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Ban on CL 131 not easy decision

At an emergency meeting March 2, with the 2007 fate of rice variety Clearfield 131 hanging in the balance, the Arkansas State Plant Board (ASPB) heard testimony from farmers and millers. While the end result was a ban for CL 131, the 6-5 vote couldn’t have been closer. Several board members made it clear their “no” votes were largely due to fears of hurting farmers so close to planting.

But, in the end, newly discovered CL 131 testing information coupled with regulations already on the books helped tip the scales toward a ban. (for more, see:


On Feb. 21, the Plant Board’s seed committee recommended the full board adopt a measure allowing the planting of “clean” CL 131 seed (seed without lab detection for a LibertyLink trait, or seed with positive detections at, or below, a very low threshold). The seed committee’s recommendation was made with the understanding that Riceland, the state’s largest rice co-op, would take “clean” CL 131 from farmers, something that turned out not to be the case.

“We recognize that this is a highly technical and confusing issue,” wrote Danny Kennedy, Riceland CEO, in a letter to the Plant Board on Feb. 22. “In fact, following (2.5) hours of sometimes tense discussion (during the Feb. 21 seed committee meeting), we regret that the Riceland representative misstated our own position regarding the Plant Board’s testing procedures.”

During testimony on March 2, Kennedy urged a ban on CL 131. “The Arkansas Rice Certification law authorizes the (ASPB) to prohibit the introduction, planting, production and further handling of rice identified as having characteristics of commercial impact. European rice buyers have seen the instructions given by the (ASPB) seed committee last week and have declared they will not accept CL 131 or Cheniere.”

To protect the rice industry, “Riceland expects the (ASPB) to prohibit the planting of CL 131, and Riceland supports that position.”

Next to speak was Keith Glover, president and CEO of Producers Rice Mill, the second-largest rice co-op in the state. Limiting his comments to the potential economic impact of GM rice, Glover presented a sobering list. Among his claims:

• Total U.S. grain exports during 2006/2007 are down 476,000 metric tons, or down 20 percent from a year ago.

• U.S. long-grain milled rice exports are down 399,000 metric tons, or down 35 percent.

• U.S. long-grain brown rice exports are down 167,000 metric tons, or down 77 percent.

• U.S. long-grain millings are down 36.5 million bushels from a year ago, or down 22 percent.

• Cuba purchased 186,100 metric tons from the U.S. in 2005/2006. This year, Cuba has purchased none.

• Russia has banned all U.S. rice.

• The Philippines purchased 65,200 metric tons of U.S. rice during 2005/2006. This year, despite $20 million of U.S. PL-480, (the nation) cancelled or rejected all tenders due to the GE rice issue.

• The Dominican Republic purchased 47,400 metric tons of U.S. rice during 2005/2006. This year, (the nation) has imported only 200 metric tons.

• (In mid-February), Costa Rica held a 70,000 metric ton tender of U.S. rough rice and specifically excluded all known U.S. rice varieties that contain GE materials.

• Iraq, Canada and Saudi Arabia all require that U.S. rice shipped must test negative for GMO.

Further, Glover said from Aug. 18, 2006 (the day USDA announced a GM trait had been found in the U.S. rice supply), until the respective contract date, the following has occurred:

• December wheat gained 95 cents per bushel, or up 25 percent.

• December corn gained $1.26 per bushel, or up 54 percent.

• January soybeans gained $1.34 per bushel, or up 23 percent.

• January rice, “during one of the greatest grain rallies in history,” dropped 20 cents per cwt., or down 2 percent.

“Even more revealing,” Glover continued, “is the USDA weekly world price, which is a reflection of world rice prices outside the United States for rice, has risen 15 percent since Aug. 18, while the March rough rice futures have dropped 5 percent.”

Riviana Foods’ Mickey Maddox said, effective July 1, the company “will not accept CL 131…through at least the 2007/2008 marketing year. The discovery of LL rice traits in headrow seed and the controversy surrounding seed testing leaves us no other options.”


Maddox’ reference to headrow seed stemmed from an APHIS (USDA’s Animal Plant Health Inspection Service) report released in late February. According to APHIS, tests on CL 131 “were conducted as part of an ongoing investigation into the release of regulated LLRice 601 in commercial long-grain rice. Since LLRice 62 was deregulated by APHIS in 1999, this rice line is not the focus of APHIS’ investigation. APHIS conducted the testing to determine which GE rice variety, if any, was present in CL 131. The positive sample was pulled from 2004 headrow seed — an early step in the plant breeding process — and not from foundation seed.”

In light of the APHIS finding, Chuck Wilson was asked to explain what headrow seed is and how it affects the current seed supply.

“Headrow seed is an early increase in the seed generation process,” said the Arkansas Extension rice specialist. “With headrow seed, specific, individual heads are selected and planted in rows. One panicle plants one row. Selections are then made from those rows that conform to the specifications of a particular variety. The seed that comes off those headrows … becomes breeder seed. Breeder seed is planted to produce foundation seed. Foundation seed is used to produce registered seed. Registered seed is then used to produce certified seed.”

That means headrow seed is four generations prior to the production of certified seed.

“Another issue I’ve been asked to talk about is the potential ramifications of finding LL rice in that early generation,” said Wilson. “If you assume, because it’s Clearfield rice, that it was a simple, mechanical mixture, each one of those generations of seed increase has had two applications of Newpath. You’re talking about four generations of Newpath application and we’re still finding LL 62 in the current seed supply.

“Thus, it seems logical to assume that we’re now dealing with a certain percentage of Clearfield rice that has both the Clearfield gene and the LL gene. With the development of the technology in the late 1990s, the hopeful idea was we’d have LL technology and Clearfield technology to rotate to prevent outcrossing as we’re seeing now in Clearfield rice.”

Karen Moldenhauer, a well-respected University of Arkansas rice breeder, agreed with Wilson and said due to the LL trait being found in headrow rice, all CL 131 could potentially harbor the trait.

Moldenhauer was asked why, if that was the case, some CL 131 tested at zero levels for the trait.

“Sampling,” replied the rice breeder. “You have a big bin of seed and you sample here, here and here. But you might miss the one (seed with the trait) in the middle…”

“You don’t think we’re talking about a (GM) material that’s present through multiple kernels as opposed to probing, and finding, the one kernel that has the (GM) presence?” asked board member Mark Waldrip.

“I’m saying you don’t have all that many kernels in there, they’re scattered,” replied Moldenhauer. “I don’t think every kernel has it, no. It can’t be that or all of it would test positive…”

Farmers speak

Baker Fullerton, a DeWitt, Ark., crop consultant cautioned the board against a CL 131 ban.

“Unlike the earlier decision to ban the planting of Cheniere, a conventional variety, there isn’t a ready supply of any other Clearfield seed to replace 131,” said Fullerton. “Much of the Clearfield intended acreage is heavily infested with red rice. It’s not feasible to plant a conventional variety on this land. Even on land with a light to moderate red rice infestation, planting a conventional variety would result in reduced yields, discounts for grade, increased lodging … and dramatically increased red rice seed populations. All the years and investments in red rice control would be lost in one year. Because much of this land is low, flat and black, weather conditions must be nearly perfect to grow a soybean crop that is profitable as even an average crop…”

Fullerton referred to the 6 percent of U.S. exports to the EU as a “niche market.” If cooperatives want to maintain it, “they can segregate the 131 from the other long-grain varieties. They are already segregating medium-grain from long-grain. They also have the option to not buy any CL 131. However, they should not be allowed to punish the rest of the industry and their customers who could care less if one or two grains out of 10,000 have a GMO trait.”

Bruce Katt, a Clay County, Ark., rice farmer, said Clearfield is the only option he has. “Like many farmers in my area, I’m concerned that I’ve already sold the coming rice crop and yet have a chance of not having seed. I have a contract for 100,000 bushels which amounts to close to $500,000 and prepaid, for seed, $40,000.

“Over the last few years, high inputs costs and low prices have put me and many others in my area in a bad position.

“The company I’ve contracted my rice with (says it) will take 131 if we have proof (the seed) tests negative. We feel with rice just a few weeks away from planting, this would be devastating to drop this variety now.”

Jerry Lee Bogard urged the board not to change regulations on CL 131.

“The issue here is one of economic hardship and equitable and fair distribution of how that’s applied,” said the Stuttgart, Ark.-area farmer. “We’ve heard some farmers speak … whose economic future and outlooks aren’t so bright if this technology is taken from them.

“When we look at the downstream side of agriculture, the rice industry in particular, there’s 41 million cwt. of rice carried over going into the 2007 crop year. That’s going to take years, not months, to filter out through this system.

“So it seems an unfair and unreasonable burden to place upon a select few farmers (the inability) to plant zero-tested seed. If we knew we’d clean up in six months or one year and everything would go away and there’d be no more problem, that’d be one thing. But that isn’t the case.

“We also know that anyone planting rice behind Cheniere and CL 131, regardless of what that variety may be — even zero or negative tested — the possibility for volunteer rice to (emerge) certainly exists. It isn’t a great probability, but it is a probability and may throw a positive test…

“It’s an unfair expectation that (farmers) should bear the burden 100 percent when farmers in other states may not follow suit…”

Sam Morgan, a rice farmer in Arkansas and Jefferson counties, said he’s spent thousands of dollars to precision level land “we can only raise rice on. We’ve got Clearfield there and can’t plant domestic behind it, so I’m in a bind.

“I plead with the board: consider the farmer just a little bit. We’re in a bind and will lose production. And I can’t afford to lose much production. My loan officer told me I couldn’t lose any. We’re strapped.”

Robbie Dabbs, a rice farmer in Arkansas and Jefferson counties, told the board he had planned to plant 1,300 acres of rice.

“I’ve been farming for 46 years and I’ve never seen or been involved with anything that’s as controversial as this is.”

The main problem with a CL 131 ban would be the timing, said Dabbs. “Here we are two or three weeks from planting and we still don’t know what kind of rice we can plant.

“I have 600 acres I had in regular rice last year. (The field has) bad red rice. I was going to come back with Clearfield. Well, that’s out and I can’t raise good beans on it because it’s all buckshot.

“This is a one-time deal. We just want to get through this year and have the opportunity to get back in a normal rotation.”

Jim Whitaker, a farmer from southeast Arkansas, said about a third of the acres in his region would have been planted in CL 131 in 2007.

“Let me tell you how this will affect people like me,” explained Whitaker. “I grow zero-grade, continuous rice. I need Clearfield technology to keep my farm clean and productive. I based my whole farm around this technology. We’ve leveled our land for this, we built grain bins, bought stripper-headers — we’ve spent and lot of money investing in rice.

“I was planning on planting about a third of my crop in CL 131. I lease numerous farms based on rice rent. If I have to go back, re-do my equipment and go into soybeans it will be devastating for me and my family.”

The price of lawsuits brought in the wake of GM traits entering the rice supply will ultimately fall on farmers, said Whitaker. “Don’t ever forget that. Every bit of the loss these companies are making is being passed right down to the farmer. (The mills) have a hard job and are in a bind. I understand that. But you must understand the local economies are in a bind also. (A ban) would mean a big hardship for southeast Arkansas.

“One thing I find funny about the situation is you can mill dog food for $9.10 per cwt. They’re only paying $9.50/$9.75 for number two long-grain rice. The market has already taken the hit. If I can plant CL 131, I’ll take the chance that my mill will be able to market somewhere — whether it’s to a feed mill or another country.”

Tom Jacobs, a rice farmer in Arkansas and Jefferson counties, also complained about the late date.

“There’s already rice being planted in Louisiana — CL 131 — and in southern Texas. In 10 days, there will be a lot of rice acres planted. In 20 days, there will be rice planted in south Arkansas.

“Now, I understand that the mills shipping internationally are having a problem. I don’t disagree. If they want to put the burden on themselves to outlaw and not take Cl131, let them do it. But let them do it, don’t you do it for them.

“(The ASPB) made a ruling in December … stick with it. Seed dealers and farmers, in good faith, took that. Right now, there’s rice sitting on trucks and in grain carts that’s already been treated — thousands of bushels. Once it’s been treated, it can’t go into the mills. What will you do with it? Who will eat it? Who will pay for it?”

Following the Feb. 21 seed committee meeting, Harvey Howington, a rice farmer from Lepanto, Ark., “called one of my rice retailers to see what the price for rice was. He couldn’t give me a firm price because he couldn’t get one from his supplier. And he’s not been able to get a firm price on rice seed all year.

“So I called the supplier, who’s also a retailer, to ask for a price. He quoted me a price that was about $1 higher than last year. I made a comment about that. He said, ‘Well, rice is about $1 higher, too.’”

After checking, Howington said he realized the supplier was correct.

“I wonder how that’s possible. It seems the market can shrug off the loss of the EU. Not only has it shrugged off that loss but the rice market seems to be all upside for the 2007 crop.

“Everyone on this board represents a segment of the ag industry. I’m a little curious about which segment wants to ban CL 131. The seed industry doesn’t (want the ban), the chemical and fertilizer industry doesn’t want it, the ag pilots sure don’t want it, and the farmers who have red rice certainly don’t want it.”

A ban of CL 131 would show “a clear disregard for farmers,” claimed John Alter, a rice grower in Arkansas County and president of the Arkansas Rice Growers Association (ARGA). “There’s a tremendous amount of expense for farmers already. Either they have, or will, bear the expense of seed testing.

“We’re losing planting options that farmers in other states still have. And no one has mentioned what seed costs have already done … just on the rumor of (a ban). Seed costs have already gone up on the varieties left $1, $1.50, or $2 per bushel, depending on who you talk to. How much more do the mills expect the farmers to bear for such a small segment of the market?”

Alter said some questions should be asked repeatedly: “What are we paying, price-wise, for this and what will it gain us? What will we truly get?”

However the final vote turned out, Greg Yielding, representing ARGA and the US Rice Producers Association, told the board, “This is one of the most important things you’ll ever vote on. This decision could put people out business, could bankrupt farms.”

And Yielding said the ban would mean a new set of problems to contend with.

“I was in a Missouri rice producers meeting last night. What about bootleggers? What about (farmers) who told me, ‘I’ll plant it anyway. We have no law here. We’re going to plant it. As long as we have the certificate saying its GM-free, we’ll plant it.’?

“And what about bootlegging? I’m not going to tell you how to get around the system, because it needs to be cleaned up. But I’m telling you: it won’t work.

If a CL 131 ban is enacted, Yielding said, “farmers will go out of business. There were 32 just in Arkansas County that went out of business last year.”

With a foot in two camps, Bill Dunklin, farmer and elevator operator from Dumas, Ark., appealed to the board’s sense of fairness and said it would be wrong to enact a ban.

“As a farmer, I really need the CL 131 technology on some of my acres. As an elevator owner, I don’t want to handle something that has to be segregated or might not have the marketing opportunities that (GMO-free) rice would.

“But to me it’s obvious that the only fair thing to do at this late date is for the board to stick with its original decision. If the CL 131 tests clean — or up to the 0.01 percent tolerance — it should be allowed to be planted.

“With the hoopla that’s gone on, only those who are economically affected will plant CL 131. If I don’t have to have it in a field, I’m not going to test the market. We’ve already cut CL 131 down just to those willing to take a chance with marketing.

“This is going to put CL 131 at the lowest possible acreage we can have in the state. It’s obvious from the carryover … this problem means we’ll have to find markets for rice with this trait.”

New data

“This has been a very difficult issue for everyone involved,” said Darryl Little, ASPB director. “And it has evolved. I know I’ve heard a lot of comments about it being late in the game. But we’re gathering information on a daily basis that can impact the market and marketability of our rice crop and can impact a grower if he plants a variety that will be adversely impacted in the marketplace.

“The (Arkansas) legislature charged this agency with protecting the rice industry from characteristics that can be in that rice that will adversely affect it on the world market.”

The state’s legal definition of characteristics of commercial impact is: “Characteristics that may adversely affect the marketability of rice in the event of commingling with any other rice and includes, but is not limited to those characteristics: (A) that cannot be identified without the aid of specialized equipment or testing; (B) that create a significant impact in their removal from commingled rice; and (C) whose removal from commingled rice is not feasible.”

“This is the exactly the situation we’re dealing in with Cheniere,” said Little. “As sampling data began coming in relative to CL 131 we were looking at data on a lot-by-lot basis. That all changed last week, a few hours before the seed committee met.”

It changed because of the aforementioned APHIS (USDA’s Animal Plant Health Inspection Service) announcement indicating LL Rice 62, a trait different than that found in Cheniere, had been detected in CL 131 headrow seed.

“That essentially means the variety contains LL traits,” said Little who also informed the board of a BASF letter sent to him and Cindy Smith, deputy administrator for USDA’s Biotechnology Regulatory Services.

In the letter, BASF references “a registered-grade lot of CL 131 that tested positive in three of four pools with the 35S-bar test. The 35S-bar test is the broad screening tool used to detect all the LL traits.

“So the laboratory had three of four positive pools in the 35S-bar test and went back to try and identify specifically which LL trait was in the sample. They tested it for LL Rice 62 — which had already been determined to be in CL 131 — and it wasn’t LL 62. They checked it for LL 601 and it wasn’t LL 601.”

Shortly before the Plant Board met, Little received an e-mail from HorizonAg, the Memphis-based company responsible for Clearfield varieties. The e-mail reported on further testing “done on the same sample. The laboratory determined the LL trait in the Clearfield sample isn’t LL 06.”

The three LL traits being ruled out is significant, Little explained, because, “there are only three LL events that have been deregulated: LL 06, LL 62 and, just last fall as the result of the detection in Cheniere, LL 601. So, apparently, whatever is in this sample isn’t any of these deregulated events and we don’t know what it is. That could be an additional problem with the marketability if and when it’s identified.”


Early in deliberations and with a unanimous vote, the board adopted the following motion: “The ASPB shall determine eligibility for planting of rice seed for the 2007 planting season in the following manner: All laboratory reports shall be evaluated using GIPSA standards to determine eligibility for planting.”

For those needing clarification, said board member Mark Waldrip, “what this means is … if there’s any detection, at any level, in any sub-pool, then the sample is determined to be above 0.01 percent and be ineligible for planting. Basically, it amounts to zero-tolerance.”

Little asked for more “guidance related to whether this information related to CL 131 that’s just come out in the last few days causes that variety to fall under the ban we placed on Cheniere...”

Based on the fresh testing information outlined by Little, board member Ray Vester suggested a motion that “CL 131 fall under the regulation passed under Cheniere…” The motion would have, in effect, meant the banning of CL 131.

Waldrip was opposed.

“First of all, we’re not comparing apples to apples when we talk about Cheniere and CL 131,” said Waldrip, who also chairs the ASPB seed committee. “We’ve moved about two decimal places further to the right. Let’s clarify that and understand we’re not talking about the same level of presence. And we’re talking about ‘presence’ not ‘contamination.’

“When we have this discussion and start talking about testing procedures, it’s so easy for us to subconsciously start thinking about toxins or poisons or chemicals. I want to back away from that.

“We’ve established the testing levels where the European market asked us to. We’ve said 0.01 was acceptable. Since the last motion, we’ve done a really aggressive interpretation of that so if there’s anything in any sub-pool that rice won’t be allowed for sale.

“We’re at the lower threshold of what the testing technology has the ability to detect and certainly the ability to quantify. We’re literally looking for a needle in a haystack. And when the test is performed, sometimes you find the needle and sometimes you don’t. But we’re using the best testing procedures we have.

“We heard farmers today talk about why CL 131 is important to them. Everyone in this whole process has tough decisions to make. Rice mills have already made tough decisions and I don’t envy your position. I know everyone in that process has made those decisions based on what’s the best interest of the mills and their members. I believe that and that’s the decision you should’ve made.

“Seedsmen have decisions to make. Under that protocol, with that GIPSA standard, there will be seed dealers with CL 131 they’ll be able to sell. Now, 75 percent, or some large percent, will be ineligible. But there will be decisions made by seed dealers about whether they want the associated liability of even selling it. I don’t know how they’ll decide.”

There are also going to be some tough decisions made by farmers, insisted Waldrip.

“For my part, I don’t want to make the decision for that farmer. I want him to make that decision, for him to have the ability to buy rice seed that’s tested, to the best of our ability, zero. Because we’re essentially not talking about lower than 0.01 percent now; we’re talking about zero.

“If that farmer makes that decision, he needs to weigh the possibility that because that seed indicated zero, there aren’t many absolutes. He needs to weigh the fact that it may be tough to find a place to sell that rice. But I want him to make that decision. I don’t want to make that decision and I’ll vote no.”

Vester, a rice farmer, lamented the fact that LibertyLink technology was unavailable to him. Even so, the report of an unknown LL trait in CL 131 was bothersome.

There are “only three legal (LL traits) to sell in the United States. That tells me there’s another trait in there that’s not legal to sell. That’s my concern.”

Vester then read a letter from Proctor and Gamble advocating no CL 131 be allowed. The company “exports food products made with Arkansas rice to customers globally and the GM rice issue has added significant cost and complexity to our process. We maintain that planting suspected or known GM rice seed in 2007 would simply prolong the issue and continue to hurt the entire rice industry.”

“Next year, if this turns around and commodity prices are lower, this GMO will create a two-class system of seed in the selling of rice,” claimed Vester. “It won’t make one pay a premium, it’ll make one be at a discount below the other. Then, we’ll have people buying that discount and pushing our whole market down and we’ll be selling rice at loan, or below.

“If we prolong this, it’ll be a nail in the coffin of the rice industry in this country.

“We hear ‘Mississippi, Louisiana and Texas (will grow 131) anyway.’ You know what’s going to happen if we (ban 131)? A buyer will come in — domestic or European — and specify Arkansas rice. It will create a premium in the market.”

Echoing Dunklin’s comments earlier, Waldrip countered that only the worst red rice fields would be planted in Cl131. “With all the publicity surrounding this, if a guy doesn’t have to absolutely have Clearfield, he won’t plant it. I wouldn’t. But if (a farmer) absolutely has to have it, I don’t want to deny them.”

Following more discussion on existing regulations, Vester offered a motion directing ASPB staff, “at this point, to consider CL 131 as a variety with LL.”

The final vote was 6-5 in favor of adoption, with board chairman George Tidwell forced to break the tie.


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