[Federal Register Volume 76, Number 13 (Thursday, January 20, 2011)]
[Rules and Regulations]
[Pages 3485-3487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1093]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 /
Rules and Regulations
[[Page 3485]]
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
9 CFR Part 201
RIN 0580-AB10
Required Scale Tests
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 one section
of the regulations under the Packers and Stockyards Act of 1921, as
amended and supplemented (P&S Act), regarding the requirement that
stockyard owners, market agencies, dealers, packers, and live poultry
dealers that weigh livestock, live poultry, or feed, have their scales
tested at least twice each calendar year at intervals of approximately
6 months. This final rule requires that regulated entities complete the
first of the two scale tests between January 1 and June 30 of the
calendar year. The remaining scale test must be completed between July
1 and December 31 of the calendar year. In addition, a minimum period
of 120 days will now be required between these two tests. GIPSA is also
including in this final rule an exception for the testing of scales
with limited seasonal use. More frequent testing, however, will still
be required in cases where a scale does not maintain accuracy between
tests. Finally, we are amending that same section of the regulations to
add ``swine contractors'' to the list of regulated entities to which
the section applies. GIPSA believes that this final rule will
facilitate GIPSA's ability to regulate the business operations of
stockyard owners, swine contractors, market agencies, dealers, packers,
and live poultry dealers through the effective enforcement of the P&S
Act.
DATES: This final rule becomes effective on February 22, 2011.
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)
administers and enforces the P&S Act (7 U.S.C. 181 et seq.). Under
authority delegated to GIPSA by the Secretary of Agriculture in section
407(a) of the P&S Act (7 U.S.C. 228), we are authorized to issue
regulations necessary to carry out the provisions of the P&S Act.
Section 201.72 of the current regulations under the P&S Act (9 CFR
201.72) requires that each stockyard owner, market agency, dealer,
packer, or live poultry dealer who weighs livestock, live poultry, or
feed for purposes of purchase, sale, acquisition, payment, or
settlement, or who weighs livestock carcasses for the purpose of
purchase on a carcass weight basis, or who furnishes scales for such
purposes, have such scales tested at least twice during each calendar
year at intervals of approximately 6 months. Regulated entities must
then report the results of the scale tests to the GIPSA Packers and
Stockyards Program (P&SP) regional office for the geographical region
where the scale is located. Section 201.71 of the regulations (9 CFR
201.71) requires that scales must meet all applicable requirements of
the 2009 edition of the National Institute of Standards and Technology
Handbook 44, ``Specifications, Tolerances, and Other Technical
Requirements for Weighing and Measuring Devices.''
Under current procedures, the P&SP regional office, which has
enforcement responsibility for the geographic location where a specific
scale is located, notifies the regulated entity that its scale is due
for testing in the event that the regulated entity has not filed a
scale test report within the required 6-month timeframe. Thereafter,
GIPSA sends the regulated entity a follow-up letter, or Notice of
Default, if GIPSA does not receive the scale test report within 30 days
from the date that the scale test report was due. Finally, if the
regulated entity fails to provide GIPSA with the required test report,
GIPSA issues to the regulated entity a Notice of Violation, used to
inform the regulated entity that its scale test reports were not
received within the required timeframe under P&S Act regulations. GIPSA
also notifies the regulated entity that the scale may not be used
further until the violation is corrected.
Because the regulations now state that scale tests must be
performed at ``approximately'' 6-month intervals, GIPSA has found that
it is difficult to determine when a regulated entity may be in
violation of the P&S Act for failing to submit a timely scale test
report. As a result, GIPSA is amending Sec. 201.72(a) (9 CFR
201.72(a)) of the P&SA regulations to delete the term ``approximately''
in order to clearly state that regulated entities must submit a scale
test report to GIPSA every 6 months in a calendar year between the
periods January 1 and June 30, and July 1 and December 31,
respectively. GIPSA will continue to require more frequent testing of
specific scales in cases where the scales do not maintain accuracy
between tests.
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
will dispel any 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.
GIPSA published a Notice of Proposed Rulemaking in the Federal
Register on August 24, 2009, (74 FR 162) seeking public comment on the
proposed changes to the regulations. The comment period on the proposed
rule closed October 23, 2009.
[[Page 3486]]
Discussion of Comments and Final Action
GIPSA received 42 comments from livestock auction markets,
livestock producers, livestock ranchers, related industry associations,
State and county agencies, feed operations, a poultry grower, and the
University of California's Cooperative Extension. The 42 comments
received referenced our proposal to require that regulated entities
have scales tested twice within each calendar year. Because no comments
were received regarding our proposal to add swine contractors to the
list of regulated entities, swine contractors will be added to the list
of regulated entities in the final rule as proposed.
Of the 42 comments received, two commenters supported the rule. One
commenter recommended that we implement the rule as written; the other
suggested that scales be tested more frequently. Six commenters
submitted general statements that did not specifically address the
timing of scale tests presented in our proposal, but instead objected
to increased government regulations. Thirty-four commenters (including
14 from State and local government entities) questioned the need for
more than one scale test per year, especially for scales that are used
seasonally or only when livestock is being shipped during a certain
time period of the year. Many commenters objected to our proposal
stating that it would double their costs of compliance with the P&S
Act, would place an unjust regulatory burden on small businesses, be
costly to State and local governments charged with certifying the
scales, and would make it difficult for regulated entities to obtain
the services of a limited number of accredited scale testers. For
example, one commenter from the Oregon Department of Agriculture stated
that there are nearly 54,000 scales within the State's jurisdiction,
and the State lacks the money to double the workload of its nine scale
testers without a sharp increase in funding. Another commenter added
that States would have difficulty scheduling additional inspectors even
if the cost of the inspections was paid for by the regulated entities.
Currently, the regulations require that scale tests be completed at
least twice per calendar year. This is unchanged in the proposed
regulations. Because we did not propose to increase the number of scale
tests from the two tests required in the current regulations, GIPSA
believes that there would be no increased burden on individuals or
agencies responsible for scale testing as a result of this final rule.
Twenty of the 40 commenters objecting to our proposed rule,
however, suggested that GIPSA consider adding an exception to the
current regulations that would allow scales used seasonally to be
tested once per year. While GIPSA maintains that its initial proposal
to delete the term ``approximately'' in order to clearly state that
regulated entities must be required to complete a scale test twice in a
calendar year was appropriate in order to clarify the regulations, we
agree with the commenters' suggestion and will include in the final
rule an exception for the testing of scales with limited seasonal use.
A scale used from either January 1 through June 30, or July 1 through
December 31, but not during both periods, will be considered by GIPSA
to be a seasonal scale. GIPSA will require that these scales be tested
once during each calendar year, within 6 months prior to use.
Finally, GIPSA believes that many comments may have resulted from
commenters believing that GIPSA was proposing regulations affecting
everyone who owns scales, which is not the case. GIPSA's intent is that
only regulated entities be affected by the proposed rule. Accordingly,
GIPSA is replacing in the final rule all references to ``scale
owners,'' with references to ``regulated entities'' to dispel any
confusion that may have arisen from our proposal.
Based on the foregoing discussion, we will therefore modify the
proposed 201.72(a) (9 CFR 201.72(a)) in the final rule to (1) provide
an exception to the testing requirements for limited seasonal scales if
they are used only once per calendar year and tested within 6 months
prior to use, and (2) delete from the second sentence the phrase ``As a
scale owner, * * *.'' since the phrase, GIPSA believes, led many of the
commenters to mistakenly believe that the regulation applies to non-
regulated entities.
Executive Order 12866 and Regulatory Flexibility Act
This final rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget (OMB).
Also, pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), GIPSA has considered the economic impact of this
final rule 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.\1\ The
affected entities and size thresholds under this final rule are defined
by the SBA as small businesses as follows: NAICS code 12111, cattle
producers; NAICS code 112210, hog producers and swine contractors; and
NAICS codes 112320 and 112330, broiler and turkey producers if their
sales are less than $750,000 per year, respectively. Live poultry
dealers, NACIS code 31165; and hog and cattle slaughterers, NACIS code
311611, respectively, are considered as small businesses if they have
fewer than 500 employees. Stockyards are found under NACIS code 424520,
``Livestock Merchant Wholesalers,'' and are considered to be small
businesses if they have fewer than 100 employees.
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\1\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
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According to the 2008 Annual Report, Packers and Stockyards
Program,\2\ published on March 1, 2009, there were 339 bonded livestock
slaughter firms, 126 live poultry dealers, 4,685 bonded dealers, 1,326
bonded market agencies, and 1,392 posted stockyards operating subject
to the P&S Act. While many of these entities are considered as small
businesses by the SBA, we believe that this final rule will not affect
those entities significantly since all of the entities, as regulated
entities, are already required to report scale tests results to GIPSA
twice in a calendar year at 6-month intervals. Again, we are amending
the regulations to clarify the time interval between required scale
tests in order to enhance GIPSA's ability to enforce the P&S Act.
Furthermore, this final rule reduces the number of tests required for
scales operated on a seasonal basis by regulated entities. And while
this final rule also affects swine contractors, most such entities do
not meet the definition for small entities under the SBA. Accordingly,
we have considered the effects of this final rule under the RFA and
believe that it will not have a significant impact on a substantial
number of small entities.
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\2\ See: http://archive.gipsa.usda.gov/pubs/2008_psp_annual_report.pdf.
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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 rule would 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
[[Page 3487]]
exhausted prior to any judicial challenge to the provisions of this
rule.
Paperwork Reduction Act
In accordance with the Office of Management and Budget regulations
(5 CFR part 1320) that implement the Paperwork Reduction Act of 1995
(44 U.S.C. chapter 35), the information collection and record keeping
requirements that are covered by this final rule were approved under
OMB number 0580-0015 on January 30, 2009, and expire on January 31,
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 9 CFR Part 201
Reporting and recordkeeping requirements, Measurement standards,
Trade practices.
For the reasons set forth in the preamble, 9 CFR part 201 is
amended as follows:
PART 201--REGULATIONS UNDER THE PACKERS AND STOCKYARDS ACT
0
1. The authority citation for part 201 would continue to read as
follows:
Authority: 7 U.S.C. 181-229c.
0
2. Section 201.72 is revised to read as follows:
Sec. 201.72 Scales; testing of.
(a) As a stockyard owner, swine contractor, market agency, dealer,
packer, or live poultry dealer who weighs livestock, live poultry, or
feed for purposes of purchase, sale, acquisition, payment, or
settlement of livestock or live poultry, or who weighs livestock
carcasses for the purpose of purchase on a carcass weight basis, or who
furnishes scales for such purposes, you must have your scales tested by
competent persons at least twice during each calendar year. You must
complete the first of the two scale tests between January 1 and June 30
of the calendar year. The remaining scale test must be completed
between July 1 and December 31 of the calendar year. You must have a
minimum period of 120 days between these two tests. More frequent
testing will be required in cases where the scale does not maintain
accuracy between tests. Except that if scales are used on a limited
seasonal basis (during either the 6-month period of January through
June or July through December, but not both) for purposes of purchase,
sale, acquisition, payment or settlement, the stockyard owner, swine
contractor, market agency, dealer, live poultry dealer, or packer
making use of such scales, must complete one scale test within 6-months
prior to use.
(b) As a stockyard owner, swine contractor, market agency, dealer,
packer, or live poultry dealer who weighs livestock, livestock
carcasses, live poultry, or feed for purposes of purchase, sale,
acquisition, payment, or settlement of livestock, livestock carcasses
or live poultry, you must furnish reports of tests and inspections on
forms approved by the Administrator. You must retain one copy of the
test and inspection report for yourself, and file a second copy with
the P&SP regional office for the geographical region where the scale is
located.
(c) When scales used for weighing livestock, livestock carcasses,
live poultry, or feed are tested and inspected by a State agency,
municipality, or other governmental subdivision, the forms used by such
agency for reporting such scale tests and inspections may be accepted
in lieu of the forms approved for this same purpose by the
Administrator if the forms contain substantially the same information.
J. Dudley Butler,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 2011-1093 Filed 1-19-11; 8:45 am]
BILLING CODE 3410-KD-P