Karnal Bunt

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

[[Page 40356]]

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,

[[Page 40357]]

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

[[Page 40358]]

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