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.

Proposed Rules Federal Register

58084 

Vol. 70, No. 192 

Wednesday, October 5, 2005 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. 04–134–1] 

Karnal Bunt; Criteria for Releasing 

Fields From Regulation 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: We are proposing to amend 

the Karnal bunt regulations regarding 

the requirements that must be met in 

order for a field or area to be removed 

from the list of regulated areas. The 

proposed changes would allow a field to 

qualify for release after 5 cumulative 

years of specified management 

practices, rather than 5 consecutive 

years as the current regulations provide, 

and reorganize the manner in which 

those management practices are 

described. These proposed changes 

would clarify the existing regulations 

and provide growers in regulated areas 

with greater flexibility in their planting 

decisions. 

DATES: We will consider all comments 

that we receive on or before December 

5, 2005. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and, in the 

‘‘Search for Open Regulations’’ box, 

select ‘‘Animal and Plant Health 

Inspection Service’’ from the agency 

drop-down menu, then click on 

‘‘Submit.’’ In the Docket ID column, 

select APHIS–2005–0080 to submit or 

view public comments and to view 

supporting and related materials 

available electronically. After the close 

of the comment period, the docket can 

be viewed using the ‘‘Advanced Search’’ 

function in Regulations.gov. 

• Postal Mail/Commercial Delivery: 

Please send four copies of your 

comment (an original and three copies) 

to Docket No. 04–134–1, Regulatory 

Analysis and Development, PPD, 

APHIS, Station 3C71, 4700 River Road 

Unit 118, Riverdale, MD 20737–1238. 

Please state that your comment refers to 

Docket No. 04–134–1. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue, SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

http://www.aphis.usda.gov. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Vedpal Malik, Agriculturalist, Invasive 

Species and Pest Management, PPQ, 

APHIS, 4700 River Road Unit 134, 

Riverdale, MD 20737–1236; (301) 734– 

6774. 

SUPPLEMENTARY INFORMATION: 

Background 

Karnal bunt is a fungal disease of 

wheat (Triticum aestivum), durum 

wheat (Triticum durum), and triticale 

(Triticum aestivum X Secale cereale), a 

hybrid of wheat and rye. Karnal bunt is 

caused by the fungus Tilletia indica 

(Mitra) Mundkur and is spread 

primarily through the planting of 

infected seed. Some countries in the 

international wheat market regulate 

Karnal bunt as a fungal disease 

requiring quarantine; therefore, without 

measures taken by the Animal and Plant 

Health Inspection Service (APHIS) to 

prevent its spread, the establishment of 

Karnal bunt in the United States could 

have significant consequences with 

regard to the export of wheat to 

international markets. 

The domestic quarantine and other 

regulations regarding Karnal bunt are set 

forth in §§ 301.89–1 through 301.89–16 

(referred to below as the regulations) 

and are designed to prevent the spread 

of Karnal bunt. Paragraph (f) of 

§ 301.89–3 describes the criteria under 

which a field and any surrounding noninfected acreage may be released from 

regulation for Karnal bunt. Currently, 

the regulations provide two ways for a 

field to be released from regulation, 

which are described in paragraphs (f)(1) 

and (f)(2). We are proposing to make 

modifications to each of those 

paragraphs in order to update and 

clarify the regulations. 

Paragraph (f)(1) of the regulations 

currently provides that a field will be 

released from regulation for Karnal bunt 

when it is ‘‘no longer being used for 

crop production.’’ This criterion has 

normally applied when land is removed 

from agricultural use, e.g., the land is 

sold and subdivided for home 

construction. To make it clear that this 

criterion applies to land permanently 

removed from agricultural use, rather 

than land that may have been only 

temporarily taken out of production, we 

would amend the regulations to 

specifically state that the field must 

have been permanently removed from 

crop production in order to be released 

from regulation for Karnal bunt. 

Paragraph (f)(2) of the regulations 

currently states that a field will be 

released from regulation for Karnal bunt 

if each year for a period of 5 consecutive 

years, the field is subjected to any one 

of the following management practices 

(the practice used may vary from year to 

year): 

• Planted with a cultivated non-host 

crop; 

• Tilled once annually; or 

• Planted with a host crop that tests 

negative, through the absence of bunted 

kernels, for Karnal bunt. 

We are proposing to revise paragraph 

(f)(2) to state that a field will be released 

from regulation for Karnal bunt if the 

field is tilled at least once per year for 

a total of 5 years (the years need not be 

consecutive). After tilling, the field may 

be planted with a crop or left fallow. If 

the field is planted with a host crop, the 

crop must test negative, through the 

absence of bunted kernels, for Karnal 

bunt. 

The main difference between the 

proposed text and the text in the current 

regulations is that the revised paragraph 

would not require the specific 

management practices to be carried out 

for 5 consecutive years. The current 

consecutive years requirement means 

that if a producer skipped a year or 

more—i.e., did not plant or till the field 

in a given year—the producer would 

have to begin the 5-year time period 

again. However, no scientific basis 

exists to require producers to start over, 

as there is no effect, positive or negative, 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58085 

on the Karnal bunt status of the field if 

the management practices are not used. 

If a field was left untilled and fallow, or 

planted using no-till techniques, there 

may not be the reduction in the spore 

load in the soil that is realized with 

tilling, but there would also not be any 

increase in the spore load. Thus, if a 

farmer chose not to apply one of the 

management practices during a given 

year, we do not believe that it is 

necessary to restart the counting of 

years, thus negating any progress that 

may have been made toward the 5-year 

goal. Therefore, we would amend the 

regulations to remove the current 

requirement that the management 

practices be applied over 5 consecutive 

years. 

Our additional proposed changes to 

the text of paragraph (f)(2) involve 

rewording the description of the 

management practices to make the 

requirements clearer. Each of the 

management practices listed in the 

current regulations involves tilling, but 

‘‘tilled once annually’’ is listed as a 

discrete practice. As the other two 

management practices involve planting 

the field with a crop—either a cultivated 

non-host crop or a host crop that tests 

negative for Karnal bunt—it stands to 

reason that a field meeting the ‘‘tilled 

once annually’’ criterion would have 

been left fallow. Therefore, we are 

proposing to revise the description of 

management practices to provide that, 

for each year counted toward the 5 

cumulative years, the field is tilled and 

either: (1) Planted with a non-host crop, 

(2) left fallow, or (3) planted with a host 

crop that tests negative, through the 

absence of bunted kernels, for Karnal 

bunt. While this proposed change to our 

description of the management practices 

would not alter the substance of the 

current regulations, we believe that it 

would serve to clarify the criteria that 

must be met in order for a field to be 

released from regulation for Karnal 

bunt. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This proposed rule has been reviewed 

under Executive Order 12866. The rule 

has been determined to be not 

significant for the purposes of Executive 

Order 12866 and, therefore, has not 

been reviewed by the Office of 

Management and Budget. 

We are proposing to amend the Karnal 

bunt regulations regarding the 

requirements that must be met in order 

for a field or area to be removed from 

the list of regulated areas. The proposed 

changes would allow a field to qualify 

for release after 5 cumulative years of 

specified management practices, rather 

than 5 consecutive years as the current 

regulations provide. These proposed 

changes would clarify the existing 

regulations and provide growers in 

regulated areas with greater flexibility in 

their planting decisions. 

Compared to the current regulations, 

the proposed change to 5 cumulative 

years using the specified management 

practices would afford regulated wheat 

producers greater flexibility in the 

planting cycle; they can elect not to till 

in a particular year without having to 

start over to satisfy the 5 consecutive 

years requirement for deregulation. 

However, as a practical matter, the 

proposed change should have little or 

no impact, as the ‘‘consecutive years’’

criterion has been in effect only since 

March 2004, near the end of the 2003–

2004 crop season, and has not prevented 

any fields from being released that 

APHIS field personnel and managers 

determined were otherwise eligible for 

release from regulation. 

The Regulatory Flexibility Act 

requires that agencies consider the 

economic impact of their rules on small 

businesses, organizations, and 

governmental jurisdictions. The Karnal 

bunt regulations have the potential to 

have the most impact on wheat 

producers. At the present time, parts of 

Texas, Arizona, and California are 

regulated for Karnal bunt. In Texas, 

there are approximately 285,000 

agricultural acres and about 550 wheat 

producers under regulation. The 

equivalent figures for Arizona and 

California are, respectively, 278,000 

acres (120 producers) and 56,000 acres 

(18 producers). 

As determined by the Small Business 

Administration (SBA), the small entity 

size standard for wheat farming, which 

is defined as farms ‘‘primarily engaged 

in growing wheat and/or producing 

wheat seeds’’ (North American Industry 

Classification System code 11114), is 

$750,000 or less in annual receipts. 

Although the size of regulated wheat 

producers is unknown, they are likely to 

be small in size under SBA standards. 

This assumption is based on composite 

data for providers of the same and 

similar services. In 2002, Arizona had a 

total of 7,294 farms of all types. Of those 

farms, 91 percent had annual sales that 

year of less than $500,000, well below 

the SBA’s small entity threshold. 

Similarly, the comparable percentages 

for Texas (228,926 total farms) and 

California (79,631 total farms) were 99 

percent and 90 percent, respectively. 

(Source: SBA and NASS, 2002 Census of 

Agriculture.) Although many of these 

businesses are considered small under 

SBA standards, given the reason cited 

above, the proposed change should have 

little or no economic impact on small 

entities, wheat producers or otherwise. 

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action would not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12372 

This program/activity is listed in the 

Catalog of Federal Domestic Assistance 

under No. 10.025 and is subject to 

Executive Order 12372, which requires 

intergovernmental consultation with 

State and local officials. (See 7 CFR part 

3015, subpart V.) 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. If this proposed rule is 

adopted: (1) All State and local laws and 

regulations that are inconsistent with 

this rule will be preempted; (2) no 

retroactive effect will be given to this 

rule; and (3) administrative proceedings 

will not be required before parties may 

file suit in court challenging this rule. 

Paperwork Reduction Act 

This proposed rule contains no 

information collection or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation. 

Accordingly, we propose to amend 7 

CFR part 301 as follows: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

1. The authority citation for part 301 

would continue to read as follows: 

Authority: 7 U.S.C. 7701–7772; 7 CFR 2.22, 

2.80, and 371.3. 

Section 301.75–15 also issued under Sec. 

204, Title II, Pub. L. 106–113, 113 Stat. 

1501A–293; sections 301.75–15 and 301.75–

16 also issued under Sec. 203, Title II, Pub. 

L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 

note). 

2. In § 301.89–3, paragraph (f) would 

be revised to read as follows: 

§ 301.89–3 Regulated areas. 

* * * * * 

(f) A field known to have been 

infected with Karnal bunt, as well as 

any non-infected acreage surrounding 

the field, will be released from 

regulation if: 

(1) The field has been permanently 

removed from crop production; or 

58086 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 

(2) The field is tilled at least once per 

year for a total of 5 years (the years need 

not be consecutive). After tilling, the 

field may be planted with a crop or left 

fallow. If the field is planted with a host 

crop, the crop must test negative, 

through the absence of bunted kernels, 

for Karnal bunt. 

* * * * * 

Done in Washington, DC, this 29th day of 

September 2005. 

Elizabeth E. Gaston, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 05–19943 Filed 10–4–05; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1030 

[Docket No. AO–361–A39; DA–04–03A] 

Milk in the Upper Midwest Marketing 

Area; Final Partial Decision on 

Proposed Amendments to Marketing 

Agreement and to Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This document proposes to 

adopt as a final rule, order language 

contained in the interim final rule 

published in the Federal Register on 

June 1, 2005, concerning pooling 

standards and transportation credit 

provisions of the Upper Midwest 

(UMW) milk marketing order. This 

document also sets forth the final 

decision of the Department and is 

subject to approval by producers. A 

separate decision will be issued that 

will address proposals concerning 

pooling and repooling of milk, 

temporary loss of Grade A status, and 

increasing the maximum administrative 

assessment. 

FOR FURTHER INFORMATION CONTACT: 

Gino Tosi, Marketing Specialist, Order 

Formulation and Enforcement Branch, 

USDA/AMS/Dairy Programs, STOP 

0231-Room 2971, 1400 Independence 

Avenue, SW., Washington, DC 20250–

0231, (202) 690–3465, e-mail address: 

gino.tosi@usda.gov. 

SUPPLEMENTARY INFORMATION: This final 

partial decision permanently adopts 

amendments to Pool plant provisions to 

ensure that producer milk originating 

outside the states that comprise the 

UMW order (Illinois, Iowa, Minnesota, 

North Dakota, South Dakota, Wisconsin, 

and the Upper Peninsula of Michigan) is 

providing consistent service to the 

order’s Class I market, and to Producer 

milk provisions to eliminate the ability 

to pool, as producer milk, diversions to 

nonpool plants outside of the states that 

comprise the UMW marketing area. 

Additionally, this final partial decision 

permanently adopts a proposal to limit 

the transportation credit received by 

handlers to the first 400 miles of 

applicable milk movements. 

This administrative action is governed 

by the provisions of Sections 556 and 

557 of Title 5 of the United States Code 

and, therefore, is excluded from the 

requirements of Executive Order 12866. 

The amendments to the rules 

proposed herein have been reviewed 

under Executive Order 12988, Civil 

Justice Reform. They are not intended to 

have a retroactive effect. If adopted, the 

proposed amendments would not 

preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Agricultural Marketing 

Agreement Act of 1937 (the Act), as 

amended (7 U.S.C. 601–674), provides 

that administrative proceedings must be 

exhausted before parties may file suit in 

court. Under section 608c(15)(A) of the 

Act, any handler subject to an order may 

request modification or exemption from 

such order by filing with the 

Department of Agriculture (Department) 

a petition stating that the order, any 

provision of the order, or any obligation 

imposed in connection with the order is 

not in accordance with the law. A 

handler is afforded the opportunity for 

a hearing on the petition. After a 

hearing, the Department would rule on 

the petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has its principal place of 

business, has jurisdiction in equity to 

review the Department’s ruling on the 

petition, provided a bill in equity is 

filed not later than 20 days after the date 

of the entry of the ruling. 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.), the 

Agricultural Marketing Service has 

considered the economic impact of this 

action on small entities and has certified 

that this proposed rule will not have a 

significant economic impact on a 

substantial number of small entities. For 

the purpose of the Regulatory Flexibility 

Act, a dairy farm is considered a ‘‘small 

business’’ if it has an annual gross 

revenue of less than $750,000, and a 

dairy products manufacturer is a ‘‘small 

business’’ if it has fewer than 500 

employees. 

For the purposes of determining 

which dairy farms are ‘‘small 

businesses,’’ the $750,000 per year 

criterion was used to establish a 

production guideline of 500,000 pounds 

per month. Although this guideline does 

not factor in additional monies that may 

be received by dairy producers, it 

should be an inclusive standard for 

most ‘‘small’’ dairy farmers. For 

purposes of determining a handler’s 

size, if the plant is part of a larger 

company operating multiple plants that 

collectively exceed the 500-employee 

limit, the plant will be considered a 

large business even if the local plant has 

fewer than 500 employees. 

During August 2004, the month 

during which the hearing occurred, 

there were 15,608 dairy producers 

pooled on, and 60 handlers regulated 

by, the UMW order. Approximately 

15,082 producers, or 97 percent, were 

considered small businesses based on 

the above criteria. Of the 60 handlers 

regulated by the UMW order during 

August 2004, approximately 49 

handlers, or 82 percent, were 

considered ‘‘small businesses.’’

The adoption of the proposed pooling 

standards serve to revise established 

criteria that determine those producers, 

producer milk and plants that have a 

reasonable association with and are 

consistently serving the fluid needs of 

the UMW milk marketing area. Criteria 

for pooling are established on the basis 

of performance levels that are 

considered adequate to meet the Class I 

fluid milk needs of the market and by 

doing so, determine those producers 

who are eligible to share in the revenue 

that arises from the classified pricing of 

milk. Criteria for pooling are established 

without regard to the size of any dairy 

industry organization or entity. The 

criteria established are applied in an 

identical fashion to both large and small 

businesses and do not have any 

different economic impact on small 

entities as opposed to large entities. The 

criteria established for transportation 

credits are also applied in an identical 

fashion to both large and small 

businesses and do not have any 

different economic impact on small 

entities as opposed to large entities. 

Therefore, the proposed amendments 

will not have a significant economic 

impact on a substantial number of small 

entities. 

A review of reporting requirements 

was completed under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35). It was determined that 

these proposed amendments would 

have no impact on reporting, 

recordkeeping, or other compliance 

requirements because they would