Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
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###### Department of Agriculture

###### Grain Inspection, Packers and Stockyards Administration

          - 7 CFR Part 802
          - [Docket # GIPSA-2010-FGIS-0012]
          - RIN 0580-AB19

# AGENCY:

Grain Inspection, Packers and Stockyards Administration, USDA.

# ACTION:

Direct final rule.

# SUMMARY:

The Grain Inspection, Packers and Stockyards Administration (GIPSA) Federal Grain Inspection Service (FGIS) is amending the regulations issued under the United States Grain Standards Act (USGSA), as amended, to incorporate by reference the applicable requirements of the 2008 edition of the National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” (NIST Handbook 44, issued October 2007).

# DATES:

                        This rule is effective March 8, 2011 without further action, unless adverse comments or written notice of intent to submit adverse comments are received by January 7, 2011. If adverse comments are received, GIPSA will publish a timely withdrawal of the rule in the                         **Federal Register**                        . The incorporation by reference of certain publications in this rule is approved by the Director of the Federal Register as of March 8, 2011.                    

# ADDRESSES:

We invite you to submit comments on this direct final rule by any of the following methods:
      -  Federal eRulemaking Portal:                          Go to                          http://www.regulations.gov.                          Follow the online instructions for submitting comments.                    
      -  Mail:                          Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., room 1643-S, Washington, DC 20260-3642.                    
      - E-mail comments to comments.gipsa@usda.gov. 
      -  Fax:                          (202) 690-2173.                    

*Instructions:*                         All comments will become a matter of public record and should be identified as “NIST Handbook 44 IBF Comments,” making reference to the date and page number of this issue of the                         **Federal Register**                        . Comments will be available for public inspection at                         *http://www.regulations.gov*                         and in the above office during regular business hours (7 CFR 1.27(b)). Please contact the GIPSA Management Support Staff at (202) 720-7486 to make an appointment to read the comments received.                    

# FOR FURTHER INFORMATION CONTACT:

                        Robert S. Lijewski, Director, Field Management Division by E-mail at                         *robert.s.lijewski@usda.gov,*                         or by telephone at (202) 720-0228.                    

# SUPPLEMENTARY INFORMATION:

## Background

Under the provisions of the USGSA (7 U.S.C. 71-87k), grain exported from the U.S. must be officially inspected and weighed. Sections 802 and 802.1 of the USGSA regulations (7 CFR 802.0-802.1) set forth certain procedures, specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y official weighing services. GIPSA management has reviewed these regulations and determined that they still serve their intended purpose, are consistent with GIPSA's statutory authority and policy, and should remain in effect. In order to update the USGSA regulations, however, GIPSA is incorporating by reference the 2008 edition of NIST Handbook 44 into the USGSA regulations (7 CFR 802.0(a)). Those provisions in NIST Handbook 44 that obviously do not pertain to GIPSA services are not being incorporated and are listed in section 802.0(b) of the USGSA regulations (7 CFR 802.0(b)).

## Direct Final Action

GIPSA is revising § 802.0(a) of the USGSA regulations (7 CFR 802.0(a)) by incorporating by reference the following sections only of the 2008 edition of NIST Handbook 44:

Section 1.10 General Code

Section 2.20 Scales

Section 2.22 Automatic Bulk Weighing Systems

Section 2.23 Weights

                    Pursuant to 5 U.S.C. 553, it is found and determined upon good cause that it is impracticable, unnecessary, and contrary to public interest to give preliminary notice prior to putting this                           ( print page 76255)                        direct final rule in effect because GIPSA regularly updates this section of the USGSA regulations to incorporate by reference NIST Handbook 44. Further, GIPSA views this action as noncontroversial and anticipates no adverse public comment. This rule will be effective, as published in this document, 90 days after the date of publication in the                     **Federal Register**                    , unless GIPSA receives written adverse comments or written notice of intent to submit adverse comments within 30 days of the date of publication of this rule in the                     **Federal Register**                    . Adverse comments are considered to be those comments that suggest the rule should not be adopted or suggest the rule should be changed.                

                    If GIPSA receives written adverse comments or written notice of intent to submit adverse comments, we will publish a notice in the                     **Federal Register**                     withdrawing this rule before the effective date. GIPSA will then publish a proposed rule for public comment. Following the close of that comment period, the comments will be considered thoughtfully, and a final rule addressing the comments will be published.                

## Executive Order 12866 and Regulatory Flexibility Act

This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by OMB.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601-612), it has been determined that this rule will not have a significant economic impact on a substantial number of small entities. GIPSA has determined that most users of the official weighing service and those entities that perform these services do not meet the requirements for small entities. This rule will affect entities engaged in shipping grain to and from points within the United States and exporting grain from the United States. GIPSA estimates approximately 9,000 off farm storage facilities and 57 export elevators in the United States could receive official weighing services by GIPSA, delegated States, or designated agencies. GIPSA also estimates this rule affects 18 scale manufacturing and 39 scale service companies who provide weighing equipment and service to these elevators and storage facilities. Eight GIPSA field offices, 2 Federal/State offices, 4 GIPSA sub offices, 7 delegated States, and 25 designated agencies provide official weighing service. Under provisions of the USGSA, it is not mandatory for non-export grain to be officially weighed except for grain being loaded onto ships located in export port locations. Further, most users of the official weighing services and those entities that perform these services do not meet the requirements for small entities. Even though some users could be considered small entities, this rule only updates regulatory requirements that make GIPSA weighing guidelines consistent with State weights and measures organizations' laws and regulations that automatically adopt NIST Handbook 44 on a yearly basis. Updating these requirements will help manufacturers of weighing equipment and grain elevators avoid making, installing, and maintaining equipment to meet two sets of design and performance requirements for commercial and official weighing to meet old as well as new specifications. Since regulated entities are required under State law to comply with NIST Handbook 44, no additional cost or burden is expected to result from this action.

## Executive Order 12988

This direct final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. The USGSA provides in section 87g (7 U.S.C. 87g) that no State or subdivision thereof may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the USGSA. Otherwise, this direct final rule would not preempt any State or local laws, or regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this direct final rule.

## Paperwork Reduction Act

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection and recordkeeping requirements in Part 802 have been approved previously by OMB No. 0580-0013 which expires on April 30, 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 7 CFR Part 802

      - Administrative practice and procedure
      - Export
      - Grain
      - Incorporation by reference
      - Reporting and recordkeeping requirements

For reasons set forth in the preamble, 7 CFR Part 802 is amended as follows:

# PART 802—OFFICIAL PERFORMANCE AND PROCEDURAL REQUIREMENTS FOR GRAIN WEIGHING EQUIPMENT AND RELATED GRAIN HANDLING SYSTEMS

1. The authority citation for Part 802 continues to read as follows: 

Authority: 7 U.S.C. 71-87k.

2. Section 802.0 is revised to read as follows: 

§ 802.0

                            (a) The requirements set forth in this part 802 describe certain specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y weighing services, official inspection services, and commercial services under the Act. All scales used for official grain weight and inspection certification services provided by FGIS must meet applicable requirements contained in the FGIS Weighing Handbook, the General Code, the Scales Code, the Automatic Bulk Weighing Systems Code, and the Weights Code of the 2008 edition of National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices” (Handbook 44); and NIST Handbook 105-1 (1990 Edition), “Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures,” (Handbook 105-1). These requirements are confirmed to be met by having National Type Evaluation Program type approval. Scales used for commercial purposes will be required to meet only the applicable requirements of the 2008 edition of the NIST Handbook-44. Pursuant to the provisions of 5 U.S.C. 552(a), with the exception of the Handbook 44 requirements listed in paragraph (b), the materials in Handbooks 44 and 105-1 are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the                             **Federal Register**                            . This incorporation by reference was approved by the Director of the Federal Register on March 8, 2011, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The NIST Handbooks are for sale by the National Conference of Weights and Measures (NCWM), 1135 M Street, Suite 110, Lincoln, Nebraska 68508. Information on these materials                                   ( print page 76256)                                may be obtained from NCWM by calling 402-434-4880, by E-mailing                             *nfo@ncwm.net,*                             or on the Internet at                             *http://www.nist.gov/​owm.*

(b) The following Handbook 44 requirements are not incorporated by reference:

### Scales (2.20)

S.1.8. Computing Scales

S.1.8.2. Money-Value Computation

S.1.8.3. Customer's Indications

S.1.8.4. Recorded Representations, Point of Sale

S.2.5.2. Jeweler's, Prescription, & Class I & II Scales

S.3.3. Scoop Counterbalance

N.1.3.2. Dairy-Product Test Scales

N.1.5. Discrimination Test (Not adopted for Grain Test Scales only)

N.1.8. Material Tests

N.3.1.2. Interim Approval

N.3.1.3. Enforcement Action For Inaccuracy

N.4. Coupled-in-Motion Railroad Weighing Systems

N.6. Nominal Capacity of Prescription Scales

T.1.2. Postal and Parcel Post Scales

T.2.3. Prescription Scales

T.2.4. Jewelers' Scales (all sections)

T.2.5. Dairy—Product—Test Scales (all sections)

T.N.3.9. Materials Test on Customer—Operated Bulk—Weighing Systems for Recycled Materials

UR.1.4. Grain Test Scales: Value of Scale Divisions

UR.3.1. Recommended Minimum Load

UR.3.1.1. Minimum Load, Grain Dockage

### Automatic Bulk Weighing Systems (2.22)

N.1.3. Decreasing-Load Test

J. Dudley Butler,

Administrator, Grain Inspection, Packers and Stockyards Administration.

[FR Doc. 2010-30712 Filed 12-7-10; 8:45 am]

BILLING CODE 3410-KD-P