[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Proposed Rules]
[Pages 40354-40361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19757]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 61, No. 150 / Friday, August 2, 1996 /
Proposed Rules
[[Page 40354]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 96-016-10]
Karnal Bunt
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to establish criteria for levels of risk for
areas with regard to Karnal bunt, and to establish criteria for seed
planting and movement of regulated articles based on those risk levels.
We believe this action is warranted because it would relieve
unnecessary restrictions on areas regulated because of Karnal bunt,
while guarding against the artificial spread of that disease.
DATES: Consideration will be given only to comments received on or
before September 3, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-016-10, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 96-016-10. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Mike Stefan, Operations Officer,
Domestic and Emergency Operations, PPQ, APHIS, 4700 River Road Unit
134, Riverdale, MD 20737-1236, (301) 734-8247.
SUPPLEMENTARY INFORMATION:
Background
Karnal bunt is a serious 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. The spores can be carried on a variety of surfaces,
including plants and plant parts, seeds, soil, elevators, buildings,
farm equipment, tools, and even vehicles. Spores and the sporidia they
produce also can be windborne. Although the sporidia are fragile and
may be able to move only short distances, teliospores are thought to
move longer distances.
Karnal bunt is a serious disease that can affect both yield and
grain quality when present at levels over 3 to 5 percent. It adversely
affects the color, odor, and palatability of flour and other foodstuffs
made from heavily infested wheat. Wheat containing a significant amount
of bunted kernels is reduced in quality. Karnal bunt does not present a
risk to human or animal health.
On March 8, 1996, Karnal bunt was detected in Arizona during a seed
certification inspection done by the Arizona Department of Agriculture.
On March 20, 1996, the Secretary of Agriculture signed a ``Declaration
of Extraordinary Emergency'' authorizing the Secretary to take
emergency action under 7 U.S.C. 150dd with regard to Karnal bunt within
the States of Arizona, New Mexico, and Texas. In an interim rule
effective on March 25, 1996, and published in the Federal Register on
March 28, 1996 (61 FR 13649-13655, Docket No. 96-016-3), the Animal and
Plant Health Inspection Service (APHIS) established the Karnal bunt
regulations (7 CFR 301.89-1 through 301.89-11), and quarantined all of
Arizona and portions of New Mexico and Texas because of Karnal bunt.
The regulations define regulated articles and restrict the interstate
movement of these regulated articles from the quarantined areas.
After the establishment of the regulations, Karnal bunt was
detected in lots of seed that were either planted or stored in certain
areas in California. On April 12, 1996, the Secretary of Agriculture
signed a ``Declaration of Extraordinary Emergency'' authorizing the
Secretary to take emergency action under 7 U.S.C. 150dd with regard to
Karnal bunt within California. In an interim rule effective on April
19, 1996, and published in the Federal Register on April 25, 1996,
APHIS also quarantined portions of California because of Karnal bunt
(61 FR 18233-18235, Docket No. 96-016-5). In an interim rule effective
on June 27, 1996, and published in the Federal Register on July 5,
1996, APHIS removed certain areas in Arizona, New Mexico, and Texas
from the list of areas quarantined because of Karnal bunt (61 FR 35107-
35109, Docket No. 96-016-6). That list was amended in a technical
amendment effective on July 9, 1996, and published in the Federal
Register on July 15, 1996 (61 FR 36812-36813, Docket No. 96-016-8). In
an interim rule effective June 27, 1996, and published in the Federal
Register on July 5, 1996, APHIS amended the regulations to provide
compensation for certain growers and handlers, owners of grain storage
facilities, and flour millers in order to mitigate losses and expenses
incurred because of Karnal bunt (61 FR 35102-35107, Docket No. 96-016-
7). Comments on each of the interim rules must be received on or before
September 3, 1996.
On July 17, 1996, APHIS conducted a public forum in Washington,
D.C., to accept public comment on the Karnal bunt regulations, and, in
a separate notice in today's Federal Register, gives notice of three
additional public forums on Karnal Bunt to be held in mid-August.
Members of the public are invited to comment on this proposed rule and
the interim rules at the three remaining public forums.
APHIS developed the provisions of this proposed rule in
consultation with State regulatory officials. The purpose of this
proposal is to relieve unnecessary restrictions on the movement of
articles regulated because of Karnal bunt, while at the same time
maintaining restrictions on movement that are adequate to guard against
the spread of the disease.
In Sec. 301.89-3 of the existing regulations, criteria for
quarantining areas because of Karnal bunt are set forth, along with a
list of quarantined areas. Under the existing regulations, regulated
articles from all quarantined areas are subject to the same
restrictions, regardless of the relative
[[Page 40355]]
risks posed by different fields within the quarantined areas.
We considered such broad restrictions necessary immediately
following the detection of Karnal bunt, in order to guard against the
artificial spread of the disease. However, based on subsequent
information, including preharvest survey data, investigations of the
source and destination of contaminated seed, and our experience
enforcing the regulations, we believe that establishing levels of risk
for fields and regulated articles is warranted, and would be adequate
in protecting against the artificial spread of Karnal bunt.
In the existing Karnal bunt regulations, areas regulated because of
Karnal bunt are referred to as quarantined areas. Under this proposal,
however, the type of restrictions imposed on regulated articles would
in some cases differ depending on the risk level of individual areas
within the currently quarantined areas. Therefore, we believe it would
clarify the proposed regulations to use the term ``regulated areas''
rather than ``quarantined areas.'' Regulated areas would then be
classified according to specific risk categories. We are proposing to
make this terminology change throughout the Karnal bunt regulations.
The current regulations in Sec. 301.89-3 set forth criteria for
quarantining all or part of State due to Karnal bunt, and list those
areas that are quarantined because of the disease. In addition to
retaining the general criteria in the current regulations for
regulating a State or part of a State, we are proposing to add a new
paragraph (f) to Sec. 301.89-3 that would set forth criteria for
classifying regulated fields according to the following risk
categories:
1. Fields in which preharvest samples tested positive for Karnal
bunt;
2. Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt;
3. Fields adjacent to fields in which preharvest samples tested
positive;
4. Fields associated only through ownership, management, the
movement of equipment, or proximity within a distinct definable area
with fields in which preharvest samples tested positive; and
5. Fields within a regulated area that are not fields described in
``2'' or ``4'' above, and that are part of a distinct definable area
that includes no fields in which preharvest samples tested positive for
Karnal bunt.
A definition of distinct definable area would be added to
Sec. 301.89-1 to mean ``a commercial wheat production area of
contiguous fields that is separated from other wheat production areas
by desert, mountains, or other nonagricultural terrain as determined by
an inspector.'' Additionally, a definition of contaminated seed would
be added to mean ``seed from sources in which the Karnal bunt pathogen
(Tilletia indica (Mitra) Mundkur) has been determined to exist.''
Fields for which notification of classification has not been given
to the owner or the person in possession of the field shall be
considered to be in the same category as fields associated through
ownership, management, the movement of equipment, or proximity within a
distinct definable area with fields in which preharvest samples tested
positive.
Planting
We are proposing to establish restrictions on the planting of
wheat, durum wheat, and triticale seed in certain fields within a
regulated area. Because the pathogen of Karnal bunt can remain viable
in soil for extended periods of time, it is important in the control of
the disease to restrict the planting of wheat, durum wheat, and
triticale in fields that present a high risk of containing the Karnal
bunt pathogen. Therefore, we are proposing to add a new Sec. 301.59-4
to the regulations that would provide that for the 1996-1997 crop
season 1 (1) wheat, durum wheat, and triticale may not be planted
in fields in which preharvest samples conducted by Federal or State
official tested positive for Karnal bunt, and (2) wheat, durum wheat,
and triticale may not be planted in fields known to have been planted
in the past 5 years with seed contaminated with Karnal bunt.
Additionally, proposed Sec. 301.89-4 would require that, prior to
planting, the seed of wheat, durum wheat, and triticale to be planted
within a regulated area must have been treated with a fungicide that is
registered with the Environmental Protection Agency and be sampled and
tested negative for Karnal bunt.
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\1\ The 1996-1997 crop season is that season in which wheat is
harvested in 1997.
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Cleaning and Disinfection
In Sec. 301.89-12 of this proposed rule, we are proposing to
establish cleaning and disinfection requirements for farm equipment and
soil-moving equipment according to the risk category of the field from
which the equipment will be moved. Cleaning would be required for that
equipment moved within the regulated area from fields considered to
pose a significant risk of containing the causal agent of Karnal bunt.
Specifically, these would include the following categories of fields:
1. Fields in which preharvest samples tested positive for Karnal
bunt;
2. Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt; and
3. Fields adjacent to fields in which preharvest samples tested
positive.
Under Sec. 301.89-12(b) of this proposal, equipment only from the
above described fields would need to be disinfected before being moved
from a regulated area.
Movement Within a Regulated Area
In the current regulations, conditions are set forth in
Sec. 301.89-4 for the interstate movement of regulated articles from
regulated areas. In some cases, articles moved from a regulated area
must be accompanied by certificate or limited permit. In other cases,
because of mitigating measures, a certificate or limited permit is not
required. In this proposed rule, we are proposing to establish
conditions for certain movements of regulated articles within a
regulated area. In Sec. 301.89-5(a)(3) of this proposal, we are
proposing that a regulated article need not be moved with a certificate
or limited permit if it is moved within a regulated area, and if the
regulated article has been cleaned as provided in Sec. 301.89-12 and
301.89-13 of the proposed rule.
Vegetables
Under Sec. 301.89-12(b) of this proposal, vegetable crops would
need to be cleaned free of soil and plant debris prior to movement, or
be moved under limited permit to processing facilities approved by the
Administrator when moving from any of the following types of fields:
1. Fields in which preharvest samples tested positive for Karnal
bunt;
2. Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt; or
3. Fields adjacent to fields in which preharvest samples tested
positive.
Treatment of Millfeed
Millfeed, a byproduct of the process of milling grain, is used as
feed for livestock. Teliospores of telletia indica in millfeed are not
destroyed in the milling process, nor in the process of being digested
by livestock. Therefore, manure from animals that have been fed
millfeed contaminated with the pathogen of Karnal bunt is considered
capable of introducing that agent to a field. Protocols developed for
the control of Karnal bunt have required that millfeed from grain moved
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interstate from a quarantined area be treated with heat to destroy any
Karnal bunt pathogen that might be present. However, we believe that
millfeed from grain from certain fields in regulated area poses such an
insignificant risk of spreading Karnal bunt that it need not be heat
treated. Therefore, Sec. 301.89-13(c) requires that millfeed be treated
with heat only if it is milled from grain from one of the following
types of fields:
(1) Fields in which preharvest samples tested positive for Karnal
bunt;
(2) Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt;
(3) Fields adjacent to fields in which preharvest samples tested
positive; or
(4) Fields associated only through ownership, management, the
movement of equipment, or proximity within a distinct definable area
with fields in which preharvest samples tested positive.
We are proposing millfeed treated with heat be treated with a moist
heat treatment of 170 deg.F for at least 1 minute. This treatment is
considered effective based on the information currently available to
us. The public would be notified in the Federal Register of any changes
to this treatment that are developed through additional research.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget has waived its review
process required by Executive Order 12866.
This action amends the regulations to establish criteria for levels
of risk for areas with regard to Karnal bunt, and to establish criteria
for seed planting and movement of regulated articles based on those
risk levels. This proposed rule is being published on an emergency
basis in order to give affected growers the opportunity to make
planting decisions for the 1996-1997 crop season on a timely basis.
This emergency situation makes compliance with section 603 and timely
compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C.
603 and 604) impracticable. This rule may have a significant economic
impact on a substantial number of small entities. If we determine this
is so, then we will discuss the issues raised by section 604 of the
Regulatory Flexibility Act in our Final Regulatory Flexibility
Analysis.
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.
PART 301--DOMESTIC QUARANTINE NOTICES
Accordingly, 7 CFR part 301 would be amended as follows:
1. The authority citation for part 301 would continue to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and
164-167; 7 CFR 2.22, 2,80, and 371.2(c).
2. Part 301 would be amended by revising ``Subpart--Karnal Bunt,''
Secs. 301.89-1 through 301.89-11, to read as follows
Subpart--Karnal Bunt
Sec.
301.89-1 Definitions.
301.89-2 Regulated articles.
301.89-3 Regulated areas.
301.89-4 Planting.
301.89-5 Movement of regulated articles from or within regulated
areas.
301.89-6 Issuance of a certificate or limited permit.
301.89-7 Compliance agreements.
301.89-8 Cancellation of a certificate, limited permit, or
compliance agreement.
301.89-9 Assembly and inspection of regulated articles.
301.89-10 Attachment and disposition of certificates and limited
permits.
301.89-11 Costs and charges.
301.89-12 Cleaning and disinfection.
301.89-13 Treatments.
301.89-14 Compensation.
Sec. 301.89-1 Definitions.
Administrator. The Administrator, Animal and Plant Health
Inspection Service, or any person authorized to act for the
Administrator.
Animal and Plant Health Inspection Service (APHIS). The Animal and
Plant Health Inspection Service of the U.S. Department of Agriculture.
Certificate. A document in which an inspector or a person operating
under a compliance agreement affirms that a specified regulated article
meets the requirements of this subpart and may be moved to any
destination.
Compliance agreement. A written agreement between APHIS and a
person engaged in growing, handling, or moving regulated articles that
are moved, in which the person agrees to comply with the provisions of
this subpart and any conditions imposed under this subpart.
Contaminated seed. Seed from sources in which the Karnal bunt
pathogen (Tilletia indica (Mitra) Mundkur) has been determined to
exist.
Conveyances. Containers used to move wheat, durum wheat, or
triticale, or their products, including trucks, trailers, railroad
cars, bins, and hoppers.
Distinct definable area. A commercial wheat production area of
contiguous fields that is separated from other wheat production areas
by desert, mountains, or other nonagricultural terrain as determined by
an inspector.
Farm tools. An instrument worked or used by hand, e.g., hoes,
rakes, shovels, and axes.
Infestation (infected). The presence of Karnal bunt, or any stage
of development of the fungus Tilletia indica (Mitra) Mundkur, or the
existence of circumstances that make it reasonable to believe that
Karnal bunt is present.
Inspector. An APHIS employee or designated cooperator/collaborator
authorized by the Administrator to enforce the provisions of this
subpart.
Karnal bunt. A plant disease caused by the fungus Tilletia indica
(Mitra) Mundkur.
Limited permit. A document in which an inspector affirms that a
specified regulated article not eligible for a certificate is eligible
for movement only to a specified destination and in accordance with
conditions specified on the permit.
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, cotton harvesters, and hay balers.
Milling products and byproducts. Products resulting from processing
wheat, durum wheat, or triticale,
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including animal feed, and waste and debris.
Movement (moved). The act of shipping, transporting, delivering, or
receiving for movement, or otherwise aiding, abetting, inducing or
causing to be moved.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or any other legal entity.
Premises. All structures, conveyances, or materials associated with
a grain storage facility at a single location.
Soil. That part of the upper layer of earth in which plants can
grow.
Soil-moving equipment. Equipment used for moving or transporting
soil, including, but not limited to, bulldozers, dump trucks, or road
scrapers.
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.89-2 Regulated articles.
The following are regulated articles:
(a) Conveyances, including trucks, railroad cars, and other
containers used to move wheat, durum wheat, or triticale;
(b) Grain elevators/equipment/structures used for storing and
handling wheat, durum wheat, and triticale;
(c) Milling products or byproducts, except flour;
(d) Plants, or plant parts, including grain, seed, or straw of all
varieties of the following species:
Wheat: Triticum aestivum;
Durum wheat: Triticum durum; and
Triticale: Triticum aestivum X Secale cereale;
(e) Tilletia indica (Mitra) Mundkur;
(f) Root crops with soil;
(g) Soil from areas where field crops are produced;
(h) Manure from animals that have fed on wheat, durum wheat, or
triticale;
(i) Used bags, sacks and containers;
(j) Used farm tools;
(k) Used mechanized cultivating equipment;
(l) Used mechanized harvesting equipment;
(m) Used seed conditioning equipment;
(n) Used mechanized soil-moving equipment; and
(o) Any other product, article or means of conveyance when:
(1) An inspector determines that it presents a risk of spreading
Karnal bunt due to its proximity to an infestation of Karnal bunt; and
(2) The person in possession of the product, article, or means of
conveyance has been notified that it is regulated under this subpart.
Sec. 301.89-3 Regulated areas.
(a) The Administrator will regulate each State or each portion of a
State that is infected.
(b) Less than an entire State will be listed as a regulated area
only if the Administrator:
(1)(i) Determines that the State has adopted and is enforcing
restrictions on the intrastate movement of the regulated articles
listed in Sec. 301.89-2 that are equivalent to the movement
restrictions imposed by this subpart; and
(ii) Determines that designating less than the entire State as a
regulated area will prevent the spread of Karnal bunt; or
(2) Exercises his or her extraordinary emergency authority under 7
U.S.C. 150dd.
(c) The Administrator may include noninfected acreage within a
regulated area due to its proximity to an infestation or inseparability
from the infected locality for regulation purposes, as determined by:
(1) Projections of the spread of Karnal bunt along the periphery of
the infestation;
(2) The availability of natural habitats and host materials within
the noninfected acreage that are suitable for establishment and
survival of Karnal bunt; and
(3) The necessity of including uninfected acreage within the
regulated area in order to establish readily identifiable boundaries.
(d) The Administrator or an inspector may temporarily designate any
nonregulated area as a regulated area in accordance with the criteria
specified in paragraphs (a), (b), and (c) of this section. The
Administrator will give written notice of this designation to the owner
or person in possession of the nonregulated area, or, in the case of
publicly owned land, to the person responsible for the management of
the nonregulated area. Thereafter, the movement of any regulated
article from an area temporarily designated as a regulated area is
subject to this subpart. As soon as practicable, this area either will
be added to the list of designated regulated areas in paragraph (e) of
this section, or the Administrator will terminate the designation. The
owner or person in possession of, or, in the case of publicly owned
land, the person responsible for the management of, an area for which
the designation is terminated will be given written notice of the
termination as soon as practicable.
(e) The following areas are designated as regulated areas:
Arizona
Cochise County. The entire county.
Graham County. The entire county.
LaPaz County. The entire county.
Maricopa County. The entire county.
Mohave County. Beginning at the intersection of Arizona/Nevada
State line and State Route 68; then east along State Route 68 to
U.S. Highway 93; then southeast along U.S. Highway 93 to Interstate
40; then east along Interstate 40 to U.S. Highway 93; then south
along U.S. Highway 93 to the Mohave/Yavapai County line; then south
along the Mohave County line to the Mohave/La Paz County line; then
west along the Mohave County line to the Arizona/California State
line; then north along the State line to the point of beginning.
Pima County. Beginning at the intersection of the Pima County
line, the Pinal County line, and the Papago Indian Reservation
boundary; then east along the Pima County line to its easternmost
point; then south along the Pima County line to the Cochise and
Santa Cruz County lines; then west along the Pima County line to the
United States/Mexico boundary; then west along the United States/
Mexico boundary to the Papago Indian Reservation boundary; then
north along the Papago Indian Reservation boundary to the point of
beginning.
Pinal County. The entire county.
Yuma County. The entire county.
California
Imperial County. The entire county.
Riverside County. That portion of Riverside County in the Blythe
and Ripley areas bounded by a line drawn as follows: Beginning at
the intersection of State Highway 62 and the Riverside-San
Bernardino County line, then east along the Riverside-San Bernardino
County line to its intersection with the California-Arizona State
line; then south along the California-Arizona State line to its
intersection with the Riverside-Imperial County line; then west
along the Riverside-Imperial County line to its intersection with
Graham Pass Road; then northeast along Graham Pass Road to its
intersection with Chuckwalla Valley Road; then west and northwest
along Chuckwalla Valley Road to its intersection with Interstate
Highway 10; then west along Interstate Highway 10 to its
intersection with State Highway 177; then northeast and north along
State Highway 177 to its intersection with State Highway 62; then
northeast along State Highway 62 to the point of beginning.
New Mexico
Dona Ana County. The entire county.
Hidalgo County. Beginning at the intersection of the Arizona/New
Mexico State line and Interstate 10; then east along Interstate 10
to the Hidalgo/Grant County line; then south and east along the
Hidalgo County line to the Luna County line; then south along the
Hidalgo County line to its southernmost point; then west and north
along the Hidalgo county line to point of beginning.
Luna County. Beginning at the intersection of the Grant/Luna
County line and Interstate 10; then east along Interstate 10 to U.S.
Highway 180; then north along U.S. Highway
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180 to State Route 26; then north along State Route 26 to State
Route 27; then northeast along State Route 27 to the Luna/Sierra
County line; then east along the Luna County line to the Dona County
line; then south along the Luna County line to the United States/
Mexico boundary; then west along the United States/Mexico boundary
to the Hidalgo County line; then north along the Luna County line to
the point of beginning.
Sierra County. Beginning at intersection of the Luna/Sierra
County line and State Route 27; then north along State Route 27 to
State Route 152; then east along State Route 152 to Interstate 25;
then north along Interstate 25 to State Route 52; then northwest
along State Route 52 to the Sierra/Socorro County line; then east
along the Sierra County line to the Lincoln County line; then south
along the Sierra County line to the Dona County line; then west
along the Sierra County line to the point of beginning.
Texas
El Paso County. The entire county.
Hudspeth County. Beginning at the intersection of the El Paso/
Hudspeth County line and U.S. Highway 62/U.S. Highway 180; then east
along U.S. Highway 62/U.S. Highway 180 to County Road 1111; then
south along County Road 1111 to its terminus; then west along an
imaginary line to the United States/Mexico boundary; then northwest
along the United States/Mexico boundary to the El Paso/Hudspeth
County line; then north along the El Paso/Hudspeth County line to
the point of beginning.
(f) The Administrator will classify fields in regulated areas
according to the following categories, and will notify the owner or
person in possession of the field of the field's classification:
(1) Fields in which preharvest samples tested positive for Karnal
bunt;
(2) Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt;
(3) Fields adjacent to fields in which preharvest samples tested
positive;
(4) Fields associated only through ownership, management, the
movement of equipment, or proximity within a distinct definable area
with fields in which preharvest samples tested positive; and
(5) Fields within a regulated area that are not fields described in
paragraphs (f)(2) and (f)(4) of this section, and that are part of a
distinct definable area that includes no fields in which preharvest
samples tested positive.
(g) Fields for which the Administrator has given no notification of
classification to the owner or the person in possession of the field
shall be considered to be fields as described in paragraph (f)(4) of
this section.
Sec. 301.89-4 Planting.
(a) Wheat, durum wheat, and triticale may be planted in all fields
within and outside a regulated area, except as follows:
(1) For the 1996-1997 crop season 1, wheat, durum wheat, and
triticale may not be planted in fields in which preharvest samples
conducted by Federal or State official tested positive for Karnal bunt;
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\1\ The 1996-1997 crop season is that season in which wheat is
harvested in 1997.
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(2) For the 1996-1997 crop season 1, wheat, durum wheat, and
triticale may not be planted in fields known to have been planted in
the past 5 years with seed contaminated with Karnal bunt.
(b) Prior to planting, wheat seed, durum wheat seed, and triticale
seed to be planted within a regulated area must:
(1) Have been treated with a fungicide that is registered with the
Environmental Protection Agency; and
(2) Be sampled and test negative for Karnal bunt.
Sec. 301.89-5 Movement of regulated articles from or within regulated
areas.
(a) Any regulated article may be moved from a regulated area into
or through an area that is not regulated only if moved under the
following conditions:
(1) With a certificate or limited permit issued and attached in
accordance with Secs. 301.89-6 and 301.89-10;
(2) Without a certificate or limited permit, provided that each of
the following conditions is met:
(i) The regulated article was moved into the regulated area from an
area that is not regulated;
(ii) The point of origin is indicated on a waybill accompanying the
regulated article;
(iii) The regulated article is moved through the regulated area
without stopping, or has been stored, packed, or handled at locations
approved by an inspector as not posing a risk of contamination with
Karnal bunt, or has been treated in accordance with the methods and
procedures prescribed in Sec. 301.89-13 while in or moving through any
regulated area; and
(iv) The article has not been combined or commingled with other
articles so as to lose its individual identity;
(3) Without a certificate or limited permit, for movement within
the regulated area, if the regulated articles has been cleaned as
provided in Sec. 301.89-12 and 301.89-13 of this subpart; or
(4) Without a certificate or limited permit, provided the regulated
article is a soil sample being moved to a laboratory approved by the
Administrator 2 to process, test, or analyze soil samples.
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\2\ Criteria that laboratories must meet to become approved to
process, test, or analyze soil, and the list of currently approved
laboratories, may be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Domestic and
Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland
20737-1236.
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(b) When an inspector has probable cause to believe a person or
means of conveyance is moving a regulated article, the inspector is
authorized to stop the person or means of conveyance to determine
whether a regulated article is present and to inspect the regulated
article. Articles found to be infected by an inspector, and articles
not in compliance with the regulations in this subpart, may be seized,
quarantined, treated, subjected to other remedial measures, destroyed,
or otherwise disposed of. Any treatments will be in accordance with the
methods and procedures prescribed in Sec. 301.89-13.
Sec. 301.89-6 Issuance of a certificate or limited permit.
(a) An inspector 3 or person operating under a compliance
agreement will issue a certificate for the movement of a regulated
article outside or within a regulated area if he or she determines that
the regulated article:
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\3\ Inspectors are assigned to local offices of APHIS, which are
listed in local telephone directories. Information concerning such
local offices may also be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Domestic and
Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland
20737-1236, or from Karnal Bunt Project, 1688 W. Adams St. Phoenix,
Arizona 85007.
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(1) Is eligible for unrestricted movement under all other
applicable Federal domestic plant quarantines and regulations;
(2) Is to be moved in compliance with any emergency conditions the
Administrator may impose under 7 U.S.C. 150dd to prevent the artificial
spread of Karnal bunt 4; and
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\4\ Section 105 of the Federal Plant Pest Act (7 U.S.C. 105dd)
authorizes the Secretary of Agriculture to impose emergency measures
necessary to prevent the spread of plant pests new to, or not widely
prevalent or distributed within and throughout, the United States.
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(3)(i) Is free of Karnal bunt infestation, based on laboratory
results of testing, and history of previous infestation;
(ii) Has been grown, produced, manufactured, stored, or handled in
a manner that would prevent infestation or destroy all life stages of
Karnal bunt;
(iii) Meets the conditions of Sec. 301.89-12(b); or
(iv) Has been treated in accordance with methods and procedures
prescribed in Sec. 301.89-13.
(b) An inspector or a person operating under a compliance agreement
will issue a limited permit for the movement within or outside the
regulated area of a regulated article not eligible for a
[[Page 40359]]
certificate if the inspector determines that the regulated article:
(1) Is to be moved to a specified destination for specified
handling, utilization, or processing (the destination and other
conditions to be listed in the limited permit and/or compliance
agreement), and this movement will not result in the artificial spread
of Karnal bunt because Karnal bunt will be destroyed or the risk
mitigated by the specified handling, utilization, or processing;
(2) Is to be moved in compliance with any additional emergency
conditions the Administrator may impose under 7 U.S.C. 150dd to prevent
the artificial spread of Karnal bunt; and
(3) Is eligible for movement under all other Federal domestic plant
quarantines and regulations applicable to the regulated article.
(c) An inspector shall issue blank certificates and limited permits
to a person operating under a compliance agreement in accordance with
Sec. 301.89-7 or authorize reproduction of the certificates or limited
permits on shipping containers, or both, as requested by the person
operating under the compliance agreement. These certificates and
limited permits may then be completed and used, as needed, for the
movement of regulated articles that have met all of the requirements of
paragraph (a) or (b), respectively, of this section.
Sec. 301.89-7 Compliance agreements.
Persons who grow, handle, or move regulated articles may enter into
a compliance agreement 5 if such persons review with an inspector
each stipulation of the compliance agreement, have facilities and
equipment to carry out disinfestation procedures or application of
chemical materials in accordance with Sec. 301.89-13, and meet
applicable State training and certification standards under the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C.
136b). Any person who enters into a compliance agreement with APHIS
must agree to comply with the provisions of this subpart and any
conditions imposed under this subpart.
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\5\ 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, 4700 River Road Unit 134, Riverdale, Maryland 20737-
1236, or from the Karnal Bunt Project, 1688 W. Adams St., Phoenix,
Arizona 85007.
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Sec. 301.89-8 Cancellation of a certificate, limited permit, or
compliance agreement.
Any certificate, limited permit, or compliance agreement may be
canceled orally or in writing by an inspector whenever the inspector
determines that the holder of the certificate or limited permit, or the
person who has entered into the compliance agreement, has not complied
with this subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances allow, but within
20 days after oral notification of the cancellation. Any person whose
certificate, limited permit, or compliance agreement has been canceled
may appeal the decision, in writing, within 10 days after receiving the
written cancellation notice. The appeal must state all of the facts and
reasons that the person wants the Administrator to consider in deciding
the appeal. A hearing may be held to resolve any conflict as to any
material fact. Rules of practice for the hearing will be adopted by the
Administrator. As soon as practicable, the Administrator will grant or
deny the appeal, in writing, stating the reasons for the decision.
Sec. 301.89-9 Assembly and inspection of regulated articles.
(a) Persons requiring certification or other services must request
the services from an inspector 6 at least 48 hours before the
services are needed.
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\6\ See footnote 2.
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(b) The regulated articles must be assembled at the place and in
the manner the inspector designates as necessary to comply with this
subpart.
Sec. 301.89-10 Attachment and disposition of certificates and limited
permits.
(a) The consignor must ensure that the certificate or limited
permit authorizing movement of a regulated article is, at all times
during movement, attached to:
(1) The outside of the container encasing the regulated article;
(2) The article itself, if it is not in a container; or
(3) The consignee's copy of the accompanying waybill: Provided,
that the descriptions of the regulated article on the certificate or
limited permit, and on the waybill, are sufficient to identify the
regulated article; and
(b) The carrier must furnish the certificate or limited permit
authorizing movement of a regulated article to the consignee at the
shipment's destination.
Sec. 301.89-11 Costs and charges.
The services of the inspector during normal business hours will be
furnished without cost to persons requiring the services.
The user will be responsible for all costs and charges arising from
inspection and other services provided outside of normal business
hours.
Sec. 301.89-12 Cleaning and disinfection.
(a) Used mechanized cultivating equipment, used mechanized
harvesting equipment, used farm tools, and used mechanized soil-moving
equipment must be cleaned of all soil and plant debris prior to
movement within a regulated area, and cleaned and disinfected prior to
movement outside the regulated area from the following fields:
(1) Fields in which preharvest samples tested positive for Karnal
bunt;
(2) Fields known to have been planted in the past 5 years with seed
contaminated with Karnal bunt; and
(3) Fields adjacent to a field in which preharvest samples tested
positive for Karnal bunt.
(b) Vegetable crops must be cleaned of all soil and plant debris
prior to movement, or be moved under limited permit to processing
facilities approved by the Administrator, for movement from any fields
described in paragraphs (a)(1), (a)(2), and (a)(3) of this section.
Sec. 301.89-13 Treatments.
(a) All conveyances, mechanized farm equipment, seed-conditioning
equipment, soil-moving equipment, farm tools, grain elevators and
structures used for storing and handling wheat, durum wheat, or
triticale required to be cleaned and disinfected under this subpart
must be cleaned by removing all soil and plant debris and disinfected
by:
(1) Wetting all surfaces to the point of runoff with a solution of
sodium hypochlorite mixed with water applied at the rate of 1 gallon of
commercial chlorine bleach (5.2 percent sodium hypochlorite) mixed with
2.5 gallons of water. The equipment or site should be thoroughly washed
down after 15 minutes to minimize corrosion; or
(2) Applying steam to all surfaces until the point of runoff;
(3) Cleaning with a solution of hot water and detergent, under high
pressure (at least 30 pounds per square inch), at a minimum temperature
of 180 deg. F.; or
(4) Fumigating with methyl bromide at the dosage of 15 pounds/1000
cubic feet for 96 hours.
(b) Soil, and straw/stalks/seed heads for decorative purposes must
be treated
[[Page 40360]]
by fumigation with methyl bromide at the dosage of 15 pounds/1000 cubic
feet for 96 hours.
(c) Millfeed must be treated with a moist heat treatment of 170 oF
for at least 1 minute if the millfeed resulted from the milling of
grain from one of the following types of fields:
(1) Fields in which preharvest samples tested positive for Karnal
bunt;
(2) Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt;
(3) Fields adjacent to fields in which preharvest samples tested
positive; or
(4) Fields associated only through ownership, management, the
movement of equipment, or proximity within a distinct definable area
with fields in which preharvest samples tested positive.
Sec. 301.89-14 Compensation.
The following individuals are eligible to receive compensation from
the United States Department of Agriculture (USDA) for losses or
expenses incurred because of the Karnal bunt regulation and emergency
actions, as follows:
(a) Growers who have destroyed crops. Growers in New Mexico and
Texas who have destroyed crops of wheat pursuant to an Emergency Action
Notification (PPQ Form 523) issued by an inspector are eligible to be
compensated at the rate of $300 per acre of destroyed crop. To claim
compensation, the grower must complete and submit to an inspector
whichever of the following three forms are applicable, as determined by
the inspector: ASCS Form 574, ASCS Form 578, and FCI Form 73. The forms
will be furnished by USDA.
(b) Growers and handlers who sell nonpropagative wheat grown in the
regulated area. Growers and handlers who sell nonpropagative wheat
grown in the regulated area are eligible to be compensated for the loss
in value of their wheat due to the regulation for Karnal bunt, as
follows:
(1) Growers who sell nonpropagative wheat. For growers who sell
wheat grown for nonpropagative purposes, compensation will be as
described in paragraphs (b)(1)(ii) and (b)(1)(ii) of this section.
However, compensation will not exceed $2.50 per bushel under any
circumstances.
(i) If the wheat was grown under contract, compensation will equal
the contracted price minus the salvage value, as described in paragraph
(b)(3) of this section.
(ii) If the wheat was not grown under contract, compensation will
equal the estimated market price for the relevant class of wheat
(meaning type of wheat, such as Durum or Hard red winter) minus the
salvage value, as described in paragraph (b)(3) of this section. The
estimated market price will be calculated by APHIS for each class of
wheat, taking into account the prices offered by relevant terminal
markets (animal feed, milling, or export) for the period between May 1
and June 30, 1996, with adjustments for transportation and other
handling costs.
(2) Handlers who sell nonpropagative wheat. Handlers are eligible
to be compensated only under the circumstances described in paragraphs
(b)(2)(i) and (b)(2)(ii) of this section. Compensation for both
circumstances will equal the estimated market price for the relevant
class of wheat (meaning type of wheat, such as Durum or Hard red
winter) minus the salvage value, as described in paragraph (b)(3) of
this section. The estimated market price will be calculated by APHIS
for each class of wheat, taking into account the prices offered by
relevant terminal markets (animal feed, milling, or export) for the
period between May 1 and June 30, 1996, with adjustments for
transportation and other handling costs. However, compensation will not
exceed $2.50 per bushel under any circumstances.
(i) Handlers who honor contracts by paying the grower full contract
price on wheat grown for nonpropagative purposes in the regulated area
that was tested by APHIS and found positive for Karnal bunt; or
(ii) Handlers who purchase contracted or noncontracted wheat grown
for nonpropagative purposes in the regulated area that was tested by
APHIS and found negative for Karnal bunt prior to purchase but that was
tested by APHIS and found positive for Karnal bunt after purchase.
(3) Salvage value. Salvage values will be as follows:
(i) If the wheat is positive for Karnal bunt and is sold for use as
animal feed, salvage value equals $6.00 per hundredweight or $3.60 per
bushel for all classes of wheat.
(ii) If the wheat is positive for Karnal bunt and is sold for a use
other than animal feed, salvage value equals whichever is higher of the
following: The average price paid in the region of the regulated area
where the wheat is sold for the relevant class of wheat (meaning type
of wheat, such as Durum or Hard red winter) for the period between May
1 and June 30, 1996; or, $3.60 per bushel.
(iii) If the wheat is negative for Karnal bunt and is sold for any
use, salvage value equals whichever is higher of the following: The
average price paid in the region of the regulated area where the wheat
is sold for the relevant class of wheat (meaning type of wheat, such as
Durum or Hard red winter) for the period between May 1 and June 30,
1996; or, $3.60 per bushel.
(4) To claim compensation. To claim compensation, a grower or
handler must complete and submit to an inspector whichever of the
following three forms are applicable, as determined by the inspector:
ASCS Form 574, ASCS Form 578, and FCI Form 73. The forms will be
furnished by USDA. Growers must also submit a copy of the contract the
grower has for the wheat, if the wheat was under contract; handlers
must also submit a copy of the contract the handler had with the grower
for the wheat, if the wheat was under contract. Finally, a grower or
handler must submit a copy of the receipt for the final sale of the
wheat, showing the intended use for which the wheat was sold.
(c) Nonpropagative wheat that is not sold. If a grower or handler
of nonpropagative wheat in the regulated area is not able to or elects
not to sell their wheat, they will be eligible to receive compensation
at the rate of $2.50 per bushel. Compensation will only be paid if the
grower or handler has destroyed the wheat by burying it in a sanitary
landfill. To claim compensation, the grower or handler must complete
and submit to an inspector whichever of the following three forms are
applicable, as determined by the inspector: ASCS Form 574, ASCS form
578, and FCI Form 73. The forms will be furnished by USDA. In addition,
the grower or handler must submit a receipt from the sanitary landfill
verifying how much wheat was buried.
(d) Decontamination of grain storage facilities. Owners of grain
storage facilities that have been decontaminated pursuant to an
Emergency Action Notification (PPQ Form 523) issued by an inspector are
eligible to be compensated, on a one time only basis, for up to 50
percent of the cost of decontamination. However, compensation will not
exceed $20,000 per premises (as defined in Sec. 301.89-1). Compensation
is limited to the direct costs of decontaminating facilities. General
clean-up, repair, and refurbishment costs are excluded from
compensation. To claim compensation, the owner of the grain storage
facility must submit to an inspector records demonstrating that
decontamination was performed on all structures, conveyances, or
materials ordered to be decontaminated by the Emergency Action
Notification on the facility premises. The records must include a
[[Page 40361]]
copy of the Emergency Action Notification, contracts with individuals
or companies hired to perform the decontamination, receipts for
equipment and materials purchased to perform the decontamination, time
sheets for employees of the grain storage facility who performed
activities connected to the decontamination, and any other
documentation that helps show decontamination has been completed.
(e) Flour millers. Flour millers who, in accordance with a
compliance agreement with APHIS, heat-treat millfeed made from wheat
produced in the regulated area are eligible to be compensated at the
rate of $35.00 per short ton of millfeed. The amount of millfeed
compensated will be calculated by multiplying the weight of wheat from
the regulated area received by the miller by 25 percent (the average
percent of millfeed derived from a short ton of grain). To claim
compensation, the miller must submit to an inspector a copy of the
limited permit under which the wheat was moved to the mill and a copy
of the bill of lading for the wheat (showing the weight of the wheat in
short tons). Flour millers must also submit verification that the
millfeed was heat treated, in the form of a copy of the limited permit
under which the wheat was moved to a treatment facility and a copy of
the bill of lading accompanying that movement.
Done in Washington, DC, this 30th day of July 1996.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-19757 Filed 8-1-96; 8:45 am]
BILLING CODE 3410-34-P
