Required Scale Tests, 3485-3487 [2011-1093]

Download as PDF 3485 Rules and Regulations Federal Register Vol. 76, No. 13 Thursday, January 20, 2011 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration 9 CFR Part 201 RIN 0580–AB10 Required Scale Tests Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Final rule. AGENCY: 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 jlentini on DSKJ8SOYB1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:17 Jan 19, 2011 Jkt 223001 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, s.brett.offutt@usda.gov. 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 6month 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 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 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 § 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. E:\FR\FM\20JAR1.SGM 20JAR1 3486 Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations jlentini on DSKJ8SOYB1PROD with RULES 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 VerDate Mar<15>2010 16:17 Jan 19, 2011 Jkt 223001 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 nonregulated 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. PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 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. 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. 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 1 See: https://www.sba.gov/idc/groups/public/ documents/sba_homepage/serv_sstd_tablepdf.pdf. 2 See: https://archive.gipsa.usda.gov/pubs/ 2008_psp_annual_report.pdf. E:\FR\FM\20JAR1.SGM 20JAR1 Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations 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 J. Dudley Butler, Administrator, Grain Inspection, Packers and Stockyards Administration. 1. The authority citation for part 201 would continue to read as follows: ■ Authority: 7 U.S.C. 181–229c. [FR Doc. 2011–1093 Filed 1–19–11; 8:45 am] 2. Section 201.72 is revised to read as follows: ■ jlentini on DSKJ8SOYB1PROD with RULES § 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 VerDate Mar<15>2010 16:17 Jan 19, 2011 Jkt 223001 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. BILLING CODE 3410–KD–P NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 707 RIN 3133–AD72 Truth in Savings National Credit Union Administration (NCUA). ACTION: Final rule. AGENCY: On July 22, 2009, NCUA published a final rule amending NCUA’s Truth in Savings regulation and the accompanying official staff interpretations. The final rule addressed credit unions’ disclosure practices related to overdraft services, including balances disclosed to members through automated systems. This final rule amends NCUA’s Truth in Savings rule and official staff interpretations to address the application of the July 2009 final rule to retail sweep programs and the terminology for overdraft fee disclosures and to make amendments SUMMARY: PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 3487 that conform to the Federal Reserve Board’s (Federal Reserve) final Regulation E amendments addressing overdraft services, adopted in November 2009. This rule also makes final the minor technical corrections to sample form B–12 that were part of the interim final rule. DATES: The effective date of September 7, 2010 and October 1, 2010 for § 707.11(a)(1)(i) is confirmed as final without change. FOR FURTHER INFORMATION CONTACT: Justin M. Anderson, Staff Attorney, Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314–3428, or telephone: (703) 518– 6540. SUPPLEMENTARY INFORMATION: I. Background The Truth in Savings Act (TISA) requires NCUA to promulgate regulations substantially similar to those promulgated by the Federal Reserve within 90 days of the effective date of the Federal Reserve’s rules. 12 U.S.C. 4311(b). In doing so, NCUA is to take into account the unique nature of credit unions and the limitations under which they pay dividends on member accounts. Id. On January 29, 2009, the Federal Reserve published a final rule amending Regulation DD, its TISA rule, and the official staff commentary to address depository institutions’ disclosure practices related to overdraft services, including balances disclosed to consumers through automated systems. 74 FR 5584 (January 29, 2009). NCUA issued a similar final rule on July 22, 2009. 74 FR 36102 (July 22, 2009). Both rules had an effective date of January 1, 2010. In November 2009, the Federal Reserve adopted a final rule amending Regulation E, which implements the Electronic Fund Transfer Act. This final rule limits a financial institution’s ability to assess fees for paying ATM and one-time debit card transactions pursuant to the institution’s discretionary overdraft service without the consumer’s affirmative consent to such payment. Since publication of the Federal Reserve’s January 2009 final rule, institutions and others have requested clarification of particular aspects of the rule and further guidance regarding compliance with the rule. In addition, the Federal Reserve believed conforming amendments to Regulation DD were necessary in light of certain provisions subsequently adopted in the Regulation E final rule. Accordingly, in E:\FR\FM\20JAR1.SGM 20JAR1

Agencies

[Federal Register Volume 76, Number 13 (Thursday, January 20, 2011)]
[Rules and Regulations]
[Pages 3485-3487]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1093]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


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.

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

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, s.brett.offutt@usda.gov.

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.
---------------------------------------------------------------------------

    \1\ See: https://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

    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: https://archive.gipsa.usda.gov/pubs/2008_psp_annual_report.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 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
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