[Federal Register Volume 63, Number 18 (Wednesday, January 28, 1998)]
[Proposed Rules]
[Pages 4198-4204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1776]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 63, No. 18 / Wednesday, January 28, 1998 / 
Proposed Rules

[[Page 4198]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 319

[Docket No. 96-016-22]
RIN 0579-AA83


Karnal Bunt; Movement From Regulated Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Karnal bunt regulations to 
allow, under certain conditions, commercial lots of seed to move from 
restricted areas for seed. We also propose to amend the testing 
requirements for regulated articles other than seed, remove certain 
articles from the list of articles regulated because of Karnal bunt, 
clarify the terms ``used mechanized harvesting equipment'' and ``used 
seed conditioning equipment,'' and clarify requirements for soil 
movement with vegetables. These changes would relieve restrictions on 
the movement of articles from areas regulated because of Karnal bunt. 
We also propose to amend the requirements for treating millfeed and 
soil, and remove the methyl bromide treatment alternative for 
decorative articles. These changes appear necessary to help prevent the 
spread of Karnal bunt. We also propose to amend the definition of 
surveillance areas to more clearly distinguish between surveillance 
areas and restricted areas. In addition, we are proposing to amend the 
regulations governing the importation of wheat into the United States 
to make the definition of the term ``Karnal bunt'' consistent with the 
definition of that term in the Karnal bunt regulations.

DATES: Consideration will be given only to comments received on or 
before March 30, 1998.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 96-016-22, 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. 96-016-22. 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 fungal disease of wheat (Triticum aestivum), durum 
wheat (Triticum durum), and triticale (Triticum aestivum X Secale 
cereale), a hybrid of wheat and rye. Karnal bunt is caused by the smut 
fungus Tilletia indica (Mitra) Mundkur and is spread by spores, 
primarily through the movement of infected seed. In the absence of 
measures taken by the U.S. Department of Agriculture (USDA) to prevent 
its spread, the establishment of Karnal bunt in the United States could 
have significant consequences with regard to the export of wheat to 
international markets. The regulations regarding Karnal bunt in the 
United States are set forth in 7 CFR 301.89-1 through 301.89-14.
    We are proposing to amend the Karnal bunt regulations to allow, 
under certain conditions, commercial lots of seed to move from 
restricted areas for seed; amend the testing requirements for regulated 
articles other than seed; remove certain articles from the list of 
articles regulated because of Karnal bunt; clarify the terms ``used 
mechanized harvesting equipment'' and ``used seed conditioning 
equipment''; clarify requirements for soil movement with vegetables; 
amend the requirements for treating millfeed and soil; remove the 
methyl bromide treatment alternative for decorative articles; and amend 
the definition of surveillance areas.

Movement of Seed From Restricted Areas for Seed

    Under the current Karnal bunt regulations, areas regulated because 
of Karnal bunt are divided into three categories: restricted areas for 
regulated articles other than seed, surveillance areas, and restricted 
areas for seed. Restricted areas for regulated articles other than seed 
are individual fields that were (1) found during survey to contain a 
bunted wheat kernel, (2) planted with seed from a lot that was found to 
contain a bunted wheat kernel, or (3) found during survey to contain 
spores consistent with Karal bunt and determined to be associated with 
grain at a handling facility containing a bunted wheat kernal. No field 
currently identified as a restricted area for regulated articles other 
than seed are currently planted with Karnal bunt host crops (wheat, 
durum wheat, and triticale), and no host crops may be planted in these 
fields. Surrounding these fields are the surveillance areas. The 
restricted areas for seed encompass the largest area, covering and 
extending beyond the other two categories of regulated areas.
    The movement of commercial lots of seed from a restricted area for 
seed is prohibited; seed in smaller lots for germplasm or research 
purposes may be moved from a restricted area for seed if treated in 
accordance with the regulations at Sec. 301.89-13(e).
    Those portions of a restricted area for seed that extend beyond the 
surveillance areas do not contain any fields where a bunted wheat 
kernal has been found or any fields found to contain spores consistent 
with Karnal bunt and associated with grain at a handling facility 
containing a bunted wheat kernal. We propose to allow commercial lots 
of seed to move from a restricted area for seed if: (1) The field or 
fields where the seed was grown are not part of a restricted area for 
regulated articles other than seed or a surveillance area; (2) the seed 
tests negative for Karnal bunt (spores and bunted kernels); (3) the 
most recent previous Karnal bunt host crop grown in the field or fields 
where the seed intended for movement was grown also tested negative for 
Karnal bunt (spores and bunted kernels); and (4) the seed intended for 
movement is treated in accordance with Sec. 301.89-13(e), currently 
designated as the treatment for

[[Page 4199]]

seed used as germplasm or for research purposes.
    We would not allow seed to move from a restricted area for seed if 
the field where the seed was grown is also a part of a restricted area 
for articles other than seed or a surveillance area because of the 
higher risk of the presence of Karnal bunt in such areas. As noted 
above, the regulations do not allow for the planting of host crops in a 
restricted area for regulated articles other than seed. Therefore, seed 
cannot be grown in those areas. However, it is possible that a bunted 
kernel may be detected in a field that is not currently designated a 
restricted area for regulated articles other than seed while that field 
is planted with a Karnal bunt host crop. In that case, when the bunted 
kernel is detected, the field would immediately be designated a 
restricted area for regulated articles other than seed, and the crop 
would not be eligible for certified movement as a commercial lot of 
seed. Unlike restricted areas for regulated articles other than seed, 
surveillance areas may be planted with host crops, in accordance with 
Sec. 301.89-4, and, therefore, seed could be grown in surveillance 
areas. Yet because of a surveillance area's proximity to a restricted 
area for regulated articles other than seed (i.e., a field associated 
with bunted kernels), we would not allow commercial lots of seed from 
surveillance areas to move out of the regulated area.
    We would require that, prior to movement from the restricted area 
for seed, the seed test negative for Karnal bunt (spores and bunted 
kernels) to help reduce the risk of the spread of the disease to 
noninfected areas of the United States. Because of its intended use as 
seed for planting, seed presents a higher risk than grain of spreading 
Karnal bunt. Therefore, in accordance with Sec. 301.89-4(b), we would 
require that seed test negative for both spores and bunted kernels 
before moving from the restricted area for seed.
    Also, the most recent previous Karnal bunt host crop grown in the 
field or fields where the seed intended for movement was grown must 
have tested negative for Karnal bunt (spores and bunted kernels). This 
requirement would help verify the production area's long-term freedom 
from Karnal bunt. Because crops are rotated, a field will likely not be 
planted with Karnal bunt host crops in consecutive years. Negative test 
results for fields surveyed for Karnal bunt during the 1995-1996 and 
the 1996-1997 growing seasons would allow the next applicable Karnal 
bunt host crop planted in those fields to meet this eligibility 
requirement. If a field has not yet been surveyed, that field would 
have to be surveyed while planted with a host crop and found free of 
Karnal bunt (spores and bunted kernels) in order for a subsequent seed 
crop, during a future growing season, to meet this eligibility 
requirement. During each crop season, we would survey fields in the 
restricted area for seed that are planted with Karnal bunt host crops 
intended for use as seed and survey additional fields in the area. The 
data that we collect in these surveys will provide information over a 
period of years and through a variety of environmental conditions to 
confirm an area's continued freedom from the disease.
    Lastly, we would require that, prior to movement from the 
restricted area for seed, the seed be treated in accordance with the 
treatment currently authorized for seed for use as germplasm or for 
research purposes (see Sec. 301.89-13(e)). This requirement would help 
reduce the risk of the spread of Karnal bunt to noninfected areas of 
the United States.

Testing Requirements for Regulated Articles Other Than Seed

    Currently, to be eligible for certified movement, regulated 
articles other than seed must be tested for both Karnal bunt spores and 
bunted kernels prior to movement from the regulated area (see 
Sec. 301.89-6(b) and (d)). However, because of its intended uses (for 
example, processing for millfeed or animal feed), grain presents a much 
lower risk of spreading Karnal bunt than seed. We therefore propose to 
allow the certified movement of grain other than for seed if the grain 
is tested prior to movement from the field or before being commingled 
with other grains and found free of bunted kernels only, rather than 
Karnal bunt spores and bunted kernels. We believe that this testing of 
grain for bunted kernels provides an appropriate level of protection 
against the spread of Karnal bunt by grain.

Removal of Regulated Articles

    Certain articles present a significant risk of spreading Karnal 
bunt if the articles are moved from regulated areas without 
restriction. We call these articles ``regulated articles.'' When Karnal 
bunt was first detected in the United States, we established an 
extensive list of regulated articles. Based on our experience with the 
control of other plant diseases, we included, as a precautionary 
measure, many articles on the list of regulated articles that we 
believed could present a significant risk of spreading Karnal bunt.
    Subsequently, a further assessment of the risk involved in moving 
regulated articles was performed. This assessment considered factors 
such as additional information about Karnal bunt and the way in which 
it spreads, the size of regulated areas, the movement of regulated 
articles within and outside of regulated areas, and the normal business 
practices involved in the handling of regulated articles. As a result 
of this assessment, we are proposing to amend the list of regulated 
articles by removing used bags, sacks, and containers; used farm tools; 
used mechanized cultivating equipment; and used soil moving equipment 
from the list of regulated articles because these items present a 
negligible risk of spreading Karnal bunt. Accordingly, as these 
articles would no longer be regulated, we are also proposing to revise 
paragraph (a) of Sec. 301.89-12 to remove the requirement that these 
articles be treated in accordance with Sec. 301.89-13; to revise 
paragraph (a) of Sec. 301.89-13, which describes treatments for 
mechanized farm equipment (which includes mechanized cultivating 
equipment), farm tools, and soil moving equipment; and to remove 
paragraph (f) of Sec. 301.89-13, which describes treatments for bags, 
sacks, and containers. As a result of these changes to the regulations, 
used bags, sacks, containers, and used farm tools, mechanized 
cultivating equipment, and soil moving equipment would no longer have 
to be treated before being moved from a regulated area. These actions 
would relieve an unnecessary regulatory burden on the wheat industry in 
areas regulated because of Karnal bunt while continuing to protect 
against the spread of Karnal bunt to noninfected areas of the United 
States.

Used Mechanized Harvesting Equipment and Used Seed Conditioning 
Equipment

    When we first established the regulations to prevent the spread of 
Karnal bunt in the United States, we listed as regulated articles 
``used mechanized harvesting equipment'' and ``used seed conditioning 
equipment'' because, when this type of equipment is used in a regulated 
area in the production of Karnal bunt host crops, the equipment 
presents a risk of spreading Karnal bunt if moved outside the regulated 
area without restriction. However, in the regulations, we did not 
specify what was meant by the word ``used.'' Therefore, any mechanized 
harvesting equipment or seed conditioning equipment used in the area 
regulated for Karnal bunt, whether or not that equipment was used in 
association with Karnal bunt host crops, was subject to the 
requirements of the

[[Page 4200]]

regulations, including the treatment requirements in Sec. 301.89-13.
    Within the areas regulated because of Karnal bunt, there is no 
reason to regulate mechanized harvesting equipment and seed 
conditioning equipment if the equipment is not used in the production 
of Karnal bunt host grains. Therefore, we are proposing to amend 
Sec. 301.89-2 (l) and (m) to clarify that only mechanized harvesting 
equipment and seed conditioning equipment that were used in the 
production of wheat, durum wheat, or triticale are considered regulated 
articles. Accordingly, we would also revise paragraph (a) of 
Sec. 301.89-12 to clarify that only mechanized harvesting equipment and 
seed conditioning equipment that were used in the production of wheat, 
durum wheat, or triticale are required to be treated in accordance with 
Sec. 301.89-13 prior to movement from the regulated area. (A regulated 
area includes all restricted areas for seed and all restricted and 
surveillance areas for regulated articles other than seed.) This action 
would relieve an unnecessary regulatory burden on producers in Karnal 
bunt regulated areas.

Soil Movement

    We are also proposing to clarify the requirements for soil movement 
with vegetables, located at Sec. 301.89-12(b), because there has been 
confusion concerning the requirements for soil attached to root crops 
and other commodities moving from areas regulated because of Karnal 
bunt. We have stated in previous documents that we believe that there 
is a risk of spreading Karnal bunt through the movement of soil. 
However, we recognize this risk in most cases is negligible based on 
(1) survey data, (2) intended use of the produce for consumption, and 
(3) the cleaning and handling of root crops and other commodities in 
normal business practice. Consequently, in this proposed rule, we 
propose to specify that soil attached to root crops and other 
commodities must be removed only if the crops or commodities were grown 
in fields that are in restricted areas for regulated articles other 
than seed because these are the fields that have been determined to be 
directly associated with bunted kernels. We believe that these fields 
are high risk for spreading Karnal bunt and warrant the soil removal 
restrictions. We believe that root crops and commodities from fields in 
proximity (i.e., restricted areas for seed) are lower risk, and that 
the intended use of the products (consumption) and normal business 
practices (cleaning and grading of the crops) are sufficient to 
mitigate the risk of spreading Karnal bunt to other areas of the United 
States. This action would relieve an unnecessary regulatory burden on 
growers of vegetables and fruits within regulated areas.

Millfeed Treatment

    We are proposing to amend the requirements for treatment of 
millfeed. In the October 4, 1996, final rule, we established special 
requirements for the treatment and handling of millfeed. Specifically, 
we required that millfeed be treated with a moist heat treatment of 170 
 deg.F for at least 1 minute if the millfeed resulted from the milling 
of grain from either: (1) Fields in which preharvest samples test 
positive for Karnal bunt during the 1996-1997 crop season; or (2) 
fields located in a restricted area. During the 1996 harvest season, we 
allowed a destination State willing to accept appropriate monitoring 
responsibilities to determine the appropriate treatment and handling of 
millfeed based on the intended use of the millfeed within the 
destination State.
    Because of changes to the description of ``restricted area'' made 
in the May 1, 1997, interim rule, millfeed must only be treated if it 
is produced from grain grown in a restricted area. However, under the 
May 1, 1997, interim rule, individual fields that are in restricted 
areas may not be planted with wheat, durum wheat, or triticale. 
Therefore, no millfeed is produced from grain grown in fields in 
restricted areas, and consequently, no millfeed currently requires 
treatment under the regulations. However, we believe that millfeed, if 
it results from the milling of grain that tests positive for Karnal 
bunt, carries a risk of spreading Karnal bunt. Therefore, we are 
proposing to amend Sec. 301.89-13(c) to require that millfeed produced 
from grain that tests positive for Karnal bunt be treated with a moist 
heat treatment of 170  deg.F for at least 1 minute. This action will 
help prevent the spread of Karnal bunt into noninfected areas of the 
United States.

Methyl Bromide Treatment

    The regulations at Sec. 301.89-13(b) allow, among other things, 
straw/stalks/seed heads for decorative purposes to move from a 
regulated area if they are treated with methyl bromide. Straw/stalks/
seed heads may move without treatment if they have been processed or 
manufactured prior to movement and are for use indoors. We are 
proposing to remove the methyl bromide treatment for straw/stalks/seed 
heads for decorative purposes. Results of recently conducted research 
indicate that methyl bromide is not effective in devitalizing 
teliospores of Tilletia indica under dry conditions. Wetting the straw/
stalks/seed heads is not practical because the articles would be 
damaged. Straw/stalks/seed heads for decorative purposes would still be 
eligible for movement, if processed or manufactured prior to movement 
and intended for use indoors, or if moved under limited permit for 
specified handling, utilization, or processing, under the provisions of 
Sec. 301.89-6. This action would remove an ineffectual treatment method 
from the regulations.
    Section 301.89-13(b) also provides that soil may be moved from a 
regulated area after treatment with methyl bromide. Because we have 
established that methyl bromide does not deactivate teliospores of 
Tilletia indica under dry conditions, we are proposing to add a 
moisture condition to the treatment of soil. Based on research, we are 
proposing to require that soil be wetted with water, to a depth of 1 
inch, just prior to methyl bromide treatment. The water may be added by 
irrigation or rain. This action would help prevent the spread of Karnal 
bunt into noninfected areas of the United States.

Definition of Surveillance Areas

    We are proposing to amend the description of surveillance area at 
Sec. 301.89-3(e)(4) to clarify that a surveillance area is an area 
where Karnal bunt is not known to occur but where, for various reasons, 
intensive surveys are necessary. This action would help differentiate 
between the status of a restricted area for regulated articles other 
than seed and the status of a surveillance area.

Definition of Karnal Bunt

    The regulations at 7 CFR 319.59 through 319.59-2 govern the 
importation of wheat into the United States to prevent the introduction 
of foreign wheat diseases, such as flag smut and Karnal bunt. We are 
proposing to revise the definition of ``Karnal bunt'' at Sec. 319.59-1 
to make it consistent with the definition of Karnal bunt in 
Sec. 301.89-1. The new definition of Karnal bunt at Sec. 319.59-1 would 
read ``A plant disease caused by the fungus Tilletia indica (Mitra) 
Mundkur.''

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be economically significant for the 
purposes of Executive Order 12866 and, therefore, has been

[[Page 4201]]

reviewed by the Office of Management and Budget.
    The Karnal bunt regulations were established under the Plant 
Quarantine Act (7 U.S.C. 151-165 and 167) and the Federal Plant Pest 
Act (7 U.S.C. 150aa-150jj), which authorize the Secretary of 
Agriculture to take measures necessary to prevent the spread of plant 
pests, including diseases, that are new to, or not widely prevalent in, 
the United States.
    We are proposing to amend the Karnal bunt regulations to allow, 
under certain conditions, commercial lots of seed to move out of a 
restricted area for seed and to amend the testing requirements for 
regulated articles other than seed. We also propose to remove certain 
articles from the list of articles regulated because of Karnal bunt, 
clarify the terms ``used mechanized harvesting equipment'' and ``used 
seed conditioning equipment,'' and clarify requirements for soil 
movement with vegetables. These changes would relieve restrictions on 
the movement of articles from areas regulated because of Karnal bunt. 
We also propose to amend the requirements for treating millfeed and 
soil, and remove the methyl bromide treatment alternative for 
decorative articles.
    The proposed change to allow, under certain conditions, commercial 
lots of seed to move out of a restricted area for seed would benefit 
regulated growers of wheat seed and other affected entities. For the 
first time since the regulated area was established, commercial lots of 
wheat seed would be eligible to move out of the regulated area, if, 
among other things, the seed was grown in a restricted area for seed 
that is not also part of a restricted area for regulated articles other 
than seed or a surveillance area. Those regulated areas that are 
restricted areas for seed, but that are not also part of a restricted 
area for regulated articles other than seed or a surveillance area, 
amount to an estimated 727,335 acres of regulated land in four States 
(Arizona, California, New Mexico, and Texas). These 727,335 acres 
represent 75 percent of the combined regulated area in those four 
States. The proposed change would, therefore, open up a substantial 
volume of regulated acreage to export sales of wheat seed. The 
estimated current regulated acreage, by State and regulatory 
designation, is as follows:

----------------------------------------------------------------------------------------------------------------
                                                   Arizona     California   New Mexico     Texas        Total   
----------------------------------------------------------------------------------------------------------------
Restricted area for seed.......................      797,000      100,000       58,650   \1\ 20,469      976,119
Restricted area for regulated articles other                                                                    
 than seed.....................................        6,162        3,113        3,990        1,519       14,784
Surveillance area..............................      135,000       84,000            0       15,000      234,000
Portion of restricted area for seed that would                                                                  
 be eligible to grow wheat seed for movement in                                                                 
 commercial lots from the regulated area.......      655,838       12,887       54,660        3,950     727,335 
----------------------------------------------------------------------------------------------------------------
\1\ For El Paso, restricted area for seed includes only acreage for the plowdown fields.                        

    The opportunity for export sales of seed should have a positive 
impact on seed planting in the regulated area. The magnitude of that 
impact is difficult to measure, however, because year-to-year changes 
in seed planting is a function of many factors, including factors not 
related to the regulatory environment (e.g., prices). The impact of 
this proposal would likely be most noticeable 1 to 2 years after the 
effective date of the rule; by that time, growers would have had the 
chance to adjust planting schedules to take advantage of the amended 
restrictions and would have had the opportunity to satisfy another of 
the proposal's requirements, that is, that the most recent previous 
Karnal bunt host crop grown in the field must have tested negative for 
Karnal bunt (spores and bunted kernels).
    Another of the proposal's requirements, that seed be treated prior 
to movement, may limit the amount of seed that can be moved in the 
short term and may also discourage some growers from planting seed. 
Under the proposal, in addition to fungicide treatments, commercial 
lots of seed would have to be treated with sodium hyperchloride 
(chlorine) as currently designated for the treatment of seed used for 
germplasm or for research purposes. Because of the corrosive nature of 
chlorine, stainless steel vats or containers may need to be installed 
for treating the seed. Thus, in addition to expenditures for chemicals, 
some producers may incur costs for special equipment in order to comply 
with the conditions of the proposal. However, the proposed treatment 
for commercial seed is necessary to reduce the risk of the spread of 
Karnal bunt to noninfected areas of the United States.
    Notwithstanding these requirements, the positive potential of the 
proposed changes on seed plantings could be considerable. As indicated 
above, an estimated 727,335 acres of regulated land would be eligible 
to grow wheat seed that could, under certain conditions, move in 
commercial lots outside of the regulated area. It is estimated that 
only about 15 percent of those 727,335 acres are currently planted with 
wheat, leaving the remaining 85 percent (approximately 618,235 acres) 
potentially available for wheat seed planting in the future. Even if 
only 5 percent of the 618,235 acres were planted with seed as a result 
of the proposed changes, an additional 30,912 acres in the regulated 
area would be planted with seed. By comparison, 118,087 acres of wheat 
were planted in the entire regulated area in the 1996-97 growing 
season.
    We are also proposing to amend the testing requirements for grain 
used other than for seed. Under the proposal, such grain would have to 
be tested and found free of bunted kernels, rather than spores and 
bunted kernels, prior to movement from the regulated area. Growers and 
handlers of grain would benefit from this change in the testing 
requirements.
    As much as 90 percent of the acreage of surveillance areas that is 
planted with wheat is devoted to the production of grain. This rule 
change, therefore, has the potential to affect most of the wheat grown 
in surveillance areas. Because grain intended for movement from the 
regulated area would be surveyed for bunted kernels only, and because 
those surveys would be conducted at the field rather than at the 
conveyance, we expect that the new testing procedures would save time 
for grain handlers. In addition, because laboratory analyses for spores 
would no longer be required, USDA would save money as a result of the 
new testing procedures. However, it is difficult to predict the savings 
in time or money, or if there would be an increase in the number of 
shipments that would move from the regulated area, before the new 
testing procedures are in place. Nevertheless, this proposed change 
would likely have a positive impact on the movement of grain and other 
regulated articles other than seed from the regulated area.
    For both of these proposed changes (i.e., to allow, under certain 
conditions, the movement of commercial lots of seed from restricted 
areas for seed and to amend the testing requirements for regulated 
articles other than seed), the

[[Page 4202]]

entities that would likely be most affected by the changes would be 
wheat producers. It is estimated that there are currently a total of 
354 wheat growers in the regulated areas: 248 in Arizona, 21 in 
California, 23 in New Mexico, and 62 in Texas. Of those, the number of 
wheat growers in surveillance areas is estimated to be 84, with 21 in 
Arizona, 18 in California, and 45 in Texas, and the number of wheat 
growers in the restricted area for seed (not including restricted areas 
for regulated articles other than seed or surveillance areas) is 
estimated to be 270, with 227 in Arizona, 3 in California, 23 in New 
Mexico and 17 in Texas. Most of these wheat growers are assumed to have 
gross annual receipts of less than $0.5 million, the U.S. Small 
Business Administration's threshold for classifying wheat producers as 
small entities. Accordingly, these proposed changes would positively 
impact primarily small entities. Growers would benefit from fewer 
restrictions on the movement of regulated articles, which would enable 
growers to reach new markets for their products. In addition, wheat 
seed dealers, harvesters, transporters, and processors may also benefit 
from the proposed changes to the regulations, but the magnitude of the 
impact on these entities cannot be determined.
    Regarding the remainder of the proposed actions in this document, 
three main parties would be affected by these amendments: vegetable 
growers, millers, and decorative wheat product makers.
    It is estimated that there are nearly 50 vegetable growers within 
the regulated areas. However, vegetables are expected to be grown on 
only about one-quarter of the total restricted acreage in the regulated 
area. Those who do grow vegetables in this area are believed to already 
sufficiently clean their root crop produce so that few, if any, will be 
affected by APHIS cleaning protocol.
    There are fewer than 30 millers who would potentially be affected 
by the proposed changes. The exact number of millers who elect to mill 
wheat that has tested positive for Karnal bunt is unknown at this time. 
However, data show that for the four States in the original regulated 
area, the number of wheat millers are: California (12, with 1 
processing durum); Arizona (2, with 1 processing durum); New Mexico 
(1); and Texas (7, with 1 processing rye). In 1996-97, there were 24 
wheat millers in and around the regulated area that entered into 
limited permits with APHIS: 2 in Arizona, 1 in New Mexico, and 21 in 
California. Data from limited permits issued in the regulated areas 
indicate that millers in the following States were also affected: 
Minnesota, Oregon, Virginia, Missouri, and Wisconsin. However, it is 
anticipated that very little wheat that tests positive for Karnal bunt 
will be present and thus available for milling. Also, it is likely that 
any wheat that tests positive for Karnal bunt will be channeled into 
animal feed uses.
    No information is available on the number and size of affected 
firms that deal in decorative wheat products. Any data on the number 
and size of these entities are welcomed from the public.
    Virtually all of the industries affected are likely to be composed 
of producers and firms that can be categorized as small according to 
the Small Business Administration (SBA) size classification. Economic 
impacts resulting from this rule would therefore largely affect small 
entities. The analysis of economic impacts discussed below would thus 
fulfill the requirement of a cost-benefit analysis under E.O. 12866, as 
well as the analysis of impacts of small entities as required by the 
Regulatory Flexibility Act. Unless otherwise noted, the SBA's 
characterization of a small business for the categories of interest in 
this analysis is a firm that employs at most 500 employees, or has 
sales of $5 million or less.
    It is expected that these proposed regulatory changes would provide 
some positive economic relief to entities in the regulated area. This 
is especially true for businesses that produce decorative wheat 
products and ship outside the regulated area and for vegetable growers 
on non-restricted acres because these persons are effectively 
deregulated. Cleaning of vegetables and treatment of millfeed could 
increase costs to some affected firms. However, cleaning of vegetables, 
according to APHIS protocol, is not expected to differ greatly from 
normal business practices, so additional costs should be minimal. Also, 
it is expected that little of the wheat that tests positive for Karnal 
bunt in surveillance areas will be milled for flour.
    In terms of the vegetable cleaning protocol, it is expected that, 
at most, one-quarter of the restricted acres, or 3,356 acres, comes 
into vegetable production in 1997. Assuming a cleaning cost of $20 per 
acre, this cleaning requirement would create an economic cost of 
$67,115 (or 3,356 acres at $20 per acre).\2\ This total cost is not 
expected to significantly increase the cost of production on individual 
operations. An additional $1,345 would be incurred in cleaning 
vegetables on a typical farm ($67,115 divided by 50 entities). Any 
additional information concerning the impact on vegetable growers is 
welcomed from the public.
---------------------------------------------------------------------------

    \2\ This additional cost of $20 per acre is for added labor and 
equipment that would be incurred by vegetable growers in adhering to 
APHIS' cleaning protocols.
---------------------------------------------------------------------------

    In terms of millfeed treatment, assuming a 15-percent infection 
rate on the 1,072,800 bushels expected to be produced in the 
surveillance areas in the regulated area in 1997, only 160,920 bushels 
of wheat that tests positive for Karnal bunt is expected. If 50 percent 
of this quantity were to remain in the regulated area and be milled 
into flour, 604 tons of millfeed would be produced. In the worst case 
scenario, if all production were to test positive for Karnal bunt and 
remain in the regulated area for milling, 8,046 tons of millfeed would 
be produced. It is expected that most millers who must handle millfeed 
produced from wheat that tests positive for Karnal bunt have the 
facilities or access to facilities to treat it at this time. Cost 
estimates on a per establishment basis are not available because the 
Karnal bunt contamination rate and the amount of wheat that tests 
positive for Karnal bunt to be milled is not known. Additionally, 
compensation for millfeed treatment produced from wheat grown in a 
regulated area that tests positive for Karnal bunt has been proposed 
and published in the Federal Register on July 11, 1997. The level of 
compensation proposed is $35 per ton. At this level of cost offset, and 
assuming that the initial purchase of treatment facilities has been 
made, the proposed compensation level is expected to cover almost all 
the costs of treatment. Thus, the amount of compensation requested on 
all of this millfeed ($21,121 of compensation in the first scenario 
discussed above and $281,610 in the worst case scenario) is expected to 
offset all of the economic costs incurred by millers in following APHIS 
millfeed protocol requirements.
    In terms of methyl bromide treatment for producers of decorative 
wheat products, this proposed rule change would, effectively, relax 
current regulations and, therefore, is expected to result in lower 
production costs for firms using decorative wheat products. No estimate 
of this relief is possible given the data available. Similarly, the 
additional cost associated with the moisture requirement for the methyl 
bromide treatment of soil is also unknown but is expected to be small. 
Any additional information from the public concerning these impacts is 
welcomed.

[[Page 4203]]

    These rule changes are being proposed as a result of new evidence 
that indicates that no additional risk of Karnal bunt spread is likely 
if they are adopted. For example, the articles released from regulation 
have been determined to pose minimal risk of Karnal bunt spread to non-
infected areas. Millfeed treatment has been relaxed on flour produced 
from wheat production on fields that test negative for Karnal bunt, but 
treatment is still required for wheat that tests positive for Karnal 
bunt. Decorative wheat products which are likely to come into contact 
with soil in and outside the regulated area pose little if any risk of 
disease spread. These proposed regulatory changes are the result of 
continuous research and practical industry experience in dealing with 
Karnal bunt.
    We also propose to amend the definition of surveillance areas to 
more clearly distinguish between surveillance areas and restricted 
areas. In addition, we propose to amend the regulations governing the 
importation of wheat into the United States to make the definition of 
the term ``Karnal bunt'' consistent with the definition of that term in 
the Karnal bunt regulations. We do not anticipate that these changes 
would have any economic impact.
    The proposed changes to the regulations would not result in any new 
information collection or recordkeeping requirements.

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

7 CFR Part 301

    Agricultural commodities, Incorporation by reference, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Transportation.

7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by 
reference, Nursery Stock, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Rice, Vegetables.
    Accordingly, 7 CFR parts 301 and 319 are proposed to be amended as 
follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 would continue to read as 
follows:

    Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162, 
and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).

    2. Section 301.89-2 would be amended as follows:
    a. By removing paragraphs (i), (j), (k), and (n).
    b. By redesignating paragraphs (l), (m), and (o) as paragraphs (i), 
(j), and (k), respectively.
    c. By revising newly designated paragraphs (i) and (j) to read as 
set forth below:


Sec. 301.89-2  Regulated articles.

* * * * *
    (i) Mechanized harvesting equipment that has been used in the 
production of wheat, durum wheat, and triticale;
    (j) Seed conditioning equipment that has been used in the 
production of wheat, durum wheat, and triticale; and
* * * * *
    3. Section 301.89-3 would be amended by revising paragraph (e)(3) 
to read as follows:


Sec. 301.89-3  Regulated areas.

* * * * *
    (e) * * *
    (3) Surveillance areas. A surveillance area is a distinct definable 
area where Karnal bunt is not known to exist but, because of its 
proximity to a field found during survey to contain a bunted kernel or 
because of its association with grain at a handling facility containing 
a bunted kernel, where intensive surveys are required.
* * * * *
    4. In Sec. 301.89-5, the period at the end of paragraph (a)(3) 
would be removed and a semicolon added in its place and a new paragraph 
(a)(4) would be added to read as follows:


Sec. 301.89-5  Movement of regulated articles from regulated areas.

    (a) * * *
    (4) Without a certificate or limited permit, provided the regulated 
article is straw/stalks/seed heads for decorative purposes that have 
been processed or manufactured prior to movement and are intended for 
use indoors.
* * * * *
    5. Section 301.89-6 would be amended as follows:
    a. By revising paragraph (b) to read as set forth below.
    b. By adding a new paragraph (d) to read as set forth below.


Sec. 301.89-6  Issuance of a certificate or limited permit.

* * * * *
    (b) To be eligible for movement under a certificate, grain from a 
field within a surveillance area must be tested prior to its movement 
from the field or before it is commingled with other grains and must be 
found free from bunted kernels. If bunted kernels are found, the grain 
will be eligible for movement only under a limited permit issued in 
accordance with paragraph (c) of this section.
* * * * *
    (d) To be eligible for movement as seed under certificate, 
commercial lots of seed grown in a restricted area for seed must:
    (1) Originate from a field or fields that are not part of a 
restricted area for regulated articles other than seed or a 
surveillance area;
    (2) Originate from a field or fields where the most recent previous 
Karnal bunt host crop tested negative for Karnal bunt;
    (3) Test negative for Karnal bunt; and
    (4) Be treated in accordance with Sec. 301.89-13(e).
* * * * *
    6. Section 301.89-12 would be revised to read as follows:


Sec. 301.89-12  Cleaning and disinfection.

    (a) Mechanized harvesting equipment and seed conditioning equipment 
that have been used in the production of Karnal bunt host crops must be 
cleaned and disinfected in accordance with Sec. 301.89-13 prior to 
movement from a regulated area.
    (b) Prior to movement from a regulated area, vegetable crops grown 
in fields that are in restricted areas for regulated articles other 
than seed must be cleaned of all soil and plant debris or be moved 
under limited permit in accordance with Sec. 301.89-6.
    7. Section 301.89-13 would be amended as follows:

[[Page 4204]]

    a. By revising paragraph (a) introductory text to read as set forth 
below.
    b. By revising paragraphs (b) and (c) to read as set forth below.
    c. By revising paragraph (e) introductory text to read as set forth 
below.
    d. By removing paragraph (f).


Sec. 301.89-13  Treatments.

    (a) All conveyances, mechanized harvesting equipment, seed 
conditioning equipment, 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 one of the methods 
specified in paragraphs (a)(1) through (a)(4) of this section, unless a 
particular treatment is designated by an inspector. The treatment used 
must be that specified by an inspector if that treatment is deemed most 
effective in a given situation:
* * * * *
    (b) Soil must be wet to a depth of 1 inch by water (irrigation or 
rain) just prior to treatment and must be treated 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 
deg.F for at least 1 minute if the millfeed resulted from the milling 
of wheat, durum wheat, or triticale that tested positive for Karnal 
bunt.
* * * * *
    (e) Commercial lots of seed originating from an eligible restricted 
area for seed, as described in Sec. 301.89-6(d)(1), or seed originating 
from a restricted area for seed that will be used for germplasm or for 
research purposes, must be treated with a 1.5 percent aqueous solution 
of sodium hypochlorite (=30 percent household bleach) containing 2 mL 
of Tween 20<SUP>TM</SUP> per liter agitated for 10 minutes at room 
temperature followed by a 15-minute rinse with clean, running water and 
then by drying, and either:
* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and 
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

    9. In Sec. 319.59-1, the definition of ``Karnal bunt'' would be 
revised to read as follows:


Sec. 319.59-1  Definitions.

* * * * *
    Karnal bunt. A plant disease caused by the fungus Tilletia indica 
(Mitra) Mundkur.
* * * * *
    Done in Washington, DC, this 20th day of January 1998.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-1776 Filed 1-27-98; 8:45 am]
BILLING CODE 3410-34-P