[Federal Register Volume 70, Number 97 (Friday, May 20, 2005)]
[Proposed Rules]
[Pages 29212-29214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10094]


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

  Federal Register / Vol. 70, No. 97 / Friday, May 20, 2005 / Proposed 
Rules  

[[Page 29212]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 02-058-2]


Flag Smut; Importation of Wheat and Related Products

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations regarding the 
importation of wheat and related articles by removing the prohibitions 
related to flag smut. Based on a number of considerations, we have 
concluded that U.S. wheat would not be at risk if those prohibitions 
were removed. We would, however, continue to prohibit the importation 
of wheat and related articles from flag smut-affected countries until a 
risk evaluation can be completed to ensure that those articles do not 
introduce other plant pests. This action would remove flag smut-related 
prohibitions that no longer appear to be necessary while continuing to 
provide protection against other potential pests or diseases of wheat.

DATES: We will consider all comments that we receive on or before July 
19, 2005.

ADDRESSES: You may submit comments by any of the following methods:
     EDOCKET: Go to http://www.epa.gov/feddocket to submit or 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once you have entered 
EDOCKET, click on the ``View Open APHIS Dockets'' link to locate this 
document.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 02-058-2, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 02-058-2.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information on the Internet at http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. William D. Aley, Senior Import 
Specialist, Phytosanitary Issues Management, PPQ, APHIS, 4700 River 
Road Unit 140, Riverdale, MD 20737-1228; (301) 734-8262.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Wheat Diseases'' (7 CFR 319.59 
through 319.59-4, referred to below as the regulations) prohibit or 
restrict the importation of wheat and related articles into the United 
States from certain parts of the world to prevent the introduction of 
foreign strains of flag smut and Karnal bunt. This proposed rule 
concerns only the prohibitions on flag smut. Flag smut is a plant 
disease caused by a highly infective fungus, Urocystis agropyri, which 
attacks wheat and substantially reduces its yield.
    Flag smut was first described in 1868 in Australian wheat fields. 
Affected plants within the growing crop are often severely stunted and 
produce excessive numbers of tillers. Unlike other bunts and smuts of 
wheat, flag smut does not affect the quality of harvested grain for 
feed or flour. Flag smut of wheat was first discovered in the United 
States in 1919, and a quarantine on wheat from countries having flag 
smut was put in effect. Until the 1930s, flag smut was a significant 
disease of wheat in the United States, but has recently been found only 
on wheat in the Pacific Northwest when the seed is sown in late August 
and early September at depths of more than 2 inches.
    To address the risk presented by foreign strains of flag smut, the 
regulations have prohibited the importation, except by the United 
States Department of Agriculture under a departmental permit, of 
certain articles from specified countries and localities. Specifically, 
the regulations prohibit the importation of the following articles of 
Triticum spp. (wheat) or Aegilops spp. (barb goatgrass, goatgrass):
     Seeds;
     Plants;
     Straw (other than straw, with or without heads, that has 
been processed or manufactured for use indoors, such as for decorative 
purposes or for use as toys);
     Chaff; and
     Products of the milling process (i.e., bran, shorts, 
thistle sharps, and pollards) other than flour.
    The regulations also prohibit the importation of seeds of Melilotus 
indica (annual yellow sweetclover) and seeds of any other field crops 
that have been separated from wheat during the screening process.
    The countries and localities from which the importation of those 
articles is prohibited are listed in Sec.  319.59-3(b) of the 
regulations. The listed countries and localities are: Afghanistan, 
Algeria, Armenia, Australia, Azerbaijan, Bangladesh, Belarus, Bulgaria, 
Chile, China, Cyprus, Egypt, Estonia, Falkland Islands, Georgia, 
Greece, Guatemala, Hungary, India, Iran, Iraq, Israel, Italy, Japan, 
Kazakhstan, Kyrgyzstan, Latvia, Libya, Lithuania, Moldova, Morocco, 
Nepal, North Korea, Oman, Pakistan, Portugal, Romania, Russia, Spain, 
Tajikistan, Tanzania, Tunisia, Turkey, Turkmenistan, South Africa, 
South Korea, Ukraine, Uzbekistan, and Venezuela.
    On February 7, 2003, we published an advanced notice of proposed 
rulemaking (ANPR) in the Federal Register (68 FR 6362-6363, Docket No. 
02-058-1) in which we announced that, based on a risk assessment,\1\ we 
were

[[Page 29213]]

considering easing restrictions on the importation of wheat and related 
articles from those countries and solicited comments on whether and how 
we should amend the regulations. In particular, we asked the public for 
comments and recommendations regarding the current prohibitions related 
to foreign strains of flag smut, whether lesser restrictions or 
safeguards might be necessary if those prohibitions were removed, 
whether we should require the completion of risk assessments before 
allowing wheat or related articles to be imported from countries 
covered by the flag smut regulations and from those countries not 
currently covered by the regulations, and the effects that any of these 
options might have on wheat producers, consumers, and other related 
entities in the United States.
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    \1\ The pest risk assessment, titled ``Evaluation of the need 
for continued quarantine of foreign strains of the wheat flag smut 
pathogen, Urocystis agropyri (Preuss) Schroet,'' may be viewed on 
the EDOCKET Web site (see ADDRESSES above for instructions for 
accessing EDOCKET) or on the Internet at http://www.cphst.org/docs/FlagSmut.pdf.
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    We solicited comments on the ANPR for 60 days, ending April 8, 
2003. We received nine comments by that date. They were from State and 
Federal researchers, plant pathologists, wheat industry associations, 
and an agricultural import/export company. All of the commenters 
supported the removal of the flag smut-related prohibitions. None of 
the commenters supported the imposition of lesser restrictions or 
safeguards related to flag smut.
    Based on our review of the public comments and the findings of the 
pest risk analysis, we are proposing to amend the regulations to 
eliminate the flag smut-based prohibition on the importation of wheat 
and related articles from those countries. We would also remove the 
definition of foreign strains of flag smut from Sec.  319.59-1. We are, 
however, proposing to continue prohibitions on wheat and related 
articles from those countries pending the completion of an evaluation 
by APHIS of the potential risks associated with the articles.
    The amended regulations would provide an address to which the 
national plant protection organization of each country could write to 
request that such an evaluation be performed. If supported by the 
results of the risk evaluation, we would then take action to remove the 
country from the ``prohibited pending'' list.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    We are proposing to amend the regulations regarding the importation 
of wheat and related articles by removing the prohibitions related to 
flag smut. Based on a number of considerations, we have concluded that 
U.S. wheat would not be at risk if those prohibitions were removed. We 
would, however, continue to prohibit the importation of wheat and 
related articles from flag smut-affected countries until a risk 
evaluation can be completed to ensure that those articles do not 
introduce other plant pests. This action would remove flag smut-related 
prohibitions that no longer appear to be necessary while continuing to 
provide protection against other potential pests or diseases of wheat.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of their rules on small businesses, organizations, and 
governmental jurisdictions and to use flexibility to provide regulatory 
relief when regulations create economic disparities between different-
sized entities. According to the Small Business Administration's 
(SBA's) Office of Advocacy, regulations create economic disparities 
based on size when they have a significant impact on a substantial 
number of small entities.
    We expect that this proposed rule would affect domestic producers 
and processors of wheat. It is likely that the entities affected would 
be small according to Small Business Administration (SBA) guidelines. 
As detailed below, information available to APHIS indicates that the 
effects on these small entities would not be significant.
    Affected U.S. wheat producers and processors are expected to be 
small based on the 2002 Census of Agriculture data. According to the 
census, there were 169,528 farms in the United States that sold wheat, 
collectively valued at $5.64 billion. SBA guidelines for entities in 
Wheat Farming and Wheat Farming, Field, and Seed Production (North 
American Industry Classification System [NAICS] code 111140) classify 
producers in these farm categories as small entities if their total 
annual sales are no more than $750,000. APHIS does not have information 
on the size distribution of domestic wheat producers, but according to 
2002 Census data, there were a total of 2,128,892 farms in the United 
States. Of this number, approximately 97 percent had total annual sales 
of less than $500,000 in 2002, which is well below the SBA's small 
entity threshold for commodity farms. This indicates that the majority 
of farms are considered small by SBA standards, and it is reasonable to 
assume that most of the 169,528 wheat farms that could be affected by 
the proposed rule would also qualify as small.
    Additionally, there were 157 wheat milling establishments reported 
in the census. Of these entities, 153 were wheat flour (except flour 
mixes) milling establishments (NAICS code 3112111), with a total of 
6,720 employees, and 4 were wheat products (except flour) milling 
establishments (NAICS code 3112114), with a total of 288 employees. In 
the case of these milling establishments, those entities with fewer 
than 500 employees are considered small by SBA standards. Therefore, 
all 157 milling establishments are considered to be small entities.
    The United States is the world's leading wheat exporter. The 
average annual value of exported U.S. wheat over the last 5 years is 
$4.4 billion. The volume of wheat exports from the United States has, 
on average, been 14 times greater than import volume.
    Annual costs and benefits that would be associated with removing 
the import prohibitions associated with flag smut would depend upon the 
level of U.S. domestic wheat production as well as on import levels. 
The lower the import level when compared to the level of domestic 
availability after export, the lower the potential impact of this 
proposed action on the economic welfare of domestic wheat importers and 
producers.
    Nevertheless, the economic impact on U.S. domestic producers and 
processors of wheat should be negligible since the percentage of 
imported wheat has been relatively low (6 percent of the domestic 
supply) when compared with the domestic supply levels overall. In 
particular, domestic wheat producers should not face competition from 
foreign producers given the small percentage of imported wheat in the 
domestic supply.
    Given the relatively small amount of wheat in the domestic supply 
when compared to U.S. wheat production and the size of the domestic 
supply overall the proposed change would not have any measurable 
economic affect on either domestic producers or processors of wheat.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

[[Page 29214]]

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would continue to read as 
follows:

    Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 
CFR 2.22, 2.80, and 371.3.


Sec.  319.59-1  [Amended]

    1. In section 319.59-1, the definition for Foreign strains of flag 
smut would be removed.
    2. In section 319.59-2, the introductory text of paragraph (b) 
would be revised to read as set forth below and paragraph (b)(3) would 
be amended by removing the words ``(including foreign strains of flag 
smut).''


Sec.  319.59-2  General import prohibitions; exceptions.

* * * * *
    (b) Triticum spp. plants, articles listed in Sec.  319.59-3 as 
prohibited importation pending risk evaluation, and articles regulated 
for Karnal bunt in Sec.  319.59-4(a) may be imported by the U.S. 
Department of Agriculture for experimental or scientific purposes if:
* * * * *
    3. In Sec.  319.59-3, the section heading and the introductory text 
of the section would be revised to read as follows:


Sec.  319.59-3  Articles prohibited importation pending risk 
evaluation.

    The articles listed in paragraph (a) of this section from the 
countries and localities listed in paragraph (b) of this section are 
prohibited from being imported or offered for entry into the United 
States, except as provided in Sec.  319.59-2(b), pending the completion 
of an evaluation by APHIS of the potential pest risks associated with 
the articles. The national plant protection organization of any listed 
country or locality may contact APHIS \1\ to initiate the preparation 
of a risk evaluation. If supported by the results of the risk 
evaluation, APHIS will take action to remove that country or locality 
from the list in paragraph (b) of this section.
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    \1\ Requests should be submitted in writing to Phytosanitary 
Issues Management, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, 
MD 20737-1236.
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* * * * *

    Done in Washington, DC, this 13th day of May 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-10094 Filed 5-19-05; 8:45 am]
BILLING CODE 3410-34-P