[Federal Register Volume 69, Number 42 (Wednesday, March 3, 2004)]
[Proposed Rules]
[Pages 9976-9982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4723]


 ========================================================================
 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. 69, No. 42 / Wednesday, March 3, 2004 / 
Proposed Rules  

[[Page 9976]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 02-057-1]
RIN 0579-AB74


Karnal Bunt; Revision of Regulations for Importing Wheat

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend our regulations regarding the 
importation of wheat from regions affected with Karnal bunt. Our 
proposed amendments would, among other things, list such regions, as 
well as articles that would be regulated for Karnal bunt; increase the 
flexibility of the regulations so that they could provide more readily 
for the recognition of areas where Karnal bunt is not known to occur 
within regions where Karnal bunt is known to be present; describe 
conditions, including requirements for phytosanitary certificates, 
under which wheat and related articles from regions affected with 
Karnal bunt could be imported into the United States; and specify 
cleaning and/or disinfection requirements for imported farm machinery 
and other equipment used to handle or store Karnal bunt-positive seed 
or host crops. The proposed changes would make our regulations 
regarding the importation of wheat and related articles from regions 
affected with Karnal bunt substantively equivalent to our domestic 
Karnal bunt regulations and would bring the former into compliance with 
international agreements to which the United States is a party.

DATES: We will consider all comments that we receive on or before May 
3, 2004.

ADDRESSES: You may submit comments by any of the following methods:
    [sbull] Postal Mail/Commercial Delivery: Please send four copies of 
your comment (an original and three copies) to Docket No. 02-057-1, 
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. 02-057-1.
    [sbull] 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. 02-057-1'' on the subject line.
    [sbull] Agency Web Site: Go to http://www.aphis.usda.gov/ppd/rad/cominst.html for a form you can use to submit an e-mail comment through 
the APHIS Web site.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    Reading Room: 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.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Ms. Jeanne Van Dersal, Import 
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

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. Karnal bunt is found 
in Afghanistan, India, Iraq, Pakistan, and portions of Mexico and the 
United States.
    To ensure the retention of U.S. export markets, the Animal and 
Plant Health Inspection Service (APHIS) of the United States Department 
of Agriculture (USDA) has regulations in place to prevent the further 
spread of Karnal bunt within the United States and the further 
introduction of Karnal bunt into uninfested areas of the United States, 
i.e., we regulate both the importation and interstate movement of wheat 
and related articles from areas where Karnal bunt is known to occur. 
Our domestic Karnal bunt regulations are contained in Subpart-Karnal 
Bunt (7 CFR 301.89-1 through 301.89-16). Our Karnal bunt-related import 
regulations are contained in Subpart-Wheat Diseases (7 CFR 319.59 
through 7 CFR 319.59-2).
    As now written, our domestic and import regulations concerning 
Karnal bunt are inconsistent in that, with certain exceptions, we 
prohibit the importation of wheat and related articles from some 
regions because of Karnal bunt but allow similar wheat and related 
articles to move domestically. As a member of the World Trade 
Organization and the International Plant Protection Convention (IPPC), 
the United States has agreed not to impose more stringent requirements 
on imports than it imposes on the movement of similar articles 
domestically.
    Therefore, we are proposing to amend our import regulations 
pertaining to Karnal bunt so that they will be substantively equivalent 
to our domestic Karnal bunt regulations. Our proposed amendments would, 
among other things, add several new definitions; list articles that 
would be regulated for Karnal bunt; list regions affected with Karnal 
bunt; increase the flexibility of the regulations so that they could 
provide more readily for the recognition of areas where Karnal bunt is 
not known to occur within regions where Karnal bunt is known to be 
present; describe conditions, including requirements for phytosanitary 
certificates, under which wheat and related articles from areas 
affected with Karnal bunt areas could be imported into the United 
States; and specify cleaning and/or disinfection requirements for 
imported farm machinery, conveyances, mechanized harvesting equipment, 
and seed

[[Page 9977]]

conditioning equipment that have been used to handle or store Karnal 
bunt-positive seed or host crops. These proposed changes would make our 
Karnal bunt-related import regulations substantively equivalent to our 
domestic Karnal bunt regulations and would bring the former into 
compliance with international agreements to which the United States is 
a party.
    On February 23, 2004, we published in the Federal Register (69 FR 
8091-8097, Docket No. 02-056-2) a final rule that amended our domestic 
Karnal bunt regulations in order to improve their clarity, 
transparency, and effectiveness. The changes we are proposing to the 
import regulations in this document parallel our changes to the 
domestic regulations as much as possible.
    Currently, the regulations in Sec. Sec.  319.59 through 319.59-2 
prohibit the importation of wheat and related articles from certain 
areas in order to prevent the introduction of flag smut and Karnal bunt 
to the United States. We are proposing to amend the Karnal bunt-related 
provisions in these regulations to allow the importation into the 
United States of wheat and other regulated articles from regions 
affected with Karnal bunt under certain conditions.
    To ensure greater clarity and readability, we would also reorder 
the regulations and separate some of the new provisions pertaining to 
Karnal bunt from the existing flag smut provisions, which would remain 
essentially unchanged. The existing Sec.  319.59 would be removed, and 
its prohibition on the importation of various articles due to flag smut 
and its provisions pertaining to disposal of articles refused 
importation would be moved to other sections. Our proposed Sec.  
319.59-1 would, like the existing section, contain a list of 
definitions. Current Sec.  319.59-2 includes provisions related to both 
flag smut and Karnal bunt under the heading Prohibited articles. Our 
proposed Sec.  319.59-2 would also include some general provisions 
applicable to both of these wheat diseases, such as a prohibition on 
the importation of wheat plants, exceptions to the regulations for 
certain imported articles, and the requirements found in the current 
Sec.  319.59(b) for disposal of articles refused importation. Under our 
proposal, however, most of the requirements in current Sec.  319.59-2 
relating to flag smut would be contained in a new Sec.  319.59-3, and 
the new Karnal bunt regulations would be contained in a new Sec.  
319.59-4.
    These proposed changes would not have any substantive effect on the 
import prohibitions related to flag smut in the current regulations. On 
February 7, 2003, however, APHIS published an advance notice of 
proposed rulemaking (ANPR) in the Federal Register (68 FR 6362-6363, 
Docket No. 02-058-1) concerning possible changes to the flag smut 
regulations. A recent pest risk assessment indicated that U.S. wheat 
would not appear to be at risk from foreign strains of flag smut if we 
were to remove the current import prohibitions. We are currently 
reviewing public comments received in response to the ANPR and 
considering whether to proceed with rulemaking on flag smut.

Definitions

    We are proposing to add several new definitions to Sec.  319.59-1 
that would match the definitions in our domestic Karnal bunt 
regulations. Specifically, we would add definitions for grain, hay, 
host crops, plant, seed, and straw. All of these proposed definitions 
relate to articles that we would regulate for Karnal bunt under 
proposed Sec.  319.59-4. Including definitions of these articles could 
aid users in understanding and conforming to the regulations. We would 
define grain as wheat, durum wheat, and triticale used for consumption 
or processing. We would define hay as consisting of host crops cut and 
dried for the feeding of livestock. The definition would also note that 
when the hay is cut after reaching the dough stage, it may contain 
mature kernels of the host crop. 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 are proposing 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 same definition provided in the Plant Protection 
Act (7 U.S.C. 7701 et seq.) and one that has been incorporated into the 
domestic regulations. We propose to define seed as wheat, durum wheat, 
and triticale used for propagation. Straw would be defined as the 
vegetative material left after the harvest of host crops. The proposed 
definition would also refer to the common uses of straw as animal feed, 
bedding, mulch, or erosion control.
    We are proposing to remove the definition of disease, which we view 
as potentially confusing to users of the regulations. Currently, it is 
defined to include its common meaning and any disease agent which 
incites a disease. Instead, we employ the term throughout this proposed 
rule in the sense in which it is commonly understood. We would also 
remove the definition of prohibited article. The regulations in Sec.  
319.59-3(a) would list those articles that are prohibited articles, so 
it would not be necessary to define the term.
    For consistency with our other regulations in title 7, we are also 
proposing to replace the existing definitions of Deputy Administrator 
and Plant Protection and Quarantine with definitions for Administrator 
and Animal and Plant Health Inspection Service (APHIS), respectively, 
update the definitions of inspector and United States, and eliminate 
the definitions of person and Secretary.

General Import Prohibitions; Exceptions

    We are proposing to add a new Sec.  319.59-2 that would contain 
some general provisions that would apply to both flag smut and Karnal 
bunt. Proposed paragraph (a) would prohibit the importation of wheat 
(Triticum spp.) plants into the United States from any country other 
than Canada, except as provided in proposed paragraph (b) or under the 
conditions set forth in proposed Sec.  319.59-4(a)(2), which is 
discussed below. The importation of wheat plants from specified regions 
is currently prohibited under the regulations. Our proposed Sec.  
319.59-2(a) would note, however, that the prohibition on the 
importation of wheat plants would not include seed. Proposed paragraph 
(b), which would be almost identical to the current Sec.  319.59-2(c) 
except for a few slight modifications in language that would reflect 
the changed status of Karnal bunt and the revised format of the 
regulations, would provide conditions under which the USDA could 
import, for scientific or experimental purposes, those articles for 
which importation would otherwise be prohibited due to flag smut or 
restricted due to Karnal bunt. Finally, we would remove current Sec.  
319.59(b), which provides for the removal, safeguarding, and/or 
destruction of articles refused importation into the United States 
under the flag smut and Karnal bunt regulations. These safeguarding 
provisions are spelled out in the Plant Protection Act, so we do not 
believe it is necessary to reproduce them in the regulations.

Flag Smut

    The regulations that pertain specifically to flag smut, which are 
found in current Sec.  319.59-2(a), would be moved to a new Sec.  
319.59-3. Proposed Sec.  319.59-3(a) would contain the same flag smut-
related prohibitions on

[[Page 9978]]

imports of seeds, plants, straw, chaff, and milling products as does 
the current Sec.  319.52-2(a). The list of countries from which imports 
are prohibited due to flag smut would remain unchanged but would be 
moved to proposed Sec.  319.59-3(b).

Karnal Bunt

    We would remove current Sec.  319.59-2(b), which enumerates, among 
other things, Karnal bunt-related import prohibitions on wheat and 
related articles from certain areas, as well as the boundaries of areas 
in Mexico designated as free of Karnal bunt. These provisions would no 
longer apply under this proposed rulemaking.
    Replacing these existing regulations would be a new Sec.  319.59-4, 
which would set out requirements for the importation of wheat and 
related articles from areas in which Karnal bunt is present. This new 
section would include lists of regulated articles and regions where 
Karnal bunt is present and descriptions of requirements for handling, 
inspection, phytosanitary certificates, and treatments of regulated 
articles imported from regions where Karnal bunt is present.
    Proposed paragraph (a) would list articles subject to restrictions 
because they could present a risk of spreading Karnal bunt if imported 
into the United States. This list would largely parallel the list of 
regulated articles in Sec.  301.89-2 of the domestic Karnal bunt 
regulations, but would omit certain items, such as grain elevators, 
that would not be imported into the United States. The list would 
include the following articles:
    [sbull] Conveyances, including trucks, railroad cars, and other 
containers used to move host crops produced in a Karnal bunt-affected 
region that test positive for Karnal bunt through the presence of 
bunted kernels;
    [sbull] Plants or plant parts, including grain, seed, straw, or hay 
of all varieties of wheat, durum wheat, and triticale that are produced 
in a Karnal bunt-affected region, except for straw/stalks/seed heads 
for decorative purposes that have been processed or manufactured prior 
to movement and are intended for use indoors;
    [sbull] The Karnal bunt pathogen, Tilletia indica (Mitra) Mundkur;
    [sbull] 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
    [sbull] Seed conditioning equipment and storage/handling equipment 
that has been used in the production of wheat, durum wheat, or 
triticale seed found to contain the spores of Tilletia indica.
    Proposed paragraph (b) would list regions where Karnal bunt is 
present. The list would include the same five countries-Afghanistan, 
India, Iraq, Mexico, and Pakistan-named in the current Sec.  319.59-2. 
We would make one substantive change, however. The boundaries of areas 
in Mexico where Karnal bunt is not known to occur, which are described 
in the current Sec.  319.59-2(b), would no longer be applicable. 
Instead, our proposed Sec.  319.59-4(b)(2) would indicate that the 
Administrator may authorize importation of wheat under Sec.  319.59-
4(c) whenever he or she determines that the wheat is being imported 
from an area that meets the requirements of the IPPC's International 
Standard for Phytosanitary Measures (ISPM) No. 4, ``Requirements for 
the establishment of pest free areas.'' ISPM No. 4 is incorporated by 
reference in our regulations in 7 CFR part 300. ISPM No. 4 is available 
by writing to USDA, APHIS, PPQ, Phytosanitary Issues Management, 4700 
River Road Unit 140, Riverdale, MD 20737-1236, or on the Internet at 
http://www.aphis.usda.gov/ppq/pim/standards/.
    The IPPC, of which the United States is a member, establishes 
standards to achieve international harmonization of phytosanitary 
measures. ISPM No. 4 requires that for an area to be considered as free 
of a particular plant pest, it must have a system to establish freedom, 
phytosanitary measures to maintain freedom, and a system for the 
verification of the maintenance of freedom.
    We would publish a notice in the Federal Register and maintain on 
an APHIS website a list of the specific areas that are approved in 
accordance with ISPM No. 4 as areas in which Karnal bunt is not known 
to occur, in order to provide the public with current, valid 
information. Areas listed on the website would be subject to audit by 
APHIS to verify that they continue to merit such listing. Overall, our 
proposed Sec.  319.59-4(b)(2) would make our regulations more flexible 
by allowing us, more expeditiously, to recognize areas where Karnal 
bunt is not known to exist within regions where Karnal bunt is known to 
be present.
    Proposed paragraph (c) contains requirements for the handling and 
inspection of the wheat and related articles listed in proposed 
paragraph (a)(2) when those articles are imported into the United 
States from the regions listed in proposed paragraph (b)(1) and for the 
phytosanitary certificates that would have to accompany such articles. 
To be eligible for importation into the United States, regulated 
articles would have to have originated in an area that has been 
determined by APHIS to be an area in which Karnal bunt is not known to 
occur, either at the area level or at the field level. Area-level 
freedom would be based on the Administrator's determination, in 
accordance with the previously described provisions of proposed Sec.  
319.59-4(b), that the area in which the articles originated meets the 
ISPM No. 4 standards for the establishment of pest free areas. Field-
level freedom would be based on the articles having been tested and 
found to be free of Karnal bunt. We would also require that the 
articles not be commingled prior to arrival at a U.S. port of entry 
with articles originating in areas where Karnal bunt is known to occur. 
These proposed restrictions are necessary to prevent contaminated 
articles from entering the United States.
    Upon entry into the United States, the articles would have to be 
made available for examination by an inspector and remain at the port 
until released, or authorized further movement pending release, by an 
inspector. In order to enable APHIS to verify that the articles are 
being imported in compliance with the regulations, the articles would 
also have to be accompanied by a phytosanitary certificate issued by 
the national plant protection organization of the region of origin that 
includes the following additional declaration: ``These articles 
originated in areas where Karnal bunt is not known to occur, as 
attested to either by survey results or by testing for bunted kernels 
or spores.'' When necessary, APHIS could use approved testing 
procedures to verify the accuracy of such a declaration.
    Proposed paragraph (d) contains treatment requirements for 
regulated articles other than those listed in proposed paragraph (a)(2) 
when those articles are being imported from regulated areas into the 
United States. In accordance with the treatments prescribed in our 
domestic regulations, this paragraph would contain requirements for 
conveyances and mechanized harvesting equipment; grain storage and 
handling equipment; and seed conditioning equipment.
    Proposed paragraph (d)(1) lists regulated articles that must be 
cleaned prior to entry into the United States by removing any soil and 
plant debris that may be present. The cleaning requirement would apply 
to the following articles: All conveyances and mechanized harvesting 
equipment used for storing and handling wheat, durum wheat, or 
triticale that tested positive for Karnal bunt based on bunted kernels; 
all

[[Page 9979]]

grain storage and handling equipment used to store or handle seed that 
has tested spore-positive or grain that has tested bunted-kernel 
positive and that will be used again to store or handle seed in the 
future; and all seed-conditioning equipment used to store or handle 
seed that has tested spore positive and that will be used again to 
store or handle seed in the future.
    Proposed paragraph (d)(2) states that the conveyances and 
mechanized harvesting equipment referred to in paragraph (d)(1)(i) and 
the grain storage and handling equipment referred to in paragraph 
(d)(1)(ii) would require disinfection in addition to cleaning prior to 
importation if an inspector or a plant protection official of the 
country of origin determines that disinfection is necessary to prevent 
the spread of Karnal bunt. Because cleaning alone may suffice to remove 
bunted kernels from such articles or equipment, disinfection may not be 
required in all cases. Additionally, proposed paragraph (d)(2) states 
that disinfection is required for all seed conditioning equipment 
covered under paragraph (d)(1)(iii) prior to entry into the United 
States. Our requirements for seed conditioning equipment would be more 
stringent than those for the other articles listed in paragraph (d)(1) 
because disinfection is thought to be necessary to deactivate spores.
    Proposed paragraph (d)(3) specifies three possible treatment 
options--application of a sodium hypochlorite and water solution, 
steam, or a hot water and detergent solution--that may be employed on 
articles required to undergo disinfection under paragraph (d)(2), 
unless a particular treatment is designated by an inspector or by a 
plant protection official of the country of origin. The bleach 
treatment requires wetting all surfaces to the point of runoff with a 
1.5 percent sodium hypochlorite solution and letting stand for 15 
minutes, then thoroughly washing down all surfaces after 15 minutes to 
minimize corrosion. The 1.5 percent sodium hypochlorite solution is 
equivalent in strength to that approved for domestic use by the 
Environmental Protection Agency. The steam and hot water and detergent 
treatments are identical to those in our domestic regulations. Steam 
must be applied 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. The hot water and detergent solution must be applied under 
pressure of at least 30 pounds per square inch at a minimum temperature 
of 170 [deg]F.
    By making our import regulations consistent with our domestic 
regulations, this proposed rule would bring our import regulations into 
compliance with international agreements to which the United States is 
a party while continuing to prevent the introduction of Karnal bunt 
into 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 significant for the purposes of 
Executive Order 12866 and, therefore, has been reviewed by the Office 
of Management and Budget.
    For this rule, we have prepared an economic analysis. The economic 
analysis provides a cost-benefit analysis as required by Executive 
Order 12866, as well as an analysis of the potential economic effects 
of this proposed rule on small entities, as required under 5 U.S.C. 
603. The economic analysis is summarized below. Copies of the full 
analysis are available by writing or calling the person listed under 
FOR FURTHER INFORMATION CONTACT.
    This proposed rule would amend the import regulations pertaining to 
Karnal bunt to make them substantively equivalent to the domestic 
Karnal bunt regulations and would help the United States meet its 
obligations under international agreements to which it is a party.
    The economic analysis investigates the potential economic effects 
in the United States that may result from the removal of Karnal bunt-
related restrictions on wheat imports. It is anticipated that any 
additional wheat imports that do occur as a result of this rule would 
be from Mexico. Other countries affected with Karnal bunt which may be 
eligible to import wheat to the United States under the proposed 
regulations may still be precluded for a number of reasons, including 
the presence of other wheat pests.
    Mexican wheat exports since 1995 have been almost exclusively durum 
wheat. It is therefore expected that additional imports from any new 
Karnal-bunt-free areas in Mexico would also be durum wheat. For the 
period 1998-2001, the annual average durum production in the United 
States was 3 million metric tons (MT). About 13 percent of the U.S. 
durum wheat supply is composed of imports, approximately 2 percent of 
which was from the Karnal-bunt-free area of the Mexicali Valley in 
Mexico.
    Two scenarios for U.S. wheat importation from Mexico are 
considered, assuming no displacement of other imports. The first 
scenario analyzes the impact of additional Mexican durum wheat exports 
to the United States of an amount equal to 1 percent of total wheat 
production in newly recognized free areas (about 7,000 MT). This 
reflects the fact that about 1 percent of the wheat production in the 
Mexicali Valley, which is already eligible to be shipped to the United 
States, is indeed exported to the United States. The second scenario 
analyzes the impact of additional Mexican durum wheat exports to the 
United States of an amount equal to 12 percent of total wheat 
production in the five Mexican States (about 87,000 MT). For the period 
1998-2001, Mexican wheat exports to the world represented on average 
approximately 11.6 percent of total Mexican wheat production annually.
    There are reasons to believe that new imports would be limited and 
that the first scenario more closely approximates the amount of Mexican 
wheat that may eventually enter the U.S. market. Under this scenario, 
the new imports are estimated to be an addition of 7,280 MT, which 
approximates the 1 percent share of Mexican wheat production from the 
Mexicali Valley that was exported to the United States between 1998 and 
2001.\1\ Despite the fact that the U.S. market has been open to imports 
of wheat from one of Mexico's largest producing areas (the Mexicali 
Valley) since 1998, Mexican wheat exports directed to the United States 
between 1998 and 2001 has averaged less than 5 percent of all Mexican 
wheat exports.
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    \1\ The composition of wheat production and exports is known for 
Mexico as a whole, but not for individual Mexican States. For the 
purpose of this analysis, it is assumed that the potential new 
exports from the five States follow the pattern of exports and 
production from the KB-free areas of the Mexicali Valley.
---------------------------------------------------------------------------

    Another reason to believe that the quantity of new wheat imports 
from Mexico that may occur as a result of the proposed changes would be 
small is due to the fact that Mexico's population consumes far more 
wheat than the country produces, as evident in its status as a net 
importer. Given that the five States that would likely qualify as 
Karnal-bunt-free under the proposed regulations are located closer to 
Mexican population centers in the central and southern part of Mexico, 
it is anticipated that most shipments of wheat from these areas would 
remain in the local vicinity rather than shipped to the United States.
    The entry of additional durum wheat from Mexico into U.S. markets 
would induce producer losses for U.S. producers of durum wheat and 
consumer gains. Under the most likely scenario of new wheat imports of 
7,280

[[Page 9980]]

MT, and assuming a demand elasticity of -0.35 and a supply elasticity 
of 0.34, prices of durum wheat could potentially decrease by about 0.3 
percent. Producers would potentially lose about $1.11 million while 
consumers potentially gain $1.12 million. The net benefit in this 
scenario would be about $10,000. Under the less likely scenario of a 
new import quantity of 87,000 MT, durum wheat prices could decline by 4 
percent. Consumer gains of $13.54 million would just offset producer 
losses of $13.35 million, resulting in a net benefit of $186,000. In 
both cases, consumer benefits would be slightly higher than producer 
losses, which would lead to a net positive impact on the overall 
economy. To put the producer surplus reductions in perspective, the 
average annual value of durum wheat production in the United States for 
1998-2001 was $326.3 million. Thus, while the economic effects of 
increased wheat imports from Mexico would be on domestic producers of 
durum wheat, those effects are expected to be small relative to the 
value of the industry. It should also be noted that the actual loss to 
domestic producers is likely to be smaller than the magnitudes 
estimated, as the analysis does not consider the displacement of other 
imports.
    The Small Business Administration (SBA) has established guidelines 
for determining which establishments are to be considered small under 
the Regulatory Flexibility Act. According to the standard established 
by the SBA for agricultural producers, a producer with less than $0.75 
million in annual sales is considered a small entity. Of the 241,334 
U.S. wheat farms in 1997, at least 92 percent were considered small.\2\ 
The number of durum wheat producers is not known. It is likely that 
durum producers affected by the proposed changes would be considered 
small entities. However, according to the economic analysis, increased 
Mexican wheat imports from Mexico would likely have a small adverse 
impact on domestic producers.
---------------------------------------------------------------------------

    \2\ 1997 Census of Agriculture, USDA-NASS. Breakdown shows 2.4 
percent of wheat farms with sales in excess of $1 million, and 5.2 
percent with sales between $0.5 and $0.999 million.
---------------------------------------------------------------------------

    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 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

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 02-057-1. 
Please send a copy of your comments to: (1) Docket No. 02-057-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    This proposed rule would require that certain regulated articles 
imported from Karnal bunt-free areas within regions regulated for 
Karnal bunt be accompanied by a phytosanitary certificate that would 
have to be completed by an official of the national plant protection 
organization of the region of origin. The phytosanitary certificate 
would have to include the following additional declaration: ``These 
articles originated in areas where Karnal bunt is not known to occur, 
as attested to either by survey results or by testing for bunted 
kernels or spores.''
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.084 hours per response.
    Respondents: Foreign national plant protection organization 
officials.
    Estimated annual number of respondents: 500.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 500.
    Estimated total annual burden on respondents: 42 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, 
Plant diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.
    Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would continue to read as 
follows:

    Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 
CFR 2.22, 2.80, and 371.3.

    2. Subpart--Wheat Diseases (Sec. Sec.  319.59 through 319.59-2) 
would be revised to read as follows:

[[Page 9981]]

Subpart--Wheat Diseases

Sec.
319.59-1 Definitions.
319.59-2 General import prohibitions; exceptions.
319.59-3 Flag smut.
319.59-4 Karnal bunt.


Sec.  319.59-1  Definitions.

    Administrator. The Administrator of the Animal and Plant Health 
Inspection Service, United States Department of Agriculture, or any 
employee of the United States Department of Agriculture delegated to 
act in his or her stead.
    Animal and Plant Health Inspection Service (APHIS). The Animal and 
Plant Health Inspection Service of the U.S. Department of Agriculture.
    Foreign strains of flag smut. Plant diseases caused by foreign 
strains of highly infective fungi, Urocystis agropyri (Preuss) 
Schroet., which attack wheat and substantially reduce its yield, and 
which are new to, or not widely prevalent or distributed within and 
throughout, the United States.
    From. An article is considered to be ``from'' any country or 
locality in which it was grown.
    Grain. Wheat (Triticum aestivum), durum wheat (Triticum durum), and 
triticale (Triticum aestivum X Secale cereale) 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 (Triticum aestivum), durum wheat (Triticum durum), and 
triticale (Triticum aestivum X Secale cereale).
    Inspector. Any individual authorized by the Administrator to 
enforce this subpart.
    Karnal bunt. A plant disease caused by the fungus Tilletia indica 
(Mitra) Mundkur.
    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 (Triticum aestivum), durum wheat (Triticum durum), and 
triticale (Triticum aestivum X Secale cereale) used for propagation.
    Spp. (species). All species, clones, cultivars, strains, varieties, 
and hybrids, of a genus.
    Straw. The vegetative material left after the harvest of host 
crops. Straw is generally used as animal feed or bedding, as mulch, or 
for erosion control.
    United States. The States, the Commonwealth of the Northern Mariana 
Islands, the Commonwealth of Puerto Rico, the District of Columbia, 
Guam, the Virgin Islands of the United States, or any other territory 
or possession of the United States.


Sec.  319.59-2  General import prohibitions; exceptions.

    (a) Except as provided in paragraph (b) of this section and in 
Sec.  319.59-4(a)(2), importation of Triticum spp. plants into the 
United States from any country except Canada is prohibited. This 
prohibition does not include seed.
    (b) Triticum spp. plants, articles prohibited because of flag smut 
in Sec.  319.59-3(a), and articles regulated for Karnal bunt in Sec.  
319.59-4(a) may be imported by the U.S. Department of Agriculture for 
experimental or scientific purposes if:
    (1) Imported at the Plant Germplasm Quarantine Center, Building 
320, Beltsville Agricultural Center East, Beltsville, MD 20705, or at 
any port of entry with an asterisk listed in Sec.  319.37-14(b) of this 
part;
    (2) Imported pursuant to a departmental permit issued for such 
article and kept on file at the Plant Germplasm Quarantine Center;
    (3) Imported under conditions of treatment, processing, growing, 
shipment, or disposal specified on the departmental permit and found by 
the Administrator to be adequate to prevent the introduction into the 
United States of tree, plant, or fruit diseases (including foreign 
strains of flag smut), injurious insects, and other plant pests, and
    (4) Imported with a departmental tag or label securely attached to 
the outside of the container containing the article or securely 
attached to the article itself if not in a container, and with such tag 
or label bearing a departmental permit number corresponding to the 
number of the departmental permit issued for such article.


Sec.  319.59-3  Flag smut.

    The articles listed in paragraph (a) of this section from the 
countries and localities listed in paragraph (b) of this section are 
prohibited articles because of foreign strains of flag smut and are 
prohibited from being imported or offered for entry into the United 
States except as provided in Sec.  319.59-2(b).
    (a)(1) The following articles of Triticum spp. (wheat) or of 
Aegilops spp. (barb goatgrass, goatgrass): Seeds, plants, and straw 
(other than straw, with or without heads, which has been processed or 
manufactured for use indoors, such as for decorative purposes or for 
use in toys); chaff; and products of the milling process (i.e., bran, 
shorts, thistle sharps, and pollards) other than flour.
    (2) Seeds of melilotus indica (annual yellow sweetclover) and seeds 
of any other field crops that have been separated from wheat during the 
screening process.
    (b) Afghanistan, Algeria, Armenia, Australia, Azerbaijan, 
Bangladesh, Belarus, Bulgaria, Chile, China, Cyprus, Egypt, Estonia, 
Falkland Islands, Georgia, Greece, Guatemala, Hungary, India, Iran, 
Iraq, Israel, Italy, Japan, Kazakstan, Kyrgyzstan, Latvia, Libya, 
Lithuania, Moldova, Morocco, Nepal, North Korea, Oman, Pakistan, 
Portugal, Romania, Russia, Spain, Tajikistan, Tanzania, Tunisia, 
Turkey, Turkmenistan, South Africa, South Korea, Ukraine, Uzbekistan, 
and Venezuela.


Sec.  319.59-4  Karnal bunt.

    (a) Regulated articles. The following are regulated articles for 
Karnal bunt:
    (1) Conveyances, including trucks, railroad cars, and other 
containers used to move host crops from a region listed in paragraph 
(b) of this section that test positive for Karnal bunt through the 
presence of bunted kernels;
    (2) Plants or plant parts, including grain, seed, straw, or hay, of 
all varieties of wheat (Triticum aestivum), durum wheat (Triticum 
durum), and triticale (Triticum aestivum X Secale cereale) from a 
region listed in paragraph (b) of this section, except for straw/
stalks/seed heads for decorative purposes that have been processed or 
manufactured prior to movement and are intended for use indoors;
    (3) Tilletia indica (Mitra) Mundkur;
    (4) 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
    (5) Seed conditioning equipment and storage/handling equipment that 
has been used in the production of wheat, durum wheat, or triticale 
seed found to contain the spores of Tilletia indica. (b)(1) Karnal bunt 
is known to occur in the following regions: Afghanistan, India, Iraq, 
Mexico, and Pakistan.
    (2) The Administrator may recognize an area within a region listed 
in paragraph (b)(1) of this section as an area free of Karnal bunt 
whenever he or she determines that the area meets the requirements of 
the International Standard for Phytosanitary Measures (ISPM) No. 4, 
``Requirements for the establishment of pest free areas.'' The 
international standard was established

[[Page 9982]]

by the International Plant Protection Convention of the United Nations' 
Food and Agriculture Organization and is incorporated by reference in 
Sec.  300.5 of this chapter. APHIS will publish a notice in the Federal 
Register and maintain on an APHIS Web site a list of the specific areas 
that are approved as areas in which Karnal bunt is not known to occur 
in order to provide the public with current, valid information. Areas 
listed as being free from Karnal bunt are subject to audit by APHIS to 
verify that they continue to merit such listing.
    (c) Handling, inspection and phytosanitary certificates. Any 
articles described in paragraph (a)(2) of this section that are from a 
region listed in paragraph (b)(1) of this section may be imported into 
the United States subject to the following conditions:
    (1) The articles must be from an area that has been recognized, in 
accordance with paragraph (b) of this section, to be an area free of 
Karnal bunt, or the articles have been tested and found to be free of 
Karnal bunt;
    (2) The articles have not been commingled prior to arrival at a 
U.S. port of entry with articles from areas where Karnal bunt is known 
to occur;
    (3) The articles offered for entry must be made available to an 
inspector for examination and remain at the port until released, or 
authorized further movement pending release, by an inspector; and
    (4) The articles must be accompanied by a phytosanitary certificate 
issued by the national plant protection organization of the region of 
origin that includes the following additional declaration: ``These 
articles originated in an area where Karnal bunt is not known to occur, 
as attested to either by survey results or by testing for bunted 
kernels or spores.''
    (d) Treatments. (1) Prior to entry into the United States, the 
following articles must be cleaned by removing any soil and plant 
debris that may be present.
    (i) All conveyances and mechanized harvesting equipment used for 
storing and handling wheat, durum wheat, or triticale that tested 
positive for Karnal bunt based on bunted kernels.
    (ii) All grain storage and handling equipment used to store or 
handle seed that has tested spore positive or grain that has tested 
bunted-kernel positive.
    (iii) All seed-conditioning equipment used to store or handle seed 
that has tested spore-positive.
    (2) Articles listed in paragraphs (d)(1)(i) and (d)(1)(ii) of this 
section will require disinfection in addition to cleaning prior to 
entry into the United States if an inspector or an official of the 
plant protection organization of the country of origin determines that 
disinfection is necessary to prevent the spread of Karnal bunt. 
Disinfection is required for all seed conditioning equipment covered 
under paragraph (d)(1)(iii) prior to entry into the United States.
    (3) Items that require disinfection prior to entry into the United 
States must be disinfected by one of the methods specified in 
paragraphs (d)(3)(i) through (d)(3)(iii) of this section, unless a 
particular treatment is designated by an inspector or by an official of 
the plant protection organization of the country of origin:
    (i) Wetting all surfaces to the point of runoff with a 1.5 percent 
sodium hypochlorite solution and letting stand for 15 minutes, then 
thoroughly washing down all surfaces after 15 minutes to minimize 
corrosion;
    (ii) Applying steam to all surfaces until the point of runoff, and 
so that a temperature of 170 [deg]F is reached at the point of contact; 
or
    (iii) 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.

    Done in Washington, DC, this 27th day of February 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-4723 Filed 3-2-04; 8:45 am]
BILLING CODE 3410-34-U