[Federal Register Volume 68, Number 130 (Tuesday, July 8, 2003)]
[Proposed Rules]
[Pages 40534-40541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17202]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 68, No. 130 / Tuesday, July 8, 2003 / 
Proposed Rules  

[[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 [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. 
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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \2\ Source: George Nash (APHIS). Approximately 70 percent of the 
wheat produced in Texas is exported.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \3\ Source: Barte Smith (APHIS).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \5\ George Nash (APHIS).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \6\ Source: Barte Smith (APHIS).

---------------------------------------------------------------------------

[[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