[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76254-76256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30712]


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

DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Part 802

[Docket  GIPSA-2010-FGIS-0012]
RIN 0580-AB19


Official Performance and Procedural Requirements for Grain 
Weighing Equipment and Related Grain Handling Systems

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

ACTION: Direct final rule.

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

SUMMARY: The Grain Inspection, Packers and Stockyards Administration 
(GIPSA) Federal Grain Inspection Service (FGIS) is amending the 
regulations issued under the United States Grain Standards Act (USGSA), 
as amended, to incorporate by reference the applicable requirements of 
the 2008 edition of the National Institute of Standards and Technology 
(NIST) Handbook 44, ``Specifications, Tolerances, and Other Technical 
Requirements for Weighing and Measuring Devices,'' (NIST Handbook 44, 
issued October 2007).

DATES: This rule is effective March 8, 2011 without further action, 
unless adverse comments or written notice of intent to submit adverse 
comments are received by January 7, 2011. If adverse comments are 
received, GIPSA will publish a timely withdrawal of the rule in the 
Federal Register. The incorporation by reference of certain 
publications in this rule is approved by the Director of the Federal 
Register as of March 8, 2011.

ADDRESSES: We invite you to submit comments on this direct final rule 
by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, 
SW., room 1643-S, Washington, DC 20260-3642.
     E-mail comments to [email protected].
     Fax: (202) 690-2173.
    Instructions: All comments will become a matter of public record 
and should be identified as ``NIST Handbook 44 IBF Comments,'' making 
reference to the date and page number of this issue of the Federal 
Register. Comments will be available for public inspection at http://www.regulations.gov and in the above office during regular business 
hours (7 CFR 1.27(b)). Please contact the GIPSA Management Support 
Staff at (202) 720-7486 to make an appointment to read the comments 
received.

FOR FURTHER INFORMATION CONTACT: Robert S. Lijewski, Director, Field 
Management Division by E-mail at [email protected], or by 
telephone at (202) 720-0228.

SUPPLEMENTARY INFORMATION: 

Background

    Under the provisions of the USGSA (7 U.S.C. 71-87k), grain exported 
from the U.S. must be officially inspected and weighed. Sections 802 
and 802.1 of the USGSA regulations (7 CFR 802.0-802.1) set forth 
certain procedures, specifications, tolerances, and other technical 
requirements for grain weighing equipment and related grain handling 
systems used in performing Class X and Class Y official weighing 
services. GIPSA management has reviewed these regulations and 
determined that they still serve their intended purpose, are consistent 
with GIPSA's statutory authority and policy, and should remain in 
effect. In order to update the USGSA regulations, however, GIPSA is 
incorporating by reference the 2008 edition of NIST Handbook 44 into 
the USGSA regulations (7 CFR 802.0(a)). Those provisions in NIST 
Handbook 44 that obviously do not pertain to GIPSA services are not 
being incorporated and are listed in section 802.0(b) of the USGSA 
regulations (7 CFR 802.0(b)).

Direct Final Action

    GIPSA is revising Sec.  802.0(a) of the USGSA regulations (7 CFR 
802.0(a)) by incorporating by reference the following sections only of 
the 2008 edition of NIST Handbook 44:

Section 1.10 General Code
Section 2.20 Scales
Section 2.22 Automatic Bulk Weighing Systems
Section 2.23 Weights

    Pursuant to 5 U.S.C. 553, it is found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to public 
interest to give preliminary notice prior to putting this

[[Page 76255]]

direct final rule in effect because GIPSA regularly updates this 
section of the USGSA regulations to incorporate by reference NIST 
Handbook 44. Further, GIPSA views this action as noncontroversial and 
anticipates no adverse public comment. This rule will be effective, as 
published in this document, 90 days after the date of publication in 
the Federal Register, unless GIPSA receives written adverse comments or 
written notice of intent to submit adverse comments within 30 days of 
the date of publication of this rule in the Federal Register. Adverse 
comments are considered to be those comments that suggest the rule 
should not be adopted or suggest the rule should be changed.
    If GIPSA receives written adverse comments or written notice of 
intent to submit adverse comments, we will publish a notice in the 
Federal Register withdrawing this rule before the effective date. GIPSA 
will then publish a proposed rule for public comment. Following the 
close of that comment period, the comments will be considered 
thoughtfully, and a final rule addressing the comments will be 
published.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by OMB.
    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (5 U.S.C. 601-612), it has been determined that this 
rule will not have a significant economic impact on a substantial 
number of small entities. GIPSA has determined that most users of the 
official weighing service and those entities that perform these 
services do not meet the requirements for small entities. This rule 
will affect entities engaged in shipping grain to and from points 
within the United States and exporting grain from the United States. 
GIPSA estimates approximately 9,000 off farm storage facilities and 57 
export elevators in the United States could receive official weighing 
services by GIPSA, delegated States, or designated agencies. GIPSA also 
estimates this rule affects 18 scale manufacturing and 39 scale service 
companies who provide weighing equipment and service to these elevators 
and storage facilities. Eight GIPSA field offices, 2 Federal/State 
offices, 4 GIPSA sub offices, 7 delegated States, and 25 designated 
agencies provide official weighing service. Under provisions of the 
USGSA, it is not mandatory for non-export grain to be officially 
weighed except for grain being loaded onto ships located in export port 
locations. Further, most users of the official weighing services and 
those entities that perform these services do not meet the requirements 
for small entities. Even though some users could be considered small 
entities, this rule only updates regulatory requirements that make 
GIPSA weighing guidelines consistent with State weights and measures 
organizations' laws and regulations that automatically adopt NIST 
Handbook 44 on a yearly basis. Updating these requirements will help 
manufacturers of weighing equipment and grain elevators avoid making, 
installing, and maintaining equipment to meet two sets of design and 
performance requirements for commercial and official weighing to meet 
old as well as new specifications. Since regulated entities are 
required under State law to comply with NIST Handbook 44, no additional 
cost or burden is expected to result from this action.

Executive Order 12988

    This direct final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. This action is not intended to have 
retroactive effect. The USGSA provides in section 87g (7 U.S.C. 87g) 
that no State or subdivision thereof may require or impose any 
requirements or restrictions concerning the inspection, weighing, or 
description of grain under the USGSA. Otherwise, this direct final rule 
would not preempt any State or local laws, or regulations, or policies 
unless they present an irreconcilable conflict with this rule. There 
are no administrative procedures which must be exhausted prior to any 
judicial challenge to the provisions of this direct final rule.

Paperwork Reduction Act

    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), the information collection and recordkeeping requirements 
in Part 802 have been approved previously by OMB No. 0580-0013 which 
expires on April 30, 2011.

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 7 CFR Part 802

    Administrative practice and procedure, Export, Grain, Incorporation 
by reference, Reporting and recordkeeping requirements.

0
For reasons set forth in the preamble, 7 CFR Part 802 is amended as 
follows:

PART 802--OFFICIAL PERFORMANCE AND PROCEDURAL REQUIREMENTS FOR 
GRAIN WEIGHING EQUIPMENT AND RELATED GRAIN HANDLING SYSTEMS

0
1. The authority citation for Part 802 continues to read as follows:

    Authority:  7 U.S.C. 71-87k.

0
2. Section 802.0 is revised to read as follows:


Sec.  802.0   Applicability.

    (a) The requirements set forth in this part 802 describe certain 
specifications, tolerances, and other technical requirements for grain 
weighing equipment and related grain handling systems used in 
performing Class X and Class Y weighing services, official inspection 
services, and commercial services under the Act. All scales used for 
official grain weight and inspection certification services provided by 
FGIS must meet applicable requirements contained in the FGIS Weighing 
Handbook, the General Code, the Scales Code, the Automatic Bulk 
Weighing Systems Code, and the Weights Code of the 2008 edition of 
National Institute of Standards and Technology (NIST) Handbook 44, 
``Specifications, Tolerances, and Other Technical Requirements for 
Weighing and Measuring Devices'' (Handbook 44); and NIST Handbook 105-1 
(1990 Edition), ``Specifications and Tolerances for Reference Standards 
and Field Standard Weights and Measures,'' (Handbook 105-1). These 
requirements are confirmed to be met by having National Type Evaluation 
Program type approval. Scales used for commercial purposes will be 
required to meet only the applicable requirements of the 2008 edition 
of the NIST Handbook-44. Pursuant to the provisions of 5 U.S.C. 552(a), 
with the exception of the Handbook 44 requirements listed in paragraph 
(b), the materials in Handbooks 44 and 105-1 are incorporated by 
reference as they exist on the date of approval and a notice of any 
change in these materials will be published in the Federal Register. 
This incorporation by reference was approved by the Director of the 
Federal Register on March 8, 2011, in accordance with 5 U.S.C. 552(a) 
and 1 CFR part 51. The NIST Handbooks are for sale by the National 
Conference of Weights and Measures (NCWM), 1135 M Street, Suite 110, 
Lincoln, Nebraska 68508. Information on these materials

[[Page 76256]]

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) The following Handbook 44 requirements are not incorporated by 
reference:

Scales (2.20)

S.1.8. Computing Scales
S.1.8.2. Money-Value Computation
S.1.8.3. Customer's Indications
S.1.8.4. Recorded Representations, Point of Sale
S.2.5.2. Jeweler's, Prescription, & Class I & II Scales
S.3.3. Scoop Counterbalance
N.1.3.2. Dairy-Product Test Scales
N.1.5. Discrimination Test (Not adopted for Grain Test Scales only)
N.1.8. Material Tests
N.3.1.2. Interim Approval
N.3.1.3. Enforcement Action For Inaccuracy
N.4. Coupled-in-Motion Railroad Weighing Systems
N.6. Nominal Capacity of Prescription Scales
T.1.2. Postal and Parcel Post Scales
T.2.3. Prescription Scales
T.2.4. Jewelers' Scales (all sections)
T.2.5. Dairy--Product--Test Scales (all sections)
T.N.3.9. Materials Test on Customer--Operated Bulk--Weighing Systems 
for Recycled Materials
UR.1.4. Grain Test Scales: Value of Scale Divisions
UR.3.1. Recommended Minimum Load
UR.3.1.1. Minimum Load, Grain Dockage

Automatic Bulk Weighing Systems (2.22)

N.1.3. Decreasing-Load Test


J. Dudley Butler,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 2010-30712 Filed 12-7-10; 8:45 am]
BILLING CODE 3410-KD-P