Official/Unofficial Weighing Service

DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Part 800

RIN 0580-AA55

Official/Unofficial Weighing Service

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

ACTION: Proposed rule.

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SUMMARY: The Grain Inspection, Packers and Stockyards Administration

(GIPSA) proposes to amend portions of the General Regulations under the

United States Grain Standards Act, as amended (USGSA), to allow

official agencies to provide both official and unofficial weighing

within their assigned area of responsibility, but not on the same mode

of conveyance at the same facility. This will provide agencies with

more flexibility in providing the weighing services needed by the grain

industry. Currently, agencies designated by GIPSA to provide official

weighing services cannot provide similar unofficial services.

DATES: Comments must be submitted on or before May 29, 1998.

ADDRESSES: All comments concerning this proposed regulation should be

addressed to George Wollam, GIPSA-FGIS, USDA, STOP 3649, 1400

Independence Avenue, SW, Washington, D.C. 20250, or FAX (202) 720-4628.

All comments received will be made available for public inspection

during business hours in Room 0623-South Building, 1400 Independence

Avenue, SW, Washington, D.C. 20250 (7 CFR 1.27(b)).

FOR FURTHER INFORMATION CONTACT: George Wollam (202) 720-0292, at the

above address.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be not significant for the purpose

of Executive Order 12866 and, therefore, has not been reviewed by OMB.

Executive Order 12988

This amended rule has been reviewed under Executive Order 12988,

Civil Justice Reform. This action is not intended to have a retroactive

effect. The USGSA provides in section 87g that no State or subdivision

may require or impose any requirements or restrictions concerning the

inspection, weighing, or description of grain under the Act. Otherwise,

this rule will not preempt any State or local laws, regulations, or

policies unless they present irreconcilable conflict with this rule.

There are no administrative procedures which must be exhausted prior to

any judicial challenge to the provisions of this rule.

Effect on Small Entities

James R. Baker, Administrator, GIPSA, has determined that this

proposal 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.). This proposed rule would allow official

agencies to provide both official and unofficial weighing services

within their assigned area of responsibility, but not on the same mode

of conveyance at the same facility. Currently, official agencies

designated to provide official weighing services cannot provide similar

unofficial services. There are presently 65 agencies designated by

GIPSA, 57 private entities and 8 State agencies. Of the 65 official

agencies, 14 are designated to perform official weighing services. It

is estimated that 59 agencies perform official inspection and

unofficial weighing while 8 have been allowed by GIPSA to perform both

official weighing and unofficial weighing in addition to providing

official inspection services. Most of these agencies would be

considered small entities under Small Business Administration criteria.

Agencies designated to provide official services would be afforded more

flexibility in delivering the weighing services needed by the domestic

grain market. Existing official agencies not designated to perform

official weighing services would continue to provide unofficial

weighing services. While the extent to which official agencies will

choose to provide unofficial services is difficult to quantify and may

depend upon many variables, it is believed that the proposed rule would

have a beneficial effect on these agencies and the grain industry as a

whole.

Information Collection and Record keeping Requirements

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C.

Chapter 35), the information collection and record keeping requirements

in Part 800 have been approved previously by OMB and assigned OMB No.

0580-0013.

Background

A direct final rule (60 FR 39242) was published on August 2, 1995,

which notified the public of amendments to those regulations that

prohibit official agencies from providing official weighing service

when they provide similar unofficial service. GIPSA had planned to

allow agencies to do both official and unofficial weighing within their

assigned areas, but not at the same facility. Two written adverse

comments in response to the direct final rule were received. One

comment noted that GIPSA did not allow official agencies designated to

perform both official weighing services and unofficial weighing because

of possible confusion between the two; that the proposed rule was an

attempt by a Federal agency to be in direct competition with the

private sector; and questioned GIPSA's belief that there was a lack of

available supervising agencies in the weighing area. The other comment

also disagreed that there was a decrease in the availability of

unofficial weighing supervision services and expressed concern

regarding intrusion by a Federal agency into the private sector. The

concerns raised by these comments are discussed in the following

paragraphs.

The direct final rule was inadvertently not withdrawn prior to its

effective date. A final rule was published (60 FR 65236) on December

19, 1995, which reinstated the regulations that were in effect prior to

the effective date of the direct final rule. Therefore, GIPSA is now

requesting public comment on allowing agencies and grain elevators to

perform both official and unofficial weighing services, except at the

same facility.

Designated agencies are agencies granted authority under the USGSA

to provide official inspection service, or

[[Page 15105]]

Class X or Class Y weighing services or both, at locations other than

export port locations. Most (88 percent) of these agencies are

designated for inspection services only. The reason is that before

1976, most grain inspection agencies were already providing weighing as

an additional service to grain inspection. These agencies were

affiliated with and supervised by the then existing weighing and

inspection bureaus under the direction of the Association of American

Railroads, local grain exchanges, boards of trade, and various State

programs. After the 1976 amendment to the USGSA, weighing performed by

the grain inspection agencies became unofficial weighing. Most agencies

continued their unofficial weighing and applied for inspection

designations only.

However, since 1976, many inspection and weighing bureaus, boards

of trade, and the Association of American Railroads have ceased

providing supervision of the unofficial weighing services. Unofficial

weighing services are currently still available from a variety of

industry sources, including 51 of the agencies already designated by

GIPSA for inspection services only.

However, we believe that there is a need for more access to Class X

or Class Y weighing services that are provided for under the authority

of the USGSA. To that end, since 1991, after receiving official

weighing requests in several areas, GIPSA's Administrator (under

Sec. 800.2 of the regulations) has allowed 8 designated official

agencies to provide both official and unofficial weighing. If allowed

to provide both types of service, many more agencies that are now

designated for official inspection only could also provide official

weighing service. Further, designated agencies can generally provide

Class X and Class Y weighing at a lower cost than GIPSA field offices

due to their proximity to the grain facilities.

Initially, GIPSA did not allow agencies to provide both types of

service because confusion might result on the part of the grain

industry and the official agencies themselves as to which type of

service an official agency was providing. However, in reevaluating this

policy as it applies to weighing and evaluating the case-by-case

situations where it has been allowed since 1991, GIPSA has found that

such confusion has not been a factor, especially when GIPSA has

separated official and unofficial weighing by not allowing agencies to

provide both types of service at the same facility. The requirements

for performing official weighing are easily distinguishable from

unofficial weighing. Official weighing requires that: (1) Scales be

tested by GIPSA; (2) designated agencies follow GIPSA-prescribed

procedures to maintain proper operation and accurate weighing; and (3)

designated agencies issue GIPSA-approved official grain weight

certificates certifying the accuracy of weighing. Since official and

unofficial weighing services have distinct requirements, designated

agencies should have little problem in maintaining the separation of

official and unofficial weighing, as long as it is not on the same mode

of conveyance. In addition, GIPSA oversight conducted by the field

offices and appropriate headquarters units should be able to detect any

problems arising from the change.

Accordingly, GIPSA disagrees with the comments received as a result

of the direct final rule. GIPSA proposes to change the weighing

provisions of the regulations. This proposed rule does not change the

requirements for inspection services. Following the close of the

comment period, the comments will be considered and a final action

addressing the comments will be published in the Federal Register.

List of Subjects in 7 CFR Part 800

Administrative practice and procedure, Conflict of interests,

Intergovernmental relations, Penalties, Reporting and recordkeeping

requirements.

Proposed Action

For reasons set forth in the preamble, 7 CFR Part 800 is proposed

to be amended as follows:

PART 800--GENERAL REGULATIONS

1. The authority citation for Part 800 continues to read as

follows:

Authority: Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C.

71 et seq.)

2. Section 800.76(a) is revised to read as follows:

Sec. 800.76 Prohibited services; restricted services.

(a) Prohibited services. No agency shall perform any inspection

function or provide any inspection service on the basis of unofficial

standards, procedures, factors, or criteria if the agency is designated

or authorized to perform the service or provide the service on an

official basis under the Act. No agency shall perform official and

unofficial weighing on the same mode of conveyance at the same

facility.

* * * * *

3. Section 800.186(c)(3) introductory text is revised to read as

follows:

Sec. 800.186 Standards of conduct.

* * * * *

(c) * * *

(3) Except as provided in Sec. 800.76(a), engage in any outside

(unofficial) work or activity that:

* * * * *

4. Section 800.196(g)(6)(ii) is revised to read as follows:

Sec. 800.196 Designations.

* * * * *

(g) * * *

(6) * * *

(ii) Unofficial activities. Except as provided in Sec. 800.76(a),

the agency or personnel employed by the agency shall not perform any

unofficial service that is the same as the official services covered by

the designation.

* * * * *

Dated: March 20, 1998.

James R. Baker,

Administrator.

[FR Doc. 98-7940 Filed 3-27-98; 8:45 am]

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