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Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules described in a Notice to Trade published on March 5, 2019.5

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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. 79f2B, 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 OAs inability to provide service within 5 Restoring 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.
6 Public Law 115334 sec. 12610a1E.
7 Public Law 115334 sec. 12610a2.

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six hours from the requested service.
Further, the OA would have to be unable to provide requested services within timeframes established in the OAs 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 800.116b and OA fee schedules. FGIS
also received requests to clarify which services are included in a timely service exception. Industry feedback indicates some OAs 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
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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 800.117b1, 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 800.160c; 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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