[Federal Register Volume 82, Number 84 (Wednesday, May 3, 2017)]
[Rules and Regulations]
[Pages 20541-20544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08942]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 84 / Wednesday, May 3, 2017 / Rules 
and Regulations  

[[Page 20541]]



DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Parts 800 and 810


United States Standards for Barley

AGENCY: Grain Inspection Packers and Stockyards Administration, USDA.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture (USDA), Grain Inspection, 
Packers and Stockyards Administration (GIPSA) is revising the U.S. 
Standards for Barley (barley standards) under the United States Grain 
Standards Act (USGSA) by revising the definitions of other terms to 
remove Six-rowed Blue Malting barley and the reference to kernels with 
white aleurone layers. Further, GIPSA is revising the barley standards 
to add the factors injured-by mold and mold-damaged kernels to the 
subclass Six-rowed Malting barley. Finally, GIPSA is revising the grade 
requirements for Two-rowed Malting Barley and Six-rowed Malting barley, 
and removing those for Six-rowed Blue Malting barley.

DATES: This rule is effective August 1, 2018.

FOR FURTHER INFORMATION CONTACT: Barry Gomoll, 202-720-8286. Persons 
with disabilities who require alternative means for communication 
(Braille, large print, audio tape, etc.) should contact the USDA Target 
Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Background

    Barley is defined in the U.S. Standards for Barley as grain that, 
before the removal of dockage, consists of 50 percent or more of whole 
kernels of cultivated barley (Hordeum vulgare L.) and not more than 25 
percent of other grains for which standards have been established under 
the USGSA (7 U.S.C. 71-87k). The term ``barley'' as used in these 
standards does not include hull-less barley or black barley.
    In 2015, U.S. barley producers harvested 3.1 million acres of 
barley, producing 214.3 million bushels of the grain. Beer production 
in the United States accounts for approximately 56 percent of total 
domestic use; feed and industrial uses account for about 36 percent of 
domestic use; and whiskey, food and seed account for about 8 percent of 
domestic use (2005-2014 average). Barley is also exported for feed and 
malting purposes, typically accounting for less than five percent of 
total barley usage.
    Section 76 of the USGSA authorizes GIPSA to establish and maintain 
the standards for barley and other grains regarding kind, class, 
quality, and condition (7 U.S.C. 76(a)). The barley standards 
facilitate the marketing of barley, define U.S. barley quality, and 
define commonly used industry terms in the domestic and global 
marketplace. Also, the barley standards contain basic principles such 
as the basis of determination used for a particular quality factor 
analysis, as well as specify grades, grade requirements, special 
grades, and special grade requirements. The barley standards were 
established on August 24, 1926, were last revised in 1997, and appear 
in the USGSA regulations at 7 CFR 810.201 through 810.207.

Changes to Barley Standards

    This final rule makes several revisions to the barley standards. 
The term ``Blue Malting barley'' and references to kernels with white 
aleurone layers are being removed from the definitions and the subclass 
Six-rowed Blue Malting barley is being removed from the barley 
standards (7 CFR 810.202 and 810.204). These references are being 
removed because (1) blue aleurone barley is no longer used by the 
malting and brewing industry in the United States, (2) no blue aleurone 
malting varieties are grown for export, and (3) United States 
production of blue aleurone malting barley is minimal.
    Further, the grade requirement tables for Six-rowed Malting barley 
and Two-rowed Malting barley are being harmonized to have the same 
grade limits for all factors except for test weight and thin barley.
    The following changes are being made to the grade requirements for 
Six-rowed Malting barley:
     The minimum limit for barley of suitable malting types for 
grade numbers 1 and 2 is increased.
     The minimum percentage of sound barley for all grades is 
increased.
     Maximum limits of wild oats are added to all grades.
    The following changes are being made to the grade requirements for 
Two-rowed Malting barley:
     Maximum limits of damaged kernels are added to all grades.
     Maximum limits of other grains are added to all grades.
     The maximum limits for skinned and broken kernels are 
lowered for grade numbers 1, 2, and 3.
    Along with the changes to the grade requirements, the definition of 
Six-rowed Malting barley is being revised to include limits for 
injured-by-mold kernels and mold-damaged kernels.
    These changes are being made as the result of producer and industry 
comments in response to an Advance Notice of Proposed Rulemaking 
published on October 4, 2011, in the Federal Register (76 FR 61287). 
The comments stated that historical differences between six-rowed and 
two-rowed barley varieties have declined significantly and both classes 
are grown for the same uses. Commenters recommended that the standards 
for the classes should be harmonized with each other. The exceptions to 
this are the factors test weight and thin barley, for which genetic 
differences still exist between six-rowed and two-rowed varieties.

Inspection Plan Tolerances

    Additionally, these changes to the grade standards make it 
necessary to update the tolerances for the inspection of shiplot, unit 
train, and lash barges in single lots. These types of lots are 
inspected using a statistically based inspection plan, which uses 
tolerances to allow slight deviation in quality. These tolerances, 
published in Table 1 and Table 2 of section 800.86(c)(2), are being 
updated to reflect the harmonization of the standards.

Proposed Rule Comment Review

    On July 25, 2014, GIPSA issued a proposed rule requesting comments 
on proposed changes to the barley standards (79 FR 43281). GIPSA 
received two comments in response to this proposed rule.

[[Page 20542]]

    One comment came from a malting barley industry group. The comment 
expressed agreement with the changes in the proposed rule, commenting 
that the changes in the barley standards provide consistency for barley 
trading and insurance purposes.
    The other comment came from a farmer who grows wheat and barley. 
The comment expressed concern that, by adding limits for injured-by-
mold and mold-damaged kernels to Six-rowed Malting barley, the proposed 
rule might impose more restrictions on growers of barley. Since mold is 
primarily a storage issue, these additions should not place any further 
burden on barley producers. Furthermore, the inclusion of these factors 
in the barley standards should allow crop insurance to cover losses to 
farmers in the event that mold damage does occur, protecting the 
farmers from rejection of their crop by buyers.

Effective Date

    As specified in the USGSA (7 U.S.C. 76(b)), amendments to the 
standards cannot become effective less than 1 calendar year after 
public notification, unless in the judgment of the Secretary, the 
public health, interest, or safety require that they become effective 
sooner. Following this section of the USGSA, GIPSA has determined that 
it is in the public interest to make this final rule effective on 
August 1, 2018, in order to coincide with the start of the barley 
marketing year.

Executive Orders 12866 and 13771, and Regulatory Flexibility Act

    This rule does not meet the definition of a significant regulatory 
action contained in section 3(f) of Executive Order 12866, and is not 
subject to review by the Office of Management and Budget (OMB). 
Additionally, because this rule does not meet the definition of a 
significant regulatory action it does not trigger the requirements 
contained in Executive Order 13771. See OMB's Memorandum titled 
``Interim Guidance Implementing Section 2 of the Executive Order of 
January 30, 2017 titled `Reducing Regulation and Controlling Regulatory 
Costs'[thinsp]'' (February 2, 2017). Under the requirements set forth 
in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), GIPSA has 
considered the economic impact of this action on small entities. The 
purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. The Small Business 
Administration (SBA) defines small businesses by their North American 
Industry Classification System Codes (NAICS). This rule affects 
customers of GIPSA's official inspection and weighing services in the 
domestic and export grain markets such as grain elevators/merchants 
(NAICS 424510), those in the malt manufacturing industry (NAICS 
311213), and official grain inspection agencies.
    GIPSA is revising the barley standards in the Definitions of Other 
Terms by removing Six-rowed Blue Malting barley and the reference to 
kernels with white aleurone layers. In addition, the change adds 
injured-by-mold and mold-damaged kernels to the definition of Six-rowed 
Malting barley. The definition change also revises the grade and grade 
requirements for Two-rowed Malting barley. Further, the grade and grade 
requirements for Six-rowed Malting barley and Six-rowed Blue Malting 
barley are revised. Under the provisions of the USGSA, grain exported 
from the United States must be officially inspected and weighed. GIPSA 
provides mandatory inspection and weighing services at 45 export 
facilities in the United States and 7 facilities for U.S. grain 
transshipped through Canadian ports. Five delegated State agencies 
provide mandatory inspection and weighing services at 13 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 SBA. Further, the regulations are 
applied equally to all entities. The 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 persons who handle, 
weigh, or transport grain for sale in foreign commerce must also 
register. Section 800.30 of the USGSA regulations (7 CFR 800.30) define 
a foreign commerce grain business as a person 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 108 registrants registered to export grain. 
GIPSA believes that most of the 108 registrants are large businesses 
and very few are small businesses.
    GIPSA also provides domestic and miscellaneous inspection and 
weighing services at other than export locations. Such services are 
provided by official state and private agencies. Approximately 217 
different applicants receive domestic inspection services each year and 
approximately 150 different locations receive track scale tests as a 
miscellaneous service each year.
    Most users of the official inspection and weighing services do not 
meet the requirements for small entities nor do the agencies that 
provide such services. Further, GIPSA is required by statute to make 
services available and to recover, as nearly as practicable, the costs 
of providing such services. There would be no additional reporting, 
record keeping, or other compliance requirements imposed upon small 
entities as a result of this rulemaking. Further, GIPSA has not 
identified any other Federal rules that may duplicate, overlap or 
conflict with this rulemaking. Therefore, GIPSA has determined that 
this rulemaking will not have a significant economic impact on a 
substantial number of small entities as defined in the RFA.

Executive Order 12988

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

Executive Order 13175

    This rulemaking has been reviewed with the requirements of 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments. GIPSA has received no requests for official services for 
barley from any Tribal Government. Therefore, GIPSA believes that this 
rule would not have substantial and direct effects on Tribal 
governments and would not have significant Tribal implications.

Paperwork Reduction Act

    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the information collection and recordkeeping requirements 
included in this rulemaking has previously been approved by the OMB 
under control number 0580-0013.
    GIPSA is committed to complying 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 maximum extent possible.

E-Government Compliance

    GIPSA is committed to complying with the E-Government Act, to 
promote

[[Page 20543]]

the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

List of Subjects

7 CFR Part 800

    Administrative practice and procedure, Conflict of interests, 
Exports, Freedom of information, Grains, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements.

7 CFR Part 810

    Exports, Grain.

    For reasons set out in the preamble 7 CFR parts 800 and 810 are 
amended as follows:

PART 800--GENERAL REGULATIONS

0
1. The authority citation for part 800 continues to read as follows:

    Authority:  7 U.S.C. 71-87k.

0
2. In Sec.  800.86, Table 1 and Table 2 in paragraph (c)(2) are revised 
to read as follows:


Sec.  800.86  Inspection of shiplot, unit train, and lash barge grain 
in single lots.

* * * * *
    (c) * * *
    (2) * * *

                                                          Table 1--Grade Limits (GL) and Breakpoints (BP) for Six-Rowed Malting Barley
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Minimum limits of--                                                     Maximum limits of--
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
                                                    Test weight      Suitable      Sound barley       Damaged        Wild oats        Foreign      Other grains     Skinned and     Thin barley
                      Grade                         per bushel     malting types   \1\ (percent)    kernels \1\      (percent)       material        (percent)    broken kernels     (percent)
                                                     (pounds)        (percent)   ----------------    (percent)   ----------------    (percent)   ----------------    (percent)   ---------------
                                                 --------------------------------                ----------------                ----------------                ----------------
                                                    GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. No. 1......................................    47.0    -0.5    97.0    -1.0    98.0    -0.8     2.0     0.8     1.0     0.6     0.5     0.1     2.0     0.8     4.0     1.1     7.0     0.6
U.S. No. 2......................................    45.0    -0.5    97.0    -1.0    98.0    -0.8     3.0     0.9     1.0     0.6     1.0     0.4     3.0     0.9     6.0     1.4    10.0     0.9
U.S. No. 3......................................    43.0    -0.5    95.0    -1.3    96.0    -1.1     4.0     1.1     2.0     0.8     2.0     0.5     5.0     1.3     8.0     1.5    15.0     0.9
U.S. No. 4......................................    43.0    -0.5    95.0    -1.3    93.0    -1.1     5.0     1.3     3.0     0.9     3.0     0.6     5.0     1.3    10.0     1.6    15.0     0.9
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Injured-by-frost kernels and injured-by-mold kernels are not considered damaged kernels or considered against sound barley.


                                                          Table 2--Grade Limits (GL) and Breakpoints (BP) for Two-Rowed Malting Barley
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Minimum limits of--                                                     Maximum limits of--
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
                                                    Test weight      Suitable      Sound barley       Damaged        Wild oats        Foreign      Other grains     Skinned and     Thin barley
                      Grade                         per bushel     malting types   \1\ (percent)    kernels \1\      (percent)       material        (percent)    broken kernels     (percent)
                                                     (pounds)        (percent)   ----------------    (percent)   ----------------    (percent)   ----------------    (percent)   ---------------
                                                 --------------------------------                ----------------                ----------------                ----------------
                                                    GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP      GL      BP
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. No. 1......................................    50.0    -0.5    97.0    -1.0    98.0    -0.8     2.0     0.8     1.0     0.6     0.5     0.1     2.0     0.8     4.0     1.1     5.0     0.4
U.S. No. 2......................................    48.0    -0.5    97.0    -1.0    98.0    -0.8     3.0     0.9     1.0     0.6     1.0     0.4     3.0     0.9     6.0     1.4     7.0     0.5
U.S. No. 3......................................    48.0    -0.5    95.0    -1.3    96.0    -1.1     4.0     1.1     2.0     0.8     2.0     0.5     5.0     1.3     8.0     1.5    10.0     0.9
U.S. No. 4......................................    48.0    -0.5    95.0    -1.3    93.0    -1.1     5.0     1.3     3.0     0.9     3.0     0.6     5.0     1.3    10.0     1.6    10.0     0.9
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Injured-by-frost kernels and injured-by-mold kernels are not considered damaged kernels or considered against sound barley.


    Note: Malting barley must not be infested in accordance with 
Sec.  810.107(b) and must not contain any special grades as defined 
in Sec.  810.206. Six- and two-rowed barley varieties not meeting 
the above requirements must be graded in accordance with standards 
established for the class Barley.

* * * * *

PART 810--OFFICIAL UNITED STATES STANDARDS FOR GRAIN

0
3. The authority citation for part 810 continues to read as follows:

    Authority:  7 U.S.C. 71-87k.


0
4. In Sec.  810.202, paragraph (c)(1) is revised to read as follows:


Sec.  810.202  Definition of other terms.

* * * * *
    (c) * * *
    (1) Malting barley is divided into the following two subclasses:
    (i) Six-rowed Malting barley has a minimum of 95.0 percent of a 
six-rowed suitable malting type that contains not more than 1.9 percent 
injured-by-frost kernels, 0.4 percent frost-damaged kernels, 0.2 
percent injured-by-heat kernels, 0.1 percent heat-damaged kernels, 1.9 
percent injured-by-mold kernels, and 0.4 percent mold-damaged kernels. 
Six-rowed Malting barley must not be infested, blighted, ergoty, 
garlicky, or smutty as defined in Sec.  810.107(b) and Sec.  810.206.
    (ii) Two-rowed Malting barley has a minimum of 95.0 percent of a 
two-rowed suitable malting type that contains not more than 1.9 percent 
injured-by-frost kernels, 0.4 percent frost-damaged kernels, 0.2 
percent injured-by-heat kernels, 0.1 percent heat-damaged kernels, 1.9 
percent injured-by-mold kernels, and 0.4 percent mold-damaged kernels. 
Two-rowed Malting barley must not be infested, blighted, ergoty, 
garlicky, or smutty as defined in Sec.  810.107(b) and Sec.  810.206.
* * * * *

0
5. Section 810.204 is revised to read as follows:


Sec.  810.204  Grades and grade requirements for Six-rowed Malting 
barley.

[[Page 20544]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Minimum limits of--                                        Maximum limits of--
                                    --------------------------------------------------------------------------------------------------------------------
                                                    Suitable                                                                    Skinned and
               Grade                 Test weight    malting       Sound       Damaged     Wild oats     Foreign       Other        broken    Thin barley
                                      per bushel     types      barley \1\  kernels \1\   (percent)     material      grains      kernels     (percent)
                                       (pounds)    (percent)    (percent)    (percent)                 (percent)    (percent)    (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. No. 1.........................         47.0         97.0         98.0          2.0          1.0          0.5          2.0          4.0          7.0
U.S. No. 2.........................         45.0         97.0         98.0          3.0          1.0          1.0          3.0          6.0         10.0
U.S. No. 3.........................         43.0         95.0         96.0          4.0          2.0          2.0          5.0          8.0         15.0
U.S. No. 4.........................         43.0         95.0         93.0          5.0          3.0          3.0          5.0         10.0         15.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Injured-by-frost kernels and injured-by-mold kernels are not considered damaged kernels or considered against sound barley.


    Note: Malting barley must not be infested in accordance with 
Sec.  810.107(b) and must not contain any special grades as defined 
in Sec.  810.206. Six-rowed Malting barley varieties not meeting the 
requirements of this section must be graded in accordance with 
standards established for the class Barley.


0
6. Section 810.205 is revised to read as follows:


Sec.  810.205   Grades and grade requirements for Two-rowed Malting 
barley.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Minimum limits of--                                        Maximum limits of--
                                    --------------------------------------------------------------------------------------------------------------------
                                                    Suitable                                                                    Skinned and
               Grade                 Test weight    malting       Sound       Damaged     Wild oats     Foreign       Other        broken    Thin barley
                                      per bushel     types      barley \1\  kernels \1\   (percent)     material      grains      kernels     (percent)
                                       (pounds)    (percent)    (percent)    (percent)                 (percent)    (percent)    (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. No. 1.........................         50.0         97.0         98.0          2.0          1.0          0.5          2.0          4.0          5.0
U.S. No. 2.........................         48.0         97.0         98.0          3.0          1.0          1.0          3.0          6.0          7.0
U.S. No. 3.........................         48.0         95.0         96.0          4.0          2.0          2.0          5.0          8.0         10.0
U.S. No. 4.........................         48.0         95.0         93.0          5.0          3.0          3.0          5.0         10.0         10.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Injured-by-frost kernels and injured-by-mold kernels are not considered damaged kernels or considered against sound barley.


    Note: Malting barley must not be infested in accordance with 
Sec.  810.107(b) and must not contain any special grades as defined 
in Sec.  810.206. Six-rowed Malting barley and Six-rowed Blue 
Malting barley varieties not meeting the requirements of this 
section must be graded in accordance with standards established for 
the class Barley.


Mark C. Craig,
Acting Administrator, Grain Inspection, Packers and Stockyards 
Administration.
[FR Doc. 2017-08942 Filed 5-2-17; 8:45 am]
 BILLING CODE 3410-KD-P