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contains regulatory documents having general

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Rules and Regulations Federal Register

71211 

Vol. 70, No. 227 

Monday, November 28, 2005 

1The 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. 

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. 

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 

§ 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. 

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 § 319.59–3(b). 

The regulations in § 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 flagsmut-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, § 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 

§ 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 

71212 Federal Register / Vol. 70, No. 227 / Monday, November 28, 2005 / Rules and Regulations 

1Requests should be submitted in writing to 

Phytosanitary Issues Management, PPQ, APHIS, 

4700 River Road, Unit 140, Riverdale, MD 20737–

1236. 

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. 

■ Accordingly, 7 CFR part 319 is 

amended as follows: 

PART 319—FOREIGN QUARANTINE 

NOTICES 

■ 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. 

§ 319.59–1 [Amended] 

■ 2. In § 319.59–1, the definition for 

foreign strains of flag smut is removed. 

■ 3. In § 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)’’. 

§ 319.59–2 General import prohibitions; 

exceptions. 

* * * * * 

(b) Triticum spp. plants, articles listed 

in § 319.59–3 as prohibited importation 

pending risk evaluation, and articles 

regulated for Karnal bunt in § 319.59–

4(a) may be imported by the U.S. 

Department of Agriculture for 

experimental or scientific purposes if: 

* * * * * 

■ 4. In § 319.59–3, the section heading 

and the introductory text of the section 

are revised to read as follows: 

§ 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 

§ 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. 

* * * * * 

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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