This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

64639

Vol. 69, No. 215

Monday, November 8, 2004

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301

[Docket No. 04–093–1] 

Golden Nematode; Regulated Areas

AGENCY: Animal and Plant Health 

Inspection Service, USDA.

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the golden 

nematode regulations by adding a field 

in Cayuga County, NY, to the list of 

generally infested regulated areas. This 

action is necessary to prevent the 

artificial spread of golden nematode to 

noninfested areas of the United States.

DATES: This interim rule is effective 

November 8, 2004. We will consider all 

comments that we receive on or before 

January 7, 2005.

ADDRESSES: You may submit comments 

by any of the following methods: 

• EDOCKET: Go to http://

www.epa.gov/feddocket to submit or 

view public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. Once you have 

entered EDOCKET, click on the ‘‘View 

Open APHIS Dockets’’ link to locate this 

document. 

• Postal Mail/Commercial Delivery: 

Please send four copies of your 

comment (an original and three copies) 

to Docket No. 04–093–1, 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. 04–093–1. 

• E-mail: Address your comment to 

regulations@aphis.usda.gov. Your 

comment must be contained in the body 

of your message; do not send attached 

files. Please include your name and 

address in your message and ‘‘Docket 

No. 04–093–1’’ on the subject line. 

• Agency Web site: Go to http://

www.aphis.usda.gov/ppd/rad/

cominst.html for a form you can use to 

submit an e-mail comment through the 

APHIS Web site. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the instructions for locating this docket 

and submitting comments. 

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: You may view 

APHIS documents published in the 

Federal Register and related 

information, including the names of 

groups and individuals who have 

commented on APHIS dockets, on the 

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

ppd/rad/webrepor.html.

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 

The golden nematode (Globodera 

rostochiensis) is a destructive pest of 

potatoes and other solanaceous plants. 

Potatoes cannot be economically grown 

on land which contains large numbers 

of the nematode. The golden nematode 

has been determined to occur in the 

United States only in parts of New York. 

The golden nematode regulations 

(contained in 7 CFR 301.85 through 

301.85–10 and referred to below as the 

regulations) list two entire counties and 

portions of seven other counties in the 

State of New York as regulated areas 

and restrict the interstate movement of 

regulated articles from those areas. Such 

restrictions are necessary to prevent the 

artificial spread of the golden nematode 

to noninfested areas of the United 

States. 

Regulated areas are those areas in 

which the golden nematode has been 

found or in which there is reason to 

believe that the golden nematode is 

present, or those areas which it is 

deemed necessary to regulate because of 

their proximity to infestation or their 

inseparability for quarantine 

enforcement purposes from infested 

localities. The regulations provide that 

less than an entire State may be 

designated as a regulated area only if the 

Deputy Administrator determines that 

the State has adopted and is enforcing 

a quarantine or regulation that imposes 

restrictions on the intrastate movement 

of the regulated articles that are 

substantially the same as those that are 

imposed with respect to the interstate 

movement of the articles and the 

designation of less than the entire State 

as a regulated area will otherwise be 

adequate to prevent the artificial 

interstate spread of the golden 

nematode. 

Regulated areas are divided into 

suppressive areas and generally infested 

areas. Suppressive areas are regulated 

areas where eradication of the golden 

nematode is undertaken as an objective. 

Generally infested areas are regulated 

areas not designated as suppressive 

areas. Restrictions are imposed on the 

interstate movement of regulated 

articles from generally infested areas 

and suppressive areas in order to 

prevent the infestation of areas where 

the golden nematode does not occur.

Recent surveys conducted by 

inspectors of the Animal and Plant 

Health Inspection Service (APHIS) have 

revealed that an infestation of golden 

nematode has occurred in one field 

outside the regulated area in Cayuga 

County, NY. New York has quarantined 

the infested area and is restricting the 

intrastate movement of regulated 

articles from that area to prevent the 

further spread of golden nematode. 

However, Federal regulations are 

necessary to restrict the interstate 

movement of regulated articles from the 

regulated areas to prevent the spread of 

golden nematode to other States and 

other countries. 

In accordance with the criteria for 

listing regulated areas, we are amending 

the list of regulated areas in § 301.85–2a 

to include an additional part of Cayuga 

County, NY, in response to the recent 

golden nematode findings described 

above. The regulated area is described 

64640 Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Rules and Regulations 

in the rule portion of this document. 

Maps of the regulated area are available 

by writing to the person listed under 

FOR FURTHER INFORMATION CONTACT or 

from local offices of Plant Protection 

and Quarantine. 

Emergency Action 

This rulemaking is necessary on an 

emergency basis to prevent the artificial 

spread of golden nematode to 

noninfested areas of the United States. 

Under these circumstances, the 

Administrator has determined that prior 

notice and opportunity for public 

comment are contrary to the public 

interest and that there is good cause 

under 5 U.S.C. 553 for making this rule 

effective less than 30 days after 

publication in the Federal Register. 

We will consider comments we 

receive during the comment period for 

this interim rule (see DATES above). 

After the comment period closes, we 

will publish another document in the 

Federal Register. The document will 

include a discussion of any comments 

we receive and any amendments we are 

making to the rule. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been reviewed under 

Executive Order 12866. For this action, 

the Office of Management and Budget 

has waived its review under Executive 

Order 12866. 

We are amending the golden 

nematode regulations by adding a field 

in Cayuga County, NY, to the list of 

generally infested regulated areas. This 

action is necessary to prevent the 

artificial spread of golden nematode to 

noninfested areas of the United States. 

The Regulatory Flexibility Act 

requires that agencies consider the 

economic impact of their rules on small 

entities and to use flexibility to provide 

regulatory relief when regulations create 

economic disparities between different 

sized entities. According to the Small 

Business Administration’s (SBA’s) 

Office of Advocacy, regulations create 

economic disparities based on size 

when they have significant economic 

impact on a substantial number of small 

entities. 

Potato farms are classified as small 

businesses if they receive less than 

$750,000 in annual sales receipts. The 

U.S. Department of Agriculture’s 

National Agricultural Statistics Service 

does not publish data on farm size for 

New York potato farms. However, it is 

likely that the regulated farm in Cayuga 

County qualifies as a small business as 

defined by the SBA. 

In the United States, the potato is the 

leading vegetable in terms of acreage 

and farm value. About 1.3 million acres 

are grown for a total production yield of 

31.4 billion pounds, worth $2.5 billion 

in farm receipts. Over 60 percent of U.S. 

potato production is processed. Growth 

in the chip market alone has averaged 

about 11 percent per year over the past 

8 years, resulting in a $4 billion 

industry. The market for exported, 

processed potatoes is a rapidly growing 

one. 

Golden nematode infestation of 

potatoes and other solanaceous plants 

(e.g., tomatoes, eggplants) poses a threat 

to New York’s agricultural economy. 

New York State is the twelfth largest 

potato producer nationwide. According 

to the New York Agricultural Statistics 

Service, in 2002 New York State had 

approximately 22,200 planted acres of 

potatoes with a production value 

totaling $65 million. About 55 percent 

of New York State’s potato production 

is destined for the fresh market, 40 

percent for processing (i.e., potato 

chips), and 5 percent for seed and 

livestock feed. New York State potatoes 

and potato products are primarily 

consumed locally and within the 

northeastern portion of the United 

States. In 2001, the production value of 

major solanaceous plants in New York 

was $92.4 million. 

The additional costs associated with 

our designation of the new regulated 

area in Cayuga County are very small 

relative to the benefits gained from 

agricultural sales. For example, the 

treatment costs for the infected fields 

are borne by APHIS and not the farmer. 

The only inconvenience to the farm 

operator might be that potatoes or any 

other solanaceous plants may be planted 

only every other year until the 

infestation is determined to be over. In 

the event that the farm operator needs 

to move farm equipment outside the 

farm, that equipment must first be 

treated, either chemically or with steam. 

The costs of treatment are borne by 

APHIS. It takes one 8-hour day for a 

Plant Protection and Quarantine officer 

and a technician to steam treat farm 

equipment, including the time required 

to set up and tear down the treatment 

site. Since the farm operator does not 

have to pay for any aspect of this 

treatment, this rule will not have any 

adverse economic impact on this farm. 

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action will 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 rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule: (1) Preempts all State 

and local laws and regulations that are 

inconsistent with this rule; (2) has no 

retroactive effect; and (3) does not 

require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Paperwork Reduction Act 

This interim rule contains no new 

information collection or recordkeeping 

requirements under the Paperwork 

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

et seq.).

List of Subjects in 7 CFR Part 301

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation.

■ Accordingly, we are amending 7 CFR 

part 301 as follows:

PART 301—DOMESTIC QUARANTINE 

NOTICES

■ 1. The authority citation for part 301 

continues 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 § 301.85–2a, under the heading 

‘‘New York’’, the entry for Cayuga 

County is revised to read as follows:

§ 301.85–2a Regulated areas; suppressive 

and generally infested areas.

* * * * *

New York 

(1) Generally infested area:

Cayuga County. (A) The Town of 

Montezuma; 

(B) That portion of land within the 

Town of Mentz owned or operated by 

Martens Farm which lies in an area 

bounded as follows: Beginning at the 

intersection of Tow Path Road and 

Maiden Lane; then west along Tow Path 

Road to its intersection with the Town 

of Mentz boundary; then north along the 

Town of Mentz boundary to its 

intersection with Maiden Lane; then 

east along Maiden Lane to the point of 

beginning.

* * * * *

Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Rules and Regulations 64641

Done in Washington, DC, this 2nd day of 

November 2004. 

Elizabeth E. Gaston, 

Acting Administrator, Animal and Plant 

Health Inspection Service.

[FR Doc. 04–24827 Filed 11–5–04; 8:45 am] 

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 905

[Docket No. FV04–905–2 FIR] 

Oranges, Grapefruit, Tangerines, and 

Tangelos Grown in Florida; Exemption 

for Shipments of Tree Run Citrus

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture is adopting, as a final rule, 

without change, an interim final rule 

that established an exemption for 

shipments of small quantities of tree run 

citrus from the rules and regulations 

under the Florida citrus marketing 

order(order). The order regulates the 

handling of oranges, grapefruit, 

tangerines, and tangelos grown in 

Florida and is administered locally by 

the Citrus Administrative Committee 

(Committee). Under rule, shipments of 

tree run citrus continue to be exempt 

from grade, size, and assessment 

requirements under the order. Producers 

can ship 150 13⁄5 bushel boxes, per 

variety, per shipment of their own citrus 

free from order regulations, not to 

exceed 3,000 boxes per variety season. 

The Committee believes this action may 

be a way to increase fresh market 

shipments, develop new markets, and 

improve grower returns.

EFFECTIVE DATE: December 8, 2004.

FOR FURTHER INFORMATION CONTACT:

Cathy Harding, SoutheastMarketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 799 

Overlook Drive, Suite A, Winter 

Haven,Florida 33884–1671; telephone: 

(863) 324–3375. Fax:(863) 325–8793; or 

George Kelhart, Technical Advisor, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237 Washington, 

DC 20250–0237; telephone: (202) 720–

2491, Fax: (202) 720–8938. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237,Washington, 

DC 20250–0237; telephone: (202) 720–

2491, Fax:(202) 720–8938, or E-mail: 

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule 

is issued underMarketing Agreement 

No. 84 and Marketing Order No. 905, 

both as amended (7 CFR part 905), 

regulating the handling of oranges, 

grapefruit, tangerines, and tangelos 

grown in Florida, hereinafter referred to 

as the ‘‘order.’’The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is not intended to 

retroactive effect. This rule will not 

preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Act 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 file 

with USDA a petition stating that the 

order, provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing USDA 

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 his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

not later than 20 days after the date of 

the entry of the ruling.

This rule continues in effect an 

exemption for shipments of small 

quantities of tree run citrus from the 

grade, size, and assessment 

requirements under the order. Tree run 

fruit is quality citrus picked and boxed 

in the field and taken directly to market 

without being graded or sized. By 

providing this exemption, producers 

can ship 150 13⁄5 bushel boxes per 

variety, per shipment, of their own 

citrus free from order regulations. Total 

shipments cannot exceed 3,000 boxes 

per variety, per season. The Committee 

believes this action may be a way to 

increase fresh market shipments, 

develop new markets, and improve 

grower returns. This action was 

recommended unanimously by the 

Committee at its meeting on June 15, 

2004. 

Section 905.80 of the order provides 

authority for the Committee to exempt 

certain types of shipments from 

regulation. Exemptions can be 

implemented for types of shipments of 

any variety in such minimum 

quantities, or for such purposes as the 

Committee, with the approval of USDA, 

may specify. No assessment is levied on 

fruit so shipped. The Committee shall, 

with the approval of USDA, prescribe 

such rules, regulations, or safeguards as 

it deems necessary to prevent varieties 

handled under the provisions of this 

section from entering channels of trade 

for other than the purposes authorized 

by this section. 

Section 905.149 of the order’s rules 

and regulations defines grower tree run 

citrus and outlines the procedures to be 

used for growers to apply to the 

Committee to ship their own tree run 

citrus exempt from grade, size, and 

assessment requirements. The 

provisions were originally established 

just for the 2002–03 season, then 

extended for the 2003–04 season. 

During the 2003–04 season, growers 

were allowed to ship a maximum of 150 

13⁄5 bushel boxes per variety, per 

shipment, up to a seasonal total of 3,000 

boxes per variety of their tree run fruit 

free from order requirements. 

For the past two seasons, the 

Committee has utilized the provisions of 

§ 905.149 on an annual basis. Rather 

than making this recommendation each 

year, the Committee recommended that 

the provisions of § 905.149 be 

established on a continuous basis. 

However, growers must receive 

approval from the Committee before 

they can utilize this exemption. 

According to Florida Department of 

Citrus (FDOC) regulation 20–35.006, 

‘‘Tree run grade is that grade of 

naturally occurring sound and 

wholesome citrus fruit which has not 

been separated either as to grade or size 

after severance from the tree.’’ Also, 

(FDOC) regulation 20–62.002 defines 

wholesomeness as fruit free from rot, 

decay sponginess, unsoundness, 

leakage, staleness, or other conditions 

showing physical defects of the fruit. By 

definition, this fruit is handled by the 

grower and bypasses normal handler 

operations. Prior to implementation of 

the exemption, all tree run citrus had to 

meet all requirements of the marketing 

order, as well as State of Florida 

Statutes and Florida Department of 

Citrus regulations. Even with this rule, 

tree run citrus must continue to meet 

applicable State of Florida Statutes and 

Florida Department of Citrus