[Federal Register: February 23, 2004 (Volume 69, Number 35)]
[Rules and Regulations]
[Page 8091-8097]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe04-1]
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Rules and Regulations
Federal Register
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[[Page 8091]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 02-056-2]
Karnal Bunt; Revision of Domestic Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending our Karnal bunt regulations to incorporate
updates and improvements identified as a result of our review of their
provisions. The changes include clarifying our method for determining
Karnal bunt infestation and the circumstances under which a field or
area is 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 changes are
intended to improve the clarity and effectiveness of the regulations,
thus helping to prevent the spread of Karnal bunt within the United
States.
EFFECTIVE DATE: March 24, 2004.
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.
Following a review of our regulations, the Animal and Plant Health
Inspection Service (APHIS) published in the Federal Register, on July
8, 2003 (68 FR 40534-40541, Docket No. 02-056-1), a proposal to amend
them to improve their clarity, transparency, and effectiveness. More
specifically, the proposed changes included 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.
We solicited comments concerning our proposal for 60 days ending
September 8, 2003. We received nine comments by that date. The comments
were from State governments and grain producers' associations. All of
the commenters supported the proposed rule, but two suggested some
modifications to certain provisions. Specifically, the commenters urged
us to: Reconsider our decision to remove manure, soil, and milling
products from the list of regulated articles in the existing
regulations; clarify a provision pertaining to the regulation of grain
elevators, equipment, and structures; modify our criteria for the
release of a field from regulation; and develop procedures for seed
sampling and analysis and for inspectors to use to determine whether
certain regulated articles require disinfection. The comments are
discussed below by topic.
The commenters stated that manure should continue to be included on
the list of regulated articles. It was recommended that manure from
cattle that have been fed unprocessed Karnal bunt-positive host crops
or cattle that have been allowed to graze in known infected fields on
host crops that have developed past the heading stage should have to
remain within the regulated area and that such animals should be
subjected to a 5-day clean-out period before being moved outside a
regulated area. The commenters suggested that because bunted kernels
are not likely to be completely digested by cattle, the Karnal bunt
pathogen can survive in their digestive tracts; therefore, some risk
exists that bunted kernels could be dispersed through manure.
We will not be making any changes to the final rule in response to
these comments. Our decision to remove manure from the list of
regulated articles in Sec. 301.89-2 resulted, in part, from a change
in our regulatory goals. In 1996, manure was placed under regulation
because the goal of the Karnal
[[Page 8092]]
bunt regulatory program at that time was eradication, and research had
demonstrated that the Karnal bunt spore or pathogen could potentially
be spread in manure. The 5-day clean-out period was put into practice--
though never specified in the regulations--to mitigate this potential
risk. Since 1998, we have changed the focus of the program from
eradication to the management of risk associated with the disease, and
we have adopted the bunted kernel as the infestation standard.
In addition, in contrast to the commenters, we view the risk of
disseminating Karnal bunt through manure as very small. Cattle are
grazed on wheat and removed from the fields prior to the soft-dough
stage of plant growth. These cattle are not routinely fed bunted
kernels. A review of our regulatory records for the past 2 seasons
indicate less than 0.5 percent of the 186,500 head of cattle moved
under limited permits from regulated areas were required to undergo the
5-day clean-out. These cattle were subjected to the clean-out because
they had grazed in fields that were past the soft-dough stage and that
were within the regulated area; however, there are no records to
confirm the presence of the disease in the fields where the cattle
grazed. The percentage of cattle that actually grazed in infected
fields is likely to be much lower than the 0.5 percent figure, as known
infected fields represent a very small portion of the regulated areas
in the United States. We believe that there is a very minimal risk of
the spread of Karnal bunt spores through manure and an even smaller
risk--if any--that bunted kernels may be spread that way. One commenter
cited research indicating that 25 percent to 35 percent of healthy
kernels pass through the ruminant digestive tract without being
completely digested. A bunted kernel is not a healthy kernel of wheat,
however, and the structural integrity of the former is not equivalent
to that of the latter. Bunted kernels are very fragile and are easily
ruptured, and, thus, are less likely than healthy grain to pass through
the digestive tract of ruminant animals without being completely
digested.
The commenters also stated that soil in quantities sufficient to
harbor bunted kernels should continue to be listed among the regulated
articles for Karnal bunt. It was suggested that soil could not only
contain bunted kernels but could also serve as a mechanism for
spreading both the disease and the pathogen.
We have not observed soil originating in regulated areas being
moved in significant volumes. We have seen limited movement of soil
throughout a regulated area for use as fill, road construction, and
housing in areas. Soil moved and used in this way presents a minimal
risk of spreading Karnal bunt. Smaller quantities of soil have also
been permitted to move to approved laboratories for analytical
purposes. Such movement and processing present little risk of
disseminating the Karnal bunt pathogen. Finally, soil movement has also
been associated with the movement of harvesting equipment. All
equipment used to harvest bunted-kernel-positive wheat is required to
be cleaned prior to leaving a regulated area. The cleaning process
includes the removal of any soil on the equipment being cleaned, thus
minimizing any pest risk associated with the movement outside of a
regulated area of bunted kernels in soil. In addition, harvesting
equipment that is moving across State lines usually requires cleaning
for noxious weed seed, which also entails the removal of any soil on
the equipment. Therefore, we will not be making any changes to the
final rule in response to these comments.
The commenters also stated that certain milling products or
byproducts, such as screenings, should continue to be regulated, since
they may present a risk of spreading Karnal bunt. Such products or
byproducts, if produced from host crops within a regulated area, should
have to be handled, stored, and used within the regulated area,
according to the commenters.
We will not be making any changes to the final rule in response to
these comments. Bunted or damaged kernels are likely to be susceptible
to the milling process, i.e., unlikely to survive it intact. Moreover,
the screenings that result from the milling process are routinely used
for animal feed. In order for the animals to receive the maximum
benefit from this feed source, the screenings are routinely steam-
rolled or used in a pellet formulation. Both of these processes
mitigate the risk of transmitting the Karnal bunt pathogen.
The commenters also stated that proposed Sec. 301.89-2(b), which
listed as regulated articles grain elevators, equipment, and structures
used to store and handle Karnal bunt-positive host crops, needed
clarification. It was suggested that the paragraph could be interpreted
to apply only to those regulated articles used to store or handle
grain, since only bunted kernels are mentioned. One commenter noted
that proposed Sec. 301.89-12(c) addressed the cleaning and
disinfection requirements for facilities that stored either spore-
positive seed or bunted-kernel-positive grain, suggesting that, in the
final rule, the list of regulated articles in Sec. 301.89-2(b) should
also include storage facilities for seed that has tested positive for
spores.
As noted in our definition of infestation (infected) in proposed
Sec. 301.89-1, we regulate grain and seed according to different
criteria. Proposed Sec. 301.89-2(b) was intended to apply only to
articles used to store or handle grain that has tested positive for
bunted kernels; we addressed seed conditioning equipment and storage/
handling equipment separately in proposed Sec. 301.89-2(f). To
eliminate any possible confusion on the part of users of the
regulations, we have decided to rearrange Sec. 301.89-2 in the final
rule to place the provisions for grain and seed equipment adjacent to
one another. Proposed Sec. 301.89-2(f) will become Sec. 301.89-2(c)
in the final rule, with the remainder of the section reordered
accordingly, and a reference to structures will be added to better
align the paragraph with Sec. 301.89-2(b).
The commenters generally welcomed our efforts to develop uniform
criteria for removing fields from regulation, but took issue with some
parts of our list of acceptable field management practices in proposed
Sec. 301.89-3. Proposed Sec. 301.89-3 stated that a known infected
field, as well as surrounding non-infected acreage, could be released
from regulation if the field was no longer being used for crop
production or if it had been subjected each year, for 5 consecutive
years, to any one of the following management practices: Planting with
a cultivated non-host crop; tilling once annually; or planting with a
host crop that tests negative, through the absence of bunted kernels,
for Karnal bunt. The commenters argued that we should eliminate tilling
from the list because it does not prevent Karnal bunt infection if a
crop is allowed to head. The commenters also recommended that fields
planted with non-host crops be planted with ones that are not
cultivated annually, such as alfalfa; that if no crop is planted in a
regulated field during the first year of the 5-year period preceding
deregulation, the field should be required to undergo cultivation or
chemical fallow; and that the list of acceptable management practices
should be expanded to include planting the field with a host crop for
grazing, while ensuring the destruction of the crop prior to the boot
stage, and enrolling the field in the Conservation Reserve Program.
We will not be making any changes to the final rule in response to
these comments. Tillage is a proven method of reducing the spore load
in the soil. Tillage exposes spores to the
[[Page 8093]]
environment, which in turn causes the spores to deteriorate, resulting
in a decrease of the spore load in the soil. In addition, exposing the
spores to the surface without a host promotes ``suicidal germination''
of the teliospores, which also contributes to a decrease in the spore
load. Spores germinate when the environmental conditions are favorable,
regardless of whether there is a susceptible host plant. Suicidal
germination reduces the spore load and the probability of infection.
Another advantage of tilling is that it also prevents volunteer host
material from reaching the heading stage of growth. We do not agree
with the recommendation to plant non-host crops that are not cultivated
annually. If a field is not cultivated annually, spore longevity is
likely to increase. We do not believe chemical fallow should qualify as
an independent practice during the 5-consecutive-year period, as its
value, if any, in reducing the spore load in the soil is undetermined.
Planting a host crop for grazing is also problematic as a management
strategy. Many times, wheat is planted for grazing, and, depending on
the price of wheat, the crop is allowed to mature. We do not have the
authority to dictate what a wheat producer may plant on his farm, nor
may we condemn or require destruction of a crop without evidence of the
Karnal bunt pathogen. Finally, because a field enrolled in the
Conservation Reserve Program is not likely to undergo annual tilling,
spore longevity in the field is not likely to decrease.
One commenter criticized the proposed rule for not stating how seed
will be sampled and analyzed under the regulations. It was argued that
APHIS must develop, publish, and distribute procedures for these tasks,
adopt procedures to protect the seed supply from both bunted kernels
and teliospores, and develop procedures to deal with seed that tests
positive for bunted kernels or teliospores and for the facility in
which the seed was stored and the field in which it was produced.
We will not be making any changes to the final rule in response to
these comments. Procedures for seed sampling and analysis do exist and
are contained in APHIS's Karnal Bunt Manual, available on the Internet
at http://www.aphis.usda.gov/ppq/manuals/online_manuals.html#Karnal.
Protecting the seed supply from bunted kernels is not a concern
because, as noted earlier, if grain tests positive for bunted kernels,
it does not qualify as seed and could never be used as such. Procedures
to deal with seed that tests positive for teliospores, the facility in
which such seed was stored, and the field in which it was produced are
contained in various places in this final rule, including Sec. Sec.
301.89-3, 301.89-12, and 310.89-13.
One commenter took issue with some provisions of the cleaning,
disinfection, and disposal requirements that were contained in Sec.
301.89-12 of the proposed rule. Proposed paragraphs (a) and (c) stated
that an inspector may determine whether to require disinfection of
certain regulated articles. The commenter argued that since Sec.
301.89-12 does not include criteria for inspectors to use in making
such determinations, APHIS needed to develop such criteria and train
its staff in their use. The commenter also suggested that APHIS needed
to consider pertinent environmental factors, such as soil type, depth
of the water table, and the potential for product leaching and movement
in the soil, in regard to the burial of chemically treated seed that
has tested positive for Karnal bunt. Due to these and other factors,
meeting the 24-inch minimum depth requirement for burial that is
specified in Sec. 319.89-12(e) may not always be possible.
We will not be making any changes to the final rule in response to
these comments. The regulations address how APHIS will handle Karnal
bunt-negative grain, Karnal bunt-positive grain, and seed produced in a
regulated area. Any machinery or equipment associated with the
production of Karnal bunt host material will fall into one of these
three categories and be handled accordingly. Specific guidance will be
provided in the Karnal Bunt Manual, and staff training will be given.
Regarding the burial provision, our current practices and this
rulemaking do reflect our consideration of the environmental factors
cited by the commenter. We only allow burial of treated seed in
landfills approved by the U.S. Environmental Protection Agency or on
privately owned property with the owner's consent. We do not allow
burial in areas that are currently cultivated or in areas subject to
cultivation in the future. We do not allow burial of seed in areas
where the minimum 24-inch depth is not attainable.
Miscellaneous
Because we included tilling on our list of acceptable crop
management practices in proposed Sec. 301.89-3, we determined that we
needed to define the term. Section 301.89-1 of this final rule defines
tilling as the turning of a minimum of the top 6 inches of soil.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.
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.
This final rule is intended to improve the clarity, transparency,
and effectiveness of our Karnal bunt regulations. This rulemaking is
the result of a review of the regulations.
Of the substantive changes to the regulations contained in this
final rule, 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 changes--all of which are
expected to 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 regulations have not contained 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 rule establishes uniform criteria for the removal of
fields or areas from regulation.
Even wheat testing Karnal bunt-negative has not been 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), this rule will
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 will be
[[Page 8094]]
immediately eligible for deregulation since they have already satisfied
the 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 final 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, this 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 will also benefit. This rule will
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 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
The regulations have provided that wheat, durum wheat, or triticale
that is grown in regulated areas and intended for use as seed cannot be
planted outside those areas. Under this final rule, wheat, durum wheat,
or triticale grown in regulated areas will be eligible for planting
outside the regulated areas if it is tested and found free of bunted
kernels and spores.
Seed producers in regulated areas will benefit because they will 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 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 regulatory changes in effect, producers in
regulated areas will 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 will benefit to at least some extent from this aspect of the
final rule.
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\5\ George Nash (APHIS).
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Removing Animal Manure From the List of Regulated Articles
The regulations have listed manure from animals that have fed on
untreated or raw wheat as 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. This final rule removes
animal manure from the list of regulated articles in Sec. 301.89-2,
effectively eliminating the clean-out policy.
This aspect of the rule will benefit livestock producers, since the
clean-out policy 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 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 will 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 may 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 will potentially benefit from
this aspect of the final 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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Modifying Cleaning and Disinfecting Requirements for Seed Conditioning
Equipment
The regulations have provided that 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 this final rule, only seed conditioning equipment that was
used to condition seed that was tested and found to contain spores or
bunted kernels will 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 rule, fewer pieces of portable seed
conditioning equipment will have to be cleaned and disinfected. The
affected entities will 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 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 rule is expected to have an overall
beneficial impact on the entities affected by the regulations,
especially wheat producers. However, we do not expect that the rule
will have a significant economic impact
[[Page 8095]]
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 will be affected by this rule 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 rule may be substantial. However, the number of
entities that will experience substantial benefits is expected to be
small relative to all entities potentially affected by this rule.
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 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 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 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.
0
Accordingly, we are amending 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
0
1. The authority citation for part 301 continues 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).
0
2. Section 301.89-1 is 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, straw, and tilling 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.
Tilling. The turning of a minimum of the top 6 inches of soil.
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3. Section 301.89-2 is revised to read as follows:
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) Seed conditioning equipment and storage/handling equipment/
structures that have been used in the production of wheat, durum wheat,
and triticale found to contain the spores of Tilletia indica;
(d) 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;
(e) Tilletia indica (Mitra) Mundkur;
(f) 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; 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
[[Page 8096]]
(2) The person in possession of the product, article, or means of
conveyance has been notified that it is regulated under this subpart.
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4. Section 301.89-3 is amended as follows:
0
a. In paragraph (d), by revising the fourth sentence to read as set
forth below.
0
b. By revising paragraph (e)(3) to read as set forth below.
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c. By redesignating paragraph (f) as paragraph (g) and adding a new
paragraph (f) to read as set forth below.
0
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):
* * * * *
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5. Section 301.89-4 is 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]
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6. Section 301.89-5 is amended as follows:
0
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.
0
b. By removing paragraph (a)(4).
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7. Section 301.89-6 is amended as follows:
0
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''.
0
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:
* * * * *
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8. Section 301.89-7 is 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.
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9. Section 301.89-12 is 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 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 nonagricultural area that will not be
cultivated or in an approved landfill.
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10. Section 301.89-13 is 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
[[Page 8097]]
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 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 F.
Sec. 301.89-14 [Removed and Reserved]
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11. Section 301.89-14 is removed and reserved.
Done in Washington, DC, this 17th day of February, 2004.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-3807 Filed 2-20-04; 8:45 am]
BILLING CODE 3410-34-P