[Federal Register Volume 70, Number 33 (Friday, February 18, 2005)]
[Rules and Regulations]
[Pages 8233-8236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3140]


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DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Parts 810

RIN 580-AA86


United States Standards for Wheat

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

ACTION: Final rule.

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SUMMARY: The Grain Inspection, Packers and Stockyards Administration 
(GIPSA) is revising the United States Standards for Wheat. GIPSA is 
amending 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 is not a contrasting class but is considered as wheat 
of other classes. GIPSA also is amending the grain standards by adding 
the sample size used to determine sample grade factors, because the 
standards should transmit this information. These actions are necessary 
to ensure market-relevant standards and grades and facilitate the 
marketing of grain.

EFFECTIVE DATE: May 1, 2006.

FOR FURTHER INFORMATION CONTACT: Patrick McCluskey at GIPSA, USDA, STOP 
3604, 1400 Independence Avenue, SW., Washington, DC 20250-3604; 
Telephone (202) 720-4684; faxed to (202) 720-7883.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

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

Executive Order 12988

    Executive Order 12988, Civil Justice Reform, instructs each 
executive agency to adhere to certain requirements in the development 
of new and revised regulations in order to avoid unduly burdening the 
court system. The final rule was reviewed under this Executive Order 
and no additional related information has been obtained since then. 
This final rule 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 final 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 final rule.

Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
requires agencies to consider the economic impact of each rule on small 
entities. GIPSA has determined that this final rule will not have a 
significant economic impact on a substantial number of small entities, 
as defined in the Regulatory Flexibility Act. 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. GIPSA 
is amending 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 is not a contrasting class but is considered as wheat 
of other classes. GIPSA also is amending the grain standards by adding 
the sample size used to determine sample grade factors, because the 
standards should transmit this information. The two changes made to the 
wheat standards in this final rule are needed to ensure market-relevant 
standards and grades. 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

[[Page 8234]]

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.

Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act of 1995, the existing 
information collection requirements are approved under OMB Number 0580-
0013. No additional collection or recordkeeping requirements are 
imposed on the public by this final rule. Accordingly, OMB clearance is 
not required by section 350(h) of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., or OMB's implementing regulation at 5 CFR part 
1320.
    GIPSA is committed to compliance with the Government Paperwork 
Elimination Act, which requires Government agencies, in general, to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible.

Background

    GIPSA established the class Hard White wheat on May 1, 1990. In the 
Final Rule (54 FR 48735), GIPSA stated ``that classification by 
varietal kernel characteristics rather than vitreousness of the kernel 
is practicable at this time for HWW (sic) and SWW (sic) since only a 
few hard endosperm white * * * varieties are being produced. GIPSA 
recognizes that if more hard endosperm varieties are released into the 
marketplace in the future, the classification system may become less 
practical.'' GIPSA 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, 
which was subsequently replaced with a new color line in 1999 (Program 
Bulletin 99-8). In 2001, environmental conditions caused a 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). Under Program Notice 01-06, ``All Hard White wheat 
varieties are considered Hard White wheat regardless of color.''
    On June 4, 2003, GIPSA proposed in the Federal Register, (68 FR 
33408) to amend the standards for wheat to create subclasses in the 
class hard white. GIPSA proposed the subclass names of Hard White wheat 
and Hard Amber White wheat, for wheat meeting and exceeding (darker 
than) the interpretive color line, respectively. Further, GIPSA 
proposed changing 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. Further, due to 
inquiries about the portion size used to determine Maximum Count Limits 
of Other Material, GIPSA proposed amending the standard to transmit 
this information.

Comment Review

    GIPSA published the proposed rule in the Federal Register on June 
4, 2003 (68 FR 33408) with a 60-day comment period ending August 4, 
2003. GIPSA received four comments during the comment period. One 
comment was submitted on behalf of the Hard White Wheat Working Group 
and the Hard White Wheat Advisory Committee (an aggregated wheat 
industry group comprised of wheat boards, committees, or commissions of 
the top ten Hard White wheat producing states; large grain 
merchandisers; not for profit wheat industry groups; and a private 
wheat breeding company). One comment each was received from the Kansas 
Wheat Commission, one wheat producer cooperative, and one individual 
wheat producer.
    On the basis of the comments received and other available 
information, GIPSA is implementing two of the proposed changes to the 
wheat standards. The following paragraphs address comments received 
regarding the proposed changes.

1. Subclass Designation

    GIPSA received four comments (one aggregated industry comment in 
support and three comments in opposition) on the proposal to establish 
subclasses. The aggregated wheat industry comment supported subclasses. 
This commenter did note that the proposal concerning adding a subclass 
to the Hard White wheat class was met with a spirited discussion, both 
pro and con. The commenter (1) supported the establishment of a 
subclass within the Hard White Wheat class; (2) recommended changing 
the subclass names to Bright Hard White Wheat for all hard white wheat 
that is equal to or lighter than the interpretive color line and Hard 
White Wheat for all hard white wheat that is darker than the 
interpretive color line, and continue the use of an interpretive color 
line and (3) recommended the use of an objective test to determine 
color line rather than a subjective approach.
    One comment opposed to establishment of subclasses in Hard White 
wheat was received from the Kansas Wheat Commission which represents 
producers responsible for production of more than 50 percent of all 
Hard White wheat grown in the United States. The comment stated that 
since Hard White wheat is moving in the marketplace under the current 
method of grading, establishing a subclass would create a perception 
that wheat does not meet the established color line is of lower 
quality, resulting in discounts to producers. The commenter stated that 
establishing a subclass would create supply problems in Hard White 
wheat and also objected to the word ``Amber'' in the subclass name.
    Another opposing commenter felt that because the color differences 
are environmentally induced, and occur sporadically, grain producers 
and marketers would be damaged by subclasses, vis-[agrave]-vis not 
having product available to sell to the markets they had worked to 
develop. Another comment opposing the proposed rule predicted 
``marketing disruption and chaos resulting in economic loss to American 
wheat producers is the inevitable result whenever Mother Nature gives 
us a darker colored crop if these arbitrary rule changes are allowed to 
become law''.
    Taking into account the lack of consensus among stakeholders, GIPSA 
believes that creating subclasses in Hard White wheat would not be in 
the best interest of the industry. There is no market need at this 
time. Based on the comments received and other available information, 
GIPSA will not establish subclasses in Hard White wheat. GIPSA will, 
however, maintain the Hard White wheat color line and, as currently 
done, continue to certify, upon request, that the sample color exceeds 
or is lighter than the color line. This provides additional information 
about sample color to satisfy those customers for whom color is 
important.

2. Contrasting Classes

    GIPSA proposed changing 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. One 
comment was received from the aggregated industry group in support of 
the proposal. No comment was received opposing the proposal. Therefore 
as set forth in the proposal, GIPSA is amending the grain standards to 
change the definition of contrasting classes in Hard Red Winter wheat 
and Hard Red

[[Page 8235]]

Spring wheat such that Hard White wheat is not a contrasting class but 
is 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).

3. Sample Size

    GIPSA proposed to amend the wheat standard to specify the amount of 
wheat upon which sample grade factor determinations are made. No 
comment was received either supporting or opposing the proposal. 
Earlier versions of the standard contained this information and GIPSA 
believes the standard should transmit this information. Therefore, as 
set forth in the proposal, GIPSA will amend the wheat standards to 
include this information.

Final Action

    On the basis of these comments and other available information, 
GIPSA has decided to revise the wheat standards as proposed with the 
exception of establishing subclasses in Hard White wheat. This final 
rule is effective on May 1, 2006, the beginning of the 2006 wheat 
harvest, and will facilitate domestic and export marketing of wheat.

List of Subjects in 7 CFR Part 810

    Export, grain.


0
For reasons set out in the preamble, 7 CFR Part 810 is amended as 
follows:

PART 810--OFFICIAL UNITED STATES STANDARDS FOR GRAIN

0
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.)

0
2. Section 810.2202 is amended by revising paragraph (b) (1) to read as 
follows:


810.2202  Definition of other terms.

* * * * *
    (b) * * *
    (1) Durum wheat, Soft White wheat, and Unclassed wheat in the 
classes Hard Red Spring wheat and Hard Red Winter wheat.
* * * * *

0
3. Section 810.2204 is amended by revising paragraph (a) to read as 
follows:


Sec.  810.2204  Grades and grade requirements for wheat.

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

                                          Grades and Grade Requirements
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                                                                                   Grades U.S. Nos.
                          Grading factors                           --------------------------------------------
                                                                        1        2        3        4        5
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                                            Minimum pound limits of:
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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
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                                           Maximum percent limits of:
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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
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                                            Maximum count limits of:
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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
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U.S. Sample grade is Wheat that:

[[Page 8236]]

 
    (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..........
    (c) Is heating or of distinctly low quality. ...............................................................
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\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.

* * * * *

    Dated: February 15, 2005.
David R. Shipman,
Deputy Administrator, Grain Inspection, Packers and Stockyards 
Administration.
[FR Doc. 05-3140 Filed 2-17-05; 8:45 am]
BILLING CODE 3410-EN-P