[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Proposed Rules]
[Pages 22841-22842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11159]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed 
Rules  

[[Page 22841]]



DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

9 CFR Part 201

RIN 0580-AB09


Scales; Accurate Weights, Repairs, Adjustments or Replacements 
After Inspection

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

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend one section of the regulations under 
the Packers and Stockyards Act (P&S Act) to incorporate by reference 
the 2009 edition of the National Institute of Standards and Technology 
(NIST) Handbook 44, ``Specifications, Tolerances, and Other Technical 
Requirements for Weighing and Measuring Devices,'' and to require that 
scales used by stockyard owners, market agencies, dealers, packers, and 
live poultry dealers to weigh livestock, livestock carcasses, live 
poultry, or feed for the purposes of purchase, sale, acquisition, 
payment, or settlement meet applicable requirements of the 2009 NIST 
Handbook 44. Additionally, we are proposing to amend that section of 
the regulations to add ``swine contractors'' to the list of regulated 
entities to which the section applies.

DATES: We will consider comments we receive by July 14, 2009.

ADDRESSES: We invite you to submit comments on this proposed rule. You 
may submit comments by any of the following methods:
     E-Mail: [email protected].
     Mail: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, 
SW., Room 1643-S, Washington, DC 20250-3604.
     Fax: (202) 690-2173.
     Hand Delivery or Courier: Tess Butler, GIPSA, USDA, 1400 
Independence Avenue, SW., Room 1643-S, Washington, DC 20250-3604.
     Internet: Go to http://www.regulation.gov. Follow the on-
line instruction for submitting comments.
    Instructions: All comments should make reference to the date and 
page number of this issue of the Federal Register. Regulatory analyses 
and other documents relating to this action will be available for 
public inspection in Room 1643-S, 1400 Independence Avenue, SW., 
Washington, DC 20250-3604 during regular business hours. All comments 
will be available for public inspection in the above office during 
regular business hours (7 CFR 1.27(b)). Please call GIPSA's Management 
Support Staff at (202) 720-7486 to arrange a public inspection of 
comments received.

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), enforces the P&S Act (7 U.S.C. 181 et seq.). Under authority 
granted to us by the Secretary of Agriculture (Secretary), we are 
authorized (7 U.S.C. 228) to create those regulations necessary to 
carry out the provisions of the P&S Act that specify requirements for 
regulated entities that purchase livestock or poultry.
    The regulations under the P&S Act have specific requirements for 
(1) scales that regulated entities use for weighing livestock, poultry 
or feed and (2) packers purchasing livestock on a carcass grade, 
weight, or grade and weight basis.
    The Farm Security and Rural Investment Act of 2002 (Pub. L. 107-
171) (Act) amended the P&S Act to add ``swine contractor'' as a 
regulated entity. Section 10502 of the Act defined swine contractor as 
``* * * 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 (a) the swine is obtained by the 
person in commerce; or (b) the swine (including products from the 
swine) obtained by the person is sold or shipped in commerce.''
    Adding ``swine contractor'' to specific sections of the regulations 
would dispel any confusion among swine contractors regarding which 
regulations under the P&S Act are applicable to them. It would also 
allow GIPSA to more easily identify and enforce violations of the P&S 
Act.

Description of Proposed Changes

    We propose to amend Section 201.71 of the regulations under the P&S 
Act (9 CFR 201.71) to incorporate by reference the 2009 edition of NIST 
Handbook 44. We would also provide instructions on how to obtain copies 
of the handbook, which includes updated standards for operating, 
maintaining, and testing scales and standards for electronic devices.
    We also propose to revise this section of the regulations by adding 
the term ``swine contractors,'' as follows:
     Sec.  201.71(a) would state that swine contractors must 
operate, maintain, and test scales according to the requirements of the 
2009 edition of Handbook 44, Specifications, Tolerances, and Other 
Technical Requirements for Weighing and Measuring Devices;
     Sec.  201.71(b) would require swine contractors to use 
scales equipped with a printing device which shall record weight values 
on a scale ticket or other document; and
     Sec.  201.71(d) would require swine contractors to use 
only scales that are found, upon testing and inspection, to be in a 
condition to give accurate weights.
    The proposed changes to add swine contractor as a regulated entity 
would make this section consistent with other regulations under the 
P&SA Act regarding regulated entities that have been amended to include 
swine contractors.

Options Considered

    We considered the option of not adding swine contractors to the 
regulations; we would continue to protect the interest of swine 
producers indirectly through regulation of packers, dealers, and market 
agencies. That option, however, is contrary to the intent of Congress, 
which amended the P&S Act to give GIPSA specific authority over swine 
contractors. We also considered not revising the regulations under the 
P&S Act regarding the standards for operating, maintaining, and testing 
scales and

[[Page 22842]]

standards for electronic devices. Choosing this option, however, would 
not provide up-to-date standards for electronic devices as new 
technology emerges, nor would it provide consistency with the standards 
imposed by the States' departments of weights and measures.

Effects on Regulated Entities

    This proposed rule would make it clear that swine contractors as 
well as other regulated entities must operate, maintain, and test 
scales according to the requirements of the 2009 edition of NIST 
Handbook 44 and to use scales in good condition and equipped with a 
printing device to record weight values. Since regulated entities are 
required under State law to comply with NIST Handbook 44, there would 
be no new costs or burden to comply.

Executive Order 12866 and Regulatory Flexibility Act

    The Office of Management and Budget (OMB) has designated this rule 
as not significant for the purposes of Executive Order 12866.
    We have determined that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
While this proposed rule would affect swine contractors, most such 
entities do not meet the definition for small entities in the Small 
Business Act (13 CFR 121.201). Therefore, we are not providing an 
initial regulatory flexibility analysis.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. These actions are not intended to have 
retroactive effect. This rule will not pre-empt state or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule. There are no administrative procedures that 
must be exhausted prior to any judicial challenge to the provisions of 
this rule.

Paperwork Reduction Act

    This proposed rule does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). It does not involve collection of new or 
additional information by the federal government.

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

    Swine, Hogs, Livestock, Measurement standards.

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

PART 201--REGULATIONS UNDER THE PACKERS AND STOCKYARDS ACT

    1. Revise the authority citation for part 201 to read as follows:

    Authority:  7 U.S.C. 181-229c.

    2. In Sec.  201.71, paragraphs (a), (b) and (d) are revised to read 
as follows:


Sec.  201.71   Scales; accurate weights, repairs, adjustments or 
replacements after inspection.

    (a) All scales used by stockyard owners, swine contractors, market 
agencies, dealers, packers, and live poultry dealers to weigh 
livestock, livestock carcasses, live poultry, or feed for the purposes 
of purchase, sale, acquisition, payment, or settlement shall be 
installed, maintained, and operated to ensure accurate weights. Such 
scales shall meet applicable requirements contained in the General 
Code, Scales Code, and Weights Code of the 2009 edition of the National 
Institute of Standards and Technology (NIST) Handbook 44, 
``Specifications, Tolerances, and Other Technical Requirements for 
Weighing and Measuring Devices,'' which is hereby incorporated by 
reference. This incorporation by reference was approved by the Director 
of the Federal Register on [INSERT EFFECTIVE DATE OF FINAL RULE], in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are 
incorporated as they exist on the date of approval and a notice of any 
change in these materials will be published in the Federal Register. 
The handbook is for sale by the National Conference of Weights & 
Measures (NCWM), 1135 M Street, Suite 110, Lincoln, Nebraska 68508. 
Information on these materials may be obtained from NCWM by calling 
402-434-4880, by e-mailing [email protected], or on the Internet at http://www.nist.gov/owm.
    (b) All scales used by stockyard owners, swine contractors, market 
agencies, dealers, packers, and live poultry dealers to weigh 
livestock, livestock carcasses, live poultry, or feed for the purpose 
of purchase, sale, acquisition, payment, or settlement of livestock or 
live poultry and all scales used for the purchase, sale acquisition, 
payment, or settlement of livestock on a carcass weight basis shall be 
equipped with a printing device which shall record weight values on a 
scale ticket or other document.
* * * * *
    (d) No scales shall be operated or used by any stockyard owners, 
swine contractors, market agencies, dealers, packers, or live poultry 
dealers to weigh livestock, livestock carcasses, live poultry, or feed 
for the purposes of purchase, sale, acquisition, payment, or settlement 
of livestock, livestock carcasses or live poultry unless it has been 
found upon test and inspection, as specified in Sec.  201.72, to be in 
a condition to give accurate weight. If a scale is inspected or tested 
and adjustments or replacements are made to a scale, it shall not be 
used until it has been inspected and tested and determined to meet all 
accuracy requirements specified in the regulations in this section.

Alan R. Christian,
Acting Administrator, Grain Inspection, Packers and Stockyards 
Administration.
[FR Doc. E9-11159 Filed 5-14-09; 8:45 am]
BILLING CODE 3410-KD-P