Weighing, Feed, and Swine Contractors, 51658-51664 [2013-20320]

Agencies

• DEPARTMENT OF AGRICULTURE
• Grain Inspection, Packers and Stockyards Administration

[Federal Register Volume 78, Number 162 (Wednesday, August 21, 2013)]
[Rules and Regulations]
[Pages 51658-51664]
From the Federal Register Online via the Government Printing 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, s.brett.offutt@usda.gov.

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