight values are automatically recorded directly 
on the account of purchase, account of sale, or other basic transaction 
record, this record may serve in place of a scale ticket. Scale tickets 
or other basic transaction records issued under this section must show:
    (1) The name and location of the agency performing the weighing 
service;
    (2) The date of the weighing;
    (3) The name of the buyer and seller or consignor, or a designation 
by which they may be readily identified;
    (4) The number of head;
    (5) Kind of livestock;
    (6) Actual weight of each draft of livestock; and
    (7) The name, initials, or identification number of the person who 
weighed the livestock, or if required by State law, the signature of 
the weigher.

[[Page 7689]]

    (c) Poultry. When live poultry is weighed for the purpose of 
purchase, sale, acquisition, or settlement by a live poultry dealer, 
the scale ticket or other basic transaction record must show:
    (1) The name of the agency performing the weighing service;
    (2) The name of the live poultry dealer;
    (3) The name and address of the grower or seller, and purchaser;
    (4) The name, initials, or identification number of the person who 
weighed the poultry, or if required by State law, the signature of the 
weigher;
    (5) The location of the scale;
    (6) The zero balance for both the gross weight and tare weight;
    (7) The date and time zero balance was determined;
    (8) The gross weight, tare weight, and net weight;
    (9) The date and time gross weight and tare weight are determined;
    (10) The number of poultry weighed;
    (11) The weather conditions;
    (12) Whether the driver was on or off the truck at the time of 
weighing, if applicable; and
    (13) The license number or other identification numbers on the 
truck and trailer, if weighed together, or trailer if only the trailer 
is weighed; provided, that when live poultry is weighed on a scale 
other than a vehicle scale, the scale ticket or other basic transaction 
record need not show the information specified in paragraphs (c)(11) 
and (c)(12) of this section.
    (d) Feed. Whenever feed is weighed and the weight of the feed is a 
factor in determining payment or settlement to a livestock producer or 
poultry grower, the scale ticket or other basic transaction record must 
show:
    (1) The name of the agency performing the weighing service, or the 
name and location of the firm responsible for supplying the feed;
    (2) The name and address of the livestock producer or poultry 
grower;
    (3) The name, initials or identification number of the person who 
weighed the feed, or if required by State law, the signature of the 
weigher;
    (4) The location of the scale;
    (5) The zero balance for both the gross and tare, when applicable;
    (6) The date and time zero balance was determined, when applicable;
    (7) The gross weight, tare weight, and net weight of each lot 
assigned to an individual producer or grower, if applicable;
    (8) The date and time gross weight and, if applicable, tare weight, 
are determined;
    (9) The identification of each lot assigned to an individual 
producer or grower by vehicle or trailer compartment number and seal 
number, if applicable;
    (10) Whether the driver was on or off the truck at the time of 
weighing, if applicable; and
    (11) The license number or other identification numbers on the 
truck and trailer, if weighed together, or trailer if only the trailer 
is weighed, if applicable.
    3. Revise Sec.  201.76 to read as follows:


Sec.  201.76  Reweighing.

    Stockyard owners, market agencies, dealers, packers, swine 
contractors and live poultry dealers must reweigh livestock, livestock 
carcasses, and live poultry or feed on request of any authorized 
representative of the Secretary.
    4. Revise Sec.  201.82 to read as follows:


Sec.  201.82  Care and promptness in weighing and handling livestock 
and live poultry.

    (a) Each stockyard owner, market agency, dealer, packer, swine 
contractor and live poultry dealer must exercise reasonable care and 
promptness with respect to loading, transporting, holding, yarding, 
feeding, watering, weighing, or otherwise handling livestock, or live 
poultry to prevent waste of feed, shrinkage, injury, death or other 
avoidable loss.
    (b) Whenever live poultry is obtained under a poultry growing 
arrangement and the weight of the live poultry is a factor in 
calculating payment to the grower, the poultry must be transported 
promptly after loading. The process of obtaining the gross weight must 
commence immediately upon arrival at the processing plant, holding 
yard, or other scale normally used for such purpose. This process, 
which includes but is not limited to fueling, uncoupling the trailer, 
changing the road tractor to a yard tractor or weighing the trailer 
only, must be conducted without delay; specifically, the time period 
between arrival and completion of the weighing process must not exceed 
thirty (30) minutes.
    (c) Live poultry dealers must not place poultry from multiple 
growers on a single live poultry transport trailer or other live 
poultry transport equipment, creating what is commonly referred to as a 
``split load.''
    5. Amend Sec.  201.108-1 to:
    a. Revise the heading;
    b. Revise the first sentence of the introductory text;
    c. Revise paragraph (a)(1);
    d. Remove paragraph (a)(7);
    e. Remove the word ``sensitiveness'' and add in its place the word 
``sensitivity'' in (b)(5);
    f. Add paragraphs (c) (1) (v) and (vi);
    g. Add paragraph (d) (3);
    h. Remove paragraph (e) (2) and redesignate paragraphs (e)(3) and 
(4) as paragraphs (e)(2) and (3).


Sec.  201.108-1  Instructions for weighing live poultry or feed.

    Live poultry dealers who operate scales on which live poultry or 
feed is weighed for purposes of purchase, sale, acquisition, or 
settlement are responsible for the accurate weighing of such poultry or 
feed. * * *
    (a) Balancing the empty scale. (1) The scale shall be maintained in 
zero balance at all times. The empty scale shall be balanced each day 
before weighing begins and thereafter its zero balance shall be 
verified before any poultry or feed is weighed. The time and date the 
empty scale is balanced or its zero balance verified must be 
mechanically printed on the scale ticket or other basic transaction 
record. In addition, the zero balance of the scale shall be verified 
whenever a weigher resumes weighing duties after an absence from the 
scale.
* * * * *
    (c) * * *
    (1) * * *
    (v) A feed hopper attached to an electronic digital scale must be 
empty of feed and the electronic digital scale must be balanced at zero 
prior to first weighment for each grower or per truckload, whichever is 
applicable. The date and time the empty hopper scale is balanced or its 
zero balance verified must be mechanically printed on the scale ticket 
or other permanent record that must be attached to the grower's copy of 
the scale ticket. Further, the hopper must be empty and balanced at 
zero prior to each weighment.
    (vi) An onboard weighing system must be level and locked in 
position and zero balanced prior to weighing. The date and time the 
onboard scale is balanced or its zero balance verified must be 
mechanically printed on the scale ticket or other permanent record that 
must be attached to the grower's copy of the scale ticket. When more 
than one grower's feed is weighed, the proceeding grower's gross weight 
can be used for the next grower's tare weight, and can be repeated 
until the unit is full.
* * * * *
    (d) * * *
    (3) When returned feed from a contract poultry grower is picked up 
and weighed on an onboard weighing system, the weight of the feed must 
be recorded and a ticket printed. That weight must be used as the tare 
weight when feed from another contract poultry grower is picked up on 
the same load.

[[Page 7690]]

The procedure must be followed each time another grower's feed is added 
to the load.
* * * * *

James E. Link,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 08-577 Filed 2-8-08; 8:45 am]
BILLING CODE 3410-KD-P