This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

46606 

Vol. 86, No. 158 

Thursday, August 19, 2021 

1FGIS, formerly part of USDA’s Grain Inspection, 

Packers and Stockyards Administration, was 

merged with USDA’s Agricultural Marketing 

Service in 2018. 

2The Agricultural Reauthorizations Act of 2015, 

enacted September 20, 2015 (Pub. L. 114–54 sec. 

301(b)(3)(A)). 3 81 FR 49855, July 29, 2016. 

4The Agricultural Improvement Act of 2018, 

enacted December 20, 2018 (Pub. L. 115–334 sec. 

12610(a)(1)(D)). 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 800 

[Doc. No. AMS–FGIS–19–0062] 

RIN 0581–AD90 

Exceptions to Geographic Boundaries 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: This notice of proposed 

rulemaking invites public input on 

proposed revisions to Federal Grain 

Inspection regulations. The Agricultural 

Marketing Service is required to revise 

the regulations as a result of 2018 Farm 

Bill amendments to the U.S. Grain 

Standards Act. Revised regulations 

would allow designated official agencies 

to perform grain inspections outside 

their geographic areas under certain 

additional conditions. Proposed 

revisions are based on industry input 

and are intended to provide additional 

flexibility to the industry. 

DATES: Comments must be received by 

September 20, 2021. 

ADDRESSES: Comments must be 

submitted through the Federal erulemaking portal at http://

www.regulations.gov and should 

reference the document number and the 

date and page number of this issue of 

the Federal Register. All comments 

submitted in response to this document 

will be included in the record and will 

be made available to the public. Please 

be advised that the identity of 

individuals or entities submitting 

comments will be made public on the 

internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Sophie Parker, Deputy Director, Quality 

Assurance and Compliance Division, 

Federal Grain Inspection Service, AMS, 

USDA; email: FGISQACD@usda.gov. 

SUPPLEMENTARY INFORMATION: Under the 

USGSA (7 U.S.C. 71 et seq.), each 

official agencies (OA) in the United 

States is assigned a specific geographic 

area where it performs all official grain 

inspection and weighing services for 

customers within that geographic area (7 

U.S.C. 79(f)(2)(A)). This ensures 

effective and efficient delivery of official 

services to all customers within the 

assigned OA’s geographic area and 

enhances the orderly marketing of grain. 

The U.S. Grain Standards Act (USGSA) 

also provides that customers may obtain 

services from other OAs under certain 

circumstances. The Secretary may allow 

OAs to cross geographic boundaries to 

provide services to requesting customers 

if: (1) The assigned OA is unable to 

provide necessary services on a timely 

basis; (2) the customer has not been 

receiving official inspection services 

from the assigned OA; (3) the customer 

requests probe inspection on barge-lot 

basis; or (4) the assigned OA agrees in 

writing with the adjacent OA to waive 

the current geographic restriction at the 

customer’s request (7 U.S.C. 79(f)(2)(B)). 

These allowances are considered 

exceptions to the USGSA’s standard 

requirements regarding the use of 

designated OAs to perform inspection 

services within specified geographic 

areas. Exceptions must be approved on 

a case-by-case basis by the Agricultural 

Marketing Service’s Federal Grain 

Inspection Service (FGIS) that 

administers regulations under the 

USGSA.1 Regulations in 7 CFR part 800 

provide limitations for use of these 

exceptions. 

Service Exceptions 

A notable exception that has been 

implemented in the past is known as the 

nonuse of service exception. In that 

exception, a customer who had not 

obtained inspection services from the 

assigned OA for a specified length of 

time could obtain services from another 

OA. At times, regulations required 

customers to have not used their 

designated OA for at least 90 

consecutive days; at other times the 

regulations specified a 180-day nonuse 

period before the customer could apply 

for service from another OA. However, 

lack of clarity about how FGIS 

determined whether to grant nonuse of 

service exceptions fostered confusion 

and conflicts among involved parties 

and created a perception of 

inconsistency regarding the handling of 

such requests. Congress eliminated the 

nonuse of service exception from the 

USGSA in 2015; 2 FGIS subsequently 

removed that exception from the 

regulations.3

Although the nonuse of service 

exception was eliminated from the 

USGSA in 2015, Congress reinstated 

authority to implement a nonuse of 

service exception through an 

amendment to the USGSA in the 2018 

Farm Bill.4 FGIS must now consider 

regulatory options related to the 

reinstatement of the nonuse of service 

exception (see 7 U.S.C. 79(f)(2)(B)(ii)). 

On April 1, 2020, FGIS published an 

advanced notice of proposed 

rulemaking (ANPR) (85 FR 18155) to 

solicit public comments on how FGIS 

should amend its criteria for reviewing, 

approving, and implementing 

exceptions to USGSA’s requirements for 

geographic boundaries. FGIS received 

six comments on the ANPR. We have 

incorporated industry feedback from the 

ANPR, along with input received during 

industry meetings, to develop this 

proposed rule (PR). FGIS is requesting 

public comment on options for timely 

service and nonuse of service, as 

defined within this PR. Particularly, 

FGIS seeks input from industry 

participants and OAs who use and 

provide official services and are familiar 

with grain inspection services under the 

USGSA. We welcome the submission of 

data and other information to support 

commenters’ views. As a result of public 

input received on the PR, FGIS will 

develop a final rule for publication in 

the Federal Register. 

Restoration of Previous Nonuse of 

Service Exceptions 

Subsequent to 2015 amendments to 

the USGSA and the 2016 changes to the 

FGIS regulations, a number of nonuse of 

service exceptions were terminated. The 

2018 Farm Bill directed USDA to allow 

for restoration of those exceptions 

where appropriate. Interested parties 

were given an opportunity to submit 

restoration requests to FGIS, as 


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Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 46607 

5Restoring Certain Exceptions to the U.S. Grain 

Standards Act, published March 5, 2019. https://

www.ams.usda.gov/content/restoring-certainexceptions-us-grain-standards-act. 

6Public Law 115–334 sec. 12610(a)(1)(E). 

7Public Law 115–334 sec. 12610(a)(2). 

described in a Notice to Trade 

published on March 5, 2019.5

Termination of Nonuse of Service 

Exceptions 

The amended USGSA provides that 

the nonuse of service exception may 

only be terminated if all parties to the 

exception jointly agree on the 

termination.6 This means that the 

customer, the assigned OA, the OA that 

has been providing service under the 

exception (gaining OA), and FGIS must 

agree to terminate the exception. This 

ensures that: (1) All parties are aware of 

the change and (2) the assigned OA will 

resume providing service to the 

customer. 

The requirement for all parties to the 

exception to jointly agree on 

termination of the nonuse of service 

exception does not apply if the 

designation of an OA is terminated.7 If 

the designation of an OA is renewed or 

restored after being terminated, the 

exceptions that were previously 

approved, under 7 U.S.C. 79(f)(2)(B), 

may be renewed or restored by 

requesting a determination from FGIS. 

Comment Review 

The ANPR suggested three criteria for 

timely service exceptions and four 

criteria for nonuse of service exceptions, 

and requested input on 11 questions 

regarding factors that could impact 

decisions on exceptions. FGIS would 

like to thank those who participated in 

this process for providing valuable 

input. Not all commenters provided 

feedback on criteria for every exemption 

or on every question in the ANPR. Most 

recognized the need for the official 

system to be customer focused and to 

provide timely and accurate services. 

FGIS received mixed comments about 

timely service and nonuse of service 

exceptions. Some commenters stated 

that they thought the nonuse of service 

exception involved the inability of the 

OA to provide timely service. The 

USGSA specifies these are two separate 

exceptions; therefore, FGIS is using the 

feedback to the ANPR to improve and 

clarify the requirements under the 

appropriate exception. 

The ANPR criteria for timely service 

exceptions included that: the requesting 

facility would be required to submit a 

written or verbal request for an 

exception to FGIS, along with 

documentation regarding the designated 

OA’s inability to provide service within 

six hours from the requested service. 

Further, the OA would have to be 

unable to provide requested services 

within timeframes established in the 

OA’s approved fee schedule. The ANPR 

criteria for nonuse of service exception 

requests included the requesting facility 

(customer or applicant) demonstrating 

they have not received official services 

for 90 days, documenting why they have 

not received service, and providing a 

written or verbal request for an 

exception. In addition, the ANPR 

suggested potential factors for 

consideration, some of which now fit 

within the expanded criteria for timely 

service requests. 

In the feedback to the ANPR criteria 

for timely service exceptions, some 

commenters supported the criteria but 

provided differing opinions on how to 

apply the criterion regarding timeframes 

for services provided. One suggested 

that customers should not be allowed to 

routinely call their OA after business 

hours as a mechanism for obtaining 

service from another OA. Here, FGIS 

notes parameters required for requesting 

official services are defined in 

800.116(b) and OA fee schedules. FGIS 

also received requests to clarify which 

services are included in a timely service 

exception. Industry feedback indicates 

some OA’s do not offer all official 

services some customers request. Others 

indicate that weather events could 

impact access to timely service. Timely 

service exceptions criterion in this PR 

would provide an avenue to 

accommodate these situations. 

In the feedback to the ANPR criteria 

for nonuse of service exceptions, some 

commenters asked FGIS to add 

flexibility to the nonuse of service 

exception and to rename it ‘‘service 

exception’’. According to industry 

input, customers occasionally face 

limitations in the types of services 

offered by the assigned OA. This again 

indicated to FGIS that there is confusion 

about the criteria for timely service and 

the criteria for nonuse of service 

exceptions. In addition, the feedback on 

the number of days without official 

service (for nonuse of service 

exceptions) had a wide range, from 30 

to 180 days. As stated in the ANPR, 

prior ranges allowed were between 90 to 

180 days in length. A period of 90 days 

is within timeframes used for the 

nonuse of service exception in the past 

and is a compromise based on 

timeframes suggested in the comments. 

In the general feedback to the ANPR, 

FGIS received comments expressing 

concern that some requests for 

exceptions relayed false or misleading 

information. These comments 

questioned how FGIS would validate 

requests for exceptions and whether the 

assigned OA would have an opportunity 

to respond to the request. Therefore, 

FGIS proposes adding a validation 

process for requests for exceptions. This 

would allow all parties to submit 

information and data regarding the 

request. FGIS would review information 

and assess requests to ensure the 

integrity of the official system is 

maintained. FGIS also received feedback 

expressing concern that nonuse of 

service exceptions negatively impact the 

integrity of the official system. FGIS has 

attempted to address all feedback within 

this PR. 

Overview 

Amendments proposed would modify 

parameters for the exceptions program 

for timely service and reinstate the 

exception program for nonuse of service 

in 7 CFR 800.117, to comply with 

amendments made to the USGSA in the 

2018 Farm Bill. This PR incorporates 

feedback received from the public on 

the ANPR to create a clear, consistent, 

and fair framework for considering and 

granting these exceptions, which allow 

designated OAs to perform grain 

inspections outside their geographic 

areas under certain conditions. Timely 

service and nonuse of service are two of 

those conditions. This PR defines and 

differentiates between timely service 

and nonuse of service exceptions and 

their associated requirements. 

Under § 800.117(b)(1), the industry 

would have a mechanism to request and 

receive timely service from an alternate 

OA. Applicants could also request 

timely service exceptions for delays 

caused by weather events and requests 

for services that are not offered by the 

assigned OA. For a timely service 

exception, FGIS would grant an 

exception when: (1) The designated OA 

is unable to provide services to an 

applicant within 6 hours or the OA is 

unable to provide results and certificate 

in accordance with 800.160(c); or (2) a 

request for services not offered by the 

assigned OA would result in an inability 

to receive timely service; or (3) a 

weather event or impact caused by a 

weather event results in an inability to 

receive timely service from the assigned 

OA; and (4) granting an exception is in 

the best interest of the integrity of the 

official system. It is important to note 

that not all of these instances indicate 

a delay caused by the assigned OA and 

that the reasons and justification for the 

exception request weigh more 

prominently for nonuse of service 

requests than timely service. This PR 

proposes a tiered progression for timely 

service exceptions. The first is a onetime timely service exception. In the 


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46608 Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 

8Source: USDA Federal Grain Inspection Service 

(FGIS) Program Data at: https://

fgisonline.ams.usda.gov/F_DEC/ 

AnnualReport.aspx. 

case of untimely service, the ability to 

use another official agency may be 

granted for the next service request, as 

applicable. The second is a 90-day 

timely service exception. If, after the 

first request is granted, a second 

instance occurs within 180 days, the 

customer may apply for a 90-day 

exception. Once granted, the alternate 

OA would provide services to the 

customer for 90 days. The third is a 

long-term timely service exception. If 

there is another occurrence, within 365 

days of the return to the assigned OA, 

the applicant may request a long-term 

exception, extending until the 

termination date of the gaining agency’s 

designation. If FGIS determines the 

assigned OA’s inability to provide a 

specific service, limited due to weather 

events or service availability, has been 

resolved, FGIS may terminate the longterm exception. If FGIS terminates a 

long-term exception, all parties would 

be notified, and the applicant would 

resume service with the assigned OA 

within 60 days of notification. However, 

if the exception was associated with the 

assigned OA’s inability to provide 

service in 6 hours or less, or timely 

issuance of the results and certificate, 

FGIS may not terminate the exception. 

During the duration of exceptions 

caused by a failure of the assigned OA 

to supply timely service, the assigned 

OA should work on improving their 

ability to provide the requested services. 

For nonuse of service exception 

requests, this PR defines the period of 

nonuse as 90 days. The PR also 

specifies, but does not limit, categories 

FGIS would take into consideration 

when reviewing requests for nonuse of 

service exceptions. These include: (1) 

The location of the specified service 

point(s); (2) the ability of the alternate 

OA to take on additional customers; (3) 

the ability of the assigned OA to staff an 

onsite laboratory; (4) whether the 

requesting facility has ever previously 

utilized the official system (i.e., facilities 

that have never used the official system 

would not qualify for nonuse of service 

exception, nor would a facility that was 

under new ownership by a company 

with no history of use of the official 

system). For a nonuse of service 

exception, FGIS would grant an 

exception when: (1) An OA has not 

provided service to an applicant within 

their assigned geographic area within 

the established time period, (2) FGIS 

receives a request for a nonuse of 

service exception from an applicant, 

and (3) granting an exception is in the 

best interest of the integrity of the 

official system. In some cases, the cost 

of the equipment is more than the OA 

would be able to recoup, due to the 

infrequency of the requests. FGIS would 

take these factors into consideration 

when reviewing requests for exceptions 

and would work with the OAs and 

customers to find a solution. 

FGIS recognizes there may be 

instances where granting an exception 

may impact the assigned OA’s viability 

and instances where there is concern 

about the integrity of the official system. 

In such instances, FGIS proposes adding 

a challenge process into this regulation. 

As an example, FGIS would consider 

factors such as percent of business or 

percent of customers lost due to 90-day 

and long-term exceptions. Requests for 

a challenge must clearly state and 

support the identified reason for the 

request. The assigned OA must include 

supporting documentation for FGIS to 

review as part of this process. FGIS 

seeks input from industry participants 

and OAs on the challenge process. We 

welcome and encourage the submission 

of data and other information to support 

commenters’ views. 

FGIS proposes to add the nonuse of 

service exception back into the 

regulations, under § 800.117(b)(2). The 

industry would be able to apply for 

official services from an alternate OA if 

they have not received official services 

within the previous 90 days. In 

addition, FGIS proposes to evaluate 

criteria defined in the section to 

promote clarity, consistency, and 

transparency. FGIS also proposes to 

expand and clarify options for 

exceptions under timely service. 

Applications for timely service 

exceptions would undergo a more 

streamlined approval process and 

require less rigorous justification by the 

applicant than those submitted for 

nonuse of service exceptions. For both 

types of exceptions, the PR establishes 

processes to address assigned OA 

concerns of potentially false or 

misleading exception requests and 

validation of requests by FGIS. 

Executive Orders 12866 and 13563 

Executive Orders 12866—Regulatory 

Planning and Review, and 13563— 

Improving Regulation and Regulatory 

Review, direct agencies to assess all 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits of 

reducing costs, harmonizing rules, and 

promoting flexibility. 

In this initial evaluation of costs and 

benefits of the rule, FGIS has 

determined that the proposed rule does 

not meet the criteria of a significant 

regulatory action under Executive Order 

12866 as supplemented by Executive 

Order 13563. Moreover, FGIS finds that 

the rule does not create any new 

material costs for industry. 

Baseline 

Under the USGSA, the USDA 

regulates the inspection of barley, 

canola, corn, flaxseed, mixed grain, oats, 

rye, sorghum, soybeans, sunflower seed, 

triticale, and wheat. This rule impacts 

the 42 OAs that provide USDAregulated grain certification and the 

5,218 commercial entities they serve. In 

FY2020, OAs performed 3,093,261 grain 

inspections of 240.3 million metric tons 

of grain.8 FGIS expects fewer than one 

percent of the entities served by OAs to 

request and be granted exceptions under 

the rule. 

Official inspection costs represent a 

very small percentage of the total value 

of grain shipment. In 2018, FGIS 

calculated weighted average costs for 

inspections for different carriers as 

follows: $24.50 for a semi-truck capable 

of carrying 58,000 pounds, $24.65 for a 

railcar capable of carrying 220,000 

pounds, and $234.42 for a barge capable 

of carrying 3,000,000 pounds of grain. 

For example, if the price of wheat was 

$5 for a 60-pound bushel, the cost of the 

inspection would represent 0.53% of 

the revenue for a truck, 0.13% of the 

revenue for a railcar train, and 0.08% of 

the revenue for a barge. 

Need for the Rule 

Federally regulated grain inspection is 

designed to remedy two competing 

sources of market failure—asymmetric 

information and market power—while 

preserving the ability of small producers 

to access markets. This rule increases 

the flexibility of the existing inspection 

program without affecting the program’s 

quality standards or the ability of small 

sellers to access inspection services. 

Greater flexibility in allowing producers 

to obtain inspection services, however, 

will save costs and provide them greater 

ability to meet potential market 

opportunities. 

Many agricultural products, including 

grain, vary in important quality 

characteristics due to both farm 

production decisions and idiosyncratic 

factors. In the absence of a quality 

verification process, sellers in 

transactions may have more knowledge 


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Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 46609 

9 George Akerlof, ‘‘The Market for Lemons: 

Quality Uncertainty and the Market Mechanism’’ 

Quarterly Journal of Economics, 1970. 

of product quality than buyers, a 

condition called asymmetric 

information. Akerlof (1970) showed 

asymmetric information can cause 

economic inefficiencies in which 

producers forego investments that are 

less costly to implement than the benefit 

they provide consumers.9 Third-party 

inspection that verifies a product’s 

quality resolves this source of market 

failure. 

Grain inspectors certify the protein 

content, kernel size, and other quality 

factors related to product’s market value 

to simplify transactions. Since the 

outcome of grain inspections directly 

affects the sale price, biases and 

inconsistences in inspection methods 

might potentially redistribute the gains 

to trade from seller to buyer, or vice 

versa. Market power might exacerbate 

the tendency to bias and inconsistency 

if, for instance, large sellers or buyers 

can influence the outcome of quality 

inspections in their favor. In addition to 

fairness concerns, such opportunistic 

behavior creates economic inefficiencies 

by reducing returns on investment in 

quality improvement and creating costs 

for downstream producers (i.e., bakers 

and food processors) expecting products 

of certain quality. 

Grain inspection is an optional 

service. When information asymmetries 

are a concern, inspection facilitates 

simpler, more rapid, and less risky 

transaction of final product. By allowing 

producers to recoup the costs of quality 

improvement, grain inspection also 

encourages investment in quality 

improvement. 

Under its regulatory authority, the 

USDA approves grain inspection 

standards and monitors their uniform 

application by OAs. To promote a 

competitive market for grain, in which 

all producers have access to inspection 

services, FGIS requires that OAs provide 

inspection services to all producers in 

an assigned area and regulates 

marketing fee schedules charged by OAs 

for these services. FGIS approves rates 

to cover various labor, laboratory, and 

travel costs and only approves 

differential rates across geographic areas 

if underlying costs differ across assigned 

regions. For this reason, FGIS does not 

expect this rule to impact the prices 

paid by inspection users or the fees 

received by OAs. Instead, FGIS expects 

this rule will allow the small fraction of 

inspection users who need ‘‘timely 

service’’ and ‘‘nonuse of service’’ 

exceptions greater flexibility in 

obtaining inspections services to meet 

immediate business requirements. 

Benefits and Costs of the Rule 

FGIS considers economic benefits of 

this rule as being three-fold. First, the 

rule provides clarity to producers 

regarding the terms under which 

exceptions are granted. Second, the rule 

increases options to producers who 

require inspection services to market 

their grain. FGIS expects that this option 

will be utilized by fewer than one 

percent producers who need inspections 

services quickly but face service 

constraints by OAs. Third, the rule may 

heighten attention to service issues 

among OAs that have received nonuse 

of service exception requests. The 

validation process FGIS will maintain as 

part of the granting of exceptions will 

ensure requests serve a valid business 

purpose. OAs may offer additional 

services such as a broader range of 

testing as a result. 

FGIS does not ascribe any direct 

compliance costs to either OAs or 

producers as a result of the potential 

increase for timely service and nonuse 

of service exceptions under this rule. 

FGIS does not expect that inspection 

fees it approves will change as a result 

of this rule. To the extent that this rule 

provides greater flexibility to how 

producers can obtain inspection 

services, it will provide improved 

services or reduce total costs to 

producers by, for instance, allowing 

those needing immediate inspections to 

get them from an OA other than the one 

to which they are assigned. Moreover, 

FGIS does not believe the rule will 

create significant indirect costs, aside 

from minor costs to market participants 

learning the rule and documenting 

exceptions. 

To the extent that some OAs conduct 

fewer inspections because producers in 

their assigned area have requested more 

exceptions, other OAs will conduct 

more inspections. FGIS believes that 

any business losses to an OA will be 

small and that any losses will be offset 

by gains to other OAs. This 

rearrangement of business activity 

constitutes a transfer of benefits from 

one OA to another and has a neutral 

effect on total costs and benefits of the 

rule. 

To summarize, FGIS believes that the 

total impact of the rule on the grain 

inspection industry is not economically 

significant and that the benefits of this 

rule exceed its costs, which are 

negligible. 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601 et seq.) requires agencies 

to consider the impact of their rules on 

small entities and to evaluate 

alternatives that would accomplish 

objectives of the rule without unduly 

burdening small entities when rules 

impose a significant economic impact 

on a substantial number of small 

entities. This rule has an economic 

impact on farms selling grain that 

require inspections (classified under 

North American Industry Classification 

System, or NAICS, codes 111110, 

111120, 111130, 111140, 111150, 

111191, 111160, 111191, and 111199), 

grain elevators and grain certifiers that 

conduct post-harvest crop activities 

(NAICS code 115114) and either require 

or perform inspections. The Small 

Business Administration (SBA) 

considers grain farms to be small if their 

sales are less than $1 million and grain 

elevators and grain certifiers (OAs) to be 

small if their sales are less than $30 

million (13 CFR 121.201). 

FGIS certifies that this rule does not 

have a significant economic impact on 

small businesses. This determination is 

made based on FGIS’s expectation that 

any small entities requiring grain 

inspection, including grain farms and 

grain elevators, or entities performing 

grain inspection, including OAs, will 

see neither a change in prices paid or 

fees charged nor a loss in access to 

inspection services or change in 

territorial boundaries for which they can 

perform inspections. Further, FGIS 

believes its proposed challenge process 

addresses the concern that some small 

OAs may lose economic viability when 

exceptions are granted to customers 

under the exceptions to geographic 

boundary requirement. 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988—Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. The USGSA 

provides in sec. 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 Act. 

This rule will not preempt any State 

or local laws, regulations, or policies, 

unless they present an irreconcilable 

conflict with this rule. No 

administrative proceedings would be 

required before parties could file suit in 

court challenging the provisions of this 

rule. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. Executive Order 13175 


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46610 Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 

requires Federal agencies to consult and 

coordinate with tribes on a governmentto-government basis on: (1) Policies that 

have tribal implications, including 

regulations, legislative comments or 

proposed legislation; and (2) other 

policy statements or actions that have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Agricultural Marketing Service (AMS) 

has assessed the impact of this proposed 

rule on Indian tribes and determined 

that this rule would not have tribal 

implications that require consultation 

under Executive Order 13175. AMS 

hosts a quarterly teleconference with 

tribal leaders where matters of mutual 

interest regarding the marketing of 

agricultural products are discussed. 

Information about proposed changes to 

regulations will be shared during an 

upcoming quarterly call, and tribal 

leaders will be informed about proposed 

revisions to the regulation and the 

opportunity to submit comments. AMS 

will work with the USDA Office of 

Tribal Relations to ensure meaningful 

consultation is provided as needed with 

regards to the proposed regulations. 

AMS has provided 30 days for 

comments on this proposed rule. All 

comments received by September 20, 

2021 will be considered prior to 

finalizing this proposed rule. Comments 

in response to any or all of the above 

processes or proposed wording should 

be submitted to the address provided in 

the ADDRESSES section of this document 

to ensure consideration. 

List of Subjects in 7 CFR Part 800 

Administrative practice and 

procedure, Exports, Grains, Reporting 

and recordkeeping requirements. 

For reasons set forth in the preamble, 

FGIS proposes to amend 7 CFR part 800 

as follows: 

PART 800—GENERAL REGULATIONS 

■ 1. The authority citation for part 800 

continues to read as follows: 

Authority: 7 U.S.C. 71–87k. 

■ 2. Amend § 800.117 by: 

■ a. Adding paragraph (b) introductory 

text; 

■ b. Revising paragraph (b)(1); 

■ c. Redesignating paragraphs (b)(2) and 

(3) as paragraphs (b)(3) and (4), 

respectively; and 

■ d. Adding new paragraph (b)(2). 

The additions and revision read as 

follows: 

§ 800.117 Who shall perform original 

services. 

* * * * * 

(b) Exceptions for official agencies to 

provide service. Under an exception, an 

official agency may provide service to a 

customer outside of their geographic 

area. The applicant must request that 

the Service grant an exception. As 

outlined below, the Service may grant 

an exceptions in instances when: The 

assigned official agency is unable to 

provide inspection services in a timely 

manner; a person requesting inspection 

services in that geographic area has not 

been receiving official inspection 

services from the official agency for that 

geographic area; a person requesting 

inspection services in that geographic 

area requests a probe inspection on a 

barge-lot basis; or, the assigned official 

agency for that geographic area agrees in 

writing with the adjacent official agency 

to waive the current geographic area 

restriction at the request of the applicant 

for service. 

(1) Timely service. The Service grants 

an exception when service is not timely 

as described in this section. Service is 

not timely when an official agency 

cannot provide requested official 

services within 6 hours or cannot 

provide results and certificate in 

accordance with 800.160(c). Applicants 

may also request timely service 

exceptions for delays caused by weather 

events or request a timely service 

exception for services that the assigned 

official agency does not offer. The 

applicant must submit a request for a 

timely service exception to the Service. 

The applicant may make this request 

orally or in writing. The applicant must 

clearly state and support the identified 

reason for the requested exception. 

There are three consecutive tiers of 

timely service exceptions: One-time, 90- 

day, and long-term. Applicants must 

progress through each tier. Applicants 

must apply for and the Service must 

approve a one-time exception before the 

Service considers a 90-day exception. 

Likewise, applicants must apply for and 

the Service must approve a 90-day 

exception before the Service will 

consider a long-term exception. The 

Service will review requests and may 

contact the applicant, the assigned 

official agency, or potential gaining 

agency with questions during its review. 

The Service will provide its 

determination on the exception request 

to the customer in writing. 

(i) One-time. In the case of untimely 

service, the ability to use another 

official agency may be granted for the 

next service request, as applicable. 

(ii) 90-day. If there is an occurrence of 

untimely service within 180 days of the 

date of the occurrence in paragraph 

(b)(1)(i) of this section, the applicant 

may request a 90-day exception. This 

90-day window will begin the day the 

exception is granted. 

(iii) Long-term. If after a return to 

service following an exception granted 

under paragraph (b)(1)(ii) of this section 

there is another occurrence of untimely 

service within 365 days, the applicant 

may request a long-term exception. 

When granting this exception, the 

Service may extend this exception up to 

the date of termination of the gaining 

agency’s designation term. 

(iv) Supporting Documentation. The 

applicant must submit a request for a 

timely service exception and associated 

supporting documentation to the 

Service. The Service will give all parties 

an opportunity to provide information. 

The Service will request additional 

information if any is needed. 

(v) Review and Validation. Prior to 

granting a timely service exception, the 

Service will review and validate all 

information submitted with the 

application. If the request is urgent and 

made outside of the Service’s normal 

business hours, an official agency from 

outside the geographic area may provide 

service. When providing an urgent 

service, the official agency must provide 

written notification to the Service 

within two business days after service. 

The Service will review and validate the 

circumstances of the urgent request and 

the Service will verify that the request 

was not false or misleading. 

(vi) False or Misleading Requests. If 

an applicant submits a request that the 

Service determines to be false or 

misleading, the Service will not grant 

the exception. If an urgent request was 

granted on the basis of a false and 

misleading request, the Service may 

deny the applicant from future urgent 

timely service exceptions for a period of 

up to 180 days. 

(vii) Return to the Assigned Official 

Agency. The applicant maintains the 

option of returning to the assigned 

official agency at any time with a 60-day 

notification period to all parties. The 

exception will be cancelled, and future 

exception requests will be considered at 

the beginning of successive-tiered 

system. 

(viii) Termination. If the Service 

determines the original official agency’s 

inability to provide a specific service, 

limited due to weather events or service 

availability, has been resolved, the 

Service may terminate the long-term 

exception. However, if the exception 


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Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 46611 

was associated with the official agency’s 

inability to provide service in 6 hours or 

less, or timely issuance of the results 

and certificate, the Service may not 

terminate the exception. If the Service 

terminates a long-term exception, all 

parties will be notified, and the 

applicant will resume service with the 

assigned official agency within 60 days 

of notification. 

(2) Nonuse of service exception. If an 

applicant has not received service from 

the assigned official agency within the 

last 90 days, the applicant may request 

that the Service grant a nonuse of 

service exception. 

(i) Requests must clearly state and 

support the following: 

(A) The last date of service from 

assigned official agency; 

(B) The reason service has not been 

received during this timeframe; 

(C) The identified reason for the 

request. 

(ii) Relevant information. Applicants 

may submit any relevant supporting 

information. This may include, but is 

not limited to: 

(A) The location of the specified 

service point(s); 

(B) The types of services requested by 

the applicant and offered by assigned 

official agency; 

(C) The ability of the gaining official 

agency to take on additional customers; 

(D) The ability of the assigned official 

agency to provide the requested service; 

(E) Whether the requesting facility has 

ever used the official system. 

(iii) Supporting Documentation. 

Included with the request for an 

exception, the applicant must submit 

supporting documentation to the 

Service. After receipt of the request, the 

Service will give all parties an 

opportunity to provide additional 

supporting documentation. The Service 

will request additional information if 

any is needed. 

(iv) Review and Validation. Prior to 

granting an exception, the Service will 

review the application and all 

supporting documentation, and the 

Service will conduct any necessary 

analysis to estimate the exception’s 

impact. 

(A) Notification. The Service will 

notify the assigned official agency prior 

to granting an exception for nonuse of 

service. 

(B) Challenge. The assigned official 

agency may challenge a proposed 

exception for any reason. To challenge 

a proposed exception, the assigned 

official agency must object in writing, 

and must submit supporting documents 

to the Service within 14 days after the 

date of notification. Documents must 

clearly identify the objection and 

support the identified reason for the 

challenge. 

(C) Determination. The Service will 

consider impacts on the assigned 

official agency, the applicant, and the 

potential gaining agency when deciding 

whether to grant an exception. These 

impacts may include, but are not 

limited to, the viability of the assigned 

official agency given the loss of 

business. The Service will also consider 

the impact on the integrity of the official 

system and confirm an exception would 

not undermine the congressional 

policies in section 2 of the United States 

Grain Standards Act. The Service will 

provide its decision in writing to the 

assigned official agency, the applicant, 

and the potential gaining agency. 

(v) False or Misleading Requests. If an 

applicant submits a request that the 

Service determines is false or 

misleading the Service may elect to 

limit them from submitting further 

requests for a period of up to 180 days. 

(vi) Renewal or Termination of 

Exception. The nonuse of service 

exception is for the period of the gaining 

agency’s designation. At the end of the 

designation, the Service will review the 

exception, and verify all criteria and 

information. If the exception still meets 

the nonuse criteria, the Service will 

renew the exception for the new 

designation period. In the event the 

gaining agency is no longer designated, 

the exception would automatically 

terminate and the customer would 

return to the assigned official agency. If 

all parties jointly agree to the 

termination of a nonuse of service 

exception, the Service will terminate the 

exception. In this case, the assigned 

official agency must resume service 

within 60 days of notification. 

(vii) Historic exceptions. All nonuse 

of service exceptions, that were in place 

as of March 30, 2019, will be 

incorporated into geographic boundaries 

of the gaining agencies. 

* * * * * 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2021–17609 Filed 8–18–21; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[EERE–2021–BT–STD–0012] 

RIN 1904–AF22 

Energy Conservation Program: 

Definitions for General Service Lamps 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed rulemaking 

and announcement of public meeting. 

SUMMARY: On January 19, 2017, the U.S. 

Department of Energy (‘‘DOE’’) 

published two final rules adopting 

revised definitions of general service 

lamp (‘‘GSL’’) and general service 

incandescent lamp (‘‘GSIL’’), and other 

supplemental definitions, to go into 

effect January 1, 2020. Prior to that 

effective date, on September 5, 2019, 

DOE withdrew the revised definitions of 

GSL, GSIL, and the other supplemental 

definitions. Upon further review and 

consideration, in this notice of proposed 

rulemaking (‘‘NOPR’’), DOE proposes to 

adopt the definitions of GSL and GSIL 

and the associated supplemental 

definitions set forth in the January 2017 

final rules. This document also 

announces a public meeting to receive 

comment on these proposed definitions. 

DATES: 

Meeting: DOE will hold a public 

meeting via webinar on Thursday, 

September 30, 2021, from 10:00 a.m. to 

4:00 p.m. See section V, ‘‘Public 

Participation,’’ for webinar registration 

information, participant instructions 

and information about the capabilities 

available to webinar participants. 

Comments: DOE will accept 

comments, data, and information 

regarding this NOPR no later than 

October 18, 2021. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments identified by docket 

number EERE–2021–BT–STD–0012, and 

by email: To 

2021STD0012GSLDefinitions@

ee.doe.gov. Include docket number 

EERE–2021–BT–STD–0012 in the 

subject line of the message. 

No telefacsimiles (‘‘faxes’’) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on this process, see section 

V of this document. 

Although DOE has routinely accepted 

public comment submissions through a 


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