[Federal Register Volume 70, Number 192 (Wednesday, October 5, 2005)]
[Proposed Rules]
[Pages 58084-58086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19943]


 ========================================================================
 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. 70, No. 192 / Wednesday, October 5, 2005 / 
Proposed Rules  

[[Page 58084]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 04-134-1]


Karnal Bunt; Criteria for Releasing Fields From Regulation

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Karnal bunt regulations 
regarding the requirements that must be met in order for a field or 
area to be removed from the list of regulated areas. The proposed 
changes would allow a field to qualify for release after 5 cumulative 
years of specified management practices, rather than 5 consecutive 
years as the current regulations provide, and reorganize the manner in 
which those management practices are described. These proposed changes 
would clarify the existing regulations and provide growers in regulated 
areas with greater flexibility in their planting decisions.

DATES: We will consider all comments that we receive on or before 
December 5, 2005.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Animal and Plant Health Inspection Service'' from the agency 
drop-down menu, then click on ``Submit.'' In the Docket ID column, 
select APHIS-2005-0080 to submit or view public comments and to view 
supporting and related materials available electronically. After the 
close of the comment period, the docket can be viewed using the 
``Advanced Search'' function in Regulations.gov.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 04-134-1, 
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. 04-134-1.
    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: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Vedpal Malik, Agriculturalist, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
134, Riverdale, MD 20737-1236; (301) 734-6774.

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 
fungus Tilletia indica (Mitra) Mundkur and is spread primarily through 
the planting of infected seed. Some countries in the international 
wheat market regulate Karnal bunt as a fungal disease requiring 
quarantine; therefore, without measures taken by the Animal and Plant 
Health Inspection Service (APHIS) 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 Sec. Sec.  301.89-1 through 301.89-16 (referred to 
below as the regulations) and are designed to prevent the spread of 
Karnal bunt. Paragraph (f) of Sec.  301.89-3 describes the criteria 
under which a field and any surrounding non-infected acreage may be 
released from regulation for Karnal bunt. Currently, the regulations 
provide two ways for a field to be released from regulation, which are 
described in paragraphs (f)(1) and (f)(2). We are proposing to make 
modifications to each of those paragraphs in order to update and 
clarify the regulations.
    Paragraph (f)(1) of the regulations currently provides that a field 
will be released from regulation for Karnal bunt when it is ``no longer 
being used for crop production.'' This criterion has normally applied 
when land is removed from agricultural use, e.g., the land is sold and 
subdivided for home construction. To make it clear that this criterion 
applies to land permanently removed from agricultural use, rather than 
land that may have been only temporarily taken out of production, we 
would amend the regulations to specifically state that the field must 
have been permanently removed from crop production in order to be 
released from regulation for Karnal bunt.
    Paragraph (f)(2) of the regulations currently states that a field 
will be released from regulation for Karnal bunt if 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):
     Planted with a cultivated non-host crop;
     Tilled once annually; or
     Planted with a host crop that tests negative, through the 
absence of bunted kernels, for Karnal bunt.
    We are proposing to revise paragraph (f)(2) to state that a field 
will be released from regulation for Karnal bunt if the field is tilled 
at least once per year for a total of 5 years (the years need not be 
consecutive). After tilling, the field may be planted with a crop or 
left fallow. If the field is planted with a host crop, the crop must 
test negative, through the absence of bunted kernels, for Karnal bunt.
    The main difference between the proposed text and the text in the 
current regulations is that the revised paragraph would not require the 
specific management practices to be carried out for 5 consecutive 
years. The current consecutive years requirement means that if a 
producer skipped a year or more--i.e., did not plant or till the field 
in a given year--the producer would have to begin the 5-year time 
period again. However, no scientific basis exists to require producers 
to start over, as there is no effect, positive or negative,

[[Page 58085]]

on the Karnal bunt status of the field if the management practices are 
not used. If a field was left untilled and fallow, or planted using no-
till techniques, there may not be the reduction in the spore load in 
the soil that is realized with tilling, but there would also not be any 
increase in the spore load. Thus, if a farmer chose not to apply one of 
the management practices during a given year, we do not believe that it 
is necessary to restart the counting of years, thus negating any 
progress that may have been made toward the 5-year goal. Therefore, we 
would amend the regulations to remove the current requirement that the 
management practices be applied over 5 consecutive years.
    Our additional proposed changes to the text of paragraph (f)(2) 
involve rewording the description of the management practices to make 
the requirements clearer. Each of the management practices listed in 
the current regulations involves tilling, but ``tilled once annually'' 
is listed as a discrete practice. As the other two management practices 
involve planting the field with a crop--either a cultivated non-host 
crop or a host crop that tests negative for Karnal bunt--it stands to 
reason that a field meeting the ``tilled once annually'' criterion 
would have been left fallow. Therefore, we are proposing to revise the 
description of management practices to provide that, for each year 
counted toward the 5 cumulative years, the field is tilled and either: 
(1) Planted with a non-host crop, (2) left fallow, or (3) planted with 
a host crop that tests negative, through the absence of bunted kernels, 
for Karnal bunt. While this proposed change to our description of the 
management practices would not alter the substance of the current 
regulations, we believe that it would serve to clarify the criteria 
that must be met in order for a field to be released from regulation 
for Karnal bunt.

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.
    We are proposing to amend the Karnal bunt regulations regarding the 
requirements that must be met in order for a field or area to be 
removed from the list of regulated areas. The proposed changes would 
allow a field to qualify for release after 5 cumulative years of 
specified management practices, rather than 5 consecutive years as the 
current regulations provide. These proposed changes would clarify the 
existing regulations and provide growers in regulated areas with 
greater flexibility in their planting decisions.
    Compared to the current regulations, the proposed change to 5 
cumulative years using the specified management practices would afford 
regulated wheat producers greater flexibility in the planting cycle; 
they can elect not to till in a particular year without having to start 
over to satisfy the 5 consecutive years requirement for deregulation. 
However, as a practical matter, the proposed change should have little 
or no impact, as the ``consecutive years'' criterion has been in effect 
only since March 2004, near the end of the 2003-2004 crop season, and 
has not prevented any fields from being released that APHIS field 
personnel and managers determined were otherwise eligible for release 
from regulation.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of their rules on small businesses, organizations, and 
governmental jurisdictions. The Karnal bunt regulations have the 
potential to have the most impact on wheat producers. At the present 
time, parts of Texas, Arizona, and California are 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, 278,000 acres (120 producers) 
and 56,000 acres (18 producers).
    As determined by the Small Business Administration (SBA), the small 
entity size standard for wheat farming, which is defined as farms 
``primarily engaged in growing wheat and/or producing wheat seeds'' 
(North American Industry Classification System code 11114), is $750,000 
or less in annual receipts. Although the size of regulated wheat 
producers is unknown, they are likely to be small in size under SBA 
standards. This assumption is based on composite data for providers of 
the same and similar services. In 2002, Arizona had a total of 7,294 
farms of all types. Of those farms, 91 percent had annual sales that 
year of less than $500,000, well below the SBA's small entity 
threshold. Similarly, the comparable percentages for Texas (228,926 
total farms) and California (79,631 total farms) were 99 percent and 90 
percent, respectively. (Source: SBA and NASS, 2002 Census of 
Agriculture.) Although many of these businesses are considered small 
under SBA standards, given the reason cited above, the proposed change 
should have little or no economic impact on small entities, wheat 
producers or otherwise.
    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 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. In Sec.  301.89-3, paragraph (f) would be revised to read as 
follows:


Sec.  301.89-3  Regulated areas.

* * * * *
    (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 has been permanently removed from crop production; or

[[Page 58086]]

    (2) The field is tilled at least once per year for a total of 5 
years (the years need not be consecutive). After tilling, the field may 
be planted with a crop or left fallow. If the field is planted with a 
host crop, the crop must test negative, through the absence of bunted 
kernels, for Karnal bunt.
* * * * *

    Done in Washington, DC, this 29th day of September 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-19943 Filed 10-4-05; 8:45 am]
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