[Federal Register: July 3, 2002 (Volume 67, Number 128)]
[Proposed Rules]
[Page 44571-44573]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jy02-21]
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[[Page 44571]]
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
7 CFR Part 800
[Docket Number FGIS 2002-003]
RIN 0580-AA76
Exceptions to Geographic Areas for Official Agencies Under the
USGSA
AGENCY: Grain Inspection, Packers and Stockyards Administration
(GIPSA), USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would revise regulations issued under the
United States Grain Standards Act (USGSA) to establish criteria to
allow more than one designated official agency to inspect or weigh
grain within a single geographic area. This proposal would enhance the
orderly marketing of grain by providing segments of the grain industry
with more cost-effective and responsive official grain inspection and
weighing services without undermining the integrity of the official
system.
DATES: Written comments must be submitted on or before September 3,
2002.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Written comments must be submitted to Tess
Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S,
Washington, DC 20250-3604, or faxed to (202) 690-2755. Comments may
also be sent by electronic mail: comments.gipsa@usda.gov. Please state
that your comments refer to Docket Number FGIS 2002-003. All comments
will be available for public inspection in the above office during
regular business hours (7 CFR 1.27 (b)).
FOR FURTHER INFORMATION CONTACT: Neil Porter, Director, Compliance
Division at 202-720-8262
SUPPLEMENTARY INFORMATION:
Executive Order 12866, Executive Order 12988, Regulatory Flexibility
Act, and the Paperwork Reduction Act
This proposed rule has been determined to be nonsignificant for the
purpose of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget.
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This action is not intended to have a retroactive
effect. The U.S. Grain Standards Act (USGSA) (7 U.S.C. 71 et seq.)
provides in Sec. 87g that no subdivision may require or impose any
requirements or restrictions concerning the inspection, weighing, or
description of grain under the USGSA. Otherwise, this proposed rule
would not preempt any State or local laws, regulations, or policies
unless they present irreconcilable conflict with this proposed rule.
There are no administrative procedures that must be exhausted prior to
any judicial challenge to the provisions of this proposed rule.
Also, pursuant to the requirements set forth in the Regulatory
Flexibility Act, the Administrator of Grain Inspection, Packers and
Stockyards Administration (GIPSA) has determined that this proposed
rule will not have a significant economic impact on a substantial
number of small entities as defined pursuant to the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). GIPSA conducted a 6-year
voluntary pilot program. The pilot program permitted more than one
official agency to operate in the same geographic area. There are 58
official agencies (15 States and 43 private agencies) designated under
the USGSA. Thirty-six agencies (7 States and 29 private agencies) or 61
percent participated in the pilot program. All 43 private agencies are
classified as business services, and all are ``small business
entities'' under the guidelines of the Small Business Administration
(SBA). The SBA does not classify States as small or large business
entities. Volumes were down for state agencies. Of the 43 private
agencies, 29 or 67 percent participated in the pilot program. Fourteen
of the 29 saw an increase in service requests and 15 saw a decrease in
service requests due to the greater flexibility provided by the pilot
program. All increases and decreases in service requests represented
inspections of railcars or barges. A 5-year average of official railcar
and barge inspections is about 850,000 railcars per year, and about
28,000 barges per year. Less than 2 percent of the total number of
railcars and less than 3 percent of the total number of barges were
inspected under the pilot program by designated official agencies.
The customers (grain elevators) of the official agencies that
requested service under the pilot program represented a mix of both
large and small entities as defined for the grain industry by the SBA.
GIPSA expects that this would remain the case. Approximately 70 percent
of the 128 grain elevators that participated in the pilot program were
small entities under the SBA guidelines, and accounted for 82 percent
of the service volume for railcars. The 128 elevators that participated
in the pilot program represent less than two percent of the estimated
9,695 off-farm storage facilities in the United States that could
receive official inspection services.
Fifty-six percent of the volume of railcar inspection services
during the pilot program was performed at grain elevators that had not
used official services for more than a year. GIPSA believes that the
pilot program has enhanced the orderly marketing of grain by providing
grain elevators with improved services without undermining the
integrity of the USGSA and the official system. At the same time, there
has been no significant economic impact on small entity official
agencies or grain elevators.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection and recordkeeping requirements
in Part 800 have been previously approved by the Office of Management
and Budget under control number 0580-0013. There would be no additional
reporting or recordkeeping requirements imposed by this action. The
request to GIPSA for approval can be done by telephone. GIPSA has not
identified any other Federal rules which may duplicate, overlap, or
conflict with this proposed rule.
Background
In 1976, the USGSA specified exclusive geographic boundaries for
each designated entity performing official inspections. In later years,
some grain firms reported delays in getting service due to the distance
from the inspection laboratories serving them.
[[Page 44572]]
Others had difficulty getting service during harvest or other peak
demand periods. In April 1993, the General Accounting Office released a
study, entitled ``Grain Inspection Industry Views on the Decline in
Official Inspections and Inspection Costs,'' which questioned
maintaining exclusivity of boundaries.
On November 1, 1995, GIPSA, under the authority of the 1993
Amendments to the USGSA, initiated a pilot program to study the effect
of permitting more than one designated agency to inspect or weigh grain
in a single geographic area. GIPSA concluded, based on information
gathered from the pilot program, that less restrictive geographic
service area requirements on designated official agencies would improve
the quality of service provided to the American grain industry and
facilitate the marketing of grain without undermining the integrity of
the USGSA and the official system. Legislative authority was requested
to permit more than one designated official agency to provide official
services within a single geographic area.
Congress amended the USGSA in 2000 to give the Department
discretion, under certain circumstances, to allow more than one
designated official agency to provide official inspection services
within a single geographic area. GIPSA is now proposing to implement
this authority by revising the regulations under the USGSA. This
proposed rule would allow, under certain circumstances, more than one
designated official agency to provide official inspection services
within a single geographic area. This proposal would provide segments
of the grain industry with more cost-effective and responsive official
grain inspection and weighing services.
Proposed Action
We propose to revise the following: 7 CFR 800.81, 800.99, 800.116,
800.117, 800.118, 800.185, and 800.196 to implement changes in the
USGSA. The proposed changes would allow sampling for official sample-
lots, and weighing of sacked grain outside the geographical boundaries
assigned to the designated official agency. Program criteria for nonuse
of service, timely service, and barge probing would be provided.
Requests for original services would allow qualified applicants to use
another agency to provide service. Official personnel may operate
outside of the area of responsibility assigned to them. The proposed
action would allow exceptions to the designated areas of
responsibility. The sections regarding certification would be combined
for a more logical sequence.
List of Subjects in 7 CFR Part 800
Administrative practice and procedure, Grain.
For the reasons set out in the preamble, 7 CFR part 800 is proposed
to be amended as follows:
PART 800--GENERAL REGULATIONS
1. The authority citation for Part 800 continues to read as
follows:
Authority: Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C.
71 et seq.).
2. Section 800.81 is amended by revising paragraphs (a)(1) and (d)
and the information collection parenthetical to read as follows:
Sec. 800.81 Sample requirements; general.
(a) Samples for official sample-lot inspection service. (1)
Original official sample-lot inspection service. For original sample-
lot inspection purposes, an official sample shall be obtained by
official personnel; representative of the grain in the lot; and
protected from manipulation, substitution, and improper or careless
handling.
* * * * *
(d) Restriction on sampling. Official personnel shall not perform
an original inspection or a reinspection service on an official sample
or a warehouseman's sample unless the grain from which the sample was
obtained was located within the area of responsibility assigned to the
agency or field office at the time of sampling, except as provided for
in Sec. 800.117, or on a case-by-case basis as determined by the
Administrator.
* * * * *
(Approved by the Office of Management and Budget under control
number 0580-0013)
3. Section 800.99 is amended by revising paragraph (d) to read as
follows:
Sec. 800.99 Checkweighing sacked grain.
* * * * *
(d) Restriction on weighing. No agency shall weigh any lot of
sacked grain unless at the time of obtaining the official weight sample
the grain from which the sample was obtained was located within the
area of responsibility assigned to the agency, except as otherwise
provided for in Sec. 800.117, or on a case-by-case basis as determined
by the Administrator.
* * * * *
4. Section 800.116 is revised to read as follows:
Sec. 800.116 How to request original services.
(a) General. Except as otherwise provided for in Sec. 800.117,
requests for original services shall be filed with an agency or field
office authorized to operate in the area in which the original service
is to be performed. All requests shall include the information
specified in Sec. 800.46. Verbal requests shall be confirmed in writing
when requested by official personnel, as specified in Sec. 800.46.
Copies of request forms may be obtained from the agency or field office
upon request. If the information specified by Sec. 800.46 is not
available at the time the request is filed, official personnel may, at
their discretion, withhold service pending receipt of the required
information. An official certificate shall not be issued unless the
information as required by Sec. 800.46 has been submitted, or official
personnel determine that sufficient information has been made available
so as to perform the requested service. A record that sufficient
information was made available must be included in the record of the
official service.
(b) Request requirements. Except as provided for in Sec. 800.117,
requests for original services, other than submitted sample
inspections, must be made to the agency or field office responsible for
the area in which the service will be provided. Requests for submitted
sample inspections may be made with any agency, or any field office
that provides original inspection service. Requests for inspection or
Class X weighing of grain during loading, unloading, or handling must
be received in advance of loading so official personnel can be present.
All requests will be considered filed when official personnel receive
the request. A record shall be maintained for all requests. All
requests for service that is to be performed outside normal business
hours must be received by 2 p.m. the preceding day.
(Approved by Office of Management and Budget under control number
0580-0013.)
5. Section 800.117 is revised to read as follows:
Sec. 800.117 Who shall perform original services.
(a) General. Original services shall be performed by the agency or
field office assigned the area in which the service will be provided,
except as provided in paragraph (b) of this section.
(b) Exceptions for official agencies to provide service. (1) Timely
service. If the assigned official agency cannot provide service within
6 hours of a request, the service may be provided by another official
agency upon approval from the Service.
(2) Nonuse of service. If the assigned official agency has not
provided official services to an applicant for 90 consecutive days, due
to reasons other
[[Page 44573]]
than seasonal shipping fluctuations, service may be provided by another
official agency upon approval from the Service.
(3) Barge probe service. Any official agency may provide probe
sampling and inspection service for barge-lots of grain with no
restrictions due to geographical locations.
(c) Interim service at other than export port locations. If the
assigned official agency is not available on a regular basis to provide
original services, and no official agency within a reasonable proximity
is willing to provide such services on an interim basis, the services
shall be provided by authorized employees of the Secretary, or other
persons licensed by the Secretary, until the services can be provided
on a regular basis by an official agency, as provided in Sec. 800.196.
6. Section 800.118 is revised to read as follows:
Sec. 800.118 Certification.
Official certificates shall be issued according to Sec. 800.160.
Upon request, a combination inspection and Class X weighing certificate
may be issued when both services are performed in a reasonably
continuous operation at the same location by the same agency or field
office. An official certificate shall not be issued unless the
information as required by Sec. 800.46 has been submitted, or official
personnel determine that sufficient information has been made available
so as to perform the requested service. A record that sufficient
information was made available must be included in the record of the
official service.
(Approved by Office of Management and Budget under control number
0580-0013.)
7. Section 800.185 is amended by revising paragraph (d) and the
informational parenthetical to read as follows:
Sec. 800.185 Duties of official personnel and warehouse samplers.
* * * * *
(d) Scope of operations. Official personnel and warehouse samplers
shall operate only within the scope of their license or authorization
and except as otherwise provided in Sec. 800.117, operate only within
the area of responsibility assigned to the official agency, field
office, or contractor which employs them. Official personnel and
warehouse samplers may perform official inspection or weighing services
in a different area of responsibility with the specific consent of the
Service.
* * * * *
(Approved by the Office of Management and Budget under control
number 0580-0013)
8. Section 800.196 is amended by revising paragraph (f)(1) and the
information collection parenthetical to read as follows:
Sec. 800.196 Designations.
* * * * *
(f) Area of responsibility. (1) General. Each agency shall be
assigned an area of responsibility by the Service. Each area shall be
identified by geographical boundaries and, in the case of a State or
local government, shall not exceed the jurisdictional boundaries of the
State or the local government, unless otherwise approved by the
Service. The area of responsibility may not include any export
elevators at export port locations or any portion of an area of
responsibility assigned to another agency that is performing the same
functions, except as otherwise provided in Sec. 800.117. A designated
agency may perform official services at locations outside its assigned
area of responsibility only after obtaining approval from the Service,
or in accordance with provisions set forth in Sec. 800.117.
* * * * *
(Approved by the Office of Management and Budget under control
number 0580-0013)
Dated: June 27, 2002.
Donna Reifschneider,
Administrator.
[FR Doc. 02-16639 Filed 7-2-02; 8:45 am]
BILLING CODE 3410-EN-P
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