[Federal Register Volume 78, Number 162 (Wednesday, August 21, 2013)]
[Rules and Regulations]
[Pages 51658-51664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20320]
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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: Final rule.
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SUMMARY: The Department of Agriculture's (USDA) Grain Inspection,
Packers and Stockyards Administration (GIPSA) is amending the
regulations issued under the Packers and Stockyards Act, 1921, as
amended and supplemented (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. Specifically, we are amending a regulation about scale tickets
to reduce redundant wording and to clarify weighing procedures. In
addition, we are amending a regulation about reweighing to add swine
contractors to the list of firms that must comply, and adding feed to
the list of items for which reweighing may be requested. We are also
amending two other regulations about 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.
[[Page 51659]]
DATES: Effective Date: September 20, 2013.
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 administers and enforces the P&S Act (7 U.S.C. 181-229,
229c.). Under authority delegated to us by the Secretary of Agriculture
(Secretary), we are authorized (7 U.S.C. 228) to make those regulations
necessary to carry out the provisions of the P&S Act.
This final rule clarifies existing requirements involving scale
tickets and live poultry weighing. Currently, Sec. 201.49 of the
regulations issued under the P&S Act, ``Requirements regarding scale
tickets evidencing weighing of livestock, live poultry, and feed,''
contains redundant wording about scale tickets issued when weighing
livestock, live poultry and feed. Because the requirements for
numbering scale tickets and executing sufficient copies are largely the
same for livestock, live poultry, and feed, we are consolidating in
this final rule these general requirements into a new Sec. 201.49(a),
which is followed by separate specific requirements for livestock, live
poultry, and feed. This final rule will require that a zero balance of
a scale be recorded and that the time the zero balance was determined
be printed on the scale ticket, which is consistent with other weighing
regulations involving scale tickets. Additionally, we are removing
regulatory language in Sec. 201.108-1, ``Instructions for weighing
live poultry,'' regarding scale tickets that duplicates language in
Sec. 201.49. GIPSA believes that these revisions will clarify the
requirements that are unique to each commodity and thus prevent
confusion caused by the redundant language contained in the current
regulations.
In this final rule, we are also clarifying that the ``number of the
person'' who performed the weighing service means the identification
number of that individual, not that person's telephone number. In
addition, we are clarifying that the regulatory requirement for
recording the license number of the truck and trailer applies to
situations involving weighing separately the truck or the trailer, or
both together. We are also making consistent throughout Sec. 201.49
language about license numbers or other identification numbers of
trucks and/or trailers.
We are adding ``swine contractors'' to the list of firms required
to comply with Sec. 201.76, ``Reweighing'' We are also adding ``feed''
to the list of items that must be reweighed upon request by any
authorized representative of the Secretary.
We are amending Sec. 201.82(a), ``Care and Promptness in Weighing
and Handling Livestock and Live Poultry'', to add ``swine contractors''
in the list of firms required to comply with this regulation.
Presently, Sec. 201.82(b) 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.
This final rule will add a sentence to the end of Sec. 201.82(b) 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. We are also amending Sec. 201.82(b) to clarify that
this section applies whenever the weight of live poultry is a factor in
calculating payment to the grower. Finally, we are adding 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 that
prohibiting split loads will prevent live poultry dealers from failing
to weigh each grower's flock promptly. The failure by a live poultry
dealer to weigh poultry promptly can result in weight loss, injury,
death or other avoidable losses to a poultry grower.
We are amending Sec. 201.108-1 of the regulations, ``Instructions
for Weighing Live Poultry'', to require additional procedures to ensure
accurate weighing. We are also adding the term ``feed'' to the title of
this section. In addition, we are amending Sec. 201.108-1 to include
the weighing of picked up feed in addition to the weighing of live
poultry. In this final rule, we are also adding 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 onboard weighing tickets. This final rule
will ensure that unused feed is accurately weighed. GIPSA has found
that failure to weigh unused feed by the live poultry dealer, 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) must be weighed
accurately in order to ensure that growers are compensated fairly.
GIPSA believes that this final rule will ensure the fair and
accurate weighing of feed, poultry, and livestock. There will be less
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, or denying requests for
reweighing.
Discussion of Comments and Final Action
On February 11, 2008, GIPSA published a notice of proposed
rulemaking in the Federal Register (73 FR 7686). While the initial
comment period for the proposed rule ended on April 11, 2008, we
subsequently extended the comment period to May 21, 2008 (73 FR 21286).
After careful review and consideration of the 33 comments received, we
are modifying the proposed amendments in the final rule as noted below.
We received seven letters from commenters that supported our
proposed amendments and asked that we help protect poultry growers'
investments. Specifically, the commenters asked that we ensure (1) that
poultry and feed are weighed properly and (2) that poultry growers are
allowed to watch as their birds are being weighed without fear of
retaliation by the live poultry dealer. We believe that the first issue
raised by the commenters was addressed adequately in our proposed
amendments to Sec. 201.49, Sec. 201.76, Sec. 201.82, and Sec.
201.108-1. The second issue raised by these commenters is addressed in
Sec. 201.108-1(e)(4) of the current regulations, which has been
redesignated as Sec. 201.108-1(e)(3) in this final rule. Currently,
Sec. 201.108-1(e)(4) states, in part, that poultry growers, live
poultry dealers, sellers, or others having legitimate interest in a
load of poultry are entitled to observe the balancing, weighing, and
recording procedures. A weigher shall not deny such persons that right
or withhold from them any information pertaining to the weight.
It is GIPSA's position that the phrase ``others having a legitimate
interest in a load of poultry'' includes (but is not limited to)
members of the poultry grower's immediate family, agent(s),
representative(s), employee(s), or business associate(s). Because we
did not propose an amendment to the language of current Sec. 201.108-
1(e)(4) of the regulations, however, we are making no changes to this
final rule based on these comments.
We received an additional 13 comments from poultry growers and
[[Page 51660]]
agricultural associations in response to GIPSA's proposed rule. All 13
comments included the suggestion that we require that live poultry
dealers obtain the tare weight of the poultry trailer immediately after
unloading. The commenters stated that this tare weight reading could be
compared to the tare weight reading taken prior to loading and would
account for possible snow or ice buildup underneath the trailer and/or
any maintenance work performed on the trailer before or after loading.
Sections 201.49, 201.76, 201.82 and 201.108-1 of the current
regulations do not address the number of tare weights that must be
taken for each load or when tare weights must be taken. Because we did
not propose changes to the number of tares taken for each load or the
time-frame within which tares are taken, the issue raised by these
comments is beyond the scope of our proposed rulemaking. The last
sentence of proposed Sec. 201.82(b), however, referred to the
``completion of the weighing process'' when describing the process of
obtaining the gross load weight and not the entire weighing process for
a load. We believe that this sentence may have led some people to
believe that we were referring to the process of obtaining the net load
weight. We will therefore clarify our requirement for ``immediately''
obtaining the gross weight for poultry in Sec. 201.82(b) of the final
rule to mean that the process of obtaining the gross weight must not
exceed 30 minutes following arrival at the scale normally used for such
weighing. To make clear that the last sentence of Sec. 201.82(b)
pertains only to obtaining the gross weight of loads and not the entire
weighing process, GIPSA will modify this sentence in this final rule to
read as set forth in the regulatory text of this rule.
Twelve of the 13 commenters agreed that copies of scale tickets
must actually be provided to all parties to the transaction. To clarify
the final rule, we are replacing the language requiring growers,
purchasers, sellers, and live poultry dealers ``be furnished'' with
scale tickets currently in Sec. 201.49(b)(11) and Sec. 201.49(c)(2)
with language in Sec. 201.49(a) ``Sufficient copies must be executed
and provided to all parties to the transaction.'' This retains
requirements that livestock producers and poultry growers be provided
hard copies of their scale tickets.
One of the 12 commenters also suggested that GIPSA require that all
parties be provided scale ticket copies immediately, before any change
occurred in the weight due to fluctuations in temperature or truck/
trailer maintenance. Sections 201.73-1(e)(4) and 201.108-1(e)(4) of the
current regulations under the P&S Act require that weighers permit
anyone having a legitimate interest in livestock or poultry to observe
the balancing, weighing, and recording procedures for the livestock or
poultry. Livestock or poultry producers may request that the weigher
provide them with a copy of the scale ticket for their livestock or
poultry at the time of weighing. Since the temperature would primarily
affect the weight of the animals, we believe that our requirement for
obtaining the gross weight within 30 minutes of arrival adequately
addresses concerns regarding loss in animal weight due to temperature.
With regard to the comments on maintenance work, except for
emergencies, live poultry dealers do not perform maintenance or repair
work on trucks or trailers in the time between taking the tare and
gross weights. Typically, truck repair and fabrication work does not
take place near areas where live poultry is handled. Because
unscheduled maintenance and repair work on trucks and trailers can
result in costly delays to the operations of the processing plants, we
do not believe that this is either a significant or a recurring problem
in the industry, and are therefore making no change to this final rule
based on this comment.
The 13 of these commenters further recommended that we require live
poultry dealers to disconnect trailers from the trucks before obtaining
gross and net weights. Many live poultry dealers weigh trucks and
trailers before leaving the plant, prior to loading the poultry, and
use a mathematical formula to account for fuel use during the trip. The
commenters said that they would accept weighing of the truck and
trailer together if differences in fuel levels were accounted properly.
Since our investigators routinely examine fuel formulas to verify
proper fuel adjustments, and we have not found that a significant or
recurring problem exists in this area, we are making no change to the
final rule based on these comments.
The 13 commenters also requested that, for the accurate weighing of
poultry, we require that scales be balanced before every load, instead
of once per day. Our proposed amendment to Sec. 201.108-1(a) requires
that scales be balanced each day before weighing begins and then
verified throughout the day prior to each weighing of poultry or feed.
Our proposal also requires that the weigher verify that the scales
register a zero balance upon returning to the scales following his/her
absence from the scale. We believe that our use of the word
``verified'' may have been understood to mean a visual check of the
balance condition of the scale made without documentation of the
balance condition. Therefore, in this final rule, we are deleting the
word ``verified'' from the second sentence of Sec. 201.108-1(a)(1),
and revising it to state that the scale is to be balanced at the time
any poultry or feed is weighed. We are also merging the third sentence
with the contents of the second sentence in the same section to make
clear that documentation of the zero balance and the time and date of
balancing must be done at the time any poultry or feed is weighed. By
adding the contents of the third sentence to the second sentence, we
are deleting the phrase ``or its zero balance shall be verified'' to
make it clear that we are requiring scales be balanced and that the
balance condition be documented for every instance that a load of
poultry or feed is weighed, and not just once per day. We are also
making similar revisions to Sec. 201.108-1(c)(1)(v)-(c)(1)(vi) in this
final rule for the same reason.
All 13 commenters asked that we not permit the delivery of split
loads of feed (feed for more than one grower on a single truck) unless
the truck has an on-board scale and weighing system, specifically when
feed is taken from one farm directly to another. Currently, Sec.
201.55(a) of the regulations requires that the actual weight be
obtained for all feed delivered to a livestock or poultry grower. This
means that live poultry dealers and swine contractors may either weigh
and place feed on a truck in a separate bin for each producer or
grower, or use a truck with an on-board scale and weighing system, when
delivering feed to multiple producers or growers. Although the current
regulations allow mutually agreed upon estimated weights be applied to
feed that is picked up from a grower, that same feed may not be
delivered to another farm on the basis of estimated weight according to
Sec. 201.55(a) and (b) because actual weight is required. Feed picked
up from one livestock producer or poultry grower must be weighed on a
certified scale (via an on-board system or otherwise) before being
delivered to another producer or grower. Because we are not requiring
that live poultry dealers or swine contractors use on-board systems, we
are making no change to this final rule based on these comments.
Thirteen additional individuals representing four poultry
companies, four poultry associations and one lending institution
responded to the proposed rule. The following discussion addresses
their comments.
[[Page 51661]]
Two commenters stated that their firm would have to employ someone
to program the firm's computer system to print a zero balance scale
ticket. They also stated that their poultry firm would need to hire a
dispatcher if a zero balance had to be printed prior to loading.
Presently, the company's feed truck drivers confirm visually that a
feed scale registers a zero balance on a ``scoreboard'' before driving
the truck onto a scale. The driver then immediately records in writing
his/her visual observation of the scale's zero balance.
In the proposed rule, we added a sentence to Sec. 201.108-1(a)(1)
requiring that the time and date the empty poultry or feed scale was
balanced be mechanically printed on the scale ticket or other basic
transaction record along with the zero balance. We are adding similar
wording to Sec. 201.49, which provides the requirements for recording
evidence of livestock, live poultry, and feed weighing. GIPSA believes
that hand recorded notes used to verify the zero balance of weight
scales are undependable and should not be relied upon in determining
payment to a livestock producer or poultry grower.
One live poultry dealer argued that documenting the time and date
of zero balances was sufficient and did not see the need to print a
zero balance on the scale tickets. As we stated previously, hand
written notes used to verify the zero balance of weight scales are
undependable and should not be relied upon when determining payment to
a livestock producer or poultry grower. GIPSA believes that livestock
producers and poultry growers cannot reasonably be assured that a scale
was balanced properly prior to the start of the weighing process unless
a zero balance is printed mechanically on the scale ticket. We estimate
there are about 230 feed scales in the U.S. that are used to weigh feed
for delivery to livestock producers or poultry growers. Based on
GIPSA's industry experience, 30 percent or more of all feed scales can
print a zero balance on the same scale ticket as the tare and gross
weight amounts.
Costs involved in bringing the other 70 percent of printers into
compliance may vary. Some systems may require minor alteration to
permit the printer to print a zero balance on the scale ticket along
with the tare and gross weight. Other systems may require a
reprogramming of the computer system controlling the printer. In these
cases, an independent scale company will likely have to do the
reprogramming. In some cases the manufacturer will likely have to do
the reprogramming. In researching this issue, we contacted six scale
manufacturers, two scale software program developers and two scale
dealers that also upgrade and service existing livestock, poultry and
feed scales. All are prominent in their field and operate on at least a
national, if not international level. They estimated that the cost to
modify scale settings or alter a scale program would generally vary in
a range of a few hundred dollars for the time and effort involved in
having a scale dealer make on-site adjustments. If individual scales
require new programming to print the zero balance on the same ticket as
the tare and gross, the scale manufacturers estimated that the costs
could range from $1,000 to $3,000. Software developers estimated that
costs could range from $2,000 for a partial reprogramming to $5,000 to
$10,000 for a full reprogramming. Among all the firms as a whole,
$1,500 appeared to be a reasonable overall average cost. If this is the
case, GIPSA estimates that the total cost to the industry would be
approximately $362,250. We believe that this cost is negligible in
comparison to the overall annual volume of poultry produced in the U.S.
(more than 43 billion pounds in 2012).\1\ GIPSA believes that printing
a zero balance on the scale ticket along with the gross, and if
appropriate, tare weight, will ensure that the poultry grower receives
documentation showing the verification of the zero balance condition of
the scale at the time of weighing.
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\1\ World Agricultural Supply and Demand Estimates, World
Agricultural Outlook Board, USDA, WASDE-518, pg. 32.
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Another live poultry dealer stated that it would not be feasible to
print zero balances between obtaining the tare weight and the gross
weight for feed placed on a load. In addition, a swine trade
association asked that we clarify what we mean by ``zero balance for
both the tare and gross weights'' for feed scale tickets. In our
proposed rule, we proposed amending Sec. 201.49(d)(5) to require that
scale tickets showing the weighing of feed include ``the zero balance
for both the gross and tare, when applicable.'' In our proposal, we did
not intend to require separate zero balances between obtaining each
tare weight and each gross weight, nor did we intend to require a zero
balance between obtaining tare and gross weights of feed when the truck
and trailer do not move off the scale once the tare weight is obtained
and loading begins. Weighers must ensure that the certified scale
registers a zero balance prior to beginning the weighing process.
Typically, one zero balance documented on a scale ticket along with the
tare and gross weight for the grower or truckload is sufficient. If the
truck is moved from one scale to another scale to complete the weighing
process a separate zero balance must be recorded for the tare and gross
weights. Once the scale registers a zero balance, a truck/trailer may
be driven onto the scale to obtain the tare or gross weights of the
truck/trailer and the load. Again, GIPSA believes that the beginning
zero balance, along with the tare and gross weights of the load, must
be printed on the scale ticket so that livestock producers and poultry
growers have documentation of the zero balance condition of the scale
at the time that the weighing process occurred.
Given the preceding discussion, GIPSA will delete the phrase ``for
both the gross and tare'' from Sec. 201.49(d)(5) in this final rule,
stating only that a zero balance must be printed on the scale ticket or
other basic transaction record. There will be one exception made in
this final rule, however, for vehicle scales when feed for more than
one producer or grower is loaded into a multi-compartment feed truck.
In this case, the gross weight of the feed for the initial producer or
grower may be used as the tare weight for the feed loaded for the next
grower. This process must be repeated until the loading of feed into
the truck is complete. A zero balance must appear on the scale ticket
or basic transaction record for the first load of feed, but not on the
ticket or record for subsequent loads of feed on the same truck. We
will add wording to Sec. 201.49(d)(5) in this final rule to address
this exception. Since these changes address all the situations where
printing the zero balance for both the tare and gross might not be
applicable, we are also deleting the phrase ``when applicable'' from
Sec. 201.49(d)(5) and Sec. 201.49(d)(6) in this final rule.
In Sec. 201.49(a) of the proposed rule, we required that unused
and partially executed scale tickets be secured under lock or made
inaccessible to other parties, which is a general rule applicable to
livestock, poultry and feed scales. One comment received from a poultry
company stated, however, that feed truck drivers are often weighers and
must weigh their own loads. Drivers come and go from feed mills at any
time of day and therefore, the scale tickets must be readily accessible
to those drivers each day. The commenter stated that unused tickets
secured in a locked compartment or in an area inaccessible to other
parties is impractical. We believe that unused scale tickets must be
secured to prevent unauthorized access and/or theft. Feed mills,
however, typically restrict access to
[[Page 51662]]
both the weighing controls and scale tickets so that only authorized
individuals are weighing and loading feed. We believe that in a feed
mill setting, unused and partially executed scale tickets are typically
kept in a secure environment. We will therefore revise Sec. 201.49(a)
in this final rule in response to this comment to exempt feed mills
from the requirement that they keep scale tickets under lock when the
weigher is not at the scale.
We received a comment submitted by a trade association that focused
on our proposal to amend Sec. 201.49 to require that scale tickets for
feed weight also show the name and address of a livestock producer. The
trade association said that swine contractors often use assumed names
for producers on the scale tickets that do not identify the producer by
name. Because the true name of a producer can be determined from the
swine contractor's business records, the trade association preferred
that we allow the use of common names. We currently allow the use of
assumed names, codes or numbers on scale tickets that reveal the
identity of sellers and buyers of livestock, provided that the formal
names can be accessed from the records of the issuer of the tickets.
Under these circumstances, we will therefore revise Sec. 201.49(d)(2)
in the final rule by adding the phrase ``. . . or a designation by
which they may be readily identified.'' For consistency, we will also
add this same phrase to the end of Sec. 201.49(c)(3) in the final
rule.
The trade association also stated that the requirement that scale
tickets contain the location of the scale (proposed Sec. 201.49(c)(5)
& (d)(4)) is imprecise. They suggested we specify that we meant the
address and physical location of a scale, especially if there is more
than one scale at that address. To address this concern, we will modify
Sec. 201.49(d)(4) in this final rule to require that scale tickets
show ``The city and state in which the scale is located, and, if a
facility has more than one scale on which feed is weighed, the identity
of the scale.'' For consistency, we will revise similarly proposed
Sec. 201.49(c)(5) in this final rule. We believe these revisions
sufficiently allow GIPSA personnel to locate the scale that produced a
specific scale ticket.
The trade association further stated that some automated pork
slaughtering plants do not have employees present to physically operate
the monorail scale. They stated that the slaughtering plant employee
who checks for the producer identification number tattooed on the
carcass is the closest to a scale operator that many automated pork
plants have. Section 201.49(a)(7) of the current regulations requires
that weighers be identified on scale tickets. This requirement pertains
to the weighing of all livestock when being weighed for purchase or
sale, etc., whether in automated pork plants or elsewhere. We agree
with this comment, however, and will add wording to Sec. 201.49(b)(7)
in this final rule exempting automated livestock slaughtering plants
from the requirement that scale tickets show the name, initials, or
identification number of a weigher.
In the proposed rule, GIPSA added the terms ``swine contractors''
and ``feed'' to Sec. 201.76 of the regulations. The trade association
said that it would not be feasible to reweigh picked-up feed, feeder
and weaner pigs and hog carcasses. They cited the impractical aspects
of reweighing feed and pigs picked up from a grower's farm as well as
bio-security concerns involved with hog carcasses in packing plants.
Our proposed amendment to Sec. 201.76 requires that swine contractors
reweigh only feed and hog carcasses upon the request of GIPSA
personnel, not feeder and weaner pigs from a grower's farm. Anytime the
weight of delivered or returned feed is determined using a scale or by
estimating, and the weight of feed is a factor in determining payment
or settlement, GIPSA periodically requires that feed be reweighed to
verify contract compliance and ensure proper payment to swine and
poultry growers. We have requested the reweighing of hog carcasses at
slaughter plants for many years. The carcasses are returned by rail to
the hot weight scale before entering the cooler, or the chain is
stopped and carcasses are transported back for placement on the hot
weight scale for reweighing. This process does not require that
carcasses be transported from the coolers to the hot weight scale. We
believe that this process therefore eliminates the bio-security
concerns raised by the trade association. Because the established
reweighing procedures allow our personnel to verify that the weighing
procedures used by swine contractors to weigh pigs and feed typically
report weights accurately, we are making no change to the final rule
based on the comment.
Further, in the preamble of our proposed rule, we also stated 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.''
(73 FR 7687) While this statement was correct, the statement caused
commenters to question whether we were changing the procedures for
collecting and weighing unused feed returned from poultry growers,
which is covered by Sec. 201.55 of the current regulations. In the
preamble of our proposed rule, we addressed general procedures for
weighing feed and for weighing feed being delivered to poultry growers.
The only proposed amendment that specifically concerned unused feed is
Sec. 201.108-1(d)(3) and pertains to the printing of scale tickets
when onboard weighing systems are used to pick up unused feed. Because
the comments did not take issue with the proposed amendments to Sec.
201.108-1(d)(3), however, we are making no changes in this final rule.
While there were several comments from poultry company
representatives regarding the handling of unused feed that is not
picked-up from growers, there are no regulations under the P&S Act that
cover the handling of unused feed that is left on a farm. Because this
issue is not addressed in our proposed amendments to the regulations,
we are making no change to the final rule.
In Sec. 201.108-1(a) of the final rule, we are also replacing the
term ``shall'' with the term ``must'' everywhere the term ``shall''
appears in to make the terminology in Sec. 201.108-1(b)(5) consistent
with plain language guidelines. We are also deleting from the final
rule the last sentence of proposed Sec. 201.108-1(c)(1)(v), which
reads ``Further, the hopper must be empty and balanced at zero prior to
each weighment.'' With a hopper scale, it is possible that as many as 8
different printed weights can exist for an individual grower;
therefore, there is no need for a zero balance between individual
hopper loads for one grower. This sentence was part of an original
draft of the regulatory text and inadvertently published as part of the
proposed rule when it should not have been. In addition, in the first
sentence of proposed Sec. 201.49(b), the phrase ``live or'' was
inadvertently deleted and will be added to the final rule for clarity.
In proposed Sec. 201.49(b), the word ``by'' in the phrase ``by
designation'' is being deleted from the final rule for clarity since it
redundant. Finally, in the third sentence of proposed Sec. 201.82, the
phrase ``the gross weight includes, but is not limited to'' is being
revised in the final rule for clarity to read ``the gross weight, which
may include, but is not limited to . . . .''
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.
[[Page 51663]]
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 Regulatory Flexibility Act (5 U.S.C. 601-612). An initial
regulatory flexibility analysis as described in 5 U.S.C. 605 of the
Regulatory Flexibility Act is not required or provided here. This final
rule directly affects 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 that this final rule does affect small
entities, it will not impose substantial new expenses or changes to
routine operations.
GIPSA believes that small swine production contract growers and
poultry growers will benefit directly from this final rule, which will
provide accurate and fair weighing of their inputs and outputs.
We have considered the effects of this final rule under the
Regulatory Flexibility Act and we believe that it will not have a
significant impact on a substantial number of small entities.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This final rule is not intended to have a
retroactive effect. This final rule will not pre-empt State or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with the amendments in this rule. The provisions of this final
rule will not require administrative procedures be exhausted prior to
judicial challenges.
Executive Order 13175
This final rule has been reviewed with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. This rule will not have substantial and direct effects on
Tribal governments and will not have significant Tribal implications.
Paperwork Reduction Act
This final rule does 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 are amending 9 CFR
part 201 to read as follows:
PART 201--[AMENDED]
0
1. The authority citation for part 201 continues to reads as follows:
Authority: 7 U.S.C. 181-229, 229c.
0
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 and provided to all parties to the
transaction. Unused and partially executed scale tickets must not be
left exposed or accessible to other parties and, except in feed mills,
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 live or 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, except for an automated weighing system where a weigher is
not stationed at the scale.
(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, or
a designation by which they may be readily identified;
(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 city and state in which the scale is located, and, if more
than one scale is used to obtain the weight of poultry within the same
facility, the identity 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, or a designation by which they may be readily identified;
[[Page 51664]]
(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 city and state in which the scale is located, and, if a
facility has more than one scale on which feed is weighed, the identity
of the scale;
(5) The zero balance; provided that when using a vehicle scale to
weigh feed for more than one producer or grower on the same multi-
compartment truck, the preceding producer's or grower's gross weight
can be used for the next producer's or grower's tare weight without
printing a zero balance, and repeated until the unit is full;
(6) The date and time zero balance was determined;
(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.
0
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.
0
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. The process of
obtaining the gross weight which may include, 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
process of obtaining the gross weight 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.''
0
5. Amend Sec. 201.108-1 to:
0
a. Revise the heading;
0
b. Revise the first sentence of the introductory text;
0
c. Revise paragraph (a)(1);
0
d. Remove paragraph (a)(7);
0
e. Add paragraphs (c)(1)(v) and (vi);
0
f. Add paragraph (d)(3);
0
g. 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) * * * (1) The scale must be maintained in zero balance at all
times. The empty scale must be balanced each day before weighing begins
and thereafter the scale must be balanced; and the zero balance, the
time and date the empty scale was balanced must be mechanically printed
on the scale ticket or other basic transaction record before any
poultry or feed is weighed. In addition, the zero balance of the scale
must 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 that the empty hopper scale is balanced
with proof of the zero balance 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.
(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 with proof of the zero balance 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 preceding 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. The procedure must be followed each time another
grower's feed is added to the load.
* * * * *
Marianne Plaus,
Acting Administrator, Grain Inspection, Packers and Stockyards
Administration.
[FR Doc. 2013-20320 Filed 8-20-13; 8:45 am]
BILLING CODE 3410-KD-P