[Federal Register Volume 68, Number 107 (Wednesday, June 4, 2003)]
[Proposed Rules]
[Pages 33408-33412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13772]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 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.
 
 ========================================================================
 

  Federal Register / Vol. 68, No. 107 / Wednesday, June 4, 2003 / 
Proposed Rules  

[[Page 33408]]



DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Parts 810

[Docket No. FGIS-2003-001]


United States Standards for Wheat.

AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Grain Inspection Service (FGIS), a program of the 
Grain Inspection, Packers and Stockyards Administration (GIPSA), 
proposes to revise the United States Standards for Wheat to amend the 
definition of the class Hard White wheat to insert subclasses. The 
proposed rule would also change the definition of Contrasting Classes 
for Hard Red Winter wheat and Hard Red Spring wheat. Additionally, the 
rule will insert language into the wheat standard to specify the sample 
size used to determine sample grade factors. These changes would 
further help to facilitate the marketing of wheat.

DATES: Comments must be received on or before August 4, 2003.

ADDRESSES: Written comments must be submitted to Tess Butler at GIPSA, 
USDA, STOP 3604, 1400 Independence Avenue, SW., Washington, DC 20250-
3604; faxed to (202) 690-2755; or E-mailed to [email protected]. 
Please indicate your comment refers to Docket No. FGIS-2003-001, United 
States Standards for Wheat.
    All comments received are available for public inspection at Room 
1652, South Building, 1400 Independence Avenue, SW., Washington, DC, 
during regular business hours (7 CFR 1.27 (b)).

FOR FURTHER INFORMATION CONTACT: Patrick McCluskey, telephone (202) 
720-4684 at GIPSA, USDA, STOP 3630, 1400 Independence Avenue, SW., 
Washington, DC, 20250-3630; Fax Number (202) 720-1015.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    The Department of Agriculture is issuing this rule in conformance 
with Executive Order 12866.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This action is not intended to have a retroactive 
effect. The United States Grain Standards Act provides in Section 87g 
that no State or subdivision may require or impose any requirements or 
restrictions concerning the inspection, weighing, or description of 
grain under the Act. Otherwise, this proposed rule will not preempt any 
State or local laws, regulations, or policies, unless they present any 
irreconcilable conflict with this rule. There are no administrative 
procedures, which must be exhausted prior to any judicial challenge to 
the provisions of this proposed rule.

Regulatory Flexibility Act Certification

    GIPSA has determined that this proposed 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 et seq.). 
Under the provisions of the United States Grain Standards Act, grain 
exported from the United States must be officially inspected and 
weighed. Mandatory inspection and weighing services are provided by 
GIPSA at 33 export facilities. All of these facilities are owned by 
multi-national corporations, large cooperatives, or public entities 
that do not meet the requirements for small entities established by the 
Small Business Administration. Further, the regulations are applied 
equally to all entities. The U.S. wheat industry, including producers 
(approximately 240,000), handlers (approximately 6,800 domestic 
elevators), traders (approximately 200 active wheat futures traders), 
processors (approximately 184 flour mills), merchandisers and exporters 
are the primary users of the U.S. Standards for Wheat and utilize the 
official standards as a common trading language to market wheat. We 
assume that some of the entities may be small. Further, the United 
States Grain Standards Act (USGSA) (7 U.S.C. 87f-1) requires the 
registration of all persons engaged in the business of buying grain for 
sale in foreign commerce. In addition, those individuals who handle, 
weigh, or transport grain for sale in foreign commerce must also 
register. The USGSA regulations (7 CFR 800.30) define a foreign 
commerce grain business as persons who regularly engage in buying for 
sale, handling, weighing, or transporting grain totaling 15,000 metric 
tons or more during the preceding or current calendar year. At present, 
there are 90 registrants who account for practically 100 percent of 
U.S. wheat exports, which for fiscal year (FY) 2002 totaled 
approximately 24,073,138 metric tons (MT). While most of the 90 
registrants are large businesses, we assume that some may be small.

Background

    GIPSA established the class Hard White wheat on May 1, 1990. In the 
Final Rule (54 FR 48735), FGIS stated ``that classification by varietal 
kernel characteristics rather than vitreousness of the kernel is 
practicable at this time for HWW and SWW since only a few hard 
endosperm white white (sic) varieties are being produced. FGIS 
recognizes that if more hard endosperm varieties are released into the 
marketplace in the future, the classification system may become less 
practical.'' FGIS further stated ``* * * if clear quality or market 
distinctions develop * * * it would consider subclasses at a future 
date''.
    At that time, a minimum visual color line was established based on 
the variety Klasic, which was produced in California. GIPSA abandoned 
the Klasic color line in 1994, and in 1995 GIPSA issued Program 
Bulletin 95-15 which in part stated that GIPSA would class all hard 
endosperm white wheat as hard white. Due to pending release of a hard 
white variety which closely resembled hard red spring, GIPSA, with 
industry input and support, established a new color line in 1999 
(Program Bulletin 99-8).
    In 2001, environmental conditions caused a significant increase in 
the vitreous kernel content, hence darker visual appearance in some 
varieties of hard white, resulting in a GIPSA decision to suspend the 
color line for classification purposes (Program Notice 01-06). The 
rationale for abandoning the color line was that color had not been an 
issue in hard white, as grain handlers efficiently segregated it from

[[Page 33409]]

red wheat. Producers received premiums for hard white where it was 
appropriate and processors used the hard white primarily without 
incident. In addition to the 2001 environmental effect on color, the 
Hard White wheat market has been impacted by the introduction of many 
new varieties released by both public and private breeding programs. 
GIPSA proposes to amend the U.S. Standards for Wheat to better reflect 
the current and future needs of the Hard White wheat market.
    The specific issues for consideration in this rule are (1) 
designation of subclasses in the class hard white, and (2) amending the 
definition of Contrasting Classes in hard red wheat classes. While 
proposing to amend the standards due to Hard White Wheat issues, GIPSA 
will also propose to include language in the standards which states the 
amount of wheat within which sample grade factors are determined. This 
action is proposed to help clarify the application of the standards for 
U.S. Sample Grade factors.

1. Subclass Designation

    Under Program Notice 01-06, ``All hard white wheat varieties are 
considered hard white wheat regardless of color.'' A common conception 
is that the domestic milling industry will accept any hard white 
regardless of seed coat color. This may or may not be true depending on 
which milling company is being interviewed. Discussions with some U.S. 
millers led to the conclusion that some millers do consider seed coat 
color when making purchase and processing decisions. Some milling 
companies do not yet process much Hard White wheat, thus have few 
concerns about bran color, and feel if darker Hard White wheat 
processes well and has acceptable protein content, there is no 
perceived problem due to bran color.
    Depending on the target flour product and the miller's flour 
extraction goal, the darker colors can present processing challenges. 
For some high extraction rate flours, darker seed coat color 
anticipated darker flour color hence final product color problems, 
requiring millers to add additional bleaching agents and/or cut flour 
streams in order to meet final product specifications. These processes 
add additional production costs.
    In addition to the domestic millers' position, marketing of Hard 
White wheat to export customers must be considered. Currently there is 
interest in Hard White wheat from international customers. Many of 
these customers view Australian wheat as the benchmark of seed coat 
color. The major Asia-Pacific customers of U.S. wheat may not have an 
incentive to purchase Hard White wheat if they view the seed coat color 
as a detriment. Despite assigning the reason for darker color in 2001 
to vitreous kernel content, a high percentage of which is perceived to 
be a benefit in milling (e.g. dark northern spring and hard amber 
durum), these customers may be hesitant to buy dark Hard White wheat 
because it may not meet their processing needs. Other international 
customers may have cultural considerations impacting purchase 
decisions: red wheat is viewed as appropriate for feeding animals while 
white wheat is viewed as appropriate for human food. The annual effect 
of environment cannot be predicted, thus making it impossible to say 
whether hard white from a given future harvest will be vitreous or not, 
whether bran coat will be light or dark, and which varieties will be 
more susceptible to environmental influences and genetic x 
environmental interactions. One way to facilitate marketing of hard 
white is to create subclasses which delineate a particular desirable 
quality factor.
    Subclasses tend to highlight positive quality factors. In the case 
of Hard Red Spring and Durum wheat, subclasses based on vitreous kernel 
content convey quality factors which are considered indicative of 
improved performance, vis-[aacute]-vis milling yield, and premiums are 
often paid to sellers for these improved performance factors. To 
delineate the desirable nature of Hard White wheat including both 
lighter and darker kernels, the subclass approach could be used for 
Hard White wheat.
    For Hard White wheat, the proposed subclass names are Hard White 
wheat and Hard Amber White wheat, for wheat meeting and exceeding 
(darker than) the interpretive color line, respectively. These names 
descriptively reflect the appearance of the kernel color in the overall 
sample. The naming of the subclasses maintains the convention utilized 
for Soft White wheat, which includes the subclass Soft White Wheat.

2. Contrasting Classes

    Contrasting classes and wheat of other classes are ``grade 
determining'' factors. Contrasting classes in wheat essentially means 
the presence of wheat of opposite color commingled with the dominant 
class, thus white wheat is contrasting in red wheat and red wheat is 
contrasting in white wheat. A special case is Durum wheat, which is 
contrasting in all other market classes except Unclassed wheat, and all 
other classes are contrasting in Durum wheat. Wheat of other classes 
essentially means wheat of the same color but of different endosperm 
texture or growth habit, thus soft red winter and hard red spring are 
both wheat of other classes in the market class Hard Red Winter wheat.
    Grade limits for contrasting classes are substantially tighter than 
the grade limits for wheat of other classes (2.0 percent vs. 5.0 
percent, respectively, at U.S. 2). The tighter grade limit for 
contrasting classes is due to the perception that quality is 
compromised by the appearance of a contrasting class and the potential 
effect on flour color and end product color. In the case of durum 
wheat, the reasons are the difference in milling behavior of durum, the 
color of flour from durum and the need to make primarily semolina from 
Durum wheat.
    Commingling of hard white and hard red wheat is problematic 
depending on which class is dominant. The presence of red wheat in 
white wheat may degrade the visual appearance of the lot and may raise 
quality concerns. Since Hard White wheat is a relatively new class, it 
is important to keep its quality as high as possible in order to expand 
its marketability, both domestically and internationally.
    While flour functionality is not compromised, flour color and 
enzymatic browning problems may result when these classes are 
commingled. For some domestic millers, and most millers overseas, flour 
color is more critical than flour ash. For example, millers selling 
flour for Asian noodle manufacturing would be highly critical of the 
presence of red wheat in white wheat, as final product color would be 
jeopardized. These millers typically grind Australian wheat, which has 
only white seed coats. While this currently applies primarily to non-
U.S. millers, noodles are growing in popularity globally and will 
likely become an opportunity for U.S. millers in the future.
    In the second case, red wheat contains the enzyme polyphenol 
oxidase (PPO) which when activated, causes the color of a raw noodle to 
become darker--a serious defect in noodle making. White wheat has much 
lower PPO than red wheat, therefore causes negligible color change in 
raw noodles. Minimizing the amount of red wheat in white wheat cargoes 
is one way to improve the performance of Hard White wheat.
    The presence of white wheat in red wheat is perceived by most as 
different from the presence of red wheat in white wheat. It is useful 
to examine the situation for classing wheat, especially contrasting 
classes in hard red. The current practice is to select only distinct 
white and lightly colored kernels as contrasting. Darker kernels are 
left in

[[Page 33410]]

the sample and count as red wheat kernels.
    Most flour milling companies have little to no concern over the 
amount of Hard White wheat in a lot of hard red wheat. For these 
millers, there would be no reason to consider hard white as a 
contrasting class in hard red wheat. The proposed rule would change the 
definition of Contrasting Classes for Hard Red Winter wheat and Hard 
Red Spring wheat such that Hard White wheat is not a contrasting class 
in these two red wheat classes.
    The following tables illustrate the current and proposed changes 
for contrasting classes.

                                                Table I (Current)
----------------------------------------------------------------------------------------------------------------
                                                         Primary class
 Minor class  --------------------------------------------------------------------------------------------------
                     DU            HRS           HRW           SRW           HW            SWH          UNCL
----------------------------------------------------------------------------------------------------------------
          DU   .............             CCL           CCL           CCL           CCL           CCL         WOCL
--------------
         HRS               CCL............           WOCL          WOCL            CCL           CCL         WOCL
--------------
         HRW               CCL         WOCL ............           WOCL            CCL           CCL         WOCL
--------------
         SRW               CCL         WOCL          WOCL ............             CCL           CCL         WOCL
--------------
          HW               CCL           CCL           CCL         WOCL ............           WOCL          WOCL
--------------
         SWH               CCL           CCL           CCL         WOCL          WOCL ............           WOCL
--------------
          UNCL             CCL           CCL           CCL           CCL           CCL           CCL............
----------------------------------------------------------------------------------------------------------------
CCL: Contrasting class.
WOCL: Wheat of other Classes.


                                               Table II (Proposed)
----------------------------------------------------------------------------------------------------------------
                                                         Primary Class
 Minor class  --------------------------------------------------------------------------------------------------
                     DU            HRS           HRW           SRW           HW            SWH          UNCL
----------------------------------------------------------------------------------------------------------------
          DU   .............             CCL           CCL           CCL           CCL           CCL         WOCL
--------------
         HRS               CCL............           WOCL          WOCL            CCL           CCL         WOCL
--------------
         HRW               CCL         WOCL ............           WOCL            CCL           CCL         WOCL
--------------
         SRW               CCL         WOCL          WOCL ............             CCL           CCL         WOCL
--------------
          HW               CCL         WOCL          WOCL          WOCL ............           WOCL          WOCL
--------------
         SWH               CCL           CCL           CCL         WOCL          WOCL ............           WOCL
--------------
          UNCL             CCL           CCL           CCL           CCL           CCL           CCL............
----------------------------------------------------------------------------------------------------------------
CCL: Contrasting class.
WOCL: Wheat of other Classes.

3. Sample Size for Sample Grade Factors

    GIPSA has received inquiries about the portion size of wheat used 
to determine Maximum Count Limits of Other Material such as stones, 
crotalaria seeds, glass, etc., these being Sample Grade factors. In the 
Official United States Standards for Grain (7 CFR part 810), subparts 
for certain grains define this portion size. The procedures in the 
Grain Inspection Handbook--Book II specify the portion size upon which 
the determination of Other Materials is made on wheat. This proposed 
change is needed because the standards should transmit this 
information. Thus GIPSA proposes to amend subpart M to define this 
amount.

Proposed GIPSA Action

    GIPSA is issuing this proposed rule to invite comments and 
suggestions from all interested persons on how GIPSA can further 
enhance and best facilitate the marketing of Hard White wheat by 
inserting subclasses. In addition, the proposed rule would also change 
the definition of contrasting classes for Hard Red Winter wheat and 
Hard Red Spring wheat, and specify the sample size used to determine 
sample grade factors.

Subclass Designation

    GIPSA is proposing to establish subclasses in Hard White wheat 
called Hard White wheat and Hard Amber White wheat. Further, GIPSA will 
use the existing interpretive color line as the benchmark for 
determining subclass, whereby wheat darker than the interpretive color 
line will be classed as Hard Amber White wheat.
    To accomplish this, GIPSA proposes to revise Sec.  810.2202(a)(5) 
to read: ``Hard White wheat. All hard endosperm white wheat varieties. 
This class is divided into the following two subclasses:
    (i) Hard White wheat. Wheat which is lighter than or equivalent in 
color to the interpretive color line photograph.
    (ii) Hard Amber White wheat. Wheat which is darker than the 
interpretive color line photograph.''

Contrasting Classes

    GIPSA is proposing to amend the grain standards to change the 
definition of contrasting classes in Hard Red Winter wheat and Hard Red 
Spring wheat such that Hard White wheat and

[[Page 33411]]

its subclasses are not contrasting classes but are considered as wheat 
of other classes. The grade limit will remain unchanged. For kernel 
identification, Hard White wheat kernels would be determined by visual 
assessment and would include the dark colored, amber, white wheat 
kernels, per the Grain Inspection Handbook, Book II, Chapter 13, 
Section 13.26. In the case where samples challenge the normal visual 
inspection process, the alkali test would be utilized to determine 
kernel color (FGIS-Program Notice 01-07).
    GIPSA proposes to revise Sec.  810.2202(b)(1) Contrasting Classes 
to read: ``Durum wheat, Soft White wheat, and Unclassed wheat in the 
classes Hard Red Spring wheat and Hard Red Winter wheat.''.

Sample Size

    GIPSA is proposing to amend the grain standards for wheat to 
specify the amount of wheat upon which sample grade factor 
determinations are made. GIPSA proposes to amend Sec.  810.2204 Grade 
and grade requirements of wheat to read: ``Other material in one 
kilogram:'' under the sub-heading ``Maximum count limits of:''.
    Comments, including data, views, and other information are 
solicited from interested persons. Pursuant to section 4(b)(1) of the 
United States Grain Standards Act, as amended (7 U.S.C. 76(b)(1)), upon 
request, such information concerning changes to the standards may be 
presented orally in an informal manner. Also, pursuant to this section, 
no standards established or amendments or revocations of standards are 
to become effective less than one calendar year after promulgation 
unless, in the judgement of the Secretary, the public health, interest, 
or safety require that they become effective sooner.

List of Subjects in 7 CFR Part 810

    Export, Grain.

    For reasons set out in the preamble 7 CFR Part 810 is proposed to 
be amended as follows:

PART 810--OFFICIAL UNITED STATES STANDARDS FOR GRAIN

    1. The authority citation for Part 810 continues to read as 
follows:

    Authority : Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C. 
71 et seq.)

    2. Section 810.2202 is amended by revising paragraphs (a)(5) and 
(b)(1) to read as follows:


Sec.  810.2202  Definition of other terms.

* * * * *
    (5) Hard White wheat. All hard endosperm white wheat varieties. 
This class is divided into the following two subclasses:
    (i) Hard White wheat. Wheat which is lighter than or equivalent in 
color to the interpretive color line photograph.
    (ii) Hard Amber White wheat. Wheat which is darker than the 
interpretive color line photograph.
* * * * *
    (b) * * *
    (1) Durum wheat, Soft White wheat, and Unclassed wheat in the 
classes Hard Red Spring wheat and Hard Red Winter wheat.
* * * * *
    3. Section 810.2204(a) is revised as follows:

Grades and Grade Requirements


Sec.  810.2204  Grades and grade requirements for wheat.

    (a) Grades and grade requirements for all classes of wheat, except 
Mixed wheat.

----------------------------------------------------------------------------------------------------------------
                                                                           Grades U.S. Nos.
                   Grading factors                   -----------------------------------------------------------
                                                           1           2           3           4           5
----------------------------------------------------------------------------------------------------------------
                                            Minimum pound limits of:
----------------------------------------------------------------------------------------------------------------
Test weight per bushel:
    Hard Red Spring wheat or White Club wheat.......        58.0        57.0        55.0        53.0        50.0
    All other classes and subclasses................        60.0        58.0        56.0        54.0        51.0
-----------------------------------------------------
                                           Maximum percent limits of:
----------------------------------------------------------------------------------------------------------------
Defects:
    Damaged kernels:
        Heat (part of total)........................         0.2         0.2         0.5         1.0         3.0
        Total.......................................         2.0         4.0         7.0        10.0        15.0
    Foreign material................................         0.4         0.7         1.3         3.0         5.0
    Shrunken and broken kernels.....................         3.0         5.0         8.0        12.0        20.0
        Total \1\...................................         3.0         5.0         8.0        12.0        20.0
Wheat of other classes: \2\
    Contrasting classes.............................         1.0         2.0         3.0        10.0        10.0
        Total \3\...................................         3.0         5.0        10.0        10.0        10.0
    Stones..........................................         0.1         0.1         0.1         0.1         0.1
-----------------------------------------------------
                                            Maximum count limits of:
----------------------------------------------------------------------------------------------------------------
Other material in one kilogram:
    Animal filth....................................         1           1           1           1           1
    Castor beans....................................         1           1           1           1           1
    Crotalaria seeds................................         2           2           2           2           2
    Glass...........................................         0           0           0           0           0
    Stones..........................................         3           3           3           3           3
    Unknown foreign substances......................         3           3           3           3           3
        Total \4\...................................         4           4           4           4           4
Insect-damaged kernels in 100 grams.................        31          31          31          31          31
-----------------------------------------------------
U.S. Sample grade is Wheat that:
(a) Does not meet the requirements for U.S. Nos. 1, 2, 3, 4, or 5; or
(b) Has a musty, sour, or commercially objectionable foreign odor (except smut or garlic odor) or

[[Page 33412]]

 
(c) Is heating or of distinctly low quality.
----------------------------------------------------------------------------------------------------------------
\1\ Includes damaged kernels (total), foreign material, shrunken and broken kernels.
\2\ Unclassed wheat of any grade may contain not more than 10.0 percent of wheat of other classes.
\3\ Includes contrasting classes.
\4\ Includes any combination of animal filth, castor beans, crotalaria seeds, glass, stones, or unknown foreign
  substance.

* * * * *

Donna Reifschneider,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 03-13772 Filed 6-3-03; 8:45 am]
BILLING CODE 3410-EN-U