[Federal Register Volume 67, Number 83 (Tuesday, April 30, 2002)]
[Rules and Regulations]
[Pages 21159-21161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10566]



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  Federal Register / Vol. 67, No. 83 / Tuesday, April 30, 2002 / Rules 
and Regulations  

[[Page 21159]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 01-118-1]


Karnal Bunt; Restrictions on the Use of Grain Originating in a 
Regulated Area

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Karnal bunt regulations to prohibit grain 
grown in a regulated area from being used as seed outside the regulated 
areas. This action is necessary to address the absence in the 
regulations of an explicit prohibition on the use of grain grown in a 
regulated area as seed in fields located outside the regulated area. We 
are also removing the requirement that wheat seed, durum wheat seed, 
and triticale seed that originates within a regulated area be treated 
with a fungicide before it may be planted within a regulated area. This 
interim rule will help to prevent the artificial spread of Karnal bunt 
to fields outside the regulated area by prohibiting the use of 
potentially spore-positive grain as seed in those fields and will 
remove a treatment requirement that we have determined is not 
necessary.

DATES: This interim rule was effective April 25, 2002. We will consider 
all comments we receive that are postmarked, delivered, or e-mailed by 
July 1, 2002.

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. 01-118-1, 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. 01-118-1. If you use e-mail, 
address your comment to [email protected]. 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. 
01-118-1'' 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, Director, 
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 by spores, 
primarily through the movement of infected seed. 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.

Use of Grain as Seed

    The domestic quarantine and 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 define areas regulated for Karnal bunt and restrict the 
movement of regulated articles, including wheat seed and grain, from 
the regulated areas. Those movement restrictions are designed to 
prevent the artificial spread of Karnal bunt. Certain regulated 
articles are eligible for movement out of a regulated area under a 
certificate, which is a document in which an inspector or a person 
operating under a compliance agreement affirms that a specified 
regulated article meets the requirements of the regulations and may be 
moved to any destination. Other articles may be moved only under a 
limited permit, which is a document in which an inspector affirms that 
a specified regulated article not eligible for a certificate is 
eligible for movement only to a specified destination and in accordance 
with conditions specified on the permit. However, the regulations have 
not included an explicit prohibition on the use of grain grown in a 
regulated area as seed in fields located outside the regulated area.
    A recent case made apparent the need for such an explicit 
prohibition. In that case, grain produced in a Texas county that 
subsequently became a regulated area was moved to a storage facility 
outside that county before it was designated as a regulated area. Once 
the county was designated as a regulated area and it was determined 
that grain produced in that county was being stored outside the 
regulated area, the grain was tested for Karnal bunt and found free of 
bunted kernels. Because this grain originated in a regulated area and 
had not been found negative for Karnal bunt through testing at the 
field level, the grain (and the grain with which it had been 
commingled) was ineligible for movement under a certificate and could 
only move under limited permit. During routine audits of the issued 
limited permits from the storage facility, we discovered that some of 
the commingled grain had been sold for seed. Subsequent sampling at the 
facility of the lots sold as seed confirmed that the seed was spore 
positive, so the grain was not eligible for use as seed within the 
regulated area. Upon further investigation, we found that some of the 
commingled grain had been used as seed in fields outside the regulated 
area. It is, therefore, possible that the use of spore-positive grain 
as seed will result in the artificial spread

[[Page 21160]]

of Karnal bunt to the fields outside the regulated area in which it was 
planted. Although the regulations in Sec. 301.89-6(c) regarding limited 
permits state that regulated articles may be moved under a limited 
permit only if the movement will not result in the artificial spread of 
Karnal bunt, it appears that the absence of an explicit prohibition on 
the use of grain produced in a regulated area as seed outside the 
regulated area may have played a role in the case described above. This 
interim rule is necessary to prevent a recurrence of this situation.
    Specifically, we are amending Sec. 301.89-4, ``Planting,'' to add a 
paragraph prohibiting wheat, durum wheat, and triticale that originates 
within a regulated area from being planted outside a regulated area.
    We are also amending Sec. 301.89-6, ``Issuance of a certificate or 
limited permit,'' to prohibit wheat, durum wheat, and triticale that is 
moved out of a regulated area under a certificate from being used for 
planting outside the regulated area. These changes will help to prevent 
the artificial spread of Karnal bunt to fields outside the regulated 
area by explicitly prohibiting the use of potentially spore-positive 
grain as seed in those fields.

Seed Treatment

    The regulations also require that seed that originates within a 
regulated area must be treated with an approved fungicide before it may 
be planted within a regulated area. We are eliminating this requirement 
because we have been unable to conclusively establish that fungicide 
treatments applied to seed are effective in preventing Karnal bunt 
infection. The biology of the Karnal bunt pathogen is such that the 
disease does not occur until the flowering stage of the host plant, and 
then only if conditions are right; there is currently no supportive 
literature that shows the seed treatments reduce infection at 
flowering. We are, therefore, amending Sec. 301.89-4 to remove the 
requirement for fungicide treatment for wheat seed, durum wheat seed, 
and triticale seed that originates within a regulated area before it 
may be planted within a regulated area. Further, the removal of this 
treatment requirement means that the seed treatment methods listed in 
Sec. 301.89-13(d) are no longer necessary, so we are amending 
Sec. 301.89-13, ``Treatments,'' by removing paragraph (d).

Miscellaneous

    We are also making one minor editorial change to Sec. 301.89-6(d). 
That paragraph has referred to the issuance of certificates under 
Sec. 301.89-6(a) and limited permits under Sec. 301.89-6(b). However, 
paragraphs (a) and (b) of Sec. 301.89-6 currently pertain to the 
issuance of certificates, and the requirements for the issuance of 
limited permits are in paragraph (c) of that section. We have, 
therefore, amended Sec. 301.89-6(d) so that it refers to the correct 
paragraphs.

Immediate Action

    Immediate action is necessary to prevent the artificial spread of 
Karnal bunt to fields outside the regulated area and to remove a 
treatment requirement that we have determined is unnecessary. Under 
these circumstances, the Administrator has determined that prior notice 
and opportunity for public comment are contrary to the public interest 
and that there is good cause under 5 U.S.C. 553 for making this action 
effective less than 30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    We are amending the Karnal bunt regulations to prohibit grain grown 
in a regulated area from being used as seed outside the regulated 
areas. This action is necessary to address the absence in the 
regulations of an explicit prohibition on the use of grain grown in a 
regulated area as seed in fields located outside the regulated area. We 
are also removing the requirement that wheat seed, durum wheat seed, 
and triticale seed that originates within a regulated area be treated 
with a fungicide before it may be planted within a regulated area.
    Currently, major foreign importers will not accept U.S. wheat 
unless it can be certified as coming from an area where Karnal bunt is 
not known to exist. To the extent that it helps prevent the artificial 
spread of Karnal bunt in the United States, this interim rule has the 
potential for averting the loss of export sales of U.S. wheat. The 
potential economic benefits are substantial; perhaps as much as 20 to 
25 percent of U.S. wheat exports are contingent on the Karnal bunt 
certification. During the first 10 months of 2001, the U.S. exported 
20.7 million metric tons of wheat, valued at $2.7 billion.
    As a practical matter, this interim rule's prohibition on the use 
of grain grown in a regulated area from being used as seed outside the 
regulated area is likely to have little or no negative economic impact. 
This is because most growers outside regulated areas, aware of the 
risks involved, are unlikely to knowingly use grain grown in a 
regulated area as seed. Furthermore, this specific prohibition would 
have no impact on the ability of growers in non-regulated areas to 
continue using grain (as opposed to the more costly certified seed) for 
planting. Growers in non-regulated areas will still be able to use 
grain as seed, as long as it is grown outside the regulated areas.
    This aspect of the interim rule also will not prevent growers and 
handlers in regulated areas from selling their spore-positive (but 
bunted kernel negative) wheat outside regulated areas; they will still 
be able to do so, as long as it is used for grain or another approved 
purpose.
    The removal of the fungicide requirement will save growers 
approximately $225,000 per year for seed produced within the regulated 
area. Most of the savings (approximately $175,000) will accrue to 
growers in the four regulated northern Texas counties of Archer, 
Baylor, Throckmorton, and Young. The balance of the savings will accrue 
to growers in San Saba County, TX, and in the regulated areas of 
California. The cost of fungicide treatment varies, but generally runs 
from $0.50 to $1 per bushel. The savings might potentially affect 
approximately 470 growers, at an average of $479 per grower.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of their rules on small businesses, organizations, and 
governmental jurisdictions. Growers and handlers of wheat (especially 
those in or near the regulated areas of Texas) are the entities most 
likely to be affected by this interim rule.
    It is estimated that there are a total of 450 to 500 wheat growers 
and handlers in the regulated areas of Texas, most of whom are growers 
with total annual sales of less than $750,000, the Small Business 
Administration's threshold for classifying wheat producers as small 
entities. Accordingly, any economic impact of the rule change will fall 
largely on small entities.
    As explained previously, this rule's prohibition on the use of 
grain grown in a regulated area as seed in fields outside

[[Page 21161]]

the regulated area is likely to have little or no economic impact. The 
removal of the fungicide treatment requirement will save growers the 
cost of treatment, which varies from $0.50 to $1 per bushel, thus 
resulting in a slight reduction in per-acre planting costs.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This 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 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 are amending 7 CFR part 301 to read as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 continues to read as 
follows:

    Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 
7752, 7753, and 7754; 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 301.89-4 is revised to read as follows:


Sec. 301.89-4  Planting.

    (a) Wheat, durum wheat, and triticale may be planted in all fields 
within a regulated area. All wheat seed, durum wheat seed, and 
triticale seed that originates within a regulated area must be tested 
and found free from spores and bunted wheat kernels before it may be 
planted within a regulated area.
    (b) No wheat, durum wheat, or triticale that originates within a 
regulated area may be used for planting outside a regulated area.

    3. In Sec. 301.89-6, paragraph (b) is amended by adding a new 
sentence after the last sentence, and paragraph (d) is amended by 
revising the last sentence to read as follows:


Sec. 301.89-6  Issuance of a certificate or limited permit.

* * * * *
    (b) * * * No wheat, durum wheat, or triticale moved out of a 
regulated area under a certificate may be used for planting outside the 
regulated area.
* * * * *
    (d) * * * These certificates and limited permits may then be 
completed and used, as needed, for the movement of regulated articles 
that have met the applicable requirements of paragraphs (a) and (b) of 
this section for the issuance of certificates or of paragraph (c) of 
this section for the issuance of limited permits.


Sec. 301.89-13  [Amended]

    4. In Sec. 301.89-13, paragraph (d) is removed and reserved.

    Done in Washington, DC, this 25th day of April 2002.
W. Ron DeHaven,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-10566 Filed 4-29-02; 8:45 am]
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