[Federal Register Volume 74, Number 81 (Wednesday, April 29, 2009)]
[Rules and Regulations]
[Pages 19374-19382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9724]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Parts 301 and 305
[Docket No. APHIS-2006-0143]
RIN 0579-AC54
Pale Cyst Nematode; Quarantine and Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are adopting as a final rule, with two changes, an interim
rule that amended the regulations by quarantining parts of Bingham and
Bonneville Counties, ID, due to the discovery of the potato cyst
nematode there and establishing restrictions on the interstate movement
of regulated articles from the quarantined area. As amended by this
document, the rule refers to the nematode of concern, Globodera
pallida, by the common name ``pale cyst nematode'' rather than by the
name ``potato cyst nematode;'' allows the movement of Phaseolus spp.
(beans) and Pisum spp. (peas) under the same conditions that apply to
the movement of other crops to which soil is often attached; and
requires that a protocol approved by the Administrator as sufficient to
support removal of infested fields from quarantine, rather than a 3-
year biosurvey protocol, be completed in order to remove an infested
field from quarantine. We are also making minor, nonsubstantive
changes. These actions will prevent the spread of the pale cyst
nematode via potatoes, soil, and other host material to noninfested
areas of the United States.
DATES: Effective Date: April 29, 2009.
FOR FURTHER INFORMATION CONTACT: Ms. Eileen Y. Smith, National Program
Manager, Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road
Unit 134, Riverdale, MD 20737-1236; (301) 734-5235.
SUPPLEMENTARY INFORMATION:
Background
In an interim rule \1\ published in the Federal Register on
September 12, 2007, and effective on November 1, 2007 (72 FR 51975-
51988, Docket No. APHIS-2006-0143), we quarantined parts of Bingham and
Bonneville Counties, ID, due to the discovery of the potato cyst
nematode (Globodera pallida) and established restrictions on the
interstate movement of regulated articles from the quarantined area.
This action was necessary to prevent the spread of this pest to
noninfested areas of the United States.
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\1\ To view the interim rule and the comments we received, go to
http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0143.
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We solicited comments concerning our interim rule for 60 days
ending November 13, 2007. We received three comments by that date. They
were from a State department of agriculture and two private citizens.
We have carefully considered the comments we received. They are
discussed below.
The regulations established by the interim rule referred to G.
pallida as the potato cyst nematode. One commenter stated that our use
of the term ``potato cyst nematode'' to refer to G. pallida was
confusing, as the term ``potato cyst nematode'' is used generically to
refer to many cyst nematodes that infest potatoes. The commenter
suggested that we amend the regulations to instead refer to the ``pale
potato cyst nematode.''
We agree that the use of the term ``potato cyst nematode'' may make
the species to which we refer unclear. For example, in our regulations
for the importation of nursery stock in Sec. 319.37-5(a), we refer to
G. rostochiensis (the golden nematode) and G. pallida collectively as
``potato cyst nematodes.'' To avoid confusion, this final rule amends
the regulations established by the interim rule to refer instead to the
``pale cyst nematode,'' or PCN.
Section 301.86-2 of the interim rule lists certain articles that
present a risk of spreading PCN if they are moved from quarantined
areas without restriction. These articles are referred to as regulated
articles and include garden and dry beans (Phaseolus spp.) and peas
(Pisum spp.).
One commenter asked why Phaseolus spp. and Pisum spp. were listed
as regulated articles, since these articles are not hosts of PCN. The
commenter also noted that we had not included provisions for their
movement under certificate in the regulations and asked us to explain
why.
Phaseolus spp. and Pisum spp. are listed as regulated articles
because these articles are often moved with soil attached; it is the
soil that poses a risk of spreading PCN, rather than the commodity
itself. (Phaseolus spp. and Pisum spp. are produced both for
consumption and as seed; in both cases, the risk arises from the
potential movement of soil with the articles.) The risk posed by these
articles is thus similar to the risk posed by potatoes and root crops
intended for consumption, which are also often moved with soil
attached.
The regulations established by the interim rule provide conditions
under which potatoes and root crops intended for consumption can be
moved interstate with a certificate. Paragraph (a)(3) of Sec. 301.86-5
states that an inspector may issue a certificate for the interstate
movement of potatoes or root crops intended for consumption from the
quarantined area only if the field in which the potatoes or root crops
have been grown meets the following requirements:
The field has been surveyed by an inspector for PCN at
least once in the last 3 years and prior to the planting of the
potatoes or root crops;
PCN has not been found in the field; and
No more than one PCN host crop has been grown in the field
the last 3 years.
We should have allowed Phaseolus spp. and Pisum spp. to move
interstate under the same conditions, as the risk posed by these
articles is the same as the risk posed by potatoes and root crops for
consumption, and the conditions under which potatoes and root crops are
allowed to be moved will also be effective for Phaseolus spp. and Pisum
spp. Therefore, we are amending the regulations established by the
interim rule to allow Phaseolus spp. and Pisum spp. to move under the
same conditions as potatoes and root crops that are moved for
consumption. (We are also making minor editorial changes to Sec.
301.86-5(a)(3) to make it consistent with the other provisions in Sec.
301.86-5.)
Paragraph Sec. 301.86-3(a) of the regulations provide that the
Administrator of the Animal and Plant Health Inspection Service (APHIS)
will publish the description of the quarantined area on the Plant
Protection and Quarantine (PPQ) Web site, http://www.aphis.usda.gov/plant_health/plant_pest_info/potato/pcn.shtml. The description of
the quarantined area will include the date the description was last
updated and a description of the changes that have been made to the
quarantined area.
[[Page 19375]]
One commenter expressed concerns about using a Web site to display
the map of the quarantined area. This commenter stated that the map on
the PPQ Web site was hard to read. The commenter also noted that the
Web address could change, and asked how we would ensure that the
address does not change for the life of the regulations. Finally, the
commenter stated that the Department of Justice in the commenter's
State had advised that referring to a mutable document, such as a map
of a quarantined area on a Web site, in a quarantine regulation could
be more easily subjected to challenge in court than a description of
the quarantined area in the regulations themselves.
On November 1, 2007, the effective date of the interim rule, we
updated the map of the quarantined area and made it easier to read.\2\
We published a notice in the Federal Register informing the public of
the changes to the map since the publication of the interim rule on
June 6, 2008 (73 FR 32284-32285, Docket No. APHIS-2008-0014), and we
have published several notices since then informing the public of
additional changes to the quarantined area. As with other regulations
that refer to Web addresses, we will ensure that, if our Web site is
revised and the address changes, our Web site will redirect users who
enter the Web address given in the regulations to the proper Web
address. Finally, the regulations set out specific conditions for
adding infested and associated fields to the quarantined area and
indicate that we will update the quarantined area whenever these
conditions are met, meaning that the quarantined area reflects our
application of standards in the regulations. We have determined that
publishing the quarantined area on the Web and updating it based on
standards in the regulations is an adequate means to communicate the
quarantined area to the regulated public.
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\2\ This update to the quarantined area added fields in both
Bingham and Bonneville Counties, ID, and also added fields in
Jefferson County, ID.
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As noted earlier, Sec. 301.86-5(a)(3) of the regulations sets out
conditions under which potatoes and root crops intended for consumption
may be moved under a certificate. One commenter suggested that we
require potatoes and root crops intended for consumption and moved
under a certificate to be grown only in fields that are planted with
certified potato seed, if the fields are planted with potatoes.
The State of Idaho's seed certification process does not require
potato seed to be examined for potato cyst nematodes. Therefore, such a
requirement would not decrease the risk posed by the movement of
potatoes, root crops for consumption, beans, or peas, and we are not
including such a requirement in the final rule. A potato seed
certification standard is being developed that would incorporate
examination for pale cyst nematode; if it is adopted, we may revisit
this issue.
It should be noted that the State of Idaho already requires that
all potato seed planted in the State be certified potato seed, meaning
that only certified potato seed is being planted in the current
quarantined area.
Paragraph Sec. 301.86-5(b) of the regulations provides for the
issuance of limited permits for the interstate movement of regulated
articles from the quarantined area. Paragraph (b)(2) sets out specific
conditions for the movement of potatoes for consumption from the
quarantined area for processing or packing. Under this paragraph, an
inspector may issue a limited permit to allow the interstate movement
of potatoes from the quarantined area for processing or packing only
if:
The potatoes are transported in a manner that prevents the
potatoes and soil attached to the potatoes from coming into contact
with agricultural premises outside the quarantined area; and
The potatoes are processed or packed at facilities that
handle potatoes, waste, and waste water in a manner approved by APHIS
to prevent the spread of PCN.
One commenter asked us to require that receiving States be notified
of any movement of potatoes from the quarantined area under a limited
permit. The commenter recommended that the receiving State be involved
in reviewing the practices of the processing and packing facility that
would receive such potatoes in order to ensure that those processes are
adequate to prevent the spread of PCN. The commenter stated that
receiving States should have the option of testing soil from potatoes
moved under a limited permit. The commenter also asked specifically
that no movement of potatoes under a limited permit be allowed to the
commenter's State, Oregon.
To ensure that potatoes moved from the quarantined area under a
limited permit are handled, processed, or utilized in a manner that
destroys PCN, we require the receiving facility to have a compliance
agreement. This compliance agreement is signed by APHIS and the owner
or operator of the facility; during the approval process for a
compliance agreement, the State in which the facility is located is
offered the opportunity to provide input and raise any applicable
concerns. APHIS will not approve any compliance agreement unless we
determine that the facility will follow the regulations, which provide
adequate restrictions to prevent the interstate spread of PCN.
Therefore, it is not necessary to provide advance notification to
States of shipments of potatoes moved under a limited permit.
It should be noted that, thus far in the PCN program, all movement
of potatoes under a limited permit has occurred within the State of
Idaho, and we do not anticipate any movement of potatoes under a
limited permit from Idaho to other States.
One commenter stated that the interim rule had a significant
economic impact on his business, citing expenses associated with
washing trucks and tarping trucks that move between fields. The
commenter stated that the designation of fields owned by the commenter
as part of the quarantined area meant that the commenter no longer has
any control over what crops can be planted there and that investments
in planting potato crops in the quarantined fields had thus been lost.
The commenter also stated that there had been an agreement to sell
one of his farms to another farmer, but since the designation of that
field as part of the quarantined area, the sale of the farm may be
lost. The commenter asked that compensation be provided to affected
producers and suggested that APHIS rent the fields in the quarantined
area for a period of time until PCN could be eradicated.
Another commenter asked that APHIS allow equipment to move from
quarantined fields through nonquarantined fields and to other
quarantined fields without washing.
The regulations and the PCN eradication program do not require
tarping of trucks. However, as mentioned earlier, potatoes moved under
limited permit must be transported in a manner that prevents the
potatoes and soil attached to the potatoes from coming into contact
with agricultural premises outside the quarantined area. Potatoes
transported in trucks normally have soil attached. Accordingly, an
inspector may require steps to be taken to prevent that soil from
coming into contact with agricultural premises outside the quarantined
area. A common and simple means to accomplish this goal is tarping
trucks. The requirement to prevent soil attached to the potatoes from
coming into contact with
[[Page 19376]]
agricultural premises outside the quarantined area is necessary to
prevent the spread of PCN.
Similarly, washing trucks that have been used in the quarantined
area is often necessary to prevent soil on the truck from coming into
contact with agricultural premises outside the quarantined area;
without washing, such movement could pose a risk of spreading PCN to
the nonquarantined fields. We provide the services of an inspector free
of charge to monitor washing of trucks, if necessary. We are working
with affected producers to ensure that we can accommodate their
business processes to the extent that our resources allow.
The regulations restrict the interstate movement of regulated
articles from the quarantined area; they do not prescribe management
practices. The commenter refers to management practices that are part
of the eradication program; if producers participate in the eradication
program, infested fields will eventually be able to be removed from
quarantine.
Under the regulations in Sec. 301.86-3(d), producers have had the
option of maintaining their fields under quarantine or participating in
a biosurvey protocol sufficient to declare the field free of PCN.
Options for ensuring that an infested field is free of PCN include
participating in the APHIS eradication program for PCN or not planting
any host crops in a quarantined field for enough time that any PCN that
are present can no longer survive. The latter option requires not
planting host crops for 30 years, meaning that affected producers may
judge it to be in their best interest to participate in the eradication
program.
Federal action is necessary to prevent the spread of PCN into
noninfested areas and thus prevent economic impacts on a much greater
number of producers than are currently affected by the PCN quarantine.
We have determined that it is not appropriate to pay compensation to
affected producers; however, APHIS has assumed the cost of implementing
the eradication program and will continue to do so, subject to the
availability of funds.
One commenter stated that we had not given advance notice of the
addition of a field owned by the commenter to the quarantined area and
that such notice should have been given.
We provided notice of the changes in the quarantined area on
November 1, 2007, consistent with Sec. 301.86-3 of the regulations.
We are making one additional change to the regulations established
by the interim rule. Paragraph Sec. 301.86-3(d)(1) of the interim rule
stated that an infested field will be removed from quarantine when a 3-
year biosurvey protocol approved by APHIS has been completed and the
field has been found to be free of PCN. At the time of publication of
the interim rule, we believed that a 3-year biosurvey protocol would be
sufficient to support removal of an infested field from quarantine,
although we had not yet worked out the specific requirements for such a
procedure. However, with input from stakeholders and from an
independent international science panel, we have refined and continue
to refine the protocol that will be sufficient to support removal of an
infested field from quarantine. We will continue to solicit input from
affected producers, State departments of agriculture, researchers, and
the general public as we develop the protocol, and we will update
affected producers and other interested parties on our progress. To
ensure that the regulations recognize whatever bioassay protocol we
ultimately determine to be sufficient, we are changing the regulations
for removal of infested fields from quarantine to refer more
generically to a protocol approved by the Administrator as sufficient
to support removal of infested fields from quarantine.
Paragraph Sec. 301.86-3(d)(2) of the interim rule stated that an
associated field will be removed from quarantine when the field has
been found to be free of PCN according to a survey protocol approved by
the Administrator as sufficient to support removal from quarantine. To
avoid confusion with the requirement for removing infested fields from
quarantine, we are changing paragraph (d)(2) to refer to a protocol
approved by the Administrator as sufficient to support removal of
associated fields from quarantine.
Therefore, for the reasons given in the interim rule and in this
document, we are adopting the interim rule as a final rule, with the
changes discussed in this document.
This final rule also affirms the information contained in the
interim rule concerning Executive Orders 12866, 12372, and 12988 and
the Paperwork Reduction Act.
Further, this action 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.
Effective Date
Pursuant to the administrative procedure provisions in 5 U.S.C.
553, we find good cause for making this rule effective less than 30
days after publication in the Federal Register. The interim rule
adopted as final by this rule became effective on November 1, 2007.
This rule amends the testing requirements and provisions for interstate
movement established by the interim rule. Immediate action is necessary
to make these changes in order to prevent the artificial spread of PCN
to noninfested areas of the United States. Therefore, the Administrator
of the Animal and Plant Health Inspection Service has determined that
this rule should be effective upon publication in the Federal Register.
Regulatory Flexibility Act
This final rule follows an interim rule that amended the
regulations by quarantining part of Bingham and Bonneville Counties,
ID, because of the presence there of PCN and restricting the interstate
movement of regulated articles from the quarantined area. On November
1, 2007, the quarantined area was updated to add fields in both Bingham
and Bonneville Counties, ID, and to add fields in Jefferson County, ID.
These are the first detections of PCN in the United States. This
analysis considers the economic effects of the regulations on the
current quarantined area and the benefits of imposing the quarantine.
Expected benefits and costs are examined, including expected
economic impacts for small entities as required by the Regulatory
Flexibility Act.
U.S. Production and Exports \3\
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\3\ Most information in this section is derived from the
Economic Research Service's Potato Briefing Room, available online
at http://www.ers.usda.gov/Briefing/Potatoes/.
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Potatoes, excluding sweet potatoes, are a staple crop grown in a
majority of U.S. States. They are also the lead vegetable crop in the
United States. The Russet variety, which is planted in the spring and
harvested in the fall, accounts for approximately 75 percent of the
total U.S. acreage planted to potatoes. Ninety percent of all potatoes
are harvested in the fall, with the remaining 10 percent harvested in
the other three seasons. This 10 percent of production accounts for
specialty varieties that typically command higher prices, such as round
white, red, yellow, and purple potatoes.
From 2001 to 2006, acreage planted to fall potatoes fell by 9
percent while production of this variety decreased by 4 percent
throughout the United States. The decline in Idaho's acreage and
production was sharper, falling by 21 percent and 18 percent,
respectively. Yields over the same period increased in both the United
States and Idaho. Fall potatoes are marketed year round from
[[Page 19377]]
July (early harvest areas) through June. Potatoes can be stored for
long periods of time. This storage capability allows flexibility in
marketing; sellers can hold their crop until more favorable prices
prevail on the market. Fresh potatoes are mainly sold on the open
market, not under contract. Processing potatoes, on the other hand, are
typically contracted.
Table 1--Production and Farm Prices of Fall Potatoes in the United States; Idaho; and Bingham, Bonneville, and Jefferson Counties, ID, 2001-2006
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United States
Idaho Bingham Bonneville Jefferson
county \b\ county \b\ county \b\
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Production Farm price Production Farm price
Production
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Table stock Processing Table stock Processing All uses
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1,000 Cwt. $ per Cwt. 1,000 Cwt. $ per Cwt. 1,000 Cwt. 1,000 Cwt. 1,000 Cwt.
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2001.......................................................... 393,631 10.79 5.05 120,200 (a) (a) 6.15 18,330 8,136 10,047
2002.......................................................... 413,581 9.59 5.16 133,385 (a) (a) 5.00 20,000 9,204 13,029
2003.......................................................... 410,588 7.32 5.10 123,180 3.85 4.30 4.40 19,598 8,537 10,645
2004.......................................................... 410,253 6.76 5.06 131,970 3.40 4.50 4.25 20,740 9,070 9,200
2005.......................................................... 382,743 10.36 5.39 118,288 6.90 4.90 5.70 18,080 8,250 9,360
2006.......................................................... 398,921 10.27 5.90 128,915 6.55 5.40 5.90 20,200 9,930 9,100
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\a\ Prices by use not available for these years.
\b\ No data available for prices at the county level.
Source: U.S. Department of Agriculture, National Agricultural Statistics Service, Potatoes: 2006 Summary, September 2007 and USDA, NASS, Idaho Office, County Estimates: Potatoes 2006,
September 2007.
The United States ranks fourth in the world in potato production,
trailing China, Russia, and India. Historically, the United States has
been a net exporter of potatoes in value terms, with exports of
processed potatoes accounting for a large portion of this surplus. In
2003 and 2004, an increase in imports of processed potato products from
Canada tipped this balance so that the United States ran a trade
deficit in those years. However, imports of Canadian potato products
returned to historical levels in 2005, and the United States regained
its status as a net exporter. Exports of potatoes are on the rise and
now account for approximately one-third of the value of farm sales.
Over half of these exports are processed products, primarily frozen
french fries. Japan is the United States' largest importer of frozen
fries, followed by Mexico and Canada. Canada is the largest supplier of
U.S. potato imports.
Although, historically, Japan has been the largest importer of U.S.
frozen potato products, this country banned imports of fresh potatoes
from the United States starting in the 1950s. However, in February of
2006, Japan opened its market to the importation of fresh potatoes from
approved facilities in 14 States: Arizona, California, Colorado,
Florida, Idaho, Maine, Michigan, Minnesota, New Mexico, North Dakota,
Texas, Oregon, Washington, and Wisconsin (OC 2006).\4\ The outbreak of
PCN in Idaho has led to the reimplementation of Japan's ban on fresh
potatoes from the United States.
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\4\ Office of Communications of USDA. Release number 0050.06,
February 2006. Online news release: http://www.usda.gov/wps/portal?contentidonly=true&contentid=2006/02/0050.xml.
Accessed September 2006.
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Idaho Production and Exports
Idaho specializes in production of fall potatoes. According to NASS
data, there were no spring, summer, or winter potatoes produced in
Idaho from 2001 to 2006. Over 65 percent of fall potatoes are grown in
the Western States. Idaho and Washington account for 50 percent of the
U.S. total, where planted acreage in Idaho is more than double that in
Washington. Idaho's importance to the domestic potato industry also
makes this State influential in the world market for potatoes. Idaho
exports a substantial amount of potatoes on a yearly basis. However,
the majority of these exports is processed rather than fresh. This
analysis only focuses on the fresh market, since this is the portion
that will be affected by the final rule. From 2001 to 2006, the annual
value of Idaho's table potato exports averaged $3.6 million. Sixty-
seven percent of Idaho's fresh exports during this period were to
Canada. Mexico also imported potatoes from Idaho, accounting for 23
percent of Idaho exports. Japan is a substantial importer of U.S.
processed potato products, but its imports of fresh potatoes have been
negligible or nonexistent.
Together, Canada and Mexico accounted for approximately 90 percent
of Idaho exports between 2001 and 2006, although Idaho's fresh potato
sales worldwide and the combined share exported to Canada and Mexico
have fluctuated substantially (table 2). Mexico has been an expanding
market, with sales increasing 90-fold over this 6-year period, while
exports to Canada have declined by more than half. In 2005, Idaho's
potato exports to Mexico exceeded its potato exports to Canada for the
first time.
Table 2--Idaho Exports of Fresh Potatoes by Country, 2001-2006
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World Canada Mexico Japan
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Exports Exports Percentage Exports Percentage Exports Percentage
($1,000) ($1,000) of total ($1,000) of total ($1,000) of total
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2001......................................................... 3,622 3,209 88.6 34 0.9 43 1.2
2002......................................................... 3,472 3,200 92.2 12 0.3 0 0.0
2003......................................................... 1,988 1,988 100.0 0 0.0 0 0.0
2004......................................................... 1,485 1,096 73.8 338 22.8 0 0.0
2005......................................................... 6,643 1,485 22.4 2,967 44.7 0 0.0
[[Page 19378]]
2006......................................................... 4,518 1,190 26.3 3,086 68.3 0 0.0
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Source: Global Trade Information Services, World Trade Atlas: U.S. State Export Edition, April 2007.
Based upon available data and expected effects, we believe that the
benefits of the rule, in terms of curtailing the spread of the pest,
will outweigh the costs borne by producers in the quarantined area.
Major importers of fresh potatoes from Idaho, including Canada and
Mexico, have lifted their import prohibitions imposed following the PCN
discoveries and now allow imports of fresh potatoes from Idaho subject
to certain restrictions, including that the potatoes do not originate
from the quarantined area. Since the United States exports many more
potatoes in the processed form, either as frozen french fries or potato
chips, any loss of foreign markets for fresh potatoes is not likely to
have significant economic impacts on the U.S. potato industry.
Additionally, the domestic market will be able to absorb any excess
supply of fresh potatoes resulting from import bans imposed by other
countries.
In the following analysis, we first consider potential costs of the
rule for producers in the quarantined area. Possible benefits of the
rule, in terms of preventing the spread of PCN to other States, are
then examined. Lastly, we address expected impacts for small entities.
Expected Costs of the Rule
Costs for Producers in the Quarantined Area
As of December 1, 2008, approximately 17,376 of the 335,000 acres
planted to potatoes in Idaho were included in the current quarantined
area. However, of these acres, only 1,079 were infested with PCN. The
rest were regulated as associated fields. The potential economic
impacts of regulating this area are presented in the following
paragraphs.
Given a quarantined area of approximately 17,376 acres, an upper-
bound annual potato production quantity of about 563.7 million pounds
could be affected by the rule.\5\ This amount represents approximately
3 percent of total potato production in Idaho and slightly more than 1
percent of total potato production in the United States. However, even
these small percentages overstate the probable impact because the 563.7
million pound upper-bound quantity assumes all regulated acres would be
planted to potatoes at any given time, whereas potatoes are commonly
grown in a 2- to 3-year rotation with grain. Moreover, interstate
movement of table potatoes and other regulated articles from
quarantined areas will be allowed when accompanied by a certificate or
limited permit, when field surveys are completed and cropping
restrictions have been met, and when PCN has not been found. We note
that State officials expect a significant decline in the acreage
planted to potatoes in Idaho this year, due to the high price of grain
and possible water shortages.
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\5\ This estimate is based on historical yields from Bingham,
Bonneville, and Jefferson Counties, ID, and the estimated number of
acres quarantined under the rule. An average of the yields from 2001
to 2006 excluding the high and low yields from the period is
multiplied by the number of acres quarantined to estimate the level
of production in each county for the quarantine area. The production
numbers for the three counties are then summed to obtain the upper-
bound estimate reported above.
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Despite the minimal impacts on domestic production, some export
markets initially did close due to the PCN outbreak. However, the
majority of Idaho potato exports are in the form of processed products,
not fresh potatoes. Idaho's exports of fresh potatoes averaged 2
percent of total exports of potato and potato products from 2001 to
2006. As noted, since the Federal Order quarantining certain areas of
Idaho was implemented on August 28, 2006, major foreign markets for
fresh potatoes from Idaho have reopened, including Canada and Mexico.
Since these two countries account for approximately 90 percent of Idaho
fresh exports, the impact of the rule on fresh potato exports is likely
to be very small.
Producers whose fields are infested and who wish to remove those
fields from quarantine may choose either not to plant any host crop,
including potatoes, tomatoes, eggplants, peppers, or tomatillos, for 30
years or to engage in the APHIS eradication program. Producers may
plant non-host crops on the quarantined acreage. According to APHIS
field personnel, prior to the implementation of the Federal Order,
producers in the three affected counties historically planted potatoes
in a 2-year rotation with grain. If, because of the rule, a producer
chooses to plant alternative crops entirely, it would likely be a
continuous grain rotation or a rotation of grain and hay. In Bingham
County, the harvested acreage of potatoes trails that of wheat and
alfalfa hay. Producers in this county also grow barley. Data for
Bonneville County show significant wheat and barley acreage, as well as
acreage devoted to hay production. Jefferson County harvests a
significant acreage of hay, with approximately equivalent acreage
devoted to barley, wheat, and potatoes, combined. Based on historical
production in the three counties (tables 3, 4, and 5) and farmers'
options, it is likely that farmers subject to the quarantine will
choose to plant non-host crops rather than forgo revenue that could be
generated from the land under quarantine. The planting decision will be
a function of market prices, input costs, and possibly Government
payments for commodities classified as program crops. Farmers may
choose to plant one commodity or multiple commodities depending on
these factors. Given alternative production opportunities, the extent
to which producers in the quarantined area will be negatively affected
by the rule cannot be clearly defined. However, given that the crops
mentioned above are viable substitutes in production for the ineligible
host crops, producers will likely not face substantial impacts due to
the quarantine regulations.
[[Page 19379]]
Table 3--Harvested Acreage and Production of Various Crops in Bingham County, ID, 2001-2006
----------------------------------------------------------------------------------------------------------------
Wheat Barley Hay Potatoes
----------------------------------------------------------------------------------------------------------------
Harvested Acres
----------------------------------------------------------------------------------------------------------------
2001........................................................ 117,500 21,300 54,300 55,200
2002........................................................ 116,500 22,500 67,000 59,700
2003........................................................ 109,000 28,700 66,900 60,300
2004........................................................ 117,500 26,900 64,500 56,000
2005........................................................ 122,200 24,300 61,600 52,200
2006........................................................ 114,500 19,100 72,000 55,800
----------------------------------------------------------------------------------------------------------------
Production (1,000 Pounds)
----------------------------------------------------------------------------------------------------------------
2001........................................................ 660,000 95,184 472,800 1,833,000
2002........................................................ 682,200 100,224 568,400 2,000,000
2003........................................................ 680,400 123,360 512,000 1,959,800
2004........................................................ 795,600 133,440 514,000 2,074,000
2005........................................................ 807,960 121,152 583,800 1,808,000
2006........................................................ 736,500 84,960 705,600 2,020,000
----------------------------------------------------------------------------------------------------------------
Source: USDA, NASS, Quick Stats Database, U.S. and All States County Data--Crops, January 2008.
Table 4--Harvested Acreage and Production of Various Crops in Bonneville County, ID, 2001-2006
----------------------------------------------------------------------------------------------------------------
Wheat Barley Hay Potatoes
----------------------------------------------------------------------------------------------------------------
Harvested Acres
----------------------------------------------------------------------------------------------------------------
2001........................................................ 57,400 60,100 34,500 28,700
2002........................................................ 52,600 68,400 34,700 31,200
2003........................................................ 46,300 71,300 38,800 29,800
2004........................................................ 51,000 66,500 37,400 29,900
2005........................................................ 46,500 69,000 35,600 26,600
2006........................................................ 52,700 59,200 39,000 29,200
----------------------------------------------------------------------------------------------------------------
Production (1,000 Pounds)
----------------------------------------------------------------------------------------------------------------
2001........................................................ 192,000 235,680 242,000 813,600
2002........................................................ 178,800 280,320 256,800 920,400
2003........................................................ 145,200 210,240 248,000 853,700
2004........................................................ 214,800 315,456 254,800 907,000
2005........................................................ 183,900 331,392 263,200 825,000
2006........................................................ 203,100 264,000 311,000 993,000
----------------------------------------------------------------------------------------------------------------
Source: USDA, NASS, Quick Stats Database, U.S. and All States County Data--Crops, January 2008.
Table 5--Harvested Acreage and Production of Various Crops in Jefferson County, ID, 2001-2006
----------------------------------------------------------------------------------------------------------------
Wheat Barley Hay Potatoes
----------------------------------------------------------------------------------------------------------------
Harvested Acres
----------------------------------------------------------------------------------------------------------------
2001........................................................ 30,900 41,600 91,500 29,600
2002........................................................ 27,200 42,700 97,500 36,700
2003........................................................ 22,700 51,900 101,700 32,000
2004........................................................ 33,300 56,300 98,000 24,200
2005........................................................ 31,300 56,700 95,300 24,300
2006........................................................ 32,800 44,600 98,600 23,400
----------------------------------------------------------------------------------------------------------------
Production (1,000 Pounds)
----------------------------------------------------------------------------------------------------------------
2001........................................................ 152,100 187,776 835,600 1,004,700
2002........................................................ 143,160 198,960 913,200 1,302,900
2003........................................................ 123,900 234,576 926,400 1,064,500
2004........................................................ 195,600 288,672 911,400 920,000
2005........................................................ 188,880 276,192 910,000 936,000
2006........................................................ 197,880 207,840 997,000 910,000
----------------------------------------------------------------------------------------------------------------
Source: USDA, NASS, Quick Stats Database, U.S. and All States County Data--Crops, January 2008.
Expected Benefits of the Rule
Impacts of the rule on the domestic market are likely to be small,
and the benefits of the quarantine in preventing the spread of PCN are
expected to outweigh the costs. Widespread dissemination of the pest
would likely translate into significant economic losses for producers
and processors. Left
[[Page 19380]]
unchecked, PCN attacks the roots of the potato plant, leaching
nutrients from the plant itself, which in turn reduces yields, leading
to significant declines in production. Additionally, import bans
implemented by U.S. trading partners would likely be more widespread
and take longer to remove. Furthermore, producers have the option to
plant non-host crops and keep land in production rather than allowing
it to remain fallow.
Cost-Benefit Summary
Benefits of the regulation in terms of preventing the spread of PCN
are expected to outweigh direct costs to affected producers. The rule
states that an infested field will be removed from quarantine when a
protocol approved by the Administrator as sufficient to support removal
of infested fields from quarantine has been completed and the field has
been found to be free of PCN. One means to ensure that a field is free
of PCN is to avoid planting host crops in it for at least 30 years; PCN
can survive for up to 30 years in a dormant state without any host
crops on which to feed. PPQ is also developing a protocol for
eradicating PCN in infested fields. As noted earlier, PPQ will solicit
input from affected producers, State departments of agriculture,
researchers, and the general public to develop the protocol and provide
updates on its progress. When the protocol is finalized, APHIS will
make it available to the public and will pay for its implementation,
subject to the availability of funds. Regardless of the eradication
means used to ensure that a field is free from PCN, however, APHIS will
require the protocol approved by the Administrator as sufficient to
support removal of infested fields from quarantine to confirm that
freedom. Until eradication of PCN in a field is achieved, producers can
minimize their losses resulting from the regulation by planting
alternative non-host crops. A number of non-host crops have been
identified as viable substitutes for potatoes in the quarantined area.
Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act requires that agencies consider the
economic impact of rule changes on small businesses, organizations, and
governmental jurisdictions. Section 604 of the Act requires agencies to
prepare and make available to the public a final regulatory flexibility
analysis (FRFA) describing any changes made to the rule as a result of
comments received and the steps the agency has taken to minimize any
significant economic impacts on small entities. Section 604(a) of the
Act specifies the content of a FRFA. In this section, we address these
FRFA requirements.
Objectives and Need for the Rule
The objective of the interim rule and this final rule is to prevent
the spread of PCN by quarantining infested or associated fields. A
widespread outbreak of PCN in Idaho could have devastating consequences
for the U.S. potato industry. APHIS believes the implementation of the
quarantine and movement restrictions will prevent the pest from
spreading to other areas in Idaho and the rest of the United States.
This will benefit a majority of potato producers by safeguarding their
fields from infestation.
Summary of Significant Issues Raised During Comment Period
One producer affected by the quarantine commented that following
the protocols established in this rule would be logistically difficult
and would impose an economic burden on his operation. In addition, the
producer felt the rule limited his ability to make planting decisions
and interfered with the potential sale of land.
The issues raised in this comment appear to be an isolated incident
where the rule may have a significant impact on one operation. However,
the benefits of the rule, in terms of preventing the spread of PCN to
other areas, outweigh the costs described by this producer. APHIS has
not made any changes in this final rule based on this comment.
Description and Estimated Number of Small Entities Regulated
The final rule will have potential implications for domestic
producers of potatoes, as well as potato processing firms.
Additionally, producers of other host crops and non-host crops also
regulated under the rule may be impacted. It is likely that the
entities affected will be small according to Small Business
Administration (SBA) guidelines. A discussion of these impacts follows.
Affected U.S. potato producers are expected to be small entities,
based on 2002 Census of Agriculture data and SBA guidelines for
entities in the farm category Potato Farming, Field, and Seed Potato
Production (NAICS 111211). The SBA classifies producers in this farm
category with total annual sales of not more than $750,000 as small
entities. APHIS does not have information on the size distribution of
the relevant producers, but according to 2002 Agriculture Census data,
there were a total of 25,017 farms in Idaho in 2002.\6\ Of this number,
approximately 95 percent had annual sales in 2002 of less than
$500,000, which is well below the SBA's small entity threshold of
$750,000 for commodity farms.\7\ This indicates that the majority of
farms are considered small by SBA standards, and it is reasonable to
assume that most of the 121 potato farms located in Bingham County, the
47 potato farms located in Bonneville County, and the 32 potato farms
located in Jefferson County that may be affected by this rule also
qualify as small. Potato packing firms classified as NAICS 115114
(Postharvest Crop Activities (except Cotton Ginning)) are considered
small if they have not more than $6.5 million in total annual sales.
According to the County Business Patterns report for Idaho published by
the Census Bureau, there were 22 post-harvest establishments in Idaho
in 2005, the latest date for which numbers were published. Of these,
one was located in Bingham County and one was located in Bonneville
County; there were no establishments reported for Jefferson County.
This document does not report the value of total annual sales or the
distribution of annual sales for firms in this category. Thus, it is
not known what percentage of potato packing firms are small.
---------------------------------------------------------------------------
\6\ This number represents the total number of farms in Idaho,
including farms producing potatoes.
\7\ Source: SBA and 2002 Census of Agriculture.
---------------------------------------------------------------------------
In addition to potato farms, producers engaged in growing other
host crops, including tomatoes, eggplants, peppers, and tomatillos, and
non-host crops that may be moved with soil attached, including garden
and dry beans and peas, are subject to regulation and expected to be
small entities according to SBA standards. The crops listed above are
all classified within NAICS 111219 (Other Vegetable (except Potato) and
Melon Farming). Firms with total annual sales of less than $750,000 are
considered small entities. As discussed earlier, APHIS does not have
data at a sufficiently detailed level to determine which farms in these
categories are considered small. However, it is reasonable to assume
that if 95 percent of total Idaho farms are small by SBA guidelines, a
majority of the farms classified under NAICS 111219 can also be
considered small. Although it is assumed that most if not all vegetable
(except potato) farms in Bingham, Bonneville, and Jefferson Counties
are small, NASS does not report any of these types of farms in the
affected counties, nor is there any production data for these crops in
any of the affected counties. Therefore, there is likely to be at most
a very small impact
[[Page 19381]]
as a result of regulations concerning other host crops and non-host
crops moved with soil attached.
In the case of potato processors, establishments classified within
NAICS 311411 (Frozen Fruit, Juice, and Vegetable Manufacturing), NAICS
311423 (Dried and Dehydrated Food Manufacturing), NAICS 311919 (Other
Snack Food Manufacturing), and NAICS 311991 (Perishable Prepared Food
Manufacturing) with not more than 500 employees are considered small
entities by SBA standards. Data from the Economic Census show that in
2002, there were a total of 235 frozen fruit, juice, and vegetable
manufacturing establishments, including firms manufacturing frozen
french fries, in the United States. Of these firms, 215, or 92 percent,
employed fewer than 500 employees and were, therefore, considered small
entities by SBA standards. There were 181 dried and dehydrated food
manufacturing establishments in 2002. Included in this category are
manufacturers of dehydrated potato products. There were 176 firms with
less than 500 employees in this category, accounting for 97 percent of
all firms. For other snack food manufacturing establishments, which
includes firms manufacturing potato chips, there were 338
establishments in the United States in 2002. Of these establishments,
322 (over 95 percent) had fewer than 500 employees. Firms manufacturing
peeled or cut potatoes, included in the perishable prepared food
manufacturing category, numbered 610 in 2002. Of these, 603 (99
percent) had no more than 500 employees.\8\ Based on this information,
it is reasonable to conclude that domestic producers and potato
processors that may be affected by the rule are predominantly small
entities.
---------------------------------------------------------------------------
\8\ Source: SBA and 2002 Economic Census.
---------------------------------------------------------------------------
Based on the data available to APHIS, benefits to producers outside
the regulated area of curtailing the spread of the pest will likely
outweigh the costs borne by affected producers. Major importers of
fresh potatoes from Idaho, including Canada and Mexico, have lifted
import prohibitions they imposed following the PCN discoveries and now
allow imports of fresh potatoes from Idaho subject to certain
restrictions, including that the potatoes do not originate from the
quarantined area. Since the United States exports many more potatoes in
the processed form, either as frozen french fries or potato chips, any
loss of fresh markets is not likely to have significant economic
impacts on the U.S. potato industry. Additionally, the domestic market
would likely be able to absorb any excess supply of fresh potatoes
resulting from the import bans imposed by other countries.
Description and Estimate of Compliance Requirements
Inspection services required to comply with regulations are
provided to producers at no cost. Certificates and limited permits
required to move regulated articles out of a quarantined area may be
obtained without cost from an inspector or person operating under a
compliance agreement.
Description of Steps Taken To Minimize Significant Economic Impacts on
Small Entities
APHIS has concluded that there are no alternatives to the rule that
would satisfactorily accomplish the stated objectives and minimize any
significant impacts on small entities. The rule will protect potato
producers outside the regulated area from the crop damage and losses
that would be incurred if the pale cyst nematode were allowed to
spread.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
0
Accordingly, the interim rule amending 7 CFR parts 301 and 305 that was
published at 72 FR 51975-51988 on September 12, 2007, is adopted as a
final rule with the following changes:
PART 301--DOMESTIC QUARANTINE NOTICES
0
1. The authority citation for part 301 continues to read as follows:
Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80,
and 371.3.
Section 301.75-15 issued under Sec. 204, Title II, Public Law
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400
(7 U.S.C. 1421 note).
Subpart--Pale Cyst Nematode
0
2. The heading of the subpart consisting of Sec. Sec. 301.86 through
301.86-9 is revised to read as set forth above.
0
3. Section 301.86-1 is amended as follows:
0
a. By removing the definition for ``potato cyst nematode''.
0
b. By adding, in alphabetical order, a definition of ``pale cyst
nematode'' to read as set forth below.
0
c. In the definitions of ``associated field'', ``certificate'',
``infestation (infested)'', and ``infested field'', by removing the
word ``potato'' and adding the word ``pale'' in its place each time it
occurs.
Sec. 301.86-1 Definitions.
Pale cyst nematode. The pale cyst nematode (Globodera pallida), in
any stage of development.
0
4. Section 301.86-2 is amended as follows:
0
a. By revising paragraph (a), including footnote 2, to read as set
forth below.
0
b. In paragraphs (b) and (i), by removing the word ``potato'' and
adding the word ``pale'' in its place each time it occurs.
Sec. 301.86-2 Regulated articles.
(a) Pale cyst nematodes.\2\
---------------------------------------------------------------------------
\2\ Permit and other requirements for the interstate movement of
pale cyst nematodes are contained in part 330 of this chapter.
---------------------------------------------------------------------------
Sec. 301.86-3 [Amended]
0
5. Section 301.86-3 is amended as follows:
0
a. In paragraphs (a), (b)(2), (c), and (d)(2), by removing the words
``potato cyst'' and adding the words ``pale cyst'' in their place each
time they occur.
0
b. In paragraph (d)(1), by removing the words ``3-year biosurvey
protocol approved by APHIS'' and adding the words ``protocol approved
by the Administrator as sufficient to support removal of infested
fields from quarantine'' in their place; and by removing the word
``PCN'' and adding the words ``pale cyst nematode'' in its place.
0
c. In paragraph (d)(2), by removing the word ``survey'' and by adding
the words ``of associated fields'' after the word ``removal''.
0
6. Section 301.86-5 is amended as follows:
0
a. In paragraphs (a)(1), (a)(2), (a)(4), (a)(5), and (b), by removing
the word ``potato'' and adding the word ``pale'' in its place each time
it occurs.
0
b. By revising paragraph (a)(3) to read as set forth below.
Sec. 301.86-5 Issuance and cancellation of certificates and limited
permits.
(a) * * *
(3) Certification requirements for potatoes for consumption, root
crops for consumption, garden or dry beans, and peas. An inspector may
issue a certificate for the movement of potatoes intended for
consumption, root crops intended for consumption, garden or dry beans,
or peas from the quarantined area only if the field in which the
potatoes, root crops, garden or dry beans, or peas were grown meets the
following requirements:
(i) The field has been surveyed by an inspector for pale cyst
nematode at least
[[Page 19382]]
once in the last 3 years and prior to the planting of the potatoes or
root crops;
(ii) Pale cyst nematode has not been found in the field; and
(iii) No more than one pale cyst nematode host crop, as listed in
Sec. 301.86-2(b), has been grown in the field in the last 3 years.
Done in Washington, DC, this 23rd day of April 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-9724 Filed 4-28-09; 8:45 am]
BILLING CODE 3410-34-P