[Federal Register Volume 70, Number 227 (Monday, November 28, 2005)]
[Rules and Regulations]
[Pages 71211-71212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23329]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 227 / Monday, November 28, 2005 / 
Rules and Regulations  

[[Page 71211]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 02-058-3]


Flag Smut; Importation of Wheat and Related Products

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending 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 will not be at risk if those prohibitions are removed. We will, 
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 removes 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: Effective Date: December 28, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Shirley Wager-Page, Branch Chief, 
Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road, 
Unit 140, Riverdale, MD 20737-1232; (301) 734-8453.

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.
    On May 20, 2005, we published in the Federal Register (70 FR 29212-
29214, Docket No. 02-058-2) a proposal to amend the regulations 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 proposed, however, to continue 
to prohibit the importation of wheat and related articles from flag 
smut-affected countries listed in Sec.  319.59-3(b) \1\ until a risk 
evaluation can be completed to ensure that wheat and related articles 
from those countries do not introduce other plant pests. The effect of 
our proposed changes would be to 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.
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    \1\ 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.
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    We solicited comments concerning our proposal for 60 days ending 
July 19, 2005. We received two comments by that date. They were from a 
representative of a foreign national plant protection organization and 
a group of domestic wheat industry organizations. One commenter 
supported the proposed rule, and the other used her comment to provide 
information indicating that her country was free of flag smut and, 
therefore, should be removed from the list of countries in Sec.  
319.59-3(b).
    The regulations in Sec.  319.59-3, as amended by this final rule, 
provide that the national plant protection organization of any country 
or locality listed in paragraph (b) of that section may contact the 
Animal and Plant Health Inspection Service (APHIS) to initiate the 
preparation of an evaluation of the potential pest risks associated 
with wheat and related articles in that country or locality. Such an 
evaluation is necessary because our previous flag-smut-based 
prohibitions had precluded the entry into the United States of wheat 
and related articles from affected countries, so there has not been a 
need or opportunity for APHIS to assess the phytosanitary situation in 
those countries to determine whether or not there may be other pests of 
wheat and related articles present there.
    We will consider the information submitted by the commenter 
regarding the freedom of her country from flag smut to be the 
initiation of a request for market access by her country. As noted 
previously, Sec.  319.59-3 calls for the preparation of a risk 
evaluation in this situation and we will work with the commenter with 
regard to that request. Once an official evaluation is completed, we 
will, if supported by the results of that evaluation, take action to 
amend the regulations to remove the commenter's country from the list 
in Sec.  319.59-3(b).
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This 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 amending 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 
will not be at risk if those prohibitions are removed. We will, 
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 removes 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

[[Page 71212]]

economic disparities based on size when they have a significant impact 
on a substantial number of small entities.
    We expect that this rule will affect domestic producers and 
processors of wheat. It is likely that the entities affected will be 
small according to SBA guidelines. As detailed below, information 
available to APHIS indicates that the effects on these small entities 
will 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 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 associated with removing the import 
prohibitions associated with flag smut 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 is expected to 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 this change will not have any measurable economic effect 
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 will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This final 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, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

0
Accordingly, 7 CFR part 319 is amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.


Sec.  319.59-1  [Amended]

0
2. In Sec.  319.59-1, the definition for foreign strains of flag smut 
is removed.
0
3. In Sec.  319.59-2, the introductory text of paragraph (b) is revised 
to read as follows and paragraph (b)(3) is 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:
* * * * *

0
4. In Sec.  319.59-3, the section heading and the introductory text of 
the section are 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 21st day of November, 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-23329 Filed 11-25-05; 8:45 am]
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