Karnal Bunt Infestations in Arizona et al.; Quarantining

SUMMARY: We are quarantining the State of Arizona and a total of six

counties in the States of New Mexico and Texas because of infestations

of Karnal bunt and are restricting the movement of regulated articles

from the quarantined areas. This action is necessary on an emergency

basis to prevent the artificial spread of Karnal bunt, a serious fungal

disease of wheat, durum wheat, and triticale, into noninfected areas of

the United States.

DATES: Interim rule effective March 25, 1996. Consideration will be

given only to comments received on or before May 28, 1996.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 96-016-3, 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. 96-016-3. 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. Stephen Poe, Operations Officer,

Domestic and Emergency Operations, PPQ, APHIS, 4700 River Road, Unit

134, Riverdale, MD 20732, (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

We are amending the ``Domestic Quarantine Notices'' in 7 CFR part

301 by adding a new subpart 301.89, ``Karnal Bunt'' (referred to below

as the regulations). These regulations quarantine all of Arizona and

portions of New Mexico and Texas because of Karnal bunt. They also

restrict the interstate movement of regulated articles from the

quarantined areas.

On March 8, 1996, Karnal bunt, a serious fungal disease of wheat

(Triticum aestivum), durum wheat (Triticum durum), and triticale

(Triticum aestivum X Seale cereals), a hybrid of wheat and rye, was

detected in Arizona during a seed certification inspection done by the

Arizona Department of Agriculture (ADA). The disease was found in three

seedlots that had been grown in Arizona and shipped within Arizona as

well as to New Mexico and Texas. Immediately after the Karnal bunt was

detected, emergency action was taken by ADA and the Animal and Plant

Health Inspection Service (APHIS) to control the artificial spread of

this disease, and APHIS began working with other plant protection

agencies to determine the extent of the infection.

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.

Karnal bunt is caused by the smut fungus Tilletia indica (Mitra)

Mundkur and is spread by spores. Infection occurs during the flowering

stage of the plant when the developing ovary of a host plant comes into

contact with infectious sporidia. 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,

spores have been known to move longer distances.

Karnal bunt is a serious disease that affects both yield and grain

quality. It adversely affects the color, odor, and palatability of

flour and other foodstuffs made from wheat. Wheat containing any amount

of bunted kernels is reduced in quality. Karnal bunt does not present a

risk to human health.

Karnal bunt is difficult to manage because of the biology of the

pathogen and the susceptibility of the host. Teliospores can remain

viable for 4 to 5 years in the soil. Chemical seed treatments may

reduce infection by controlling seedborne inoculum, but do little to

eliminate soilborne inoculum. Use of resistant varieties of wheat would

be the most effective means of control. However, no commercial

cultivars are known to be established.

For this reason, Federal and State quarantines are needed on an

emergency basis to retard the artificial spread of Karnal bunt and to

protect noninfected areas. Therefore, this interim rule establishes a

quarantine and regulations, which are described below by section, to

prevent the artificial spread of Karnal bunt.

Definitions

Section 301.89-1 contains definitions of the following terms:

Administrator, Animal and Plant Health Inspection Service, certificate,

compliance agreement, conveyances, farm tools, infestation (infected),

inspector, interstate, Karnal bunt, limited permit, mechanized

cultivating equipment and mechanized harvesting equipment, milling

products and byproducts, movement (moved), person, soil, soil-moving

equipment, and State. Regulated articles.

The regulations impose conditions on the interstate movement of

those articles that present a significant risk of spreading Karnal bunt

if moved without restriction from quarantined areas into or through

noninfected areas. The articles, which are designated as regulated

articles, may not be moved interstate from quarantined areas except in

accordance with the conditions specified in Secs. 301.89-4 through

301.89-11.

Paragraphs (a) through (m) of Sec. 301.89-2 designate the following

as regulated articles: Conveyances, including trucks, railroad cars and

other containers used to move wheat, durum wheat, or triticale; grain

elevators/equipment/structures used for storing and handling wheat,

durum wheat, and triticale; manure from animals that have

[[Page 13650]]

fed on wheat, durum wheat, or triticale; milling products or

byproducts, except flour; plants or plant parts, including grain, seed,

or straw of all varieties of the species of Triticum aestivum (wheat),

Triticum durum (durum wheat); and Triticum aestivum X Seale cereals

(triticale); root crops with soil; soil from areas where field crops

are produced; used bags, sacks and containers; used farm tools; used

mechanized cultivating equipment; used mechanized harvesting equipment;

used seed conditioning equipment; and used mechanized soil-moving

equipment.

Further, Sec. 301.89(2)(n) allows designation of any other product,

article or means of conveyance as a regulated article if an inspector

determines that it presents a risk of spreading Karnal bunt due to its

proximity to an infestation of Karnal bunt and notifies the person in

possession of the product, article, or means of conveyance that it is

subject to the restrictions in the regulations.

Quarantined areas

As stated in Sec. 301.89-3(a), the Administrator will quarantine

each State or each portion of a State that is infected. Section

301.89(b) provides that less than an entire State will be listed as a

quarantined area only under certain conditions. Such a listing may be

made if the Administrator determines that: (1) 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

interstate movement restrictions imposed by the regulations in

Sec. 301.89-1 through Sec. 301.89-11; and (2) designating less than the

entire State as a quarantined area will prevent the artificial spread

of Karnal bunt. Alternatively, less than an entire State may be listed

as a quarantined area if the Administrator exercises his or her

extraordinary emergency authority under 7 U.S.C. 150dd.

In accordance with these criteria, we are designating the State of

Arizona, four counties in New Mexico, and two counties in Texas as

quarantined areas. These quarantined areas are listed in Sec. 301.89-

3(e).

Section 301.89-3(c) provides that the Administrator may include

uninfected acreage within a quarantined area due to its proximity to an

infestation or inseparability from the infected locality for quarantine

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 uninfected acreage that

are suitable for establishment and survival of Karnal bunt; and (3) the

necessity of including uninfected acreage within the quarantined area

in order to establish readily identifiable boundaries.

Section 301.89-3(d) provides that the Administrator or an inspector

may temporarily designate any nonquarantined area as a quarantined

area, without publication in the Federal Register, if there is a basis

for listing the area as a quarantined area under Sec. 301.89-3

paragraphs (a), (b), or (c), and if the owner or person in possession

of the nonquarantined area, or, in the case of publicly owned land, the

person responsible for the management of the nonquarantined area, is

given written notice of the designation. This is necessary to prevent

the spread of Karnal bunt before restrictions can be published in the

Federal Register concerning the interstate movement of regulated

articles from the designated area.

Conditions Governing the Interstate Movement of Regulated Articles From

Quarantined Areas

Section 301.89-4(a)(1) requires regulated articles moved interstate

from a quarantined area into or through an area that is not quarantined

to be accompanied by a certificate or limited permit issued and

attached as prescribed by Secs. 301.89-5 and 301.89-9.

Section 301.89-4(a)(2) allows a regulated article that originates

outside the quarantined area to be moved interstate through a

quarantined area without a certificate or limited permit under the

following conditions: (1) The regulated article was moved into the

quarantined area from an area that is not quarantined; (2) the point of

origin is indicated on a waybill accompanying the regulated article;

(3) the regulated article is moved through the quarantined area without

stopping, or has been stored, packed, or handled at locations approved

by an inspector, or has been treated in accordance with the methods and

procedures prescribed in Sec. 301.89-11 while in or moving through any

quarantined area; and (4) the article has not been combined or

commingled with other articles so as to lose its individual identity.

Section 301.89-4(a)(3) allows soil to be moved interstate from a

quarantined area, provided the soil is being moved to a laboratory

approved by the Administrator to process, test, or analyze soil

samples.

Section 301.89-4(b) references the authority of an inspector who

has probable cause to believe a person or means of conveyance is moving

regulated articles in interstate commerce to stop the person or means

of conveyance to determine whether regulated articles are present and

to inspect the regulated articles. Further, Sec. 301.89-4(b) provides

that articles found to be infected by an inspector, and articles not in

compliance with the regulations, may be seized, quarantined, treated,

subjected to other remedial measures, destroyed, or otherwise disposed

of.

Issuance of Certificates and Limited Permits

Under Federal domestic plant quarantine programs, there is a

difference between the use of certificates and limited permits.

Certificates are issued for regulated articles upon a finding by an

inspector that, because of certain conditions (e.g., the article is

free of Karnal bunt), there is an absence of a pest or disease risk

prior to movement. Regulated articles accompanied by a certificate may

be moved interstate without further restrictions being imposed. Limited

permits are issued for regulated articles when an inspector has

determined that, because of possible pest or disease risk, such

articles may be safely moved interstate only subject to further

restrictions, such as movement to specified areas and movement for

specified purposes. Section Sec. 301.89-5 explains the conditions for

issuing a certificate or limited permit.

Specifically, Sec. 301.89-5(a) provides that an inspector or person

operating under a compliance agreement (discussed below) will issue a

certificate for the interstate movement of a regulated article if the

inspector determines that the regulated article: (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; and (3) meets one of

the following conditions: The article is free of Karnal bunt infection,

based on laboratory results of testing, and history of previous

infestation; the article has been grown, produced, manufactured,

stored, or handled in a manner that would prevent infestation or

destroy all life stages of Karnal bunt; or the article has been treated

in accordance with methods and procedures prescribed in Sec. 301.89-11.

Section 301.50-5(b) provides for the issuance of a limited permit

(in lieu of a certificate), by an inspector or a person operating under

a compliance agreement, for movement of a regulated

[[Page 13651]]

article if the inspector determines that the regulated article: (1) Is

to be moved interstate 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 interstate 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 interstate in compliance with any

additional emergency conditions the Administrator may impose under 7

U.S.C. 150dd to prevent the spread of Karnal bunt; and (3) is eligible

for interstate movement under all other Federal domestic plant

quarantines and regulations applicable to the regulated article.

Section 301.89-5(c) provides that an inspector will issue blank

certificates and limited permits to a person operating under a

compliance agreement 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 or

limited permits may then be completed and used, as needed, for the

interstate movement of regulated articles that have met all of the

requirements of Sec. 301.89-5(a) or Sec. 301.89-5(b), respectively.

Compliance Agreements

Section 301.89-6 provides for the use of compliance agreements.

Specifically, compliance agreements may be entered into by any person

engaged in the growing, handling, or movement of regulated articles

interstate 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. 301.89-11, 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

regulations.

Cancellation of a Certificate, Limited Permit, or Compliance Agreement

Section 301.89-7 provides that an inspector may cancel a

certificate, limited permit, or compliance agreement, orally or in

writing, 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 the regulations. If the

cancellation is oral, the cancellation will become effective upon

notification by the inspector. The cancellation and the reasons for the

cancellation will then be confirmed in writing as soon as circumstances

allow 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.

Assembly and Inspection of Regulated Articles

Section 301.89-8(a) provides that any person who requires

certification or other services from an inspector must request the

services at least 48 hours before they are needed. Section 301.89-7(b)

provides that regulated articles must be assembled at the place and in

the manner an inspector designates as necessary to comply with the

regulations.

Attachment and Disposition of Certificates and Limited Permits

Section 301.89(a) requires the consignor of a regulated article to

ensure that the certificate or limited permit authorizing interstate

movement of a regulated article is, at all times during interstate

movement, attached to the regulated article, or to the outside of the

container encasing the regulated article, or to the accompanying

waybill. This section also provides that the certificate or limited

permit may be attached to the consignees copy of the waybill only if

the certificate and limited permit, and the waybill, contain a

sufficient description of the regulated article to identify the

regulated article. This provision is necessary for enforcement

purposes.

Section 301.89-9(b) requires the carrier of the article to furnish

the certificate or limited permit to the consignee at the shipment's

destination.

Costs and Charges

Section 301.89-10 explains the APHIS policy that the services of an

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.

Treatments

Treatments of regulated articles for Karnal bunt are set forth in

Sec. 301.89-11. These treatments are known to be efficacious in

destroying Karnal bunt teliospores. To meet the requirements of the

regulations for treatments, all conveyances, mechanized farm equipment,

seed-conditioning equipment, soil-moving equipment, grain elevators and

structures used for storing and handling wheat must be cleaned and

disinfected by first removing all soil and plant debris, then treated

in one of the following ways: (1) Wetting all surfaces to the point of

runoff with a solution of sodium hypochlorite mixed with water applied

at the rate of one gallon of a commercial chlorine bleach (5.2 percent

sodium hypochlorite) mixed with 2.5 gallons of water (thoroughly

washing the equipment or site after 15 minutes is recommended to

minimize corrosion); (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. Soil and straw/

stalks/seed heads for decorative purposes must be fumigated with methyl

bromide at the dosage of 15 pounds/1000 cubic feet for 96 hours.

Emergency Action

The Administrator of the Animal and Plant Health Inspection Service

has determined that an emergency exists that warrants publication of

this interim rule without prior opportunity for public comment.

Immediate action is necessary to prevent Karnal bunt from spreading to

noninfected areas of the United States.

Because prior notice and other public procedures with respect to

this action are impracticable and contrary to the public interest under

these conditions, we find good cause under 5 U.S.C. 553 to make it

effective upon signature. We will consider comments that are received

within 60 days of publication of this rule in the Federal Register.

After the comment period closes, we will publish another document in

the Federal Register. It will include a discussion of any comments we

receive and any amendments we are making to the rule as a result of the

comments.

[[Page 13652]]

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 quarantines the State of Arizona and six counties in

New Mexico and Texas because of Karnal bunt and restricts the

interstate movement of regulated articles from areas quarantined

because of infestation with Karnal bunt. 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 Act 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 required intergovernmental consultation with State and local

officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12778

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule: (1) Preempts all State and local laws and

regulations that are inconsistent with this rule; (2) has no

retroactive effect; and (3) only requires administrative proceedings

before parties may file suit in court challenging this rule upon the

cancellation of a certificate, limited permit, or compliance agreement.

National Environmental Policy Act

An environmental assessment and finding of no significant impact

have been prepared for this rule. The assessment provides a basis for

the conclusion that the treatment of regulated articles, under the

conditions specified in this rule, will not have a significant impact

on the quality of the human environment. Based on the finding of no

significant impact, the Administrator of the Animal and Plant Health

Inspection Service has determined that an environmental impact

statement need not be prepared.

The environmental assessment and finding of no significant impact

were prepared in accordance with: (1) The National Environmental Policy

Act of 1969 (NEPA) (42 U.S.C 4321 et seq.), (2) Regulations on the

Council on Environmental Quality for implementing the procedural

provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations

implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing

Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no

significant impact are available for public inspection 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 copies are requested to

call ahead on (202) 690-2817 to facilitate entry into the reading room.

In addition, copies may be obtained by writing to the individual listed

under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

In accordance with section 3507(j) of the Paperwork Reduction Act

of 1995 (44 U.S.C. 3501 et seq.), the information collection and

recordkeeping requirements included in this interim rule have been

submitted for emergency approval to the Office of Management and Budget

(OMB). OMB has assigned control number 0579-0121 to the information

collection and recordkeeping requirements. Notwithstanding any other

provision of the law, no person is required to respond to, nor shall

any person be subject to a penalty for failure to comply with a

collection of information, subject to the requirements of the Paperwork

Reduction Act, unless that collection of information displays a

currently valid OMB Control Number. Please send written comments to the

Office of Information and Regulatory Affairs, OMB, Attention: Desk

Officer for APHIS, Washington, DC 20503. Please state that your

comments refer to Docket No. 96-016-3. Please send a copy of your

comments to: (1) Docket No. 96-016-3, Regulatory Analysis and

Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118,

Riverdale, MD 20737-1238, and (2) Clearance Officer, OIRM, USDA, room

404-W, 14th Street and Independence Avenue SW., Washington, DC 20250.

The paperwork associated with the Karnal bunt program will include

the completion of compliance agreements, certificates, and limited

permits. There will also be requests for inspections. We are soliciting

comments from the public (as well as affected agencies) concerning our

proposed information collection and recordkeeping requirements. We need

this outside input to help us accomplish the following:

(1) Evaluate whether the proposed collection of information is

necessary for the proper performance of our agency's functions,

including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the

proposed collection of information, including the validity of the

methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to

be collected; and

(4) Minimize the burden of the information collection on those who

are to respond (such as through the use of appropriate automated,

electronic, mechanical, or other technological collection techniques or

other forms of information technology, e.g., permitting electronic

submission responses).

Estimate of burden: Public reporting burden for this collection of

information is estimated to average 15 minutes per response.

Respondents: State plant regulatory officials, shippers, growers,

and representatives of the plant industry.

Estimated number of respondents: 1,573.

Estimated number of responses per respondent: 4.

Estimated total annual burden on respondents: 1,500.

Copies of this information collection can be obtained from:

Clearance Officer, OIRM, USDA, room 404-W, 14th Street and Independence

Avenue SW., Washington, DC 20250.

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 is amended as follows:

1. The authority citation for part 301 continues 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 is amended by adding a new ``Subpart--Karnal Bunt'',

sections 301.89 through 301.89-11, to read as follows:

Subpart--Karnal Bunt

Sec.

301.89-1 Definitions.

301.89-2 Regulated articles.

301.89-3 Quarantined areas.

301.89-4 Interstate movement of regulated articles from quarantined

areas.

301.89-5 Issuance of a certificate or limited permit.

[[Page 13653]]

301.89-6 Compliance agreements.

301.89-7 Cancellation of a certificate, limited permit, or

compliance agreement.

301.89-8 Assembly and inspection of regulated articles.

301.89-9 Attachment and disposition of certificates and limited

permits.

301.89-10 Costs and charges.

301.89-11 Treatments.

Subpart--Karnal Bunt

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 interstate to

any destination.

Compliance agreement. A written agreement between APHIS and a

person engaged in growing, handling, or moving regulated articles that

are moved interstate, in which the person agrees to comply with the

provisions of this subpart and any conditions imposed under this

subpart.

Conveyances. Containers used to move wheat, durum wheat, or

triticale, or their products, including trucks, trailers, railroad

cars, bins, and hoppers.

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.

Interstate. From any State into or through any other State.

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 interstate 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, 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.

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 Seale cereals;

(e) Root crops with soil;

(f) Soil from areas where field crops are produced;

(g) Manure from animals that have fed on wheat, durum wheat, or

triticale;

(h) Used bags, sacks and containers;

(i) Used farm tools;

(j) Used mechanized cultivating equipment;

(k) Used mechanized harvesting equipment;

(l) Used seed conditioning equipment;

(m) Used mechanized soil-moving equipment; and

(n) Any other product, article or means of conveyance when:

(i) An inspector determines that it presents a risk of spreading

Karnal bunt due to its proximity to an infestation of Karnal bunt; and

(ii) 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 Quarantined areas.

(a) The Administrator will quarantine each State or each portion of

a State that is infected.

(b) Less than an entire State will be listed as a quarantined 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 interstate movement

restrictions imposed by this subpart; and

(ii) Determines that designating less than the entire State as a

quarantined 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

quarantined area due to its proximity to an infestation or

inseparability from the infected locality for quarantine 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

quarantined area in order to establish readily identifiable boundaries.

(d) The Administrator or an inspector may temporarily designate any

nonquarantined area as a quarantined 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 nonquarantined area, or, in the case of

publicly owned land, to the person responsible for the management of

the nonquarantined area. Thereafter, the interstate movement of any

regulated article from an area temporarily designated as a quarantined

area is subject to this subpart. As soon as practicable, this area

either will be added to the list of designated quarantined 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

[[Page 13654]]

terminated will be given written notice of the termination as soon as

practicable.

(e) The following areas are designated as quarantined areas:

Arizona

The entire State.

New Mexico

Dona Ana County. The entire county.

Hidalgo. The entire county.

Luna County. The entire county.

Sierra County. The entire county.

Texas

El Paso County. The entire county.

Hudspeth. The entire county.

Sec. 301.89-4 Interstate movement of regulated articles from

quarantined areas.

(a) Any regulated article may be moved interstate from a

quarantined area into or through an area that is not quarantined only

if moved under the following conditions:

(1) With a certificate or limited permit issued and attached in

accordance with Secs. 301.89-5 and 301.89-9;

(2) Without a certificate or limited permit, provided that each of

the following conditions is met:

(i) The regulated article was moved into the quarantined area from

an area that is not quarantined;

(ii) The point of origin is indicated on a waybill accompanying the

regulated article;

(iii) The regulated article is moved through the quarantined 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. 301.89-11 while in or moving through any

quarantined area; and

(iv) The article has not been combined or commingled with other

articles so as to lose its individual identity; or

(3) Without a certificate or limited permit, provided the regulated

article is a soil sample being moved to a laboratory approved by the

Administrator 1 to process, test, or analyze soil samples.

\1\ 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 in interstate

commerce, 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. 301.89-11.

Sec. 301.89-5 Issuance of a certificate or limited permit.

(a) An inspector 2 or person operating under a compliance

agreement will issue a certificate for the interstate movement of a

regulated article if he or she determines that the regulated article:

\2\ 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 3; and

\3\ 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; or

(iii) Has been treated in accordance with methods and procedures

prescribed in Sec. 301.89-11.

(b) An inspector or a person operating under a compliance agreement

will issue a limited permit for the interstate movement of a regulated

article not eligible for a certificate if the inspector determines that

the regulated article:

(1) Is to be moved interstate 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 interstate 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 interstate 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 interstate 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. 301.89-6 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

interstate movement of regulated articles that have met all of the

requirements of paragraph (a) or (b), respectively, of this section.

Sec. 301.89-6 Compliance agreements.

Persons who grow, handle, or move regulated articles interstate may

enter into a compliance agreement 4 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. 301.89-11, 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.

\4\ Compliance agreements may be initiated by contacting a

local office of Plant Protection and Quarantine, which are listed in

telephone directories. The addresses and telephone numbers of local

offices of Plant Protection and Quarantine may also be obtained from

the Animal and Plant Health Inspection Service, Plant Protection and

Quarantine, 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. 301.89-7 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.

[[Page 13655]]

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. 301.89-8 Assembly and inspection of regulated articles.

(a) Persons requiring certification or other services must request

the services from an inspector 5 at least 48 hours before the

services are needed.

\5\ 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. 301.89-9 Attachment and disposition of certificates and limited

permits.

(a) The consignor must ensure that the certificate or limited

permit authorizing interstate movement of a regulated article is, at

all times during interstate 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 interstate movement of a regulated article to the consignee

at the shipment's destination.

Sec. 301.89-10 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. 301.89-11 Treatments.

(a) All conveyances, mechanized farm equipment, seed-conditioning

equipment, soil-moving equipment, grain elevators and structures used

for storing and handling wheat, durum wheat, or triticale must be

cleaned and disinfected by removing all soil and plant debris and:

(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 by fumigation with methyl bromide at the dosage of 15

pounds/1000 cubic feet for 96 hours.

Done in Washington, DC, this 25th day of March, 1996.

Lonnie J. King,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 96-7545 Filed 3-27-96; 8:45 am]

BILLING CODE 3410-34-P