[Federal Register Volume 74, Number 201 (Tuesday, October 20, 2009)]
[Rules and Regulations]
[Pages 53639-53640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25040]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 201 / Tuesday, October 20, 2009 / 
Rules and Regulations  

[[Page 53639]]



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: Final rule.

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SUMMARY: The Department of Agriculture's Grain Inspection, Packers and 
Stockyards Administration (GIPSA) is amending 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 edition of NIST Handbook 44. GIPSA is also 
amending that section of the regulations to add ``swine contractors'' 
to the list of regulated entities to which the section applies.

DATES: Effective November 19, 2009. The incorporation by reference of a 
certain publication listed in this rule is effective as of November 19, 
2009.

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

    GIPSA enforces the P&S Act, as amended (7 U.S.C. 181 et seq.). The 
Secretary of Agriculture, is authorized (7 U.S.C. 228) to issue 
regulations necessary to carry out the provisions of the P&S Act.
    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.''
    GIPSA believes that adding ``swine contractor'' to specific 
sections of the regulations will dispel confusion among swine 
contractors regarding which regulations under the P&S Act are 
applicable to them. It will also allow GIPSA to more easily identify 
and enforce violations of the P&S Act.

Notice of Proposed Rulemaking and Final Action

    GIPSA published a Notice of Proposed Rulemaking in the Federal 
Register (74 FR 22841) on May 15, 2009, seeking comments on amending 
the regulations issued under the P&S Act to do the following: (1) 
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;'' (2) 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; and, (3) add ``swine 
contractors'' to the list of regulated entities to which the section 
applies. Because GIPSA received no comments on the proposed rule during 
the 60-day comment period, which ended on July 14, 2009, we are 
amending Sec.  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 are also amending Sec.  201.71(a) to 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. In addition, we are amending Sec.  201.71(b) to require that 
swine contractors use scales equipped with a printing device, which 
shall record weight values on a scale ticket or other document. 
Finally, we are amending Sec.  201.71(d) to require that swine 
contractors use only scales that are found, upon testing and 
inspection, to be in a condition to give accurate weights.
    GIPSA believes that adding ``swine contractor'' as a regulated 
entity to section 201.71 makes that section of the regulations 
consistent with other regulations under the P&S 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 while continuing to protect their interests indirectly 
through the regulation of packers, dealers, and market agencies. We 
determined that this option, however, was 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 standards for electronic devices. We determined 
that this option, however, would not provide up-to-date standards under 
the P&S regulations 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 final rule makes it clear that swine contractors as well as 
other regulated entities must operate,

[[Page 53640]]

maintain, and test scales according to the requirements of the 2009 
edition of NIST Handbook 44, and use scales that are 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 are 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.
    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), GIPSA has considered the 
economic impact of this action on small entities. The purpose of the 
RFA is to fit regulatory actions to the scale of businesses subject to 
such actions in order that small businesses will not be unduly or 
disproportionately burdened.
    The Small Business Administration (SBA) defines small businesses by 
their North American Industry Classification System Codes (NAICS).\1\ 
This final rule affects swine contractors, most of which are either 
slaughterers or processors of swine with more than 500 employees (NAICS 
code 311611), or are producers with more than $750,000 in annual sales 
(NAICS code 112210), and do not meet the applicable size standards for 
small entities under the Small Business Act (13 CFR 121.201). 
Therefore, we have determined that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as defined in the RFA and are not providing an initial regulatory 
flexibility analysis.
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    \1\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. These actions are not intended to have 
retroactive effect. This final 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 final rule.

Paperwork Reduction Act

    This final 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, Incorporation by 
reference.


0
For the reasons set forth in the preamble, we amend 9 CFR part 201 to 
read as follows:

PART 201--REGULATIONS UNDER THE PACKERS AND STOCKYARDS ACT

0
1. The authority citation for part 201 continues to read as follows:

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


0
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 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. All approved material is available 
for inspection at the National Archives and Records Administration 
(NARA). For more information on the availability of this material at 
NARA, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Also, it 
is available for inspection at USDA, GIPSA, P&SP, 1400 Independence 
Ave., SW., Washington, DC 20250, (202) 720-7363. 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. E9-25040 Filed 10-19-09; 8:45 am]
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