[Federal Register Volume 79, Number 143 (Friday, July 25, 2014)]
[Proposed Rules]
[Pages 43281-43284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17258]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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. 79, No. 143 / Friday, July 25, 2014 / 
Proposed Rules

[[Page 43281]]



DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Part 810


United States Standards for Barley

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

ACTION: Proposed rule.

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SUMMARY: The Grain Inspection, Packers and Stockyards Administration 
(GIPSA) is proposing to revise the U.S. Standards for Barley (barley 
standards) under the U.S. Grain Standards Act (USGSA) by revising the 
Definitions of Other Terms to remove Blue Malting barley and the 
reference to kernels with white aleurone layers. Further GIPSA will 
revise the standards to add the factors injured-by-mold and mold-
damaged kernels. The proposal also recommends revisions to the grade 
and grade requirements for Two-rowed Malting Barley, Six-rowed Malting 
barley, and Six-rowed Blue Malting barley. These proposed changes will 
help to facilitate the marketing of barley.

DATES: Comments must be received on or before September 23, 2014.

ADDRESSES: You may submit written or electronic comments on this 
proposed rule to:
     Mail: Irene Omade, GIPSA, USDA, STOP 3642, 1400 
Independence Avenue SW., Room 2530-B, Washington, DC 20250-3604.
     Fax: (202) 690-2173.
     Internet: Go to http://www.regulations.gov and follow the 
on-line instruction for submitting comments.
    All comments will become a matter of public record and should be 
identified as ``U.S. barley standards proposed rule comments,'' making 
reference to the date and page number of this issue of the Federal 
Register. All comments received become the property of the Federal 
government, are a part of the public record, and will generally be 
posted to www.regulations.gov without change. If you send an email 
comment directly to GIPSA without going through www.regulations.gov, or 
you submit a comment to GIPSA via fax, the originating email address or 
telephone number will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. Also, all personal identifying information (for example, 
name, address, etc.) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    Electronic submissions should avoid the use of special characters, 
avoid any form of encryption, and be free of any defects or viruses, 
since these may prevent GIPSA from being able to read and understand, 
and thus consider your comment.
    GIPSA will post a transcript or report summarizing each substantive 
oral comment that we receive about this proposed rule. This would 
include comments about this rule made at any public meetings hosted by 
GIPSA during the comment period, unless GIPSA publically announces 
otherwise.
    All comments will also be available for public inspection at the 
above address during regular business hours (7 CFR 1.27(b)). Please 
call the GIPSA Management and Budget Services support staff (202) 720-
8479 for an appointment to view the comments.

FOR FURTHER INFORMATION CONTACT: Patrick McCluskey at GIPSA, USDA, 
10383 N. Ambassador Drive, Kansas City, MO, 64153; Telephone (816) 659-
8403; Fax Number (816) 872-1258; email Patrick.J.McCluskey@usda.gov.

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. The term ``barley'' as used in these standards does not 
include hull-less barley or black barley.
    In 2012, U.S. barley producers harvested 3.2 million acres of 
barley producing 220.3 million bushels of the grain. Of all the barley 
planted, more than 60 percent were malting barley types. Beer 
production in the United States (U.S.) accounts for approximately 55 
percent of total domestic use (2008-2012 average), feed and industrial 
uses account for about 40 percent of domestic use (2008-2012 average), 
while whiskey, food and seed account for about 6 percent of domestic 
use (2008-2012 average). Barley is exported for feed and malting 
purposes, typically accounting for less than five percent of total 
barley usage.
    Under the USGSA (7 U.S.C. 76), GIPSA is authorized to establish and 
maintain the standards for barley and other grains regarding kind, 
class, quality, and condition. 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 
specifying grades, grade requirements, special grades, and special 
grade requirements. The barley standards, which 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.

Discussion of Comments and Proposed Action

    On October 4, 2011, GIPSA published an Advance Notice of Proposed 
Rulemaking (ANPR) in the Federal Register (76 FR 61287) requesting 
public comment on what revisions, if any, are needed to the current 
barley standards. GIPSA received four comments from two barley producer 
associations, one malting industry association, and one beer brewing 
company. The malting industry association provided a comment stating 
that two-rowed and six-rowed malting barley are used interchangeably by 
the malting industry, thus the grades and grade standards should be 
harmonized for most factors, excluding test weight and thin barley. The 
comment from a beer brewing company stated that malting quality 
specifications which are currently applicable only to two-rowed malting 
barley should be extended to six-rowed malting barley, because the 
brewing industry uses both types. Additionally, the brewing company 
stated that they fully supported the

[[Page 43282]]

comments of the malting barley industry association. Comments from two 
North Dakota barley producers groups mirrored the comments of the 
malting barley industry association with regard to harmonizing the 
standards, and addressed other issues which will be discussed herein.
    The malting barley industry association stated that distinctions 
between two- and six-rowed varieties are not generally warranted, but 
that distinctions for test weight and percent thin barley are 
warranted. Two-rowed and six-rowed malting barley have different test 
weight patterns that are under genetic control and influenced by 
environment.
    All commenters recommended that grade limits for two-rowed and six-
rowed malting barley be identical for all grade determining factors 
except test weight and thin barley, which should remain unchanged. U.S. 
malting barley manufacturers and users do not distinguish between two-
rowed and six-rowed malting barley based on the current barley 
standards, but view both two-rowed and six-rowed malting barley as 
functionally equivalent.
    All commenters stated that Wild Oats should be included as a grade 
determining factor for Six-rowed Malting barley. Likewise all 
commenters stated that Damaged kernels, as well as Other grains, should 
be included as a grade determining factor for Two-rowed Malting barley. 
All commenters stated that the grade factors Suitable malting type, 
Sound barley, and Skinned and broken kernels should all be harmonized 
for Two-rowed and Six-rowed Malting barley. Further, all commenters 
agreed that these specific changes are needed in the barley standards.
    GIPSA believes that stakeholders in the malting barley industry are 
well-informed with respect to production, functionality, and quality 
issues related to malting barley. GIPSA believes the recommended 
revisions will facilitate the marketing of barley and accordingly, will 
propose amendments to the malting barley standards to make the 
recommended revisions. To harmonize two-rowed and six-rowed malting 
barley grade factors and grade limits, GIPSA recognizes the definitions 
of Six-rowed Malting barley and Two-rowed Malting barley must be also 
be consistent. Accordingly, GIPSA will propose revising the definition 
of Six-rowed Malting barley to mirror the definition of Two-rowed 
Malting barley, with the exception of test weight and percent thins.
    All commenters recommended removing Six-rowed Blue Malting barley 
as a subclass of malting barley because (1) blue aleurone barley is no 
longer used by the malting and brewing industry in the U.S. and (2) no 
blue aleurone malting varieties are being grown for export, and (3) 
U.S. production of blue aleurone malting barley is minimal. GIPSA 
agrees and will propose revising the malting barley standards to remove 
Six-rowed Blue Malting barley as a subclass of malting barley.
    GIPSA received identical comments from two North Dakota barley 
producer groups. Both producer groups questioned why the definitions of 
Frost-damaged kernels, Heat-damaged kernels, and Mold-damaged kernels 
included the words ``other grains, and wild oats'' in their 
definitions, while the definitions of Injured-by-frost, Injured-by-
heat, and Injured-by-mold do not include other grains and wild oats. 
Both commenters stated that the terminology utilized in malting factors 
is quasi-redundant and can initiate misunderstanding. They recommended 
removing other grains and wild oats from all damage definitions, so as 
to focus attention on heat, frost, or mold damage to barley kernels 
rather than damage to components other than barley (i.e., other grains 
and wild oats). Barley is unique in that it is the only grain which has 
a definition for frost-damaged kernels and mold-damaged kernels in the 
standard. (In other grains, these damages are determined based on 
Visual Reference Images.)
    The inclusion of ``other grains'' in the definition of heat-damaged 
kernels in barley is consistent with the definition of heat-damaged 
kernels in oats, rye, sorghum, triticale, and wheat. The purpose of 
including of ``other grains'' in the damage definition of certain grain 
standards is to hinder blending of inferior quality grains into the 
primary grain being presented for inspection. Some grains were more 
likely to have ``other grains'' blended into them, which explains why 
not all grains for which standards exist include ``other grains'' in 
the damage definition. The standards should promote increasing quality. 
Accordingly, GIPSA will not propose any revisions to the barley 
standards based on the two comments.
    GIPSA received comments from the two producer groups recommending 
that consideration should be given to establishing specific grades for 
hull-less barley. Hull-less barley is a specialized plant wherein the 
hull does not adhere to the grain. In the regulations at 810.201, the 
definition of barley states, ``The term ``barley'' as used in these 
standards does not include hull-less barley or black barley.'' Hull-
less barley is considered Not Standardized Grain, counted as ``other 
grain'' when encountered in barley, and counted against ``sound 
barley''.
    In a comment unrelated to hull-less barley, the malting industry 
association pointed out that the production of malt for brewing 
requires barley that is sound, and with an intact hull. The malting and 
brewing industries are the largest users of U.S. barley. The hull of 
the barley kernel plays a critical role in the malting process. The 
malt manufacturing industry would encounter processing problems if 
hull-less barley was counted as barley, even if only a small percentage 
of hull-less barley kernels were comingled with malting types. This 
commenter also addressed ``malting factors'' that are not part of this 
rulemaking.
    GIPSA's Program Directive 9180.65 provides inspection and 
certification procedures for hull-less barley, so applicants for 
service can receive certified results on factors of interest. Given 
these facts, and absent a market signal from end-users, GIPSA will not 
propose revisions to the barley standards establishing grades for hull-
less barley.
    All commenters stated that certain revisions were needed in the 
inspection instructions in the Barley chapter of Grain Inspection 
Handbook 2. While inspection instructions are not included in the 
regulations, GIPSA will review the inspection instructions in Handbook 
2, in consideration of the comments, separately from this rulemaking.
    GIPSA is issuing this proposed rule to invite comments from all 
interested persons on how GIPSA can further enhance the barley 
standards to better facilitate the marketing of barley.
    GIPSA proposes to revise Section 810.202 Definition of other terms 
(c)(1) by amending (i) Six-rowed Malting barley to remove the reference 
to kernels with white aleurone layers and adding maximum percentages 
for injured-by-mold and mold-damage kernels, removing (ii) Six-rowed 
Blue Malting barley, and renumbering (iii) Two-rowed Malting barley to 
become (ii).
    GIPSA proposes to revise Section 810.204 Grade and Grade 
Requirements for Six-rowed Malting barley and Six-rowed Blue Malting 
barley by removing references to Six-rowed Blue malting barley, adding 
Wild Oats as a grade determining factor, increasing the minimum percent 
of suitable malting type at grades 1 and 2, and increasing the minimum 
percent of sound barley at all grades.
    GIPSA proposes to revise Section 810.205 Grade and Grade 
Requirements for Two-rowed Malting barley by adding

[[Page 43283]]

Damaged kernels as a grade determining factor, adding Other grains as a 
grade determining factor, and reducing the maximum percent of Skinned 
and broken kernels at grades 1, 2, and 3.
    Pursuant to section 4(b)(1) of the USGSA, as amended (7 U.S.C. 
76(b)(1)), no standards established, or amendments or revocations of 
the standards, are to become effective less than 1 calendar year after 
promulgation unless, in the judgment of the Secretary of Agriculture, 
the public health, interest, or safety require that they become 
effective sooner.

Executive Order 12866, 13563, and Regulatory Flexibility Act

    This rule has been determined to be exempt for the purposes of 
Executive Orders 12866 and 13563, and therefore has not been reviewed 
by the Office of Management and Budget (OMB).
    Pursuant to 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).\1\ 
This proposed 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.
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    \1\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
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    GIPSA is proposing to revise 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 proposed change will add 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 will be revised.
    Under the provisions of the USGSA, grain exported from the U.S. 
must be officially inspected and weighed. Mandatory inspection and 
weighing services are provided by GIPSA at 40 export facilities, by 
delegated States at 11 facilities, and seven facilities for U.S. grain 
transshipped through Canadian ports. 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 
persons 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 129 
registrants registered to export grain. All are considered to be large 
businesses.
    GIPSA also provides domestic and miscellaneous inspection and 
weighing services at other than export locations. Such services are 
provided by 53 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 are 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 proposed rule. Further, GIPSA has not 
identified any other Federal rules which may duplicate, overlap or 
conflict with this proposed rule. GIPSA has determined that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities as defined in the RFA.

Executive Order 12988

    This proposed rule 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 proposed rule 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 proposed rule previously has 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 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 in 7 CFR Part 810

    Export, Grain.

    For reasons set out in the preamble, GIPSA proposes to amend 7 CFR 
part 810 as follows:

PART 810--OFFICIAL UNITED STATES STANDARDS FOR GRAIN

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

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

0
2. In Sec.  810.202, revise paragraph (c)(1) to read as follows:


Sec.  810.202  Definition of other terms.

* * * * *
    (c) Classes. There are two classes of barley: Malting barley and 
Barley.
    (1) Malting barley. Barley of a six-rowed or two-rowed malting 
type. The class Malting barley is divided into the following two 
subclasses:

[[Page 43284]]

    (i) Six-rowed Malting barley. Barley that 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, and 0.1 percent heat-
damaged kernels, 1.9 percent injured-by-mold kernels, and 0.4 percent 
mold-damaged kernels. Six-rowed Malting barley shall not be infested, 
blighted, ergoty, garlicky, or smutty as defined in Sec.  810.107(b) 
and Sec.  810.206.
    (ii) Two-rowed Malting barley. Barley that 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 shall not be infested, 
blighted, ergoty, garlicky, or smutty as defined in Sec.  810.107(b) 
and Sec.  810.206.
* * * * *


Sec.  810.204  [Amended]

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


Sec.  810.204  Grades and grade requirements for Six-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.........................         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
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\1\ Injured-by-frost kernels and injured-by-mold kernels are not considered damaged kernels or considered against sound barley.
Note: Malting barley shall not be infested in accordance with Sec.   810.107(b) and shall not contain any special grades as defined in Sec.   810.206.
  Six-rowed Malting barley varieties not meeting the requirements of this section shall be graded in accordance with standards established for the class
  Barley.

Sec.  810.205  [Amended]

0
4. 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 shall not be infested in accordance with Sec.   810.107(b) and shall not contain any special grades as defined in Sec.   810.206.
  Two-rowed Malting barley varieties not meeting the requirements of this section shall be graded in accordance with standards established for the class
  Barley.


Larry Mitchell,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 2014-17258 Filed 7-24-14; 8:45 am]
BILLING CODE 3410-KD-P