[Federal Register: July 8, 2003 (Volume 68, Number 130)]
[Proposed Rules]
[Page 40534-40541]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy03-15]
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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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[[Page 40534]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 02-056-1]
Karnal Bunt; Revision of Domestic Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend our Karnal bunt regulations to
incorporate updates and improvements identified as a result of our
review of their provisions. The proposed changes include clarifying our
method for determining Karnal bunt infestation and the circumstances
under which a field or area would be classified as a regulated area, as
well as adding provisions and criteria for the release of fields or
areas from regulation; modifying the restrictions that apply to the
planting of wheat, durum wheat, and triticale seed originating in
regulated areas; and modifying cleaning and disinfection requirements
for certain equipment and storage facilities involved in the
harvesting, planting, or storage of Karnal bunt-positive host crops or
seeds, as well as providing for the disposal of chemically treated,
spore-positive seed. These proposed changes would improve the clarity
and effectiveness of the regulations, thus helping to prevent the
spread of Karnal bunt within the United States.
DATES: We will consider all comments we receive on or before September
8, 2003.
ADDRESSES: You may submit comments by postal mail/commercial delivery
or by e-mail. If you use postal mail/commercial delivery, please send
four copies of your comment (an original and three copies) to: Docket
No. 02-056-1, 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. 02-056-1. If you use e-mail,
address your comment to regulations@aphis.usda.gov. Your comment must
be contained in the body of your message; do not send attached files.
Please include your name and address in your message and ``Docket No.
02-056-1'' on the subject line.
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.
APHIS documents published in the Federal Register, and related
information, including the names of organizations and individuals who
have commented on APHIS dockets, are available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Spaide, Senior Program
Manager, Surveillance and Emergency Programs Planning and Coordination,
PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; (301)
734-7819.
SUPPLEMENTARY INFORMATION:
Background
Karnal bunt is a fungal disease of wheat (Triticum aestivum), durum
wheat (Triticum durum), and triticale (Triticum aestivum X Secale
cereale), a hybrid of wheat and rye. Karnal bunt is caused by the smut
fungus Tilletia indica (Mitra) Mundkur and is spread primarily through
the movement of infected seed. Some countries in the international
wheat market regulate Karnal bunt as a fungal disease requiring
quarantine. Therefore, in the absence of measures taken by the U.S.
Department of Agriculture (USDA) to prevent its spread, the
establishment of Karnal bunt in the United States could have
significant consequences with regard to the export of wheat to
international markets.
The domestic quarantine and other regulations regarding Karnal bunt
are set forth in ``Subpart--Karnal Bunt'' (7 CFR 301.89-1 through
301.89-16, referred to below as the regulations). Among other things,
the regulations describe articles and areas regulated for Karnal bunt;
criteria for classifying areas or fields as regulated areas;
requirements for planting wheat, durum wheat, and triticale in
regulated areas; restrictions on movement of regulated articles from
regulated areas; permitting, cleaning, disinfection, and treatment
requirements; and requirements for growers, handlers, seed companies,
and other entities seeking compensation from the USDA to mitigate
losses or expenses incurred because of Karnal bunt. The regulations are
designed to prevent the artificial spread of Karnal bunt.
We have conducted a review of our regulations. As a result of this
review, we are proposing to incorporate changes aimed at improving the
clarity, transparency, and effectiveness of the regulations. More
specifically, the proposed changes would include the following:
Clarifying our method for determining Karnal bunt infestation; adding
or removing several definitions; adding or removing certain articles
from the list of regulated articles; clarifying the circumstances under
which a field or area would be classified as a regulated area, as well
as adding provisions and criteria for the release of fields or areas
from regulation; modifying the restrictions that apply to the planting
of wheat, durum wheat, and triticale seed originating in regulated
areas; and modifying cleaning and disinfection requirements for
mechanized harvesting equipment, seed conditioning equipment, and
storage facilities involved in the harvesting, planting, or storage of
Karnal bunt-positive host crops or seed, as well as adding a
requirement for the disposal of chemically treated, spore-positive
seed.
Definitions
In Sec. 301.89-1, we are proposing to remove two of the existing
definitions, amend three, and add six new ones. We would remove the
definition of farm tools, as farm tools are no longer considered
regulated articles and that term is no longer used in the regulations.
We would also remove the definition of milling products and byproducts,
as we are proposing in this document to remove milling products and
byproducts from the list of regulated articles.
[[Page 40535]]
We would amend the definition of contaminated seed to specify that
seed will be determined to be contaminated based on the presence of
bunted kernels or teliospores. The regulations in Sec. 301.89-4
currently provide that seed originating in a regulated area must be
tested and found free of spores and bunted kernels before it may be
planted in a regulated area; our proposed change to the definition of
contaminated seed would reflect that standard. Similarly, we would
amend the definition of infestation (infected) to specifically identify
bunted kernels in grain and bunted kernels or teliospores in seed as
identifiable stages of development of Tilletia indica, the presence of
which will lead to a determination of infestation. The current
definition of infestation (infested) would remain the same, but for
identifying the stages of development of Tilletia indica. Again,
including the bunted kernel standard for grain and the bunted kernel/
teliospore standards for seed in the definition of infestation
(infected) would make that definition consistent with the standards
used elsewhere in the regulations. We would also amend the definition
of mechanized cultivating equipment and mechanized harvesting equipment
by adding grain buggies, trucks, and swathers as examples of equipment
used for harvesting purposes and by removing cotton harvesters as one
of those examples. Cotton harvesters are at low risk for becoming
contaminated with the Karnal bunt pathogen, whereas grain buggies,
trucks, and swathers used in connection with the harvest of wheat,
durum wheat, or triticale are at greater risk of contamination.
We would add definitions for grain, hay, host crops, plant, seed,
and straw. We are proposing to include all of these articles on the
list of regulated articles in Sec. 301.89-2, so including their
definitions would aid users in understanding and complying with the
regulations. We would define grain as wheat, durum wheat, and triticale
used for consumption or processing, while seed would be defined as
wheat, durum wheat, and triticale used for propagation. We propose to
define host crops as consisting of plants or plant parts, including
grain, seed, or hay, of wheat, durum wheat, and triticale. We propose
to define plant as any plant (including any plant part) for or capable
of propagation, including a tree, a tissue culture, a plantlet culture,
pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a
root, and a seed. This is the definition provided in the Plant
Protection Act (7 U.S.C. 7701 et seq.). We would define hay as
consisting of host crops cut and dried for feeding to livestock. The
definition would also note that hay cut after reaching the dough stage
may contain mature kernels of the host crop. Straw would be defined as
the vegetative material left after the harvest of host crops. This
proposed definition would also refer to the common uses of straw as
animal feed, bedding, mulch, or for erosion control.
Regulated Articles
We are proposing several changes to the list of regulated articles
in Sec. 301.89-2 of the regulations. Currently, paragraph (a) of that
section identifies conveyances such as trucks, railroad cars, and other
containers used to move wheat, durum wheat, or triticale as regulated
articles, and paragraph (b) identifies grain elevators, equipment, and
structures used to store or handle those commodities as regulated
articles. We would amend these paragraphs to specify that the
conveyances listed in paragraph (a) and the equipment and structures
listed in paragraph (b) would be regulated articles only if used to
move or to store and handle the grain of host crops produced in a
regulated area that test positive for Karnal bunt due to the presence
of bunted kernels.
Current paragraph (c) of Sec. 301.89-2 lists milling products or
byproducts other than flour as regulated articles. We would remove this
paragraph and would no longer regulate milling products or byproducts.
Such products and byproducts are believed to present a low risk of
spreading Karnal bunt because the milling process would have eliminated
bunted kernels.
We are proposing to add hay cut after the dough stage to the list
of regulated plants or plant parts in current paragraph (d). As noted
in the proposed definition of hay discussed previously, hay cut after
reaching the dough stage may contain mature kernels of the host crop
and could, therefore, serve as a means of spreading Karnal bunt. We
would also amend that paragraph to specify that the listed plants or
plant parts would be considered regulated articles only if they were
produced in a regulated area, and would provide exceptions for certain
straw, stalks, and seed heads that have been processed or manufactured
prior to movement and are intended to be used indoors for decorative
purposes. We consider these items to present a low risk of transmitting
Karnal bunt because of their end use as indoor decorative material and
already exempt those articles from the certificate/limited permit
requirements of Sec. 301.89-5. Because we would specify that these
articles are not regulated articles, it would no longer be necessary to
provide an exemption for them in Sec. 301.89-5.
Current paragraphs (f) through (h), which identify as regulated
articles root crops with soil, soil from areas where field crops are
produced, and manure from animals that have fed on untreated or raw
wheat, durum wheat, or triticale, would be removed. Bunted kernels are
not associated with these articles, and while they may contain spores
of Tilletia indica, we regulate only seed for spores. In addition, the
end uses of these articles make them unlikely to transmit Karnal bunt.
Root crops, for example, would go to market after harvesting and would
not be replanted.
Current paragraph (i) lists mechanized harvesting equipment, when
used in the production of wheat, durum wheat, and triticale that tests
positive for Karnal bunt, as a regulated article. To reflect the
standards used elsewhere in the regulations, as described in the
proposed definition of infestation (infected) in Sec. 301.89-1, we
would amend that paragraph to specify that a positive test result for
Karnal bunt would be determined by the presence of bunted kernels.
Similarly, we would amend current paragraph (j), which lists seed
conditioning equipment used in the production of wheat, durum wheat,
and triticale as a regulated article, to specify that the seed
conditioning equipment would be considered a regulated article only if
it had been used in the production of wheat, durum wheat, and triticale
found to contain the spores of Tilletia indica. We would also amend
this paragraph to include storage/handling equipment.
Current paragraph (k) provides that any product, article, or means
of conveyance not covered in the previous paragraphs will be considered
to be a regulated article when an inspector determines that the
product, article, or means of conveyance presents a risk of spreading
Karnal bunt due to its proximity to an infestation of Karnal bunt and
the person in possession of the product, article, or means of
conveyance has been notified that it is regulated under the
regulations. We would amend that paragraph by removing the language
pertaining to the proximity of the product, article, or means of
conveyance to an infestation of Karnal bunt and would replace it with a
statement specifying that the inspector's determination of risk would
be based upon appropriate testing and the intended use of the product,
article, or means of conveyance.
Because, as discussed previously, we are proposing to remove
paragraph (c) and paragraphs (f) through (h), it would be necessary to
redesignate paragraphs
[[Page 40536]]
(d) and (e) as paragraphs (c) and (d), respectively, and paragraphs (i)
through (k) as paragraphs (e) through (g), respectively.
Regulated Areas
In Sec. 301.89-3, paragraphs (a) through (e) provide criteria for
the designation of States or areas of States as regulated areas for
Karnal bunt, and paragraph (f) describes the boundaries of regulated
areas. Current paragraph (e)(3) indicates that a field or area will be
classified as a regulated area if it contains at least one field that
was found during survey to contain spores consistent with Karnal bunt
and has been determined to be associated with grain at a handling
facility containing a bunted kernel. We would remove the reference to
spores so that the paragraph would be consistent with the other
provisions in paragraph (e), which classify fields or areas as
regulated areas based on the presence of bunted kernels. Grain would be
tested for spores as well as bunted kernels only if intended for use as
seed.
We are also proposing to add a new paragraph to Sec. 301.89-3 that
would provide conditions under which a field known to have been
infected with Karnal bunt, as well as any non-infected acreage
surrounding the field, could be released from regulation. Under these
proposed conditions, such a field would be eligible for release from
regulation if it is no longer being used for crop production or if it
has been subjected to any one of the following management practices
each year for 5 consecutive years (the practice used may vary from year
to year): (1) Planted with a cultivated non-host crop, (2) tilled once
annually, or (3) planted with a host crop that tests negative, through
the absence of bunted kernels, for Karnal bunt. These criteria are
consistent with emerging technical information about Karnal bunt. We
would add these proposed conditions to Sec. 301.89-3 as paragraph (f),
while the current paragraph (f), which describes the boundaries of the
currently regulated areas, would be redesignated as paragraph (g). A
reference in paragraph (d) to the current paragraph (f) would be
amended to reflect this redesignation.
Planting
We would amend the planting restrictions contained in Sec. 301.89-
4. Under paragraph (a) of that section, all wheat seed, durum wheat
seed, and triticale seed originating within a regulated area must be
tested and found free from bunted wheat kernels and spores before it
may be planted within a regulated area. Current paragraph (b) prohibits
the planting of wheat, durum wheat, and triticale outside a regulated
area if they originated inside a regulated area. We are proposing to
amend Sec. 301.89-4 by removing current paragraph (b) and by allowing
wheat, durum wheat, or triticale that originates in a regulated area
and that has been tested and found free of bunted kernels and spores to
be used as seed in fields outside the regulated area. We believe that
wheat, durum wheat, or triticale that has been tested and found free of
bunted kernels and spores would not pose a risk of disease
transmission, so there would be no need to prohibit its planting
outside a regulated area. (As indicated, planting inside a regulated
area is currently, and would continue to be, allowed.)
Movement of Regulated Articles From Regulated Areas
Section 301.89-5 provides conditions under which regulated articles
may be moved from regulated areas. Paragraph (a)(4) of that section
provides that straw/stalks/seed heads for decorative purposes that have
been processed or manufactured prior to movement and are intended for
use indoors can be moved from a regulated area without a certificate or
limited permit. Because, as noted earlier, we are proposing to amend
Sec. 301.89-2(d) to exclude these articles from the list of regulated
articles, we are proposing to remove Sec. 301.89-5(a)(4).
Issuance of a Certificate or Limited Permit
Section 301.89-6 provides criteria for the issuance of certificates
or limited permits for the movement of regulated articles outside
regulated areas. Current paragraph (b) states that to be eligible for
movement under a certificate, grain from a field within a regulated
area must be tested prior to its movement from the field or before it
is commingled with other grains and found free from bunted kernels. If
bunted kernels are found, the grain will be eligible for movement only
under a limited permit issued in accordance with paragraph (c).
Paragraph (b) goes on to provide that no wheat, durum wheat, or
triticale moved out of a regulated area under a certificate may be used
for planting outside the regulated area.
We are proposing to amend Sec. 301.89-6(b) to add references to
hay cut after reaching the dough stage in the first and second
sentences, in keeping with our proposal to add such hay to the list of
regulated articles in Sec. 301.89-2. The second sentence of proposed
paragraph (b) would indicate that if bunted kernels are found in grain
or hay that comes from a field within a regulated area, the grain or
hay could only be moved out of the regulated area under a limited
permit issued in accordance with paragraph (c) of Sec. 301.89-6, and
the field of production will be considered positive for Karnal bunt. As
noted earlier, the presence of bunted kernels indicates infestation. We
would also remove the provision in paragraph (b) prohibiting the
planting of regulated articles outside regulated areas because, as
discussed earlier, our proposed Sec. 301.89-4 would allow such
planting under certain conditions.
We are also proposing to amend paragraph (c) of Sec. 301.89-6.
That paragraph currently describes the criteria for issuing limited
permits for the movement of regulated articles within or outside
regulated areas. Under our proposal, we would no longer require limited
permits for movement of regulated articles within regulated areas. This
restriction, while appropriate for an eradication program, generally is
not needed for a control program like the current Karnal bunt program
when a commodity is moving only within a regulated area.
Cleaning, Disinfection, and Disposal
We would revise Sec. 301.89-12 to add or amend provisions relating
to the cleaning and, when necessary, disinfection of certain regulated
articles for which treatments are prescribed in Sec. 301.89-13 and to
provide for the disposal of certain seed. Current Sec. 301.89-12
states that mechanized harvesting equipment that has been used to
harvest host crops that test positive for Karnal bunt and seed
conditioning equipment that has been used in the production of any host
crops must be cleaned and disinfected in accordance with Sec. 301.89-
13(a) prior to movement from a regulated area. Our revised Sec.
301.89-12 would be considerably broader in scope.
Proposed paragraph (a) states that mechanized harvesting equipment
that has been used to harvest host crops that test positive for Karnal
bunt based on the presence of bunted kernels must be cleaned and, if
disinfection is determined to be necessary by an inspector, disinfected
in accordance with Sec. 301.89-13 prior to movement from a regulated
area. Because cleaning alone may suffice to remove bunted kernels from
such equipment, we would no longer require disinfection in all cases,
but inspectors would retain the authority to require disinfection when
necessary. Proposed paragraph (a) also accords with our proposed new
definition of infestation (infected) in Sec. 301.89-1 by indicating
that the
[[Page 40537]]
determination of host-crop infestation is based on the presence of
bunted kernels.
Seed conditioning equipment would be provided for separately in
proposed paragraph (b), which states that seed conditioning equipment
that was used in the conditioning of seed containing spores of Tilletia
indica must be cleaned and disinfected in accordance with Sec. 301.89-
13 prior to handling seed that has tested negative for spores or to
being moved from a regulated area. We would retain the disinfection
requirement for seed conditioning equipment because disinfection is
thought to be necessary to deactivate spores.
A new paragraph (c) would state that all grain storage facilities,
including on-farm storage, used to store seed that has tested bunted
kernel or spore positive or grain that has tested bunted-kernel
positive must be cleaned and, if disinfection is determined to be
necessary by an inspector, disinfected in accordance with Sec. 301.89-
13 if the facilities will be used to store grain or seed in the future.
As is the case with mechanized harvesting equipment, cleaning alone may
sometimes suffice to decontaminate grain storage facilities. The
decision to require disinfection as well would be left to the
inspector.
A new paragraph (d) would provide exceptions to the cleaning and
disinfection requirements for certain conveyances used to move bunted-
kernel-positive host crops, including trucks, railroad cars, and other
containers, if the conveyances are self-cleaning. In order to be
considered self-cleaning, the conveyances would have to have sloping
metal sides leading directly to a bottom door or slide chute.
Finally, a new paragraph (e) would state that spore-positive wheat,
durum wheat, or triticale seed that has been treated with any chemical
that renders it unfit for human or animal consumption would have to be
disposed of by means of burial under a minimum of 24 inches of soil in
a non-agricultural area that will not be cultivated or in an approved
landfill. Spore-positive seed cannot be used for planting, and
fungicide or other chemical treatments not approved for use in feed
renders the seed unfit for use as feed. Thus, disposal by burial is
necessary to prevent the seed from being used for any purpose.
Treatments
Current paragraph (a) of Sec. 301.89-13 describes approved
cleaning and disinfection techniques for conveyances, mechanized
harvesting equipment, seed conditioning equipment, grain elevators, and
structures used for storing and handling wheat, durum wheat, or
triticale for which cleaning and disinfection are required. We would
amend the paragraph to coincide with the changes to the cleaning and
disinfection requirements that we are proposing in Sec. 301.89-12. The
proposed paragraph would treat cleaning and disinfection separately,
stating that all conveyances, mechanized harvesting equipment, seed
conditioning equipment, grain elevators, and structures used for
storing and handling wheat, durum wheat, or triticale required to be
cleaned under the regulations must be cleaned by removing all soil and
plant debris and that if disinfection is required in addition to
cleaning, the articles must be disinfected by one of the methods
specified in Sec. 301.89-13, unless a particular treatment is
designated by an inspector. This paragraph would become the
introductory text of our proposed Sec. 301.89-13.
The disinfection method specified in current paragraph (a)(1)
involves wetting all surfaces of the regulated articles to the point of
runoff with a solution of 1.5 percent sodium hypochlorite--e.g., with a
solution of sodium hypochlorite mixed with water applied at the rate of
1 gallon of household chlorine bleach (5.2 percent sodium hypochlorite)
mixed with 2.5 gallons of water--and letting stand for 15 minutes. We
would amend this paragraph to indicate that the bleach used must be
Ultra Clorox brand regular bleach (6 percent sodium hypochlorite) or
CPPC Ultra Bleach 2 (6.15 percent sodium hypochlorite). These are the
only two bleach products that are approved for such use by the
Environmental Protection Agency.
The minimum temperature for the hot water and detergent treatment,
which is specified in current paragraph (a)(3) as 180 [deg]F, would be
changed to 170 [deg]F, which has been determined to be the temperature
needed to inactivate Karnal bunt. A temperature of 170 [deg]F is also
specified for the treatment described in current paragraph (a)(2),
which would remain unchanged.
The Federal quarantine exemption permitting the use of methyl
bromide for treatment of Karnal bunt has been withdrawn. Therefore, we
are proposing to remove current paragraph (a)(4), which specifies
fumigation with methyl bromide as a disinfection method for the
conveyances, mechanized harvesting equipment, seed conditioning
equipment, grain elevators, and structures covered under this section,
and paragraph (b), which specifies fumigation with methyl bromide as a
treatment for soil.
Current paragraph (c), which specifies a treatment for millfeed
that has resulted from the milling of Karnal bunt-positive wheat, would
be removed. Millfeed, like other milling products and byproducts, would
no longer be considered a regulated article under this proposed rule.
Finally, we would remove the current paragraph (e), which contains
treatment requirements for seed used for germ plasm or research
purposes. Because we have eliminated the requirement for fungicide
treatment of seed as of May 1, 2002, and are proposing, in Sec.
301.89-4, to allow the movement of bunted kernel- and spore-negative
seed from regulated areas, these treatment requirements would no longer
apply.
For greater clarity, we would redesignate the bleach treatment in
current paragraph (a)(1) as paragraph (a), the steam treatment in
current paragraph (a)(2) as paragraph (b), and the hot water and
detergent treatment in current paragraph (a)(3) as paragraph (c).
Miscellaneous
Section 301.89-14, which deals with compensation for the 1995-1996
crop season, is outdated and, therefore, would be removed and reserved.
In addition to the changes described above, we propose to make some
nonsubstantive editorial changes to the regulations. These changes
would include the updating of the addresses given in some footnotes.
The intent of this proposed rule is to improve the clarity,
transparency, and effectiveness of our Karnal bunt regulations in order
to help to prevent the spread of Karnal bunt within the United States.
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.
This proposed rule is intended to improve the clarity,
transparency, and effectiveness of our Karnal bunt regulations. This
proposal is the result of a review of the regulations.
Of the proposed substantive changes to the regulations, four stand
out as having the potential to have the most economic impact: (1)
Adding provisions for removing fields or areas from the list of
regulated areas, (2) modifying seed planting restrictions, (3) removing
animal manure from the list of regulated articles, and (4) modifying
cleaning and disinfecting requirements for seed conditioning equipment.
These four
[[Page 40538]]
changes--all of which would have a favorable impact on any affected
entities--are discussed individually in the paragraphs that follow.
Adding Provisions for Removing Fields or Areas From the List of
Regulated Areas
The current regulations do not contain criteria for the removal of
fields or areas from the list of regulated areas, although we have
removed some fields or areas from regulation in the past on a case-by-
case basis. This proposed rule would establish uniform criteria for the
removal of fields or areas from regulation.
Under the current regulations, even wheat testing Karnal bunt-
negative is not eligible for a phytosanitary certificate with an
additional declaration if it was grown in fields that previously tested
Karnal bunt-positive--a situation that adversely impacts the wheat's
marketability and value.\1\ By allowing wheat from those fields to
become eligible for such a certificate (if certain conditions are met),
the proposed rule would yield potential--and in some cases immediate--
economic benefits for affected producers.
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\1\ Major foreign importers will not accept wheat from the
United States that does not have such an additional declaration.
Furthermore, many U.S. elevators will not commingle wheat from
previously tested positive fields with wheat destined for the export
market.
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In San Saba and McCulloch Counties, TX, there are approximately 28
producers with fields that previously tested positive for Karnal bunt--
including about 8 that would be immediately eligible for deregulation
since they have already satisfied the proposed conditions for release.
It is estimated that these 28 producers would have received,
collectively, at least about $295,000 more for their wheat this past
crop season if it had been eligible for export--an average of about
$10,500 per producer. These dollar estimates are based on a price
differential of at least $1.80 per bushel between uncertified wheat
sold for animal feed and certified wheat in Texas sold for the export
market.\2\
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\2\ Source: George Nash (APHIS). Approximately 70 percent of the
wheat produced in Texas is exported.
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This proposed rule also has the potential to enable the
approximately 25 producers in 4 north Texas counties (Young,
Throckmorton, Archer, and Baylor) with fields in a regulated area to
recover lost revenues. Based on their estimated production capacity of
about 81,000 bushels of wheat per crop season, the proposed rule, by
allowing the 25 growers to obtain the phytosanitary certificate with
the additional declaration needed to market their wheat for export, has
the potential to enable them to recover $145,000 or more in annual
revenues, based on current prices.\3\
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\3\ Source: Barte Smith (APHIS).
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Growers in Arizona and California would also benefit. The proposed
rule would enable the approximately 67 producers in Arizona with fields
that previously tested Karnal bunt-positive, to recover, collectively,
revenues estimated at about $1,433,000 per year. The four producers in
California with fields that previously tested positive would stand to
recover, collectively, about $210,000 per year in lost revenues.\4\
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\4\ Dollar estimates are derived from data provided by Michael
Hennessey and Cindy Umbdenstock (APHIS). Dollar estimates assume a
price differential of $1.80/bushel between uncertified and certified
wheat.
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Modifying Seed Planting Requirements
Under the current regulations, wheat seed grown in regulated areas
cannot be planted outside those areas. Under the proposed rule, such
seed would be eligible for planting outside the regulated areas if it
were tested and found free of both bunted kernels and spores.
Seed producers in regulated areas would benefit because they would
be able to sell their seed outside those areas, recapturing markets
that they had previously lost. Furthermore, by removing a disincentive
for certified seed producers to operate in regulated areas, the
proposed rule also has the potential to benefit owners of seed
conditioning equipment who operate in those areas.
Even producers who do not sell seed outside the regulated area
stand to benefit. In Texas, for example, it is not uncommon for
producers to hold back a quantity of grain for use as seed in the next
planting season. With the proposed changes in effect, producers in
regulated areas would be able to use their grain as seed in fields that
they operate outside the regulated area--instead of having to purchase
higher-priced commercial seed for use in those fields. In San Saba and
McCulloch Counties, TX, it is estimated that 14 producers would have
saved a total of about $60,000 this past crop season if they had been
able to use their grain as seed in fields that they operated outside
the regulated area.\5\ It is estimated that about half of the
approximately 450 wheat producers in the regulated areas of northern
Texas would benefit to at least some extent from this aspect of the
proposed rule.
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\5\ George Nash (APHIS).
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Removing Animal Manure From the List of Regulated Articles
Currently, manure from animals that have fed on untreated or raw
wheat is a regulated article under Sec. 301.89-2. Although not set
forth in the regulations, it has been our practice to require a 5-day
``clean-out'' period for livestock that have been fed untreated or raw
wheat before the animals can be moved from the regulated area. During
the clean-out period, livestock can be fed only Karnal bunt-negative
wheat or a non-host crop. The proposal would remove animal manure from
the list of regulated articles in Sec. 301.89-2, effectively
eliminating the clean-out requirement.
This aspect of the proposed rule would benefit livestock producers,
since the clean-out requirement may compel them to switch their animals
to an alternative, but less desirable, feed crop during the 5-day
period. A change in feeding rations during the clean-out period can
adversely impact weight gain, which, in turn, can adversely affect
animal prices. In northern Texas, where this proposed rule has the
potential to have the most impact, it has been estimated that cattle
can lose up to 20 percent of their weight in the first week following a
feed-crop change. For a single head of cattle weighing 700 lbs. before
clean out, therefore, the clean-out requirement can translate into a
loss of up to $109 (based on the current price of about $0.78/lb).
Livestock producers would further benefit because clean-out can
also involve gathering the animals and transporting them to a new
location, such as a new pasture, during the 5-day period. The time and
expense associated with gathering and transporting cattle to a new
location for clean-out would vary among individual livestock producers,
depending on such factors as the distance to the new location, the cost
for the use of the new location, and the equipment needed for transport
to the new location.
To date in northern Texas, only a few cattle producers have had to
clean out their animals, since most moved their animals before the
wheat reached the soft dough stage. However, there are at least 500
cattle producers in northern Texas who would potentially benefit from
this aspect of the proposed rule, including some who move up to about
25,000 head annually.\6\
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\6\ Source: Barte Smith (APHIS).
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[[Page 40539]]
Modifying Cleaning and Disinfecting Requirements for Seed Conditioning
Equipment
Under the current regulations, seed conditioning equipment used in
the production of any host crop must be cleaned and disinfected (using
USDA-approved methods) prior to being moved from the regulated area.
(Cleaning means the removal of all soil and plant debris, and
disinfecting means the treatment by one of three approved methods,
including steam and hot water and detergent.)
Under the proposal, only seed conditioning equipment that was used
to condition seed that was tested and found to contain spores or bunted
kernels would have to be cleaned and disinfected prior to being moved
from a regulated area (or prior to handling spore-negative seed).
As a result of this proposed rule, fewer pieces of portable seed
conditioning equipment would have to be cleaned and disinfected. The
affected entities would benefit, because a single cleaning and
disinfecting is estimated to cost at least $150. However, the number of
entities potentially affected by this aspect of the proposed rule, and
the potential impact on each, is unknown.
Economic Impact on Small Entities
The Regulatory Flexibility Act requires that agencies consider the
economic impact of their rules on small businesses, organizations, and
governmental jurisdictions. This proposed rule should have an overall
beneficial impact on the entities affected by the regulations,
especially wheat producers. However, we do not expect it would have a
significant economic impact on a substantial number of entities, large
or small.
Parts of three States (Texas, Arizona, and California) are
currently regulated for Karnal bunt. In Texas, there are approximately
285,000 agricultural acres and about 550 wheat producers under
regulation. The equivalent figures for Arizona and California are,
respectively, 465,000 acres (120 producers) and 105,000 acres (18
producers).
Wheat producers that would be affected by this proposal are likely
to be small in size, when judged by the U.S. Small Business
Administration's (SBA's) standards. This assumption is based on
composite data for providers of the same and similar services. In 1997,
Arizona had a total of 6,135 farms of all types. Of those farms, 89
percent had annual sales that year of less than $500,000, well below
the SBA's small entity threshold of $750,000 for wheat farms.
Similarly, the comparable percentages of small entities for Texas
(194,301 total farms) and California (74,126 total farms) were 98
percent, and 89 percent, respectively.
For some of the affected entities, especially the smaller ones, the
benefits of this proposed rule change could be substantial. However,
the number of entities that would experience substantial benefits
should be small relative to all entities potentially affected by this
proposed rule.
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.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
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 new 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 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 would continue to read as
follows:
Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
2. Section 301.89-1 would be amended by removing the definitions
for farm tools and milling products and byproducts and by adding, in
alphabetical order, definitions for grain, hay, host crops, plant,
seed, and straw and revising the definitions for contaminated seed,
infestation (infected), and mechanized cultivating equipment and
mechanized harvesting equipment to read as follows:
Sec. 301.89-1 Definitions.
* * * * *
Contaminated seed. Seed from sources in which the Karnal bunt
pathogen (Tilletia indica (Mitra) Mundkur) has been determined to exist
by the presence of bunted kernels or teliospores.
* * * * *
Grain. Wheat, durum wheat, and triticale used for consumption or
processing.
* * * * *
Hay. Host crops cut and dried for feeding to livestock. Hay cut
after reaching the dough stage may contain mature kernels of the host
crop.
Host crops. Plants or plant parts, including grain, seed, or hay,
of wheat, durum wheat, and triticale.
Infestation (infected). The presence of Karnal bunt, or any
identifiable stage of development (i.e., bunted kernels in grain,
bunted kernels or teliospores in seed) of the fungus Tilletia indica
(Mitra) Mundkur, or the existence of circumstances that make it
reasonable to believe that Karnal bunt is present.
* * * * *
Mechanized cultivating equipment and mechanized harvesting
equipment. Mechanized equipment used for soil tillage, including
tillage attachments for farm tractors--e.g., tractors, disks, plows,
harrows, planters, and subsoilers; mechanized equipment used for
harvesting purposes--e.g., combines, grain buggies, trucks, swathers,
and hay balers.
* * * * *
Plant. Any plant (including any plant part) for or capable of
propagation, including a tree, a tissue culture, a plantlet culture,
pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a
root, and a seed.
Seed. Wheat, durum wheat, and triticale used for propagation.
* * * * *
Straw. The vegetative material left after the harvest of host
crops. Straw is generally used as animal feed, bedding, mulch, or for
erosion control.
3. Section 301.89-2 would be revised to read as follows:
[[Page 40540]]
Sec. 301.89-2 Regulated articles.
The following are regulated articles:
(a) Conveyances, including trucks, railroad cars, and other
containers used to move host crops produced in a regulated area that
have tested positive for Karnal bunt through the presence of bunted
kernels;
(b) Grain elevators/equipment/structures used for storing and
handling host crops produced in a regulated area that have tested
positive for Karnal bunt through the presence of bunted kernels;
(c) Plants or plant parts (including grain, seed, and straw) and
hay cut after reaching the dough stage of all varieties of wheat
(Triticum aestivum), durum wheat (Triticum durum), and triticale
(Triticum aestivum X Secale cereale) that are produced in a regulated
area, except for straw/stalks/seed heads for decorative purposes that
have been processed or manufactured prior to movement and are intended
for use indoors;
(d) Tilletia indica (Mitra) Mundkur;
(e) Mechanized harvesting equipment that has been used in the
production of wheat, durum wheat, or triticale that has tested positive
for Karnal bunt through the presence of bunted kernels;
(f) Seed conditioning equipment and storage/handling equipment that
has been used in the production of wheat, durum wheat, and triticale
found to contain the spores of Tilletia indica; and
(g) Any other product, article, or means of conveyance when:
(1) An inspector determines that it presents a risk of spreading
Karnal bunt based on appropriate testing and the intended use of the
product, article, or means of conveyance; and
(2) The person in possession of the product, article, or means of
conveyance has been notified that it is regulated under this subpart.
4. Section 301.89-3 would be amended as follows:
a. In paragraph (d), by revising the fourth sentence to read as set
forth below.
b. By revising paragraph (e)(3) to read as set forth below.
c. By redesignating paragraph (f) as paragraph (g) and adding a new
paragraph (f) to read as set forth below.
d. In newly redesignated paragraph (g), by revising the
introductory text to read as set forth below.
Sec. 301.89-3 Regulated areas.
* * * * *
(d) * * * As soon as practicable, this area either will be added to
the list of designated regulated areas in paragraph (g) of this
section, or the Administrator will terminate the designation. * * *
(e) * * *
(3) It is a distinct definable area that contains at least one
field that has been determined to be associated with grain at a
handling facility containing a bunted kernel of a host crop (the
distinct definable area may include an area where Karnal bunt is not
known to exist but where intensive surveys are required because of the
area's proximity to the field associated with the bunted kernel at the
handling facility).
(f) A field known to have been infected with Karnal bunt, as well
as any non-infected acreage surrounding the field, will be released
from regulation if:
(1) The field is no longer being used for crop production; or
(2) Each year for a period of 5 consecutive years, the field is
subjected to any one of the following management practices (the
practice used may vary from year to year):
(i) Planted with a cultivated non-host crop;
(ii) Tilled once annually; or
(iii) Planted with a host crop that tests negative, through the
absence of bunted kernels, for Karnal bunt.
(g) The following areas or fields are designated as regulated areas
(maps of the regulated areas may be obtained by contacting the Animal
and Plant Health Inspection Service, Plant Protection and Quarantine,
4700 River Road Unit 98, Riverdale, MD 20737-1236):
* * * * *
5. Section 301.89-4 would be revised to read as follows:
Sec. 301.89-4 Planting.
Any wheat, durum wheat, or triticale that originates within a
regulated area must be tested and found free from bunted wheat kernels
and spores before it may be used as seed within or outside a regulated
area.
Sec. 301.89-5 [Amended]
6. Section 301.89-5 would be amended as follows:
a. In paragraph (a)(3), footnote 1, by removing the words
``Domestic and Emergency Operations, 4700 River Road Unit 134'' and
adding the words ``Surveillance and Emergency Programs Planning and
Coordination, 4700 River Road Unit 98'' in their place.
b. By removing paragraph (a)(4).
7. Section 301.89-6 would be amended as follows:
a. In the introductory text of paragraph (a), footnote 2, by
removing the words ``Domestic and Emergency Operations, 4700 River Road
Unit 134'' and adding the words ``Surveillance and Emergency Programs
Planning and Coordination, 4700 River Road Unit 98'' in their place and
by removing the words ``, or from the Karnal Bunt Project, 3658 E.
Chipman Rd. Phoenix, Arizona 85040''.
b. By revising paragraph (b) and the introductory text of paragraph
(c) to read as set forth below.
Sec. 301.89-6 Issuance of a certificate or limited permit.
* * * * *
(b) To be eligible for movement under a certificate, hay cut after
the dough stage or grain from a field within a regulated area must be
tested prior to its movement from the field or before it is commingled
with similar commodities and must be found free from bunted kernels. If
bunted kernels are found, the grain or hay will be eligible for
movement only under a limited permit issued in accordance with
paragraph (c) of this section, and the field of production will be
considered positive for Karnal bunt.
(c) An inspector or a person operating under a compliance agreement
will issue a limited permit for the movement outside the regulated area
of a regulated article not eligible for a certificate if the inspector
determines that the regulated article:
* * * * *
8. Section 301.89-7 would be amended by revising footnote 4 to read
as follows:
Sec. 301.89-7 Compliance agreements.
* * * * *\4\
----------------
\4\ Compliance agreements may be initiated by contacting a local
office of Plant Protection and Quarantine, which are listed in
telephone directories. The addresses and telephone numbers of local
offices of Plant Protection and Quarantine may also be obtained from
the Animal and Plant Health Inspection Service, Plant Protection and
Quarantine, Surveillance and Emergency Program Planning and
Coordination, 4700 River Road Unit 98, Riverdale, Maryland 20737-
1236.
9. Section 301.89-12 would be revised to read as follows:
Sec. 301.89-12 Cleaning, disinfection, and disposal.
(a) Mechanized harvesting equipment that has been used to harvest
host crops that test positive for Karnal bunt based on the presence of
bunted kernels must be cleaned and, if disinfection is determined to be
necessary by an inspector, disinfected in accordance with Sec. 301.89-
13 prior to movement from a regulated area.
(b) Seed conditioning equipment that was used in the conditioning
of seed that was tested and found to contain
[[Page 40541]]
spores or bunted kernels of Tilletia indica must be cleaned and
disinfected in accordance with Sec. 301.89-13 prior to being used in
the conditioning of seed that has tested negative for the spores of
Tilletia indica or to being moved from a regulated area.
(c) Any grain storage facility, including on-farm storage, that is
used to store seed that has tested bunted-kernel or spore positive or
grain that has tested bunted-kernel positive must be cleaned and, if
disinfection is determined to be necessary by an inspector, disinfected
in accordance with Sec. 301.89-13 if the facility will be used to
store grain or seed in the future.
(d) Conveyances used to move bunted-kernel-positive host crops,
including trucks, railroad cars, and other containers, that have
sloping metal sides leading directly to a bottom door or slide chute,
are self cleaning and will not be required to be cleaned and
disinfected.
(e) Spore-positive wheat, durum wheat, or triticale seed that has
been treated with any chemical that renders it unfit for human or
animal consumption must be disposed of by means of burial under a
minimum of 24 inches of soil in a non-agricultural area that will not
be cultivated or in an approved landfill.
10. Section 301.89-13 would be revised to read as follows:
Sec. 301.89-13 Treatments.
All conveyances, mechanized harvesting equipment, seed conditioning
equipment, grain elevators, and structures used for storing and
handling wheat, durum wheat, or triticale required to be cleaned under
this subpart must be cleaned by removing all soil and plant debris. If
disinfection is required by an inspector in addition to cleaning, the
articles must be disinfected by one of the methods specified in
paragraph (a), (b), or (c) of this section, unless a particular
treatment is designated by an inspector. The treatment used must be
that specified by an inspector:
(a) Wetting all surfaces to the point of runoff with one of the
following 1.5 percent sodium hypochlorite solutions and letting stand
for 15 minutes, then thoroughly washing down all surfaces after 15
minutes to minimize corrosion:
(1) One part Ultra Clorox brand regular bleach (6 percent sodium
hypochlorite; EPA Reg. No. 5813-50) in 3 parts water; or
(2) One part CPPC Ultra Bleach 2 (6.15 percent sodium hypochlorite;
EPA Reg. No. 67619-8) in 3.1 parts water.
(b) Applying steam to all surfaces until the point of runoff, and
so that a critical temperature of 170 [deg]F is reached at the point of
contact.
(c) Cleaning with a solution of hot water and detergent, applied
under pressure of at least 30 pounds per square inch, at a minimum
temperature of 170 [deg]F.
Sec. 301.89-14 [Removed and Reserved]
11. Section 301.89-14 would be removed and reserved.
Done in Washington, DC, this 1st day of July 2003.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-17202 Filed 7-7-03; 8:45 am]
BILLING CODE 3410-34-P